R. v. Harry, 2013 MBCA 108

Citation: R. v. Harry, 2013 MBCA 108 Date: 20131220 Docket: AR 12-30-07862 IN THE COURT OF APPEAL OF MANITOBA \ Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Mr. Justice William J. Burnett BETWEEN: ) D. M. Sawchuk and ) T. D. WalkerHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) A. Y. Kotler ) for the Respondent ) - and - ) S. D.

Boyd ) for the Intervener ) The Commissioner ofRUSSELL CHARLES HARRY ) Correctional Services ) (Accused) Appellant ) Appeal heard: ) October 21, 2013 ) ) Judgment delivered: ) December 20, 2013 HAMILTON J.A. [1] After a trial by judge alone, the accused was convicted of several offences, including a brutal sexual assault and asubsequent assault, with a knife, of the same victim, after breaking into her home. The accused does not appeal his convictions.

Heseeks leave to appeal his sentence. [2] The judge concluded that the appropriate sentences for the sexual assault and the break and enter were seven yearsand six years respectively, to be served consecutively, reduced by two years for totality and three years for the time the accused served inpre-sentence custody. She also sentenced the accused to two years for assault with a weapon and two years for obstruct justice, bothconcurrent to the break and enter.

Thus, the total sentence to be served is eight years. [3] The key issues concern: 1) the impact of the amendments to the Criminal Code (the Code) with respect to thecalculation of credit for pre-sentence custody (the PSC amendments), enacted by the Truth in Sentencing Act (the Act); and 2) theapplication by the judge of the factors to be considered for aboriginal offenders identified in R. v. Gladue, (SCC),[1999] 1 S.C.R. 688 (the Gladue factors), and as explained in R. v.

Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. [4] The accused asserts that: 1) the judge erred when she applied the PSC amendments to the accused because hecommitted the offences, and was charged, prior to the PSC amendments coming into effect; and 2) the judge had insufficient informationpertaining to the Gladue factors to enable her to sentence the accused. [5] The accused moves to introduce fresh evidence, being a new report to address the Gladue factors (the new Gladuereport). [6] The accused also asserts that the judge erred because she failed to consider the Gladue factors separately from theprinciple of totality, the sentence of seven years for the sexual assault was harsh and excessive and therefore unfit, and she wronglyequated the break and enter offence to a home invasion. [7] I would grant leave to appeal.

As I will explain, the judge erred when she applied the PSC amendments to theaccused and I would adjust the accused’s credit for pre-sentence custody to that limited extent. However, I would dismiss the appeal in

all other respects, as well as the fresh evidence motion. Background [ 8 ] The accused and the victim are members of the same First Nation and live on the same reserve. The accused’s brother and the victim were engaged until a few months before the accused committed the offences. After the break-up in 2008, the victim had difficult encounters with the accused and his friends in the community and at parties. [ 9 ] In August 2008, the accused went to the victim’s home late at night. Her children were away with her parents.

The judge summarized what happened in her reasons for sentence: …. … [T]he accused tricked the [victim] into answering her door .... He forcibly removed her from her home and dragged her down a number of stairs, where he threw her to the ground. When the [victim] struggled, the accused recruited a young person he had waiting nearby to hold her down while he raped her. He also attempted to place his penis in her mouth. The assault only stopped when the young person restraining her refused to do so any longer.

The entire incident occurred while the [victim’s] ex-boyfriend ... watched from a nearby location. …. [ 10 ] What is not stated in this passage, but is clear from the judge’s reasons for conviction, is that the accused struck the victim in the face and head several times, ripped away her clothes, unzipped his pants and forced his fingers and then his penis into her vagina. The victim was struggling and crying throughout. When the assault was over, he threatened her if she went to the police. The victim could not walk and crawled up the stairs to her house. She was bleeding from her vagina.

She did not press charges because she was terrified of the accused. [ 11 ] The judge rightly described what occurred as “terrifying, brutal, and designed to demean the [victim].” [ 12 ] Days later, the accused broke into the victim’s home. The judge found that the circumstances of the break and enter were “also disturbing,” stating that: …. The accused entered the [victim’s] residence while she was home alone.

He grabbed her by the throat, cut her leg with a pocket knife, and threatened her not to go to the police. [ 13 ] As explained by the judge, the harm suffered by the victim and her family was “substantial”: …. Amongst the many effects, the victim continues to suffer flashbacks, anxiety attacks, fear in her own home. .... Suffice it to say, her life has been drastically altered as a result of these offences.

The victim’s mother ... [has] feelings of helplessness respecting her ability to protect the victim and help her to deal with the effects of these crimes. .... [ 14 ] The accused was arrested on October 20, 2009, and released on bail 15 days later on November 4, 2009 (the first custody period). He was rearrested for breaching his bail conditions on November 15, 2009, and remained in custody for 299 days until September 9, 2010, when he was released on bail (the second custody period).

He breached his bail again on October 3, 2010, and remained in pre-sentence custody for 726 days until he was sentenced on September 27, 2012 (the third custody period). [ 15 ] The PSC amendments came into force 100 days into the second custody period. [ 16 ] The accused had a criminal record at the time of sentencing, consisting of several breach offences, two alcohol-related driving offences, and three offences in the context of domestic violence (two break and enters and an assault). [ 17 ] At the sentencing hearing, the Crown filed a pre-sentence report prepared by a probation officer with Manitoba Justice, Community Corrections, Adult Probation Services (the pre-sentence report).

The first page of the pre-sentence report indicates “Gladue Pre Sentence Report – Adult.” [ 18 ] The pre-sentence report is divided into three parts: Part A - Background, which has several paragraphs addressing “The Colonization process in Canada”; Part B - Community Profile, the stated intent of which is to “[describe] what happened to the individual’s community as a result of Colonization, and what the community is doing to rebuild”; and

Part C - Individual Assessment, the stated intent of which is to “[consider] the impact of the Colonization on the individual and [provide] a description of the individual’s criminogenic need factors and strengths in alignment with the LS/CMI [Level of Service/Case Management Inventory] risk assessment.” There are numerous subheadings under

Part C, including the accused’s criminal history, his education, employment, family/marital

history, and alcohol and drug use.

Part C contains information from the accused and his mother about the accused’s alcoholic father and the physical abuse suffered by the family at the hands of the accused’s father before his death. It also indicates that the accused and his mother described the accused’s childhood as “normal.” [ 19 ] The accused scored as a high risk to reoffend generally, and for sexual and violent offences in particular. The pre- sentence report concluded that he “presents as a high risk in the community.” [ 20 ] The appeal first came before the court on May 23, 2013.

At that time, the accused wished to present the new Gladue report, which was prepared by a person not associated with Adult Probation Services. The appeal was adjourned to permit the accused to file a fresh evidence motion with respect to the new Gladue report. [ 21 ] On September 12, 2013, a judge in motions court granted intervener status to The Commissioner of Correctional Services and permitted the filing of an affidavit of Shauna Appleyard, the Executive Director of Adult Probation Services with the Corrections Division of the Department of Justice of the Government of Manitoba.

The stated purpose of the affidavit is to provide “information to the court about Probation Services policies, standards and training regarding the preparation of pre-sentence reports concerning aboriginal offenders which contain information relevant to Gladue factors. ” In her affidavit, Ms Appleyard indicates that: Probation Services has revised its policy and guides for the preparation of Gladue pre-sentence reports.

This has been done as a result of the Ipeellee [ sic ] case and the increased focus on and demand for Gladue information. …. [ 22 ] The pre-sentence report was prepared before the revised policy and guides referred to by Ms Appleyard in her affidavit. The PSC Amendments [ 23 ] The PSC amendments are contained in the Act and comprise subss. 719(3) - (3.4) of the Code . These subsections limit the credit for pre-sentence custody to “one day for each day spent in custody” (s. 719(3)) except in certain circumstances, where it may be increased to a maximum of one and one-half days for each day in custody. [ 24 ]

Section 5 of the Act reads as follows: Application — persons charged after coming into force 5. Subsections 719(3) to (3.4) of the Act, as enacted by

section 3, apply only to persons charged after the day on which those subsections come into force. [ 25 ] The PSC amendments came into force on February 22, 2010. See Truth in Sentencing Act , SI/2010-9

(2010) C. Gaz. II, Vol 144, No. 4 at 213. The Sentencing Hearing [ 26 ] Counsel for the Crown recognized that the pre-sentence report had some weaknesses. In her submission, she stated: …. … [I]t’s not quite clear as to what effect the factors pertaining to the colonization of the community ... had an effect on [the accused], directly. It’s kind of a general sense of what occurred in the community. There’s an indication that [the accused’s mother] and her mother … attended residential schools. But there’s no indication on how this affected [the accused], specifically.

So it’s quite vague, and, I would submit, has little value with respect to how those factors have affected [the accused]. . . . . . So I’m not sure what the factors, the Gladue factors, have had an impact with respect to the behaviour that [the accused] finds himself before the court. Obviously, I would surmise the fact that he witnessed abuse by his father, upon himself and his siblings and upon his mother, may go to some understanding as to why he is behaving in the way he does now, in relationships and with women.

[emphasis added] [ 27 ] Defence counsel (who is not defence counsel on appeal) agreed with these comments, stating that “sometimes you get PSRs in Gladue where ... there’s not a complete or direct connection made by the writer of the report with factors that might be involved in Gladue .” He highlighted the alcohol abuse in the community. He addressed the description by the accused, and his mother, that the accused’s childhood was “normal”: …. That’s not a normal childhood. That fact is … that kind of, exposure to abuse and substance abuse and abuse, both sexual and physical abuse, becomes normalized.

And it becomes, so when [the accused] says: Oh, I had a normal childhood. .... . . . . .

So I would suggest that there are Gladue factors here, just so, the witnessing abuse as a child and being a victim of it and being, really, a victim of substance abuse himself and that just perpetrates more victims in the future. …. [ 28 ] The Crown sought a total sentence of 13 years, calculated as follows: nine years for the sexual assault and a consecutive sentence of seven years for the break and enter (and concurrent sentences of two years and three years for the assault with weapon and attempt to obstruct justice, respectively), less three years for totality and then less time for pre-sentence custody.

The accused sought a sentence in the range of six to eight years, calculated as follows: three to five years for the sexual assault and two to four years for the break and enter, assault with weapon and obstruct justice.

The accused sought double credit for pre-sentence custody for the first custody period and the second custody period. [ 29 ] The Crown agreed that the accused should receive double credit for the first custody period because the “[the date of arrest] precedes, and the offence itself, precedes ... the Truth in Sentencing amendment of February 22, 2010.” [ 30 ] With respect to the second custody period, the Crown asked that the credit not be double credit: .... I would be asking it be noted strictly ... as a straight time.

And ... the reason is partially because of the fact, he is in custody solely because of his breaching. He had judicial interim release.

And it’s the Crown’s opinion he should not get double-time credit for that. …. [ 31 ] With respect to the third custody period, the Crown asked the judge not to give the accused any credit because of his continuous breaching of his bail conditions, and alternatively, the Crown argued that the accused was “not entitled to a double credit.” The Judge’s Reasons [ 32 ] The judge found that the offences attracted a “high level of moral culpability” and noted the “substantial” harm done to the victim and her family, She summarized parts of the Gladue portion of the pre-sentence report, stating: …. ... [T]he accused was a member of, and residing at … Reserve.

Both his mother and grandmother attended residential schools. The probation officer described the community as one suffering from chronic housing shortages, high unemployment rates, and many family breakdowns, resulting in a number of single parent families. Employment opportunities are limited and a number of families are on social assistance. Specific to this accused, his father was described as an alcoholic, and physically abusive to the accused and his siblings. His father is now deceased. The accused’s mother is currently a Native Alcohol and Drug Addictions Program worker ....

She told the probation officer that the accused suffers from addiction issues including alcohol addiction. [ 33 ] She noted the accused’s criminal record includes offences relating to “previous domestic relationships.”

[34] She addressed the Crown’s submission that the break and enter should be treated like a home invasion: ... [T]he Crown characterized this offence as a home invasion. In support of her theory, she relied on the Manitoba Court of Appeal caseof R. v. Pakoo [2004 MBCA 157, 190 Man.R. (2d) 133] …. Although not neatly fitting within the criteria suggested to characterize acase as a home invasion, I find the comment made by Justice Freedman in the case of Pakoo to be helpful.

In that case, he stated, atparagraph 35: My view is that although what happened here was not literally, a “home invasion” robbery, as understood in Matwiy [(1996), 1996ABCA 63 , 178 A.R. 356] and Ross [(1999), (MB CA), 138 Man.R. (2d) 75], for all practical purposes itamounts to the same thing. . . . . . … [S]ince “home invasions,” as judicially defined, seem to be restricted to cases where robbery (and usually of strangers) is the motive,this case was not, strictly speaking, such a “home invasion.” [emphasis added] [35] The judge identified the aggravating factors: ….

The aggravating factors … include the nature and circumstances of the offences, the fact that the offences appear to have beenpreplanned and deliberate, the accused recruited the assistance of others in a sexual assault, the break and enter and obstruct justice weredirectly related to the sexual assault and exacerbated the offence. And even if this factor is not considered, these offences, on their own,are serious. [36] She then explained that the mitigating factors include “the fact that the accused has returned to religion while incustody. ....

He has the support of his mother and a positive relationship with his stepfather ... he has worked in the past and has theability to contribute to society.” [37] After identifying that the paramount sentencing principles were denunciation and deterrence, she stated that she had to“keep in mind the recent Supreme Court of Canada case of R. v. Ipeelee.” She quoted the following passage from Ipeelee: When sentencing an Aboriginal offender, a judge must consider the factors outlined in R. v. Gladue, that is, (

a) the unique, systemic orbackground factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types ofsentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his particular Aboriginalheritage …. [38] When addressing the appropriate sentence for the sexual assault, she referred to R. v. Sinclair (J.G.), 2010 MBCA 105,262 Man.R. (2d) 23: … [T]he circumstance of the offence and the offender are similar, but not identical, to those identified in the Manitoba Court of Appealcase of Sinclair. In that case, a sentence of eight years incarceration was upheld where the accused forcibly confined, bound the victim,and raped her at knifepoint.

In this case, the accused, in a premeditated manner, lured the [victim] to open her door, dragged the victimfrom her home, assaulted her, and had another person restrain her while he raped her. …. [39] As for the break and enter, she stated that “[e]ven if the break and enter does not constitute a home invasion, it stillattracts a very high level of moral blameworthiness. It was a premeditated attempt to terrify and demean the [victim], so that she wouldnot contact [the] police.”

[40] Given the consecutive sentences, she took a “final look” at the total sentence of 13 years and reduced the break andenter sentence by two years to take into account “the principles of totality and proportionality, in light of the Ipeelee case.” [41] Finally, she gave the accused 1,095 days credit for the time he spent in pre-sentence custody. The calculations for thiswere somewhat complicated.

This appeal concerns the second custody period for which she gave the accused “double credit ... until theTruth and [sic] Sentencing Legislation became effective, which was February 22nd of 2010,” after which the credit was based on “onefor one.” In this regard, she stated: The Crown maintains that because the Truth in Sentencing Legislation came into effect during this time, the accused should not be givena double credit. ....

In light of the accused’s constitutional right to the benefit of lesser punishment, I will give him double credit for the time he served upand until the Truth and [sic] Sentencing Legislation became effective, which was February 22nd of 2010. By my calculation, that was100 of the 299 days served. Therefore, the accused will be credited with 399 days for this period of time served. [42] For the remainder of his pre-sentence custody, the judge gave the accused credit on a one-for-one basis.

In the end,after deducting 60 of those days for time served on the breaches, she gave the accused credit for a total of 1,095 days, “or three years.” The Positions of the Parties [43] The Crown and the accused agree that the standard of review is one of deference and that this court should notintervene unless the judge committed an error in principle or the sentence is demonstrably unfit. This was explained in R. v. Ruizfuentes(H.S.), 2010 MBCA 90, 258 Man.R. (2d) 220 (at para. 7): As was stated in R. v.

L.M., 2008 SCC 31 , [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, at para. 14, an appellate courtmust show “great deference” when reviewing a sentencing decision. Upon the granting of leave, an appellate court can only interferewith a sentence in two circumstances: when the sentence is “demonstrably unfit”, “demonstrably inadequate or excessive”, or “clearlyunreasonable”, or when it has been arrived at as a result of an error in principle.

An error in principle includes failing to consider arelevant factor, taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing anappropriate factor. See R. v. Shropshire (M.T.), (SCC), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106W.A.C. 37; R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; R. v. Rezaie(M.) (1996), (ON CA), 96 O.A.C. 268; 112 C.C.C. (3d) 97 (C.A.); and R. v.

Solowan (K.S.T.), 2008 SCC 62, [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, at para. 16. “Unreasonableness” or“demonstrably unfit” in the sentencing context refers to an order falling outside the “acceptable range” of sentences under similarcircumstances. See Shropshire, at para. 50, and R. v. G.W., (SCC), [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. &P.E.I.R. 139; 550 A.P.R. 139, which is referred to at para. 14 of L.M.

The Accused [44] The accused says that the judge erred in principle by giving retroactive effect to the PSC amendments and, therefore,erred when she denied the accused two-for-one credit for the 199 days of the second custody period after the PSC amendments came intoforce. He relies on R. v. W.M., 2010 BCCA 370, 290 B.C.A.C. 154, and s. 5 of the Act. [45] He asserts that the Gladue component of the pre-sentence report was inadequate and, therefore, the judge did not havesufficient information to address the Gladue factors. As a result, he says that she was unable to fulfill her duty pursuant to s. 718.2(

e) ofthe Code. [46] Further, he argues that the judge did not consider the Gladue factors separately from the principle of totality as requiredby s. 718.2(c) (totality) and s. 718.2(e) (Aboriginal background) of the Code.

In this regard, he notes the judge’s reference to Ipeelee atthe end of her reasons when taking her “final look” for “the principles of totality and proportionality.” [47] He submits that the sentence of seven years for the sexual assault is demonstrably unfit given the circumstances of theoffence and the background of the accused and that the judge wrongly equated the circumstances in Sinclair to the circumstances here. [48] Finally, he asserts that the judge erred in principle by equating the break and enter to a home invasion robbery. [49] He seeks a total sentence, before pre-sentence credit, of six years.

He arrives at this by starting with five years for the

sexual assault, and adding four years consecutive for the break and enter (and concurrent sentences for the other offences), for a total of nine years, to be reduced by two years for totality and one year for Gladue factors. The Crown [ 50 ] The Crown acknowledges that the sentence is significant, but says that it is within an appropriate range for these offences and this offender.

It says that the offences were brutal and terrifying and the accused has a history of violence against women and was assessed a high risk to re-offend for further sexual and/or violent behaviour. [ 51 ] The Crown asserts that the judge appropriately considered the Gladue factors and the principle of totality, as required by the Code and the jurisprudence. She did not, the Crown submits, equate the sexual assault here to the offence in Sinclair , as argued by the accused. Rather, it says she simply found Sinclair to be helpful in reaching her decision, which she was entitled to do.

As for the break and enter, the Crown says that the judge understood that the offence was not a “home invasion,” as defined in the case law, but that she was entitled to consider the high level of premeditation and moral blameworthiness related to the break and enter of the victim’s home. [ 52 ] The Crown acknowledges that, given s. 5 of the Act , the PSC amendments did not apply in this case.

However, it asserts that the accused should not be granted two-for-one credit because the judge had discretion with respect to what credit to give to the accused for his pre-sentence custody and he met all the criteria for reducing credit from the norm of two-for-one, as set out in R. v. Vermette (I.M.) , 2001 MBCA 64 at para. 41 , 156 Man.R. (2d) 120 . Analysis and Decision with Respect to the Appeal Pre-Sentence Custody Credit [ 53 ]

Section 5 of the Act states that the PSC amendments apply “only to persons charged” after the date on which they come into force. Because the accused was charged before that date, the PSC amendments do not apply to him. As a result, the accused was entitled to have his credit for pre-sentence custody determined on the basis of the law before the PSC amendments came into force. Appellate jurisprudence to date supports this view. See R. v. Serdyuk (O.S.) , 2012 ABCA 205 , 533 A.R. 199 ; R. v. A.A.M. , 2013 NLCA 26 , 335 Nfld. & P.E.I.R. 199 ; R. v. Clarke , 2013 ONCA 7 , 115 O.R. (3d) 75 ; W.M. ; and R. v.

Preddy (T.S.) , 2011 BCCA 324 , 308 B.C.A.C. 254 . [ 54 ] The accused submits he should have received two-for-one credit for the 199 days in the second custody period following the date the PSC amendments came into force, just as the judge gave him two-for-one credit for the 100 days in the second custody period prior to that date. [ 55 ] The Crown submits that the accused should not receive the two-for-one credit for those 199 days, given his past record, he was in custody for breaches and he was assessed a high risk to reoffend and a potential danger to the community.

All of this, it asserts, made the accused an unlikely candidate for early release. [ 56 ] The difficulty with the Crown’s argument is that a similar argument was made by the Crown at the sentencing hearing with respect to the second custody period. Although the judge did not make specific reference to this submission, when I read her reasons in the context of the record, I can only conclude that she rejected this submission. Tellingly, she granted two-for-one credit for the first 100 days of the second custody period, before the PSC amendments came into force.

Furthermore, the Crown has not sought leave to appeal the judge’s exercise of discretion to award two-for-one credit for the first 100 days of the second custody period. [ 57 ] In my view, notwithstanding the error in principle, the judge’s approach to pre-sentence custody credit should be given deference to the extent that it can be, particularly given that there was no appeal on this point by the Crown.

Therefore, I would adjust the credit for the last 199 days of the second custody period to be consistent with the two-for-one credit given by the judge for the first 100 days of the second custody period. [ 58 ] Had the circumstances been that the accused committed the offences before the PSC amendments came into force, but was charged after that date, the question of whether the PSC amendments applied to the accused would be more complex. Appellate court jurisprudence to date is not consistent with respect to the meaning of the words “persons charged” in s. 5 of the Act .

In Serdyuk and A.A.M. , the Alberta Court of Appeal and the Newfoundland and Labrador Court of Appeal respectively, held that the PSC amendments have no applicability to any person who committed an offence prior to the coming into force of the Act . In contrast, the Ontario Court of Appeal in Clarke concluded that the PSC amendments apply to persons who are charged with an offence after the PSC amendments came into force, regardless of whether the date of the offence was prior to that date. The Supreme Court of Canada granted leave to appeal in Clarke . This issue is currently on reserve in this court in R. v.

Baron (16 October 2013), Winnipeg AR12-30-07840, pending the decision of the Supreme Court of Canada in Clarke . The Gladue Factors

[ 59 ]

Section 718.2(

e) directs that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” In Gladue , the Supreme Court of Canada addressed, for the first time, what this

section means when sentencing an aboriginal offender and the factors to be considered by a sentencing judge in those circumstances. These are known as the Gladue factors. [ 60 ] Later, in Ipeelee , the Supreme Court of Canada confirmed the statutory duty of sentencing judges to “consider the unique circumstances of aboriginal offenders” (at para. 87). As stated in Ipeelee , a failure to do so ( ibid. ) : …. … [R]uns afoul of this statutory obligation. … [S]uch a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality.

Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender … and a failure to do so constitutes an error justifying appellate intervention. [ 61 ] The unique circumstances of aboriginal offenders are both general and specific in nature. [ 62 ] Sentencing judges are entitled to take judicial notice of “ the broad systemic and background factors affecting Aboriginal people generally,” ( Ipeelee at para. 59 ).

LeBel J. explains that this provides important context for the sentencing judge, but it does not necessarily demand a different sentence (at para. 60): …. … [C]ourts 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. …. [emphasis added] [ 63 ] Sentencing judges are to receive the “case-specific information … from counsel and from a pre-sentence report” ( Gladue at para. 93 ) with respect to the specific offender. While the pre-sentence report is the usual method of presenting this information, it is not the sole source of relevant information.

Unless the Aboriginal offender waives his/her right to have the Gladue factors considered, counsel have a duty to advise the sentencing judge of relevant information. See Ipeelee at para. 60 ; and R. v. Wells , 2000 SCC 10 at para. 54 , [2000] 1 S.C.R. 207 . Also see R. v. Lawson (D.R.M.) , 2012 BCCA 508 at paras. 25-38 , 331 B.C.A.C. 123 . [ 64 ] Gladue applies to all aboriginal offenders, whether or not the offences are serious and violent. See Ipeelee at para. 84 . Nonetheless, the offence being sentenced will have a significant effect on the impact of the Gladue factors on the sentencing.

As explained by Iacobucci J. in Wells , “ s. 718.2 (

e) requires a different methodology for assessing a fit sentence for an Aboriginal person; it does not mandate, necessarily, a different result ” (at para. 44). In Gladue , the court stated that, “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing” (at para. 79). [ 65 ] As LeBel J. explained in Ipeelee (at para. 83 ): ….

Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence.

Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [emphasis added] [ 66 ] Therefore, systemic and background factors “may” have a bearing on the level of moral blameworthiness of the offender. See Ipeelee at para. 73 . Here, the judge found that the accused’s level of moral blameworthiness was very high and the key principles of sentencing were denunciation and deterrence.

In other words, given the circumstances of the offences, the judge did not accept that the Gladue factors should reduce the accused’s moral blameworthiness. I see no error in principle in this regard. Her finding is entitled to deference. [ 67 ] The accused asserts that the Gladue component of the pre-sentence report was inadequate to provide the judge with the unique systemic and background factors of the accused to enable the judge to fulfill her statutory duty.

[68] I disagree. While the pre-sentence report was lacking in some respects, as acknowledged by both counsel, it makesclear that the accused grew up in a disadvantaged community suffering from the effects of colonization, including rampant alcoholism. The colonization affected the accused’s family in many respects. While growing up, he lived with an abusive and alcoholic father. Hismother and grandmother attended residential schools.

For some of his schooling he was away from the community. [69] In addition to the pre-sentence report, the judge had the benefit of the submission of defence counsel who addressed theGladue factors in the context of the accused’s specific circumstances. [70] The judge reminded herself of the importance of the Gladue factors and referred to Ipeelee. In my view, thisdemonstrates that she understood her duty and the importance of taking judicial notice of the systemic and background factors affectingaboriginal people generally.

From the information presented to her by way of the pre-sentence report and defence counsel’s submission,she was able to address, and did, the accused’s background, particularly in the context of the challenges faced by the accused’scommunity and the accused himself. [71] This was not a sentencing where a remedial sentence was called for or where the nature of incarceration was a liveissue. Both counsel presented sentencing submissions that involved significant penitentiary time.

Therefore, in the context of thesentencing for this offender and these offences, I am of the view that the judge was adequately informed about the specificcircumstances of the accused to be able to fulfill her duty under s. 718.2(e). [72] The accused also argues that the judge erred in how she took into account the Gladue factors when sentencing him. Again, I disagree. The accused seems to be arguing that he was entitled to a specific reduction for the Gladue factors.

That is not whatGladue and Ipeelee contemplate. [73] As explained by LeBel J. in Ipeelee, “a judge’s fundamental duty [is] to fashion a sentence that is fit and proper in thecircumstances of the offence, the offender and the victim” (at para. 69). He reiterated the words of Cory J. and Iacobucci J. in Gladue (atpara. 71): …. … [Section] 718.2(

e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period ofincarceration, simply because the offender is aboriginal. …. [emphasis by LeBel J.] [74] This court explained this in Vermette (at para. 39): The

section does not mandate better treatment for aboriginal offenders than non-aboriginal offenders. It is simply a recognition that thesentence must be individualized and that there are serious social problems with respect to aboriginals that require more creative andinnovative solutions. This is not reverse discrimination. It is an acknowledgment that to achieve real equality, sometimes differentpeople must be treated differently. Other Grounds of Appeal [75] The judge may have misspoken when she referred to Ipeelee, in the context of her remarks with respect to totality. Inany event, I see no reversible error.

Importantly, her reasons, when read as a whole, demonstrate that she addressed Ipeelee and theGladue factors early in her analysis before she determined the appropriate sentence. She considered totality at the end of her analysis, asthe “final look” in the context of the sentencing as a whole. She did not err in finding that the break and enter was analogous to a homeinvasion robbery or by relying on R. v. Pakoo (K.G.), 2004 MBCA 157, 190 Man.R. (2d) 133, as argued by the accused.

She recognizedthat the break and enter offence was not a home invasion robbery, but rather, an offence involving the invasion of a home. I see noreversible error. Finally, the sentence of seven years for the sexual assault is not unfit. The offence was brutal, demeaning andpremeditated. She did not err by referring to Sinclair, where the sentence imposed was eight years.

The Fresh Evidence Motion [76] Section 683(1) of the Code provides the Court of Appeal with the power to admit fresh evidence “where it considers itin the interests of justice.” This is determined by the well-known criteria set out in Palmer et al. v. The Queen, (SCC),[1980] 1 S.C.R. 759 (at p. 775): 1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial. This is less strictly appliedin criminal cases.

2. The evidence must be relevant, that is, it must bear on a decisive issue. 3. The evidence must be credible, in the sense that it is reasonably capable of belief. 4. The evidence must be such that, if believed, it could reasonably be expected to have affected the result. [77] The Crown acknowledges that the new Gladue report is relevant, but argues that the accused has not satisfied the othercriteria.

Because I am of the view that the new Gladue report, if believed, could not reasonably be expected to have affected the result, Iwill only address this criterion. [78] The accused argues that the new Gladue report, if admitted, will provide the court with new and better informationpertinent to the accused and the history of the community and his family, especially in regard to the violence in the family home.

Heasserts that this new information will affect the sentence to permit a “culturally appropriate sentence.” [79] For example, the accused points to a discrepancy between the new Gladue report and the pre-sentence report withrespect to where the accused went to school. More particularly, he points out that the pre-sentence report does not indicate that he wentto residential school, while the new Gladue report does.

The pre-sentence report does indicate that the accused left the community for atime to go to school. [80] While the new Gladue report appears to be more extensive than the pre-sentence report, I am not persuaded that thenew Gladue report is new information that could reasonably be expected to have affected the result, if believed. As already determined,the judge had sufficient information to address her statutory duty under s. 718.2(e). She considered the Gladue factors, as she wasrequired to do.

I do not see how the new Gladue report could reasonably be expected to have affected the sentencing given the high levelof moral blameworthiness of the accused for these serious and violent offences, and the need to deter and denounce his conduct and toprotect the public.

These factors demanded a significant penitentiary sentence in the range of what was imposed. [81] For this reason alone, I would not admit the fresh evidence. [82] In conjunction with this appeal and the fresh evidence motion, the Crown requested that we set out guidelines for thepreparation of Gladue reports by Probation Services, as well as other report preparers. I am not prepared to do so for three reasons. First,the pre-sentence report, in conjunction with defence counsel’s submissions, enabled the judge to fulfill her statutory duty pursuant tos. 718.2(e).

Second, Probation Services has already implemented new guidelines and policies for the preparation of Gladue reports. Third, if this court is to provide guidelines about the preparation of Gladue reports, this should only occur in the context of a sentencingwhere a report is challenged at first instance, which was not the case here.

This would provide the necessary record for the appeal,including any evidence called by the parties and the reasons of the sentencing judge. [83] I do say that I am encouraged by the efforts of Probation Services to improve its approach to the preparation of Gladuereports and to take steps to address this court’s concerns articulated in R. v.

L.L.G., 2012 MBCA 106, 284 Man.R. (2d) 285, in whichMonnin J.A., writing for the court, wrote (at para. 35): … [J]udges cannot discharge that duty without the help of counsel and more so, in my view, the provincial resources to provide therequired information to both counsel and the courts. …. Procedure for Fresh Evidence Motions [84] Appellate courts have repeatedly stated that the appeal process cannot “be used routinely to augment the trial record”through fresh evidence on appeal. See R. v. McBirnie (P.S.) (1992), (ON CA), 59 O.A.C. 1 at para. 34; R. v.

G.D.B.,2000 SCC 22 at para. 19, [2000] 1 S.C.R. 520; and R. v. W.R.B., 2010 MBCA 116 at para. 4. For that reason, fresh-evidence motionswill be granted sparingly. [85] Notwithstanding the exceptional nature of the admission of fresh evidence, this court seems to be seeing more freshevidence motions. They can be procedurally cumbersome and often usurp much of the time allotted for the appeal.

By way of thefollowing brief comments, I wish to remind counsel of the applicable rules for fresh evidence motions and some procedures that mayhelp make the hearing of these motions more efficient. [86] The Court of Appeal Criminal Rules do not address the procedure for fresh-evidence motions.

Section 45 of these rulesprovides that: Civil rules apply

45 In matters not provided for in these rules, the Court of Appeal Rules , (Civil and Language), with necessary modifications, apply wherever they are applicable. [ 87 ] Court of Appeal Civil Rule 21 addresses the procedure for a party applying to introduce “Further evidence.” [ 88 ] A notice of motion is required. It is to be accompanied by a supporting affidavit that sets out the following: 1) the general nature of the fresh evidence; 2) the way in which the fresh evidence is likely to be determinative of the appeal; and 3) why the fresh evidence was not introduced at the proceeding from which the appeal lies.

See Rule 21(3). [ 89 ] The proposed fresh evidence is included in, or attached to a further affidavit that is to be placed in a sealed envelope to be kept separate by the Registrar of the court. See Rule 21(4). [ 90 ] The court expects that the parties will file motion briefs. [ 91 ] Unless otherwise ordered by the court, all the material related to the motion is to be filed and served by the moving party no later than 14 days before the appeal hearing. See Rule 21(6). The material of the party responding is to be filed within seven days after service.

See Rule 21(7). [ 92 ] The fresh evidence motion is heard at the same time as the appeal. See Rule 21(2). [ 93 ] The panel assigned to the appeal reviews the notice of motion, the supporting affidavit and the motion briefs prior to the appeal hearing. The panel does not have the sealed envelope, and, therefore, does not read the proposed fresh evidence. If counsel for the party responding to the motion agrees in writing that the sealed envelope may be opened prior to the appeal hearing, the panel will review the proposed fresh evidence.

This is helpful in the circumstances where submissions on the motion will be made with respect to the specific contents of the proposed fresh evidence. [ 94 ] Any cross-examinations on supporting affidavits should take place prior to the hearing. Transcripts should be filed by the party who wishes to rely on the cross-examination. Where counsel wishes to conduct a cross-examination on an affidavit before the panel (which is a rare occurrence), prior permission should be obtained by contacting the Registry Office.

Conclusion [ 95 ] The judge had adequate information about the Gladue factors to enable her to fulfill her duty pursuant to s. 718.2 (

e) of the Code . As she was required to do, she considered the Gladue factors before deciding the appropriate sentence for each offence. She appropriately considered totality as that “final look,” after determining that consecutive sentences were appropriate for the sexual assault and the break and enter. She gave thoughtful and clear reasons for her sentence. [ 96 ] Because the accused was charged for these offences prior to the coming into force of the PSC amendments, the judge erred when she applied the PSC amendments to the accused when determining the credit to be given to him for pre-sentence custody.

Because her sole reason for not granting two-for-one credit for the last 199 days of the second custody period was the coming into force of the PSC amendments, I would allow the sentence appeal to that limited extent, and credit the accused with double credit for those 199 days. The effect is that the accused is entitled to 1,294 days, rather than 1,095 days of credit for pre-sentence custody. [ 97 ] I would grant leave to appeal. I would dismiss the appeal except as just noted with respect to the credit for pre-sentence custody. J.A. I agree: J.A. I agree: J.A.