Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230213 DOCKET: C68373 & C67447

Paciocco, Sossin and Favreau JJ.A.

DOCKET: C68373

BETWEEN

His Majesty the King Respondent

and

Leopold Mercier Appellant

DOCKET: C67447

AND BETWEEN

His Majesty the King Respondent

and

Matthiew Mercier Appellant

Counsel: Myles Anevich, for the appellants Vanita Goela, for the respondent

Heard: January 27, 2023

On appeal from the sentences imposed on July 9, 2018 (C68373) and September 18, 2018 (C67447) by Justice Ann Alder of the Ontario Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1] On June 21, 2018, the appellant Leopold Mercier (“Leopold” or “Leo”) was convicted of trafficking methamphetamine and cocaine, possessing proceeds of crime, and trafficking a firearm, in connection with a commercial drug trafficking operation that the sentencing judge described as a “family business”. On July 9, 2018, he was sentenced to seven years in jail.

[2] On June 21, 2018, the appellant Matthiew Mercier (“Matthiew”), Leopold’s son, was convicted of trafficking methamphetamine and cocaine as well as possessing proceeds of crime, in connection with the same commercial drug trafficking operation. On September 18, 2018, he was also sentenced to seven years in jail.

[3] Both appellants appeal their sentence alone. They were each represented by counsel and each pleaded guilty to the offences. The sentences followed joint submissions by the Crown and defence counsel.

[4] Both appellants are Indigenous, but in each case, the sentencing judge did not have the benefit of a Gladue Report prepared pursuant to R. v. Gladue, [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. Both appellants had Reports drafted subsequent to sentencing, which they seek to introduce as fresh evidence in these appeals, with the consent of the Crown.

[5] Each appeal raises the question of whether the sentences remain fit in light of the Gladue Reports.

[6] For the reasons that follow, we grant leave to appeal the sentences and admit the fresh evidence, but dismiss the appeals.

ANALYSIS

(1) The fresh evidence motion

[7] The appellants move to admit the Gladue Reports for Leopold and Matthiew as fresh evidence.

[8] While the Crown consents to the motion, the appellants also must satisfy the legal standard for admitting fresh evidence. This well-settled four-part test was set out in Palmer v. The Queen, [1980] 1 S.C.R. 759:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief; and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[9] In our view, the Gladue Reports meet this threshold and should be admitted. We have no information on why this evidence was not obtained as part of the sentencing process, though it is clear the sentencing judge was not aware that either appellant was Indigenous. Gladue Reports are relevant in sentencing Indigenous offenders and may in every case bear on the determination of a fit sentence. In Ontario, the law requires that a Gladue analysis be performed in all cases involving Indigenous offenders: R. v. J.N., 2013 ONCA 251, 305 O.A.C. 175, at para. 41.

(2) The Gladue Reports

[10] The Gladue Report for Leopold discusses the abuse he experienced and witnessed as a child. The author observed that, “During his childhood and adolescence, Leo was exposed to domestic violence, abuse, inconsistent parenting, and frequent relocations between cities, foster homes, and the homes of relatives…Leo’s experience is also consistent with the impacts of Intergenerational Trauma”. While he struggled with addiction and was convicted of several crimes as a young adult, Leopold went nearly three decades without a conviction prior to the current offences.

[11] The Gladue Report also reveals that Leopold’s connection to his Indigenous heritage is tenuous. He stated that his family did not talk about this much when he was growing up. When he was asked what factors may have played a role in his family’s disconnection from their Indigenous heritage, he stated, “I figure my family in their time, they were trying to assimilate to the white people to be accepted.”

[12] The Gladue Report for Matthiew discusses the impact of having his father in prison when he was a child. While raised in a relatively stable home, he was expelled from high school and also had interactions with the criminal justice system from a young age. With respect to the drug trade, the Gladue Report states that Matthiew’s involvement was motivated by the money and lifestyle. The Report does not identify any connections between Matthiew and his Indigenous heritage.

(3) The fitness of the sentences

[13] Sentencing judges have broad discretion to impose a fit sentence, and their decisions will only be overturned for good reason: R. v. Friesen, 2020 SCC 9, at para. 25. Where a sentencing judge has committed no error of law or principle, an appellate court may not vary the sentence unless it is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.

[14] The appellants argue that where a Gladue Report was not before the sentencing judge and is admitted as fresh evidence on appeal, it is incumbent on this court to re-sentence the appellants with the benefit of a Gladue analysis. The Crown argues that the sentences remain fit even in light of the fresh evidence.

[15] Section 687(1) of the Criminal Code, R.S.C. 1985, c. C-46, sets out the powers of an appellate court on a sentence appeal:

Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

(b) dismiss the appeal.

[16] At first glance, the appellants’ argument is compelling. They argue, in short, that because the sentencing judge found a seven year sentence to be appropriate in the absence of the Gladue Reports, a shorter sentence should flow from considering how those Reports change the sentencing calculus. The appellants contend that a five year sentence would be appropriate for Leopold, as this falls at the low end of the range for similar drug offences, and a four year sentence would be appropriate for Matthiew, to take into account that this was his first offence.

[17] In light of the fresh evidence in these appeals, it is necessary for this court to consider what impact, if any, the Gladue Reports have on the fitness of the sentences imposed: see e.g., R. v. McNeil, 2020 ONCA 595, at paras. 26-31.

[18] Gladue and Ipeelee require trial judges to make two separate inquires when sentencing Indigenous offenders. First, whether systemic and background factors have affected the degree of responsibility of the offender, and second, whether different or alternate sanctions are appropriate to fulfil the principles of sentencing: Ipeelee, at paras. 72-74. In our view, the latter concern is less relevant on the facts of this case given that anything less than a penitentiary sentence of two years or more would be unfit in light of the seriousness of the offences, and a sentence in excess of two years imprisonment cannot be combined with restorative sentencing intiatives such as rehabilitative terms of probation. Therefore, the material issue before us relates to whether systemic and background factors have affected Leopold and Matthiew’s degree of responsibility for the offences they committed and the impact, if any, this should have their sentences.

[19] We note as well that an Indigenous offender does not bear the burden of establishing a direct causal link between these systemic and background factors and the commission of the offence, and courts are required to take judicial notice of the intergenerational trauma suffered in Indigenous communities: see e.g., R. v. Hotomani, 2020 BCCA 64, at para. 17. That link may manifest itself in more direct ways, as in the case of the very difficult and abusive upbringing experienced by Leopold, which reflects experiences consistent with the impacts of intergenerational trauma. It may also, however, manifest itself in indirect ways. Matthiew argued before us that he was deprived of any meaningful connection with his Indigenous community, and his childhood was marked by his father’s absence due to periodic incarceration, which is attributable, at least in part, to systemic and background factors linked to his father’s Indigeneity.

[20] As the appellants argue, there is more to Gladue sentencing principles than reductions in incarceration because of direct personal strife. One transgression that Gladue struggles to ameliorate is the continuing separation of Indigenous individuals from their communities, often contrary to conceptions of punishment in those communities. In Gladue, at para. 70, the Supreme Court stated:

Closely related to the background and systematic factors which have contributed to an excessive aboriginal incarceration rate are the different conceptions of appropriate sentencing procedures and sanctions held by aboriginal people. A significant problem experienced by aboriginal people who come in contact with the criminal justice system is that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by those offenders and their community. The aims of restorative justice as now expressed in para. (d), (e), and (f) of s. 718 of the Criminal Code apply to all offenders, and not only aboriginal offenders. However, most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition is extremely important to the analysis of s. 178.2(e).

[21] Recently, in R. v. Kehoe, 2023 BCCA 2, at paras. 56-57, the British Columbia Court of Appeal stressed that disconnection is one of the very harms associated with Canada’s colonial history and assimilationist policies that Gladue seeks to address. Therefore, in situations such as this one, we must consider whether and how the appellants’ disconnection played a role in them coming before the court, and whether this context affects the fitness of their sentences.

[22] In considering fitness, it is important to emphasize that these sentences mirrored joint submissions by the Crown and defence counsel. Because the sentencing judge was considering joint submissions, appropriately, she did not explore all of the considerations that led the parties to agree to their joint positions. It was open to the sentencing judge to infer that the proposed sentences already reflected a negotiated middle ground between the Crown and defence positions. She nonetheless reviewed the aggravating and mitigating factors and considered the fitness of the sentences in her reasons.

[23] The parties generally agree that the sentence range for commercial or mid-level trafficking cases involving methamphetamine is between approximately 5 and 12 years in jail. A range of 5 to 8 years in jail has been held to be an appropriate sentence for commercial trafficking of cocaine at the kilogram level, even for a first offender. Therefore, the sentence of seven years in these cases, which involved the trafficking of large quantities of cocaine and methamphetamine, should be understood as falling at the lower end of the applicable range. [1]

[24] The sentencing judge, based on the agreed statement of facts, referred to the conduct at issue as “organized drug trafficking for commercial purposes” involving approximately 300,000 methamphetamine pills, a quantity she described in sentencing Matthiew as “staggering”. She considered both aggravating and mitigating factors, including the guilty pleas, which she described as “extremely mitigating”.

[25] It is true that the joint submissions were not negotiated with the benefit of the Gladue Reports. It certainly may be that when a Gladue Report is admitted on appeal of a sentence reached through a joint submission, that sentence may be found to be unfit in light of the fresh evidence. However, in this case, we do not see the Gladue Reports as casting doubt on the fitness of the sentences imposed.

[26] The sentencing judge stated clearly that denunciation and deterrence were the most significant factors in the sentencing process for these crimes, stating:

Drug dealing at this level is a profitable business. The money to be made is substantial. Therefore, significant jail sentences are required to help elevate the risk individuals take when they get involved. The message has to be that the profits may be significant but so too will be the loss of liberty. This message is required to attempt to stop or reduce these type of offences…for everyone, and that is because of the devastating consequences of having these drugs on our streets.

[27] The Gladue Reports in this case do not ultimately displace these considerations. As Pepall J.A. explained in R. v. Fraser, 2016 ONCA 745, 33 C.R. (7th) 205, at para. 26:

Although the appellant’s Aboriginal background is relevant in determining the appropriate sentence, it is not determinative. Rather, it is one factor that must be considered in the context of the appellant’s individual circumstances, along with all of the other relevant factors: R. v. Gladue, [1999] 1 S.C.R. 688, at para. 88.

[28] In light of the mitigating and aggravating factors already considered by the sentencing judge and reflected in the joint submissions, and the resulting sentences at the lower end of the range, we do not see the sentence for either appellant as excessive or unfit.

[29] The joint submission also addresses the concern raised by Matthiew that as a first offender, parity dictates he should have received a shorter sentence than his father. While each appellant received the same global sentence, the reasoning for that sentence differed. For example, the sentencing judge confirmed that rehabilitation – which was partially attributable to his status as a first time offender – was a mitigating factor in her sentence for Matthiew, while advanced age was a relevant consideration in determining a fit sentence for Leopold.

[30] We see no error in the sentencing judge’s analysis of the relevant aggravating and mitigating factors for each appellant. The sentences are fit, even considering the fresh evidence.

DISPOSITION

[31] For these reasons, leave to appeal the sentences is granted and the fresh evidence is admitted, but the appeals are dismissed.

“David M. Paciocco J.A.”

“L. Sossin J.A.”

“L. Favreau J.A.”

Notes

[1] Additionally, the firearms conviction for Leopold carried a mandatory minimum sentence of at least three years, which was imposed consecutive with his sentence for the drug convictions, and factored into his global sentence of seven years.