The regrettable impact of Canada’s criminal justice system upon the First Nations cannot be denied. Parliament has attempted to address the problem of the overrepresentation of aboriginal offenders in Canadian prisons through section 718.2(e) of the Code. In turn, the Supreme Court of Canada has interpreted and applied that section in cases such as R. v. Gladue and R. v. Wells. In R. v. J.N., the Ontario Court of Appeal is called upon to address a case on the periphery of the issue: 2013 ONCA 251.
J.N. was convicted of the sexual assault, sexual interference and invitation to sexual touching for the prolonged sexual abuse of his step-daughter. Although J.N.’s lawyer requested a Gladue report be prepared to assist in the sentencing, Aboriginal Legal Services did not prepare one, as the aboriginal identity of the offender could not be confirmed. He was sentenced at trial to seven years in the prison less two years of pre-trial custody for a total of five years.
Ultimately, the Court of Appeal in J.N. upheld the sentence but the case is noteworthy for two different facets.
First, it is interesting to observe the real difficulty that counsel appointed by the Court of Appeal encountered in attempting to have a Gladue report prepared as fresh evidence for the appeal. J.N.’s lawyers contacted numerous organizations to locate a Gladue writer to assist in the preparation of the report. Ultimately, they were unable to locate an organization or individual able to produce a Gladue report for an inmate in the city where J.N. was incarcerated. J.N’s lawyers, after informing themselves on how to write a Gladue report, wrote the report. While it was not an issue on the appeal, it bears noting that the Court did not comment on either the difficulty in accessing services to have the report prepared or the qualifications required to prepare these reports. Both of these issues may well resurface in future cases involving Gladue reports.
The second aspect of the case that bears noting is the way the Court applied the Gladue analysis to J.N.’s situation. The Court concluded that the Gladue report should be given little weight and did not affect the fitness of J.N’s sentence for three reasons.
First, the panel of the Court of Appeal questioned whether J.N. was actually aboriginal:
[A]lthough the Crown has conceded that the appellant is Aboriginal for Gladue purposes, it is not at all clear to us that this is correct. As we have explained, the appellant was born in San Diego and moved to Canada as a young teenager. Taking the evidence of his Aboriginal roots at its highest, it appears the appellant had some Cherokee and Apache ancestors. Both of these tribes are indigenous to the American south and are, so far as we can tell, distinct both from modern-day indigenous Canadian Aboriginal tribes and from other Native American tribes that straddle the U.S.-Canadian border.
As the Supreme Court explained in the Gladue decision itself, Aboriginal heritage is relevant to sentencing to account for “the unique systemic and background factors which may have played a part in bringing the particular aboriginal offender before the courts” (at para. 66). While one can generalize about the impact of colonialism on all Aboriginal peoples, Gladue is expressly intended to redress the consequences of colonialism in Canada – and particularly the devastating legacy of residential schools. Thus, we are sceptical that Gladue is applicable to an American-born offender who traces his Aboriginal ancestry to tribes indigenous to the United States [emphasis added]; [paras 45-46].
Second, the Court questioned what role, if any, that the Aboriginal heritage played in J.N.’s criminality:
[E]ven assuming for the sake of argument that Gladue applies, the evidence that the appellant’s Aboriginal ancestry may have played a part in his criminality is weak. In coming to this conclusion, we are mindful of this court’s direction in R. v. Collins, 2011 ONCA 182, 104 O.R. (3d) 241, at paras. 32-33, that an Aboriginal offender does not bear the burden of establishing a direct causal link between the systemic and background factors and the commission of the offence. Gladue simply requires that the sentencing judge take those systemic and background factors into account in shaping an appropriate sentence.
In this case, the evidence suggests that the appellant’s Aboriginal background played a minor role in bringing him before the court. By his own account, the appellant had a “good” childhood. He was cared for by a loving mother and did not suffer abuse. He had a solid academic attendance record and graduated high school, even going on to learn a trade. There is no evidence of a family history of addiction or sexual abuse. To the extent that the appellant reports having been bullied at school, it was because he was “Aboriginal and American” (emphasis original). In short, there is nothing other than the appellant’s own evidence to suggest that his sense of dislocation from his Aboriginal heritage contributed to his criminal behavior [emphasis added]; [paras 47-48].
Third, and most significantly, the Court re-affirms the concept that in cases where the crime is so heinous and the aggravating factors so compelling, the Gladue analysis should not affect the sentence to be imposed. The Court juxtaposed the well-known child sexual assault sentencing case of R. v. D.D. which calls for mid to supper single digit penitentiary sentences in cases of prolonged abuse while occupying a position of trust with the case of Gladue. In driving this point home, the Court, at para 53, quotes Kakekagamick:
[I]t is not a mitigating factor on sentencing simply to be an Aboriginal offender…. Nor is being an Aboriginal offender … a “get out of jail free” card.
…
[W]hile s. 718.2(e) requires a different methodology for assessing a fit sentence for an Aboriginal offender; it does not necessarily mandate a different result. The subsection does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. [Citation omitted in J.N.]. [Emphasis added].
BCH