



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McNeil, 2020 ONCA 595

DATE: 20200922

DOCKET: C65912

Simmons, van Rensburg and
    Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert McKinney McNeil

Appellant

Sarah Weinberger, for the appellant

Joanne Stuart, for the respondent

Heard: June 16, 2020 by video conference

On appeal
    from the sentence imposed on December 21, 2017 by Justice Anthony F. Leitch of
    the Ontario Court of Justice.

Zarnett
    J.A.:

INTRODUCTION

[1]

The appellant is an Indigenous man from Six
    Nations of the Grand River. He appeals the ten-year global sentence (less two
    years credit for pre-sentence custody) that he received after he pled guilty
    to a number of offences, including assault, aggravated assault, assault on a peace
    officer, and breach of probation. All of the offences were committed while the
    appellant was in custody. The aggravated assault was particularly vicious; it left
    the victim severely brain damaged, visually impaired, and confined to a
    wheelchair for life.

[2]

The appellant argues that the sentencing judge failed
    to properly consider his circumstances as an Aboriginal offender as required by
    s. 718.2(e) of the

Criminal Code
, R.S.C. 1985, c. C-46, and the principles set out by the Supreme Court
    of Canada in
R. v. Gladue
,
    [1999] 1 S.C.R. 688, and
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433
. He seeks
    to introduce fresh evidence of a post-sentencing diagnosis of mental illness,
    as well as a
Gladue
report that (for reasons described below) was not
    obtained for the appellants sentencing hearing. The appellant submits that we
    should reconsider his sentence and substitute a global sentence of seven years
    less pre-sentence custody.

[3]

The Crown does not agree that the sentencing
    judge erred in his application of the
Gladue
factors. However, the
    Crown does not oppose admission of the fresh evidence and agrees that the
    sentence can be reconsidered in light of it. The Crown submits that the result
    of the reconsideration should be a dismissal of the appeal, except to the
    extent that the number of days to be credited for pre-sentence custody is
    corrected and the victim fine surcharge is set aside.

[4]

For the reasons that follow, I would admit the
    fresh evidence, grant leave to appeal sentence, set aside the victim fine
    surcharge, and reduce the sentence to reflect a credit for an additional seven
    days of pre-sentence custody. I would otherwise dismiss the appeal. In the
    circumstances of this case, after consideration of the fresh evidence, the ten-year
    global sentence less credit for pre-sentence custody remains fit.

THE CIRCUMSTANCES OF THE OFFENCES

[5]

The offences in issue occurred in 2016 and 2017.

[6]

On July 22, 2016, the appellant was in a holding
    cell at the Hamilton courthouse. He was on probation for other offences and the
    terms of his probation required him to keep the peace. The appellant, together
    with Kyle Duncan, assaulted David Love. They both punched Mr. Love until he
    fell to the ground. Mr. Duncan continued to punch Mr. Love while he was on the
    ground. The appellant stomped on Mr. Loves head using a bench to increase the
    force of the blows. Mr. Love was not, however, badly injured.

[7]

Four days later (on July 26, 2016), while bound
    by the same probation terms, the appellant launched a vicious surprise attack
    on Mr. Duncan at the Hamilton Wentworth Detention Centre. He sucker-punched Mr.
    Duncan while walking past him and continued punching him well beyond the point at
    which Mr. Duncan had lost consciousness. Once Mr. Duncan was on the ground, the
    appellant repeatedly stomped on his head until restrained by other inmates.

[8]

The results of this attack were devastating. Mr.
    Duncan suffered severe brain injury, impaired vision, behavioural changes, and
    loss of the use of his left arm and leg. He is confined to a wheelchair for
    life and will need 24-hour care for the foreseeable future. The impacts of the
    attack extend beyond Mr. Duncan to his mother, siblings, and young daughter.

[9]

On October 10, 2017, while awaiting trial on
    these assaults, the appellant attacked a correctional officer who was preparing
    to move him from the detention centre to court. The appellant struck the
    correctional officer. In doing so, the appellants handcuffs scraped across the
    officers face causing cuts and a bloody lip.

[10]

The sentencing judge described all three
    assaults as surprise attacks on the victims, giving them little chance to
    repel the assault.

THE PLEA OF GUILTY AND THE SENTENCING HEARING

[11]

On December 15, 2017, the appellant, then 26
    years old, pled guilty before the sentencing judge to a number of offences. In
    relation to the attack on Mr. Love, he pled guilty to assault contrary to s. 266
    of the
Code
and to breach of probation contrary to s. 733.1(1). In relation
    to the attack on Mr. Duncan, he pled guilty to aggravated assault contrary to s.
    268 of the
Code
and to breach of probation. In relation to the attack
    on the corrections officer, he pled guilty to assault on a peace officer contrary
    to s. 270(1)(a) of the
Code
.

[12]

The Crown filed the appellants criminal record.
    It includes two convictions for assault, two convictions for assault resisting
    arrest, a conviction for robbery, and seven convictions for breaching court
    orders. The Crown also filed a victim impact statement from Mr. Duncans
    mother, medical evidence about the extent of Mr. Duncans injuries, and a video
    showing the attack on Mr. Duncan.

[13]

Counsel advised the sentencing judge that the
    appellant was an Indigenous person and provided him with limited details about the
    appellants heritage. No
Gladue
report was filed, and the appellant
    did not request the opportunity to obtain one. Rather, counsel told the
    sentencing judge that the appellant was waiving the preparation of a
Gladue
report, and the appellant confirmed that that was his decision.

[14]

The Crown requested a sentence of nine years for
    the aggravated assault on Mr. Duncan, one year consecutive for the assault on
    the corrections officer, and six months concurrent for the assault on Mr. Love.
    This amounted to a global sentence of ten years for all offences, including the
    accompanying breaches of probation, less pre-sentence custody. The appellants
    counsel suggested a sentence of eight years on the aggravated assault and six
    to nine months for the other offences, amounting to a global sentence of
    approximately eight years and six months to eight years and nine months, less pre-sentence
    custody. Both parties agreed that the appellant should be credited 1.5 days for
    each day served prior to his guilty plea.

THE SENTENCING JUDGES DECISION

[15]

The sentencing judge observed that since there
    were multiple assaults on different victims, all in custody, consecutive
    sentences would be appropriate. He concluded that, before application of the
    totality principle, the appropriate sentences would aggregate to thirteen years:
    two years consecutive for the assault on Mr. Love (with a concurrent 90-day
    sentence for breach of probation); ten years consecutive for the assault on Mr.
    Duncan (with a concurrent six-month sentence for breach of probation); and one
    year consecutive for the assault on the corrections officer. He reduced the
    total sentence under the totality principle to ten years less pre-sentence
    custody. In addition, he imposed certain ancillary orders and victim fine
    surcharges totalling $1,000.

[16]

In coming to that conclusion, the sentencing
    judge referred to the range of sentences for serious assaults as being from seven
    to thirteen years, but noted that the injuries to Mr. Duncan in this case were
    worse than in most of the cases cited for that range. He also noted that in
    this case, unlike the cited cases, there were multiple assaults on different victims
    all while the appellant was in custody. This repetitive violence while in
    custody demonstrated a startling pattern of complete disregard for the rule
    of law and evidences the need to  protect the public.

[17]

As aggravating factors, the sentencing judge
    referred to the appellants criminal record of violence and breach of court
    orders, the severe impact on the victims (especially Mr. Duncan), the vicious
    and surprise nature of the attacks, the extreme violence (especially in the
    attack on Mr. Duncan), and the fact that the attacks were committed while the
    appellant was in custody (where corrections officers and other inmates, like
    other members of society, are entitled to be safe). He noted that the predominant
    sentencing considerations for offences committed while in custody and with this
    level of violence were deterrence and denunciation, as well as specific
    deterrence of the appellant.

[18]

After referring to the mitigating factor of the
    appellants guilty plea, the sentencing judge stated that the appellant had not
    otherwise indicated remorse. He also noted that there was little in the way of
    rehabilitation prospects, except that the appellants mother was said to be
    supportive.

[19]

The sentencing judge referred to the appellants
    diagnosis of Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity
    Disorder (ADHD) but stated that he had no evidence as to how those conditions
    related to the offences in issue.

[20]

Although the appellant had declined to
    participate in a
Gladue
report, the sentencing judge also accepted and
    referred to the fact that the appellant had an Aboriginal heritage and wished
    to re-establish a connection with that heritage. After quoting

Gladue
,
    at paras. 78-79, the sentencing judge stated:

Even in the presence of better and more
    fulsome information about this heritage it is the kind of case described by the
    Supreme Court of Canada where terms of imprisonment for aboriginals and
    non-aboriginals will be close to each other or the same [referring to
Gladue
,
    at para. 79]. Denunciation and deterrence are the predominating sentencing
    considerations for offences of violence carried out in custody, especially the
    extreme attack on Kyle Duncan. Specific deterrence is also an important principle
    for this offender with a lengthy criminal record who commits jail violence
    while bound by court orders. The sentence must send a message to him that it
    will not be tolerated and any future violence while serving his sentence will
    be treated harshly.

FRESH EVIDENCE AND THE PARTIES POSITIONS

[21]

The appellant seeks to introduce medical records
    dated between December 2017 and June 2018 as fresh evidence. They show that in the
    spring of 2018, the appellant was diagnosed with schizophrenia and chronic paranoia.
    They also show that in April 2018, he was found to be incapable of consenting
    to treatment with anti-psychotic medications, a finding that was confirmed by
    the Consent and Capacity Board on May 5, 2018.

[22]

The appellant also seeks to have admitted as
    fresh evidence a
Gladue
report, dated October 28, 2019, which was
    prepared to support this appeal. The
Gladue

report details how
    the appellant has suffered from, among other things, abuse, racism,
    homelessness, and substance misuse, situated in the context of inter-generational
    trauma stemming from his great-grandparents attendance at a residential
    school.

[23]

The appellant argues that the sentencing judge
    failed to properly consider his circumstances as an Aboriginal offender, as
    required by s. 718.2(e) of the
Code
. He submits that, taking into
    account the fresh evidence, a global sentence of seven years less pre-sentence
    custody is appropriate. He arrives at the sentence by asking for a six-year
    sentence for the attack on Mr. Duncan, a consecutive one-year sentence for the
    attack on Mr. Love, and a concurrent one-year and nine-month sentence for the
    attack on the corrections officer.

[24]

As noted, the Crown does not agree that the
    sentencing judge erred but does not oppose the admission of the fresh evidence
    and agrees that we may reconsider the sentence. However, the Crown submits that
    the ten-year global sentence continues to be fit in light of the fresh evidence.

ANALYSIS

Admission of the Fresh Evidence

[25]

The appellants diagnosis of mental illness is
    close enough in time to the sentencing hearing so as to cast doubt on whether his
    decision not to have a
Gladue
report prepared was fully informed. I
    would admit the medical records and the
Gladue
report as fresh
    evidence.

Reconsideration of Sentence on Appeal

[26]

The Supreme Court of Canada recently affirmed
    the standard of review for sentencing:
R. v. Friesen
, 2020 SCC 9. Generally,
    an appellate court can only intervene to vary a sentence if (1) the sentence
    is demonstrably unfit, or (2) the sentencing judge made an error in principle
    that had an impact on sentence:
Friesen
,
at para. 26.

[27]

In
Ipeelee
, at para. 87, the Supreme
    Court clarified that application of the
Gladue
principles is required
    in every case involving an Aboriginal offender  and a failure to do so
    constitutes an error justifying appellate intervention. As this court directed
    in
R. v. Pelletier
, 2012 ONCA 566, 291 C.C.C. (3d) 279, at paras. 141,
    148, where a sentencing judge errs in this respect, the appellate court is
    required to consider relevant and fresh evidence in determining the fitness of
    the sentence originally imposed.

[28]

In this case, as explained below, I do not
    consider the sentencing judge to have erred based on the information that was
    before him. However, in my view, the same approach followed in
Pelletier
should apply when, for reasons other than an error by the sentencing judge,
    relevant information, such as a
Gladue

report, was not
    available at the time of sentencing, and there are grounds to admit it as fresh
    evidence on appeal.

[29]

This approach was applied in
R. v. Monckton
,
    2017 ONCA 450, 349 C.C.C. (3d) 90, in which an offenders Aboriginal status was
    not brought to the attention of the trial judge on sentencing but was adduced
    as fresh evidence on appeal. This court explained, at para. 113:

Based on the record that was before him, I can
    find no error in the trial judges analysis. Nevertheless, s. 718.2(e) requires
    a consideration of an offenders Aboriginal status at sentencing: see
Kakekagamick
,
    at para. 37; and
R. v. Radcliffe
, 2017 ONCA 176 (Ont. C.A.), at para.
    62.
In light of the fresh evidence about the appellants Aboriginal
    heritage, this is an appropriate case to reassess the fitness of his sentence.
[Emphasis added.]

[30]

In reconsidering the sentence, this court is still
    required to pay deference to aspects of the sentencing judges analysis. As
    explained in
Friesen
,

at para. 28:

[I]n sentencing afresh, the appellate court
    will defer to the sentencing judges findings of fact or identification of
    aggravating and mitigating factors, to the extent they are not affected by an
    error in principle. This deference limits the number, length, and cost of
    appeals; promotes the autonomy and integrity of sentencing proceedings; and
    recognizes the sentencing judges expertise and advantageous position (
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.), at paras.
    15-18).

[31]

Additionally, reconsideration of the sentence
    does not necessarily result in a different outcome. The appellate court may be
    satisfied that, notwithstanding the fresh evidence, the sentence imposed by the
    trial judge remains fit: see
Monckton
, at para. 113;

Pelletier
,
    at paras. 148-52; and
R. v. F.H.L.
, 2018 ONCA 83, 360 C.C.C. (3d) 189,
    at para. 8.

Reconsideration Based on the Medical Records

[32]

In this case, although the medical records
    provide a basis to admit the
Gladue
report, they otherwise do not, on
    their own, provide a reason to consider the sentence unfit. The medical records
    fall short of demonstrating on a balance of probabilities that the appellant suffered
    from the mental conditions they describe at the time he committed the offences in
    July 2016, namely the attack on Mr. Love and the attack on Mr. Duncan. For
    example, the Mental Health Clinical Notes dated June 28, 2018 state, in part: Mr.
    McNeil is not known to have a significant history of major mental illness prior
    to his current incarceration.  Review of Mr. McNeils Health Care file
    suggested the onset of psychotic symptoms as occurring in provincial custody in
    2017. For this reason, the medical records do not bear on the moral blameworthiness
    of the appellant in relation to the 2016 offences. Further, without evidence of
    Mr. McNeils progress while incarcerated, they do not enhance significantly his
    prospects for rehabilitation.

[33]

One could infer from the medical records that
    the mental conditions they describe may have been present, to some extent, at
    the time of the attack on the corrections officer in October 2017. Nevertheless,
    that would not materially affect the global sentence as the sentence imposed by
    the sentencing judge for that offence was designated to run concurrently.
    Moreover, although the sentencing judge imposed a sentence of one year for that
    offence, the appellants submission in this court would allocate a term of imprisonment
    of one year and nine months for that offence (also to run concurrently).

Reconsideration Based on the 2019 Gladue
    Report

[34]

I agree with the appellant that the
Gladue
factors must be considered no matter how serious the offences. Paragraph 79 of
Gladue
is not to be taken as suggesting that an Aboriginal offender is to be treated
    as though they were non-Aboriginal for some category of serious offences:
Ipeelee
,
    at paras. 84-85. Indeed, in
R. v. Altiman
, 2019 ONCA 511, 56 C.R.
    (7th) 83, at para. 85, this court recently cautioned that:

[T]he
Gladue

analysis
    conducted by a sentencing judge must focus on the circumstances of the offender
    that may bear on the offenders moral culpability for the offence.
A
    sentencing judge cannot let the seriousness of the offence deflect the court
    away from that focus.
[Emphasis added.]

[35]

Nevertheless, I do not agree with the appellant
    that the sentencing judge, because of his emphasis on the seriousness of the
    offences and reference to para. 79 of
Gladue
, approached the matter as
    though
Gladue
factors did not apply. The sentencing judge was entitled
    to weigh the
Gladue
factors with other applicable sentencing
    principles in light of the gravity of the offences:

As with any sentencing
    decision, the relative weight to be accorded to each sentencing principle or
    objective will vary depending on the circumstances of the particular offence.
    In all instances, the sentence must be proportionate to both the gravity of the
    offence and the degree of responsibility of the offender. [
Ipeelee
, at
    para. 51.
]

[36]

That said, the 2019
Gladue
report
    provides much more information, as well as more detailed information, than what
    was available to the sentencing judge. A
Gladue
report is an
    indispensable tool in the sentencing of an Aboriginal offender:
Ipeelee
,
    at para. 60. In light of it, I turn to the effect it has on the fitness of the
    sentence.

[37]

In doing so, I accept the sentencing judges
    description of the offences, his observation that they should, before
    application of the totality principle, attract consecutive sentences, his
    description of the aggravating and mitigating factors, and his description of
    the impact of the offences on their victims.

The 2019 Gladue Report

[38]

The
Gladue
report explains that the
    appellants great-grandmother attended a Residential School, the Mohawk
    Institute, ultimately resulting in intergenerational trauma, parenting issues,
    substance abuse, and violence in the appellants grandmothers life, his
    mothers life and the appellants life. The report contains the appellants description
    of his upbringing as chaotic, dysfunctional, characterized by poverty, neglect,
    violence, substance misuse, and instability.

[39]

At eight years old, the appellant was removed from
    his home by the Childrens Aid Society. He was placed with his grandmother for
    a year, and then transitioned through a number of non-Indigenous foster
    placements. He was diagnosed with ADHD at age nine and treated with Ritalin. He
    had limited contact with his grandmother, mother, and nine siblings, and felt
    disconnected from family and culture. When he aged out of the care of the
    Childrens Aid Society at 17 years old, he became homeless. He lived in a Youth
    Shelter for two years while he tried to complete his education and get his life
    on track. His offending behaviour began with an alcohol-fuelled assault at age
    19.

[40]

The author of the report observed that a number
    of systemic and background factors that affect Aboriginal persons in Canada were
    present in the appellants life, including:

·

mutigenerational familial instability, violence,
    breakdown, and fragmentation;

·

the absence of any positive adult role models or
    mentors;

·

involvement with the Childrens Aid Society;

·

lack of educational attainment, resulting in
    unemployment, low income, poverty, addiction, and criminal involvement;

·

intergenerational effects, including loss of
    cultural identity and connection to the larger Indigenous community.

The Principles

[41]

In
Ipeelee
, the Supreme Court reviewed the
    methodology for determining a fit sentence in cases of Aboriginal offenders. The
    Court reiterated that s. 718.2(e) and the
Gladue
analysis should not
    be taken as requiring an
automatic

reduction of a sentence, or
    a remission of a
warranted

period of incarceration, simply
    because the offender is aboriginal: at para. 71. The fundamental principle of
    sentencing remains the determination of a sentence that is proportionate to
    both the gravity of the offence and the degree of responsibility of the
    offender:
Ipeelee
, at paras. 39, 73. The Supreme Court explained the
    purpose of s. 718.2(e) and the
Gladue
analysis at para. 59 as follows:

[Section] 718.2(e) of the
Code
is a
    remedial provision designed to ameliorate the serious problem of
    overrepresentation of Aboriginal people in Canadian prisons, and to encourage
    sentencing judges to have recourse to a restorative approach to sentencing (
Gladue
,
    at para. 93). It does more than affirm existing principles of sentencing; it
    calls upon judges to use a different method of analysis in determining a fit
    sentence for Aboriginal offenders. Section 718.2(e) directs sentencing judges
    to pay particular attention to the circumstances of Aboriginal offenders
    because those circumstances are unique and different from those of
    non-Aboriginal offenders (
Gladue
, at para. 37).

[42]

With respect to the different method of
    analysis to be used in determining a fit sentence, the Supreme Court provided
    the following direction, at para. 59:

When sentencing an Aboriginal offender, a
    judge must consider: (a) the unique systemic or background factors which may
    have played a part in bringing the particular Aboriginal offender before the
    courts; and (b) 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).
    Judges may take judicial notice of the broad systemic and background factors
    affecting Aboriginal people generally, but additional case-specific information
    will have to come from counsel and from the pre-sentence report (
Gladue
,
    at paras. 83-84).

[43]

As this court summarized in
F.H.L.
, at
    para. 40:

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.

[44]

The Supreme Court, in
Ipeelee
, at para.
    73, elaborated on how an Aboriginal offenders circumstances may affect their
    moral blameworthiness:

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 rarelyif everattains a
    level where one could properly say their actions were not
voluntary

and therefore not deserving of criminal sanction, the reality is that their
    constrained circumstances may diminish their moral culpability.

[45]

With respect to the sentencing objectives that
    should be prioritized, where systemic and background factors played a significant
    role in bringing the particular offender before the courts:

[I]t is incumbent upon the sentencing judge to
    consider these factors in evaluating whether imprisonment would actually serve
    to deter, or to denounce crime in a sense that would be meaningful to the
    community of which the offender is a member. In many instances, more
    restorative sentencing principles will gain primary relevance precisely because
    the prevention of crime as well as individual and social healing cannot occur
    through other means. [
Gladue
, at para. 69; see also
Ipeelee
,
    at para. 73.]

[46]

Consideration of the types of sanctions which
    may be appropriate bears not on the degree of culpability of the offender, but
    on the effectiveness of the sentence itself:
Ipeelee
, at para. 74. In
Ipeelee
, at para. 74, the Supreme Court explained:

The
Gladue
principles direct
    sentencing judges to abandon the presumption that all offenders and all
    communities share the same values when it comes to sentencing and to recognize
    that, given these fundamentally different world views, different or alternative
    sanctions may more effectively achieve the objectives of sentencing in a
    particular community.

Application of the Principles

[47]

I agree with the argument of the Crown that consideration
    of the
Gladue
factors in this case, based on the information in the 2019
Gladue
report, does not lead to a reconsidered global sentence of less
    than ten years before credit for pre-sentence custody.

[48]

I accept that many of the systemic and background
    factors that affect Aboriginal people in Canadian society have specifically
    impacted the appellants own life experiences.

[49]

In assessing whether that bears on the appellants
    moral culpability for the offences in question, the jurisprudence is clear that
    a direct causal chain need not be shown. In
F.H.L.
, at para. 46, this
    court explained that:

The link between systematic or background
    factors and moral culpability for an offence does not require a detailed chain
    of causative reasoning. Instead, the analysis is based on inference drawn from
    the evidence based on the wisdom and experience of the sentencing judge.

[50]

I am satisfied that the appellants constrained
    life circumstances have some bearing on his moral culpability for these
    offences. The appellants experiences with physical and emotional abuse,
    disconnection from family and culture, lack of positive role models, substance
    misuse, and homelessness at a young age form part of the context underlying the
    offences, as they played a part in bringing him before the courts.

[51]

That said, the appellants commission of these
    offences must still be regarded as involving a significant degree of moral
    blameworthiness. The offences involved unprovoked, surprise, violent attacks on
    others while the appellant was in custody. None of the attacks gave the victims
    an opportunity to defend themselves. In the case of the attack on Mr. Duncan, the
    attack continued even after Mr. Duncan had lost consciousness.

[52]

Further, there can be no serious issue in this
    case as to whether imprisonment would actually serve to deter, or to denounce
    crime in a sense that would be meaningful to the community of which the [appellant]
    is a member:
Gladue
, at para. 69. It would be unreasonable to assume
    that the community of which the appellant is a member lacks a strong interest
    in the safety of persons who are incarcerated. Separation, deterrence and
    denunciation are therefore appropriately predominating principles when violent
    crimes such as these are committed by a person in custody against other persons
    in custody. Moreover, where an offence is committed against a peace officer,
    primary consideration must be given to the objectives of denunciation and
    deterrence:

Code
, s. 718.02.

[53]

Nor can it be suggested that there are
    alternative sentencing procedures that may more effectively achieve the objectives
    of sentencing for this particular offender and his particular community. As
    mentioned, the appellant has always taken the position that his sentence should
    include a lengthy period of imprisonment.

[54]

Furthermore, as the Court said in
Gladue
,
    at para. 78:

we do not mean to suggest that, as a general
    practice, aboriginal offenders must always be sentenced in a manner which gives
    greatest weight to the principles of restorative justice, and less weight to
    goals such as deterrence, denunciation, and separation. It is unreasonable to
    assume that aboriginal peoples themselves do not believe in the importance of
    these latter goals, and even if they do not, that such goals must not
    predominate in appropriate cases. Clearly there are some serious offences and
    some offenders for which and for whom separation, denunciation, and deterrence
    are fundamentally relevant.

[55]

The circumstances of this case do not mark it as
    one where the principles of restorative justice should assume a more prominent
    role. The fresh evidence does not indicate that the appellant has shown
    significant remorse or an understanding of the consequences of his actions, beyond
    the
Gladue

report writers observation that the appellant
    recognizes that to obtain legitimate employment  he first must address his
    mental health issues, and distance himself from his criminal lifestyle and
    similarly oriented peers.

[56]

The fresh evidence also does not describe progress
    the appellant has made while incarcerated. The
Gladue
report outlines
    certain beneficial programs available to those in custody, but there is no
    evidence that the appellant is accessing them. It also describes beneficial
    programs available in the community post-release, but there is no evidence the
    appellant will access them. As the
Gladue
report states, his
    post-release plan remains largely undefined.

[57]

Turning to the length of the sentence, the Court
    stated in
Gladue
, at para. 79, that:

[E]ven where an offence is considered serious,
    the length of the term of imprisonment must be considered. In some
    circumstances the length of the sentence of an aboriginal offender may be less
    and in others the same as that of any other offender. Generally, 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, even taking into account their
    different concepts of sentencing.

[58]

As noted above, the Supreme Court subsequently
    clarified that this generalization regarding serious offences was not meant to
    be a principle of universal application, and that [t]here is no sense
    comparing the sentence that a particular Aboriginal offender would receive to
    the sentence that some hypothetical non-Aboriginal offender would receive, because
    there is only one offender standing before the court:
Ipeelee
, at
    paras. 85-86.

[59]

The Crown points out that sentences in the range
    of nine to twelve years were considered fit for Indigenous offenders who
    committed aggravated assaults and other offences in
Pelletier
, at
    paras. 131, 152; in
R. v. Hess
, 2017 ONCA 220, at para. 24; and in
R.
    v. Cardinal
, 2015 BCCA 58 at para. 1.

[60]

The appellant submits that where an aggravated
    assault was committed in custody resulting in life-threatening injuries, a
    sentencing range of eight to twelve years is appropriate. But where
Gladue
factors and mental health issues are present, he argues that a sentence lower
    than that range can be justified. He notes that a seven-year sentence for an aggravated
    assault on a corrections officer was imposed on an Indigenous offender in
R.
    v. Beaulieu
, 2015 BCSC 354, and that 78 months (6½ years) was the sentence
    allocated for an equally devastating aggravated assault committed by an
    Indigenous offender while incarcerated in
Cardinal
(a decision on
    which the Crown also relies).

[61]

Beaulieu
involved an offender with reduced moral blameworthiness due to the presence of
    mental illness at the time he committed the offence. The appellant has not shown
    that his mental illness existed at the time of the 2016 offences. Furthermore,
    the assault on Mr. Duncan caused injury more serious than that in
Beaulieu
.
    In the words of Mr. Duncans mother in her victim impact statement: Its like
    Kyle died but my Kyle is still breathing. As well, unlike
Beaulieu
,
    here the sentence must reflect that there were multiple assaults on different
    occasions, two on other persons in custody and one on a corrections officer.

[62]

In
Cardinal
,
    in addition to the aggravated assault committed while detained, the accused was
    convicted of participation in a planned daylight robbery of a jewellery store. Before
    consideration of the totality principle and the accuseds status as an
    Indigenous offender, the trial judge concluded a six-year sentence was
    appropriate for the robbery and a nine-year sentence was appropriate for the
    aggravated assault.
It
    was only after taking account of all the circumstances, including the Crowns
    position having regard to those circumstances (11 years less pre-sentence
    custody), that the trial judge imposed an 11-year global sentence (less
    pre-sentence custody), and allocated 4½ years to the robbery and 6½ years to
    the aggravated assault.

[63]

In this case, the
    trial Crowns global position was ten years (less pre-sentence custody), a
    position Crown counsel takes up again in this court. The global sentence must
    reflect not only the vicious and devastating aggravated assault, but the fact
    that the appellant committed two other serious offences, both while
    incarcerated, one against a fellow inmate and one against a corrections
    officer.

[64]

In my view, after considering the 2019
Gladue
report and the information it provides about the circumstances of the
    appellant, in light of the other relevant circumstances, a global sentence of
    ten years less pre-sentence custody remains a fit and proper sentence. There
    being no reason to disturb the global sentence, I would not interfere with the
    sentencing judges allocation of the sentences among the various offences.

[65]

The Crown concedes that pre-sentence custody was
    incorrectly calculated in the original sentence by seven days, and that the victim
    fine surcharge orders should be set aside under
R. v. Boudreault
, 2018
    SCC 58, [2018] 3 S.C.R. 599.

CONCLUSION

[66]

I would grant leave to appeal sentence. I would
    vary the sentence of the appellant to increase the credit for pre-sentence
    custody by seven days to be applied to the sentence for aggravated assault, and
    would set aside the victim fine surcharges. I would otherwise dismiss the
    appeal.

Released: J.S. September 22, 2020

B.
    Zarnett J.A.

I agree.
    Janet Simmons J.A.

I agree.
    K. van Rensburg J.A.


