Court File and Parties

COURT FILE NO.: CR-23-22-00AP (Cayuga) DATE: 2024/10/10

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HIS MAJESTY THE KING Appellant – and – SKYLER WILLIAMS Respondent

Counsel: F. McCracken, Counsel for the Crown/Appellant J. Frost and K. Tink, Counsel for the Respondent

HEARD: March 1, 2024

the honourable justice i.r. smith

Reasons for Judgment

Introduction

[1] The respondent pled guilty to one count of mischief and two counts of breaching an undertaking. After a sentencing hearing, Justice G.B. Edward of the Ontario Court of Justice discharged the respondent absolutely pursuant to s. 730(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The Crown appeals, submitting that the discharge should be vacated, a conviction should be registered, and that a suspended sentence be imposed.

[3] For the reasons which follow, I accept the submission of the Crown, enter a conviction and impose a suspended sentence, but permanently stay the execution of that sentence.

Background

[4] In 2020, members of the Six Nations of the Grand River launched protests against a housing development called McKenzie Meadows located on McKenzie Road, in Caledonia. The respondent is Haudenosaunee and a resident of the Six Nations reserve. He was a participant in those protests. An occupation of the development site began on July 19, 2020, and a camp was established by the protesters at the intersection of McKenzie Road and Fuller Road. Their purpose was to stop the development.

[5] On July 30, 2020, Harper J. of this court issued an injunction prohibiting the protesters from trespassing on the McKenzie Meadows land and from interfering with the development of that land (the “injunction order”): Foxgate Developments Inc. v. Doe, et al., 2020 ONSC 5038. On July 31, 2020, the Sheriff attended at the camp and read the injunction order to the protesters, including the respondent. It was also served on them and posted at the scene.

[6] Between August 5, 2020, and October 28, 2021, the respondent was an active participant in the protest at the McKenzie Meadows development. Despite the injunction order, the property remained obstructed by the protesters and the developers were interrupted and interfered with in their lawful use, enjoyment and operation of the property. During this time, the respondent posted updates on the protest on Facebook in which updates he acknowledged the existence of the injunction order and expressed his opposition to it. He was observed at various blockade sites, including a blockade of Highway 6 in Caledonia.

[7] These demonstrations interrupted and interfered with the lawful use, enjoyment and operation of the area, including roads and rail lines which were damaged by the protesters. The respondent thereby committed the offence of mischief. The cost of repairs to the roads and rail lines was assessed at $417,431.

[8] At the time of this conduct, the respondent was the subject of two undertakings. One prohibited him from attending at the MacKenzie Meadows site. The other prohibited him from participating in any unlawful protest or unlawful demonstration. The respondent breached these undertakings repeatedly. He pled guilty to two counts of failing to comply.

[9] On December 21, 2021, the Court of Appeal overturned the injunction order: Foxgate Development Inc. v. Jane Doe, et al., 2021 ONCA 910. For the court, Sossin J.A. wrote as follows, at para. 62: “In light of the motion judge’s error in conflating contempt and abuse of process, and denying Mr. Williams a fair opportunity to be heard, the motion judge’s orders on appeal must be set aside.” The Court of Appeal awarded costs of $20,000 to the respondent.

The sentencing proceedings

[10] The sentencing hearing in this matter unfolded over four court days, after which the sentencing judge reserved his judgment.

[11] The facts that I have recited to this point are taken largely from an agreed statement of facts which was read and entered as an exhibit when the respondent pleaded guilty. Also marked as an exhibit was the respondent’s criminal record, which includes eight prior adult convictions, all somewhat dated and all relatively minor in nature, excepting convictions for two counts of impaired driving causing bodily harm in 2005, for which the respondent received a conditional sentence and probation, in addition to a driving prohibition. Two of the respondent’s prior convictions were for failing to comply with the conditions of an undertaking or recognizance.

[12] The Crown also tendered a victim impact statement prepared by a management employee of Haldimand County. That statement catalogued the various effects of the protests on life in the community, including on traffic and mobility, public safety, local commerce, development, tax revenues, and reputation. Damage and repair work undertaken were also summarized, as were the County’s legal costs. The sentencing judge declined the respondent’s request to cross-examine the author of the victim impact statement.

[13] The respondent called two expert witnesses who testified at length at the sentencing hearing: Professor Richard Monture, who teaches in the English and Indigenous Studies departments of McMaster University, and Professor Beverly Jacobs of the Faculty of Law at the University of Windsor. Prof. Monture testified about the history of the Haldimand Treaty (also known as the Haldimand Deed) and the lands which were the subject of the protests, and generally about how Indigenous peoples have had those lands taken from them unfairly (how they been “swindled,” to use the language Prof. Monture used). Prof. Jacobs testified about Haudenosaunee religious and legal traditions, and their interactions with European settlers. The record before the sentencing judge also included various documents, including maps, Prof. Monture’s doctoral dissertation ( Teionkwakhashion Tsi Niionkwariho:Ten - “We Share Our Matters”: A Literary History of Six Nations of the Grand River (Ph.D. Thesis, McMaster University, 2010)), excerpts from a book by Prof. Monture based on that doctoral work ( We Share Our Matters: Two Centuries of Writing and Resistance at Six Nations of the Grand River (Winnipeg, University of Manitoba Press, 2014)), and a document entitled “Land Rights, A Global Solution for the Six Nations of the Grand River,” published in 2019, all of which I have had the privilege of reading. It appears that the sentencing judge also had Prof. Jacobs’ master’s thesis, but that document is not in the record that was produced for this appeal. In any case, Prof. Jacobs testified about her work on that thesis.

[14] At the specific request of the sentencing judge, the respondent also called Mr. Lonny Bomberry, Director of the Lands and Resources Department of the Six Nations of the Grand River Elected Council. Mr. Bomberry testified about the history of the negotiations between the Six Nations and the developer of the McKenzie Meadows site.

[15] The respondent also testified himself, giving thoughtful and, at points, what must have been moving evidence to have heard live. He described his family and childhood, his addictions to alcohol and drugs, his work to achieve sobriety, his life as a parent and partner, his volunteer work, and his employment as an iron worker. He also testified about his work educating others about the many and varied issues of importance to Indigenous peoples, and his work in “Indigenous resistance,” beginning with his participation in the protests at Ipperwash in 1995 and continuing through to the protests in this case. These themes were also taken up in several letters of reference which were filed in support of the respondent. The respondent also spoke about the lands at issue in this case, their importance to the Six Nations, and the divisions within that community about how the land should be handled.

[16] The respondent testified that when he committed the offences in question he was protesting what he perceived to be systemic injustices relating to the treatment of the Six Nations and their ongoing land dispute with the Canadian government. Suffice it to say that the expert evidence provided a foundation for this position.

[17] Crown counsel submitted that the appropriate sentence in this case was a suspended sentence. Counsel for the respondent argued for a conditional discharge.

The reasons for sentence

[18] The sentencing judge opened his reasons for sentence by noting that the narrow issue he was required to resolve was “whether I grant a discharge as requested by defence or a suspended sentence as request by the Crown.” He continued as follows (emphasis added by Edward J.):

The question the Court struggled with was the interpretation to be given to section 730 of the Criminal Code which says an accused may be discharged absolutely or on conditions if the court “considers it to be in the best interest of the accused and … not contrary to the public interest.”

It is this last phrase the Court focused on, “not contrary to the public interest.” Did that mean the Haudenosaunee public interest, the settler community interest or both?

[19] The sentencing judge then said that in answering this question he had been assisted by the evidence of Professors Monture and Jacobs, in light of which he would attempt to “fashion a sentence that incorporates Haudenosaunee legal traditions.” He summarized the history provided by Prof. Monture, including the grant of land along the Grand River made by the British government to the people of the Six Nations in the wake of the American Revolutionary War, memorialized in the Haldimand Deed or Treaty of 1784, and the loss of most of that grant of land over time to the European population of Canada. Included in that loss of land was the surrender of Plank Road, the road which is now Highway 6. Prof. Monture testified that the Six Nations never properly consented to that “surrender.” He said that the Six Nations upheld their end of the bargains they struck with the British, but the British did not.

[20] The sentencing judge quoted Prof. Monture’s testimony as follows:

[The respondent] knows his history and he is one of you know hundreds, thousands of us who know that too, that take it upon themselves to … educate and push back because it’s an injustice… There’s, there needs to be lands given back to us that are rightfully ours.

[21] With respect to Prof. Jacobs, the sentencing judge reviewed her evidence respecting the nation-to-nation relationship which governed at the time that treaties were entered into between the British and the Six Nations. That relationship was represented metaphorically in the Two Row Wampum, a ceremonial belt beaded with two lines or rows, one representing a vessel for the British nation and the other a vessel for the Haudenosaunee nation, both travelling equally but independently, parallel to each other and not intersecting, on the Kuswentah, the river of life. [1]

[22] The sentencing judge quoted the following from Prof. Jacobs’ testimony:

So it was a … nation to nation relationship. So what we held in our canoe was all of our laws, beliefs, our language, our culture, everything that made us who we are. And in their ship was their laws, their customs, their beliefs, their language, everything that made them who they are. And that we wouldn’t interfere in each other’s but we knew that we were going to live in these territories together with healthy relationships, not interfering in each other’s way of life.

[23] Instead, the nation-to-nation relationship was overtaken by the imposition of the British North America Act of 1867 (now the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.)) which had the effect of unilaterally replacing the nation-to-nation relationship with a new relationship in which Indigenous people became wards of the Crown.

[24] The sentencing judge continued, quoting again from Prof. Jacobs’ evidence as follows:

[Under] Haudenosaunee law we have land protectors, we have water protectors. We have always had people who have taken care of the land, who have looked after the land, who have taken responsibility for protecting the land and that’s what I see as [the respondent] and everyone else. You call them protesters, we call them protectors of land and territories.

To make sure that we have lands and territories for our people and for the future for our children, for the faces that we don’t see yet.

[25] The sentencing judge then turned to his analysis of the question he posed for himself at the opening of his reasons. I quote that analysis in full:

In this Court’s struggle to answer “to what public” under section 730 of the Criminal Code, I am prepared to rely on the application of Haudenosaunee law. In this instance the application of Kuswentah, the Two Row Wampum. [The respondent] was carrying out his actions as a land protector in the context of these Haudenosaunee laws contained metaphorically within the canoe. Therefore, the public are the Haudenosaunee people. And this Court concludes that community would not conclude his actions in protecting their land was not in their public interest. Nor do I believe conditions need to be attached to the discharge as Mr. Williams clearly expressed the view any further attempts to develop contested lands would be revisited by him. Therefore, conditions would simply set him up for a breach.

For these reasons, [the respondent] will be granted an absolute discharge.

The grounds of appeal

[26] The Crown advances two grounds of appeal, each of which focuses on a phrase in s. 730(1) of the Criminal Code, which reads as follows:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). [Emphasis added.]

[27] First, the Crown submits that the sentencing judge erred by failing to give the first emphasized phrase (“the best interests of the accused”), as that phrase has been interpreted by the courts, its proper effect. In a nutshell, it is argued that the need for specific deterrence and the respondent’s antecedents disentitled him to a discharge.

[28] Second, the Crown submits that the sentencing judge erred in his interpretation of the second emphasized phrase (“the public interest”) by narrowly defining the public interest in the context of this case to include only the Haudenosaunee people.

[29] The Crown submits that these errors led the sentencing judge to impose an unfit sentence and asks that the absolute discharge be replaced with a suspended sentence with probation on the following conditions: (1) the statutory terms in section 732.1(2) of the Code; (2) that the respondent not attend at 1535 McKenzie Road, Caledonia; and (3) that the accused not participate in any unlawful protest or demonstration.

[30] The respondent argues that the Crown reads the caselaw surrounding the phrase “the best interests of the accused” too rigidly, that the Crown failed to make any argument about this phrase in the court below, and that in any case the sentencing judge made no error in finding that a discharge was in the interests of the accused.

[31] With respect to the public interest, the respondent argues that the sentencing judge made no error in defining the public interest in the unique circumstances of this case, especially when his reasons are read in the context of the whole of the sentencing hearing. That context, so it is argued, makes it plain that the sentencing judge considered all viewpoints as he wrestled with the sentencing problem presented to him in this case.

[32] The respondent asks that the appeal be dismissed. In the alternative, in the event that I conclude the Crown’s appeal should be allowed, the respondent asks that I stay the execution of that sentence.

Standard of review

[33] The Supreme Court of Canada directs that on an appeal from sentence, the appellate court is to afford substantial deference to the sentencing judge given the highly individualized and discretionary task that is the crafting of a fit sentence. Interference with the sentence imposed is warranted only where the sentencing judge has committed an error in principle, has failed to consider or overemphasized a relevant factor, or has imposed a sentence which is demonstrably unfit: Regina v. Lacasse, 2015 SCC 64, at paras. 39–41; Regina v. L.M., 2008 SCC 31, at paras. 14–15; Regina v. C.A.M., [1996] 1 S.C.R. 500, at paras. 90–91.

Discussion

Introduction

[34] I begin my analysis by making some general observations.

[35] The sentencing hearing in this matter was far from routine. Expert evidence is not normally received at a sentencing hearing, and the issues canvassed on sentencing are rarely as profound as the history of the relationship between government – first British and then Canadian – and the Six Nations, the contrasts between British and Indigenous legal traditions, the divisions within the Six Nations over time, the causes of those divisions, and the impact of those divisions today. I applaud everyone involved in this sentencing hearing – counsel for the respondent, Crown counsel, witnesses, the court, and the respondent – for airing the issues with care, objectivity and understanding.

[36] It is important to remain clear-eyed, however, about the relevance of the evidence called at a sentencing hearing after a finding of guilt has been made. Evidence will be admissible if it is relevant to a matter in issue on sentencing. Such matters include (but may not be limited to) the nature of the offence or the context in which it was committed, the antecedents and circumstances of the offender, the impact of the offence on the victim, and any other mitigating or aggravating factors. In this case, the expert evidence received by the court put the respondent’s offences in historical context, and, when coupled with his own evidence, explained his motivations and hopes when he participated in the protests. It did not, however, operate to excuse his conduct. See Rex v. Nelson, 2024 BCCA 72, at para. 53; Rex v. Leyden, 2024 BCCA 227, at paras. 67–68.

[37] In this respect, it is also important to emphasize that the respondent entered a guilty plea to three offences against the Criminal Code. In other words, he accepted and publicly acknowledged his own guilt.

[38] I raise these issues at the outset so that I can emphasize, first, that it is not the role of the courts in this case to opine on the correctness of the claims made by the Six Nations to the lands which were the subject of the protests in which the respondent was a participant. It is enough to acknowledge that the ownership of the lands in question is disputed, that the objections of the people of the Six Nations respecting the lands are grounded in evidence and are not frivolous, and that – as the sentencing judge accepted – the respondent was honestly of the view that he was acting as a land protector when he committed the offences at issue in this case.

[39] Second, the honestly held views of the respondent about these issues, while relevant to sentencing, are not relevant to his guilt. As I have said, he has accepted and acknowledged that his conduct was criminal. Whether he committed the crimes in question, or whether they were in fact crimes, then, is not a matter for debate.

[40] Having made these observations, I turn to the grounds of appeal.

Ground #1: The best interests of the accused

[41] Section 730 of the Code sets up the following six preconditions which must be met before a discharge may be ordered: (i) the accused must be a human being, not an organization; (ii) the accused must have pled guilty or been found guilty; (iii) the offence in question must have no minimum punishment prescribed by law; (iv) the offence must not be punishable by 14 years or life imprisonment; (v) a discharge must be in the best interests of the accused; and (vi) a discharge must not be contrary to the public interest. This appeal concerns the last two of these preconditions.

[42] In advancing its argument that the sentencing judge erred in his treatment of the assessment of the best interests of the accused, Crown counsel relies on the interpretation given to this phrase in what is now a long line of cases which has at its beginning the judgement in Regina v. Sanchez-Pino (1973), 11 C.C.C. (3d) 53 (Ont. C.A.). There, for the court, Arnup J.A. wrote as follows, at para. 17:

The granting of some form of discharge must be “in the best interests of the accused”. I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. [Emphasis added.]

[43] Since Sanchez-Pino, the courts have added to this understanding of the accused’s best interests by noting that, usually, “a person of good character” will be a person without prior criminal convictions (for example, Regina v. Kaushal, [2022] O.J. No. 3946 (S.C.J.), at para. 144), who has acted “entirely out of character” (for example, Regina v. Hayes, [1999] O.J. No. 938 (Gen. Div), at para. 32), and who appears to “appreciate the importance of being a law-abiding citizen” (Regina v. Quadri, 2018 ONSC 7070, at para. 17).

[44] In Regina v. Turner, 2022 ABCA 11, a majority of the court summarized the law respecting discharges as follows, at paras. 34 and 38:

A discharge, either absolute or conditional, is an extraordinary disposition – to be granted sparingly – not to be utilized in the absence of compelling reasons that make it obvious the offender's personal interest in avoiding a criminal record is far more important than the community's interests in convicting criminals. Promotion of the community's interests requires that there be a public record of those who commit crimes and a formal state denunciation of criminal conduct. The latter achieves the primary statutory objective of sentencing – “to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct”.

… [An] absolute or conditional discharge may be an attractive sentencing option if an offender has never committed a crime before and is a person of good character and the crime is an aberration attributable to stimuli that will probably never exist again. […] Offenders with a criminal record will seldom be granted an absolute or conditional discharge. [Emphasis added; citations omitted.]

[45] Crown counsel argues that the sentencing judge failed to apply these interpretations of the accused’s best interests and failed to advert in his reasons to the fact that the respondent has a significant criminal record, which includes convictions for failing to comply with bail orders, and that the respondent has served time in custody. In so doing, the sentencing judge both erred in principle and failed to consider relevant factors. Had he applied the law as described in the cases referred to above and elsewhere, and adverted to the respondent’s antecedents, he would have been obliged to find that a discharge, whether absolute or conditional, was inappropriate because specific deterrence was a concern in this case and because there was no indication that a conviction would have significant repercussions for the respondent. In other words, it was not in the accused’s best interests.

[46] Counsel for the respondent rightly observes that the law surrounding discharges is generally permissive. In other words, while an accused person with a criminal record is “normally” not a candidate for a discharge, prior convictions are not a complete bar to an order for a discharge. Similarly, in appropriate circumstances, a discharge might be ordered where the offence was a serious one and involved violence or injury or other loss to the victim: Hayes, at para. 33. The only limits on the availability of a discharge are those listed in s. 730 itself. In her concurring opinion in Turner, Khullar J.A. (as she then was), summarized this point as follows, at para. 53:

The law is clear that conditional discharges should not be granted routinely: Regina v. MacFarlane (1976), 1976 ALTASCAD 6, 55 A.R. 222 (C.A.). But sentencing judges should be free to grant one in an appropriate case. As MacFarlane notes at para 14:

In consideration of the exercise of the discretion to grant an absolute or conditional discharge, we emphasize that it is quite impossible to lay down rules which would cover the myriad of situations which may appear before a judge confronted with the task of appropriate sentence in any given case.

The Court then listed a number of factors relevant to the exercise of its discretion. The test has withstood the test of time, and I see no reason to unnecessarily limit when a conditional discharge might be granted.

[47] The respondent argues therefore that his criminal record was not a bar to a discharge. Further, he notes that his record is dated, that it predates his hard-won sobriety, and that it is therefore of little relevance. Instead, the evidence makes plain that despite his criminal history, the respondent is a man of good character, who is gainfully employed and an involved parent, who is a volunteer in his community, and who has gone to great lengths to educate the public on issues of importance to Canada’s Indigenous community. He has the support of that community, as reflected in the reference letters filed at the sentencing hearing. All these factors suggest that a discharge was an available and reasonable result in this case because it was in the respondent’s best interests.

[48] The difficulty that I have with the argument of the respondent is that very little if any of this reasoning finds any expression in the reasons of the sentencing judge. Indeed, it is not clear to me that the sentencing judge considered “the best interests of the accused” part of the test for a discharge at all. The reasons do not describe the evidence respecting the respondent’s background, nor make any findings of fact about him, or his character, or his best interests, or his suitability for a discharge. Although one might infer that the sentencing judge concluded that the respondent was acting in the public interest by acting as a land protector, that conclusion concerns the offences and their context, it does not otherwise explain why the respondent was a candidate for a discharge.

[49] In my view, by failing to apply the best interests test, and by failing to consider the respondent’s antecedents, including his criminal record (among other factors), and the need for specific deterrence, the sentencing judge both erred in principle and failed to consider relevant factors.

[50] With respect to this ground of appeal it is necessary to consider two final points. First, the respondent says that the Crown should be prevented from raising this ground of appeal given that it did not make the argument in the court below that a discharge was unavailable to the respondent because of his criminal record. I cannot accept this submission. First, the respondent casts the Crown’s argument on appeal too narrowly. As I understand the Crown’s position, it argues that the trial judge failed to apply the best interests test at all, and failed to consider several factors, not limited to the respondent’s criminal record. In any case, that a discharge be in the best interests of the accused is a prerequisite to a discharge irrespective of the Crown’s submissions. Moreover, before the sentencing judge Crown counsel sought a suspended sentence as opposed to a discharge because of concerns about deterrence, including specific deterrence, which is identified in Sanchez-Pino (and other cases [2]) as one of the chief considerations in assessing the best interests of the accused. Further, in his submissions to the sentencing judge, the Crown quoted from Turner in making the point that a discharge cannot be imposed unless the accused’s personal interest in avoiding a criminal conviction is far more important that the public interest in convicting criminals. In other words, the Crown’s submissions below clearly engaged with the best interests’ precondition for a discharge. The Crown is therefore not prevented from raising that issue on appeal.

[51] Second, the respondent argues that the sentencing judge’s decision not to order a conditional discharge demonstrates that he considered and rejected the idea that specific deterrence was a concern in this case. I read the reasons on this point somewhat differently. The sentencing judge declined to order a conditional discharge because he concluded that the respondent was likely to breach the terms of any probation which was imposed. In other words, because the respondent had testified that he was likely to engage in unlawful protests again, [3] there was no point in imposing conditions to a probation order which would simply be breached. Respectfully, this reasoning cannot be endorsed. The respondent’s evidence that he was likely to choose to reoffend demonstrated the need for a sentence that addressed specific deterrence, not a disposition which treated the respondent’s future criminality as a given. As I have said, specific deterrence is a key consideration which weighs against the granting of a discharge, either absolute or conditional, although I note again here that not even the respondent proposed that an absolute discharge was appropriate in this case.

Ground #2: The public interest

[52] The Crown’s second ground of appeal alleges that the sentencing judge erred in law when he defined “the public interest,” as that phrase is used in s. 730, too narrowly, concluding that the relevant “public” in this case are the Haudenosaunee people, to the exclusion of all others. This alleged error is also said to have led the sentencing judge into error in fixing an appropriate sentence. I agree with the Crown.

[53] The phrase “the public interest” is ubiquitous in Canadian legislation at both the federal and provincial levels. It has no definition that applies universally. Instead, it must be interpreted in light of the legislative and social context in which it is used in each case (Regina v. Zundel, [1992] 2 S.C.R. 731, at para. 147). The cases which have previously considered s. 730 have done this interpretive work.

[54] In Sanchez-Pino, Arnup J.A. described the public interest as follows, at para. 17:

It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.

See also Elsharawy, at para. 3.

[55] In the passage from Turner quoted earlier in these reasons (see para. 44, above), a majority of the Alberta Court of Appeal concluded that the public interest “requires that there be a public record of those who commit crimes and a formal state denunciation of criminal conduct. The latter achieves the primary statutory objective of sentencing – ‘to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct.’”

[56] Not surprisingly, as these cases show, the courts have interpreted the public interest for the purposes of s. 730 to include the community’s interest in the deterrence and denunciation of crime – the most common of the primary principles in Canadian sentencing law. Giving effect to sentences which reflect these principles serves the interests of all Canadians. This is one of the core purposes of the criminal law. There may be other relevant factors which make up the public interest, and there will, of course, be many cases where other sentencing principles – like the rehabilitation of the offender, among others – outweigh deterrence and denunciation and require the imposition of a lenient sentence or the granting of a discharge.

[57] However, while I accept that the interests of a particular community, or group within a community, may be especially relevant to an assessment of the public interest in a particular case, it is in my view an error to limit the people or groups or communities who make up the “public” when it is evident that other people, groups or communities are also relevant members of the “public” in the case in question. In this case, the sentencing judge was very rightly concerned to consider the perspective of the Haudenosaunee people in the context of the history of their relationship with successive British and Canadian governments, and to take into account Haudenosaunee legal principles and tradition in so doing. But it was an error, in my respectful view, to exclude from the relevant public the members of the broader community who live in the area of the protests and blockades and whose lives were disrupted by them, to say nothing of the even broader Canadian community which has an interest in an orderly society in which the criminal law is respected and is enforced when it is not respected. Included in that broader public is the portion of the Indigenous community which may not have uniformly shared all the views of the protesters. The sentencing judge’s reasons do not once mention the principles of denunciation or general deterrence, or the various harms caused by the respondent as described in the agreed statement of facts and the victim impact statement entered on consent as exhibits in this matter, or that this sentencing proceeding was required because the respondent violated court orders on multiple occasions. These omissions amount to the error of failing to consider relevant factors and the sentencing judge fell into this error because he erroneously limited the definition of “the public” when he considered whether a discharge in this case was not contrary to the public interest.

[58] On appeal, the respondent does not argue that the public does not include people other than the Haudenosaunee protesters. Instead, he asks me to infer from all the circumstances that the sentencing judge did consider the interests of other members of the public. In other words, the respondent submits that his reasons should be read as though the sentencing judge defined the public more broadly, despite the words he chose to use in those reasons. In this respect, the respondent points to portions of the transcript of the sentencing hearing where the sentencing judge made reference to the interests of others. From this, the respondent reasons that the sentencing judge must be taken to have considered these disparate views.

[59] For two reasons, I cannot accept this argument. First, it flies in the face of the explicit and unambiguous words the sentencing judge chose when delivering his conclusions: “Therefore, the public are the Haudenosaunee people.” Second, the transcript excerpts upon which the respondent relies show that the sentencing judge considered from the beginning that this matter turned on the definition of the phrase “the public interest” and that it was his task to choose which community’s interest should govern: the Haudenosaunee, the community at large, or a combination of both. On the first day of the sentencing hearing, the sentencing judge said as follows in an exchange with counsel (emphasis added):

…I get a distinct impression what this case is about. All right. This is about which community is affected here and whether the test that I need to turn my mind to in determining whether a conditional discharge, which is what your argument’s going to be, whose community this particular individual serves or sees that he serves, and is it in that community’s or contrary to that community’s interest that a conditional discharge be granted.

[60] Similarly, on the third day of the hearing, the sentencing judge said the following:

[If] we start with first principles, we look at what s. 730 of the Code talks about. It says you can consider a discharge if it is considered to be in the best interest of the accused and not contrary to the public interest. And so the Court’s grappling with this notion about who is the public in this particular case. Is it the settler community, the Haudenosaunee community or a combination thereof? What is in the best interest of the community? I leave that for your consideration. I’m going to now segue into the Court’s expectation on argument. Mr. Frost and Mr. Settimi, obviously the watch word in Section 730 is not contrary to the public interest, and as I indicated earlier who is the public that we’re talking about in the provisions of Section 730? Should a sentence not be contrary to the public as viewed from the settler community, the Haudenosaunee community or a combination of both? Who is the public interest that we’re acting not to be contrary to? Because I think I need to have that question answered before I can make a determination as to whether a discharge is appropriate.

[61] I note that the sentencing judge repeated this question, and its three possible answers, at the opening of his reasons for sentence in this case.

[62] In the end, as those reasons reveal, the sentencing judge answered his own question by determining that the public in this case did not include the “settler community” or “a combination of both” that community and the Haudenosaunee, it included the Haudenosaunee people only. This was, in my view, an error in principle. The relevant public in this case included the Haudenosaunee to be sure, but not to the exclusion of others.

[63] The last points I make with respect to this ground of appeal relate to the sentencing judge’s decision to “rely on the application of Haudenosaunee law” and his conclusion that the Haudenosaunee “community would not conclude [the respondent’s] actions in protecting their land was not in their public interest.” With respect to the first of these comments, I take no issue with the sentencing judge taking into account Haudenosaunee law and concluding that the respondent was acting in the tradition of a land protector, but it is far from clear to me how that law was otherwise applied in this case. I do not read anything in Prof. Jacobs’ evidence about Haudenosaunee law which required the result reached by the court in this case, or which provided guidance about how to impose an appropriate sentence in any matter, let alone this one. Her very learned testimony provided important context for the respondent’s actions – which context helped to justify the imposition of a lenient sentence in this case [4] – but it did not support the conclusion that the public interest excluded any particular group.

[64] With respect to the second quoted comment, the sentence reveals that the sentencing judge misapplied the public interest part of the test for a discharge. The question is not whether the criminal conduct of the accused was or was not in the public interest, as he suggests. Rather, the question is whether a discharge is or is not contrary to the public interest. The respondent’s criminal conduct, as I have said, took place in a context which will cause some to regard it as laudable, or excusable, or of limited seriousness. While the seriousness of the offence is clearly relevant to whether a discharge should be ordered, it is not the only consideration. The manner in which the sentencing judge formulated the question prevented him from taking into account those other considerations. I refer to the observations I made above that the respondent pleaded guilty to criminal offences. The criminality of his conduct is not in issue here. Criminal conduct is, by definition, not in the public interest.

The appropriate sentence

[65] Having found two errors in principle and the failure to consider relevant factors, it falls to me to determine a fit sentence.

[66] I agree with the Crown that a fit result in this case was a suspended sentence with the probationary conditions which the Crown proposed. In my view, a discharge was not properly available to the respondent both because such a disposition was not in his best interests and because it was contrary to the public interest.

[67] I start this part of my reasons, however, by noting that the historical context for the respondent’s conduct resulted in the agreement of the parties that the sentence imposed should be a lenient one. The position of the Crown, in favour of a suspended sentence, reflects this reality, which was also well-captured in the submissions of the respondent’s counsel before the sentencing judge:

[The] public interest is best served through reconciliation in this court through a gesture by this court, on the one hand condemning [the respondent’s] actions. We have to follow court orders. It’s a country of laws and rules. We are all expected to follow those laws and rules. But on the other hand, an acknowledgement that what informed his conduct was born by injustice and historical injustice and the idea that this Court acknowledges that, that they don’t want to see this happening again, it’s unacceptable that it’s happening, it’s massively disrupting, but the reason why they’re doing it, the frustration, the culmination of hundreds of years of frustration, the fact that they have such limited recourse in the Canadian courts, limited recourse in the public domain and this, the protest is how they acted.

[68] Since the respondent sought a conditional discharge, I am required to consider whether that disposition is in his interests and whether it is contrary to the public interest.

[69] I agree with the Crown that a person with a criminal record is typically not a candidate for a discharge, as discussed in judgments referred to earlier in these reasons. But I accept the submission of the respondent that in this case the record of the respondent might have been overlooked, given its dated nature, given that much or all of it was incurred while he was abusing drugs and alcohol, and given his substantial effort to be and remain sober since that time.

[70] However, other factors relevant to an assessment of the best interests of the respondent militate against a discharge. In particular, the cases uniformly warn against ordering a discharge where specific deterrence is a concern. In this case, specific deterrence is an obvious concern. The respondent testified that he would not hesitate to act again as he did should the same circumstances present themselves, and the sentencing judge accepted that evidence. As Arnup J.A. wrote in Sanchez-Pino, a discharge is in the best interests of an accused person where “deterrence of the offender himself is not a relevant consideration.” Here, it is a relevant consideration.

[71] As for the public interest, general deterrence, denunciation, the seriousness of the offence, its duration and repetition, the effects of the conduct on the community as described in the agreed statement of facts and victim impact statement, and the fact that the respondent was in repeated violation of his undertakings and the injunction order, [5] are all relevant considerations. In my view, all these factors weigh against a discharge, and all of them taken together outweigh the respondent’s righteous motivations, especially given his frankly expressed willingness to offend again. In other words, these factors lead to the conclusion that a discharge in this case was contrary to the public interest, and therefore could not be ordered.

[72] The Supreme Court of Canada has instructed that sentencing decisions in cases involving Indigenous offenders must be responsive to the needs and perspectives of Indigenous people: Regina v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 74. The conclusions I have reached in this case do not ignore the realities of the history and lingering effects of the treatment of Indigenous persons in Canada, or the values of Indigenous communities respecting sentencing. On the contrary, absent those realities and values, Crown counsel would have been justified in proposing, and the court would have been justified in imposing, a much more significant penalty than a suspended sentence. Instead, a suspended sentence, which is among the least severe of penalties available, is advanced by the Crown and should have been imposed in the court below given that it strikes the appropriate balance between, on the one hand, the seriousness of the offence and the need for deterrence, and, on the other hand, the historical context which allows for a full understanding of the respondent’s motivations (see Nelson, at paras. 56–57).

[73] Moreover, I agree with the Crown that probation on the terms it proposed should have been ordered.

[74] However, counsel for the respondent argues in the alternative that, should I conclude as I have that the Crown’s appeal be allowed, I ought to stay the execution of any sentence I order. In this respect he notes the considerable passage of time since the relevant events in 2020 and 2021, which were followed by a lengthy sentencing process which unfolded over a period of longer than seven months ending in late June of 2023. During that time, the respondent was subject to conditions which mirror the conditions the Crown requests now. Since the sentencing judge’s decision in this matter, there has been the passage of more time to get to the hearing of this appeal in 2024. During none of this time has the respondent reoffended. The Crown did not suggest otherwise.

[75] I agree that in these circumstances there is little point in imposing a suspended sentence and probation on the respondent now, so long after the fact. The respondent’s long engagement in this litigation, the fact that he has already spent a considerable period under similar conditions, and the fact that the result of this appeal is that a conviction will be registered on the respondent’s record, all satisfy me that the needs of both specific and general deterrence are satisfied in this case and that the execution of the suspended sentence may be stayed permanently: see Regina v. Smickle, 2014 ONCA 49, at para. 21; Regina v. Shi, 2015 ONCA 646, at paras. 14–15. With respect to specific deterrence, a consequence of the conclusion I have reached is that the discharge previously ordered will be vacated, and in its place a conviction will be substituted. The inclusion of a conviction on the respondent’s record means that, should the respondent commit similar offences in future, this conviction will be taken into account and treated as an aggravating factor by future sentencing judges. This should act as a specific deterrent to the respondent.

[76] Accordingly, the Crown’s appeal is allowed. A conviction is entered, a suspended sentence with probation on the following conditions: (1) the statutory terms in s. 732.1(2) of the Code; (2) that the respondent not attend at 1535 McKenzie Road, Caledonia; and (3) that the accused not participate in any unlawful protest or demonstration, is ordered, but the execution of that sentence is stayed permanently.

I.R. Smith J.

Released: October 10, 2024

Footnotes

[1] In the document “Land Rights, A Global Solution for the Six Nations of the Grand River,” the Two Row Wampum is described as follows: “The pattern of the belt consists of two rows of purple wampum beads against a background of white beads. The purple beads signify the course of two vessels – an Indigenous canoe and a European ship – travelling down the river of life together, parallel but never touching. The three white stripes denote peace, friendship, and respect.”

[2] See, for example, Regina v. Elsharawy (1997), 119 C.C.C. (3d) 565 (Nfld. C.A.), at para. 3.

[3] When Crown counsel asked whether the respondent would “do the exact same thing” if a developer attempted to develop another piece of land, the respondent answered: “Sure. Absolutely I would.” When asked if the sentencing proceedings would have any impact on his decision-making in this respect, the respondent answered “No.”

[4] I note that this is how the evidence of the expert witnesses was deployed by counsel for the respondent when he made his sentencing submissions in the court below.

[5] Although I believe it should be self-evident, I add that the injunction order ought to have been respected until it was overturned on appeal.