R v Sabattis, 2020 ONCJ 242

Application dismissed. The applicant, a young Indigenous first offender, has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either herself or for other persons in reasonably foreseeable cases.

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A young Indigenous first offender was found guilty of impaired driving and operating a motor vehicle while her blood alcohol concentration exceeded 80 mg/100 ml of blood, contrary to s 253(1)(a) and s 253(1)(b) of the Criminal Code.

In this matter, the applicant submits that a curative discharge is most appropriate, but this remedy is not available because the Criminal Law Amendment Act allows Ontario to decline to proclaim the Criminal Code provision for a curative discharge into force. As a mandatory minimum sentence for a first offence, the applicant must pay a $1000 fine, and receive a one-year driving prohibition. The applicant alleges that the Criminal Law Amendment Act, violates the applicant’s s 15 Charter rights by allowing the provinces to opt out of the curative discharge provisions. This disregards Gladue principles, causing “differential treatment” of Aboriginal offenders and other members of society in the sentencing process. As well, she submits that the mandatory minimum sentence subjects the applicant to cruel and unusual punishment contrary to s 12 of the Charter. In respect of both alleged breaches, the applicant submits that the provisions are not saved by s 1 of the Charter and therefore seeks the imposition of a curative discharge as a remedy.

The Court finds that the applicant has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either the offender or for other persons in reasonably foreseeable cases. Similarly, the applicant has not established that the non-proclamation of the curative discharge provisions results in a grossly disproportionate sentence contrary to s 12 of the Charter. Given the finding that there is no violation of s 12 or s 15 of the Charter, the Court is bound by the mandatory minimum sentence. Using the relevant sentencing principles including Gladue principles, and having regard to the circumstances of the offence and of the offender, it is the Court’s view an appropriate sentence is a $1200 fine, a 15-month driving prohibition, and probation for a period of two years with the requirement that the offender attend counselling as directed by her probation officer related to her consumption of alcohol and other counselling as directed.

The fine and prohibition imposed is greater than the statutory minimums to recognize the need for denunciation and deterrence, the aggravating factors of the case, and to give effect to s 255.1, which provides that evidence of a blood alcohol concentration in excess of 160 mg/100 ml of blood is a statutorily aggravating factor. This non-custodial sentence, which includes two years probation with a requirement for alcohol counselling, recognizes the importance of rehabilitation for this youthful first offender and takes into account the restorative Gladue principles. The Court is satisfied that alcohol counselling is a necessary rehabilitative component of the sentence. This sentence is still at the lowest end of the range of what is appropriate given the aggravating features of the offence, but also reflects the significant mitigating personal circumstances of the offender.

R v JP, 2020 SKCA 52

Leave to appeal granted and appeal allowed from sentence. Pursuant to s 687(1)(a) of the Criminal Code, the sentence of an Indigenous offender for two robberies is varied. It is ordered he serve concurrent sentences of five years in relation to each of these two crimes, with a global sentence of eight years less credit for time spent on remand.

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This appeal concerns the proper sentencing of an accused who suffers from Fetal Alcohol Spectrum Disorder [“FASD”] and whose personal circumstances called for application of the principles set out in R v Gladue,  [1999] 2 CNLR 252 [“Gladue”]. The offender, who is of Indigenous ancestry, was convicted of being a party to two armed robberies. He also pleaded guilty to several other offences. For all of these crimes, he was sentenced to 17 years’ imprisonment, which was reduced by the sentencing judge to a global sentence of ten years less credit for time spent on remand.

The offender had an extensive criminal record with over 70 convictions that pre-dated these matters. A Gladue report was prepared that recounted the history of his family and community. The extreme poverty, minimal educational opportunities, and overcrowded and deficient housing experienced by the offender’s parents cannot be captured in a few words, but the outcome was a life of family dysfunction, substance and alcohol abuse, and violence.

The offender’s grounds of appeal must be examined in light of the applicable standard of review. He took the position in this Court, that the judge committed several errors in principle and, in any event, that the global sentence is demonstrably unfit.

The factors indicated the offender has reduced moral blameworthiness. These factors were overwhelming and their connection to the offences cannot be credibly denied. This is not a case where the connection between the “systemic and background factors that have contributed significantly to [the offender’s] circumstances, and to his appearances before the criminal courts of this province” is elusive. It is impossible not to see a direct connection between these factors and the specific crimes for which the offender was being sentenced. Cause and effect are not required, but the facts of this case come as close as most any situation could (R v Ipeelee, [2012] 2 CNLR 218). The Court determined the judge erred in principle by failing to account for the systemic and background factors (including FASD) that was earlier identified as having contributed significantly to the offender’s circumstances and his commission of these offences.

This Court cannot interfere with a sentence simply because a judge has committed an error in principle. It must also conclude that the error had an impact on sentence (R v Lacasse, 2015 SCC 64). In this matter, the impact of the judge’s error is evident from his treatment of the precedent he relied upon to identify a fit sentence. This Court has no hesitation in concluding that the failure to account for the offender’s reduced moral culpability had a decisive impact on the sentence the judge imposed in this case.

The judge determined that a fit sentence for each robbery was seven years’ imprisonment, running consecutively. In connection with a housebreaking offence, it was determined that a fit sentence to be two years’ imprisonment, consecutive to the sentences for the two robberies. It was determined that a fit sentence for the remaining crimes was 12 months, concurrent on all those offences, but consecutive to the robbery and housebreaking offences. All of this would result in a combined sentence of 17 years, which the judge reduced to a global sentence of 10 years’ imprisonment. This was achieved by directing that the robbery sentences be served concurrently, not consecutively.

Although this Court is to sentence afresh, the only point of criticism that can be offered to the judge’s sentencing decision is the failure to account for the offender’s reduced moral culpability when it came time to fix a sentence. Considering the guidance provided by the case law, and given the offender’s reduced moral culpability through the appropriate assessment of his FASD and other Gladue considerations, a fit sentence in this case should remain within the range identified in previous case law, but at its low end. A sentence of five years’ imprisonment on each robbery conviction will fall at the low end of the range (R v Kirklon, 2015 SKCA 67), properly denounce the offender’s unlawful conduct, and not separate him from society for longer than necessary. Expert evidence suggests that there are ways the public could be protected by managing the offender in the community once he has served his sentence.

R c Neeposh, 2020 QCCQ 1235

After careful consideration of sentencing principles and Gladue factors, the mandatory minimum sentence of four years for discharging a firearm while being reckless as to the life or safety of another person, is declared unconstitutional and inoperative with respect to the accused.

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 The accused discharged a firearm while being reckless as to the life or safety of another person as he was walking in the streets of Mistissini, an Aboriginal community. The accused acknowledges the facts but challenges the constitutional validity of the mandatory minimum sentence of four years.

The accused had a difficult childhood, and was also at the time of the offences having personal difficulties with his ex-girlfriend. After a night of heavy drinking, the accused got a hold of a firearm and discharged several shots. The most serious charge is of having intentionally discharged a firearm while being reckless as to the life or safety of another person.

This Court took into consideration the proportionate sentence in comparison to the minimum mandatory punishment, along with other principles of sentencing, including Gladue factors of the accused. It declares that the minimum mandatory punishment of imprisonment for a term of four years provided under section 244.2(3)(b) of the Criminal Code is unconstitutional and inoperative with respect to the accused.

The accused is to serve a sentence of imprisonment for a term of 571 days of imprisonment with a probation order for two years beginning upon release of the accused from custody, under further ancillary conditions including writing a letter of apology to the victims.

 

R v Evic, 2020 NUCJ 7

After weighing the sentencing principles with Gladue factors, the circumstances of the Indigenous offender after entering a guilty plea for aggravated assault resulted in an incarceration of 3 years, minus credit for pre-sentence custody. 

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The offender was convicted of aggravated assault pursuant to s 268(2) of the Criminal Code. The details of the offence are that the victim was at his friend’s home having drinks when the offender and his co-accused came over. An argument ensued with the victim before being physically attacked. The victim was punched and kicked until he was rendered unconscious. He did not fight back, and suffered bruising on the left arm and three serious lacerations to his scalp which required 16 staples to his head.

The offender is a 44-year-old Indigenous man who hunts and fishes for his family and donates some of his catch to elders. The offender is a carver for a living. He did not attend Residential School, and he was unsure if his biological mother did either. While the offender lives in a dry community, he reported extensive use of both drugs and alcohol. He has two children who live with their mother, and he provides financial support to them when he has the income. He has lost multiple family members to suicide. The offender has a record which includes offenses of possession of a weapon, assaults, theft, mischief, uttering threats, and failure to comply with an undertaking.

Following the sentencing principles of s 718 of the Criminal Code, the Court was required to ensure that the sentence was proportionate to the gravity of the offense and the degree of responsibility of the offender. The section also outlines other sentencing principles for the sentencing judge to consider in determining aggravating or mitigating circumstances which are supplemented by the analysis required by Gladue. The aggravating factors including the severity of the injuries to the victim, the fact that the attack was unprovoked, the offender’s serious criminal record for similar offenses, and his prior jail sentence. The mitigating factors included that the offender expressed remorse, his co-accused initiated the assault, he expressed a desire to change his ways and return to work, he has a support network and a close connection to the community. After considering these factors, the Court imposed a sentence of incarceration of 3 years minus credit for pre-sentence custody.

R v Komak, 2020 NUCJ 12

Weighing the sentencing principles of deterrence and denunciation with Gladue and other mitigating factors, the Indigenous accused is sentenced to 3 and a half years minus pretrial custody with 3 years of probation, for the manslaughter death of a friend at a party.

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The accused hosted a cribbage game at his home in Cambridge Bay. Some of those present, including the accused, smoked cannabis throughout the evening but none were drinking alcohol. The victim sent a text message to the accused that he was drunk and wanted to go to the accused’s house to drink with him. After coming over, the victim drank and tried throughout the evening to convince the accused to drink with him, who eventually succumbed.

At one point the victim became aggressive with the accused and throughout the night, arguing was witnessed. In the early hours of the morning, the victim was discovered dead from a stab wound, and the accused passed out with no recollection of the offense.

By his guilty plea, the accused admitted responsibility for the stab wound that killed his friend, and that he acted in the heat of passion caused by the accused’s sudden, provocative, intoxicated and aggressive behaviour. He admitted to using excessive force and in those circumstances he is guilty of manslaughter and expressed remorse.

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Consideration was also given of potential Gladue factors of the unique systemic or background factors on the accused to help shed light on his level of moral blameworthiness. The accused is 45 years old, a husband and a father of three. He suffered through a very difficult childhood, as his parents were alcoholics who often chose excessive drinking over the welfare and safety of their son. There were times when he had to actually sleep outside in the cold. His criminal record of committing property offences were in context with a lack of supervision and the inability to count on three meals a day and a warm bed to sleep in.

Although rehabilitation is always important, this is a case where the primary goal of sentencing is deterrence and denunciation. The accused is sentenced to three and a half years in jail minus pretrial custody to be followed by three years of probation, along with a number of mandatory orders imposed.

R v HO, 2020 ONCJ

Gladue factors were asserted, but due to very little information beyond the assertion of Aboriginal status, it had limited weight in this case. The offender was sentenced to a global jail sentence of 8 months, following a period of probation for 18 months.

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The offender was found guilty after trial of five sexual offences contrary to the Criminal Code. The sexual assault conviction was stayed when the parties made submissions on sentencing pursuant to the rule in R v Kienapple, [1975] 1 SCR 729. Defence counsel challenged the constitutionality of the remaining four conviction’s mandatory minimum sentences arguing a sentence involving a mandatory minimum would be grossly disproportionate and sought an order declaring their unconstitutionality under s12 of the Charter based on the offender’s learning disability.

The aggravating factors in this case included the fact the victim was 13 years of age. There were numerous offences including kissing, touching of her breast, request for sexual acts, sharing graphic sexual videos and the ultimate request for intercourse. The offender had a related youth record for engaging in similar conduct with a child victim. He knew right from the outset the victim was 13 years old. His acts could not be considered “grooming”, as they escalated in severity. A potential aggravating factor that was missing from the proceedings, was the impact on the victim as she chose not to provide a victim impact statement. His moral blameworthiness remained high based on his conscious decision to engage with a 13-year-old for two weeks and engaging in conduct after completing a program where he would have known about the moral boundaries of intimacy with partners.

The offender is an adult, but is still young and inexperienced. These are his first adult convictions. The offender had the full support of his family and community as evidenced by many letters of support. He had taken positive steps towards rehabilitation by addressing his learning disability, but the learning disability itself was not a mitigating factor. There are many collateral consequences for the offender. Gladue factors were asserted, but due to very little information beyond the assertion of Aboriginal status, it had limited weight in this case.

Balancing the aggravating and mitigating factors, and having regard to an undue sentence having a disproportionate impact on the offender’s learning disability, a sentence of imprisonment of 8 months was warranted for the child luring offence. Having arrived at this conclusion, the Court did not have to consider a s12 Charter analysis of the 6-month mandatory minimum, as the sentence imposed was not grossly disproportionate in the circumstances of the offender and this case. Accordingly, the s12 Charter challenge as framed on this record was dismissed.

 

R v James, 2020 YKTC 7

Although the Court did not have a Gladue Report, it recognized that the accused faced a history of abuse and neglect, often associated with systemic discrimination against Indigenous peoples. All other reasonable options to incarceration were considered in weighing the harm done to the victim and the community.

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The accused pled guilty to five offences contrary to ss 334(b), 430(4), 266, 267(b), and 129(a) of the Criminal Code. A Gladue Report and Pre-Sentence Report were ordered. However, the accused decided not to participate in the preparation of the two Reports, so neither Report was available. The author, who was to have prepared the Gladue Report, suggested to the Court that the accused’s declination to be interviewed was due to the childhood difficulties that he had endured. Such challenges included his father abandoning him when he was ten years old and his mother passing away within the same year. His family had their struggles and addictions, so he lacked support and was faced with low self-esteem. He made it to grade 8 but could not read or write. The accused expressed remorse for his actions, and he acknowledged that he needed help through counselling to learn to love himself.

Following the sentencing principles of s 718 of the Criminal Code, the Court analyzed the mitigating and aggravating factors surrounding the accused and his offences. The aggravating factors included his criminal record and his intimate relationship with the victim. The mitigating factors included his guilty pleas, acceptance of responsibility, and the positive and rehabilitative steps he had taken since the last offence was committed, including his compliance with his strict bail conditions. The Court did not have a Gladue Report. Still, the sentencing judge recognized that the accused faced a history of abuse and neglect, which is often associated with systemic discrimination against Indigenous peoples. Since the accused was an Indigenous offender, the Court was required to consider all other reasonable options to incarceration while weighing the harm done to the victim and the community.

The accused is the father of a young child, and he had been working with the mother of his child to create a secure and stable home environment. He was supported by the community, and he had the support to allow him to serve his sentence in the community. After analyzing these factors in combination with the accused’s potential risk of reoffending, the Court sentenced him to four months served conditionally in the community, a probation order of two months, and a recognition of his time served.

R v Awasis, 2020 BCCA 23

Appeal dismissed. Public safety must be heavily weighed when sentencing a dangerous offender. Despite the consideration of Gladue factors of the Indigenous offender, his patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable.

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The offender was designated to be a dangerous offender and was sentenced to an indeterminate term of imprisonment after being convicted of two sexual offences. He is Indigenous and had an “unfortunate, tragic background.” He became involved with the criminal justice system when he was 13 years old, and he has continued to violently and sexually reoffended in the community. He has severe addictions to alcohol and drugs and has suffered from a lot of trauma, including sexual assault. The offender also has been diagnosed with a severe personality disorder which has contributed to the risk he poses to public safety.

Since the appellant was designated as a dangerous offender, indeterminate detention was available as a sentencing option under s 753(4) of the Criminal Code. To properly exercise discretion under that section, the Court must impose the least intrusive sentence required to reduce the public threat posed by the offender to an acceptable level (R v Boutilier, 2017 SCC 64). To do so, the sentencing judge must conduct an individual assessment of all relevant circumstances and consider the sentencing objectives set out in ss 753(4), (4.1) and 718–718.2, including those developed for Indigenous offenders. An offender who is found to be a dangerous offender has the right to appeal his designation and sentence on any ground of law or fact or mixed law and fact as per s 759(1). The offender applied to submit fresh evidence on appeal, but it was denied due to the credibility and lack of perceived effect on the outcome.

The offender argued that the trial judge failed to take into account evidence of his treatability at the designation stage, which would constitute a reversible error. Consideration of treatability is relevant at both the designation and sentencing stage. When it came to the trial judge’s analysis at the designation stage, the Court found that treatability was not considered. Nonetheless, the offender’s patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable. At the sentencing stage, the trial judge found a lack of evidence that the offender’s risk to the community could not be managed which was upheld by the appellant court.

The offender also argued that the trial judge failed to give a tangible effect to Gladue factors when determining his sentence, which resulted in a disproportionate sentence. The Court acknowledged that it is necessary to look at the whole picture (including Gladue considerations). Still, the sentencing lens for a dangerous offender is constrained as there is an emphasis on public safety which narrows the options available to a sentencing judge. The trial judge recognized that the offender’s Gladue factors reduced his moral blameworthiness; however, his repeated history of reoffending and failure to address the issues that contributed to his criminal conduct made the need to protect the public paramount. It was decided that the trial judge adequately considered the offender’s Gladue factors and overall, the indeterminant sentence that was imposed was acceptable to the Court.

R c Dubé, 2019 QCCQ 7985

After interpreting the new provisions that codify the consideration of Gladue principles at bail, specifically s 493.2(a) of the Criminal Code, the Court found no basis for detention of the accused if supervisory measures are established.

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The accused, Mr. Dubé, is an Aboriginal person and a member of the Opitciwan Atikamekw community. He is charged with a number of offenses, but he undertakes to respect all the conditions that the Court may impose. The prosecution objected mainly on the ground of the substantial likelihood that he would not comply with any potential conditions, as had been demonstrated by numerous past breaches. The accused has regularly found himself before the courts for assaults, threats, mischief, and thefts. There are about 20 breaches of conditions related to recognizances or probation orders and he has had several stays in prison.

The Court considered the new provisions of the Criminal Code that came into force concerning the principle of restraint, s 493.1, and the particular attention that must be paid to Aboriginal accused who are overrepresented in the prison system, s 493.2. Section 11(e) of the Charter enshrines the right not to be denied reasonable bail without just cause. Release is to be favoured at the earliest reasonable opportunity and on the least onerous grounds (R v Antic, 2017 SCC 27). The Supreme Court of Canada [“SCC”] examined the principles governing interim release and noted that nearly half of the individuals in provincial jails are accused persons in pre-trial custody, where the conditions are dire; Indigenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions; such a situation can have serious detrimental impacts on an accused person’s ability to raise a defence in addition to proving costly for society; and therefore, pre-trial detention is a measure of last resort (R v Myers, 2019 SCC 18).

The SCC pointed out the recurring problem of the overrepresentation of Aboriginal people in the prison system. Based on section 718.1(e), the Court proposed a special approach to sentencing in light of the particular circumstances of these offenders whose lives are far removed from the experience of most Canadians. Judges were encouraged to take judicial notice of the broad systemic and background factors affecting Aboriginal people generally (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

The Gladue factors, with the necessary adaptations, are applicable to the hearing on interim release (R v Hope, 2016 ONCA 648). This Court places the accused’s lengthy criminal history with respect to breaches in the above context. The accused’s release plan with various supervisory measures put in place, while imperfect, makes sense given this Aboriginal context.

Note: French translation of R c Dubé, 2019 QCCQ 7985 found here.

R v BMW, 2020 BCPC 9

After weighing the sentencing principles with the Gladue factors of the offender, a 32-month term of imprisonment was imposed for the guilty plea of two offenses.

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The offender pled guilty to one count of sexual interference and one count of sexual assault under ss 151 and 271 of the Criminal Code. At the time of the first offence, the accused already had a criminal record with 38 convictions, and at the time of the second offence, he had committed an additional 14 offences, that included multiple assaults. The issue for the Court was to determine a proper sentence by taking into account all of the relevant purposes and principles of sentencing, including the circumstances of the offence and the circumstances of the offender.

The offender held Indigenous status and lived in a reserve community that has a legacy surrounding residential schools, intergenerational alcoholism, drug addiction, poverty, family violence, suicide, and unemployment. He attended residential school from grades eight to ten. He had a job but lost it for being late and not getting along with his supervisor, which he attributes to alcohol abuse. In his early twenties, the offender lost both of his parents to alcohol abuse and his brother later passed away from a hit and run motor vehicle accident.

Following s 718.2(e) of the Criminal Code, it was necessary for the sentencing judge to consider the above background factors which may have played a part in bringing the offender to the Court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s Indigenous heritage. The mitigating factors included the offender’s early guilty pleas, his support from his family and his community, and his Indigenous heritage. The aggravating factors included his criminal record, details surrounding the offences, and the offences’ impact on the victim, a vulnerable Indigenous female. Considering the aggravating and mitigating factors, the Court ordered a term of imprisonment for ten months for the first offence and 22 months for the second offence, for a total of 32 months of imprisonment less time served.