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

SENTENCING-INDIGENOUS OFFENDERS

R. v. Bourdon, 2024 ONCA 8, January 5, 2024, at paragraphs 25 to 28:

When sentencing an Indigenous offender, a judge must consider the unique systemic or background factors that may have played a part in bringing that particular Indigenous offender before the court, and the types of sentencing procedures and sanctions that may be appropriate in the circumstances. The judge must then go on to consider whether the systemic and background factors have impacted the offender’s life experience in a way that diminishes their moral culpability: R. v. Gladue, [1999] 1 S.C.R. 688, at para. 66; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 73. These considerations are relevant even when the dangerous offender scheme is engaged: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 63, but are subordinate to the protection of the public, which is the paramount objective when sentencing a dangerous offender: Boutiler, at para. 56; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 51, 63.

While a sentencing judge would fall into error if, as a precondition to considering and applying Gladue principles, they required a causal link between an offender’s Indigeneity and offending behaviour, that is not what the trial judge did here. He took judicial notice of the systemic and background factors affecting Indigenous people, conducted a thorough Gladue analysis, and in the end found that the appellant’s circumstances had not been lifted from the “general to the specific”, which was clearly his way of saying that the systemic and background factors were not “tied” to the appellant and the offences: Ipeelee, at para. 83; R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, at para. 115; and R. v. F.H.L, 2018 ONCA 83, 360 C.C.C. (3d) 189, at paras. 38-39, 41. It is not enough, as the appellant did, to simply point to the systemic and background factors affecting Indigenous people in Canada or to make a bare assertion of Indigenous status. As the Supreme Court directed in Ipeelee, at para. 73, the systemic and background factors must “shed light on [the offender’s] level of moral blameworthiness”, which the trial judge reasonably found did not in the appellant’s case.

The appellant submits that the trial judge did not conduct this inquiry generously enough. He points to this court’s robust use of systemic and background factors to illuminate the offender’s moral blameworthiness in R. v. Kreko, 2016 ONCA 367, 131 O.R. (3d) 685, asserting that a similarly broad view ought to be taken in assessing how his Indigeneity may have affected his moral culpability. However, a closer examination of Kreko reveals that Mr. Kreko’s circumstances were markedly different from those of the appellant. Mr. Kreko’s life was intimately affected by intergenerational systemic factors that caused him to be involuntarily displaced from his Indigenous heritage at a young age. He was left to reckon with his loss of identity in the turbulence of adolescence and against a long legacy of impoverishment, alcohol abuse, violence, and family desertion. As Pardu J.A. wrote for a unanimous court, these systemic factors were “unquestionably part of the context underlying the offences … [and] bore on [Mr. Kreko’s] moral blameworthiness”.

Few parallels can be drawn between Mr. Kreko’s circumstances and those of the appellant. As the trial judge noted, the appellant was raised in a relatively stable home and “grew up without any knowledge of or connection to Aboriginal culture, teachings, or heritage”. Although the appellant, along with his immediate family, discovered and began connecting with his Indigenous ancestry while in his mid-thirties, the trial judge accepted there was no evidence that the appellant’s difficulties “were linked to systemic, background or intergenerational factors related to his Aboriginal heritage”. In this respect, the appellant’s circumstances are more analogous to those of the offender in R. v. Bauer, 2013 ONCA 691, 119 O.R. (3d) 11, who similarly grew up in a relatively stable home off-reserve with limited knowledge of or connection to his Indigenous heritage. As with Mr. Bauer, the systemic and background factors identified by the appellant are not “tied” to nor “illuminate” his moral blameworthiness. In any event, the trial judge correctly recognized that the paramount objective in sentencing the appellant was the protection of the public, and reasonably concluded that no measure short of an indeterminate sentence would adequately achieve this objective