R. v. L.L.D.G., 2012 MBCA 106

Citation: R. v. L.L.D.G., 2012 MBCA 106 Date: 20121102 Docket: AR 12-30-07724 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton BETWEEN : HER MAJESTY THE QUEEN ) A. L. Sansregret ) for the Appellant Respondent ) ) R. N. Malaviya ) for the Respondent - and - ) ) Appeal heard: ) September 7, 2012 G. (L.L.D.) ) ) Judgment delivered: (Accused) Appellant ) November 2, 2012 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ).

MONNIN J.A. 1 The accused appeals a conviction for breaking and entering a dwelling house and committing sexual assault and the sentence of 10 years’ incarceration imposed for that offence. 2 In his notice of appeal, the accused alleges that the judge erred in convicting him because there was no physical evidence of an assault on the complainant and that, in arriving at a finding of guilt, the judge relied on the untested evidence of a child to corroborate the unsatisfactory evidence of another child with respect to both his identification of the accused and the finding of his guilt beyond a reasonable doubt.

In oral argument, counsel for the accused further alleged that these errors brought about an unreasonable verdict and that therefore the accused should be acquitted. 3 It is fair to say that the circumstances surrounding the offence are unusual. 4 The complainant had been drinking during the course of the day and returned to her home in the late evening with two other adults, where they continued to drink beer. The accused came to the residence looking for the complainant’s boyfriend, who was not home. The complainant invited him in for a beer. The four adults then continued drinking until approximately 1:00 a.m.

By this time the accused had passed out. The other two visitors received a phone call and left the complainant’s residence. It is unclear whether the accused left at the same time or shortly thereafter upon being awakened by the complainant. 5 With all three visitors gone, the complainant locked her doors and went to bed. In the bedroom, in addition to the complainant, were her six children, ages 11, 10, 7, 2-1/2, 1 and an infant. After going to bed, the complainant, who was intoxicated, passed out.

It appears that at least two of her children were sleeping in the complainant’s bed, although it is unclear as to which children. At some point during the night, the back door of the residence was forced open and according to the evidence of two of the children, KU (age 7) and VL (age 10), they observed the accused come into the bedroom, remove the complainant’s pants and panties, as well as his own, and climb upon the complainant. KU further testified that she observed this and that when lying upon the complainant, the accused was moving.

6 When the complainant awoke in the morning, she realized that the door had been broken open and that her car wasgone, but she had no knowledge or awareness of any sexual assault. She was told by one of the children as to what they observed duringthe night. Because she had no recollection of any sexual assault, she ignored this. 7 The complainant set out with her sister to go to The Pas for a medical appointment for one of her children. Uponreturning she reported the break and enter and car theft to the RCMP.

During the course of the RCMP interview of VL with respect tothe break and enter and theft of the automobile, VL disclosed and the RCMP first learned of the alleged sexual assault. The RCMP tookVL and the complainant to the detachment and took a video statement from VL. KU was also interviewed and reported what she hadobserved as regards the sexual assault. 8 There is absolutely no physical evidence of a sexual assault, or any evidence from the complainant concerning it. The only evidence is that of KU and VL, so that the case is entirely dependent upon their evidence. Both testified at trial, as did others.

The accused did not testify. With respect to VL, her video statement was admitted and she supplemented that somewhat with viva vocetestimony. However, she was wholly non-responsive on cross-examination. 9 Following the trial, the judge reserved his decision and thereafter provided lengthy and thorough reasons for hisdecision.

He reviewed the facts generally and then went on to review the evidence of the two child witnesses, KU and VL. 10 Following a short review of the law applicable to break and enter, assault and sexual assault, he then, because, as hestated, the case turned on the credibility of the two child witnesses, considered what the Supreme Court of Canada had said in R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122, and in R. v.

B. (G.), (SCC), [1990] 2 S.C.R. 3. 11 In his analysis the judge found the evidence of KU to be credible and reliable, although he stated that he was placing noweight on her in-court identification of the accused because the witness had identified the only male in the courtroom, apart from thejudge and defence counsel, as being the accused.

He, however, accepted that KU had previously seen the accused at her house on prioroccasions and on the night of the offence and identified him by name to the RCMP constable who took her statement. 12 With respect to VL’s evidence the judge justified his finding that her video statement was reliable, but then went on tosay the following as to her lack of responsiveness on cross-examination (2011 MBQB 149 at paras. 40-41): However, in considering the evidence of VL as a whole, I am concerned about the defence’s inability to test this evidence.

This concernhas led me to conclude that little weight should be placed on VL’s evidence. Rather, I have limited the use of her evidence toconsidering the reliability of KU’s evidence, essentially as a corroborative tool. The explanations by VL and KU as to the fundamentals of the sexual assault on the complainant are strikingly similar. As such, VL’sevidence corroborates KU’s evidence. 13 On the issue of identification of the accused by VL, he said (at para. 42): As to the issue of the identification of the accused, VL had the same opportunity to observe the accused with the same limitations.

Sheidentified the accused to the RCMP later that day without prompting. She knew the accused from the community. The identification ofthe accused by VL is corroborative of KU’s identification evidence. 14 He then continued an analysis of the internal inconsistencies in the evidence of the two children followed by aconsideration of the theories advanced by both the Crown and the accused. He concluded as follows (at para. 67): I have carefully examined all of the evidence. I have considered the many questions raised by defence counsel.

I am not left inreasonable doubt about the evidence that the accused entered the complainant’s bedroom, took off the complainant’s pants, took off hispants, lay on top of the complainant, and was moving. I make this finding based on the following: . . . . . (

b) I am of the view that the details relayed by KU, having regard to her age, reinforces the credibility of her evidence; and (

c) VL’s evidence is strikingly similar to KU’s evidence and thus is corroborative of KU’s evidence. However, given that VLwas not cross examined on her evidence, I have come to this conclusion without relying heavily on VL’s evidence.

15 And on the matter of identification of the accused he said (at para. 69): As to the issue of identification of the accused, being cognizant of the frailties of eye witness identification evidence, I am satisfied beyond a reasonable doubt that the accused is the person who committed the offence of sexual assault on the complainant. I make this finding based on the following: (

a) KU had seen the accused in the kitchen shortly before the event; (

b) KU testified that the accused had been at the house before a few times; (

c) VL’s evidence corroborated KU’s evidence regarding the identification of the accused, whom VL also identified to the RCMP and knew from the community. Again, I have limited my reliance on VL’s evidence as to only being corroborative of KU’s identification evidence; (

d) Although it was dark, there was some light coming from the kitchen and there was no real suggestion by defence counsel about the inability of KU and VL to observe events. Photographs of the bedroom show it as a small area with the bed and the futon within close proximity to one another; and (

e) Cross examination of KU and others focused on whether the event occurred and not the identity of who was involved. There was little cross examination on the issue of identity. The identity of the accused was not vigorously challenged with KU. 16 The judge then went on to convict the accused with respect to the break and enter and commit sexual assault charge, but acquitted him on a charge of assault, where the allegation was that, following the sexual assault on the complainant, the accused had picked up a baby sleeping in the room and dropped him to the floor.

The judge said the following with respect to that charge (at paras. 29-30): KU also testified that the accused then picked up LL, who was sleeping on the bed, and dropped LL on the floor. LL cried. On cross examination, when challenged about LL being dropped, KU’s answers appeared contradictory to her prior evidence. Defence counsel asked KU how high the man lifted LL, to which KU responded she did not know. Defence counsel then asked whether KU saw the man lift LL and she said no. Defence counsel asked if KU saw the man drop LL and she said no.

He asked her if this was something that someone else told her happened and she said yes, but did not know who. KU’s answers on cross examination raised some concern in my mind about the reliability of her evidence as to the accused dropping LL. …. For example, she said that L and LL were in the complainant’s bed. However, the complainant said M and LL were sleeping with her. She contradicted herself when she also said that L was in the crib. KU had difficulty answering questions about the time that events took place. For example, she gave unclear answers as to when she and others went to bed.

On the other hand, she said that she did not know how to tell time. She gave contradictory evidence as to whether there were blankets and sheets on the bed. She said that after LL was dropped on the floor, L woke up, but she did not know how she knew that L woke up. She was unclear as to what and when she told the complainant about what she saw. 17 And finally (at para. 71): As to the alleged assault on LL, on cross examination, KU essentially recanted her direct examination evidence. As indicated, I am placing little weight on VL’s evidence.

As such, there is no reliable evidence of an assault on LL and I have a reasonable doubt about the accused assaulting LL. 18 The accused’s argument before us was that the evidence of the two children was too unreliable to found the basis for his conviction. He argues that the judge failed to give proper significance to the inconsistencies that existed in the evidence of each child and the inconsistencies that existed as between their evidence.

He further argues that if the judge found that he could not rely on the evidence of the two children to found a conviction of assault, that same doubt should have existed with respect to the evidence of a sexual assault on the complainant. 19 In reply, the Crown argues that a judge need not address all inconsistencies that might appear in the evidence that was

led and that when his reasons are read as a whole, he was entitled to come to the conclusion that he did for the reasons he provided. Furthermore, the Crown argues that the judge was entitled to convict on the evidence of KU alone and that any corroboration orconfirmation of her evidence by VL was superfluous and unnecessary in law. 20 As stated earlier, the judge’s reasons were thorough, and detailed. They demonstrate in a clear and concise mannerwhy it is that he found the evidence of KU to be both reliable and credible with respect to the sexual assault.

He was entitled to do soand, as the Crown argued, reliance on that evidence alone was sufficient to justify the conviction of the accused. 21 Being mindful of the fact that the judge is owed a considerable deference in his findings of fact, I am unable toconclude that he was in error in accepting and relying on the evidence of KU and that of VL to the limited extent that he did.

Bothchildren identified the accused as being in the bedroom and the judge set out the reasons why he found that evidence to be reliable. 22 The judge explained why he did not find the evidence of assault to be reliable and that was because KU recanted herevidence on cross-examination. That in itself is not sufficient to find her evidence of sexual assault unreliable because she did not recantthat evidence on cross-examination nor was she shaken from her evidence in direct. 23 In the final analysis, the judge had a very difficult decision to make, but he was in a better position to make it than thiscourt.

He heard the evidence, he saw the witnesses and he explained in a detailed and reasoned manner why he was persuaded by thatevidence. He committed no error in law in arriving at his findings and I have not been persuaded that the verdict he arrived at wasunreasonable. There was evidence on which a properly instructed trier of fact could reach the finding that he did. 24 I would, therefore, dismiss the appeal as to conviction. 25 On the issue of sentence, the accused argues that it was harsh and excessive considering his age and prospects ofrehabilitation.

He also argues that the judge failed to give sufficient weight to the Gladue ([1994]1 S.C.R. 688) factors.

Finally, heargues that the judge erred in treating the circumstances of the offence as analogous to a home invasion. 26 The Crown concedes that the sentence was a severe one, but argues that it remains within an acceptable range and thatthis court should therefore defer to the judge. 27 In sentencing submissions, the Crown was seeking a period of incarceration in the seven- to ten-year range while theaccused’s counsel argued that an appropriate period of incarceration would be four years. 28 The judge was not persuaded that rehabilitation of the accused should be a paramount consideration for him.

He said(2011 MBQB 269 at para. 32, 273 Man.R. (2d) 207): The pre-sentence report indicates that L.L.G. attempted to address his alcohol issues in 2008, but there were no spots available. There isno evidence that he followed up at the time. Since 2003, L.L.G. has been on probation almost continuously and has no doubt had thechance to take advantage of programming but has not done so. It is only now that he is facing a penitentiary term that he says he is readyto take the full benefit of available programming.

Having had the benefit of about seven years of probation and ample opportunity toattend for treatment, I am not persuaded that rehabilitation is a paramount consideration. Any rehabilitation will be through whateverservices are available in the penitentiary. In my view, the need for denunciation and deterrence outweigh the goal of rehabilitation in thecircumstances of this case. 29 Relying on this court’s decision in R. v.

Pakoo (K.G.), 2004 MBCA 157, 190 Man.R. (2d) 133, he then went on to say: Like in Pakoo, if we are to apply the factors set out in Matwiy [(1996), 1996 ABCA 63 , 178 A.R. 356 (C.A.)] literally, whatoccurred in the case at hand, as horrendous though it was, does not fit within the frequently used description of a home invasion. Whilethis case does not technically involve a home invasion, I find, as did the Manitoba Court of Appeal in Pakoo, that the circumstances areanalogous to, and should attract a sentence similar to, those imposed for home invasions.

In my view, a sentence at the upper end is appropriate to address the need for denunciation, deterrence, and public protection. Takinginto account all of the circumstances, I am satisfied that an effective sentence of imprisonment of ten years is fit and proper for theoffence of break and enter and committing a sexual assault. .... 30 The judge had at his disposal a pre-sentence report that also purported to address the Gladue factors that a judge mustconsider when imposing a sentence on a person of aboriginal descent.

I say purported, because the only difference that I can see betweenthe report that was presented to the judge and a commonly prepared pre-sentence report was that it contained a short history of theaccused’s home community and the general loss of culture and identity that has afflicted aboriginal communities generally. That portionof the report is a near mirror image of a report that was submitted to McCawley J. in R. v. Knott (J.W.), 2012 MBQB 105, 278 Man.R.(2d) 82. She had this to say with respect to the report in her reasons (at para. 18): .... In addition to describing the northern community in which Mr.

Knott grew up, St. Theresa Point, it refers also to the effects of

colonization on the lives, language and social relations of the indigenous people of Canada as well as their ways of thinking, feeling and interacting with the world. .... 31 Furthermore, although the report states that it “will pay particular attention to the unique circumstances of the aforementioned aboriginal individual,” I remain hard pressed to understand how it does so or how it could have been helpful to the judge, or any other judge for that matter, to discharge his obligation to consider the Gladue principles in crafting an appropriate sentence for this accused.

The report, without wanting to criticize the individual who prepared it, but rather the system that permits it, reflects the problems raised by Sandhu P.J. in R. v. Mason (J.L.), 2011 MBPC 48 , 269 Man.R. (2d) 297 , when he wrote (at para. 32): ....

Unfortunately, the Gladue process outcomes in Manitoba are rendered generally weak and ineffective due to a lack of resourcing to put the Gladue principles into action in a manner that inspires confidence, both by the court and the public, Gladue principles, which favour, in the case of aboriginal offenders, sentences that will permit the court to confidently send an offender back into the community, confident in the knowledge that community resources would be, if not immediately, shortly and generously made available to the accused, under supervision, which would be adequate supervision, and in the case of conditional sentences, restrictive, and that the accused would receive the remedial measures very often necessary to reduce risk and promote rehabilitation within the community essentially on demand and by order of the court.

Without that confidence, the application of Gladue principles is little utilized by the courts in Manitoba and is little respected by the public. The root problem of such a lack of confidence in the Gladue principles and its application is the matter of resources. 32 In my view, the most noteworthy element of the report was that it indicated that the accused was at a low risk to reoffend. 33 In the recent decision of R. v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433 , LeBel J. stated with respect to Gladue (at paras. 59-60, 75): The Court held, therefore, that s. 718.2(

e) of the Code 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 ( Gladue , at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non- Aboriginal offenders ( Gladue , at para. 37). When sentencing an Aboriginal offender, a judge must consider: (

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 ( Gladue , at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report ( Gladue , at paras. 83-84).

Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte , 2000 SKCA 27 , 189 Sask. R. 190 ). To be clear, courts must take judicial notice of such matters as 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 Aboriginal peoples.

These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders.

Bringing 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 under s. 718.2 (

e) of the Criminal Code .

Section 718.2(

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has, and continues to be, the fundamental duty of a sentencing judge.

Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.

Section 718.2 (

e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process. [emphasis added]

34 And finally (at para. 87): The sentencing judge has a statutory duty, imposed by s. 718.2(

e) of the Criminal Code, to consider the unique circumstances ofAboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. Asthese reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamentalprinciple of proportionality.

Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender,including breach of [a long-term supervision order], and a failure to do so constitutes an error justifying appellate intervention. 35 The Supreme Court of Canada has stated in clear and unequivocal terms the considerations that must guide a judgewhen sentencing a person of aboriginal background, but judges cannot discharge that duty without the help of counsel and more so, inmy view, the provincial resources to provide the required information to both counsel and the courts.

There is presently in this provinceeither a concerning disregard or a systemic impossibility to provide what is required for judges to comply with the dictates of theSupreme Court. 36 Based on what the Supreme Court has stated, the lack of consideration of the Gladue principles would be sufficient forme to qualify the sentence imposed by the judge as unfit. There are, however, in my view, two other problem areas with the sentenceimposed. 37 The first is the judge’s reliance on Pakoo.

I am far from convinced that the simple fact of a break-in to thecomplainant’s residence makes the circumstances of this case analogous to those in Pakoo and to invite the imposition of a sentence inthe Pakoo range. In Pakoo, the accused broke into a residence while in the possession of a firearm, which he discharged once andattempted to discharge a second time, in the presence of children. In R. v. Matwiy (S.B.) and Langston (J.D.) (1996), 1996 ABCA 63, 178 A.R. 356 (C.A.), which was considered in Pakoo, the accused again had a loaded gun and made threats to kill the residentsof the home they broke into.

In R. v. Ross (P.S.) (1999), (MB CA), 138 Man.R. (2d) 75 (C.A.), also referred to inPakoo, the accused again had a weapon when he broke into a residence. 38 I am further mindful of what Steel J.A. wrote in R. v. McCowan (K.J.), 2010 MBCA 45, 251 Man.R. (2d) 295 (at paras.10-11): The Crown has acknowledged that the cases in which s. 348.1 might be called into play are so diverse that case law is of limitedassistance.

Nonetheless, the Crown submits that in this particular case, the “home invasion” nature of the offence and the injuriessuffered by the victim were so “catastrophic” that the high end of the seven- to ten-year range set out in R. v. Pakoo (K.G.) (2004), 2004MBCA 157 , 190 Man.R. (2d) 133; 335 W.A.C. 133; 2004 MBCA 157, is appropriate. I believe it can be misleading to apply the range developed for “home invasion robberies” too rigidly without taking careful account ofthe nuances in the facts of each case.

Sentencing ranges are useful in promoting consistency and parity because they provide guidelinesto sentencing judges for the imposition of similar penalties for similar offences of a similar nature involving similar offenders. See R. v.McDonnell (T.E.), (SCC), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321. But they are nothingmore than guidelines and are certainly not conclusive of the appropriate sentence in any given case. The Supreme Court of Canadarecently confirmed this basic principle in R. v.

Nasogaluak (L.M.) (2010), 2010 SCC 6 , 398 N.R. 107; 474 A.R. 88; 479W.A.C. 88; 251 C.C.C. (3d) 293; 2010 SCC 6, when it repeated that a judge can order a sentence outside of a guideline range so long asit is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriatesentences is not necessarily unfit. See also, R. v.

Sinclair (W.J.) (2009), 2009 MBCA 91 , 245 Man.R. (2d) 237; 466 W.A.C.237; 2009 MBCA 91, at para. 6. 39 And she went on to add the following cautionary words (at paras. 16-18): However, [Justice Freedman] also warned that “[t]he court was not laying down a rigid framework, since all judges are well aware thatsentencing is an art which is to be carefully applied to suit the particular offender and offence” ([Pakoo] at para. 37). In addition, in aconcurring judgment, Justice Kroft warned of the danger of attaching labels to vaguely similar kinds of offences and applying fixed andlimited ranges of sentences to them.

This caution was adopted by the Ontario Court of Appeal in R. v. J.S. (2006), (ON CA), 213 O.A.C. 274; 210C.C.C. (3d) 296 (C.A.), which, although dealing with different facts, agreed with the cautionary sentiments expressed by Justice Kroft. The court warned (at para. 36): The label “home invasion” is elastic and can cover a broad range of offences. Judges have warned against generalizing across all homeinvasions when determining an appropriate sentence. One size does not fit all. ...

Thus, as Chief Justice Scott commented in R. v. Turtle (D.J.), [2006] Man.R. (2d) Uned. 96; 2006 MBCA 148, not every break andenter is a home invasion and not every break and enter in which s 348.1 is applicable as an aggravating factor should attract a sentence inthe range of seven to ten years. So, in R. v.

Evans (K.A.) (1997), 1997 ABCA 165 , 196 A.R. 207; 141 W.A.C. 207 (C.A.), themajority of the Alberta Court of Appeal did not apply Matwiy to a case involving breaking and entering into the victim’s home and thecommission of a horrifying assault in the presence of a child by an offender who had previously been convicted of assaulting the samevictim and was serving a sentence for an offence involving threats of violence at the time of the assault. Instead, the court affirmed asentence of five years.

Indeed, it is interesting to note that the Alberta Court of Appeal now feels that the eight-year starting-pointsentence mandated in Matwiy for home invasion robbery should be reserved for true cases of home invasion robbery and not every caseinvolving only some of the factors found in that case. See R. v. Cardinal (K.M.) (2007), 2007 ABCA 41 , 401 A.R. 325; 391W.A.C. 325; 2007 ABCA 41. See also to the same effect, R. v.

Newhook (A.C.) (2008), 2008 NLCA 28 , 276 Nfld. & P.E.I.R.190; 846 A.P.R. 190; 2008 NLCA 28, at para. 30. 40 While this offence is a home invasion as defined under s. 348.1 of the Criminal Code, and without in any wayattempting to belittle the seriousness of the incident, I am of the view that the judge erred when he found the circumstances of theoffence to be analogous to a home invasion robbery, and then imposed a sentence in the range set out in Pakoo. 41 Finally, I am of the view that the judge placed too little reliance on the prospect of rehabilitation of a youthfulaboriginal offender who was termed in the pre-sentence report as a low risk to reoffend. 42 In light of this factor, along with the lack of consideration of the Gladue principles and a misclassification of theseriousness of the offence, I consider that the sentence imposed was unjustly harsh and, in my view, unfit. 43 It therefore remains for me to substitute a sentence which I think should have been imposed and, in doing so, I face thesame difficulty that the sentencing judge had in attempting to respect the provisions of s. 718.2(

e) of the Criminal Code; that is, a limitedand unhelpful Gladue report. An alternative would be to request a further report, but at this juncture in the proceedings, the added delayin doing so would be of no service to the complainant and the accused, and accordingly I will impose a sentence with the materials athand.

That is not to say however that sentencing judges should not defer the imposition of sentence until they have been provided withthe information the Supreme Court has stated they should consider in imposing a sentence on an aboriginal offender. 44 Although the Gladue requirements came about in an attempt to eliminate the overincarceration of aboriginal persons,the seriousness of a given offence may still demand that a period of incarceration be imposed.

I consider this to be one such case. 45 However, for the reasons that I have set out earlier and especially the relative youth of the accused and still existingpossibility for his rehabilitation, I consider the sentence imposed to be simply too long. This must, however, be balanced against the factthat this youthful accused has already amassed a significant criminal record in a short period of time.

In attempting to balance his youthand his previous criminal involvement, while attempting to pay more than lip service to the Gladue principles and requirements, I wouldsubstitute the sentence imposed with one of five years, with the same credit of 22 months for time spent in custody. J.A. I agree: J.A. I agree: J.A.