Court Information

COURT OF APPEAL FOR ONTARIO

DATE: 20210407 DOCKET: C68287

Watt, Hoy and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Todd Crowe Appellant

Counsel: Paul Calarco, for the appellant Anna Martin, for the respondent

Heard: March 22, 2021 by video conference

On appeal from the sentence imposed on April 25, 2019 by Justice Lisa M. Cameron of the Ontario Court of Justice.

Reasons for Decision

[1] In May 2018, the appellant was arrested with cocaine, fentanyl, and methamphetamine, each intended for trafficking, and the cash proceeds of crime. At the time, he was on probation. One of the conditions of his probation was that he keep the peace and be of good behaviour. To obtain release, he promised not to possess unlawful drugs or weapons. In September 2018, he was arrested in a commercial parking lot with more cocaine and more cash. This time, he also had a loaded handgun, primed with a round in the chamber, in breach of four court orders.

[2] The appellant pled guilty to both the May and September offences. In total, he was sentenced to twelve years imprisonment, less one-year credit for time served. He seeks leave to appeal that sentence and to adduce fresh evidence.

[3] The appellant argues that (1) the concurrent four-year sentences imposed by the sentencing judge for the possession of proceeds counts must be reduced, as they exceed the statutory maximum of two years provided for in s. 355(b)(i) of the Criminal Code and (2) the sentencing judge erred in principle by failing to properly apply the Gladue principles.

[4] The first issue does not affect the total sentence imposed. The Crown properly concedes the issue, submitting that 18 months concurrent on each possession of proceeds count is an appropriate sentence. The appellant did not oppose the 18 months proposed by the Crown and we agree that it is an appropriate sentence on those counts.

[5] As to the second issue, we are not persuaded that the trial judge erred in her application of the Gladue principles. Further, we conclude that the proposed fresh evidence is not sufficiently cogent to have affected the result and should not be admitted.

The Gladue Issue

[6] The appellant identified as Non-Status Ojibway but was unaware of any Indigenous background until later in life and had never been involved in the Ojibway culture.

[7] The sentencing judge ordered a Gladue report. Aboriginal Legal Services (“ALS”) was unable to ascertain information about the appellant’s Indigenous background. The sentencing judge granted three adjournments to permit ALS to try to track down information to prepare the report, two over the Crown’s objection. When, following the third adjournment, the report was still not ready, defence counsel confirmed with the court that the appellant nonetheless wished to proceed with the sentencing.

[8] The sentencing judge had the benefit of a Pre-Sentence Report (“PSR”), which described a deprived and exceptionally difficult childhood. The appellant was one of eight children. His mother was an addict and he suffered poverty and neglect. He achieved only one high school credit growing up. Several persons in his family had criminal records.

[9] The appellant’s sister testified at the sentencing hearing. She agreed with the PSR. She testified that their maternal grandfather was from Alderville First Nation, which would make him Ojibway. However, she recounted that the grandfather died when their mother was about 11 years old and their family had little if any connection to First Nations.

[10] Defence counsel recognized that a substantial period of incarceration had to be imposed. His Gladue submissions were brief:

Whether or not the Gladue principles apply, I leave to Your Honour. It’s clear that his grandfather was native, but there apparently was no real connection while he was growing up. I suppose, in terms of his mother’s situation, we don’t really know what the effect on her was of having a father who was native, but obviously, she turned out badly, and has done a very bad job with these children, although, for some reason, [his sister] seems to have turned out quite well.

[11] The sentencing judge accepted that the appellant’s Aboriginal ancestry was established, writing that:

I do take that into account to the extent that I can, in particular the systemic issues that may have affected [the appellant’s] family and [the appellant] himself. Given the seriousness of the matters before me and the lengthy sentence that will be required, the impact of the Gladue factors is attenuated. [Emphasis added.]

[12] She noted that the pre-sentence report and the appellant’s sister indicated “that [the appellant’s] mother had a difficult upbringing and a long term-struggle with drug addiction, which according to the pre-sentence report had a clear and negative affect on [the appellant’s] upbringing.”

[13] She considered that the offences involved “large amounts of very serious and dangerous drugs”, the appellant’s prior criminal record was “short in length but serious and very pertinent to sentence on this matter”, and the appellant was not an addict. Rather, he was engaged in a for-profit enterprise, despite knowing first-hand the terrible consequences of addiction. She concluded that denunciation, deterrence, protection of the public, and separation from society were the applicable sentencing principles in this case. She noted that the defence acknowledged that, aside from the guilty pleas, which she characterized as a significant factor, there was little else in the way of mitigation. There was “no expressed interest or activity with respect to rehabilitation”.

[14] The appellant argues that once the sentencing judge accepted that he is a member of a First Nation, she was obligated to conduct a Gladue analysis, as described by Trotter J.A. in R. v. Brown, 2020 ONCA 657, 152 O.R. (3d) 650, at para. 50: she was required to “determine the degree to which unique circumstances related to the offender’s background played a part in bringing that offender before the court”. Further, there need not have been a direct link between his circumstances and the offences committed: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 83.

[15] The appellant also argues that, in the absence of a Gladue report, she should have based that analysis on the PSR. He says the terrible upbringing he endured has classic signs of inter-generational deprivation, trauma and assimilation.

[16] The appellant says that while denunciation and deterrence must be applied in a case such as this, involving fentanyl, the sentencing judge was still required to apply Gladue principles. However, the sentence that was imposed shows he was treated no differently than any other offender. In his view, if the Gladue principles had been properly applied, a total sentence of not more than eight years would have been imposed. The Gladue principles were not “attenuated”; they were “obliterated”.

[17] We reject these arguments.

[18] The sentencing judge was alive to the importance of the Gladue principles, adjourning the sentencing hearing several times in an attempt to ensure that all relevant information was before her. While the sentencing judge’s reasons were brief, it is clear that, relying on the PSR and the appellant’s sister’s testimony, she accepted that systemic issues may have played a role in bringing the appellant before the court and took that into account in imposing the sentence that she did.

[19] The sentencing judge did not fail to apply, or improperly apply, Gladue factors. Essentially, the appellant argues that the sentencing judge should have found that those systemic issues had a greater impact on his moral blameworthiness and should have mitigated his sentence to a greater extent, notwithstanding the gravity of the offences. His argument goes to the weight she accorded to the Gladue factors. This court may not intervene “simply because it would have weighed the relevant factors differently”: R. v. Lacasse, 2015 SCC 64, at para. 49.

[20] On the limited record before the sentencing judge, she exercised her discretion to arrive at the sentence that she considered appropriate. We would not interfere with the sentence imposed on that basis.

[21] We note that the appellant does not argue that the global sentence imposed was demonstrably unfit and, in any event, interference on that basis is not warranted.

Fresh Evidence

[22] The sentencing judge accepted that the appellant was Indigenous. The proposed fresh evidence provides no case-specific information about the extent to which “unique circumstances related to the offender’s background played a role in bringing the offender before the court”: Brown, at para. 50. It would not have affected the sentence and some of it could have been introduced at the time of sentence, by the exercise of due diligence. It does not meet the test for admission of fresh evidence: Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775.

[23] The proposed fresh evidence consists of two letters, two affidavits, and Correctional Services Canada (CSC) records.

[24] One affidavit is from the appellant’s mother’s former lawyer and states that, to the best of her recollection, the mother said she was of Native heritage and that her son had attended a Native Camp as a child. One letter is from Native Child and Family Services of Toronto, stating that they have no record of the family’s involvement, although their camp records did not go back that far.

[25] The second letter is from ALS and dated December 2, 2020. It explains that ALS could not prepare a Gladue report because his family members provided contradictory information that could not be verified and that, even if it could be verified, they could not address how being an Indigenous person has affected his life circumstances.

[26] The second affidavit is from Anthony Bugo, appending records from Miziwe Biik Aboriginal Employment and Training, showing that the appellant completed some unspecified job skills training between October 18 and November 18, 2016.

[27] The CSC records reflect that, post-sentence, the appellant engaged in Indigenous programming between November 2019 and February 2020.

Disposition

[28] Leave to appeal is granted, the sentences for the possession of proceeds charges are reduced to 18 months imprisonment, to be served concurrently, and the appeal is otherwise dismissed.

“David Watt J.A.”

“Alexandra Hoy J.A.”

“I.V.B. Nordheimer J.A.”