



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Crowe, 2021 ONCA 208

DATE: 20210407

DOCKET: C68287

Watt, Hoy and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Todd Crowe

Appellant

Paul Calarco, for the appellant

Anna Martin, for the respondent

Heard: March 22, 2021 by video
    conference

On appeal from the sentence imposed on April
    25, 2019 by Justice Lisa M. Cameron of the Ontario Court of Justice.

REASONS FOR DECISION


[1]

In May 2018, the appellant was arrested with cocaine, fentanyl, and
    methamphetamine, each intended for trafficking, and the cash proceeds of crime.
    At the time, he was on probation. One of the conditions of his probation was
    that he keep the peace and be of good behaviour. To obtain release, he promised
    not to possess unlawful drugs or weapons. In September 2018, he was arrested in
    a commercial parking lot with more cocaine and more cash. This time, he also
    had a loaded handgun, primed with a round in the chamber, in breach of four
    court orders.

[2]

The appellant pled guilty to both the May and September offences. In
    total, he was sentenced to twelve years imprisonment, less one-year credit for
    time served. He seeks leave to appeal that sentence and to adduce fresh
    evidence.

[3]

The appellant argues that (1) the concurrent four-year sentences imposed
    by the sentencing judge for the possession of proceeds counts must be reduced,
    as they exceed the statutory maximum of two years provided for in s. 355(b)(i)
    of the
Criminal Code
and (2) the sentencing
    judge erred in principle by failing to properly apply the
Gladue
principles.

[4]

The first issue does not affect the total sentence imposed. The Crown
    properly concedes the issue, submitting that 18 months concurrent on each possession
    of proceeds count is an appropriate sentence. The appellant did not oppose the
    18 months proposed by the Crown and we agree that it is an appropriate sentence
    on those counts.

[5]

As to the second issue, we are not persuaded that the trial judge erred
    in her application of the
Gladue
principles.
    Further, we conclude that the proposed fresh evidence is not sufficiently
    cogent to have affected the result and should not be admitted.

The
Gladue
issue

[6]

The appellant identified as Non-Status Ojibway but was unaware of any
    Indigenous background until later in life and had never been involved in the
    Ojibway culture.

[7]

The sentencing judge ordered a
Gladue
report. Aboriginal Legal Services (ALS) was unable to ascertain information
    about the appellants Indigenous background. The sentencing judge granted three
    adjournments to permit ALS to try to track down information to prepare the
    report, two over the Crowns objection. When, following the third adjournment,
    the report was still not ready, defence counsel confirmed with the court that
    the appellant nonetheless wished to proceed with the sentencing.

[8]

The sentencing judge had the benefit of a Pre-Sentence Report (PSR),
    which described a deprived and exceptionally difficult childhood. The appellant
    was one of eight children. His mother was an addict and he suffered poverty and
    neglect. He achieved only one high school credit growing up. Several persons in
    his family had criminal records.

[9]

The appellants sister testified at the sentencing hearing. She agreed with
    the PSR. She testified that their maternal grandfather was from Alderville
    First Nation, which would make him Ojibway. However, she recounted that the
    grandfather died when their mother was about 11 years old and their family had
    little if any connection to First Nations.

[10]

Defence
    counsel recognized that a substantial period of incarceration had to be
    imposed. His
Gladue
submissions were brief:

Whether or not the
Gladue
principles apply, I leave to Your Honour. Its clear that his grandfather was
    native, but there apparently was no real connection while he was growing up. I
    suppose, in terms of his mothers situation, we dont really know what the
    effect on her was of having a father who was native, but obviously, she turned
    out badly, and has done a very bad job with these children, although, for some
    reason, [his sister] seems to have turned out quite well.

[11]

The sentencing judge accepted that
    the appellants Aboriginal ancestry was established, writing that:

I do take that into
    account to the extent that I can, in particular the systemic issues that may
    have affected [the appellants] family and [the appellant] himself.
Given the seriousness of the matters before me and the lengthy sentence that
    will be required, the impact of the
Gladue
factors is attenuated. [Emphasis added.]

[12]

She
    noted that the pre-sentence report and the appellants sister indicated that [the
    appellants] mother had a difficult upbringing and a long term-struggle with
    drug addiction, which according to the pre-sentence report had a clear and
    negative affect on [the appellants] upbringing.

[13]

She
    considered that the offences involved large amounts of very serious and
    dangerous drugs, the appellants prior criminal record was short in length
    but serious and very pertinent to sentence on this matter, and the appellant
    was not an addict. Rather, he was engaged in a for-profit enterprise, despite
    knowing first- hand the terrible consequences of addiction. She concluded that
    denunciation, deterrence, protection of the public, and separation from society
    were the applicable sentencing principles in this case. She noted that the
    defence acknowledged that, aside from the guilty pleas, which she characterized
    as a significant factor, there was little else in the way of mitigation. There
    was no expressed interest or activity with respect to rehabilitation.

[14]

The
    appellant argues that once the sentencing judge accepted that he is a member of
    a First Nation, she was obligated to conduct a
Gladue
analysis, as described by Trotter J.A. in
R. v. Brown
,
    2020 ONCA 657, 152 O.R. (3d) 650, at para. 50: she was required to determine
    the degree to which unique circumstances related to the offenders background
    played a part in bringing that offender before the court. Further, there need
    not have been a direct link between his circumstances and the offences
    committed:
R. v. Ipeelee
, 2012 SCC 13, [2012]
    1 S.C.R. 433, at para. 83.

[15]

The
    appellant also argues that, in the absence of a
Gladue
report, she should have based that analysis on the PSR. He says the terrible
    upbringing he endured has classic signs of inter-generational deprivation,
    trauma and assimilation.

[16]

The
    appellant says that while denunciation and deterrence must be applied in a case
    such as this, involving fentanyl, the sentencing judge was still required to
    apply
Gladue
principles. However, the sentence
    that was imposed shows he was treated no differently than any other offender.
    In his view, if the
Gladue
principles had been
    properly applied, a total sentence of not more than eight years would have been
    imposed. The
Gladue
principles were not
    attenuated; they were obliterated.

[17]

We
    reject these arguments.

[18]

The
    sentencing judge was alive to the importance of the
Gladue
principles, adjourning the sentencing hearing several times in an attempt to
    ensure that all relevant information was before her. While the sentencing
    judges reasons were brief, it is clear that, relying on the PSR and the
    appellants sisters testimony, she accepted that systemic issues may have
    played a role in bringing the appellant before the court and took that into
    account in imposing the sentence that she did.

[19]

The
    sentencing judge did not fail to apply, or improperly apply,
Gladue
factors. Essentially, the appellant argues that
    the sentencing judge should have found that those systemic issues had a greater
    impact on his moral blameworthiness and should have mitigated his sentence to a
    greater extent, notwithstanding the gravity of the offences. His argument goes
    to the weight she accorded to the
Gladue
factors. This court may not intervene simply because it would have weighed the
    relevant factors differently:
R. v. Lacasse
,
    2015 SCC 64, at para. 49.

[20]

On
    the limited record before the sentencing judge, she exercised her discretion to
    arrive at the sentence that she considered appropriate. We would not interfere
    with the sentence imposed on that basis.

[21]

We
    note that the appellant does not argue that the global sentence imposed was
    demonstrably unfit and, in any event, interference on that basis is not
    warranted.

Fresh Evidence

[22]

The sentencing judge accepted that the appellant was
    Indigenous. The proposed fresh evidence provides no case-specific information
    about the extent to which unique circumstances related to the offenders
    background played a role in bringing the offender before the court:
Brown
, at para. 50. It would not have affected the
    sentence and some of it could have been introduced at the time of sentence, by
    the exercise of due diligence.  It does not meet the test for admission of
    fresh evidence:
Palmer v. The Queen
, [1980] 1
    S.C.R. 759, at p. 775.

[23]

The
    proposed fresh evidence consists of two letters, two affidavits, and
    Correctional Services Canada (CSC) records.

[24]

One
    affidavit is from the appellants mothers former lawyer and states that, to
    the best of her recollection, the mother said she was of Native heritage and
    that her son had attended a Native Camp as a child. One letter is from Native
    Child and Family Services of Toronto, stating that they have no record of the
    familys involvement, although their camp records did not go back that far.

[25]

The
    second letter is from ALS and dated December 2, 2020. It explains that ALS
    could not prepare a
Gladue
report because his
    family members provided contradictory information that could not be verified
    and that, even if it could be verified, they could not address how being an
    Indigenous person has affected his life circumstances.

[26]

The
    second affidavit is from Anthony Bugo, appending records from Miziwe Biik
    Aboriginal Employment and Training, showing that the appellant completed some
    unspecified job skills training between October 18 and November 18, 2016.

[27]

The
    CSC records reflect that, post-sentence, the appellant engaged in Indigenous
    programming between November 2019 and February 2020.

Disposition

[28]

Leave to appeal is granted, the sentences for the possession of
    proceeds charges are reduced to 18 months imprisonment, to be served
    concurrently, and the appeal is otherwise dismissed.

David
    Watt J.A.

Alexandra
    Hoy J.A.

I.V.B.
    Nordheimer J.A.


