This week’s top three summaries: R v Runions, 2023 ABCA 29: #dangerous off’dr sentence, R v LL, 2023 ONCA 52: 11(b) #jurisdiction, and R v Crier, 2023 ABCA 26: #sentence error Gladue, 1st off’dr, rehab.
This week’s top case deals with sentencing issues. For great general reference on the law of sentencing, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Sentencing: Principles and Practice
By Danielle Robitaille & Erin Winocur
R v Runions, 2023 ABCA 29
[January 30, 2023] Sentencing: Dangerous Offender Proceedings – Distinction of Designation Stage from Need for Indeterminate Sentence [Strekaf, Feehan, and Ho JJ.A.]
AUTHOR’S NOTE: In order to designate someone a dangerous offender, a sentencing judge must (amongst other things) determine that the person both poses a high likelihood of harmful recidivism and that his or her conduct is intractable (ie. behaviour the offender is unable to surmount). At the sentencing stage, to give an indeterminate sentence, the judge must be satisfied that there is no lesser measure that will adequately protect the public against the commission of murder or a serious personal injury offence. A finding of intractability cannot determine the need for an indeterminate sentence. A thorough inquiry into the possibility of eventual control in the community is necessary for the judge to find the “fittest” sentence. Here, the ABCA found the trial judge’s reasons for imposing an indeterminate sentence were at core based reliance on the expert’s evidence that led to a finding of intractability. This was an error that led the Appeal Court to order the matter back for re-sentencing.
The Court:
I. Introduction
[1] The appellant pleaded guilty to aggravated assault under s 268 of the Criminal Code, arising out of an unprovoked and vicious attack in which he slashed a machete into the neck of the complainant. He also pleaded guilty to a further count of breaching an undertaking given to a police officer not to be in possession of a weapon (s 145(5.1)). In a detailed written judgment, the sentencing judge concluded that the appellant was a dangerous offender pursuant to s 753(1) and imposed a sentence of penitentiary detention for an indeterminate period pursuant to s 753(4)(a) and (4.1): R v Runions, 2021 ABQB 67.
[2] The appellant does not dispute the finding that he was a dangerous offender but appeals his indeterminate sentence.
[3] The appeal is allowed for the reasons that follow.
II. Background Facts
[4] The offence precipitating the dangerous offender designation and sentence occurred on July 20, 2017, after an unprovoked attack that likely would have been fatal but for the quick medical intervention of a bystander. At the time of the attack, the appellant was on judicial interim release and bound by the terms of an undertaking, which included a prohibition on possessing a weapon.
[5] The attack occurred after the appellant and an acquaintance met with the complainant and noticed he was wearing a gold chain. The appellant told the complainant he liked the chain and asked if he was interested in selling it. After the complainant said no and placed the chain in his pocket, the three men travelled a short distance together into an alley. In the alley, the complainant heard a firearm click and turned around to see the acquaintance brandishing an imitation gun and the appellant holding a large machete. Believing he would be robbed, the complainant attempted to move but the appellant quickly slashed the machete into the left side of his neck. The complainant ran down the back alley, yelling for help and tightly applying pressure to his neck. A passerby provided prompt medical assistance to stem the loss of blood. The complainant was transported to the hospital in life-threatening condition after losing two litres of blood. He immediately underwent surgery and received a blood transfusion.
[6] The stab wound was severe and life-threatening, and had a profound impact on the complainant, who was left with impaired facial functioning and had to relearn basic functions such as eating and speaking….
[7] In addition to the predicate offence, the appellant had several convictions between 2009 and 2018, among which were minor summary convictions such as mischief and theft under. However, the Crown relied on the following offences to establish a pattern of behaviour:
- 2008: assault, s 266
- 2010: breaking and entering, s 348(1)
- 2012: assault, s 266
- 2017 (July 1): aggravated assault, s 268
- 2017 (July 30): aggravated assault, s 268
- 2017 (July 20): aggravated assault, 268 (predicate offence)
Sentencing Decision
[8] The sentencing judge designated the appellant a dangerous offender and sentenced him to an indeterminate sentence.
[9] The statutory scheme governing dangerous offender sentencing has two steps. First, the offender must be designated as a dangerous offender under s 753(1) of the Criminal Code. Second, the sentencing judge must determine the appropriate sentence under ss 753(4) and (4.1): R v Zoe, 2020 NWTCA 1 at para 20.
[10] The designation stage has both backward-looking and forward-looking components. The judge must look at the past behaviour of the offender and determine whether the conduct falls within ss 753(1)(a) or 753(1)(b) of the Criminal Code. These sections require that the underlying offence be a serious personal injury offence and the offender be a threat based on evidence:
- of a pattern of repetitive behaviour and likelihood of death or injury to others if not restrained (s 753(1)(a)(i));
- of a pattern of aggressive behaviour and a substantial degree of indifference to the reasonably foreseeable consequences of such behaviour (s 753(1)(a)(ii));
- any brutal behaviour which indicates that the offender is unlikely to be inhibited by normal standards of behavioural restraint in the future (s 753(1)(a)(iii));
-
a pattern of sexual offences that demonstrates a failure to control sexual impulses in the past and the likelihood of causing injury, pain, or other evil through failure to control sexual impulses in the future (s 753(1)(b)).
(Zoe at para 26)
[11] Second, the sentencing judge must conduct a prospective assessment of dangerousness and risk. The judge must be satisfied that the offender “poses a high likelihood of harmful recidivism and that his or her conduct is intractable… meaning behaviour that the offender is unable to surmount”: R v Boutilier, 2017 SCC 64 at para 27.
[12] Given the appellant’s past offences, including the predicate offence, the sentencing judge found there was a history of repetitive and increasingly violent behaviour that established a pattern under s 753(1)(a)(i). The appellant does not contest that finding. The sentencing judge noted that there was little to no provocation precipitating the appellant’s violent attacks. The sentencing judge was satisfied beyond a reasonable doubt that the pattern of repetitive aggressive behaviour involving a likelihood of death or injury, including the predicate offence, demonstrated a failure by the appellant to restrain his behaviour. There was a likelihood that this aggressive behaviour would continue in the future.
[15] Several factors led to the finding of intractability, including the appellant’s lack of candour and truthfulness. The sentencing judge found the appellant to be a “chronically unreliable narrator”, making it impossible to assess whether treatment was effective. The appellant was dishonest about a range of matters, from innocuous things such as speaking French or Russian, to fabricating hallucinations and claiming to have committed brutal acts of violence. Furthermore, the sentencing judge found the appellant’s false claims of perpetuating greater amounts of violence reflected a deeply seated antisocial view that values and normalizes violence.
[17] The sentencing judge accepted Ms. Nessman’s assessment finding the appellant to be at very high risk for general recidivism (based on static factors), at high risk for violently reoffending (based on static and dynamic factors), and meeting the criteria for antisocial and borderline personality disorders. Ms. Nessman was not confident that the appellant could be managed in the community.
[18] Finally, the sentencing judge found the appellant’s history of breaching parole conditions and sustained substance abuse pose a high risk for the future and contribute to his intractability.
[19] The threat analysis concluded with the sentencing judge finding the appellant was substantially indifferent to the reasonably foreseeable consequences to his victims in relation to the predicate offence and other pattern offences. These factors weighed towards a high risk of recidivism and pathological intractability. The sentencing judge declared the appellant to be a dangerous offender.
[22] After reiterating some evidence of the appellant’s high risk for violent recidivism, the sentencing judge held an indeterminate sentence is necessary as there is “no realistic possibility of eventual control of Mr. Runions in the community”: Runions at paras 610-611.
III. Standard of Review
[25] The impact of an indeterminate sentence on an offender’s liberty requires appellate courts to apply a more robust standard of review for dangerous offender sentencing appeals: R v Natomagan, 2022 ABCA 48 at para 83. However, this standard is not equivalent to a trial de novo, and the findings of fact of sentencing judges must be afforded deference: Natomagan at para 83.
IV. Dangerous Offender Sentencing Analysis
Applicable Law
[26] Once an offender is declared to be a dangerous offender, s 753(4) sets out the mandatory sentencing options, which require that a dangerous offender “shall” receive one of the following sentences:
(a) a sentence of indeterminate detention in a penitentiary;
(b) the appropriate sentence for the underlying offence (minimum 2 years in a penitentiary) plus a long-term supervision order for a maximum of 10 years; or
(c) a sentence applying standard sentencing principles for the offence for which the offender has been convicted.
[27] Section 753(4.1) mandates an indeterminate penitentiary sentence unless the court “is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.”
[28] In Boutilier, the Supreme Court endorsed the framework outlined by Justice Tuck-Jackson in R v Crowe when sentencing under s 753(4.1) of the Criminal Code (at para 70):
First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed. If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time. Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required.
[29] The effect of ss 753(4) and (4.1) is that there is no presumption of an indeterminate sentence. Instead, a sentencing judge must “conduct a thorough inquiry into the possibility of control in the community and consider all of the evidence to determine the fittest sentence” and the least intrusive sentence required should be imposed: Zoe at para 32; Boutilier at paras 60-69.
[30] …en the first and second stages of analysis, but the issue before the court is fundamentally different. As stated in Boutilier at para 31:
The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence.
[31] The penalty analysis focuses on what is necessary to adequately protect the public while bearing in mind that the least restrictive penalties should be exhausted prior to arriving at an indeterminate sentence: Boutilier at para 69. Given the overlap between evidence at the two stages of a dangerous offender sentencing, it is particularly important that the penalty analysis consider whether community management mechanisms and future treatment are— or are not— adequate to manage the risk.
Application to the Sentencing Decision
[32] Upon reviewing the reasons of the sentencing judge, we have concluded that he did not conduct the necessary analysis at the penalty stage. As set out in Boutilier, the test at the penalty stage is distinct from the designation stage, and it requires a robust review of the evidence to assess the necessary sentence to manage the established threat. The analysis must focus on prospective treatment options and community control mechanisms to determine if a dangerous offender can first be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence.
[33] The sentencing judge recognized that s 753(4.1) does not impose an onus or rebuttable presumption for indeterminate detention and that the court “must impose the least intrusive sentence required to reduce Mr. Runions’ public safety threat to an acceptable level … (and) must conduct an individualized assessment of all relevant circumstances and consider the sentencing objectives set out in ss.753(4), (4.1) and 718-718.2, which include those developed for Indigenous offenders”: Runions at paras 583-584.
[34] However, the crux of the reasons for imposing an indeterminate sentence came down to reliance on the evidence of Dr Hashman, which had led to the finding of intractability at the designation stage and the conclusion that the appellant is a dangerous offender (at paras 610-11):
…Dr. Hashman opined that the duration and severity of his substance abuse disorder, his antisocial personality disorder, and his disingenuous presentation with significant symptom exaggeration was such that Mr. Runions’ prognosis is considered to be a high risk for violent recidivism….
I agree with Dr. Hashman’s conclusions, and as I have considered each of Boutilier’s stages of analysis, I conclude that there is no realistic possibility of eventual control of Mr. Runions in the community. All of the evidence, including the Gladue factors, do not provide me with any comfort that there is a reasonable expectation that Mr. Runions can be managed in the community. There is no less restrictive means by which the public can be protected.
The reasons do not adequately address evidence relevant to community control or explain why the appellant could not be managed in the community.
[35] In upholding the constitutionality of s 753(4.1), Boutilier directed, at para 68:
Under s. 753(4.1), the sentencing judge is under the obligation to conduct a “thorough inquiry” into the possibility of control in the community: Johnson, at para. 50. The judge considers all the evidence presented during the hearing in order to determine the fittest sentence for the offender:
The judge should . . . take into account all the evidence available before making a determination, which will inevitably require a thorough investigation. Once such an investigation has been conducted, it will be up to the judge to determine the sentence; there is no obligation on any of the parties to prove on any standard the adequate sentence one way or another.
[36] A new inquiry and a robust assessment of the relevant evidence is required at the penalty stage. Reliance on the rationale behind the finding of intractability at the designation stage does not satisfy the requirement for a thorough inquiry into the possibility of control in the community contemplated in Boutilier and risks a presumptive indeterminate sentence for dangerous offenders. A distinct analysis at the penalty stage will include consideration of the relevant evidence and firstly the possibility of control in the community, and exhaust determinate sentencing options before arriving at an indeterminate sentence.
…As Boutilier directs, prospective evidence of treatability plays a different role at the penalty stage than at the designation stage (para 45):
The same prospective evidence of treatability plays a different role at the different stages of the judge’s decision-making process. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable: see Neuberger, at p. 7-1, by M. Henschel. However, even where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public.
The Crown’s position risks collapsing the inquiry required at the penalty stage into the inquiry at the designation stage.
[38] …While the sentencing judge’s decision to accept Dr. Hashman’s opinion is afforded deference, the sentencing judge’s inquiry at the penalty stage cannot end there, nor can the inquiry merely adopt the earlier conclusion about the threat posed by the appellant. The sentencing judge was required to explain why the less severe sanctions would not adequately protect the public. He failed to provide any reasons justifying the indeterminate sentence in place of the less severe measures and failed to grapple with the evidence regarding the scope of treatment options available to the appellant.
[39] Evidence relating to how an offender may be monitored and controlled in the community is particularly salient at the penalty stage. For instance, in this case, the analysis did not address the evidence of Mr. Beasley, a community supervision parole officer with Correction Services Canada, to the following effect:
- Dangerous offenders are assigned to an experienced parole officer, and there is a great deal of scrutiny of both the offender and the work of the parole officer assigned to monitor the dangerous offender.
- Strict conditions around substance abuse can be imposed, including treatment while in custody, followed up through the Community Residential Facility (“CRF”) half- way houses and other residential treatment programming. Ongoing treatment may be coupled with an order not to use drugs or associate with certain individuals and more frequent urinalysis.
- Dangerous offenders can receive specialized programing for violence while incarcerated and if paroled, they can receive maintenance components for the treatment received, including further referrals and access to a psychologist.
- Special conditions can be put in place to prohibit association with persons involved in the criminal subculture, including specific gangs. There are special monitoring procedures for prohibiting gang association, including regular collateral contact with friends and family and “very good communications with the police – including the Calgary Police ‘guns and gangs’ unit.”
- Mental health management in the community includes a holistic approach involving supportive CRF residency conditions and ensuring the offender has their basic needs met, such as food and shelter.
- Someone newly released on a long-term supervision order would need to meet with him for the first three months on an “intensive” basis which would mean two contacts per week or eight contacts per month. Contact may exceed this amount, and there would also be contact with collaterals.
- Dangerous offenders are subject to supervision once released for the rest of their lives.
-
If there is a violation, the parole supervisor must determine if the risk remains manageable. A parolee is continuously monitored, and there is “no hesitation whatsoever in returning someone to custody” if the risk is not manageable.
[40] The evidence of Mr Beasley speaks to community management mechanisms in place for the appellant’s offender profile and appears to be relevant to some of the concerns said to underpin the need for an indeterminate sentence, such as persistent substance abuse, gang affiliation, repeated violence, and poor compliance with release conditions. There was also evidence that the appellant had taken steps to remove himself from gangs while incarcerated, that he was reclassified from maximum to medium security, and that he has not yet received any treatment for substance abuse. Assessment of this evidence would also form part of a thorough inquiry into future rehabilitation.
Gladue factors in Dangerous Offender Sentencing
[42] Courts should be mindful when applying Gladue considerations at the second stage of a dangerous offender sentencing for Indigenous offenders. In particular, an important consideration at this stage is “the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection”: Gladue at para 66; R v Ipeelee, 2012 SCC 13 at para 59.
[43] …We recognize that public safety is paramount and Gladue factors may play a more limited role at the dangerous offender designation stage. However, Gladue considerations are highly relevant at the penalty stage when considering how culturally sensitive programming might enhance future rehabilitation and community control options: Zoe at paras 57-58….
[44] Here, the sentencing judge noted the various treatment options available to the appellant that emphasize Indigenous healing through traditional and cultural means (paras 544 and 578-579). At the designation stage, the sentencing judge concluded that these treatment options did not alter the appellant’s high risk of recidivism and intractability. At the penalty stage, the sentencing judge found that Gladue factors did not reduce the appellant’s overall blameworthiness or gravity of the predicate offence (para 606). But the sentencing judge failed to turn his mind to whether Gladue considerations could have a positive effect and improve the prospects of successfully managing the risk: Zoe at para 58 citing R v Moise, 2015 SKCA 39 at para 24.
V. Conclusion
[45] The appeal is allowed. The matter is remitted back to the sentencing judge pursuant to s 759(3)(ii) of the Criminal Code to reconsider the sentence to be imposed on the appellant….
R v LL, 2023 ONCA 52
[January 26, 2023] Charter 11(b) – Prior Appearance Comments by Judges [Grant Huscroft, Gary Trotter, and A. Harvison Young JJ.A.]
AUTHOR’S NOTE: There are many appearances and sometimes applications before a matter ultimately comes before a judge deciding whether a matter has been delayed so much that the 11(b) Charter right to a trial within a reasonable time has been breach. This case authoritatively decides what impact comments of those judges can have on the ultimate 11(b) application judge. The answer is: none. It is a matter akin to plain jurisdiction. All prior comments, including ones made when deciding issues of relevance to the delay application cannot apportion delay or decide the question of apportionment of the delay. Here, a judge deciding a disclosure motion (in favour of the defence) commented that the Defence “could and should have made its election without the disclosure”. Despite this the application judge decided the disclosure was in fact important to making strategic decisions about the trial such as the election. The Crown appealed and the Court of Appeal ruled that all players in the system have to stay in their lanes – apportionment of delay was not the role of the disclosure application judge.
Introduction
[1] The Crown appeals an order staying proceedings against the respondent based on a breach of his right to a trial within a reasonable time as guaranteed by s. 11(b) of the Charter.
[3] There were two main issues before the application judge: (1) did the respondent act reasonably in refusing to elect his mode of trial until he received disclosure of four occurrence reports and related documents?; and (2) did the COVID-19 pandemic have any impact on the scheduling of this trial?
[4] The application judge found: (1) the respondent’s delayed election was not unreasonable and any consequent delay was not defence delay; and (2) COVID- 19 did not contribute to the delay in getting to trial and ought not to be classified as an exceptional circumstance in the Jordan framework. She found that s. 11(b) had been infringed and imposed a stay of proceedings under s. 24(1) of the Charter.
Background
[6] This prosecution did not get off to a good start. The respondent was charged on August 13, 2020.[1] He made his first appearance on September 18, 2020. It took another three months (roughly four in total), and seven written requests by defence counsel, before the Crown provided basic disclosure to the respondent’s counsel on December 8, 2020. The complainant’s video-taped statement was disclosed on December 9, 2020. There was no explanation of this delay.
[7] The disputed period of delay was between December 9, 2020 (when basic disclosure was made) and May 7, 2021 (when the respondent made his election). When basic disclosure was provided, defence counsel responded by requesting further disclosure of four occurrence reports and other documents relating to incidents between his client and the complainant. The respondent’s position was that this material was relevant to his election as to the mode of trial and he would not elect until receiving the documents.
[8] The Crown was not initially responsive to the requests for the additional disclosure. Moreover, it did not advise the defence for over two months that it was taking the position that the state-created occurrence reports and related documents, prepared by the Toronto Police Service, were third party records. This would turn out to be wrong.
[9] When the Crown’s position finally crystallized, the respondent made a disclosure motion in the Superior Court. Justice Akhtar ruled that the requested documents were first party records and primary disclosure: R. v. L.L., 2021 ONSC 3337. But he expressed disapproval of the manner in which defence counsel proceeded. After referring to Jordan, he said, at para. 13:
Here, the defence could and should have made its election without the disclosure it now seeks to obtain. There was no reason to delay matters pending the outcome of this application. Accordingly, in my view, that election should be made by or on the next appearance date.
Analysis
[15] Turning to the first ground of appeal, given the application judge’s factual findings, she was correct in finding that the period of delay prior to the election was not attributable to the defence. As she said:
…However, here the Applicant was not insisting on every piece of disclosure before making an election. It is clear from Mr. Weisberg’s correspondence that once he had the complainant’s video-taped statement, the only other disclosure required to move to a meaningful pre- trial were the occurrence reports….
The requested occurrence reports, in my view, were not trivial in nature. They were not dated. …The investigative records contained information about the interactions of the complainant and the Applicant in the days and weeks leading up to the complainant’s allegations of sexual assault. They also included a statement by the Applicant in relation to these interactions. [Emphasis added.]
[16] The application judge classified the requested materials as, “important first party essential disclosure. They could assist the Applicant to make strategic decisions about the conduct of the trial.”
[18] The Crown also submits that the observation of Akhtar J. on the disclosure motion about the late election should have been given more weight by the application judge, and that it should carry weight in this court. We do not agree. The application judge was not bound by these comments. As she pointed out, Akhtar J. was tasked with determining whether the impugned records should be disclosed. While all players in the criminal justice system must do their part to avoid delay, the question of whether the election should have already been made was not his to decide; it was the application judge’s. We see no error in how she handled this issue. She was correct in finding that this period of delay was not attributable to the defence.
[19] We dismiss this ground of appeal.
[21] At the hearing of the application, the Crown chose to convey his own state of knowledge about the impact of the pandemic on the scheduling of trials at that location. He made the vague submission about the “trickle down” effect of the pandemic on trial scheduling. The application judge drew upon her own knowledge of the culture at the court location where she sits. We see no error in her conclusion that the pandemic had no impact on the scheduling of this case.
Conclusion
[24] The appeal is dismissed.
R v Crier, 2023 ABCA 26
[January 31, 2023] Sentencing: Underemphasis of First Offender Status, Gladue Factors and Rehabilitation is an Error in Principle [Schutz, Antonio, and Ho JJ.A.]
AUTHOR’S NOTE: Failure to account sufficiently in a sentence for some mitigating factors can be an error in principle leading to the sentence being overturned. Here, the sentencing judge failed to reasonably reflect the offender’s youthful first offender status, the impact of intergenerational trauma on his upbringing, and his efforts at rehabilitation prior to sentencing. The Court of Appeal reduced the sentence by a third due to these factors and stayed the remainder of his sentence given his performance on bail pending appeal.
I. Overview
[1] The appellant, Jessie Crier, appeals his 18-month global sentence, plus two years probation, for two offences of uttering death threats against his former domestic partner and her new partner, and a police officer.
[2] The appellant argues that his sentence was demonstrably unfit for a first-time offender who entered guilty pleas, completed rehabilitative programs and had relevant Gladue factors. He further argues that the sentencing judge failed to give appropriate weight to mitigating factors and imposed a jail sentence that was longer than necessary considering the circumstances of the offences and the offender.
[4] For the reasons that follow, the appeal is allowed.
II. Background
[5] In early 2020, the appellant’s relationship with his common law partner ended in criminal charges being laid against the appellant (the “2020 charges”) predating these matters. The two have a child together whom the appellant has not seen since that time as an emergency protection order against the appellant was put into place following the 2020 charges. The appellant began using cocaine following the order and continued to do so until his arrest on these offences more than year later. His former partner now has a new boyfriend and the two have a child together.
[6] In March 2021, the appellant posted disparaging comments about his former partner and the investigating officer on his other charges on the “Father’s Rights Alberta” Facebook page. The messages were seen by Lurleen Hilliard, who messaged the appellant directly about the consequences of such posts. The appellant then sent the following message to Ms Hilliard about his former partner, her new boyfriend, their child and Detective Horchuk of the Edmonton Police Service:
I’m not the same person anymore. I have become dark and hateful and murderous with revenge. I plan every day how to kill them both and take their baby from them. That bitch of a cop Steve Horchuk, too. He let my ex wait a whole week to get a sex kit done so I’m planning to get him or his family, the people he loves like he did to me. I’m going to prison so I’m going to become the most evil, nasty thing these people wanted to create. I’m going to either take my own life or I take theirs. It’s quite simple in my eyes. I have already accepted I will never see my [child] again so I am going out a hero before I turn into a villain. I’m sorry, I understand your wanting to help but I have no intentions of going to Court or prison. I’m going to do what my spirit is telling me is right and then I’m going to either take my own life or theirs. The system did this to me. Made me insane. Yeah, I realize nothing I do will help me. She won. So I am going out loud before I go out.
[7] Ms Hilliard immediately contacted police about the threats and the appellant was arrested within a matter of hours. The appellant admitted to police that he sent the threatening messages but said he would not have followed through with them. A search of the appellant’s phone revealed additional communications in the weeks leading up to his arrest, in which similar threats were made about killing his former partner and her boyfriend and taking their baby.
[8] The appellant ultimately entered guilty pleas on the date set for trial and a Gladue report was prepared. It provided that the appellant was adopted as an infant and raised in Maskwacis near Wetaskiwin by friends of his biological mother whom he has met only recently. His biological father is a Mohawk man from Ontario unknown to the appellant. The appellant’s adopted mother and her family attended residential school where they endured abuse; that physical and mental abuse was passed on to the appellant by his mother during his upbringing. The appellant was also sexually abused by his foster sisters over a number of years when he was child. His father’s family did not approve of the appellant’s adoption because he was “white”, which created tensions in the family and eventually the appellant stopped attending family gatherings. More recently, the appellant has been diagnosed with Borderline Personality Disorder, anti-social behaviour, and has issues with post- traumatic stress and insomnia. The appellant has struggled with suicidal thoughts, and attempted suicide twice in 2020 and early 2021; it remains difficult not being able to see his child.
[9] The appellant was 31 at the time of sentencing and had no prior criminal record. The sentencing court also heard that while in remand, the appellant completed courses on parenting, anger management and release planning through Norquest College, various programs though New Life Ministries, and was released on bail and successfully completed a 56-day residential treatment program. At the time of sentencing, he was gainfully employed in the community.
[10] A victim impact statement from Detective Horchuk was entered before the court describing the impact of the offence on his family including his youngest child who has required therapy and medication to cope with anxiety. The officer had to install a security system, fencing and carried a weapon off-duty….
[11] In oral reasons, the sentencing judge imposed a global sentence of 18 months…
…Further, while noting various mitigating factors, she found that the appellant’s moral culpability remained high, and cited the following aggravating factors:
. . . the prolonged nature of the threats; the fact that they were reduced to writing; the multiple individuals who were threatened by Mr. Crier; the threats were not just to cause bodily harm but to kill; the threats included references to children and family of the complainants; the accused was on release at the time of the threats for serious allegations against one of the complainants; ….
….the threats included threats against a former domestic partner; the threats included threats against a police detective for simply fulfilling his role and his duty in the justice system as a police officer; the threats included an understanding that carrying out the threats would attract a lengthy gaol term and a stated willingness to embrace that gaol term; and the threats have had a long lasting impact on Detective Horchuk’s life and an especially severe impact on the psychological wellbeing of his youngest child.
IV. Analysis
[15] In our view, the trial judge committed errors of principle which had an impact on sentence and justify appellate intervention.
[16] First, insufficient weight was given to this relatively young, first-time offender’s guilty plea, nor was there any reference to the appellant’s various expressions of remorse. While the guilty plea was not at an early stage in the process, it spared the appellant’s former domestic partner and the police officer from testifying and thereby brought some measure of closure to their victimization.
[17] Second, while the sentencing judge cited from the Gladue report and was aware of its content, we are satisfied that the impact of the appellant’s uncontested Gladue factors were not properly reflected in her finding related to his moral blameworthiness. The appellant was raised in a cycle of intergenerational trauma, coupled with the actual physical, sexual, and emotional abuse he reported suffering during childhood. The appellant’s background was one of displacement and abandonment which speak to why, when similar intrafamilial issues arose with the breakdown of the appellant’s common law relationship and the forced separation from his child, he spiraled into addiction and attempted suicide; his sense of desperation was clearly manifested in the anger and threats seen in his posts and writing.
[18] While such threats can never be condoned, we see a strong correlation between the constellation of classic Gladue factors and the antisocial, impulsive and immature method by which the appellant chose to express his feelings. His diminished moral culpability in this regard was not recognized by the sentencing judge, nor reflected in the 18-month sentence imposed.
[19] As this Court stated in R v Swampy, 2017 ABCA 134, at paras 25-26:
… [T]he central purpose of the Gladue analysis is to achieve proportionality….
[20] Similarly, the appellant’s genuine efforts towards rehabilitation, particularly his sustained and hard work since the offences to address the abuse he suffered as a child and to manage his anger and addictions, are not reflected in the sentence imposed. Rather, in our view, the “crushing” effect of the sentence imposed is inconsistent with the efforts of this first-time offender and, if anything, risked derailment of the significant progress the appellant has made.
[21] Restraint ought to have weighed heavily in this matter; yet, the sentence imposed was far from the least restrictive, particularly in respect of the circumstances of this Indigenous appellant: ss 718.2(d) and (e) of the Criminal Code. Further, while the sentencing judge determined that the appellant’s 10-month sentence in respect of each offence ought to be reduced by one month each to account for totality, the consecutive sentences imposed were nevertheless “unduly long or harsh”: s 718.2(c) of the Criminal Code. Further, to the extent that the sentencing judge relied on post-trial sentencing decisions where the offender had a record for violence or committed other offences concurrently, these cases had little precedential value and did not substantively assist in arriving at a fit and proportionate sentence in this case.
[23] In sum, we conclude that over and under-emphasis of relevant factors amounted to an error in principle which had a material impact on the sentence imposed and led to a disproportionate and unfit sentence.
[24] The appeal is allowed. The appellant’s sentence is amended to six months consecutive on each offence, for a global sentence of one year. There is to be no variation of the collateral orders.
[25] Given the Crown’s concession, and our view that the interests of justice are not served by ordering the appellant’s return to custody, there will be no order for the appellant’s surrender into custody. The amended sentence is stayed.
Sentencing: Principles and Practice
By Danielle Robitaille & Erin Winocur
