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

81 O.R. (3d) 664

Court of Appeal for Ontario,

Laskin, Simmons and LaForme JJ.A.

August 22, 2006

Criminal law -- Sentencing -- Aboriginal offenders -- Trial judge failing to give adequate consideration to s. 718.2(e) of Criminal Code and principles set out in Gladue in sentencing aboriginal accused -- Counsel having positive duty to assist sentencing judge in gathering information as to aboriginal offender's circumstances -- Sentencing judge being obliged to try to acquire information on aboriginal offender's circumstances where counsel does not adduce that evidence -- Obligation to consider s. 718.2(e) of Criminal Code applicable in sentencing all aboriginal offenders regardless of seriousness of offence -- Consideration of provision will not necessarily result in lower sentence or that principle of restorative justice being predominant factor in determining fit sentence for aboriginal offender -- Sentencing judge not entitled to deference where only passing reference was made to offender's aboriginal background and where no consideration was given to whether further inquiries were appropriate and practicable -- Accused being 22 with no prior convictions -- Beat domestic partner resulting in serious injuries including broken vertebrae in neck -- Accused intoxicated and having history of substance abuse -- Assessed as being at high risk to re-offend -- Five-year sentence for aggravated assault nevertheless being fit -- Criminal Code, R.S.C. 1985, c. C-46, s. 718.2(e).

Criminal Law -- sentencing -- Aggravated assault -- 22-year- old aboriginal accused severely beating domestic partner resulting in serious injuries including broken vertebrae in neck -- Accused being intoxicated during offence and having history of substance abuse -- No prior criminal record but prior domestic abuse -- Assessed as being at high risk to re- offend -- Trial judge erring by failing to consider s. 718.2(e) of Criminal Code as obliged to do so in all cases involving Aboriginals -- Given gravity of offence and accused's circumstances sentence of five years' imprisonment upheld -- Criminal Code, R.S.C. 1985, c. C-46, s. 718.2(e).

The accused, a young aboriginal man who lived in a remote community, was convicted of aggravated assault. After an extended period of drinking home brew, the accused beat his domestic partner, who suffered two broken vertebrae in her neck, fractured ribs and a fractured collarbone. The accused had no criminal record. The trial judge sentenced the accused to five years' imprisonment. The accused appealed the conviction and the sentence.

Held, the appeal should be dismissed. [page665]

The trial judge did not err in applying the principles set out in R. v. W. (D.) and did not fail to give the accused the benefit of a reasonable doubt regarding the complainant's credibility.

The trial judge was aware that the accused was aboriginal, but neither counsel nor the trial judge gave adequate consideration to the legal requirements of s. 718.2(e) of the Criminal Code as informed by the decision of the Supreme Court of Canada in R. v. Gladue. Failure to give adequate weight to an offender's aboriginal status in accordance with s. 718.2(e) of the Code and Gladue amounts to an error of law. Section 718.2(e) requires a different methodology for assessing a fit sentence for an aboriginal offender, although it does not necessarily mandate a different result. Section 718.2(e) must be considered in all cases involving sentencing aboriginal offenders regardless of the seriousness of their offences. In order to help the court arrive at a fit and proper sentence, there is a positive duty on counsel to assist the sentencing judge in gathering information as to the aboriginal offender's circumstances. If an offender does not want such evidence to be adduced, he or she may waive the right to have particular attention paid to his or her circumstances as an aboriginal offender. Such a waiver must be express and on the record. There was no such waiver in this case. Where counsel does not adduce the evidence, it is still incumbent on the sentencing judge to try to acquire information on the circumstances of the offender as an aboriginal person. In most cases, the information obtained in a pre-sentence report may be sufficient to meet that requirement. Where that information is insufficient, s. 718.2(e) permits the sentencing judge to request that witnesses be called to testify as to reasonable alternatives to a custodial sentence. Deference should not be afforded to a sentencing judge where, as in this case, only passing reference is made to an offender's aboriginal background, and no consideration is given to whether further inquiries are appropriate and practicable. Deference is accorded the scope and sufficiency of the inquiry required by s. 718.2(e) and Gladue, not to an absence of one. The pre- sentence report in this case was deficient in that it failed to adequately address aboriginal circumstances and alternative approaches.

Despite the trial judge's error, the five-year sentence was a fit one despite the accused's youth (22) and lack of prior criminal record. Aggravating circumstances included the brutal nature of the assault, the fact that the complainant was the accused's domestic partner, and the statement in the pre- sentence report that the accused had been assessed as a high risk to re-offend. The offence and the accused's circumstances were serious enough that the objectives of restorative justice expressed in s. 718.2(e) together with the principles enunciated in Gladue ought not to weigh significantly more favourably than those of separation, denunciation and deterrence. Moreover, the accused's failure to accept responsibility for his actions weighed against affording him significant consideration by way of mitigation.

APPEAL from a conviction for aggravated assault entered on February 16, 2005, and the sentence imposed on May 2, 2005, by Justice Pierce of the Superior Court of Justice.

Cases referred to R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, 171 D.L.R. (4th) 385, 238 N.R. 1, 133 C.C.C. (3d) 385, 23 C.R. (5th) 197; R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, consd R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, 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, distd Other cases referred to R. v. Abraham, [2000] A.J. No. 645, 2000 ABCA 159, 261 A.R. 192, 4 M.V.R. (4th) 35, 46 W.C.B. (2d) 501 (C.A.); R. v. Bernier, [2003] B.C.J. No. 466, 177 C.C.C. (3d) 137, 2003 BCCA 134 (C.A.); R. v. Brizard, [2006] O.J. No. 729, 68 W.C.B. (2d) 556 (C.A.); R. v. Cromwell, [2005] N.S.J. No. 428, 238 N.S.R. (2d) 17, 757 A.P.R. 17, 202 C.C.C. (3d) 310, 2005 NSCA 137 (C.A.); [page666] R. v. Jensen (2005), 2005 7649 (ON CA), 74 O.R. (3d) 561, [2005] O.J. No. 1052, 196 O.A.C. 119, 195 C.C.C. (3d) 14, 27 C.R. (6th) 240 (C.A.); R. v. Minuskin (2003), 2003 11604 (ON CA), 68 O.R. (3d) 577, [2003] O.J. No. 5253, 181 C.C.C. (3d) 542 (C.A.); R. v. Pelletier, 1989 981 (QC CA), [1989] A.Q. No. 1651, 52 C.C.C. (3d) 340 (C.A.); R. v. R. (N.), 2005 NLCA 43, [2005] N.J. No. 218, 248 Nfld. & P.E.I.R. 146, 741 A.P.R. 146, 200 C.C.C. (3d) 123, 2005 N.L.C.A. 43 (C.A.); R. v. R.L., [2004] O.J. No. 384, [2004] O.T.C. 136, [2004] 2 C.N.L.R. 204, 60 W.C.B. (2d) 396 (S.C.J.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 687, Part XXIII, 718-718.2 [as am.]

Mark Kantor, for appellant. Lance Beechener, for respondent.

The judgment of the court was delivered by

[ 1 ] LAFORME J.A.: -- The appellant appeals his conviction for aggravated assault on the ground that the trial judge erred in her application of the principles in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26. A second ground of appeal is that the trial judge failed to give the appellant the benefit of a reasonable doubt in relation to the credibility of the complainant. Also, the appellant appeals his sentence on the ground that it was harsh and excessive in the circumstances.

[ 2 ] Four witnesses testified for the Crown at trial. The defence called no formal evidence, although two statements by the appellant to police, one oral and one written, were introduced into evidence by the Crown on consent. The trial judge was not left in reasonable doubt by the appellant's statements, and was satisfied beyond a reasonable doubt that the appellant was guilty of aggravated assault. She sentenced him to five years' imprisonment.

[ 3 ] For the reasons that follow, I would dismiss the conviction appeal. Regarding the sentence appeal, while I would grant leave, I would in the end dismiss the appeal.

Background

[ 4 ] I intend to first set out only the general account of the events that make up the background of this appeal. Where necessary, I will refer to other facts and circumstances later in my analysis that are relevant to the specific issue being addressed.

[ 5 ] This assault took place on July 21, 2002, in a small fly- in First Nation community of approximately 300 members located [page667] in northwestern Ontario. At the time, the complainant's father was the Chief of this "dry reserve", which is a community where alcohol is prohibited. Indeed, a person could be excluded from this First Nation community for contravening the prohibition.

[ 6 ] Two days before the assault, the appellant made home brew that he, the complainant, and several others began drinking the following day. The drinking and subsequent assault all occurred in a three-bedroom residence on the reserve.

[ 7 ] After an extended period of drinking, the appellant, in an apparent fit of anger, beat the complainant with multiple punches and kicks. The complainant suffered two broken vertebrae in her neck, fractured ribs and a fractured collarbone.

[ 8 ] Because of forest fires in the area at the time, the complainant could not immediately be evacuated to a hospital and remained in a local clinic. In time she was flown to Winnipeg, Manitoba where she was fitted with a halo neck brace, which she required for three months.

[ 9 ] At the time of the occurrence, the complainant was 22 years old and had been in a relationship with the appellant for approximately eight years. They are the parents of an eight- year-old boy.

Analysis

[ 10 ] I will address the conviction appeal and the sentence appeal in order. Although the issues appear to be relatively straightforward, this appeal raises the very important question of whether our criminal justice system is adequately applying the law when sentencing aboriginal offenders. However, before turning to that issue, I will first dispose of the conviction appeal.

The conviction appeal

[ 11 ] The appellant challenges his conviction on two grounds. First, he argues that the trial judge erred in applying the W. (D.) principles. Second, he argues that the trial judge erred in failing to give him the benefit of a reasonable doubt regarding the complainant's credibility.

(i) W. (D.) principles

[ 12 ] The appellant's first ground of his conviction appeal calls into question the trial judge's application of the principles in W. (D.). By way of reminder and for ease of reference, I reproduce the frequently-quoted passage of Cory J. from W. (D.) at p. 758 S.C.R. that sets out the three-step process:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in [page668] reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[ 13 ] The appellant places emphasis on a single passage from the trial judge's reasons, where she asked herself: "How much inconsistency in the complainant's statements amounts to reasonable doubt, such that an acquittal should be entered?" He says that this quote demonstrates that the trial judge engaged in an exercise of deciding whom to believe, and thereby shifted the burden of proof to the appellant. I disagree.

[ 14 ] The primary issue in this case was credibility. The trial judge noted the weak aspects of the complainant's evidence, demonstrated through inconsistencies in her various prior accounts of the incident. The trial judge's above-noted query merely reflects her awareness of these inconsistencies. Moreover, immediately following that passage, the trial judge instructed herself:

The burden in this prosecution is, of course, on the Crown; the standard of proof is the highest standard, proof beyond a reasonable doubt. This is not an exercise of deciding whom to believe. Rather, the test to apply was set out by Justice Cory in R. v. W. (D.).

(Emphasis added)

[ 15 ] In her reasons, the trial judge clearly rejected the appellant's evidence, such as it was, and determined that she was not left in reasonable doubt by it. It is equally clear that the trial judge accepted the evidence of the complainant. She then correctly considered whether on the basis of the evidence that she did accept, she was convinced the appellant was guilty beyond a reasonable doubt. The reasons disclose that the trial judge did not use her rejection of the appellant's evidence as a basis for concluding that the appellant was guilty. I see no error in this part of the trial judge's analysis.

[ 16 ] The appellant raises a second point on the trial judge's application of W. (D.). Although the appellant did not testify at trial, statements made by him to the police were admitted as evidence. The trial judge explicitly considered these statements and determined that portions of the statements were "qualitatively different". The appellant contends that the two statements were not inconsistent or contradictory, and therefore through application of the first branch of W. (D.), the appellant was entitled to an acquittal. Again, I disagree.

[ 17 ] The two statements are inconsistent on the reason the appellant gave for waking up and going to the bathroom. Among other things, in the first, the appellant stated that he awoke and [page669] went to the bathroom after hearing the complainant's yells for help. In the second, he stated that he went to the bathroom only because she did not come out, and he did not know if someone woke him up from the couch. This was sufficient for the trial judge to decide the issue of the statements as she did, and in my view, she was correct.

[ 18 ] Moreover, one of the principle theories of the defence was that the complainant sustained her injuries by slipping. Once the trial judge rejected that theory, it was open to her to also reject the appellant's simple denial in his second statement.

[ 19 ] The order in which the trial judge reviews and assesses the evidence in her reasons is admittedly not consistent with that proposed in W. (D.). In a judge alone trial, it is not necessary to use the precise form of words or to approach the evidence in a specific chronology: see R. v. Minuskin (2003), 2003 11604 (ON CA), 68 O.R. (3d) 577, [2003] O.J. No. 5253, 181 C.C.C. (3d) 542 (C.A.). The reasons of the trial judge, when read as a whole, demonstrate that she took the proper approach to the burden of proof. All three branches of the W. (D.) analysis were reflected in her judgment and properly satisfied. This ground of appeal must be denied.

(ii) Unreasonable verdict

[ 20 ] Next, the appellant submits that the trial judge erred in failing to give the appellant the benefit of a reasonable doubt in relation to the complainant's credibility. I agree with the respondent that this submission essentially amounts to an unreasonable verdict argument.

[ 21 ] The appellant contends that, because of the inconsistencies in the complainant's account and the lack of corroboration of both the assault and of certain of her injuries, the trial judge should have given the appellant the benefit of a reasonable doubt.

[ 22 ] In my view, the reasons demonstrate sufficiently that the trial judge was alive to each of the inconsistencies referred to by the appellant. The fact that the complainant's account of the assault and certain of her injuries were not corroborated is no basis upon which her evidence should have been rejected. A complainant's evidence does not require corroboration in order to be believed.

[ 23 ] It was open to the trial judge to accept the complainant's evidence. Her assessment as to the weight of the evidence and as to the credibility of witnesses is entitled to considerable deference. I would reject this ground of appeal.

[ 24 ] In sum, when the trial judge's reasons are read as a whole, they do not disclose the errors as argued on this appeal. For these reasons, I would dismiss the conviction appeal. [page670]

The sentence appeal

[ 25 ] I begin this part of my analysis with this observation: at trial neither counsel nor the trial judge gave adequate consideration to the legal requirements of s. 718.2(e) of the Criminal Code, R.S.C. 1985, c. C-46 [See Note 1 below] as informed by the Supreme Court in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19. Perhaps because of this, the requirements of s. 718.2(e) and Gladue were not issues considered by either counsel on this appeal.

[ 26 ] At trial, Crown counsel (who was not counsel on appeal) made passing reference to Gladue by merely noting at the sentencing hearing: "The court also has to be aware that this gentleman is a First Nations individual and as a result the court must consider Gladue in sentencing today."

[ 27 ] In his submissions to the trial judge, defence counsel, who also appeared as counsel on this appeal, made no reference whatsoever to Gladue. Finally, the trial judge in her reasons for sentence made this brief reference to Gladue: "The Crown asks for a denunciatory sentence of three to five years, having regard for Mr. Kakekagamick's Aboriginal status, taking into account the Gladue principle enunciated by the Supreme Court of Canada."

[ 28 ] On appeal, Crown counsel was not in a position to comment as to why s. 718.2(e) and the Gladue principles were not properly considered at trial. In connection with the appeal, he said he was merely responding to the appellant's arguments.

[ 29 ] Appellant's counsel suggested that, although he did not specifically refer to Gladue at trial, Mr. Kakekagamick's background was included in the pre-sentence report. I note also that the trial judge in her reasons set out a portion of defence counsel's justification for his submissions, namely:

The defence asks for reformatory time . . . to be served in the community . . . In support of that position, the defence points to the lack of a record at age 30, despite growing up in an environment of alcohol abuse at Sandy Lake First Nation, his work history as a seasonal carpenter and on the Reserve, his Aboriginal status and his potential for rehabilitation.

[ 30 ] Appellant's counsel also suggested that the appellant could perhaps be considered as waiving his rights under Gladue [page671] since he made no specific request to have the principles applied. He does concede that he did not ask for, nor did the appellant specifically provide a waiver of the Gladue requirements.

[ 31 ] This court recently held that the failure to give adequate weight to an offender's aboriginal status in accordance with s. 718.2(e) of the Criminal Code and Gladue amounts to an error of law: R. v. Brizard, [2006] O.J. No. 729, 68 W.C.B. (2d) 556 (C.A.), para. 3. In my view, the absence of any reference at trial to the requirements of s. 718.2(e) of the Criminal Code and what I view as insufficient reference to the principles in Gladue in this case amounts to such an error of law. These inadequate references at trial, and the absence of any reference on appeal, unfortunately reveal to me a lack of understanding of the requirements of s. 718.2(e) and Gladue.

[ 32 ] Given these observations, I feel it is necessary to once again examine somewhat closely the legal requirements of s. 718.2(e) as defined in Gladue, and to reiterate the duties they impose when a court is dealing with an aboriginal offender.

[ 33 ] In Gladue the Supreme Court held that the words of s. 718.2(e) take on meaning from the purposes and principles of sentencing set out in ss. 718-718.2 and the overall scheme of Part XXIII of the Criminal Code. The court determined that the new sentencing amendments represented "a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law" (para. 39).

[ 34 ] The court affirmed that s. 718.2(e) imposes a duty on the sentencing judge to approach the sentencing of aboriginal offenders differently. That is, it is not a mitigating factor on sentencing simply to be an aboriginal offender, as the Crown erroneously asserts in its factum. Nor is being an aboriginal offender, as I have heard it referred to, a "get out of jail free" card.

[ 35 ] Rather, s. 718.2(e) was enacted as a remedial provision, in recognition of the fact that aboriginal people are seriously over-represented in Canada's prison population and in recognition of the reasons for why this over-representation occurs. Thus, although s. 718.2(e) requires a sentencing judge to consider reasonable alternatives to imprisonment for all offenders, special consideration must be given to the circumstances of aboriginal offenders. The court in Gladue stated at para. 33:

[T]he words of s. 718.2(e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. . . . What s. 718.2(e) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for an aboriginal offender.

(Emphasis added) [page672]

[ 36 ] Therefore, while s. 718.2(e) requires a different methodology for assessing a fit sentence for an aboriginal offender, it does not necessarily mandate a different result. The subsection does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, at para. 44.

[ 37 ] Section 718.2(e) imposes an affirmative duty on the sentencing judge to take into account the surrounding circumstances of the offender, including the nature of the offence, the victims and the community (Wells, para. 41). Where the sentencing judge narrows the choice of sentence to one involving imprisonment, the judge is obliged to consider the unique systemic or background circumstances which may have played a part in bringing the particular aboriginal offender before the courts. The judge must also consider the types of practicable procedures and sanctions that would be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage (Wells, para. 30).

[ 38 ] It is important to emphasize, as this court held in R. v. Jensen (2005), 2005 7649 (ON CA), 74 O.R. (3d) 561, [2005] O.J. No. 1052 (C.A.), at para. 27, that the law in Ontario requires that the Gladue analysis be performed in all cases involving an aboriginal offender, regardless of the seriousness of the offence. I would note that this is also the law in Alberta: see R. v. Abraham, 2000 ABCA 159, [2000] A.J. No. 645, 261 A.R. 192 (C.A.). See also Gladue, para. 79.

[ 39 ] The sentencing judge therefore has a statutory duty to consider the unique circumstances of aboriginal offenders; the only discretion is with respect to the determination of a just and appropriate sentence (Gladue, para, 82). To fulfil their duty, sentencing judges must undertake the sentencing of Aboriginal offenders individually -- as with all offenders -- but also differently, because the circumstances of aboriginal people are unique and call for a special approach (Gladue, para 6).

[ 40 ] Gladue establishes the framework by which a sentencing judge is to carry out his or her duty when determining a truly fit and proper sentence for aboriginal offenders. The background considerations underlying the unique circumstances of aboriginal offenders, which will direct the sentencing judge's analysis, are:

(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

(B) The types of sentencing procedures and sanctions, which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. (Gladue, para. 66). [page673]

[ 41 ] It is only after a thorough review of those considerations that the sentencing judge will be in a position to determine a fit and proper sentence. Unfortunately the sentencing judge in the within case did not perform this required task.

[ 42 ] To be clear, s. 718.2(e) does not require, nor is there a general rule, that aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence. As was noted in Gladue, aboriginal people also believe in the importance of those latter objectives. Those principles will always be relevant and may predominate for more serious offenders or where the offence is serious enough that imprisonment is necessary.

[ 43 ] It was noted in Gladue that while in some circumstances the length of an Aboriginal offender's sentence may be less than that of any other offender"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" (para. 79). See also R. v. R.L., [2004] O.J. No. 384, [2004] O.T.C. 136 (S.C.J.), at para. 39. However, it is important to once again repeat that regardless of the seriousness of the offence, the analysis set out in Gladue will nevertheless apply in all cases where the offender is an aboriginal person.

[ 44 ] In order to help the court arrive at a fit and proper sentence, there is a positive duty on counsel to assist the sentencing judge in gathering information as to the aboriginal offender's circumstances. Counsel will assist the sentencing judge by adducing relevant evidence (Gladue, para. 83). If an offender does not want such evidence to be adduced, he or she may waive the right to have particular attention paid to his or her circumstances as an aboriginal offender. Such a waiver must be express and on the record, and was not present in this case.

[ 45 ] Where counsel does not adduce the evidence, it is still incumbent on the sentencing judge to try to acquire information on the circumstances of the offender as an aboriginal person (Gladue, para. 84). In most cases, the information contained in a pre-sentence report may be sufficient to meet the requirement of special attention to the circumstances of aboriginal offenders. But, where that information is insufficient, s. 718.2(e) permits the sentencing judge to request that witnesses be called to testify as to reasonable alternatives to a custodial sentence.

[ 46 ] While the role of the sentencing judge is not that of a board of inquiry, there is nevertheless an obligation to make inquiries beyond the information contained in the pre-sentence [page674] report in "appropriate circumstances", where such inquiries are "practicable" (Gladue, para. 84). The sentencing judge's assessment of whether further inquiries are either appropriate or practicable is to be accorded deference (Wells, para. 54).

[ 47 ] At first blush, it would appear that Wells was decided in circumstances that were similar to this case. Those circumstances appear initially to have been: (i) the sentencing judge observing merely that because the appellant was an Aboriginal, he was "obliged to bear in mind section 718.2(e) of the Code", and (ii) a pre-sentence report that was generally favourable and recommended a conditional sentence, but did not refer to the offender's unique circumstances as an aboriginal person. The pre-sentence report also included reference to the fact that the offender had completed a 28-day treatment program for alcohol abuse in an aboriginal-focused alcohol treatment centre.

[ 48 ] However, a closer review reveals that both the Alberta Court of Appeal and the Supreme Court had a more expansive record than that. The trial and sentencing took place before Gladue was released. Therefore, fresh evidence of the offender's circumstances was presented at the Alberta Court of Appeal with the agreement of the Crown. Significantly, the Alberta Court of Appeal, at para. 29, expressed the agreement as follows:

[I]n considering this sentence appeal we must have regard to the new evidence before the Court, and must assess this matter as if this new evidence would have been available for the Trial Judge at the time of sentencing.

(Emphasis added)

[ 49 ] The fresh evidence was fairly comprehensive and included information such as:

(i) the occupation and educational status of the offender, together with particulars of his alcohol abuse;

(ii) a description of the aboriginal alcohol and drug aftercare program and particulars of its method of operation;

(iii) the offender had applied for a second treatment session at the aboriginal treatment centre (Poundmaker's Lodge) where he had already obtained treatment; and

(iv) another aboriginal treatment centre had indicated a willingness to accept the offender pending his admission to the Poundmaker's Lodge. However, their brochure indicated that based on his criminal history, he was an "inappropriate client". [page675]

[ 50 ] Thus, the Supreme Court's assessment of the deference accorded the sentencing judge in Wells must be viewed in this context. That is, deference was accorded the sentencing judge only after the court concluded that the fresh evidence did not warrant an alternative approach in that case.

[ 51 ] Respectfully, the circumstances that underpin the conclusion in Wells are not present in this case. When one reads Gladue in its entirety, Wells could not have intended that deference should be afforded to a sentencing judge where only passing reference is made to an offender's aboriginal background, and no consideration is given to whether further inquiries are appropriate and practicable. Deference is accorded the scope and sufficiency of the inquiry required by s. 718.2(e) and Gladue, not to an absence of one.

[ 52 ] The original pre-sentence report in this case was deficient in that it failed to address adequately aboriginal circumstances and alternative approaches (as described in the second report ordered by this court after the appeal was heard). I would note that the Criminal Code was amended in 1996 to include s. 718.2(e) and Gladue was decided in 1999. One would expect that Correctional Services, Probation and Parole would by now fully appreciate the nature and scope of the information required in a pre-sentence report for an aboriginal offender.

[ 53 ] Given the deficiencies in the pre-sentence report, counsel and the trial judge should have considered the desirability of a further report or other evidence. Counsel, and perhaps especially the Crown, could and should have raised the issue in this case. They did not, and it fell to the sentencing judge to consider whether or not further inquiries were either appropriate or practicable. No such inquiry took place.

[ 54 ] I agree that this is not a case where it can be said that counsel, or the trial judge, were wholly indifferent to the aboriginal context. There was, as noted, some references made to the fact that he was Aboriginal, and that he grew up in an environment of alcohol abuse on his First Nation. In my view, rather than accepting this information as satisfying the requirements of Gladue -- if that is what occurred -- it should have signalled to those involved a possible need for further inquiry.

[ 55 ] The trial judge did not speak to the adequacy of the pre-sentence report regarding aboriginal circumstances and alternative approaches, which I noted above was deficient. Nor did she address whether further inquiries were appropriate or practicable. Therefore, her decision not to make further inquiries does not attract deference from this court. The circumstances in this case, in my view, were appropriate to make inquiries beyond the [page676] pre-sentence report, and as demonstrated below, it was feasible to do so. It was an error for the trial judge not to have done so in this case.

Conclusion on sentence appeal

[ 56 ] In conclusion, where a sentencing judge does not properly take into account the circumstances of the aboriginal offender as required by s. 718.2(e) of the Criminal Code, and fails to properly and adequately conduct the inquiry set out in Gladue, it amounts to an error justifying appellate intervention. I therefore end where I began: Neither counsel nor the trial judge adequately addressed the fit and proper sentencing of the appellant because they failed to give appropriate consideration to the legal requirements of s. 718.2(e) and the principles in Gladue.

[ 57 ] In addition to the error in respect of s. 718.2(e), the trial judge also appears to have considered the appellant's failure to make rehabilitative efforts as an aggravating factor. This too amounts to an error in principle.

[ 58 ] Accordingly, because of the two errors outlined above, leave to appeal sentence must be granted. However, for the reasons that follow, and as I noted earlier, I would not interfere with the sentence imposed.

[ 59 ] Before completing my analysis, I believe it will be helpful to make some observations about the difficulties this court had in performing its appellate function in connection with this sentence appeal.

[ 60 ] It is unclear from Gladue how this court should act where, as here, virtually no evidence has been adduced, either at trial or on the appeal, as to the appellant's circumstances as an aboriginal offender. In Gladue the court commented at para. 96: "In most cases, errors such as those in the courts below would be sufficient to justify sending the matter back for a new sentencing hearing." Despite that obiter comment, there appears to be general agreement among appellate courts that they have no such power to remit sentencing for a new hearing. See: R. v. Cromwell, 2005 NSCA 137, [2005] N.S.J. No. 428, 202 C.C.C. (3d) 310 (C.A.); R. v. R. (N.), 2005 NLCA 43, [2005] N.J. No. 218, 200 C.C.C. (3d) 123 (C.A.); R. v. Pelletier, 1989 981 (QC CA), [1989] A.Q. No. 1651, 52 C.C.C. (3d) 340 (C.A.); and R. v. Bernier, 2003 BCCA 134, [2003] B.C.J. No. 466, 177 C.C.C. (3d) 137 (C.A.). The powers of a court on an appeal against sentence are set out in s. 687 of the Criminal Code, and it is clear that this court may either vary the sentence or dismiss the appeal. Section 687 does not confer on this court the power to remit the matter for a new sentence hearing.

[ 61 ] From the record filed on this appeal, in particular the pre-sentence report, this court was able to discern only some of the [page677] appellant's background factors that are known to figure prominently in the criminality of aboriginal offenders. He comes from an isolated community where income appears to be low, and his opportunities and options regarding employment appear to be limited. Unfortunately, the record did not allow the court to consider other known factors, such as systemic and direct discrimination, and social and economic conditions. [See Note 2 below]

[ 62 ] As a result, after the oral hearing, in order to properly decide the issues regarding the sentence appeal, this court took the unusual step of ordering that a further report in the nature of a pre-sentence report for Mr. Kakekagamick be completed. [See Note 3 below] The order required that best efforts were to be undertaken to address those matters specifically referred to in Gladue, including alternatives to incarceration that may exist inside or outside Mr. Kakekagamick's aboriginal community. The order was made pursuant to s. 687(1) of the Criminal Code and in accordance with Gladue. [See Note 4 below]

[ 63 ] It is important to stress at this time that the approach taken by this court should not be viewed as a substitute for any future failure on the part of counsel or the trial judge to address s. 718.2(e) and the Gladue principles when dealing with an aboriginal offender. Such a process is awkward, is unduly time consuming, no doubt incurs greater expense, and may be unfair to an offender who is incarcerated while awaiting the outcome of his appeal.

[ 64 ] The report has since been filed and I have now reviewed it, as have my colleagues. It is a helpful report and generally provides the information that is mandated by Gladue. This report would have been of assistance at Mr. Kakekagamick's sentencing, and could have been explored by the sentencing judge in a more thorough fashion than this court is able. Nevertheless, some of the relevant information in the report bears repeating in order to understand Mr. Kakekagamick a little better.

[ 65 ] Mr. Kakekagamick's mother attended residential school and recalls its negative impact on her life. She was married at a young age in accordance with an arranged marriage and worked with her family on a trap-line. They had nine children, one of whom is Mr. Kakekagamick. They lived in a neighbouring First Nation and subsequently in the First Nation where this offence occurred. There was no history of family violence, but it appears [page678] that the lack of opportunity and incentive on the First Nation led Mr. Kakekagamick to abuse substances, most notably alcohol.

[ 66 ] His First Nation is only accessible by winter road and air travel in summer months. The community to which Mr. Kakekagamick belongs is described as consisting of homes that are "well equipped with television, which provides community members a window into a world they often cannot be a part of". His community is isolated, with little for youth and young adults to do. Alcohol and drug abuse are products of this isolated community, especially for younger members. The costs associated with living in this community made it prohibitive for his family to visit and support him during his trial, and while he is imprisoned.

[ 67 ] The readily available access to intoxicating substances and the production of home brew introduce binge drinking to many on the First Nation in their early teens. Treatment programs are historically only available outside of the community and once residents return, there has not been until recently, any further support programs in place.

[ 68 ] Mr. Kakekagamick has a grade eight education, which he obtained from a school located on another neighbouring fly-in First Nation. His employment history is somewhat unclear, but he is described as a polite and reliable employee, although he has a reputation as a drinker. He started drinking alcohol when he was 16 or 17 years old, and did so because he was bored. He began binge drinking around the age of 19, having learned the methods of preparing home brew. He associated with companions who were also known binge drinkers and who had some history of domestic violence.

[ 69 ] Mr. Kakekagamick began dating the victim when she was 14 years old and they remained together for six years and have one child. She reports that Mr. Kakekagamick was often violent with her. Mr. Kakekagamick is a first time offender who continues to deny any responsibility for the incident and remains firm that he never physically abused the victim. He is currently imprisoned in Stony Mountain Penitentiary in a unit that is set-aside for inmates with no gang affiliation. It is reported that he has successfully completed a substance abuse program.

[ 70 ] The Chief and Counsel of Mr. Kakekagamick's First Nation are willing to have him return as long as he does not use alcohol and keeps the peace. He has a home to return to when he is released from prison. A First Nation police officer has now returned to the community and some probationary supervision is available. Some residential treatment for substance abuse appears to also be available now.

[ 71 ] The five-year sentence imposed in this case was based upon aggravating factors that included the brutal nature of the [page679] assault; that the victim was the appellant's domestic partner; and the statement in the pre-sentence report that the appellant had been assessed as a high risk to re- offend. Those factors remain extremely relevant.

[ 72 ] There are mitigating factors as well, principally the appellant's lack of a criminal record and his young age. And finally, I have considered those factors from the Gladue report [See Note 5 below] as I have outlined above.

[ 73 ] In all the circumstances, especially the aggravating features that include the nature of the assault, that it was in the context of a domestic relationship, and that the appellant had been assessed as a high risk to re-offend, it would not be fit and proper to sentence the appellant to anything other than a period of imprisonment. This offender and this offence are serious enough that the objectives of restorative justice expressed in s. 718.2(e) of the Criminal Code together with the principles established in Gladue ought not to weigh significantly more favourably than those of separation, denunciation and deterrence. Moreover, the appellant's failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation.

[ 74 ] Having regard to all of this, my view is that the sentence of five years' imprisonment by the trial judge is fit and appropriate in all the circumstances. That is, in spite of the errors made in relation to the sentencing of Mr. Kakekagamick, the sentence imposed was nevertheless correct. I would therefore confirm the sentence of five years' imprisonment.

Disposition

[ 75 ] For the reasons given, I would dismiss the appeal against conviction. I would grant leave to appeal against sentence; however, I would dismiss the appeal.

Appeal dismissed. [page680]

Notes

Note 1: Section 718.2(e) reads:

A court that imposes a sentence shall also take in to consideration the following principles:

(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.

Note 2: Gladue, at paras. 67-68, describes some of the systemic and background factors that are known to bring aboriginal offenders to court.

Note 3: See R. v. Kakekagamick, released April 13, 2006.

Note 4: R. v. Gladue, at para. 85.

Note 5: Although I refer to this as a Gladue report, it nonetheless remains a pre-sentence report that addresses those issues mandated by the Supreme Court of Canada when sentencing an aboriginal offender.