This week’s top three summaries: R v King, 2022 ONCA 665: Gladue in Corbett, R v Demirovic, 2022 NSCA 56: s.8 and #informants, and R v Starrett, 2022 ABKB 613: reduction #sentencing factors.
This week's top case deals with the application of Gladue principles to things beyond sentencing. For great general reference on criminal law's accounting for Indigenous experience, 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.
R v King, 2022 ONCA 665
[September 26, 2022] The Impact of Gladue on Corbett Applications [Reasons by Fairborn A.C.J.O. and George J.A. with B.W. Miller J.A. concurring]
AUTHOR’S NOTE: Gladue principles, where they are properly applied are principally designed to lessen the moral culpability of some Indigenous people for offences they are being sentenced for. This should result in a decreased sentence. While the effectiveness of Gladue generally can be debated as remand and prison populations continue to swell disproportionately with Indigenous people, this case seeks to add Gladue principles for judicial consideration before sentencing commences. By preventing past systemic racism that has resulted in Indigenous people carrying criminal records that are excessive from affecting their credibility in criminal trials, this case provides a meaningful tool to address the Indigenous experience of criminal trials. Of course, the tool comes with loads of discretion for judges and discretion is a very ineffective tool at fixing systemic problems (particularly with consistency), but it is a start.
Overview
[2] ...The second and third allege an imbalanced evidentiary record because the trial judge erred in excluding evidence of the respondent’s alleged involvement in a robbery just before the shooting and his prior assault convictions. As for the latter, the trial judge excluded those convictions in his ruling on the respondent’s Corbett application, in part because he accepted defence counsel’s submission that the respondent’s Indigeneity impacted the probative value and prejudicial effect of their admission, which the appellant contends was an error: see R. v. Corbett, [1988] 1 S.C.R. 670.
Factual Context
[4] The respondent had a very difficult background, one that will be reviewed in more detail later in these reasons. His parents were alcoholics, and he was placed into foster care when he was two or three years old. At the time of the shooting, the respondent was 19 years old and had an extensive youth and adult criminal record. He was of no fixed address, moving between the streets, cheap rental locations and friends’ homes. He admitted to struggling with multiple drug addictions and was both using and selling crystal methamphetamine daily.
[6] On the evening of the shooting, the respondent testified that he and his close friend from foster care, James Matheson, went to sell drugs to a new client and have a drink at a bar. Both the respondent and Mr. Matheson had already consumed crystal methamphetamine and alcohol earlier that day. The respondent had brought his loaded gun because, as he put it, he “didn’t really know” the new client and was not “a hundred percent sure” that he could trust the client “not to try anything.”
[7] On route, with the loaded gun in his pocket and Mr. Matheson at his side, the respondent encountered an elderly man on the street. On the other side of the street, standing outside of a mosque, were four young males: 19-year-old Mr. Al- Hasnawi, his 13-year-old brother Ahmed, and his friends from the mosque,...
[8] ...All agree, however, that Mr. Al-Hasnawi called out to the respondent and Mr. Matheson. Mr. Al-Hasnawi’s brother and friends say that Mr. Al-Hasnawi called out to stop the respondent and Mr. Matheson from bothering the man. On any account, Mr. Al-Hasnawi’s yell prompted the respondent and Mr. Matheson to cross the street and walk toward the four young males at the mosque.
[10] The jury heard conflicting evidence about what transpired next. We will discuss the facts surrounding that interaction in the context of the issue involving self-defence. For now, what is important is that the respondent showing his gun did not defuse the situation at all. Rather, the situation continued to escalate to the point where the respondent and Mr. Matheson took flight. Mr. Al-Hasnawi ran after them and, just as he was catching up to Mr. Matheson, the respondent turned and fired his gun.
ISSUE ONE – DID THE TRIAL JUDGE ERR IN THE INSTRUCTIONS TO THE JURY ON SELF-DEFENCE?
(a) Overview
[23] Second, what the jury was not told. The appellant contends that the trial judge erred by failing to tell the jury that when assessing whether the respondent’s conduct was “reasonable in the circumstances” (s. 34(1)(c) of the Criminal Code,...
(d) The Alleged Error in the Jury Instruction
(i) The Direction Given
[48] The appellant takes issue with what the trial judge said next:
A reasonable person who has the same characteristics and experiences as [the respondent] that are relevant to [the respondent’s] ability to respond to what he reasonably believed was the use or threatened use of force. The reasonable person is a person of the same age, gender, physical capabilities and background. A reasonable person cannot be expected to know exactly what course of conduct or how much force was necessary or required in self-defence or in defence of another person. [Emphasis added]
[53] To the contrary, having regard to the totality of the instruction in the context of this charge as a whole, the word “background” acted as little more than a synonym for the words used in the immediately preceding sentence, where the jury was instructed that a reasonable person is someone who has the “same characteristics and experiences” as the respondent. It is this aspect of the instruction to which we now turn.
A reasonable person is a sane and sober and not exceptionally excitable, aggressive, or fearful [person], a person who has the same powers of self-control that we expect our fellow citizens to exercise in society today.
ISSUE TWO – DID THE TRIAL JUDGE IMPROPERLY EXCLUDE EVIDENCE OF THE RESPONDENT’S INVOLVEMENT IN A ROBBERY SHORTLY BEFORE THE SHOOTING?
(a) Overview
(b) The Impugned Rulings
(i) The Pre-Trial Voir Dire: The Trial Crown Seeks Admission of Prior Disreputable Conduct
[98] In cross-examination, Mr. Matheson’s memory of this alleged robbery waned substantially. He agreed that he had not been entirely truthful with the police on this point. He also agreed that he lies for no reason. He admitted that not only had he lied about the alleged robbery but that, in fact, all the details about it were “a little bit blurry” and “hazy” to him. For example, he could not remember what was said during the alleged interaction with Angel, who spoke to Angel, or whether the respondent had a gun at the time. In the end, he agreed that he had no “clear memory” of any of it, assuming, of course, that there was any such interaction. This was the entire evidentiary foundation upon which the initial admissibility ruling rested.
[99] Relying upon that evidentiary foundation, the trial Crown sought the admission of the alleged robbery evidence....
[101] First, he rejected the use of the robbery evidence for narrative purposes. According to him, other evidence could be adduced to assist the jury in making sense of the narrative in the case.
[109] For the trial judge, the key question in need of answer was one of remedy.
[110] According to the trial Crown, the appropriate remedy was: (1) revisiting the Corbett ruling, a ruling we will discuss below, to allow the Crown to elicit more convictions than initially permitted; and (2) permitting the Crown to question the respondent about the alleged robbery.
(c) The Alleged Error in the Trial Judge’s Initial Ruling on the Crown’s Prior Disreputable Conduct Application
...That chain of reasoning went something like the following: participating in a robbery shortly before a shooting could tend to support an inference that the respondent was in an aggressive or hot-headed state of mind on the night in question which, in turn, could tend to support an inference that the respondent was the aggressor in the confrontation with Mr. Al-Hasnawi. Equally, it could tend to neutralize the suggestion that he was a scared victim on the night in question. If the Crown could prove the respondent was the aggressor, that would bear on the crucial issue of self-defence. This chain of inferences, even if tenuous, was sufficient to satisfy the threshold criterion of relevance.
[120] ...We are satisfied that even if the trial judge had identified the relevance of the evidence in the first place, having regard to the rest of his ruling, he undoubtedly would have arrived in the same place.
(d) The Alleged Error in the Trial Judge’s Refusal to not Allow Cross- Examination on the Robbery Evidence After the Respondent Testified
[129] While the trial judge did say that the alleged robbery incident could not be put to the respondent in cross-examination because there was “no good faith basis” to do so, the terminology he used does not matter. What the trial judge was saying is that, in light of the entire context of the trial, it was simply not fair to introduce into the jurors’ minds the suggestion that the respondent was involved in a robbery with such uncertain contours, which may or may not have happened, and was only supported by a Vetrovec witness who the Crown ultimately agreed was a complete liar.
ISSUE THREE – DID THE TRIAL JUDGE ERR IN THE CORBETT RULING BY EXCLUDING THE RESPONDENT’S PRIOR CONVICTIONS FOR ASSAULT?
(a) Overview
[133] The respondent brought a Corbett application at the close of the Crown’s case, seeking the exclusion of multiple convictions. One of the arguments advanced in support of the Corbett application rested on the application of what counsel described as “Gladue principles”: see R. v. Gladue, [1999] 1 S.C.R. 688. Ultimately, the trial judge excluded many of the convictions, including all those related to assault. He made clear that, if it were not for the application of Gladue principles, a couple of the assault-related convictions may have been available to the Crown for cross-examination.
[136] We will explain why we agree with the trial judge, the parties and the intervener, Aboriginal Legal Services (“ALS”), that an accused’s Indigeneity is a relevant, although not dispositive, factor to take into account in a Corbett application. We will then explain the correct methodology to apply in this context. We will conclude by explaining why we would not interfere with the trial judge’s exercise of discretion in this matter.
(b) Corbett Applications in General
...putting their credibility at issue, cross-examining counsel are presumptively allowed to adduce evidence of prior convictions. It states: “A witness may be questioned as to whether the witness has been convicted of any offence...”. This applies to all witnesses, including an accused who chooses to testify in their own defence.
[140] The nature of the previous conviction directly affects the extent to which it bears upon credibility. Historically, convictions for offences such as direct acts of deceit, fraud, cheating, theft and disrespect for the administration of justice have been considered particularly informative of a witness’ honesty: Brown, at p. 342; M.C., at para. 56; and R. v. Gayle (2001), 54 O.R. (3d) 36 (C.A.), at para. 81, leave to appeal refused, [2001] S.C.C.A. No. 359. At the same time, convictions for other types of offences can also inform credibility assessments. As noted in Corbett, at p. 686, in a passage adopted from State v. Duke (1956), 123 A.2d 745 (S.C.N.H.), at p. 746: even where convictions are disconnected from what are thought to be classic crimes of dishonesty, they have the potential to demonstrate a “[l]ack of trustworthiness” on the part of the witness, one that is “evinced by [an] abiding and repeated contempt for laws which [the accused] is legally and morally bound to obey”: see also Gayle, at para. 81; R. v. Thompson (2000), 146 C.C.C. (3d) 128 (Ont. C.A.), at para. 31; and M.C., at para. 56.
[142] Accordingly, two important limitations have been placed on the use of an accused’s prior convictions. The first limitation is that, unlike other witnesses, the cross-examination of an accused on their criminal record is confined to convictions alone. The second limitation is that, in the normal course, barring the accused doing something that justifies a broader approach, they may only be cross-examined on three narrowly circumscribed areas: (1) the offence convicted of; (2) the date and place of the conviction; and (3) the punishment imposed in the wake of the conviction: Corbett, at pp. 696-97; Stratton, at pp. 466-67; M.C., at para. 55; and R. v. A.J.K., 2022 ONCA 487, at para. 50.
[144] This is where the “Corbett application” comes in. A Corbett application is brought at the end of the Crown’s case and ruled upon before the accused is asked to say whether they will be calling a defence: R. v. Underwood, [1998] 1 S.C.R. 77, at paras. 7-9.
[145] The decision on a Corbett application is a discretionary one. Where the trial judge is satisfied on a balance of probabilities that the probative value arising from the criminal record is outstripped by the prejudicial effect that may arise from its admission, otherwise admissible convictions will be excluded. While not an exhaustive catalogue of factors, in calibrating the probative value and prejudicial effect of admitting the accused’s prior convictions, trial judges typically consider: (1) the nature of the convictions; (2) their remoteness or nearness to the matter under prosecution; (3) the similarity between the offences charged and the prior convictions; and (4) the risk of presenting a distorted picture to the jury: see Corbett, at p. 698, per Dickson C.J., and at pp. 740-44, per La Forest J. (dissenting); M.C., at para. 59; and R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 82.
(c) The Respondent’s Criminal Record and the Parties’ Positions at Trial
[148] The record spans about four years of the respondent’s life, from 15 to 19 years of age. It contains multiple different convictions, including: fail to attend court; dangerous driving causing bodily harm; possession of a controlled substance; multiple counts of breaching probation; possession of property obtained by crime and over $5,000; break and enter; theft; mischief; and assault, including with a weapon and causing bodily harm.
[151] While the respondent advanced many of the same arguments typically heard at a Corbett application, a novel argument was tacked onto the end of his submissions. This argument was that because of the respondent’s Indigeneity, if the jury were to learn about the extent of his criminal record, there was a heightened risk that it could cause an increased degree of prejudice to him.
[152] ...While the trial Crown acknowledged that the respondent’s entire criminal record need not be revealed to the jury, he maintained that at least a “representative sampling” of the assault- related convictions should be admitted. In the end, the Crown sought the admission of three of these convictions.
(f) Gladue Principles
[168] In this case, the parties and ALS, as well as the trial judge, rely on the term “Gladue principles”. This term was coined following the ground-breaking 1999 Gladue decision. The decision in Gladue provided guidance to sentencing judges on factors to be taken into account when sentencing Indigenous offenders. These considerations inform a sentencing methodology that is designed to focus upon the particular circumstances of Indigenous offenders that could “reasonably and justifiably impact on the sentence imposed”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 72. The Gladue factors that courts are directed to consider in particular exercises of judicial reasoning include the systemic or background factors that may have impacted the Indigenous offender’s path to court and the types of sentencing procedures and sanctions that may be appropriate in the circumstances because of the offender’s particular Indigenous heritage or connection: Gladue, at para. 66; Ipeelee, at para. 72. Ultimately, as in all sentencing matters, the aim is to achieve a fit and proper sentence in the individual circumstances of the case.
(g) Corbett Applications and the Gladue Principles
(i) Overview
(ii) The Corbett Analysis and Indigeneity: Weighing Probative Value Against Prejudicial Effect
Probative Value
[180] This context is important because it can inform the probative value of admitting the criminal record by detracting from the strength of the credibility inference that could otherwise be taken. The probative value of a prior conviction in a Corbett application is always rooted in the strength of the inference that can be drawn from the fact of the conviction to the testifying accused’s credibility. Accounting for any distortions caused by the possibility of stereotyping and systemic biases against Indigenous people may reveal that the criminal record is much less reflective of an Indigenous accused’s subjective disregard for the truth or contempt for the law than would otherwise appear. This, of course, drives down the probative value of its admission.
[182] Trial judges need not insist on evidence of a direct causal link between a conviction and the overt and systemic racism experienced by Indigenous people before this context can be considered. While there must be some evidence to support the circumstances that have impacted the accused’s life, much like the evidence led in this case, there need not be a direct causal link established between those circumstances and the past offending conduct that resulted in the conviction. As in the sentencing context, it would be nearly impossible to draw a direct link between an accused’s experience of disadvantage resulting from historical discrimination and an accused’s criminal record: “the interconnections are simply too complex”: Ipeelee, at para. 83.
[184] ...What the accused must do within the Corbett voir dire is what the respondent did in this case, albeit during his evidence in-chief (a process we would not endorse) – demonstrate that the systemic and background factors affecting Indigenous people in Canada is tied in some way to the particular accused and the conviction.
An examination of the intergenerational impact of the residential school system, cultural isolation, substance abuse, family dysfunction, inadequate housing, low education levels and un- or underemployment on an Aboriginal offender may inform questions about why an accused has an extensive criminal record and, if applicable, why that person has demonstrated an inability to comply with pre-trial release conditions in the past [Emphasis in original.]
[192] ...All that is changing is that, when determining the degree to which the conviction will assist in advancing the credibility inquiry, or, the probative strength of the conviction-to-credibility inference, trial judges will now also consider the matter within the context of the discriminatory effects of the historical and current treatment of Indigenous people.
Prejudicial Effect
[195] ...Of course, Corbett itself, paving the way to displace the statutory presumption of admission, is a recognition that the pre-existing procedural safeguards will not always be sufficient to guard against improper propensity reasoning. As Moldaver J. put it in Barton, at para. 176, while important, juror oaths and juror instructions directed at purging biases from the courtroom “are not a panacea”.
(h) Application to this Case
[197] ...While it would have been preferrable had the trial judge conducted an evidentiary voir dire and not simply left it to defence counsel to elicit relevant evidence during examination-in-chief, no harm was occasioned by how the matter proceeded.
[199] In the end, the appellant’s main contention is that the trial judge should have allowed at least one of the assault convictions to be placed before the jury. The trial judge’s decision to the contrary is owed deference. We would simply point out that four of the five assault-related convictions resulted from when the respondent was a youth and, while the jury may not have known about these convictions, they certainly knew that the respondent was a recidivist. To this end, we adopt what Doherty J.A. had to say in Talbot, at para. 35, a case similar to this one, where the jury heard about 19 prior crimes but did not hear about the respondent’s 6 assault- related convictions:
The jury would no doubt see the very direct connection between many of the crimes the respondent had committed and his trustworthiness. It is difficult to think that the jury’s assessment of the respondent’s credibility based on his criminal record would have been different had they known that he had committed not only some nineteen crimes, many of which involved dishonesty, but had also committed six additional crimes of violence.
[201] Trial judges are afforded a wide berth of discretion in making their Corbett determinations: R. v. Charland, [1997] 3 S.C.R. 1006, at pp. 481-82; R. v. Wilson (2006), 210 C.C.C. (3d) 23 (Ont. C.A.), at para. 32. We owe that exercise of discretion deference. As Doherty J.A. said in Talbot, at para. 37, “this court does not review the correctness of the decision arrived at by the trial judge.” In this case, the trial judge’s exercise of discretion was not unreasonable, reflects no error in principle and is not tainted by a misapprehension of the material facts: see R. v. R.D., 2019 ONCA 951, 382 C.C.C. (3d) 304, at para. 13.
Conclusion
R v Demirovic, 2022 NSCA 56
[September 15, 2022] Charter s.8 - Reasonable Grounds and Confidential Sources [Reasons by Wood C.J.N.S. with Beveridge and Bryson JJ.A. concurring]
AUTHOR’S NOTE: This case provides a great overview of the principles governing review of warrantless arrests on the basis of confidential source tips. It covers all the important portions of the assessment of whether a tip is compelling, credible, and corroborated. However, because it arose out of a complaint about the lack of reasons of the trial judge, it reinforces that judges have to give weight to the answers they assign to the three Debot questions. It is insufficient for them to declare, in conclusory fashion, that a tip was compelling, credible and corroborated. Here, the source of the tip both in credibility and whether it was compelling (ie. sourced in hearsay or rumour) required significant corroboration which was lacking.
Reasons for Judgment:
[2] The police had received information from confidential sources that cocaine was being delivered to Great Buys hidden in motor vehicles shipped from out of the province.
[3] Shortly after 11:00 a.m. a black Audi Q7 arrived at Great Buys carrying three individuals, two males and a female. The driver, Tyler Richards, was identified by one of the police officers as a person believed to be associated with drug trafficking. Shortly after their arrival, a “dealer” plate was placed on a silver Mercedes and the individuals left the premises in that vehicle. They returned a short time later with an additional passenger, the appellant, Jasmin Demirovic.
[4] Other than Mr. Richards, none of the occupants of the Mercedes were known to the members of the surveillance team.
[5] After Mr. Richards, Mr. Demirovic and the female passenger went into Great Buys’ premises; the other passenger, Anthony Roberts, transferred a black suitcase from the trunk of the Mercedes to the Audi. An hour later, the three males left Great Buys in the Audi and the female drove off in the Mercedes.
[6] The police followed the Audi and ultimately stopped the vehicle in Halifax where they arrested the three occupants on suspicion of trafficking in cocaine. They searched the vehicle. The locked suitcase was opened, and two 1-kilogram packages of cocaine were discovered. Messrs. Richards, Roberts, and Demirovic were charged with possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. Mr. Demirovic was also charged with breach of a probation order contrary to s. 733.1(1)(a) of the Criminal Code.
It is my intention to give an overview of my decision today. I’ll give my full decision later along with the trial decision.
Analysis
Requirements for Lawful Arrest
Arrest without warrant by peace officer
495 (1) A peace officer may arrest without warrant(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
[22] In Debot, the issue was whether the police had reasonable grounds to believe the appellant was in possession of a controlled drug when they decided to search him. If not, the search would be unlawful. In assessing this question, the Court outlined the considerations in play (page 1168):
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a ‘tip’ originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the ‘totality of the circumstances’ must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
Although Greffe concerns admissibility under s. 24(2), in my opinion the discussion has a bearing on the sort of information that must be put before a judge issuing an authorization for electronic surveillance. I see no difference between evidence of reliability of an informant tendered to establish reasonable and probable grounds to justify a warrantless search (the issue in the cases cited by Lamer J.) and evidence of reliability of an informant tendered to establish similar grounds in respect of a wiretap authorization. Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court
in Debot and Greffe.(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.
(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:
(a) the degree of detail of the "tip";
(b) the informer's source of knowledge;
(c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.
(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.
[31] In my view, the record does not support a finding that the informants were credible and reliable. Although the tips were not anonymous and neither informant had a criminal record for public mischief or perjury (ITO, ¶9-10), there were, as the trial judge noted (2019 NSSC 69, ¶15-19, 21-24), minimal if any objective indicators of their credibility and reliability.[32] Corporal Kuchta’s testimony that the informants had previously provided information multiple times, once leading to a charge, reveals—without more detail—little, if anything, about the informants’ credibility or reliability.
[27] This approach to the assessment of reasonable grounds ensures police have more than a mere suspicion. They must believe it is probable the target is engaged in criminal activity, and this belief must be objectively reasonable.
Voir Dire Decision
- Was the information suggesting the occupants of the Audi were engaged in drug trafficking compelling?
- Were the confidential sources of this information reliable?
- Was the information which was obtained from the confidential sources corroborated by police investigation prior to the decision to arrest the occupants of the Audi?
[42] The trial judge’s decision does not tell us whether she went through the required analysis or how she assessed and weighed the factors. She referred to the “Garofoli/Debot test” but simply stated her conclusion that the grounds required to arrest the individuals existed.
[43] A review of the voir dire evidence suggests there are real concerns about the sufficiency of the evidence relied upon to justify the decision to arrest. The source information concerning Great Buys and Mr. Richards was general in nature and not corroborated by police investigation prior to the arrest. There is no indication how the informant knew of Mr. Richard’s prior involvement in drug trafficking and whether it was based upon personal observation or second-hand knowledge.
[45] The information relied upon by Det. Cst. Baird is far from compelling, and it was incumbent on the trial judge to explain how this is outweighed by other circumstances so that the decision to arrest was objectively reasonable....
[48] To the extent that these obiter comments imply that an unlawful arrest might not violate the Charter, such a suggestion was expressly rejected by the Supreme Court of Canada in R. v. Grant:
[22] Consistent with this purpose, a lawful arrest or detention is not arbitrary, and does not infringe s. 9 of the Charter, unless the law authorizing the arrest or detention is itself arbitrary (see Grant, at para. 54; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 20). Conversely, an unlawful arrest or detention is necessarily arbitrary and infringes s. 9 of the Charter (see Grant, para. 54; R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 3).[emphasis added]
Conclusion
R v Starrett, 2022 ABKB 613
[September 13, 2022] Sentencing: Gladue, Collateral Consequences, Harsh Bail Conditions, and State Misconduct [Justice John T. Henderson]
AUTHOR’S NOTE: Although two tragic stories underly this sentencing case some of the principles explained in thorough detail are something to be excited about. After Gladue principles are used to meaningfully reduce the sentence, the ruling goes on to explain and apply other principles to also reduce sentence including state misconduct (frightening comments by correctional guards), collateral consequences (administrative segregation, fecal bombing, protests at his home), and harsh bail conditions (house arrest with no work exceptions).
I. Introduction
[2] These are the reasons for the sentence that I impose in relation to the offences.
II. Circumstances of the Offence
[4] The assault on Mr. Starrett’s daughter occurred at or near the same time as the attack on Ares. During the assault Mr. Starrett struck his daughter in the side of the head with a closed fist on at least two occasions. This resulted in bruising and bleeding to the side of the head and facial areas.
III. Circumstances of the Offender
[6] When Mr. Starrett testified at trial, he provided detailed information regarding his background, schooling, health history, employment background and his personal circumstances generally. In addition, a forensic psychologist, Dr. Ennis, also testified at trial regarding the results of his psychological testing of Mr. Starrett. The results of the psychological testing are also described in the report Dr. Ennis prepared and which was marked as a trial exhibit. I also have the benefit of a report prepared pursuant to R v Gladue, [1999] 1 SCR 688 (Gladue) (the Gladue Report) that provides additional detail focusing on Mr. Starrett’s background as an Indigenous Person.
2) Proportionality and the Relationship to s 718.2(e) of the Criminal Code
The background considerations regarding the distinct situation of [A]boringinal peoples in Canada encompass a wide range of unique circumstances, including, most particularly:
a) The unique systemic or background factors which may have played a part in bringing the particular [A]boriginal offender before the courts; and
b) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular [A]boriginal heritage or connection.
(see also R v Ipeelee, 2012 SCC 13 (Ipeelee) at para 59)
4) Application of Gladue Factors to the Facts
[64] The evidence discloses several Gladue factors that arise from Mr. Starrett’s personal circumstances:
- Mr. Starrett’s family has a history of attendance at residential schools. Both maternal grandparents attended residential schools. We now fully recognize the intergenerational impact that the residential schools have had upon subsequent generations, including negative impacts with respect to substance abuse, the use of violence, and the loss of personal identity.
- There is a history of substance abuse in Mr. Starrett’s family. Mr. Starrett’s mother suffered from drug and alcohol dependence. This gives rise to the concerns regarding FASD and ADHD that were discussed in Mr. Starrett’s Glenrose Hospital records. Mr. Starrett also struggled with his own drug addiction issues, which are extensive.
- Mr. Starrett’s education is at the lower end. He did not finish grade 12.
- Mr. Starrett has been disconnected from his family and culture of origin. Mr. Starrett had essentially no contact with his biological father and was removed from the care of his biological mother at age 18 months. He was raised in a non- Indigenous home by persons with whom he had no direct family ties. Mr. Starrett’s feelings of abandonment arise from this placement and has resulted in a loss of connection to his Indigenous background, history, and traditions.
Mr. Starrett has a history of suicide attempts.
[66] All of these factors played into Mr. Starrett’s development and the psychological vulnerabilities that were described by Dr. Ennis. As a result, these Gladue factors did have an impact on Mr. Starrett as a person and serve to reduce his moral blameworthiness.
[67] Because the Gladue factors and the psychological vulnerabilities impact Mr. Starrett’s moral blameworthiness, the practical effect will be to reduce his sentence from that which would notionally be given to someone coming before the Court without being saddled with these factors.
VII. A Fit and Proper Sentence
A. State Misconduct
You are a baby killer they are letting you go. You’re a piece of shit.
Maybe I should tell the GP boys [i.e. prisoners in the general population] what you are in for.
I can’t believe they are letting you go. You should kill yourself.
He’s a fucking baby killer.
[112] In R v Nasogaluak, 2010 SCC 6, the Supreme Court made it clear that the sentencing regime in the Criminal Code provides sufficient flexibility to permit a Court to consider state misconduct as a factor in sentencing, provided that the misconduct relates to either the circumstances of the offence or the offender and had an impact on the offender: para 3.
[113] Misconduct by state actors can include the actions of remand center guards. In R v Gallant, 2018 ABCA 314 the Offender was in custody at ERC awaiting trial when he was assaulted by two ERC guards....
[115] The misconduct of the ERC guards had a direct impact on Mr. Starrett. The unchallenged evidence is that Mr. Starrett was in a very fragile emotional state at the time of his release from ERC in April 2020. The actions of the ERC guards added to Mr. Starrett’s feelings of anxiety, worry, and upset, and Mr. Starrett was scared that he was going to be harmed.
B. Collateral Consequences
[120] In Suter, the Supreme Court concluded that it was appropriate for the Sentencing Judge to consider the collateral consequences that Mr. Suter suffered at the hands of vigilantes in sentencing Mr. Suter. Mr. Suter was kidnapped from his home in the middle of the night by three hooded men. He was handcuffed and a canvas bag was placed over his head. His kidnappers then drove him to a secluded area, cut off his thumb with pruning shears, and left him unconscious in the snow.
[121] Mr. Starrett was in custody at ERC from the date of the offence on November 23, 2019 until his release on April 9, 2020. He was returned to custody at ERC on June 29, 2022, and has remained there until today. For almost all his time at ERC Mr. Starrett was housed in administrative segregation. This meant that he was restricted to his cell except for exercise time. For approximately three weeks in December 2019 and again beginning on July 30, 2022, Mr. Starrett was permitted two hours of exercise time per day. For the remainder of his time in custody, Mr. Starrett had only one hour of exercise time per day. For his own safety and at his request, most of Mr. Starrett’s exercise time was taken alone but, also at his request, from time to time, he exercised with other prisoners.
[122] I am satisfied that the extent of the administrative segregation is worthy of some credit as a collateral consequence. While there is no evidence as to the psychological or physical impact the administrative segregation had on Mr. Starrett, I am prepared to infer that this time in custody was much harsher than was experienced by other remand prisoners. I also infer that this had a negative psychological impact on Mr. Starrett, but I have no basis of determining the extent of that impact.
[126] For these reasons I reduce Mr. Starrett’s sentence by 4 months to globally take into consideration the collateral consequences.
C. Harsh Bail Conditions
[128] The release order made Mr. Starrett subject to house arrest with the only exceptions to be:
- One hour of exercise outside the home but no further than 500 meters of the residence with an accompanying adult (who must be within 2 meters) between 7:00 am and 10:00 pm
- Attend at RCMP detachment and at his Bail Supervisor’s office
- With the permission of his Bail Supervisor, Mr. Starrett was permitted too Attend lawyer appointments
o Attend medical appointments
o Other exceptions on an emergency basis
[134] On the other hand, in R v Newman, 2005 ABCA 249, the Court dismissed a Crown appeal from a sentence where 1:1 credit was given for bail conditions that amounted to house arrest. The sentencing judge noted a conditional sentence order could not have contained more restrictions on the Offender’s liberty.
[135] I am satisfied that the release conditions impose on Mr. Starrett were very restrictive. The onerous nature of the conditions, and the resulting restrictions on his liberty justify some credit against the sentence. However, as Courts of Appeal have noted, “bail is not jail” (Faulkner at para 10; Ijam at para 12). While Mr. Starrett was not able to leave the home for work or other activities, he was able to live with his grandparents and, for a period of several months have his girlfriend live with him.
[136] When I consider all of the circumstances, particularly the restrictive nature of the release conditions, I am satisfied that Mr. Starrett’s sentence should be reduced on a 0.5:1 basis for each day of his release.
[137] Mr. Starrett was on release from April 9, 2020 to June 29, 2022 or a total of 811 actual days. His sentence should be reduced by 406 days or 13.5 months.