The issue on this appeal was how s. 718.2(e) of the Criminal Code should be applied where an Aboriginal offender has breached a condition of a long-term supervision order. In 2003, the appellant was sentenced to three years’ imprisonment for breaking into a dwelling house and committing sexual assault. This was his fourth conviction for similar sexual offences, amongst approximately 40 prior convictions. He conceded the long-term offender designation sought by the Crown, and a seven-year supervision order was imposed. Following his release from custody in 2006, he was convicted of three breaches of the condition of the order that he abstain from consuming intoxicants, and was returned to custody. There was a delay in his release in 2009, which resulted in his inability to occupy a space in a Kamloops halfway house where he would have received the support of an Aboriginal elder. He was instead sent to a halfway house in downtown Vancouver, where he was immediately exposed to drugs. He tested positive for their use on several occasions, and was sentenced to three years’ imprisonment after pleading guilty to breaching the supervision order. He argued on appeal that the sentencing judge failed to give effect to his Aboriginal heritage and to s. 718.2(e) of the Code, and that the sentence was demonstrably unfit in the circumstances.
The appellant grew up in extremely disadvantaged circumstances. His parents had significant substance abuse problems, and passed away when he was very young. He initially lived with his grandparents, but was removed from his community and placed in a residential school at the age of five, where he was sexually abused. He began consuming alcohol at the age of nine, and had abused alcohol and/or illicit drugs for all but a six-year period since that time. His criminal convictions were closely linked to his substance abuse.
The majority of the Court of Appeal allowed the appeal on the basis that the sentencing judge failed to give sufficient weight to his Aboriginal heritage and to the principle of rehabilitation, leading her to impose an unfit sentence. The majority was of the view that, despite recognizing the appellant’s background and circumstances, she did not give “any tangible consideration” to his Aboriginal heritage, but, rather, gave undue weight to the principle of isolation of the offender. In this case, the appellant’s substance abuse was directly related to his treatment as an Aboriginal person. Despite his failed attempts to live in the community without breaching his supervision order, the majority noted that the appellant would need to learn how to manage his substance abuse in the community, and referred to his desire to do so.
The majority rejected the view that rehabilitation will play only a small role when sentencing long-term offenders, and found that the trial judge erred in concluding that it was no longer a factor for the appellant. They were of the view that the role of rehabilitation in sentencing will depend on the circumstances of the offender and is not dependent on his or her designation, and that the direction in s. 718.2(e) to exercise restraint with particular attention to Aboriginal offenders is still to be applied where the individual is a long-term offender.
The majority believed that a sentence of one year would properly reflect the principles and purpose of sentencing, allowing the appellant time to achieve sobriety and for correctional staff to find an appropriate place for him following his release.
Chiasson J.A. dissenting, would have allowed the appeal in part. Although recognizing that the Aboriginal background of an offender is an additional factor to be taken into account by sentencing judges, he was of the view that there was no general rule necessitating an emphasis on rehabilitation when sentencing Aboriginal offenders. In the circumstances, the sentencing judge considered the appellant’s background, and Chiasson J.A. felt that it would be inappropriate for the Court to interfere with the weight the judge gave to the various factors she considered or her emphasis on the protection of the community. He would have reduced the appellant’s sentence to two years. The Supreme Court of Canada recently upheld the decision of the majority of the Court of Appeal, in reasons reported under R. v. Ipeelee, 2012 SCC 13.
March 8, 2011
Link to Decision
Julia Wilkes
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