August 06, 2018
Bélanger, Ruel, Rancourt
Appeal from a sentence. Allowed in part.
The appellant is a member of the Atikamekw of Opticiwan (Obedjiwan) community. She was raised in a dysfunctional family environment marked by alcohol and drug abuse. As a result, the appellant started using these substances when she was 9 years old. When she was 21 years old, she fatally stabbed her father during a family argument while she was highly intoxicated.
Sentencing an Aboriginal offender is governed by the principles established in R. v. Gladue (S.C. Can., 1999-04-23) SOQUIJ AZ-50061963, J.E. 99-881,  1 S.C.R. 688, and confirmed in R. v. Ipeelee (S.C. Can., 2012-03-23), 2012 SCC 13, SOQUIJ AZ-50841754, 2012EXP-1208, J.E. 2012-661,  1 S.C.R. 433, which require the judge to take judicial notice of the systemic or background factors which may have influenced the offender’s moral blameworthiness before considering available sanctions other than imprisonment. The trial judge instead based his sentence on the gravity of the offence as an indication of the appellant’s high degree of moral responsibility, without considering the Aboriginal dimension embodied by the systemic and background factors, even though the evidence established that the act committed resulted from substance abuse related to those factors.
This error in principle impacted the sentence and compromised its reasonableness, which justifies the Court’s intervention. Moreover, the judge did not address the issue of available sanctions in his reasons, even though reparation, rehabilitation and healing measures were recommended in the Gladue Report filed at trial. It was the judge’s duty to do so under s. 718.2(e) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.), regardless of the availability of resources to implement such sanctions. Both the parties and the sentencing judge must seriously analyse the reasonable available sanctions when determining a fit sentence for an Aboriginal offender.
The trial judge’s sentence of 6 years’ detention does not respect the principle of proportionality. The problems endemic in the community, the sequelae due to her parents and grandparents having attended residential schools, and the family environment in which she was raised constitute background and systemic factors that reduce the appellant’s degree of moral blameworthiness. Given that the resources to treat Aboriginal offenders are scarce, and given the absence of any proposed available sanctions that will ensure the sentence and conditions of probation satisfy Aboriginal principles of restorative justice, a 2-year prison sentence is fit, after which the appellant will be subject, under s. 731(1)(b) Cr. C., to 3 years of probation, which will ensure both her rehabilitation and the safety of the community.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca.
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