COURT OF APPEAL FOR ONTARIO
CITATION: R. v. McNeil, 2020 ONCA 595
DATE: 20200922
DOCKET: C65912
Simmons, van Rensburg and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert McKinney McNeil
Appellant
Sarah Weinberger, for the appellant
Joanne Stuart, for the respondent
Heard: June 16, 2020 by video conference
On appeal from the sentence imposed on December 21, 2017 by Justice Anthony F. Leitch of the Ontario Court of Justice.
Zarnett J.A.:
INTRODUCTION
[1] The appellant is an Indigenous man from Six Nations of the Grand River. He appeals the ten-year global sentence (less two years’ credit for pre-sentence custody) that he received after he pled guilty to a number of offences, including assault, aggravated assault, assault on a peace officer, and breach of probation. All of the offences were committed while the appellant was in custody. The aggravated assault was particularly vicious; it left the victim severely brain damaged, visually impaired, and confined to a wheelchair for life.
[2] The appellant argues that the sentencing judge failed to properly consider his circumstances as an Aboriginal offender as required by s. 718.2(e) of the Criminal Code, R.S.C. 1985, c. C-46, and the principles set out by the Supreme Court of Canada in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. He seeks to introduce fresh evidence of a post-sentencing diagnosis of mental illness, as well as a Gladue report that (for reasons described below) was not obtained for the appellant’s sentencing hearing. The appellant submits that we should reconsider his sentence and substitute a global sentence of seven years less pre-sentence custody.
[3] The Crown does not agree that the sentencing judge erred in his application of the Gladue factors. However, the Crown does not oppose admission of the fresh evidence and agrees that the sentence can be reconsidered in light of it. The Crown submits that the result of the reconsideration should be a dismissal of the appeal, except to the extent that the number of days to be credited for pre-sentence custody is corrected and the victim fine surcharge is set aside.
[4] For the reasons that follow, I would admit the fresh evidence, grant leave to appeal sentence, set aside the victim fine surcharge, and reduce the sentence to reflect a credit for an additional seven days of pre-sentence custody. I would otherwise dismiss the appeal. In the circumstances of this case, after consideration of the fresh evidence, the ten-year global sentence less credit for pre-sentence custody remains fit.
THE CIRCUMSTANCES OF THE OFFENCES
[5] The offences in issue occurred in 2016 and 2017.
[6] On July 22, 2016, the appellant was in a holding cell at the Hamilton courthouse. He was on probation for other offences and the terms of his probation required him to keep the peace. The appellant, together with Kyle Duncan, assaulted David Love. They both punched Mr. Love until he fell to the ground. Mr. Duncan continued to punch Mr. Love while he was on the ground. The appellant stomped on Mr. Love’s head using a bench to increase the force of the blows. Mr. Love was not, however, badly injured.
[7] Four days later (on July 26, 2016), while bound by the same probation terms, the appellant launched a vicious surprise attack on Mr. Duncan at the Hamilton Wentworth Detention Centre. He “sucker-punched” Mr. Duncan while walking past him and continued punching him well beyond the point at which Mr. Duncan had lost consciousness. Once Mr. Duncan was on the ground, the appellant repeatedly stomped on his head until restrained by other inmates.
[8] The results of this attack were devastating. Mr. Duncan suffered severe brain injury, impaired vision, behavioural changes, and loss of the use of his left arm and leg. He is confined to a wheelchair for life and will need 24-hour care for the foreseeable future. The impacts of the attack extend beyond Mr. Duncan to his mother, siblings, and young daughter.
[9] On October 10, 2017, while awaiting trial on these assaults, the appellant attacked a correctional officer who was preparing to move him from the detention centre to court. The appellant struck the correctional officer. In doing so, the appellant’s handcuffs scraped across the officer’s face causing cuts and a bloody lip.
[10] The sentencing judge described all three assaults as “surprise attacks on the victims, giving them little chance to repel the assault.”
THE PLEA OF GUILTY AND THE SENTENCING HEARING
[11] On December 15, 2017, the appellant, then 26 years old, pled guilty before the sentencing judge to a number of offences. In relation to the attack on Mr. Love, he pled guilty to assault contrary to s. 266 of the Code and to breach of probation contrary to s. 733.1(1). In relation to the attack on Mr. Duncan, he pled guilty to aggravated assault contrary to s. 268 of the Code and to breach of probation. In relation to the attack on the corrections officer, he pled guilty to assault on a peace officer contrary to s. 270(1)(a) of the Code.
[12] The Crown filed the appellant’s criminal record. It includes two convictions for assault, two convictions for assault resisting arrest, a conviction for robbery, and seven convictions for breaching court orders. The Crown also filed a victim impact statement from Mr. Duncan’s mother, medical evidence about the extent of Mr. Duncan’s injuries, and a video showing the attack on Mr. Duncan.
[13] Counsel advised the sentencing judge that the appellant was an Indigenous person and provided him with limited details about the appellant’s heritage. No Gladue report was filed, and the appellant did not request the opportunity to obtain one. Rather, counsel told the sentencing judge that the appellant was waiving the preparation of a Gladue report, and the appellant confirmed that that was his decision.
[14] The Crown requested a sentence of nine years for the aggravated assault on Mr. Duncan, one year consecutive for the assault on the corrections officer, and six months concurrent for the assault on Mr. Love. This amounted to a global sentence of ten years for all offences, including the accompanying breaches of probation, less pre-sentence custody. The appellant’s counsel suggested a sentence of eight years on the aggravated assault and six to nine months for the other offences, amounting to a global sentence of approximately eight years and six months to eight years and nine months, less pre-sentence custody. Both parties agreed that the appellant should be credited 1.5 days for each day served prior to his guilty plea.
THE SENTENCING JUDGE’S DECISION
[15] The sentencing judge observed that since there were multiple assaults on different victims, all in custody, consecutive sentences would be appropriate. He concluded that, before application of the totality principle, the appropriate sentences would aggregate to thirteen years: two years consecutive for the assault on Mr. Love (with a concurrent 90-day sentence for breach of probation); ten years consecutive for the assault on Mr. Duncan (with a concurrent six-month sentence for breach of probation); and one year consecutive for the assault on the corrections officer. He reduced the total sentence under the totality principle to ten years less pre-sentence custody. In addition, he imposed certain ancillary orders and victim fine surcharges totalling $1,000.
[16] In coming to that conclusion, the sentencing judge referred to the range of sentences for serious assaults as being from seven to thirteen years, but noted that the injuries to Mr. Duncan in this case were worse than in most of the cases cited for that range. He also noted that in this case, unlike the cited cases, there were multiple assaults on different victims all while the appellant was in custody. This “repetitive violence while in custody” demonstrated “a startling pattern of complete disregard for the rule of law and evidences the need to … protect the public.”
[17] As aggravating factors, the sentencing judge referred to the appellant’s criminal record of violence and breach of court orders, the severe impact on the victims (especially Mr. Duncan), the vicious and surprise nature of the attacks, the extreme violence (especially in the attack on Mr. Duncan), and the fact that the attacks were committed while the appellant was in custody (where corrections officers and other inmates, like other members of society, are entitled to be safe). He noted that the predominant sentencing considerations for offences committed while in custody and with this level of violence were deterrence and denunciation, as well as specific deterrence of the appellant.
[18] After referring to the mitigating factor of the appellant’s guilty plea, the sentencing judge stated that the appellant had not otherwise indicated remorse. He also noted that there was little in the way of rehabilitation prospects, except that the appellant’s mother was said to be supportive.
[19] The sentencing judge referred to the appellant’s diagnosis of Attention Deficit Disorder (“ADD”) and Attention Deficit Hyperactivity Disorder (“ADHD”) but stated that he had no evidence as to how those conditions related to the offences in issue.
[20] Although the appellant had declined to participate in a Gladue report, the sentencing judge also accepted and referred to the fact that the appellant had an Aboriginal heritage and wished to re-establish a connection with that heritage. After quoting Gladue, at paras. 78-79, the sentencing judge stated:
Even in the presence of better and more fulsome information about this heritage it is the kind of case described by the Supreme Court of Canada where “terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same” referring to Gladue, at para. [79]. Denunciation and deterrence are the predominating sentencing considerations for offences of violence carried out in custody, especially the extreme attack on Kyle Duncan. Specific deterrence is also an important principle for this offender with a lengthy criminal record who commits jail violence while bound by court orders. The sentence must send a message to him that it will not be tolerated and any future violence while serving his sentence will be treated harshly.
FRESH EVIDENCE AND THE PARTIES’ POSITIONS
[21] The appellant seeks to introduce medical records dated between December 2017 and June 2018 as fresh evidence. They show that in the spring of 2018, the appellant was diagnosed with schizophrenia and chronic paranoia. They also show that in April 2018, he was found to be incapable of consenting to treatment with anti-psychotic medications, a finding that was confirmed by the Consent and Capacity Board on May 5, 2018.
[22] The appellant also seeks to have admitted as fresh evidence a Gladue report, dated October 28, 2019, which was prepared to support this appeal. The Gladue report details how the appellant has suffered from, among other things, abuse, racism, homelessness, and substance misuse, situated in the context of inter-generational trauma stemming from his great-grandparent’s attendance at a residential school.
[23] The appellant argues that the sentencing judge failed to properly consider his circumstances as an Aboriginal offender, as required by s. 718.2(e) of the Code. He submits that, taking into account the fresh evidence, a global sentence of seven years less pre-sentence custody is appropriate. He arrives at the sentence by asking for a six-year sentence for the attack on Mr. Duncan, a consecutive one-year sentence for the attack on Mr. Love, and a concurrent one-year and nine-month sentence for the attack on the corrections officer.
[24] As noted, the Crown does not agree that the sentencing judge erred but does not oppose the admission of the fresh evidence and agrees that we may reconsider the sentence. However, the Crown submits that the ten-year global sentence continues to be fit in light of the fresh evidence.
ANALYSIS
Admission of the Fresh Evidence
[25] The appellant’s diagnosis of mental illness is close enough in time to the sentencing hearing so as to cast doubt on whether his decision not to have a Gladue report prepared was fully informed. I would admit the medical records and the Gladue report as fresh evidence.
Reconsideration of Sentence on Appeal
[26] The Supreme Court of Canada recently affirmed the standard of review for sentencing: R. v. Friesen, 2020 SCC 9. Generally, “an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit, or (2) the sentencing judge made an error in principle that had an impact on sentence”: Friesen, at para. 26.
[27] In Ipeelee, at para. 87, the Supreme Court clarified that “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.” As this court directed in R. v. Pelletier, 2012 ONCA 566, 291 C.C.C. (3d) 279, at paras. 141, 148, where a sentencing judge errs in this respect, the appellate court is required to consider relevant and fresh evidence in determining the fitness of the sentence originally imposed.
[28] In this case, as explained below, I do not consider the sentencing judge to have erred based on the information that was before him. However, in my view, the same approach followed in Pelletier should apply when, for reasons other than an error by the sentencing judge, relevant information, such as a Gladue report, was not available at the time of sentencing, and there are grounds to admit it as fresh evidence on appeal.
[29] This approach was applied in R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, in which an offender’s Aboriginal status was not brought to the attention of the trial judge on sentencing but was adduced as fresh evidence on appeal. This court explained, at para. 113:
Based on the record that was before him, I can find no error in the trial judge’s analysis. Nevertheless, s. 718.2(e) requires a consideration of an offender’s Aboriginal status at sentencing: see Kakekagamick, at para. 37; and R. v. Radcliffe, 2017 ONCA 176 (Ont. C.A.), at para. 62. In light of the fresh evidence about the appellant’s Aboriginal heritage, this is an appropriate case to reassess the fitness of his sentence. [Emphasis added.]
[30] In reconsidering the sentence, this court is still required to pay deference to aspects of the sentencing judge’s analysis. As explained in Friesen, at para. 28:
[I]n sentencing afresh, the appellate court will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent they are not affected by an error in principle. This deference limits the number, length, and cost of appeals; promotes the autonomy and integrity of sentencing proceedings; and recognizes the sentencing judge’s expertise and advantageous position (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.), at paras. 15-18).
[31] Additionally, reconsideration of the sentence does not necessarily result in a different outcome. The appellate court may be satisfied that, notwithstanding the fresh evidence, the sentence imposed by the trial judge remains fit: see Monckton, at para. 113; Pelletier, at paras. 148-52; and R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, at para. 8.
Reconsideration Based on the Medical Records
[32] In this case, although the medical records provide a basis to admit the Gladue report, they otherwise do not, on their own, provide a reason to consider the sentence unfit. The medical records fall short of demonstrating on a balance of probabilities that the appellant suffered from the mental conditions they describe at the time he committed the offences in July 2016, namely the attack on Mr. Love and the attack on Mr. Duncan. For example, the Mental Health Clinical Notes dated June 28, 2018 state, in part: “Mr. McNeil is not known to have a significant history of major mental illness prior to his current incarceration. … Review of Mr. McNeil’s Health Care file suggested the onset of psychotic symptoms as occurring in provincial custody in 2017.” For this reason, the medical records do not bear on the moral blameworthiness of the appellant in relation to the 2016 offences. Further, without evidence of Mr. McNeil’s progress while incarcerated, they do not enhance significantly his prospects for rehabilitation.
[33] One could infer from the medical records that the mental conditions they describe may have been present, to some extent, at the time of the attack on the corrections officer in October 2017. Nevertheless, that would not materially affect the global sentence as the sentence imposed by the sentencing judge for that offence was designated to run concurrently. Moreover, although the sentencing judge imposed a sentence of one year for that offence, the appellant’s submission in this court would allocate a term of imprisonment of one year and nine months for that offence (also to run concurrently).
Reconsideration Based on the 2019 Gladue Report
[34] I agree with the appellant that the Gladue factors must be considered no matter how serious the offences. Paragraph 79 of Gladue is not to be taken as suggesting that an Aboriginal offender is to be treated as though they were non-Aboriginal for some category of “serious” offences: Ipeelee, at paras. 84-85. Indeed, in R. v. Altiman, 2019 ONCA 511, 56 C.R. (7th) 83, at para. 85, this court recently cautioned that:
[T]he Gladue analysis conducted by a sentencing judge must focus on the circumstances of the offender that may bear on the offender’s moral culpability for the offence. A sentencing judge cannot let the seriousness of the offence deflect the court away from that focus. [Emphasis added.]
[35] Nevertheless, I do not agree with the appellant that the sentencing judge, because of his emphasis on the seriousness of the offences and reference to para. 79 of Gladue, approached the matter as though Gladue factors did not apply. The sentencing judge was entitled to weigh the Gladue factors with other applicable sentencing principles in light of the gravity of the offences:
As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence. In all instances, the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. [Ipeelee, at para. 51.]
[36] That said, the 2019 Gladue report provides much more information, as well as more detailed information, than what was available to the sentencing judge. A Gladue report is an indispensable tool in the sentencing of an Aboriginal offender: Ipeelee, at para. 60. In light of it, I turn to the effect it has on the fitness of the sentence.
[37] In doing so, I accept the sentencing judge’s description of the offences, his observation that they should, before application of the totality principle, attract consecutive sentences, his description of the aggravating and mitigating factors, and his description of the impact of the offences on their victims.
The 2019 Gladue Report
[38] The Gladue report explains that the appellant’s great-grandmother attended a Residential School, the Mohawk Institute, ultimately resulting in intergenerational trauma, parenting issues, substance abuse, and violence in the appellant’s grandmother’s life, his mother’s life and the appellant’s life. The report contains the appellant’s description of his upbringing as chaotic, dysfunctional, characterized by poverty, neglect, violence, substance misuse, and instability.
[39] At eight years old, the appellant was removed from his home by the Children’s Aid Society. He was placed with his grandmother for a year, and then transitioned through a number of non-Indigenous foster placements. He was diagnosed with ADHD at age nine and treated with Ritalin. He had limited contact with his grandmother, mother, and nine siblings, and felt “disconnected” from family and culture. When he “aged out” of the care of the Children’s Aid Society at 17 years old, he became homeless. He lived in a Youth Shelter for two years while he tried to complete his education and get his life on track. His offending behaviour began with an alcohol-fuelled assault at age 19.
[40] The author of the report observed that a number of systemic and background factors that affect Aboriginal persons in Canada were present in the appellant’s life, including:
• mutigenerational familial instability, violence, breakdown, and fragmentation;
• the absence of any positive adult role models or mentors;
• involvement with the Children’s Aid Society;
• lack of educational attainment, resulting in unemployment, low income, poverty, addiction, and criminal involvement;
• intergenerational effects, including loss of cultural identity and connection to the larger Indigenous community.
The Principles
[41] In Ipeelee, the Supreme Court reviewed the methodology for determining a fit sentence in cases of Aboriginal offenders. The Court reiterated that s. 718.2(e) and the Gladue analysis “should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal”: at para. 71. The fundamental principle of sentencing remains the determination of a sentence that is “proportionate to both the gravity of the offence and the degree of responsibility of the offender”: Ipeelee, at paras. 39, 73. The Supreme Court explained the purpose of s. 718.2(e) and the Gladue analysis at para. 59 as follows:
[Section] 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37).
[42] With respect to the “different method of analysis” to be used in determining a fit sentence, the Supreme Court provided the following direction, at para. 59:
When sentencing an Aboriginal offender, a judge must 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 (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).
[43] As this court summarized in F.H.L., at para. 40:
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.
[44] The Supreme Court, in Ipeelee, at para. 73, elaborated on how an Aboriginal offender’s circumstances may affect their moral blameworthiness:
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 their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.
[45] With respect to the sentencing objectives that should be prioritized, where systemic and background factors played a significant role in bringing the particular offender before the courts:
[I]t is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. [Gladue, at para. 69; see also Ipeelee, at para. 73.]
[46] Consideration of the types of sanctions which may be appropriate “bears not on the degree of culpability of the offender, but on the effectiveness of the sentence itself”: Ipeelee, at para. 74. In Ipeelee, at para. 74, the Supreme Court explained:
The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.
Application of the Principles
[47] I agree with the argument of the Crown that consideration of the Gladue factors in this case, based on the information in the 2019 Gladue report, does not lead to a reconsidered global sentence of less than ten years before credit for pre-sentence custody.
[48] I accept that many of the systemic and background factors that affect Aboriginal people in Canadian society have specifically impacted the appellant’s own life experiences.
[49] In assessing whether that bears on the appellant’s moral culpability for the offences in question, the jurisprudence is clear that a direct causal chain need not be shown. In F.H.L., at para. 46, this court explained that:
The link between systematic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning. Instead, the analysis is based on inference drawn from the evidence based on the wisdom and experience of the sentencing judge.
[50] I am satisfied that the appellant’s constrained life circumstances have some bearing on his moral culpability for these offences. The appellant’s experiences with physical and emotional abuse, disconnection from family and culture, lack of positive role models, substance misuse, and homelessness at a young age form part of the context underlying the offences, as they played a part in bringing him before the courts.
[51] That said, the appellant’s commission of these offences must still be regarded as involving a significant degree of moral blameworthiness. The offences involved unprovoked, surprise, violent attacks on others while the appellant was in custody. None of the attacks gave the victims an opportunity to defend themselves. In the case of the attack on Mr. Duncan, the attack continued even after Mr. Duncan had lost consciousness.
[52] Further, there can be no serious issue in this case as to “whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the [appellant] is a member”: Gladue, at para. 69. It would be unreasonable to assume that the community of which the appellant is a member lacks a strong interest in the safety of persons who are incarcerated. Separation, deterrence and denunciation are therefore appropriately predominating principles when violent crimes such as these are committed by a person in custody against other persons in custody. Moreover, where an offence is committed against a peace officer, “primary consideration” must be given to the objectives of denunciation and deterrence: Code, s. 718.02.
[53] Nor can it be suggested that there are alternative sentencing procedures that may more effectively achieve the objectives of sentencing for this particular offender and his particular community. As mentioned, the appellant has always taken the position that his sentence should include a lengthy period of imprisonment.
[54] Furthermore, as the Court said in Gladue, at para. 78:
…we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant.
[55] The circumstances of this case do not mark it as one where the principles of restorative justice should assume a more prominent role. The fresh evidence does not indicate that the appellant has shown significant remorse or an understanding of the consequences of his actions, beyond the Gladue report writer’s observation that the appellant recognizes that “to obtain legitimate employment … he first must address his mental health issues, and distance himself from his criminal lifestyle and similarly oriented peers”.
[56] The fresh evidence also does not describe progress the appellant has made while incarcerated. The Gladue report outlines certain beneficial programs available to those in custody, but there is no evidence that the appellant is accessing them. It also describes beneficial programs available in the community post-release, but there is no evidence the appellant will access them. As the Gladue report states, “his post-release plan remains largely undefined”.
[57] Turning to the length of the sentence, the Court stated in Gladue, at para. 79, that:
[E]ven where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non‑aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.
[58] As noted above, the Supreme Court subsequently clarified that this generalization regarding serious offences “was not meant to be a principle of universal application”, and that “[t]here is no sense comparing the sentence that a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, because there is only one offender standing before the court”: Ipeelee, at paras. 85-86.
[59] The Crown points out that sentences in the range of nine to twelve years were considered fit for Indigenous offenders who committed aggravated assaults and other offences in Pelletier, at paras. 131, 152; in R. v. Hess, 2017 ONCA 220, at para. 24; and in R. v. Cardinal, 2015 BCCA 58 at para. 1.
[60] The appellant submits that where an aggravated assault was committed in custody resulting in life-threatening injuries, a sentencing range of eight to twelve years is appropriate. But where Gladue factors and mental health issues are present, he argues that a sentence lower than that range can be justified. He notes that a seven-year sentence for an aggravated assault on a corrections officer was imposed on an Indigenous offender in R. v. Beaulieu, 2015 BCSC 354, and that 78 months (6½ years) was the sentence allocated for an equally devastating aggravated assault committed by an Indigenous offender while incarcerated in Cardinal (a decision on which the Crown also relies).
[61] Beaulieu involved an offender with reduced moral blameworthiness due to the presence of mental illness at the time he committed the offence. The appellant has not shown that his mental illness existed at the time of the 2016 offences. Furthermore, the assault on Mr. Duncan caused injury more serious than that in Beaulieu. In the words of Mr. Duncan’s mother in her victim impact statement: “It’s like Kyle died but my Kyle is still breathing.” As well, unlike Beaulieu, here the sentence must reflect that there were multiple assaults on different occasions, two on other persons in custody and one on a corrections officer.
[62] In Cardinal, in addition to the aggravated assault committed while detained, the accused was convicted of participation in a planned daylight robbery of a jewellery store. Before consideration of the totality principle and the accused’s status as an Indigenous offender, the trial judge concluded a six-year sentence was appropriate for the robbery and a nine-year sentence was appropriate for the aggravated assault. It was only after taking account of all the circumstances, including the Crown’s position having regard to those circumstances (11 years less pre-sentence custody), that the trial judge imposed an 11-year global sentence (less pre-sentence custody), and allocated 4½ years to the robbery and 6½ years to the aggravated assault.
[63] In this case, the trial Crown’s global position was ten years (less pre-sentence custody), a position Crown counsel takes up again in this court. The global sentence must reflect not only the vicious and devastating aggravated assault, but the fact that the appellant committed two other serious offences, both while incarcerated, one against a fellow inmate and one against a corrections officer.
[64] In my view, after considering the 2019 Gladue report and the information it provides about the circumstances of the appellant, in light of the other relevant circumstances, a global sentence of ten years less pre-sentence custody remains a fit and proper sentence. There being no reason to disturb the global sentence, I would not interfere with the sentencing judge’s allocation of the sentences among the various offences.
[65] The Crown concedes that pre-sentence custody was incorrectly calculated in the original sentence by seven days, and that the victim fine surcharge orders should be set aside under R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599.
CONCLUSION
[66] I would grant leave to appeal sentence. I would vary the sentence of the appellant to increase the credit for pre-sentence custody by seven days to be applied to the sentence for aggravated assault, and would set aside the victim fine surcharges. I would otherwise dismiss the appeal.
Released: “J.S.” September 22, 2020
“B. Zarnett J.A.”
“I agree. Janet Simmons J.A.”
“I agree. K. van Rensburg J.A.”