Court File and Parties
Court File No.: Oshawa 2811-998-17-27046-00 Date: 2019-07-17 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Kyle Joseph Parent
Before: Justice G.R. Wakefield
Reasons for Judgment on Stay Application released on July 17, 2019
Counsel
Ngai On Young — counsel for the Crown
Krystal Manitius — counsel for the defendant Kyle Parent
Judgment
Introduction
1Earlier this year I stayed all charges before me with which Kyle Joseph Parent was facing in this jurisdiction. As far as I am aware those were all of his outstanding charges. I reserved reasons in order to prepare more fulsome reasons given the Crown's immediate advice that the matter would be appealed.
2These are my reasons for staying the Defendant's charges in which I acknowledge taking a longer time than would normally be the case in order to articulate my reasons. However, the importance of the Gladue principles to our system of justice as well as to our society at large mandated a longer period in order to express the following reasons.
Procedural History
3Kyle Joseph Parent pled guilty on July 26, 2017, to two of three charges, namely an assault upon Monica Cunningham and a mischief to property belonging to the same victim, both offences occurring June 14, 2017. He did so self-represented without the assistance of duty counsel. He was out of custody at that time. As such, together with ordering a Pre-Sentence Report and Electronic Monitoring Assessment, sentencing was adjourned to September 22, 2017, between the time necessary for the preparation of the Pre-Sentence Report and the Court's availability.
4On September 22, 2017, it having become apparent that Mr. Parent shared First Nation heritage, a Gladue Report was ordered and sentencing adjourned to January 30, 2018. Notwithstanding my order for a Report, the requisite follow up did not occur and the form not sent in, at least in part due to Mr. Parent at that time still being self-represented (though not required to do anything further and advised by the Clerk that the next step for Mr. Parent was to wait until contacted by a Gladue caseworker) and the Crown that day not providing necessary information for the "request" form. I re-ordered the Gladue Report.
5Sentencing was adjourned now to April 6 2018, for the preparation of the Gladue Report. However, Mr. Parent's status changed with his arrest on new additional charges and he appeared before me on March16, 2018, now in custody and with Counsel. Some matters were set for trial however the Defendant pled guilty before me to a breach of recognizance for breaching the geographic radius term to stay away from the residence of the same domestic violence victim previously pled to and mischief for damaging one of her car tires. The matter was adjourned to marry up with the previously set sentencing date in anticipation of the Gladue Report.
6Just prior to April 6, 2018, a letter from the caseworker was forwarded explaining that there had been no contact with Mr. Parent who had not returned messages left by the caseworker. For all of that period in which the caseworker was attempting to contact the Defendant, Mr. Parent was in custody. The letter also stated that only a Gladue Letter would be prepared due to the Crown sentencing position being only 30 days, less than the prerequisite of a Crown position exceeding 90 days for a full Report. This would have been the first notice to the Court that its order for a Report was not being complied with and without any application to amend the Court Order for a full Report. The Crown then clarified its totality position was one of 120 days with the new charges. The Court's additional concern was that whatever the labelling of the document, that its contents would comply with the information necessary for application of Gladue principles in fulfillment of the Court's Gladue duty to the Defendant. The matter was put over to May 29 th , 2018 for the provision of a Gladue Report, despite the caseworker confirming a Report was eligible but still referring to a Letter, and marked yet again for sentencing.
7On May 28, 2018, Aboriginal Legal Services sent a letter to the Court advising that a Report would not be prepared due to the caseworker being unsure of the specific nature of Mr. Parent's Aboriginal ancestry and unable to address how his heritage affected his life circumstances. The letter was dated the same day and while referencing the caseworker visiting the Defendant for the very first time by attending the Central East Correctional Centre, given the late time of her visit to the jail and only the afternoon before the Report was due, and as confirmed in Ms. Bean's testimony, I find that the decision was made not to provide a Report prior to the caseworker's visit to the Defendant. I note that the caseworker and her supervisor met on May 25 th and the supervisor had to direct the caseworker to actually meet with the Defendant. I find that this the only meeting between caseworker and Defendant and it occupied as little as five minutes of face to face time.
8On May 29, 2018, the matter was adjourned and Defence counsel brought an application for a judicial stay of proceedings.
9Upon reviewing the Defendant's application, I notified both Crown and Defence of my reading Mr. Jonathan Rudin's recent text "Indigenous People and the Criminal Justice System" (2019 Emond Montgomery Publications Limited, referred to as: Indigenous People) as well as the Advocate's Society Manual "Guide for Lawyers Working with the Indigenous Peoples" (A Joint Project of: the Advocates Society, The Indigenous Bar Association, Law Society of Ontario, May 8 th , 2018 referred to as: Guide for Lawyers) and the contents of both resources including cases and articles therein referred to, in order to afford them the opportunity to make submissions on any of the material found in those two resources on which I would be relying.
Legal Framework: Gladue Principles
10This is my ruling on a Defence application for a judicial stay of Mr. Parent's charges for non-compliance with a judicial order for a Gladue Report. Despite two such judicial orders for a Gladue Report, no such report was forthcoming. The Defendant has brought an application for a stay pursuant to s. 24(1) arising from alleged breaches of the Defendant's Charter rights pursuant to s. 7 of the Charter.
11I would firstly note that a judicial stay is to be granted in only the clearest of cases. A stay is a draconian remedy which I understand should only be used when no other remedy can rectify the harm caused to the Defendant. I find that this is one of those rarest and clearest of cases deserving of a stay and which is the only remedy which can begin to rectify the harm caused to Mr. Parent.
12The foundation of the necessity and value of a Gladue Report are echoed in the observation of the 1995 Royal Commission on Aboriginal Peoples that the Canadian Justice system has failed the Aboriginal peoples of Canada and that the crushing failure in this regard arise from fundamentally different world views on how to achieve justice.
13The best vehicle to speak to a Sentencing Judge achieving justice in an Aboriginal context is through a Gladue Report prepared by an empathetic peer collating and assisting in the examination of the offender's Indigenous history.
14The history of this matter is a comparatively lengthy one given that the initial charges were resolved by a guilty plea in the early summer of 2017, while Mr. Parent was still a self-represented litigant.
15Was I able to proceed to sentencing in the absence of an individualized Gladue information?
16The answer is of course no, not without the clear and unequivocal, voluntary, informed, express waiver of the Defendant (R. v. Pelletier, 2012 ONCA 566, para 142). I accept that should a Defendant intentionally frustrate that process or decline to participate, there may be occasions in which the Court can infer such conduct amounts to voluntary, informed express waiver, but even then only after consideration of the impact on Indigenous peoples and the consequential suspicions many may have regarding the Justice system. The case at bar is not such a case despite some initial challenges in obtaining family history from the Defendant's father.
17The Gladue principles apply to all Indigenous peoples, whether status or non-status Indians and also including the Metis: Daniels v. Canada, 2016 SCC 12. This is a national obligation by all of society towards the Indigenous peoples.
"Section 718.2(e) applies to all offenders across Canada, where ever they may reside and wherever they may be sentenced…These provisions require that courts in all jurisdictions across Canada have access to comprehensive information about offenders' aboriginal backgrounds and the extent to which systemic disadvantage, discrimination and other related factors have influenced the offenders' circumstances" (R. v. Corbiere, 2012 ONSC 2405, [2012] O.J. No. 2164 at para. 9)
18The context and necessity for this right of the Indigenous Defendant and duty imposed on the sentencing Court has been expressed many times, such as by the Supreme Court in Ipeelee, 2012 SCC 13, 2012 1 SCR 433:
59 The Court held, therefore, that s. 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).
60 Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.
61 It would have been naive to suggest that sentencing Aboriginal persons differently, without addressing the root causes of criminality, would eliminate their overrepresentation in the criminal justice system entirely. In Gladue, Cory and Iacobucci JJ. were mindful of this fact, yet retained a degree of optimism, stating, at para. 65:
- It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.
62 This cautious optimism has not been borne out. In fact, statistics indicate that the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened. In the immediate aftermath of Bill C-41, from 1996 to 2001, Aboriginal admissions to custody increased by 3 percent while non-Aboriginal admissions declined by 22 percent (J. V. Roberts and R. Melchers, "The Incarceration of Aboriginal Offenders: Trends from 1978 to 2001" (2003), 45 Can. J. Crim. & Crim. Just. 211, at p. 226). From 2001 to 2006, there was an overall decline in prison admissions of 9 percent. During that same time period, Aboriginal admissions to custody increased by 4 percent (J. Rudin, "Addressing Aboriginal Overrepresentation Post-Gladue: A Realistic Assessment of How Social Change Occurs" (2008-2009), 54 Crim. L.Q. 447, at p. 452). As a result, the overrepresentation of Aboriginal people in the criminal justice system is worse than ever. Whereas Aboriginal persons made up 12 percent of all federal inmates in 1999 when Gladue was decided, they accounted for 17 percent of federal admissions in 2005 (J. Rudin, "Aboriginal Over-representation and R. v. Gladue: Where We Were, Where We Are and Where We Might Be Going", in J. Cameron and J. Stribopoulos, eds., The Charter and Criminal Justice: Twenty-Five Years Later (2008), 687, at p. 701). As Professor Rudin asks: "If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?" ("Addressing Aboriginal Overrepresentation Post-Gladue", at p. 452).
63 Over a decade has passed since this Court issued its judgment in Gladue. As the statistics indicate, section 718.2(e) of the Criminal Code has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system. Granted, the Gladue principles were never expected to provide a panacea. There is some indication, however, from both the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(e) and this Court's decision in Gladue. The following is an attempt to resolve these misunderstandings, clarify certain ambiguities, and provide additional guidance so that courts can properly implement this sentencing provision.
19The Crown submits in its Factum that the Crown does not contest that Gladue Reports are important. I find that the sentencing principles founded in s. 718.2 (e) and the case law demonstrate that the Gladue principles are more than important, as they are a mandatory duty on all the justice participants, and especially the Sentencing Justice, to incorporate them into the sentencing process, as the Crown acknowledges later in its Factum.
20As was submitted in the Gladue Report referenced in R. v. Sellars, [2017] B.C.J. 2555 at para.45, and I adopt, Sentencing Justices are placed on the front lines of the Gladue principles with an important role in reconciliation.
21In the absence of Gladue information by way of my ordered report, the duty on me to consider individualized Gladue information about Mr. Parent does not expire. My duty in sentencing is quite clear – I must still consider that individualized information:
"There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence" (Ipeelee, paragraph 85 quoting Gladue, paragraph 82).
22Similarly, in R. v. Kakekagamick 2006 CanLII 28549 (ON CA), 2006, 81 O.R. (3d) 664, at paragraph 38:
"It is important to emphasize, as this Court held in R. v. Jensen (2005), 2005 CanLII 7649 (ON CA), 74 O.R. (3d) 561 (at para. 27) that the law in Ontario requires that the Gladue analysis be performed in all cases involving an Aboriginal offender, regardless of the seriousness of the offence. I would note that this is also the law in Alberta: see R. v. Abraham (2000), 2000 ABCA 159, 261 A.R. 192 (C.A.). See also Gladue, para. 79".
23I take this direction to confirm the right to a Gladue analysis is a right in all sentencings ranging from the least serious to the most, and even where there is no risk of jail. I respectfully completely disagree with the conclusions of R. v. Desjarlais, [2019] S.J. No. 13 at para. 33:
"Even if the Court has the jurisdiction to order a Gladue report, I am not satisfied that the Court should do so in this case. A PSR can be ordered and provided to the Court with the information as to many of the Gladue factors. Furthermore, defence counsel can also provide such information. In my opinion the ordering of full Gladue reports, with their corresponding costs and delays, should be considered only where the consequences for the accused are so great that they would render such a report essential to the proper sentencing of the accused. That is not the situation here".
24I find that the Court's Gladue obligations apply to every case and such obligation is a mandatory prerequisite to proceeding to sentencing.
25The Ontario Court of Appeal returned to the issue of both the availability and content of a Gladue Report in R. v. Macintyre-Syrette, 2018 ONCA 259, [2018] O.J. No 1458. It held that the Pre-Sentence Report and Gladue Report before the Sentencing Judge were cumulatively insufficient to fulfill the Court's duty to apply a Gladue analysis to that Defendant. At paragraph 2 the Court stated that:
'… It was an error for the sentencing judge to proceed without taking further steps to address the shortcomings in the reports. It is necessary that a supplementary pre-sentence report be prepared prior to this court re-sentencing and the sentence appeal remains under reserve".
26At paragraph 14, the Court confirmed again that
"The Gladue factors are highly particular to the individual offender and so require that the sentencing judge be given adequate resources to understand the life of the particular offender. But that is not all. A second enquiry is required by Gladue, assessing available sentencing procedures and sanctions, requires an understanding of available alternatives to ordinary sentencing procedures and sanctions. …"
The Court discusses the information needed when a Defendant is a member of a discrete Indigenous community. In my view, information is also needed to determine if part of the sentencing analysis to support rehabilitation and reconciliation is by examining options to assist in repairing cultural displacement should an offender not be part of a discrete Indigenous community.
27I also note the Court's confirmation that "the ordinary source of this information is the Gladue Report".
28Indeed, in my view, Gladue analysis is most crucial when someone first enters the criminal justice system as an early intervention with the recommendations and support of a Gladue caseworker may very well open both rehabilitation and reconciliation doors which might become closed as the offender grows older with a more serious prior record. As the Court in Macintyre-Syrette at paragraph 18 states
"The application of Gladue factors is not a matter of weight, and the duty to apply Gladue factors does not vary with the offender".
29In R. v. C.J.H.L., [2017] B.C.J. No. 825, A. Wolf, J, stated that at para.
"24 To be clear, I am of the view that 'the risk of jail' is an artificial threshold that is not designed to address the unique circumstances of Aboriginal offenders. To be clear, regarding Mr. I., there is a risk of jail. However, even if there was not, should he not also benefit from being able to access justice? If we are only providing reports to those who are at risk of jail, are we already too late? I note that many Gladue reports have been ordered in our New Westminster First Nations court. Often, the accused is not at great risk of jail due to the circumstances of the offence and other factors. However, in my respectful view, the Sentencing Judge always benefits from the information in a Gladue report".
30Continuing at para. 25:
"25 Imagine a young Indigenous person, making their way through the youth system, never having the benefit of a Gladue report; graduating into an arena of adult Criminal Code charges; finally ending up in jail for some crime, such as a breach of probation. Would they have ended up there if they had the benefit of a Gladue report at an early stage of their lives? Is it possible that early culturally appropriate interventions might have been suggested in a Gladue report? Perhaps a criminal record might have been avoided, thus increasing the chance of employment. There are endless possible outcomes that exist for an Indigenous person with a Gladue report versus those that do not have the benefit of one. For a greater understanding of these issues please see the complete and well prepared 80 page Evaluation Report on the Legal Services Gladue Pilot Project".
31In R. v. Doxtator, [2013] O.J. No. 833, L.C. Dean, J., expressed palpable disquietude in that jurisdiction's lack of Gladue Reports with only a Gladue component to the Pre-Sentence Report. In that judgment there is a full acknowledgment of need for Gladue content for the sentencing process. While I would respectfully disagree with the conclusion in that case that an Indigenous offender is not entitled to a full Gladue Report, as of right, I say so in the context of how that duty then falls to Counsel and the Sentencing Judge to obtain the equivalent individualized background evidence on the record. I do acknowledge that in a case where the Crown and Defence and Sentencing Judge have corralled the necessary individualized Gladue evidence then the Gladue duty of the Court will have been satisfied.
32However, I suspect in so doing, the Court will have breached its obligations in meeting its Jordan obligations. Complacency, in my view, does not stop at the door of Counsel and Judge, but includes the Government ensuring resources for Probation and Gladue caseworkers to meet the standards of a Gladue Report.
33If the only Gladue information is provided through the prism of a Pre-Sentence Report, the Judge becomes the gatekeeper to ensure that Pre-Sentence Report is being prepared by an author with sufficient training to have the ability and insight equivalent to a trained indigenous caseworker preparing a Gladue Report. In Doxtator, the Court there was obviously satisfied with the Pre-Sentence Report content, though I am unclear as to the nature of that Pre-Sentence Report's author's training to become the designated officer to prepare all such reports for the Windsor office. I am left with an unanswered question which is how does a Sentencing Judge have the confidence of knowing everything relevant to sentencing without the benefit of a full Gladue Report without comparing the Pre-Sentence Report with a full Report?
34That probation office did not seem to be sufficient, if in place a year earlier, in Windsor when Pomerance, J, directed a Gladue Report be completed in R. v. Corbiere, 2012 ONSC 2405. That direction was initially refused due to lack of local resources and ultimately resolved in remarkably suspicious circumstances by the in-custody prisoner being transferred to a facility in a different jurisdiction which did have Gladue Report resources. However, the result was that the Court's Order for a full Gladue Report was obeyed.
35I note as well that in Doxtator, the Crown there, rather than living up to its obligation to facilitate Gladue evidence as required by the Supreme Court of Canada, took the position that there was no jurisdiction to force the Government to pay for a full Gladue Report without the opportunity for submissions by (presumably) Crown – Civil.
36While there are binding precedents constraining the Courts from directing how the Government prioritizes its spending, in my view, the direction of the Supreme Court in the sequence of Gladue case law provides that jurisdiction, as does the statutory jurisdiction set out in s. 721 (4) which permits me, after submissions from Crown and Defence, to order specific content in a Pre-Sentence Report. Similarly, I have the ability to make an order for the appointment of Amicus within my ability to control the Court process, but do not have the jurisdiction to order a rate of pay. It is my view that any state refusal to comply with a Court Order for the appointment of Amicus would also open the door to at least a conditional stay and depending on the circumstances a full judicial stay.
37In R. v. Cunningham, 2010 SCC 10, that Court determined at para. 19:
"Likewise in the case of statutory courts, the authority to control the court's process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law. This Court has affirmed that courts can apply a "doctrine of jurisdiction by necessary implication" when determining the powers of a statutory tribunal:
... the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime ... .
(ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51) Although Bastarache J. was referring to an administrative tribunal, the same rule of jurisdiction, by necessary implication, would apply to statutory courts.
38Given the mandatory nature of the duty upon Sentencing Judges to obtain individualized Gladue content, I find that this duty would mandate my jurisdiction in order to accomplish that object. While Cunningham was specifically about the jurisdiction to permit or refuse counsel's request to be removed from the record, the jurisdictional issue goes well beyond that one focused issue.
39I also note that in Cunningham, the Supreme Court also confirmed that a statutory Court has to the power of enforcing these orders by way of its contempt powers (para. 50).
40Similarly, statutory Courts have the jurisdiction to make Amicus appointments. In Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, at para. 47:
"47 Thus, orders for the appointment of amici do not cross the prohibited line into the province's responsibility for the administration of justice, provided certain conditions are met. First, the assistance of amici must be essential to the judge discharging her judicial functions in the case at hand. Second, as my colleague Fish J. observes, much as is the case for other elements of inherent jurisdiction, the authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances (para. 115). Routine appointment of amici because the defendant is without a lawyer would risk crossing the line between meeting the judge's need for assistance and the province's role in the administration of justice.
"48 So long as these conditions are respected, the appointment of amicus avoids the concern that it improperly trenches on the province's role in the administration of justice."
41While the caution regarding routine appointments would not apply to the obligatory Gladue duty on Sentencing Judges, the comment regarding essential assistance to judicial functions certainly applies.
42As well, the qualifications of an appointee are within the jurisdiction of the Court, as stated at para. 65:
"65 Historically, courts have effectively appointed amici without the need to fix the rate of compensation. There is no dispute that a court has the ability to specify the general qualifications required for the task at hand. The Attorney General has the obligation to pay what is constitutionally adequate to serve the needs of the courts".
43The Court also again confirmed the existence of powers possessed by statutory Courts by necessary implication (para: 5) as to the ability to appoint amicus but without jurisdiction to determine the appropriate rate of compensation.
44I find I do have the jurisdiction to make an order for a full Gladue Report, but would not agree with the Defence submission in Doxtator that my authority extends to ordering a particular specified service provider to complete that Report. For example, I infer there is a contractual relationship between Aboriginal Legal Services and Legal Aid Ontario respecting the provision of Gladue Reports and more recently, the lesser standard of Gladue Letters.
45As a Judge of the Ontario Court of Justice, I do not have any contractual relationship with either Legal Aid Ontario or Aboriginal Legal Services. I do have the jurisdiction to subpoena members of Aboriginal Legal Services or anyone else who might have the necessary knowledge to assist the Court in fulfilling its Gladue mandate, but not to order non-contractual parties to prepare individualized research in order to create additional evidence.
46I specifically reject the notion that a Judge can only "request" a Gladue Report as suggested in "Indigenous People and the Criminal Justice System". As a Judge fulfilling a duty to comply with Gladue analysis obligations, I make orders I expect to be carried out or an application returnable before me to explain why it cannot or should not be carried out.
47To accept that an Indigenous offender only has the ability to make a mere request is disrespectful of the Gladue case law principles which clearly set out Gladue content as a right of the offender and a duty of the Court which has made the order. Again, this Court makes orders, not requests, and assuming a legal foundation for the jurisdiction to make the order, how it is carried out by the authorities is only a concern to the Court when the content falls short of the standards imposed by the Supreme Court. In that case I have the jurisdiction to set out the qualifications of the author necessary to fulfill my order.
48The frustrations of ensuring a Court complies with its duty to obtain Gladue information in a restrictive economic environment is depicted in R. v. McCook, [2015] B.C.J. 121, in which the British Columbia equivalent of Ontario Legal Aid is described at para. 77, after observing at para 76 that Pre-Sentence Reports and Gladue reports are different, the Court states that:
"With respect, the present process of having LSS act as a "gatekeeper" is unacceptable. It clearly interferes with the Court's and individual Judge's independence in the sentencing process by subjecting those persons who are the most adversely affected by the systemic negative impact of the criminal justice system (Aboriginal people) to further potential negative impacts through the actions of a bureaucracy that is fiscally constrained in how it decides whether a report of the importance of a Gladue report is prepared".
Gladue Reports vs. Pre-Sentence Reports
49As referenced in "Indigenous People", p. 113,
"Pre-Sentence Reports are written from a risk assessment perspective as set out in an informative article "Re-contextualizing Pre-Sentence Reports: Risk and Race" (2010) 12:3 Punishment and Society 262.
"Indigenous People" notes the effect: "is that Aboriginal offenders do poorly on risk-assessment measurements largely due to the impact of static factors that themselves reflect the impacts of colonialism that judges are to take into account when sentencing".
The different perspective of a Gladue Report is that it "contextualizes risk factors and explain them in a way that allows the court to understand them as considerations other than risks."
50With the greatest of respect, I am less confident in the ability of a non-aboriginal probation officer writing a risk analysis focused Pre-Sentence Report being consistently able to include the necessary information and insight into an Indigenous offender than the Court in Kakekagamick (2006), 2006 CanLII 28549 (ON CA), 81 O.R. 3d 664, that judgment also confirms the ability of a Sentencing Judge at Para:
45 "Where counsel does not adduce the evidence, it is still incumbent on the sentencing judge to try to acquire information on the circumstances of the offender as an Aboriginal person (Gladue, para. 84). In most cases, the information contained in a pre-sentence report may be sufficient to meet the requirement of special attention to the circumstances of Aboriginal offenders. But, where that information is insufficient, s. 718.2(e) permits the sentencing judge to request that witnesses be called to testify as to reasonable alternatives to a custodial sentence".
As I understand the case law, such witnesses can be called for Gladue content as stated in para. 46:
"46 "While the role of the sentencing judge is not that of a board of inquiry, there is nevertheless an obligation to make inquiries beyond the information contained in the pre-sentence report in "appropriate circumstances", where such inquiries are "practicable" (Gladue, para. 84). The sentencing judge's assessment of whether further inquiries are either appropriate or practicable is to be accorded deference (Wells, para. 54)".
The challenge in a post Jordan world with the pressures on a busy criminal court is when such inquiries by the Sentencing Judge can ever be "practicable" as opposed to being presented with a Gladue Report prepared outside of the Court by a properly trained Indigenous caseworker.
51At para. 63, the Court pointed out the consequences of not having the appropriate information at the original sentencing:
"It is important to stress at this time that the approach taken by this court should not be viewed as a substitute for any future failure on the part of counsel or the trial judge to address s. 718.2(e) and the Gladue principles when dealing with an aboriginal offender. Such a process is awkward, is unduly time consuming, no doubt incurs greater expense, and may be unfair to an offender who is incarcerated while awaiting the outcome of his appeal".
52The Crown in its factum asserts that a formal Gladue Report is not a condition precedent to a sentencing of an Indigenous offender. I agree. However, the Gladue content of such a report in my view is a condition precedent to any sentencing absent the voluntary, informed waiver by the Defendant. That content can be provided by other evidentiary means, such as viva voce testimony from extended family, elders, historians, academics and sentencing option experts such as representatives from appropriate institutions as to Indigenous accessibility and programming. Of course, a properly prepared formal Gladue Report is a far more efficient mechanism to bring that insight to the Sentencing Judge.
53I would sound a note of caution for the citation provided by the Crown in support of a Gladue Report not being a condition precedent in that R. v. Cook, [2017] O.J. No. 1451, is in the context of a Dangerous Offender Application. There is an additional commentary regarding Gladue application to the penalty phase of a Dangerous Offender application in "Indigenous People" commencing at p. 172, which I found insightful for any Dangerous Offender matter of which the case at bar is not one.
54The factum reference to R. v. Radcliffe, 2017 ONCA 176, [2017] O.J. No. 1060 (O.C.A.), in support of the submission that in that Dangerous Offender Application there was a finding that the Gladue information was of limited relevance. In my view, the judgment was far more nuanced given the finding the sentencing Judge erred in not considering Gladue but that in the egregious facts of that case the Gladue background would not change the ultimate penalty phase decision given how judicial discretion in the penalty phase is significantly circumscribed by the paramount sentencing principle of protection of the public, as required in those sections of the Criminal Code.
55Such sentencing discretion restrictions simply do not apply to the case at bar and my duty to consider Gladue in sentencing is not so diminished as it would be in a Dangerous Offender Application.
56An example of the state not complying with a judicial order is found in R. v. K.K., [2012] O.J. No. 1592, where Justice C. Hill ordered a Gladue Report that was refused by the equivalent to probation services in Quebec which resulted in Defence ultimately agreeing to the lesser option of a Pre-Sentence Report with Gladue content. When that Order was responded to by a response setting out the need for a substantially longer period to prepare the Pre-Sentence Report, the Court corresponded (at paragraph 10)
"the court's direction was a court order in a federal proceeding, not a request subject to the idiosyncratic response of a particular provincial probation service. If necessary, the court shall take whatever further coercive and/or punitive measures necessary to enforce its order…".
While an extreme example of the lack of interprovincial cooperation, the non-compliance with the sentencing obligations were described by the court at paragraph 71: "the outrageousness of this story is self-evident. A shameful wrong. Contempt for the rights of Aboriginal Canadians. A denial of equality".
While the egregiousness of state conduct was worse in K.K. than in the case at bar in that it amounted to an outright refusal as opposed to a negligent non-compliance in the case at bar, it is appropriate to note here that in the next paragraph Justice Hill noted that the circumstances he dealt with amounted to a finding of state misconduct "which is measured as much in the circumstances and consequences of the delay for Ms. K.K. as it is in the actual months of delay". I find the same words as to circumstances opens the door to the same designation of state misconduct in the circumstances in the case at bar given the continued imprisonment of Mr. Parent.
57A similar analysis criticizing the content of a Pre-Sentence Report is found in R. v. Noble, [2017] N.J. No. 204, discussing the lack of Gladue content as state misconduct and raising the spectre of contempt citations for non-compliance with a Judicial Order.
58In R. v. McCook, [2015] B.C.J. No. 121, that court held at paragraph 77 that:
"With respect, the present process of having LSS act as a "gatekeeper" is unacceptable. It clearly interferes with the Court's and individual Judge's independence in the sentencing process by subjecting those persons who are the most adversely affected by the systemic negative impact of the criminal justice system (Aboriginal people) to further potential negative impacts through the actions of a bureaucracy that is fiscally constrained in how it decides whether a report of the importance of a Gladue report is prepared".
59Similarly, the jurisdiction to order a Pre-Sentence Report does not in my view in any way restrict the Court's ability to not only specify the content of a Pre-Sentence Report including setting standards for the Gladue content and reviewing the qualifications of the author, especially given the long history of distrust by Indigenous peoples towards the justice system and authority figures within the justice system.
60As discussed in R. v. Doxtator, the article by Kelly Hannah-Moffat and Paula Maurutto entitled "Re-contextualizing Presentence Reports – Risk and Race, 12 Punishment and Society 262, sets out the limitations of Pre-Sentence Reports in fulfilling the required Gladue content to meet the standards set out by the Appellate courts. While Pre-Sentence Reports tend to be focused from an "actuarial risk-based character", Gladue Reports are described as more "holistic and contextualized accounts" of the Indigenous offender including "the offender's family's experiences and his/her spiritual, cultural, family and community support network", to present creative sentencing alternatives to the Court. "This kind of analysis can reframe the offender's risk/need by holistically positioning the individual as part of a broader community and as a product of many experiences".
61At p. 276 the authors assert that Gladue Reports in discussing the offender's background "detail how these experiences affect attachment to others and discuss on how separation from family, community and traditions may affect an offender's subsequent life experience". The article continues that "by comparison, the PSR, although making allowances for race, typically positions Aboriginality within a risk framework that abstracts individual agency and mobilizes hegemonic white, western cultural values".
62An example of describing the different approach in a Pre-Sentence Report is found in R. v. Noname, [2015] S.J. No. 482 (S.Q.B.) at paragraph 18:
"The author of the Pre-Sentence Report conducted a criminogenic risk assessment with respect to William. The author concluded that William's overall risk for general re-offending was high, observing that individuals categorized at this level recidivate at approximately an 80% rate over a three-year period while in the community. In this respect, William is in the 79th percentile. In fairness, the author of the Pre-Sentence Report opines that William can reduce the risk to re-offend by targeting his risk factors, identified as employment issues, family and marital issues, issues with peers and companions, substance abuse issues and attitude".
63The article goes on to describe the Gladue Report being a product of "lengthy and in-depth interviews with the client, and where possible with family members and acquaintances, as well as experts familiar with Aboriginal histories and communities". In my view, it would be the rare Pre-Sentence Report which meets that standard, a standard which seems both more respectful of Indigenous cultures and oral histories.
64Indeed, the offender before my Court and the Probation Officer who completed the Pre-Sentence Report for this Court disagreed about their conversations as to the importance of Gladue content with Mr. Parent testifying the Probation Officer suggested to minimize it. I am not in a position to make a finding of fact as to whose recollection of that conversation is more reliable, but I do note that Mr. Parent's Pre-Sentence Report seven years earlier was actually silent as to indigenous heritage and focused on risk assessment of the offender's alcohol abuse. Certainly Mr. Gilkinson's Pre-Sentence Report contained more about the Parent family history than did the earlier Pre-Sentence Report by a different author, but there would appear to have been no further investigation nor appreciation as to the many impacts that indigenous history can have on an offender. "If a pre-sentence report is lacking in its richness of detail or historical/systemic background, it is incumbent upon the sentencing judge to make further inquiries. The Court may direct that the report be supplemented in writing or it may direct the attendance of witnesses that can offer the information and perspective that is needed" R. v. Corbiere, 2012 ONSC 2405, [2012] O.J. No. 2164. The difficulty is the additional "in-court" time such a process consumes unnecessarily when a properly trained caseworker can obtain and explain all that information outside of Court.
65I also note that Pomerance, J., made an Order in Corbiere for a "properly trained Gladue worker" to prepare that report (para 11)
66Clearly, the "mere assertion of aboriginal heritage" is not a switch which once flicked sparks an automatic race-based sentence reduction (F.L., 2018 ONCA 83, [2018] O.J. No. 482, para 38).
67"The correct approach… the systemic and background affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicate which types of sentencing objectives should be prioritized in the offender's case" F.L., para. 40.
68I reject the Crown submission that the Defendant's lack of cultural participation is an example of diminished importance of Gladue principles and see the Defendant's comments being a possible example of his family's cultural dislocation, which in turn may very well be an example of colonialism's generational impact on this family. Without Gladue information, I am unable to assess that in making factual findings.
69However, I also note that F.L., at paragraph 32, there is no evidentiary burden on offenders to demonstrate any causal connection to systemic or background factors given the devastating intergenerational effects of the collective experiences of Aboriginal peoples. A parallel lack of connection in Mr. Parent's Pre-sentence Report is palpable, though it was done by placing the responsibility on Mr. Parent. As F.L. set out in paragraph 46, sentencing judges must pay careful attention to the complex harms that colonization and discrimination have inflicted on Aboriginal peoples.
70I understand this direction is to require an individualized context or light being shed on the offender's moral blameworthiness. Without individualized Gladue information, the Sentencing Justice cannot fulfill the Court's duty towards the offender's right to have that information considered in the sentencing process. This is especially true in obtaining sentencing options and sentencing resources for consideration.
Counsel and Crown Obligations
71Who then bears the responsibility for providing the Court that sentencing content when a report is not provided? Firstly, Counsel also have a duty to bring that individualized Gladue information before the Court. If Defence counsel is not able to or does not assist, then the Crown counsel also has an equal duty to fulfill this duty. If neither Crown nor Defence counsel fulfill that duty, the Trial Judge must still fulfill that duty by the Court making its own enquiry and investigation. How should all this happen?
72Just as there is a substantial cost in money and time to produce a formal Gladue Report taking up to three months to complete, so there will be a substantial cost imposed on either or both Defence and Crown counsel if the duty to provide the individualized information devolves to them. I am unaware of any additional funding to either in order to fulfill their Gladue obligations to the Court and to the Defendant.
73As to the cost the Supreme Court stated in Cunningham, supra, at para.:
"45 That being said, ordering counsel to work for free is not a decision that should be made lightly. Though criminal defence counsel may be in the best position to assess the financial risk in taking on a client, only in the most serious circumstances should counsel alone be required to bear this financial burden. In general, access to justice should not fall solely on the shoulders of the criminal defence bar and, in particular, legal aid lawyers. Refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice".
74I do note that in Macintyre-Syrette, the Court in ordering a supplementary Pre-Sentence Report expected the Crown to make the arrangements for an author who could access the Indigenous community to obtain the missing Gladue information. In the subsequent re-sentencing stage (2018 ONCA 706, [2018] O.J. No. 4442) it would appear the necessary expertise in fulfilling the Court's mandate necessitated the Crown arranging or retaining Aboriginal Legal Services to prepare the "supplemental pre-sentence report" as opposed to a probation officer from the Defendant's jurisdiction.
75Leaving aside the strong disincentive on Defence counsel to accept aboriginal clients should counsel have to bear the cost of the necessary investigation and additional court time in submitting the evidence, what education and skill set must Defence counsel obtain to fulfill that duty?
76In my view there is a societal obligation necessitated by the Gladue duty upon the Court to provide sufficient financial resources to permit the Court and Counsel to fulfil their duty. I adopt the views of M. Cozens, C.J. Terr. Ct., [2018] Y.J. No. 71 at paragraph 60:
60 As I have said in Quash and in other cases, it is one thing to make a verbal apology to the Aboriginal Peoples of Canada for the harm caused by the residential school system and other governmental policies designed to "kill the Indian in the child". It is one thing to make promises to attempt to rectify the situation. It is one thing to set up committees and commissions to explore the harm caused and the reasons for it.
61 It is quite another thing entirely, however, to actually spend the required monies to ensure that the infrastructure for the necessary treatment, counselling, education, employment and other restorative and forward-looking resources are in place and operational. In the end, saying sorry requires more than words, promises, committees or commissions. These are simply preparatory steps. There must be follow through. In my opinion, the follow through is often insufficient. This is simply the reality of the situation...and at times a very sad reality.
See also R. v. Quock, [2015] Y.J. No 71 at paragraph 119.
77In my view, when that sad reality prevents a Sentencing Court and involved Counsel from fulfilling the Gladue duty imposed upon them, then the Court must consider other intervening options.
78I understand that to accept a legal aid certificate to represent an aboriginal Defendant requires Counsel to be approved for inclusion in the Gladue panel of which I am aware from other Counsel on that panel in other proceedings. I am unaware if any educational pre-requisite amounts to hours, days, weeks or months of training or if it is in person training or merely online review of material. I am equally bereft of an evidentiary foundation as to the financial coverage Legal Aid provides to permit a Defence Counsel to investigate, collect and provide the Gladue factors to the Court in a sentencing hearing, nor do I have an evidentiary foundation to determine the extent of trained Indigenous caseworker accessibility Defence Counsel might have available to them.
79However, I agree with the statements in the "Guide for Lawyers..." at p. 42 on the issue of Indigenous distrust of the Justice System:
When working with Indigenous peoples and communities, counsel should be mindful of how the unique circumstances and history of Indigenous Peoples may impact their understanding of and attitudes towards both the justice system generally and those who operate within it.
The Guide goes on to quote The Aboriginal Justice Inquiry of Manitoba as follows:
"for Aboriginal people, the essential problem is that the Canadian system of Justice is an imposed and foreign system. In order for a society to accept a justice system as part of its life and its community, it must see the system and experience it as being a positive influence working for that society. Aboriginal people do not".
80In the case at bar, Defence Counsel was instrumental in determining the circumstances of how my order for a Report was not fulfilled, however did not provide individualized information beyond the witnesses called at the application for a stay. This is not a criticism, but an acknowledgment of what I infer are the limitations of her financial retainer.
81How did the Crown fulfil its obligation to provide individualized Gladue information to the Court? Again, I am not criticizing prosecuting Counsel, as I am aware that the Durham Crown Office is under-resourced, to the extent that I have myself been deprived of a Provincial Crown in my courtroom more than once. The Crown did not, apart from the submissions contesting the Stay Application.
Judicial Duty and Cultural Competency
82I acknowledge the tension between the risk of the perception of colonialist or paternalistic determinations of an indigenous Defendant's fate, and the fact that the core role of a Sentencing Judge is indeed to exercise the power conferred upon the Court to determine the fate of a convicted Defendant. In my view that very tension enhances the value of a Gladue Report prepared independently of the state providing a lens into understanding how a particular defendant resulted in an appearance before a criminal Court.
83I agree with the "Guide" that "indigenous peoples' interaction with the legal system should be viewed as an opportunity of continued advancements towards reconciliation, rather than as a problem in need of a solution" (p. 10) and that the lawyers and Judges involved with Indigenous peoples need to have or provided to them the cultural competency to appreciate the Gladue principles in sentencing. I acknowledge it is impossible for any single lawyer or Judge to have that competency in every Aboriginal culture in every region of Canada, despite the probability of interacting anyone from one of those cultures given the ease of mobility within Canada.
84The Truth and Reconciliation Commission Report, Call to Action 27 calls for cultural competency training for lawyers which is more than just online viewing, but "will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism".
85Distrust of the judicial system and authority figures such as lawyers, whether Crown or Defence, probation officers and Judges by many Indigenous Peoples means "a move towards a model where Indigenous agencies are responsible for these [Gladue] reports is preferable" (Indigenous People p. 116).
86How can a non-Indigenous person obtain sufficient intercultural competency to bridge the distrust barriers and find the voice of Indigenous people to speak their history?
87As such it was not helpful for the Crown to propose that I merely take judicial notice of relevant caselaw and my own judicial education as being sufficient to fulfill my duty to consider individualized Gladue information in sentencing the Accused, as the Crown did during oral submissions. Paragraph 60 of Ipeelee clearly imposes the duty on the Court to consider information individualized to each aboriginal offender.
88I especially distance this Court from and reject the Crown submission that it would be "farcical" to accept that the Defendant suffered any deprivation for being aboriginal. Leaving aside for the moment that the Court was never provided with individualized Gladue information I did receive the brief affidavit from the Defendant suggested a comfortable upbringing, and the controversial contents of the Pre-Sentence Report. The information elicited from the Court in questioning the Defendant's father perhaps evoked a better sense that the concept of deprivation is far more nuanced than merely whether any defendant enjoyed a middle-class upbringing and a residence uncontaminated by mould.
89A similar economic argument was made by the Crown in R. v. Diabo, [2018] Q.J. 9337, in an appeal by the Crown from a sentence under the Excise Act, S.C. 2002, c.22. At paragraph 72 the Court observed that:
72 It is best to acknowledge that the offenders here are unlike many Indigenous offenders for whom the "link" between systemic and background factors and the circumstances of the offence they committed is more manifest. The same cannot easily be said of the respondents who, by all available accounts, had a less traumatic upbringing and now have the advantage of stable support networks and reasonable employment prospects.
73 That said, the judge rightly took note of the problems facing Indigenous people "with respect to criminal justice and society in general" (para. [39]) as part of the context she had the duty to consider in sentencing the offenders. She accepted the evidence in the Gladue reports as relevant on that basis, as well as statistical evidence produced by the defence as to rates of incarceration in the Indigenous population, and wrote:
[43] The community of Kahnawake, like several others, has suffered assimilation and discrimination by different measures put in place by the government, which has impacted Aboriginal culture and identity for many generations.
90The appellate Court went on to observe at paragraph 78 that the Sentencing Judge's "link came from historical patterns of discrimination and government policy that affected the development of the offenders' community, both culturally and economically, and had an impact on the lives of them and their families". In other words, the historical information became individualized to the Offender's contemporary community.
91Similarly, in Ontario, the decision in Macintyre-Syrette makes clear that despite that Defendant's "stable and relatively prosperous upbringing" that the Sentencing Judge was in error when concluding (para. 17) that "the appellant's moral culpability for the offences is higher than it would have been if he had grown up in vastly different circumstances, such as in an unstable home without the benefit of wise parental guidance and example, with alcohol or drug related struggles, or without having played a leadership role in the resurgence of his community's cultural practices".
92At paragraph 18, the Court states:
It would have been better had the sentencing judge not accepted defence counsel's concession that Gladue factors should have less weight in the circumstances of the appellant. The application of Gladue factors is not a matter of weight, and the duty to apply Gladue factors does not vary with the offender. This is, however, more of a semantic failing, and what we understand the sentencing judge to have held, rightly, is that the circumstances of this particular appellant do not diminish the moral culpability of his actions: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 73.
93The Court continued at paragraph 19:
It was an error, however, for the sentencing judge to have proceeded with sentencing on the strength of the materials before him. The Gladue report gave insufficient assistance to the sentencing judge with respect to the second aspect of the Gladue analysis: of determining the types of sentencing procedures and sanctions that would be appropriate given the offender's connection to his specific Aboriginal community: Ipeelee, at para. 74. Section 718.2(e) imposes an "affirmative obligation" on sentencing judges to inquire into the relevant circumstances of the offender, including the types of sentencing procedures and sanctions which may be appropriate because of his or her particular Aboriginal heritage or connection; either from the parties or on his or her own initiative, a sentencing judge "must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community of the particular offender": R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at paras. 38, 54; Ipeelee, at para. 72, Gladue, at para. 84.
This information was not made available to the Sentencing Judge in the case at bar in either the Pre-Sentence Report or the Gladue Report.
94In R. v. Rondeau, [2017] O.J. No 5016, paragraph 30, a Gladue Report described the cultural displacement of that defendant as follows:
"Cultural identity is important; without it people can feel lost or adrift with no real attachment to a group of to a place…Aboriginal cultural identity is not a single element. It is a complex of features that together shape how a person thinks about herself or himself as an Aboriginal person. It is a contemporary feeling about oneself, a state of emotional and spiritual being, rooted in Aboriginal experiences…. Being part of something bigger than oneself".
I do not know if that sense is paralleled in Mr. Parent without a Gladue Report nor do I know if any displacement of his cultural connection can be restored.
95Without sufficient Gladue information, how do I ever fulfill my duty to "give tangible weight to the systemic and background factors present here which played a substantial part in bringing the appellant to court and which attenuate his moral blameworthiness"? (R. v. Martin, [2018] ONCA 1029, paragraph 14)
96I adopt the view of Nakatsuru, J. in R. v. Armitage, [2015] ONCJ 64, writing as he then was, a Provincial Judge presiding in the Toronto Gladue Court at paragraph 3 that:
"…accused persons who share a proud history of the first people who lived in this nation, not only have a right to be heard, but they also have a right to fully understand. Their voices are heard by the Judges. And they must also know that we have heard them".
The resources in that dedicated Court included access to a Gladue aftercare worker.
97A Gladue aftercare worker in my view would be an invaluable liaison in the Oshawa Courthouse.
98At paragraph 55, the Judge expresses the imagery in what is in my view the ultimate value of a fully prepared Gladue Report:
"If I could describe Mr. Armitage as a tree, his roots remain hidden beneath the ground. I can see what he is now. I can see the trunk. I can see the leaves. But much of what he is and what has brought him before me I cannot see. They are still buried. But I am sure that some of those roots involved his Aboriginal heritage and ancestry. They help define who he is. They have been a factor in his offending. They must be taken into account in his sentencing".
99In my view, the Crown's submission to proceed with sentencing without a Gladue Report or sufficient Gladue information would lead the Court into the same legal error as found in Macintyre-Syrette.
100My concern in the case at bar is to what extent should a Sentencing Judge intervene to obtain the missing information in a busy trial court adhering to Jordan principles knowing that an adjournment to obtain that information if adjourned to the next clear date may mean an unacceptable delay of many months or disrupting a trial list causing Jordan impact on other trials.
101I am unaware of any precedent guidance as to when judicial intervention by way of summoning witnesses to flesh out the Gladue principle presses against the need to consider what options are "reasonable" in the circumstances. In the Case at bar the situation is different given that insufficient effort in obtaining Gladue information in circumstances of frustrating Court Orders amount to a very different situation.
102Cultural genocide at a minimum means the loss of cultural foundations and values other than those imposed by a colonialist cultural power displacing generational tradition. Does not the balancing of "reasonable" include the impact on how the justice system is perceived by those Indigenous people involved with the Justice system, their extended families and their communities?
The Caseworker's Conduct
103The cross-examination of the caseworker was devastating in revealing a remarkable lack of interest in what the Court ordered or following up with anyone when unknown to her the Defendant was in custody. She was provided some aboriginal information by the Defendant's mother but did not follow up on it. The Court will never know for example whether contact with Friendship Centres might not have opened other doors of information. It was clear that the caseworker was not prepared to do the "extra work" necessary to open up those doors. Indeed, it would appear that it took a direction from her supervisor for the caseworker to even go and meet the Defendant without which I find that remarkably short meeting would never have happened.
104I do acknowledge that the education provided to the Judges of the Ontario Court of Justice is second to none. It has included a number of presentations on the Truth and Reconciliation Commission Report, video interviews of witnesses at those hearings, of the residential schools' horrors, of Indigenous living conditions across the country, the impact of colonialism, physical and cultural displacement and cultural genocide.
105I acknowledge that I can take judicial notice of the "broad systemic and background factors affecting Aboriginal people generally", which would include the understandable lack of trust of many Indigenous people towards the Justice system and other authorities in Canadian society.
106However, my generalized knowledge of the harm done to Indigenous lives and culture in no way replaces individualized, case-specific information which in the absence of a Gladue Report, must then be obtained elsewhere, whether from either counsel, as part of the pre-sentence report which meets Gladue standards or judicial enquiries.
The Defendant's Father's Testimony
107A poignant example of the consequences of cultural displacement and loss occurred during the testimony of the Defendant's father at the stay application hearing. I trust that Mr. Parent Sr. will understand I describe his testimony with a respect for his courage in sharing his life experiences with the Court.
108The Defendant's father was called up to the witness stand. When offered the option of testifying with an Eagle feather, he sounded surprised and said "I didn't know that was available" but ultimately chose to be sworn using the bible.
109I understand that the Oshawa Courthouse is in the process of obtaining signage notifying the public of the availability of a feather when testifying.
110Mr. Denis Parent commenced testifying in a strong, self-assured manner when questioned by Counsel. He testified that he told the Gladue caseworker what he wanted to tell her which I thought was an odd reaction (at least to myself as a non-Indigenous person) towards someone he knew was trying to help his son by bringing more insight as to the Defendant's life experiences to the attention of the Court. Neither Counsel questioned him on his motivation for what sounded like holding back co-operation with the caseworker.
111After both Counsel were finished questioning Mr. Parent Sr., I asked him what he meant by his statement regarding only telling what he wanted to. He stared at me for several moments, then his self-assuredness melted away and he started crying.
112The demeanor of Mr. Parent Sr. was reminiscent of the intense emotions demonstrated by witnesses to the Truth and Reconciliation Commission hearings, and like them, Mr. Parent Sr.'s testimony was powerful.
113I note that in Armitage, at paragraph 25 referring to the life experiences of that Defendant's grandmother who had been a Residential School survivor:
"she went but she didn't speak about it. She told us stories about what she wanted me to know. Silence is a pattern seen in many survivors".
The grandmother only telling what she wanted them to know echoes the comments of Mr. Parent Sr. and his comments about his mother sharing information about their heritage.
114While I appreciate that testifying from a witness stand can be an intense experience, I do not accept that my one question was so compelling as to elicit all the family history from Mr. Parent Sr. that it could not have been shared with the caseworker if she had only taken a little more time with the Parent family, thereby accessing the cousins genealogical research. Between Mr. Parent Sr.'s non-recollection of the caseworker's request to contact the cousin and the caseworker's assertion that she had, given the minimal effort by the caseworker in this matter, I accept the testimony of Mr. Parent.
115I also considered issuing a subpoena to the cousin to attend the hearing with his records to assist me in understanding the family history and dynamics but decided not to for two reasons.
116Firstly, the Defendant's matters had been in the Courts since 2017 and to find another continuation date would mean double booking a Trial Court in conjunction with trying to find a common date between Crown, Defence and the Court, or waiting approximately ten months for clear court dockets when new Trial dates were being set. In a post Jordan world, while proactively gathering Gladue information should never be considered "complacent", the impact on other cases in the system would be disruptive and inefficient.
117Secondly, the cousin was described as being in a rural setting with much of his time being in the bush so making service of a subpoena more challenging as well as my concern as to the practicalities for the cousin to attend so far away from home and the potential logistics of gaining access to paper records during any form of audio visual technology from a location closer to that individual's home.
118I do note that the cousin would have been a valuable resource to the Gladue Report contents. Even if the caseworker was not able to travel that distance to connect with the cousin, some contact should have been attempted, and the caseworker should have followed up with the Parent family. It would be speculative now to wonder if the defendant's mother moved after her husband's death to preserve the children from either the residential schools or the "sixties scoop" and did not talk about or pass on her culture to her children and grandchildren until much later in life out of fear of consequences to be regarded as "native". I do note that the Truth and Reconciliation Commission report confirmed that Canada's laws and associated legal principles fostered an atmosphere of secrecy and concealment of Indigenous heritage by the Indigenous.
Failures in the System
119Despite what I would have hoped were the best intentions for early notification of difficulties in preparing a report by the Aboriginal Legal Services, the caseworker apparently only advised on April 5, 2018 that the report would not be able to be completed, the day before the sentencing date of April 6 th , 2018. The reason for non-completion was that the Defendant had not contacted the caseworker nor had she been able to reach the Defendant through the contact information on the Court prepared application form, which turned out to be a mere request form. Worse, just like the response to my second Order for a Report, the response was not provided until the last moment, too late to affect any remedy.
120It was only upon the caseworker's attendance at Court for the Defendant's sentencing on April 6 th that she found out that Mr. Parent was now in custody and had been since before her first attempt to contact him. The caseworker later testified that she did not make any enquiries of either the correctional institutions nor with the Crown Office to determine if the Defendant had been re-incarcerated despite her knowledge of the disproportionate number of first nation people in custody, nor do I have any evidence of the initially self-represented Defendant being able to contact the caseworker while in custody while at the same time acknowledging the greater difficulties of doing so given the restrictions on the Defendant while in custody including lockdowns which have become notorious through the many applications in the Oshawa Court for enhanced sentencing credits.
121While the Crown criticizes Defence counsel for not notifying the Gladue caseworker of the Defendant being in custody upon being retained, neither did the Crown office. Both counsel have an equal responsibility to live up to the obligations imposed upon them by R. v. Gladue (R. v. Wells [2000] S.C.J. para 54) and the caselaw flowing from that seismic change in the obligations imposed upon both Crown and Defence counsel and ultimately on the shoulders of the seized Sentencing Justice towards Indigenous defendants.
122Specifically, whichever Crown was involved in the detention of the Defendant, if they had known the brief would have personally known of the outstanding Gladue Report Order. If the SCOPE was not noted up with the outstanding Gladue Report Order, then the noting up was deficient given that the Gladue obligations are also imposed upon the Crown.
123Again, I infer this to be an example of how hard pressed for time Crown Counsel at the initial plea was when the requirements of the Aboriginal Legal Services "request" form were not fulfilled by including information on the form causing further delay in the obtaining of a report.
124The requirements to obtain a Gladue Report as ordered by a Sentencing Judge are surely the obligations of either or both the Ministries of the Attorney General or Solicitor General. At the same time, when the Judicial Order for a report is not complied with, it is the obligation to the Sentencing Justice to follow up with Counsel. In this case, I too have learned more about the practical logistics of my Order being fulfilled resulting in a change in how I proceed with obtaining Gladue information. I now specify that I am ordering a Gladue Report and that it is not a request. I further expect to be notified well in advance of a sentencing date if anything less than a full report is being prepared in order to make other arrangements.
125On April 6 th , now represented by Counsel, the Defendant renewed his request for a Gladue Report. For the first time I was advised that the caseworker in any event, and without prior notice to this Court, was refusing to prepare a Gladue Report as I had previously ordered and was only intending to prepare something called a Gladue Letter. Instead, I ordered for the second time a Gladue Report, now returnable May 26 th , 2018. The Defendant consented knowing it would mean the continuation of his incarceration in order to obtain the report. The caseworker oddly continued to describe my Order as a request.
126I note that the first face to face meeting between the caseworker and the Defendant was on May 28th at the same jail he had been in since January, the day before Court and after the caseworker had prepared a letter in conjunction with her manager in which she explained she would not be able to prepare a Report as she could "not address how being an aboriginal person has affected his life circumstances". I fail to see how she could possibly address a single Gladue issue by a five- or ten-minute meeting with the Defendant in the evening of May 28 th , just hours before the sentencing date in court on the 29th.
127In my view, the sentencing could not proceed without compliance with the Criminal Code obligation to consider as a factor the Defendant's aboriginal heritage when the initial caseworker meeting with the Defendant was at the jail the day before sentencing after having already deciding she could not prepare the report.
128I am concerned that Gladue Reports prepared by the Aboriginal Legal Services and perhaps other report preparation services do not prepare reports unless substantial jail is at risk, thereby inferring Defendants who have already accumulated a record (and as such potentially diminishing the value of a report in assessing a just sentence) due to funding limitations.
129In any event I would have thought the more important point of intervention by way of such a report would be when someone first enters the criminal justice system and in that manner become the vehicle to prevent recidivism as opposed to attempting to explain the recidivism.
130I also note that the Aboriginal Legal Services' Gladue Report request form has contact information for Mr. Rudin which is a Legal Aid Ontario email address, from which I infer the funding source for these reports, despite the reports being a state obligation as opposed to a funding source shared with criminal Defendants and family court litigants together with other legal clinics.
131In R. v. Knockwood, [2011] O.J. No. 3814, here with a different cite, I again note that Hill, J, observed when advised of the Quebec practice of not providing Gladue reports, that:
"5. Section 720 of the Code provides a "court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed".
6 A time period approaching three months from the date of conviction for the completion of a Pre-Sentence Report is well beyond the usual 6 to 8-week range frequently accommodated in the busy courts in Brampton. The court's direction of August 10 was a Court order in a federal proceeding, not a request subject to the idiosyncratic response of a particular provincial probation service. If necessary, the court shall take whatever further coercive and/or punitive measures necessary to enforce its order".
132While my Court may lack the entirety of a Federal Court's powers, it is not without the power to govern its own procedures when its orders are not complied with.
Pre-Sentence Custody and Sentencing Considerations
133Mr. Parent was out of custody when he first pled guilty before me while self-represented. He then chose to commit further offences which resulted in his accumulation of 89 actual days of pre-sentence custody for the equivalent of what Defence calculated was 133 days and I would have calculated at 135 days, depending on whether one should round up or down. During that incarceration, the Central East Correctional Centre report previously filed though only up to May 24 th , 2018, confirmed 24 days of lockdowns amounting to 186.75 hours of lock downs during which there would be restrictions on yard access for fresh air, the dayroom, phones, showers and visitors, the vast majority of which were due to labour issues.
134The Crown position on sentencing was 30 days incarceration on the original two pled offences, with an additional period of custody for the two subsequent charges. When the Aboriginal Legal Services confirmed that the prerequisite to create a Gladue report was not met due to the Crown totality position being less than 90 days, the Crown advised her of its position to be one of 90 days on the second set of charges for a total of 120 days.
135While I am certainly frustrated by the Aboriginal Legal Services' pre-requisites for a Report, I do not note this as a criticism of Aboriginal Legal Services but infer it to be the reality of a closed envelope funding structure for Aboriginal Legal Services.
136Given the 135 equivalent days of pre-sentence custody, together with the circumstances at the jail, there would also have been the realistic prospect of a "Duncan" credit enhancing the pre-sentence custody reduction from sentence.
137In my view that latter credit would likely have increased the Defendant's pre-sentence custody credit, though to fix a specific figure without a complete evidentiary basis would be speculative, but the likelihood of additional days or weeks additional credit is quite high given the recent difficulties at Central East Correctional Centre and all of the other "Duncan" credit cases I have adjudicated.
138In a letter dated May 24, 2018, from the Central East Correctional Centre over the signature of Mr. Rick Camman, the author sets out the liberty deprivations of Mr. Parent's partial period time in custody. Mr. Parent remained in custody a further month past the date of this letter with what I understand from other sentencing cases that the jail conditions were not ameliorated in that time. The letter confirms 24 days of lockdowns the vast majority of which were institutional staffing issues. His time in custody included 4 days in segregation for reasons unclear to me in the letter.
139Mr. Parent would have been eligible for sentencing on a time served basis at the latest of May 1st and possibly as early as mid-April. In my view, his additional charges while on release would have made a conditional sentence unlikely absent Gladue input, however he did have a positive Electronic Supervision Report.
140Clearly, Mr. Parent could have chosen to waive the Gladue Report, proceed to sentencing and be subject solely to probationary terms. Many incarcerated Indigenous people would probably forgo the Gladue report just to get out of jail, just as many incarcerated of all backgrounds have attempted to plead guilty for a time served Crown position.
141Mr. Parent elected to prolong the in-custody status quo in order to be afforded his statutory right to a Gladue principled sentencing, as well as society's obligation to him to have his sentencing be considered in that light given the colonialist history towards Indigenous peoples together with the obligation on this Court to consider his indigenous heritage in assessing his moral blameworthiness. The denial of his right to a Gladue Report resulted in an excess of imprisonment than his offences warranted.
142Given Mr. Parent had excessive pre-sentence custody, should he not have applied for interim release pending sentencing? In this case, the Crown opposed his release resulting in a contested hearing before myself, only after which he was released on his own Recognizance at the end of a day of hearing evidence on the stay application on June 26, 2018. I originally thought that whatever discussions there may have been outside the courtroom between Crown and Defence regarding the Crown prerequisite of dropping the stay application in return for the Crown consent to the Defendant's release should never have been mentioned in court, but then realized that if such a pre-condition was stated, it would be an evocative example of the pressure on Indigenous people caught up in the justice system to forego their rights.
143Section 718.2 (e) sets out the principle of restraint which applies particularly to the circumstances of Aboriginal offenders and is a duty not only of the Sentencing Judge but in my view of the duty of Defence counsel and of the prosecuting Crown counsel in the positions they take.
144Mr. Parent was incarcerated for two or more months past any expected custodial sentence completion date due to the lack of a Gladue Report. How does this Court address the excess incarceration?
145In my view there is no other mechanism to reflect the Defendant's loss of liberty resulting from his election to receive a report to permit his right to a Gladue analysis of his blameworthiness than a stay of his charges.
Legal Test for Stay of Proceedings
146It is trite law now that there is a positive duty on a Judge to undertake a Gladue analysis absent an informed, voluntary waiver of that process.
147There is also a parallel duty on the Crown and Defence to provide Gladue information in the sentencing process, though it is unclear to me where the funding, time or expertise is to be found in either Crown or Defence without specialized training. Choice of counsel for Indigenous accused in Legal Aid cases are apparently restricted to those on a Gladue panel, though unclear to me as to the extent of training involved in order to be added to that panel: I have no evidentiary basis to know if it is online or in person, if for an hour, days, weeks or months or how such training is assessed before being counsel are added onto that panel.
148While never completed, the type of Report being prepared was not what I had ordered, being a full Gladue Report, but rather had been unilaterally changed into something called a Gladue Letter. That change was determined by a process unknown to me, as no one brought an application to vary my Order for a Gladue Report. I understand from subsequent testimony on the stay application that a Letter would be a less rigorous examination of the circumstances of Mr. Parent to assist me in the Gladue analysis. Given that neither form of Gladue Report was ever produced, I was deprived of the ability to compare. (In a later unrelated matter I was provided with a Gladue Letter which was substantially less fulsome, but it came with the caseworker/author whose hands-on support and participation on behalf of that Offender more than made up the difference, unlike the case at bar).
149I find that obtaining the necessary Gladue information was not impractical at all, it only required an empathetic caseworker alive to the reticence of some Aboriginal people to discuss their history and alive to the need to be more proactive than to just wait for third parties to do the investigative work. Complacency must be deterred in all justice participants including Gladue caseworkers, and I find her cumulative decisions to prepare a lesser document being a Letter, of deciding not to do even that before even meeting the Defendant for the very first time and even then for the barest amount of minutes to introduce each other amounts to a level of complacency unacceptable to the need to be efficient with judicial resources.
150A stay is reserved for the clearest cases. I find three separate and independent to each other breaches of Mr. Parent's Charter s. 7 right to life, liberty and security of the person. In my view, each breach independently justifies a stay of Mr. Parent's charges. While not included in the Defence Charter application, and as such not considered by me, I could see strong arguments being made for a breach of Mr. Parent's s. 9 Charter rights as well.
151Firstly, and most obviously, the delay in and ultimately non-preparation of a Gladue Report, or even a Letter, resulted in Mr. Parent being incarcerated longer than even the Crown position would have warranted, and even then the application to terminate the prejudice of incarceration beyond any justifiable time was opposed by the Crown. This Court does not have the ability to remit back to Mr. Parent the many days of lost liberty. A stay is the only remedy available to the Court to account for the loss of that liberty. A reduction of incarceration imposed would clearly not be a remedy. A reduction in probation duration would not give back the loss of liberty. In any event, the terms of the Recognizance from the date of his release to the date the charges were stayed already included public protection terms regarding the victims of his crimes, which overlapped some of the period that probation could have been imposed.
152Secondly, the fact that a Court Order, and for that matter a Court re-order was not only not complied with, it was altered from a full Report to a lesser Letter without application to the Court to vary its Order. This two-fold non-compliance independently resulted in a breach of Charter s. 7 in so far as it was non-compliant with a Court Order made to further the duty on the Court to comply with the direction of s. 718.2 (e) and its duty as set out in R. v. Gladue and the caselaw since. How the state complies with a judicial order for a Gladue Report is of less concern to the Court than the quality of its content which is respectful of Indigenous culture generally and especially respectful of the culture of the Offender's community and family history.
153As criticized in R. v. Macintyre-Syrette at para. 23, the author of that Gladue Report failed to be sufficiently proactive to reach out beyond the immediate family and set out sentencing options:
"if sentencing judges are to fulfill the requirement of the second part of Gladue, they must be given information that puts them in the position to do so".
154While the loss of liberty and the circumstances of the harsher conditions at the Central East Correctional Centre would not engage trial fairness issues, it would still impact the residual power of the Court to respond to a situation which undermines the integrity of the system. In my view, the failure to respond to a Court Order for a Gladue Report or to provide sufficient Gladue information to fulfill the Court's duty to apply Gladue principles is a fundamental undermining of trial fairness.
155In R. v. Shin, 2019 ONCJ 297, Felix, J, provided a succinct summary of the test involving a stay application commencing at paragraph 6 and following:
In R. v. Babos, 2014 SCC 16 [Babos], the Supreme Court of Canada set out three factors to consider at paragraph 32:
32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:
(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).
7 At paragraphs 35, 37, and 38, the Court explained the high standard required at the first stage of the analysis:
35 By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial -- even a fair one -- will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.
37 . . . First, while it is generally true that the residual category will be invoked as a result of state misconduct, this will not always be so. Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach a verdict stands as an example (see, e.g., R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657), as does using the criminal courts to collect a civil debt (see, e.g., R. v. Waugh (1985), 1985 CanLII 3557 (NS CA), 68 N.S.R. (2d) 247 (S.C. (A.D.))).
38 Second, in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. While I do not question the distinction between ongoing and past misconduct, it does not completely resolve the question of whether carrying on with a trial occasions further harm to the justice system. The court must still consider whether proceeding would lend judicial condonation to the impugned conduct.
156Like Justice Felix in Shin, I am satisfied that proceeding further in this prosecution would do harm to the integrity of the justice system.
157I also find that the circumstances of this prosecution and time in custody has created irreparable harm to Mr. Parent by the improper loss of his liberty. I find this notwithstanding that Mr. Parent was a self-confessed offender by way of his guilty pleas on those particular counts, but that even a self-acknowledged criminal does not thereby lose his or her dignity or Charter rights.
158I find that Mr. Parent was imprisoned well past any reasonable release date for full satisfaction of any custodial component of a sentence. The fundamental cause of that excessive imprisonment was awaiting the fulfillment of a judicial order for a Gladue Report which was never provided.
159I find that the assigned caseworker/author for a Gladue Report never engaged in the preparation of a Report pursuant to my Order, and in any event fell far short of the standard necessary to obtain the information needed for a Report or for that matter even a Letter. It would appear the caseworker intended to rely upon an in-custody offender and his family to do the necessary legwork and I find that the caseworker had already decided she could not or would not prepare a report or letter before even meeting with Mr. Parent for the first time. In my view that amounts to bad faith whatever other barriers to a report the caseworker may have felt impeded the preparation of any response to my Order.
160I find that the failure to ensure a system that provides for a Gladue Report to be prepared when ordered and even ignores the order for a Report as opposed to the intent to provide a letter, without application to the Court for its consent to vary or withdraw the Order amounts to state misconduct, similar to the comments in K.K. as ultimately it is the state which funds is responsible for, and arranges for the Report.
161I find that just as there is an obligation pursuant to Gladue principles that both Crown and Defence have an obligation to an Indigenous prisoner (or any prisoner for that matter), who remains in-custody past any length of time which is the anticipated sentence to comply with s. 718.2 (e). That obligation was breached by the Crown in not intervening when the Stay Application date was set well beyond the custodial sentence being sought, let alone placing a barrier to interim release. All concerns of the Crown could have been met by interim release terms which at a minimum could mirror anticipated probation terms.
162I find that individually each breach and certainly cumulatively as well, that each conduct amounted to breaches which offends "society sense of fair pay and decency" Babos, para, 35. Additionally, I find each conduct breaches the Indigenous rights of Mr. Parent as set out in the Criminal Code and the Gladue principles.
163Separately, I view these breaches as amounting to a failure on society's part in its obligations pursuant to Gladue principles.
164I strongly believe that reasonable and as importantly, informed, members of our society would be offended by the circumstances set out above especially given the history towards Indigenous peoples.
165As a result, this Court sees no other remedy than that of disassociating itself from the conduct in this matter. It would be wrong to lend judicial condonation to keeping prisoners in jail longer than a consequence requires, to leaving someone imprisoned in the circumstances of what was occurring at Central East Correctional Centre, to permit the disregard of Court Orders and to frustrate the Court's Gladue obligations amount to a unique record which surpasses the high requirements mandated by Babos.
166Similarly, in considering the Second Stage set out in Babos, I find here significant prejudice to the integrity of the justice system and that in the unique circumstances of this case no lesser remedy than a stay of charges would adequately dissociate the justice system. Certainly, a sentence reduction would not redress the breached liberty interests of Mr. Parent, and not address at all the prejudicial impact on the justice system.
167I find as well that to not stay the charges and proceed to sentencing in these unique circumstances would lend judicial condonation to the state misconduct in not providing the ordered Gladue Report, for essentially "overholding" Mr. Parent well past any period which would have been requested by the Crown on sentencing, as well as to the circumstances of imprisonment at Central East Correctional Centre.
168An analysis of balancing of the interests here need only take place if after the above analysis there is uncertainty as to the appropriateness of a stay. I have already found that the first two stages of the Babos analysis mandate a stay as the only sufficient remedy.
169However, even in assessing the Balancing step, I find that while Mr. Parent is a recidivist offender who has admitted his guilt as part of a plea resolution of all charges, his status as a member of our community's Indigenous peoples with a right to consideration of Gladue principles which has resulted in a loss of liberty and the frustration of Court Orders, the background here of the Offender and the impact on the justice system significantly impacts the balancing exercise.
170I acknowledge as well the societal interest in property offences and domestic violence, especially so when there is a breach of a non-association term to protect the victim of domestic violence (though I acknowledge for a variety of reasons not an uncommon breach). Criminal conduct actually admitted by an offender is deserving of consequences to address both general and specific deterrence and rehabilitation, the analysis of appropriate consequences and moral blameworthiness however having been frustrated by the unique circumstances of this case.
171I would also find in favour of a stay are the legitimate societal interests in living up to its Gladue obligations not just to Mr. Parent but to all Indigenous peoples in the justice system.
172In balancing all the competing interests here, if necessary, I find there is no lesser option than a stay which disassociates the justice system from the findings I have made and is the only option to preserve the integrity of the justice system.
Conclusion
173In keeping with the tenor of this judgment I note that while not all Indigenous people are parties to treaties, all Canadians are treaty people. It would be remiss of me not to close with an acknowledgment that the Oshawa Courthouse was built on lands traditionally occupied by the Mississaugas of Scugog Island First Nation, a branch of the greater Anishinaobeg Nation which includes Algonquin, Ojibway, Odawa and Pottawatomi.
Released: July 17, 2019
Signed: Justice G.R. Wakefield