Court File and Parties

Court File No.: Not provided

Date: February 12, 2015

Location: London, Ontario

Ontario Court of Justice

Between

Her Majesty the Queen

-and-

K.E.

Reasons for Sentence

Counsel:

• J. Perfetto for Crown
• G. Grant for K.E.

Before: George J.

Reasons for Sentence

Background and Offences

[1] After a guilty plea, K.E. was found guilty of two counts of discharging a firearm with the intent to endanger life, contrary to section 244(1) of the Criminal Code of Canada, and to possessing a firearm without being the holder of a licence under which he could possess it, contrary to section 91(1).

[2] K.E. was 17 at the time of the offences. He is now 18. He is an Aboriginal person; a member and resident of the Oneida Nation of the Thames.

[3] This is a very serious matter. On August 3, 2013 K.E. was involved in a physical altercation with another young man from the First Nation. K.E. was operating a vehicle, stopping at one point to pick up a friend. While waiting in his vehicle the other young man began punching K.E. through the open driver's side window. K.E. exited the car to continue the physical altercation. During this engagement, someone produced a knife. During the course of this struggle, K.E.'s combatant suffered multiple cuts and stab wounds. At some point the two parted ways. K.E. was charged with several offences arising from this incident. The Crown has ultimately decided not to proceed with them, as it is unclear who initiated the fight and it can't be determined with any certainty who introduced the knife that caused the wounds.

[4] The Crown has accepted K.E.'s claim of self-defence as at least having an air of reality, and it is conceded there is a possibility that the injured person first brandished, and attempted to use the knife. That decision was not made, however, until long after the charges were laid. There were no lasting injuries.

[5] In any event, the police began to investigate this matter. Upon learning of this K.E. became anxious, agitated, and concerned. When he was advised charges would in fact be laid, others attempted to convince K.E. to turn himself in, to no avail.

[6] K.E. then decided to retrieve a gun he had previously purchased, and which had been hidden in a wooded area somewhere near his residence. It was a single-ammunition; black .22 calibre, sawed off rifle. Family members observed him handling the gun, attempting to convince him to put it down. He did not. He was clearly upset and emotionally distraught. After retrieving ammunition, he began walking down Elijah Road on Oneida. As he was doing so, he was uttering things, the substance of which wasn't detailed for me, but there was some suggestion he was upset over the treatment he had incurred at the hands of bullies.

[7] As he walked down the road, he held the gun to his side along his leg. At one point he pointed the gun directly towards a passing vehicle. There is no suggestion he knew the occupants of this particular vehicle. This was described as a random act, which had nothing at all to do with what had just transpired. I was told it was a momentary action.

[8] The police were called and quickly responded. K.E. noticed their arrival, and this is where events escalate to what surely became a life altering event for all involved. K.E. began to walk towards the marked police vehicle. He pointed the gun and fired a shot. His aunt was nearby and attempted to stop him, but could not. He then again began to walk towards the police, stopping, bending down, loading more ammunition, and firing again. No officers were hit, but there was damage to the police vehicle.

[9] Throughout, the officers shouted multiple commands for him to stop and to drop the weapon. When it appeared to them he would not comply, they returned fire shooting K.E. four times - once directly above the eye, and to other parts of his body. He sustained extensive nerve damage and has since lost that eye, now using a prosthetic.

Injuries and Medical Consequences

[10] K.E. suffered other life altering injuries, which are detailed in the reports filed on sentencing, including a London Health Sciences Center Neuropsychological Assessment Report. This report confirms gunshot wounds being inflicted to K.E.'s shoulder, right eye, and to both forearms. In addition to the extensive damage to his eye and orbital area, he had reconstructive surgery on his right frontal skull bone. The resultant impact for K.E. has been diminished strength and poor fine motor coordination. Rehabilitation is ongoing.

[11] Before this incident he was already suffering from cognitive difficulties. He now has the added burden of dealing with a significant and permanent brain injury. The biggest struggle for K.E. may very well be the emotional adjustment to this new life in having to cope with a sustained brain injury, no sight in his one eye, and reduced motor skills. He will surely require ongoing counselling to address the psychological difficulties which will accompany the physical injuries.

[12] Following this assessment, a referral was made to the Parkwood Hospital Acquired Brain Injury Outreach Program. Registered Physiotherapist Laura Graham provided a report for the court's consideration. It confirms K.E. cannot see to his right at all. It details how K.E. now has a delayed response to hot/cold, which is an obvious safety concern for him going forward. These sensory changes will continue to be a challenge for K.E., and therapy aimed at teaching him techniques to cope with this are well underway. Difficulties with coordination and strength are being addressed in physiotherapy; this treatment will necessarily be followed up by occupational therapy and language pathology.

[13] K.E.'s involvement with Parkwood's Outpatient program has also confirmed the presence of post-concussion syndrome symptoms, including headaches; pain; reduced attention, memory and concentration; and poor activity tolerance. The materials filed at sentencing suggest that a significant level of accommodation will be required for K.E.

Victim Impact

[14] In terms of victim input, the Crown has indicated that none of the officers wish to file or read an impact statement. I am told this is not the result of lacking interest, and that they have been following the progression of this matter, and have an interest in learning of its outcome. Despite that, it is clear this event will have lasting impacts on them. I won't speculate as to the emotional trauma, but I imagine it is significant. As to physical injuries, I did learn that one of the officers involved has lost hearing permanently in one of his ears; the result of a firearm being discharged in close proximity.

Gladue Report and Background

[15] A gladue report was prepared. It was extremely thorough, and most helpful. Gladue reports are meant to elaborate upon the Supreme Court of Canada's decision in R. v Gladue, [1999] 1 S.C.R. 688, which was very ably accomplished here. It outlined the personal history and background circumstances of K.E. and spoke of the hardships present within his First Nation community. It also addressed how systemic and historical factors may have touched upon K.E.'s life, for example the impacts of colonialism, residential schools, substance abuse, racism, and exposure to violence, among others. This is important as, although a causal connection is never required, it must be shown that a basis exists to believe these factors, typically outside the control of the Aboriginal accused, have contributed in some way to their offending behaviour.

[16] What I will refer to as Gladue principles have been well articulated by the Supreme Court on several occasions, most recently in R. v. Ipeelee [2012] C.N.L.R. 218. To the systemic factors just mentioned, Justice LeBel indicates that:

To be clear, courts must take judicial notice of 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.

Personal and Family History

[17] This is K.E.'s background. He is now 18. He was 17 at the time of these offences. He is an Aboriginal youth; a Status Indian as defined by Canada's Indian Act. He self identifies as Iroquois; specifically Oneida. He is a member of the Bear Clan in the traditional Oneida Longhouse, and has received his spirit name which roughly translates into English as "Good Sky". K.E. has one older sibling, a sister, age 22.

[18] K.E.'s father is deceased. His mother, with whom he lives, is employed as a family support counsellor at the Kiikeewannikaan Family Healing Lodge on the Munsee-Delaware First Nation. As a youngster, K.E. describes his mother being away quite often, for work, training, or with her now ex-boyfriend. During these times he recalls being cared for by several members of his extended family. His relationship with his mother appears to be a complicated one. K.E. will speak of his feelings of abandonment respecting his mother, but at the same time talk of how she is supportive and encouraging, and how she oft times babies him and "does everything for him". He seems conflicted.

[19] Although K.E.'s relationship with his father would be best described as estranged, they were on speaking terms prior to his death. The report suggests there are some unresolved issues in this respect.

Intergenerational Trauma and Residential Schools

[20] Regarding possible intergenerational trauma caused by residential schools, the report's author writes the following, beginning at page 4:

K.E. did not have any knowledge of Indian Residential School history in his family.

According to H.E. (K.E.'s mother), K.E.'s great-grandmother, attended Indian Residential School. H.E. said her name is inscribed along with hundreds of other children on a monument, at the Mount Elgin Industrial School site located on the Chippewa of the Thames First Nation, memorializing Residential School Survivors. H.E. described some of the impacts of Residential Schools passed down through her family, such as being deprived of speaking her native language, lack of parenting skills, and not being taught the ability to love and nurture.

H.E. was emotional and in tears as she explained how her father was a great provider for the family, but never able to express love and affection. It was heartbreaking that their Oneida language was demonized and not shared by her father with his children. Now, H.E. and her children cannot speak or understand their own language. She recalled memories of her father frequently working away from home for long periods of time. The moment she said this, H.E. realized she was following a similar pattern with her children. H.E. admitted that she was frequently absent from home, away at school or working (at times when she held down two jobs simultaneously). Her family complained to her about her absence from her children's lives.

[21] The report suggests K.E.'s closest relationship is with his older sister T.E., who was interviewed during its preparation. This relationship is best described in the following passage, found at page 5 of the report:

T.E. emphasized that they are very close and she is very supportive and protective of him (and has always "been there for him"). She moved from the family home for a brief period and started her own family. However, she was very concerned about K.E. and missed him terribly, so she moved home again along with her partner and baby girl. She said this living arrangement works out great for everyone.

History of Bullying

K.E.'s history includes several instances of being bullied. This difficult past and bad treatment at the hands of others, has clearly, and in a very negative way, impacted K.E. He suffered through it during his elementary school years on the First Nation and while attending high school in London. The brunt of this, however, is felt at home, in his community and is consistently being perpetrated by the same group of youths. The report describes it as "the same group of individuals within the Oneida community continuing to bully him into his teen years and who continue to harass him even today. K.E. declared that nothing was done about the situation at school and nothing is being done about it now, as these same individuals constantly drive past his home, as a form of intimidation.

Education and Employment

[22] He is one credit shy of obtaining his secondary school diploma, something he is working on through the 'Reconnect to your Future' program. K.E.'s employment is very limited.

Health and Psychological Issues

[23] Beyond the health difficulties derived from his gunshot wounds, he has long dealt with the significant impacts of diabetes. He is insulin-dependent and has chronic high blood pressure. He is on a medication regime designed to prevent cardiovascular and cancer complications associated with diabetes. In regards to emotional and psychological issues, although he has never been diagnosed with a mental illness, there clearly are underlying disturbances that need to be addressed. Quite apart from possible abandonment concerns relating to his father and mother, this incident itself has likely led to post traumatic stress issues which must, at some point, be properly diagnosed and met head on.

Community Awareness and Insight

[24] K.E. seems to have a tremendous amount of insight into the problems currently plaguing his First Nation community. He speaks at length with the report's author about the prevalence of bootleggers and drug dealers in Oneida, and the pervasiveness of addictions. He articulates a community wide feeling of insecurity and speaks of how he does not always feel personally safe there. He believes Oneida's First Nation police force is ineffective, and has an awareness of "a few individuals on Band Council who are trying to change things, but with very limited results".

Systemic Factors and Intergenerational Impact

[25] The gladue report's author contends that K.E.'s personal history and family background includes loss, abandonment, and family breakdown that can all be logically linked to the inter-generational impacts of the Indian Residential School system. I agree. The report also sets out those programs and services available to K.E. as an Aboriginal person in London and within its surrounding area. It specifically suggests that K.E. continue with the programming provided by the Kiikeewannikaan Healing Lodge, which I believe is crucial.

Substance Abuse and Treatment Options

[26] The only issue that hasn't yet been addressed, understandably as he has been tending to his very serious physical health needs, is drug use. K.E. self-reports as using drugs, including shortly before this incident. There are several options available to K.E., including the easily accessible services at the Southwest Ontario Aboriginal Health Access Centre (SOAHAC), which has a traditional healing component; the counselling services available at the N'Amerind Friendship Center; as well as the programming available within Oneida's health services department.

Post-Incident Detention and Compliance

[27] After the shooting, K.E. was hospitalized for three weeks. Upon his release he was taken directly to a closed custody facility to await a bail hearing. After 33 days in detention, he obtained a release - a recognizance which has required him to abide by the strictest of bail conditions. He has been residing with his mother and sister since then, in compliance with the order. Although he has had to endure surgeries and ongoing medical treatment and physiotherapy, he has, at the same time, tended to some of the underlying issues. He was released to directly attend a healing lodge. He has attempted to return to school, but given the severity of his injuries had to withdraw, putting that on hold for the time being. He continues to adjust to the use of a prosthetic eye, and his delayed sensory reactions seem to be improving.

Prior Record

[28] K.E. is not a first time offender. He has before been convicted of an assault, which was the response to a classmate threatening and bating him with racial insults. He was compliant with the probation order that followed, and he has been compliant with his bail terms since release.

Sentencing Principles and Considerations

[29] The Crown and defence jointly propose a two year probation order. It is argued this would meet the ends of justice, recognizing that general deterrence is not a principle to be employed when sentencing a youthful offender. The Crown, in particular, is very live to the sensitive balancing act involved in this matter. It is correct to say that some members of the public will have a difficult time digesting certain aspects of this resolution, should I adopt it. All they would hear is a non-custodial sentence as a consequence for an act which put police officer's lives in jeopardy.

[30] There are, however, many factors to consider, and at the end of the day, although there are important societal factors at play, sentencing is always an individualized process. To the extent extraneous factors are relevant, the public's response should not be gauged by what a randomly selected member of the public would say, or by the ignorant, anonymous comments often found in the online edition of a local newspaper. The question should be considered in the context of a reasonable, objective member of the public, who has at least a working knowledge of the Youth Criminal Justice Act (YCJA), the unique circumstances of Aboriginal people, and of our justice system generally. How would that person react to such a sentence, in these circumstances?

[31] Specific deterrence is a consideration for young people, and it is clear that K.E. has been deterred.

Sentencing Factors for Young Persons

[32] In determining a fit sentence for a young person, the Court must consider the following factors:

• the degree of participation by the young person in the commission of the offence;
• the harm done to victims and whether it was intentional or reasonably foreseeable;
• any reparation made by the young person to the victim or the community;
• the time spent in detention by the young person as a result of the offence;
• previous findings of guilt; and
• any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

Custody Gate and Alternatives to Custody

[33] In this particular matter, the custody gate is clearly open, and in most cases would be the appropriate result. However, before I can ultimately conclude that custody is necessary, I must consider and apply section 39(2)(3) of the YCJA which provides that:

39(2) - if any of paragraphs (1)(a) to (c) (committal to custody) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

(3) - In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

a) the alternatives to custody that are available; b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

[34] Of course a sentence must sufficiently denounce the offending behaviour, and I must attempt in this case to hold K.E. accountable; but the primary purpose of sentencing is to achieve this, while simultaneously promoting rehabilitation and reintegration. The bottom line is if a non-custodial sentence amounts to a meaningful consequence, and if the public is sufficiently protected, than jail is to be avoided. This is precisely why there are no mandatory minimum jail sentences for youthful offenders, and why I am not to impose jail simply as a means to deter others.

Principles of Restraint and Aboriginal Considerations

[35] The general principles of restraint and caution, which pervade the YCJA, become more pronounced when you consider them together with section 38(2)(d), which provides that:

all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal persons.

[36] In an adult context, and in interpreting section 718.2 (e) of the Criminal Code, courts have addressed what this means and how it should be applied. The direction given, from the Supreme Court of Canada in particular, applies equally to a young person.

Overrepresentation of Aboriginal Peoples in Custody

[37] Aboriginal people, including Aboriginal youth, are disproportionately represented in Canada's custodial facilities. Section 718.2 (e) is at its heart a remedial provision. It was intended to address the serious problem of this overrepresentation. It would be extraordinarily easy to pay lip service to it, indicating simply that alternatives to custody were considered, but at the end of the day determining, on balance, that another form of sentence is in order. I am of the view that the direction to trial judges to specifically take a restorative approach to sentencing, should be taken seriously. In the ever evolving world of sentencing, and with the rise of mandatory minimum jail penalties, this is becoming tougher to do, as there is a conflict between this direction and the limited sentencing options available in some cases. On one hand we are being told to be creative with a view to restoration, than in another, for some offences, we are told jail must be imposed. The tension is obvious, and in some cases must appear as illogical and nonsensical.

[38] This incompatibility is present in the YCJA context, as a deferred custody order is apparently not available here, given the nature of the offences for which K.E. has been found guilty. This makes little sense, if the only way to then achieve the purposes of the YCJA and give meaning to the spirit of Gladue, is to impose a lesser sentence (i.e. probation). In any event, in this case, counsel have been creative in striking the right balance.

Section 718.2(e) and Remedial Purpose

[39] In coming to appreciate the appropriateness of what they propose, it is important to understand the logic behind section 718.2 (e) of the Criminal Code [38(2)(d) YCJA]. It was designed to ameliorate the serious problems within our justice system, in particular the rate at which Aboriginal people were sentenced to terms of imprisonment. This is, in essence, a modification of the analysis respecting proportionality. The reality is that the collective experience of non-native Canadians is far different from Aboriginal Canadians. World views are different, and the pervasiveness of suicide, substance abuse, poverty, and many other societal ills, are greater in Aboriginal communities. There are underlying issues which makes this so, and many are of the view courts are ill equipped to address those. This is probably true, but doesn't mean sentencing judges shouldn't do what they can, in appropriate cases, to reduce the Aboriginal prison population.

Gladue and Ipeelee Principles

[40] To gain a better understanding of section 718.2 (e) generally, and the Supreme Court's attempt to add meaning to the statutory language, one should closely read paragraph 58 of the Ipeelee decision, which quotes from Gladue:

The overrepresentation of Aboriginal people in the Canadian criminal justice system was the impetus for including the specific reference to Aboriginal people in section 718.2 (e). It was not at all clear, however, what exactly the provision required or how it would affect the sentencing of Aboriginal offenders. In 1999, this Court had the opportunity to address these questions in Gladue. Cory and Iacobucci JJ., writing for the unanimous Court, reviewed the statistics and concluded at para. 64:

These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in section 718.2(e), intended to attempt to redress this social problem to some degree.

The provision may properly be seen as Parliament's direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process.

[41] The direction to the sentencing judge is this; when sentencing an Aboriginal offender, a judge must consider:

• the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and
• 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

Sentencing Innovation and Judicial Role

[42] In my view, the most enlightening portion of Gladue is found at para. 65:

It is clear that sentencing innovation by itself cannot remove the causes of Aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of Aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

Gladue Court Experience

[43] I have had the great privilege to preside in London's Gladue court for the better part of the last three years. It is a court that my colleagues and I take pride in. It is not perfect, but it is a real and genuine attempt to give meaning and effect to the principles I have already addressed. As I sit in there, the thing that always strikes me is the manner in which offending behaviour invariably travels from one generation to the next.

There are, of course, exceptions, but this is a very common trait of Aboriginal offending. It is not unusual to see fathers and sons appear in my court on the same day; in a few instances grandparents and grandchildren. One might say this type of learned behaviour transcends race, is seen in other communities, and is more typically associated with class and socioeconomic status. And while this is true, it is the pervasiveness and relentless nature of it that seems heightened in Aboriginal communities. This is, of course, an anecdotal observation.

[44] Particularly when young aboriginal men are before me, I find myself speaking with them, stressing the need to break the cycle of violence, and alcohol and substance abuse. I say this to them recognizing completely the backgrounds from which they come, and the hopelessness that has likely led them to lead the lives they do. But this is precisely why, in some instances, a non-custodial sentence is appropriate, even if not the typical consequence.

Proportionality and Moral Blameworthiness

[45] As indicated earlier in these reasons, this is essentially a modification to the way we apply the proportionality principle. Of course, a consequence for offending behaviour must be meaningful. As they say 'the punishment must fit the crime'. However, the reason a sentencing judge needs to understand both the particular background and circumstances of an offender, and to take judicial notice of the systemic factors which have led to higher rates of Aboriginal offending (poverty, lack of education, intergenerational impact of residential schools, colonialism etc.), is to ensure they have the ability to properly assess an accused' level of moral blameworthiness. And if, after going through this process - which typically involves the receipt and review of pre-sentence reports, gladue reports, information from those close to an offender, and from helpful and informative counsel submissions - a response other than jail is deemed reasonable (even if other options are just as reasonable), than that is exactly what should be done.

Counsel's Submissions

[46] Counsel should be commended for their creativity, and for their thoughtful submissions, which aided me greatly in formulating these reasons. A lengthy period of custody could have been imposed, and most people would have probably been quite comfortable with that. That would have been an easy resolution for counsel to arrive at, and for me to accept. But that fact alone wouldn't have made it appropriate.

Sentencing Decision

[47] The suggested probationary terms would have K.E. essentially be under house arrest, with only certain exceptions; and to live where directed, not possess weapons or firearms, and to, most importantly, follow any counselling recommendations. In these circumstances, not only do I adopt the joint submission, I wholeheartedly endorse it.

[48] K.E. will be placed on probation for 24 months with conditions. He will, for the duration:

1. Keep the peace and be of good behaviour.

2. Appear before the Youth Justice Court when directed to do so.

3. Report to a probation officer today and thereafter as directed by his probation officer and remain under the supervision of the probation officer.

4. Obtain the written approval of his probation officer before changing his place of residence.

5. Notify his probation officer of any change in the place of his employment, education or training.

6. Attend an education program approved by his probation officer.

7. Make reasonable efforts to find and maintain employment.

8. Maintain a curfew 24 hours per day unless accompanied by a parent, guardian, his sister, or any other person approved of by his probation officer, or unless for the purposes of attending school or medical appointments or emergencies.

9. Not associate or communicate directly or indirectly with any person named in writing by his probation officer.

10. Not possess nor consume alcohol.

11. Not possess nor consume any narcotic, restricted or controlled drug not medically prescribed for him.

12. Undertake any assessment, actively participate in, and successfully complete any counselling or therapy that his probation officer directs, and in particular in relation to anger management and family counselling. He will not discontinue such counselling or therapy without the written approval of his probation officer.

13. Not own, possess, or have control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance.

[49] I also make a two year weapon prohibition under section 52 of the YCJA.

Date: February 12, 2015

Justice Jonathon C. George