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| John Hill |
K.A. arrived in Canada in April 2018 with his wife and son from Côte d'Ivoire. The mother of his son and another daughter remained in West Africa. His son had been placed in foster care upon K.A.’s incarceration. K.A. sought to appeal.
It was evident to all concerned that the sole reason to appeal was to have the sentence lowered. Although a sentence under two years was reasonable for the harm he inflicted, a sentence exceeding six months would disqualify him from appealing to the Immigration Appeal Division from a finding he was inadmissible in Canada due to his “serious criminality.”
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In the course of the reasons for the decision, the court accepted that there are long-term traumatic effects on children subjected to significant physical abuse inflicted upon them by their caregivers (R. v. Friesen 2020 SCC 9). The court was willing to accept that K.A. had also been subjected to physical abuse as a child without evidence that such treatment may be considered the norm in the culture from which he came. The court also cited Friesen as an example of the vicious cycle of child abuse over generations. Although it was not appropriate to take judicial notice of the specific impact on an individual, the reality of trauma, including intergenerational trauma, is now more widely understood, especially as it pertains to Indigenous people (R. v. Ipeelee 2012 SCC 13).
On appeal, the defence counsel had steered away from the argument at trial that because the infliction of corporal punishment was commonplace in K.A.’s country of birth, he was unaware the same standard was not acceptable in Canada. Instead, the defence emphasized that the appellant had taken steps toward rehabilitation and employment; he was genuinely remorseful for his conduct.
Because of the potential for removal from Canada, the defence argued that the impact of the sentence would result in a more significant hardship to K.A. than it would have on a Canadian-born offender in like circumstances. Nonetheless, the Court of Appeal concluded that unless it can be shown that the sentence is “demonstrably unfit,” the standard of review is to be deferential to the trial judge’s decision (R. v. Suter 2018 SCC 34; R. v. M(L) 2008 SCC 31; R. v. Nasogaluuk 2010 SCC 6; and R. v. Lacasse 2015 SCC 64).
However, despite deference, the trial judge’s reasons and the record must demonstrate why the sentence is proportionate to the offender’s moral blameworthiness and the offence’s gravity.
In the case of K.A., he has not done anything more in his quest for rehabilitation than any rational man would do in the circumstances. There was seemingly no basis to interfere with the trial judge’s decision.
However, the court did have to deal with the major overhaul of the Criminal Code sentencing provisions of 1997 that resulted in the decision of R. v. Gladue [1999] 1 S.C.R. 688. On the one hand, the court accepted that s. 718.2 9 (e) of the Code that refers to Indigenous people has application to a broader community. It can serve more than Indigenous offenders.
Yet, while the court accepted that leniency could be made when social realities such as harm done to Indigenous youth at residential schools could trigger Gladue principles, a “vague reference” to how parenting standards were acceptable in other cultures did not generate a similar concern. In the end, the court found that no leniency was appropriate on three grounds:
1. The protective purpose of the criminal law towards children retains its force.
2. A mature and educated man such as K.A. could not help but have known that his conduct towards his son was not acceptable in Canada, and
3. K.A.’s personal mistreatment in his homeland should have educated him that childhood mistreatment is unacceptable.
2. A mature and educated man such as K.A. could not help but have known that his conduct towards his son was not acceptable in Canada, and
3. K.A.’s personal mistreatment in his homeland should have educated him that childhood mistreatment is unacceptable.
The judgment is somewhat unsettling. There is no acknowledgment in the judgment of the severe consequences the decision will have: Unlike a similarly situated Canadian, he will be deported; he will lose his child and perhaps never be able to return to Canada to visit him.
He will be exiled. He will be punished more harshly than would be a Canadian counterpart. We also read a judgment that will be cited in future as putting the brakes on the expansion of Gladue principles outside Indigenous cultures.
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.
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