WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court: Court of Appeal for Ontario

Date: 2018-01-30

Docket: C60396

Judges: Watt, Epstein and Brown JJ.A.

Between:

Her Majesty the Queen Respondent

and

F.H.L. Appellant

Counsel:

• Paolo Giancaterino and Marco Sciarra, for the appellant
• Andrew Cappell, for the respondent

Heard: September 5, 2017

On appeal from: the sentence imposed by Justice T.D. Ray of the Superior Court of Justice on January 24, 2014, with reasons reported at 2014 ONSC 38.

OVERVIEW

Epstein J.A.:

[1] The appellant sexually assaulted his girlfriend's daughter, E.B., when she was 12 years old. About ten months later, E.B. gave birth. The appellant declined to submit to a DNA test without a court order. A DNA order was obtained. The test proved the baby was his.

[2] The appellant was arrested and released on a recognizance. In breach, he fled to Alberta. He was apprehended and brought back to Ontario where he was charged with one count of sexual assault and one count of touching a person under the age of fourteen years for a sexual purpose. He pled guilty to both offences.[1]

[3] At the outset of his sentencing hearing, the appellant admitted to a single incident of sexual intercourse. He testified that one night, he was lying in bed when E.B. entered his bedroom, crawled onto his bed, straddled him and started kissing him. She took off her pants and underwear and "slid on top" of his penis. When the encounter was over, E.B. left the room without saying anything. The appellant denied having any further sexual contact with E.B.

[4] E.B. described things quite differently. Throughout the relevant time, E.B. was in the care of her grandparents under the supervision of the Children's Aid Society because her mother and the appellant had proven unable to maintain clean and safe accommodation for her. She visited her mother and the appellant during weekends and holidays. E.B. testified that one night, just after she turned 12, she awoke to find the appellant on top of her. He penetrated her vagina with his penis, causing her to bleed. This incident marked the beginning of almost a year of being sexually assaulted by the appellant, on a weekly basis.

[5] Given the conflict between the testimony of the appellant and E.B. concerning the extent of the sexual abuse, the sentencing judge conducted a Gardiner hearing. Ultimately, he found that the appellant had, in fact, engaged in repeated sexual assaults as described by E.B. The sentencing judge imposed a sentence of eight years less two years' credit for time served.

[6] The appellant seeks leave to appeal his sentence, and an order varying the sentence to five years, less credit for pre-sentence and post-sentence custody. He argues that the sentencing judge effectively ignored his plea of guilt, failed to adequately account for his rehabilitative potential and misapplied the principles delineated in s. 718.2(e) of the Criminal Code and R. v. Gladue, [1999] 1 S.C.R. 688. He submits that these errors resulted in an unfit sentence.

[7] The Crown's position is that the sentencing judge correctly applied the law and imposed a sentence that falls squarely within the range identified by this court for similar crimes.

[8] I am of the view that the sentencing judge properly considered the appellant's guilty plea and rehabilitative potential, but erred in his Gladue analysis. Specifically, the sentencing judge erred in approaching the determination of a fit sentence on the basis that in order for the Gladue principles to apply, the appellant had to demonstrate a causal connection between his Aboriginal background and the commission of the crimes for which he was convicted. That said, in the light of the gravity of the appellant's criminal conduct and its devastating impact on E.B., I am convinced that the sentence imposed is fit. I would therefore grant leave to appeal sentence and dismiss the appeal.

BACKGROUND FACTS

[9] I have already outlined the salient facts about the present offences and the Gardiner hearing above, and will not repeat them here. To supplement those facts, I will provide some background details about the appellant before examining his sentencing proceedings in greater depth.

A. The Appellant's Background

[10] The appellant's biological family are members of the Woodland Cree First Nations, the largest indigenous group in Northern Alberta. Shortly after his birth, the appellant was admitted to the hospital over concerns about malnutrition. He was placed in the care of a local child protection agency. Soon thereafter, a Caucasian family that resided near Sarnia, Ontario adopted the appellant. The sentencing judge observed that "[w]hile [the appellant] found his mother to be hard on him from time to time, overall he considered he had a happy upbringing and had good relationships with his parents."

[11] Unfortunately, beginning around age 12, the appellant became plagued by drugs and alcohol. He left high school in grade 11. Since then, he has been sporadically employed in various jobs, primarily involving manual work. He is an admitted alcoholic, a fact he claims bears relevance to the fitness of his sentence. In addition to several convictions in youth court, the appellant has a lengthy adult criminal record consisting of convictions for, among other things, theft over $5,000, escaping custody, assault, possession of the proceeds of crime and uttering threats.

[12] The appellant met E.B.'s mother while she was living in Ottawa. The appellant moved to Ottawa and began living with E.B.'s mother when E.B. was around 5 years old. The present offences took place approximately 7 years later.

B. The Sentencing Proceedings

[13] Following the Gardiner hearing, the sentencing judge put the matter over for preparation of a pre-sentence report. Upon receipt of the report, the sentencing judge expressed concern that it did not adequately address the appellant's Aboriginal heritage. Accordingly, the sentencing judge ordered a Gladue report and sought out templates to ensure the report would be suitable. To that end, the sentencing judge provided several relevant materials to counsel, including guidelines for the preparation of Gladue reports issued by a committee in Alberta, two reports prepared by Aboriginal Legal Services in Toronto, and copies of the Supreme Court's decision in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. The sentencing hearing was adjourned several times to accommodate preparation of the Gladue report.

[14] The sentencing hearing that ultimately took place focused extensively on the appellant's Aboriginal heritage. The author of the Gladue report, Michelle Penney, a support worker for the Aboriginal Criminal Court, testified at length. She gave extensive evidence about the appellant's background and her work in preparing the Gladue report.

[15] The Gladue and pre-sentence reports detailed the appellant's Aboriginal background. The pre-sentence report recognized the appellant's Aboriginal ancestry as being important to him and noted his expressed willingness to learn more about his ancestral traditions and customs. It also revealed that the appellant reconnected with his biological family in Alberta prior to his incarceration for these offences. At the time of sentencing, the appellant was in the midst of completing his registration documents for the Woodland Cree First Nation. The Gladue report affirmed these facts and provided additional insight into the appellant's relationship with his adoptive family and community.

REASONS FOR SENTENCE

[16] After reviewing the relevant facts, the sentencing judge set out the positions of the parties on the appropriate sentence for the appellant. The Crown sought a nine year custodial sentence. The defence argued for a five year sentence, less two and a half years' credit for pre-sentence custody.

[17] Next, the sentencing judge outlined applicable sentencing principles and explicitly acknowledged his duty to consider the appellant's Aboriginal background in crafting an appropriate sentence. However, the sentencing judge had "great difficulty relating the [appellant's] Aboriginal circumstances to his particular circumstances which resulted in him committing the sexual assault", because:

[t]here was no evidence that his adoption into a non-native family had any connection [to the sexual assault]. While I accept that he feels a certain satisfaction at his reconnection to his birth parents, I am not satisfied that that is a unique feature to his aboriginal background. There are many adopted children who feel driven as adults to reconnect to their birth family. There is no evidence that his alcohol and substance abuse was in any way linked to his aboriginal background. To the contrary, the evidence before me is that his birth family does not have alcohol or substance abuse issues. The fact that the defendant's current girlfriend has alcohol issues is concerning only because the defendant seems not to appreciate that in order to free himself from his addictions, he must choose friends and relationships which are free of addictions. While the defendant has claimed that his alcohol issues contributed to the sexual assaults, there is nothing to suggest that the defendant's alcohol issues are unique to his aboriginal background.

To conclude the first two steps in the enquiry, I see no connection between the defendant's aboriginal background and the commission of the sexual assault. [Emphasis Added]

[18] The sentencing judge concluded that, "[h]aving conducted the Gladue assessment, I find that this case falls into the class of very serious cases where a fit sentence as between an aboriginal or non-aboriginal offender would be similar". He turned to reviewing the aggravating and mitigating factors at play.

[19] The sentencing judge found there to be no mitigating factors. He reasoned that the appellant's guilty plea had limited value as a mitigating factor as he had admitted to only one incident of sexual assault, which led to E.B.'s being required to testify at the Gardiner hearing. The sentencing judge identified the gravity of the appellant's offence as the most significant aggravating factor at play. The sentencing judge also took note of the devastating impact the appellant's abuse had on E.B. She was subject to a prolonged period of physical and sexual abuse. She had become estranged from her family. She had struggled with the fact that her baby had been put up for adoption. She was fearful of men and had become very isolated.

[20] After taking all of these factors into account, the sentencing judge imposed an eight year custodial sentence, less two years' credit for time served.

ISSUES

1. Did the Sentencing Judge Err in Failing to Consider the Appellant's Guilty Plea as a Mitigating Factor?

[21] The appellant, relying on multiple decisions by this court, submits that the sentencing judge erred in refusing to assign his guilty plea any weight as a mitigating factor. The appellant notes that a guilty plea will ordinarily be considered in the mitigation of a sentence. He argues that here, the sentencing judge failed to appreciate that the guilty plea saved the state considerable expense, displayed his remorse and potential for rehabilitation, and spared witnesses and victims the inconvenience of testifying at both a preliminary inquiry and a trial.

Analysis

[22] A plea of guilt does not entitle an offender to a set standard of mitigation. The amount of credit a guilty plea attracts will vary in each case. In R. v. Faulds (1994), 20 O.R. (3d) 13 (C.A.), at para. 14, this court held that "[t]he effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable"; see also R. v. Carreira, 2015 ONCA 639, 337 O.A.C. 396, at para. 15.

[23] In my view, this case falls within the latter category. The appellant had no defence to the charges against him. The Crown's case included DNA evidence that conclusively established that the appellant had conceived a child with E.B. when she was just 12 years of age. Unlike the accused in Faulds, the appellant chose to test the Crown's evidence relating to the more aggravating aspects of his case. As a result, E.B. was made to relive the assaults in her testimony and to undergo cross-examination designed to impugn her credibility. The guilty plea, therefore, did not conserve judicial resources or provide a degree of finality to the complainant. Any mitigating effect of the guilty plea was further reduced by the appellant's refusal to accept responsibility for all but one of the sexual assaults that the trial judge found he committed. To make matters worse, the appellant attempted to minimize his responsibility for the one admitted incident by testifying that E.B. had effectively "come on to him".

[24] In these circumstances, the sentencing judge reasonably concluded that the appellant's guilty plea did not deserve any weight as a mitigating factor. I would not give effect to this ground of appeal.

2. Did the Sentencing Judge Err in Failing to Consider Rehabilitation as a Sentencing Principle?

[25] The appellant submits the sentencing judge erred in principle by failing to consider his rehabilitative prospects. The appellant argues that where an offence has been committed wholly or in part due to the consumption of drugs or alcohol, the sentence imposed should assist in rehabilitating the offender. The appellant argues that the sentencing judge disregarded this principle and therefore imposed an unduly harsh sentence.

Analysis

[26] In my view, the sentencing judge understood the need to take the appellant's rehabilitative potential into account. The sentencing judge had before him information relevant to rehabilitative considerations through the pre-sentence report and sentencing submissions. He explicitly acknowledged that rehabilitation is a guiding principle for crafting an appropriate sentence. He implicitly took the appellant's rehabilitative prospects into account when he noted, at para. 42, that "[t]he defendant's involvement with a woman who has alcohol issues and is pregnant … demonstrates a lack of insight by him. To be involved with someone with alcohol and a young child invites the same atmosphere that was present at the time of these offences and suggests a risk of repetition."

[27] More importantly, the sentencing judge correctly identified deterrence, denunciation, and the appellant's Aboriginal background (addressed below) as "the most significant" principles informing sentence in this case. Section 718.01 of the Criminal Code instructs sentencing judges that "[w]hen a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct." In R. v. D. (D.) (2002), 58 O.R. (3d) 788 (C.A.), at para. 34, this court described this statutorily imposed direction as follows:

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

[28] The sentencing judge's reasons indicate that he chose to prioritize deterrence and denunciation as sentencing objectives. Given the nature and seriousness of the appellant's criminal conduct, this approach was entirely appropriate. I would not give effect to this ground of appeal either.

3. Did the Sentencing Judge Err in his Gladue Analysis?

[29] The appellant submits that the sentencing judge failed to properly consider the appellant's unique circumstances as an Aboriginal offender as required by s. 718.2(e) of the Code. Specifically, the appellant argues, the sentencing judge erred by requiring the appellant to establish evidence of a direct connection between his Aboriginal background and the particular offences as a pre-condition for the Gladue factors to be taken into account.

[30] In support of this argument, the appellant points to this court's decision in R. v. Kreko, 2016 ONCA 367, 131 O.R. (3d) 694. The accused in Kreko was an Aboriginal man who was being sentenced for several firearm offences. He had been adopted at one year of age by a non-Aboriginal family and raised without knowledge of his Aboriginal roots. Upon discovering his Aboriginal heritage, he experienced dislocation and an identity crisis. In his Gladue analysis, the sentencing judge ruled that there was no connection between the accused's Aboriginal heritage and the firearm offences. This court held that the trial judge had erred by effectively requiring proof of a causal connection between the firearm offences and the accused's Aboriginal background. After undertaking a fresh sentencing analysis and giving due consideration to the Gladue factors, this court reduced the accused's sentence from 13 years to 9 years in custody.

Analysis

[31] The law is clear that courts must "pay particular attention to the circumstances of Aboriginal offenders" in all cases, even those involving the "gravest of offences": R. v. Van Every, 2016 ONCA 87, 344 O.A.C. 326, at para. 88; Gladue, at para. 82; Ipeelee, at paras. 84-87; R. v. Jensen (2005), 74 O.R. (3d) 561 (C.A.), at para. 27; R. v. (N.) J., 2013 ONCA 251, 305 O.A.C. 175, at para. 41. When sentencing an Aboriginal offender, courts must consider:

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

(2) 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, at para. 66).

[32] When assessing the first branch of the Gladue framework, courts should not require offenders to establish a causal connection between "systemic or background factors" and the crimes for which they have been convicted: Ipeelee, at para. 82. Such a requirement "displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples" and "imposes an evidentiary burden on offenders that was not intended by Gladue": Ipeelee, at para. 82. This court has rejected a "causal connection" requirement in multiple decisions: R. v. Collins, 2011 ONCA 182, 104 O.R. (3d) 241, at paras. 32-33; Kreko, at paras. 20-21.

[33] The sentencing judge, unfortunately, did not adhere to this approach.

[34] To his credit, the sentencing judge clearly understood the importance of considering the appellant's Aboriginal background in crafting a just and proportionate sentence. In fact, the sentencing judge is to be commended for being proactive in securing a Gladue report to supplement the discussion of the appellant's Aboriginal heritage already contained in the pre-sentence report. As a result of his initiative, the sentencing judge obtained the Gladue report written by Ms. Penney as amplified by her testimony at the sentencing hearing. Counsel's submissions – and by extension, the sentencing process as a whole – undoubtedly benefitted from a more extensive record about the appellant's Aboriginal heritage.

[35] However, in spite of the sentencing judge's clear commitment to fulfilling his obligations under s. 718.2(e) of the Code, he erred in his application of the Gladue principles. The sentencing judge erred by reasoning that the appellant's Aboriginal heritage should not factor into the determination of a fit sentence as there was "no connection between the defendant's aboriginal background and the commission of the sexual assault" (emphasis added). In so concluding, the sentencing judge failed to adhere to the warnings against a causal connection requirement in Ipeelee and Kreko, and thereby committed an error in principle.

4. Does the Sentencing Judge's Error Justify a Different Sentence?

[36] Where a sentencing judge errs in applying the Gladue principles, deference gives way and an appellate court is entitled to sentence the offender afresh: Collins, at para. 38; R. v. Fraser, 2016 ONCA 745, 33 C.R. (7th) 205, at para. 20; Kreko, at paras. 27-28. A de novo sentencing analysis, however, will not necessarily lead to a different outcome: Fraser, at para. 20; R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.), leave to appeal refused, [2007] S.C.C.A. No. 34, at para. 58.

[37] In my opinion, a fresh sentencing analysis does not lead to a different outcome here. To explain this conclusion, I will first outline the proper approach for determining when an accused person's Aboriginal heritage will influence the first branch of the Gladue sentencing analysis. I will then explain why, under that approach, an eight-year sentence remains fit for the appellant.

The Proper Approach

[38] The law, reviewed above, is clear. In order to be relevant to sentencing, an offender's Aboriginal background need not be causally connected to the offence(s) for which a sentence is being imposed. In what circumstances, then, will an offender's Aboriginal background influence their ultimate sentence? The answer is "not so easily ascertained or articulated": R. v. Whitehead, 2016 SKCA 165, 344 C.C.C. (3d) 1, at para. 60. Clearly, the mere assertion of one's Aboriginal heritage is insufficient – s. 718.2(e) does not create a "race-based discount on sentencing": Ipeelee, at para. 75. Although Aboriginal offenders are not required to "draw a straight line" between their Aboriginal roots and the offences for which they are being sentenced, more is required "than the bare assertion of an offender's Aboriginal status": R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, at para. 115.

[39] It is also insufficient for an Aboriginal offender to point to the systemic and background factors affecting Aboriginal people in Canadian society. While courts are obliged to take judicial notice of those factors, they do not "necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel": Ipeelee, at para. 60 (emphasis in original); R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, leave to appeal refused, [2017] S.C.C.A. No. 274, at para. 54.

[40] The correct approach may be articulated as follows. For an offender's Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender's case. This approach finds support both in Ipeelee and decisions of this court.

[41] The Supreme Court made clear in Ipeelee, at para. 83, that systemic and background factors need to be "tied in some way to the particular offender and offence". LeBel J. went on to note that "[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence." LeBel J. elaborated on the concept of "culpability" at para. 73, explaining that "systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness."

[42] This court has followed LeBel J.'s guidance in multiple cases. In Kreko, Pardu J.A. explained at para. 23 that "the [systemic and background] 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". Watt J.A. reached a similar conclusion in Radcliffe, at para. 55: see also Monckton, at para. 116; R. v. Johnson, 2013 ONCA 177, 303 O.A.C. 111, at para. 64.

[43] From a sentencing judge's perspective, adhering to this approach requires attention to two factors.

[44] First, a sentencing judge must take judicial notice of the systemic and background factors affecting Aboriginal peoples in Canadian society. These factors include "such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples": Ipeelee, at para. 60. This list is not exhaustive.

[45] Second, a sentencing judge must consider whether those systemic and background factors "bear on the [offender's] culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing": Kreko, at para. 23. This inquiry, by necessity, requires the sentencing judge to consider whether those factors have impacted the offender's own life experiences – in other words, whether the offender has "lift[ed] his life circumstances and Aboriginal status from the general to the specific": Monckton, at para. 117; R. v. Bauer, 2013 ONCA 691, 119 O.R. (3d) 16, at para. 13. If systemic and background factors have impacted an Aboriginal offender's own life experiences, the sentencing judge must then consider whether they "illuminate the offender's level of moral blameworthiness" or disclose the sentencing objectives that should be prioritized: Radcliffe, at para. 53; Kreko, at para. 23. The Supreme Court provided the following comments about moral blameworthiness in Ipeelee, at para. 73:

Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability". Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. [Underline Emphasis Added, Italic Emphasis in Original]

[46] Sentencing judges must therefore be attentive to whether the circumstances of Aboriginal offenders – viewed in the light of the systemic and background factors described above – "diminish their moral culpability". In conducting this inquiry, however, courts must display sensitivity to the "devastating intergenerational effects of the collective experiences of Aboriginal peoples", which are often difficult to quantify: Ipeelee, at para. 82. When inquiring into "moral blameworthiness", courts must ensure they do not inadvertently reintroduce the same evidentiary difficulties that Ipeelee sought to remove: Kent Roach, "Blaming the Victim: Canadian Law, Causation and Residential Schools" (2014) 64 University of Toronto L.J. 566, at 588-593; Clayton Ruby, Gerald Chan, Nader R. Hasan, Annamaria Enenajor, Sentencing: Ninth Edition (Markham: LexisNexis Inc., 2017), at 712; R. v. Quinn, 2015 ABCA 250, 606 A.R. 233, at para. 49 (per Biebly J.A., dissenting). I find persuasive the following observation by the Saskatchewan Court of Appeal in Whitehead on the approach that sentencing judges should follow:

The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning. Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge … In applying this approach, sentencing courts must pay careful attention to the complex harms that colonisation and discrimination have inflicted on Aboriginal peoples.

[47] Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee, at para. 83. They are only relevant to assessing the "degree of responsibility of the offender", and to considering whether non-retributive sentencing objectives should be prioritized. Accordingly, Gladue and Ipeelee do not detract from the "fundamental principle" that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee at para. 73. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a "different method of analysis": Ipeelee, at para. 59. A different method of analysis does not necessarily mandate a different result: Kakekagamick, at para. 36. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation: Gladue, at para. 78; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 44. As this court recognized in Kakekagamick, at para. 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.

Applying the Proper Approach

[48] Considering a fit sentence for the appellant in the light of the above framework, I would not interfere with the eight year sentence imposed by the sentencing judge. I say this for two reasons.

[49] First, the evidence does not demonstrate that the systemic and background factors affecting Aboriginal peoples in Canada have impacted the appellant in a way that bears on his moral blameworthiness. In this case, the pre-sentence report and the Gladue report do not show that the appellant's reported childhood difficulties or alcoholism were linked to systemic, background or intergenerational factors related to his Aboriginal heritage. Unlike in Kreko, there is no evidence that (1) such factors contributed to the appellant's experiencing dislocation or an identity crisis coinciding with his involvement in the criminal justice system, or that (2) such factors otherwise impacted the appellant's moral blameworthiness: see Bauer, at para. 14.

[50] Second, even assuming the Gladue factors carried greater weight in this case, the nature of the appellant's offence cries out for deterrence and denunciation. I agree with the sentencing judge that the abuse inflicted on E.B. by the appellant "carries with it all of the most distressing features" of sexual assault", for the following reasons:

(1) As the sentencing judge noted, the appellant "abused one of the underlying principles of a family in our society that parents have an overriding obligation to protect children." In my view, the sentencing judge was correct to find that the appellant assumed the role of a step-father to E.B. His abuse constituted a fundamental betrayal of her trust.

(2) The appellant's sexual assaults included acts of physical violence. Moreover, the appellant coerced E.B. into keeping the abuse a secret by threatening her brother.

(3) The appellant's actions had a devastating impact on E.B., as outlined earlier in these reasons and in greater depth in the victim impact statement filed at the sentencing hearing. E.B. lived through a pregnancy at age 12 and gave birth at age 13. She has become estranged from her family and child. The sentencing judge noted that E.B. continued to feel the physical and emotional effects of the appellant's abuse throughout her teenage years, "continues to wrestle with her internal demons and confusion", and "[b]y virtue of the sexual assaults and pregnancy, [has] lost her entire adolescence."

[51] This court's comments at para. 51 of N. (J.), a case concerning a similar set of facts, equally applies here:

this is simply one of those cases where the crimes were so heinous, and the aggravating factors were so compelling, that the appellant's Aboriginal status should not affect the length of the sentence imposed.

[52] In circumstances like these, this court has held that "upper single digit to low double digit penitentiary terms will generally be appropriate": D.D., at para. 44. I see no reason to interfere with the eight year sentence imposed.

DISPOSITION

[53] For these reasons, I would grant the appellant leave to appeal his sentence but dismiss the appeal.

"Gloria Epstein J.A."

"I agree. David Watt J.A."

Brown J.A. (Concurring):

[54] The appeal from sentence was dismissed at the conclusion of the hearing on September 5, 2017. I agree with that disposition. I also agree with my colleague, Justice Epstein, that no error was committed by the sentencing judge in his treatment of the appellant's guilty plea and prospects for rehabilitation.

[55] I agree with my colleague's concise and useful summary of the jurisprudence emanating from R. v. Gladue, [1999] 1 S.C.R. 688 contained in the section of her reasons entitled, "The Proper Approach". However, I must respectfully disagree with her conclusion that the sentencing judge erred in his application of the Gladue principles. In my view, he did not. However, our disagreement has no effect on the result; we both agree the sentence imposed was fit.

[56] My colleague and I agree the sentencing judge clearly understood the importance of considering the appellant's Aboriginal background in crafting a proportionate and fit sentence. One can see this in several portions of his reasons and the record. For example:

(i) Gladue holds that s. 718.2(e) creates a judicial duty to give its remedial purpose real force: at para. 34. The sentencing judge recognized this duty: "The legal imperatives for the sentencing of aboriginal offenders ultimately fall to the sentencing judge even where, as here, counsel and Correctional Services have limited experience." The record of the sentencing process shows the sentencing judge pushed counsel to address s. 718.2(e) in a fulsome fashion; it was the sentencing judge who was instrumental in securing a discrete Gladue report; and

(ii) Gladue holds that s. 718.2(e) directs sentencing judges to undertake the process of sentencing aboriginal offenders differently in order to endeavor to achieve a truly fit and proper sentence in the particular case: at paras. 33 and 93(5). The sentencing judge recognized this, writing: "The defendant is aboriginal and therefore a different sentencing analysis is necessary."

[57] The sentencing judge also was fully alive to the goal s. 718.2(e) seeks to achieve in the sentencing of an aboriginal offender. Gladue holds that s. 718.2(e) is "directed, in particular, at reducing the use of prison as a sanction, at expanding the use of restorative justice principles in sentencing, and at engaging in both of these objectives with a sensitivity to aboriginal community justice initiatives when sentencing aboriginal offenders": at para. 48. During the sentencing process, the sentencing judge was critical of the initial Pre-Sentencing Report because it did not adequately address the issue of alternatives to incarceration. Later in the sentencing hearing, he inquired of the author of the Gladue report about the alternatives to incarceration she had identified through her conversations with correctional officers and the Woodland Cree authorities. During the subsequent submissions by counsel on sentence, the sentencing judge stated that "the whole idea of these reports is to see to what extent the aboriginal community can be of – can create a support…"

[58] Did the sentencing judge properly apply the Gladue principles to the process of crafting a proportionate and fit sentence for the aboriginal offender who stood before him? To answer that question, the entirety of his reasons dealing with the issue must be examined. The sentencing judge considered the application of Gladue principles in the following portions of his reasons:

Principles of Sentencing

The principles in section 718.2(e) CCC, have specific reference to the defendant since he is Aboriginal. The Supreme Court of Canada recently restated the positive duty on a judge to take into account the circumstances of Aboriginal offenders in sentencing in all cases. As a consequence, I requested an assessment by someone with the necessary training and experience for incorporation into a report. In Alberta, guidelines are in the drafting stage for the assistance of assessors and for the courts to enable judges to perform their obligations where the offender is Aboriginal. Specifically, the focus in the assessment and report is on 'alternatives to incarceration' as mandated in section 782.2 (e) CCC in order to deflect "systemic racial discrimination" in the criminal justice system.

Gladue Assessment and Reasons

The first steps of the inquiry I am required to conduct include the unique system or background circumstances common to aboriginal offenders as a group; and the particular circumstances of the defendant which resulted in him committing the crime for which he is before the court.

I have great difficulty relating the defendant's aboriginal circumstances to his particular circumstances which resulted in him committing the sexual assault. There was no evidence that his adoption into a non-native family had any connection . While I accept that he feels a certain satisfaction at his reconnection to his birth parents, I am not satisfied that that is a unique feature to his aboriginal background. There are many adopted children who feel driven as adults to reconnect to their birth family. There is no evidence that his alcohol and substance abuse was in any way linked to his aboriginal background. To the contrary, the evidence before me is that his birth family does not have alcohol or substance abuse issues. The fact that the defendant's current girlfriend has alcohol issues is concerning only because the defendant seems not to appreciate that in order to free himself from his addictions, he must choose friends and relationships which are free of addictions. While the defendant has claimed that his alcohol issues contributed to the sexual assaults, there is nothing to suggest that the defendant's alcohol issues are unique to his aboriginal background.

To conclude the first two steps in the enquiry, I see no connection between the defendant's aboriginal background and the commission of the sexual assault. [Emphasis added]

Reasons

Having conducted the Gladue assessment, I find that this case falls into the class of very serious cases where a fit sentence as between an aboriginal or non-aboriginal offender would be similar …

[59] Gladue instructs sentencing judges, when applying s. 718.2(e) in the sentencing process, "to pay particular attention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from those of non‑aboriginal offenders": para. 66. The circumstances unique to aboriginal offenders include "[t]he unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts": at para. 66. As Ipeelee (and the various decisions of this court identified by my colleague) remind sentencing judges, this does not amount to imposing on the aboriginal offender an obligation to establish a "causal link" between the systemic or background factors and the commission of the offence. Instead, Ipeelee frames the nature of the appropriate inquiry in the following terms, at para. 83:

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. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [Emphasis added]

[60] Accordingly, a sentencing judge's objective when applying s. 718.2(e) is not to ascertain whether a causal link has been established between the systemic and background factors of the aboriginal offender and the commission of the offence. Instead, a sentencing judge must inquire whether those factors are "tied in some way" to the offender and the offence, or "may have played a part in bringing the particular aboriginal offender before the courts", or whether the unique circumstances of the aboriginal offender "bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized." While none of those inquiries rises to the level of requiring the demonstration of a "causal link," forensic necessity requires some evaluation, in an evidence-based fashion, into the relationship between the factors and the unique circumstances of the aboriginal offender who stands before the court for sentencing.

[61] Read as a whole, I do not consider the sentencing judge's reasons as incorrectly requiring the demonstration of a causal link between the systemic and background factors identified in Gladue and the commission of the specific offence. Examining the substance of his analysis, I conclude the sentencing judge faithfully undertook the inquiries set down in Gladue and Ipeelee – i.e. Might the unique systemic or background factors have played a part in bringing the particular aboriginal offender before the courts? Were those factors "tied in some way" to the offender and the offence? Did the unique circumstances of this particular aboriginal offender "bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized"?

[62] The sentencing judge used a variety of terms to describe the results of his evaluation of the relationship between the systemic and background factors and the unique circumstances of the appellant: "relating"; "connection"; "linked"; "nothing to suggest…unique".

[63] My colleague concludes the sentencing judge erred because his language of "no connection" disclosed improper reasoning resting on the need to demonstrate a causal link. With respect, when his reasons are read as a whole, I do not see such an error. Indeed, I see little substantive difference between the sentencing judge's consideration of the systemic and background factors in the particular circumstances of this case and that of my colleague. And they both arrive at the same fit sentence.

[64] Perhaps sentencing judges should avoid using a word such as "connection" when expressing the results of their Gladue analysis. My colleague chooses different language, concluding the evidence did not show the systemic or background factors "impacted" the appellant, or were "linked" to his difficulties, or "contributed" to his experiencing dislocation: at para. 49. Other courts have used other language, expressing the relationship in terms such as: whether the systemic and background factors "manifested" themselves in the offender's particular circumstances: R. v. Whitehead, 2016 SKCA 165, at para. 67; whether the systemic and background factors were "present" in the offender's "life experiences and general background": Whitehead, at para. 70; whether such factors were "inextricably embedded" in the offender's life experiences and clearly bore on his culpability for the offences: R. v. Okimaw, 2016 ABCA 246, at para. 75; or, whether there was an "impact of the offender's Aboriginal heritage on his moral culpability": R. v. Swampy, 2017 ABCA 134, at para. 36.

[65] In the result, I see no reversible error in the sentencing judge's substantive Gladue analysis. I agree with my colleague that there is no reason to interfere with the eight-year sentence imposed.

Released: JAN 30 2018

"David Brown J.A."

Footnote

[1] The appellant's conviction on the touching count was stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.