Jonathan Rudin

The Crown appealed the sentences imposed on two offenders after the sentencing judge departed from joint submissions on sentence.

The sentencing judge reduced the agreed-upon sentences without notifying counsel or applying the public interest test from Anthony-Cook.

The Superior Court of Justice allowed the appeals, finding that the sentencing judge committed material reversible error by failing to apply the correct legal test and denying procedural fairness.

The joint submissions were substituted for the sentences imposed below.

The appellant, an Indigenous man, sought to withdraw his guilty pleas, arguing that the trial judge erred by not inquiring into the impact of his Indigenous experiences on the voluntariness of his plea, even though he had not raised this issue.

The Court of Appeal dismissed the appeal, holding that while judges have a duty to inquire into the validity of a plea if there are apparent indications of an issue, there is no general affirmative obligation to inquire into an Indigenous person's experiences affecting plea voluntariness unless specific circumstances trigger such a duty.

The court found no such circumstances in this case, and the evidence suggested the plea was voluntary.

The Court of Appeal for Ontario heard motions for leave to intervene from three public interest organizations (1492 Windsor Law Coalition, Aboriginal Legal Services, and Canadian Civil Liberties Association) in an appeal concerning the striking of an Indigenous appellant's pleadings and a substantial costs award in an injunction proceeding related to a land dispute.

The motions judge had found the appellant in contempt of court.

The Court dismissed all motions for intervention, finding that 1492 WLC and ALS's submissions inappropriately expanded the legal issues on appeal by focusing on injunctions, and CCLA's submissions largely overlapped with the appellant's arguments.

The court concluded that the appellant could adequately address the Indigenous perspective.

No costs were awarded against the proposed interveners.

This is a motion decision concerning an application by Aboriginal Legal Services (ALS) for leave to intervene in a criminal appeal.

The motion judge initially declined to grant leave on the material filed but agreed to reconsider on a proper record.

Upon receipt of supplementary materials, the motion judge granted leave to intervene, finding that ALS had an important perspective distinct from the immediate parties on issues relating to Gladue principles and their application to the weight placed on prior criminal records.

The intervention was granted subject to conditions limiting the length of the factum to 10 pages and oral submissions to 20 minutes.

This is a motion decision concerning an application by Aboriginal Legal Services to intervene as a friend of the court in a criminal appeal.

The appellant challenged the admission of his criminal record into evidence at trial, arguing that Gladue principles should inform the probative value and prejudicial effect analysis under R. v. Corbett, and should apply to the use of prior convictions in assessing credibility.

The motion judge found that while Aboriginal Legal Services has recognized expertise in criminal law issues affecting Indigenous peoples, the record did not establish that it could make a useful contribution to the appeal without causing injustice to the immediate parties.

The motion was dismissed, but the applicant was permitted to re-submit on a proper record with specified conditions.

The Crown appealed a sentence where the trial judge set aside a notice of prior conviction under s. 255 of the Criminal Code, relying on a provincial appellate decision.

The Supreme Court of Canada subsequently reversed that decision, meaning the trial judge erred by failing to impose the mandatory minimum sentence of 120 days.

The Court of Appeal allowed the appeal and imposed the 120-day sentence, but stayed it because the respondent had already served a full 12-month conditional sentence.

The appellant pled guilty to manslaughter after accidentally shooting his friend with a prohibited firearm while in a vehicle.

He was sentenced to seven years' imprisonment.

On appeal, he argued the trial judge failed to properly apply s. 718.2(e) of the Criminal Code regarding his Aboriginal heritage and erred in weighing aggravating and mitigating factors.

The Court of Appeal found no error in the application of s. 718.2(e) given the mandatory minimum sentence, but the majority held the trial judge failed to give sufficient mitigating weight to the appellant's positive life steps.

The appeal was allowed and the sentence reduced to five years.

The families of two deceased First Nations persons and the Nishnawbe Aski Nation sought to challenge the representativeness of the jury rolls for two coroners' inquests, arguing that First Nations persons living on reserves were systematically excluded.

The presiding coroners refused to issue summonses to the director of court operations to inquire into the jury roll preparation.

The Court of Appeal held that coroners have jurisdiction by necessary implication to inquire into the representativeness of a jury roll and to remedy an unrepresentative list.

The Court found sufficient evidence to warrant the summonses, allowed the appeals, and ordered a new inquest into one of the deaths.

The appellant, an aboriginal offender, appealed his sentence of 3 years and 4 months for sexual assault, arguing the trial judge erred in applying Gladue principles.

The Court of Appeal found that while the trial judge incorrectly stated that Gladue considerations are less applicable to more serious offences, he ultimately applied the principles correctly and took the relevant factors into account.

A fresh Gladue report did not materially add to the information before the trial judge.

The appeal was dismissed given the seriousness of the offence.

The appellant, an Aboriginal woman with a history of trauma including residential school attendance, pleaded guilty to aggravated assault after causing permanent brain damage to her two-year-old child.

She was sentenced to two years less a day in custody.

On appeal, she argued the sentencing judge failed to adequately consider her circumstances as an Aboriginal offender under the Gladue framework and erred in assessing aggravating factors.

The Court of Appeal dismissed the appeal, finding that the sentencing judge properly applied the Gladue methodology and that a custodial sentence was appropriate given the gravity of the offence and the need for denunciation and deterrence.

The appellant, an aboriginal offender, appealed her 18-month sentence for aggravated assault, arguing the pre-sentence report fell short of Gladue requirements.

She sought to tender a more comprehensive Gladue report as fresh evidence.

The Court of Appeal admitted the fresh evidence but dismissed the appeal, finding the original sentence fit and appropriate given the serious violence of the offence and the extreme consequences to the victim.

The appellant, an aboriginal offender, appealed his sentence.

The Crown conceded that the trial judge erred in law by failing to apply s. 718.2(e) of the Criminal Code or the Gladue principles.

The Court of Appeal allowed the appeal, reducing the sentence to time served, as the appellant's mandatory release date was in one month and no restorative purpose would be served by further incarceration.

The probation period was extended from twelve to fifteen months to enable restorative treatment.

The appellant, an Aboriginal offender, appealed his sentence.

The Crown conceded that the trial judge erred in law by failing to consider section 718.2(e) of the Criminal Code, which requires a different methodology for assessing a fit sentence for an Aboriginal offender.

The Court of Appeal, having reviewed a full Gladue report, granted leave to appeal and varied the sentence to time served (approximately 5 months) followed by probation.