Aboriginal status needs clarity, judge says

Dissenting view as man’s sentence slashed

It shouldn’t be enough to merely self-identify as an Indigenous person to qualify for the special sentencing provisions for Aboriginal offenders established by the Supreme Court of Canada.

So says a dissenting judge on the Supreme Court of Newfoundland and Labrador in a recent drug-trafficking case where the offender’s sentence of three years in prison was first reduced and then morphed, via the magic of the provisions in two Supreme Court of Canada cases, to a conditional sentence, or house arrest.

Justice Lois Hoegg was writing the dissenting opinion in the case of Joshua Aaron Bennett, a 28-yearold who pleaded guilty in 2015 to multiple counts of drug trafficking and then appealed his sentence to the Newfoundland high court.

The majority — Justices Gale Welsh and Charles White — said that the trial judge made a mistake by not ordering what’s called a “Gladue report” for Bennett, who had briefly mentioned in a lengthy address to the court after his guilty plea that he was “native and a member of the local Qalipu band.”

That was in fact all he said about his Indigenous status, and none of the three lawyers in court nor the judge saw fit to make submissions or comment upon it.

The trial judge ought to have done: The Gladue and another SCC decision make that clear, and the Criminal Code itself stipulates that a judge shall take into consideration “all available sanctions, other than imprisonment, that are reasonable” for all offenders, but “with particular attention to the circumstances of Aboriginal offenders.”

The notion behind Gladue is to address the serious over-representation of Aboriginal offenders in Canadian prisons.

But while the dissenting judge, Hoegg, also agreed the trial judge had made a mistake, she found that Bennett had come “very close” to waiving consideration of his Aboriginal status with his brief, blithe reference to it.

“… In my view something more than self-identification as Aboriginal, like Mr. Bennett’s bald statement that he was native and a member of the local Qalipu band, is required…,” she wrote.

Bennett made the oneline reference in a lengthy submission describing his childhood and his own addiction to OxyContin.

Prepared by Stonebridge Indigenous Justice in Dartmouth, N.S., the Gladue report consisted of one-sizefits-all “boilerplate” information and little else.

In at least one aspect too, the report was at odds with what Bennett himself had told the court: He maintained he was regularly employed, had a trade and had completed high school; the report said he lived “at or below the poverty line” because of his lack of education.

The information in the report was so meagre that even the two judges who approved of the conditional sentence for Bennett deemed it “of limited assistance.”

Hoegg was much more critical.

“… There is still nothing before the court which would provide a basis for a different sentence in accordance with Gladue principles,” she said. “This court has no more information on Mr. Bennett’s Aboriginal status or heritage than the sentencing judge had.”

The Stonebridge report, she said, doesn’t specify “where Mr. Bennett’s Aboriginal status sits in his ancestry, nor does it refer to any Aboriginal influence in his life or any unique systemic or background factors that brought him as an Aboriginal before the courts.

“While the report states that Mr. Bennett has suffered ‘the adverse impact of many factors continuing to plague Aboriginal communities since colonization,” the judge said it draws no connection “between Mr. Bennett’s hardships and his Aboriginal heritage.”

Since those factors are precisely what the Supreme Court says judges must take into consideration when sentencing Indigenous people, Hoegg said the report was almost useless.

In fact, she said, the “absence of information respecting Mr. Bennett’s Aboriginal circumstances could be explained by the fact that there may not be Aboriginal circumstances in his case …

“Many people of Aboriginal heritage may legitimately claim Qalipu or other Aboriginal status, yet their Aboriginal heritage or status may have played no role in bringing them before the courts …”

The judge fretted that such boilerplate application of the Gladue principles could create “an obligation of sentencing courts” to assign non-custodial or creative sentences to Aboriginal offenders, regardless of how little information they have.

Hoegg found no basis to correct the trial judge’s sentence.

WE WILL BE TRYING TO MAKE SURE THAT IF HE GETS MONEY IT GOES TO THE WIDOW OF SGT. SPEER AND LAYNE MORRIS FOR THE LOSS OF AN EYE. — LAWYER DON WINDER