WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 02 14 COURT FILE No.: Wiikwemkoong Unceded Territory 2211 998 20-112
BETWEEN:
HIS MAJESTY THE KING
— AND —
RICHARD TRUDEAU
Before: Justice J. Wolfe Heard on: December 8, 2023 Reasons for Judgment released on: February 14, 2024
Counsel: John Recoskie.................................................................................... counsel for the Crown Stephanie Farrell........................................... counsel for the accused Richard Trudeau
WOLFE J.:
I. Introduction
1Richard Trudeau, you have pleaded guilty to one count of sexual assault which occurred on March 15, 2020. Given the publication ban in place, I will refer to the victim by her initials, M.J., throughout my reasons for sentence. You entered your guilty plea on February 4, 2022. There was a change in counsel, through no fault of your own, and the pandemic restricted some proceedings in “satellite courts” of which Wiikwemkoong is classified by the Ontario Court of Justice, however most of the delay in getting to this sentencing is on account of the time it took to get a Gladue Report prepared. I can’t imagine that was easy for you or for M.J. and it does not detract from your early plea which I accept as a genuine desire to take responsibility for your actions.
II. Facts of the Offence
2The facts of the offence you admitted to are that on the night in question, you were at Brook Mishibinijima’s residence with other people, including M.J. You were all drinking and you were intoxicated. M.J. blacked out and woke up in one of the bedrooms. You were penetrating her vagina from behind. She wanted to scream but couldn’t. Her cousin came in and you left the room. Her cousin punched you before the complainant left with two others, including her mother. It was M.J.’s mother who contacted police. Given her state of intoxication, M.J. did not and could not consent. You and M.J. were not in a relationship but were known to each other, having both grown up in Wiikwemkoong Unceded Territory.
III. Evidence at the Sentencing Hearing
3At your sentencing hearing, I received further evidence.
4First, there was input from M.J. She attended and through the Crown, had her Victim Impact Statement read in open court. Her statement made it clear that the offence has had a profound impact on her, one she describes as life changing. M.J. has left her home community to avoid seeing you. This has created disruption and loss in her life.
5Her statement also indicated that she has been diagnosed with PTSD with symptoms of anxiety, depression, and disconnection from others. She will, in her words, “carry this with her for life”.
6In addition, 16 letters were made exhibits. These letters were written by your employer, family members and your partner. They speak to your good character, your resiliency in the face of barriers you face and their belief that to incarcerate you at this point would not only harm you, it would cause collateral consequences for others.
7Your employer, Rodney Corbiere stated that you have worked for him for 6 years performing several duties including operating equipment, labour, snowplowing and sanding roads. Some of this work ensures access to buildings which house essential services to the community. You are a reliable and hard worker, and your employment is secure. In fact, he believes given your trusted position in his business and the lack of other reliable workers, he would have to turn down jobs and experience a financial loss if you left.
8Your partner, Destinee Kaboni, attended your sentencing and provided a letter. In it, she states she has two young children from a previous relationship. Her husband (and their father) passed tragically and not too long ago. You have been in a relationship with her for two years and have taken on the role of parent to her children. You are described by her as a hard worker, a person with empathy and compassion, and someone very community and family minded. She describes you as a caring person, helping not just her and the children but others in the community as well. Her boys have come to love you as a father. She asks for consideration of the loss they would experience if they lost another father, this time to jail, in such a short period of time.
9Two reports were received as exhibits which gave me information about your personal circumstances, including a Gladue Report and a psychological report. The latter was admittedly dated, having been prepared when you were in elementary school. It provided relevant contextual information, nonetheless.
10Finally, you read in a statement you had prepared. You expressed sincere shame and sadness for what you have done. Significantly, you acknowledged the hardship and pain that this offence has caused her but also the other struggles M.J.’s family has been dealing with. You seek ways to right the wrong, to the extent that it is even possible. You stated with great pride that you are mindful of your responsibilities as a parent.
IV. Position of the Parties
11The Crown submitted that anything less than the maximum jail sentence allowable is unfit to address the principles of denunciation and deterrence, which he argued are the predominant considerations in this case. He also asked for a DNA order, which is mandatory for this offense, and for an order requiring you to be registered with SOIRA for 10 years.
12Through your lawyer, you agreed that denunciation and deterrence are principles that must be considered but argued rehabilitation, reparations and restraint are still relevant to the analysis, particularly because you are an Indigenous person with no record for violence of any kind. Further, you argued that the principles of denunciation and deterrence can be addressed with a lengthy Conditional Sentence Order (CSO) in the 18 month range, followed by 24 months probation. You submitted that you can and ought to provide financial support to M.J. to assist with any ongoing costs relating to her healing from the harm you caused. The ancillary orders were conceded to be appropriate in the circumstances.
13Both provided caselaw to support their positions, primarily trial level decisions.
14Since both you and the Crown agree that the maximum sentence of 18 months custody allowable given the Crown’s summary election is appropriate, and I agree, the issue to be decided is whether that sentence should be to be served in the community as a conditional sentence order, rather than in jail itself.
15For the reasons that follow, and in the unique circumstances of this matter, I find that it should.
V. Purpose and Principles of Sentencing
16The fundamental goal of any sentence is to protect society and to contribute to respect for the law so we can all live in communities that are just, peaceful and safe. Sanctions must address the objectives and principles set out in the Criminal Code including denouncing unlawful conduct and the harm it caused; deterring you and others from committed offences, separating people from the community where absolutely necessary, rehabilitating people who have offended, providing reparations for harm done to victims or the community and promoting a sense of responsibility and acknowledging the harm ones’ conduct has caused. This are set out in ss. 718 and 718.2.
17M.J. is Anishinaabe kwe. The Criminal Code was recently amended to include a section that requires judges consider Indigenous women’s increased vulnerability for violence. Section 718.04 requires that in such circumstances, a court give primary consideration to the objectives of denunciation and deterrence. The section was added to the Criminal Code to address the disproportionate victimization of Indigenous women in Canada, partially in response to the work of the National Inquiry into Missing and Murdered Indigenous Women and Girls which provided context for understanding why this is.
18The Inquiry specifically noted that colonial and patriarchal policies displaced Indigenous women from their traditional roles in communities and governance, diminished their status in society, created intergenerational trauma and marginalization in the form of poverty, insecure housing or homelessness and barriers to education, employment, health care and cultural support. This left Indigenous women vulnerable to violence. Further, the Inquiry found that Indigenous victims experience discrimination from the systems meant to support them including police, healthcare providers, and/or the courts.
19As the Supreme Court in R. v. Barton, 2019 SCC 33, [2019] 2 SCR 579 pointed out:
… Indigenous persons have suffered a long history of colonialism, the effects of which continue to be felt. There is no denying that Indigenous people — and in particular Indigenous women, girls, and sex workers — have endured serious injustices, including high rates of sexual violence against women: at para 198.
20I am required to give effect to s.718.04 to ameliorate the crisis of confidence Indigenous women and communities feel about the criminal justice system in addition to the other principles and objectives I must consider. This includes consideration of relevant aggravating and mitigating circumstances, some of which are codified such as the requirement that evidence that the offence had a significant impact on the victim, as it did here, which shall be deemed to be an aggravating circumstance.
21The sentence should also address the principle of parity, set out in s.718.2(b). Parity is about treating similar offenders who commit similar offences in similar circumstances in a similar way: R. v. Friesen, 2020 SCC 9, [2020] 1 SCR 424, at para 31. Judges often refer to existing cases, such as those provided to the court in this case, to assist in determining what the range of sentence is. That said, in R. v. Lacasse, 2015 SCC 64 the Supreme Court held at para 57:
Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case:
Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the “range”, as it were, must be expanded. The fundamental point is that a “range” is not a straitjacket to the exercise of discretion of a sentencing judge (citing R. v. Keepness, 2010 SKCA 69 at para. 24).
22In other words, ranges help judges get a picture of what other courts have done, however a deviation from a sentencing range, where the facts bare differences, is not synonymous with an error of law or an error in principle: Lacasse at para. 60.
23Further, as the Supreme Court noted in R. v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 at para. 78, “similarity is sometimes an elusory concept” since high unemployment, substance abuse, loneliness/isolation look very different in First Nations communities than in urban centres and are the result of a very different history of colonization as compared to non-Indigenous people. At para. 79 the Court went on to say:
To the extent that Gladue will lead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to the sentencing process. Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e).
24And, citing Professor Quigley, the Court noted:
Uniformity hides inequity, impedes innovation and locks the system into its mindset of jail. It also prevents us from re-evaluating the value of our aims of sentencing and their efficacy.
It is true that on the surface imposing the same penalty for the nearly identical offence is only fair. That might be closer to the truth in a society that is more equitable, more homogenous and more cohesive than ours. But in an ethnically and culturally diverse society, there is a differential impact from the same treatment. Indeed, that has been recognized in the jurisprudence on equality rights under the Charter. Thus, there is a constitutional imperative to avoiding excessive concern about sentence disparity.
25The Court went on to say on this issue, “(t)here is no sense comparing the sentence that a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, because there is only one offender standing before the court”: Ipeelee at para 86.
26This leads me to another relevant sentencing principle that I am obliged to not only apply but give “real force” to: R. v. Gladue, [1999] 1 SCR 688 at para. 34. This, of course, is s.718.2(e) which requires sentencing judges consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community for all offenders but with particular attention to the circumstances of Indigenous people who have offended. This is in addition to the related s.718.2(d) which states that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”.
27Section 718.2(e) has come to be known as the Gladue principles. Gladue was a sentence appeal, but also an important case about statutory interpretation. In Gladue, the Supreme Court found that the section was remedial and gave direction for applying remedial legislation in our decisions. Gladue emphasised that Parliament’s intention matters.
28The Court held that in enacting s.718.2(e), Parliament was responding to the consistent findings of multiple comprehensive federal commissions on the relationship between Indigenous peoples and the justice system, including the Aboriginal Justice Inquiry and the Royal Commission on Aboriginal Peoples (RCAP). This included findings that within the criminal justice system, there exists rampant discrimination and a failure to consider very real differences in experience and worldviews. The result is a failure of the criminal justice system to meet the needs of Indigenous people. In fact, the Court affirmed the findings of RCAP at para 62:
The Canadian criminal justice system has failed the Aboriginal peoples of Canada – First Nations, Inuit and Métis people, on‑reserve and off‑reserve, urban and rural – in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non‑Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice (emphasis added).
29The Court went on to explain that by remedial, it is meant to remedy or fix the system and its approaches to justice when it comes to serving Indigenous people. In fact, the Supreme Court has found multiple times that the criminal justice system discriminates against Indigenous people, and to have failed to provide meaningful justice to people who have been victimized, accused of harm or caused harm: see R. v. Williams, [1998] 1 SCR 1128, at para 28, Gladue at para 65, Ipeelee at paras 59-67, Barton at para. 199, R. v. Sharma, 2022 SCC 39 at para. 114, Ewert v Canada, 2018 SCC 30, [2018] 2 SCR 165, at para. 57.
30The section requires that judges recognize the ugly parts of Canada’s origin story, including the multigenerational harms that colonization has created, so that principles of substantive equality are engaged to understand the context of the matters that come before the courts, citing para. 39 of the Manitoba Court of Appeal’s decision in R. v. Vermette, 2001 MBCA 64, 156 Man. R. (2d) 120, at para. 71:
The section does not mandate better treatment for aboriginal offenders than non-aboriginal offenders. It is simply a recognition that the sentence must be individualized and that there are serious social problems with respect to aboriginals that require more creative and innovative solutions. This is not reverse discrimination. It is an acknowledgment that to achieve real equality, sometimes different people must be treated differently.
31A lens of substantive equality is required when sentencing Indigenous people who have offended to acknowledge, as the Supreme Court did in Sharma, “(t)he overrepresentation of Indigenous people in Canada’s prisons is a present-day product of this country’s colonial past” at para. 114.
32The Supreme Court has also held that the section requires judges be mindful about what we tell ourselves about jail and its effectiveness when sentencing Indigenous people. At para 57 of Gladue, the Court found:
Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. Overincarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate. The 1996 sentencing reforms embodied in Part XXIII, and s.718.2(e) in particular, must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions.
The Court explained the reason incarceration has been ineffective in this regard is because “as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be “rehabilitated” thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions”: at para. 68.
33Section 718.2(e) was thus enacted as an expression of restraint: Gladue, at para. 41. Jail is to be a last resort, and we are to stop defaulting to it: Gladue, at para 36. Further, in many instances, more restorative approaches are warranted “because the prevention of crime as well as individual and social healing cannot occur through other means”: Gladue, at para. 69. I find that in this case, jail would do little to promote those objectives whereas a CSO admonishes the harm you caused and separates you from the community while assisting in your rehabilitation, including the ongoing fiduciary responsibility to M.J.’s healing.
34It is worth commenting here that when Gladue was decided, Indigenous people made up roughly 3% of the population of Canada but 12% of all federal inmates: at para 58. By 2005, it had increased to 17%: Ipeelee at para 62. This overrepresentation has now increased to 33%: see Office of the Correctional Investigator Annual Report 2022-2023. This was a crisis then, and one that is getting significantly worse as incarceration rates are decreasing for the general population but increasing for Indigenous and Racialized persons exacerbating the disproportionate representation. In other words, sentencing judges may be sending less people to jail, but when we do, they are much more likely to be Black and Indigenous.
35That said, s.718.2(e) is not about artificially reducing incarceration rates but rather is a direction to sentencing judges to “abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community”: Ipeelee, at para 74.
36The Supreme Court went on to say that communities are made safer by imposing sentences that effectively deter criminality and rehabilitate offenders, and that given existing sentencing practices often do not further these objectives, new approaches are required. Citing Professors Jonathan Rudin and Kent Roach the Court asked,
“[if an innovative] sentence can serve to actually assist a person in taking responsibility for his or her actions and lead to a reduction in the probability of subsequent re-offending, why should such a sentence be precluded just because other people who commit the same offence go to jail?” (J. Rudin and K. Roach, “Broken Promises: A Response to Stenning and Roberts’ ‘Empty Promises’” (2002), 65 Sask. L. Rev. 3, at p. 20).
37Unfortunately, this is often not explored. The Supreme Court in Ipeelee found at para. 84 that this was on account of an erroneous interpretation of the direction provided in Gladue:
The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences. As Professor Roach has indicated, “appellate courts have attended disproportionately to just a few paragraphs in these two Supreme Court judgments — paragraphs that discuss the relevance of Gladue in serious cases and compare the sentencing of Aboriginal and non-Aboriginal offenders” (K. Roach, “One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal” (2009), 54 Crim. L.Q. 470, at p. 472). The passage in Gladue that has received this unwarranted emphasis is the observation that “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing” (para. 79; see also Wells, at paras. 42-44). Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.)).
38There is absolutely no question that a sexual assault of this nature is inherently a violent and serious offence. However, in keeping with the direction of the Supreme Court in Ipeelee, emphasis on “seriousness” at the expense of consideration of the other principles outlined in the Criminal Code and in Gladue deprives s.718.2(e) of its remedial power and encourages the defaulting to jail that Parliament sought to discourage.
39I note, in the context of sexual offences, the Supreme Court has recently held the following:
…where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, [1999] 1 S.C.R. 688, and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexual violence against children (see Ipeelee, at paras. 84-86). The systemic and background factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73). Similarly, a different or alternative sanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74): Friesen at para. 92.
40While this offence did not involve a child victim, as was the case in Friesen, the comments are instructive in this case given if this specific consideration is required for sentences that involve child victims, also codified as requiring emphasis on denunciation and deterrence given their known vulnerability, it follows that this would be the case for cases of sexual violence involving adult victims. In any event, the direction in Ipeelee about the Gladue principles having application in all sentencing proceedings involving Indigenous persons cited above is clear.
41In this case, assessing whether a different or alternative sanction might be more effective in achieving the sentencing objectives mindful of the needs of this community expressed in part by the recommendations contained in the Gladue Report, I agree with both counsel that a probation order alone would clearly be insufficient to address the gravity of the offence. While some offences and offenders are not eligible for a CSO under the Criminal Code, it is allowable in this case.
42Section 742.1 states that if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, and only if the statutory requirements are met. In this case the offence is not punishable by a minimum term of imprisonment or specifically prohibited. This means Parliament has given courts discretion in cases of sexual assault to impose a CSO where the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, which includes 718.2(e) and the Supreme Court’s direction in Gladue.
43In considering “(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”, I find a CSO to be appropriate for the following reasons:
44First, both you and M.J. are Anishinaabe from Wiikwemkoong Unceded Territory.
45Wiikwemkoong Unceded Territory is a vibrant, beautiful Nation. It is also one which has been through the traumas of colonization including erosion of traditional economies, displacement and loss of land, loss of language, ceremony and law, violent and coercive policies of assimilation including the theft of children from their families. These children were placed in English, church-run institutions that starved, beat and shamed Indigenous children in an effort to create a cohort of available labourers. Your Gladue Report outlines how at the school local to Wiikwemkoong Unceded Territory, children were forced to do manual labour, from moving heavy rock to working in fields to cutting down trees for firewood to cooking to doing the laundry for the entire school. This was necessary in order to keep the schools going and at minimal cost to the state. Children were malnourished, became ill and sometimes died only to be buried in nameless graves on the property rather than returned to their family. Many of the deaths would have been preventable but for the Department of Indian Affairs not approving children’s transfer to hospitals. All of this was based in ideologies of white superiority over Indigenous people, and the aftermath is still being seen in the generations that have since followed: see also The Final Report of the Truth and Reconciliation Commission.
46Your family is no exception. Your parents were in Day School and grandparents forced to go to Residential School. You are the first generation not to experience this and they have tried to shield you from what they experienced there as best they could. That said, you personally have experienced hateful, anti-Indigenous racism first-hand, as outlined in your Gladue Report. You have also grown up in a community that struggles daily with poverty, lack of resources to manage the collateral health issues caused by these state actions including serious mental health and addictions. This marginalization has made citizens of Wiikwemkoong vulnerable to exploitation and there has been a dramatic increase in violent crime brought about by the influx of drugs from southern Ontario.
47I don’t know M.J.’s background but in reconciling 718.2(e) and 718.04, I acknowledge that no families in Wiikwemkoong Unceded Territory were left untouched by this colonial history. She was inherently more vulnerable. I note that this history sadly also includes a crisis of suicide following the exposure to predatorial member of the clergy who was stationed in Wiikwemkoong, as well as the loss and disruption caused by child welfare systems and the Sixties Scoop.
48Having said that, the community response has been to revitalize and build on traditional knowledge – the Gladue Court having panels of Elders is an example of this. Many resources are dedicated to supporting community members who have caused harm to move forward in their healing journey through their Justice Program initiatives consistent with “(their) original Anishinaabe philosophy and belief system”. In other words, this community-oriented worldview, so apparent in your comments at the sentencing hearing, as well as the comments made about you through the many letters of support presented as evidence at your sentencing, is unique compared to an urban setting where people have anonymity and individualism reigns.
49Your apology, made directly to the victim, particularly after she was made to hear the facts of the offence recited in open court which clearly caused her anguish was very sincere. It revealed a worldview centered on community in how you expressed concern and apologized to her family given other stresses and trauma they are going through.
50Significantly, you submitted that you ought to, can and will pay for any ongoing therapy M.J. may require. This demonstrates to me that you acknowledge the harm is not over, just because the court proceedings, or one day your sentence, will be. You accept that you must do what is within your control to help her to move forward with her life in a healthy way so she can feel the joy and happiness that this awful night in March of 2020 took from her. It is something you want to do. This speaks to the principle of making reparations as well as promoting a sense of responsibility and acknowledgment of the harm done set out in ss.718(e) and (f).
51In Gladue, the Supreme Court observed that the addition of these principles of sentencing to the Criminal Code at the same time as the inclusion of 718.2(d) and (e) which speak to restraint, along with CSOs was important. The Court held at para 43:
Clearly, s. 718 is, in part, a restatement of the basic sentencing aims, which are listed in paras. (a) through (d). What are new, though, are paras. (e) and (f), which along with para. (d) focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras. (d), (e), and (f) is briefly discussed below, but as a general matter restorative justice involves some form of restitution and reintegration into the community. The need for offenders to take responsibility for their actions is central to the sentencing process: D. Kwochka, “Aboriginal Injustice: Making Room for a Restorative Paradigm” (1996), 60 Sask. L. Rev. 153, at p. 165. Restorative sentencing goals do not usually correlate with the use of prison as a sanction. In our view, Parliament’s choice to include (e) and (f) alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders. The principle of restraint expressed in s. 718.2(e) will necessarily be informed by this re‑orientation.
52In this case, I find that these principles are therefore also at play and I consider your acceptance of guilt through a plea at an early stage, the sincerity of your apology and desire to do what is necessary to assist M.J. as she moves on in her own healing journey, all relevant to my determination that the principles set out in 718 to 718.2 are being addressed.
53Your plea is considered a mitigating circumstance in that it saved M.J. from having to testify which is, more often than not, a traumatic experience for victims of violence. It was and is an acceptance of responsibility, and a demonstration of the remorse you feel for the harm you acknowledged you caused her. I hope that will give M.J. some comfort that you are making no attempt to minimize your level of responsibility.
54They are also other circumstances which mitigate some of your moral culpability in addition to those factors related to your experience as an Indigenous person in Canada. You have no record or history of violence. This appears to have been an isolated act, albeit one that came at M.J.’s great expense, and brought about because of your overconsumption of alcohol. You have completely refrained from the consumption of alcohol since the offence. You are committed to sobriety both because you are shocked that under the influence of alcohol, you could do something so harmful and out of character, but also because you want to set a good example of mino biimaadzewin for the children you are now raising.
55In addition, and very relevant to the issue of determining if there are features that make this sentencing distinguishable from the caselaw provided, is the fact of your serious cognitive disability. In Friesen, the Supreme Court held that even in cases of sexual violence against children, again, where moral blameworthiness is generally increased given the known vulnerability of children, relevant factors that may reduce an offender’s moral culpability should not be disregarded: at para 91. The Court specifically noted that offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability, citing R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 64; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269, at para. 180). I find that this is the case here.
56Through your Gladue and psychological reports, I learned that you were bullied at school because of the severity of your intellectual disability. The psychological report is dated, however it provided insight into the extent of your disability. It diagnosed you as being in the 1st percentile intellectually in comparison to your peers. Put another way, you were deemed to have “low to very low” cognitive skills, verbal reasoning, and ability to recall. You were in the 4th percentile for nonverbal reasoning such as spatial reasoning, still “well below average”. You have ongoing difficulties with reading and writing. It is a significant disability.
57I don’t say this to embarrass you, but it was very clear when you read in your statement at the sentencing hearing that you struggle with communication and comprehension. The author of your psychological report believed that given the extent of your disability, you were very likely to require social assistance to support you through your life. In fact, you have managed to be gainfully employed doing manual labour and are said to be a very good and reliable worker by your current employer.
58I find your cognitive limitations to be mitigating in terms of your moral culpability in line with Friesen. As a result, your personal circumstances are distinguishable from those in the cases provided to me by the Crown.
59Further, while I acknowledge and appreciate greatly that the Crown did attempt to find cases involving Indigenous offenders, the cases were also distinguishable given the absence of additional aggravating factors such as:
- the matter having resolved through a guilty plea rather than following a trial, and in some instances, a preliminary hearing and a trial;
- the Crown in this case proceeded summarily;
- there was no additional violence such as choking or forcible confinement;
- no weapon was used in the commission of the offence;
- you have no record for violence and in fact only one, very dated entry for a drink drive offence;
- you were not on a probation or other court order at the time; and
- this was not in the context of an intimate partner relationship nor were you in a position of trust.
60While these differences again highlight the individualized nature of sentencing, I want to be clear, there are aggravating factors in this case. This was non-consensual intercourse, likely unprotected given the presence of semen found when the SAE kit was done. I have no evidence to suggest otherwise, nor was this evidence challenged. Denunciation and deterrence are still critical objectives.
61That said, as the Supreme Court has made clear in R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61, like the other amendments made in the 1996 sentencing reforms considered in Gladue, CSOs were introduced to remedy the tolerance the criminal justice system had come to have with overincarceration: at paras. 19 - 20. CSOs can and do provide significant denunciation and deterrence: at para. 22. Where a combination of both punitive and restorative objectives may be achieved, as here, a lengthy CSO is a fit and proportionate sentence.
62Having found as sincere your acknowledgment of the harm done to M.J. and the community and your corresponding desire to right the wrong includes the offer to pay for M.J.’s therapy, I am mindful this could not happen if you were incarcerated in a detention centre. You would lose your employment and potentially your housing. Your family would suffer. You would be released with nothing but the experience of jail which, given your worldviews as an Anishinaabe man from Wiikwemkoong Unceded Territory and your significant cognitive disability, would likely be experienced in a disproportionately harsh way that would severely impede your rehabilitation: see Gladue at para. 68; Ewert at para. 57. The community is made safer by keeping you on the healthy path you are currently on.
63Second, a CSO is distinguishable from a probation order in that it addresses both punitive and rehabilitative aspects: Proulx at paras. 23 – 39. Part of the punitive aspect is the significant restriction on movement and liberty and potentially very severe penalty for a breach: at paras. 36 - 38. This sentence is not an enhanced probation, but rather a jail sentence with strict conditions as intended by Parliament to ensure public safety but mitigate the justice system’s overreliance on incarceration. Wiikwemkoong Unceded Territory is a small community. Your movement outside this order would be easily monitored.
64Finally, the Court in Proulx held that judges must consider the risk posed by specific offenders, not the broader risk of whether the imposition of a CSO would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law: at paras. 66 – 68.
65In this case, and in terms of whether the service of your sentence in the community would endanger the safety of the community, I note that you have been on a release order for four years, without any suggestion of a breach. There are no ongoing addiction or mental health concerns, and you are stably housed and employed. On the evidence before me at this sentencing, I find you to pose a very low risk to breach or reoffend.
66This court, in this one judge jurisdiction, hears time and again from the Elders and Knowledge Keepers that they hurt for the community, they resent the outsiders who bring illicit substances into the community, and they believe that what is necessary for Wiikwemkoong to be safe and healthy is that its citizens be given the opportunity to heal from colonial trauma and move away from a lifestyle that encourages the hopelessness and chaos of addiction. You are doing just that. I find that while in some cases jail is necessary, in the unique circumstances of this case, sending you to jail would not be consistent with the efforts you and the community are making to help their citizens heal so the next generations can know themselves, their teachings, language, ceremony and roles as Anishinaabeg. An assessment of public safety that was caused by the fallout of a concerted effort to assimilate an entire Nation of people requires that courts pay some deference to the stated needs of that community. This is the daily work of reconciliation our courts must do to remedy decades of sentences that ignored Indigenous peoples’ unique history and differences in worldviews that our Supreme Court has acknowledged.
67On this point, I note that as recently as last Friday, the Supreme Court has reminded us of the need to not let the Truth and Reconciliation Commission’s Calls to Action fall by the wayside, holding:
…reconciliation is a long‑term project. It will not be accomplished in a single sacred moment, but rather through a continuous transformation of relationships and a braiding together of distinct legal traditions and sources of power that exist (see J. Leclair, “Zeus, Metis and Athena: The Path Towards the Constitutional Recognition of Full‑Blown Indigenous Legal Orders” (2023), 27:2 Rev. Const. Stud. 77; cf. H. Cyr, Canadian Federalism and Treaty Powers: Organic Constitutionalism at Work (2009), at pp. 37‑38; see also J. Borrows, “Revitalizing Canada’s Indigenous Constitution: Two Challenges”, in UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws (2017), 20): Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5.
68While it is not always easy to do this work, nor are resources and capacity the same in every jurisdiction, I find that mindful of all the principles I must consider on the evidence I have before me, an 18 month CSO is the sanction most proportionate to reflect the gravity or seriousness of the offence and your particular degree of responsibility: see s.718.1. It must and will contain significant constraints on your liberties to make it clear this is a jail sentence but allow you to continue to provide for your family and community and make meaningful reparations to M.J., to the extent she is prepared to accept same.
VI. Sentence
69You are sentenced to 18 months of custody to be served in the community as a CSO with conditions. You will:
- Keep the peace and be of good behaviour.
- Appear before the court when required to do so by the court.
- Report as the Court directs in person to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor.
- Remain in Ontario unless you have prior written permission from the Court or the supervisor to leave the province.
- Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.
You will report immediately to a supervisor and after that, at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision.
You will co-operate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your supervisor on request.
For the entire period, you are confined to your residence or property of your residence with the following exceptions:
- required court attendances;
- medical emergencies involving you or a member of your immediate family;
- while travelling to, from or while at employment;
- while travelling to, from or while at any assessment, counselling or treatment program as directed by your supervisor;
- with your supervisor’s prior written permission, which must be carried on your person;
- to comply with any condition of this order; and finally
- on Saturdays between 1:00 – 4:00 pm to acquire the necessities of life.
70You are not to have any contact or communication, directly or indirectly with M.J. except:
- for required court attendances; and
- through your supervisor for the purposes of reimbursing or paying for M.J.’s therapeutic services.
71You will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your supervisor and complete them to the satisfaction of your supervisor.
72Finally, in keeping with the focus on community values, you will perform 50 hours of community service at a rate determined by your supervisor.
73This will be followed by 24 months probation with conditions that you report immediately upon the completion of your CSO or as directed by your CSO supervisor and thereafter as directed in terms of time, place and manner. You will attend and actively participate in any and all assessment, counselling and treatment as recommended, signing releases so probation can monitor your attendance and completion. You will perform 100 hours of community service at a rate determined by your probation officer.
74Finally you are not to contact or communicate with M.J. or attend anywhere M.J. lives, works or is known by you to be, again with the exception through probation services for purposes for reimbursing or paying for therapeutic services for M.J.
75It occurs to me that by the time your sentence is complete, you will have been on court orders for seven and a half years with protective conditions for the victim, M.J. Your compliance to date, and anticipated compliance going forward speaks to the need to give M.J. a sense of security that was taken from her when you offended in this way. I acknowledge how important this is to her and I wish M.J. success in her life and in healing.
76In addition, you are to provide a sample of your DNA to the Wikwemikong Tribal Police Service within seven days, and you are prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of three years from today with an exception for sustenance hunting which I acknowledge as an important cultural responsibility you have to provide for your family and community.
77Finally, you are required to comply with the reporting provisions of the SOIRA for a period of ten years.
Released: February 14, 2024 Signed: Justice J. Wolfe
