R v Picody-Naveau, 2021 ONSC 1714

Application granted. An Indigenous offender, charged with several Criminal Code offences, including second-degree murder, is granted bail as the mens rea is on the weaker spectrum for the offence. He has strong family support and sureties, will subject himself to GPS monitoring and any travel is substantially limited by the pandemic.

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Isaah Picody-Naveau, an Indigenous man, has been charged with second-degree murder, along with several Criminal Code offences, including domestic violence against his intimate partner. This matter is an application for bail pursuant to ss 515 and 522. Mr. Picody-Naveau is alleged to have aided another offender, in the stabbing death of a man who was stabbed multiple times in the back with a drywall knife, who then subsequently died of his injuries in hospital. This offence was recorded on video, and Mr. Picody-Naveau is jointly charged for the murder as an aider and abettor. There is weakness, however, of the mens rea element in the Crown’s case against the applicant as pointed out in the written decision committing the applicant to stand trial on the 2nd degree murder charge, set to be heard in 2022.

The accused has been in custody on these matters for almost a year. There are four videos of altercations involving the applicant, who seems to be the instigator, at the Ottawa Carleton Detention Centre [“OCDC”]. He has a violent temper and has not done well at the OCDC. A Gladue report was prepared that detailed the many struggles the applicant has faced culturally and emotionally over the course of his 23 years of life. His difficulties with the criminal justice system and reckless behavior are in some measure attributable to chronic alcohol and addiction issues, a difficult and tragic upbringing and being transplanted from a small town in northern Ontario to the city of Ottawa.

The risk of Mr. Picody-Naveau not attending Court is sufficiently abated by the fact that he will be under the supervision of his family; that he will have to wear a radiofrequency monitoring ankle bracelet; he and his sureties will each be posting Bonds of $1000; and the pandemic where travel is substantially restricted. The applicant has satisfied the Court that detention on the primary ground was not justified on the facts of this case. While the applicant’s track record for obeying release orders has been abysmal, and he has been shown to be a risk to reoffend, the applicant has been in custody awaiting trial on all these charges for more than 315 days.

The second degree murder charge is a weak case and the presumption of innocence looms large. As the Supreme Court of Canada states, “The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pretrial stage of the criminal trial process and safeguards the liberty of accused persons” (R v Antic 2017 SCC). Therefore, the application for bail is granted.

R v JG, 2021 ONSC 1095

The Court sought to impose a sentence which took into consideration both the crimes and circumstances relevant to the particular case and defendant. In doing so, the Court noted the defendant’s experiences as a Black man who experienced systemic discrimination throughout his life, akin to Gladue factors used in the sentencing priniciples for Indigenous offenders. The Court found that while this should be considered as a mitigating factor, given that this is a sex trade related offence, deterrence and denunciation must ultimately be considered as paramount sentencing objectives here. The Court concluded by imposing a global sentence of four years and six months.

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The offender, J.G. was convicted of five criminal counts relating to his active involvement in the complainant’s work in the sex trade industry. The complainant is a minor who sought out J.G. to assist her in setting up and managing a sex trade enterprise. J.G. provided her with guidance on how to carry out the trade and received 50 percent of the complainant’s sex trade earnings.

The central area of contention within this case revolves around the Court’s objective to determine a fair and just sentence. In doing this, the Court sought to consider the circumstances of the offender and the offence, which involved an assessment of relevant mitigating and aggravating factors.

In assessing these factors, the Court noted several aggravating factors, including the young age of the complainant, who was 17 at the time J.G. oversaw her work in the sex trade. J.G.’s material benefit from the sex trade work, and the fact that he had a lengthy criminal record which included a former conviction and sentence for a sex trade related offence were also considered to be aggravating factors.

Mitigating factors taken into account included several aspects of the defendant’s personal circumstances, including his young age of only 27 years old, and his experiences as a Black man and thus member of a racialized community. Specifically related to J.G.’s social history, the Court noted that given that systemic racism against Black people is a notorious fact, it is not necessary for a Black offender to prove its impacts before it can be considered a mitigating factor, akin to Gladue factors used in the overall consideration for sentencing Indigenous offenders.

The Court concluded that while rehabilitation must remain an importance objective to consider, deterrence and denunciation must still be considered as the paramount sentencing objectives here given that this is a sex trade related offence. In balancing these sentencing objective as well as the aggravating and mitigating factors, the Court found that the appropriate sentence here is four years and six months.


R v Kishayinew, 2021 SKCA 32

Appeal allowed against sentence. A substitution of four years minus pre-sentence custody and removal of a victim surcharge is given to an Indigenous man who sexually assaulted an intoxicated woman after luring her to his home under the guise of safety.

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This matter deals with a sentence appeal for Mr. Monty Kishayinew, an Indigenous man from Yellow Quill First Nation. He was convicted of sexually assaulting an intoxicated and vulnerable woman who he encountered in an alley in Saskatoon, where under the pretence of offering her help, he took her to his home. There, he sexually assaulted her in his basement, and until she feigned needing to use the bathroom and was able to escape (R v Kishayinew, 2017 SKQB 177).

Mr. Kishayinew was sentenced to four-and-a-half years in prison, minus credit for pre-sentence custody but has appealed both conviction and sentence. Appeal for his conviction was granted and a new trial was ordered. As a result, his sentence appeal was not addressed. The conviction was restored by a subsequent appeal to the Supreme Court of Canada, which remanded the matter to this Court to determine the sentence appeal.

After conviction, the trial judge adjourned sentencing and ultimately ordered the preparation of a pre-sentence report. Mr. Kishayinew was sentenced to 54 months of incarceration, minus a pre-sentence credit of 17 months and 2 days, and for Mr. Kishayinew to pay a victim surcharge in the amount of $200 within 30 days, with 2 consecutive days in default of payment (R v Kishayinew, 2017 SKQB 340).

Mr. Kishayinew appeals his sentence pursuant to s 675(1)(b) of the Criminal Code. A sentencing decision is entitled to considerable deference upon appeal (R v LV, 2016 SKCA 74, [2017] 1 WWR 439 ). This Court concluded, however, that the trial judge committed errors in principle by erroneously relying on the absence of remorse as an aggravating factor and by misstating Mr. Kishayinew’s position on sentencing in a material manner. The combination of the errors shows that there was an impact on sentence and appellate intervention is required.

The circumstances of this offence are extremely grave and Mr. Kishayinew’s lengthy criminal record is an aggravating factor with convictions of at least sixty-three prior offences dating back to 1996. At the time he committed the current offence, Mr. Kishayinew was on bail with an undertaking to keep the peace and be of good behaviour. Mr. Kishayinew’s high risk to reoffend, generally and sexually, is also a relevant factor. Mr. Kishayinew’s actions in relation to this matter were reprehensible. He knew the woman was distraught, intoxicated and vulnerable and he took advantage of this situation to convince her that she was not safe but would be safe with him. Using this deception, he took her to his house where he sexually assaulted her. These actions speak to a high level of moral culpability.

Mr. Kishayinew, however, has considerable Gladue factors and these principles must be applied even in serious cases involving sexual violence (R v Friesen, 2020 SCC 9). Even when the circumstances of a case unquestionably call for a penitentiary sentence, these factors remain relevant (R v Ratt, 2021 SKCA 7). He suffered extensive abuse from family members who suffered significant intergenerational trauma. Mr. Kishayinew has issues with substance abuse, but has completed grade 11 while incarcerated, and continues towards his GED. His personal supports and relationships are limited along with his employment history.

The gravity of the offence is severe and Mr. Kishayinew’s moral blameworthiness is high, although his moral culpability is somewhat tempered by Gladue factors. The appropriate sentence for this offence, for this offender, for the harm caused to this victim is four years with pre-sentence custody credit. The victim surcharge of $200, and the two days in default of payment for the victim surcharge, is set aside (R v Boudreault, 2018 SCC 58).

R v RO, 2021 BCPC 29

An Indigenous offender, after consideration of Gladue factors, was sentenced to 4 years for indecently assaulting a child between the years of 1974 and 1977 inclusive. The victim suffered lifelong impacts from the years of incidents that continues to effect his quality of life.

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R.O. was found guilty at trial for indecently assaulting M.L. from 1974 to 1977 inclusive, contrary to Section 156 of the Criminal Code. M.L. was almost 7 years of age at the start of the timeframe and nearly 11 years old at the end of it. The offender was in his early 20s and had been placed or adopted into M.L.’s wider family as an infant.

When he was 7, M.L. was looked after by his grandmother at her home and the offender would often be there for M.L.’s dinner and bath time. His grandmother ran the routine like clockwork, and the offender would often come in to the bathroom and sexually assault him in various disturbing acts. M.L. felt he had no choice but to go to his grandmother’s, and felt forced to cooperate. The acts were frequent, two to three times a week, and escalated in becoming more aggressive and intrusive over time. Eventually, M.L. discovered extracurricular activities which kept him away from his offender when he was near the age of 11. However, the impact of the abuse inflicted by the accused on M.L. has been profound and has lasted many years. He has trust issues and difficulties with personal relationships. As well, he has issues with substance abuse and suffers poor mental health.

The offender has a record of sexual offences involving young boys, with criminal convictions recorded against him in 1981, 1992, and 2014. The offender started professional counselling, but R.O.’s Community Corrections file indicates on past supervision that he maintained denial on all convictions, minimized his sexual offending and was highly resistant to attending or participating in any interventions targeted at his sexual offending. He continues to believe any interventions aimed at his sexual offending are not beneficial to him.

R.O., who is now 67 years of age, has significant Gladue factors. The report outlines that he is a member of a First Nation, near Lillooet, British Columbia. R.O. was reportedly apprehended by Ministry social workers at the age of two weeks when he was found at home without adequate supervision. The offender said he didn’t remember much of his childhood but had a clear recollection of being sexually assaulted by two teenaged boys at two different times when he was ten years of age. R.O has had limited education and some employment. He suffers from various mental illnesses and disorders.

Although there are significant Gladue factors of the offender, the significant factors and the gravity of the offence, including the profound wrongfulness and harmfulness of sexual offences against children must also be taken into account. There was a life-long impact on this victim who was a child in primary school at the commencement of a period of prolonged offending by the offender. R.O. is sentenced to 4 years, with other ancillary orders.

R v GD, 2020 MBPC 27

The Court sentenced an Indigenous offender to 18 months custody for committing sexual assault and a breach of release order. A Pre-Sentence Report was considered, and the Court determined that the offender lacked insight into how the crime had negatively impacted the victim.

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Mr. GD pleaded guilty to sexual assault that occurred in 2018. At that time, he was 22-years-old and the complainant was 15-years-old. He has also pleaded guilty to a breach of a release order, by having contact with the complainant. The Crown sought a maximum sentence of 18 months for the sexual assault and a consecutive sentence of one month for the breach, followed by a Probation Order of two years. The defence sought an eight month sentence on the sexual assault and a non-custodial sentence on the breach.

The Court looked to the fundamental purpose and principle of sentencing and acknowledged that teenagers under the age of 16 require protection from unwanted, forced and premature sexual activity from adults or people more than five years older than them. Not only was the complainant incapable of consenting to engage in sexual activity because she was under the age of sixteen, but the moral culpability of a 22-year-old committing a sexual offence against someone of her age is high. Further, the complainant became pregnant and gave birth to the offender’s child at the age of sixteen.

The Court considered a Pre-Sentence Report which took into account the offender’s Indigeneity. His family history includes parental alcohol abuse and neglect, child protection intervention, poverty, inadequate food, a lack of a father figure, amongst others. The Report also indicated that he has a lack of insight into his offending behaviour that demonstrates an unsophisticated and dangerous view of women and girls.

It is mitigating that he pleaded guilty, saving the victim from a trial, as weel he has no criminal record and has taken anger management. It is aggravating that he lacks insight, there is a high risk of his reoffending, and the offence has resulted in a child who now has a single mother. The Court was of the view that the best method of deterring him in the future is to take sex offender treatment. However, the recommended program is not currently running due to COVID-19. The offender was sentenced with the hopes of the program running in the near future and to ensure he has enough time to apply and participate. In such a case, he will learn more about premature sexual activity and its negative impacts, the particular vulnerabilities of young, Indigenous girls, his own power and his probably unintentional exploitation of that power over young sexual partners.

The sentence on the sexual assault was one of 18 months custody and one week for the breach of the release order, followed by two years of supervised probation. After applying credit for time served, GD has 286 days remaining of his sentence.

R v Blackduck, 2021 NWTSC 8

Sentence appeal granted. An Indigenous accused who pleaded guilty to two counts of uttering threats, at separate times and places, had his sentence reduced to seven months as it appropriately factors in his considerable Gladue factors. The probationary aspect is undisturbed so he can find appropriate supports and services to address his alcoholism, homelessness and illiteracy.

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The Appellant, Mr. Blackduck, a Tłı̨chǫ man, pleaded guilty in Territorial Court to two counts of uttering threats, occurring at separate times and places. This matter is an appeal of his sentence. One incident involved the RCMP in Yellowknife when Mr. Blackduck was being arrested. Mr. Blackduck was subject to a probation order which, among other things, required him to remain a certain distance away from a Yellowknife liquor store. The RCMP officers were conducting a patrol when they saw him near the liquor store and warned him to move away. Mr. Blackduck, who was highly intoxicated at the time, was extremely aggressive and uttered violent threats even after he was subdued in the patrol car. The other incident happened at the Northern Store in Behchokǫ̀, where a store employee asked Mr. Blackduck to leave because he was banned from the location. He threatened to kill her and said he knew where she lived.

Mr. Blackduck has significant Gladue factors, and at the time of the sentencing hearing, he was homeless. When Mr. Blackduck is in Yellowknife, he stays at the men’s shelter and spends considerable time on the streets. When he is in Behchokǫ̀, which is where his family is, he stays either at the shelter or with his sister-in-law. Mr. Blackduck is unable to read and write in English, but has a strong connection to his Indigenous culture and was raised in a traditional background. However, substance abuse and violence were prevalent in his home growing up. Although Mr. Blackduck had made attempts to remedy his illiteracy, his housing instability posed great challenges, as he had no place to shower, wash his clothing or store his school books and supplies. There have been educational programs available to him while he has been in custody in the past, but he found it too embarrassing and did not want other prisoners to know he was illiterate.

With respect to the threat he made to the store clerk in Behchokǫ̀, Mr. Blackduck’s acknowledges that although he was banned from the store at the time, however on the day he made the threat, he needed money for food and the Northern Store was the only place where he could cash his government cheque. The alternative was to hitchhike to Yellowknife. When given his own opportunity to address the sentencing court, Mr. Blackduck expressed remorse for his conduct and spoke of his alcohol addiction.

Trial courts have wide discretion in the sentences they impose and that the standard of review on sentence appeals is a deferential one. An appellate court should only interfere with the sentence where: 1) the sentence is demonstrably unfit; 2) there is an error in principle; or 3) there is a failure to consider relevant sentencing factors (R v Shropshire, [1995] 4 SCR 227; R v Proulx, 2000 SCC 5, [2000] 1 SCR 61; and R v Lacasse, 2015 SCC 64 [“Lacasse”]). Where there is an error in principle, a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigating factor, appellate intervention will only be justified where it appears from the decision that the error had an effect on the sentence (Lacasse).

The Court is unable to conclude from the record that the sentencing judge adequately considered Mr. Blackduck’s Gladue factors in her sentencing analysis, as she did not ignore Mr. Blackduck’s Gladue factors entirely. The sentence imposed was within the acceptable range for uttering threats in the circumstances. Mr. Blackduck is addicted to alcohol. When he uses alcohol, he often engages in behaviours which lead to criminal charges and convictions. That is abundantly clear from his extensive criminal record.

However, Mr. Blackduck is unemployed, illiterate and homeless. He lacks resources to meet his basic needs and has nowhere near the support he needs to get a foothold to try and address his alcohol addiction. He does not even have the basic necessities in life because he has never really had a chance to attain them. He has faced systemic barriers and hardships his entire life, exacerbated by involvement in the criminal justice system. He is busy just surviving. This is a vicious cycle which diminishes his ability to make appropriate decisions about his conduct and to learn from the penal consequences of past conduct. It explains, to a large extent, his lengthy criminal record. All of this, in turn, diminishes his moral culpability that must be reflected in the sentence.

R v Angus, 2021 SKQB 13

The Court determined a global sentence of 19 years for an Indigenous accused who was found guilty of 6 out of 7 counts of indictment that included home invasion, sexual assault of a 14 year old, and discharge of a firearm. He has credit for remand resulting in 15.65 years to be served in a federal penitentiary, to ensure the availability of appropriate programming.

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William David Angus, an Indigenous man from Thunderchild First Nation, was found guilty on six of the seven counts of the indictment, including entering the J. home with a rifle, sexually assaulting A.J., the 14-year-old, fleeing the scene, and shooting at the father, C.J., who was by then in pursuit (R v Angus, 2020 SKQB 32 [“Angus Conviction”]).

Following the conviction, an order was made for a pre-sentence report [“PSR”], with particular consideration of Gladue factors (R v Gladue, [1999] 1 SCR 688 [“Gladue”]; R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [“Ipeelee”]). Upon changes of counsel, and lengthy delays in receiving a  Gladue Report, a report on was filed and further information was outlined in a letter from the Report writer. In her submissions, it was emphasized the impact of intergenerational abuse and the tragic circumstances of Mr. Angus’ mother’s life. The supplemental PSR, provided background regarding the day school run by the Anglican Church on Onion Lake First Nation, which Mr. Angus attended as a young child. Mr. Angus also describes a lack of a sense of home or community and a pattern of transiency. Mr. Angus’ history and personal circumstances have been extremely difficult.

The significant harm a child experiences as a result of sexual violence and a high degree of moral blameworthiness attached to sexual violence against children are aggravating factors (R v Friesen, 2020 SCC 9). Adolescent girls, such as the complainant in this case, are at particular risk for victimization. Accordingly, sentences must not be disproportionately low. A.J.’s age and the significant impact on both her and her family are also deemed aggravating factors. Further, the presence of the firearm during the assault coupled with A.J.’s young age bring s. 272(2)(a.2) of the Criminal Code into effect. This makes Mr. Angus liable “to imprisonment for life and to a minimum punishment of imprisonment for a term of five years”. An additional aggravating factor in the context of the home invasion is mandated by s. 348.1 of the Criminal Code.

Mr. Angus would benefit from the programming available in the penitentiary, but the attitude he has exhibited is concerning. In contrast, Mr. Angus was just shy of 43 years of age when the crimes for which he is now being sentenced took place. He is now 45 years old. He also has a criminal record which includes, among other things, prior convictions under s. 348(1)(b) for break and enter and commission of an indictable offence therein. Mr. Angus’ focus over the months since his conviction has been on the pursuit of a Gladue Report, even to the point of being uncooperative with the PSR writer, as noted in Angus Gladue. Mr. Angus’ failure to acknowledge both his responsibility for his actions and his need for help in addressing the underlying issues is of concern. It would be beneficial and rehabilitative for him to avail himself of programming.

R v Runions, 2021 ABQB 67

Although Gladue factors reduced an Indigenous offender’s overall blameworthiness, it was not enough to persuade the Court that he is not a risk to public safety or can be managed in the community. He is designated a dangerous offender and sentenced to detention in a penitentiary for an indeterminate period.

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In 2019, Dillion Richard Runions pleaded guilty to one count of aggravated assault, contrary to s 268 of the Criminal Code, and a further count of breaching an undertaking given to a police officer, contrary to s 145 (5.1). The aggravated assault consisted of Mr. Runion, who was unprovoked, slamming a machete into the neck of his unsuspecting victim. This vicious attack was nearly fatal with the victim surviving only because of timely medical intervention. At the time of the machete attack Mr. Runions was bound by the terms of an undertaking given to a police officer, which stipulated that Mr. Runions should not be in possession of a weapon. Both offences occurred in 2017.

The Crown brough an application to designate Mr. Runions a dangerous offender and to be given an indeterminate sentence (R v Corbiere, [1995] OJ No 938; R v Bedard, 2009 ONCA 678; R v Gulliver, 2018 ABCA 387; R v Neve, 1999 ABCA 206; and R v Lyons, [1987] 2 SCR 309). Part of the prospective assessment of dangerousness, is answering the question of whether the behaviour is such that the pattern of conduct can be said to be substantially or pathologically intractable (R v Boutilier, 2017 SCC 64).

Mr. Runions spoke of a childhood history which included general family dysfunction, poverty, domestic violence, maternal substance abuse, abandonment, neglect, placement in foster care, and a chaotic life involving frequent moves and school changes. According to a Gladue report, Mr. Runions indicated that one of his placements involved a Métis family, and he was exposed to his Métis heritage, traditions, and cultural practices. Mr. Runions said he was sexually abused from a young age, and that he was sexually assaulted by one of his mother’s boyfriends and by a foster parent.

Mr. Runions told the Gladue report writer that he fled a group home at age 16 and joined a street gang called “Deuce’s of Central”. He said that he resided with gang affiliates until his first incarceration at 19, and then dropped out of school, consumed alcohol, used cocaine, trafficked in illegal substances, and engaged in negative and violent behaviour. Mr. Runions reported a sporadic work history including having worked as a cribber and a drywaller, his average length of employment was under six months, and his longest period of employment was two years. Mr. Runions reported that he was diagnosed as being bipolar disorder in 2005, depression and anxiety at 18 years old, and post-traumatic stress disorder in 2009. He also reported auditory hallucinations if he did not take various medications.

The quality and strength of the evidence of past and future events, together with the expert opinion concerning those events, demonstrates that it is likely Mr. Runions will cause death or injury through his failure to restrain his behaviour in the future. Mr. Runions has not yet received nor exhausted all treatment options that are available to him. In most cases through no fault of his own, Mr. Runions remains untreated in relation to some of his most pressing treatment needs. It is also notable that Mr. Runions, who has demonstrated a recently renewed interest with respect to his Indigenous background (having previously self-identified with Buddhism and later as a Muslim), at least while incarcerated, could elect to be placed within a separate multi-target stream such as the ICPM Multi-Target Program which emphasizes Indigenous healing through traditional and cultural means, and importantly and supportively permits access to Elders for guidance and support.

Unfortunately, Mr. Runions cannot be trusted and his persistent disingenuous presentation makes treatment functionally impossible. It is also highly likely that Mr. Runions will resume gang-affiliations once released from custody. There is no suggestion in the evidence that he has ever succeeded in divesting himself (long-term) from his gang-lifestyle while not in a structured custodial setting. Mr. Runions acknowledged that he was still at the top of the pyramid when he was asked about his gang connections.

Mr. Runions has a very high risk for general recidivism and for violently reoffending. His Gladue factors does reduce his overall blameworthiness, but they do little to change the obvious gravity of the grave circumstances of the predicate offence, and the fact the Mr. Runions violently injured and endangered the life of three people in approximately a one-month period. The Gladue considerations do not persuade the Court that Mr. Runions’ risk to public safety can be controlled or managed in the community. Mr. Runions is a dangerous offender and he is sentenced to detention in a penitentiary for an indeterminate period. Given the circumstances, including the past criminal record, a fit and proper sentence in relation to the conviction under s 145(5.1) of the Criminal Code is 6 months imprisonment.

R v Kolola, 2020 NUCJ 38

In sentencing an Inuit offender, the Court sought to meet the purpose and objectives of sentencing through consideration of the unique circumstances of this case, including competing sentencing principles, Gladue factors, and the frequency of violence against sleeping and unconscious women in Nunavut.

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This case deals with the sentencing of Mr. Kolola, an Inuit offender who committed sexual assault on a sleeping female victim. The Court sought out to ensure that the sentence imposed was fit to the offender and the crime. Given that Mr. Kolola is an Inuit offender, the Court accounted for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit people, articulated through Gladue factors.

The aggravating factors included Mr. Kolola’s criminal record, which demonstrated a pattern of violence against women through multiple convictions for serious intimate partner violence. The nature of Mr. Kolola’s sexual assault was quite predatory, as he assaulted the victim while she was asleep and in her own home. It was also noted by the Court that this assault seemed to be premeditated as he sought out his particular victim. There are several mitigating factors including Mr. Kolola’s Gladue factors which revealed his unfavourable childhood riddled with addiction and abuse, and his tangible efforts at rehabilitation through his continued sobriety.

The Court also took into account that sexual offenses involving sleeping women in Nunavut are unfortunately a common occurrence. As a result, there is widespread perception that the Court minimises the nature and severity of sexual violence. Therefore, the Court sought to impose a sentence in which sought to repair this distrust and fear of the criminal justice system by victims of sexual violence, while also holding Mr. Kolola demonstrably responsible for his crime. Through consideration and application of these unique circumstances and the competing sentencing principles, the Court concluded by ordering that Mr. Kolola serve 30 months (900 days) in a federal penitentiary.

Penosway c R, 2019 QCCS 4016

The Applicants have failed to establish that correctional services discriminated against them and thereby infringed their constitutional rights enshrined in section 15 of the Canadian Charter of Rights and Freedoms by using inadequate actuarial tools not adapted to their Aboriginal culture and by failing to provide the necessities and resources required for their rehabilitation.

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Yannick Hervieux-Riverin and Germain Penosway [collectively “Applicants”], are both accused of various breaches of long-term supervision orders. In this matter, they seek a remedy that the state’s conduct infringes upon their section 15 Charter rights. The Applicants are of Aboriginal ancestry and are members of their respective Aboriginal community.

Mr. Hervieux-Riverin was convicted on fifteen counts, including three counts of sexual assault, six counts of sexual interference, one count of invitation to sexual touching, and failure to comply with a recognizance and a probation order. For the nine files, he was sentenced to two consecutive terms of imprisonment and was found to be a long- term offender. In view of both the objective and subjective gravity of the offences to which Mr. Hevieux-Riverin pleaded guilty, and also taking into account his recurrent conduct attributable to a problem of a sexual nature, a sentence of twenty-seven months’ imprisonment is without a doubt within the range of fit sentences, and complies with the principle set out in s 718.2(e) of the Criminal Code (R v Gladue, [1999] 1 SCR 688; R v Ipeelee, [2012] 1 SCR 433).

The trial judge’s application, even after reconsideration in light of the Gladue report filed, remains unassailable. It contains no error of principle or any other error reviewable on appeal. Mr. Hervieux-Riverin’s personal profile, which includes his addiction, mental health problems, and complete absence of employment history, the high risk of recidivism, lack of any family or community support that could contribute to his rehabilitation, and the absence of resources in his community of origin to facilitate reintegration without reoffending, are significant factors. While he was required to observe strict conditions, Mr. Hervieux-Riverin was charged in nine different files for failing to comply with one of the conditions of his long-term supervision.

Mr. Penosway is also facing criminal charges for breach of long-term supervision. The long-term supervision order rendered in 2009 for a period of ten years will end only in 2024 because Mr. Penosway was re-incarcerated several times for breach, during which time the order was suspended temporarily. The initial conviction for which the long-term supervision order was rendered also referred to charges of a sexual nature. The Gladue report for Mr. Penosway, although drafted for the purpose of suggesting an alternative to a custodial sentence, illustrates the difficulties of a population exposed to violence, sexual abuse, and addiction.

The Applicants submit that Correctional Service Canada breached its obligations set out under the Corrections and Conditional Release Act [“Act”], by using inadequate actuarial tools that are not adapted to Aboriginal culture and fail to provide the necessities and resources required for their rehabilitation. They are the subjects of systemic discrimination, and as a result, their Charter s 15 rights have been breached. The Applicants argue that despite the legislative provisions duly set out in the Act, they are victims of systemic discrimination preventing them from obtaining the benefits recognized by the Act. It is not the Act nor the accompanying Directives that the Applicants contest, but rather their implementation, which they consider discriminatory.

The law provides that a person subject to a long-term supervision order shall be supervised by the Correctional Service of Canada and the Parole Board of Canada. The use of actuarial tools that had the potential effect of overestimating the risk and affecting the offender’s security classification do not infringe the rights guaranteed by s 15 (Ewert v Canada, 2018 SCC 30). Although they could be improved, actuarial tools are a measure that must be balanced with Aboriginal Social History to establish an intervention plan during mandatory long-term supervision. The conditions imposed do not fall under the authority of correctional services, but rather the Parole Board, which is not bound by the measures proposed. The Court cannot find that the rights of either applicant were violated further to discrimination, even involuntary discrimination, through the use of actuarial tools.

The Applicants submit that correctional services erred by omission by failing to provide the resources necessary for the rehabilitation of Aboriginal persons, in particular, programs specially adapted to their cultural situations, and by failing to establish places of residence near their community. They submit that these omissions are the result of discriminatory treatment. While the Court agrees that in a more perfect world, resources could be improved and allocated solely to Aboriginal offenders without being shared by other offenders, the fact remains that the lack of resources does not mean that there is discrimination. Breaching a mandatory parole supervision order and challenging it later goes to the very purpose of the long-term order (R v Bird, 2019 SCC 7). In view of the charges of breach alleged against each of the Applicants, they are launching collateral attacks of the orders rendered by the Parole Board. The Court therefore finds that the Applicants have not established discrimination.

The Court cannot accept the submission that the absence of resources, and in particular the fact that there is no residential centre near their community, puts the Applicants in a situation where they are inexorably bound to reoffend by failing to comply with a residency condition. A long-term offender designation is an exceptional measure that will be rendered only when the strict conditions of the Criminal Code are met. Had this Court found that there was discrimination, it simply would not have had jurisdiction to grant any of the remedies proposed. The services offered in the context of the long-term supervision orders, although not perfect, are not discriminatory in their regard. The efforts made to improve the services do not constitute a failure to act by refusing to take into account the specific features of each appellant’s Aboriginal Nation.