Her Majesty the Queen v. Kreko*
[Indexed as: R. v. Kreko]
Ontario Reports
Court of Appeal for Ontario,
Strathy C.J.O., Gillese and Pardu JJ.A.
May 16, 2016
131 O.R. (3d) 685 | 2016 ONCA 367
Case Summary
Criminal law — Appeals — Fresh evidence on appeal — Aboriginal accused seeking to introduce fresh evidence on his sentence appeal of his successful reconnection with his biological mother following sentencing and profound impact on him of his reconnection with his aboriginal heritage — Evidence admitted as it could not have been introduced at sentencing, was relevant and credible and could reasonably be expected to have affected result.
Criminal law — Appeals — Report of trial judge pursuant to s. 682 of Criminal Code — Not appropriate for trial judge to use report to expand upon reasons for sentence — Criminal Code, R.S.C. 1985, c. C-46, s. 682.
Criminal law — Sentencing — Aboriginal offenders — Accused adopted by non-aboriginal parents — Aboriginal birth mother 15 years old and being Crown ward at time of birth due to her parents' alcohol abuse and chaotic childhood — Adoptive mother leaving family year after adoption to pursue another relationship — Accused's not knowing adopted until late teens — Accused shocked at double desertion by birth mother and adoptive mother — Accused adopting lifestyle involving fascination with guns and gangs — Sentencing judge declining to take accused's aboriginal heritage into account as accused was raised by non-aboriginal adoptive parents and had only recently learned of his heritage when he committed offences — Sentencing judge erring by effectively requiring causal link between accused's aboriginal heritage and offences — Accused remorseful and real possibility of rehabilitation but subject to two firearms prohibitions and in violation of terms of conditional sentence when committing offences — Global sentence of 13 years' imprisonment for possession of loaded prohibited firearm, robbery with handgun and intentional discharge of firearm reduced to nine years.
The accused, age 22 at the time of the offences, pleaded guilty to possession of a loaded prohibited firearm, robbery with a handgun, and intentional discharge of a firearm while being reckless as to the life or safety of another person. The accused, who was masked, tried to rob a man at gunpoint. There was a struggle but the accused stole some items before fleeing on foot. The man chased the accused in his car, hit him and the accused fired three times at the car, hitting him in the head but not causing serious injury. The accused shot himself in the leg. He was 22 at the time of the offences. The sentencing judge found that, in the circumstances, the accused's aboriginal heritage was irrelevant and declined to take it into account. The accused received a global sentence of 13 years' imprisonment. He appealed.
Held, the appeal should be allowed. [page686]
The sentencing judge erred by effectively requiring a causal link between the accused's aboriginal heritage and the offences. The accused's aboriginal heritage was part of the context of the offences. His dislocation and loss of identity could be traced to systemic disadvantage and impoverishment extending back to his great-grandparents. The sentencing judge erred by failing to consider the intergenerational, systemic factors that were part of the accused's background and which bore on his moral blameworthiness.
The accused was permitted to adduce fresh evidence on appeal of his successful reconnection with his biological mother following sentencing and the profound impact upon him of his reconnection with his aboriginal heritage. That evidence could not have been introduced at sentencing, was relevant and credible, and could reasonably be expected to have affected the result.
The accused was genuinely remorseful and there was a real possibility of rehabilitation. On the other hand, the offences were serious and were committed in violation of two weapons prohibition orders and a conditional sentence order. The global 13-year sentence should be reduced to nine years, against which the accused was entitled to a credit of 30 months for 20 months of pre-trial custody.
In response to form letter from appellate court asking the trial judge if there were any rulings or additional transcripts that pertained to the appeal, the trial judge provided a report under s. 682(1) of the Criminal Code. In it, he expanded upon his reasons for sentence. It is not appropriate to do so and it rendered the report invalid.
R. v. Ipeelee, [2012] 1 S.C.R. 433, [2012] S.C.J. No. 13, 2012 SCC 13, 428 N.R. 1, 91 C.R. (6th) 1, 318 B.C.A.C. 1, 2012EXP-1208, J.E. 2012-661, 288 O.A.C. 224, EYB 2012-204040, 280 C.C.C. (3d) 265, [2012] 2 C.N.L.R. 218, 99 W.C.B. (2d) 642, apld
Other cases referred to
R. v. E. (A.W.), 1993 CanLII 65 (SCC), [1993] 3 S.C.R. 155, [1993] S.C.J. No. 90, 156 N.R. 321, J.E. 93-1579, 12 Alta. L.R. (3d) 1, 141 A.R. 353, 83 C.C.C. (3d) 462, 23 C.R. (4th) 357, 20 W.C.B. (2d) 427; 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, REJB 1999-11962
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, ss. 95(2) [as am.], 244.2(3), 343(d), 682 [as am.], (1), 718.2 [as am.], (e) [as am.]
APPEAL by the accused from the sentence imposed on January 7, 2014 by D.M. Stone J. of the Ontario Court of Justice.
David E. Harris, for appellant.
Eric Siebenmorgen, for respondent.
Emily Hill and Caitlyn Kasper, for intervenor Aboriginal Legal Services of Toronto.
The judgment of the court was delivered by [page687]
[1] PARDU J.A.: — The sentencing judge erred in concluding that the appellant's aboriginal heritage was irrelevant to his sentencing. This error affected the 13-year global sentence imposed on the appellant and it falls to this court to determine an appropriate sentence.
A. Facts
[2] The offences to which the appellant pleaded guilty were very serious: possession without lawful excuse of a loaded prohibited firearm, robbery with a handgun, and intentional discharge of a firearm while being reckless as to the life or safety of another person, contrary to ss. 95(2), 343(d) and 244.2(3) of the Criminal Code, R.S.C. 1985, c. C-46.
[3] The facts can be summarized briefly. The appellant followed the victim, Jason Gomes, from an LCBO to an apartment parking lot. After Mr. Gomes got out of his vehicle, the appellant, his face masked with a bandana, approached Mr. Gomes with a gun in his hand. There was a struggle. The gun went off and the bullet hit the ground. The appellant took a necklace and a cellphone belonging to Mr. Gomes before fleeing on foot. Mr. Gomes got back in his car and pursued the appellant. He drove at the appellant and struck him with his car with enough force to crack the windshield when the appellant's body hit it. The appellant then fired three bullets at the car. One of the bullets went through the driver's headrest and entered Mr. Gomes's scalp, but fortunately did not penetrate or fracture his skull and did not seriously injure him. The appellant also accidentally shot a bullet into his own leg, causing serious injury. He required surgery and hospitalization, and has been left with enduring physical problems with his leg.
B. The Appellant's Aboriginal Heritage
[4] The appellant's mother, who was aboriginal, was only 15 years old when he was born on August 18, 1989. She could not adequately care for him, and the appellant was placed in foster care because of concerns about her lifestyle. Around the time of his first birthday, the appellant was placed for adoption with a non-aboriginal couple.
[5] The appellant's birth mother suffered from a chaotic childhood herself. Both of her parents struggled with alcoholism. When she was four-and-a-half years old, she was admitted to hospital and placed in the care of the Children's Aid Society after consuming some of her mother's alcohol. She was placed in her grandmother's care, as well as various foster homes, before [page688] finally becoming a Crown ward at age 11. She was still a Crown ward when she gave birth to the appellant.
[6] The appellant's maternal grandmother died at age 28. She was a depressed alcoholic, unable to parent her children. The appellant's maternal grandfather was raised in a large family on a reserve in Ontario, but he and his siblings spent years in the care of the Children's Aid Society because of parental neglect and alcoholism.
[7] The adoption order was made when the appellant was nearly two years old. The next year, the appellant's adoptive mother left the family to pursue another relationship. She did not remain involved in the appellant's life.
[8] The appellant grew up not knowing he was adopted. He assumed that his heritage was Finnish and French, like his adoptive parents, but he was often challenged by other kids on this point, who suggested he had other ancestry.
[9] When the appellant was between 16 and 18 years old, his adoptive father told him of the adoption. This came as a shock to him, and the realization of the loss of both his adoptive mother and his birth mother led to feelings of abandonment, resentment and a sense that he was unwanted.
[10] The appellant began trying to locate his birth parents in or around 2007 or 2008. Around the same time, his adoptive mother came back to live with his adoptive father, but her relationship with the appellant was difficult.
[11] As a teenager, the appellant became interested in what he called "black culture". He listened to hip hop music and wore baggy clothes. He also developed a fascination with guns, gangs and aggression.
[12] The appellant has struggled with his identity and his adoption. However, he has now found his birth mother, and has successfully completed a number of rehabilitative aboriginal programs. He has embraced his aboriginal heritage.
C. Submissions Before the Sentencing Judge
[13] At the sentencing hearing, the Crown submitted that the appellant's aboriginal heritage was irrelevant to the appropriate sentence. In the Crown's view, the appellant had been raised by his adoptive parents, had only recently learned of his aboriginal heritage, and had not faced any of the systemic disadvantages or impediments experienced by other aboriginals. The Crown therefore submitted that there was no connection at all between the appellant's aboriginal background and his offences.
[14] The defence submitted that the appellant's background was relevant to his moral blameworthiness, and that there were [page689] unique systemic and background factors which had played a role in the offences before the court. The defence submitted that the appellant had an identity crisis when he learned of his adoption and his aboriginal heritage, which coincided with his involvement in the criminal justice system. The defence further submitted that the appellant's own dislocation was characteristic of the systemic disadvantage experienced by persons of aboriginal heritage.
D. Reasons of the Sentencing Judge
[15] The sentencing judge gave no weight to the appellant's aboriginal background when he considered the length of the sentence to be imposed:
Although a direct, causal link is not required, there is no such tie in this case. Mr. Kreko may very well suffer and feel abandoned by his adoptive mother and his biological mother. I can sympathize with him in this, even as his father was doing his best to raise his son to be well-educated, involved in sports, supported in music and recording, and pro-social. There was nothing tied to his Aboriginal genetic heritage, let alone considerations in Gladue and Ipeelee, that led the accused, Mr. Kreko, to the negative side of hip-hop, including its fascination with guns. Perhaps, as the Gladue report suggests implicitly, his desire to drive a Jaguar like a big shot, not turn in his drug associates, and possess a gun on behalf of a criminal associate, relates to a need to belong. These things relate to gang culture and do not relate to his Aboriginal background.
(Emphasis added)
[16] In a report given to the Court of Appeal under s. 682 of the Criminal Code, the sentencing judge reiterated:
Mr. Kreko is biologically descended in part from Aboriginal [heritage]. However, he was adopted as an infant by a couple whose ethnic backgrounds were [Finnish] and French-Canadian, and was raised as a white child in Ajax. . . . The Gladue Report traced his subsequent inconsistent efforts to learn about Aboriginal values, customs, and societal supports. Meanwhile, he was gravitating toward a different group in Ajax, and became quite involved with the negative side of hip-hop, with its drugs and guns. His associates led or helped him into offences involving both.
It appeared to me that his Aboriginal connection had been irrelevant to his offences, or how he got there. While his partly Aboriginal teenage mother had given him up for adoption . . . [t]he most important aspect of this was not some colonial treatment of the birth mother. It was his discovery that not only had he been abandoned by the woman he thought was his mother in Ajax, but that he had another mother, his birth mother, and she had abandoned him too[.]
I ultimately held that his Aboriginal heritage could not be linked in any meaningful way to these current offences, although his hip-hop affiliations could. Aboriginal values would mirror non-Aboriginal societal values in condemning the offences before the court.
(Emphasis added) [page690]
E. Issues
[17] The appellant submits that the sentencing judge erred in principle by requiring a causal connection between the appellant's aboriginal background and his offences, and that the ultimate sentence imposed was therefore unfit. He further submits that the sentencing judge improperly intervened in the appellate process through the report that he provided to this court under s. 682 of the Criminal Code.
F. Analysis
(1) Failure to consider the appellant's aboriginal heritage
[18] Section 718.2 of the Criminal Code requires consideration of the principles of sentencing, including the following principle:
718.2(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[19] As observed in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, at para. 93(3), s. 718.2(e) is remedial in nature: it is intended to ameliorate the serious problem of overrepresentation of aboriginal people in prisons.
[20] The sentencing judge erred by effectively requiring a causal link between the appellant's aboriginal heritage and the offences, as is illustrated by the following extracts from his reasons for sentence and report to the Court of Appeal:
"There was nothing tied to his Aboriginal genetic heritage, let alone considerations in Gladue and Ipeelee, that led the accused, Mr. Kreko, to the negative side of hip-hop, including its fascination with guns."
"These things [possession of a gun, driving a Jaguar] relate to gang culture and do not relate to his Aboriginal background."
"It appeared to me that his Aboriginal connection had been irrelevant to his offences, or how he got there."
"I ultimately held that his Aboriginal heritage could not be linked in any meaningful way to these current offences, although his hip-hop affiliations could."
[21] The jurisprudence makes it clear that no causal link is required. In R. v. Ipeelee, [2012] 1 S.C.R. 433, [2012] S.C.J. No. 13, 2012 SCC 13, the Supreme Court held that it was an error to [page691] require an aboriginal offender to establish a causal link between his or her background factors and the commission of the offence(s) in question before he or she is entitled to have those factors considered by the sentencing judge. The court suggested, at para. 82, that requiring a causal connection demonstrated "an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples", and also imposed an evidentiary burden on the offender that was not intended by Gladue.
[22] The court continued, at para. 83:
[I]t would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86:
Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government's treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated.
Furthermore, the operation of s. 718.2(e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence.
[23] The court explained that what is required is that the factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing. Finally, the court in Ipeelee also made it clear that s. 718.2(e) applies to serious offences: see paras. 84-86.
[24] In the present case, the appellant's dislocation and loss of identity can be traced to systemic disadvantage and impoverishment extending back to his great-grandparents. This was relevant to his moral blameworthiness for the offences. The intervenor has referred to some studies suggesting that adoptions of aboriginal children by non-aboriginal parents have a significantly higher failure rate than other adoptions. The appellant's aboriginal heritage was unquestionably part of the context underlying the offences. The sentencing judge erred by failing to consider the intergenerational, systemic factors that were part of the appellant's background, and which bore on his moral blameworthiness, and by seeking instead to establish a causal link between his aboriginal heritage and the offences. [page692]
[25] The sentencing judge also misapprehended the evidence about the appellant's efforts to reconnect with his heritage:
I applaud any efforts by Mr. Kreko to put down any pro-social roots he can, and that includes the Aboriginal healing path in which he has dabbled to date. I note he did not participate in that path while at the Central East Correctional Centre.
(Emphasis added)
[26] The evidence was that the appellant did participate in aboriginal programming and counseling at the Central East Correctional Centre when he was held in pre-trial custody there in 2008 and 2009.
(2) The appropriate sentence
[27] According to the Supreme Court in Ipeelee, at para. 87,failure to consider the unique circumstances of aboriginal offenders, when required, is an error justifying appellate intervention:
The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender . . . and a failure to do so constitutes an error justifying appellate intervention.
[28] I turn then to the question of the appropriate sentence. The appellant was only 22 years old at the time of these offences. Although he had a criminal record, he had not received sentences imposing further custodial time in addition to pre-trial custody.
[29] The Crown opposes admission of fresh evidence of the respondent's successful reconnection with his biological mother following sentencing, and the profound impact upon him of his reconnection with his aboriginal heritage. This evidence could not have been introduced at sentencing, is relevant and credible, and could reasonably when taken with the other evidence adduced at the hearing be expected to have affected the result. I would accordingly admit the fresh evidence.
[30] The Crown accepted at the sentencing hearing that the appellant was genuinely remorseful, based on his statements to the author of the Gladue report. At the hearing, the appellant apologized to the individuals affected by his acts, their families and the community of Ajax. There was a consensus that there was a real possibility of rehabilitation. [page693]
[31] On the other hand, the fact that these offences were committed in violation of two weapons prohibition orders and in violation of a conditional sentence, which included house arrest and a prohibition of possession of a weapon, is a seriously aggravating factor. There is no doubt that the seriousness of the offences requires a severe sentence. I have concluded that a global nine-year sentence would adequately serve the principles and objectives of sentencing set out in the Criminal Code, including giving weight to the background and systemic factors related to the appellant's aboriginal heritage, as well as the possibility of rehabilitation.
[32] In the result, I would leave intact the three-year consecutive sentence imposed by the trial judge for the s. 95(2) offence, but I would vary the sentence on the other two counts to six years before credit for pre-sentence custody. The appellant spent 20 months in pre-sentence custody, which should be credited as 30 months, leaving the global sentence to be served, as of January 7, 2014, at 78 months or 6.5 years. The other ancillary orders made by the sentencing judge should remain.
(3) The report under s. 682
[33] Section 682(1) of the Criminal Code requires a trial judge, at the request of the Court of Appeal, to report on "the case or on any matter relating to the case that is specified in the request". The form letter sent to the sentencing judge in this case asked whether there were any rulings that appeared relevant to the appeal, and if so, to attach any relevant and available transcripts.
[34] A trial judge should not use the report to supplement his or her reasons, as occurred in this case. As the Supreme Court observed in R. v. E. (A.W.), 1993 CanLII 65 (SCC), [1993] 3 S.C.R. 155, [1993] S.C.J. No. 90, at p. 173 S.C.R.:
It is well established that a trial judge, in furnishing the Court of Appeal with a report, must be vigilant to avoid simply expanding upon reasons or rulings previously given or providing reasons where none were given at trial. In such circumstances, a trial judge's report will be held invalid.
G. Disposition
[35] I would grant leave to appeal sentence and allow the appeal to the extent of reducing the appellant's sentence to nine years, less 30 months' credit for pre-sentence custody, leaving a global remaining sentence of 78 months.
Appeal allowed.
[page694]
- Vous trouverez la traduction française à la p. 694, post.
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