R v Courtoreille, 2022 SKCA 110

Court of Appeal for Saskatchewan Docket: CACR3544 Citation: R v Courtoreille, 2022 SKCA 110Date: 2022-10-05 Between:His Majesty the KingAppellantAndShaylynn CourtoreilleRespondentBefore: Schwann, Kalmakoff and McCreary JJ.A.Disposition: Application for leave to appeal granted; Appeal dismissedWritten reasons by: The Honourable Madam Justice McCrearyIn concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice KalmakoffOn appeal from: Provincial Court, SaskatoonAppeal heard: August 11, 2022Counsel: Grace Hession David for the Appellant Julian Nahachewsky for the Respondent McCreary J.A. I.

INTRODUCTION [1] The Crown appeals from an 18-month sentence of incarceration imposed on the respondent, Shaylynn Courtoreille, forpossessing a prohibited firearm with ammunition, contrary to s. 95(1) of the Criminal Code. The sentence was imposed by a ProvincialCourt judge on March 8, 2022, immediately following her guilty plea to that charge. [2] The Crown argues that the sentencing judge erred in principle, and imposed a demonstrably unfit sentence, when he ordered asentence of only 18 months’ incarceration for the firearm offence.

The Crown contends that the sentencing judge erred in principle byincorrectly determining that certain factors were mitigating and by conducting a flawed Gladue analysis (see: R v Gladue, (SCC), [1999] 1 SCR 688), as well as misapprehending the evidence about Ms. Courtoreille’s prospects for rehabilitation. The Crownsays that the sentence imposed is disproportionate to the gravity of the offence and to Ms.

Courtoreille’s level of moral blameworthiness,in addition to offending the principle of parity. [3] Applying the standard of review applicable to sentence appeals as set out in R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089[Lacasse], and R v Friesen, 2020 SCC 9, 444 DLR (4th) 1 [Friesen], the issues on this appeal are whether: (1) the sentencing judge madean error in principle that had an impact on the sentence; or (2) the sentence is demonstrably unfit. [4] For the reasons that follow, leave to appeal the sentence is granted, but the appeal is dismissed.

While the sentencing judgedid not lay out his Gladue analysis in a detailed and structured fashion, when his reasons are considered as a whole, I find that he tookMs. Courtoreille’s background and experiences as an Indigenous person into account, leading him to conclude that her moral culpability inrelation to the offence in question was significantly affected. The sentencing judge did not make any errors in principle that impacted onthe sentence, nor do I find that the sentence is demonstrably unfit. II. BACKGROUND [5] Ms.

Courtoreille pled guilty to possessing a prohibited firearm with ammunition, contrary to s. 95(1) of the Criminal Code. Atthe same time, she also pled guilty to three breaches of her release conditions and to possession of cocaine, all of which occurred while shewas on interim release after she was arrested and charged with the firearm offence. [6] For the three breaches of conditions and possession of cocaine, Ms. Courtoreille received concurrent sentences of 104 days,deemed to have been served by the time she had spent on remand.

As noted, she was sentenced to 18 months’ incarceration for possessinga prohibited firearm with ammunition. [7] The following facts informed Ms. Courtoreille’s guilty pleas. [8] On May 5, 2021, the police received information that Ms. Courtoreille possessed a sawed-off firearm and had displayed aphotograph of it on the social media platform, Snapchat. The police did an open search of Ms. Courtoreille’s name on Snapchat and foundtwo photographs on her account, which were publicly viewable.

The first photograph was posted around midnight on May 4, 2021, andshowed a sawed-off rifle in a black backpack with a red interior. The second photograph, posted at about 7:00 a.m. on May 5, 2021,showed Ms. Courtoreille holding a sawed-off rifle in her hand, posing with another woman. In that photo, Ms. Courtoreille was wearing ablue bandana, which police said demonstrated her association with a Saskatoon gang called the Easy Money Crips. Ms. Courtoreille didnot admit to any gang affiliation. [9] At around 7:45 a.m. on May 5, 2021, police identified Ms.

Courtoreille in Saskatoon, while she was riding as a passenger in ataxicab. She was detained and searched, and police found a sawed-off rifle in her backpack, which was black with a red interior. Ms.Courtoreille told police she had the gun to protect herself because she had recently been shot. The firearm was not loaded, but police found

one .22 round in the left pocket of Ms. Courtoreille’s shorts. The round was capable of being discharged from the firearm. In the backpack, the police also found a blue bandana, a scale dusted with what was believed to be a drug residue and some empty baggies. The backpack also contained mail addressed to Ms. Courtoreille. Ms. Courtoreille was arrested and charged with the firearm offence under s. 95(1) of the Criminal Code , but not with any drug offence. [ 10 ] Following her arrest, Ms. Courtoreille was released on conditions, which included a curfew. On May 28, 2021, police did a curfew check at Ms.

Courtoreille’s residence. She was not at home when they attended her residence, but arrived 36 minutes later. Thereafter, in June of 2021, police performed another curfew check and, again, Ms. Courtoreille was not home. A warrant was issued, and she was eventually arrested on November 6, 2021. On this occasion, police discovered that Ms. Courtoreille was in possession of 2.98 grams of cocaine, valued at roughly $100. She was subsequently charged with possession of cocaine. [ 11 ] At the sentencing hearing, the Crown submitted that a term of three years’ incarceration was an appropriate sentence for Ms.

Courtoreille given the significant inherent impact on public safety in connection with the firearm offence. The Crown stressed that the starting point for such an offence is three years’ incarceration, even with the Supreme Court of Canada’s determination in R v Nur , 2015 SCC 15 , [2015] 1 SCR 773 [ Nur ], that a mandatory minimum three-year sentence for an offence under s. 95(1) was unconstitutional. The Crown reviewed Ms.

Courtoreille’s pre-sentence report and acknowledged her Gladue factors, but argued that those factors did not sufficiently impact on her moral culpability in order to justify a sentence of less than three years. The Crown stressed that significant weight should be placed on general deterrence in sentencing Ms. Courtoreille because “[t]hose that break the law respecting weapons are not getting the message” and “[o]ffenders are prepared to take the risk of getting caught”. [ 12 ] In turn, Ms. Courtoreille submitted that a sentence ranging from 12 to 18 months of incarceration was proportionate and appropriate.

She contended that, despite the seriousness of the offence, there were mitigating factors, including her young age, early guilty plea, minimal criminal record and significant Gladue factors, that affected her moral culpability. Ms. Courtoreille also argued that she had good rehabilitative prospects because she had insight into her offending behaviour, had ceased associating with gang members and wanted to reform. Nevertheless, Ms. Courtoreille conceded that a community-based sentence was not appropriate because she had demonstrated difficulty complying with conditions while on release in the community. [ 13 ] Ms.

Courtoreille also argued that the circumstances of how she came to possess the firearm were mitigating, contending that she had been recently shot and only secured the firearm for her own protection. [ 14 ] The sentencing judge gave an oral decision. He began by acknowledging that firearms are inherently dangerous and pose a serious risk to public safety. However, he determined that he was not bound by the Ontario authorities that were cited by the Crown. He accepted Ms.

Courtoreille’s submission that she was carrying the firearm to protect herself and noted that she was not involved in another criminal offence at the time she was apprehended with the firearm. He also said that the bullet Ms. Courtoreille had with her when she was apprehended “may or may not have been able to fire from that firearm”. [ 15 ] The sentencing judge stated that he was concerned about Ms. Courtoreille’s record of failing to comply with conditions. However, he noted that her criminal record was otherwise minimal.

He observed that she had received a conditional discharge in relation to the lone entry on her record for violence, a charge of assault with a weapon, and inferred that it must have been a “pretty minor offence”. He noted that he had read the pre-sentence report and remarked that Ms. Courtoreille had “significant” Gladue factors. He identified that one of the purposes of s. 718.2 (

e) of the Criminal Code is to address and remediate the over-representation of Indigenous people in Canadian prisons. His reasons can be read as indicating that he found Ms. Courtoreille’s young age, minimal criminal record, guilty plea and Gladue factors to be mitigating circumstances, but that he was concerned about her history of failing to comply with conditions of interim release. Finally, the sentencing judge took guidance from R v McKenzie , 2020 SKPC 31 [ McKenzie ], in which a sentence of 18 months’ incarceration was imposed on an offender convicted under s. 94(1) (a)(

i) of the Criminal Code (unauthorized possession of a firearm in a motor vehicle), noting that the offender in that case had similar Gladue considerations to Ms. Courtoreille. III. ANALYSIS A. Standard of review [ 16 ] The standard of review governing appeals from sentencing decisions is that set out in Friesen and Lacasse , which has been followed by this Court on numerous occasions. See, for example: R v Ratt , 2021 SKCA 7 [ Ratt ] , and R v Kishayinew , 2021 SKCA 32 [ Kishayinew ] . Succinctly put, s entencing judges have a broad discretion to impose the sentence they consider appropriate.

The standard of review for sentencing appeals is deferential. An appellate court may only overturn a sentence imposed when the sentencing judge made an error in principle that impacted on the sentence, or when the sentence imposed is demonstrably unfit: Lacasse at paras 44, 49 and 51–52 . [ 17 ] Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle only if the sentencing judge exercises his or her discretion unreasonably.

Not every error in principle is material; intervention is only necessary if an error has impacted the sentence: Lacasse at para 44 . If an error in principle has no impact on the sentence, then appellate intervention is justified only if the sentence is demonstrably unfit. [ 18 ] If appellate intervention is justified, an appellate court must apply the principles of sentencing to the facts anew, without deference to the existing sentence, even if the sentence falls within the applicable range.

Where an appellate court finds an error in principle that impacted the sentence imposed, it is not necessary to show that the sentence is demonstrably unfit before intervening and considering the sentence afresh. [ 19 ] The Crown argues that the sentencing judge made errors in principle that led him to impose an overly lenient sentence in this case. The Crown says that the sentencing judge erred by failing to place sufficient emphasis on deterrence and denunciation, resulting in a sentence which is not proportionate to the gravity of the offence, given Ms. Courtoreille’s degree of responsibility for it.

The Crown also contends the sentencing judge erred in his analysis of Ms. Courtoreille’s moral culpability when he incorrectly determined that certain

factors were mitigating when they were not, and when he failed to perform an adequate Gladue analysis. In addition, the Crown contendsthat the sentencing judge’s analysis of Ms. Courtoreille’s rehabilitative prospects was flawed because her representations respecting herinterest in being rehabilitated were not credible. Finally, the Crown argues that the sentence offends the principle of parity and, overall, isdemonstrably unfit. B. The importance of deterring and denouncing firearms offences [20] Ms. Courtoreille pled guilty to possessing a prohibited firearm contrary to s. 95(1) of the Criminal Code. This

section providesthat it is an offence for a person to possess a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restrictedfirearm with readily accessible ammunition that is capable of being discharged from the firearm, without holding an authorized licence topossess the firearm, as well as the firearm’s registration certificate. [21] The Supreme Court of Canada has recognized that firearms seriously threaten public safety and the peaceful functioning ofCanadian society.

As early as 1993, the Supreme Court noted that a firearm presents “the ultimate threat of death to those in its presence”(R v Felawka, (SCC), [1993] 4 SCR 199 at 211).

Later, in the 2015 Nur decision, the Supreme Court maintained thatsentences for offences involving the possession of a restricted or prohibited loaded firearm (or restricted or prohibited firearm with readilyaccessible ammunition) must be directed at public protection, as reflected in the sentencing objectives of deterrence and denunciation. [22] The Crown says that Nur stands for the proposition that deterrence, denunciation and protection of the public are theparamount considerations when sentencing an individual who has committed an offence under s. 95(1) of the Criminal Code, and that thesentencing judge erred in principle when he failed to acknowledge same in the sentence he imposed. [23] In my view, the sentencing judge made no such error. [24] In Nur, the Supreme Court found that the mandatory minimum three-year sentence prescribed by s. 95(2)(

a) of the CriminalCode was unconstitutional because it was overbroad. However, McLachlin C.J., writing for the majority, recognized that a sentence ofthree years or more may still be appropriate for most individuals who offend under s. 95(1), given the inherent seriousness of such anoffence: [82] Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of threeyears or more, but conduct at the far end of the range may not.

At one end of the range, as Doherty J.A. observed [in R v Nur, 2013ONCA 677, 303 CCC (3d) 474], “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his orher criminal trade. . . . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51.At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate.

A little further along thespectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may bedisproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloadedfirearm safely with ammunition nearby, but makes a mistake as to where it can be stored.

For this offender, a three-year sentence is grosslydisproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code. [25] As is evident from this passage, in finding that s. 95(2) was unconstitutional, McLachlin C.J. also recognized that a three-yearminimum sentence is not appropriate for all offenders.

Sentencing must remain an individualized process. [26] Following Nur, this Court has noted that offences involving firearms are very serious and deserving of a significant sentencewhen the individual possessing a loaded restricted or prohibited firearm is: (1) engaged in criminal conduct; or (2) poses a danger toothers: R v Delorme, 2017 SKCA 3 at para 86. However, this does not mean that the door is closed to a consideration of mitigatingfactor(

s) which may lessen an offender’s moral culpability and lead to a reduced sentence. [27] Sentencing is a multifaceted endeavor in which many interests are at play. Among other things, a sentencing judge mustconsider the offence and its impact on individuals and society, as well as the circumstances of the offender.

As noted in Nur, while firearmoffences are serious because they broadly affect public safety, this does not mean that, for these types of offences, the sentencingobjectives of public protection, deterrence and denunciation can only be achieved by a sentence that involves a specific number of monthsor years of incarceration.

The circumstances of the offender and the offence are always relevant and must be weighed against the otherobjectives of sentencing. [28] Turning to the case at hand, the sentence at issue was communicated and imposed by the sentencing judge through an oraljudgment immediately following counsel’s submissions. This oral judgment contained some extemporaneous commentary that, in myview, was irrelevant to the reasoning process.

However, putting the irrelevant comments aside, the sentencing judge’s reasons, consideredas a whole, demonstrate that he understood the principles by which he was to be guided in fashioning an appropriate sentence. Heacknowledged the importance of deterrence, denunciation and public protection in imposing a sentence for an offence of this nature. Hestated that he recognized the Crown’s concerns about firearms and public safety and accepted “a lot of it”. He said that he shared theconcerns held by the police about firearms. He noted that the use of firearms in Saskatchewan “has to stop”.

Collectively, these commentscan be seen as a recognition that deterrence, denunciation and the protection of the public are highly important considerations in imposinga sentence for an offence committed under s. 95(1) of the Criminal Code. The fact that the sentencing judge was also influenced by otherfactors, which ultimately resulted in a reduced sentence for Ms. Courtoreille, does not reveal an error in principle given the plainrecognition in the sentencing judge’s reasons of the importance of specific and general deterrence, denunciation and public protection. C.

Incorrect determination of mitigating factors 1. Ammunition and use of firearm [29] The Crown argues that the sentencing judge erred in principle by determining that certain factors mitigated Ms. Courtoreille’smoral culpability, including the circumstances of her possession of the firearm and the functionality of the ammunition possessed, when

these factors were actually not mitigating. [ 30 ] The sentencing judge determined that there were factors that diminished Ms. Courtoreille’s moral culpability and therefore mitigated against a longer sentence of incarceration. He specifically identified her young age, guilty plea, minimal criminal record and significant Gladue factors as being mitigating. Clearly, those particulars are relevant mitigating factors to be considered and there was no error in principle when the sentencing judge applied them in that manner. [ 31 ] However, the sentencing judge also commented on Ms.

Courtoreille’s motive for possessing the prohibited firearm, as well as on the condition of the ammunition she carried with her. He stated: … It’s for protection, and that’s, I think, what Shaylynn was doing on the date in question. She had this sawed-off .22 with a bullet which may or may not have been able to fire from that firearm, …. … But I note for the record that Ms. Courtoreille was not involved in a criminal offence at the time this occurred. She was not going to or from a convenience store robbery or a bank robbery or even a gang fight.

She simply had a sawed-off .22 rifle in her possession with one bullet which may or may not have fit. It wasn’t loaded. It -- she wasn’t using it. She wasn’t using it having come from a crime scene. … … … You were shot just prior. That gives you some explanation as to why you might want to carry a firearm is because you’d just been recently been shot [ sic ]. … [ 32 ] The Crown argues those comments demonstrate that the sentencing judge considered them to be mitigating factors.

The nature of these comments – coming as they do in an extemporaneous and somewhat disjointed oral decision – makes it difficult to determine whether the sentencing judge actually placed any weight on them. Nevertheless, it does appear that the sentencing judge accepted submissions from Ms. Courtoreille that it was uncertain if the ammunition found in her pocket would work in the firearm that she possessed. However, because Ms.

Courtoreille pled guilty to the offence under s. 95(1) , she must be taken to have admitted the essential elements of the offence, including that she possessed “readily accessible” ammunition (i.e., ammunition that was capable of being fired) for the firearm. It was therefore an error for the sentencing judge to have questioned the functionality of the ammunition. [ 33 ] Further, Ms. Courtoreille’s possession of the firearm for her own protection, and the fact that she did not use it to commit any other criminal offences, were, at best, neutral factors in determining a fit sentence.

It would have been an error for the sentencing judge to have determined that those factors were mitigating. [ 34 ] However, the sentencing judge’s remarks do not reveal that he placed any weight on his musings about the useability of the ammunition, or the fact that he accepted that Ms. Courtoreille possessed the firearm for her own protection and that she did not use it to commit another criminal offence. I am therefore not persuaded that the error the sentencing judge made by commenting on the functionality of the ammunition had any impact on the sentence he ultimately imposed.

Similarly, I am not persuaded that he placed any weight on Ms. Courtoreille’s reason for possessing the firearm. [ 35 ] Finally, the Crown argues that evidence of Ms. Courtoreille’s association with gang members, as well as her possession of drug paraphernalia, proves that she was engaged in criminal activity and that this was therefore an aggravating factor the sentencing judge failed to consider. With respect, I do not agree that the Crown proved, to any degree of sufficiency, that Ms. Courtoreille’s possession of the firearm was linked to other criminal activity.

While there is limited evidence to suggest that she associated with, or was influenced by, a gang (i.e., because she posed for photographs wearing a gang colour), she denied any meaningful gang involvement. The sentencing judge was not persuaded that the extent of her involvement, if any, was proven by the Crown through the introduction of a photograph of her posing in gang colours and demonstrating that she carried a blue bandana. While Ms. Courtoreille was arrested with the firearm and drug paraphernalia in her backpack, whether the substance was in fact drug residue was, again, not proven.

She was not charged with any drug offence at that time. As a result, I do not accept that the evidence at the sentencing hearing demonstrated, on the standard of proof required, that Ms. Courtoreille was involved in criminal activity such that it constituted an aggravating factor for purposes of sentencing her on the possession of firearm charge. Consequently, I find the sentencing judge did not err in his assessment of this evidence and its effect on the sentence he imposed. 2. Application of s. 718.2(

e) of the Criminal Code – Gladue analysis [ 36 ] The Crown contends that the sentencing judge imposed a reduced sentence on Ms. Courtoreille solely because of the “existence of an Aboriginal heritage”, and that he failed to conduct the Gladue analysis required by this Court and the Supreme Court of Canada. [ 37 ] This Court has written extensively about the sentencing of Indigenous offenders, including the process a judge must undertake in doing so.

See: R v Chanalquay , 2015 SKCA 141 , [2016] 4 WWR 242 [ Chanalquay ]; R v Whitehead , 2016 SKCA 165 , [2017] 5 WWR 222 [ Whitehead ]; R v Delorme , 2017 SKCA 3 ; R v McKay , 2019 SKCA 129 ; R v J.P. , 2020 SKCA 52 , 62 CR (7th) 328 [ J.P. ]; Ratt ; Kishayinew ; R v Charles , 2021 SKCA 75 , [2021] 7 WWR 734 [ Charles ]; R v Bear , 2022 SKCA 69 [ Bear ]; as well as many others. These decisions recognize that there is a judicial duty to give real force to the remedial purpose of s. 718.2 (

e) of the Criminal Code . [ 38 ] In Chanalquay , Richards C.J.S. summarized the central features of Gladue and R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433, as follows: [34] The proper approach to the application of s. 718.2(

e) was first elaborated by the Supreme Court in Gladue . Some of the key points made in that decision are set out below: (

a) The purpose of s. 718.2(

e) is to ameliorate the problem of overrepresentation of Aboriginal people in prisons by encouraging judges to

consider a restorative justice approach to sentencing (para 93). (

b) In appropriate cases, the goals of restorative justice may take on greater weight and traditional sentencing goals will be less relevant (para 77). (

c) The effect of s. 718.2(

e) is to alter the method of analysis sentencing judges are required to use in determining an appropriate sentence for an Aboriginal offender (para 75). (

d) In sentencing an Aboriginal offender, a judge must consider: (

i) the unique systemic or background factors that may have played a

part in bringing the offender before the courts; and (ii) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or her Aboriginal heritage or connection (para 66). (

e) Judges must take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but case-specific information will have to come through counsel or pre-sentence reports (para 93). (

f) Systemic and background factors, on their own, do not necessarily dictate any particular sentence for Aboriginal offenders. They provide a context for considering case-specific information (para 88). (

g) The lack of alternative sentencing programs particular to an Aboriginal community does not eliminate the obligation of a sentencing judge to impose a sanction that takes into account principles of restorative justice (paras 74, 93). (

h) If there is no alternative to incarceration available, the length of the jail term imposed on the offender must be carefully considered (para 93). (

i) Section 718.2(

e) does not require an automatic reduction of the sentence imposed on an offender simply because he or she is Aboriginal (para 88). [35] In Ipeelee , the Supreme Court provided further explanation with respect to the operation of s. 718.2 (e). In that case, the Court made three points of particular relevance here: (

a) There is no discretion as to whether s. 718.2 (

e) should be considered in a case involving an Aboriginal offender. The application of the Gladue principles is required in every case (para 86). (

b) An offender is not required to establish a causal link between background Gladue factors and the commission of the offence in issue before a judge is entitled to consider such factors in his or her sentencing decision (paras 81-82). (

c) Unless the unique circumstances of the offender bear on his or her culpability for the offence or indicate which sentencing objectives can or should be actualized, they will not influence the ultimate sentence (para 83). [ 39 ] In addition, Richards C.J.S. noted three highly important factors that must inform the sentencing of an Indigenous offender. These are: (

a) The analysis mandated by s. 718.2 (

e) of the Criminal Code is an integral part of reasoning that leads to a fit sentence (see para 37); (

b) While systemic and background factors are not the only relevant considerations in determining an offender’s blameworthiness, they may inform moral culpability to an extent that leads to a different type of sentence than what might normally be imposed for the same offence (see para 40); and (

c) A sentencing judge must attempt to understand the circumstances of the offender and the offence, as well as the relevant dynamics of the community and the circumstances of the victim (see para 43). [ 40 ] Even if a fit sentence requires incarceration, proportionality demands a balancing of the impact that systemic and background factors have on an Indigenous offender’s moral blameworthiness to determine an appropriate period of incarceration: J.P . at para 63 . [ 41 ] The Crown argues that the sentencing judge erred in principle by failing to identify how, if at all, Ms.

Courtoreille’s moral culpability was affected by her Gladue factors, and by failing to consider the types of sentencing procedures and sanctions that would be appropriate in Ms. Courtoreille’s particular circumstances in her community. [ 42 ] In my view, the sentencing judge did perform the required Gladue analysis. He noted that he had read the pre-sentence report, which contained specific commentary on Ms. Courtoreille’s upbringing and Gladue factors. He expressly found that she has “significant” Gladue factors. He also referred to one of the purposes of s. 718.2 (

e) of the Criminal Code , which is to address and remediate the over-representation of Indigenous people in Canada’s prisons. Ms. Courtoreille conceded that a community sentence was not appropriate because of her demonstrated difficulty complying with conditions while in the community. The sentencing judge accepted this and considered what term of imprisonment would be appropriate for Ms.

Courtoreille in light of her unique circumstances as an Indigenous person in Canada, as directed by paragraph 52 of Chanalquay . [ 43 ] As this Court noted in Bear , determining the effect that systemic or background factors have had on an Indigenous offender’s moral culpability does not require the offender to establish a causal link between those factors and the commission of the offence. There is no burden on an Indigenous offender to demonstrate a direct, causal connection between their unique circumstances and their offending conduct because these are intertwined in complex ways.

However, it is necessary for a sentencing judge to consider whether, and to what extent, Gladue factors may have impacted an offender’s moral culpability in the particular circumstances of the case. In this regard,

Kalmakoff J.A. gave the following important direction: [110] Important in all of this, from the standpoint of appellate review, are the reasons given by the sentencing judge. While it may often be hard to quantify the effect that Gladue considerations have on the determination of an appropriate sentence, a sentencing court should explain why Gladue factors affected an offender’s moral culpability or why they had no effect. In the absence of such an explanation, it may be difficult for a reviewing court to determine whether the sentencing judge conducted the requisite analysis.

However, “[w]hen adequate reasons are given as to why a sentencing judge found that Gladue factors had or had not affected moral culpability, whether or how that finding affected the sentence imposed are matters of judicial discretion that warrant appellate deference” ([ R v Dillon , 2022 SKCA 17 ] at para 34 , emphasis in original). [ 44 ] While the sentencing judge could have explained, with specific reference to the evidence, how he conducted the necessary analysis, when his reasons are read in their entirety, it is apparent that he concluded that Ms.

Courtoreille’s Gladue factors diminished her moral culpability. The sentencing judge then determined that the sentence imposed upon Ms. Courtoreille must reflect this conclusion. [ 45 ] The Crown goes so far as to argue that Ms. Courtoreille’s Gladue factors have no bearing on her moral culpability for this offence. However, from a review of the record, there are multiple examples in Ms. Courtoreille’s life experiences that form a basis for the sentencing judge’s determination that her moral culpability was reduced. Ms. Courtoreille’s life has been touched by family breakdown, instability and dislocation.

Her father died when she was young. Her paternal grandparents were residential school survivors. Her mother was raised in foster care. As a child, Ms. Courtoreille moved homes frequently. Her mother supported the family – five children living at home – on her income as a housekeeper. This would tend to indicate that the family had a very modest income, although Ms. Courtoreille suggested that she did not feel deprived when she was a child. At times, Ms. Courtoreille’s mother struggled with substance abuse, resulting in Ms. Courtoreille being placed in foster care for a year and a half. While in foster care, Ms.

Courtoreille and her siblings were the only Indigenous children in their school. She felt marginalized and unwelcome in school. Ms. Courtoreille witnessed substance abuse in her childhood home; she has struggled with substance abuse herself. She experienced racism while working in British Columbia, her first employment opportunity. While she has a Grade 12 diploma and has worked as a housekeeper and for an arborist, she has experienced long periods of unemployment. She has had limited employment opportunities because her criminal record makes it more difficult for her to find employment. Ms.

Courtoreille identified being idle and unemployed as reasons why she began socializing with gang members. Certainly, the sentencing judge could take judicial notice of such matters as the history of colonialism, displacement, residential schools and foster care, and how the impact of these forces translates into lower rates of educational attainment, lower incomes, higher unemployment, higher rates of substance abuse, higher rates of gang involvement and then higher levels of incarceration for Indigenous people, such as Ms. Courtoreille.

In my view, doing so provides the necessary context for sentencing in this case. [ 46 ] Ultimately, I am not convinced that the sentencing judge failed to carry out a Gladue analysis or carried it out improperly. He clearly understood that Ms. Courtoreille’s life experiences affected her moral culpability and that this was a significant factor which mitigated against a longer sentence, all the while acknowledging, as Ms. Courtoreille had conceded, that a sentence of incarceration was still necessary.

While the sentencing judge could have better organized and articulated his reasons, considered as a whole, and in the context of the evidence that was accepted and the parties’ submissions, his reasons reveal that he performed the required Gladue analysis. There is therefore no error in principle. D. Evidence of rehabilitation [ 47 ] The Crown contends the sentencing judge erred in principle by placing greater weight on Ms. Courtoreille’s rehabilitation than on denunciation and deterrence. The Crown says that the sentencing judge ignored “evidence that [Ms.

Courtoreille] was not genuine in her desire for change” or “reformation”. With respect, I do not accept this argument. [ 48 ] As mentioned, Ms. Courtoreille breached her conditions of release on three occasions. The Crown says these breaches demonstrate that she is not remorseful or committed to her rehabilitation and that the sentencing judge erred by ignoring this evidence. [ 49 ] I disagree. The sentencing judge clearly understood that Ms. Courtoreille had breached her conditions while on release. He expressly acknowledged that Ms.

Courtoreille struggled with complying with conditions when on release, and observed that her history in that regard was likely why neither party had suggested that a probation order should follow any term of imprisonment that may be imposed. In addition, there was information from the pre-sentence report, which the sentencing judge reviewed, that Ms. Courtoreille had insight into her offending behaviour and understood that her offences were linked to her lifestyle, including being unemployed and idle. She identified obtaining employment as one strategy for changing her life.

While the sentencing judge did not refer to this specifically in his judgment, it was certainly open to him to consider and accept this information in determining whether Ms. Courtoreille had rehabilitative potential. [ 50 ] Although it was not argued at the sentencing hearing, the Crown now asserts that Ms. Courtoreille was dishonest during her interview for the pre-sentence report because she said that she had not committed any criminal offences while under the influence of alcohol or substances. However, Ms.

Courtoreille admitted to drinking and/or using drugs when she broke her curfew and when she was arrested for possession of cocaine, and the Crown says this meant that she was using substances when she committed criminal offences. The Crown also argues that because Ms. Courtoreille did not demonstrate at the sentencing hearing that she had looked for a job, this was further evidence that she is disinterested in her rehabilitation. All of which, the Crown submits, the sentencing judge ignored. [ 51 ] Viewing these arguments through the lens of appellate review, two things are clear.

The first is that the inferences the Crown now seeks this Court to draw from the pre-sentence report and the facts informing Ms. Courtoreille’s guilty plea were not raised by it at the sentencing hearing. The second is that it is not the role of an appellate court in a sentencing appeal to reassess an offender’s credibility at the sentencing hearing. [ 52 ] The sentencing judge weighed the evidence that was presented at the sentencing hearing, as he was required to do pursuant to s. 726.1 of the Criminal Code . This evidence included Ms.

Courtoreille’s representations about her gang involvement and rehabilitative prospects. After directly questioning Ms. Courtoreille about her gang affiliation, the sentencing judge accepted that she was no longer associating with gang members. He also accepted that she took responsibility for her criminal conduct and wanted to reform. These

assertions were supported by the pre-sentence report and, at the sentencing hearing, the Crown did not take issue with Ms. Courtoreille’scredibility (it merely pointed to her difficulties complying with conditions as an indicator of her rehabilitative potential). As such, it wasopen to the sentencing judge to determine whether Ms. Courtoreille was sincere. It was also within his discretion to consider whether Ms.Courtoreille was sufficiently sophisticated to understand that she was committing criminal offences when she breached her releaseconditions, which she admitted to doing while using drugs and alcohol.

The sentencing judge evidently did not see this as detracting fromthe genuineness of Ms. Courtoreille’s stated desire to reform herself. I see no error here. Similarly, it was within the sentencing judge’sdiscretion to determine what weight, if any, to place on the fact that Ms. Courtoreille did not demonstrate that she had searched foremployment after her arrest and prior to her sentencing. [53] Given the significant discretion afforded to the sentencing judge in his assessment of Ms.

Courtoreille’s credibility coupledwith his obligation to weigh the evidence presented at the sentencing hearing, I am not convinced that he erred in the manner suggested bythe Crown. This ground of appeal must fail. E.

Application of parity [54] Finally, the Crown argues that the sentencing judge erred in principle by failing to apply the principle of parity in the sentencethat he imposed. [55] In Friesen, the Supreme Court of Canada noted that parity is the practical expression of proportionality in sentencing: [30] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v.

Wilmott, (ON CA), [1966] 2 O.R. 654 (C.A.)) and is now codified as the “fundamental principle” of sentencing in s. 718.1 of theCriminal Code. [31] Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similarcircumstances should receive similar sentences. This principle also has a long history in Canadian law (see, e.g., Wilmott) and is nowcodified in s. 718.2(

b) of the Criminal Code. [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application ofproportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity norproportionality (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras.78-79). [33] In practice, parity gives meaning to proportionality.

A proportionate sentence for a given offender and offence cannot be deducedfrom first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody thecollective experience and wisdom of the judiciary.

They are the practical expression of both parity and proportionality. [56] In the matter at hand, the sentencing judge declined to follow case authority from Ontario, where significant sentences havebeen imposed for s. 95(1) offences. He stated that the case before him was a “different situation” than those from Ontario, and that theOntario authorities cited by the Crown were “off the wall”. The sentencing judge noted that, in imposing an 18-month sentence on Ms.Courtoreille, he was following authority from Saskatchewan, specifically, McKenzie.

Although the sentencing judge used unnecessarilycolourful language in declining to follow the Ontario line of cases, he did not err when he rejected the Ontario authorities in favour ofMcKenzie. [57] Throughout its appeal factum, the Crown sought to introduce new information from Statistics Canada. Those statistics werereleased after the sentencing decision was issued and concern the level of firearm-related violent crime experienced in Saskatoon andRegina in recent years, in comparison to some cities in Ontario.

The Crown sought to adduce this information to demonstrate that thesentencing judge was wrong when he stated that Ontarians are “a lot more sensitive to firearms and violence than [people inSaskatchewan] are”, and when he seemed to suggest that rates of firearm-related violence are higher in Ontario than in Saskatchewan. Intendering these statistics, the Crown did not bring an application to adduce fresh evidence. Instead, it relied on R v Bonin (1989), (BC CA), 47 CCC (3d) 230 (BCCA) at 246–249, for the proposition that a court can take judicial notice of statisticscompiled by Statistics Canada.

The Crown fairly acknowledged, however, that, in R v Abbey, 2017 ONCA 640 at paras 87–89, 350 CCC(3d) 102, and R v Charity, 2022 ONCA 226 at para 24, 412 CCC (3d) 356, the Ontario Court of Appeal held that such information mustbe introduced through an application to adduce fresh evidence. [58] Ms. Courtoreille did not receive notice of the Crown’s intention to introduce information from Statistics Canada at the appealhearing (other than through the Crown’s factum). As such, she was therefore not prepared to argue whether such information should beadmitted on the appeal, or in what manner it must be tendered.

In these circumstances, the question of how such information should betendered must be left to another day and I decline to consider the statistical information proffered by the Crown. As I will explain, thestatistical information tendered is not determinative of the Crown’s argument on parity in any event. [59] Flexibility in the application of the parity principle may be required when Gladue factors affect sentencing, as they did in thiscase.

In Charles, Jackson J.A. noted that where Gladue factors are applied in sentencing, the result may be that different sentences areimposed on Indigenous offenders, demanding flexibility in the parity principle. Such flexibility is necessary to purposefully applys. 718.2(

e) of the Criminal Code: [60] With respect to the principle of parity enshrined in s. 718.2(b), Crown counsel on appeal reiterated the position of trial Crown thatthe trial judge should have given greater weight to [R v Drysdale, 2016 SKQB 160] and his failure to do so is an error in principlejustifying appellate intervention. But, as Caldwell J.A. observed in Whitehead, to the extent that s. 718.2(

e) will lead to different sanctionsfor Indigenous offenders, those sanctions will be justified based on their unique circumstances (at para 79).

Section 718.2(

e) of theCriminal Code “requires sentencing courts to rethink critically the role that parity plays when sentencing Aboriginal offenders”(Whitehead at para 41). It does not mean that parity plays no role, but it does preclude the rote comparison among offenders and offences.

[60] As I previously noted, the sentencing judge cited McKenzie as a comparable decision in his parity analysis. McKenzie dealt with the sentencing of an offender for an offence under s. 94(1) (a)(

i) of the Criminal Code , which prohibits unauthorized possession of a firearm or of prohibited ammunition in a motor vehicle. In McKenzie , the sentencing judge relied on two other decisions, R v Sellars , 2018 BCCA 195 , and R v Buffalo , 2020 ABQB 41 , where non-penitentiary sentences were imposed for Indigenous offenders with Gladue factors affecting their moral culpability for the firearms offences they committed under s. 94(1) of the Code , among other offences.

While those cases are not directly on point, they are reasonably similar and are recent precedents where Indigenous offenders received sentences at the low end of the sentencing range for serious firearms offences because of their unique circumstances. In my view, these decisions are sufficiently similar to the matter at hand and serve to support the sentence imposed on Ms. Courtoreille. Contrary to the Crown’s position, they show the sentencing judge respected the parity principle, particularly in light of Ms. Courtoreille’s Gladue factors that he found mitigated against a more severe sentence.

As such, the sentencing judge did not err in his consideration, nor in his application, of the parity principle. F. The sentence is not demonstrably unfit [ 61 ] A very high threshold must be met to show that a sentence is demonstrably unfit. As this Court stated in R v L.T.N. , 2021 SKCA 73 : [46] If the sentencing judge did not err in principle, or if an error in principle had no impact on the sentence, appellate intervention will be justified only if the sentence is demonstrably unfit ( Friesen at para 26 ). The threshold for intervention on that basis is very high.

The phrase “demonstrably unfit” has been equated with expressions such as “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure” ( Lacasse at para 52 ).

An appellate court cannot find a sentence to be demonstrably unfit just because it would have weighed the relevant sentencing factors differently than the trial judge did ( Lacasse at para 49 ; R v Burke , 2016 SKCA 100 at para 2 , 484 Sask R 224), or because it would have arrived at a different number ( R v Johnson , 2021 SKCA 17 at para 23 ). [ 62 ] The sentence imposed by the sentencing judge is not clearly unreasonable or inadequate, nor is it a substantial or marked departure from sentencing norms.

The sentencing judge was alert to the need for the sentence to reflect the objectives of general and specific deterrence, denunciation and the protection of public safety, but was also cognizant, as was required, of the substantial mitigating factors. He weighed these appropriately when he arrived at a sentence of 18 months’ incarceration for Ms. Courtoreille. This is still a significant period of incarceration for a young person who had never before been incarcerated. At the time of sentencing, the Crown did not prove that Ms.

Courtoreille possessed the firearm at issue in order to assist her to commit other criminal offences or to protect her in her “gang way of life”, so as to constitute an aggravating factor that might require a longer sentence as suggested by Nur . As I noted in my discussion of parity, the sentence imposed is not outside the range of other Saskatchewan sentences imposed on offenders for similar crimes with similar personal mitigating circumstances. I am therefore not persuaded that the sentence is demonstrably unfit. IV.

CONCLUSION [ 63 ] In the result, leave to appeal the sentence is granted, but the appeal is dismissed. The sentencing judge did not make any errors in principle that impacted on the sentence imposed, and the sentence is not demonstrably unfit in all the circumstances. “McCreary J.A.” McCreary J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.