Court File and Parties

Date: 2016-11-29

Court File No.: Brampton 15-10007

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Brenda Nashkewa

Before: Justice P.A. Schreck

Heard on: November 23, 2015; November 4, 2016

Reasons for Sentence

Counsel:

• T. Dietrich, counsel for the Crown
• R. Valentine, counsel for Brenda Nashkewa

SCHRECK J.:

[1] Introduction

[1] Brenda Nashkewa, a member of the Saugeen First Nation, pleaded guilty to importing 347 grams of cocaine into Canada, contrary to s. 6(3)(a) of the Controlled Drugs and Substances Act ("CDSA"). While the ordinary sentencing range for this type of offence is well established, counsel for both parties agree that because Ms. Nashkewa is an indigenous Canadian, a departure from that range is warranted. It is the extent of the departure that is in dispute.

[2] In 1996, Parliament enacted s. 718.2(e) of the Criminal Code, which directs courts to consider all available sanctions other than imprisonment that are reasonable in the circumstances "with particular attention to the circumstances of aboriginal offenders". Three years later, in R. v. Gladue, [1999] 1 S.C.R. 688, the Supreme Court of Canada recognized that the purpose of s. 718.2(e) was to address the problem of overincarceration of indigenous Canadians (at para. 64):

The provision may properly be seen as Parliament's direction to 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.

[3] As the Supreme Court recognized 13 years later in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, s. 718.2(e) does not appear to have achieved its objective as the problem of overincarceration of indigenous people had grown worse, not better. Today, 20 years after the section was enacted, the problem of overincarceration of indigenous people is as grave as it ever was. As of March 2015, Aboriginals comprised 24.4% of the total federal inmate population but only 4.3% of the population at large. In 1997, the corresponding figures were 12% and 3% (Gladue at para. 58).

[4] If overincarceration is a problem for indigenous people in general, it is especially a problem for indigenous women. The number of indigenous female federal inmates doubled between 2005 and 2015. They now make up 35.5% of the female federal inmate population. In some federal institutions in Western Canada, they comprise significantly more than half of the prison population.

[5] The need for 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" is as pressing as ever, especially for indigenous women such as Brenda Nashkewa. That is what I have attempted to do in this case.

I. FACTS

A. The Offence

[6] On August 16, 2015, Brenda Nashkewa arrived at Pearson International Airport on a flight from Jamaica. Canadian Border Services Agency ("CBSA") officials referred her to a secondary examination, where they conducted an ion scan that indicated the presence of cocaine. Upon being questioned, Ms. Nashkewa admitted that she had cocaine secreted on her person. She was arrested and turned over to the RCMP, who later seized 347 grams of cocaine.

[7] Ms. Nashkewa remained in custody until November 23, 2015, when she pleaded guilty before me. I granted her bail and the matter was adjourned several times over the next year. The delays were primarily related to difficulties in obtaining a Gladue Report.

B. Ms. Nashkewa's Background and Circumstances

[8] Ms. Nashkewa is now 59 years old. A 46-page Gladue Report was prepared by Ashley Quinn, B.Sc., M.S.W., Ph.D. of Aboriginal Legal Services which thoroughly outlines Ms. Nashkewa's upbringing and background. It is best described as heartbreaking.

[9] The author of the Gladue Report refers to Ms. Nashkewa by her nickname, Brandi. I infer from this that this is the name she prefers, and I will accordingly refer to her by it for the remainder of these reasons.

(i) Childhood

[10] Brandi was born in 1957 in Southampton, Ontario near the Saugeen First Nation where her mother lived. Her father was from the Cape Croker First Nation. Brandi never met him and knows little about him. Brandi's mother had attended two different Indian Residential Schools in Ontario.

[11] When Brandi was two years old, her mother became involved in a relationship with a man who sexually abused Brandi, beginning when she was three. The nature of the abuse is detailed in the Report, but I will not outline it here in order to protect her privacy. Her mother knew of the abuse, but did nothing. Later, her uncle also began to sexually abuse her.

[12] When Brandi was six years old, her family moved to Owen Sound. She attended public school where she was bullied by her classmates. Her mother and step-father both abused alcohol and often became abusive towards her. Brandi described the abuse to the author of the Gladue Report:

I experienced physical abuse, emotional abuse, and a lot of verbal abuse. It was mostly when he [her step-father] was gone to work and it was mostly her [her mother]. I remember her telling me things like, "You ruined my life. If it wasn't for you I could have this job", and blah, blah, blah. She really made me feel like I ruined her. . . . She would always say nasty things to me, "You little bitch, you little asshole, you little neanderthal," and all these negative things. She told me she hated me once and she wished that I was never born. . . . She would always put me down, "Oh you know if you were prettier, if you were this, the kids wouldn't beat you up and if you weren't so ugly and you weren't so . . . ", it was just my fault why I was getting beat up at school and it was my fault because her life was not right and that she was tied down with me.

[13] Brandi did not do well in school. She explained to the author of the Gladue Report that she had difficulty concentrating as she was often worried about what she would face when she returned home at the end of the day.

[14] When Brandi was 11, she tried to commit suicide by taking a lot of pills she found in her mother's cabinet. She then left the house, became dizzy and eventually passed out on the street. Passersby called an ambulance and she was taken to the hospital. She fortunately recovered.

[15] Brandi ended up in the care of the Children's Aid Society ("CAS") when she was 11 or 12. She had called the CAS herself after being assaulted by her step-father. She was placed in a foster home for about six months and then returned home. Her mother was drinking heavily and the abuse by her step-father continued.

(ii) Teenage Years

[16] When Brandi was 14, her mother left her step-father and she and Brandi moved in with Brandi's grandmother, who lived in St. Catherine's. Brandi's grandmother was also an alcoholic.

The move did not improve Brandi's relationship with her mother, as she explained in the Gladue Report:

Then she started going to hotels with other people and started ignoring me like I didn't matter. Like all she cared about was her booze and her bars and her boyfriend and then he was no good. All he did was give her booze and more booze and she just ignored me more and abused me more and pretty soon she was just neglecting me period so I had a lot of time to run around with whoever I chose. Then I started hanging out with bad kids and doing bad things and doing dope.

[17] At the age of 14, Brandi began to associate with a "bad crowd" and began to use illicit drugs, primarily mescaline and LSD. As a result, she was expelled from school in Grade 8. This marked the end of her formal education.

(iii) Marriage and the Birth of Her Daughter

[18] When Brandi was 15, she went on a trip to Niagara Falls with some friends where she met a man called Carl Coty. They began a long-term relationship and eventually married when Brandi was 17 and resided together in Niagara Falls, New York.

[19] Brandi became pregnant and, as a result, stopped using drugs, as she explained to the author of the Report:

I was young and stopped doing drugs 'cause I was pregnant. I just didn't want my child raised the way I was. I didn't want her to suffer and know how I was raised so I made sure none of that ever took place.

Brandi's daughter, Stephanie Coty, was born in October, 1974.

[20] Soon after Stephanie's birth, Brandi was involved in a serious car accident resulting in injuries to her back that have caused her pain ever since.

[21] Brandi, her husband and Stephanie lived together for several years without incident. In a cruel twist of fate, Stephanie was diagnosed with leukemia at the age of five. Two months before her 10th birthday, she died.

(iv) Homelessness and the Sex Trade

[22] Brandi explained the events following the death of her daughter to the author of the Report:

After she passed, I fell apart. I started doing damn drugs and this time it was cocaine. I have a long history since that happened and that took me to the streets.

[23] Brandi's relationship with her husband did not survive the tragedy. She moved to Vancouver for a while and then to Toronto in 1987. She was by then homeless. She began to use crack cocaine and became involved in the sex trade to finance herself. She lived in various locations, often sleeping on the street. She lived in this way for several years.

[24] Brandi had frequent involvement with the criminal justice system during this period. She has a criminal record containing 42 convictions between 1991 and 2006. The majority of the convictions are for failing to attend court and communicating for the purpose of prostitution, an offence that has since been found to be unconstitutional. She was only placed on probation twice during this 15-year period (in 1994 and 1996). For most of the convictions, she received jail sentences ranging from one to 45 days.

[25] In the late 1990s, Brandi began to suffer from seizures. In 1999, she was diagnosed as having a brain aneurysm, which apparently resulted from her drug use. She was hospitalized for approximately a month and underwent surgery.

(v) The Beginnings of Change

[26] In 2000, Brandi was seen by mental health professionals through an organization called Street Haven. It appears from the Gladue Report that this was her first significant contact with mental health professionals. She was diagnosed as suffering from Post-Traumatic Stress Disorder ("PTSD"), Attention Deficit Hyperactivity Disorder ("ADHD") and some sort of "split personality disorder", the details of which are unclear because the author of the Gladue Report was unable to obtain the records from Street Haven. She was prescribed an antidepressant and began to receive therapy.

[27] In 2002, Brandi became involved with the Regent Park Community Health Centre ("RPCHC"). She received training on how to work with women within the community and regularly attended drop-in centres. Over the next several years, she became increasingly involved in her community. In 2006, she became involved in the Peer Outreach Program through Street Health. On several occasions, she spoke to students of the University of Toronto Master of Social Work Program. In 2009, she began to attend a sex worker survivor drop-in program organized by Maggie's Toronto Sex Worker Action Project. In 2011, she began to attend drop-in programs organized by the Elizabeth Fry Society and in 2013 began to volunteer in a Senior Day Program through the St. James Town Community Corner. In 2003, Brandi secured her own subsidized apartment and has resided there ever since.

[28] Despite the progress she made, Brandi continued to be addicted to crack cocaine. She stopped being involved in the sex trade and turned to theft instead. However, a few months prior to her arrest, she stopped using drugs. She began to attend an addiction program for indigenous people at Toronto East General Hospital twice per week as well as Narcotics Anonymous. She also began to take counselling for anger management and other programs organized by the Native Women's Centre in Toronto.

(vi) Post-Arrest

[29] Brandi was arrested on August 16, 2015 and released on bail on November 23, 2015. After her release on bail, Brandi continued to abstain from drugs. She continues to be involved in various programs through the Native Women's Resource Centre. She continues to be involved with Street Health where she acts as a mentor to the organization's clients. Several letters of support from people Brandi has been involved with in various programs were filed. All describe her in very positive terms.

[30] At this time, Brandi suffers from a number of health problems. In addition to her back injury, she had a fall in May 2016 causing injuries to her shoulder. She requires a walker. She suffers from asthma and Chronic Obstructive Pulmonary Disease.

(vii) Reconnection With Indigenous Culture

[31] Although Brandi resides in Toronto, over the past several years she has become increasingly involved in her indigenous culture, as she explained to the author of the Gladue Report:

To be honest, when I was a child growing up it was terrible, I didn't want to be an Indian. I wasn't comfortable in my own skin because everybody made me aware it wasn't a good skin. So for me growing up was very, very hard. I suffered a lot of abuse just from being Aboriginal. I could walk into a room and people would stop what they are doing and stare at me. I knew I was different but I was also made to feel dirty and not good.

I feel different about it now because I know that since I've been reaching for my culture since 2002 when I first started going to Native Women's Centre. That is where I learned my culture. I started to learn about me and started to learn that we have rights. What a beautiful culture it is but I never knew that because of my mom not being able to teach me and grandmother being too old. My grandmother was born in 1912 and spoke Ojibway and English. I heard them talk when I was a little girl. My grandmother and mom would talk to each other in half Ojibway and half English. If I hear old people talk I can pick it out but I don't know it fluently. I took Ojibway language with Alex Jacobs too. I am a woman hand drummer. I have been taking drumming now for probably at least six or seven years. I've made my own moccasin and talking feather. That is a feather that no one talks except who hold it. It is an eagle feather and it is quite an honour in our culture. I have planned on how my life is going to be different from here on in. That is my own wish. That is my own desire. I know that I am drug-free I know that I feel a lot better, my mind is clear and straight, my decisions are made sober and I am not clouded by drugs.

II. POSITIONS OF THE PARTIES

[32] Brandi has spent a total of three months and one week in presentence custody. Counsel agree that she should be credited on a "1.5 to 1" basis for the equivalent of approximately five months.

[33] Crown counsel submits that Brandi should be sentenced to a further term of imprisonment of three months. He accepts that given Brandi's indigenous status and background, a sentence below the ordinary range is appropriate and accepts as well that specific deterrence is not a consideration. However, he submits that the principle of general deterrence requires a further term of imprisonment. The Crown does not object to Brandi being permitted to serve this term intermittently.

[34] Counsel for Ms. Nashkewa submits that no further imprisonment is required. Both counsel agree that a period of probation is appropriate.

III. ANALYSIS

A. The Applicability of the Usual Sentencing Range

[35] In R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), the Ontario Court of Appeal held that the range of sentence appropriate for the importation of less than a kilogram of cocaine begins at or near two years imprisonment (paras. 107-111). The Court recognized that there may be situations where significant mitigating factors take the case below the range (Hamilton at para. 111). More recently, the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 made it clear that sentencing ranges are simply guidelines and that any sentence must be individualized to the particular case (at paras. 57-58):

Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. . . .

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case.

[36] In this case, Crown counsel has conceded that a sentence below the range is appropriate as the sentence he seeks is well below the range of "at or near two years" set out in Hamilton. He submits, however, that the principles of general deterrence and denunciation require that Brandi serve more time in jail. In other words, he takes the position that Brandi's unique circumstances as an indigenous offender warrant a sentence below the range, but that the principles of general deterrence and denunciation still require a term of imprisonment longer than what she has served. Crown counsel relies on paragraph 79 of Gladue, where the Court stated:

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.

Citing paragraph 104 of Hamilton, Crown counsel submits that importing cocaine is a "violent and serious offence" and that the sentencing imposed on Brandi should therefore be close to the sentence that would be imposed on a non-indigenous offender.

[37] The passage from Gladue relied on by the Crown is often misunderstood, as was explained in R. v. Ipeelee (at para. 84):

The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences. As Professor Roach has indicated, "appellate courts have attended disproportionately to just a few paragraphs in these two Supreme Court judgments - paragraphs that discuss the relevance of Gladue in serious cases and compare the sentencing of Aboriginal and non-Aboriginal offenders" (K. Roach, "One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal" (2009), 54 Crim. L.Q. 470, at p. 472). The passage in Gladue that has received this unwarranted emphasis is the observation that "[g]enerally, 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" (para. 79; see also Wells, [[2001] 1 S.C.R. 207] at paras. 42-44). Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.)).

Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear that sentencing judges have a duty to apply s. 718.2(e): "There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence" (Gladue, at para. 82).

In addition to being contrary to this Court's direction in Gladue, a sentencing judge's failure to apply s. 718.2(e) in the context of serious offences raises several questions. First, what offences are to be considered "serious" for this purpose? As Ms. Pelletier points out: "Statutorily speaking, there is no such thing as a 'serious' offence. The Code does not make a distinction between serious and non-serious crimes. There is also no legal test for determining what should be considered 'serious'" (R. Pelletier, "The Nullification of Section 718.2(e): Aggravating Aboriginal Over-representation in Canadian Prisons" (2001), 39 Osgoode Hall L.J. 469, at p. 479). Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to "the relative ease with which a sentencing judge could deem any number of offences to be 'serious'" (Pelletier, at p. 479). It would also deprive s. 718.2(e) of much of its remedial power, given its focus on reducing overreliance on incarceration. A second question arises: Who are courts sentencing if not the offender standing in front of them? If the offender is Aboriginal, then courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue. There 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.

[38] As will be seen, it is my view that a consideration of the Gladue factors in this case play a central role in the determination of the appropriate sentence. To the extent that the comparison is relevant, this means that the sentence imposed in this case is substantially different than what would be imposed on a hypothetical non-Aboriginal offender who committed the same offence.

B. The Approach Dictated by Section 718.2(e) of the Code

[39] As noted, s. 718.2(e) requires the Court to consider "the circumstances of aboriginal offenders". This requirement was explained by the Supreme Court of Canada in R. v. Ipeelee (at para. 59):

The Court held [in R. v. Gladue], therefore, that s. 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). 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).

C. Systemic and Background Factors

[40] Sentencing decisions are based on the seriousness of the offence and the moral blameworthiness of the offender. As the Supreme Court of Canada explained in Ipeelee, it is the latter consideration to which the unique circumstances of indigenous offenders are relevant (at para. 73):

First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the unique systemic or background factors that are mitigating in nature in that they may have played a part in the aboriginal offender's conduct" (para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. 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 that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v. Skani (2002), 2002 ABQB 1097, 331 A.R. 50 after describing the background factors that lead to Mr. Skani coming before the court, "[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into account would violate the fundamental principle of sentencing - that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. [Emphasis in original].

[41] Earlier in the judgment, the Court identified the types of systemic and background factors that are relevant in this context (at para. 60):

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. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

Virtually all of these factors exist in this case.

[42] While Brandi did not attend a residential school, her mother, who was her primary caregiver throughout her childhood, did. The intergenerational harm caused by residential schools was recognized by the Truth and Reconciliation Committee in the Summary of the Final Report (2015), at pp. 135-135:

The impacts of the legacy of residential schools have not ended with those who attended the schools. They affected the Survivors' partners, their children, their grandchildren, their extended families, and their communities. Children who were abused in the schools sometimes went on to abuse others.

Children exposed to strict and regimented discipline in the schools sometimes found it difficult to become loving parents.

The author of the Gladue Report quoted the following from a publication by the Canadian Collaborative Mental Health Initiative entitled Pathways to Healing: A Mental Health Guide for First Nations People (2006):

As these residential schoolchildren grew up, most of them did not have the skills, knowledge, or emotional strength to parent their own children. In many communities, our next generation of children were raised in families with chaos, substance abuse and violence. . . . Parents, unable to care for themselves, leave children to care for each other. Kids turn to alcohol, drugs, unsafe sex, and acting out as a means of coping and numbing their pain. This is how they see their parents cope.

[43] There can be no doubt that the fact that Brandi's mother was a residential school survivor contributed to many of the issues she faced, including her lower educational attainment (she was expelled from school in Grade 8), substance abuse, and poverty.

[44] In addition to the issues identified above, which are all too commonly faced by many indigenous Canadians, in my view there are further specific issues related to Brandi's culpability that arise because she is a woman. A large proportion of people who commit the offence of importing controlled substances are vulnerable individuals taken advantage of by unscrupulous traffickers. Indigenous women are amongst the most vulnerable segments of our population. The recognition of this vulnerability has led to the creation of the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Terms of Reference of which refer specifically to the "particular vulnerabilities of Indigenous women and girls in Canada." Brandi has been the victim of a significant amount of violence throughout her life. The vulnerability caused by systemic problems has resulted in Brandi and many like her becoming victims of violence. The same vulnerability led to her being recruited into committing the offence she is being sentenced for. As noted earlier, indigenous women are amongst the most over-represented populations in our prisons.

[45] In my view, this is very much a case where, to paraphrase what was said in Ipeelee, the reality is that Brandi's constrained circumstances diminish her moral culpability.

D. Procedures and Sanctions Which May be Appropriate in the Circumstances

[46] The second part of the approach set out in Ipeelee is for the court to identify "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." This will usually mandate a restorative approach. Sentences imposed to give effect to the objective of general deterrence cannot be, by definition, tailored to the circumstance of the offender "because of his or her particular Aboriginal heritage or connection."

[47] In this case, the sanctions available to the court are limited. A conditional sentence is not an option by virtue of s. 742.1(c) of the Code. As a result, the available options are a fine (which no party has suggested), imprisonment, probation or a combination thereof.

[48] The Crown seeks a further custodial term, mostly for the sake of general deterrence which is, as noted earlier, not a consideration related to Brandi's particular circumstances. I recognize that in the context of profit-motivated CDSA offences, the principle of general deterrence has long been a driving force in the sentencing jurisprudence. This remains the case despite the courts' increasing recognition in recent years of the lack of empirical support for the proposition that lengthy prison sentences have a deterrent effect on individuals other than the offender being sentenced: Lacasse at para. 73; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 at para. 113; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para. 107.

[49] In this case, Brandi has served the equivalent of five months of imprisonment. While the deterrent effect of this is unknown, I doubt that the additional 90 days requested by the Crown would increase it in any appreciable way.

[50] In my view, a restorative approach in the circumstances of this case leads to the conclusion that a non-custodial disposition is appropriate. Despite the challenges she has faced throughout her life, Brandi has made enormous strides in the past few years. She has stopped using drugs. She has reconnected with her heritage. She has devoted her time to helping not only herself, but others in her community. She has accepted responsibility for the offence she committed and has expressed remorse. In my view, the best way to ensure that Brandi does not find herself before the courts is to do what I can to assist her on the path she has herself chosen.

[51] In coming to this conclusion, I note that the criminal justice system bears some responsibility for Brandi's circumstances. As noted earlier, she was convicted of 42 offences between 1991 and 2006. There were many opportunities throughout this 15-year period for the courts to at least attempt to assist Brandi with the challenges she faced. Yet the primary rehabilitative tool at the courts' disposal, a probation order, was utilized only twice during this period. For the vast majority of her convictions, the courts resorted to "short sharp" periods of imprisonment. "Short sharp" sentences of imprisonment serve only the principles of deterrence and denunciation. Offenders have no time to benefit from any rehabilitative programs that may exist within correctional institutions. The Canadian criminal justice system had repeated opportunities to help Brandi with her rehabilitation. It failed, and did so repeatedly. The criminal justice system owes her an opportunity to work towards rehabilitation.

[52] I recognize that the sentence being imposed in this case is below the usual range. This is not because Brandi is getting a "discount" for being indigenous. Rather, it is the result of an application of the approach dictated by Gladue and Ipeelee. That approach will sometimes result in a sentence below the usual range, even in cases involving serious CDSA offences: R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346 (C.J.); R. v. Smith, [2016] O.J. No. 1701 (S.C.J.); R. v. Peters (2015), 323 Man. R. (3d) 237 (C.A.).

IV. DISPOSITION

[53] For the foregoing reasons, the time Brandi has served (the equivalent of five months) is to be noted on the Information and the passing of sentence is suspended. She will be placed on probation for a period of 24 months. In addition to the statutory terms, she is to report to a probation officer once and thereafter as directed and she is to take such programming as directed by her probation officer in accordance with the recommendations set out on page 45 of the Gladue Report, a copy of which should be forwarded to the probation officer. There will also be the mandatory firearms prohibition required by s. 109(1)(c) of the Code.

Justice P.A. Schreck

Released: November 29, 2016