R v LC, 2020 MBPC 38

Sentence confirmed. There is not enough evidence from the Indigenous offender that discloses progress substantial enough to enable a justification on the variation on her sentence of secure custody. The plan for supervision for this offender is insufficient to promote her rehabilitation and reintegration into society.

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In 2018, LC was sentenced to secure custody for forty months to be followed by conditional supervision for twenty three and one half months upon her guilty plea to second degree murder. Following an annual review that confirmed that sentence to continue without change, this proceeding is the second annual review pursuant to s 94 of The Youth Criminal Justice Act [“YCJA”].

LC seeks an end to her incarceration so that she can return to her First Nation community and take steps to enroll in University of Manitoba. She would have strong family support from three sources: her mother and grandmother, who have been in court for all of the proceedings and with whom she has had visits, as well as her preschool son whose guardian is presently the youth’s mother.

Since the last review, this youth has taken steps to remove negative influences which were a concern in the last review. She has ended troubling relationships with her son’s father and with a friend who had a tangential participation in the matter for which she is serving her youth sentence. LC has applied for, and has been involved in, an ongoing program offering support to Indigenous offenders. Although her conduct at both institutions that she has served at has not been without fault, she has completed high school and is eligible for university entrance. She was described as a role model for others and is trusted with a job in the laundry.

LC struggles with self-acceptance and thinks often of how to fit in with her peers. She’s very sensitive to criticism and internalizes what others say to her or about her. She has a tendency towards people pleasing and will give up her own values to gain acceptance from others. This is to be expected given her age and life experiences. The Healing Plan  includes appropriate cultural and spiritual activities to address this, including continued group attendance and continuing with Elders upon release and “spiritual guidance as requested”. It identifies jail tattooing with a history a self-harm and recommends appropriate education. The Plan does not specify how these resources would be provided, maintained and supervised. The young person seeking supervision instead of incarceration bears the onus of proof and it is not the burden of proof beyond a reasonable doubt (R v H(D), 2008 ONCJ 78; R v Z(AA), 2013 MBCA 33).

It is determined that LC still does not appreciate the significance of her consequences; she is serving the maximum YCJA sentence for taking a life. It is to be hoped that she continues working on this. The evidence does not disclose progress substantial enough to enable a justification on the variation sought. The plan for supervision for this offender is insufficient to promote “her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public” (YCJA, s 38(1)). Although there have been changes in her life, they are not changes that are material to what led to second degree murder. The sentence is therefore confirmed.

R v Brown, 2020 BCPC 137

The Court found the sentences in their aggregate to be unduly harsh and disproportionate. The sentences were adjusted to arrive at an appropriate global sentence that considered circumstances such as the defendant’s Indigenous heritage, hope of rehabilitation and his relatively young age.

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Mr. Brown, the defendant, is a 26-year old man who discharged a firearm in the hallways of a lodging house. He then went to a nearby house and struck a resident with the firearm. At the time of the incident, Mr. Brown was bound by a 10-year weapons prohibition, which prohibited him from possessing firearms. This prohibition was imposed after he had been sentenced for a drug offence three years prior. Mr. Brown pleaded guilty to discharging a firearm, unlawful possession of a restricted firearm, assault with a weapon and breach of a prohibition order. The Crown urged the Court to impose a global sentence of six and a half years, while counsel for Mr. Brown urged for a global sentence of five years.

The Court had the benefit of reading a Gladue report that was previously prepared for Mr. Brown for his earlier drug conviction. Findings in the report noted that many of the systemic background facts that impact Indigenous peoples in Canada have also impacted Mr. Brown, including substance abuse, criminal history, family breakdown, and racism. While the Court was able to recognize how these factors have contributed to Mr. Brown’s offences, these factors did not equate to an automatic reduction in sentence (R v Gladue, [1999] 1 SCR 688).

The case law clearly establishes that the risk posed by firearms demands a sentence that denounces and deters (R v Oud, 2016 BCCA 332; R v Guha, 2012 BCCA 423). The Court found that a fit sentence in this case must adequately meet the objectives of denunciation and deterrence, however, it must not lose sight of the importance of rehabilitation. Mr. Brown’s relatively young age and accessibility to Indigenous centered programs both within his community and through correctional institutions were taken into consideration. The Court found the sentences in their aggregate to be disproportionate and destructive to any hope of rehabilitation. As a result, the sentences were adjusted, and Mr. Brown received a sentence of 5 years 9 months.

Trans Mountain Pipeline ULC v Mivasair, 2019 BCSC 1512

Three Indigenous men were each sentenced to 28 days in prison for criminal contempt after breaching an injunction prohibiting interference with Trans Mountain Pipeline operations. While Gladue factors were relevant, deterrence and denunciation needed to be given primary consideration. They could not invoke Indigenous law at the sentencing stage when they failed to challenge the injunction’s validity.

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Stacy Gallagher, Justin Bige and James Leyden [“Contemnors”] are to be sentenced in this matter for breaching an order [“Injunction”] (Trans Mountain Pipeline ULC v Mivasair, 2019 BCSC 2472 [the “Conviction Reasons”]). The Injunction prohibited interference with the operations of the plaintiff, Trans Mountain Pipeline ULC [“Trans Mountain”]. In 2018, this Court granted the Injunction to address protest activity against Trans Mountain and its pipeline expansion project. In broad terms, the Injunction prohibited obstruction of access to and from various Trans Mountain work sites.

Trans Mountain’s project attracted considerable controversy at the time, which continues today. Protests and arrests of protestors began almost immediately after the granting of the Injunction. The police arrested in excess of 200 people for breaching the Injunction.

The Court’s main focus in this sentencing process is to send a clear signal to the Contemnors, and others who may be influenced by them and their actions, that such behavior will not be tolerated. Deterrence is the main sentencing objective. Although contempt of court is a common law offence, and therefore prosecuted under the common law, courts have frequently stated that guidance in respect of sentencing for criminal contempt may be sought from the Criminal Code (International Forest Products Ltd v Kern, 2001 BCCA 48; R v Dhillon, 2015 BCSC 1298; Trans Mountain Pipeline ULC v Mivasair, 2019 BCCA 156).

There is a need for the Court to restore, maintain and preserve the rule of law and the administration of justice by punishing those people who would choose to threaten its existence by taking matters into their own hands and in doing so, encourage others to do the same. It could not be reasonably assumed that “public defiance of lawful orders of the court would continue indefinitely to be visited with only nominal fines and non-custodial sentences” (MacMillan Bloedel Ltd v Brown (1994), 88 CCC (3d) 148 (BCCA)).

All of the Contemnors are Aboriginal through their mothers lineage. Their home Indigenous territories are not in BC or even in the local area, being the traditional territories of the Coast Salish peoples. None of these men have criminal records. Section 718.2(e) of the Code mandates that the Contemnors’ Aboriginal heritage be considered in determining a fit sentence in the circumstances, including the Gladue principles (R v Gladue, [1999] 1 SCR 688; R v Ipeelee, 2012 SCC 13). The fact that an offender is Aboriginal, however, does not dictate that a restorative approach is appropriate toward rehabilitation (R v Wells, 2000 SCC 10 [“Wells”]). Unlike the facts in Wells, of course the convictions here did not arise from any violent offence. The offences here were, however, serious, consistent with the need for this Court to denounce and deter such behavior, both generally and specifically.

The Contemnors repeatedly submitted that they never meant any disrespect for the Court through their actions. However, such words are meaningless when juxtaposed against their actual actions. This Court has already found that the Contemnors, knowing what the Injunction required them not to do, purposefully did just that. Their actions belie any real sense of respect for the Court’s authority. The true substance of the Contemnors’ position in relation to their Aboriginal heritage is founded on their view that they were entitled to disobey the Court’s order because of their heritage and what they perceive as being their obligations to their own Indigenous rule of law. In essence, such an argument is a backdoor collateral attack on the validity of the order and this Court’s jurisdiction to enforce its order in the sentencing process (British Columbia (AG) v Mount Currie Indian Band, [1991] BCJ No 616 (SC); R v Ignace, [1998] BCJ No 243 (CA)).

The Contemnors’ Aboriginal heritage, background and circumstances, while relevant, do not move the needle in terms of the Court’s need to give primacy to the sentencing principles of denunciation and deterrence in this case. Each of them were well aware of what they were doing at the time. The Contemnors knew that they were going to be arrested if they violated the Injunction.

 

R v Turtle, 2020 ONCJ 429

The Court held that the unavailability of an intermittent sentence for on-reserve members of the Pikangikum First Nation, and those similarly situated, for mandatory minimum sentences under s 255 of the Criminal Code, breaches s 15 of the Charter. Alternative arguments under ss 7 and 12 of the Charter were dismissed. 

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Six band members of the Pikangikum First Nation have pled guilty to a drinking and driving offense that, in their circumstances, carries with it a mandatory minimum jail sentence of not more than ninety days. Each of the accused live, together with their young children, on the First Nation Territory of Pikangikum.

The parties to these proceedings agree it would be open to each of these accused, in the normal course, to request an order of this Court allowing them to serve their sentences intermittently. The challenge for these defendants is that the Pikangikum First Nation Territory is an isolated fly in community hundreds of kilometers from the nearest district jail in the City of Kenora and it is financially and logistically prohibitive for them to travel to and from there, from weekend to weekend, at their own expense, to serve out their sentences.

Faced with this obstacle, the defendants each brought applications alleging that their inability to mitigate the effect of a mandatory jail sentence because of the practical unavailability of an intermittent sentence violates their right to equal protection under the law, constitutes cruel and unusual punishment and an abuse of the court’s process. Given the common ground of these applications, the desirability of using resources efficiently and with the consent of the parties, this Court has directed these applications be heard in one joined proceeding.

The question at the heart of this joint application is whether particular Criminal Code provisions of general application have an unconstitutional impact on Pikangikum First Nation residents, their place in Canadian confederation and what it means for them to be equal under the law. The recognition that First Nations, like Pikangikum, lived in distinctive societies, that their members are described in s 35(2) of the Constitution Act, 1982 as “peoples” who have been recognized by our highest Court as holders of community based rights, by virtue of their connection to their land, strongly suggests that the defendants, as on-reserve members of the Pikangikum First Nation, belong to a group enumerated in s 15 of the Charter, namely, a nation.

Being deprived of the opportunity to serve a jail sentence intermittently because of their status as on-reserve band members of the Pikangikum First Nation, constitutes the deprivation of a legal benefit. It also creates a distinction in law between themselves and other members of the general public. Most of the offending behavior in Pikangikum, like the offences the defendants have pled guilty to, is related to alcohol or solvent abuse. Pikangikum First Nation reserve is, and always has been, an ostensibly dry community. The effects of alcohol abuse in Pikangikum are rampant and have become devastating.

Mandatory minimum sentences under s 255 of the Criminal Code, breaches s 15 of the Charter. Any s 1 justification must fail at the minimal impairment stage of the analysis given this Court is deprived of any other sentencing options for the defendants by virtue of their facing mandatory sentences. The deleterious effects of this constitutional violation are egregious and cannot be outweighed by the salutary effect of a uniform sentencing regime (R v Sharma, 2020 ONCA 478). Alternative arguments under ss 7 and 12 of the Charter are dismissed.

Pikangikum and other Treaty #5 nations had traditional means of keeping the peace in their communities that pre-date contact with Europeans by thousands of years. Pikangikum’s integration into Canadian confederation is a textbook example of the negative effects of colonialism on an isolated hunter-gatherer society. The people of Pikangikum were a healthy, self-sufficient band of families, who, in the lifetime of the current Chief’s grandmother, became the suicide capital of the world. The legal regime the Court has been asked to consider in this application, though neutral on its face, treats the people of Treaty #5 as second-class citizens. The Government is not fulfilling its treaty obligations and young Indigenous people are taking their lives in shocking numbers.

R v GH, 2020 NUCJ 21

The Chief Justice of the Nunavut Court of Justice dismissed an application for a state-funded Gladue report. The Court cautioned that a Gladue report writer from outside the territory may not be adequately familiar with Nunavut’s unique circumstances and resources, and Inuit court workers can provide much of the necessary information, as can the predominately Inuit probation officers working in Nunavut. The Court left it to the Government of Nunavut to determine whether a program for full Gladue reports ought to be created. 

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The Applicant requests that the Court order the production of a Gladue report. He suggests that formal Gladue reports are necessary if this Court is to apply the remedial provisions of section 718.2(e) of the Criminal Code in the manner and spirit directed by the Supreme Court of Canada (R v Gladue, [1999] 2 CNLR 252 [“Gladue”]; R v Ipeelee, [2012] 2 CNLR 218).

In Canada, judges are required to consider the circumstances of Indigenous offenders who are before them to be sentenced. Indigenous offenders have the right (unless it is expressly waived) to the presentation of Gladue information and application of Gladue principles at their sentencing hearing. However, they do not have the right to the production of a publicly funded Gladue report in advance of sentencing.

In many jurisdictions across Canada there are Gladue programs in which independent and knowledgeable writers interview offenders and other community members, producing Gladue reports that educate sentencing judges. Nunavut is not one of those jurisdictions. To date, the Government of Nunavut has not implemented a program to connect Indigenous offenders with knowledgeable Gladue writers. Nothing formally prevents an offender in Nunavut from funding the production of a Gladue report privately, but this almost never occurs due to the associated cost.

Because Nunavut lacks a publicly funded Gladue writing program, Gladue information about Indigenous offenders in Nunavut usually comes before the court via Defence submissions, pre-sentence reports, and occasionally comments directly from offenders. Counsel for the Applicant argues that these sources of information are insufficient and that a Gladue writer would provide a qualitatively superior overview of the systemic factors that have played a role in bringing the offender before the court. Gladue writers are typically either members of the Indigenous communities in which they serve or they have strong social and professional connections to those communities. Because there is no Gladue writing program in Nunavut, there are no Gladue writers here with those same community connections that are so key for southern Gladue writers. Pre-sentence reports, however, are prepared by probation officers, many of them Inuit living in communities in which they serve.

Non-Inuit legal professionals in Nunavut are not without access to knowledgeable cultural and community resources. The Court will leave this discussion to more knowledgeable players within the Legal Services Board of Nunavut and the Government of Nunavut. The Court cautions against the assumption that a Gladue writer experienced in serving First Nations and Métis communities will easily translate those skills to an Inuit context. A pan-Indigenous approach to government programming is ineffective and does not meet the specific needs of Inuit. Recommendation 16.28 of the National Inquiry into Missing and Murdered Indigenous Women and Girls Final Report, notes that this failure to provide Inuit-specific services cripples Gladue principles.

When the Government of Nunavut implements a Gladue report writing program employing empathetic peers based in Nunavut communities as writers, the Court will be pleased to trust those report writers to fully enlighten the court. The colonial court system in Nunavut can only benefit from further and better cultural and historic information about the individuals who appear before it and will continue to rely on the expertise of Indigenous Court Workers, Inuit elders, resident counsel, and resident probation officers.

R v Hilbach, 2020 ABCA 332

The Court of Appeal upheld a finding that the mandatory five-year prison sentence for robbery while using a prohibited firearm breaches s 12 of the Charter as cruel and unusual punishment. It fails to allow courts to account for mitigating factors and elevates principles of deterrence and denunciation to an extent that objectives of rehabilitation, the imposition of a just sentence, and special considerations for Indigenous offenders are lost. However, a sentence was varied based on errors, including an overemphasis of Gladue/Ipeelee factors. 

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Ocean Hilbach was convicted for committing a robbery while using a prohibited firearm, contrary to s 344(1)(a)(i) of the Criminal Code. Curtis Zwozdesky was convicted for using a firearm, as a party to the offence, in the course of two robberies contrary to s 344(1)(a.1) of the Criminal Code.

The mandatory minimum sentences were deemed grossly disproportionate to the fit and proper sentence to the appropriate sentence in other reasonably foreseeable applications of the law in both cases. As such, the mandatory minimums in those sections contravened s 12 of the Charter and were not justified under s 1 of the Charter, and therefore pursuant to s 52(1) of the Constitution Act, 1982, were declared unconstitutional and of no force and effect.

The Crown appealed both sentences, maintaining that the mandatory minimums set out in these Criminal Code sections are consistent with the provisions of the Charter, and the sentences imposed by the sentencing judges are unfit. The standard of review on a sentence appeal is highly deferential. An appellate court cannot modify a sentence “simply because it feels that a different order ought to have been made” (R v Lacasse, 2015 SCC 64).

The constitutional validity of legislation is a question of law subject to the standard of review of correctness (Housen v Nikolaisen, 2002 SCC 33; R v Malmo-Levine, 2003 SCC 74). Section 12 of the Charter provides that everyone has the right not to be subjected to cruel and unusual treatment or punishment. Each of the sentencing judges in these appeals correctly identified the stringent test as to whether a mandatory minimum sentence constitutes such cruel and unusual punishment (R v Smith, 1073 (SCR)). To be considered grossly disproportionate, the sentence must be “so excessive as to outrage standards of decency” such that Canadians “would find the punishment abhorrent or intolerable” (R v Ferguson, 2008 SCC 6).

The appeal with respect to Mr. Zwozdesky is dismissed. The Court determines that the sentences imposed on Mr. Zwozdesky were fit and proper. The appeal with respect to Mr. Hilbach, however, is allowed in part. The sentencing judge for Mr. Hilbach found that a fit global sentence for both charges would be two years less a day, acknowledging the relevant Gladue factors, his degree of responsibility, the need for denunciation and deterrence for the crimes committed while on probation and prohibited from possessing firearms, and recognizing that this was his first custodial sentence.

There is no doubt that the commission of robbery using a prohibited firearm is a serious violent offence with potentially grave consequences. There are aggravating factors of an already serious violent offence and Mr Hilbach’s moral culpability was high. However, he was young at the time, 19 years old, pleaded guilty to these offences, and expressed remorse for his crimes. He is a member of the Ermineskin Cree Nation, and there are significant Gladue factors to be considered.

The Court determined that the sentencing judge committed errors in principle by failing to put sufficient emphasis on aggravating factors and place sufficient weight on deterrence and denunciation, and overemphasizing Gladue/Ipeelee factors. The sentence of two years less a day is unreasonable and demonstrably unfit. Taking all of these factors into account, a fit and proper sentence for Mr Hilbach is three years’ imprisonment for the s 344(1)(a)(i) offence. However, given that a significant period of time has elapsed since Mr. Hilbach was sentenced and he has served his full original sentence, it is not in the interests of justice to re-incarcerate him at this time. The Court confirms the decisions of the sentencing judges that the mandatory minimum sentences in ss 344(1)(a)(i) and (a.1) of the Criminal Code are unconstitutional and of no force and effect.

 

R v Doering, 2020 ONSC 5618

The Court sentenced a police constable to 12 months of imprisonment for failing to provide the necessaries of life and criminal negligence causing the death of Debra Chrisjohn, an Indigenous woman, who died while in police custody. Harmful stereotypes and bias with respect to drug users and Indigenous women were relevant to denunciation and the broader social context for sentencing. A jail sentence was warranted in order to convey the irrefutable message that Ms. Chrisjohn’s life was valued and valuable. 

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Debra Chrisjohn, an Indigenous woman, died while in police custody. The cause of death was a heart attack induced by ingestion of methamphetamine. She was arrested by the accused, Cst. Nicholas Doering, on an outstanding Ontario Provincial Police [“OPP”] warrant. During the time that she was in Cst. Doering’s custody, her condition deteriorated. She went from being conscious, physically agitated and verbal to being immobile, non-verbal and unable to stand or walk on her own. Cst. Doering did not obtain medical assistance for Ms. Chrisjohn. When he transferred her to the custody of the OPP, he told the OPP officers that she had been seen by a paramedic, and that her condition had not changed during his interactions with her. These statements were false. The statements made to OPP officers further reduced the likelihood that Ms. Chrisjohn would get the medical assistance that she so desperately required.

Cst. Nicholas Doering was found guilty of failing to provide the necessaries of life and criminal negligence causing death. His conduct represented a marked and substantial departure from the standard of care of a reasonable and prudent police officer. When a police officer is convicted of crime, the sentence must reflect the special role and authority of police in society. The powers conferred on police require that they be held to a high standard of accountability (R v Cook, 2010 ONSC 5016). Crimes committed by police officers represent a breach of the public trust, therefore police are held to a higher standard than would be expected of ordinary citizens, and the principles of denunciation and general deterrence become magnified in the sentencing of police (R v Forcillo, 2018 ONCA 402; R v Ferguson, 2008 SCC 6).

At trial, there was no evidence to suggest that Ms. Chrisjohn’s Indigenous status was a factor in the commission of the offences. Racial bias, however, is often subtle and subconscious. Be that as it may, there is no evidence to suggest that Cst. Doering was motivated by racial bias. Even if Ms. Chrisjohn’s status did not contribute to the offences, it must be acknowledged. Canadian courts have come to recognize that, just as Indigenous offenders are disproportionately represented in Canadian prisons, Indigenous women and girls are disproportionately vulnerable to violence and other forms of mistreatment. (Report of the National Inquiry into Missing and Murdered Indigenous Woman and Girls; R v Barton, 2019 SCC 33).

Ms. Chrisjohn’s Indigenous status is also relevant because the death of an Indigenous woman in police custody has an impact beyond the parties in court. Tensions between Indigenous communities and police agencies have been documented by various Canadian courts and tribunals (Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025; R v AM, 2020 NUCJ 4).

Cst. Doering must not be penalized for the acts of others, or for systemic failings that have generated racism and discrimination. Yet, just as it would be wrong to punish Cst. Doering for societal failings, so too would it be wrong to ignore the broader context. This case calls for a sentence of real jail. Nothing short of that can reflect the gravity of the offences in this case. The sentence imposed must denounce in the strongest terms the conduct of the offender, and the resulting harm. It must reinforce the societal values that were breached such as the sanctity of human life, the right of all persons to a minimum standard of care, and the duty of police to treat all persons in their custody with respect and humanity.

Cst. Doering demonstrated a wanton and reckless disregard for Ms. Chrisjohn’s life. He failed to obtain necessary medical treatment, ignored the gross deterioration of her condition, and he lied about her condition to the OPP, making it even less likely that her life would be saved. The essence of culpability lies in Cst. Doering’s devaluation of Ms. Chrisjohn’s life. The sentence must convey the irrefutable message that Ms. Chrisjohn’s life was valued and valuable.

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 McCargar, 2020 ONSC 5464

The Court sentenced an Indigenous woman to a conditional sentence of 24 months followed by a 12 month period of probation for robbery, with conditions including culturally based programmes described in her Gladue report. While her co-accused was sentenced to 10.5 months in prison, the offender’s rehabilitation path, less concerning criminal record, and Gladue factors distinguished her circumstances. 

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The offender, Ms. McCargar, was found guilty after a trial on one count of robbery. She participated in a robbery of fentanyl patches from a 67-year old victim that had been prescribed this medication for pain. The victim was living alone in a rural area when Ms. McCargar and another offender came to the house in order to rob him.

Ms. McCargar is the mother of 4 children and a grandmother. She currently works full-time hours at a funeral home and volunteers 15 hours per week at a senior’s centre. The offender comes from a disadvantaged background. Her father was alcoholic and abusive who subjected his family to significant trauma. Ms. McCargar also suffered significant abuse and has endured a number of additional traumas as an adult. She has managed to rehabilitate herself from drug addiction and no longer uses alcohol. Currently Ms. McCargar is not in a relationship and lives with two of her children, including one that requires a great deal of assistance.

Ms. McCargar is Metis and did not have the benefit of growing up in her culture, but because of the colour of her skin, she has faced racism. For some time, the offender has been seeking the knowledge, insight and support her culture can bring. She has maintained contact with the Mohawk community in Tyendinaga. Her father taught her to hunt, trap and fish, and she has maintained these practices. Ms. McCargar has a criminal record which involves a number of property offences and includes convictions for assault. The Gladue report and PSR suggest, however, that some of these convictions occurred in the context of domestic relationships where the offender was physically abused by her partner.

According to this Court, the protection of the public is achieved with a conditional sentence, which is best suited to permit the offender to maintain the significant progress she has made towards her rehabilitation and strengthen her supports within her cultural community. Since the offences, Ms. McCargar has led a productive life. Most critically, there is a duty to give meaningful effect to the Gladue principles in this case, and the considerable evidence of the impacts of those factors on the offender. It is appropriate in this case to apply restraint in sentencing to reflect the circumstances that led to this offence and which reduce her moral blameworthiness.

Despite that her co-accused received a sentence of 10.5 months, there are important differences between the offenders in this case. Since Ms. McCargar’s sentence will be served as a conditional sentence with terms of house arrest, the range of sentence is appropriately higher than if a jail sentence were imposed (R v Sharma, 2020 ONCA 478). This means that if the offender is not compliant with the terms of the conditional sentence, she might serve an even longer period of time in jail should she breach the terms of the conditional sentence order. This serves to reinforce the principles of denunciation and deterrence.

Ultimately, in order to give effect to all of the principles of sentencing in this case, the term of the conditional sentence is fixed at 24 months. The first 12 months will be under house arrest, with exceptions for employment and certain other circumstances. During the conditional sentence, Ms. McCargar shall attend for all treatment and counselling that might be deemed appropriate for her by her supervisor, including those programmes described in the Gladue report. This will be followed by a period of probation for 12 months during which time Ms. McCargar is to continue with the culturally based programmes outlined in the Gladue report.

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.