



WARNING

The President of the
    panel hearing this appeal directs that the following should be attached to the
    file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)         Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)       any of the
    following offences;

(i)         an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)        any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)       REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)       two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in paragraph (a).

(2)       In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)       at the
    first reasonable opportunity, inform any witness under the age of eighteen
    years and the victim of the right to make an application for the order; and

(b)       on
    application made by the victim, the prosecutor or any such witness, make the
    order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings
    in respect of an offence other than an offence referred to in subsection (1),
    if the victim is under the age of 18 years, the presiding judge or justice
    shall

(a) as soon as
    feasible, inform the victim of their right to make an application for the
    order; and

(b) on application
    of the victim or the prosecutor, make the order.

(3)       In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)       An order
    made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)         Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(2)       For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. F.H.L., 2018 ONCA 83

DATE: 20180130

DOCKET: C60396

Watt, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

F.H.L.

Appellant

Paolo Giancaterino and Marco Sciarra, for the appellant

Andrew Cappell, for the respondent

Heard: September 5, 2017

On appeal from the sentence imposed by Justice T.D. Ray
    of the Superior Court of Justice on January 24, 2014, with reasons reported at
    2014 ONSC 38.

Epstein J.A.:

OVERVIEW

[1]

The appellant sexually assaulted his girlfriends daughter, E.B., when
    she was 12 years old. About ten months later, E.B. gave birth. The appellant
    declined to submit to a DNA test without a court order. A DNA order was
    obtained. The test proved the baby was his.

[2]

The appellant was arrested and released on a recognizance. In breach, he
    fled to Alberta. He was apprehended and brought back to Ontario where he was
    charged with one count of sexual assault and one count of touching a person
    under the age of fourteen years for a sexual purpose. He pled guilty to both
    offences.
[1]

[3]

At the outset of his sentencing hearing, the appellant admitted to a
    single incident of sexual intercourse. He testified that one night, he was
    lying in bed when E.B. entered his bedroom, crawled onto his bed, straddled him
    and started kissing him. She took off her pants and underwear and slid on top
    of his penis. When the encounter was over, E.B. left the room without saying
    anything. The appellant denied having any further sexual contact with E.B.

[4]

E.B. described things quite differently. Throughout the relevant time, E.B.
    was in the care of her grandparents under the supervision of the Childrens Aid
    Society because her mother and the appellant had proven unable to maintain
    clean and safe accommodation for her. She visited her mother and the appellant
    during weekends and holidays. E.B. testified that one night, just after she
    turned 12, she awoke to find the appellant on top of her. He penetrated her
    vagina with his penis, causing her to bleed. This incident marked the beginning
    of almost a year of being sexually assaulted by the appellant, on a weekly
    basis.

[5]

Given the conflict between the testimony of the appellant and E.B. concerning
    the extent of the sexual abuse, the sentencing judge conducted a
Gardiner
hearing. Ultimately, he found that the appellant had, in fact, engaged in
    repeated sexual assaults as described by E.B. The sentencing judge imposed a
    sentence of eight years less two years credit for time served.

[6]

The appellant seeks leave to appeal his sentence, and an order varying
    the sentence to five years, less credit for pre-sentence and post-sentence
    custody. He argues that the sentencing judge effectively ignored his plea of
    guilt, failed to adequately account for his rehabilitative potential and misapplied
    the principles delineated in s. 718.2(e) of the
Criminal Code
and
R. v. Gladue
,
    [1999] 1 S.C.R. 688
.
He submits that these errors resulted in an unfit
    sentence.

[7]

The Crowns position is that the sentencing judge correctly applied the
    law and imposed a sentence that falls squarely within the range identified by
    this court for similar crimes.

[8]

I am of the view that the sentencing judge properly considered the
    appellants guilty plea and rehabilitative potential, but erred in his
Gladue
analysis.  Specifically, the sentencing judge erred in approaching the
    determination of a fit sentence on the basis that in order for the
Gladue
principles to apply, the appellant had to demonstrate a causal connection
    between his Aboriginal background and the commission of the crimes for which he
    was convicted.  That said, in the light of the gravity of the appellants
    criminal conduct and its devastating impact on E.B., I am convinced that the
    sentence imposed is fit.  I would therefore grant leave to appeal sentence and
    dismiss the appeal.

BACKGROUND FACTS

[9]

I have already outlined the salient facts about the present offences and
    the
Gardiner
hearing above, and will not repeat them here.  To
    supplement those facts, I will provide some background details about the
    appellant before examining his sentencing proceedings in greater depth.

A.

The
    Appellants Background

[10]

The
    appellants biological family are members of the Woodland Cree First Nations,
    the largest indigenous group in Northern Alberta. Shortly after his birth, the
    appellant was admitted to the hospital over concerns about malnutrition. He was
    placed in the care of a local child protection agency.  Soon thereafter, a Caucasian
    family that resided near Sarnia, Ontario adopted the appellant. The sentencing
    judge observed that [w]hile [the appellant] found his mother to be hard on him
    from time to time, overall he considered he had a happy upbringing and had good
    relationships with his parents.

[11]

Unfortunately,
    beginning around age 12, the appellant became plagued by drugs and alcohol.  He
    left high school in grade 11. Since then, he has been sporadically employed in
    various jobs, primarily involving manual work. He is an admitted alcoholic, a
    fact he claims bears relevance to the fitness of his sentence. In addition to
    several convictions in youth court, the appellant has a lengthy adult criminal
    record consisting of convictions for, among other things, theft over $5,000,
    escaping custody, assault, possession of the proceeds of crime and uttering
    threats.

[12]

The
    appellant met E.B.s mother while she was living in Ottawa. The appellant moved
    to Ottawa and began living with E.B.s mother when E.B. was around 5 years old.
     The present offences took place approximately 7 years later

B.

The
    Sentencing Proceedings

[13]

Following
    the
Gardiner
hearing, the sentencing judge put the matter over for preparation of a
    pre-sentence report. Upon receipt of the report, the sentencing judge expressed
    concern that it did not adequately address the appellants Aboriginal heritage.
    Accordingly, the sentencing judge ordered a
Gladue

report and sought out
    templates to ensure the report would be suitable. To that end, the sentencing
    judge provided several relevant materials to counsel, including guidelines for
    the preparation of
Gladue
reports issued by a committee in Alberta, two reports prepared by Aboriginal
    Legal Services in Toronto, and copies of the Supreme Courts decision in
R. v. Ipeelee
,
    2012 SCC 13,
[2012] 1 S.C.R. 433
. The
    sentencing hearing was adjourned several times to accommodate preparation of
    the
Gladue

report.

[14]

The
    sentencing hearing that ultimately took place focused extensively on the appellants
    Aboriginal heritage. The author of the
Gladue
report, Michelle Penney, a
    support worker for the Aboriginal Criminal Court, testified at length. She gave
    extensive evidence about the appellants background and her work in preparing
    the
Gladue

report.

[15]

The
Gladue
and pre-sentence

reports detailed the appellants
    Aboriginal background. The pre-sentence report recognized the appellants Aboriginal
    ancestry as being important to him and noted his expressed willingness to learn
    more about his ancestral traditions and customs. It also revealed that the
    appellant reconnected with his biological family in Alberta prior to his incarceration
    for these offences. At the time of sentencing, the appellant was in the midst
    of completing his registration documents for the Woodland Cree First Nation.
    The
Gladue

report affirmed these facts and provided additional insight into the
    appellants relationship with his adoptive family and community.

REASONS FOR SENTENCE

[16]

After
    reviewing the relevant facts, the sentencing judge set out the positions of the
    parties on the appropriate sentence for the appellant. The Crown sought a nine
    year custodial sentence. The defence argued for a five year sentence, less two
    and a half years credit for pre-sentence custody.

[17]

Next,
    the sentencing judge outlined applicable sentencing principles and explicitly
    acknowledged his duty to consider the appellants Aboriginal background in
    crafting an appropriate sentence. However, the sentencing judge had great
    difficulty relating the [appellants] Aboriginal circumstances to his
    particular circumstances which resulted in him committing the sexual assault,
    because:

[t]here was no evidence that his adoption into a non-native
    family had any connection [to the sexual assault].
While I accept that he
    feels a certain satisfaction at his reconnection to his birth parents, I am not
    satisfied that that is a unique feature to his aboriginal background. There are
    many adopted children who feel driven as adults to reconnect to their birth
    family. There is no evidence that his alcohol and substance abuse was in any
    way linked to his aboriginal background. To the contrary, the evidence before
    me is that his birth family does not have alcohol or substance abuse issues.
    The fact that the defendant's current girlfriend has alcohol issues is
    concerning only because the defendant seems not to appreciate that in order to
    free himself from his addictions, he must choose friends and relationships
    which are free of addictions. While the defendant has claimed that his alcohol
    issues contributed to the sexual assaults, there is nothing to suggest that the
    defendant's alcohol issues are unique to his aboriginal background.

To conclude the first two steps in the enquiry, I see no
    connection between the defendant's aboriginal background and the commission of
    the sexual assault.
[Emphasis Added]

[18]

The
    sentencing judge concluded that, [h]aving conducted the
Gladue
assessment, I find that this case falls into the class of very serious cases
    where a fit sentence as between an aboriginal or non-aboriginal offender would
    be similar. He turned to reviewing the aggravating and mitigating factors at
    play.

[19]

The
    sentencing judge found there to be no mitigating factors. He reasoned that the
    appellants guilty plea had limited value as a mitigating factor as he had
    admitted to only one incident of sexual assault, which led to E.B.s being required
    to testify at the
Gardiner
hearing. The sentencing judge identified the gravity of the appellants offence
    as the most significant aggravating factor at play. The sentencing judge also
    took note of the devastating impact the appellants abuse had on E.B. She was
    subject to a prolonged period of physical and sexual abuse. She had become
    estranged from her family. She had struggled with the fact that her baby had
    been put up for adoption. She was fearful of men and had become very isolated.

[20]

After
    taking all of these factors into account, the sentencing judge imposed an eight
    year custodial sentence, less two years credit for time served.

ISSUES

1. Did the Sentencing Judge Err in
    Failing to Consider the Appellants Guilty Plea as a Mitigating Factor?

[21]

The
    appellant, relying on multiple decisions by this court, submits that the sentencing
    judge erred in refusing to assign his guilty plea any weight as a mitigating
    factor. The appellant notes that a guilty plea will ordinarily be considered in
    the mitigation of a sentence. He argues that here, the sentencing judge failed
    to appreciate that the guilty plea saved the state considerable expense, displayed
    his remorse and potential for rehabilitation, and spared witnesses and victims
    the inconvenience of testifying at both a preliminary inquiry and a trial.

Analysis

[22]

A
    plea of guilt does not entitle an offender to a set standard of mitigation. The
    amount of credit a guilty plea attracts will vary in each case. In
R. v. Faulds

(1994), 20 O.R. (3d) 13 (C.A.), at para. 14, this court held that [t]he
    effect of a guilty plea in setting the appropriate sentence will vary with the
    circumstances of each case. In some cases, a guilty plea is a demonstration of
    remorse and a positive first step towards rehabilitation. In other cases, a
    guilty plea is simply a recognition of the inevitable; see also
R. v. Carreira
,
    2015 ONCA 639, 337 O.A.C. 396, at para. 15.

[23]

In
    my view, this case falls within the latter category. The appellant had no defence
    to the charges against him. The Crowns case included DNA evidence that
    conclusively established that the appellant had conceived a child with E.B.
    when she was just 12 years of age. Unlike the accused in
Faulds
, the
    appellant chose to test the Crowns evidence relating to the more aggravating
    aspects of his case. As a result, E.B. was made to relive the assaults in her
    testimony and to undergo cross-examination designed to impugn her credibility. The
    guilty plea, therefore, did not conserve judicial resources or provide a degree
    of finality to the complainant. Any mitigating effect of the guilty plea was
    further reduced by the appellants refusal to accept responsibility for all but
    one of the sexual assaults that the trial judge found he committed. To make
    matters worse, the appellant attempted to minimize his responsibility for the
    one admitted incident by testifying that E.B. had effectively come on to him.

[24]

In
    these circumstances, the sentencing judge reasonably concluded that the
    appellants guilty plea did not deserve any weight as a mitigating factor. I
    would not give effect to this ground of appeal.

2. Did the Sentencing Judge Err in
    Failing to Consider Rehabilitation as a Sentencing Principle?

[25]

The
    appellant submits the sentencing judge erred in principle by failing to consider
    his rehabilitative prospects. The appellant argues that where an offence has been
    committed wholly or in part due to the consumption of drugs or alcohol, the
    sentence imposed should assist in rehabilitating the offender. The appellant
    argues that the sentencing judge disregarded this principle and therefore
    imposed an unduly harsh sentence.

Analysis

[26]

In
    my view, the sentencing judge understood the need to take the appellants
    rehabilitative potential into account. The sentencing judge had before him information
    relevant to rehabilitative considerations through the pre-sentence report and
    sentencing submissions. He explicitly acknowledged that rehabilitation is a
    guiding principle for crafting an appropriate sentence. He implicitly took the
    appellants rehabilitative prospects into account when he noted, at para. 42,
    that [t]he defendants involvement with a woman who has alcohol issues and is
    pregnant  demonstrates a lack of insight by him. To be involved with someone
    with alcohol and a young child invites the same atmosphere that was present at
    the time of these offences and suggests a risk of repetition.

[27]

More
    importantly, the sentencing judge correctly identified deterrence,
    denunciation, and the appellants Aboriginal background (addressed below) as
    the most significant principles informing sentence in this case. Section 718.01
    of the
Criminal Code
instructs sentencing judges that [w]hen a court imposes a sentence for an
    offence that involved the abuse of a person under the age of eighteen years, it
    shall give primary consideration to the objectives of denunciation and
    deterrence of such conduct. In
R. v. D.

(D.)

(2002), 58 O.R. (3d) 788
    (C.A.), at para. 34, this court described this statutorily imposed direction as
    follows:

The overall message however, is meant to be clear. Adult sexual
    predators who would put the lives of innocent children at risk to satisfy their
    deviant sexual needs must know that they will pay a heavy price. In cases such
    as this, absent exceptional circumstances, the objectives of sentencing
    proclaimed by Parliament in
s. 718
(a), (b) and (c)
    of the
Criminal Code
,
    commonly referred to as denunciation, general and specific deterrence, and the
    need to separate offenders from society, must take precedence over the other
    recognized objectives of sentencing.

[28]

The
    sentencing judges reasons indicate that he chose to prioritize deterrence and
    denunciation as sentencing objectives. Given the nature and seriousness of the
    appellants criminal conduct, this approach was entirely appropriate. I would
    not give effect to this ground of appeal either.

3. Did the Sentencing Judge Err in
    his
Gladue
Analysis?

[29]

The
    appellant submits that the sentencing judge failed to properly consider the
    appellants unique circumstances as an Aboriginal offender as required by s.
    718.2(e) of the
Code
.
    Specifically, the appellant argues, the sentencing judge erred by requiring the
    appellant to establish evidence of a direct connection between his Aboriginal
    background and the particular offences as a pre-condition for the
Gladue
factors
    to be taken into account.

[30]

In
    support of this argument, the appellant points to this courts decision in
R. v. Kreko
,
    2016 ONCA 367, 131 O.R. (3d) 694. The accused in
Kreko
was an Aboriginal man who was
    being sentenced for several firearm offences. He had been adopted at one year
    of age by a non-Aboriginal family and raised without knowledge of his Aboriginal
    roots. Upon discovering his Aboriginal heritage, he experienced dislocation and
    an identity crisis. In his
Gladue

analysis, the sentencing
    judge ruled that there was no connection between the accuseds Aboriginal
    heritage and the firearm offences. This court held that the trial judge had erred
    by effectively requiring proof of a causal connection between the firearm
    offences and the accuseds Aboriginal background. After undertaking a fresh
    sentencing analysis and giving due consideration to the
Gladue

factors,
    this court reduced the accuseds sentence from 13 years to 9 years in custody.

Analysis

[31]

The
    law is clear that courts must pay particular attention to the circumstances of
    Aboriginal offenders in all cases, even those involving the gravest of
    offences:
R. v. Van
    Every
, 2016 ONCA 87, 344 O.A.C. 326, at para. 88;
Gladue
, at
    para. 82;
Ipeelee
,
    at paras. 84-87;
R. v.
    Jensen

(2005), 74 O.R. (3d) 561 (C.A.), at para. 27;
R. v. (N.) J.
,
    2013 ONCA 251, 305 O.A.C. 175, at para. 41. When sentencing an Aboriginal
    offender, courts must consider:

(1)

the unique
    systemic or background factors which may have played a part in bringing the
    particular aboriginal offender before the courts;

(2)

the types of
    sentencing procedures and sanctions which may be appropriate in the
    circumstances for the offender because of his or her particular Aboriginal
    heritage or connection (
Gladue
, at para. 66).

[32]

When
    assessing the first branch of the
Gladue

framework, courts should
    not require offenders to establish a causal connection between systemic or
    background factors and the crimes for which they have been convicted:
Ipeelee
, at
    para. 82. Such a requirement displays an inadequate understanding of the
    devastating intergenerational effects of the collective experiences of Aboriginal
    peoples and imposes an evidentiary burden on offenders that was not intended
    by
Gladue
:
Ipeelee
,
    at para. 82. This court has rejected a causal connection requirement in
    multiple decisions:
R.
    v. Collins
, 2011 ONCA 182, 104 O.R. (3d) 241, at paras.
    32-33;
Kreko
,
    at paras. 20-21.

[33]

The
    sentencing judge, unfortunately, did not adhere to this approach.

[34]

To
    his credit, the sentencing judge clearly understood the importance of
    considering the appellants Aboriginal background in crafting a just and
    proportionate sentence. In fact, the sentencing judge is to be commended for
    being proactive in securing a
Gladue
report to supplement the
    discussion of the appellants Aboriginal heritage already contained in the
    pre-sentence report. As a result of his initiative, the sentencing judge
    obtained the
Gladue
report written by Ms. Penny as amplified by her testimony at the sentencing
    hearing. Counsels submissions  and by extension, the sentencing process as a
    whole  undoubtedly benefitted from a more extensive record about the
    appellants Aboriginal heritage.

[35]

However,
    in spite of the sentencing judges clear commitment to fulfilling his
    obligations under s. 718.2(e) of the
Code
, he erred in his application of the
Gladue

principles. The sentencing judge erred by reasoning that the appellants
    Aboriginal heritage should not factor into the determination of a fit sentence
    as there was no connection between
the defendant's aboriginal background
    and the commission of the sexual assault
 (emphasis added). In so
    concluding, the sentencing judge failed to adhere to the warnings against a
    causal connection requirement in
Ipeel
ee

and
Kreko
,
    and thereby committed an error in principle.

4. Does the Sentencing Judges
    Error Justify a Different Sentence?

[36]

Where
    a sentencing judge errs in applying the
Gladue

principles, deference
    gives way and an appellate court is entitled to sentence the offender afresh:
Collins
, at
    para. 38;
R. v. Fraser
,
    2016 ONCA 745, 33 C.R. (7th) 205, at para. 20;
Kreko
, at paras. 27-28. A
de novo
sentencing
    analysis, however, will not necessarily lead to a different outcome:
Fraser
,
    at para. 20;
R. v.
    Kakekagamick
(2006), 81 O.R. (3d) 664 (C.A.), leave to
    appeal refused, [2007] S.C.C.A. No. 34, at para. 58.

[37]

In
    my opinion, a fresh sentencing analysis does not lead to a different outcome
    here. To explain this conclusion, I will first outline the proper approach for
    determining when an accused persons Aboriginal heritage will influence the
    first branch of the
Gladue

sentencing analysis. I will then explain why, under that approach, an eight-year
    sentence remains fit for the appellant.

The Proper Approach

[38]

The
    law, reviewed above, is clear. In order to be relevant to sentencing, an
    offenders Aboriginal background need not be causally connected to the
    offence(s) for which a sentence is being imposed. In what circumstances, then,
    will an offenders Aboriginal background influence their ultimate sentence? The
    answer is not so easily ascertained or articulated:
R. v. Whitehead
,
    2016 SKCA 165, 344 C.C.C. (3d) 1, at para. 60. Clearly, the mere assertion of
    ones Aboriginal heritage is insufficient  s. 718.2(e) does not create a
    race-based discount on sentencing:
Ipeelee
, at para. 75. Although Aboriginal
    offenders are not required to draw a straight line between their Aboriginal
    roots and the offences for which they are being sentenced, more is required
    than the bare assertion of an offenders Aboriginal status:
R
.
v. Monckton
,
    2017 ONCA 450, 349 C.C.C. (3d) 90, at para. 115.

[39]

It
    is also insufficient for an Aboriginal offender to point to the systemic and
    background factors affecting Aboriginal people in Canadian society. While
    courts are obliged to take judicial notice of those factors, they do not
    necessarily justify a different sentence for Aboriginal offenders. Rather,
    they provide the necessary
context
for understanding and evaluating the
    case-specific information presented by counsel:
Ipeelee
, at para. 60 (emphasis in original);
R
.
v. Radcliffe
,
    2017 ONCA 176, 347 C.C.C. (3d) 3, leave to appeal refused, [2017] S.C.C.A. No.
    274, at para. 54.

[40]

The
    correct approach may be articulated as follows. For an offenders Aboriginal
    background to influence his or her ultimate sentence, the systemic and
    background factors affecting Aboriginal people in Canadian society must have
    impacted the offenders life in a way that (1) bears on moral blameworthiness,
    or (2) indicates which types of sentencing objectives should be prioritized in
    the offenders case. This approach finds support both in
Ipeelee
and
    decisions of this court.

[41]

The
    Supreme Court made clear in
Ipeelee
, at para. 83, that systemic and
    background factors need to be tied in some way to the particular offender and
    offence. LeBel J. went on to note that [u]nless the unique circumstances of
    the particular offender bear on his or her culpability for the offence or
    indicate which sentencing objectives can and should be actualized, they will
    not influence the ultimate sentence. LeBel J. elaborated on the concept of
    culpability at para. 73, explaining that systemic and background factors may
    bear on the culpability of the offender, to the extent that they shed light on his
    or her level of moral blameworthiness.

[42]

This
    court has followed LeBel J.s guidance in multiple cases. In
Kreko
, Pardu
    J.A. explained at para. 23 that the [systemic and background] 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. Watt J.A. reached a
    similar conclusion in
Radcliffe
,
    at para. 55: see also
Monckton
,
    at para. 116;
R. v.
    Johnson
, 2013 ONCA 177, 303 O.A.C. 111, at para. 64.

[43]

From
    a sentencing judges perspective, adhering to this approach requires attention
    to two factors.

[44]

First,
    a sentencing judge must take judicial notice of the systemic and background
    factors affecting Aboriginal peoples in Canadian society. These factors include
    such matters as the history of colonialism, displacement, and residential
    schools and how that history continues to translate into lower educational
    attainment, lower incomes, higher unemployment, higher rates of substance abuse
    and suicide, and of course higher levels of incarceration for Aboriginal
    peoples:
Ipeelee
,
    at para. 60. This list is not exhaustive.

[45]

Second, a sentencing judge must consider whether those
    systemic and background factors bear on the [offenders] culpability
or
    indicate which types of sanctions may be appropriate in order to effectively
    achieve the objectives of sentencing
:
Kreko
, at para. 23. This inquiry, by necessity, requires
    the sentencing judge to consider whether those factors have impacted the
    offenders own life experiences  in other words, whether the offender has
    lift[ed] his life circumstances and Aboriginal status from the general to the
    specific:
Monckton
, at para. 117;
R. v. Bauer
, 2013 ONCA 691, 119 O.R. (3d) 16, at para. 13.
If systemic and
    background factors have impacted an Aboriginal offenders own life experiences,
    the sentencing judge must then consider whether they illuminate the offenders
    level of moral blameworthiness or disclose the sentencing objectives that
    should be prioritized:
Radcliffe
,
    at para. 53;
Kreko
,
    at para. 23. The Supreme Court provided the following comments about moral
    blameworthiness in
Ipeelee
,
    at para. 73:

Many Aboriginal offenders find themselves in situations of
    social and economic deprivation with a lack of opportunities and limited
    options for positive development. While this rarely  if ever  attains a level
    where one could properly say that their actions were not
voluntary
and
    therefore not deserving of criminal sanction,
the reality is that their
    constrained circumstances may diminish their moral culpability.
Failing to
    take these circumstances into account would 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
. The existence
    of such circumstances may also indicate that a sanction that takes account of
    the underlying causes of the criminal conduct may be more appropriate than one
    only aimed at punishment
per se
. [Underline Emphasis Added, Italic
    Emphasis in Original]

[46]

Sentencing judges must therefore be attentive to whether the
    circumstances of Aboriginal offenders  viewed in the light of the systemic and
    background factors described above  diminish their moral culpability. In
    conducting this inquiry, however, courts must display sensitivity to the
    devastating intergenerational effects of the collective experiences of
    Aboriginal peoples, which are often difficult to quantify:
Ipeelee
, at
    para. 82.
When inquiring into moral
    blameworthiness, courts must ensure they do not inadvertently reintroduce the
    same evidentiary difficulties that
Ipeelee
sought to remove: Kent Roach, Blaming the Victim: Canadian Law, Causation and
    Residential Schools (2014) 64 University of Toronto L.J. 566, at 588-593;
    Clayton Ruby, Gerald Chan, Nader R. Hasan, Annamaria Enenajor,
Sentencing: Ninth Edition

(Markham:
    LexisNexis Inc., 2017), at 712;
R. v. Quinn
, 2015 ABCA 250, 606 A.R. 233, at para. 49 (
per
Biebly J.A., dissenting). I find persuasive the
    following observation by the Saskatchewan Court of Appeal in
Whitehead
on the approach that sentencing judges should follow:

The link between systemic or background factors and moral
    culpability for an offence does not require a detailed chain of causative
    reasoning. Instead, the analysis is based on inferences drawn from the evidence
    based on the wisdom and experience of the sentencing judge  In applying this
    approach, sentencing courts must pay careful attention to the complex harms
    that colonisation and discrimination have inflicted on Aboriginal peoples.

[47]

Systemic
    and background factors, however, do not operate as an excuse or justification
    for an offence:
Ipeelee
,
    at para. 83. They are only relevant to assessing the degree of responsibility
    of the offender, and to considering whether non-retributive sentencing
    objectives should be prioritized. Accordingly,
Gla
due

and
Ipeelee

do not detract from the fundamental principle that a sentence must be
    proportionate to the gravity of the offence and the degree of responsibility of
    the offender:
Ipeelee

at para. 73. What
Gladue

and
Ipeelee

recognize is that evaluating the degree of responsibility of an Aboriginal
    offender requires a different method of analysis:
Ipeelee
, at para. 59. A
    different method of analysis does not necessarily mandate a different result:
Kakekagamick
,
    at para. 36. Crafting a just and appropriate sentence may, in some cases,
    require giving greater weight to sentencing objectives such as deterrence and
    denunciation:
Gladue
,
    at para. 78;
R. v.
    Wells
, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 44. As
    this court recognized in
Kakekagamick
, at para. 42:

To be clear, s. 718.2(e) does not require, nor is there a
    general rule, that Aboriginal offenders must be sentenced in a way that gives
    the most weight to the principle of restorative justice. It may be that in
    certain cases the objectives of restorative justice articulated in s. 718.2(e)
    and Gladue will not weigh as favourably as those of separation, denunciation
    and deterrence.

Applying the Proper
    Approach

[48]

Considering
    a fit sentence for the appellant in the light of the above framework, I would
    not interfere with the eight year sentence imposed by the sentencing judge.  I
    say this for two reasons.

[49]

First,
    the evidence does not demonstrate that the systemic and background factors
    affecting Aboriginal peoples in Canada have impacted the appellant in a way
    that bears on his moral blameworthiness. In this case, the pre-sentence report
    and the
Gladue
report do not show that the appellants reported childhood difficulties or
    alcoholism were linked to systemic, background or intergenerational factors
    related to his Aboriginal heritage. Unlike in
Kreko
, there is no evidence that (1)
    such factors contributed to the appellants experiencing dislocation or an
    identity crisis coinciding with his involvement in the criminal justice system,
    or that (2) such factors otherwise impacted the appellants moral
    blameworthiness: see
Bauer
, at para. 14.

[50]

Second,
    even assuming the
Gladue

factors carried greater weight in this case, the nature of the appellants
    offence cries out for deterrence and denunciation.
I agree
    with the sentencing judge that the abuse inflicted on E.B. by the appellant
    carries with it all of the most distressing features of sexual assault, for
    the following reasons:

(1)

As the
    sentencing judge noted, the appellant abused one of the underlying principles
    of a family in our society that parents have an overriding obligation to
    protect children. In my view, the sentencing judge was correct to find that
    the appellant assumed the role of a step-father to E.B. His abuse constituted a
    fundamental betrayal of her trust.

(2)

The
    appellants sexual assaults included acts of physical violence. Moreover, the
    appellant coerced E.B. into keeping the abuse a secret by threatening her
    brother.

(3)

The
    appellants actions had a devastating impact on E.B., as outlined earlier in
    these reasons and in greater depth in the victim impact statement filed at the
    sentencing hearing. E.B. lived through a pregnancy at age 12 and gave birth at
    age 13. She has become estranged from her family and child. The sentencing
    judge noted that E.B. continued to feel the physical and emotional effects of
    the appellants abuse throughout her teenage years, continues to wrestle with
    her internal demons and confusion, and [b]y virtue of the sexual assaults and
    pregnancy, [has] lost her entire adolescence.

[51]

This
courts comments at para. 51 of
N
.
(J.)
, a case concerning
    a similar set of facts, equally applies here:

this is simply one of those cases where the crimes were so
    heinous, and the aggravating factors were so compelling, that the appellant's
    Aboriginal status should not affect the length of the sentence imposed.

[52]

In circumstances like these, this court has held that upper single
    digit to low double digit penitentiary terms will generally be appropriate:
D.D
., at para. 44. I see no reason to interfere with the eight year
    sentence imposed.

DISPOSITION

[53]

For
    these reasons, I would grant the appellant leave to appeal his sentence but
    dismiss the appeal.

Gloria
    Epstein J.A.

I agree. David Watt J.A.


Brown J.A. (Concurring):

[54]

The
    appeal from sentence was dismissed at the conclusion of the hearing on
    September 5, 2017. I agree with that disposition. I also agree with my
    colleague, Justice Epstein, that no error was committed by the sentencing judge
    in his treatment of the appellants guilty plea and prospects for
    rehabilitation.

[55]

I
    agree with my colleagues concise and useful summary of the jurisprudence
    emanating from
R. v.
    Gladue
,
[1999] 1 S.C.R. 688

contained

in
    the section of her reasons entitled, The Proper Approach. However, I must
    respectfully disagree with her conclusion that the sentencing judge erred in
    his application of the
Gladue
principles. In my view, he did not. However, our disagreement has no effect on
    the result; we both agree the sentence imposed was fit.

[56]

My
    colleague and I agree the sentencing judge clearly understood the importance of
    considering the appellants Aboriginal background in crafting a proportionate
    and fit sentence. One can see this in several portions of his reasons and the
    record. For example:

(i)

Gladue

holds that s. 718.2(e) creates a judicial duty to give its remedial purpose
    real force: at para. 34. The sentencing judge recognized this duty: The legal
    imperatives for the sentencing of aboriginal offenders ultimately fall to the
    sentencing judge even where, as here, counsel and Correctional Services have
    limited experience. The record of the sentencing process shows the sentencing
    judge pushed counsel to address s. 718.2(e) in a fulsome fashion; it was the
    sentencing judge who was instrumental in securing a discrete
Gladue
report;
    and

(ii)

Gladue
holds that s. 718.2(e) directs sentencing judges to undertake the process of
    sentencing aboriginal offenders differently in order to endeavor to achieve a
    truly fit and proper sentence in the particular case: at paras. 33 and 93(5).
    The sentencing judge recognized this, writing: The defendant is aboriginal and
    therefore a different sentencing analysis is necessary.

[57]

The
    sentencing judge also was fully alive to the goal s. 718.2(e) seeks to achieve
    in the sentencing of an aboriginal offender.
Gladue
holds that s. 718.2(e) is
    directed, in particular, at reducing the use of prison as a sanction, at
    expanding the use of restorative justice principles in sentencing, and at
    engaging in both of these objectives with a sensitivity to aboriginal community
    justice initiatives when sentencing aboriginal offenders: at para. 48. During
    the sentencing process, the sentencing judge was critical of the initial
    Pre-Sentencing Report because it did not adequately address the issue of
    alternatives to incarceration.  Later in the sentencing hearing, he inquired of
    the author of the
Gladue
report about the alternatives to incarceration she had identified through her
    conversations with correctional officers and the Woodland Cree authorities.
    During the subsequent submissions by counsel on sentence, the sentencing judge
    stated that the whole idea of these reports is to see to what extent the
    aboriginal community can be of  can create a support

[58]

Did
    the sentencing judge properly apply the
Gladue
principles to the process of
    crafting a proportionate and fit sentence for the aboriginal offender who stood
    before him? To answer that question, the entirety of his reasons dealing with
    the issue must be examined. The sentencing judge considered the application of
Gladue
principles in the following portions of his reasons:

Principles of Sentencing

The principles in section 718.2(e) CCC, have specific
    reference to the defendant since he is Aboriginal. The Supreme Court of Canada
    recently restated the positive duty on a judge to take into account the
    circumstances of Aboriginal offenders in sentencing in all cases. As a
    consequence, I requested an assessment by someone with the necessary training
    and experience for incorporation into a report. In Alberta, guidelines are in
    the drafting stage for the assistance of assessors and for the courts to enable
    judges to perform their obligations where the offender is
    Aboriginal. Specifically, the focus in the assessment and report is on
    alternatives to incarceration as mandated in section 782.2 (e) CCC in order
    to deflect systemic racial discrimination in the criminal justice
    system.



Gladue
Assessment and Reasons

The first steps of the inquiry I am required to conduct
    include
the unique system or background circumstances common to
    aboriginal offenders as a group; and the particular circumstances of
    the defendant which resulted in him committing the crime for which he is before
    the court.

I have
great difficulty relating
the defendants
    aboriginal circumstances to his particular circumstances which resulted in him
    committing the sexual assault. There was no evidence that his adoption into a
    non-native family had any
connection
. While I accept that he feels a
    certain satisfaction at his reconnection to his birth parents, I am
not
    satisfied that that is a unique feature
to his aboriginal background. There
    are many adopted children who feel driven as adults to reconnect to their birth
    family.  There is no evidence that his alcohol and substance abuse was in
    any way
linked
to his aboriginal background. To the contrary, the
    evidence before me is that his birth family does not have alcohol or substance
    abuse issues. The fact that the defendants current girlfriend has alcohol
    issues is concerning only because the defendant seems not to appreciate that in
    order to free himself from his addictions, he must choose friends and
    relationships which are free of addictions. While the defendant has claimed
    that his alcohol issues contributed to the sexual assaults, there is
nothing
    to suggest that the defendants alcohol issues are unique
to his aboriginal
    background.

To conclude the first two steps in the enquiry, I see
no
    connection between
the defendants aboriginal background and the commission
    of the sexual assault. [Emphasis added]

Reasons



Having conducted the Gladue assessment, I find that this case
    falls into the class of very serious cases where a fit sentence as between an
    aboriginal or non-aboriginal offender would be similar

[59]

Gladue
instructs sentencing judges, when applying s. 718.2(
e
) in the
    sentencing process, to pay particular attention to the circumstances of
    aboriginal offenders, with the implication that those circumstances are
    significantly different from those of non‑aboriginal offenders: para.
    66. The circumstances unique to aboriginal offenders include [t]he unique
    systemic or background factors which may have played a part in bringing the
    particular aboriginal offender before the courts: at para. 66. As
Ipeelee
(and
    the various decisions of this court identified by my colleague) remind
    sentencing judges, this does not amount to imposing on the aboriginal offender
    an obligation to establish a causal link between the systemic or background
    factors and the commission of the offence. Instead,
Ipeelee
frames the
    nature of the appropriate inquiry in the following terms, at para. 83:

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.
This is not
    to say that those factors need not be tied in some way to the particular
    offender and offence. Unless the unique circumstances of the particular
    offender bear on his or her culpability for the offence or indicate which
    sentencing objectives can and should be actualized, they will not influence the
    ultimate sentence
. [Emphasis added]

[60]

Accordingly,
    a sentencing judges objective when applying s. 718.2(e) is not to ascertain
    whether a causal link has been established between the systemic and background
    factors of the aboriginal offender and the commission of the offence. Instead,
    a sentencing judge must inquire whether those factors are tied in some way to
    the offender and the offence, or may have played a part in bringing the
    particular aboriginal offender before the courts, or whether the unique
    circumstances of the aboriginal offender bear on his or her culpability for
    the offence or indicate which sentencing objectives can and should be
    actualized. While none of those inquiries rises to the level of requiring the
    demonstration of a causal link, forensic necessity requires some evaluation,
    in an evidence-based fashion, into the relationship between the factors and the
    unique circumstances of the aboriginal offender who stands before the court for
    sentencing.

[61]

Read
    as a whole, I do not consider the sentencing judges reasons as incorrectly
    requiring the demonstration of a causal link between the systemic and
    background factors identified in
Gladue
and the commission of the
    specific offence.  Examining the substance of his analysis, I conclude the
    sentencing judge faithfully undertook the inquiries set down in
Gladue
and
Ipeelee
 i.e.
    Might the unique systemic or background factors have played a part in bringing
    the particular aboriginal offender before the courts? Were those factors tied
    in some way to the offender and the offence? Did the unique circumstances of
    this particular aboriginal offender bear on his or her culpability for the
    offence or indicate which sentencing objectives can and should be actualized?

[62]

The
    sentencing judge used a variety of terms to describe the results of his
    evaluation of the relationship between the systemic and background factors and
    the unique circumstances of the appellant: relating; connection; linked;
    nothing to suggestunique.

[63]

My
    colleague concludes the sentencing judge erred because his language of no
    connection disclosed improper reasoning resting on the need to demonstrate a
    causal link. With respect, when his reasons are read as a whole, I do not see
    such an error. Indeed, I see little substantive difference between the
    sentencing judges consideration of the systemic and background factors in the
    particular circumstances of this case and that of my colleague. And they both
    arrive at the same fit sentence.

[64]

Perhaps
    sentencing judges should avoid using a word such as connection when
    expressing the results of their
Gladue
analysis. My colleague chooses
    different language, concluding the evidence did not show the systemic or
    background factors impacted the appellant, or were linked to his
    difficulties, or contributed to his experiencing dislocation: at para. 49.
    Other courts have used other language, expressing the relationship in terms
    such as: whether the systemic and background factors manifested themselves in
    the offenders particular circumstances:
R. v. Whitehead
, 2016 SKCA 165, at para.
    67; whether the systemic and background factors were present in the
    offenders life experiences and general background:
Whitehead
, at
    para. 70; whether such factors were inextricably embedded in the offenders
    life experiences and clearly bore on his culpability for the offences:
R. v
.
    Okimaw
, 2016 ABCA 246, at para. 75; or, whether there
    was an impact of the offenders Aboriginal heritage on his moral culpability:
R. v. Swampy
,
    2017 ABCA 134, at para. 36.

[65]

In
    the result, I see no reversible error in the sentencing judges substantive
Gladue
analysis. I agree with my colleague that there is no reason to interfere with
    the eight-year sentence imposed.

Released: DW JAN 30
    2018

David Brown J.A.





[1]
The appellants conviction on the touching count was stayed pursuant to
R. v.
    Kienapple
, [1975] 1 S.C.R. 729.


