



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kreko, 2016 ONCA 367

DATE: 20160516

DOCKET: C59203

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Kreko

Appellant

David E. Harris, for the appellant

Eric Siebenmorgen, for the respondent

Emily Hill and Caitlyn Kasper, for the intervener
Aboriginal Legal Services of Toronto

Heard: April 18, 2016

On appeal from the sentence imposed on January 7, 2014 by
Justice David M. Stone of the Ontario Court of Justice.

Pardu J.A.:

[1]

The sentencing judge erred in concluding that the appellants Aboriginal
heritage was irrelevant to his sentencing. This error affected the 13-year
global sentence imposed on the appellant and it falls to this court to
determine an appropriate sentence.

A.

facts

[2]

The offences to which the appellant pleaded guilty were very serious:
possession without lawful excuse of a loaded prohibited firearm, robbery with a
handgun, and intentional discharge of a firearm while being reckless as to the
life or safety of another person, contrary to ss. 95(2), 343(d) and 244.2(3) of
the
Criminal Code
, R.S.C. 1985, c. C-46.

[3]

The facts can be summarized briefly. The appellant followed the victim, Jason
Gomes, from an LCBO to an apartment parking lot. After Mr. Gomes got out of his
vehicle, the appellant, his face masked with a bandana, approached Mr. Gomes
with a gun in his hand. There was a struggle. The gun went off and the bullet
hit the ground. The appellant took a necklace and a cell phone belonging to Mr.
Gomes before fleeing on foot. Mr. Gomes got back in his car and pursued the
appellant. He drove at the appellant and struck him with his car with enough
force to crack the windshield when the appellants body hit it. The appellant then
fired three bullets at the car. One of the bullets went through the drivers
headrest and entered Mr. Gomess scalp, but fortunately did not penetrate or
fracture his skull and did not seriously injure him. The appellant also accidentally
shot a bullet into his own leg, causing serious injury. He required surgery and
hospitalization, and has been left with enduring physical problems with his
leg.

B.

The appellants aboriginal heritage

[4]

The appellants mother, who was Aboriginal, was only 15 years old when
he was born on August 18, 1989. She could not adequately care for him, and the
appellant was placed in foster care because of concerns about her lifestyle. Around
the time of his first birthday, the appellant was placed for adoption with a
non-Aboriginal couple.

[5]

The appellants birth mother suffered from a chaotic childhood herself. Both
of her parents struggled with alcoholism. When she was four-and-a-half years
old, she was admitted to hospital and placed in the care of the Childrens Aid
Society after consuming some of her mothers alcohol. She was placed in her
grandmothers care, as well as various foster homes, before finally becoming a
Crown ward at age 11. She was still a Crown ward when she gave birth to the
appellant.

[6]

The appellants maternal grandmother died at age 28. She was a depressed
alcoholic, unable to parent her children. The appellants maternal grandfather
was raised in a large family on a reserve in Ontario, but he and his siblings spent
years in the care of the Childrens Aid Society because of parental neglect and
alcoholism.

[7]

The adoption order was made when the appellant was nearly two years old.
The next year, the appellants adoptive mother left the family to pursue
another relationship. She did not remain involved in the appellants life.

[8]

The appellant grew up not knowing he was adopted. He assumed that his
heritage was Finnish and French, like his adoptive parents, but he was often
challenged by other kids on this point, who suggested he had other ancestry.

[9]

When the appellant was between 16 and 18 years old, his adoptive father
told him of the adoption. This came as a shock to him, and the realization of
the loss of both his adoptive mother and his birth mother led to feelings of
abandonment, resentment, and a sense that he was unwanted.

[10]

The appellant began trying to locate his birth parents in or around 2007
or 2008. Around the same time, his adoptive mother came back to live with his
adoptive father, but her relationship with the appellant was difficult.

[11]

As a teenager, the appellant became interested in what he called black
culture. He listened to hip hop music and wore baggy clothes. He also
developed a fascination with guns, gangs and aggression.

[12]

The appellant has struggled with his identity and his adoption. However,
he has now found his birth mother, and has successfully completed a number of
rehabilitative Aboriginal programs. He has embraced his Aboriginal heritage.

C.

Submissions before the sentencing judge

[13]

At the sentencing hearing, the Crown submitted that the appellants Aboriginal
heritage was irrelevant to the appropriate sentence. In the Crowns view, the
appellant had been raised by his adoptive parents, had only recently learned of
his Aboriginal heritage, and had not faced any of the systemic disadvantages or
impediments experienced by other Aboriginals. The Crown therefore submitted
that there was no connection at all between the appellants Aboriginal background
and his offences.

[14]

The defence submitted that the appellants background was relevant to
his moral blameworthiness, and that there were unique systemic and background
factors which had played a role in the offences before the court. The defence
submitted that the appellant had an identity crisis when he learned of his adoption
and his Aboriginal heritage, which coincided with his involvement in the
criminal justice system. The defence further submitted that the appellants own
dislocation was characteristic of the systemic disadvantage experienced by
persons of Aboriginal heritage.

D.

Reasons of the sentencing judge

[15]

The sentencing judge gave no weight to the appellants Aboriginal
background when he considered the length of the sentence to be imposed:

Although a direct, causal link is not
required, there is no such tie in this case
.

Mr. Kreko may very
well suffer and feel abandoned by his adoptive mother and his biological
mother. I can sympathize with him in this, even as his father was doing his
best to raise his son to be well-educated, involved in sports, supported in
music and recording, and pro-social.
There was nothing
tied to his Aboriginal genetic heritage, let alone considerations in
Gladue
and
Ipeelee
, that led the
accused, Mr. Kreko, to the negative side of hip-hop, including its fascination
with guns.

Perhaps, as the
Gladue
report suggests
implicitly, his desire to drive a Jaguar like a big shot, not turn in his drug
associates, and possess a gun on behalf of a criminal associate, relates to a
need to belong.
These things relate to gang culture and
do not relate to his Aboriginal background.
[Emphasis added.]

[16]

In a report given to the Court of Appeal under s. 682 of the
Criminal
Code
, the sentencing judge reiterated:

Mr. Kreko is biologically descended in part from Aboriginal [heritage].
However, he was adopted as an infant by a couple whose ethnic backgrounds were [Finnish]
and French-Canadian, and was raised as a white child in Ajax
. The
Gladue
Report traced his subsequent inconsistent efforts to learn about Aboriginal
values, customs, and societal supports. Meanwhile, he was gravitating toward a
different group in Ajax, and became quite involved with the negative side of hip-hop,
with its drugs and guns. His associates led or helped him into offences
involving both.

It appeared to me that his Aboriginal
connection had been irrelevant to his offences, or how he got there
. While
his partly Aboriginal teenage mother had given him up for adoption  [t]he most
important aspect of this was not some colonial treatment of the birth mother. It
was his discovery that not only had he been abandoned by the woman he thought
was his mother in Ajax, but that he had another mother, his birth mother, and
she had abandoned him too.

I ultimately held that his Aboriginal
heritage could not be linked in any meaningful way to these current offences,
although his hip-hop affiliations could
. Aboriginal values would mirror
non-Aboriginal societal values in condemning the offences before the court. [Emphasis
added.]

E.

ISSUES

[17]

The appellant submits that the sentencing judge erred in principle by requiring
a causal connection between the appellants Aboriginal background and his
offences, and that the ultimate sentence imposed was therefore unfit. He
further submits that the sentencing judge improperly intervened in the
appellate process through the report that he provided to this court under s.
682 of the
Criminal Code
.

F.

Analysis

(1)

Failure to consider the appellants Aboriginal heritage

[18]

Section 718.2 of the
Criminal Code
requires consideration of
the principles of sentencing, including the following principle:

(e) all available sanctions, other than
imprisonment, that are reasonable in the circumstances and consistent with the
harm done to victims or to the community should be considered for all
offenders, with particular attention to the circumstances of Aboriginal
offenders.

[19]

As observed in
R. v. Gladue
, [1999] 1 S.C.R. 688, at para.
93(3), s. 718.2(e) is remedial in nature: it is intended to ameliorate the
serious problem of overrepresentation of Aboriginal people in prisons.

[20]

The sentencing judge erred by effectively requiring a causal link
between the appellants Aboriginal heritage and the offences, as is illustrated
by the following extracts from his reasons for sentence and report to the Court
of Appeal:

·

There
was nothing tied to his Aboriginal genetic heritage, let alone considerations
in
Gladue
and
Ipeelee
, that led the accused, Mr. Kreko, to
the negative side of hip-hop, including its fascination with guns.

·

These
things [possession of a gun, driving a Jaguar] relate to gang culture and do
not relate to his Aboriginal background.

·

It
appeared to me that his Aboriginal connection had been irrelevant to his offences,
or how he got there.

·

I
ultimately held that his Aboriginal heritage could not be linked in any
meaningful way to these current offences, although his hip-hop affiliations
could.

[21]

The jurisprudence makes it clear that no causal link is required. In
R.
v.
Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court held
that it was an error to require an Aboriginal offender to establish a causal
link between his or her background factors and the commission of the offence(s)
in question before he or she is entitled to have those factors considered by
the sentencing judge. The court suggested, at para. 82, that requiring a causal
connection demonstrated an inadequate understanding of the devastating
intergenerational effects of the collective experiences of Aboriginal peoples,
and also imposed an evidentiary burden on the offender that was not intended by
Gladue
.

[22]

The court continued, at para. 83:

[I]t would be extremely difficult for an Aboriginal offender to
ever establish a direct causal link between his circumstances and his
offending. The interconnections are simply too complex. The Aboriginal Justice
Inquiry of Manitoba describes the issue, at p. 86:

Cultural oppression, social inequality, the loss of
self-government and systemic discrimination, which are the legacy of the
Canadian governments treatment of Aboriginal people, are intertwined and
interdependent factors, and in very few cases is it possible to draw a simple
and direct correlation between any one of them and the events which lead an
individual Aboriginal person to commit a crime or to become incarcerated.

Furthermore, the operation of s. 718.2(
e
) does not
logically require such a connection. Systemic and background factors do not
operate as an excuse or justification for the criminal conduct. Rather, they
provide the necessary context to enable a judge to determine an appropriate
sentence.

[23]

The court explained that what is required is that the factors must be
tied to the particular offender and offence(s) in that they must bear on his or
her culpability or indicate which types of sanctions may be appropriate in
order to effectively achieve the objectives of sentencing. Finally, the court in
Ipeelee
also made it clear that s. 718.2(e) applies to serious offences:
see paras. 84-86.

[24]

In the present case, the appellants dislocation and loss of identity
can be traced to systemic disadvantage and impoverishment extending back to his
great-grandparents. This was relevant to his moral blameworthiness for the
offences. The intervener has referred to some studies suggesting that adoptions
of Aboriginal children by non-Aboriginal parents have a significantly higher
failure rate than other adoptions. The appellants Aboriginal heritage was
unquestionably part of the context underlying the offences. The sentencing
judge erred by failing to consider the intergenerational, systemic factors that
were part of the appellants background, and which bore on his moral
blameworthiness, and by seeking instead to establish a causal link between his
Aboriginal heritage and the offences.

[25]

The sentencing judge also misapprehended the evidence about the
appellants efforts to reconnect with his heritage:

I applaud any efforts by Mr. Kreko to put down any pro-social
roots he can, and that includes the Aboriginal healing path in which he has dabbled
to date.
I note he did not participate in that path while at the Central
East Correctional Centre
. [Emphasis added.]

[26]

The evidence was that the appellant did participate in Aboriginal
programming and counseling at the Central East Correctional Centre when he was held
in pre-trial custody there in 2008 and 2009.

(2)

The appropriate sentence

[27]

According to the Supreme Court in
Ipeelee
, at para. 87,

failure
to consider the unique circumstances of Aboriginal offenders, when required, is
an error justifying appellate intervention:

The sentencing judge has a statutory duty, imposed by s. 718.2(
e
)
of the
Criminal Code
, to consider the unique circumstances of
Aboriginal offenders. Failure to apply
Gladue
in any case involving an
Aboriginal offender runs afoul of this statutory obligation. As these reasons
have explained, such a failure would also result in a sentence that was not fit
and was not consistent with the fundamental principle of proportionality.
Therefore, application of the
Gladue
principles is required in every
case involving an Aboriginal offender  and a failure to do so constitutes an
error justifying appellate intervention.

[28]

I turn then to the question of the appropriate sentence. The appellant
was only 22 years old at the time of these offences. Although he had a criminal
record, he had not received sentences imposing further custodial time in
addition to pre-trial custody.

[29]

The Crown opposes admission of fresh evidence of the respondents
successful reconnection with his biological mother following sentencing, and
the profound impact upon him of his reconnection with his Aboriginal heritage.
This evidence could not have been introduced at sentencing, is relevant and
credible, and could reasonably when taken with the other evidence adduced at
the hearing be expected to have affected the result. I would accordingly admit
the fresh evidence.

[30]

The Crown accepted at the sentencing hearing that the appellant was
genuinely remorseful, based on his statements to the author of the
Gladue
report. At the hearing, the appellant apologized to the individuals affected by
his acts, their families and the community of Ajax. There was a consensus that
there was a real possibility of rehabilitation.

[31]

On the other hand, the fact that these offences were committed in
violation of two weapons prohibition orders and in violation of a conditional
sentence, which included house arrest and a prohibition of possession of a
weapon, is a seriously aggravating factor. There is no doubt that the
seriousness of the offences requires a severe sentence. I have concluded that a
global nine-year sentence would adequately serve the principles and objectives
of sentencing set out in the
Criminal Code
, including giving weight to
the background and systemic factors related to the appellants Aboriginal
heritage, as well as the possibility of rehabilitation.

[32]

In the result, I would leave intact the three-year consecutive sentence
imposed by the trial judge for the s. 95(2) offence, but I would vary the
sentence on the other two counts to six years before credit for pre-sentence
custody. The appellant spent 20 months in pre-sentence custody, which should be
credited as 30 months, leaving the global sentence to be served, as of January
7, 2014, at 78 months or 6.5 years. The other ancillary orders made by the
sentencing judge should remain.

(3)

The report under s. 682

[33]

Section 682(1) of the
Criminal Code
requires a trial judge, at
the request of the Court of Appeal, to report on the case or on any matter
relating to the case that is specified in the request. The form letter sent to
the sentencing judge in this case asked whether there were any rulings that
appeared relevant to the appeal, and if so, to attach any relevant and
available transcripts.

[34]

A trial judge should not use the report to supplement his or her reasons,
as occurred in this case. As the Supreme Court observed in
R. v.
E.
(A.W.)
, [1993] 3 S.C.R. 155, at p. 173:

It is well established that a trial judge, in furnishing the
Court of Appeal with a report, must be vigilant to avoid simply expanding upon
reasons or rulings previously given or providing reasons where none were given
at trial. In such circumstances, a trial judge's report will be held invalid.

G.

DISPOSITION

[35]

I would grant leave to appeal sentence and allow the appeal to the
extent of reducing the appellants sentence to nine years, less 30 months credit
for pre-sentence custody, leaving a global remaining sentence of 78 months.

Released: (GRS) May 16, 2016

G. Pardu J.A.

I agree G.R. Strathy
C.J.O.

I agree E.E. Gillese
J.A.


