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Criminal - Gladue (Indigenous Defendant) (2). Michel v. Canada (Attorney General)
In Michel v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal partially allowed an appeal, here from a denied class action certification motion that resulted when "the Federal Court declined to allow the plaintiffs leave to amend their Third Amended Statement of Claim (the Statement of Claim) and to reapply for certification".
In this context, the court canvasses Charter s.15-challenged provisions of the CCRA and administrative policies and practices thereunder relating to indigenous inmates, particularly in light of modern developments in law (Gladue):[16] In the subsequent paragraphs of their Statement of Claim, the plaintiffs set out particulars of the CRS and the impugned tools. They alleged that the CRS overclassifies female Indigenous offenders, on both an individual and systemic basis, and that CSC has been aware of this overclassification since 2004, when certain studies were completed that, according to the plaintiffs, demonstrate this overclassification. The plaintiffs also alleged that the use of the impugned tools produces "“an anti-""Gladue effect, such that the greater the presence of colonial and post-colonial oppression, the higher the inmate’s risk profile and the more lengthy and harsh their time in custody”" (at para. 13.2 of the Statement of Claim). The plaintiffs further alleged that this anti-Gladue effect violates section 79.1 of the CCRA, which provides as follows:"Factors to be considered "
"Éléments à prendre en considération "
"79.1 (1) In making decisions under this Act affecting an Indigenous offender, the Service shall take the following into consideration: "
"79.1 (1)"" Dans le cadre de la prise de toute décision au titre de la présente loi concernant un délinquant autochtone, le Service tient compte des éléments suivants : "
"(a) systemic and background factors affecting Indigenous peoples of Canada; "
"a)"" les facteurs systémiques et historiques touchant les peuples autochtones du Canada; "
"(b) systemic and background factors that have contributed to the overrepresentation of Indigenous persons in the criminal justice system and that may have contributed to the offender’s involvement in the criminal justice system; and "
"b)"" les facteurs systémiques et historiques qui ont contribué à la surreprésentation des Autochtones dans le système de justice pénal et qui peuvent avoir contribué aux démêlés du délinquant avec le système de justice pénale; "
"(c) the Indigenous culture and identity of the offender, including his or her family and adoption history. "
"c)"" l’identité et la culture autochtones du délinquant, notamment son passé familial et son historique d’adoption. "
"Exception — risk assessment "
"Exception : évaluation du risque "
"(2) The factors described in paragraphs (1)(a) to (c) are not to be taken into consideration for decisions respecting the assessment of the risk posed by an Indigenous offender unless those factors could decrease the level of risk."
"(2)"" Les éléments énoncés aux alinéas (1)a) à c) ne sont pas pris en considération pour les décisions concernant l’évaluation du risque que représente un délinquant autochtone, sauf dans les cas où ces éléments pourraient abaisser le niveau de risque." [17] The reference to Gladue is to R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679. In that case, the Supreme Court of Canada found that paragraph 718.2(e) of the Criminal Code, R.S.C. 1985, c. C-46 directs sentencing judges to consider the unique systemic or background factors which may have played a part in bringing an Indigenous offender before the courts and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of their particular Indigenous heritage or connection. Paragraph 718.2(e) of the Criminal Code provides for the following:"Other sentencing principles "
"Principes de détermination de la peine "
"718.2 A court that imposes a sentence shall also take into consideration the following principles: "
"718.2"" Le tribunal détermine la peine à infliger compte tenu également des principes suivants : "
"… "
"[…] "
"(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. "
"e)"" l’examen, plus particulièrement en ce qui concerne les délinquants autochtones, de toutes les sanctions substitutives qui sont raisonnables dans les circonstances et qui tiennent compte du tort causé aux victimes ou à la collectivité." ....
[22] The CRS has been used by CSC since 1991 for purposes of classifying offenders’ level of public and institutional risk to assist in determining the security classification of offenders and the level of the institution where they will be incarcerated. The CRS also plays a role in offenders’ correctional plans and sentence planning. The CRS is administered either shortly before or shortly following an offender’s entry or re-entry into the federal penitential system for a period of incarceration. The CRS consists of two subscales—the Institutional Adjustment subscale and the Security Risk subscale.
[23] The Institutional Adjustment subscale assesses five items: institutional incidents; escape history; street stability; alcohol/drug use; and age at the time of sentencing. Street stability involves assessment of the offender’s employment and education history, marital and family adjustment, previous interpersonal relationships in the community, and living arrangements. The plaintiffs alleged that, due to the history of colonization, Indigenous people will tend to score poorly on many of the foregoing items and particularly on the street stability portion of this subscale.
[24] The Security Risk subscale assesses seven items: number of prior convictions; most severe outstanding charge; severity of current offence; sentence length; street stability; prior parole and/or mandatory supervision/statutory release; and age at time of first federal admission.
[25] The SFA, also completed as part of CSC’s inmate intake process, assesses 137 static factors related to the offender and their offence history.
[26] The DFI-A is also completed as part of CSC’s intake process. It assesses seven areas, which overlap to a certain extent with the CRS, namely: employment and education; marital and family relationships; nature of associates; substance abuse; community functioning; personal and emotional skills; and attitudes.
[27] The RP is a point in time assessment of an offender’s ability to reintegrate into the community. It is used for sentence planning and as part of an offender’s correctional plan. The RP is arrived at via a combination of the CRS recommendation, the SFA rating, and the DFI-A rating, but may be adjusted by a parole officer.
[28] The appellant alleges that there was some basis in fact before the Federal Court to show that the CRS, the impugned tools, and/or certain components of them tend to overclassify female Indigenous inmates, both in the aggregate and in individual instances. She says that at least one of the expert reports the plaintiffs filed supports this contention. This contention was contested by the respondent’s experts. However, the Federal Court made no finding on this issue, concluding that "“no determination need be made … as to whether [the CRS] lacks predictive validity for the class members”" (Federal Court Reasons at para. 65).
[29] The evidence before the Federal Court showed that female Indigenous inmates, collectively, are classified as higher security risks than non-Indigenous female inmates, a point that is not disputed by the respondent.
[30] The security classification that CSC applied to the plaintiffs at certain points in their carceral history differed from the results obtained through their CRS scores. Indeed, Ms. Michel was classified at certain points in her carceral history at a risk level that was lower than the result obtained from her CRS scores.
[31] The Federal Court found that CSC Wardens have the authority to determine offenders’ security classifications, based upon their review of all the information obtained through the offender intake assessment process, which includes many items in addition to CRS scores and scores from the impugned tools. As noted by the Federal Court at paragraph 183 of its reasons, "“the security classification is decided by the Warden after a review of all of the information gathered during the [offender intake assessment] process. It is a multifactorial and individualized process involving numerous assessments and pieces of information, the application of professional judgment and the exercise of the Warden’s discretion.”" As will soon become apparent, largely by reason of what it found to be an individualized process, the Federal Court dismissed the motion for certification. . R. v. Wesley [sentencing]
In R. v. Wesley (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, this from convictions for "two counts of second degree murder and one count of attempted murder".
Here the court considered indigenous sentencing (Gladue):The Effects of the Systemic Impact of Colonization and Intergenerational Trauma Experienced by the Appellant
[107] In his reasons for sentence, the trial judge acknowledged that the appellant is Indigenous, excerpted portions of the pre-sentence report and the Gladue report, referred to R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, and s. 718.2(e) of the Criminal Code, and listed “the Gladue factors as noted” as a mitigating factor. However, nowhere in his reasons did he analyze the effects of the systemic impact of colonization and intergenerational trauma experienced by the appellant on his moral blameworthiness for the offences.
[108] As was confirmed in both the Gladue and pre-sentence reports filed as exhibits on sentencing, the appellant experienced a difficult and unstable upbringing. He grew up in a small, remote First Nation community significantly impacted by the imposition of settler culture and the erosion of the traditional way of life. Cat Lake was described as a “high risk” environment because of its high unemployment rate, extreme levels of poverty, inadequate and unsafe housing, low education levels, and other barriers to opportunity.
[109] Several of the appellant’s relatives attended residential schools. At times, he experienced crowded and inadequate shelter and food insecurity. Throughout his young life, he was exposed to both alcohol and drug abuse, and the violence that can occur as a result of such abuse. Although his mother did not think he suffered from fetal alcohol syndrome, she acknowledged drinking during her pregnancy and observed that the appellant did not thrive as a young child. His mother also acknowledged that her abusive childhood led her to become an abusive mother and that she hit her children a lot. During the approximately five years she and Mr. Gray were together, there was a lot of fighting and drinking. Subsequently, the appellant went back and forth between his parents and eventually began to live full time with his father. Mr. Gray sold drugs and alcohol for a living. The appellant often witnessed people having sex in his home and on one occasion was sexually abused. The appellant had limited education and sporadic employment cutting wood.
[110] The pre-sentence report noted that both the appellant and his mother “appeared to attribute alcohol use and systemic issues in the community as a catalyst for the offences”. The author of the Gladue report emphasized the use of the numbing effects of drugs and alcohol in the Indigenous population as a means of coping with and providing temporary escape from difficult life circumstances and ongoing historical trauma. She wrote:A further component of historical trauma is the use of the numbing effects of drugs and alcohol. When people experience intense feelings of fear, shame, anger and guilt and do not possess healthy coping strategies to address these negative feelings they may respond by seeking a numbing process. Statistics on alcohol use shows that Aboriginal people drink less overall than the general population, but when they do drink they drink more than the average person. This is evidence that alcohol use is serving as a numbing, rather than a social function. [111] On the day in question, the appellant clearly drank to the point of advanced intoxication and became highly agitated after his father spoke to him about his failure to provide for himself. However, his life circumstances must be viewed as being, to a large extent, a manifestation of the effects of the systemic impacts of colonization and intergenerational trauma he experienced. When viewed through that lens, his level of intoxication and state of agitation reduces his moral blameworthiness.
[112] Further, in Ipeelee, at para. 59, the Supreme Court stated that s. 718.2(e) of the Criminal Code was designed in part “to encourage sentencing judges to have recourse to a restorative approach to sentencing”. As part of this approach, sentencing judges 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. [113] Setting a lower period of parole ineligibility does not mean an offender will be released into the community at an earlier date. It means only that the offender will have the opportunity to be released at an earlier date if deemed appropriate by the parole board. Here, the trial judge erred by failing to grapple with the questions of whether the unique systemic factors that played a part in bringing the appellant before the court and the understanding and forgiveness of his community that was a theme of the victim impact statements should play a role in determining the particular sanction he was considering: the appellant’s period of parole ineligibility. . R. v. Sharma
In R. v. Sharma (SCC, 2025) the Supreme Court of Canada allowed a Crown appeal, this from an Ontario Court of Appeal ruling that allowed an appeal, that from a Superior Court sentencing ruling "that a conditional sentence was unavailable, and dismissed Ms. Sharma’s challenges under ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms".
Here the court reviews the history of conditional sentencing to date, noting it's role in indigenous sentencing:III. Legislative Framework
[7] Conditional sentences are a type of incarceration provided for under s. 742.1 of the Criminal Code. Such sentences permit offenders who meet statutory criteria to serve their sentences under strict surveillance in their communities, rather than in jail.
[8] Parliament legislated conditional sentences in 1996 in the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22. The Act significantly reformed sentencing law (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 39), by including an express statement of the purposes and principles of sentencing, by providing for the conditional sentencing regime itself, and by enacting s. 718.2, which sets out considerations for judges to have regard to when determining a fit sentence. In particular, s. 718.2(e) provides that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”.
[9] Parliament’s principal objectives in enacting this legislation were to reduce sentences of imprisonment and to expand the use of restorative justice principles in sentencing (Gladue, at para. 48; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 15). Section 718.2(e) and the conditional sentencing regime in s. 742.1 were aimed at achieving these goals (Proulx, at paras. 21, 90 and 127; Gladue, at para. 40; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 31).
[10] The Court first considered s. 742.1 in Proulx. Under the legislation at that time, offenders were not eligible for a conditional sentence if (1) their offence was punishable by a minimum term of imprisonment; (2) the court would impose a term of imprisonment of more than two years; (3) imposing a conditional sentence would endanger the safety of the community; or (4) imposing a conditional sentence would be inconsistent with the fundamental purposes and principles of sentencing.
[11] In 2007, Parliament amended s. 742.1 to provide that conditional sentences would also not be available to offenders convicted of a “serious personal injury offence” as defined in s. 752.01, or for offenders convicted of other specific crimes (An Act to amend the Criminal Code (conditional sentence of imprisonment), S.C. 2007, c. 12).
[12] Parliament again amended s. 742.1 in 2012 in the Safe Streets and Communities Act, S.C. 2012, c. 1, s. 34 (“SSCA”), resulting in the current version of s. 742.1. It reads as follows:Imposing of conditional sentence
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;
(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that
(i) resulted in bodily harm,
(ii) involved the import, export, trafficking or production of drugs, or
(iii) involved the use of a weapon; and
(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:
(i) section 144 (prison breach),
(ii) section 264 (criminal harassment),
(iii) section 271 (sexual assault),
(iv) section 279 (kidnapping),
(v) section 279.02 (trafficking in persons — material benefit),
(vi) section 281 (abduction of person under fourteen),
(vii) section 333.1 (motor vehicle theft),
(viii) paragraph 334(a) (theft over $5000),
(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling‑house),
(x) section 349 (being unlawfully in a dwelling‑house), and
(xi) section 435 (arson for fraudulent purpose). [13] While there have been various amendments, the structure of s. 742.1 remains substantially the same as that described in Proulx. In particular, three prerequisites must be met before a conditional sentence can be imposed:(1) the offender was not convicted of one of the offences listed at paras. 742.1(b) through (f) (“exclusionary provisions”);
(2) a court would otherwise impose a sentence of imprisonment of fewer than two years (see Proulx, at paras. 49‑61); and
(3) the safety of the community would not be endangered by the offender serving the sentence in the community (see Proulx, at paras. 62‑76). [14] Where these prerequisites are met, a court must consider whether a conditional sentence is appropriate, having regard to the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 (Proulx, at paras. 77‑78). . 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.
....
[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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