WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
( b ) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2022 02 11 Court File No.: Fort Frances 190525
Between:
HER MAJESTY THE QUEEN
— AND —
H.T.
Before: Justice E.J. Baxter
Heard on: October 15 & November 17, 2021 Reasons for Sentence released on: February 11, 2022
Counsel: Jason Clouston................................................................................... counsel for the Crown Peter Howie & Marco Frangione ....................................... counsel for the accused H.T.
Baxter J.:
[1] These are my reasons for the sentence imposed on November 17, 2021. Following a trial of the matters on a 10 count information, H.T. was found guilty of 3 counts of simple assault and 1 count of mischief under $5000.00 contrary to sections 266 and 430 of the Criminal Code, respectively. She was acquitted of 4 charges, some of which were subject to a s. 486.4 publication ban. The crown stayed 2 other charges. My reasons for judgment after the trial were read into the record on February 23, 2021.
[2] A pre-sentence report with “Gladue components” was ordered, and the sentencing matter was put off until the pre-sentence report and the child protection matter involving H.T. and her children were completed. A Gladue Report was not possible in this case considering the extremely long delays in the preparation of the reports in the Fort Frances area due to the caseload spread among too few writers.
[3] H.T. was arrested on June 18, 2019 and charged with the subject offenses. She was released from jail after 49 hours and remained on bail conditions until November 17, 2021. H.T. did not breach any of her bail conditions for that release period, nor did she attract any further charges.
[4] The sentencing hearing commenced on October 15, 2021 and concluded on its second day on November 17, 2021. H.T. was given conditional discharges with probation for each count. I reserved my sentencing reasons for a later date. The relevant facts are set out below.
[5] On June 7, 2019 H.T. and the complainant, K.M., H.T.’s then girlfriend, were walking home after a local event in Fort Frances. The parties got into an argument, and it got physical. H.T. admitted to shoving the complainant after she was shoved by K.M. H.T. did not raise any self-defence argument. The complainant was not injured, and H.T. walked off alone, leaving the complainant behind. For this relatively minor assault at count 3 of the information, H.T. was given a conditional discharge and 1 day unsupervised probation.
[6] The assault at count 6 of the information for which H.T. was found guilty, involved H.T. biting K.M. on the inner thigh, without consent. The bite left a visible mark that was seen on photographs tendered at trial. H.T. was given a conditional discharge and 12 months supervised probation with conditions.
[7] Count 7 on the information related to the “mischief under” charge regarding the wilful damage H.T. caused to K.M.’s borrowed iPod Touch. H.T. was found guilty of throwing the device and rendering it inoperable. H.T. was given a conditional discharge and 1 day unsupervised probation for this incident.
[8] The final count was count 8 on the information. This incident involved H.T. being found guilty of punching K.M. in the face, leaving K.M. with a visible mark on the chin area. This incident was witnessed by another individual who testified at trial and corroborated K.M.’s version of the event. H.T. was given a conditional discharge with 12 months supervised probation with conditions. The 12 month probation orders were to run together, or concurrently.
Pre-Sentence Report and Background of H.T.
[9] H.T. is Anishnaabe-ikwe from Mishkosiminiziibiing Anishnaabeg Nation , formerly known in English as Big Grassy First Nation, near Morson, Ontario in the Treaty Three territory. In August 2018, H.T.’s 2 children were apprehended by an Aboriginal child protection agency in the Fort Frances area.
[10] The pre-sentence report outlines H.T.’s background and family history which are fraught with trauma, chaos, and dysfunction. H.T. was a permanent ward of the Dakota Ojibway Child and Family Services in Manitoba because of serious abuses she suffered at the hands of her mother and others.
[11] H.T.’s mother was from Long Plains First Nation in Manitoba, and her father was a Dakota-Sioux from Leads, South Dakota in the United States. Her maternal grandparents had substance use issues, and H.T.’s mother was suspected to have been born addicted to opiates. H.T.’s mother was taken into care at about 6 months of age because H.T.’s grandfather was arrested for deserting the US military, court-martialed, incarcerated, and dishonourably discharged.
[12] H.T.’s mother was returned to her father after 6 years when he returned to Canada and fought to get his daughter back. They then moved to South Dakota for several years. H.T.’s mother, at age 12, was living with her mother in Canada. It was at this time H.T.’s mother was sexually assaulted by her stepfather after her mother got her drunk. Her stepfather was incarcerated for 15 years and her mother for 2 for that incident. H.T.’s mother moved to Thunder Bay where she was trafficked by a biker gang until she was rescued and taken to Fort Frances to live with her mother, H.T.’s grandmother. It was in Fort Frances where she met and married H.T.’s father when she was 16 years of age (1993). Mr. T is from Mishkosiminiziibiing Anishnaabeg Nation.
[13] Mr. T did complete high school, had some struggles with alcohol and did have conflict with the law in his young adulthood. H.T.’s parents were married for 7 years and had H.T. and her sister as a result. Unfortunately, H.T.’s parents’ marriage was volatile and impacted by substance abuse and violence.
[14] H.T.’s parents separated, and H.T. and her sister went with their mother to Fort Frances. It was during this time that H.T.’s uncle died of exposure and was found frozen to death one Christmas.
[15] Between 1997 and 2000 H.T.’s mother maintained sobriety and was enrolled in school. She was in a relationship with a man who, when the relationship ended, stole into her home and held H.T. and her sister hostage. A 12 hour standoff with police ensued, and H.T.’s mother was beaten and stabbed in the ordeal. She then fled to a shelter with her daughters.
[16] H.T. and her sister were apprehended by CAS in 2000 after their mother was diagnosed with bipolar disorder and PTSD. The girls were placed with their grandmother in Long Plain. Unfortunately, their mother returned to the man who hurt them and went to Manitoba to avoid arrest warrants.
[17] H.T. and her sister were returned to their mother in 2001 in Winnipeg, but their mother stopped taking her medication and relapsed into substance abuse. At this time, H.T. was left to her own devices, and began wandering the streets of Winnipeg.
[18] When H.T. was 9 years of age, her mother sexually exploited/trafficked the girls, and H.T. began to take alcohol and cocaine. H.T. became a permanent ward of the state in 2008 when she was 14 years old.
[19] From age 12 until she aged out of care, H.T. was in and out of secure treatment, youth facilities, and jail. She suffered serious substance use issues, was a sex worker and lived a high risk life in Winnipeg. She was also noted to be highly resistant to help and treatment.
[20] H.T. met a woman 12 years her senior when she was 17. They eventually married, but the relationship was dysfunctional and ended in 2018. H.T. gave birth to her first child in 2015 after becoming pregnant from a “john”. The baby was apprehended by CAS.
[21] Before the birth of her older child, H.T. was raped by an older man employed with her First Nation. He appeared to be grooming H.T. to continue to exploit her by buying her things, taking her on business trips, until she finally understood what he was doing and ended the relationship. H.T. also suspected he was actively trying to groom her children.
[22] H.T. had another child with a male friend of hers who has since died. The child was born in 2018. H.T. regained custody of the older child at that time, but both children were apprehended in 2018 when H.T. brought the younger child to the doctor to have her checked. It was discovered the baby had a sexually transmitted infection.
[23] An investigation ensued, and H.T. became embroiled in the child protection arena again. It was never determined who gave the baby the infection, despite H.T.’s expressed suspicions. Her girls were placed in separate foster homes. H.T. was eventually successful in her 2 years plus fight against the child protection agency, and her children were returned to her in December 2020. They have been with her since.
[24] In the period between her arrest and the sentencing hearing, H.T. completed high school, has engaged in therapy/counselling, and has taken about 20 different courses and programs to assist her in moving forward. She was also in a co-op program to enhance her school credits.
[25] H.T. has had little or no periods of “legitimate” employment. Her most recent was at a Fort Frances restaurant, but the pandemic resulted in her being furloughed. She is not currently working but hopes to return when the pandemic allows. H.T. currently relies on ODSP for her income.
[26] Because she was successful in her fight against the child protection agency, the agency had “washed its hands of her” and had not done anything to assist her to obtain any child tax benefits or other financial assistance. She was awarded costs in her child protection case, but that money went to her legal counsel. For the time being H.T. is living under the extreme stress of being a single mother, gay, Aboriginal, impoverished, and unemployed in a small northern Ontario town that has often been less than kind to her.
[27] H.T. had not used alcohol or drugs for about a year at the time the PSR was prepared in May 2021. At the sentencing hearing in November, it was confirmed that she was not using substances and successfully maintaining her sobriety.
[28] H.T. has a history of residential school impacts in her family with her grandparents having been sent to residential school. She also has been diagnosed with PTSD, affective disorder, adjustment crisis, and a personality disorder. She is also suspected to suffer from fetal alcohol effects but has not been tested or diagnosed. Her workers and other community supports note H.T. has been doing better and is engaged in services and programs. She wants to be a good parent and learn to cope with life’s stresses more appropriately than she had been. She continues to work on her healing journey, and she is making progress with the supports she has.
[29] No victim impact statement was provided for the sentencing hearing, but K.M. did indicate at the trial H.T.’s actions left her feeling like she was to blame, and she was emotional at times during her testimony. She did not express any other feelings or thoughts about the impact of H.T’.s actions, but the court was left with the impression K.M. tired of the controlling and jealous behaviour of H.T.
Defense Position on Sentence
[30] Defence counsel made lengthy submissions on behalf of H.T. in support of either an absolute or conditional discharge. They felt it was important for the court to understand how the state failed her at every turn and impacted H.T. in a negative manner. The main points of their submissions are summarized here.
[31] Counsel submitted H.T. is not the same person she was in 2019 during the relationship she had with K.M. Counsel acknowledge the relationship with K.M. was “toxic” and codependent. While the relationship was short, it was volatile and happened at a time H.T. was relapsed in her substance use, because her children had been taken from her by a state agency. She had been seriously traumatized her entire life by people in her life and from the institutions that created and perpetrated the systemic maltreatment of Aboriginal people in this country.
[32] H.T. never knew or had healthy relationships in her life. She had significant control issues and was jealous and possessive of her partners, including K.M. Her history of abandonment and insecure relationships likely caused her approach to her relationship to K.M.
[33] Counsel indicated H.T. appears to have grown and matured over the last two years or so, given the child protection matter and her quest to have her children returned to her. However, counsel indicated since the child protection case was summarily dismissed, she contends with feeling watched by police and the child protection agency. Consequently, she parents her children with a level of fear that if she makes any mistakes, they will be taken from her again. She and her children are traumatized by the child protection system, and she must navigate that along with being impoverished while trying to provide stability and a better life for her children than she had.
[34] While H.T. has a criminal record, it is a record that reflects her trauma, her systemic maltreatment and her need to survive that resulted in the convictions on her record. She fears any further additions to her record will allow the children’s aid agency to take her children again.
[35] Given H.T.’s history, her moral culpability is significantly diminished. The nature of the charges for which she was found guilty here should not preclude her from the benefit of a conditional discharge.
[36] H.T.’s history, her Indigeneity, her Gladue (R. v. Gladue, [1999] 1 S.C.R. 688) factors, the length of time it took to have the trial, the steps she has taken toward her rehabilitation, her mistreatment by the state, and her need to parent her children cry out for the benefit of a discharge under section 730 of the Criminal Code.
[37] While acknowledging the instant charges related to K.M., counsel is not diminishing their impact on the complainant here, but in the context of H.T.’s then and current circumstances, these offenses are not the most serious ones the courts see regularly. Counsel is seeking restraint by the court in sentencing H.T. to allow her to continue her healing journey, her rehabilitation and to be a mother.
[38] Mr. Frangione, her counsel for the child protection matters, made submissions to illustrate how H.T. was treated by the state – the child protection agency, the police and the others who made her life very stressful throughout both proceedings. Mr. Frangione referred to the decisions of Justice Joubert (see Weechi-it-te-win Family Services Inc. v. H.R.T. [2020] O.J. No. 5708, No. 6081 and 5208) in the child protection proceedings to point out the behaviour of the employees for the agency and the police were involved in what appeared to be a targeted, adversarial approach to H.T. She was a suspect in the STI given to her daughter.
[39] Counsel alleged rumours were spread around Fort Frances by those involved in the investigation that H.T. had HIV, was gay and had given her child the STI. The materials filed by the agency were hearsay and loaded with innuendo because she is poor, gay and Aboriginal. She lost her children for over two years based on the highly flawed allegations and materials in the child protection matter, about which the court in that proceeding had made clear findings of their inappropriateness and baselessness.
[40] Mr. Frangione made strong implications that the police officer involved in the child protection matter was the same officer involved in the criminal investigation that led to the charges this court addressed. He asserts the officer was “co-opted” by the agency and was working behind the scenes to essentially “railroad” H.T. This officer did not testify at the child protection or the criminal proceedings, for reasons still unknown to him and his co-counsel.
[41] Further, Mr. Frangione noted that Mr. Taylor, counsel for the agency, sat through the entire criminal trial, which he stated, intimidated H.T. and impacted H.T.’s testimony at the criminal trial. He queried why counsel spent the time at the trial when he could have just ordered the transcript afterward to learn the outcome and understand the evidence the court heard.
[42] After the child protection matter was dismissed, H.T. was refused the financial help the agency was obliged to provide. Instead, H.T. was forced to resort to Jordan’s Principle to obtain necessities for her children – a move that, in his submissions, demonstrates the inhumanity and structural violence of the state toward this Anishnaabe-ikwe.
[43] In summary, counsel urged the court to grant an absolute discharge given the state comes to court with unclean hands. In the alternative, they argued a conditional sentence would be acceptable to allow H.T. to continue her rehabilitation work.
The Crown’s Position on Sentence
[44] The crown expressed concern about the court receiving the information about the child protection proceedings, and that H.T. has her remedies regarding how she was treated by the agency.
[45] He asked the court to not lose sight of the victim, K.M., here. He took exception to counsel implying there was some sort of collusion between the crown and the agency, and that no Gardiner application was brought. He felt he was being personally maligned by counsel in their submissions in their references to the state and crown.
[46] The crown pointed out the main aggravating factor here is the fact the offenses were committed in the context of an intimate partner relationship. The crown pointed out actions of H.T. were meant to hurt, humiliate and control K.M.
[47] The crown noted the PSR did not demonstrate a level of remorse or insight by H.T. that could say she has learned from this experience. K.M. was a vulnerable victim in that she was homeless, and in financial need when she got involved with H.T. He argued there was a power imbalance in their relationship, and that H.T. was the one with the power and control over K.M.
[48] With respect to the charges, the crown submitted the assault at count 3 (the shove) could have been diverted and was not seeking custody for it.
[49] For count 6, (the bite) is the count the crown couched as the most serious as H.T. used her teeth as a weapon to hurt and humiliate K.M. in the context of an intimate relationship. He asked the court to consider 3 to 4 months in jail followed by probation with conditions.
[50] For count 7 (the iPod Touch) the crown was seeking 30 to 60 days in jail.
[51] For count 8 (the punch) the crown was seeking 3 to 4 months consecutive to the others.
[52] The crown submitted H.T. is not eligible for a conditional sentence order given her history of not complying with such orders or other court orders. He did acknowledge she was on bail conditions that she did not breach for over 2 years, but he indicated she only did so because H.T. was motivated.
[53] The crown then went on to outline the serious issue of intimate partner violence in this country and the addition of intimate partner violence as an aggravating factor in the sentencing provisions of the Criminal Code. He then referred the court to a few cases – R. v. Brown, 1992 ABCA 132 regarding the importance of general deterrence in intimate partner violence matters. He also referred to R. v. Inwood, [1989] O.J. No. 428 and R. v. Rahaman, 2008 ONCA 1 for the sentences given to the offenders in those cases.
[54] The crown expressed concern H.T. has not demonstrated remorse, has not learned from this experience and will reoffend if she is not deterred. The court needs to send a message to H.T., and the general public, that intimate partner violence is a public issue and that victims deserve protection.
[55] The crown was opposed to any discharge for H.T. because she is not of good character. The case of R. v. Sanchez-Pino, [1973] O.J. No. 1903 (Ont. C.A.), precludes a discharge here. The need for specific deterrence precludes a discharge for H.T. as it is not in her interests to be granted one in the circumstances, nor is it in the public interest to grant a discharge. Her criminal record requires the court to give serious weight to deterrence.
[56] However, the crown did indicate in considering H.T.’s Gladue factors and her history, that the court could entertain a suspended sentence with probation or some lesser period of incarceration. He also indicated a conditional sentence might be appropriate if the court is so inclined. The crown noted the public needs to understand the sentence to be fit and proper, and a CSO would send the wrong message, as would a discharge.
Reply
[57] Counsel for H.T. responded to the crown’s submissions by pointing out the case law cited did not apply to the facts of this case; only one was post- Gladue , and the context of intimate partner violence here involves same sex partners. The court needs to examine this issue from a gender-based and trauma-informed approach to understand in many instances same sex partner violence is not the same as male/female violence.
[58] Counsel noted H.T. has not yet addressed the court; therefore, how can the crown say she has no remorse?
[59] Counsel also pointed out defense was required to bring a motion prior to the trial continuation to compel the crown to identify its anticipated witnesses and to inform defense what position it was taking on the offenses with regard to sentences it would seek.
[60] The behaviour of the state actors in all their dealings with H.T. speaks directly to the purpose of Gladue . Unfortunately, Gladue has failed in its goal to remedy the over-representation and over-incarceration of Aboriginal people in the criminal justice system and custodial institutions. In this case, counsel queried what the public would think about the state’s conduct toward H.T., her family and her children. A custodial sentence is not appropriate for H.T.
H.T.’s Comments to the Court
[61] H.T. exercised her right to speak at her sentencing hearing. She told the court she feels bad about what she did to K.M. and regrets her actions. She understands she hurt K.M. and is trying to change and learn to behave differently.
[62] H.T. recognized she needed to work on her sobriety, anger issues, trauma and to focus on her children. She recognizes she and her children are traumatized and need to get help, which is why she has engaged with the variety of counselling, services and programs she has of late.
[63] H.T. expressed she is proud of the progress she has made and says she is a much different person than she was in the spring of 2019. She completed high school, despite her learning deficits. She is also proud of being sober for over two years, and that she has cut ties with the people in her life that are not on the same path as she, including her own sister. H.T. said in 2019 she was homeless, a drunk and a drug addict. She did not care about anyone or anything as she had her children taken from her. She pushed people away and hurt them. She said that was not who she is as a person.
[64] In comparison H.T. said she now is a good mom, is not violent, has learned to walk away from conflict, is learning empathy and is able to care about others. She said her heart is bigger now and she feels more at peace and understands she cannot control people, but she can control how she behaves or reacts. She informed the court she is “retired” from going to jail.
[65] H.T. has been reconnecting with her family and culture. She told the court she and her children attend events like pow wows and have been learning a bit of Anishnaabemowin (the language). Her father sings at pow wows, and the family go sage picking and other activities. Her main focus is to keep her children, engage them in activities, maintain a home for them and keep working at her rehabilitation.
[66] H.T. said she has goals for her future such as continuing her education, saving money to pay off fines for her car to be put back on the road. She is also hopeful she will be able to return to work at the restaurant soon, but the pandemic has not allowed that yet. She expressed an interest in becoming a paramedic (since she is used to blood and violence), a welder or a cook. She also thought she might like to be a support worker but that she would never consider working with the agency who took her children from her.
[67] H.T. noted she began her rehabilitation work on her own, without a court order and did complete an intimate partner violence class on her own volition. She concluded by saying she was sorry for what she put K.M. through, wishes her well and hopes she finds happiness being a new mom, and can have a good life.
H.T.’s Criminal Record
[68] The criminal record was tendered as an exhibit to the sentencing hearing. It shows H.T. has one youth entry from 2011. Her adult record has an entry of assault causing bodily harm in 2013 for which she received a sentence of 5 months time in custody plus 1 day and 18 months probation. She also had 3 failures to comply with court orders and recognizances. Additional probation and a short jail sentence concurrent to the index offense were also imposed.
[69] The record continues from 2013 to 2016 with 7 more failures to comply with probations or recognizances. There is another assault in 2016 as well for which she received a 5 month conditional sentence.
[70] H.T. was also convicted in 2016 of being unlawfully in a dwelling house and received a 30 day sentence.
[71] In 2017 H.T. was convicted of driving with more than 80 mg of alcohol in 100 ml of blood and received the mandatory minimum sentence.
Analysis
[72] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society.
[73] Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community.
[74] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. This means that, for the sentence I impose to be appropriate, it must be tailored to H.T.’s circumstances, and the circumstances of the offences she committed.
[75] In determining an appropriate sentence, it is helpful to consider any relevant aggravating or mitigating circumstances that are presently at play. This would include features of H.T.’s background, features of the crimes she has committed, the timing of her guilty plea (if any), and any other evidence I have received during this sentence hearing. It would also include any legal direction, whether found in the Criminal Code, for example section 718.2 (a), or provided by the higher courts, with regard to particular aspects of this case that I must give significant consideration to.
[76] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating and mitigating features of this case :
Aggravating factors:
- The offenses were committed in the context of an intimate partner relationship.
- The victim is a vulnerable person given her life circumstances.
Mitigating factors:
- The work H.T. has done on her own toward her rehabilitation.
- H.T.’s significant Gladue factors.
- H.T.’s resulting reduced moral culpability.
- The length of time she was on bail with no further charges.
- H.T.’s expression of remorse and regret and the level of insight she has gained since the offenses were committed.
[77] In this case the offender, H.T., is Aboriginal and must be sentenced in accordance with the principles set out in Gladue, R. v. Ipeelee 2012 SCC 13, [2012] 1 S.C.R. 433 and s. 718.2 (e) of the Criminal Code.
[78] Section 718.2(e) states all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention [my emphasis] to the circumstances of Aboriginal offenders.
[79] The court has an obligation to understand the relevant circumstances of an Aboriginal offender and the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts. 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 must be considered. (Gladue, at para. 66 )
[80] Section 718.2(e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has been, and continues to be, the fundamental duty of a sentencing judge.
[81] Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2 (e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process. (Ipeelee par. 75 )
[82] Aboriginal people in Canada have carried many heavy burdens since settler contact. From the overarching impacts of colonization, the Indian Act , the genocidal policy of residential schools, the sixties scoop, the imposition of Christianity, the destruction of livelihoods, the missing and murdered Indigenous women and girls tragedy, the days schools, the child welfare system, the systemic discrimination, the lack of opportunities that caused poverty, lower education completion, unemployment, and the over representation of Aboriginal people in jails and prisons, it should not come as a surprise that an Anishnaabe-ikwe like H.T. has had the experiences she has had, including her involvement with the criminal justice system.
[83] H.T.’s traumas, her unfortunate early years and her ongoing struggles demonstrate the burdens Aboriginal people bear continue to be real and have not abated. H.T. has endured a great deal of negative experiences in her life that are directly linked to the impacts noted above. As a result, her Gladue factors are numerous, resulting in a significantly reduced moral culpability on her part.
[84] The crown here argued H.T. is not of good character and not deserving of a discharge. I find that H.T.’s character cannot, and should not, be compared to the non-Aboriginal concept of “good character”, nor should she be viewed as less deserving of an individualized sentence given her past and her criminal record. Further H.T.’s “character” was created, in part, by the burdens she has carried along with all other Aboriginal people in this country. The state, or the Crown, had a hand in the person H.T. became. As a result, the state is not entitled to bemoan the result of the impacts of these burdens on Aboriginal offenders. H.T.’s family history of residential school, the child welfare system and the other impacts were passed on to her with little or no support from the institutions and systems that created the reality with which she had to live.
[85] This is not to say H.T. bears no responsibility or ownership in her choices and actions. That is acknowledged. The Anishnaabe culture and laws also require people who do wrong or harm to take responsibility and try to make things right. Reparations, rehabilitation and healing are the keys to restoring peace and order in the Anishnaabe culture. Punishment has a role in limited and very serious circumstances.
[86] In this case, I agree with defense counsel in that H.T. has been punished enough given her history, the treatment she received by the child protection agency, and her lengthy time on bail while she awaited trial. Her rehabilitation and reintegration into the community are more important in order for her to be given the chance to not find herself before the court in future.
[87] The crown argued the court ought not to have received the information about the child protection proceedings as it was not relevant. Respectfully, I disagree. Gladue and the sentencing provisions of the Criminal Code require the court to take into consideration all the factors and details of an offender’s history that may have contributed to her being in conflict with the criminal justice system. The relevance of the child protection proceedings is clear. H.T.’s children being taken from her not long before the criminal charges were brought explains the attitude and behaviours that led to her harming K.M. H.T. said as much during her sentencing hearing.
[88] This type of reaction is not unheard of. Aboriginal parents whose children were ripped from them to be taken to residential schools across the country experienced significant trauma, despair, hopelessness, and sorrow. Many parents turned to alcohol to ease their pain at losing their children. As a former adjudicator to hundreds of residential school hearings, I heard time and time again the same story of how many parents, grandparents and extended family members turned to alcohol and other destructive behaviour in response to the loss of their children to the residential schools. This went on for generations, and the impacts are still very real and continuing. H.T. is no different. This is intergenerational trauma caused by state action aimed squarely at Aboriginal people for being Aboriginal.
[89] Incarcerating H.T. would not have served any purpose here but to cause her to backslide, to possibly relapse and to lose her children all over again. To permit the systemic destruction of all she has worked hard to achieve and overcome in the time since her arrest would be to dismiss the principle of rehabilitation, a foundational tenant of the sentencing principles the court must uphold. Moreover, her children could very well be set on a path that may result in them one day winding up before the criminal courts.
[90] The crown also argued H.T. showed no insight or remorse. Again, the rehabilitative work done by H.T. demonstrates otherwise. If she were indifferent or unremorseful, she would not have taken anger management, intimate partner violence and other counselling to address the issues she has recognized she needs to address in order to move forward in a better way. She did the rehabilitative work without a court order forcing her to do so. Further, she expressed remorse and regret for her actions at her sentencing hearing. I am satisfied H.T. has learned from the harm she caused to K.M. and is working toward not repeating her behaviour in future.
[91] H.T.’s criminal record provides a glimpse into her past and the sentences she received. Her long-term substance use, her need to survive and her engagement in criminal behaviours is another reflection of the intergenerational trauma and the burdens she carries as an Anishnaabe-ikwe. I do not agree H.T. should be punished for having a criminal record as she served those debts to society and must be permitted to move forward without the community continuously scrutinizing her past in this regard. Offenders must be able to look forward. They, as well as anyone who is intimately familiar with the criminal justice system, are aware of their past offenses. Having a criminal record is an additional burden so many Aboriginal offenders must carry and that should not define who an Aboriginal person is for the rest of their lives.
[92] In terms of denunciation and deterrence (general and specific), H.T. has experienced denunciation from the words of the crown and the time she was on bail and from her treatment in the community. She has accepted her behaviour was unacceptable and she has taken strides to not repeat it. She remains single and wants to focus on her healing and taking care of her children. She has been specifically deterred from engaging in abusive intimate partner behaviour by not getting involved in another relationship until she feels she is ready to be a healthy partner to someone else.
[93] Further, H.T. expressed her fear that if she reoffends, she will lose her children, because she feels the child protection agency, the police, and indeed, the community are watching her. The presence of counsel for the child welfare agency throughout the trial certainly demonstrated this scrutiny. It had a chilling effect on H.T.’s candour in her testimony, and which this court observed.
[94] As for general deterrence, I am not satisfied H.T. ought to bear the additional burden of being the example for the general public to fear engaging in this type of behaviour. If anything, H.T.’s offenses and the consequences she faced, and may face in the future, may achieve a level of general deterrence, but not such that it will contribute to the end of intimate partner violence.
[95] Intimate partner violence remains a serious, ongoing problem in Canada and elsewhere. The reality of general deterrence as an effective tool by making an example of offenders may not be effective to take into account the individual realities of those who suffer the abuses and the perpetrators of the abuse. Factors related to gender, socio-economic stresses, cultural factors, geography, mental health, substance abuse, and other realities for the offenses related to intimate partner violence may not be solely addressed by punishment. For intimate partner violence to stop, healing, education, resources and a myriad of other tools are required.
[96] In this case the principle of restraint, as required in sentencing principles, especially for Aboriginal people, must also be balanced against the need for the court to weigh the other sentencing principles, including general deterrence, in determining a fit, proper, proportionate, individualized sentence for H.T.
[97] With respect to the case law cited by the crown, the cases that pre-date Gladue and Ipeelee were of no assistance here. None of the cases cited relate to Aboriginal offenders, and the fact scenarios are vastly more serious than the facts here. I am not satisfied the cases are applicable and I give them little, if any, weight.
[98] It is for these reasons I grant the conditional discharges and the periods of probation as noted at the outset.
Released: February 11, 2022 Signed: Justice EJ Baxter