R v Gamble, 2021 SKCA 72

Court of Appeal for Saskatchewan Docket: CACR3342 Citation: R v Gamble, 2021 SKCA 72Date: 2021-05-03 Between:Matthew Junior GambleAppellantAndHer Majesty the QueenRespondentBefore: Richards C.J.S., Caldwell and Kalmakoff JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Chief Justice RichardsIn concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice KalmakoffOn appeal from: 2020 SKQB 16, SaskatoonAppeal heard: October 8, 2020Counsel: Laura Mischuk for the Appellant Kelly Kaip for the Respondent Richards C.J.S. I.

Introduction [1] Matthew Gamble, an Aboriginal man, was convicted of two serious criminal offences. The trial judge directed the preparationof a pre-sentence report [PSR] with an emphasis on Gladue considerations. See: R v Gladue, (SCC), [1999] 1 SCR 688[Gladue]. After reviewing the PSR and consulting with counsel, the trial judge expressed concerns about its completeness, particularly inits coverage of Gladue issues. He directed that the PSR be revised. When the revised report was received, the trial judge again obtainedinput from counsel.

He concluded that the revised version of the PSR still had weaknesses, including weaknesses with respect to Gladuematters, and directed a further round of revisions. When the third version of the PSR was received, Mr. Gamble remained unsatisfied withit and applied for an order directing that a “Gladue Report” be prepared. [2] The trial judge declined to make the order requested. He found that the information made available to him by way of therevised and expanded PSRs was sufficient to allow for the required consideration of relevant Gladue factors and the proper application ofs. 718.2(

e) of the Criminal Code. He went on to impose a sentence involving a significant period of incarceration. [3] Mr. Gamble appeals his sentence. He argues that the trial judge erred by failing to order a Gladue report so as to ensure thathe had sufficient information to properly address Gladue considerations. He contends that the sentence imposed on him is demonstrablyunfit. [4] As explained below, Mr. Gamble’s appeal must be dismissed. The trial judge made no error in proceeding as he did. He actedreasonably in deciding that a Gladue report was not necessary. II. BACKGROUND A. The offences [5] On May 16, 2017, Mr.

Gamble and two other men – all members of the Indian Posse street gang – attacked Julian Desjarlaisand dragged him down the entry stairs to a suite in the basement of a house in Saskatoon. [6] Mr. Desjarlais was held against his will, beaten and threatened with death. Mr. Gamble, the ringleader of the attackers,branded Mr. Desjarlais with knives heated on a stove, burning “IP” (Indian Posse) and “TSK” (Terror Squad Killers) into his chest. Mr.Gamble also cut off the end portion of Mr. Desjarlais’s left-hand ring finger. The torture lasted for hours and ended only whenMr.

Desjarlais broke a window and escaped. [7] Mr. Gamble was convicted of aggravated assault contrary to s. 268(1) of the Criminal Code and confinement without lawfulauthority contrary to s. 279(2) of the Criminal Code. B. The First PSR [8] After Mr. Gamble was convicted, his counsel requested a PSR. She said this: …We would have some Gladue concerns to bring up at sentencing, so we spoke about the possibility of a Gladue report. It’s myunderstanding that with a Legal Aid file, they won’t fund that in these situations, and Mr. Gamble wouldn’t have the funds for that. So wespoke about that.

So in light of that, I would be asking for a PSR and I’ve spoke [sic] to my friend about this, and I believe he’s inagreement, and we would ask that the writer canvass, at length, Gladue factors in that PSR. Hopefully, that would be akin to a Gladuereport within that PSR.

[ 9 ] The trial judge responded by indicating that he had jurisdiction to order a “stand-alone, state-funded, Gladue report” but that in most cases the starting point is a PSR that explores Gladue considerations. He noted that, if for some reason the PSR was not adequate, “we can go to the next step”. Mr. Gamble’s counsel advised that this approach seemed fair. [ 10 ] The trial judge then made an order for a PSR “in the standard form, but with the additional emphasis on a canvassing of any potential Gladue factors that might affect this offender”.

The proceedings were adjourned to allow for the preparation of the report. [ 11 ] Mr. Gamble was interviewed by the report writer. She also interviewed Mr. Gamble’s sister and officials with Saskatchewan Polytechnic, the Saskatoon Correctional Centre, and Carmel House, a Saskatoon group home. In addition, the writer consulted various records relating to Mr. Gamble’s criminal history. [ 12 ] The PSR [First PSR] was dated April 1, 2019.

It was 10 pages (5,543 words) long and organized under the headings Family and Social Relationships, Health, Training and Employment, Criminal Involvement, Gladue Factors, Criminogenic Risk Assessment, and Intervention Strategies. C. The Second PSR [ 13 ] The trial judge reviewed the First PSR and conferred with counsel. He then issued a fiat wherein he expressed concerns about the adequacy of the First PSR, primarily in relation to Gladue considerations. By way of illustrations of those concerns, the judge noted in his fiat that (

a) it was unclear whether Mr. Gamble had attended a residential school and, if so, where, (

b) there could be further explanation of how Mr. Gamble’s offending had affected his home community, (

c) there could be further examination of how the involvement of Mr. Gamble’s stepfather in gang activities had affected Mr. Gamble’s criminality, (

d) the report seemed to contain a contradiction in that Mr. Gamble said that he had walked to attend a residential school, and (

e) clarification was required on the question of whether Mr. Gamble did, or did not, have a daughter. As a result, the trial judge adjourned the sentencing hearing and made the following order: This matter is remitted back to the Ministry of Justice, Custody, Supervision and Rehabilitation Services, for a revised Pre-Sentence Report to be prepared. The revised report is to address any internal inconsistencies in the current report, and shall provide further and better Gladue information. [ 14 ] A revised and expanded PSR [Second PSR] dated April 25, 2019, was prepared. It was 12 pages (6,706 words) long. D.

The Third PSR [ 15 ] There were further consultations involving counsel and the trial judge after the Second PSR was received. Those consultations led the trial judge to issue another fiat. In it, he noted that Mr. Gamble’s counsel had raised some concerns about the Second PSR. The trial judge indicated his agreement that “some matters remain unclear” and directed additional work by ordering as follows: – There could be further exploration of how Mr. Gamble’s offending has affected his home community which I take to be Beardy’s, as the report states he spent little time on Thunderchild.

This should be done by interviewing Mr. Gamble on the subject. If he has little or no information, then that should be reported. If he imparts information, then that should be reported. If he does provide information that can be confirmed or refuted in some manner, that should be done. – In the second-revised PSR there should be an exploration of how Mr. Gamble’s step-father’s gang involvement led to his own criminality and involvement in the same gang. I could not find this in the first-revised PSR. Again, this should involve re-interviewing Mr. Gamble on this particular point. Through counsel, Mr.

Gamble asserts he was not interviewed about this at all by the author of the PSR. – It was previously pointed out that on page 7 of the original report states Mr. Gamble indicated he was in a residential school near Rosthern, but states “he had to walk to school by himself”. If he was in a residential school, why would he be walking to school and where was he walking from? If the nearest residential school was actually in Duck Lake, is Mr. Gamble asserting he walked from his home to Duck Lake at age four? It remains difficult to resolve this contradiction from the face of the report and, again, perhaps Mr.

Gamble ought to be re-interviewed to clarify. If the matter remains unclear the author of the report should simply state this is so, and the Court will be left to draw its own inferences. [ 16 ] The sentencing hearing was adjourned again. [ 17 ] In response to the fiat, the report writer produced a 13-page (7,868-word) revision [Third PSR]. She re-interviewed Mr. Gamble in the course of putting it together. E. The application for a Gladue report [ 18 ] After the Third PSR was received, Mr.

Gamble’s counsel filed a notice of application seeking an order requiring the production of a “ Gladue Report” to be prepared by “ Gladue Report writer Lisa M. Hill…and to be funded by Court Services”. The basis for seeking the order was explained as follows in the notice of application: 5. Upon receipt of the second updated PSR, it is Mr.

Gamble’s position that Gladue factors still have not been adequately addressed and that a PSR is not an appropriate tool to adequately address his Gladue factors; as such, a Gladue Report is now required to have the proper information before the court for sentencing purposes. [ 19 ] The application was supported by the affidavits of Mr. Gamble himself and of Lisa Hill. In his affidavit, Mr. Gamble explained

his reason for seeking the order by stating as follows: 5. THAT upon receipt of the second updated PSR and discussing same with my counsel, I have instructed my counsel to apply for an order to have a Gladue Report prepared by writer Lisa M. Hill and funded by Court Services because the revisions proposed in the Fiats dated April 1, 2019 and June 10, 2019 have still not been appropriately addressed in the second PSR update. 6. THAT I am a 36-year-old Status Aboriginal man registered to Thunderchild First Nation.

I have experienced numerous events and circumstances in my life that are considered Gladue factors which are of interest to this Honourable Court as part of my sentencing submissions. [ 20 ] When the application was argued, Ms. Hill and Professor Jane Dickson were called to testify. [ 21 ] In a decision reported at 2019 SKQB 327 , the trial judge declined to order the production of a publicly-funded Gladue report. He began his decision by commenting on the evidence advanced in support of Mr. Gamble’s application. It is safe to say that he had reservations about that evidence. [ 22 ] As for Mr.

Gamble’s own affidavit, the trial judge noted that Mr. Gamble had not set out the circumstances that were said to suggest a Gladue report was required. [ 23 ] Turning to Ms. Hill’s evidence, the trial judge noted that she described herself as an “approved Gladue Report writer” but did not say by whom she had been approved. The trial judge also recounted that, in her affidavit, Ms. Hill had averred that Gladue reports were superior to PSRs. She also testified that, in her view, a PSR is mainly a predictor of the risk of reoffending and offers little insight as to why the offending occurs.

She maintained that PSR authors have limited time to devote to the preparation of a report and do not obtain full disclosure from the offender in issue. [ 24 ] The trial judge then observed that some of Ms. Hill’s information was incorrect, at least in relation to current approaches to the preparation of PSRs. He found that PSRs frequently have significantly more Gladue -type information than Ms. Hill believed to be the case and that, contrary to her belief, PSR writers receive training. The trial judge also noted that, while it might have been a slip of the tongue, Ms.

Hill had referred to the subject of a Gladue report as a “client” and, when questioned about it, had said that she “looks for healing recommendations to make to the court”. The trial judge suggested that this might not be the appropriate perspective, especially when there are no national standards for the writing of Gladue reports. [ 25 ] Professor Dickson was qualified as an expert witness able to give testimony about Gladue reports. The trial judge observed that her experience with PSRs was limited and that she had never written one. She had, however, authored approximately 70 Gladue reports.

Professor Dickson was critical of the PSRs prepared in relation to Mr. Gamble’s sentencing.

As summarized by the trial judge, at paragraph 32 of his decision, her view was that a proper exploration of Gladue issues would have included the following: • Inter-generational information pertaining to the offender, going back a minimum of three generations. • Information regarding the community from where the offender came. • Foundational information regarding the community, culture and that First Nation. • A discussion regarding the offender’s parents and grandparents, especially if they attended residential school, were involved with treaties, and had a relationship with the offender.

What she termed “historically devastating events” should be canvassed with these people, including trespass or “settler illness”. • A review regarding an offender’s siblings and children should be conducted in depth. • Consideration is to be given to historical and proximate trauma affecting memory. • Genealogical clarity is a must. [ 26 ] The trial judge was disinclined to accept Professor Dickson’s views on this matter because of his concern that there are no national standards for what should be contained in a Gladue report and because there was no evidence before him as to the validity of Professor Dickson’s standards.

The trial judge was also dubious about how Professor Dickson saw an offender’s role, or obligations, in relation to the preparation of a Gladue report. He said this: [36] Further in cross-examination, while Professor Dickson agreed there was an onus on an offender to fully participate in the obtaining of Gladue information, she felt there was also an onus on the report writer to create an “atmosphere of disclosure”.

On this point, Professor Dickson avoided answering the question directly as to an offender’s duty to disclose and kept diverting the issue to the writer, notwithstanding her earlier admission that she had absolutely no actual knowledge of this PSR writer’s methodology. When I finally asked her whether, assuming the report writer created an “atmosphere of disclosure” the subject had a duty to cooperate and disclose Gladue information (which would likely work to his benefit), Professor Dickson indicated that “it remains the right of the person to tell you or not”.

She did not feel an offender had an onus or duty to disclose this information. She only went so far as to say that if the offender understands the importance of such information, she would hope he would participate in the report process. [ 27 ] Having reviewed the evidence relied on by Mr. Gamble, the trial judge turned to an analysis of the merits of the application before him. He began by indicating that he had no difficulty concluding he had the authority to order a publicly-funded Gladue report.

The issue, as he saw it, was whether he should exercise that authority. [ 28 ] The trial judge indicated, at paragraph 44, that it was “presently unclear as to why such a report is being sought”. He observed that the form in which the required Gladue information was presented to the Court mattered “far, far less” than the information itself. He

declared himself unconvinced that such information was lacking. [ 29 ] The trial judge went on to say it was unclear by what standard Mr. Gamble was arguing that the information in the Third PSR was inadequate. He saw the lack of standards for the preparation of Gladue reports to be a major flaw in Mr. Gamble’s argument and observed that the type of Gladue information required in any particular case is highly fact-dependent. He was not prepared to give effect to Professor Dickson’s assessment of the matter before him because her views about the appropriate content of a Gladue report were no more than her views.

He went on to say this: [51] What this means for the case at bar is that I do not have evidence that permits me to draw the inferences Mr. Gamble’s counsel wishes me to draw. I cannot say that Professor Dickson’s standards are the best, or that they are accepted throughout Canada, or that anyone offering Gladue information to a court must (or even should) first be trained by Professor Dickson or according to her standards. There is no evidence before me to that effect. There is judicial recognition to the contrary.

See, for example, paragraph 20 of R v Desjarlais , 2019 SKQB 6 . [52] I also cannot draw the inference that PSRs are generally inadequate to set forth proper Gladue information. I cannot find or infer that only a full Gladue Report, fuelled by Professor Dickson’s type of training, can do this. Again, there is no evidence before me from which I could make such an inference. Professor Dickson was not qualified to comment upon the efficacy of PSRs. [53] I cannot infer that the PSRs prepared and filed in this case are inadequate.

Professor Dickson likely believes that is the case, but for the reasons already stated, I have no basis to accept her opinion over any other. [ 30 ] The trial judge made some additional points toward the end of his decision. First, he observed that Gladue information did not have to come before the Court in the form of a report. In this regard, he said that there would be nothing wrong, and much to commend, defence counsel obtaining information from their clients and passing it on to the sentencing judge.

He commented that defence lawyers should be able to provide submissions on Gladue issues just as they do with other sentencing issues. Second, the trial judge indicated that, if he had been disposed to order a Gladue report, he would have found it inappropriate to order that it be prepared by a particular person, in this case Ms. Hill.

Rather, he saw the issues of who should prepare a report and how much they should be paid for doing so as matters to be settled between the executive branch of government, in other words Court Services, and the offender. [ 31 ] In concluding, the trial judge rejected the proposition that a Gladue report will inevitably be superior to a PSR. He found that the Gladue information presented to him by way of the PSRs was adequate: [66] That is not the case here. The PSRs on file provide substantial information. Mr. Gamble’s affidavit fails to identify the issues with that information.

His lawyer was not so much specific as to what was lacking as insistent there was a better way to get the information; that is, by commissioning a full Gladue Report at state expense. This ignores that the PSRs supply the required information and, even if there are “gaps”, they can be filled through counsel or with evidence from Mr. Gamble himself. There are alternatives to a full Gladue Report. … (Emphasis added) F. The sentencing decision [ 32 ] Having dealt with the issue of the Gladue report, the trial judge then received submissions about the nature of an appropriate sentence.

He reserved his ruling and, a month later, provided a detailed sentencing decision. He began by reviewing Mr. Gamble’s difficult personal background and his legal and carceral history. The trial judge then set out the relevant sentencing principles and went on from there to comment on what he saw as the applicable mitigating factors. These included Mr.

Gamble’s unfortunate upbringing and family background, his expression of remorse and the fact that he had very recently consulted with STR8 UP, an organization that assists individuals to remove themselves from gang lifestyles. [ 33 ] The trial judge addressed Gladue factors under a separate heading. He started with a discussion of the principles that inform the place of such factors in the determination of an appropriate sentence. (Mr.

Gamble takes no exception to anything that the trial judge said in this regard.) The trial judge then went on to confirm that he considered himself to be in possession of sufficient information to assess and address the Gladue considerations relating to Mr. Gamble’s situation. In this regard, he wrote as follows: [55] In the case at bar, I was (and am) satisfied that I ultimately had sufficient information to properly assess Gladue factors affecting Mr. Gamble. Counsel and the author of the pre-sentence reports have provided me with enough information in this regard.

Had I not been satisfied, I would have canvassed the issue with counsel and contemplated obtaining more information. It was evident that the lawyers before me were properly prepared for this sentencing and had given due consideration to all live issues. [ 34 ] At the end of the day, the trial judge was satisfied that “the proper foundation for a consideration of the Gladue principles and of s. 718.2 (e)” had been provided (at para 56). In light of those factors, he concluded that “to some degree at least, Mr.

Gamble’s moral blameworthiness is reduced or mitigated” (at para 56). [ 35 ] The trial judge then turned to the aggravating factors in the case before him. In this regard, he pointed most significantly to (

a) Mr. Gamble’s extensive criminal record featuring a pattern of violent crimes and disobedience of court orders, (

b) Mr. Gamble’s gang affiliation, (

c) the fact that the offences involved confinement, severe violence, mutilation, death threats, and torture extending for hours, (

d) Mr. Gamble’s role as the ringleader of the men who perpetrated the attack, and (

e) the marked and lasting impact of the attack on the victim, Mr. Desjarlais. [ 36 ] After reviewing a number of cases that shed light on the question of what might be an appropriate sentence, the trial judge imposed a global sentence of 7.5 years less 960 days’ credit for time spent in pre-trial custody for the aggravated assault and the same sentence, to run concurrently, for the confinement without authority offence. He wrote as follows: [97] Notwithstanding my careful assessment and consideration of Mr. Gamble’s personal circumstances and the Gladue factors leading

me to find that there is some diminishment of his moral responsibility, I conclude that in the circumstances of this case he is a highly culpable individual. The sentence I am about to impose is intended to be proportionate to his overall responsibility, or moral blameworthiness.

As well, I have at the forefront of my mind that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. [98] I am entirely satisfied that general and specific denunciation and deterrence, as well as protection of the public, are the primary sentencing principles applicable to this case. Mr. Gamble’s confinement, assault, torture and maiming of the victim along with the other gang members, and his inducement of terror in his victim, are disgusting.

No right-thinking person could countenance his actions, or believe that his actions are excused or even explained by his upbringing. While the proper application of the Gladue and other personal factors do diminish his moral responsibility to a degree, none of this operates to excuse Mr. Gamble. He is still a relatively young man, with time to change. It is time for him to take ownership of his actions and his behaviour, and decide what sort of a person he wants to be in the future. The trial judge also made DNA and firearms orders. III. ANALYSIS [ 37 ] Mr.

Gamble submits that the trial judge erred by not ordering the preparation of a Gladue report. In his view, that error led the trial judge to impose a demonstrably unfit sentence. Mr. Gamble asks that his prison term be reduced to one of five years less credit for time served in pre-trial custody. [ 38 ] In order to deal with Mr. Gamble’s arguments, it is useful to begin by confirming some of the basic features of the sentencing approach contemplated by s. 718.2 (

e) of the Criminal Code . That done, I will turn to the specifics of this case. A.

Section 718.2(e) [ 39 ]

Section 718.2(

e) of the Code provides as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 40 ] In Gladue and R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ], the Supreme Court affirmed that s. 718.2(

e) is designed to ameliorate the problem of overrepresentation of Aboriginal peoples in Canadian prisons. The Court held that it requires judges to use a different method of analysis for determining a fit sentence for an Aboriginal person ( Ipeelee at para 59 ). That methodology focusses on the unique circumstances of an Aboriginal offender that could reasonably and justifiably affect his or her sentence. [ 41 ] Speaking more particularly, systemic and background factors may bear on the culpability or moral blameworthiness of the offender and thereby impact the nature of a fit sentence ( Ipeelee at para 73 ).

As well, consideration of the types of sentencing procedures and sanctions that may be available might suggest that an alternative to a custodial sentence can achieve the necessary sentencing objectives. See: R v Chanalquay , 2015 SKCA 141 at paras 39–41 , [2016] 4 WWR 242 [ Chanalquay ]. [ 42 ] There is no discretion in any of this. The sentencing judge must consider the situation of an Aboriginal offender ( Ipeelee at para 86 ). As the Supreme Court said in Ipeelee at paragraph 85 , “the only discretion concerns the determination of a just and appropriate sentence”. [ 43 ] All of that said, s. 718.2(

e) is not an unvarnished direction to impose shorter sentences on Aboriginal offenders. That point was made as follows in Chanalquay : [38] Further, and relatedly, s. 718.2(

e) and the Gladue analysis mandated by it do not automatically trump or displace other sentencing considerations and objectives. More particularly, s. 718.2(

e) does not require that Aboriginal offenders always be sentenced in a manner which gives greatest weight to the principles of restorative justice, as opposed to goals such as deterrence, denunciation and separation ( Gladue at para 78 ). As the Supreme Court has said, “The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances” ( Gladue at para 81 ). In other words, Gladue considerations should not drive a judge to ignore other sentencing principles and objectives.

The question in sentencing an Aboriginal offender, as for other offenders, will always be “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?” (Emphasis in original) ( Gladue at para 80 ) [ 44 ] An obvious question arises from all of this. How is a judge to obtain the information required to make a sentencing decision as per the dictates of Gladue and Ipeelee ? The Supreme Court has provided guidance on this front.

As for the broad systemic and background factors affecting Aboriginal people generally, Ipeelee instructs that sentencing judges have an obligation to take judicial notice of such matters: [60] 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. …

(Emphasis in original) [ 45 ] With respect to the information bearing particularly on the individual offender who is before a sentencing judge, Ipeelee , at paragraph 60 , advises that “[c]ounsel 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”. This echoes the comment in Gladue to the effect that “it will be extremely helpful to the sentencing judge for counsel on both sides to adduce relevant evidence.

Indeed, it is to be expected that counsel will fulfil their role and assist the sentencing judge in this way” (at para 83). There are, self-evidently, various ways in which this can be done: (

a) evidence from the offender; (

b) evidence from other individuals in possession of relevant information (for example, the particulars of the offender’s background, existing situation, treatment needs, programming options and so forth); (

c) the submissions of counsel; and (

d) reports prepared specifically for the purpose of presenting relevant information to the sentencing judge including, of course, a PSR prepared as per s. 721 of the Criminal Code . See: R v Park , 2016 MBCA 107 at para 27 , 343 CCC (3d) 347; R v Peekeekoot , 2014 SKCA 97 at para 118 , 446 Sask R 22 [ Peekeekoot ]. [ 46 ] Gladue also instructs that, when counsel do not adduce the necessary evidence, “it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person” (at para 84).

Similarly, the Court observed in R v Wells , 2000 SCC 10 at para 54 , [2000] 1 SCR 207, that “even where counsel do not provide the necessary information, s. 718.2(

e) places an affirmative obligation upon the sentencing judge to inquire into the relevant circumstances”. See also: R v Wolfleg , 2018 ABCA 222 at para 61 , 363 CCC (3d) 168 [ Wolfleg ].

All of this is no doubt rooted in s. 723(3) of the Criminal Code which provides that a sentencing judge may, on his or her own motion, after hearing argument from the prosecutor and the offender, “require the production of evidence that would assist [him or her] in determining the appropriate sentence”. [ 47 ] The overriding imperative in all of this is to ensure that the sentencing judge has the benefit of the information necessary to allow him or her to give meaningful effect to s. 718.2(e). The emphasis in this regard must be on substance not form, on content not packaging.

It matters not whether the relevant information comes before the sentencing judge in a document with the label “ Gladue report” or whether it comes before him or her in a PSR or, for that matter, by way of the testimony of the offender, the submissions of counsel, or some other way or combination of ways. The question will always be whether, at the end of the day, the judge has the information necessary to allow him or her to give effect to s. 718.2(e).

See: Peekeekoot at para 118 ; R v Lawson , 2012 BCCA 508 at paras 26–27 , 294 CCC (3d) 369; Wolfleg at para 52 ; R v Bonnetrouge , 2017 NWTCA 1 at para 24 . [ 48 ] The term “ Gladue report” in the context of s. 718.2(

e) is typically understood to be a reference to a special kind of PSR – one focused on those dimensions of an offender’s background, life experience, community, needs and treatment possibilities that directly engage s. 718.2(e). See: Kent Roach and Jonathan Rudin, “Sentencing Indigenous Offenders: From Gladue to the Present and Beyond” in David Cole and Julian Roberts, eds, Sentencing in Canada: Essays in Law, Policy, and Practice (Toronto: Irwin Law, 2020) at 226.

At least in Saskatchewan, it is usually assumed that a Gladue report will be prepared by someone independent of what is currently known as the Custody, Supervision and Rehabilitation Services Division of the Ministry of Corrections, Policing and Public Safety, the branch of the public service that prepares PSRs. [ 49 ] There is a general sense that Gladue reports delve more deeply and completely into s. 718.2(

e) issues than do PSRs. However, this is not necessarily the case because, as the trial judge noted, there is no prescribed standard with respect to the content of a Gladue report. For example, in R v Whitehead , 2016 SKCA 165 at para 43 , 344 CCC (3d) 1 [ Whitehead ], Caldwell J.A. pointed out that the PSR and the Gladue report that had been submitted in that case were “substantially the same”. A document called a “pre-sentence report” does not cease to be a PSR if it contains a thorough treatment of Gladue issues.

Conversely, a document called a “ Gladue report” does not shed that label if, for some reason, it is inadequate or superficial. The point, to repeat, is that the focus under s. 718.2(

e) must always be on the content of the report in issue, not on the title found on its cover. [ 50 ] In Saskatchewan, formal Gladue reports prepared at public expense are ordered only exceptionally. See: Peekeekoot at para 118 ; R v Peepeetch , 2019 SKQB 132 at para 28 , [2020] 2 WWR 341. This is as it should be. The proper approach in this area is the one that was taken by the trial judge in this case. A judge should direct the preparation of a PSR as he or she sees appropriate.

If, at the point of providing that direction, there are particular Gladue -type issues that the judge sees as being especially important, he or she might wish to include a special instruction that the PSR speak to those issues. If the offender is an Aboriginal person, and regardless of whether the judge has provided a special instruction about Gladue factors, the PSR should contain an examination of such factors and other information relevant to the application of s. 718.2(e).

If the judge feels the treatment of those issues in the PSR is insufficient or lacking in necessary depth, he or she is at liberty to direct that the PSR be expanded or that additional kinds of information be included in it. A Gladue report, prepared by a third party at public expense, should be ordered only in circumstances where a sentencing judge concludes that the information necessary to give effect to s. 718.2(

e) cannot be reasonably or practicably obtained by way of a PSR or, for that matter, reasonably or practicably obtained by way of the testimony of the offender, the submissions of counsel, or some other way or combination of ways. [ 51 ] I note as well that the nature of the information that will be necessary or relevant to a Gladue analysis cannot be determined in the abstract. As the trial judge observed, the particulars of what is essential may well vary from case to case.

For example, in a situation where a conditional sentence or a term of probation might be an appropriate sentencing response to an offence, the sentencing judge will want to understand what programming and other options might be available in the offender’s community in order to assess whether it is possible to accomplish the relevant sentencing goals by employing sanctions short of imprisonment. However, by way of contrast, if the offence in issue clearly calls for a sentence involving penitentiary-length jail time, there will be no need to inform the judge of these kinds of programming options.

This case illustrates the point. Mr. Gamble’s crimes self-evidently demand a reasonably long penitentiary sentence and, even though the PSRs made no reference to community programming options, Mr. Gamble quite properly does not suggest they are inadequate because of that. B. The merits of Mr. Gamble’s argument [ 52 ] As noted, Mr. Gamble’s main argument is that the trial judge erred in deciding not to direct the preparation of a Gladue report. The Crown does not dispute the trial judge’s authority to order the report requested by Mr. Gamble.

Rather, it contends the report was not necessary and that, as a result, the trial judge made no error in proceeding as he did.

[53] The first step in dealing with Mr. Gamble’s submission involves the identification of the applicable standard of review. Thegeneral standard of review framework to be used in the sentencing context was recently laid out as follows by the Supreme Court in R vFriesen, 2020 SCC 9, 444 DLR (4th) 1 [Friesen]: [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrablyunfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44).

Errors in principleinclude an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. Theweighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight toanother, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C.(3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49).

Not every error in principle is material: an appellate court can onlyintervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error inprinciple had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if thesentence is demonstrably unfit. [54] The question is how the Friesen framework applies in the circumstances at hand. In this regard, I accept that sentencing judgesdo not enjoy a wholly open-ended discretion in relation to ordering the preparation of Gladue reports.

Rather, they must exercise theirdiscretion with a view to their overall responsibility of ensuring that s. 718.2(

e) can be meaningfully taken into account in the particularcircumstances of the case at hand. The reality, of course, is that the factual record relevant to the application of s. 718.2(

e) will never beabsolutely complete. Perfect comprehensiveness is an unattainable standard. This means that, of necessity, sentencing judges must usepractical judgment and common sense in answering the question of whether Gladue considerations have been sufficiently fleshed out toallow them to fairly and properly act on s. 718.2(e). This is not to say for a moment that judges can ignore the dictates of Gladue andIpeelee. It is simply a recognition of the fact that they must, unavoidably, exercise a measure of discretion in deciding whether a Gladuerecord is acceptably complete.

Appellate review of sentencing decisions must take account of that reality. [55] All of this leads me to conclude that a sentencing judge’s decision about whether to accede to a request for the preparation of aGladue report should be reviewed on the standard of reasonableness. In other words, an unreasonable refusal to direct the preparation of aGladue report should be seen as an error of principle in the same vein that, as Friesen provides, an unreasonable weighing or balancing ofrelevant sentencing factors is an error of principle.

The reasonableness of a sentencing judge’s decision in this regard must be assessedagainst all of the relevant circumstances including, most centrally, the specific kinds of information that a Gladue report might add to thesentencing record and the utility and importance of that information to the specific sentencing decision being addressed.

It will also beimportant to consider whether such information might have been practicably obtained by alternate means such as, for example, a revised orexpanded PSR, as discussed above at paragraph 50. [56] It follows that, in this case, the key point is whether the trial judge acted unreasonably in denying Mr. Gamble’s application foran order directing the preparation of a Gladue report by Ms. Hill. If it is established that the trial judge acted unreasonably in light of allthe surrounding circumstances, it will then be necessary to determine whether the decision to deny Mr.

Gamble’s request for a Gladuereport had an impact on the sentence imposed. If that was the case, then this Court will be required to intervene. [57] In my view, the trial judge’s decision on Mr. Gamble’s request for a Gladue report was not unreasonable. First, the trial judgewas entitled to, and indeed required to, take judicial notice of the systemic and background factors affecting Aboriginal people. [58] Second, and most significantly, the trial judge had, by virtue of three PSRs, a considerable amount of information about Mr.Gamble’s specific background, upbringing, family circumstances and so forth.

All of that revealed quite clearly how the legacy ofcolonialism, displacement and lack of opportunity had affected Mr. Gamble personally. While, of course, more detail is always possible inrelation to a story as complicated and multi-dimensional as the life of an individual, the PSRs offered the trial judge a solid sense of Mr.Gamble’s upbringing, his family instability, his mistreatment by caregivers and others, his involvement with drugs and so forth.

It was nodoubt unclear to the trial judge how the possibility of receiving more detailed information would have allowed him to give better effect tos. 718.2(e). [59] I will not repeat the whole of the information that was before the trial judge but some of the key content of the PSRs,principally in the “Family and Social Relationships” and “Gladue Factors” parts of those reports, is briefly summarized below: (

a) Mr. Gamble’s parents were not married and his father left the relationship when Mr. Gamble was still a baby. His motherabandoned him at the age of 7 and left him to be raised by his “stepfather”, his mother’s boyfriend at the time. He recalled feeling shameas he saw other kids with mothers. He was also raised by his grandparents for a year or so before the age of 4. (

b) When living with his grandparents, Mr. Gamble stated that he lived in Rosthern, Saskatchewan. When living with hisstepfather, he explained that the family was either living in Edmonton or Saskatoon. Attempts to contact the stepfather were unsuccessful. (

c) Mr. Gamble reported that he lived with his stepfather off and on until the age of 13. According to Mr. Gamble’s sister, she andher siblings were placed in and out of care starting when Mr. Gamble was approximately 7 years old because the stepfather was strugglingwith addictions. (

d) Mr. Gamble reported that he was placed in a residential school and foster care homes in Edmonton over a number of years.However, there is apparently no record of residential schools operating in Edmonton at the time when Mr. Gamble would have been ofschool age. Mr. Gamble also reported that he attended a residential school near Rosthern, Saskatchewan, at the age of 4, while living withhis grandparents. He stated that he would walk to school every day. (

e) On being re-interviewed, Mr. Gamble stated that, from a young age, he lived with his grandparents in Rosthern or with hisaunt and uncle on Beardy’s First Nation. He indicated that, when living with his grandparents, he walked to school every day. However,residential school archives show that no residential school was ever located in Rosthern. There was a school in Duck Lake but it was some19 kilometers from Rosthern. (

f) Mr. Gamble has had little contact with his mother. He has eight siblings, one of whom is deceased. He reported a “fantastic”

relationship with all of his siblings. He said that he does not have any contact with them while he is in custody but that is by his choice. (

g) Mr. Gamble recalled that he did not have a good upbringing and that he witnessed substance abuse in the family home and suffered from physical abuse. He was also the victim of sexual abuse when in his first foster home. (

h) Although his stepfather would struggle with alcohol and be physically abusive towards him, Mr. Gamble reported that his stepfather was a good man. He was raising five children and two of them were not his own. In the family home with his stepfather, Mr. Gamble reported that he witnessed domestic violence on a regular basis. His siblings would get weekly physical punishments and he often took their punishments for them. When asked about the effect of this life event, he indicated that he “got over it a long time ago” but later stated that he “deals with this in his own way and that it does bother [him] sometimes. [He] would drink to make it go away”. (

i) Mr. Gamble has a daughter who is now 9 years old. She lives with her mother and he has not had much contact with her since 2017, because he has been in custody. His relationship with the child’s mother ended years ago. (

j) On March 5, 2019, Mr. Gamble advised the report writer that he had been affiliated with the Indian Posse gang since the age of 10 because his stepfather was a member of that gang. In July of 2019, Mr. Gamble was asked specifically about the role that his stepfather’s gang involvement had had on his own offending. He indicated “it did not lead to mine”. He said that his stepfather had been out of the gang by the time he came to live with him at age 5. His stepfather only told him about his earlier gang life and he never witnessed any gang lifestyle while living with the stepfather.

During his original interview, Mr. Gamble reported that he was still a member of Indian Posse, stating, “Hard to run away from this lifestyle because you don’t have any other family”. He declined to provide comments on any other specific question related to his gang history or status. On July 17, 2019, Mr. Gamble provided a contradictory statement with respect to his gang affiliation, indicating that he had never been an Indian Posse gang member and had never been in a gang. (

k) Mr. Gamble advised that he is registered to Thunderchild First Nation, where his mother is also registered as a member. He reported that he has never resided on Thunderchild First Nation. (

l) Mr. Gamble’s father was from Beardy’s and Okemasis’ Cree Nation. Mr. Gamble reported that he believes that he lived there with his grandparents for a short time as a child before moving to Rosthern. (

m) When asked which First Nation community he considered to be his home reserve, Mr. Gamble advised that it was Thunderchild First Nation. When asked how his offending had impacted his community, he stated, “they don’t think of me as the Criminal Justice System thinks of me, they see me as a criminal, they think I took wrong choices because I grew up without parents. They think I am a good guy. I think if my family was around I would be more humble and loved”. He indicated that his community must feel “sad, alone, abandoned, loveless because I am not around”. (

n) Mr. Gamble reported that he and his family had been impacted by substance abuse within their family unit. He felt that he had learned the abuse of alcohol as a way of life and learned that it was used to wash away sorrows. As he put it, “monkey see, monkey do”. (

o) Mr. Gamble began experimenting with drugs at age 13 and abused marijuana, methamphetamine, cocaine, MDMA and alcohol for many years. He has never been to an addiction treatment or detoxification program. (

p) Mr. Gamble was unable to recall any issues with poverty when residing with his grandparents. He recalls living in Edmonton without electricity for a period of time but said this did not impact him much as he was young and “we spent all our time outside anyway”. He was on a meal program at every school he attended. (

q) Mr. Gamble does not feel that he has been overly impacted by racism. He reported that he had no difficulties finding employment and advised that the construction industry does not judge its employees. [ 60 ] I note as well that Mr. Gamble did not convincingly explain why a Gladue report was required.

In the affidavit filed in support of the application for such a report, he said only that the revisions made in the Third PSR had not appropriately addressed the problems with the Second PSR and because “I have experienced numerous events and circumstances in my life that are considered Gladue factors which are of interest to this Honourable Court as part of my sentencing submissions”. In other words, Mr. Gamble did not establish how a Gladue report would have allowed the trial judge to give more complete effect to s. 718.2(e). As the trial judge observed at paragraph 66 of the Gladue report decision, “[Mr.

Gamble’s] lawyer was not so much specific as to what was lacking as insistent there was a better way to get the information; that is, by commissioning a full Gladue Report at state expense”. This is consistent with the approach that Mr. Gamble himself apparently took in his initial dealings with the writer of the PSRs. The First PSR contains an observation that “[Mr. Gamble] is not happy he was not provided the opportunity to have a separate Gladue Report completed. [Mr. Gamble] indicated he plans to appeal the Pre-Sentence Report as it is not a Gladue report”. [ 61 ] In this Court, Mr.

Gamble submits that the PSRs were deficient in several respects. First, and most significantly, Mr. Gamble says they were lacking because they did not adequately explore his gang involvement and how that involvement affected his moral blameworthiness. He suggests that the Third PSR relied only on his “surface level” responses to the report writer’s questions and that, at least according to his counsel, he should not be expected to have all of the insight required to provide a deeper understanding of these matters. Mr.

Gamble suggests that the trial judge was left with no understanding of how gang life is situated in his cultural history and how it affects his moral blameworthiness. [ 62 ] In assessing this line of argument, it should be noted that the First PSR recounted that Mr. Gamble had reported an affiliation with the Indian Posse since the age of 10 “because his step-father Joseph was IP”. He indicated that he was still IP but understood that he was getting older, saying, “Hard to run away from this lifestyle because you don’t have any other family”.

The trial judge then directed that the PSR should provide “further exploration of how Mr. Gamble’s step-father’s gang involvement led to his own criminality and involvement in the same gang”. In the Second PSR, the report writer indicated that Mr. Gamble had “declined to provide comments on any other specific question related to his gang history or status”. In the Third PSR, the writer included information based on an additional interview with Mr. Gamble wherein he had offered inconsistent accounts of his gang involvement: (

a) saying his stepfather’s gang involvement “did not lead to mine” and that his stepfather was out of the gang when he had gone to live with him; (

b) indicating he was

trying to get out of gang life because he was too old; and (

c) stating he had never been an Indian Posse gang member and had never been in a gang. [ 63 ] I appreciate that an offender in Mr. Gamble’s position may not have the self-awareness or the communication skills necessary to effectively understand or explain the connection between his upbringing and personal circumstances on the one hand, and his gang involvement on the other. However, there were basic factual contradictions in Mr. Gamble’s description of his gang affiliations and he presented a general reluctance to be forthcoming about such matters.

He went from suggesting that he had become associated with the Indian Posse because his stepfather was a member of that gang, to saying his stepfather’s involvement with Indian Posse did not lead to his involvement with that gang, to inexplicably saying that he had never been in a gang. [ 64 ] In light of the content of the PSRs, and especially given that he had the assistance of counsel, Mr.

Gamble might have been expected in his affidavit to bring some measure of clarity to his gang history and to offer at least some basic or rudimentary explanation as to why a further examination of it would be important, and why, unlike had been the case in the PSR context, he might be expected to cooperate in that regard. In the absence of any of this, it can be understood why the trial judge was reluctant to adjourn the sentencing proceedings for a fourth time so as to accommodate the production of a Gladue report. [ 65 ] Mr.

Gamble also suggests that the PSRs did not properly examine the impact of his offending on the community. This, I take it, is a reference to a passage in the Third PSR which indicates that, in response to a question about the impact of his offending on the community, Mr. Gamble had replied, “I do not know, I never heard anything” and made the other brief comments noted above at paragraph 59(m). There is no doubt that this represents a superficial examination of Mr. Gamble’s understanding of the effect of his criminal behaviour. However, the reality here is that Mr.

Gamble had committed disturbingly serious and violent crimes and that both Crown and defence saw those crimes as warranting a significant penitentiary sentence. It is therefore not difficult to understand why the trial judge did not think it was necessary to have the issue of Mr. Gamble’s perception of the community impact of his offending explored in more depth. That further exploration, at least in the context of this case, would have been extremely unlikely to have yielded information that could have materially assisted the trial judge in determining the extent to which, if at all, Mr.

Gamble should be found to have reduced moral blameworthiness. [ 66 ] Mr. Gamble also points to the description in the PSRs of his attendance at residential schools and describes that description as being inadequate. There was obviously some lack of clarity on this front. The First PSR advises that Mr. Gamble reported he had been placed in a residential school in Edmonton. His sister apparently confirmed this fact, saying that she had been placed there too. Mr. Gamble also reported that, as a very young child, he had walked to a residential school while living in Rosthern.

The report writer said that her attempts to uncover further information about Mr. Gamble’s school experience had been unproductive. The residential school situation was explored somewhat further in the Second PSR with the report writer indicating that the residential school in Edmonton had been closed down in the late 1960s, before Mr. Gamble was born, and that no residential school had ever been located in Rosthern. There had been a school located about 19 kilometers away in Duck Lake. The report writer re-interviewed Mr.

Gamble for the Third PSR, presumably acting on the trial judge’s instruction to address any internal inconsistencies in the Second PSR. Mr. Gamble indicated that he had only two memories of attending school at a very young age. One was walking the long distance to school while staying with his grandparents. The other was the principal hitting him with a ruler. As a result, there remains some unresolved questions on the residential school front with Mr.

Gamble apparently maintaining that he attended a residential school on the one hand and the report writer’s research on the history and location of such schools, on the other hand, suggesting this was unlikely. [ 67 ] It is not clear how a Gladue report would have unravelled all of this. The report writer spoke to Mr. Gamble’s sister about his school attendances and she interviewed Mr. Gamble about the matter in the course of preparing the Third PSR. Further, it appears that Mr. Gamble declined to provide detailed information or contacts for other individuals who might have shed further light on the situation.

In all of those circumstances, it is clear enough why the trial judge did not see the ambiguities surrounding the residential school issue as something that warranted, either itself or in combination with other matters, a Gladue report or other further inquiry. He was prepared, notwithstanding these uncertainties, to accept that the core realities of Mr. Gamble’s childhood had impacted his moral culpability: [10] Notwithstanding these issues with veracity and reliability, there can be little doubt that Mr. Gamble had a troubled, even dystopian childhood.

Whether he lived with relatives and/or with foster parents, he lacked stability in his formative years and his interpersonal relationships did not have an opportunity to fully form. He states, and I accept, that he was physically abused and witnessed physical abuse as a youth. I accept that he witnessed and participated in abuse of various substances from an early age. [ 68 ] Finally, Mr. Gamble submits that the PSRs contained only surface-level information about his employment history. In its “Training and Employment” section, the Third PSR comments on the level of Mr.

Gamble’s educational attainment and indicates that he was last employed in 2016 at Labour Ready where he worked for four days a week for approximately a year with his employment ending in September of 2016. However, according to the report writer, that information did not reconcile with the fact that Mr. Gamble had said, on being arrested, that he had been on Income Assistance Program benefits since early 2016. Her attempts to contact Labour Ready were not successful. [ 69 ] It is difficult to see how a more detailed or fact-checked account of Mr.

Gamble’s employment history could have shed meaningful light on his moral culpability for the offences of aggravated assault and unlawful confinement. A more thorough treatment of employment issues would certainly not have been out of place in the PSRs but, for the particular sentencing exercise required in this case, I cannot take issue with the trial judge’s implicit conclusion that further information on this front was not necessary. [ 70 ] In the end, therefore, I conclude that the trial judge’s decision to forego a Gladue report was not unreasonable. It follows that Mr.

Gamble cannot succeed on this wing of his appeal. C. Other matters [ 71 ] Mr. Gamble raises, but does not press, two other lines of arguments about the propriety of his sentence. I will deal briefly with each of them in turn.

[ 72 ] First, Mr. Gamble suggests the trial judge erred by failing to give him credit for the 34 days that he spent in custody between the date when the trial judge heard sentencing submissions and the date when he released his sentencing decision. [ 73 ] I am not persuaded that this is a matter that warrants the intervention of this Court. Sections 719(3) and 719(3.1) of the Criminal Code confer a measure of discretion on a sentencing judge.

They read as follows: 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody. [ 74 ] The decision as to whether or how to credit pre-sentence custody is, as the Supreme Court said in R v Wust , 2000 SCC 18 at para 45 , [2000] 1 SCR 455, “best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence”. [ 75 ] The trial judge received detailed submissions from the Crown and from Mr.

Gamble’s counsel about the credit he should receive for time already spent in custody. In his sentencing decision, the trial judge rejected the Crown’s suggestion that credit should be calculated at something less than a multiple of 1.5 times the days Mr. Gamble had spent in custody. The trial judge then stated, at paragraph 103, “Mr. Gamble’s actual remand time is a total of 645 days as at the sentencing hearing. The total remand credit is therefore 968 days”. [ 76 ] Mr. Gamble does not suggest that the trial judge erred in finding that he had spent 645 days in remand as of the date of the sentencing hearing.

Nor does he suggest that the trial judge erred in calculating that, at a ratio of 1.5 days credit per day of time served, this yielded a total credit of 968 days. Rather, as indicated, Mr. Gamble says the trial judge should also have given him credit for the days he spent in custody between the date when sentencing submissions were made and the date when sentence was pronounced. The trial judge’s decision on this point was self-evidently deliberate and based on no misunderstanding of the situation he was dealing with. In my view, Mr.

Gamble has not identified anything in any of this that would justify the intervention of this Court. In other words, the approach taken by the trial judge fell within the scope of his discretionary authority. [ 77 ] I also understand Mr. Gamble to contend that, regardless of whether there was a problem with respect to the adequacy of the Gladue information before the trial judge, his sentence is demonstrably unfit. He suggests that an appropriate sentence would have been one of five years of incarceration. [ 78 ] A high hurdle must be cleared before a sentence can be found to be demonstrably unfit.

Terms such as “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, and “substantial and marked departure” have been used to describe the idea of demonstrable unfitness. See: R v Lacasse , 2015 SCC 64 at para 52 , [2015] 3 SCR 1089. [ 79 ] Mr. Gamble relies on five decisions from Saskatchewan courts in an effort to show that his sentence is unfit. While these cases reveal something about the nature of an appropriate sentence in this case, they are not as persuasive as Mr. Gamble suggests. Let me explain by very briefly considering each of them: (

a) R v Neapetung , 2017 SKPC 43 [ Neapetung ] – Mr. Neapetung was a member of a street gang. He and members of his gang forced a rival gang member into a basement where he was confined for three days. The rival gang member was beaten and stabbed. Letters were carved into his body and he was burned. Mr. Neapetung had broadly similar Gladue factors to those relevant to Mr. Gamble. He was given a seven-year sentence for aggravated assault and a seven-year concurrent sentence for confinement. Mr.

Gamble suggests that the three days of confinement of the victim in Neapetung is extremely significant and makes the offences in issue there much more serious than those that he committed. However, I note that Mr. Gamble was convicted of two offences: aggravated assault and confinement without authority. The length of time that he held his victim bears principally on the sentence that is appropriate for the confinement offence, rather than the aggravated assault. I note, as well, that Mr. Gamble’s confinement of Mr. Desjarlais ended only because Mr. Desjarlais escaped.

In the result, therefore, the 7-year sentence imposed on Mr. Neapetung for aggravated assault is properly seen as comparable to the 7.5-year sentence imposed on Mr. Gamble for the same offence. (

b) R v Keshane , 2005 SKCA 18 , 257 Sask R 161 [ Keshane ] – In this case, four men assaulted an individual at a house party, nearly killing him. The victim was stabbed near his heart and in the abdomen and the perpetrators of the assault attempted to stab him in the eye as well. Mr. Keshane was sentenced to two years less a day but, on appeal, this Court increased the sentence to four years. Mr. Gamble contrasts the 4-year sentence with the 7.5-year sentence that he received.

I observe, however, that Crown appellate counsel in Keshane felt constrained to ask for a sentence of four years because that was the sentence that had been requested by the prosecutor at trial. In imposing the sentence requested, the Court noted that, in light of the Crown’s position, it had not considered a sentence in excess of four years but that “nothing less than a term of four years would be fit” (at para 51). I note, as well, that Mr. Keshane was only 19 years old and had a much less serious criminal record than does Mr. Gamble.

Accordingly, this case is not especially helpful in trying to assess the fitness of Mr. Gamble’s sentence. (

c) R v Littlewolfe , 2002 SKCA 143 , 227 Sask R 245 – Mr. Littlewolfe and his brother brutally beat a man to death with a board. Mr. Littlewolfe was convicted of manslaughter and given a sentence of ten years at trial. That sentence was reduced to eight years on appeal. Several points about this case are worth underlining. First, Mr. Littlewolfe had no criminal record. Second, he appears to have been very young in that the case report refers to his older brother as being 19 years of age. Third, while on bail prior to his conviction, Mr. Littlewolfe had been responsive to programming.

Fourth, the Court observed that Mr. Littlewolfe may have been led into playing a role in the beating by his older brother. In other words, there are many aspects of Mr. Littlewolfe’s situation that are quite different from those in issue here. (

d) R v Paul , 2019 SKQB 142 – This case concerned a situation where a group of individuals took the victim to an isolated location to punish him for a theft. He was beaten with a crowbar and a bat in an alcohol and methamphetamine-fuelled attack and subsequently died. Ms. Paul, a young First Nations woman, was convicted of manslaughter and sentenced to nine years in prison. She had

a childhood marked by abandonment, insecurity, abuse and, ultimately, gang life. I note that Ms. Paul was only 17 years old at the time of the attack. Further, unlike Mr. Gamble, she did not orchestrate the attack and had been “more or less along for the ride” until it started. (

e) Whitehead – Three cousins, including Mr. Whitehead, beat an individual to death with their fists, their feet and a metal table leg after he had attacked Mr. Whitehead’s aunt. All concerned were intoxicated. Mr. Whitehead, a young Aboriginal man, pleaded guilty to manslaughter and received a sentence of nine years’ incarceration. That sentence was varied to eight years on appeal on the basis that the sentencing judge had overemphasized the principle of parity. It is noteworthy that Mr.

Whitehead was in a stable spousal relationship, had no criminal record and a prosocial outlook, had shown commendable post-offence conduct, and was seen by the Court as being receptive to rehabilitation. Again, this situation is quite different than the one at hand. [ 80 ] The cases relied on by Mr. Gamble reflect the fact that sentencing is a highly individualized process.

The principle of proportionality, the fundamental principle of sentencing articulated in s. 718.1 of the Criminal Code , demands that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This inevitably leads to variations in the sentences for crimes that might look somewhat similar on the surface. See: R v Laliberte , 2000 SKCA 27 at paras 72 and 81 , 143 CCC (3d) 503. As LeBel J. said in Ipeelee at paragraph 79 , “[i]n practice, similarity is a matter of degree.

No two offenders will come before the courts with the same background and experiences, having committed the same crime in the exact same circumstances. [The principle of parity in sentencing] simply requires that any disparity between sanctions for different offenders be justified”. In the end, therefore, I am not persuaded that the cases relied on by Mr. Gamble show his sentence to be unfit. [ 81 ] I also observe that there are other cases in this area, not cited by Mr. Gamble, that suggest his sentence was not demonstrably unfit.

For example, R v Moberly , 2020 SKCA 63 , involved a situation where several individuals unlawfully confined and tortured another person over approximately two days, assaulting him with various weapons. This resulted in injuries that required hospitalization. Mr. Moberly was convicted of aggravated assault. He was found to have been affected by Gladue factors that lowered his moral culpability.

Nonetheless, this Court said, at paragraph 11, “it cannot be strongly argued that eight years of imprisonment is demonstrably unfit given the brutal circumstances of the unlawful confinement and aggravated assault committed by Mr. Moberly”. See also: R v Pasap , 2018 SKCA (SentDig) 15; R v Klassen , 2015 SKCA (SentDig) 32. [ 82 ] The sentence imposed on Mr. Gamble is significant. However, considering the nature of the crimes that he committed, the relevant aggravating and mitigating factors, and the sentencing decisions in this area, I am not persuaded that it is demonstrably unfit. IV.

CONCLUSION [ 83 ] I would grant Mr. Gamble leave to appeal his sentence but, as explained, his appeal must be dismissed. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.