2022 QCCA 1081, 2022 QCCA 1081

Aullaluk c. R. 2022 QCCA 1081 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-003921-215 (605-01-012858-209) DATE: August 10, 2022 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. GUY GAGNON, J.A. SIMON RUEL, J.A. JUUSI ALASUAK AULLALUK APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] On appeal from a judgment rendered on September 16, 2021 by the Court of Québec, District of Abitibi (the Honourable Christian Leblanc) sentencing the appellant to eight months of imprisonment, followed by two years of supervised probation that includes the obligation to perform 200 hours of community service. [ 2 ] For the reasons of Savard, C.J.Q. and Gagnon, J.A.: THE COURT: [ 3 ] DISMISSES the appeal. [ 4 ] For other reasons, Ruel, J.A., dissenting, concludes that the trial judge failed to verify whether the appellant had waived his right to the presentation of a Gladue report and erred in law in applying the Gladue principles.

He would have allowed the appeal, suspended the passing of the sentence, and imposed a probation order for a duration of two years, with 150 hours of community service and the restorative options contained in the Gladue report dated October 20, 2021 . MANON SAVARD, C.J.Q. GUY GAGNON, J.A. SIMON RUEL, J.A. Mtre Sarah Plamondon For Appellant Mtre Laurence Robert-Lavigne DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For Respondent Date of hearing: April 1, 2022

REASONS OF THE CHIEF JUSTICE AND GAGNON, J.A. [ 5 ] Following the suspension of his parole, the appellant was very upset to be back at the Amos detention facility. During a meeting with his parole officer, with whom he had been working for just over one month, he expressed his dissatisfaction regarding the change in parole officer and, in an aggressive tone, told her, “I don’t like women, that’s why I don’t like you.” Raising his voice, he added, “ when I will be released, don’t come to my village .” After his parole officer asked him whether this was a threat, he repeated the same words.

It is worth noting that the appellant, who is an Inuit, lives in Akulivik, a village in Nunavik, to which his parole officer must travel for purposes of her job. [ 6 ] Due to his remarks, on August 3, 2021, the appellant was convicted of intimidation of a justice system participant ( s. 423.1(1) (b)

(3) Cr.C . ). [1] That same day, the judge heard the parties’ sentencing submissions. Neither the parties, who were both represented by counsel, nor the judge requested a pre-sentence report or a Gladue report, and none was prepared. On September 16, 2021, the judge rendered an oral judgment and sentenced the appellant to eight months of imprisonment, followed by two years of supervised probation that includes the obligation to perform 200 hours of community service.

It is this sentence the appellant appeals, with leave of a judge of this Court. [ 7 ] At the appeal hearing, the appellant was authorized to adduce two new items of evidence, the pre-sentence report and the Gladue report dated, respectively, September 7 and October 20, 2021, which had been prepared for purposes of other cases in which the appellant was awaiting sentencing at the time the judge imposed the sentence under appeal ( s. 683(1) Cr.C . and s. 57 Rules of the Court of Appeal of Quebec in Criminal Matters ). * * * * [ 8 ] The appellant raises four grounds of appeal, but addresses them indistinctly in his argument, in which he further alleges that the judge committed nearly ten errors of law.

It is useful to refocus the dispute, which is centred on two issues: (1) the judge’s analysis of s. 718.2 (

e) Cr.C . as regards Aboriginal offenders and his analysis of the rulings in Gladue [2] and Ipeelee ; [3] and (2) the demonstrably unfit nature of the sentence. [ 9 ] We will address them in that order. * * * * * [ 10 ] The appellant first submits that the judge failed to properly consider his status as an Aboriginal offender in accordance with s. 718.2 (

e) Cr.C . and with the pronouncements set out in Gladue and Ipeelee . [ 11 ] More specifically, he argues that the judge erred in law by considering that the principles developed in those two decisions must be applied in addition to the usual sentencing “principles”. In the appellant’s view, the former principles alone allow the court to achieve the sentencing objectives. The appellant argues that this error led the judge to impose a sentence without accounting for his circumstances, the acts of which he was accused and the impact of background and systemic factors on his conduct.

He further submits that the judge failed to consider the alternative sanctions, other than imprisonment, that would have been reasonable in the circumstances. [ 12 ] We do not share that opinion, which is based on a misreading of the judgment. [ 13 ] In his judgment, which was rendered orally, the judge discussed the appellant’s status as an Aboriginal offender and the effects of that status on sentencing. The following are the relevant passages from his oral judgment: The Accused is of Aboriginal ancestry. The Court must take that element into account.

The Court also presumes that it was taken into account when he was sentenced in the past. The Supreme Court of Canada in

section 718 of the Criminal Code , are asking the Tribunal to take the Accused’s Aboriginal ancestry and history into account in the process of finding the sentence appropriate to the gravity of the crime and the moral culpability of the Accused. That being said, those principles do not automatically translate into a reduction of the quantum of the sentence. The more severe the crime, the more likely the sentencing posed to an Aboriginal and a non-Aboriginal offender will be similar.

It is also judicial knowledge that in Canada, Aboriginal citizens are over-represented in detention compared to their representation in the general population. It is also judicial knowledge that the situation statistically vary greatly from one province to the other. […] Without knowing the specific details of the Accused’s past, it is known to the Court that the prevalence or the presence of social problems in the Great North in Nunavik is very high compared to the rest of the province.

It’s been the case for many decades and this situation is certainly not a stranger to the colonization that was forced on the Inuit people in the past. In parallel, considering distance, isolation, and the relatively small size of the Inuit communities in Nunavik, the level of specialized service offered is very low. This is just a glance of the elements that could explain the high criminality rate found in Nunavik and consequently, the number of Inuit citizens that are sent to jail.

Special efforts must therefore be made by the Court, if not to reverse the tendency, at least to do whatever can be done to reduce it. That being said, the principle set out in Gladue , Ipeelee , and other important judgments, are not meant to replace the fundamental principles of sentencing, which are: denunciation, deterrence, rehabilitation, and also giving back to the community by repairing the

harm done. Those principles still govern sentencing in the case of an Inuit citizen. And I would add that the Inuit people, as a community, do adhere to those principles. The Inuit population is entitled to the same protection of the court, and if it’s necessary to withdraw an Accused from the society for a while in order to protect the population, those principles must be applied.

In other words, the Gladue and Ipeelee principles are an addition to the fundamental principle of sentencing, not a replacement. [4] [ 14 ] The appellant’s argument is based primarily on the last paragraph, more specifically the last sentence, in which the judge states that “[…] the Gladue and Ipeelee principles are an addition to the fundamental principle of sentencing, not a replacement”.

He views this as an error of law. [ 15 ] In our opinion, this last sentence cannot be read in a vacuum, as the appellant asks the Court to do, but rather must be placed in context. [ 16 ] The objectives and principles of sentencing are well known, but must not be conflated. The objectives of sentencing are set out in s. 718 Cr.C . , while ss. 718.01 to 718.04 Cr.C . prioritize them for certain crimes. These objectives are denunciation, deterrence, separation from society where necessary, rehabilitation, reparation, and the promotion of a sense of responsibility.

As for the fundamental principle of sentencing, it is set out in s. 718.1 Cr.C . —the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

To this end, the judge must take into consideration the principles set out in s. 718.2 Cr.C . , namely the aggravating and mitigating circumstances ( s. 718.2 (a)), the parity of sentences ( s. 718.2 (b)), the severity of the global sentence ( s. 718.2 (c)), the obligation to consider less restrictive sanctions than depriving the accused of liberty ( s. 718.2 (d)) and, where applicable, the specific situation of the Aboriginal offender ( s. 718.2 (e)).

It is by applying these principles that the objective of sentencing can be achieved. [ 17 ] In the present matter, the core of the appellant’s argument rests on the principle regarding the circumstances of Aboriginal offenders ( s.718.2 (

e) Cr.C . ): 718.2 A court that imposes a sentence shall also take into consideration the following principles: […] (

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. 718.2 Le tribunal détermine la peine à infliger compte tenu également des principes suivants : […]

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. [ 18 ] The Supreme Court considered the scope of this principle at length in Gladue and Ipeelee , two rulings frequently discussed in the case law. In them, the Supreme Court pointed out, among other things, the remedial nature of s. 718.2 (

e) Cr.C . and set out, in particular, the proper analytical approach for sentencing Aboriginal offenders. It requires judges to apply the following two considerations: (

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. [5] [ 19 ] The first consideration (

A) requires judges to take judicial notice of the historical events that affected Indigenous communities and the numerous lingering consequences of those events. [6] [ 20 ] The second consideration (

B) rests on the fact that Indigenous communities sometimes give a different weight to certain sentencing objectives. [7] Courts, therefore, must [ translation ] “consider the types of sanctions that may be appropriate in light of the Indigenous offender’s heritage and culture”. [8] [ 21 ] In short, in the words of authors Parent and Desrosiers, s. 718.2(

e) Cr.C . is [ translation ] “a specific application of the principle of individualized sentencing, as defined through the lens of Indigenous reality”. [9] [ 22 ] These two components of s. 718.2 (

e) Cr.C . , however, do not, in and of themselves, represent all of the sentencing principles applicable to Indigenous offenders. They define the principle enunciated in s. 718.2 (

e) Cr.C ., but do not otherwise cast aside the other principles set out, notably, in ss. 718 to 718.2 Cr.C . , which continue to apply. Indeed, the Supreme Court expressly pointed this out in Gladue : […] It cannot be forgotten that s. 718.2 (

e) must be considered in the context of that

section read as a whole and in the context of s. 718, s. 718.1, and the overall scheme of

Part XXXIII. It is one of the statutorily mandated considerations that a sentencing judge must take into account. It may not always mean a lower sentence for an aboriginal offender. The sentence imposed will depend upon all the factors which must be taken into account in each individual case. The weight to be given to the various factors will vary in each case. At the same time, it must in every case be recalled that the direction to consider these unique circumstances flows from the staggering injustice currently experienced by aboriginal peoples with the criminal justice system.

The provision reflects the reality that many aboriginal people are alienated from this system which frequently does not reflect their needs or their understanding of an appropriate sentence. [10]

Thus, all of the principles set out in ss. 718 to 718.2 Cr.C . , among others, must be considered as a whole, so that the judge can arrive at “a sentence […] proportionate to the gravity of the offence and the degree of responsibility of the offender / une peine […] proportionnelle à la gravité de l’infraction et au degré de responsabilité du délinquant ” ( s. 718.1 Cr.C . ) and thereby achieve the objective of s. 718 Cr.C . [ 23 ] In the present case, there is no doubt that the judge was fully aware of the appellant’s Indigenous ancestry and sentenced him in light of these particular circumstances.

A number of elements point to this. [ 24 ] First, as the parties indicated at the hearing, the judge regularly sits on the Itinerant Court that covers Northern Quebec, a court that was established following the signing of the James Bay and Northern Quebec Agreement. [11] As its name indicates, the judges who sit on this court travel on a regular basis to Indigenous communities, with a view to providing access to justice. [12] Indeed, the activities of the Cour du Québec within Cree territory and in Nunavik are significant, in that it holds nearly 80 weeks of hearings per judicial year. [13] The same judges are assigned to the Itinerant Court on a regular basis, [14] in addition to having had specific training on Indigenous realities. [15] They have to stay in the main communities and, as a result, become fully aware of the prevailing social context and the reality of the Indigenous environment.

As the parties also indicated at the hearing, it is usually the same lawyers who appear on a regular basis before the Itinerant Court. [ 25 ] In R. v. Lacasse , [16] Wagner, J. (as he then was) underscored the importance that appellate courts must give to the fact that “[…] the sentencing judge is usually familiar with the circumstances in the district where he or she sits and therefore with the particular needs of the community in which the crime was committed [reference omitted]”. [17] The same principle applies here.

The teachings set out in Gladue and Ipeelee must be considered within the context of the Itinerant Court and cannot be applied in a manner detached from that reality. [ 26 ] Moreover, the remarks that led to the appellant’s conviction pertained precisely to the parole officer’s presence in the accused’s village and in his community. They reflected the difficult detention context Indigenous people experience, one in which they are isolated from their community. The appellant’s reality as an Indigenous offender was therefore a core element leading to his conviction.

During the sentencing process, the judge also noted and asked questions about the appellant’s personal situation. [ 27 ] But, ultimately, what is even more conclusive is that, when rendering judgment, the judge stated from the outset that he was required to consider the appellant’s Indigenous ancestry and his community’s history, on which he then elaborated (see the excerpt of his reasons reproduced above at para. [13]). [ 28 ] Despite the fact that no Gladue report was prepared for sentencing purposes, the judge was clearly aware of the nature of the community in which the appellant lives and of the colonialist policies that members of this community endured.

He expressly referred to the background and systemic factors that have resulted in difficult social circumstances at all levels, including among the Inuit communities in Nunavik, which are small and isolated. He pointed out the social problems experienced in these communities, the scarcity of specialized services, the high crime rate and the over-incarceration of Indigenous offenders. He was in a position to decide on alternative sanctions.

This matter will be more fully discussed in the second part of our analysis. [ 29 ] Although the judge stated that he did not have all the details of the appellant’s personal situation, a number of elements regarding the appellant had been brought to the judge’s attention—as the appellant, in fact, acknowledged from the outset before this Court.

Indeed, in his analysis, the judge referred to the reality of the village in which the appellant lives and he knew about the appellant’s criminal record, his impulsiveness and difficulty controlling his emotions, his addiction problem, the fact that he is the father of two young children whose paternal grandmother was caring for them while he was incarcerated, and the fact that he could not have visitors while in detention because of the distance between the detention facility and his village and the exorbitant transportation costs. [ 30 ] In addition to the general systemic and background factors affecting Indigenous individuals and the factors specific to the appellant, the judge considered, as he was required to do, the aggravating factors, the appellant’s prior convictions, as well as the objectives of denunciation and deterrence to be prioritized under s. 718.02 Cr.C .

As a whole, these are the factors the judge weighed, while giving consideration to the framework of analysis for Indigenous offenders. [ 31 ] Consequently, we cannot accept the appellant’s submission that the judge erred in law by failing to apply s. 718.2 (

e) Cr.C . and the pronouncements in Gladue and Ipeelee . [ 32 ] Before concluding on this ground of appeal and in view of the reasons of our colleague Ruel, J.A., we would add that, in the particular circumstances of the case at bar, the preparation of a Gladue report prior to the judge ruling on the sentence was neither material nor essential. The fact that the judge did not ask for such a report—the parties having considered that one was not necessary—is not an error, much less an overriding error. [ 33 ] First, at no point did the appellant complain in this regard to the judge.

At no point did he argue that such a report was required before sentence was rendered and that the judge erred by failing to address this issue. Nor did he argue before the Court that the judge erred by failing to expressly ask him whether he was waiving the right to such a report.

Secondly, the appellant never raised this argument and the Court did not hear the parties on this particular issue. [ 34 ] Moreover, in our opinion, Gladue and Ipeelee do not require the preparation of a Gladue report under all circumstances, although courts must at all times “take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society”. [18] Specific information regarding an Indigenous offender can be provided to the judge at the hearing, by means of evidence, submissions or reports prepared for that purpose . [19] Lastly, the offender may also decide to waive the gathering of that information. [20] But the overriding imperative is that the sentencing judge has the benefit of the necessary information as the Court of Appeal of Saskatchewan stated in R. v.

Gamble : [47] The overriding imperative in all of this is to ensure that the sentencing judge has the benefit of the information necessary to allow him or her to give meaningful effect to s. 718.2(e). The emphasis in this regard must be on substance not on form, on content not packaging. It matters not whether the relevant information comes before the sentencing judge in a document with the label “ Gladue

report” or whether it comes before him or her in a PSR or, for that matter, by way of the testimony of the offender, the submissions of counsel, or some other way or combinations of ways. The question will always be whether, at the end of the day, the judge has the information necessary to allow him or her to give effect to s. 718.2(e).

See Peekkeekoot at para. 118; R v Lawson , 2012 BCCA 508 at paras 26-27 , 294 CCC (3d) 369; Wolfeg at para 52; R v Bonnetrouge , 2017 NWTCA 1 at para 24 . [21] [ 35 ] In the present case, the appellant—who was duly represented by counsel—and the respondent decided to proceed with sentencing submissions without requiring a Gladue report.

Admittedly, where the parties have not adduced the necessary evidence, “it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person […]”. [22] Such a positive obligation on the part of the judge, however, depends on the particular circumstances of each case. In R. v.

Wells , [23] the Supreme Court specified the scope of that obligation: [ 55] Having said that, it was never the Court’s intention, in setting out the appropriate methodology for this assessment, to transform the role of the sentencing judge into that of a board of inquiry. It must be remembered that in the reasons in Gladue , this affirmative obligation to make inquiries beyond the information contained in the pre-sentence report was limited to “appropriate circumstances”, and where such inquiries were “practicable” (para. 84).. The application of s. 718.2(

e) requires a practical inquiry, not an impractical one. As with any other factual finding made by a court of first instance, the sentencing judge’s assessment of whether further inquiries are either appropriate or practicable is accorded deference at the appellate level. [ 36 ] The Ontario Court of Appeal, relying on that decision, recalled the deference with which appellate courts must consider the breadth of the evidence required by trial judges: [24] [140] […] This affirmative obligation to make inquiries is limited to appropriate circumstances and where the inquiries are practicable.

Deference is due to the sentencing judge’s assessment of the necessity for and nature of any further inquiries: R. v. Wells , 2000 SCC 10 , [2000] 1 S.C.R. 207, at para. 55 . [ 37 ] Such deference is owed in the case at bar. While the parties did not asked for the preparation of a Gladue report, they certainly did not waive the judge’s obligation to consider the appellant’s specific situation as an Indigenous offender.

The parties’ submissions, the judge’s observations, the questions he asked and the tenor of his judgment indicate that this issue was central to the debate, as we stated earlier. [ 38 ] Given the judge’s experience from having sat on the Itinerant Court and his knowledge of the background and systemic factors affecting Indigenous communities and their many impacts, and given the evidence and submissions provided by the parties regarding the appellant’s specific situation, the judge could reasonably conclude that he had sufficient knowledge of the relevant facts to rule on the sentence in a manner consistent with s. 718.2 (

e) Cr.C . The parties, as well as the judge, could reasonably conclude that a Gladue report was not necessary for the sound administration of justice and for the fair adjudication of the case. [ 39 ] The appellant is certainly correct in arguing that the fresh evidence filed in the Court record —the Gladue and pre-sentence reports prepared for purposes of another court case—complements, in some respects, the evidence regarding his specific situation and the background factors affecting his community.

They provide details about his difficult social situation on a number of levels, including the loss of several family members while he was detained and the abandonment of his daughters by their mother early on during his detention. The appellant’s addiction problem, to which the judge referred, is elaborated upon. The reports also mention specific information about his parents’ situation. However, while these additional elements provide more details within the factual framework, they do not modify its contours, which the judge correctly considered.

Therefore, in light of these elements, we cannot conclude that the judge ruled in a factual vacuum as regards the appellant’s personal situation and that he should have sought further inquiries before ruling. [ 40 ] Although there is no doubt that a Gladue report would certainly contain additional details regarding the Indigenous offender’s situation or his community, we cannot endorse a position in which such a report would, for all intents and purposes, have to be prepared in every case.

A systematic approach in this area would affect, at least in part, the efficient operation of the Itinerant Court, even as lawyers and judges are working in concert to provide justice in Indigenous territories. It would substantially delay decision-making, without necessarily providing judges with additional facts required for a s. 718.2 (

e) Cr.C . analysis. Judges must retain their power to determine whether the information the parties have provided is sufficient. Each case turns on its facts.

Given that delays within the justice system in Indigenous communities are already too long and given the numerous challenges the Itinerant Court continually faces, we cannot require a level of factual detail which, although it may prove interesting, is not always necessary for the proper determination of the sentence. [ 41 ] Our colleague Ruel, J.A. also discussed the judge’s “duty to verify whether the appellant had waived his right to have a Gladue report or Gladue -type factors presented to the Court” (para. [103], below).

According to him, “[h]is failure to do so deprived the Court of critical information necessary for imposing a just and fair sentence”, thereby resulting in an error in principle. We respectfully disagree. Firstly, the appellant did not raise this particular issue (the judge’s duty to expressly confirm the waiver) and the parties therefore did not argue it. Secondly, as mentioned previously, a number of the “Gladue-type factors” regarding the appellant had been brought to the judge’s attention as he in fact acknowledged from the outset before the Court.

Lastly, the question whether or not the judge had to verify whether the appellant had expressly waived his right to gather the necessary information does not need to be addressed in the case at hand since, in any event, it is not decisive.

The critical information which in our colleague’s view the judge should have had been before him was filed before the Court (as fresh evidence, although related to different infractions) and, as we will see below, the judge wisely foresaw the material portions of the Gladue report filed as part of that fresh evidence, especially with respect to alternative sanctions. [ 42 ] This first facet of the appeal therefore fails. * * * * * [ 43 ] The appellant further argues that the sentence is not fit. [ 44 ] He submits that the judge erred by stating that it was necessary to separate the accused from society for its protection, and that

he was mistaken in identifying the aggravating factors. In his view, the judge gave too much weight to the effects of the offence on the victim and he misapplied the principle of gradation of sentences. Lastly, he claims that the judge was wrong in considering that the community service would provide reparations for the harm done to the community, because the offence was not even committed there.

He therefore asks the Court to intervene and impose a three-month prison sentence, with 18 months of probation. [ 45 ] At trial the Crown sought a 15-month prison sentence, while the accused argued that three months of imprisonment, with 150 hours of community service, was a fit sentence.

As we stated above, the judge imposed an eight-month prison sentence, followed by two years of supervised probation that includes the obligation to perform 200 hours of community service. [ 46 ] In our view, other than asking that the Court substitute its opinion for that of the judge, the appellant has not identified any error that would justify the Court’s intervention. [ 47 ] At the outset, the judge correctly noted the objective gravity of the offence of intimidating a justice system participant.

It is punishable by a maximum of 14 years of imprisonment and the charge can only be brought by indictment. [25] In Anglehart c. R. , the Court had the following to say on this subject: [ translation ] [16] There is no question that intimidating a justice system participant is a serious crime. The proper functioning of this system cannot tolerate even the slightest attack against its authority.

It is therefore natural that the legislature has seen fit to impose a harsh punishment for any gesture or act intended to impede the administration of justice. [26] [ 48 ] The offence also requires a court to “give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence”, in accordance with s. 718.02 Cr.C .

There is therefore no error in the judge’s analysis of the objective seriousness of the offence, as the appellant in fact acknowledges in his argument. [ 49 ] The appellant further submits that the judge erred in analyzing the subjective seriousness of the offence. [27] However, he fails to specify the substance of this error. Be that as it may, in our view, the judge analyzed this element correctly when he focused on the circumstances in which the offence was committed. [28] He stated: The second element to be considered on sentencing is the subjective gravity of the crime committed.

There is an infinite list of ways to commit this infraction. The Court, in order to impose the right sentence, need also to look at the conduct of the Accused in this particular file. The conduct of the Accused was to use threatening words towards his parole officer. As I said before, the words were said with the objective to produce an effect on the victim and her work. […] And that being said, they were … the words, they were not specific death threats and threats to cause bodily harm as we have seen in other files. Of course, the absence of an aggravating factor is not a mitigating factor.

But the Court must consider the conduct itself or the level of violence used to provoke fear. It was mentioned to the Court that those words were expressed in a moment of anger following a revocation of his parole.

That context is not challenged or questioned, but the Court do not know how long before February twenty-fifth (25 th ), the Accused had learned about the suspension of his parole. [29] Nothing further need be added. [ 50 ] The appellant also argues that the judge erred in analyzing the aggravating factors. [ 51 ] First, although the appellant does not question the fact that, in the present case, the effects on the victim are an aggravating factor, as the judge noted, he posits that [ translation ] “[…] this element is not a significant aggravating factor […]” [30] because, in fact, the parole officer would not in any event have had occasion to go to the appellant’s village due, in particular, to the pandemic.

In our view, this is a matter of weighing this factor, and the judge’s analysis in this regard warrants deference, all the more so given that we do not find that he gave this factor undue weight. [ 52 ] Secondly, the appellant disputes the judge’s analysis of his prior convictions and their connection to the facts of the case at bar. [ 53 ] It is established that the appellant was convicted of several offences in 2014, including uttering threats, for which he was sentenced to one year of probation, together with the obligation to perform 100 hours of community service. [31] Subsequently, in 2017, the appellant was convicted of several offences committed in the context of domestic violence, including uttering threats.

He was also convicted of three counts of obstructing justice in connection with that case and for breaches of conditions. He was given a global sentence of 48 months’ imprisonment, which included a concurrent sentence of 12 months’ imprisonment on each of the counts of obstructing justice. Subsequently, while he was in a halfway house, he once again threatened the same victim.

In fact, it is this breach of condition that gave rise to the suspension of his parole and the commission of the offence in question here. [ 54 ] Although the charges for these other offences were brought under different counts, the judge was nevertheless of the view that they were relevant for determining the sentence.

Referring to the sentences imposed on the counts of uttering threats ( s. 264.1 Cr.C . ) and obstructing justice ( s. 139 Cr.C . ), the judge stated the following: […] Those two (2) types of offences, namely threats and obstructing justice, are relevant to the sentence to impose here because they are about threating and they are also about obstructing the Justice System.

So it means that the infraction that the Accused is facing today in this present case, is basically, as far as the conduct of the Accused is concerned, a combination of the two (2) infractions of threat and obstructing justice. [32] The appellant submits that this is an error because these two offences differ from the offence of intimidating a justice system participant. [ 55 ] In our opinion, the judge committed no error of law, much less an overriding error of law. Admittedly, the offence under s. 423.1 Cr.C . differs from the offences under ss. 139 and 264.1 Cr.C .

Indeed, the judge did not say that they are identical, nor did he say that the appellant had been sentenced to four years’ imprisonment for these offences alone. He was, however, of the view that they were sufficiently similar to the offence at issue here to be taken into consideration. He added the following:

[…] The Accused is, therefore, not without priors, and his priors are related in a certain way and of certain gravity that is reflected in the four years’ of jail he was serving. [33] Here, too, we can find no error.

Although the offences are not identical and were committed in differing contexts, the judge was entitled to consider them as similar offences [ translation ] “in that they are offences against the person intended to cause a person to fear for their safety or to impede the administration of justice”. [34] [ 56 ] Lastly, the appellant contends that the judge also erred when assessing his moral blameworthiness because he allegedly failed to consider the unique background and systemic factors of Indigenous offenders and the appellant’s personal history.

In so doing, he erred in assessing the alternative sanctions. [ 57 ] In R. c. Brisson , [35] the Court described the concept of moral blameworthiness as follows: [ translation ] [19] That being said, the offender’s degree of moral blameworthiness is the other facet of the principle of proportionality, which counterbalances the mere consideration of the objective gravity of the offence. Thomas W. Ferris describes the notion as follows: “Degree of responsibility’’ covers whether a defendant played a major or a minor

part in the offence.

It also covers moral blameworthiness, for instance, what results the offender foresaw, and whether the harm that actually resulted was intend ed. [20] Thus, the offender’s role in the commission of the offence, his degree of participation, his conduct and attitude, the intentional risks he took and their consequences, his underlying motivation and his willingness to carry out the criminal purpose are all elements to be considered in determining the offender’s level of moral blameworthiness: […] Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. […] [Emphasis in the original; references omitted] [ 58 ] It is true that the judge did not elaborate on his analysis of the appellant’s moral blameworthiness.

He did, however, address all the facts pertinent to this issue and, in one of the recitals preceding his conclusion, he stated the following: Considering the subjective gravity of the crime and the moral culpability of the Accused, which include the context, what he did exactly, the word he used, and the intended consequences, the fact that he was going well before that event – excluding, of course, the alleged threat of the victim in the previous file; [36] We note that this passage follows immediately after the judge’s analysis of the unique systemic and background factors which may have played a

part in bringing the appellant before the courts, a passage we cited above in paragraph [13]. [ 59 ] Given that, in reviewing oral judgments, appellate courts must be flexible and adopt a functional and contextual approach, [37] we cannot conclude that the judge failed to consider the Indigenous aspect of the case when addressing the appellant’s moral blameworthiness, even if he did not specifically refer to it in his recitals.

A judge’s reasons must be read as a whole and with the presumption that the judge knows the law. [38] [ 60 ] The appellant, however, asks the Court to review the judge’s analysis in light of the fresh evidence.

In particular, he refers [39] to the Gladue report dated October 20, 2021, which was prepared for purposes of various other cases in which the appellant was awaiting sentencing at the time the judge imposed the sentence under appeal (see para. [7], above). [ 61 ] In these circumstances, it is indeed appropriate for the Court to consider whether the sentence is fit, in light of the evidence as a whole, including the fresh evidence.

In reasons written by Doyon, J.A., the Court summarized its task in such circumstances as follows: [ translation ] [68] Therefore, an appellate court must repeat the exercise and consider whether the sentence is “demonstrably unfit” in light of the evidence as a whole, including the fresh evidence, whose probative value must be sufficient to have been admitted as such.

Of course, it goes without saying that the deference due to the trial judge’s findings of fact is no less relevant in this second analysis . [69] The appellate court must therefore keep the trial judgment in mind and must not solely limit itself to the sentence it considers appropriate .

Indeed, before it may intervene, the appellate court must find that the sentence imposed at trial was demonstrably unfit in light of the fresh evidence . [40] [Emphasis added] [ 62 ] As we noted earlier (para. [39], above), the Gladue report does provide particulars regarding the appellant’s personal situation, which the judge did not have.

The author of the report also presented the following alternative sanctions: [T]he following rehabilitative, restorative and healing options are presented to the Court to be examined as possible alternatives, if the Court is in the opinion that they represent reasonable options under the circumstances • That [the appellant] attends Isuarsivik recovery and treatment center;

• That [the appellant] gets actively involved in a follow-up and after care with Social services after Isuarsivik; • That [the appellant] attends and participates in the Saqijuq traditional activities program; • That [the appellant] hunts for elders of his community; • That [the appellant] finds and maintains employment to contribute to household expenses and support his family; [41] [ 63 ] We must not lose sight of the fact that these suggestions were made in connection with the offences of assault with a weapon, uttering threats, and assault, which, according to the parties, resulted in a 12-month term of imprisonment following the joint submission of the parties.

The context here differs. [ 64 ] Be that as it may, however relevant these details and suggestions might have been to the judge’s analysis, their consideration does not result in the sentence imposed in the present matter being unfit. [ 65 ] The judge was of the opinion that a prison sentence was warranted here. Indeed, the parties agreed on that point at trial and still do so on appeal.

The appellant therefore does not question the fact that, in light of his profile, the preparation of a Gladue report, had one been requested, could not have spared him a prison sentence. [ 66 ] The appellant had suggested three months and the judge decided on eight months. The prison term imposed is severe, but falls within the accepted sentencing range for these offences, which goes up to, but generally does not exceed, 36 months of incarceration. [42] It also takes into account the alternative sanctions, other than imprisonment, the judge considered.

We quote once again what the judge stated after having set out the unique systemic and background factors of the appellant’s Indigenous status: […] This is just a glance of the elements that could explain the high criminality rate found in Nunavik and consequently, the number of Inuit citizens that are sent to jail.

Special efforts must therefore be made by the Court, if not to reverse the tendency, at least to do whatever can be done to reduce it. [43] Applying these principles to the facts of the case at bar, he added: The Court also thinks that in a certain way, the length of the consecutive detention that will be imposed to the Accused, could be adjusted to the fact that the probation that will follow will include a significant amount of community service, in addition to conditions about … aiming to address his anger-management problem. [44] [ 67 ] Thus, in certain respects, the judge’s approach coincides with the alternative sanctions proposed in the October 2021 Gladue report, in that both provide for community service to benefit the community and for the use of social services to manage the appellant’s anger, [45] which partially explains the appellant’s various offences.

Moreover, we would point out that, at trial, the appellant himself had suggested a sentence involving community service. In this context, it is difficult to argue that the judge erred in adopting such an approach, especially since it fits, in part, within the alternative sanctions proposed in the subsequent Gladue report. It is also consistent with the conclusion in the pre-sentence report dated September 7, 2021, which was also filed as fresh evidence: Finally, considering the persistence and rapidity of violent acting out since Mr.

Aullaluk’s entry into the criminal system, a current low capacity for introspection as well as his low level of responsibility and awareness, we consider the risk of recidivism to be high. This risk will remain present as long as Mr. Aullaluk has not carried out in-depth work on his various criminogenic factors. [46] [ 68 ] We would add that the rulings in Parent c. R. [47] and R. c.

Lachance , [48] to which the appellant refers, are of no help to him because the facts of those cases are distinguishable from those in the matter at hand. [ 69 ] Finally, we would also add that we respectfully disagree with our colleague Ruel, J.A. who suggests suspending the passing of the sentence in the case at hand. Even the appellant, in first instance and before the Court, did not go so far as to propose this measure, recognizing at the very least that a three-month prison sentence was warranted here. [ 70 ] In

summary, the appellant has not convinced us—even with the benefit of the Gladue and pre-sentence reports filed as fresh evidence—that the sentence imposed, although severe, “is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”, [49] which is the fundamental principle of proportionality. [ 71 ] Consequently, even if the judge had erred by failing to ask for a Gladue report—which we do not in any way find to be the case—the fact is that such an error would not have been decisive because the report would not have led to a different conclusion, as the analysis of the fresh evidence demonstrates. * * * * * [ 72 ] For these reasons, we would dismiss the appeal.

MANON SAVARD, C.J.Q.

GUY GAGNON, J.A. REASONS OF RUEL, J.A. [ 73 ] The serious over-representation of Indigenous offenders in the Canadian criminal justice system is an inescapable, tragic, and well documented fact. [50] This has been qualified as a drastic, sad, and pressing social problem. [51] This is an issue that Parliament has sought to address for many years, with limited success. [ 74 ] In 1996, Parliament enacted

section 718.2 (

e) of the Criminal Code , which directs that, in the sentencing process, all available sanctions that are reasonable in the circumstances, other than imprisonment, should be considered when sentencing Indigenous offenders. This is “a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing”. [52] [ 75 ] Therefore, when sentencing an Indigenous offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the 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 Indigenous heritage or connection. [53] [ 76 ] In this process, sentencing judges are required to pay particular attention to the historical, community and personal circumstances of an Indigenous offender to achieve a truly fit and proper sentence. [54] [ 77 ] In doing so, sentencing judges should take judicial notice of the systemic and background factors , including “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration” for Indigenous people. [55] [ 78 ] Although public reports of Royal Commissions, background legislative information and precedents will assist judges in understanding the systemic and background factors affecting Indigenous people, in many cases this will not be sufficient to understand how these factors have detrimentally impacted a particular Indigenous offender. [ 79 ] Following the landmark Supreme Court ruling in R. v.

Gladue , [56] the practice has developed in all Canadian jurisdictions for the parties to submit to the sentencing court a “Gladue report”, which is a form of pre-sentence report prepared by an expert knowledgeable about the history and context of the community and tailored to the specific circumstances of the Indigenous offender. [57] [ 80 ] A Gladue report is a fundamental tool to assist judges in the difficult task of sentencing Indigenous offenders.

In fact, “[b]ringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties”. [58] [ 81 ] The consideration of such systemic and background factors about an Indigenous offender and his or her community will “bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness”. [59] The constrained personal and historical circumstances of an Indigenous offender may diminish his or her moral culpability, and failing to properly take them into account “would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. [60] [ 82 ] Gladue reports are also essential to allow the judge to adequately tailor the sentence and its effectiveness to the needs, experiences, perspectives, and traditions of the Indigenous offender and his or her community, without scarifying the objectives of denunciation, deterrence, and protection of the victim. [ 83 ] As indicated, when sentencing an Indigenous offender, the judge must take into consideration all available sanctions, other than imprisonment, that are reasonable in the circumstances.

In fact, “different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community”. [61] Consequently, both the parties and the sentencing judge must make a meaningful effort and seriously analyze reasonable alternative sanctions when seeking a fit sentence for an Indigenous offender. [62] [ 84 ] A Gladue report is therefore an essential instrument for sentencing, particularly when an Indigenous offender is being sentenced for a serious offence and faces the prospect of a significant period of incarceration.

The responsibility to seek the preparation of Gladue reports belongs primarily to the parties, [63] but the sentencing judge remains the guardian responsible for preserving the rights of the Indigenous offender in all cases.

[ 85 ] Indigenous offenders have the fundamental right to have the systemic, community, family and personal circumstances brought before the court on sentencing, “unless the offender expressly waives his right to have it considered”. [64] Such a waiver should be “clear and unequivocal [and] made with full knowledge of the right that is surrendered and of the effect of waiver of that right”. [65] [ 86 ] With these legal considerations in mind, I have read the reasons of my colleagues.

With great respect, I must express my disagreement. [ 87 ] A brief overview of the facts is apposite. [ 88 ] The appellant was found guilty of intimidating a justice system participant, his conditional release officer. [ 89 ] The appellant is an Inuk from Akulivik, an Inuit community of Nunavik on Hudson Bay. In January 2017, the appellant was sentenced to a penitentiary sentence of 48 months for a series of offences, which included threats to his former spouse, recklessly discharging a firearm, impaired driving, and obstructing justice.

After serving two thirds of his sentence, he returned to his community, but was reincarcerated for failing to respect a probation condition. He eventually transitioned to the Amos Prison halfway house. [ 90 ] A new conditional release officer – the complainant – was assigned to his case. She interacted with him in anticipation of his release and worked closely with him on his social reinsertion in Nunavik. The officer testified that the appellant, anticipating his release, was courteous, joyful, and happy throughout, and that the therapeutic discussions went very well.

She also testified that the appellant was on a healing path. He would confide in the officer and would agree to talk about his vulnerabilities. [ 91 ] However, the appellant’s release was suspended because of threatening statements made to the victim through a third party in the case for which he was incarcerated in the first place. [ 92 ] On February 25, 2020, the conditional release officer met the appellant at the Amos Prison. They were in the visiting room, and the appellant was physically separated from the officer by a window.

Having just learned that his release was suspended, the appellant became agitated and wondered why his conditional release officer had been changed. The appellant was very upset, his face was red, and his eyes were full of tears. [ 93 ] He then said to the conditional release officer that he did not like women and that he hated her. She tried to explain to the appellant the reasons why his release had been suspended. This increased his level of frustration and he replied that, when he would be released, “never come to my village”.

The officer asked the appellant if this was a threat, and he repeated the same words. Although he was talking loudly, the appellant remained seated throughout and did not point fingers or make other gestures at the officer. [ 94 ] The conditional release officer testified that the appellant’s words made her afraid to go to his northern village. She subsequently obtained permission not to attend at the Akulivik community for her work. [ 95 ] On sentencing, the judge took into consideration that the offence was committed while the appellant was detained.

He also considered previous convictions for threats and obstructing justice as aggravating factors. [ 96 ] The judge took judicial notice that the appellant was of Indigenous ancestry and that Indigenous people were overrepresented in Canadian detention institutions. However, he noted that no Gladue report had been requested.

He also stated that, although he did not know the specific details of the appellant’s past , “special efforts” should be made to reverse or reduce the tendency of high rates of incarceration. [ 97 ] This being said, the judge stated that the Gladue and Ipeelee principles “are not meant to replace the fundamental principles of sentencing”.

In his view, “the Gladue and Ipeelee principles are in addition to the fundamental principles of sentencing, not a replacement”. [ 98 ] Ultimately, the judge insisted on the subjective and objective gravity of the offence, the moral culpability of the appellant, and the principles of denunciation, deterrence, and protection of society.

He imposed a sentence of 8 months of incarceration, followed by a supervised probation of 2 years, which includes 200 hours of community service under which the appellant will have a chance to “repay society”, to “give back”. [ 99 ] I believe that the sentencing judge made two errors in principle that had an impact on the sentence. [66] Failure to verify whether the appellant had waived his right to the presentation of Gladue-type factors or a Gladue report [ 100 ] The judge expressly acknowledged that he did not know the details of the appellant’s past. No Gladue report was tendered.

Indigenous offenders have the fundamental right to have the historical, systemic, community and personal circumstances brought before the court on sentencing. At the hearing before this Court, counsel for both parties admitted that the appellant never waived his right to have Gladue-type factors or a Gladue report presented before the Court. [ 101 ] The appellant was found guilty of the serious offence of intimidating a justice system participant, which is punishable by a term of imprisonment of up to 14 years.

He had prior convictions and was liable to a serious sentence of imprisonment, which ought to have justified the preparation of a Gladue report in his case. [ 102 ] In my view, as a guardian of the rights of Indigenous offenders, the judge had a duty to verify whether the appellant had waived his right to have a Gladue report or Gladue-type factors presented to the Court. His failure to do so deprived the Court of critical information necessary for imposing a just and fair sentence.

In my view, this constitutes an error in principle. [ 103 ] I respectfully disagree that the failure to have a Gladue report in this case was not essential and determinative. [ 104 ] Before this Court, the appellant was granted permission to file a Gladue report that had been prepared in a subsequent case. The

Gladue report filed before this Court does much more than provide specifics on the personal situation of the appellant. It includes a wealth of information necessary for assessing the historical and community context in which the appellant lives, the impact of colonialism and the public policies of assimilation, which included residential schools, as well as their devastating consequences on the appellant personally and on many of his peers. I note the following: • The community of Akulivik suffered greatly from the policies of sedentarization of the Inuit, which profoundly modified their traditional lifestyle.

In the 1950’s, the Akulivik community was struck by tuberculosis. Half of the population had to be hospitalized in the south, and the remaining people were relocated to Puvirnituq.

Eventually, some members returned and repopulated the community. • The Inuit, among them the members of the Akulivik community, suffered extensive and long-lasting trauma from these public policies of assimilation and sedentarization, including intergenerational and widespread problems of substance abuse, criminality, domestic violence, and a high rate of suicides. • Both the appellant’s mother and biological father are survivors of the residential school system. The appellant’s biological mother sniffed gasoline when she was pregnant.

The appellant was bullied in school and dropped-out after secondary I. • The appellant started experimenting marijuana at 10 years of age. He sniffed camping fuel, gasoline, and propane from the age of 14 to 17 on a regular basis. He eventually quit after an explosion occurred while he was sniffing propane. He then suffered a third degree burn and had to be hospitalized in Montreal.

He subsequently started to consume alcohol excessively, including 94% proof alcohol. • He suffered from the loss or suicide of many friends, family members and supporting figures in the community. • The appellant has two minor daughters and takes good care of them when he is at home. • He has a deep connection to the land. He was taught the Inuit way of life by his father, his grandfather and one of his uncles. He learned fishing, as well as goose, seal, caribou, and beluga hunting. • The appellant has positively been involved in the life of his community.

He is a member of the Canadian Rangers and is a leader for the Junior Rangers. He has been a member of the board of directors of his local school. [ 105 ] Moreover, the author of the Gladue report wrote that the appellant was deeply affected by the policies of assimilation, which deprived his community of its identity and lifestyle. He committed several offences while highly intoxicated.

The appellant expressed the desire to stop drinking and learn to control his anger. [ 106 ] The author of the Gladue report made several recommendations, which are alternative options to incarceration: that the appellant attend the Isuarsivik recovery and treatment centre and, thereafter, get actively involved in a follow-up and after care with social services; that he participates in the Saqijuq traditional activities program; and that he be allowed to continue hunting and assist the elders of the community. [ 107 ] Very little of this information was before the sentencing judge. [ 108 ] Although the judge took judicial notice of some publicly known systemic and background factors affecting Inuit communities, he had only very limited particularized background information on the historical challenges of the community of Akulivik, and on the personal circumstances of the appellant himself, as he himself recognized. [ 109 ] Again, by failing to verify whether the appellant had waived his right to have a Gladue report or Gladue-type factors presented to the Court, the judge committed an error in principle.

In doing so, the judge deprived himself of the opportunity to have a Gladue report and therefore failed to consider the historical, community and personal factors in the appellant’s case to assess his moral blameworthiness. [67] The proper consideration of the Gladue principles [ 110 ] In the judge’s view, the Gladue principles are “in addition to the fundamental principles of sentencing, not a replacement” and the Gladue principles do not replace the principles of denunciation and deterrence. [ 111 ] In my view, this is a mischaracterization of the proper use of the Gladue principles in sentencing. [ 112 ] It is “the fundamental duty of a sentencing judge” to consider and pay particular attention to the historical, community and personal circumstances of an Indigenous offender to achieve a truly fit and proper sentence. [68] This duty permeates all aspects of the sentencing process. [69] It is not a matter of adding or removing layers when assessing the moral blameworthiness of an Indigenous offender. [ 113 ] As the Supreme Court wrote in R. v.

Gladue , “[t]he sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person”. [70] Such an exercise is inherently “holistic and designed to achieve a fit sentence in the circumstances” of a particular Indigenous offender. [71] [ 114 ] By stratifying the sentencing objectives and principles and suggesting that the Gladue principles do not replace the principles of denunciation and deterrence, the judge failed to apply the contextual framework applicable to the sentencing of Indigenous offenders.

The judge did not adequately address and respond to the following questions, as identified in R. v. Gladue in the process of sentencing an Indigenous offender: […] What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender

and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing?

What sentencing options present themselves in these circumstances? [72] The fit sentence to be imposed on the appellant [ 115 ] If a sentencing judge makes errors in principle having an impact on the sentence, this Court must perform its own analysis to determine a fit sentence.

It then applies the principles of sentencing afresh to the facts, without deference to the existing sentence. [73] [ 116 ] Without diminishing the objective gravity of the offence and the consequences of the appellant’s words on the complainant, subjectively, the gravity of his utterances directed at his conditional release officer sit at the lower end on the scale. [ 117 ] After years of incarceration, the appellant was to be released shortly. He had developed a very good working relationship with his new conditional release officer and was on a therapeutic path.

He was joyful and eager to move on. [ 118 ] Then his release was suspended. [ 119 ] When the complainant met the appellant shortly thereafter, he was very upset and teary. Although his utterances could be interpreted as a threat, the language was unspecific. Clearly, the appellant spoke on the spur of the moment, emotionally and out of frustration. He remained seated and made no threatening gesture towards the officer. The appellant’s first language is Inuktitut.

He indicated to the Gladue report author that his English was rather poor, and that the situation was the result of a misunderstanding. [ 120 ] Due to his incarceration, the appellant had been severed for a significant period from his family, his daughters, and his traditional way of life. If the threats he made to the complainant cannot be excused, they may be explained, considering the context. [ 121 ] The judge did not have the Gladue considerations outlined in the report filed in a subsequent case.

He therefore did not give appropriate weight to the direct impact of the sendentarization and assimilation policies on the appellant and on his community. Clearly, the appellant’s conduct is in large part the consequence of years of destructive governmental policies.

The judge did not have the rehabilitative, restorative and healing options contained in the Gladue report, which include addiction treatment and follow-up, and a process for reconnecting the appellant to his traditional way of life. [ 122 ] In my view, analyzing the matter holistically, considering that, subjectively, the offence sits at the lower end of the spectrum, that the historical, community and personal circumstances outlined in the Gladue report diminish the appellant’s moral blameworthiness, and that, despite the presence of risk factors, he was on the path to rehabilitation, I would focus on restorative sentencing options.

In my view, incarcerating the appellant in the circumstances would only exacerbate the problem of overrepresentation of Aboriginal offenders in Canadian penitentiary institutions. [ 123 ] The parties did not have the Gladue report in the first instance.

Considering the new evidence filed before this Court, I would therefore grant the appeal, suspend the passing of the sentence [74] and impose a probation order for a duration of 2 years, including 150 hours of community service, and including the rehabilitative and restorative options contained in the Gladue report, to which I understand the appellant consents. [75] SIMON RUEL, J.A.