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| John L. Hill |
Billy, a Squamish Nation member with 11 prior robbery convictions, pleaded guilty in the Indigenous Sentencing Court to multiple robberies, imitation-firearm offences, possession of an imitation handgun and breaching a release order. The offences occurred in three clusters between 2019 and 2022, many of which occurred while he was subject to probation or release conditions. The sentencing judge in the Provincial Court of British Columbia imposed a nine-year cumulative sentence after applying the totality principle (R. v. Billy, 2024 BCPC 208).
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Here, the court found that the new evidence failed on due diligence grounds and could not change the sentence because the sentencing judge had determined Billy’s rehabilitative prospects were low due to entrenched criminogenic factors. The court emphasized that the overall test is the “interests of justice” (Barendregt v. Grebliunas, 2022 SCC 22). Therefore, the application for fresh evidence was dismissed.
The court highlighted the deferential standard applicable to sentence appeals. Sentencing is tailored and discretionary, requiring a balancing of many factors (R. v. Parranto, 2021 SCC 46; R. v. Lacasse, 2015 SCC 64). Two grounds allow for intervention (Sheppard; R. v. Agin, 2018 BCCA 133): an error in principle that affects the sentence or a sentence that is clearly unfit.
Counsel for Billy did not allege unfitness; therefore, the only question was whether an error in principle significantly impacted the sentence.
The appellant argued that the judge erred by describing Gladue factors as having only “indirect or incidental” relevance to moral blameworthiness.
The court rejected this, holding that reasons must be read holistically and in context, not parsed line-by-line (Sheppard; R. v. G.F., 2021 SCC 20; R. v. Tom, 2024 BCCA 239). The judge conducted a thorough Gladue assessment (following R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. F.H.L., 2018 ONCA 83), acknowledging the profound impacts of colonialism. High moral blameworthiness may still be found in appropriate cases despite significant Gladue factors (R. v. Davidson, 2025 BCCA 111; R. v. C.K., 2023 BCCA 468). The sentencing judge found the offences were planned, deliberate, predatory and motivated by greed and power, not trauma-induced impulsivity. This justified a limited impact of Gladue on moral culpability.
The appellant argued that the judge improperly relied on facts related to charges he did not plead guilty to, contrary to Criminal Code s. 725(1)(b.1). The Crown admitted an error regarding Counts 7–9 but argued it was harmless. The court found there was no impact on the sentence, which is necessary for appellate intervention (Sheppard; Agin). The judge explicitly stated she did not give weight to the disputed, outstanding charges and did not include them as aggravating factors. Any error was harmless and not grounds for reversal.
As a result, leave to appeal the sentence was granted. The application for fresh evidence was dismissed and the appeal of the sentence was also dismissed, affirming the nine-year cumulative sentence.
There has been criticism that requiring courts to consider Gladue principles provides an Indigenous offender with more lenient treatment by the court. However, examining the Appeal Court’s decision in Billy shows that it aligned with other appellate courts. The court confirmed that Gladue principles were properly considered during sentencing.
Appellate courts consistently uphold sentences when the trial judge: (a) identified the offender’s Indigenous background; (b) examined systemic and background factors; (c) considered alternatives to incarceration; and (d) explained why those factors did or did not justify a different sentence.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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