Appeal court reduces man’s drug sentence

Newfoundland and Labrador’s highest court is divided over how to address the aboriginal status of a man who only briefly mentioned he was Mi’kmaq at his sentencing on drug charges.

The province’s Court of Appeal reduced Joshua Aaron Bennett’s jail term from 39 months to 23 months, saying the sentencing judge hadn’t considered Bennett’s aboriginal status.

Bennett pleaded guilty to multiple drug charges after being found with two pounds of marijuana, 1,300 ecstasy tablets, 135 grams of cocaine and crack cocaine, and about $18,000 cash, over two occasions in 2010 and 2011.

Canadian judges are obliged to consider an aboriginal’s status before sentencing, but Bennett’s lawyer hadn’t sought the usual report on the issue — known as a Gladue report — that lays out an aboriginal offender’s personal circumstances. Bennett, who is in his late 20s, only briefly mentioned that he was Mi’kmaq and a member of the newly recognized Qalipu First Nation during a statement to the court.

In its decision, handed down recently, the three-judge appeal panel said Bennett “did not expressly waive his right to have his aboriginal status considered,” and the provincial court judge erred in not either seeking such a waiver or considering it in sentencing.

“As a result of the trial judge’s error, Mr. Bennett’s aboriginal status ... must be addressed,” said the appeal court decision, written by Justice Gale Welsh.

“A sentence of almost three years is disproportionate to the number and gravity of the offences and the degree of responsibility of the offender,” said Welsh. “Further, I would take account of Mr. Bennett’s aboriginal status and his prospects for rehabilitation particularly given the support being provided by the Qalipu community.”

But one of the three appeal judges filed a dissenting opinion. Justice Lois Hoegg agreed the trial judge should have considered Bennett’s aboriginal status, but said no connection had been established between Bennett’s ancestry and his criminal misconduct.