R c Awashish, 2020 QCCQ 3614

The Court rejected a joint submission on sentence of 34.7 months of imprisonment for aggravated assault, theft, and various administration of justice offences. The sentence was found to be excessive and likely to bring the administration of justice into disrepute as it failed to comply with the Gladue principles and perpetuated Indigenous over-incarceration, both individually and as a precedent. 

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An Indigenous accused, a member of the Cree First Nation and the Mistissini community, pleaded guilty to charges of aggravated assault against his sister, theft, a breach of probation related to failing to perform community work, and two breaches of recognizance, that is, consuming alcohol and failing to observe a curfew.

The Court ordered a presentence report and a Gladue report, but it was not prepared due circumstances surrounding the pandemic. The presentence report in this case states that the accused has very bad memories of his childhood. His parents consumed alcohol repeatedly and there was violence almost every day, which was experienced by the accused. As he grew older, he used drugs and alcohol heavily. He attempted suicide and has been heavily medicated to treat his depressive episodes and panic attacks.

The accused remains fragile psychologically. If he returns to the community without first working on his vulnerabilities, the risk of relapse is significant. Several traumas related to his childhood remain unresolved to this day. However, he is able to work well when he is in a safe environment. The accused acknowledges that he needs help and that he is not able to resolve his problems on his own. He is willing to go to therapy at the Waseskun Center, a healing center.

During submissions on sentencing, counsels proposed a sentence totaling 34.7 months of imprisonment, less presentence custody, leaving a residual sentence of two years, as well as 24 months’ supervised probation. Counsels took steps to verify whether the accused could take part in therapy at the Waseskun Center. The Court, however, informed the parties that it questioned compliance with the public interest test established in R v Anthony-Cook, [2016] 2 SCR 204 [“Anthony-Cook”] and asked them to make additional submissions on the reasons and circumstances underlying the joint submission.

A trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest (Anthony-Cook). This Court is of the view that the rejection of the joint submission in this case meets this high threshold. This joint submission for an Aboriginal offender viewed by reasonable and informed persons would be seen as representing a breakdown in the proper functioning of the justice system (R v LaForge, 2020 BCSC 1269).

The sentence proposed in this case is not only excessive, but also likely to bring the administration of justice into disrepute and contrary to the public interest because it does not comply with the obligations set out in s. 718.2(e) of the Criminal Code and Gladue factors (R v Gladue, [1999] 1 SCR 688; R v Ipeelee, 2012 SCC 13; R c Diabo, 2018 QCCA 1631; and Denis-Damée c R, 2018 QCCA 1251). Specifically, it does not take into account the accused’s actual moral blameworthiness and fails to consider the other reasonable sanctions available. Because both counsel are experienced and that ratifying their submission would carry weight, it would set a precedent from which the Court finds it important to depart.

Recently, the Court of Appeal for Ontario emphasized the importance of conditional sentences as other available sanctions under s. 718.2(e) with respect to Aboriginal offenders (R v Sharma, 2020 ONCA 478).  The Court determined a more appropriate sentence, and along with a conditional sentence order and probation order, there is included the condition that the accused complete six months of therapy at the Waseskun Center to heal his inner wounds, his violence issues, and his alcohol and drug abuse problems.

R v Penunsi, 2020 NLSC 101

Appeal dismissed. Newfoundland’s failure to enact the option of curative discharges does not result in a breach of the Constitution.

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The Appellant, an Innu woman who resides in the community of Sheshatsiu, Newfoundland and Labrador, was convicted of driving while her blood alcohol was in excess of the legal limit. The conviction was her third for such an offence. Notwithstanding that she faced mandatory imprisonment, she advised the sentencing court that she wished to seek a curative discharge. The option was not available in Newfoundland and Labrador.

The Appellant challenged the constitutionality of legislation affording the Provinces the discretion whether to enact the curative discharge provision in the Criminal Code. She asserted that the failure to be able to take advantage of a curative discharge disadvantaged her as an Aboriginal offender. The sentencing judge dismissed her application and the Appellant was sentenced to the mandatory minimum of 120 days imprisonment.

The Appellant has now appealed arguing that the sentencing judge erred in dismissing the application. Her application seeks to have the Court find that the legislation that affords the provinces the discretion whether to enact the curative provision, s 209(2)1 of the Criminal Law Amendment Act [“CLA”] violates her rights to equal treatment under s 15 of the Canadian Charter of Rights and Freedoms [“Charter”], in that it permits the Province to decline enacting the curative sentencing section. As an Aboriginal offender, she submits she is entitled to a restorative approach to sentencing, relying on s. 718.2(e) of the Criminal Code and the interpretation that section has received (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

At the hearing of the appeal in this Court, the Appellant was afforded the opportunity to present her argument not solely as to how the sentencing judge erred in the manner in which the application was heard, but also as to why section 209(2) was unconstitutional.

The Applicant relied on the reasoning in R v Daybutch, 2015 ONCJ 302 for support that her rights under s 15 were violated. The Court, however, does not find the reasoning in R v Daybutch persuasive as it fails to consider the legitimate differences in treatment of persons under the criminal law as part of the administration of criminal law in a federal system. In contrast, a recent and thorough examination of the same issue was conducted in R v Sabbatis, 2020 ONCJ 242. Like the Applicant in this matter, and the accused in R v Daybutch, the accused in R v Sabbatis is Aboriginal. In assessing whether the accused’s rights under s 15 were violated, the court declined to follow the reasoning in R v Daybutch, but instead came to the opposite conclusion. There is no basis to find that the discretion of the Province, as permitted by s 209(2) of the CLA, namely whether to enact the curative provision under the Criminal Code, violates the Appellant’s right to not be discriminated against under s 15, on the basis of her being an Aboriginal person.

The Court determined there was no error committed by the sentencing judge reasoning in dismissing the application and holding that s 209(2) of the CLA does not discriminate against the Applicant under s 15 of theCharter. This appeal from sentence is dismissed. The stay of the Appellant’s sentence is set aside, and the Appellant is to surrender herself into custody at the police detachment nearest to her current place of residence.

R v Laforge, 2020 BCSC 1269

The Court rejected a joint sentencing proposal of 27 months in prison followed by probation for arson related to the burning of a vehicle and a convenience store. Counsel failed to meaningfully consider the Gladue principles and the sentence itself would contribute to systemic discrimination against Indigenous people rather than amelioration. A sentence of time served in custody was imposed instead, which will now be followed by a probation order. 

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Mr. Laforge drove his vehicle into the front window of a 7-Eleven convenience store in Salmon Arm, British Columbia. He then exited his vehicle and poured gasoline into the cab. After everyone left the store, Mr. Laforge then lit his vehicle on fire. The fire spread quickly, causing extensive damage.

Mr. Laforge had been in custody for 548 days by the date of his sentencing hearing. Both counsel gave a joint proposal for a 27-month custodial sentence plus three years of probation. Mr. Laforge has Métis heritage and has been diagnosed with a schizophrenic illness. He did not want to hurt anyone or burn the 7-Eleven down, but to bring attention to his struggles, in particular, his delusional belief that he was being interfered with by intrusive brain-altering and perception-altering technologies.

The Court had the benefit of two well prepared reports, namely a pre-sentence report (“PSR”) prepared by a community corrections officer and a forensic psychiatric report, however, a Gladue report was not submitted. Mr. Laforge suffered abuse as a child and bullying in highschool for his Indigenous appearance. He used drugs extensively and eventually dropped out of school. He has only recently learned of his Métis ancestry, as his father was impacted by the “Sixties Scoop”. He has limited work experience and has a history of mental health problems, posing a moderate to high risk to reoffend without assistance from treatment and supports.

Restorative sentences may be more appropriate for Indigenous offenders, but taking a restorative approach will not necessarily lead to a reduced sentence. Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenous offender.

Arson is a serious offence. For sentencing purposes, arsonists can generally be divided into four types: pyromaniacs or persons suffering from mental illness; people who burn for no special reason; vandals; and people who burn for revenge or financial gain. Of these, persons who are suffering from mental illness are often considered to have the lowest level of moral blameworthiness while those who commit arson for revenge or financial gain are generally considered to have the highest (R v KH, (1994) 146 NBR (2d) 372 (CA)).

Given Mr. Laforge’s Indigenous heritage, mental health issues and highly reduced level of moral blameworthiness, the joint submission seems overly harsh, in that it would bring the administration of justice into disrepute or would otherwise be contrary to the public interest (R v Anthony-Cook, 2016 SCC 43).

R v Neasloss, 2020 BCPC 161

The Court accepted a joint proposal for a 10-month conditional sentence served in the community for possession of child pornography. The Court did express misgivings with the absence of any independent or expert evidence in the record to justify the proposal as no Gladue report, pre-sentence report, or psychiatric assessment was obtained. The proposal was accepted, however, due to the high standard for any judicial departure from a joint submission on sentence.

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Tyler Eugene Neasloss was charged with distributing and possessing child pornography contrary to the Criminal Code. At the sentencing hearing the Crown and defence jointly proposed a sentence comprising of a ten-month conditional sentence [“CSO”], three years’ probation and four ancillary orders. The Court questioned whether a non-custodial sentence was appropriate in the circumstances of the offence and offender. Although, not convinced a CSO gives proper effect to the sentencing principles of parity and proportionality, the Court is bound by the Supreme Court of Canada’s directive that trial judges are to follow joint submissions in all but the rarest of cases. The Court can only depart from a joint submission if it is so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons to believe that the proper functioning of the justice system had broken down (R v Anthony-Cook, 2016 SCC 43).

In 2018, Facebook, a United States social media corporation, reported the transmission of suspected child pornography to the National Centre for Missing and Exploited Children [“NCMEC”]. The following day, NCMEC reported the transmission to the BC Integrated Child Exploitation [“ICE”] Unit of the Royal Canadian Mounted Police [“RCMP”]. The BC-ICE Unit determined that two images sent by a Facebook user met the definition of child pornography and forwarded a report to the New Hazelton RCMP detachment. The Facebook user had used an identifying IP address. The RCMP obtained and executed a search warrant at a residence, at which time they arrested Mr. Neasloss. The RCMP seized several items from Mr. Neasloss’ bedroom. Mr. Neasloss confessed to possessing child pornography and viewing images of pre-pubescent boys and girls performing various sexual acts. He denied ever touching a child sexually, expressed shame and wrote a written apology to his family for what he has done.

Mr. Neasloss was 30 years old at the time of the offence and has no criminal record. Mr. Neasloss is a member of the Gitxsan Nation. In Grade 8, while attending Skeena Junior Secondary School, Mr. Neasloss left school, never to return. He lives a narrow, lonely and solitary life with his father, where he stays home, watches television and is not otherwise socially engaged. Mr. Neasloss does not drink or smoke or use drugs. He has no friends or intimate partners, past or present, no children, does not work and has a negligible work history. Mr. Neasloss lives on social assistance and although he might qualify for a disability pension, he is unable to navigate the application process.

Typically, before imposing sentence on an offender convicted of possessing child pornography, the trial judge has the benefit of a pre-sentence report and a psychiatric and psychological risk assessment. When the offender is Indigenous, the court often receives a Gladue report, In this case, the Court has no such reports. There is no Gladue report and only a faint thumbnail sketch of Mr. Neasloss’ personal history. The Court, however, is acutely aware of the challenges facing Indigenous people in this region. The systemic and background factors affecting Indigenous people in Canadian society have likely impacted Mr. Neasloss’ life in such a way as to diminish his moral culpability.

The Court does not know the nature or severity of Mr. Neasloss’s asserted psychological, cognitive and social impairments. Apparently, he has the intellectual skills to navigate the dark web to access child pornography, and the psychological dysfunction to do so. Both counsel, however, argue that sentencing ought to proceed in the absence of presentence reports or psychological assessments in order to minimize delay and expedite Mr. Neasloss’s access to treatment. Both counsel are experienced and clearly considered the systemic benefits of Mr. Neasloss’s guilty plea to justify a non-custodial sentence. The crafting of the sentence endeavours to protect the community from the risk of Mr. Neasloss reoffending through a combination of rehabilitative and restrictive conditions contained in various court orders. The Court endorses the joint submission as advocated by counsel.

R v Hoshal, 2020 ONCJ 345

The Indigenous defendant breached a Long Term Supervision Order on two separate accounts by consuming prohibited substances. This resulted in just one additional day in custody based on credit for pre-sentence custody and the collateral consequences of COVID-19 in the Toronto South Detention Centre, including the suspension of culturally appropriate programming and activities. Gladue factors contextualized his youth criminal record and indicated a need for restraint.

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Mr. Hoshal has pled guilty to two separate counts of breaching the conditions of his Long Term Supervision Order [“LTSO”]. Both breaches involved the consumption of substances prohibited by this order. His risk of violent future re-offence is directly linked to whether he can abstain from the consumption of alcohol and drugs. Breaching an LTSO is not like breaching probation or bail. It is met with significant jail terms. The public loses confidence in the judicial system when offenders breach court-ordered terms. He has been detained at the Toronto South Detention Centre.

Mr. Hoshal’s childhood was mired in trauma, abandonment, and abuse. Mr. Hoshal is forty years old and has a serious criminal record that includes approximately 25 convictions for domestic violence, all rooted in substance misuse and abuse. Mr. Hoshal is a non-status Blackfoot on his father’s side. Upon discovering this Indigenous heritage, he attempted to learn more about it on his own. He twice moved onto a reserve, only to feel isolated and singled out, sometimes violently, because he appeared “white”. The information he has managed to obtain about his Indigenous heritage has largely come from programs in jail. Otherwise, he has been disconnected from his Indigenous culture.

Mr. Hoshal’s punishment must be tempered as much as possible without displacing the fitness of the sentence, by the exercise of restraint. In order to rehabilitate oneself, hope is necessary. The conditions of Mr. Hoshal’s presentence custody, including the COVID-19 consequences, have amplified anxiety and stress, isolated him from supports, and caused him to lose hope. The harsh presentence custody conditions at the TSDC upon Mr. Hoshal personally, and the impact of COVID-19 adds to the already deplorable conditions. Mr. Hoshal’s global sentence of 14 months less presentence custody remains fit and within the range.

R v Kuliktana, 2020 NUCA 7

Appeal allowed. The sentence on the Appellant is altered as proposed by the joint submission. In this appeal, emphasis was placed on the role of Gladue factors to help justify a joint submission for a sentence that appeared to be lower than appropriate. Inferences were made in the absence of direct information, as a Gladue Report was not available.

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The Appellant, a 27-year-old Inuk man from the Hamlet of Kugluktuk, in the Kitikmeot Region of Nunavut, entered guilty pleas to one count of assault and one count of unlawful confinement. The Crown elected to proceed by summary conviction on both counts and pleas were entered after resolution discussions. The joint submission for a fit sentence was 120 days in custody, less credit for the 58 days the Appellant had spent in pre-sentence custody to that date, leaving 33 days to serve along with a probation order of 12 months.

The sentencing judge resisted the joint submission and called upon counsel to provide more information and a more elaborate rationale. The Appellant remained in custody in the meantime for almost 3 months. The sentencing judge then rejected the joint submission and imposed a sentence of imprisonment of 180 days on the count of assault which he described as “time served” and 60 days concurrent on the count of unlawful confinement also described as “time served”. In addition, the sentencing judge directed a probation order for a period of 12 months, with conditions, including performance of 50 hours of community service work.

The Appellant on this appeal submits that his sentence has been completed, but that his appeal is not moot because the entry on his criminal record will be higher than it should have been. The Appellant had an unstable childhood due to his family’s inability to settle in one community. He has a significant criminal record, including convictions in 2014 and 2015 for analogous “domestic assault” offences. His counsel attributes the Appellant’s criminal record at least in part to the criminogenic factors of alcohol and a lack of stable housing.

Regrettably, there was no Gladue report prepared to further illuminate what other factors may have contributed to his difficulty in maintaining a prosocial conduct pattern (R v Gladue, [1999] 1 SCR 688). It has been said repeatedly that this type of information is not to provide a special exemption in sentencing but rather is directly related to locating a proportional sentence having regard to the gravity of the offence and the degree of responsibility of the offender under s 718.1 of the Criminal Code. It is an error to proceed on the basis that Gladue factors do or do not justify departure from a proportionate sentence (R v Swampy, 2017 ABCA 134). Rather, they direct the sentencing court’s attention to circumstances that help to identify a proportionate sentence.

In this instance, it is a matter of conjecture as to what influence more Gladue information might have had on counsel or the Court. But it is possible to draw some inferences from what was provided about the Appellant’s circumstances. Often it is a matter of common-sense inference as to how the offender’s life has reached the point where the offender’s reactions to problems tends to breach social norms. In determining whether a proposed joint submission sentence for an offender seems unfit, the sentencing court should consider how Gladue factors might fit in to the situation.

When the Crown chooses to enter into a plea arrangement with an offender (by counsel) that is a solemn business, and it is not just clearing court backlog in some bureaucratic sense. Whether a sentencing court should harbor doubt about the utilitarian benefits of plea agreements and joint submissions, there cannot be similar doubt about the linkage between the Crown taking a consistent, reliable and predictable position and the Rule of Law.

The sentencing judge’s mention of what he felt did not reconcile the joint submission with his unexplained conceptualization of a fit sentence for the Appellant’s crimes came down to rejection of the joint submission on a basis subjectively held by him. It was not a manifestation of the principled override of a joint submission contemplated by, or consistent with, the guidance and policies in R v Anthony-Cook, 2016 SCC 43. Accordingly, the failure of the sentencing judge to explain what was wrong with the joint submission was a flaw with more than one dimension. It is not discernible what, if any, comparators or prior authority or guidance the sentencing judge was relying on, and it would not have been a demonstration of “public interest” error if the only discrepancy of the joint submission were that it did not fit the sentencing judge’s own practice.

R v Itturiligaq, 2020 NUCA 6

Appeal allowed. The mandatory minimum punishment of imprisonment of four years is not a grossly disproportionate sentence for this offence and this offender.  The Indigenous accused is now finished the custodial portion of his sentence and is well into his probation, therefore the sentence of imprisonment is stayed.

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A 24-year-old Inuit man and traditional hunter for country food, who had lived his entire life in Nunavut, intentionally fired his hunting rifle at the roofline of a house he knew to be occupied. The single bullet exited the roof and caused no injuries. He was charged with intentionally discharging a firearm at a place, contrary to s 244.2(1)(a) of the Criminal Code.

The accused was interviewed by the RCMP and took full responsibility for his actions. He told police that on the day of the incident he had been upset that his girlfriend had not been spending enough time with him and their small daughter. He was angry that she had gone to her friend’s place without telling him and that she refused to leave with him. He told police that he only took one shot and was not trying to aim the gun at anybody, as he knew that he is not supposed to do so.

No formal Gladue report was prepared, but it is clear that some Gladue factors were relevant to the accused’s background. He and his family described that he had a good upbringing. The accused had no known history of residential schooling in his family’s background. He was in good physical health, save a hearing deficit and the need for hearing aids, a condition also shared by his father. While history of colonialism and its intergenerational effects must be acknowledged, the Gladue factors in this case do not operate to significantly diminish the high level of moral culpability underlying this offence.

The accused, who had no criminal record, entered an early guilty plea. He successfully challenged the constitutionality of the mandatory minimum punishment, on the basis that it violated s 12 of the Charter (R v Itturiligaq, 2018 NUCJ 31). The accused was ordered a custodial sentence of slightly less than two years, with credit for pre-trial remand, followed by two years probation.

The Crown appealed the sentence imposed on the accused as demonstrably unfit, and the court’s declaration that s 244.2(3)(b) is unconstitutional. While not joined, this appeal was heard at the same time as the oral hearing in R v Ookowt, 2020 NUCA 5 [“Ookowt”], which also involved a declaration that s 244.2(3)(b) was unconstitutional pursuant to s 12 of the Charter. As stated in Ookowt, both of these appeals arose as a result of young men resorting to the use of hunting rifles in response to what they believed to be personal slights or problems in their personal lives. The appeal is allowed, and the court’s declaration of s 244.2(3)(b) is set aside.

R v Ookowt, 2020 NUCA 5

Appeal allowed. The declaration of unconstitutionality of a mandatory minimum sentence imposed by the sentencing judge is set aside, and a four-year penitentiary term is substituted. Significant time has elapsed since the Indigenous accused was sentenced – and who now has finished that sentence, therefore the sentence of imprisonment is stayed.

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A 19 year old Inuit man, in retaliation for being bullied, fired a bullet into a house, which shattered a window and missed striking a man by inches. The accused entered a guilty plea to intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was present, contrary to s 244.2(1)(a) of the Criminal Code. The mandatory minimum sentence for this offence is four years.

At the sentencing hearing, a Notice of Constitutional Challenge was filed by the Defence arguing that the mandatory minimum sentence was grossly disproportionate to a fit sentence for this offence and this offender, contrary to s 12 of the Charter. The sentencing judge determined that a fit sentence for the accused was two years less one day, plus one year of probation, and the imposition of the mandatory minimum sentence in this case would result in a sentence that is double the appropriate sentence (R v Ookowt, 2017 NUCJ 22). The Crown appeals to this Court, contending the sentencing judge failed to properly assess the gravity of this offence and that the accused’s conduct warranted the four year mandatory minimum sentence.

It is common for those who live in Nunavut’s communities to own rifles. They are used for subsistence hunting, supporting a traditional way of life. Sadly, this also means they are often readily accessible for unlawful and dangerous purposes such as intimidation, revenge, domestic violence, and retaliation.

This Court concludes that the sentencing judge committed errors in principle by imposing a disproportionate and demonstrably unfit sentence. Further, it is concluded that the four year mandatory minimum sentence under s 244.2(3)(b) is not a grossly disproportionate sentence for this offence and this offender. The Court sets aside the sentencing judge’s declaration that the imposition of the four year mandatory minimum sentence would breach the accused’s s 12 Charter rights.

In the Court’s view, the sentencing judge underemphasized the accused’s high moral blameworthiness for this offence, and overemphasized intoxication, bullying and Gladue factors. As a result, the sentencing court failed to give sufficient weight to denunciation and deterrence in reaching a sentence that was ultimately disproportionate and unfit in all of the circumstances. The sentencing judge did not provide any persuasive reasons for imposing a sentence that did not address the well-established seriousness of this firearm offence, and failure to do so was an error (R v Mala, 2018 NUCA 2). In sum, an offender who commits the offence of intentionally discharging a firearm into a place, knowing or being reckless as to whether anyone is in that place, is guilty of significant morally blameworthy conduct.

The accused’s admitted act of “extreme premeditated violence is completely disproportionate to any reasonable and measured response to the bullying he suffered”. It was sheer luck that his bullet did not hit and kill either of the two men in the house, only one being the target of his “warning”. Gladue considerations do not significantly reduce the accused’s moral blameworthiness in this matter (R v Swampy, 2017 ABCA 134).

The trial judge found the accused did not have a disadvantaged upbringing, nor does there appear to be a history of family violence, displacement, residential schooling or “constrained circumstances” (R v Ipeelee, [2012] 2 CNLR 218). Rather, the accused enjoyed a culture-centred and close family upbringing throughout his life. He is both intelligent and educated, communicating in both English (written and oral) and Inuktitut (oral). He opted to leave formal schooling to pursue his vocation as a traditional hunter, earning a living from the land by selling furs and supporting his family and community with the country food he harvested, and by keeping their machines and dog teams in good order. While a history of colonialism must be taken into account, including substance abuse and suicide in this matter, it is difficult to identify any background factors that greatly diminish the accused’s moral blameworthiness for this serious firearm offence, at least to the extent found by the sentence judge to “temper the usual deterrence sentence” by more than two years.

R v Kapolak, 2020 NWTTC 12

The NWT Territorial Court found a provision for sexual assault against a minor under the Criminal Code to breach s 12 of the Charter and therefore declined to apply it and ordered a conditional sentence for an Inuk offender with FASD.

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This decision bears in mind the cognitive challenges associated with FASD with the Indigenous accused. It had to balance between the protection of Indigenous victims and the need to implement the Gladue principles for Indigenous offenders. Like provincial courts, the territorial court cannot strike down any provisions but it may become a persuasive precedent for other courts in the territories and elsewhere.

This case involved a single incident, and the victim suffered no apparent injury. This was a bold act, committed on a residential street, in the daytime, as opposed to a surreptitious act committed behind closed doors, on a sleeping victim, or in a context where the victim is physically isolated and cannot get away from the perpetrator. The victim initially did not feel threatened by the accused, because she was familiar with him, and likely because of his diminutive size and almost child-like appearance. But the accused then touched the victim’s body many times and in many places, and he failed to disengage when prompted verbally by her. She had to resort to physical violence to make him stop. This was a crime of opportunity, committed on impulse. The victim was in foster care at the time of the incident. She did not file a Victim Impact Statement, but it is inferred that she is from Inuit ancestry from her name.

Because the mandatory minimum sentence of imprisonment for six months applies to all offenders having committed any form of sexual assault on a victim aged anywhere between 1 day and 16 years, it is vulnerable to Charter scrutiny. Imposing a sentence of six months in jail on this accused who is a first offender when there are many mitigating factors and when the circumstances of the offence, while being serious, are not too egregious, is fundamentally unfair and as a result, disproportionate. As a result, the accused’s right to be protected against cruel and unusual treatment or punishment is infringed by the mandatory minimum punishment found at section 271(b) of the Criminal Code. The provision is not saved by section 1 of the Charter, and accordingly the mandatory minimum punishment is declined.

The presence of an intellectual disability that affects the accused’s cognitive functions makes it difficult to assess the risk to reoffend. Although present, and in light of other circumstances, the risk is not viewed as high, or determinative. However, the offence of sexual assault is prevalent in Northern communities, 5.3 times the national ratio in 2017. The accused’s early guilty plea is highly mitigating, as it spared the victim from having to testify in court.

The personal circumstances of the accused, which include the diagnosis of Alcohol-Related Neuro-Developmental Disorder, suggest a reduced moral blameworthiness. For a first offender, sentencing usually focuses on rehabilitation. There is nothing to say that a community-based sentence would not work for this accused. The risk to reoffend that this accused presents because of the impulsivity associated with his condition, as well as his intellectual limitation, is compensated by the fact that he benefits from family support. He has a home in which supervision may occur, and he has shown that he is able to comply with conditions.

For an offender with challenges to his executive functions, repetition of instructions, structure, and professional follow-up, appear to be key. A carefully crafted conditional sentence order can bring the necessary restrictions to a person’s freedom while providing rehabilitative tools, and thus achieve deterrence.

The Supreme Court of Canada determined that the standard for finding that a sentence represents a cruel and unusual punishment is that it be grossly disproportionate. An option to preserve the constitutionality of offences that cast a wide net is to provide for residual judicial discretion to impose a fit and constitutional sentence in exceptional cases (R v Lloyd, 2016 1 RCS 13).

In this case, the offender presents with cognitive challenges, and is sentenced more than one year after the commission of the offence. The immediate link between consequence and cause may be lost and as a result a sentence of imprisonment may not achieve the necessary deterrence. Reducing the over-incarceration of Aboriginal offenders is as important an objective as that of protecting vulnerable victims, and must be given equal consideration. The accused is to serve a conditional sentence of imprisonment of 120 days, to be followed by a period of probation of 18 months.

R v Campbell, 2020 NUCJ 28

The fact that programming is on hold during the pandemic is taken into account with sentencing in two ways: 1) in determining how much credit to allocate based on pre-trial custody; and 2) in assessing a fit term for a prison sentence, as collateral consequences of any period of incarceration that would make it harsher.

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In Nunavut, and elsewhere, it seems like most Indigenous programming in prison has been put on hold for months, including the examples of Elder counselling and family visits. Mr. Campbell plead guilty to a string of charges all committed in Iqaluit. A Pre-Sentence Report was ordered. Unfortunately, the date for his sentencing was cancelled by the COVID-19 pandemic effect on the operation of Court Services.

Following his time in custody, Mr. Campbell will be given a probation order for 18 months, to help his rehabilitation. In assessing his sentence, the Court considered the fundamental principle that the sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Over a period of almost six months, Mr. Campbell assaulted five separate individuals in four separate locations across Iqaluit, from well-known businesses to private residences. Each individual offence was relatively low on the gravity scale. However, two of the offences are statutorily aggravating because of the young age of one victim and the domestic nature of the previous relationship with another victim.

The Court must also consider the purpose of sentencing set out in s. 718 which is to impose just sanctions that have one or more of these objectives: denunciation, deterrence of the offender and others, separation if necessary, rehabilitation, reparation and promoting a sense of responsibility in offenders. Mr. Campbell’s guilty plea shows he is taking responsibility for these offences and intends to work on rehabilitating himself. The pre-sentence report outlined some Gladue factors that also need to be considered in this case, per s. 718.2(e).

Mr. Campbell has now been in custody for a little over five months and is entitled to credit for that time. The issue is whether and how to account for the effect of COVID-19 on prison conditions and what, if any, sentencing considerations should be made on account of such conditions. Time in custody during the current pandemic, depending on public health and geographic realities, may be harsher time in custody than usual. This is so not only because authorities have put in place restrictions to try to keep inmates safe, but also because of the general uncertainty about the present and future wellbeing of individuals and society.

These changes due to the pandemic are to protect inmates and staff at the institution, where public health measures such as social distancing are not readily available. Protecting the inmates and staff then also protects the public in Iqaluit. The measures are imposed even though the Territory continues to be “COVID free” because that status could change at any time. In Nunavut where programming is often available for prisoners, punishment is also increased by loss of programs as well as family visits. These restrictions will continue going forward.

Mr. Campbell’s time spent in custody will be harsher for an unknown period of time. He has been given the maximum allowable amount of credit for his pre-sentence custody. In these circumstances, it is appropriate to reduce Mr. Campbell’s sentence going forward by 60 days because of the harsher conditions of his incarceration.