



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Fontaine,









2014 BCCA 1




Date: 20140108

Docket: CA36443

Between:

Regina

Respondent

And

Trevor James
Fontaine

Appellant




Before:



The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

The Honourable Madam Justice Kirkpatrick




On appeal from:  An
order of the Supreme Court of British Columbia,
dated August 13, 2008 (
R. v. Fontaine
, Prince George Docket 16206-4).




Counsel for the Appellant:



C. Darnay





Counsel for the Respondent:



F.G. Tischler





Place and Date of Hearing:



Vancouver, British
  Columbia

December 3, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 8, 2014









Written Reasons by:





The Honourable Madam Justice Kirkpatrick





Concurred in by:





The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury










Summary:

Mr. Fontaine
appealed his dangerous offender designation on the grounds that the sentencing
judge failed to adequately consider his Aboriginal background in accordance
with s. 718.2(e) of the Criminal Code and the Supreme Court of Canadas
decision in R. v. Gladue.

Held:
Sentence appeal dismissed. Evidence of Mr. Fontaines Aboriginal
background was before the court. Although the judge did not explicitly refer to
the sentencing principles set out in Gladue, the sentence was nevertheless not
unfit. The offenders risk could not be managed in the community; there was no
option other than a dangerous offender designation.

Reasons
for Judgment of the Honourable Madam Justice Kirkpatrick:

[1]

The only issue in this sentence appeal is whether the sentencing judge,
in designating Mr. Fontaine as a dangerous offender, erred in law in failing
to adequately consider the principles of sentencing applicable to Aboriginal
offenders as required by s. 718.2(
e
) of the
Criminal Code
.
He seeks a new hearing.

[2]

For many years, the sentencing of Aboriginal offenders under s. 718.2(
e
)
has been guided by the Supreme Court of Canadas decision in
R. v. Gladue
,
[1999] 1 S.C.R. 688. Paragraph 33 has often been applied:

In our view, s. 718.2(
e
)
is
more
than simply a re-affirmation of existing sentencing principles.
The remedial component of the provision consists not only in the fact that it
codifies a principle of sentencing, but, far more importantly, in its direction
to sentencing judges to undertake the process of sentencing aboriginal
offenders differently, in order to endeavour to achieve a truly fit and proper
sentence in the particular case. It should be said that the words of s. 718.2(
e
)
do not alter the funda­mental duty of the sentencing judge to impose a sentence
that is fit for the offence and the offender. For example, as we will discuss
below, it will generally be the case as a practical matter that particularly
violent and serious offences will result in imprisonment for aboriginal
offenders as often as for non-aboriginal offenders. What s. 718.2(
e
)
does alter is the method of analysis which each sentencing judge must use in
determining the nature of a fit sentence for an aboriginal offender. In our
view, the scheme of Part XXIII of the
Criminal Code
, the context underlying
the enactment of s. 718.2(
e
), and the legislative history of the
provision all support an interpretation of s. 718.2(
e
) as having
this important remedial purpose.

[3]

More recently, in
R. v. Ipeelee
, 2012 SCC 13, the Supreme Court
had the opportunity to consider the application of
Gladue
in the
intervening years and the academic commentary that criticized the application
of the passage that [g]enerally, the more violent and serious the offence the
more likely it is as a practical reality that the terms of imprisonment for
aboriginals and non-aboriginals will be close to each other or the same (
Gladue
,
at para. 79).

[4]

In
Ipeelee
, LeBel J. speaking for the majority, held:

[85]      Whatever criticisms may be directed at the decision
of this Court for any ambiguity in this respect, the judgment ultimately makes
it clear that sentencing judges have a
duty
to apply s. 718.2(
e
):
There is no discretion as to whether to consider the unique situation of the aboriginal
offender; the only discretion concerns the determination of a just and
appropriate sentence (
Gladue
, at para. 82). Similarly, in
Wells
,
Iacobucci J. reiterated, at para. 50, that

[t]he generalization drawn in
Gladue
to the effect that the more violent and serious the offence, the more likely as
a practical matter for similar terms of imprisonment to be imposed on
aboriginal and non-aboriginal offenders, was not meant to be a principle of
universal application. In each case, the sentencing judge must look to the
circumstances of the aboriginal offender.

This element of duty has not completely escaped the attention
of Canadian appellate courts (see, e.g.,
R. v. Kakekagamick
(2006), 214
O.A.C. 127;
R. v. Jensen
(2005), 196 O.A.C. 119;
R. v. Abraham
,
2000 ABCA 159, 261 A.R. 192).



[87]      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,
including breach of an LTSO, and a failure to do so constitutes an error
justifying appellate intervention.

[5]

The question then in the case before us is whether the sentencing judge
failed to consider the unique Aboriginal circumstances of Mr. Fontaine
and, if so, whether the error justifies our intervention. The analysis to be
undertaken by sentencing judges was expressed in
Ipeelee
, at para. 72:

The methodology set out by this
Court in
Gladue
is designed to focus on those unique circumstances of an
Aboriginal offender which could reasonably and justifiably impact on the
sentence imposed.
Gladue
directs sentencing judges to consider: (1) the
unique systemic and background factors which may have played a part in bringing
the particular Aboriginal offender before the courts; and (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. Both sets of circumstances bear on the ultimate
question of what is a fit and proper sentence.

[6]

The background to this appeal is as follows.

[7]

Mr. Fontaine was convicted by a jury on June 22, 2006 of the
following offences committed near Vanderhoof on December 18, 2003: aggravated
assault and assault with a weapon, and four counts each of unlawful confinement
and uttering threats. The aggravated assault was inflicted on his girlfriend,
Misty Franklin, who was then 23 years old. Mr. Fontaine and Ms. Franklin
were staying at the home of Ms. Franklins cousin, Lydia Thomas. At Ms. Thomas
home were her two children aged 10 and 5 and a friend from next door, aged 10. Ms. Thomas
and the children were the victims of the offences of unlawful confinement and
uttering threats.

[8]

In the early hours of December 18, 2003, following an argument with Ms. Franklin,
Mr. Fontaine stabbed her in the neck near the base of her skull, severing
her spinal cord. She was tragically rendered quadriplegic, paralyzed from the
neck down and reliant on a ventilator for breathing.

[9]

After the attack, Ms. Thomas came out of an adjacent bedroom to
check on her cousin who was lying immobile on the floor. Mr. Fontaine
yelled at Ms. Thomas and the children to stay in the bedroom or he would
kill them all and threatened to hurt the children if they attempted to escape
from the bedroom window. Mr. Fontaine refused Ms. Thomas repeated
entreaties to call an ambulance, but ultimately relented and let her call
9-1-1.

[10]

Following Mr. Fontaines conviction the Crown applied for an
assessment under s. 752.1 of the
Criminal Code
in anticipation of
an application under s. 753 to determine whether Mr. Fontaine was a
dangerous offender.

[11]

The dangerous offender hearing was heard over 32 days in July, September
and November 2007 with two days of submissions in June 2008. More than 40
witnesses testified including Dr. Elisabeth Zoffmann, a psychiatrist
tendered by the Crown, and Dr. Terry Nicholaichuk, a psychologist tendered
by the defence. The record consists of 12 volumes of transcripts and 31
exhibits. No 
Gladue
report was prepared to assist the Court in
sentencing Mr. Fontaine.

[12]

Both Dr. Zoffmann and Dr. Nicholaichuk agreed that Mr. Fontaine
currently poses a high level of risk that he will commit a crime of violence if
released into the community. That evidence was the foundation of the judges
findings relevant to s. 753(1)(a):

[14]      So that there is no
doubt, however, I will make the following findings of fact: first, that Mr. Fontaine
committed a serious personal injury offence in the aggravated assault on Ms. Franklin
and the use of a weapon in that assault; further, that at this time Mr. Fontaine
constitutes a threat to the life, safety, or physical well-being of other
persons based on both his pattern of repetitive behaviour, of which the current
convictions are a part, that shows a failure to restrain his behaviour and a
likelihood of causing death or injury to others, which is the test under the
first subsection of 753.1(a) [now 753(1)(a)] of the
Code
; and further,
that Mr. Fontaine has shown persistent and aggressive behaviour that shows
a substantial degree of indifference on his part respecting reasonably
foreseeable consequences to others of his behaviours, which is the test under
s. 753.1 (a)(ii) [now 753(1)(a)(ii)].

[13]

Defence counsel conceded that the statutory criteria for a dangerous
offender designation were met in this case.

[14]

The judge reviewed Mr. Fontaines extensive criminal record: 27
offences between 1990 and 1999, nine of which involved violence or threats of
violence and ten convictions for offences relating to breaches of court orders.
As the judge noted, when Mr. Fontaine was not in jail between 1991 and
December 2003, he was under some sort of supervision − bail, probation or
parole.

[15]

Mr. Fontaines last offence before the predicate offence was the
1999 sexual assault conviction involving a 24-year-old woman with whom he was
not in a relationship. He gained access to her home, choked her into submission
and then sexually assaulted her. He was sentenced to five years imprisonment
and was released on September 19, 2003, three months before the aggravated
assault on Ms. Franklin.

[16]

The judge reviewed the various programs Mr. Fontaine undertook from
the time he entered prison. The judge also heard testimony from Mr. Fontaines
parole officer at Bowden Federal Institution in Alberta. She described Mr. Fontaines
participation in a program called In Search of Your Warrior, which focussed
on general and family violence and was tailored for Aboriginal offenders. As
well, a facilitator of the Aboriginal healing program at Bowden Institution
described the program for Aboriginal sex offenders in which Mr. Fontaine
participated.

[17]

In addition, Mr. Fontaine participated in the Native Brotherhood
Program in 2000−2001 while he was at the Regional Psychiatric Centre (RPC)
in Saskatoon. Dr. Nicholaichuk, the psychologist who testified for the
defence, reported as follows:

He was also active in the Native
Brotherhood Program at the RPC and believed that spiritual and traditional practices
would be a support to him when he was released. ...

In 2003/07/29 Mr. Fontaine
received another successful completion for his participation in the In Search
Of Your Warrior Program while at Bowden institution. Again his difficulties
with reading and writing were identified and an educational upgrading was
recommended in addition to other correctional programs. The program report
indicated that Mr. Fontaines risk level may have been reduced to the
moderate category and (sic) but this was contingent upon his abstaining from
intoxicants and not being released to high-risk situation (sic). Based upon his
lengthy history of violent offences the national parole board detained Mr. Fontaine
until his warrant expiry. Based upon his successful completion of the In Search
Of Your Warrior Program as well as his regular participation in the sex
offender maintenance sessions, Mr. Fontaine was considered to have developed
further insight into his offense cycle and had significantly improved in the
areas of empathy, self worth, taking responsibility, and developing more
positive relationships.

[18]

Dr. Nicholaichuks testimony was heard over two days, during which Mr. Fontaines
circumstances as an Aboriginal offender were explored in some depth. Dr. Nicholaichuk
stated in his written report that he believed Mr. Fontaine would benefit
from input and guidance from Aboriginal elders and Aboriginal programs. He
testified that he believed that to be the case because in his experience there
are a fair number of men who actually discover that source of pro-social
community support in the traditional cultural community.

[19]

When Mr. Fontaine was released in September 2003, his parole was
supervised by Lynne Hyatt. She described the halfway house where Mr. Fontaine
resided, Ketso Yoh, as follows:

A:         Ketso Yoh is located in
the downtown core of Prince George. Its an aboriginal focussed halfway house.
They do take non-aboriginal offenders to reside there but their main goal is to
work with the aboriginal population and offering various aboriginal focus
activities onsite at the facility. And an example would be elder - - elders
would come and on occasion be available to talk to. Healing circle, or they
call it the talking circle, some mornings where they get together and talk
about whats gone on in their day and thats an example, those are some
examples.

Q:    The people who work at this
Ketso Yoh, are they employed by Correctional Service of Canada?

A:    No. Its a non-profit
organization. Correctional Service Canada holds a contract with the Native
friendship centre and the Native friendship centre in Prince George oversees
the halfway house, which is also the term CRF, community residential facility.

[20]

As the respondent Crown has noted in its factum, Ms. Hyatt
testified that the staff at Ketso Yoh rated the appellants performance at the
halfway house as poor, at two to three out of ten:

They talked about him getting
frustrated easily over small things lately and agitated when female staff talk
to him, he gets agitated and contradictory in his behaviour, regarding female
staff versus male staff. They had noticed his attitude to be considerably
different towards female staff. And they said he was the type of person that
knows what to say and when to say it. In other words, how to manipulate people
to what he feels they want to know. And they - - he would have small blow-ups
with staff, like, regarding his girlfriend at the time and they noted a slightward
downward, downhill trend.

[21]

The judge acknowledged Mr. Fontaines Aboriginal circumstances and
his chaotic childhood by reference to Dr. Nicholaichuks written opinion:

Mr. Fontaine Is a 36 year old Aboriginal male. Although
he was born in Fort St. John British Columbia, he is a member of the Fort
Alexander First Nation just North of Winnipeg Manitoba. He was raised in North
end Winnipeg. His parents separated when he was approximately 1 year of age and
he subsequently relocated to Winnipeg with his mother. Both his mother and his
stepfather are now deceased. His biological father passed away when he was 13. Mr. Fontaine
is the youngest of a sibline (sic) of 10. He has five brothers and four sisters
and is the youngest of the boys. According to the record as well as his own
report, Mr. Fontaine suffered an exceptionally chaotic and deprived
childhood. Prior to the age of four he was subjected to physical and sexual
abuse and was also introduced [to] substance abuse at that age. For example, he
can recall sniffing solvents with his mother when he was very young. As a
result of parental alcohol abuse, neglect and violence, he was apprehended by
the Childrens Aid Society of Winnipeg at about the age of four or five. He
remained under the care of the Ministry until the age of 18.

Prior to being taken into the
care of the Childrens Aid Society, Mr. Fontaine was constantly exposed to
models for violence and substance abuse. He said that his mother and stepfather
drank and fought almost daily. In addition, he was sexually abused both by this
mother and an older stepbrother. He told me that the physical abuse he suffered
reached a point where he was sometimes knocked unconscious. His parents threatened
the children to not say anything because the welfare will take us away. As a
child Mr. Fontaine did not develop any close relationships with anyone as
he never had any consistent caregivers. It can be fairly said that he never
received any appropriate socialization as a child. He apparently started
attending school regularly at about the age of seven or eight but immediately
had difficulty both behaviourally and academically.

[22]

The judge then reproduced those portions of Dr. Nicholaichuks opinion
dealing with Mr. Fontaines learning disability, reasoning ability and
other intellectual deficits which have negatively impacted his social
relationships (at para. 67):

Individuals with language delays
such as those suffered by Mr. Fontaine experience a great deal of
frustration in their attempts to learn and interact appropriately with others.
Although they may have some degree of understanding of their social situations
they are unable to put their understanding into words. In social situations
they are unable to express themselves adequately and this leads to a great deal
of difficulty in negotiating social relationships, particularly under
conditions of stress and conflict. Historically he has had difficulty negotiating
his relationships with virtually every woman he has been involved with. This
frustration coupled with his use of alcohol would raise the potential for
violence immeasurably. This pattern is exemplified by his assault upon the
victim of the predicate offense.

[23]

As I have noted, Dr. Zoffmann and Dr. Nicholaichuk agreed that
Mr. Fontaine currently poses a high level of risk of re-offending if
released into the community.

[24]

As to the future, Dr. Zoffmanns opinion was that Mr. Fontaines
prognosis for treatment is not good. Any future release would have to be
monitored very carefully and would need to include conditions that he abstain
from all intoxicants, all domestic or intimate relationships, and have no
access to weapons or potential victims.

[25]

Dr. Nicholaichuk was, in the judges view, somewhat more
optimistic as he was of the opinion that Mr. Fontaine could be
successfully managed in the community if a number of conditions were met,
including treatment for his significant learning disability and release into a
community where his older brother and sister could provide support. Their
ability to provide this support would have to be confirmed by a community
assessment.

[26]

Dr. Nicholaichuks recommendations included the following:

Mr. Fontaine will have to
receive treatment which takes into account his language deficiencies. It is
also likely that he would benefit from input and guidance from Aboriginal
Elders and should continue to receive Aboriginal programs. The [sic] if he can
be successful in treatment and remain stable, he may be a good candidate for a
transfer to one of the Aboriginal Healing Lodges located in the Prairie region.
For example, there is such an institution located in the Interlake in Manitoba.
This would also serve to place him closer to potential sources of support.

[27]

Dr. Nicholaichuk was questioned by defence counsel as to whether Mr. Fontaine
would qualify for placement in the Aboriginal Healing Lodge if he were under a
long-term offender designation order. Dr. Nicholaichuk testified that Mr. Fontaine
would first have to be designated a minimum security inmate. It is clear,
however, that as Dr. Zoffmann and Dr. Nicholaichuk agreed, Mr. Fontaine
would not currently qualify for designation as a minimum security inmate
because he poses a high risk of re-offending.

[28]

The judge reviewed the opinion of both experts and ultimately concluded
that Dr. Nicholaichuks optimism was unwarranted:

[85]      I am not satisfied that the programs that Dr. Nicholaichuk
hopes will successfully address Mr. Fontaines learning disabilities will
have the necessary salutary effect so as to reduce the risk to an acceptable
level.

[86]      I am not satisfied that a way can be found for Mr. Fontaine
to practise safely the tools and mechanisms the programs are designed to teach
him, and it seems to me from what I have heard that given his verbal deficits,
the ability to practise, to in effect drill himself or to be drilled on these
mechanisms, is essential if Mr. Fontaine
is to
internalize them, at least sufficiently that he can avoid the deterioration and
eventual breakdown such as occurred on his release in Prince George.

[87]

I am not satisfied that any realistic level of
community supervision will permit monitoring of Mr. Fontaines close
relationships. In this context, I am concerned that while the focus so far has
been on Mr. Fontaines relationships with women, the explosive anger Dr. Nicholaichuk
describes can be triggered by any social interaction where Mr. Fontaines
verbal disadvantages lead to frustration and stress.



[91]
I am not satisfied that the
relationship between any ameliorative effects of aging and reduction of Mr. Fontaines
explosive reaction to frustration can be said to be clear enough that I should
be guided by the statistical averages as they relate to reduction of violence
in average offenders reaching a certain age. I must be concerned with this
offender, and I must, given the tools available to me, engage in some form of
prediction, and I am not satisfied that the risks posed can be successfully
managed or controlled in the community.

[92]      I note again that Dr. Zoffmann
has said that past behaviour is the best predictor of future conduct and that Dr. Nicholaichuk
agreed, with the caveat I have already recited, and here the most pointed
indication from past behaviour is that it was just two and one-half months into
a one-shot release that Mr. Fontaines ability to put into practice what
he had been taught in various programs over the previous three years started to
unravel.



[94]      To be amenable to community
supervision in a way that would make the risk of violence acceptable, Mr. Fontaine
would require a fundamental change in the way he has dealt with other people
all of his life. I accept what Dr. Zoffmann has said in that regard and
view her evidence as saying that Mr. Fontaine would have to learn from
further programs and counselling what he has not been able to learn so far, that
he would have to learn how to apply what he is taught to his own circumstances
and his own environment in perhaps less than ideal conditions of life in the
community, and that he would need a structured environment outside the
institution and sufficient supervision resources available to him.

[95]

I view the combined evidence of Drs. Zoffmann
and Nicholaichuk to the effect that, statistically, there will come a time when
Mr. Fontaine is in his mid to late fifties that he could be managed in the
community as a statement of hope based on statistical averages, and that does
not go far enough to persuade me that the possibility of eventual control in
the community is reasonable.

[29]

Mr. Fontaines fundamental argument on appeal is that the
sentencing judge did not adequately analyze Mr. Fontaines Aboriginal
circumstances when he found him to be a dangerous offender. As I have noted, a
Gladue
report was not prepared in this case. However, it is apparent from the
testimony of Dr. Nicholaichuk that the judge was aware of Mr. Fontaines
Aboriginal background and his wretched childhood which sadly reflects the
circumstances of many Aboriginal offenders. This point was made by defence
counsel at the dangerous offender hearing:

MR. DIENO: Youll see that the criminal record
starts in 1984 as a youth where he was convicted of a break and enter and
theft; 1987 as a youth of break and enter and committing an indictable offence.
And this is in the context, My Lord, I just want to put this as an aside to the
fact that Mr. Fontaine, its clear, is an aboriginal and there are
aboriginal issues that impact on treatment, impact on consideration of sentence
 And in my respectful submission the evidence you heard about Mr. Fontaines
background is -- this is an effect of that process in that Mr. Fontaine
was raised by a family, his mother
essentially, and then who
suffered the effects of being in residential school. The drinking, the abuse
was transferred over to Mr. Fontaine. As a result of that he lived in many
foster homes. He had, obviously, learning disabilities that impacted on his
ability to continue in school and he began --

THE COURT: Mr. Dieno, let me
interrupt you there. Is there some evidence that Mr. Fontaines mother was
a residential school victim? Are you asking me to infer that simply on the
basis of her age and her aboriginal status?

MR. DIENO:    Right.
That is an inference, because it didnt come out in evidence, its not
something that Mr. Fontaine readily shared with his supervisors or -- and
his Corrections staff, if I can put it that way. But given her age, and youre
right, and the extreme chaos that Mr. Fontaine -- and the drinking that
began at a very young age is indicative of what we see in the second generation
of people that have lived through the residential school treatment.

[30]

Mr. Fontaines objection that the judges analysis did not go far
enough is essentially a complaint that the judge did not adequately discuss Mr. Fontaines
Aboriginal status and failed to undertake the analysis mandated by
Gladue
and s. 718.2(
e
) of the
Criminal Code
.

[31]

The Crown acknowledges that the judges reasons do not make express
reference to s. 718.2(
e
) or
Gladue
. However, in the Crowns
submission, a review of the entirety of the sentencing record, including the
evidence tendered, the submissions of counsel, and the reasons for judgment,
demonstrate that the judge gave proper consideration to Mr. Fontaines
Aboriginal background. The Crowns position rests on the decision of the Yukon
Court of Appeal in
R. v. Good
, 2012 YKCA 2 (decided before
Ipeelee
):

[25]      It is true the reasons of the sentencing judge do
not expressly address Ms. Goods Aboriginal status, or the statutory and
common law requirements associated with sentencing an Aboriginal offender. I
note, however, that at para. 85 of
Gladue
the Supreme Court stated
that s. 718.2(e) does not impose a statutory duty on a sentencing judge to
provide reasons, although the Court endorsed the usefulness of reasons in the
context of appellate review. As well, several decisions of this Court
subsequent to
Gladue
have held that the failure to expressly mention
s. 718.2(e) or the two-stage
Gladue
analysis in sentencing an
Aboriginal person is not necessarily reversible error. Nevertheless, these
authorities affirm that it must be apparent from the record and the reasons of
the sentencing judge that his or her analysis included consideration of the
offenders Aboriginal circumstances:
R.
v.
Sutherland
,

2009
BCCA 534 at para. 16, 281 B.C.A.C. 33;
R. v. Napesis
, 2010 BCCA 499
at para. 17, 294 B.C.A.C. 255;
R. v. Mack
, 2008 BCCA 520 at paras. 10
and 12, 263 B.C.A.C. 138; and
R. v. Awasis
, 2010 BCCA 213 at paras. 13-14,
287 B.C.A.C. 39. Most recently, in
R. v. Ladue
, 2011 BCCA 101, 271
C.C.C. (3d) 90, a decision which is presently under reserve with the Supreme
Court of Canada,
Madam Justice Bennett, writing for the
majority, reviewed many of these authorities and, at para. 59 of her
reasons, affirmed the importance of applying the analysis mandated by
Gladue
when sentencing Aboriginal offenders.

[26]      Thus,
the question is whether the record before the sentencing judge, and his reasons
for judgment, reveal that he gave proper consideration to Ms. Goods
Aboriginal heritage in determining a fit sentence. In answering that question,
it is important to recognize that the sufficiency of the judges reasons is not
assessed by their contents alone, but also in the context of the record before
him, the issues, and the submissions of counsel:
R. v. R.E.M.
, 2008 SCC
51, [2008] 3 S.C.R. 3 at paras. 15-20, 37-41.

[32]

Ipeelee
did not refer to
R. v. Good
or any of the cases it
cited in paras. 25 and 26 which stand for the principle that failure to
expressly mention s. 718.2(
e
) will not necessarily constitute
reversible error, as long as it is apparent from the record and the reasons
that the offenders Aboriginal circumstances were considered.

[33]

Nevertheless, as
Ipeelee
makes clear, where, as in Mr. Fontaines
case, systemic background factors may bear on the culpability of the offender,
it is incumbent upon the sentencing judge to consider those factors in crafting
the appropriate sentence. The failure to do so in this case constitutes error.

[34]

The judge did not have the benefit of
Ipeelee
. However, it is
clear that he had an abundance of evidence before him that focussed on Mr. Fontaines
risk to society, which was of course the purpose of the dangerous offender
hearing. In hindsight, it would have been preferable for either counsel or the
judge to request a
Gladue
report to assist the Court in addressing Mr. Fontaines
Aboriginal circumstances.

[35]

It appears from
Ipeelee
that, in the future, it is required, and
not just preferable, that a sentencing judge explicitly address an offenders unique
Aboriginal circumstances in determining the just and appropriate sentence. Notwithstanding
the error to do so in this case, the stark fact is that Mr. Fontaines
risk of future violence cannot be controlled in the community. His Aboriginal
circumstances were undoubtedly instrumental in creating that risk. Because Mr. Fontaine
poses such a high risk, and the Aboriginal and other programs he has taken in
the past have not ameliorated that risk, the appropriate sentence in the
circumstances was to designate him a dangerous offender.

[36]

I would accordingly dismiss the appeal.

The Honourable Madam Justice Kirkpatrick

I agree:

The
Honourable Mr. Justice Donald

I agree:

The Honourable Madam Justice Newbury


