CAPCJ / ACJCP

Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

SENTENCING- INDIGENOUS OFFENDERS

R. v. OLSON, 2023 BCCA 430, NOVEMBER 24, 2023.

FACTS: The accused was sentenced to a period of 11.5 years of imprisonment for having committed a number of weapon offences. He appealed from sentence, arguing that the sentencing judge erred in her application of the Gladue principles, in particular that she erred giving “no weight to his disconnection from Indigenous culture, which itself is a function of Canada’s colonial past and assimilationist policies”.

In imposing sentence, the sentencing judge stated that she did not consider “the Gladue factors to have great impact in the circumstances of this case, given the seriousness of the charges and the tenuous connection to the possibility of an indigenous heritage.”

HELD:  The appeal was dismissed. The British Columbia Court of Appeal indicated that “disconnection from Indigenous culture may on the facts of a case ground the nexus necessary to give effect to Gladue considerations in sentencing” (at paragraph 26).  However, the Court of Appeal concluded that “[w]hat is missing here is a proper basis for concluding that the necessary nexus between Mr. Olson’s personal circumstances and disconnection from potential Indigenous heritage played anything other than a tenuous role in bringing him before the court or affected his moral culpability. On the record, even when read most generously, the judge’s conclusion that she could not attach great weight to the Gladue factors was open to her” (at paragraph 35).