OSHAWA COURT FILE NO.: SCA-19-14997 AP

DATE: 20210527

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

KYLE PARENT

Respondent

Ngai On Young, for the Appellant

Krystal Manitius, for the Respondent

Wes Dutcher-Walls, for the Intervenor

HEARD: April 27, 2021

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

LEBOVICH J.

Table of Contents

OVERVIEW... 2

EVIDENCE CALLED AT THE STAY APPLICATION.. 3

The Stay Application. 5

EVIDENCE FILED BY THE INTERVENOR.. 11

THE TRIAL JUDGE’S DECISION TO STAY THE PROCEEDINGS. 12

LAW AND ANALYSIS. 14

General Principles Regarding When a Stay Should be Imposed. 14

The First Breach – The Respondent’s Incarceration. 15

Positions of Counsel 15

Analysis. 15

The Second Breach – The Failure to Produce a Gladue Report 19

Positions of Counsel 20

Analysis. 21

General Sentencing Principles Regarding Section 718.2(e) of the Criminal Code. 21

No Court Order. 23

ALS’ Inability to Produce a Gladue Report 25

The April 6th Adjournment 26

Friendship Community Centre. 28

Left the Incarcerated Offender and his Family to do the Legwork. 29

The Interview of the Respondent 30

The trial judge was able to fulfill his obligation pursuant to s.718.2(e) 31

Additional Issue: Did the trial judge have the authority to order ALS to write a Gladue report?. 36

CONCLUSION.. 38

OVERVIEW

[1] Mr. Parent pleaded guilty to two sets of charges with respect to the same complainant on two different court informations. He pleaded guilty to the first set on July 28, 2017 and pleaded guilty to the second set on March 16, 2018. Mr. Parent assaulted his domestic partner and then breached a court order to stay away from her by slashing her car tires. Mr. Parent was to be sentenced for both charges before the same trial judge. Mr. Parent is Indigenous. A pre-sentence report (“PSR”) with some Gladue content was ordered and obtained. A Gladue report was then requested of Aboriginal Legal Services (“ALS”). A Gladue report was not provided as ALS could not, based on the information they were provided, verify Mr. Parent’s ancestry. The defence brought a motion to stay the proceedings. The hearing concluded on October 23, 2018. The trial judge granted the stay on January 23, 2019 with reasons to follow. The reasons were provided on July 19, 2019. The Crown has appealed the stay.

[2] The hearing of the appeal was delayed initially because of the pandemic. There was a further delay as Mr. Parent sought and finally obtained legal representation. For reasons set out in R. v. Parent, 2021 ONSC 1519, I allowed ALS to intervene, on a limited basis, to provide submissions on a trial judge’s ability to order, as opposed to request, ALS to produce a Gladue report. The appeal was heard via Zoom on April 27, 2021. I reserved my decision.

[3] The trial judge found that there were two independent breaches of the respondent’s s. 7 rights requiring a stay. He found that Mr. Parent stayed in jail in excess of what the Crown was seeking because he was awaiting the arrival of the Gladue report. The trial judge also found that his order for a Gladue report was not complied with, resulting in him being unable to comply with his duty under s.718.2(e) of the Criminal Code.

[4] The appellant asserts that the trial judge made numerous errors in his analysis requiring the stay to be set aside. The appellant submits that the trial judge erred in finding that there was a breach of a court order and erred in finding that the respondent was over detained in custody because of the nonproduction of the Gladue report. The respondent states that ALS failed in its duty to provide a Gladue report and breached the trial judge’s order requiring them to do so. A stay was the only remedy available, given that the respondent was forced to remain in custody and serve a lengthier sentence than required.

[5] It is evident that the trial judge was very concerned about his ability to fulfill his obligation pursuant to s.718.2(e) of the Criminal Code. However, I find that the trial judge erred in staying the proceedings. There was no breach of the respondent’s s. 7 rights, let alone a breach that required a stay of proceedings. Mr. Parent did not remain in custody because he was awaiting a Gladue report that never arrived. He was in custody because he was also detained on a third set of charges in relation to another domestic partner. Knowing that he was detained on this third set of charges, all parties, including the trial judge, were content to proceed in the manner that they did. The trial judge did not order a Gladue report. He requested one from ALS, who were unable to provide one because they were unable to confirm the respondent’s ancestry. When ALS indicated that they could not provide the requested report, the next step for the court and counsel should have been to obtain the Gladue information from other means. Counsel for the respondent properly conceded on this appeal that this could have been done. In fact, while the focus of the stay hearing was what steps the ALS caseworker took, or did not take, information regarding the respondent’s lost connection to his Indigenous heritage and the racism he suffered as an Indigenous man was elicited. The time spent on the stay application could have easily been spent on providing the necessary Gladue information to the trial judge.

[6] I also find the trial judge’s scathing comments of the ALS caseworker, in particular, that she was disinterested and acted in bad faith, to not be supported by the record. A trial judge’s findings are typically awarded deference. However, in this case, while the trial judge, in his lengthy judgment, set out his conclusion with respect to the ALS caseworker, he did not detail any of her evidence or the evidence of her supervisor nor did he address the explanations provided for the actions taken. A review of that evidence shows that, while there were some missteps, the trial judge’s comments were not warranted.

EVIDENCE CALLED AT THE STAY APPLICATION

[7] The respondent was originally charged with assault, mischief, and uttering threats to Monica Cunningham on June 14, 2016. He was arrested on June 15, 2016 and released on a recognizance of bail. On July 28, 2017, he pled guilty to assault and mischief. The matter was adjourned to September 22, 2017 so that the respondent could attend counselling and for a PSR to be prepared. The respondent was not represented by counsel at this time. Kevin Gilkinson completed the PSR, which contained the following information with respect to the respondent’s Indigenous background:

The subject has a Native Friendship Off Reserve Card that was issued out of Maniwaki, Quebec. The subject has little knowledge of his Indigenous heritage, stating his grandmother withheld information and did not want to discuss this aspect of her life. Mr. Parent advised he has little knowledge of their lineage, noting his parents were not active in the culture or particularly focused on passing down cultural traits. Mr. Parent advised his great-grandfather on his mother’s side was the Chief of either Algonquin or Huron community, but he did not know where. Mr. Parent noted no one in their immediate or extended family speak an Indigenous language and his family chose to live a “common life…not native culture”.

Mr. Parent is unaware if any family members were impacted by residential schools and does not feel the lack of connection to his Indigenous heritage to have been detrimental to him or the subject. However, the subject suggested otherwise, claiming the lack of connection to their heritage has been “hard on the whole family”. He stated “it hurts” not to have information about his Indigenous heritage and expressed a desire to establish links to his community. He cited the passing of his grandparents as a barrier to reconnecting with his roots and suggested he may explore web-based resources to trace his lineage.

[8] After receipt of the report, the trial judge asked the respondent whether he wished to have a Gladue report completed and the respondent indicated that he did. The standard Gladue report request form was completed and a Gladue report was requested. The matter was adjourned to January 30, 2018 for completion of the Gladue report and for the respondent to complete the PARS[^1] program.

[9] The respondent was arrested on January 29, 2018 on a different set of charges. The charges were objectively more serious in that he was charged with assault with a weapon, assault, breach of a recognizance (x2) and possession of a dangerous weapon. The complainant was a different domestic partner. The offences were alleged to have occurred on November 1, 2017. The respondent was released on a recognizance. The Gladue report request was never received by ALS and it was requested again. The respondent was set to be sentenced on April 6, 2018 for the original set of offences.

[10] On February 28, 2018, while out on release, the respondent was again arrested and charged with mischief, uttering threats, breach of recognizance (x2) in relation to Monica Cunningham. The offences were alleged to have taken place a few days earlier on February 23, 2018. He was detained in custody.

[11] On March 16, 2018, the respondent, now represented by counsel, pleaded guilty in front of the same sentencing judge to mischief and breach of recognizance. His matter was adjourned to April 6, 2018 to be sentenced on both sets of offences. The respondent also set a trial date for June 18, 2018, with respect to the January 29, 2018 charges.

[12] The court received a letter from the assigned ALS caseworker, Ms. Bingham, on April 5, 2018. The writer indicated that she was unable to contact the respondent. Ms. Bingham attended court on April 6, 2018 and discovered that the respondent was now in custody. A new request for a Gladue report was made. The matter was adjourned to May 29, 2018 for sentencing. The respondent was in custody on the two sets of charges that he was to be sentenced and the January 29, 2018 charges, which was set for a June 18, 2018 trial.

[13] On May 28, 2018, the court received a letter from ALS. It was written by Ms. Bingham’s supervisor, Ms. Bean. It stated:

Regrettably, at this point in time we are unable to prepare a Gladue Report for Kyle Parent for two reasons. First, we are unsure of the specific nature of Mr. Parent’s Indigenous ancestry; and second, even if his ancestry could be confirmed (or we acted on the assumption that it could be confirmed) we cannot address how being an Aboriginal person has affected his life circumstances. The purpose of a Gladue Report is to discuss the way in which the individual before the court has been influenced and affected by their Aboriginal ancestry, whether by systemic factors or historical reasons.

[14] On June 21, 2018, the charges pertaining to the June 18, 2018 trial were resolved by way of a peace bond. On June 26, 2018, the stay application started, and the respondent was released from custody on bail. The stay application was heard over a number of days and, as indicated, the trial judge stayed the charges on January 24, 2019.

The Stay Application

[15] Ms. Bingham testified that she was the ALS worker assigned to the respondent’s case. She testified that she was going to write a Gladue letter, given that the Crown was only seeking 90 days. At the April 6, 2018 court appearance, she learned that the respondent had incurred more charges and that the court might then want a Gladue report, although she was unsure if, ultimately, she was supposed to prepare a letter or report.

[16] Ms. Bingham testified when she was at court on April 6, 2018, she saw the respondent’s mother and she went and introduced herself. She explained her purpose and asked her about where the respondent’s Indigenous ancestry comes from. She asked the respondent’s mother about whether there was any history of residential school, Sixties Scoop, Millennial Scoop, CAS apprehensions, discrimination, carding or harassment by the police. The respondent’s mother said that there were none of those things and she informed Ms. Bingham that the Indigenous heritage came through the respondent’s father’s side but that the respondent’s father did not have status. The respondent’s mother testified at the stay application. Her evidence was similar to Ms. Bingham except that she believed she told Ms. Bingham that none of those things happened that she was aware of.

[17] Ms. Bingham testified that she received three emails from the respondent’s mother. She received a picture of a card from a Friendship Centre and birth and baptismal certificates. Ms. Bingham testified that the Friendship Centre is a community center and Indigenous in nature. It is not exclusive to Indigenous people and anyone can join if they pay the nominal dues. She testified that she did not believe that the Friendship Centre would help her ascertain the respondent’s ancestry. Ms. Bingham testified that she has never established ancestry from a Friendship Centre. The Friendship Centre was in Maniwaki, which is the name of a town, not an Indigenous community. Ms. Bean, Ms. Bingahm’s supervisor, who also testified at the stay hearing, said that she was unable to find Maniwaki listed on the First Nations profiles, which lists all of the First Nations reserves and communities that are recognized by the Federal Government.

[18] Ms. Bingham testified that she received another document with the name of Helene Courville on it. Ms. Bingham testified that this card was not familiar to her and that it was not an official government card. The card referenced the Bedekwe Native Community. Ms. Bingham searched that community through various government search engines and Google. She did not find anything. She could not find a Bedekwe First Nation. The card did not assist her in determining the respondent’s heritage. She testified that the baptismal and birth certificates did not assist in determining the respondent’s heritage. They contained no reference to any first nation community. Ms. Bingham testified that she did not conduct a genealogical search as that was not within the scope of her job description.

[19] Ms. Bingham testified that she contacted the respondent’s father. She explained to him the purpose of her call and what she was looking for. The respondent’s father explained to her what he knew about his family ancestry. He said that his parents had never registered and that he did not have a lot of information. He said that his ancestry was either Algonquin or Huron. The respondent’s father told her that his cousin Bruce had information on their Indigenous ancestry but the cousin “wasn’t keen on sharing it”.

[20] The respondent’s father testified that Ms. Bingham spoke to him and tried to gather information from him. He told her what he knew and what he wanted to tell her. The judge questioned the father. The father stated that he lost all connection to his own father’s side of his family. It appears from the transcript that the father became emotional as he was testifying. He said that his father died when he was four and his mother decided to pull him away from that side of the family. The respondent’s father said that he had no information at all. He said that:

…as far as Native history, I wish I knew more. I don’t, I don’t even know where to look for more information than what my cousin, and that was my mom’s sister that lived down in St. Catharines area, had found out for us. So, I tried to look up more information and it just – it’s like a roadblock everywhere you turn. I can’t – I can’t find anything.

[21] Ms. Bingham testified that she encouraged the father, that “if he could find other information or other details for me to - to explore that he should contact me when he had that.” She told him a few times that if there was other information or details, she would like to have it or other people that might have information. She was not provided with any contact information for cousin Bruce. It was Ms. Bingham’s understanding that the respondent’s father would speak to cousin Bruce and other family members and get back to her. The respondent’s father testified that he tried to contact cousin Bruce but could not, because he was probably in the bush. He did not tell Ms. Bingham where Bruce was, nor did she ask. The respondent’s father confirmed that Bruce did not want to share the information, even with his own family. He did not recall telling Ms. Bingham that he would try and speak to his cousin Bruce. He did not recall her asking him to call her if he was able to contact cousin Bruce. The respondent’s father had a number for cousin Bruce. He did not recall giving it to Ms. Bingham or her asking for the number.

[22] After that meeting Ms. Bingham did receive another email from the respondent’s mother on April 18, 2018. The email stated:

I wish that we could help more. The only other information that we got was that way back the last name was McComeau. But that name was shortened years ago… He apparently, from what we have been told was a chief.. we have know why of finding this out for certain.

Bruce has other cards like his sister. You said that they are not status cards. He also has Algonquin and Huron on it.

[23] Ms. Bingham testified that she did not contact the Huron community because she understood that there was no longer a Huron community. She testified that there were nine Algonquin communities and she did not contact them. She explained that “Algonquin isn’t kind of a catchall; they have been broken down into other First Nation communities.” In addition, the respondent’s mother was not even sure of the person’s name. The reference “way back” could have been the 1600s. She testified that:

I didn’t know where I was supposed to call to find out where the name McComeau belonged to as a registered member if that was the name.

[24] She then testified:

Q. Okay. Now, if you want to look up the chief at some point in time way back, is that just a phone call or like how would you even do that?

A. I would probably have to reach out to an archivist...

Q. Yeah.

A. ...or somebody that works on the First Nation community to see if I could access those records.

Q. Right. And, do you know if there’s even an archivist for each one of the Algonquin communities? What’s that?

A. No, I don’t.

Q. You don’t, okay. Is there always an archivist or do you run into...?

A. Some of the Algonquin First Nation communities are newer than others...

Q. Yeah.

A. ...so I’m not sure if they would have the information to go back as far as however....

[25] Ms. Bingham testified that she did not see if she could connect the names found on the respondent’s birth and baptismal certificate to any Aboriginal community because she did not know which First Nations Community she should ask.

[26] Ms. Bingham went and spoke with the respondent on May 28, 2018. She explained that:

…I made the decision to go through - through Kyle Parent’s parents, thinking that they would be able to tell me what I needed to know to do the research or to start the letter, so at that point I was directed to go and ask Mr. Parent if he would - if he knew anything.

[27] Ms. Bingham wanted to make sure to cover her bases. She met with the respondent. She took notes of that meeting. The respondent told her that he identified himself as Algonquin and that he had an off-reserve card. He said that his ancestry came from his father’s mother and that she had the information. He said that he had attended powwows as a kid with his parents. He said that he had not been involved with any Indigenous programming. She told him about a program in Peterborough and the respondent said that he would be interested in it. She did not recall the respondent stating that he was a victim of racial discrimination as a youth. She would have made a note if he had. The meeting with the respondent was between five and 10 minutes. The respondent testified that the meeting with Ms. Bingham was under five minutes. He testified that she seemed to be “after is a paper trail, just to say that she had came to see me. She was in, she was very unsettled, she didn’t have a pen or a notepad or anything. She just came in, sat down, asked bear minimal questions and left.” He testified that’s she asked what reserve he was from. He could not remember any other questions. He testified that he told her that he was ridiculed at school.

[28] Ms. Bingham testified that she spoke with her supervisor, Ms. Bean, a number of times after the April 6, 2018 court appearance. Ms. Bingham testified that Ms. Bean told her to interview the respondent. The following exchange ensued in cross-examination:

Q. It wasn’t until May 25, 2018 when Ms. Bean told you that you should probably go interview Mr. Parent?

A. Yes.

Q. It hadn’t occurred to you before then?

A. It was a mistake and an oversight on my part because I assumed that Kyle’s parents would be able to give me the information that I needed.

Q. But, that wasn’t coming through; you weren’t getting the information you needed?

A. No.

Q. And, you still needed to be told by Ms. Bean that you should probably go and see the client on May 25, 2018?

A. Yes.

[29] She testified that the letter that was submitted to the court was partly written before she visited the respondent on May 28, 2018. She testified that she never discussed with the respondent his mother’s April 6th email that stated that he was bullied, nor did she follow up with the respondent’s parents about the bullying. She stated in re-examination that there were no contexts provided for the bullying comments and the comments that were made were not ones that would typically be attributed to people of Aboriginal decent.

[30] The trial judge questioned Ms. Bingham with respect to establishing a rapport with the respondent’s family as means to eliciting information. She stated:

Your Honour, I’ve never had to demand contacts or information and if someone doesn’t want to provide me with that information then I’m not going to - I’m not going to - to push that. And, I’ve never had to develop a repore(sp) to get names and phone numbers to inquire into Indigenous ancestry.

[31] Ms. Bean testified that she wanted to make sure they covered as much as they could because she did not want to provide a “no” Gladue letter unless “it’s absolutely necessary and we absolutely just don’t have the information that we need to provide a report or a letter.” She also stated that in her view:

And I think it’s important to note that because ALS is not providing a Gladue report, it doesn’t prevent anyone else from making submissions about the Indigenous background or systemic or historical reasons that we weren’t aware of for our processes, although we try to get as much information as we can.

[32] The trial judge asked Ms. Bean if the onus was on the assigned case worker to follow up with the offender regarding the outstanding information. Ms. Bean testified that she “always looked at it and viewed it as that it was something that we were doing together, the client and I, we were preparing this together. And so, I can’t do all of the work and research without the client sort of participating and being active in that process.” She testified that in this case, they did as much as they could do. The trial judge then asked whether the situation was different if the person was in custody and limited in their ability to be as much of a joint partner in the process. Ms. Bean answered:

Like, so sometimes we have trouble locating family members to interview or contact and so sometimes that’s best that the client can reach out to people and get that for us. But of course, in custody, there would be those types of limitations and we would certainly do our best to get that information. But it doesn’t seem like that was an issue in this particular case since we had been able to speak with Mr. Parent’s mother and father.

[33] The trial judge asked why a Gladue report could not have been written that would address the loss of connection to the person’s heritage. Ms. Bean responded:

Yes, of course we speak to the issue of disconnect with the community, but I think we would have to have still some information to base that on, that there was a connection at one time, but if we don’t know what that connection was to begin with it, it’s hard to then talk about the impact of disconnect. But if we didn’t have the basis initially to really talk about what the Indigenous background was to begin with, it’s a little bit more challenging to then talk about disconnect.

[34] The trial judge, during his examination of Ms. Bingham, references two Gladue reports that he had received in other cases:

And, again, to put something of my next questions into context, and I was telling this to I think it’s Ms. Bean who is the supervisor, over the past couple of years, I’ve received two phenomenal Gladue reports emanating from the Windsor and/or London area. And, frankly that is now the standard by which I will be assessing every Gladue report that comes my way.

[35] The trial judge made similar comments when he questioned Ms. Bean:

…since you said you started off in Windsor, one of the best Gladue reports I have ever read actually emanated from Windsor about two years ago. So that is now the standard I apply to any Gladue report, you might want to pass that onto your caseworkers. It was truly a valuable insight document.

[36] The respondent filed an affidavit at the stay application. He stated that:

Being of Aboriginal descent has affected me throughout my life.

I was ridiculed and subjected to racial slurs by classmates throughout my years in school.

As I grew older, I attempted to hide my Aboriginal heritage out of embarrassment; and

I continued to hide my Aboriginal heritage out of concern that it would impact my ability to be hired as a labourer, even when I was a part of the Labourer’s Union.

[37] The respondent testified at the stay application that Mr. Gilkinson, the author of the PSR, did not really provide him with an opportunity to talk about his Aboriginal heritage because he said that a Gladue writer would speak about it. The respondent did not tell Mr. Gilkinson about the racial slurs. The respondent said that he was waiting to bring this up with a Gladue writer. He also said he was ashamed. Mr. Gilkinson testified at the stay application. He said that the sentencing judge had specifically requested Gladue content. Mr. Gilkinson testified that when he met the respondent, he did not know at the time that a Gladue report would be ordered, nor did he tell the respondent that a Gladue report was ordered. He never told the respondent that he should hold back on talking about his Indigenous heritage.

EVIDENCE FILED BY THE INTERVENOR

[38] In my ruling on the request to intervene, I allowed ALS to file “an affidavit of no more than five pages on ALS’ funding and service delivery model.” ALS also sought, in its application, to file evidence regarding:

(a) ALS’ policy for deciding when it can provide a Gladue report or letter; and

(b) The process that ALS staff follow when preparing a Gladue report or letter for an offender.

[39] I refused and stated that, there was evidence led at the hearing with respect to these items and an “attempt to file further evidence on this would be unfair to the respondent and those issues also connect, to a degree, to the trial judge’s findings with respect to the ALS staff, an issue that ALS is not permitted to intervene.”

[40] Counsel for the respondent has complained that the affidavit goes beyond my order as it discusses the circumstances where a Gladue report, as opposed to a Gladue letter, will be provided and whether genealogical research is part of a case worker’s job description. I agree. I have ignored those bits of evidence that go beyond my order.

[41] Mr. Rudin, the Director of ALS, provided an affidavit. He was not cross-examined. He testified that ALS is a multi-service legal agency that provides services to the Indigenous community in Ontario. ALS was established in February 1990 and now consists of two provincially incorporated non-profit organizations. ALS has a community-based Board of Directors and operates the following five main programs: The Court Worker Program; the Gladue Program; the Community Council Program; the Kaganoodamaagom Program (Victim Rights Program); and the Legal Representation Program. A number of the staff in ALS’ Gladue Program are Indigenous and legally-trained.

[42] He testified that ALS pioneered the use of Gladue reports in Canadian courts and that ALS has the ability to provide Gladue reports or letters for Indigenous persons in sentencing proceedings in the following Ontario courts: Barrie, Brantford, Cambridge, Cayuga, Chatham, Cobourg, Fort Erie, Guelph, Hamilton, Kitchener-Waterloo, Lindsay, Milton, Mississauga, Niagara Falls, North Bay, Orillia, Oshawa, Ottawa, Peterborough, Sarnia, Sault St. Marie, St. Catharines, Stratford, Sudbury, Toronto, and Windsor.

[43] He testified that ALS receives funding from public and private sources. The majority of the funding for the Gladue program is from the Province of Ontario. For example, in 2018-2019, approximately 51% of the funding for the Gladue program came from the Ontario Ministry of the Attorney General, 45% came from Legal Aid Ontario, and 4% came from the Federal Department of Justice.

[44] He testified that ALS is a service provider under contract to the Government of Ontario, Legal Aid Ontario, and the Department of Justice. Under these contracts or agreements, the Gladue Program has a fixed or “closed envelope” funding model. ALS’ service agreements specify that ALS is not an agent, employee, or partner of the government or Legal Aid Ontario. He testified that ALS is a third-party service provider, not a party to the sentencing proceeding. At each stage of the process ALS relies upon other participants in the justice system to provide sufficient information for ALS to perform its role effectively. ALS relies on the defence, the Crown, or the Court to submit a Gladue report request form or otherwise make ALS aware of the need for a report or letter in a particular case. He testified that ALS does not receive a written court order or correspondence from the court.

[45] ALS testified that its relationship with its public funders is based on the premise that ALS has the discretion to refuse to provide a report in certain circumstances. ALS’ viability as a non-profit organization depends on its ability to decide when it is not possible to provide services in a particular case. ALS retains the right to refuse to produce a Gladue report or letter if they do not have the resources or ability to produce a meaningful product for the court’s use.

THE TRIAL JUDGE’S DECISION TO STAY THE PROCEEDINGS

[46] The trial judge found that there were “three separate and independent to each other breaches of Mr. Parent’s Charter s. 7 right to life, liberty and security of the person” that each independently justified a stay of Mr. Parent’s charges. However, he only set out two of those breaches. Neither counsel on appeal have been able to articulate what the trial judge specifically meant with respect to the third breach.

[47] The trial judge found that the first breach was the fact that Mr. Parent had stayed in custody longer than justified because he was awaiting the Gladue Report from ALS. The trial judge stated:

Firstly, and most obviously, the delay in and ultimately non-preparation of a Gladue Report, or even a Letter, resulted in Mr. Parent being incarcerated longer than even the Crown position would have warranted, and even then the application to terminate the prejudice of incarceration beyond any justifiable time was opposed by the Crown. This Court does not have the ability to remit back to Mr. Parent the many days of lost liberty. A stay is the only remedy available to the Court to account for the loss of that liberty. A reduction of incarceration imposed would clearly not be a remedy. A reduction in probation duration would not give back the loss of liberty. In any event, the terms of the Recognizance from the date of his release to the date the charges were stayed already included public protection terms regarding the victims of his crimes, which overlapped some of the period that probation could have been imposed.

[48] The trial judge found that the second breach was that his court order was not complied with. He stated:

Secondly, the fact that a Court Order, and for that matter a Court re-order was not only not complied with, it was altered from a full Report to a lesser Letter without application to the Court to vary its Order. This two-fold noncompliance independently resulted in a breach of Charter s. 7 in so far as it was non-compliant with a Court Order made to further the duty on the Court to comply with the direction of s. 718.2 (e) and its duty as set out in R. v. Gladue and the caselaw since. How the state complies with a judicial order for a Gladue Report is of less concern to the Court than the quality of its content which is respectful of Indigenous culture generally and especially respectful of the culture of the Offender’s community and family history.

[49] The trial judge found that the failure to respond to a court order for a Gladue report or to provide sufficient Gladue information to fulfill the court’s duty to apply Gladue principles is a fundamental undermining of trial fairness. The trial judge found that the Crown breached the respondent’s s. 7 rights because they did not have a system to ensure that the Gladue report would be produced. He found that the integrity of the justice system was affected and there was a need for the court to disassociate itself from the conduct. He stated:

As a result, this Court sees no other remedy than that of disassociating itself from the conduct in this matter. It would be wrong to lend judicial condonation to keeping prisoners in jail longer than a consequence requires, to leaving someone imprisoned in the circumstances of what was occurring at Central East Correctional Centre, to permit the disregard of Court Orders and to frustrate the Court’s Gladue obligations amount to a unique record which surpasses the high requirements mandated by Babos.

LAW AND ANALYSIS

General Principles Regarding When a Stay Should be Imposed

[50] Stays of proceedings are rare and will only be warranted in the clearest of cases. There are two categories of cases that may merit a stay: a) where the state conduct compromises the fairness of an accused’s trial (the main category); or b) where the state conduct creates no trial unfairness but risks undermining the judicial process (the residual category). An accused who seeks a stay under the residual category faces an onerous burden: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; and, R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, R. v. Ke, 2021 ONCA 179, at paras. 74-82.

[51] A stay will only be imposed with respect to either category only if the following three factors are met:

i) Prejudice to the accused’s right to a fair trial or the integrity of the justice system will be manifested, perpetuated or aggravated through the conduct of the trial. When dealing with the main category the focus is whether there is ongoing unfairness to the accused. When dealing with the residual category the concern is whether proceeding with a trial in the face of the conduct would harm the integrity of the justice system;

ii) The absence of an alternative remedy; and

iii) “in cases of uncertainty after consideration of elements i and ii, an assessment of the balance between the interests favouring entry of a stay, such as denouncing misconduct and preserving the integrity of the justice system, against society’s interest in a final decision on the merits”: R. v. Ke, at para. 77; and R. v. Babos.

[52] With respect to the balancing, Watt J.A. stated in R. v. Ke, at para. 81:

The balancing element assumes added importance for cases that invoke the residual category. The task of the court is to decide which of two options better protects the integrity of the justice system: staying the proceedings or having a trial despite the challenged conduct. Relevant factors include but are not limited to:

i. the seriousness of the state conduct;

ii. the systemic or isolated nature of the conduct;

iii. the circumstances of the accused;

iv. the offences charged; and

v. society’s interest in a trial on the merits.

The First Breach – The Respondent’s Incarceration

Positions of Counsel

[53] The Crown submits that the trial judge’s conclusion that the respondent’s s.7 rights were breached and that he suffered irreparable harm was based on his erroneous belief that the respondent served a sentence in excess of what his offences mandated because he was awaiting a Gladue report that never arrived. The Crown submits that the trial judge failed to recall that the respondent was also in custody on another set of charges pending trial. The Crown submits that this factor was known to the trial judge as he presided over the various court appearances and scheduling of the matters and that the scheduling of the matters was with the consent of the defence. The Crown submits that nowhere in his reasons does the trial judge discuss the fact that the respondent was in custody pending trial on another set of charges.

[54] In their written factum, counsel for the respondent submitted that:

a. the respondent remained in custody and “elected to fight for justice in an attempt to correct the injustice caused by the failure of ALS to produce a Gladue Report, and the attendant inability of the Court to properly engage section 718.2(e) of the Criminal Code.”; and

b. “The fact that the Crown not only failed to intervene given the continued incarceration of the Respondent but strongly opposed his release or later, a reasonable variation request, is state misconduct. It was properly framed as such by the Sentencing Judge.”

[55] Counsel for the respondent, at the oral hearing, does not dispute that the respondent was also detained in custody on another set of charges and that this factor was not addressed by the trial judge in his reasons. However, counsel for the respondent submitted that if the respondent had been sentenced and those matters resolved it would have made him a better candidate for release. Counsel argues that in that sense, the delay in obtaining the Gladue report caused the respondent to serve a longer sentence. Counsel agrees that the trial judge never analysed the issue in this manner.

Analysis

[56] I agree with the appellant that the trial judge erred in finding that the respondent stayed in jail longer than required because he was waiting for the Gladue report. I also agree that the trial judge erred in finding that the Crown breached the respondent’s s. 7 rights by not intervening earlier.

[57] It is evident that the trial judge was troubled that the respondent spent more time in custody than need be. The trial judge blamed this on the delay in obtaining the report. He stated that:

I find that Mr. Parent was imprisoned well past any reasonable release date for full satisfaction of any custodial component of a sentence. The fundamental cause of that excessive imprisonment was awaiting the fulfillment of a judicial order for a Gladue Report which was never provided.

[58] The trial judge found that Mr. Parent chose to remain in custody to ensure that he would have a Gladue principled sentencing. He stated that:

Mr. Parent elected to prolong the in-custody status quo in order to be afforded his statutory right to a Gladue principled sentencing, as well as society’s obligation to him to have his sentencing be considered in that light given the colonialist history towards Indigenous peoples together with the obligation on this Court to consider his Indigenous heritage in assessing his moral blameworthiness. The denial of his right to a Gladue Report resulted in an excess of imprisonment than his offences warranted.

[59] It is correct that the respondent was in custody for the two sets of offences for which he was awaiting sentence. However, he was also detained in custody awaiting trial on a third set of charges. To state, as the trial judge did, that the respondent chose to stay in custody to receive a proper Gladue-based sentencing does not reflect the realities of the situation. The respondent did not stay in jail to await the Gladue report. He stayed in jail because he was detained on a different set of charges.

[60] April 6, 2018 was the date set for the respondent to be sentenced. Sentencing had to be adjourned because the ALS writer was unable to contact the respondent. The trial judge raised the issue that the respondent was close to having served his sentence. Counsel for the respondent said:

He is. I can advise Mr. Parent has another set of outstanding charges.

[61] The following exchange then ensued:

THE COURT: Okay so I don’t have to worry about that [the outstanding charges]

MS. MANITIUS: Don’t have to worry about it, but it also alleviates a little bit of pressure on the timeline because he is in custody on charges awaiting trial that is set for June.

THE COURT: All right.

MS. MANITIUS: Not a ton of pressure, but a little.

[62] As indicated earlier, the outstanding charges were set to be tried on June 18, 2018.

[63] The sentencing was adjourned to May 29, 2018. The trial judge found that Mr. Parent was in jail for two or more months past any expected sentence completion date due to the lack of a Gladue report. The trial judge found that the respondent would have served the custodial portion of his sentence possibly as early as mid-April and by May 1st at the latest. I have no quarrel with this estimate. By May 1st, the respondent would have been in jail for approximately 60 days which, with enhanced credit, would have been the equivalent of a 90-day sentence.

[64] At the April 6th appearance, Defence counsel stated that she was seeking 60 days or less, depending on the Gladue report. It was therefore quite evident to the defence on April 6, 2018 that even if the sentencing had gone ahead as scheduled on May 29, 2018, the respondent would have served the custodial portion of his sentence for those offences. As the passage above shows, the defence was not concerned given the outstanding trial. If the respondent was convicted of the third set of offences, the additional time served in custody would be counted towards the sentence for the third set at enhanced credit. The Crown was seeking five months on those offences. The defence did not bring a bail application until the third set of charges were resolved by way of a peace bond. The fact that the respondent was not convicted of those offences and ultimately served some additional time on the offences that were the subject of the stay motion, while unfortunate for the respondent, was not unfair to the respondent and not the result of the delay in producing the Gladue report. Rather, it was the result of being detained in custody pending trial for the June 18th charges and defence’s tactical decision to not seek bail at the time.

[65] Counsel for the respondent in their factum stated that:

Many considerations go into the preparation of a plan of release including the likelihood of success of a plan at a particular stage in the proceedings.

At the oral hearing, counsel reiterated that a number of tactical considerations are involved in deciding whether to seek bail. However, the fact that a tactical decision did not work out does not mean that the respondent’s s. 7 rights were breached.

[66] The trial judge’s reasons focused on the delay of the May 29, 2018 sentencing date, but he was also critical of the actions of the assigned caseworker with respect to the April 6th adjournment. I will address this criticism later on in my reasons. For now, it suffices to say that at the April 6, 2018 appearance, Defence counsel took the position that the needed adjournment “seems to just be a mistake of communication, nobody’s at fault.” Counsel for the respondent has maintained that position on appeal.

[67] The trial judge also blamed the Crown for the scheduling of the stay application and for its position on the respondent’s release pending that application. The trial judge stated:

I find that just as there is an obligation pursuant to Gladue principles that both Crown and Defence have an obligation to an Indigenous prisoner (or any prisoner for that matter), who remains in-custody past any length of time which is the anticipated sentence to comply with s. 718.2 (e). That obligation was breached by the Crown in not intervening when the Stay Application date was set well beyond the custodial sentence being sought, let alone placing a barrier to interim release. All concerns of the Crown could have been met by interim release terms which at a minimum could mirror anticipated probation terms.

[68] Leaving aside that s. 718.2(e) is an obligation for the court when imposing sentence, the date for the stay application was set on May 29, 2018 before the trial judge and with the agreement of all parties. Again, the trial judge appears to have forgotten that the respondent was in custody on other matters when the stay dates were set. He was apprised of this fact at the April 6th and May 29th court appearances. With respect to the issue of scheduling, counsel for the respondent on appeal was unable to assist with respect to what the Crown should have done.

[69] The trial judge clearly thought that the Crown should have consented to the respondent’s release. In addition, to the comment referenced above, the judge stated:

Given Mr. Parent had excessive pre-sentence custody, should he not have applied for interim release pending sentencing? In this case, the Crown opposed his release resulting in a contested hearing before myself, only after which he was released on his own Recognizance at the end of a day of hearing evidence on the stay application on June 26, 2018. [emphasis added]

[70] Again, the trial judge made no reference to the fact that the respondent was facing another set of charges. The June 26, 2018 transcript does not support the trial judge’s description that there was a contested hearing before him. There were no witnesses called. There was a discussion between the Crown and the court regarding what the release plan was with respect to ensuring the safety of the complainant given the nature of the offences and given that the respondent was also convicted in 2010 of a domestic assault. The Crown noted that if the respondent was on probation then he would be subject to the supervision of a probation officer. The trial judge understood the Crown’s concerns:

THE CROWN: If he was sentenced today, he would be subject to reporting by probation, you know, some sense of monitoring, some sense of supervision, not by his parents, but by a probation officer versus just simply out on his own recog.

THE COURT: I agree. That reporting would probably be once a month at a location that would not be the same household, but that is even with parents not being surety, that hopefully if there is deterioration of any issues to be able to fulfill their obligations in the community to perhaps to perhaps contact the authorities.

I think I have to give him release today, given the amount of time he has been in and the Crown position. I do want to structure it so that there is something to go on. There may even be, for example, instead of reporting to a probation officer once a month, he reports to a police officer.

MS. MANITIUS: That’s exactly something I have written down to suggest.

[71] The trial judge then released the respondent on June 26, 2018. I do not see anything untoward about the Crown wanting to know the release plan to ensure the safety of the complainant and neither did the trial judge. In addition, one cannot lose sight of the fact that the respondent was released on June 26, the day the application for release was brought. I do not know why the bail application was not brought earlier once the outstanding charges were resolved on June 21, but the respondent was represented at the time by very capable counsel. The Crown’s desire for a release plan did not breach the respondent’s s. 7 rights.

The Second Breach – The Failure to Produce a Gladue Report

[72] The trial judge found that there was a breach of his court order to produce a Gladue report in two respects: 1) ALS was contemplating producing a Gladue letter as opposed to a full report, as sought by the court; and 2) ultimately a Gladue report was not produced. The trial judge found that these violations breached the respondent’s s. 7 rights because they resulted in the court being unable to comply with its duty under s. 718.2(e) of the Criminal Code.

[73] The trial judge did not find that he could direct ALS to produce a Gladue report. Rather, he found that he could make an order at large for a Gladue report to be produced. The trial judge stated:

I find I do have the jurisdiction to make an order for a full Gladue Report, but would not agree with the Defence submission in that my authority extends to ordering a particular specified service provider to complete that Report. For example, I infer there is a contractual relationship between Aboriginal Legal Services and Legal Aid Ontario respecting the provision of Gladue Reports and more recently, the lesser standard of Gladue Letters.

As a Judge of the Ontario Court of Justice, I do not have any contractual relationship with either Legal Aid Ontario or Aboriginal Legal Services. I do have the jurisdiction to subpoena members of Aboriginal Legal Services or anyone else who might have the necessary knowledge to assist the Court in fulfilling its Gladue mandate, but not to order non-contractual parties to prepare individualized research in order to create additional evidence.

I specifically reject the notion that a Judge can only “request” a Gladue Report as suggested in “Indigenous People and the Criminal Justice System”. As a Judge fulfilling a duty to comply with Gladue analysis obligations, I make orders I expect to be carried out or an application returnable before me to explain why it cannot or should not be carried out.

To accept that an Indigenous offender only has the ability to make a mere request is disrespectful of the Gladue case law principles which clearly set out Gladue content as a right of the offender and a duty of the Court which has made the order. Again, this Court makes orders, not requests, and assuming a legal foundation for the jurisdiction to make the order, how it is carried out by the authorities is only a concern to the Court when the content falls short of the standards imposed by the Supreme Court. In that case I have the jurisdiction to set out the qualifications of the author necessary to fulfill my order.

[74] He also found that the failure to have a system that ensures that a Gladue report was prepared was state misconduct and that the failure to respond to a court order for a Gladue report or to provide sufficient Gladue information to allow the fulfillment of the court’s duty to apply Gladue principles is a fundamental undermining of trial fairness. The trial judge stated:

In my view, the failure to respond to a Court Order for a Gladue Report or to provide sufficient Gladue information to fulfill the Court’s duty to apply Gladue principles is a fundamental undermining of trial fairness.

I find that the failure to ensure a system that provides for a Gladue Report to be prepared when ordered and even ignores the order for a Report as opposed to the intent to provide a letter, without application to the Court for its consent to vary or withdraw the Order amounts to state misconduct, similar to the comments in K.K. as ultimately it is the state which funds is responsible for, and arranges for the Report that the failure of the state.

Positions of Counsel

[75] The Crown submits that the trial judge erred in effectively treating the request for a Gladue report as a court order and by finding that he was unable to sentence the respondent in the absence of that Gladue report. The Defence submits that the trial judge made a court order and it was not complied with, resulting in some, but not sufficient, Gladue information. The ALS has intervened on the specific issue of whether a judge has the ability to order them to produce a Gladue report. They submit that a trial judge has no such authority.

Analysis

[76] In my view, the trial judge erred in a number of respects. He never made a court order that a Gladue report be produced. He requested one from ALS. ALS’s inability to produce the Gladue report was not a breach of a court order. Furthermore, irrespective of whether there was a court order, the failure to produce a Gladue report did not prevent the trial judge from fulfilling his obligation pursuant to s. 718.2(e) of the Criminal Code.

General Sentencing Principles Regarding Section 718.2(e) of the Criminal Code

[77] The Criminal Code sets out a list of factors that a trial judge must consider when sentencing a person. Those factors are set out in s.718.2 of the Criminal Code. Section 718.2(e) states:

A court that imposes a sentence shall also take into consideration the following principles:

(e) 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 to the circumstances of Aboriginal offenders.

[78] A fairly cogent and clear set of legal principles has emanated from the Supreme Court of Canada and appellate courts regarding how a trial judge should give due consideration to Gladue factors. These principles are generally not in dispute between the parties in this case but, given that I am of the view that the stay imposed must be set aside, I think it is important that I set them out to illustrate that I have no quarrel with the trial judge’s goal in ensuring that he had sufficient information regarding Mr. Parent’s background to apply those legal principles and carry out his obligation pursuant to s. 718.2(e). The principles are as follows:

1. a court must pay particular attention to the circumstances of an Indigenous person in each case even when he or she is being sentenced to the gravest of offences;

2. when sentencing the Indigenous person, the court must consider:

• the unique systemic or background factors which may have played a part in bringing the particular Indigenous 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 Indigenous heritage or connection.

3. an Indigenous person need not establish a causal connection between systemic or background factors and the crimes for which they have been convicted;

4. the mere assertion of one’s Indigenous heritage is insufficient. As stated by the Court of Appeal in R. v. F.H.L., 2018 ONCA 83, 44 C.R. (7th) 21, at paras. 40 and 41:

For an offender’s Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case. This approach finds support both in Ipeelee and decisions of this court.

The Supreme Court made clear in Ipeelee, at para. 83, that systemic and background factors need to be “tied in some way to the particular offender and offence”. LeBel J. went on to note that “[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.” LeBel J. elaborated on the concept of “culpability” at para. 73, explaining that “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.”

5. A trial judge must first take judicial notice of the systemic and background factors affecting Indigenous people in Canadian society. The trial judge must then consider “whether those factors impacted the offender’s own life experiences -- in other words, whether the offender has “lift[ed] his life circumstances and Aboriginal status from the general to the specific.” If they have, the trial judge must consider whether they “illuminate the offender’s level of moral blameworthiness” or disclose the sentencing objectives that should be prioritized” in other words, whether the circumstances of the individual, in light of the systemic background factors, diminish the individual offender’s “moral blameworthiness”.

6. Systemic and background factors, however, do not operate as an excuse or a justification but are simply relevant to assessing the degree of responsibility of the offender.

7. The judge must also consider the types of sentencing procedures and sanctions that may be appropriate in the circumstances of the offender because of his or her particular Indigenous heritage or connection.

8. If the offender lives as a member of a discrete Indigenous community, the sentencing judge needs to be told what institutions exist within that community and whether there are specific proposals from community leadership or organizations for alternative sentencing to promote the reconciliation of the offender to his or her community

See: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, 171 D.L.R. (4th) 385; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. J.F. R. v. Van Every, 2016 ONCA 87, 344 O.A.C. 326; R. v. Whitehead, 2016 SKCA 165, 344 C.C.C. (3d) 1, at para. 60; R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, at para. 115; R. v. Macintyre-Syrette, 2018 ONCA 259, 46 C.R. (7th) 78, at paras. 14-24.

No Court Order

[79] The trial judge found that he had the jurisdiction to order a Gladue report but did not have the jurisdiction to order a specific non-party provider, like ALS, to produce that report. He found, in essence, that it was up to the Crown to arrange for the production of such a report and given that they did not, there was a breach of a court order. He found that it was state misconduct because there was no system to ensure that a report was provided.

[80] The respondent submitted in their factum that:

On January 30, 2018 the Sentencing Judge ordered Gladue Report, making this not a request but a court order.

On April 6, 2018 the Sentencing Judge again ordered Gladue Report, making this not a request but a court order.

Given that the Court ordered the Gladue Report twice, the failure of ALS to provide the Report was in breach of a court order.

[81] Assuming that he had jurisdiction to do so, the trial judge never ordered a Gladue report[^2]. Rather, the trial judge requested that ALS write a report. While the trial judge undoubtedly thought that a report would be forthcoming, it is clear from the April 6, 2018 transcript that it was a request not a judicial order. Furthermore, there is no order signed by the court. At the April 6, 2018 court appearance, there was a discussion regarding the requirements for ALS to produce a Gladue report instead of a Gladue letter. It was explained to the trial judge that if the sentence being sought is under 90 days a letter is produced. Ms. Bingham, attended court and asked if she would be receiving a new request:

MS. BIGHAM: So we will be getting new requests stating what the charges are and what the new position is? Because that does change from a letter to a report. And the reason we’re doing letters now is because if someone is in custody, we don’t want to be taking up that person’s time. Obviously so it’s a condensed version. It still has the Gladue factors, systemic factors involved, it’s just a condensed.

MS. BIGHAM: And may we request an updated request form from the Courts?

THE COURT: Updated request from Madam Clerk and do you want a copy of Ms. Bigham’s letter from before in which case you have...

[82] The court clerk then went through a few areas to make sure that the request form was properly prepared. The actual form can be found at Exhibit D to Mr. Rudin’s affidavit in ALS’s application to intervene.[^3] The document is called a “GLADUE REQUEST FORM.” The form states:

If ALS has not agreed in advance to prepare a Gladue Report, it cannot be held to produce the report on the date requested, ALS will endeavour to notify all parties as soon as possible, if it is not possible to complete the report for sentencing.

[83] In this case, ALS subsequently determined they were unable to provide the report because they did not have the requisite information. The trial judge did not then exercise his authority, as described in his judgment, to order a report at large. ALS’ inability to produce a report did not retroactively change the judicial request into a judicial order.

[84] Looking at this from the perspective of the ALS staff, who the trial judge still seems to have blamed for breaching his court orders irrespective of his finding that he could not order them to produce a report, it is not disputed that they were of the view that they were attempting to fulfill a court request not a court order. This is evident from the April 6th transcript, the request form that they received and the following exchange between Ms. Bingham and the trial judge during the stay application:

A. So, the request is made and then that decision is made by Aboriginal Legal Services as to whether - what’s going to happen from there and how it’s going to get assigned to somebody.

THE COURT: And, you’ve used that word a number of times, “A request is made” and I trust you’ll forgive me if I thought on both occasions I gave an order, all right. But, that is not your understanding of the document that emanates from the courthouse here?

A. Usually defence requests the Gladue reports.

THE COURT: If only I could trust all defence lawyers to even bother to make the inquiry. That is not the case by the way with defence counsel present. I consider it’s my duty under R. v. Gladue to ensure that that inquiry is made and it is my order that emanates. Defence counsel, I don’t believe, have any authority to order a Gladue report; they make a request of the presiding judge, is my understanding at least. But, my understanding of what you’re telling me is it’s considered a request when it is sent off outside of the courthouse here?

A. Yes.

[85] From the perspective of the Crown, I do not see how they would have known that they were to ensure that ALS followed through on the request. Again, there was no court order. Critically, the parties were only advised the day before the May 29th sentencing date that ALS was not able to provide a report. In addition, I do not see how it is possible for the Crown to make ALS prepare a report when ALS is of the view that they do not have the information to do so.

[86] The trial judge in his reasons referenced a number of times that, to use the judge’s quotes, a “request form” was filled out. He also referred to the April 6th court appearance and noted that “[t]he caseworker oddly continued to describe my Order as a request.” But the April 6th transcript shows that the sentencing judge was using the same vernacular. Again, while the trial judge might have believed he was giving a judicial order, it should have been evident to him that ALS clearly did not think so, especially given Ms. Bingham’s testimony referenced above.

ALS’ Inability to Produce a Gladue Report

[87] This was not a case where ALS refused to provide a Gladue report. Rather, this was a case where ALS found that they were unable to provide a Gladue report because they could not confirm the respondent’s Indigenous ancestry given the absence of information that they were provided. The trial judge, though, found that ALS was “negligent”, that the assigned caseworker showed a “remarkable lack of interest”, was complacent and acted in “bad faith”. It is apparent from the comments found in his judgment that he had the following concerns:

1. That prior to the April 6, 2018 date, the caseworker did not ask if the respondent was in custody when he failed to respond to her messages, even though she knew that Indigenous offenders are incarcerated at a higher rate;

2. That the caseworker did not follow up with the Friendship Community Centre;

3. That the caseworker left the leg work to the incarcerated offender and his family;

4. That the caseworker had to be directed to even meet with the respondent. He believed that the meeting was disingenuous since the case worker had already decided to produce no letter; and

5. That the court was only told the day before the May 29th sentencing that the Gladue report could not be prepared.

[88] The trial judge did not set out the evidence of the assigned caseworker or her supervisor in his reasons. In my view, a review of the evidence called at the stay hearing and the explanations provided by the ALS staff who testified do not support the trial judge’s findings of bad faith, complacency, lack of interest and negligence.

The April 6th Adjournment

[89] The trial judge was critical of the ALS caseworker, with respect to the adjournment of the first scheduled sentencing date of April 6, 2018. He stated:

Despite what I would have hoped were the best intentions for early notification of difficulties in preparing a report by the Aboriginal Legal Services, the caseworker apparently only advised on April 5, 2018 that the report would not be able to be completed, the day before the sentencing date of April 6th, 2018. The reason for noncompletion was that the Defendant had not contacted the caseworker nor had she been able to reach the Defendant through the contact information on the Court prepared application form, which turned out to be a mere request form. Worse, just like the response to my second Order for a Report, the response was not provided until the last moment, too late to affect any remedy.

It was only upon the caseworker’s attendance at Court for the Defendant’s sentencing on April 6th that she found out that Mr. Parent was now in custody and had been since before her first attempt to contact him. The caseworker later testified that she did not make any enquiries of either the correctional institutions nor with the Crown Office to determine if the Defendant had been re-incarcerated despite her knowledge of the disproportionate number of First Nation people in custody, nor do I have any evidence of the initially self-represented Defendant being able to contact the caseworker while in custody while at the same time acknowledging the greater difficulties of doing so given the restrictions on the Defendant while in custody including lockdowns which have become notorious through the many applications in the Oshawa Court for enhanced sentencing credits. [emphasis added]

[90] A review of the April 6th transcript and the testimony of the respondent at the stay application does not warrant the trial judge’s criticism with respect to the April 6, 2018 adjournment. I say this, having regard to the following:

1. There is no dispute that when ALS received the request for the Gladue report the respondent was out of custody;

2. The trial judge appears to have forgotten that the assigned caseworker made numerous attempts to contact the respondent before he was arrested on new charges. At the April 6, 2018 court appearance, the trial judge seemed appreciative of those efforts. As noted, by the trial judge, on April 6, 2018:

The COURT: I’ll see if I can print off another one to file with the information. The bottom line is that perhaps there’s a very good explanation that despite numerous attempts by Ms. Bigham to get a hold of Mr. Parent, he never quite got around to returning the phone calls and that’s probably because he was in custody at the time of those attempts.

MS. MANITIUS: He’s been in custody for at least the past six weeks. I’m surprised if it wasn’t attempted prior to that though?

THE COURT: It started back in (in fairness to Ms. Bigham), starting February 21st she was trying to get a hold of him and if that was prior to his incarceration, I’m a little bit disappointed at MR. Parent because this is an important process that we’re dealing with.

THE COURT: ...I was reading the letter and thought how many more times are you supposed to try and contact somebody, but yeah.

3. The trial judge seems to have also forgotten his disappointment with the respondent, reflected above, for failing to respond to the caseworker and the respondent’s testimony that he did not do so because he was busy:

Q. Okay, did you call her back?

A. I got arrested.

Q. She started leaving you messages on the 21st of February and she left you multiple messages.

A. I’m a very busy man, I was a supervisor of a sewer and water construction company out in Toronto. When I had time....

Q. No, we get that. So, you’re a very busy man, so you didn’t get around to calling her back, right?

A. I wasn’t able to.

Q. Because you’re a very busy man?

A. Yes.

4. The ALS caseworker wrote to the trial judge on April 5th explaining her attempts to reach the respondent and then came to court on April 6th; and

5. At the April 6, 2018 appearance counsel for the respondent stated that no one was to blame for that adjournment.

[91] Counsel for the respondent at the oral hearing agreed that ALS cannot be blamed for the April 6th adjournment. The respondent did not reach out to the caseworker and neither did defence counsel after she was retained in mid March. I am not stating that the respondent or defence counsel should be blamed. I am merely stating that the trial judge’s singling out of the caseworker is unfair and based on a misapprehension of the evidence.

[92] I also do not see how a caseworker who made numerous calls to contact the client, who writes a letter to the court and then shows up in court to see what went wrong, meets the judge’s description of someone with a remarkable lack of interest.

Friendship Community Centre

[93] The trial judge stated that:

The court will never know for example whether contact with Friendship Centres might not have opened other doors of information. It was clear that the caseworker was not prepared to do the “extra work” necessary to open up those doors.

[94] However, Ms. Bingham and her supervisor both testified at the hearing that they did not believe such attempts would be helpful. Ms. Bingham testified that the Friendship Centre is a community center and Indigenous in nature. However, it is not exclusive to Indigenous people and anyone can join if they pay the nominal dues. She testified that she did not believe that the Friendship Centre would help her ascertain the respondent’s ancestry and that she has never established ancestry from a Friendship Centre. Her supervisor supported her explanation. Perhaps, another assigned caseworker would have contacted the center. But it does not mean that Ms. Bingham and her supervisor’s decision not to make such an attempt was an act of laziness or disinterest.

Left the Incarcerated Offender and his Family to do the Legwork

[95] The trial judge stated:

Between Mr. Parent Sr.’s non-recollection of the caseworker’s request to contact the cousin and the caseworker’s assertion that she had, given the minimal effort by the caseworker in this matter, I accept the testimony of Mr. Parent.

It would appear the caseworker intended to rely upon an in-custody offender and his family to do the necessary legwork….

[96] There was no dispute that the respondent’s cousin Bruce had information about the family’s Indigenous ancestry. The respondent’s father did not know the nature of the information. He testified that the cousin did not want to share any of it, even with his own family. Ms. Bingham testified that she told the respondent’s family that any information that they could gather would be helpful. Ms. Bingham testified that she asked the respondent’s father to see if he could contact cousin Bruce. The trial judge was critical of Ms. Bingham’s decision to have the family do the “leg work”. I do not understand why. The respondent’s parents were clearly supportive of him and involved in his life. The respondent’s mother sent whatever information she had. Ms. Bean testified that she viewed the preparation of the report as a cooperative matter with the respondent. She stated that sometimes when an offender is in jail then it is difficult to contact people, but she said that this was not the case here, as Ms. Bingham was able to speak to the respondent’s parents. It would also seem that if cousin Bruce was to share any information, he would be more likely to do so with a family member than a complete stranger.

[97] The respondent’s father testified that he did not recall Ms. Bingham asking him to contact cousin Bruce. The trial judge accepted this evidence. However, the respondent’s father also testified that he had cousin Bruce’s phone number, but he did not provide it to Ms. Bingham. Furthermore, after this meeting additional information was sent by the respondent’s mother to Ms. Bingham, which is supportive of Ms. Bingham’s testimony that she had asked the family to send additional information. I am not stating that the respondent’s father was lying about this fact. I am just stating that it is just as probable that he forgot that he was told to follow up with cousin Bruce as Ms. Bingham not having told him. But more critically, a misstep by Ms. Bingham, if one did occur, in not ensuring that the family follow up with cousin Bruce, hardly makes her the uncaring person that the trial judge portrayed her as.

The Interview of the Respondent

[98] The trial judge was critical that Ms. Bingham only met with the respondent on May 28, 2018 and that she had already decided before that meeting that she was unable to complete a Gladue report and therefore, the meeting was conducted in bad faith. It was also short, only five minutes long. He also noted that she had to be told by the supervisor to meet with the respondent. The trial judge stated:

The letter was dated the same day and while referencing the caseworker visiting the Defendant for the very first time by attending the Central East Correctional Centre, given the late time of her visit to the jail and only the afternoon before the Report was due, and as confirmed in Ms. Bean’s testimony, I find that the decision was made not to provide a Report prior to the caseworker’s visit to the Defendant. I note that the caseworker and her supervisor met on May 25th and the supervisor had to direct the caseworker to actually meet with the Defendant. I find that this the only meeting between caseworker and Defendant and it occupied as little as five minutes of face to face time.

Indeed, it would appear that it took a direction from her supervisor for the caseworker to even go and meet the Defendant without which I find that remarkably short meeting would never have happened.

I find that the assigned caseworker/author for a Gladue Report never engaged in the preparation of a Report pursuant to my Order, and in any event fell far short of the standard necessary to obtain the information needed for a Report or for that matter even a Letter. It would appear the caseworker intended to rely upon an in-custody offender and his family to do the necessary legwork and I find that the caseworker had already decided she could not or would not prepare a report or letter before even meeting with Mr. Parent for the first time. In my view that amounts to bad faith whatever other barriers to a report the caseworker may have felt impeded the preparation of any response to my Order.

[99] I agree that the caseworker should have met with the respondent earlier. However, the caseworker agreed that she made a mistake and she explained why the mistake happened. She testified that typically she would start with the respondent. However, in this case, because she met the respondent’s mother in court, she started by interviewing her and then the respondent’s father. She said, “It was a mistake and an oversight on my part because I assumed that Kyle’s parents would be able to give me the information that I needed.” She said that her supervisor told her to meet with the respondent. The trial judge said that she acted in bad faith because she already knew she was not going to be able to provide a Gladue report. The record does not support that conclusion. The decision to provide a “no-Gladue report” letter was not Ms. Bingham’s decision but rather it was the decision of Ms. Bean, the supervisor who wrote the letter. Ms. Bingham and Ms. Bean discussed the case and where they were at and Ms. Bean then told Ms. Bingham to speak with the respondent. The trial judge viewed this direction as a negative. In my view, it shows the opposite. This was not a case of one person on a lark of her own without supervision, doing whatever she wanted. Rather, Ms. Bean and Ms. Bingham had several discussions about what could be done. Ms. Bean said that the “no” letter should only be given unless “it’s absolutely necessary and we absolutely just don’t have the information that we need to provide a report or a letter.” Finally, I would note that there is no dispute that the respondent did not have any other information that was of assistance to ALS in establishing his Indigenous ancestry.

[100] I agree with the trial judge that the interview should have happened earlier and that the court should have been informed earlier that ALS would not be able to assist. However, a mistake does not mean bad faith nor does an inability to produce a report equate with a wilful refusal to comply with a court order, assuming there was one.

[101] Furthermore, there is no real dispute regarding the paucity of information received about the respondent’s ancestry. I wish to be clear that I am in no way blaming the respondent or his family for this informational gap. The difficulty in this case was that the respondent and his father had very little information about their Indigenous ancestry as they were cut off from it when the respondent’s grandmother remarried.

The trial judge was able to fulfill his obligation pursuant to s.718.2(e)

[102] Irrespective of whether there was a court order, the trial judge was able to fulfill his obligations under s. 718.2(e) of the Criminal Code.

[103] There is no doubt that a fulsome Gladue report is of immense assistance to a sentencing judge in ensuring that she or he fulfills its obligation under s. 718.2(e) of the Criminal Code. But it is not the only means. A report is not an end in itself. Section 718.2(e) of the Criminal Code entitles every Indigenous offender to the method of analysis that the Supreme Court of Canada described in R. v. Gladue and R. v. Ipeelee – not to a particular format for the evidence at sentencing. As stated by the Supreme Court of Canada in R. v. Ipeelee, at paras. 59 and 60:

…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).

…Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code. [emphasis added]

[104] In some cases, it is not possible to produce a Gladue report. What is important is that the court have the requisite information. Sometimes, the information is heard through witnesses at trial or sentencing or sometimes it is contained in the pre-sentence report. For example, in R. v. Reddick, 2020 ONCA 786 at para. 7, the Court stated:

Despite the fact that Aboriginal Legal Services declined to provide a Gladue report because Mr. Reddick and his family members lacked specific information about his Aboriginal ancestry, or evidence of how his Aboriginal ancestry affected Mr. Reddick’s life, the sentencing judge accepted that Mr. Reddick was Indigenous and drew on relevant information in the presentence report in order to comply with s. 718.2(e).

[105] Similarly, in R. v. Pearce, 2021 ONCA 239, the Court stated at para. 7:

At Mr. Pearce’s request, the sentencing judge ordered a Gladue report to assist in sentencing Mr. Pearce. No report was prepared because Aboriginal Legal Services could not confirm that Mr. Pearce was an Indigenous person, and they lacked information on how such status would have affected his life circumstances. However, the sentencing judge was provided with an extensive affidavit in which Mr. Pearce attested to his Indigenous status and life circumstances, including: his father’s imprisonment during Mr. Pearce’s childhood; the tragic drug overdose death of his mother when Mr. Pearce was five years of age; Mr. Pearce’s time in foster care and in the care of his grandparents; his own descent into addiction; and his reconnection with his father later in life, shortly before his father’s death.

Also see R. v. Crocker, 2018 ONCA 600.

[106] In some cases, even when a Gladue report is produced, the nature of the issues involved may require the trial judge to seek additional information. For example, in R. v. Macintyre-Syrette, the Court of Appeal found the trial judge erred in proceedings without additional information regarding the types of sentencing procedures and sanctions that would be appropriate given, in that case, the offender’s connection to the Indigenous community in which he lived. The Court stated at para. 24:

It was an error, in our view, for the sentencing judge not to have identified these shortcomings in the Gladue and pre-sentence reports and either ordered a supplementary report or summoned the author or other witnesses from the community to address these questions viva voce: R. v. Kakekagamick, (2006), 2006 CanLII 28549 (ON CA), 81 O.R. (3d) 664 (C.A.), at para. 45; R. v. Kakekagamick, 2006 CanLII 11656 (Ont. C.A.). Without this information, the sentencing judge was not in a position where he could meaningfully assess the appropriateness of a non-custodial sentence.

[107] The trial judge was properly concerned with fulfilling his duty under s. 718.2(e) of the Criminal Code. After the pre-sentence report revealed some Gladue information, the trial judge requested the Gladue report. In his reasons on the stay application, he recognized that the content was the key factor not whether a formal Gladue report was prepared. However, he also stated that:

I am left with an unanswered question which is how does a Sentencing Judge have the confidence of knowing everything relevant to sentencing without the benefit of a full Gladue Report without comparing the Pre-Sentence Report with a full Report?

[108] He then noted that in his view “it would be the rare Pre-Sentence Report which meets that standard, a standard which seems both more respectful of Indigenous cultures and oral histories.” He was concerned that ALS was contemplating preparing a Gladue letter instead of a report. He clearly viewed the letter as inferior, although he never received it in this case and had never seen one in the past. The trial judge then stated that Defence counsel could also assist the court, but he was concerned about the scope of their financial retainer and their training. He stated:

Leaving aside the strong disincentive on Defence counsel to accept aboriginal clients should counsel have to bear the cost of the necessary investigation and additional court time in submitting the evidence, what education and skill set must Defence counsel obtain to fulfill that duty?

I understand that to accept a legal aid certificate to represent an aboriginal Defendant requires Counsel to be approved for inclusion in the Gladue panel of which I am aware from other Counsel on that panel in other proceedings. I am unaware if any educational pre-requisite amounts to hours, days, weeks or months of training or if it is in person training or merely online review of material. I am equally bereft of an evidentiary foundation as to the financial coverage Legal Aid provides to permit a Defence Counsel to investigate, collect and provide the Gladue factors to the Court in a sentencing hearing, nor do I have an evidentiary foundation to determine the extent of trained Indigenous caseworker accessibility Defence Counsel might have available to them.

In the case at bar, Defence Counsel was instrumental in determining the circumstances of how my order for a Report was not fulfilled, however did not provide individualized information beyond the witnesses called at the application for a stay. This is not a criticism, but an acknowledgment of what I infer are the limitations of her financial retainer.

[109] The trial judge noted the following comment by Pomerance J. in R. v. Corbiere, 2012 ONSC 2405, [2012] O.J. No. 2164.:

If a pre-sentence report is lacking in its richness of detail or historical/systemic background, it is incumbent upon the sentencing judge to make further inquiries. The Court may direct that the report be supplemented in writing or it may direct the attendance of witnesses that can offer the information and perspective that is needed.

[110] But the trial judge was concerned with the additional court time that such a process would consume. He stated:

In my view, the Crown’s submission to proceed with sentencing without a Gladue Report or sufficient Gladue information would lead the Court into the same legal error as found in Macintyre-Syrette.

My concern in the case at bar is to what extent should a Sentencing Judge intervene to obtain the missing information in a busy trial court adhering to Jordan principles knowing that an adjournment to obtain that information if adjourned to the next clear date may mean an unacceptable delay of many months or disrupting a trial list causing Jordan impact on other trials.

[111] I agree with the trial judge that it is not easy to balance Jordan considerations and obligations to a particular accused under s.718.2(e). But the remedy he chose, to stay the proceedings, was not appropriate. I also do not see the barriers that the trial judge referenced. For example, there is no evidence that Defence counsel’s retainer played any role in these proceedings, nor was there any evidence that the court schedule would be unable to accommodate further evidence, if needed. I note that the stay hearing dates were provided in short order. In addition, the respondent was, at the start of the stay motion, out of custody.

[112] It is also evident that counsel for the respondent at trial and on appeal has significant knowledge in Gladue issues. I echo the following comments by Danyliuk J. In R. v. Gamble, 2019 SKQB 327 at para. 54:

Finally, there is no basis in the evidence before me or in the law that has been submitted to me that Gladue information must come to the court in the form of a report. This was reviewed in Sand and Peepeetch. Substance trumps form. There would be nothing wrong, and much to commend, defence counsel spending time with his or her client and obtaining information to pass on to the sentencing judge. Within the defence bar, the involvement of counsel in this aspect of the sentencing process appears to be waning. It is difficult to understand why this is. Especially where a full trial has been held, defence lawyers spend a lot of time with their clients. Trust and communication relationships develop. Lawyers are particularly skilled at eliciting information. Why, then, can defence lawyers not provide a set of submissions on the Gladue points just as they do with many other issues within a sentencing?

[113] The starting point would have been for the trial judge to ask Defence counsel what additional information she wanted to put forward. I say additional because, through the pre-sentence report and the stay application, evidence was adduced regarding the respondent’s Indigenous background. In particular, the trial judge had the following information:

a. The respondent’s Indigenous ancestry came from his father’s family. He believed that he was Algonquin, but the respondent’s father believed that he was Algonquin or Huron;

b. The respondent had little knowledge of his Indigenous heritage. He found that the lack of connection to their heritage was “hard on the whole family”. This was seen by the trial judge when the respondent’s father broke down in court when he discussed the lost connection;

c. The respondent told Mr. Gilkinson that the passing of his grandparents was a barrier to reconnecting, but he suggested that he may explore web-based resources to trace his lineage. The respondent in his evidence expressed a desire to know more about his background. The respondent participated in a powwow as a child but had not made any efforts to investigate or to ascertain his cultural heritage as an adult;

d. The respondent’s father testified that the respondent’s paternal grandfather was killed in a mining accident resulting in his grandmother remarrying. Thereafter, the respondent’s grandmother decided to separate herself from the Indigenous heritage;

e. The respondent suffered racism in high school. He did not fit in. He was called multiple racial slurs. He did not tell his parents at the time about the slurs. He did not tell the probation officer about the racial slurs. He said it was part of the shame; and

f. The respondent felt discrimination at work as well because of his skin colour. He did not tell his employers that he was Indigenous because he believed that they would discriminate against him because of other comments that he heard.

[114] Counsel for the respondent has conceded that there was some information about the respondent’s Indigenous background, but it was not complete because it was not the focus of the stay application. However, counsel for the respondent has also indicated that further information could have been provided. I agree. The required information could have been provided had further inquiries been made. The respondent could have had a proper sentencing proceeding.

Additional Issue: Did the trial judge have the authority to order ALS to write a Gladue report?

[115] The trial judge found that he did not have the authority to order ALS to write a report. He stated that he could not “order non-contractual parties to prepare individualized research in order to create additional evidence.” The Crown and the intervenor agree with the trial judge in this regard. However, the respondent challenges this aspect of the trial judge’s ruling and submits that the trial judge had the authority to direct ALS to produce a Gladue report, as they are a state actor or, even if they are a private entity, their actions are subject to the Charter as they are performing government activities. The respondent submits:

Clearly ALS is entirely funded by the government (provincial and federal governments) and government actors (Ministry of the Attorney General and Legal Aid Ontario). The action of preparing Gladue Reports is an extension of Probations Services’ preparation of PSRs, codified in Criminal Code. The Charter clearly applies as ALS implements specific government policies (s.718.2(e) of the Criminal Code) and programs (extension of s. 721 of the Criminal Code) and must therefore comply with the Charter in performing these relevant government activities, particularly where specifically court ordered to do so, as in the Respondent’s matter.

[116] I agree with the trial judge that he had no ability to direct ALS to write a report over their objections. ALS was not a party to the sentencing proceedings. The Criminal Code does not provide any jurisdiction, in this regard, to a court, to order a non-party to perform a certain action or provide a certain service. As stated by Saskatchewan Court of Appeal in R. v. Bouvier, 2011 SKCA 87, 274 C.C.C. (3d) 406, at para. 22:

Furthermore, a sentencing court has criminal jurisdiction over the offender only (see: R.v. Ermine, 2010 SKCA 47, 254 C.C.C. (3d) 192). Parliament has made a few exceptions to this general principle; but, where it has done so, Parliament has provided a sentencing judge with the express jurisdiction to compel a non-party to do something. Section 723(3) contains no such express grant of jurisdiction. Therefore, the sentencing judge’s use of s. 723(3) to order Dr. Lohrasbe to assess Mr. Bouvier gave rise to a jurisdictional error in that, without express authority to do so, the judge misinterpreted that section as conferring jurisdiction over non-parties to the sentencing proceedings. For this reason, a sentencing court should address any order made under s. 723(3) to either or both of the Crown and the offender, not a non-party to the sentencing hearing (see: R.v. Hunter).

[117] Furthermore, I do not see how compelling ALS to produce a report where they believe they are unable to do so and are unable to obtain the necessary ancestral information as being of assistance to anyone, particularly the trial judge in trying to fulfill her or his obligations under s. 718.2(e).

[118] The trial judge, as stated, found that he did not have the authority to order ALS to produce a Gladue report. However, elsewhere in his reasons, the trial judge made numerous references to ALS staff’s failure to comply with his court order, especially ALS’ intent to produce a letter as opposed to a report, which seems to assume that the court had jurisdiction to compel ALS. If that is what the trial judge meant, then he erred in so finding.

[119] The Charter may be found to apply to a private entity on one of two bases. First, it may be determined that the entity is itself “government” for the purposes of s. 32. This involves an inquiry into whether the entity either by its very nature or by virtue of the degree of governmental control exercised over it, can properly be characterized as “government” within the meaning of s. 32(1) of the Charter. Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. It is not sufficient that the activity itself is a public function or public good. It must be found to be implementing a specific governmental policy or program: Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 43, McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at p. 26. McKitty (Litigation guardian of) v. Hayani, 2019 ONCA 805, 439 D.L.R. (4th) 504.

[120] An inquiry into the nature of ALS and the activity in question, their Gladue writing program, reveals that the actions of ALS do not attract Charter scrutiny. With respect to their nature, while ALS receives public funding, they are not a government body, they are not governmental in nature and there is no degree of governmental control. With respect to the activity, while the Gladue writing program is clearly serving a public good, ALS is not implementing a specific governmental policy or program. ALS is not an agent, employee, or partner of the government or Legal Aid Ontario. An ALS caseworker is not a government probation officer. ALS’ service agreements with the provincial and federal governments and Legal Aid Ontario confirm that ALS is a contractor. The Charter does not apply to the actions of ALS staff.

CONCLUSION

[121] The trial judge erred in staying the proceedings instead of sentencing the respondent. The appeal is allowed, and the stay is set aside. The parties were content, in the event that I set aside the stay, that I sentence the respondent. It has now over two years since the stay was entered. I understand that the respondent has been doing well in the community. I will hear from counsel regarding the next steps for sentencing.

Justice H. Leibovich

Released: May 27, 2021

OSHAWA COURT FILE NO.: SCA-19-14997 AP

DATE: 20210527

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

KYLE PARENT

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Justice H. Leibovich

Released: May 27, 2021

[^1]: I have not been provided with any transcripts prior to March 1, 2018. I have used the summary of proceedings set out in the Crown’s factum where they have been specifically accepted by the respondent in their factum.

[^2]: There is no specific Criminal Code section that deals with the production of Gladue Reports. Canadian courts have used a patchwork approach to obtain the needed information, as “At present, there is no national approach, guideline, or policy with respect to the production and delivery of reports”; International Centre for Criminal Law Reform and Criminal Justice Policy, Production and Delivery of Gladue Pre-Sentence Reports: A Review of Selected Canadian Programs, by Patricia Barkaskas, Vivienne Chin, Yvon Dandurand, and Dallas Tooshkenig (Vancouver: Report submitted to the Law Foundation of British Columbia, 9 October 2019) p. 30. S. 721(4) of the Criminal Code has been used to allow the ordering of a pre-sentence report with Gladue content. The British Columbia Court of Appeal has found that section 723(3) of the Criminal Code, is also available to a sentencing judge as it allows the court to “require the production of evidence that would assist it in determining the appropriate sentence: R. v. D.G., 2014 BCCA 84 at para 10; R. v. Florence, 2015 BCCA 414 at para 20. S.723(3), is on its face confers a very broad power to the sentencing judge. But care must be exercised in its use. The section itself requires that a judge can only resort to this power after hearing submissions by counsel for the accused and the Crown. No such hearing took place in this case.

[^3]: The parties did not object to it being considered as part of the appeal proper.