The Defence Toolkit – June 21, 2025: Crown-led Sexual History

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Opinion Evidence | Sentencing Principles | Sexual History s 276

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Posted On 21 June 2025

This week’s top three summaries: R v Kinamore, 2025 SCC 19: Crown s.276 and #sexual inactivity, R v Chiarelli, 2025 ONCA 428: lay #trafficking opinion, R v Attachie, 2025 BCCA 183: Nahanee and GP #mitigation

R v Kinamore, 2025 SCC 19

[June 13, 2025] Sexual History Evidence: Crown Led Evidence and Sexual Inactivity [Reasons by Wagner C.J. with Karatkatsanis, Côté, Rowe, Martin, Kaiser, Jamal, O’Bonsawin and Moreau JJ. concurring]

AUTHOR’S NOTE: This case harmonizes the common law rules on Crown-led sexual history evidence with the statutory regime under s. 276, which governs the Defence’s use of such evidence. The Court confirmed that the Crown must seek advance judicial authorization before introducing sexual history evidence related to the complainant, in a process that mirrors the s. 276 application required of the Defence. Importantly, the Court clarified that evidence of sexual inactivity—such as virginity or expressions of disinterest in sexual activity with the accused—also falls within the scope of s. 276. As a result, the Crown cannot introduce prior statements of disinterest in sex with the accused without first obtaining the Court’s approval.

I. [1] Introduction

[2] The first issue is whether evidence of a complainant’s sexual inactivity constitutes a form of presumptively inadmissible evidence under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, and the analogous common law rules governing Crown led evidence of a complainant’s sexual history. In R. v. R.V., 2019 SCC 41, [2019] 3 2025 SCC 19 (CanLII) S.C.R. 237, this Court explicitly left this question open but expressed doubt about appellate authority that has held that such evidence is not captured by these exclusionary rules (para. 81). In this case, I confirm that sexual inactivity evidence is indeed presumptively inadmissible under s. 276 and the common law given that it forms part of a complainant’s sexual history and can evoke distinct myths and stereotypes that these rules seek to eliminate.[Emphasis by PJM]

[3] The second issue relates to the substantive and procedural requirements that apply to Crown-led evidence of a complainant’s sexual history. Since R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, this Court has held that the common law treats this evidence as presumptively inadmissible and that the Crown must follow the principles and procedure articulated in R. v. Seaboyer, [1991] 2 S.C.R. 577. However, little explanation has been provided by this Court as to how the Seaboyer principles and procedure can be transposed to Crown-led evidence given that they were developed with defence-led evidence in mind. As well, limited attention has been devoted to whether the common law procedure articulated in Seaboyer differs significantly from the procedural requirements found in the statutory s. 276 regime. Subject only to two necessary modifications, which I discuss below, the common law rules on substantive admissibility and procedure should align with those that apply to defence-led evidence under s. 276. A harmonized regime for the admission of sexual history evidence will best allow courts to perform their important evidentiary gatekeeping function, without creating the undue complication that parallel regimes could cause.[Emphasis by PJM]

[4] During the judge-alone sexual assault trial in this case, the Crown introduced evidence of social media communications between the complainant and the accused, Dustin Kinamore, that were sent over a month before the alleged assault. The evidence was entered as a marked exhibit with no voir dire. Some of these messages were explicitly sexual in nature, while others involved references to the complainant’s virginity or indications by the complainant of her disinterest in having a sexual relationship with Mr. Kinamore. The Crown and the defence relied on these messages when examining both the complainant and Mr. Kinamore, creating viva voce evidence about them in the process. The trial judge relied heavily on this evidence in her reasons for finding Mr. Kinamore guilty of sexual assault. The Court of Appeal found no error in the trial judge’s failure to hold a voir dire.

[5] In my view, the social media communications that included discussions of the complainant’s sexual activity and inactivity were presumptively inadmissible sexual history evidence. Accordingly, the trial judge erred in failing to hold a voir dire to determine the admissibility of the evidence. Since this sexual history evidence played a material role in the trial judge’s reasons, this evidentiary error was not harmless and the curative proviso cannot be applied.

[6] II. I would therefore allow the appeal, quash the conviction, and order a new trial.

[10] The social media messages between the parties were key pieces of evidence at trial. The Crown introduced screenshots of the messages that were exchanged between Mr. Kinamore and the complainant in May and June 2020 as a marked exhibit without a voir dire. These screenshots had come from the complainant after the police requested them. In her testimony, the complainant acknowledged that the screenshots did not contain all of the messages exchanged between her and Mr. Kinamore. She had deleted her social media account by the time the police requested that she retrieve all of the messages.

[11] Some of the messages were explicitly sexual in nature….

[12] The social media messages included many conversations in which the complainant repeatedly indicated a disinterest in a sexual relationship with Mr. Kinamore. Some of these discussions referenced the complainant’s virginity….

[14] Both the Crown and the defence relied on this evidence for different purposes. During closing submissions, Crown counsel relied on the complainant’s virginity and prior messages showing a disinterest in a sexual relationship to suggest that Mr. Kinamore’s version of events was implausible. In contrast, the defence argued that some of the complainant’s prior messages contradicted the complainant’s testimony that she was not sexually interested in Mr. Kinamore.

IV. Issues

[19] Mr. Kinamore renews both of these arguments on appeal to this Court. The first issue is whether the trial judge erred in admitting, without a voir dire, the parties’ social media messages because they constitute presumptively inadmissible evidence of the complainant’s sexual history. The Crown concedes that the trial judge erred by admitting the messages that involve explicit sexual conversations without a voir dire (R.F., at para. 85)….

V. Analysis

A. Principles Governing the Admissibility of Sexual History Evidence

(1) Defence-Led Sexual History Evidence

[28] The Seaboyer guidelines can be summarized as follows: (1) in a trial for a sexual offence, evidence of a complainant’s prior sexual conduct is not admissible solely to support twin-myth reasoning; (2) evidence of a complainant’s prior sexual conduct may be admissible for relevant purposes if its probative value is not substantially outweighed by its prejudicial effect; (3) the admissibility of sexual conduct evidence must be established on a voir dire (which may be held in camera) by affidavit or the testimony of the accused or third parties; and (4) if evidence of a complainant’s sexual conduct is admitted in a jury trial, the trial judge should warn the jury against twin-myth reasoning (pp. 634-36).

[29] This guidance subsequently came to be reflected in s. 276 of the Criminal Code (R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 20; see also Desrosiers and Beausoleil-Allard, at p. 199). This Court has stated that the s. 276 regime has three purposes: (1) to protect the integrity of the trial by excluding irrelevant and misleading evidence; (2) to protect an accused’s right to a fair trial; and (3) to encourage the reporting of sexual offences by protecting the security, privacy, and equality interests of complainants (Barton, at para. 58; Darrach, at para. 25; see also R. v. Kruk, 2024 SCC 7, at para. 40).

[32] In 2018, Parliament added s. 276(4) to clarify that sexual activity for the purposes of this section includes “any communication made for a sexual purpose or whose content is of a sexual nature” (An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29, s. 21(3)). As this Court recognized in R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3, this amendment was introduced within a larger package of Criminal Code reforms that were “designed to protect the interests of complainants in their own private records” (para. 3).

(2) Crown-Led Sexual History Evidence

[33] While s. 276(1) prohibits both the Crown and the accused from adducing evidence of a complainant’s sexual history for twin-myth purposes, s. 276(2) applies exclusively to evidence tendered by the accused. In Barton, this Court clarified that the common law principles articulated in Seaboyer regarding evidence of a complainant’s sexual history continue to apply to the Crown in proceedings in respect of a listed offence under s. 276(1) (para. 80). The common law therefore treats Crown-led sexual history evidence as presumptively inadmissible in these proceedings and requires the Crown to bring an application before a trial judge to determine its admissibility on a voir dire (J.J., at para. 74).

[38]….Specifically, it was held in Seaboyer that, in order for sexual history evidence to be admitted, its probative value must not be “substantially outweighed” by its prejudicial effect (p. 635). This reflects the common law standard governing the admissibility of defence-led evidence generally, which is specifically calibrated to respect an accused’s right to a fair trial (see R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 19). By contrast, Crown led evidence is inadmissible where its prejudicial effect simply outweighs its probative value. This is the applicable standard for admitting Crown-led sexual history evidence. However, where the Crown and the defence seek to rely on the same evidence, the standard for defence-led evidence should apply.[Emphasis by PJM]

[40] I would also note that, in weighing the probative value and prejudicial effect of Crown-led evidence of a complainant’s sexual history, trial judges must consider the non-exhaustive list of factors set out in s. 276(3) of the Criminal Code….

….Trial judges should remember, however, that some of the s. 276(3) factors have been articulated with defence-led evidence in mind. For example, s. 276(3)(a) refers to consideration of an accused’s right to make a full answer and defence, which is not implicated in the same way in the context of Crown-led evidence.

[41] In sum, the common law principles governing the admissibility of Crown led sexual history evidence must be harmonized with the statutory regime for defence led evidence of this kind, subject only to the necessary modification that I have detailed above.

[42] As I have said, this Court held in Barton that the procedure articulated in Seaboyer applies to Crown-led sexual history evidence, without elaborating further. Seaboyer imposes a markedly simple procedure compared with the procedure imposed by the statutory regime applicable to defence-led evidence. It requires only that the admissibility of sexual history evidence be established on a voir dire (which may be held in camera) either by affidavit or by witness testimony. If the sexual history evidence is admitted, the trial judge is then required to issue a limiting instruction on its impermissible uses (pp. 633-36).

[43]…. Subject only to a single modification, the two-stage procedure set out in ss. 278.93 and 278.94 of the Criminal Code provides the basic structure that should govern the process for admitting Crown-led sexual history evidence.

(1) Stage One

[45] To start with, the Crown must prepare a written application that sets out detailed particulars of the evidence that it seeks to adduce and the relevance of that evidence to an issue at trial (see s. 278.93(2)). As under the s. 276 regime, the affidavit attached to the written application can be an “information and belief affidavit” in the Stage One inquiry (Darrach, at para. 53; D. Brown and J. Witkin, Prosecuting and Defending Sexual Offence Cases (3rd ed. 2024), at p. 412).

[46] The Crown must provide fair notice to the accused and the court if it seeks to bring an application. While this generally will be at least seven days’ notice, judges can exercise their trial management powers in the interests of justice to shorten this notice requirement (see s. 278.93(4)). This notice assists in allowing the accused to prepare, particularly in circumstances where they wish to bring their own s. 276 application. Such an application will be necessary only when the defence wishes to adduce details beyond what the Crown is seeking to adduce (see Brown and Witkin, at p.

[47] As this Court recognized in R.V., it is best practice for the parties’ applications to be considered at the same time….

[48] In keeping with this Court’s guidance on when s. 276 applications should be brought, the Crown should generally bring its application before the trial commences (J.J., at para. 85; Goldfinch, at para. 145)….

[49] The purpose of the Stage One inquiry is to decide whether an evidentiary hearing should be held and to facilitate the dismissal of frivolous applications. The judge must assess whether the Crown has complied with its procedural obligations and whether the evidence sought to be adduced is capable of being admissible (see s. 278.93(4))….

[50] In accordance with their trial management powers, judges have discretion to decide whether the Stage One inquiry is conducted in writing, as an oral hearing, or both (J.J., at para. 27). Regardless of the approach taken, the jury and the public must be excluded (see s. 278.93(3))….

(2) Stage Two

[52] At the Stage Two hearing, the judge determines whether the sexual history evidence is admissible. The judge must decide whether the Crown has proven, on a balance of probabilities, that the evidence is relevant to an issue at trial and that its probative value is not outweighed by its prejudicial effect. As discussed, the factors enumerated in s. 276(3) must be used as a guide to structure this analysis. As in the Stage One inquiry, the jury and the public must be excluded during the hearing (see s. 278.94(1)). For the same reasons as above, these circumstances will invariably meet the Sherman Estate prerequisites to justify an exclusion order.

[53] Unlike under the s. 276 regime, a complainant does not have automatic standing to make submissions at a Stage Two hearing regarding the admissibility of Crown-led sexual history evidence….

…. With that said, judges retain the discretion to grant complainants standing as an exercise of their trial management powers (J.J., at para. 105). Where the complainant and the Crown differ on the issue of admissibility, it may be particularly important to ensure that the complainant has an opportunity to 2025 SCC 19 (CanLII) be heard (see J.J., at para. 178). Likewise, where a Crown application is being heard at the same time as a s. 276 application, the complainant should be granted standing for both applications.

[54] The complainant is not compellable at the Stage Two hearing. As explained in Darrach, some of the purposes of this regime would be undermined if complainants were compelled to be examined on their sexual history before the admissibility of that evidence was determined (para. 68)….

[55] As a result, it is not necessary for a personal affidavit from the complainant to be filed. Even so, the Crown still has the burden of providing a sufficient evidentiary basis on which the judge can determine the admissibility of the sexual history evidence. Evidence can be introduced through affidavit or viva voce testimony from another individual with personal knowledge of a complainant’s sexual history, or through other means, such as preliminary inquiry transcripts or sworn police statements (R. v. Morris, 2024 ONSC 4155, 97 C.R. (7th) 35, at paras. 73-74). Although these alternative avenues are available, the absence of a personal affidavit from the complainant will often undermine the judge’s ability to assess the relevance and the probative value of the proposed evidence (see R. v. T.A.H., 2019 BCSC 1614, 58 C.R. (7th) 148, at para. 37).

[56] At the conclusion of the Stage Two hearing, the judge must provide reasons 2025 SCC 19 (CanLII) for their admissibility determination (see s. 278.94(4); R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 10 and 14). If some or all of the evidence is to be admitted, the judge must explain precisely how the evidence is relevant to an issue at trial and how they assessed the probative value and prejudicial effect of the evidence in light of the factors enumerated under s. 276(3).

(3) Additional Considerations

[59] Accordingly, the contents of the Crown’s application must not be published, transmitted, or broadcast in any way. The same applies to the evidence taken, the information given, and the representations made in a Stage One inquiry and at a Stage Two hearing….

[60] Finally, as outlined in Seaboyer, if the judge holds that any of the Crown led sexual history evidence is admissible in a jury trial, a limiting instruction must be given to the jury outlining its permissible and impermissible uses (p. 636).

C. Sexual Inactivity Evidence Is Presumptively Inadmissible

[64] In the following analysis, I will refer to evidence about the complainant’s virginity and the complainant’s prior indications of disinterest in a sexual relationship as evidence of “sexual inactivity”. Sexual inactivity evidence can be understood as encompassing evidence that the complainant has not previously engaged in, or prefers not to engage in, any sexual activity, certain types of sexual activity, or sexual activity under particular circumstances (see S. Mazzuca, “Regulating the Admissibility & Use of Sexual Inactivity Evidence in Criminal Cases” (2022), 70 C.L.Q. 161, at p. 165). As I will explain, while there are relevant purposes for which they can be used, all of these types of evidence form part of a complainant’s sexual history and should thus be treated as presumptively inadmissible.

[65] The text of s. 276 provides an initial basis for holding that sexual inactivity evidence engages the screening regime. While it is true that the statutory provisions refer to “sexual activity”, Parliament has recently clarified the meaning of the term in s. 276(4), stating that it “includes any communication made for a sexual purpose or whose content is of a sexual nature”. In my view, this provision contemplates that all evidence of a complainant’s sexual history, including sexual inactivity evidence, will 2025 SCC 19 (CanLII) be captured. By encompassing communications whose “content is of a sexual nature”,this definition includes any communication from the complainant in which sex is a topic of conversation….

[71]….Sexual inactivity evidence may evoke inverse twin-myth reasoning. A complainant’s sexual inactivity can be used as a form of character evidence that invites the trier of fact to conclude that, because the complainant has been sexually inactive, (1) they have a propensity to not consent and therefore were less likely to have consented to the sexual activity that forms the subject matter of the charge; and (2) they are more worthy of belief.

[72]…. During closing submissions, Crown counsel explicitly referred to the complainant’s virginity as a consideration that suggested that Mr. Kinamore’s version of events was implausible (A.R., at p. 262).

[73] The fact that inverse twin-myth reasoning serves to bolster a complainant’s testimony and undermine the accused does not affect its permissibility. This reasoning is legally impermissible because it remains grounded in false assumptions about sexual assault complainants. As stated in Kruk, “reliance on stereotypes, being rooted in inequality of treatment, is certainly not just a problem for sexual assault complainants alone. Stereotypical reasoning based in the sort of inequality of treatment at the heart of myths and stereotypes against sexual assault complainants has the potential to affect the testimony of all witnesses in all trials” (para. 54 (emphasis added)).

[75]….When relied on by the Crown, myths and stereotypes risk undermining an accused’s right “not to be convicted except on evidence directly relevant to the charge in question” (Corbett, at p. 697). Therefore, 2025 SCC 19 (CanLII) trial judges must exclude this evidence as part of the “constitutional imperative” toexclude evidence that would result in an unfair trial for the accused (R. v. Harrer, [1995] 3 S.C.R. 562, at para. 24).

(2) Permissible Uses of Sexual Inactivity Evidence

[81] In holding that sexual inactivity evidence is presumptively inadmissible, I reiterate that this evidence is not categorically excluded. The presumption only functions to eliminate discriminatory lines of reasoning. As Professor Lisa Dufraimont emphasizes, “[b]road conclusions that particular forms of evidence are irrelevant 2025 SCC 19 (CanLII) should be avoided. . . . [M]yths and stereotypes about sexual assault are properly understood as prohibited inferences” (“Myth, Inference and Evidence in Sexual Assault Trials” (2019), 44 Queen’s L.J. 316, at p. 346).

[82]…. Some features of sexual inactivity evidence may be relevant and be properly used; it is only inferences rooted in inverse twin-myth reasoning or analogous forms of discriminatory reasoning that are prohibited.

[83] R.V. provides a helpful example of how sexual inactivity evidence can be introduced for permissible purposes. In that case, the Crown adduced medical evidence to show that the complainant became pregnant around the time of the alleged assault. This evidence was introduced to support the complainant’s testimony that the assault was the cause of the pregnancy and to rebut the accused’s assertion that no sexual activity took place. However, because the complainant terminated the pregnancy, a DNA paternity test was impossible, creating an evidentiary gap as to who caused the pregnancy during the relevant time. To assist in filling this gap, the complainant testified that at the time of the assault she was a virgin.

[84] This virginity evidence was therefore used to prove that the accused 2025 SCC 19 (CanLII) committed an element of the actus reus (sexual touching) by inviting the trier of fact to infer that only the accused could be the cause of the pregnancy….

…. The relevant feature of the sexual inactivity evidence was the timing of the sexual inactivity.

[85] Sexual inactivity evidence can also be used for other admissible purposes. In some circumstances, a complainant’s prior indications of sexual disinterest in the accused that are expressed near the time of the alleged assault can be admissible under the hearsay exception for statements of present intention and can be used as circumstantial evidence relevant to the issue of consent. The same principle applies to a complainant’s prior indications of sexual interest (see R. v. Reimer, 2024 ONCA 519, 173 O.R. (3d) 412, at paras. 75-83; see also R. v. Ewanchuk,[1999] 1 S.C.R. 330, at para. 29). Similar reasoning may also render a complainant’s prior indications of sexual interest or disinterest admissible as circumstantial evidence of their capacity to consent, including their ability to appreciate the four criteria enumerated in G.F., at para. 57 (see also R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414, at para. 69). In each of these circumstances, the relevant feature of the sexual history evidence is the statement of intention, not its sexual nature or lack thereof. With that said, the admissibility of this type of evidence must be handled with care, and it should never be given conclusive weight….

….The probative force of prior statements of intention will depend on, among other things, their degree of specificity and their temporal proximity to the alleged assault. As this Court noted in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, a statement of intention can support an inference that the declarant followed through on the intended course of action only if it is “reasonable on the evidence for the trier of fact to infer that the declarant did so” (para. 169).

D. A New Trial Is Required

[87] The social media messages referencing the complainant’s virginity and the complainant’s prior indications of disinterest in a sexual relationship, which were sent months prior to the sexual activity that formed the subject matter of the charge, constituted Crown-led sexual history evidence that is presumptively inadmissible under 2025 SCC 19 (CanLII) the common law. The trial judge erred by admitting the messages into evidence without a voir dire and then permitting them to be the subject of questioning by Crown and defence counsel. Both parties should have brought their respective applications for a voir dire to ensure that the evidence was relevant to a live issue and otherwise admissible.

[96] Since these principles were not adhered to in the trial below, I would allow the appeal, quash the conviction, and order a new trial.

Appeal allowed.

R v Chiarelli, 2025 ONCA 428

[June 12, 2025] Lay Opinion Evidence: Possession for the Purpose of Trafficking [Reasons by Favreau J.A. with B. Zarnett J.A. and Coroza J.A. concurring]

AUTHOR’S NOTE: Opinion evidence is generally inadmissible unless properly qualified and necessary. In this case, police officers gave unprompted opinion evidence before a jury, stating that items found were consistent with drug trafficking. Rather than intervening, the trial judge allowed the Crown to rely on this opinion in closing and emphasized the Crown’s position in the jury charge.

The Court of Appeal overturned the conviction, finding that the trial judge erred by failing to immediately hold a voir dire to determine the admissibility of the opinion evidence. The Court emphasized the importance of a timely judicial response, including the possibility of a limiting instruction to the jury to prevent unfair prejudice.

A. OVERVIEW

[1] OVERVIEW The appellant, Adam Chiarelli, was found guilty by a jury of possession of cocaine for the purpose of trafficking. The police found the cocaine in the trunk of a car driven by Mr. Chiarelli. There were two passengers in the car.

[2] Mr. Chiarelli appeals his conviction on several grounds, including that the trial judge failed to provide a limiting instruction on the use of opinion evidence provided by the two police officers who conducted the traffic stop….

[3] I would allow the appeal on the basis that the trial judge erred in failing to provide a limiting instruction regarding the opinion evidence of the arresting officers….

[6] Officer Desroches then pursued the vehicle and conducted a traffic stop. Mr. Van de Ven was seated in the front passenger seat and Mr. Proctor was sitting in the back. While they were on the roadside, Officer Desroches took steps to suspend Mr. Chiarelli’s driver’s licence for seven days and to impound the car pursuant to the Highway Traffic Act, R.S.O. 1990, c. H.8. He called for a tow truck and another officer so that they could transport the vehicle and all three men to a nearby gas station.

[7] The officer who arrived on the scene in response to the call from Officer Desroches call was Scott Orsan. After Officer Orsan arrived, Mr. Chiarelli and his two passengers were placed in police cruisers and taken to the nearby gas station, along with Mr. Chiarelli’s car. Once they arrived at the gas station, Officer Orsan noticed an odour of raw marihuana coming from the vehicle. He searched the inside of the car, and found two cannabis cigarettes and a marihuana grinder, amongst other items, inside a jacket pocket. All three men were then arrested for possession of cannabis contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[8] The officers then continued their search of Mr. Chiarelli’s car. When they searched the trunk, they found a vacuum-sealed brick of cocaine inside a red shopping bag. The cocaine was later weighed at just over a half-kilogram.

C. ISSUES AND ANALYSIS

[16] Mr. Chiarelli raises several issues on appeal:

a. Officers Desroches and Orsan gave inadmissible opinion evidence and the trial judge failed to give an appropriate limiting instruction;

Issue 1: The officers’ opinion evidence was inadmissible

(1) General principles

[17] This court has previously cautioned against the improper use of opinion evidence from police officers, including in the context of drug offences: R. v. Nguyen, 2023 ONCA 531, 429 C.C.C. (3d) 192, at paras. 48-53; R. v. Jenkins, 2024 ONCA 533, 439 C.C.C. (3d) 499, at paras. 20-23.

[18] Opinion evidence, even from police officers, is presumptively inadmissible; to be admissible it must satisfy the criteria for expert evidence or for lay opinion evidence: Nguyen, at para. 48, citing R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49; Jenkins, at para. 21.

[19] To be admissible as expert evidence, police officers have to be qualified as experts to provide the opinion at issue, and their evidence must otherwise meet the admissibility criteria: R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-25; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19.

[20] As this court pointed out in Nguyen, at para. 52, it is not uncommon for expert evidence to be required on issues of drug trafficking. For example, in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 18, an expert witness provided evidence about the “chains of distribution, distribution routes, means of transportation, methods of concealment, packaging, value, cost and profit margins”. The court noted in Nguyen, at para. 52, that this type of evidence often requires “specialized knowledge beyond what may ordinarily be acquired by police officers without specific training”. As another example, in this case, on consent, D.C. Browne’s report was admitted as expert evidence for the purpose of establishing that the quantity and packaging of the cocaine were consistent with possession for the purpose of trafficking.

[22] In some circumstances, the opinion evidence of lay people, including police officers, may be admissible. Lay opinion evidence is admissible where witnesses give “a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly”: R. v. Graat, [1982] 2 S.C.R. 819, at p. 841; Nguyen, at para. 53. In other words, where a lay witness testifies about their observations, if it is necessary for them to state their opinion about the meaning of those observations in order to describe them coherently, then the opinion will be admissible. As explained in Jenkins, at para. 23, where a police officer gives evidence about surveillance observations, “they can relate the evidence of the factual observations they made without providing the further opinion evidence that the conduct observed is consistent with drug trafficking”. [Emphasis by PJM]

[23] Based on these principles, in Nguyen, this court found that the trial judge made an error in admitting the opinion evidence of a police officer who testified that the acts of picking up and dropping off property in that case were consistent with drug-related activity. The court held that the officer’s evidence was not admissible as expert evidence because he was not qualified as an expert and because it did not meet the necessity requirement as it was not technical or a matter on which ordinary people are likely to form incorrect opinions: Nguyen, at para. 51. The court also did not accept that the officer’s evidence was admissible as lay opinion evidence because the officer “did not have to offer the opinion that the interaction he saw was consistent with drug trafficking to describe effectively the factual observation he had made”: Nguyen, at para. 53. Nevertheless, the court ultimately dismissed this ground of appeal based on the curative proviso, finding that the error was so harmless that it could not have impacted the verdict. In reaching this conclusion, at paras. 56-57, the court considered that the case was decided by an experienced trial judge, that the opinion offered by the officer was one that the trial judge could have reached on her own and that she made no reference to the officer’s opinion evidence in her reasons.

[24] In Jenkins, five police officers testified regarding their observations of various interactions between the accused and others. As part of the examination in-chief of each officer, the Crown asked what the police officers made of those interactions based on their experience. In each case, the police officers gave their opinion that the interactions were consistent with drug trafficking. The trial judge ruled that their evidence was admissible as lay opinion evidence. This court found that it was an error to admit the evidence for several reasons: 1) the officers were not qualified as experts in drug trafficking (para. 27); 2) the officers’ conclusory opinions were not necessary for the jury to reach a correct judgment on the evidence (para. 28); and 3) the officers could convey their factual observations without giving the added opinion that the interactions at issue were consistent with drug trafficking (para. 29). In Jenkins, this court did not apply the curative proviso. The court noted that this was a jury trial and, unlike in Nguyen, it was not possible to know whether the jury relied on the improper opinion evidence….

(2) Relevant testimony, submissions by the Crown and jury charge

[25] In their evidence at trial, Officers Desroches and Orsan both gave evidence that the items they found in the vehicle were consistent with drug trafficking.

[26] Officer Desroches testified that the items found in the car were consistent with “transporting” or “running” drugs:

A. The reason […] I made a note of [those items] in my notebook later at the office and I didn’t at the Petrocan […] is because not that I didn’t notice them at the Petrocan, it’s that after I found the cocaine, the – and that large an, an, an amount, I made definite note of that at the office because a lot of those articles are consistent with transporting drugs.

Q. Burger King cups, that’s just garbage from going through drive-throughs?

A. Yeah, each individual item alone means nothing. But together collectively, it – to me, in my experience, and then having taken drug, you know, enforcement training as well, it – everything in totality points a little bit more towards running, running drugs. [Emphasis added.]

[27] In his testimony, Officer Orsan also described the items he found when searching the car and provided his opinion that these items were consistent with drug trafficking:

I saw that there was a rear-view – you know those little black trees, they’re like a Black Ice air freshener, the small trees. It was hanging from the rear-view so I’m like, Okay, that’s a really strong one of all the air fresheners. And then I saw that there was, like, fast-food cups in the centre console and then the, the smell of cologne was really fresh and strong in the vehicle and I’m, like, that, that – and with the marihuana and then, and then smelling that I’m, like, wow, that’s – those are, like, used as masking agents in my experience. Like, people just spray it so, Oh, the cops are here, and they spray it, right? So I’m just – in my experience. The – there were three cell phones in the glove box. There was one cell phone in the centre console. So that’s a lot of – that’s already from – as I remember that’s, that’s, like, five phones, right? Like they got three in the in the glovebox, one in the centre console, Proctor had one and, and possibly there was another from Van de Ven. I – there’s so many I just kind of lost track of, of how many there were. I found that Lacoste perfume in the glovebox as well. It’s kind of odd but not just – that’s probably where the smell’s coming from, but it’s a weird spot to put it. There were ZigZag rolling papers – that’s just a brand name for marihuana roll papers. Those were in the centre console as well so that’s, like, it’s not in luggage. It’s just out and open. So that put some flags up in my head. And the vehicle had like a really lived-in look, consistent with what I thought in my experience I’ve seen with people who are running drugs, they don’t want to leave their vehicle because they don’t want to leave product in the vehicle. So that’s just an opinion. There were granola wrappers from Kirkland. So Kirkland’s a Costco brand if you don’t know. Like, you can get them in bulk. But these wrappers just were everywhere in the car, which is just odd to me. And the was a, a battle – a couple of “Battleship” boards in the rear seats. Nothing really – other than that in there. [Emphasis added.]

[28] In closing submissions, the Crown argued that the officers’ evidence regarding the significance of the items found in the car pointed to Mr. Chiarelli’s guilt:

I want to bring a few things to your attention that will hopefully reenforce the notion that Mr. Chiarelli had the requisite knowledge and control of the cocaine in the trunk of his vehicle that day. So at the time that this vehicle was pulled over and the gentlemen are arrested you’ll note according to the officer testimony that the vehicle had a certain lived in look to it. This is according to P.C. Scott Orsan. During a search numerous cell phones ended up being retrieved – during that search – and P.C. Desroches even mentioned during cross examination how the items throughout the vehicle in conjunction with the cocaine pointed to a more suspect, bigger picture.

[29] In her jury charge, the trial judge did not caution the jury against relying on the opinions of Officers Desroches and Orsan regarding the significance of the items found in the car….

(3) Analysis

[30] As in Nguyen and Jenkins, it was an error for the trial judge to admit the opinion evidence provided by the police officers. Their testimony that the items found in the car were consistent with drug trafficking was akin to the evidence of the officers in Nguyen and Jenkins.

[31] Officers Desroches and Orsan were not qualified as experts. Their evidence was not necessary for the jury to reach a correct judgment. Moreover, their 2025 ONCA 428 (CanLII) evidence did not meet the test for admissibility of lay opinion evidence. The officers could have conveyed their factual observations without giving the added opinion that the items at issue were consistent with drug trafficking.

[32] Unlike in Jenkins, the Crown did not actively solicit this opinion evidence. On the contrary, the officers both spontaneously offered the opinion that the items in the car were consistent with drug trafficking. In the circumstances, a limiting instruction may well have been sufficient. However, instead of giving a limiting instruction, the trial judge allowed the Crown to rely on the opinion evidence in closing and then highlighted the Crown’s view of the evidence in the jury charge. [Emphasis by PJM]

[33] Also, as in Nguyen, the fact that defence counsel at trial did not object is of no moment. Given how prejudicial opinion evidence can be, trial judges are to play a gatekeeping role in making sure opinion evidence is not improperly admitted: White Burgess, at para. 16; Nguyen, at para. 54.

[34] In this case, given that Officer Desroches’ opinion was spontaneous and unsolicited, after he gave his evidence, the trial judge should have immediately held a voir dire with counsel to address the admissibility of the evidence and to discuss whether a caution or limiting instruction to the jury was necessary….

[35] Accordingly, I find that it was an error for the trial judge to admit the police officers’ opinion evidence that the items they found in the car were consistent with drug trafficking or, at the very least, it was an error not to give a limiting instruction regarding those items.

E. DISPOSITION

[71] I would allow the appeal and order a new trial.

R v Attachie, 2025 BCCA 183

[June 10, 2025] Sentencing: Increasing Sentence Past Crown Submissions without Notice and Mitigation of a Guilty Plea [Reasons by Flemming J.A. with Abrioux and Horsman JJ.A. concurring]

AUTHOR’S NOTE: In Nahanee, the Supreme Court of Canada held that judges must give parties notice if they are contemplating a sentence higher than that proposed by the Crown. In this case, the trial judge failed to do so and also gave little to no weight to the offender’s guilty plea, despite the Crown acknowledging that their case was vulnerable and this was mitigating.

The Court of Appeal found these to be errors in principle: both the lack of notice and the failure to properly credit the guilty plea. The sentence was reduced by one-third as a result.

[1] Mr. Attachie pleaded guilty to using an imitation firearm in the commission of an indictable offence, which was forcible entry on the real property of the victim, contrary to ss. 85(2) and 72(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Offences”). He appeals the global sentence of 36 months in prison that was imposed.

[5] Arrested for the Offences on January 21, 2024, Mr. Attachie remained in custody pending a trial in the Provincial Court that was scheduled to start on July 9, 2024.

[6] On that day, Mr. Attachie pleaded guilty to the s. 85(2) offence and the sentencing hearing immediately followed.

[8] The evidence at the hearing included: a document containing what Crown counsel explained were agreed facts or admissions regarding the circumstances of the offence (“Agreed Facts”); Mr. Attachie’s criminal record; a robust Gladue report dated February 2, 2022 that was prepared for a previous sentencing; and a victim impact statement dated June 28, 2024.

[9] Written in narrative form, the Agreed Facts describe the victim’s statement to police, made after officers attended his home in response to his mother’s request for a wellness check. The Agreed Facts specify the victim had told her not to send police because he was concerned about retribution. The account of his statement includes:

 The victim and Mr. Attachie knew each other.

 Mr. Attachie had been at the victim’s home the night before and returned that morning with two masked men.

 After they knocked, the victim opened the door and they confronted him, which caused him to retreat to his bedroom.

 Mr. Attachie and the two men confronted the victim again in his bedroom. During the second confrontation, Mr. Attachie pulled his pants down, which the victim interpreted as a demand for oral sex. The victim refused and Mr. Attachie pointed a weapon at his chest that looked like a real rifle.

 The victim managed to knock the weapon away and put Mr. Attachie into a headlock.

 At that point the masked men presented what looked like another firearm and told the victim to release Mr. Attachie, so he did.

 Mr. Attachie punched the victim twice in the face and put him into a headlock for a short time.

 After releasing the victim, Mr. Attachie looked through and took cash from two purses in the residence. He also took a bag belonging to the victim that contained various business documents.

 While leaving the residence, Mr. Attachie told the victim he would return “with a ’50 Cal’”, which the victim believed was a firearm.

[12] The Gladue report identified Mr. Attachie as a member of the Blueberry River First Nation, with ties to the Doig River First Nation. He disclosed to the report writer what she aptly referred to as a “long and significant relationship with trauma”. The report describes Mr. Attachie’s childhood and youth as marked by poverty; sexual, physical and other abuse; family and community violence; pervasive substance abuse; terrible instability and loss; and a lack of education.

[13] When Mr. Attachie was 15, his father was murdered. Both Mr. Attachie and his mother, who also spoke to the report writer, discussed his substance abuse, which started around this same age, and serious mental health difficulties involving self-harm and suicide attempts. Mr. Attachie recounted being sober from 2013 to 2017, but then relapsing to daily misuse of alcohol and illicit drugs including crack cocaine, crystal methamphetamine and heroin. His heroin misuse had resulted in many overdoses.

[15] The report writer described Mr. Attachie as disconnected from the history and traditional practices of his First Nation(s), although he had mostly lived “on reserve”.

[16] In his victim impact statement, the victim said he experienced significant emotional and psychological effects from the Offences, as well as a number of circumstances that happened after the Offences, which Crown counsel underscored were not attributable to Mr. Attachie….

[17] Central to Crown counsel’s submissions was the importance of Mr. Attachie’s guilty plea, referring to it as “significantly mitigating” and “very significant”, based on the state of the Crown’s case. He submitted for example:

I need to emphasize that it is a significant mitigating factor on this case that Mr. Attachie has come forward. It’s trial day but one of the issues was how cooperative [the victim] would be. He has his own issues and he was prepared to come to court but how he would have presented and with his background … was going to be an issue.

… as I’d said before, a very significant factor is the guilty plea and I really need to emphasize that because had we run a trial today, we don’t know what the outcome would have been. [The victim] would have given evidence,but there’s also that secondary jeopardy, as I mentioned, within his community about being named a rat, someone who came forward to court…

[25] Both counsel also identified the Gladue factors as significantly mitigating.

[26] Related to this, Crown counsel highlighted that Mr. Attachie was “very much in a drug use mode” at the time of the offence and Ms. Ludwig “thought that he was quite intoxicated with narcotics”. He suggested that “what Mr. Attachie plans to do with his life now is significant” and if he proposed a plan that removed him from the “drug culture” and that cycle, “then we have some hope for him”.

[28] Unfortunately, neither party provided the judge with any cases in support of their positions on sentence or to assist him in applying the parity principle.

[31] Before reserving his decision, the judge stated that he needed to review case law to better understand the sentencing range or “at least” give him an idea of where “courts place this”. Crown counsel responded that if he was able to locate some cases, he would forward the citations after consulting with defence counsel.

[33] In the interim, the Court notified the parties that the s. 85(2) offence required a conviction for another indictable offence, citing R. v. Pringle, [1989] 1 S.C.R. 1645, 1989 CanLII 65.

[34] As a result, Mr. Attachie pleaded guilty to the forcible entry offence on July 30, 2024. Counsel confirmed there was no change in the parties’ positions on sentence and provided very brief additional submissions, as well as an updated calculation of credit for time served.

[35] The judge delivered his sentencing decision later that day.

[45] Addressing the guilty pleas, the judge stated:

[53] …As I noted, he has demonstrated little, if any, remorse or acceptance of the facts upon which his guilty pleas were entered. Thus, I give minimal weight to this as a sign of his remorse for the damage and the harm he has caused his victim, but he has saved considerable court time and effort.

[46] After that, the judge imposed a 12-month prison sentence for the forcible entry offence and a 24-month prison sentence for the s. 85(2) offence, to be served consecutively as required by s. 85(4) of the Criminal Code, less 242 days “enhanced credit”. This left 853 days to be served from the effective total sentence of 36 months’ imprisonment.

Did the judge commit an error in principle that impacted the sentence?

Nahanee error

[50] Mr. Attachie asserts the judge’s failure to notify the parties of his intention to impose a harsher sentence was contrary to R. v. Nahanee, 2022 SCC 37.

[51] Nahanee established that failing to provide notice and the opportunity for further submissions before imposing a sentence that is harsher than the sentence proposed by the Crown is an error in principle: at para. 52.

Legal Principles

[70] A guilty plea is a recognized mitigating factor: Friesen at para. 164. The mitigating effect of a guilty plea will vary depending on the circumstances of the case: R. v. Daya, 2007 ONCA 693 at para. 15. As with all mitigating and aggravating circumstances, determining the weight to be given to a guilty plea is within the sentencing judge’s discretion: Lacasse at para. 78.

[71] Failing to consider a guilty plea as mitigating, and failing to give the guilty plea sufficient weight as a mitigating factor can be errors in principle: Friesen at para. 164; R. v. R.M., 2019 BCCA 409 at para. 7.

[74] In R.M., Justice Fenlon, writing for this Court, reviewed and distilled the principles underlying the treatment of a guilty plea as mitigating:

[6] …There are two main reasons that a guilty plea is, in general, treated as justifying a discount from the sentence that otherwise would have been imposed. First, a guilty plea demonstrates that the accused acknowledges responsibility for his conduct, is generally a sign of remorse, and may be the first step towards rehabilitation: R. v. Kreutziger, 2005 BCCA 231 at para. 10; R. v. Edgar, 2010 ONCA 529 at para. 111; R. v. Gaya, 2010 ONSC 434 at para. 51. Second, a guilty plea saves court resources and spares the victim and other witnesses the difficult experience of testifying about often traumatic events: R. v. Johnston and Tremayne, [1970] 2 O.R. 780 at 783 (C.A.) citing R. v. de Haan, [1967] 3 All E.R. 618 (C.A., Crim. Div.); Kreutziger at para. 10.

[7] Although it is an error in principle to fail to give sufficient weight to a guilty plea, there is no rule that a sentencing judge must give the same effect to every such plea. The sentencing exercise is not formulaic. It does not involve simply ticking off mitigating and aggravating factor boxes without considering the circumstances of the case. That this is so is evident from even a brief sampling of cases.

[8] In R. v. Spiller, [1969] 4 C.C.C. 211 at 214–215 (B.C.C.A.), this Court observed that the rehabilitative rationale for treating a guilty plea as a mitigating factor will not apply with equal force in all cases. A guilty plea will not always reflect remorse; where the Crown’s case is strong and the accused is inescapably caught, a guilty plea may be the only reasonable option left open to an offender.

[76] In R. v. Martineau, 2021 ABCA 401, the Alberta Court of Appeal discussed how particular circumstances typically bear on the mitigating weight of the guilty plea, in light of the principled bases identified in R.M. The Court identified a guilty plea in the face of a weak Crown case as “especially mitigating”: at para. 28. Noting however, that every guilty plea involves the waiver of the most fundamental right of an accused to a fair trial, Martineau also emphasized that guilty pleas are essential to the proper functioning of the criminal justice system. The Court cautioned against creating a disincentive for an accused to enter a guilty plea and taking responsibility for their action by negating its mitigating effect (citing: R. v. S.L.W., 2018 ABCA 235 at paras. 32–34).

[77] I turn briefly to the particular role of remorse. Remorse is a mitigating factor on its own. It is also a mitigating feature of guilty pleas. As indicated in R.M., generally speaking, a guilty plea is viewed as demonstrating the accused’s acknowledgment of responsibility for their conduct and as a sign of remorse. In some circumstances, such as an overwhelming Crown case, this may not be the case. In Friesen, where the offender’s conviction was almost inevitable but he had expressed remorse, the Court observed that remorse gains significance when “it is paired with insight and signs that the offender has ‘come to realize the gravity of the conduct’”: at para. 165. The sentencing judge had found the offender’s insight into his sexual offending was “non-existent” and the risk he posed was “frightening”: at para. 165. As a result, the Court did not accept that the judge had erred in principle by failing to mention the offender’s expression of remorse.

[81] Reading the reasons functionally and contextually, I find the judge gave minimal mitigating weight to the guilty pleas. In setting out his conclusion regarding the guilty pleas as a mitigating factor, he stated in part: “Thus, I give minimal weight to this as a sign of [Mr. Attachie’s] remorse for the damage and the harm he has caused his victim, but he has saved considerable court time and effort”: at para. 53 (emphasis added). Clearly, “this” means the guilty pleas. Although the judge expressly gave them minimal weight as a means of demonstrating remorse, there is no other qualifying language in the reasons regarding the guilty pleas as a mitigating factor. Further, apart from the savings in court resources, the only other circumstance he referred to was the “very late” timing of the pleas, which also aligns with giving them minimal weight.

[82] I recognize the judge could have implicitly given weight to additional circumstances of the pleas. This is not my view of his silence regarding circumstances that would strengthen the mitigating force of the guilty pleas, including most significantly, the parties’ submissions regarding the uncertain or fragile Crown case. As I have indicated, the judge acknowledged the thrust of the submission during the hearing itself. But it would make little sense to conclude the judge implicitly accepted the shared view of the parties regarding the significant risks for the Crown in proceeding to trial, when what he did say in his reasons points in the other direction. The same logic applies to other unmentioned circumstances, namely that the “very late” guilty pleas resulted from resolution discussions before the start of the trial that involved the victim, and spared him and Ms. Ludwig, both vulnerable witnesses, the difficult experience of testifying in court. Interpreting the judge’s view of the pleas as deserving little credit also accords with the emphasis in the reasons on the harm to the victim, the seriousness of the Offences and the aggravating circumstances.

[85] On my interpretation of the reasons, in giving the guilty pleas minimal mitigating weight, the judge considered and weighed the “very late” timing of the guilty pleas, the saved court resources and their much-reduced reflection of remorse and acknowledgment of responsibility. Regarding this last circumstance, the judge also emphasized his findings that Mr. Attachie had not demonstrated or expressed any remorse and acknowledgment. At the same time, the judge did not give weight to the other circumstances I have identified: the parties’ common submission and shared view of the Crown case; the pre-trial resolution as it relates to the timing of the pleas; or sparing vulnerable witnesses from testifying.

[86] I see the error in principle as grounded in the judge’s apparent refusal to accept or consider the first of the other circumstances — the parties’ common submission about the particular strength of the guilty pleas as a mitigating factor, rooted in the precarious state of the Crown’s case. I say this for a number of reasons. A fragile Crown‘s case is a fundamentally important circumstance of the pleas, if not the most fundamentally important. Again, the parties described the Crown’s case as factually complex, dependent on vulnerable, unreliable witnesses, and there had been essentially no police investigation into the victim’s allegations apart from the taking of the statements captured by the Agreed Facts.

[89] While I do not suggest the parties’ common submission with respect to the guilty pleas as a mitigating factor is the same as a joint proposed sentence, in my view, the basis for recognizing and adhering to joint submissions apply here. Crown counsel and defence counsel were just as well poised to know about the circumstances of the Offences and the strengths and weakness of their respective cases, in making the fairly detailed submissions they did regarding the weight to be given to Mr. Attachie’s guilty pleas and their view of the Crown’s case. While the judge was not obligated to accept those submissions, he was obligated to give them careful consideration and, if not to provide counsel with notice that he disagreed before imposing the sentences, then to at the very least explain why he disagreed. His reasons do not reveal an explanation.

[91] Absent any explanation or a discernable basis for concluding the judge could have properly considered and rejected the parties’ view of the Crown’s case, which they submitted made the pleas significantly mitigating, I conclude his decision to give minimal weight to the guilty pleas was unreasonable.

[94] Having determined the judge erred in principle, the question becomes whether the error(s) had an impact on the sentence.

[95] While the reasons do not indicate how the judge arrived at the length of the sentences he imposed for the Offences, many things are clear: the objectives of denunciation and deterrence were given primacy because the Offences were violent and violated the safety and security of the victim’s home; significant aggravating circumstances were found and considered; and the role of the Gladue factors in reducing Mr. Attachie’s moral blameworthiness was limited. While the effect of significantly mitigating guilty pleas in reducing the sentence imposed could be less in these circumstances, I am satisfied that giving minimal weight to the pleas impacted the effective sentence.

Proportionality and Gladue principles

[99] The fundamental principle of sentencing, proportionality, requires a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Criminal Code.

[100] As explained in R. v. Ipeelee, 2012 SCC 13:

[37] … Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. …

[101] Gladue principles flow from s. 718.2(e) of the Criminal Code. The provision requires sentencing judges to consider alternatives to imprisonment that are reasonable in the circumstances for all offenders, while paying “particular attention to the circumstances of aboriginal offenders” because those circumstances are “unique and different from those of non-aboriginal offenders”: R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679 at para. 37.

[102] In Gladue and Ipeelee, the Supreme Court of Canada made it clear that s. 718.2(e) is remedial and intended to deal with the crisis of over-representation of Indigenous offenders in the criminal justice system. The Court recognized that crisis is driven by the alienation, poverty, substance abuse, lower educational attainment, lower rates of employment and prejudice experienced by Indigenous people, resulting from Canada’s colonial history and post-colonial assimilationist policies: Gladue at para. 65; Ipeelee at paras. 60, 77. In sentencing Indigenous offenders, the judge must consider two factors:

1. The unique systemic or background factors that may have played a part in bringing the particular Indigenous offender before the courts; and

2. The types of sentencing procedures and sanctions that may be appropriate for the offender in the circumstances given their particular Indigenous heritage or connection.

See Gladue at para. 66; Ipeelee at para. 59.

[103] The application of s. 718.2(e) and Gladue principles may result in a finding of reduced moral blameworthiness, as well as a greater emphasis on rehabilitation and restoration and the imposition of an alternative or reduced sentence: R. v. Kehoe,, 2023 BCCA 2 at paras. 65–73.

[107] Ipeelee also explained the relationship between Gladue factors and a finding of reduced moral culpability:

[73] …systemic and background factors may bear on the culpability of the offender, to the extent they shed light on his or her level of moral blameworthiness. … Many Aboriginal offenders find themselves in situations of social and economic deprivation … the reality is their constrained circumstances may diminish their moral culpability. As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, …. “[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled”. Failing to take these circumstances into account wold violate the fundamental principle of sentencing – that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender …

[Internal references and aspects of the discussion omitted, italics in the original.]

[109] In assessing Mr. Attachie’s moral culpability or degree of responsibility for the Offences, I bear in mind the relevant aggravating factors related to the Offences identified by the judge. Again, he found Mr. Attachie planned the Offences and knew that using an imitation firearm would cause increased fear in the victim, being subject to lifetime firearms bans at the time.

[110] In my view, Mr. Attachie’s significant Gladue factors substantially attenuated what otherwise would have been a high degree of moral culpability, given his intention and knowledge. Throughout his upbringing, Mr. Attachie was victimized by all forms of abuse, perpetually exposed to violence and substance abuse, harmed by many other traumas and profound losses as well as poverty, ongoing instability and a lack of education, resulting in long term, very serious and life-threatening substance misuse and mental health issues. Emblematic of the systemic and background factors that drive the ongoing crisis of Indigenous offenders’ over representation in the criminal justice system, it is clear to me that Mr. Attachie’s personal circumstances played a significant role in his offending and bringing him before the court.

Denunciation, deterrence and rehabilitation

[111] While I agree with the judge that denunciation and deterrence are the primary sentencing objectives here given the violence involved in committing the Offences and the violation of the sanctity and security of the victim’s home, the proportionality principle serves the restraining or limiting function discussed in Ipeelee, as a result of Mr. Attachie’s reduced moral culpability. For this reason and given my view of his significantly mitigating guilty pleas, I would also give substantial effect to the objective of rehabilitation. The guilty pleas, given the fragile Crown case and the Agreed Facts, necessarily conveyed meaningful remorse and acknowledgment of responsibility for the Offences. Further, it could not be clearer that Mr. Attachie needs effective treatment and support to address and overcome the sources of his criminal conduct, which in turn would protect his community and the public. Defence counsel’s submissions regarding his initiative in applying to a residential treatment program at the time of the sentencing hearing, demonstrated he had taken a positive and necessary first step towards putting himself on that path.

Sentencing Cases

[113] In all but Patterson the offences were committed in a “home invasion”. R. v. A.J.C.; R. v. Joseph, 2004 BCCA 268 underscored that determining a sentencing range for “home invasion” cases is difficult due to the number and variety of offences which may be involved: at para. 37. There being no single offence of “home invasion”, the Court referred to the term as a “shorthand expression for a combination of offences involving a breaking and entering with intent to commit theft or robbery … and frequently involving an assault on one or more occupants”: at para. 37, quoting R. v. Bernier, 2003 BCCA 134 at paras. 81–82.

[118] In this case, although the circumstances of the Offences were also less violent, and the forcible entry offence much less serious than the underlying indictable offences in those cases, Mr. Attachie was subject to a lifetime firearms prohibition and a probation order that prohibited him from possessing weapons.

Conclusion

[119] Weighing all of these considerations and circumstances, I conclude consecutive sentences of 12 months in prison for use of an imitation firearm and ten months in prison for forcible entry, less credit for time served, followed by a probationary term of 12 months with the conditions agreed to by the parties, is a fit sentence. Commensurate with the gravity of the Offences and the moral blameworthiness of Mr. Attachie in committing them, a global sentence of 22 months in prison and a probation order with conditions that reduce the risk of harm and provide for counselling and treatment including residential treatment, is proportionate. The sentence continues to give adequate effect to the primary objectives of denunciation and deterrence while recognizing the importance of rehabilitation, in a context that includes significant Gladue factors. It also considers and weighs the aggravating and mitigating circumstances untainted by the error(s) in principle, including the very significantly mitigating guilty pleas. The probationary term and its conditions will promote Mr. Attachie’s rehabilitation by requiring his participation in counselling and treatment of his substance misuse with a view to dealing with the impact and trauma of the underlying Gladue factors.

[120] Accordingly, I would grant leave to Mr. Attachie to appeal the sentence and allow the appeal. After sentencing afresh, I would impose consecutive sentences of 12 months in prison for use of an imitation firearm and ten months in prison for forcible entry, for a global sentence of 22 months’ imprisonment (less credit for time served), followed by a 12-month probation order with the agreed upon conditions, which are attached as Appendix A. The sentence will start on the date of Mr. Attachie’s original sentence, July 30, 2024, and as I have indicated, credit will be given for the pre-trial custody of 242 days as found by the judge.

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