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Criminal - Gladue (Indigenous Defendant) (2). R. v. Robson
In R. v. Robson (Ont CA, 2024) the Ontario Court of Appeal considers the use of a 'Gladue report', here where there was an issue respecting the defendant's ties to their indigenous roots:[3] By way of background, in light of the fact that the appellant had only recently become aware in the last several years that he is of Métis heritage, the sentencing judge had ordered a Gladue report. However, Aboriginal Legal Services (“ALS”) provided a letter to the court indicating that a Gladue report could not be provided for two reasons: first, ALS was unaware of the specific nature of the appellant’s Indigenous ancestry and second, even if his ancestry was able to be confirmed, ALS could not address how being an Indigenous person had affected his life circumstances.
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[5] The sentencing judge found that there was no evidence that the appellant’s Indigenous heritage had affected his moral blameworthiness.
[6] The appellant argues that the sentencing judge failed to consider how cultural suppression or alienation from Indigenous ancestry can harm an individual. He argues that had the sentencing judge taken these factors into account, it would have resulted in a reduction of his sentence.
[7] We do not agree that this is the case. In fact, the sentencing judge expressly noted that she had carefully considered the recent BC Court of Appeal decision in R. v. Kehoe, 2023 BCCA 2, that even if an offender has been disconnected from his or her Aboriginal heritage, this does not automatically lead to a conclusion that Gladue factors should play no role in the sentencing exercise. She further stated that an offender’s Aboriginal background need not be causally connected to the offenses he or she has committed in order to be relevant to sentencing.
[8] At the same time, the sentencing judge noted, as this court affirmed in R. v. F.H.L., 2018 ONCA 83, that the proper application of Gladue principles requires a sentencing judge to consider whether, and how, systemic and background factors affecting Aboriginal peoples have impacted the particular offender’s own life experiences and moral blameworthiness.
[9] Applying this framework, the sentencing judge concluded that there was no evidence that systematic, background or intergenerational factors related to the appellant’s Indigenous heritage had contributed to his involvement in the criminal justice system, or that such factors otherwise impacted his moral blameworthiness. The sentencing judge further found that the sentence of five years’ incarceration already took account of relevant mitigating factors and arguably would also have provided recognition of Gladue factors had she determined that they were applicable.
[10] These findings of fact regarding the impact of the appellant’s Indigenous heritage on his moral blameworthiness were open to her on the record and are entitled to deference. We see no error in the sentencing judge’s analysis and conclusions. The sentence was fit. The sentence appeal is dismissed.
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