Alberta Court of Appeal judges divided on Gladue application

By John L. Hill

Law360 Canada (December 6, 2023, 9:49 AM EST) --
John L. Hill
John L. Hill
The Criminal Code of Canada sets out offences applicable across Canada. That is unlike the United States, where each state establishes its own list of crimes and penalties. Further, the Supreme Court of Canada supposedly interprets laws binding on all lower courts.

Whether these statements hold true can be questioned in considering the Alberta Court of Appeal decision in R. v. No Chief 2023 ABCA 345. Jonathan Wade No Chief is an Indigenous man who, while drunk, used a key to a duplex in which his former partner, Ms. Bird, lived, entered the unit in violation of a restraining order and damaged a television that he subsequently paid to repair.

On Bird’s complaint, police were called. No Chief was arrested, charged and later convicted of breaking and entering, committing mischief and breach of recognizance.

While agreeing that No Chief was a co-tenant on the lease to the building, the court order negated his right to be in the unit. The three-judge panel unanimously agreed that No Chief’s appeal should be dismissed. That would seemingly end the matter. However, one judge, Justice Peter Martin, continued beyond the 21 paragraphs that set out the facts and disposition, which the panel agreed on, and added seven additional paragraphs that Justices Bernette Ho and Anne Kirker refused to accept.

But Martin went too far in later parts of the judgment according to his two co-panellists' refusal to adopt his comments. Justice Martin was critical of the police for overcharging No Chief. The break-and-enter of a dwelling house carries a maximum penalty of life imprisonment and weighs heavily against No Chief’s release on bail if charged in the future. More significantly, he expressed concern that adequate consideration had not been given to the “Gladue considerations in Mr. No Chief’s background.”

The dissenters asserted that they were not accepting that the Appeal Court should be seen as limiting police discretion in laying a charge. Furthermore, they refused to adopt two paragraphs of Justice Martin’s reasons:

[27] Parliament and the Supreme Court of Canada have expressed concern about the over-representation of Indigenous people in our justice and prison system and have stressed the obligation to address that issue by considering alternatives to imprisonment. See section 718(2)(e) of the Criminal Code, R v Gladue, [1999] 1 SCR 688, and R v Ipeelee, [2012] 1 SCR 433.

[28] The Crown shares that responsibility and an important step in achieving that objective is to carefully consider the appropriate charge particularly in non-violent offences when Indigenous offenders are involved.

Sometimes, silence speaks louder than words. The refusal of the two dissenters in No Chief can be taken as implicit concurrence with the attitude of the Saskatchewan courts, where references to Gladue principles are downplayed. A Saskatchewan case where little or no consideration of the Gladue principles is presently facing appeal (R. v. LaRose 2023 SKKB 24).

Contrast this with the decision of Justice André Chamberlain in R. v. Pothier 2023 ONCJ 512. In that case, the court understood that section 718.2(e) of the Criminal Code requires explicitly that sentencing judges must consider sanctions other than imprisonment for all offenders and pay attention to the unique circumstances of Indigenous offenders.

Parliament has expressly accepted that it is legitimate to consider the “why” the crime took place as well as the “what” was done that constituted the wrong. A just sentence must be proportioned to the circumstances of each individual offender instead of the one-size-fits-all approach when one gives greater significance to the sentencing principles of denunciation and deterrence.

If we ever hope to decrease the overrepresentation of minorities in our prison populations, our courts must pay more than lip service to the sentencing provisions of s. 718.2 (e) as established by Parliament and the Gladue and Ipeelee principles set out by the Supreme Court.

Canada can never hope to be a united country if our laws are not applied equally across the nation.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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