COURT OF APPEAL FOR ONTARIO DATE: 20240918 DOCKET: COA-23-CR-1262

Fairburn A.C.J.O., Hourigan and Huscroft JJ.A.

BETWEEN

His Majesty the King Respondent

and

Richard Alexis Appellant

Counsel: Richard Alexis, acting in person Matthew Gourlay, appearing as duty counsel Erica Whitford, for the respondent

Heard: September 11, 2024

On appeal from the sentence imposed by Justice Jennifer D. Strasberg of the Ontario Court of Justice on September 27, 2023.

REASONS FOR DECISION

A. Introduction

[1] The appellant pleaded guilty to the following charges and received the following sentences:

July 19, 2020: Possession of a loaded prohibited firearm – 4 years; possession of a firearm while prohibited – 6 months consecutive;
May 26, 2020: Dangerous operation – 4 years jail consecutive only to the prohibited firearm count; flight from police – 3 years concurrent;
July 10, 2020: Drive disqualified – 6 months concurrent; dangerous operation – 4 years concurrent; flight from police – 3 years concurrent; failed to stop – 1 year concurrent; and
July 14, 2020: Drive disqualified – 6 months concurrent; dangerous operation – 4 years concurrent; flight from police – 3 years concurrent.

[2] The global sentence was 8.5 years, less 1,749 days of pre-trial custody credit. The sentencing judge also made a DNA order, a lifetime weapons prohibition under s. 109 of the Criminal Code, R.S.C. 1995, c. C-46, and ordered a ten-year driving prohibition under s. 320.24(2) of the Criminal Code. The sentencing judge indicated that “if it were not for totality, Mr. Alexis you would have been looking at a sentence in the range of 13-15 years in jail.”

[3] On his sentence appeal, the appellant advances three principal grounds of appeal: (i) the sentencing judge discounted Gladue principles while considering his sentence; (ii) the sentencing judge did not consider the COVID-19 pandemic and harsh conditions while in custody as factors regarding credit for time served; and (iii) the sentence offended the parity principle.

B. Analysis

(i) Gladue Principles

[4] Regarding the Gladue issue, the sentencing judge made the following comments:

[48] Aboriginal Legal Services were asked to provide a Gladue Report for Mr. Alexis. They were unable to prepare a report. They conducted an interview with Mr. Alexis, but he was unable to provide any information about his experiences as an indigenous person and had no details regarding his background except that his father is Metis. The Gladue writer diligently attempted to find information regarding Mr. Alexis’ background. She learned from Mr. Alexis’ mother that he did not have any connection to his culture growing up and was only exposed to the indigenous culture when he was incarcerated. She further added that he did not have a relationship with his father and did not learn about his culture from his father.

[49] The writer was eventually able to get in touch with Mr. Alexis’ father. He confirmed that he did not have a relationship with his son while growing up and that he moved to Nova Scotia after he separated from Mr. Alexis’ mother. He advised that he is a member of the Eastern Woodland Metis Nation. The Eastern Woodland Metis Nation are not recognized by any government. Essentially anyone with roots in Nova Scotia is eligible to join. The writer states “this is not to say that some people who belong to the Eastern Woodland Metis Nation do not have indigenous heritage, but on its own, membership is not proof of anything.”

[50] A Gladue report was not able to be completed, first because the specific nature of Mr. Alexis’ indigenous ancestry could not be determined, and second, they had no information from Mr. Alexis or anyone one else to address how his being indigenous had affected his life circumstances.

[51] I agree with the writer that their inability to prepare a Gladue report does not mean there are no Gladue relevant considerations. However, neither Mr. Alexis nor his counsel were able to provide me with any information to consider in this regard.

[52] I am left simply with the fact that Mr. Alexis identifies as indigenous and that he has some potential history on his father’s side. While this might be relevant to his history of offending, without any information to understand how, it is difficult to consider it as a significant factor on sentencing. [Footnotes omitted.]

[5] Based on the foregoing, it is evident that the sentencing judge took Gladue principles into account but not did afford them significant weight. We see no error in her approach. There was no evidence in the record that established that the appellant has Indigenous ancestry or that, if he does, he was impacted at all by such ancestry: see R. v. Crocker, 2018 ONCA 600, at paras. 10-12. Even if she had given Gladue principles more significant weight, we are not persuaded that it would have impacted the sentence given the severe nature of the offences.

(ii) Duncan Credits

[6] We reject the submission that the sentencing judge failed to consider the impact of the COVID-19 pandemic or the harsh conditions the appellant faced while in custody. The sentencing judge considered this issue in detail and expressly acknowledged, “that conditions in jail during Covid-19 have been extremely challenging.” She further stated that she would “consider Mr. Alexis’ time in custody as a significant mitigating factor.” Relying on R. v. Marshall, 2021 ONCA 344, she did not deduct a specific number of days to reflect those conditions. Instead, she correctly, “considered [it] with all the other mitigating factors in coming up with an appropriate sentence in this case”: see also R. v. Avansi, 2023 ONCA 547, at para. 9.

(iii) Parity

[7] The appellant relies on several cases to argue that the sentencing judge violated the parity principle. Having reviewed those cases, some of which were decided under previous iterations of the Criminal Code with lower maximum penalties for simpliciter driving offences, we are not satisfied that the facts of the offences or the offenders are sufficiently comparable such that the parity principle is engaged. Therefore, we are not satisfied that the sentencing judge made an error in principle in this regard.