R v Gladue, 2023 ABKB 671

Court of King’s Bench of Alberta Citation: R v Gladue, 2023 ABKB 671 Date: 20231128 Docket: 210859385Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Trent Austin Gladue Offender _______________________________________________________ Sentencing Decision of the Honourable Mr. Justice S. N. Mandziuk _______________________________________________________ I. INTRODUCTION [ 1 ] Trent Austin Gladue has entered guilty pleas to two charges arising from an incident that occurred in Edmonton on or about May 15, 2021: (

a) Use of a restricted or prohibited firearm – a shotgun – while robbing an individual (Tyrell Stanley) of his SUV, contrary to s 344(1)(

a) of the Criminal Code of Canada , R.S.C., 1985, c C-46 ); and (

b) Failure to keep the peace and be of good behaviour, contrary to s 733.1(1) of the Criminal Code .

[ 2 ] The Court is called upon to sentence Mr. Gladue. II. FACTS [ 3 ] The Crown and the Defence have entered into an Agreed Statement of Facts pursuant to s 655 of the Criminal Code . The facts surrounding the two offences are summarized as follows: (

a) Tyrell Stanley, the victim, had arranged to meet a woman named Shaelin John in the parking lot of a hotel in west Edmonton on the morning of May 15, 2021. They communicated with each other through social media. (

b) Ms. John was, at the time, the girlfriend of Taylor Omeasoo. Mr. Omeasoo learned of the planned meeting between Mr. Stanley and Ms. John. He was jealous. (

c) Mr. Omeasoo’s mother had arranged with Mr. Omeasoo to provide transportation. She drove with two other individuals – Charlton Gladue and Dolphus Crane - and picked up Mr. Omeasoo and Ms. John. Then, they picked up Mr. Gladue (the offender), who did not particularly want to go but went along for the ride. (

d) When the group got to the hotel, Ms. John joined Mr. Stanley in his car, sitting in the passenger seat. (

e) A few minutes passed. Mr. Omeasoo and Mr. Charlton Gladue then approached Mr. Stanley’s SUV. Mr. Charlton Gladue got into the vehicle and sat in the rear driver’s side seat, and Mr. Omeasoo pointed his 12 gauge sawed-off shotgun – a prohibited weapon – at Mr. Stanley through the open window. Mr. Charlton Gladue pointed a sawed-off 410 shotgun at Mr. Stanley from the back seat. (

f) Then, Mr. Gladue approached the vehicle, replacing Ms. John in the front passenger seat and closing the door. Mr. Omeasoo demanded Mr. Stanley’s cell phone and vehicle keys, and when Mr. Stanley refused, Mr. Gladue punched Mr. Stanley in the head with his fist several times. (

g) A further demand was made for the keys and the phone by Mr. Omeasoo, which was again refused. (

h) Mr. Omeasoo then fired his shotgun into the vehicle. The bullet “grazed Mr. Stanley’s head” and went into Mr. Gladue’s left upper thigh. (

i) Mr. Charlton Gladue ran away back to the vehicle being driven by Ms. Omeasoo. Mr. Gladue, bleeding from the wound, “hobbled” back to the same vehicle. (

j) Mr. Omeasoo fired his gun again, hitting the pavement. He also ran back to the vehicle in which the group had originally arrived. (

k) Ms. Omeasoo drove away with everyone, and after dropping off Mr. Charlton Gladue and Mr. Omeasoo, she drove Mr. Gladue to the hospital. (

l) Mr. Stanley was wounded in the forehead and above his right eye, requiring sutures and leaving “[s]ome bullet shards lodged in his face”. (

m) Mr. Gladue “had a gunshot wound to his left anterior upper leg . . . multiple penetrating bullet injuries to his left superficial femoral artery . . . he required vascular surgery”. (

n) At the time of the foregoing events, Mr. Gladue was on probation. III. POSITIONS OF THE PARTIES [ 4 ] The s 344(1)(a)(

i) offence carries a mandatory minimum sentence of 5 years imprisonment. That mandatory minimum was held to be constitutional by the Supreme Court of Canada in R v Hilbach , 2023 SCC 3 [ Hilbach ]. [ 5 ] The Crown emphasizes the seriousness of this offence, which involves gun violence, and seeks a global sentence of 7 to 8 years’ incarceration for robbery with a firearm, with a 1-year sentence for the breach of probation, to be served concurrently. [ 6 ] The Defence argues that the 5-year minimum sentence should apply, with 1 year concurrent for the breach of probation: a global sentence of 5 years. IV. ANALYSIS A. Sentencing Objectives and Principles [ 7 ]

Section 718 of the Criminal Code states that “[t]he fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions” and then proceeds to outline the objectives of sentencing:

(

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [8] As Devlin, J. recently noted in R v Foureyes, 2022 ABQB 117 at paras 42-44: Sentencing is a uniquely individualized process. The crime itself, the personal circumstances and characteristics of the person whocommitted it, and the impact on the victims who suffered its effects create a unique factual matrix in every sentencing. The primedirective for the sentencing judge it to craft the sanction that is proportional to the harm done and the moral culpability of the person whodid the harm.

The proportionate sentence must take into account all relevant aggravating and mitigating circumstances. Pre- and post-offence factorsmay be relevant to the degree of responsibility, and to determine which purposes of sentencing must be met. Sentences should, ingeneral, be proportionate to other sentences imposed for similar crimes. Sentencing should be done in a restrained manner, and anoffender should be deprived of liberty only where less restrictive sanctions are insufficient.

Finally ... our law demands that all available sanctions other than imprisonment that are reasonable in the circumstances and consistentwith the harm done be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

The SupremeCourt has made this very clear in the Gladue and Ipeelee decisions: R v Gladue, (SCC), [1999] 1 S.C.R. 688; Rv Ipeelee, 2012 SCC 13. [9] And, in R v Hills, 2023 SCC 2 [Hills], sentencing was described as a “highly individualized and discretionary endeavour ...[e]ach sentence is to be custom tailored to match the particular offence, as well as the offender... [t]here is no “one size fits all” penalty,as sentencing is “an inherently individualized” and “profoundly subjective process”” (Hills at para 62, citations omitted). [10] The paramount sentencing considerations here are denunciation and deterrence. [11] Denunciation serves to communicate society’s condemnation of an offender’s specific conduct, not the offender themselves:R v Innes, 2008 ABCA 129 at para 10.

In R v M (CA), (SCC) at para 81, the Supreme Court described a sentence witha denunciatory element as representing “a symbolic, collective statement that the offender’s conduct should be punished for encroachingon our society’s basic code of values”. The sentencing judge must assess denunciation on the facts of a particular case and consider itsadverse effects on rehabilitation and deterrence of the offender: R v Pettigrew, (BC CA) at para 10. [12] Deterrence takes two forms: (1) specific deterrence and (2) general deterrence.

Specific deterrence aims to discourage theoffender from reoffending: R v Bissonnette, 2022 SCC 23, at para 47[Bissonnette]. The aim of general deterrence is to discourage thepublic from engaging in the same criminal activity: Bissonnette at para 47; R v BWP, 2006 SCC 27 at para 2. [13] Excessive sentences do not serve the objectives of denunciation in any notably enhanced way: Bissonnette at para 94.However, courts across the country have frequently observed that sentences for firearm offences must reflect the sentencing goals ofdenunciation, deterrence, and protection of the public.

As stated by Armstrong J.A. in R v Danvers, (ON CA) at para78, “[o]ur courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms.” B. Circumstances of the Offender [14] Mr. Gladue is an Indigenous man. He is 30 years old. He is a member of the Saddle Lake Cree Nation and has treaty status. [15] A Gladue report has been submitted as evidence in this sentencing. The report’s author interviewed Mr.

Gladue, his mother,and his two sisters, and produced the report “in accordance with the Supreme Court of Canada’s ruling in R v Gladue (1999) (SCC), 1 SCR 688 specifically pertaining to the

interpretation of s 718.2 of the Criminal Code of Canada...” [16] Our Court of Appeal recently outlined the law concerning Gladue reports and sentencing in R v Phillips, 2023 ABCA 210 atparas 17-18:

Section 718.2(

e) of the Criminal Code mandates that a sentencing judge must give specific consideration to the “circumstances of [an]Aboriginal offender[ ]” in order to ensure a sentence meets the fundamental principle of proportionality (s 718.1). In R v Gladue, (SCC), [1999] 1 SCR 688, 133 CCC (3d) 385, the Supreme Court of Canada provided s 718.2(

e) is aimed at addressing theserious problem of overincarceration of Indigenous people and directs judges to undertake individual sentencing assessments whichrecognize the unique background and systemic factors that may have played a

part in bringing the offender before the court . . . Gladue factors, both systemic and those related to the background of the particular offender, can impact the offender’s moralblameworthiness.

As this Court stated in R v Okimaw, 2016 ABCA 246 at paras 66 and 68, 340 CCC (3d) 225 [Okimaw], it is the dutyof the sentencing court to properly assess an individual offender’s Gladue factors as it relates to blameworthiness. “Failing to take thesecircumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to thegravity of the offence and the degree of responsibility of the offender” (emphasis in original): Ipeelee at para 73 ... [17] The following specific relevant points are found in the Gladue report:

(

a) Mr. Gladue enjoys a supportive family life situation in his home community and has good relationships with his stepfather,mother, and sisters. (

b) He does not have a relationship with his biological father. (

c) Mr. Gladue was raised by his grandparents, who taught him traditional hunting, fishing, and trapping skills. This was apositive experience for him. (

d) Mr. Gladue’s grandparents and mother, along with her 17 siblings, attended the Blue Quills Residential School, where theyendured significant trauma. This trauma was relayed to Mr. Gladue throughout his upbringing. Despite opposing alcohol and drug use,his grandparents were addicted to prescription medication, a situation stemming in part from his grandmother’s untreated injuries fromthe school. This cycle of addiction extended to Mr. Gladue’s aunts and uncles. (

e) He experienced trauma in childhood, including a suicide attempt by his mother and sexual abuse by a family member at age6 or 7. (

f) After his grandparents’ death, he turned to substance abuse as a coping mechanism. Mr. Gladue started using hisgrandparents’ painkillers and consuming alcohol and cannabis with his grandfather from the age of thirteen. This period also sawepisodes of domestic violence and the introduction of prostitutes into the home. (

g) He has a history of drug and alcohol addiction, currently to crystal methamphetamine. (

h) Mr. Gladue has been involved with the criminal justice system since his early teens and admitted that he gets adrenalinefrom committing offences but has remorse in the aftermath. (

i) His career aspirations include becoming a firefighter and a fisherman. He does not presently have a bank account. (

j) He has been a victim of unprovoked racial violence. (

k) Mr. Gladue has two children (8 and 3 years of age) from different relationships, with whom he has limited contact. (

l) He believes that he may have some undiagnosed mental health issues and is taking anti-depressants. Mr. Gladue also suffersthe physical effects of the gunshot wound in his leg arising from the present incident. (

m) Mr. Gladue has an interest in learning more about Indigenous spiritual practices. (

n) His stepfather’s home is free from alcohol and drugs, potentially aiding his rehabilitation. [18] In

summary, the report identifies several Gladue factors: family history of residential school attendance, addictions,experiences of violence and abuse, racism, mental health issues, and early death in the family. C. Moral Blameworthiness & Degree of Responsibility of the Offender [19] The Supreme Court of Canada in Hills at para 59 stated that a sentence ...must be commensurate with the responsibility and “moral blameworthiness of the offender” (Ipeelee, at para. 37).

The sentence mustbe no greater than the offender’s moral culpability and blameworthiness (Nasogaluak, at paras. 40-42; M. (C.A.), at para. 40; R vMartineau, (SCC), [1990] 2 S.C.R. 633, at p. 645). [20] The degree of responsibility of the offender refers to “the offender’s culpability as reflected in the essential substantiveelements of the offence – especially fault component – and any specific aspects of the offender’s conduct or background that tend toincrease or decrease the offender’s personal responsibility for the crime”: R v Hamilton, (ON CA) at para 91. [21] In assessing Mr.

Gladue’s degree of responsibility, I must consider any specific aspects of his conduct or background thatbear on his personal responsibility for the offences.

i) Moral Blameworthiness in Relation to s 718.2(

e) of the Criminal Code [22] As Mr. Gladue is Indigenous,

Section 718.2(

e) requires me to carefully evaluate the unique systemic and background factorswhich may have played a

part in bringing Mr. Gladue before the courts. This is informed by a recognition in law that the historical andsocial challenges faced by Indigenous peoples can lessen their moral blameworthiness. [23] This sentencing principle in relation to Indigenous offenders was best articulated in R v Ipeelee, 2012 SCC 13 [Ipeelee], whereLeBel, J. explained that ... systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness ...

Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct.Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limitedoptions for positive development. While this rarely — if ever — attains a level where one could properly say that their actions werenot voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish theirmoral culpability ...

Failing to take these circumstances into account would violate the fundamental principle of sentencing — that thesentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (Ipeelee at para 73, emphasisin original).

[ 24 ] S 718.2(

e) does not give Indigenous offenders with Gladue factors an automatic sentencing discount and will not influence the sentence unless those factors go to the moral blameworthiness of the offender: R v Ledesma , 2022 ABCA 285 at para 59 . That being said, the Indigenous offender does not have to establish a causal connection between his circumstances and his offending to allay moral blameworthiness: Ipeelee at para 83 , citing R v Collins , 2011 ONCA 182 at paras 32-33 . [ 25 ] Although Mr.

Gladue is ultimately responsible for his criminal actions, he did not choose the circumstances of his background, which are more likely than not to have contributed to his being before this Court. [ 26 ] The Gladue report for Mr. Gladue indicates a background marked by his family’s residential school experiences, addiction among his caregivers, abuse, and poverty, all leading to a challenging upbringing that extended into his adult life.

This history has significantly shaped his development and actions, contributing to the commission of these offenses. [ 27 ] Therefore, I conclude that these factors associated with Mr.

Gladue’s Indigenous heritage diminish his moral blameworthiness for these offenses. ii) Moral Blameworthiness in Relation to the Offence [ 28 ] In R v Arcand , 2010 ABCA 363 at para 58 [ Arcand ], the Alberta Court of Appeal emphasized that the focus of this assessment is the harm intended by the offender: “[t]he greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability.” [ 29 ] The Crown points to the incident’s premeditation, arguing that this is on the high end of moral blameworthiness since it was a planned event where someone was used as “bait” to lure the victim.

I agree with this assessment. [ 30 ] Although Mr. Gladue may have not been the most enthusiastic participant in the criminal venture, he consciously chose to assist in

an act that exposed another individual to serious injury and psychological distress. Therefore, his reluctance to participate does not significantly lessen his moral responsibility. [ 31 ] Taking all these factors into account, I place Mr. Gladue’s moral blameworthiness in the mid-range. Participating in such a violent crime is highly culpable. However, Mr. Gladue’s difficult upbringing likely normalized violence for him, and like all people, childhood (nearly invariably) makes all the difference. D.

Gravity of the Offense [ 32 ] The “gravity of the offence” assessment is directed at the offender’s actions and the harm or likely harm to the victim and the harm or likely harm to society and its values: Arcand at para 57 . [ 33 ] Mr. Gladue has pled guilty to an offence that carries a mandatory minimum sentence, reflecting Parliament’s view that firearms offences are among the most serious in the Criminal Code .

In R v Kachuol , 2017 BCCA 292 , at para 25 , the Court outlined the significant harm firearms offences cause to both victims and society: In recent years, Canadian courts have become increasingly concerned by the proliferation of handguns, gun violence and the dire consequences for our society. Guns are inherently, often lethally, dangerous, all the more so when they are possessed for an illicit purpose. As a result, their possession and use is highly regulated and, if unlawful, criminalized to ensure public safety, express society’s condemnation and punish offenders.

To the extent possible, courts strive to achieve these goals when imposing sentences for firearms- related offences by prioritizing deterrence and denunciation, following customary sentencing ranges in all but exceptional cases and fully accounting for aggravating factors where they exist. [ 34 ] The Supreme Court of Canada underlined this sentiment in Hilbach at para 73 ( citations omitted) : My conclusion that Parliament was entitled to prioritize deterrence and denunciation here is consistent with the sentencing jurisprudence on robbery, which bears out the importance of these purposes in sentencing for this offence.

It is also compatible with the greater emphasis on these purposes by courts in sentencing where a firearm is used to commit acts of interpersonal violence. In this context, courts have emphasized the need for denunciation and deterrence both to convey our society’s abhorrence of gun violence and to communicate to potential offenders that a significant sentence accompanies the use of a gun to commit violence. [ 35 ] The harm caused by Mr. Gladue’s actions was substantial, not only because it involved an unlawful possession of a firearm, but also in the manner it was used.

The gun was pointed directly at a defenceless victim. Moreover, the fact that Mr. Gladue took

part in a group effort to confine and terrorize the victim while on probation makes this offence particularly egregious. [ 36 ] Thus, the gravity of these offences is high. E. Aggravating and Mitigating Factors

i) Aggravating Factors [ 37 ] Mr. Gladue’s criminal record is significantly aggravating. He has been convicted of pointing a firearm, several failures to comply with recognizances, undertakings and probation orders, obstruction of a police officer, possession of proceeds of crime, theft, various break and enter offences, possession of break in instruments, drug possession, flight from police, and mischief. While there is not a great deal of violence in Mr. Gladue’s record, it is a lengthy and troublesome record that shows a disregard for others, for public safety, for the property of others, and disdain for court orders and directions.

[38] A further aggravating factor arises from the circumstances of the offence. The act of aiming firearms at a young man’s headposed a grave risk of fatal consequences. The crime was orchestrated by a group, pre-planned, and involved using someone as bait to trapthe victim. Physical violence was inflicted on the victim, and firearms were discharged twice – albeit not by Mr. Gladue himself – but ina confined area. ii) Mitigating Factors [39] Mr. Gladue’s guilty plea is a mitigating factor, albeit in the face of an overwhelming case advanced by the Crown, includingvideo evidence, Mr.

Gladue’s blood was in the vehicle and on a firearm, and his subsequent hospitalization, which strengthened theCrown’s case. Additionally, this was not an early plea necessarily, as the victim testified at the preliminary inquiry held in this matter.Nevertheless, I accept he is genuinely remorseful and takes responsibility for his wrongful conduct and this is evidenced on some levelby his guilty plea. [40] I acknowledge these further mitigating factors: (

a) According to the Agreed Statement of Facts, Mr. Gladue “did not want to leave his location but did go along for the drive”. (

b) Mr. Gladue wants to speak to an elder or counsellor about the sexual abuse he suffered as a child. (

c) As a young person, Mr. Gladue took

part in powwows as a singer. He appreciates the traditional lifestyle of his grandparentsand enjoys activities like hunting and fishing, and smudging ceremonies. He expressed a desire to reconnect with these activities and livea positive pro-social life. In my view, this desire is genuine and reduces his risk of recidivism. [41] The Defence urges the Court to consider Mr. Gladue’s lengthy period of incarceration in the Remand Centre, where he wassubject to Covid-19 precautions, resulting in some long and difficult days of lockdown.

They refer to R v Duncan, 2016 ONCA 754.Following guidance from our Court of Appeal in R v Biever, 2023 ABCA 138 at para 29, I will not specify the exact credit he will getfor this but “consider such conditions as a mitigating factor to be considered in determining the appropriate sentence at the outset”. [42] Other mitigating factors urged by the Defence include: (

a) Mr. Gladue was not aware of the facebook contact between Ms. John and Mr. Stanley, which precipitated the entire incident. (

b) Mr. Gladue was not a “leader”, but rather, a “follower” in the criminality. (

c) Mr. Gladue did not bring a weapon and is a party, not the principal. (

d) Mr. Gladue sustained serious injuries from a gun shot to his thigh. He lost a lot of blood and needed surgery. F. Parity [43]

Section 718.2(

b) of the Criminal Code states that “a sentence should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances”. In R v Friesen, 2020 SCC 9 at paras 32-33, the Court states that “parity andproportionality do not exist in tension; rather, parity is an expression of proportionality… In practice, parity gives meaning toproportionality.” [44] However, I also note that the principle of parity is not absolute and should not undermine the principle of individualizedsentencing.

Kraus J articulated this in R v EF, 2021 ABQB 639, at para 84: The principle of parity is not absolute and cannot divert attention from the governing principles, such as the nature and seriousness of theoffence and the individual characteristics of the offender. Each sentence must be individualized and must be decided based on its ownfacts after taking into account all relevant sentencing principles.

This does not mean that the sentence in this case must be identical toanother case, but the Court must bear in mind the principle of parity and have regard to the cases which have a longer sentence and caseswhich have a shorter sentence. [45] In determining Mr. Gladue’s sentence, Counsel agreed that I could take into account the sentence imposed on his co-accused,Taylor Omeasoo, in determining a fit and appropriate sentence for Mr. Gladue. That sentence was 7 years for his role in the robbery witha firearm and 1 ½ years consecutive for three separate firearms prohibition convictions. The global sentence for Mr.

Omeasoo is 8 ½years, and a 5-year concurrent sentence for possession of a loaded prohibited shotgun. [46] Mr. Omeasoo’s sentence is highly instructive for parity purposes. However, it does not shift the focus away from theindividual circumstances of Mr. Gladue. In R v Knife, (SK KB) at para 11, the Saskatchewan Court of Appeal held: As a matter of general principle, the courts seek to avoid disparate sentences, for the same or similar offences, particularly in the case ofco-accused, but not without considerable qualification, for sentencing remains an individual process.

The respective roles of the partiesin the commission of the offence will be considered, along with their individual personal circumstances and may account, properly, forvariations in sentence even in relation to the same crime. [47] While Mr. Gladue did not hold the weapon, he is subject to party liability and bears the same responsibility for the offence asMr. Omeasoo. As noted in Hilbach, at para 101: A sentencing discount purely because a party was an aider or abettor would go against the purpose of the party liability provisions in s.21 ...

As a matter of principle and policy, finding otherwise would encourage offenders to act as aiders or abettors.

[ 48 ] Mr. Gladue played an integral role in the crime. He knew of Mr. Omeasoo’s criminal intentions and still chose to encourage and assist him in the commission of the offence. He is equally culpable as the others involved. Therefore, I am not persuaded that his moral fault relative to Mr. Omeasoo’s is that much lower. [ 49 ] In addition to considering Mr.

Omeasoo’s sentence, the Crown provided several cases to support the imposition of a global sentence of 7-8 years. [ 50 ] In R v Agin , 2018 BCCA 133 , the Court dismissed the offender’s appeal of an 11 year sentence for using a prohibited firearm to commit a robbery, discharging a prohibited firearm with intent to wound, maim or disfigure, and aggravated assault. In attempting to rob a commercial marijuana facility, the offender discharged his handgun twice, hitting an employee in the leg. The offender had 48 prior convictions and was on parole. He pleaded guilty to these offences.

The Court recognized that 11 years was on the upper end of the range for armed robberies involving violence. However, it found the planning and terrorization of the victims were particularly aggravating. [ 51 ] In R v Claros, 2019 ONCA 626 , the Court of Appeal increased a global sentence of 5 years to 8 years for discharging a firearm with intent to wound and breaching a s 109 order.

Although there was a guilty plea and difficult personal circumstances that reduced the offender’s moral culpability, the Court emphasized that deterrence and denunciation remained the paramount considerations for such offences. [ 52 ] In R v Kreko, 2016 ONCA 367 , the offender carried out an armed robbery and fired his gun at the victim but did not seriously injure him. The offender also accidentally shot a bullet into his own leg, which required surgery and left him with enduring physical problems.

The Court of Appeal found that the offender’s dislocation from his Aboriginal heritage reduced his moral culpability and reduced his global sentence from 13 years to 9 years for his possession without lawful excuse of a loaded prohibited firearm, robbery with a handgun, and intentional discharge of a firearm while being reckless as to the life or safety of another person. There was also a guilty plea. [ 53 ] In R v Maytwayashing , 2018 MBCA 36 , the offender intentionally shot the victim in the leg before robbing his house of marijuana. The offender had several notable Gladue factors.

However, the Manitoba Court of Appeal increased the sentences imposed for convictions on charges of aggravated assault and robbery from six years to nine years due to the offender’s lengthy record involving violence, firearms, frequent breaches of court orders, and the need for protection of the public. [ 54 ] In R v Pink , 2020 ONSC 8 , the offender pleaded guilty to possessing a prohibited firearm possessing a loaded firearm during a robbery while prohibited from doing so. The victim suffered nonserious bullet wounds during the incident.

The trial judge found the group effort to rob the victim in a public place and the offender’s prior record were aggravating. The mitigating factors were the guilty plea, community support, work history, and wise use of time while incarcerated. The offender received a 9-year global sentence for these offences. [ 55 ] Hilbach ( at para 101 ) was referred to by the Crown for its commentary on sentencing parties to an offence.

This commentary is discussed above and does not need to be repeated. [ 56 ] R v Cador , 2010 ABCA 379 , involved a serious assault where one of the offenders had lured the victim, her former boyfriend, outside of a bar where he was held down and repeatedly stomped and kicked at by other assailants. Both the lurer and the physical assaulter were sentenced to seven years incarceration.

In dismissing the appeal, the Court reaffirmed the position that parties to an offence bear the same responsibility as the principal offender. [ 57 ] The Crown references R v Suter , 2018 SCC 34 to suggest that the Court can consider the fact that Mr. Gladue sustained a physical injury as a result of the offence for sentencing purposes.

However, in doing so, the Crown stresses para 49, which states that the mitigating effect of such an injury is greatly diminished where it is an inevitable foreseeable consequence of the offence. [ 58 ] R v Rabbit , 2023 ABCA 170 involved an Indigenous man who was under the influence of drugs violently attacking a woman in front of her young children.

In reducing the offender’s sentence from 9 to 4 years, our Court of Appeal stressed the importance of having an informed understanding of the circumstances of Indigenous offenders when crafting a fit and proper sentence. [ 59 ] The Defence distinguishes many of the Crown cases, noting that they dealt with actual shooters, for whom the 8–9-year sentencing range is more appropriate. A victim directly shot by the person being sentenced would justifiably warrant a longer sentence. [ 60 ] Based on these cases, the appropriate sentence for Mr. Gladue must be greater than the mandatory minimum of 5 years.

Parity would suggest a sentence in the 7 to 8 year range, as proposed by the Crown. G. Totality [ 61 ] As I will outline below, the sentences for the two offenses, arising from the same incident, will be served concurrently. [ 62 ] Given this, the “totality principle” under

Section 718.2 (

c) of the Criminal Code does not apply here. As held in R v Skinner , 2016 NSCA 54 at para 47 , “Parliament has explicitly limited the application of the principle of totality to cases where consecutive sentences are ordered.” V. CONCLUSION A. Decision

[ 63 ] This is a serious offence involving gun violence. [ 64 ] Mr. Gladue’s moral blameworthiness is enhanced by the circumstances of the offence: furtherance of a scheme, the violence, the threats, the use of weapons. However, his difficult upbringing, which normalized violence, slightly mitigates this. [ 65 ] The aggravating factors are substantial.

His record is distressing and patterned, and the offence itself involved menacing elements that are disturbing. [ 66 ] In mitigation, I consider the guilty plea, his own injury during the offence, his reluctance to get involved in the first place, his less central role in the crime, and his genuine desire to reform and pursue a better life after he is released. [ 67 ] In looking at comparable cases, including Mr.

Omeasoo’s, and considering all factors, especially those highlighted in the Gladue report, I find that a fit and proper sentence for this offence and this offender is 6 ½ years incarceration, which will be served concurrently with a 1 year sentence for the s 733.1(1) offence. [ 68 ] Mr. Gladue will be credited one and a half days for each day served before sentencing. B. Ancillary Orders [ 69 ] In addition, I impose the following ancillary orders: • Mr.

Gladue will provide his DNA pursuant to s 487.051 of the Criminal Code . • A lifetime weapons prohibition pursuant to s 109 of the Criminal Code is imposed. • An order for forfeiture pursuant to s 490 of the Criminal Code is imposed, except for personal items that are not related to the offences in this case. • Exhibits can be destroyed after the appeal period expires. Heard on the 26 th day of September, 2023. Dated at the City of Edmonton, Alberta this 28 th day of November, 2023. S.N. Mandziuk J.C.K.B.A. Appearances: Julie Snowdon for the Crown Karim Broodhagen for the Defendant