Her Majesty the Queen v. Whiskeyjack [Indexed as: R. v. Whiskeyjack]
93 O.R. (3d) 743
Court of Appeal for Ontario,
Rosenberg, Sharpe and Blair JJ.A.
November 27, 2008
Criminal law -- Sentencing -- Aboriginal offenders -- Aggravated assault -- Aboriginal first offender pleading guilty to aggravated assault on her two-year-old child that left him with permanent brain damage -- Trial judge not erring in sentencing accused to two years less a day in jail -- Trial judge giving adequate consideration to accused's circumstances as Aboriginal offender -- Trial judge's conclusion that custodial sentence was required to meet need for denunciation and general deterrence open to her.
The accused became frustrated with her two-year-old son's crying. She threw him into his crib and then pushed him down. He suffered a severe blow to the head and was left with permanent brain damage. The accused pleaded guilty to aggravated assault. The Aboriginal accused lived in a remote Northern Ontario community. She had no criminal record and was remorseful. The trial judge sentenced the accused to two years less a day in jail. The accused appealed.
Held, the appeal should be dismissed.
The trial judge was faithful to the Gladue methodology and arrived at an appropriate sentence after taking into account the accused's circumstances and Aboriginal heritage. Her conclusion that a custodial sentence of two years less a day was required to meet the need for denunciation and general deterrence was open to her on the record, even after giving full consideration to the circumstances and tragic life experiences of the accused. It was far from clear that a conditional sentence was a realistic possibility given the Aboriginal community's ambivalent reaction to the crime. While the trial judge erred in describing certain factors as aggravating, those errors did not have any meaningful impact upon the sentence. Even if they did, the sentence was not inappropriate given the importance of deterrence, denunciation and community protection.
APPEAL by the accused from the sentence imposed by Hoshizaki J. of the Ontario Court of Justice dated March 3, 2008 for aggravated assault.
Cases referred to R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, 171 D.L.R. (4th) 385, 238 N.R. 1, J.E. 99-881, 121 B.C.A.C. 161, 133 C.C.C. (3d) 385, [1999] 2 C.N.L.R. 252, 23 C.R. (5th) 197, 41 W.C.B. (2d) 402; R. v. Kakekagamick (2006), 2006 CanLII 28549 (ON CA), 81 O.R. (3d) 664, [2006] O.J. No. 3346, 214 O.A.C. 127, 211 C.C.C. (3d) 289, 40 C.R. (6th) 383, 70 W.C.B. (2d) 470 (C.A.); R. v. Wells, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, 2000 SCC 10, 182 D.L.R. (4th) 257, 250 N.R. 364, [2000] 3 W.W.R. 613, J.E. 2000-414, 250 A.R. 273, 141 C.C.C. (3d) 368, [2000] 2 C.N.L.R. 274, 30 C.R. (5th) 254, 45 W.C.B. (2d) 80, consd
Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 718.2(e)
Jonathan Rudin and Mandy Eason, for appellant. Andreea Baiasu, for respondent.
The judgment of the court was delivered
SHARPE J.A.: --
Overview
[1] This appeal involves the difficult issue of determining whether a custodial sentence is appropriate for an aboriginal offender who pleaded guilty to a charge of aggravated assault on her two-year-old child that left the child with permanent and debilitating injuries.
[2] The appellant has had a difficult life in remote First Nations communities in Northern Ontario. She was removed from her family and community and relocated to a residential school at a young age. She has suffered the loss of her parents, struggled with alcoholism and endured the apprehension of her children.
[3] The sentencing judge sentenced the appellant to two years less a day in custody. Shortly before the hearing of this appeal, she was released on parole after having served eight months of her sentence. She has now returned to her community and argues that her sentence should be reduced to time served.
[4] For the following reasons, I would grant leave to appeal but dismiss the appeal.
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The offence
[5] At the time of the offence, the appellant was living with her spouse, John Tait, in a remote fly-in aboriginal community in Northern Ontario called Sachigo Lake First Nation.
[6] Due to the appellant and Tait's excessive drinking, their son Pesim was apprehended by Tikinagan Child and Family Services shortly after his birth and shortly before the appellant gave birth to another child named Bryan. Pesim was returned after Bryan's birth, but he did not bond with his mother.
[7] When Pesim was two years old and Bryan was ten months old, the appellant became frustrated with Pesim's crying. She threw Pesim into his crib and then pushed him down. Pesim suffered a severe blow to his head and was rendered unconscious.
[8] The appellant called Tait to take Pesim to the nursing station. Pesim was airlifted to Winnipeg for surgery to relieve the swelling in his brain.
[9] When questioned by the police in Winnipeg, the appellant stated that Pesim's injuries were sustained as a result of a fall. A year later, a police investigation was launched and when questioned by the police, the appellant confessed to the assault.
[10] The assault has had a devastating effect on Pesim. He has developed epilepsy and has symptoms of paralysis on the right side of his body. At the time of sentencing, his condition was described as "very dismal with virtually no chance, barring some miracle, that he will ever function close to normally". While his condition appears to have improved somewhat, there is no doubt that he has suffered permanent brain damage and physical injuries that will continue to affect him for the rest of his life.
The offender
[11] The sentencing judge was provided with a detailed pre-sentence report outlining the background and circumstances of the appellant. She was born in 1972 in Osnaberg First Nation, where she lived with her parents and siblings until early adolescence.
[12] The appellant's family lived a traditional life. Her father worked on a trap line and took his family with him to work on the line.
[13] A family service agency insisted that the family's school-age children attend school. As a result, the appellant was taken from her family and sent to Poplar Hill Residential School. The conditions there were strict and harsh. She and her siblings were strapped for speaking their native language or for falling asleep in church.
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[14] When the appellant was 13, her family moved to Slate Falls First Nation. The appellant left Poplar Hill shortly thereafter to be with her mother who was dying of cancer. Her mother died one year later and the appellant remained at home to look after her father and younger siblings.
[15] Two years later, the appellant's father died in a boating accident. The appellant recalls her father's death as a tragic turning point in her life. After he died, she collapsed into alcoholism.
[16] Prior to giving birth to Pesim, the appellant had three children. None of her older children resided with her at the time of Pesim's birth. One of them lived in Slate Falls and the other two lived with their father in Sachigo Lake.
[17] While the appellant has struggled with alcohol abuse since her father's death, at the time of the offence, she lived in Sachigo Lake, a dry community, and abided by the community by-law which prohibits alcohol consumption.
[18] The pre-sentence report described the community's reaction to the appellant's crime in the following terms:
The council members willing to attempt to talk about this in private all struggled to find words to express the complexity of their feelings. They understand the issues. They know that parents everywhere struggle with the challenges of parenting. They know that many adults in their community were not taught parenting skills or even experienced positive parenting as children. Yet they continue to express anger and sadness for the state the child's in and they are pained by how he will likely never have any type of normal life. In the end, the Chief and council have decided not to make any formal response to this offence acknowledging this situation as being too close to them. The Chief and council say they will fully support the decision of the court.
[19] The appellant has no previous criminal record.
Sentencing proceedings
[20] The plea and sentencing proceedings took place in Sachigo Lake. Defence counsel asked the sentencing judge to consider a conditional sentence of two years less a day, to be served in the community. The sentencing judge adopted the position of the Crown and imposed a custodial sentence of two years less a day plus three years' probation.
Fresh evidence
[21] The appellant has submitted as fresh evidence a Gladue report providing further details of her life circumstances. This report essentially confirms and elaborates on the details contained in the pre-sentence report but also adds some new information.
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[22] The report provides some general information relating to residential schools, including the Government of Canada's 2008 apology as well as information from studies describing the trauma and detrimental effects of the residential school experience.
[23] The report also indicates that the appellant was sexually abused by an older brother shortly after her mother died from cancer and that the fathers of her two eldest children were abusive towards her. It confirms that the appellant has had problems with alcohol since the age of 17. From time to time, the appellant has sought help with her drinking and has expressed a willingness to participate in alternative justice and traditional healing activities as part of her rehabilitation. The appellant is remorseful for her crime.
[24] The report concludes as follows: "Since Ruby was paroled with conditions, no further recommendations are being made."
Issues
[25] The appellant asks that leave to appeal be granted, that the appeal be allowed and that her sentence be reduced to one of time served. She argues that the sentencing judge erred: (1) in failing to give adequate consideration to her circumstances as an aboriginal offender; and (2) in treating certain features of the offence as aggravating factors.
Analysis
(1) Consideration of the appellant's circumstances as an aboriginal offender
[26] As I have already indicated, the sentencing judge had the benefit of a detailed pre-sentence report that provided her with considerable details regarding the appellant's background and circumstances. The sentencing judge also had the benefit of very fulsome submissions from defence counsel. Her counsel argued that, in view of the principles enunciated in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 and the appellant's background and circumstances, including her residential school experience, a conditional sentence to be served in the community would be appropriate.
[27] In light of the materials before her and the submissions of defence counsel, I am satisfied that the sentencing judge was fully apprised of the appellant's background as an aboriginal offender.
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[28] The appellant also submits that the sentencing judge held that the Gladue principles had little or no bearing on the sentence since the appellant had committed an offence involving serious violence. The appellant submits that in so holding, the sentencing judge erred. She focuses on the following passage from the sentencing judge's oral reasons:
The issue here, as indicated in the Ontario Court of Appeal decision of R. v. Cudmore, [1972 CanLII 493 (ON CA), [1972] 1 O.R. 812] is about denunciation and general deterrence and the importance of protecting children who cannot protect themselves. Although I have considered the Gladue component here, I accept the position in R. v. Wells [2000 SCC 10, [2000] 1 S.C.R. 207] that as a practical matter, particularly violent and serious offences will result in imprisonment for aboriginal offenders as well as for non-aboriginal offenders. Therefore, while rehabilitation of the mother must be considered, general deterrence and denunciation must be the primary consideration.
[29] I agree with the appellant that the Gladue principles, which provide a framework for interpreting s. 718.2(e) of the Criminal Code, R.S.C. 1985, c. C-46, must be considered when sentencing an aboriginal offender who has committed an offence involving serious violence. This issue was fully canvassed by this court in R. v. Kakekagamick (2006), 2006 CanLII 28549 (ON CA), 81 O.R. (3d) 664, [2006] O.J. No. 3346 (C.A.). There, LaForme J.A. held 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". At para. 56, he added:
[W]here 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.
[30] However, at para. 36, LaForme J.A. also made clear that s. 718.2(e) and the principles in Gladue mandate "a different methodology for assessing a fit sentence for an Aboriginal offender" but "not necessarily . . . a different result". As set out in Gladue, at para. 66, the different methodology requires the sentencing judge to consider: (A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.
[31] The Gladue methodology can and should yield information that is capable of influencing the sentencing judge's determination of the appropriate type and length of sentence to be
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imposed. However, at the end of the day, it remains for the sentencing judge to consider the case as a whole. The task of the sentencing judge is to weigh the aboriginal offender's circumstances and his or her interest in rehabilitation or restorative justice with the community's interests in deterrence, denunciation and the need for social protection. In the case of serious and violent offences, even for aboriginal offenders, the balance will often tilt in favour of the latter interests. In Gladue, Cory and Iacobucci JJ. Stated, at para. 79:
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.
[32] The same principle was referred to by LaForme J.A. in Kakekagamick, at para. 43.
[33] Iacobucci J. elaborated on this point in the following passage from R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, at para. 42, which was referred to and paraphrased by the sentencing judge in her reasons:
Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions of sentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender's community. As held in Gladue, at para. 79, to the extent that generalizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non- aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accorded increasing significance.
[34] On my reading of the entire record of this case, I am satisfied that the sentencing judge was faithful to the Gladue methodology and that she arrived at an appropriate sentence after taking into account the appellant's circumstances and aboriginal heritage. No doubt her reasons for sentence could have been more complete, but in my view, when read in the light of the record as a whole, they illustrate that she arrived at a sentence that balanced the need for deterrence, denunciation and social protection with the appellant's background and circumstances and the need for restorative justice.
[35] The sentencing judge's conclusion that a custodial sentence of two years less a day was required to meet the need for "denunciation and general deterrence and the importance of protecting children who cannot protect themselves" was certainly open to her on the record, even after giving full consideration to the circumstances and tragic life experiences of the appellant.
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The offence involved a violent assault against a defenceless child who was left with a devastating and lasting brain injury. It was the type of crime contemplated in Gladue, Wells and Kakekagamick as likely to result in a custodial sentence. Moreover, in the circumstances of this case, it was far from clear that a conditional sentence to be served in the community was a realistic possibility given the aboriginal community's ambivalent reaction to the crime.
[36] Accordingly, I would not give effect to this ground of appeal.
(2) Did the sentencing judge err in assessing certain aggravating factors?
[37] In her reasons for sentence, the sentencing judge treated as aggravating factors: (1) the fact that after the appellant assaulted Pesim, she called her husband rather than the health clinic or the police; and (2) the fact that she did not confess to the crime until one year after it occurred.
[38] I agree with the appellant that the sentencing judge may well have misapprehended the exigencies of the appellant's living situation in this remote fly-in community. There is considerable merit to the appellant's submission that by calling her husband, she did in fact seek and secure the most immediate medical assistance for her child available to her in the circumstances.
[39] In addition, in my view, the sentencing judge erred by treating the appellant's failure to confess to the crime as an aggravating factor. While her late confession may have had an impact on the extent to which the sentencing judge was prepared to consider the guilty plea as a mitigating factor, I fail to see how the failure to immediately confess to the assault could amount to an aggravating factor.
[40] I am not persuaded, however, that these errors had any meaningful impact upon the sentence that was imposed, and even if they did, I would not interfere with the sentence.
[41] I have already explained the importance of deterrence, denunciation and community protection in the circumstances of this case. When these factors and the gravity of the crime are considered alongside what is, at best, an ambivalent reaction from the appellant's community regarding her sentence, in my view it is clear that a custodial sentence was appropriate.
[42] Moreover, with the benefit of hindsight, it seems to me that we can now say with some confidence that in this case, the system has worked. The appellant is to be commended for the
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progress she made while in custody. Since receiving parole, she has returned to her community in Sachigo Lake. It is noteworthy that in light of her return, the Gladue report makes no further sentencing recommendations.
[43] Nor would I interfere with the probation conditions, which have been adopted in the appellant's parole conditions. These conditions prevent her from having contact with children under 12 unless accompanied by a responsible adult and prohibit her from consuming alcohol. Given the nature of the offence, the fact that it involved a young child, and the fact that the appellant is residing in a remote dry community, I am not persuaded that the sentencing judge erred in imposing these conditions.
Conclusion
[44] For these reasons, I would grant leave to appeal the sentence but I would dismiss the appeal.
Appeal dismissed.