Court File and Parties

Court File No.: 130079 Date: 2014-04-15 Ontario Court of Justice

Between: Her Majesty the Queen — AND — Ralph Willi Karau

Before: Justice of the Peace Danalyn J. MacKinnon

Order, April 15, 2014

Counsel: P. Willis for the prosecution R. Noel (paralegal) for the Defendant, Ralph Willi Karau

Decision

JUSTICE OF THE PEACE MACKINNON:

[1] Mr. Karau is Aboriginal and a member of the Lac Des Milles Lac First Nation. He was found guilty of driving while suspended contrary to s. 53(1) of the Highway Traffic Act. The Crown is seeking a sentence of 30 to 60 days in custody, while the defence argues on the basis of Gladue, that there should not be incarceration. The record of the Defendant as filed shows 20 prior convictions for the same offence, making incarceration a possible disposition. The application of Gladue principles is appropriate in these circumstances.

[2] A pre-sentence report was ordered by the court on October 29, 2013. The endorsement does not specify that it is to be a Gladue report. It was completed on March 4, 2014 and is titled, "Pre-Sentence Report with Gladue Considerations".

[3] The duty of a sentencing justice is to ensure that the information available for consideration by the court is sufficient to comply with the principles set out in Gladue. This duty exists when incarceration is to be considered for an Aboriginal person.

[4] This obligation was articulated by the Ontario Court of Appeal in the Kakekagamick case. Justice Laforme speaking for the Court, stated the following:

[45] Where counsel does not adduce the evidence, it is still incumbent on the sentencing judge to try to acquire information on the circumstances of the offender as an Aboriginal person (Gladue, para. 84). In most cases, the information contained in a presentence report may be sufficient to meet the requirement of special attention to the circumstances of Aboriginal offenders. But, where that information is insufficient, s. 718.2(e) permits the sentencing judge to request that witnesses be called to testify as to reasonable alternatives to a custodial sentence.

[5] In Her Majesty the Queen v. Robert Stone, Hornblower J., in dealing with Gladue information necessary for the exercise of Crown discretion, states:

... While the Crown would have been aware of the various systemic and background factors of which a court will take judicial notice, that is only one part of the equation. What the Crown had no knowledge of however was the impact (my emphasis) of those factors on the accused. That is the second part of the equation in Gladue that requires that particular attention be paid to his circumstances as an Aboriginal offender...

[6] In reviewing the pre-sentence report available in this matter, the court finds that the report is not sufficiently detailed in regard to the unique systemic and background factors of the Defendant, and does not identify the impact of the factors on the Defendant. Some examples are:

a) The background of the father of the Defendant is not identified, nor whether he was Aboriginal. The background of the mother of the Defendant is not identified.

b) The Lac des Milles Lac First Nation does not have a village or community. There is no examination of the impact this had on the family of the Defendant.

c) The portrayal of the Aboriginal mother of the Defendant as an alcoholic who left the home for that reason, a view suggested by the Defendant, is not investigated further. This is surprising as the mother is alive and lives in Kenora, Ontario. Was she a residential school survivor? Is this representation of the reason for her exit from the home true? Was there violence in the home?

d) What was the impact on the Defendant of his parents' relationship, and his mother leaving the home? How old was he?

e) As it is reported that his father was physically, emotionally and sexually abusive to his three sisters, what was the impact of this abuse in the home on the Defendant? Is this the reason for the severed relationship with one sister?

f) The Defendant left school at the age of fifteen to work in the bush. Are there systemic reasons for him leaving school, including poverty? What was the impact on him of the lack of education?

g) The report and the driving record suggest that the Defendant has an opposition to authority. Is this attitude related to the history of the accused, his relationship with his father or other relevant Gladue factors?

h) What alternatives to incarceration are available and should be considered by the court?

[7] The Court of Appeal in Kakekagamick went further to state its expectations when a pre-sentence report is deficient:

[52] The original pre-sentence report in this case was deficient in that it failed to address adequately Aboriginal circumstances and alternative approaches.... I would note that the Criminal Code was amended in 1996 to include s. 718.2(e) and Gladue was decided in 1999. One would expect that Correctional Services, Probation and Parole would by now fully appreciate the nature and scope of the information required in a pre-sentence report for an Aboriginal offender.

[53] Given the deficiencies in the pre-sentence report, counsel and the trial judge should have considered the desirability of a further report or other evidence. Counsel, and perhaps especially the Crown, could and should have raised the issue in this case. They did not, and it fell to the sentencing judge to consider whether or not further inquiries were either appropriate or practicable. No such inquiry took place.

[8] The purpose of a Gladue report is to provide information to a court about the unique systemic and background factors which bring this Aboriginal offender before the courts. I find that the report submitted is insufficient and deficient for this purpose.

[9] For these reasons I am ordering that a stand-alone Gladue report be provided to this court in regard to Mr. Karau, or that a supplementary report to the Pre-Sentence Report be submitted by Probation Services which will properly address the Gladue factors. The Defendant has a right to waive any further report and I will give him the opportunity to review my comments and inform the court of his position.

Released: April 15, 2014

Signed: Justice of the Peace MacKinnon