Her Majesty the Queen v. Borde [Indexed as: R. v. Borde]

63 O.R. (3d) 417

[2003] O.J. No. 354

Docket No. C38189

Court of Appeal for Ontario

O'Connor A.C.J.O., Weiler and Rosenberg JJ.A.

February 10, 2003

Criminal law -- Appeals -- Fresh evidence on appeal -- Accused pleading guilty to violent offences involving use of handgun on two occasions -- On appeal from sentence accused seeking to introduce fresh evidence relating to systemic racism in Canada and overrepresentation of black Canadians in criminal justice system -- No evidence on point adduced at trial -- Fresh evidence not admissible as it could have affected result -- Systemic racism and background factors facing black Canadians might be taken into account in imposing sentence where they are shown to have played part in offence -- That principle will apply less forcefully as seriousness and violence of crime increases -- Crimes in this case so serious that systemic and background factors could not affect result.

Criminal law -- Sentence -- Principles -- Youthful accused receiving first adult custodial sentence of five years and two months' imprisonment in addition to credit of 31 months for pre-trial custody -- Nineteen-year-old accused having extensive youth court record including offences of violence and repeated breaches of court orders -- Two of series of offences involved use of loaded gun -- Accused having difficult background and some prospects for rehabilitation -- Accused arguing lengthy sentence violating "jump principle" as much longer than prior dispositions -- Given seriousness of offences "jump principle" not applicable and trial judge correct in holding that a penitentiary sentence appropriate -- Denunciation and general deterrence rarely sole factors in determining length of first penitentiary sentence -- First penitentiary sentence should be as short as possible while achieving relevant objectives -- Appeal against sentence allowed and sentence varied to four years and two months' imprisonment.

Criminal law -- Sentencing -- Principles -- Impact of systemic racism and overrepresentation of black Canadians in criminal justice system -- Nineteen-year-old accused pleading guilty to aggravated assault, possession of loaded restricted weapon, using firearm in commission of indictable offence and breach of recognizance -- Trial judge giving accused 31 months' credit for pre-trial custody and imposing total sentence of five years and two months imprisonment -- On appeal accused seeking to introduce fresh evidence relating to systemic racism in Canada and overrepresentation of black Canadians in criminal justice system -- Fresh evidence not admissible as it could have affected result -- Systemic racism and background factors facing black Canadians might be taken into account in imposing sentence where they are shown to have played part in offence -- That principle will apply less forcefully as seriousness and violence of crime increases -- Accused's crimes so serious that systemic and background factors could not affect result -- Accused's appeal allowed on basis that trial judge did not give proper consideration to accused's youth -- First penitentiary sentence should be as short as possible -- Sentence varied to four years and two months. [page418]

The accused, aged 18 at the time of the offences and 19 at the time of sentencing, pleaded guilty to aggravated assault, possession of a loaded restricted weapon, using a firearm in the commission of an indictable offence and three counts of breach of recognizance. He was on probation when he committed the offences and was in breach of an order that he not possess any firearms or ammunition. He had a substantial youth record which included crimes of violence. The trial judge gave the accused 31 months' credit for time spent in pre-trial custody under particularly barbaric conditions and sentenced him to a total of five years and two months' imprisonment. The accused appealed. He sought to introduce fresh evidence on appeal to inform the court about the impact of systemic and background factors on young black males, especially those growing up, like the accused, in the Regent Park community in Toronto. He filed a number of reports prepared by various groups concerning systemic racism in Canada and the over-representation of black offenders in the criminal justice system, including the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System.

Held, the appeal should be allowed.

The fresh evidence was not admissible on this appeal as its admission would not likely affect the result. The appellant's fundamental submission was that because of the similarity between the plight of aboriginal Canadians and black Canadians, the court should adopt a similar form of analysis for the purposes of sentencing. Further, he submitted that his background exhibited many of the same factors often found in the background of aboriginal offenders, including poverty, family dislocation, chaotic child rearing and alcoholism. Some similarities do exist, and systemic racism and background factors faced by black Canadians, where they are shown to have played a part in the offence, might be taken into account in imposing sentence. However, the evidence was not relevant in this case. In cases dealing with sentencing approaches to aboriginal offenders, the Supreme Court of Canada held that the more serious and violent the crime, the less likely that the sentence for an aboriginal offender will differ from the sentence imposed on any other offender. The accused committed a crime of great violence and used a loaded handgun on two separate occasions. The crimes were so serious that the systemic and background factors could not affect the length of the sentence.

The trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the accused's age and the fact that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. However, the trial judge did not err in determining that this case called for a penitentiary sentence notwithstanding the accused's youth. His very serious youth record, his failure to respond to other measures and his repeated violation of court orders indicated that specific deterrence would be an important objective. The string of offences, two involving use of a loaded handgun, required a lengthy sentence. These circumstances had to be balanced against the accused's age and his chaotic background as part of a dysfunctional family being raised in poverty by a mother who had few parenting skills and suffered from mental illness. There was also some reason for optimism about the accused's chances for rehabilitation. The sentence should be varied to four years and two months' imprisonment. [page419]

APPEAL by an accused from a sentence for aggravated assault and other offences.

R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, 171 D.L.R. (4th) 385, 238 N.R. 1, 133 C.C.C. (3d) 385, 23 C.R. (5th) 197; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, 182 D.L.R. (4th) 257, 250 N.R. 364, [2000] 3 W.W.R. 613, 141 C.C.C. (3d) 368, 30 C.R. (5th) 254, consd Other cases referred to R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, 191 D.L.R. (4th) 574, 260 N.R. 165, 148 C.C.C. (3d) 193, 36 C.R. (5th) 291; R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324, 84 C.C.C. (3d) 353, 24 C.R. (4th) 81 (C.A.) [Leave to appeal to S.C.C. refused (1994), 1994 19087 (SCC), 28 C.R. (4th) 403n, 175 N.R. 321n]; R. v. Roud and Roud (1981), 1981 3231 (ON CA), 58 C.C.C. (2d) 226 (Ont. C.A.) [Leave to appeal to S.C.C. refused (1981), 58 C.C.C. (2d) 226n]; R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, 161 N.S.R. (2d) 241, 151 D.L.R. (4th) 193, 218 N.R. 1, 477 A.P.R. 241, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1; R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, 56 B.C.L.R. (3d) 390, 159 D.L.R. (4th) 493, 226 N.R. 162, [1999] 4 W.W.R. 711, 52 C.R.R. (2d) 189, 124 C.C.C. (3d) 481, 15 C.R. (5th) 227; Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, (2002), 218 D.L.R. (4th) 577, 294 N.R. 1, 98 C.R.R. (2d) 1, 168 C.C.C. (3d) 449, 5 C.R. (6th) 203, [2002] S.C.J. No. 66 (Quicklaw) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 85(3), (4), 95(2)(a), 718.2(e) Treaties and conventions referred to International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 U.N.T.S. 195 (entered into force 4 January 1969) Authorities referred to Anti-Black Racism in Canada: A Report on the Canadian Government's Compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (Toronto: African Canadian Legal Clinic, 2002). Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen's Printer, 1995) Roberts, J.V., and A.N. Doob, "Race, Ethnicity, and Criminal Justice in Canada" in M. Tonry (ed.), Ethnicity, Crime and Immigration (Chicago: University of Chicago Press, 1997)

Laura Eplett, for respondent. David M. Tanovich, for appellant.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The appellant appeals from the sentence totalling five years and two months' imprisonment imposed by Brennan J. following the appellant's plea of guilty to a number of offences including possession of a loaded restricted weapon, aggravated assault and using a firearm in the commission of an indictable offence. The appellant submits that the sentence [page 420] should be reduced because of systemic and background factors. The appellant applies to admit fresh evidence to inform the court about the impact of those factors on young black males; especially those growing up, like the appellant, in the Regent Park community. This issue was not raised before the trial judge.

[2] I have reviewed the extensive material filed by counsel for the appellant on this appeal. Systemic racism and the background factors faced by black youths in Toronto are important matters and in another case I believe that they could affect the sentence. In this case, the crimes are so serious that the systemic and background factors could not affect the length of the sentence. Accordingly, I would dismiss the application to admit the fresh evidence.

[3] However, this appellant was only 18 when he committed these offences. In my view, the trial judge did not give proper consideration to the appellant's youth and that a first penitentiary sentence should be as short as possible. I would therefore reduce the sentence to four years and two months.

The facts of the offences

[4] The appellant was a resident of Regent Park. This is an area of subsidized housing near the downtown area of the City of Toronto. On May 18, 2000, the appellant was released on bail on a charge of assault while resisting arrest. A term of his release was that he not be in a certain geographical area that in effect banished him from the Regent Park area. On July 30, 2000, the appellant was in the Regent Park area when an acquaintance of the appellant shot another man. The appellant was charged with failing to comply with a recognizance as a result of this incident.

[5] Days later, on August 2, 2000, the appellant was again in the Regent Park community when he was confronted by a group of persons who believed he was associated with the July 30th shooting. The group began to chase the appellant. As he was fleeing, the appellant removed a .45 calibre handgun and fired a number of shots into the air. He was later charged with possession of a loaded restricted firearm as a result of this incident.

[6] On August 15, 2000, the appellant committed the most serious offences. The appellant was again in the prohibited area laying in wait for Jamaul Cramona. The appellant repeatedly pistol-whipped the victim outside a convenience store. In the course of the assault, the handgun discharged but the bullet did not injure the victim. The victim required numerous stitches to close the wounds to his face. The handgun used in this offence was the same handgun used by the appellant's acquaintance in the July [page 421] 30th shooting. The appellant was charged with aggravated assault, using a firearm in the commission of an offence and failing to comply with his release as a result of this incident.

[7] The police finally apprehended the appellant on August 24, 2000 when he was again in the Regent Park area. He was charged with failing to comply with his release conditions.

[8] The appellant remained in custody until his sentencing on November 14, 2001. He spent this time in the Toronto (Don) Jail under conditions that the trial judge described as "medieval, barbaric, dreadful". The trial judge gave the appellant credit for 31 months of pre-trial custody.

[9] The trial judge calculated the sentence as follows:

aggravated assault: 5 years imprisonment

using a firearm during an indictable offence: 1 year consecutive

possession of loaded restricted firearm: 1 year consecutive

Fail to comply x 3: total of 9 months consecutive

Total sentence: 7 years and 9 months

Less pre-trial custody: 31 months

Sentence imposed: 5 years and 2 months

The Appellant's Background

[10] The appellant was born on January 17, 1982 and was only 18 years of age when he committed these offences and 19 when he was sentenced. He has a substantial youth record including crimes of violence. Between 1996 and 1999 the appellant was convicted in youth court of trafficking in a narcotic, fail to attend court, carrying a concealed weapon, robbery, mischief, fail to comply with a disposition, assault, and assault causing bodily harm. His longest previous disposition was six months secure custody and 100 days of open custody. He was on probation when he committed these most recent offences and also in breach of an order that he not possess any firearms or ammunition.

[11] The appellant is one of seven children. He never knew his father. Several of his brothers have different fathers. There was no stable male figure in the appellant's life. The appellant's mother suffers from mental illness and the Children's Aid Society was frequently involved with the family. The appellant was never [page 422] physically or sexually abused. The appellant's upbringing was chaotic and in 1994 he was apprehended by the C.A.S. The appellant ran away from the foster homes in which he was placed. In 1997, the appellant's mother abandoned the children and returned to Trinidad for a period of time. Several of the appellant's brothers have also had trouble with the law.

[12] The appellant has a common law relationship with a young woman and they have a daughter who was about two months old when the appellant embarked on this string of offences. Some of the appellant's assault convictions relate to abuse of his common law spouse. She lived with the child in Regent Park. Despite the bail order prohibiting the appellant from being in the Regent Park area, the appellant visited his spouse and child on a daily basis before his arrest. His spouse and her mother, both of whom were supportive of the appellant, would seem to have encouraged these visits.

[13] The appellant has abused alcohol since he was 15 years of age. The appellant had previously taken some counselling for alcoholism as a term of probation but he did not carry through with the programme. The appellant claimed that he was intoxicated when he committed these offences. His spouse contradicted this claim and there is no other evidence to support the appellant's position.

[14] The appellant was chronically truant from school and was suspended for assaultive and aggressive behaviour. His mother did nothing to encourage the appellant's attendance at school or to address his behaviour. While the appellant did well when in custody, his response to probation was poor. The author of the pre-sentence report stated that the appellant "has a pattern of positive performance in secure settings, but then a poor response to supervision in the community". The appellant has no marketable skills and has worked only sporadically at temporary jobs.

The Reasons of the Trial Judge

[15] The trial judge reviewed the principles and objectives of sentencing. He concluded that denunciation and general and specific deterrence [were] the paramount considerations. He was concerned that the appellant represented a danger to the community. The trial judge placed special emphasis on the appellant's use of a handgun in two of the offences. He stated that the sentence must be of sufficient length that it would deter others and send a "signal to other young men in this city [that] violent assaults with [sic] especially with guns will result in serious penalties". He referred to the presence of handguns as a "scourge" in [page 423] the community "which the court has repeatedly denounced" and intended the sentence to "reflect again the court's determination to do what we can to deliver the message: No more guns."

[16] The trial judge referred to the appellant's youth record and his lack of response to previous less lenient dispositions. The trial judge expressed his dismay at having to impose a penitentiary sentence on an offender who was only 18 when he committed the offences. He expressed the hope that the appellant might reform and take advantage of the support from his spouse and her family.

The Proposed Fresh Evidence

[17] The appellant filed a number of reports prepared by various groups concerning systemic racism in Canada. These various reports chronicle a history of poverty; discrimination in education, the media, employment and housing; and overrepresentation in the criminal justice system and in prisons. Common among these reports is the assertion that aside from the experiences of Aboriginal peoples, there is no other community in Canada that has faced and continues to face this combination of factors.

[18] Among the reports filed by the appellant is the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen's Printer, 1995). This Commission was established in 1992 to inquire into and make recommendations about the extent to which criminal justice practice, procedures and policies in Ontario reflect systemic racism toward racial minority, especially, black communities. One clear finding of the Commission is that there has been a dramatic increase in prison admissions for black offenders in Ontario in recent years. This increase is especially apparent with regard to drug offences.

[19] Until this report, research in the area of overrepresentation in the criminal justice system tended to focus on Aboriginal Canadians. Research conducted by J.V. Roberts and A.N. Doob prepared for the Commission provided the first major empirical study on the treatment of black accused. See: "Race, Ethnicity, and Criminal Justice in Canada" in M. Tonry (ed.), Ethnicity, Crime and Immigration (Chicago: University of Chicago Press, 1997) at p. 469. This study focused on the bail and sentencing stages of the criminal justice process in Ontario. The authors considered offence categories of robbery, sexual assault, drugs, serious assault and bail violations. The findings demonstrated racial disparities at both these stages of the process. More specifically, the greatest disparities were found for the drug offences. Chapter 4 of the report explores the problem of the impact of the "war on drugs" on black offenders. Other relevant factors addressed in [page 424] the report that contribute to this problem of overrepresentation include social and economic inequalities, as well as differential enforcement.

[20] While racial disparities were found, the authors highlight that the relationship between race, crime and imprisonment is difficult to demonstrate. Patterns of direct discrimination may be found with some offences, however they are unlikely to simply be a function of the differences in the seriousness of the offence. Rather, indirect discrimination arising from judges' reliance on neutral factors such as employment status and detention before trial contribute to the higher incarceration rates among black offenders (ch. 8, p. 280; Roberts and Doob, p. 512). In addition, the authors found unexplained race disparities that were not due to the gravity of the charge, record, plea, crown election, pre-trial detention, unemployment [or] other social factors. The Report attributes these results to direct racial discrimination.

[21] The appellant also filed a more recent report prepared by the African Canadian Legal Clinic entitled Anti-Black Racism in Canada: A Report on the Canadian Government's Compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (July 2002). This report is a response to the Canadian government's account of its compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195. It is critical of both the Canadian and Ontario Governments. An excerpt from the Executive Summary, at p. 4, captures the problem as viewed from the Clinic's perspective. After summarizing Canada's position, the Clinic says this:

On the other hand, African Canadians will point out the day- to-day challenges and difficulties of living within their communities, the continued challenges of living in a society polarized by racism in which they are subordinate and subject to the exploitation and abuse of the White community. As a result of this continuing pattern of discrimination, the African Canadian community and particularly its youth, interact with police officers much [more] often than [with] other communities. There is a disproportionate number of African Canadians living in poverty and in overcrowded neighborhoods. In addition, there are a disproportionate number of Black households in communities that lack human and recreational services. Negative interactions between African Canadian students and school officials often result in the enforcement of "Zero Tolerance" policies. African Canadian peoples are subject to an inordinately high number of hate motivated attacks. A severely disproportionate number of Black youth attend schools with predominantly non-African Canadian teachers. These teachers have low expectations of African Canadian students who in turn, disengage from schools in high numbers. African Canadians face the overwhelming challenges of maintaining the identity of their families as a result of an increasingly oppressive immigration system. Cultural institutions and the media negatively portray the image of African Canadians. Finally, African [page 425] Canadian adults are either unemployed, underemployed, subject to harassment within the workplace and left with few career opportunities.

[22] Another point that is highly relevant to the question of judicial consideration of systemic and background factors at sentencing is judicial education. This point was addressed by the Commission at p. 285 of its report:

The longstanding absence from the criminal justice system of agencies that specialize in serving racialized communities, together with many judges' distance from these communities, makes it particularly likely that community-based options for black and other racialized people may be unknown. While comprehensive presentence reports on individual accused may address this problem to some extent, judges should not be wholly dependent on probation officers for information that is so important to fairness in sentencing.

[23] This recommendation by the Commission highlights the importance of this issue being addressed before the trial judge on the basis of proper evidence. On the appeal in this case, counsel for the appellant filed copies of two pamphlets for programmes directed particularly to black youth. These pamphlets were not particularly helpful in showing how these community programmes could assist the appellant.

[24] This brief summary does not do justice to the wealth of information in these various reports. Since, however, I have concluded that the evidence is not admissible on this appeal, I do not need to review it in any greater detail.

Analysis

The admissibility of the fresh evidence

[25] The impact of systemic racism and other background factors facing the African Canadian community was not raised before the trial judge. Counsel for the appellant submits that this evidence should be received on this appeal because, in effect, the trial judge made the social context relevant by his focus on general deterrence and his concern to send a message to the "community" about the use of guns. Mr. Tanovich asserts that in those circumstances it is only proper that the court see the whole picture, that is, understand the social conditions that contributed to the violence perpetrated by the appellant. Alternatively, the appellant submits that the court can take judicial notice of systemic racism against the African Canadian community just as the courts have been directed by the Supreme Court of Canada in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385 to take judicial notice of systemic racism against aboriginals. He relies on a number of decisions where the courts have taken judicial notice of systemic racism against blacks, albeit in different [page 426] contexts, such as jury selection, interaction with police, and prison population. See R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324, 84 C.C.C. (3d) 353 (C.A.), R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, 124 C.C.C. (3d) 481, R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, 118 C.C.C. (3d) 353 and Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, 218 D.L.R. (4th) 577.

[26] The Crown opposes the admission of the evidence. Ms. Eplett points out that this evidence could have been introduced at trial and, since it was not, there is insufficient evidence to show how these systemic and background factors actually impacted upon the appellant.

[27] The test for admission of fresh evidence on a sentence appeal was set out by the Supreme Court of Canada in R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, 148 C.C.C. (3d) 193. I do not need to deal with that test in any detail. The admission of this evidence fails because it cannot meet the criterion that the proposed fresh evidence would likely affect the result. The appellant's fundamental submission is that because of the similarity between the plight of Aboriginal Canadians and African Canadians, the court should adopt a similar form of analysis for the purposes of sentencing. Further, he submits that the background of the appellant exhibits many of the same factors often found in the background of Aboriginal offenders including poverty, family dislocation, chaotic child rearing and alcoholism. I accept that there are some similarities and that the background and systemic factors facing African Canadians, where they are shown to have played a part in the offence, might be taken into account in imposing sentence. However, for the following reasons, the evidence is not relevant in this case.

[28] In Gladue and R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, 141 C.C.C. (3d) 368, the court explained the approach courts must take to the sentencing of aboriginal offenders in light of s. 718.2(e). Section 718.2(e) of the Criminal Code, R.S.C. 1985, c. C-46 provides that

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

(Emphasis added)

[29] The offenders in those two cases were aboriginals and the reasons of the court naturally focused on the impact of s. 718.2(e) on such offenders given the special mention of aboriginal offenders in the provision. Some of the language used by the court, however, could equally apply to the approach to sentencing other similarly disadvantaged groups. For example, in para. 65 of Gladue, the [page 427] court summarizes the conditions that have led to the over-representation of aboriginal offenders in Canada's prisons:

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.

(Emphasis added)

[30] Some of the same things could be said of the over- representation of African Canadians in our jails and penitentiaries. I think that in an appropriate case a sentencing judge might find assistance from the approach described by the court in Gladue and Wells, even though that approach is grounded in the special reference to aboriginal offenders in s. 718.2. However, this is a matter that should be addressed at trial where the evidence can be tested and its relevance to the particular offender explored.

[31] As well, I note that the affirmative duty placed upon the judge by s. 718.2(e), to take judicial notice of the unique systemic and background factors that have contributed to the difficulties faced by aboriginal people in the criminal justice system and throughout society at large and to inquire into the unique circumstances of aboriginal offenders, by its terms, only applies to aboriginal offenders. See Gladue at paras. 82-85 and Wells at paras. 53-55.

[32] Further, an important part of the Gladue analysis hinged on the fact that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by aboriginal offenders and their community. At para. 70 the Gladue court noted, "most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition is extremely important to the analysis under s. 718.2(e)." This link for the African Canadian community is missing from the fresh evidence. The importance that the Supreme Court attached to the sentencing conceptions of aboriginal communities results from the specific reference to aboriginal offenders in s. 718.2(e). [page 428] In this regard, aboriginal communities are unique. However, the principles that are generally applicable to all offenders, including African Canadians, are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence and the values of the community from which the offender comes.

[33] I would not dismiss the application to admit the fresh evidence in this case because it was not adduced before the trial judge or because of this gap in the evidence. Instead, I would not admit the evidence because the proposed evidence would not affect the result. In Gladue and Wells, the Supreme Court held that the more serious and violent the crime the less likely that the sentence for an aboriginal offender will differ from the sentence imposed on any other offender. This point is captured at paras. 79-80 of the Gladue reasons:

Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, 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.

As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: for this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances?

(Emphasis added)

[34] The court restated this position in Wells at para. 44:

Let me emphasize that s. 718.2(e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does not mandate, necessarily, a different result. Section 718.2(e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. Furthermore, in Gladue, as mentioned the Court stressed that the application of s. 718.2(e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation (at para. 78). As a result, it will generally be the [page 429] case, as a practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders (Gladue, at para. 33). Accordingly, I conclude that it was open to the trial judge to give primacy to the principles of denunciation and deterrence in this case on the basis that the crime involved was a serious one.

(Emphasis added)

[35] This appellant committed a crime of great violence and used a loaded handgun on two separate occasions. The Gladue approach would not lead to any different sentence for these violent and serious offences. This does not mean that the background factors as revealed in the pre-sentence report are irrelevant. To the contrary, they are very important, but they are important because, as was said by the court in para. 80 of Gladue, the sentencing must proceed on an individual (or a case-by-case) basis: for this offence, committed by this offender, harming this victim, in this community. To paraphrase a comment by Brooke J.A. in R. v. Roud and Roud (1981), 1981 3231 (ON CA), 58 C.C.C. (2d) 226 (Ont. C.A.) (leave to appeal to S.C.C. refused (1981), 58 C.C.C. (2d) 226n) at p. 242, the trial judge has a duty to the public, and has a duty to the offender. The judge cannot discharge either without fairly complete information as to the offender, his background and his character. This necessarily includes whatever information is available about the background and other factors that have led to the offender being before the courts. I will now turn to those considerations.

The fitness of the sentence

[36] Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth. In my view, the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. The trial judge's repeated references to the need to send a message and his statement that the sentence was meant to deter others who resort to guns make it clear that general deterrence and to a less extent denunciation determined the length of the sentence. In my view, this error led the trial judge to impose an excessive sentence for the aggravated assault. [page 430]

[37] On the other hand, I agree with the trial judge that this case called for a penitentiary sentence notwithstanding the appellant's age. His very serious youth record, his failure to respond to other measures and his repeated violation of court orders indicated that specific deterrence would be an important objective. The string of offences, two involving use of a loaded handgun, required a lengthy sentence. These circumstances, however, had to be balanced against the appellant's age and his chaotic background as part of a dysfunctional family being raised in poverty by a mother who unfortunately had few parenting skills and suffered from a mental illness. There was also some reason for optimism about the appellant's chances for rehabilitation. The pre-sentence report indicates that while the appellant did not respond particularly well to community-based programmes, he did do well in a more structured environment.

The other alleged errors in principle

[38] The appellant submits that the trial judge made several other errors in principle. He submits that the trial judge failed to give effect to the totality principle and the so- called "jump principle." In my view, the trial judge did not err in either respect. As to totality, the Criminal Code requires that the trial judge impose at least one year's imprisonment for each of the two firearms offences and the sentence for using a firearm offence had to be consecutive to the sentence for aggravated assault. See Criminal Code, ss. 85(3), (4) and 95(2)(a). The trial judge was right to impose consecutive sentences for the three separate incidents.

[39] I do not think the jump principle had much application in this case. This principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender's crimes shows a dramatic increase in violence and seriousness. While the appellant had a serious youth record, the premeditated unprovoked pistol whipping of the victim with a loaded handgun was such a serious escalation in violence that it required a much more severe sentence than had been imposed upon the appellant as a youth. That sentence was justified not only for purposes of general deterrence and denunciation but as a matter of specific deterrence. Despite his youth, the appellant revealed himself as a dangerous individual and unfortunately a lengthy sentence had to be imposed. [page 431]

Disposition

[40] Accordingly, I would dismiss the application to admit fresh evidence. I would grant leave to appeal sentence, allow the appeal and reduce the sentence for aggravated assault by one year so that the appellant's total sentence is four years and two months.

Appeal allowed.