Woman to be sentenced again after judge failed to address Gladue factors

A Saskatchewan woman who pleaded guilty to impersonating another woman to obtain groceries will get a new sentence after a superior court justice ruled that the sentencing judge failed to address her Indigenous ancestry.

Marcia Lynn Whitstone pleaded guilty to two counts of fraud related to the impersonation in late 2016, and was handed two concurrent six-month sentences. Representing herself, the 39-yearold appealed, arguing the sentence was unfair.

In a decision handed down this month in Battleford Court of Queen’s Bench, Justice Lyle Zuk set aside the sentence and referred the matter back to provincial court after concluding that the sentencing judge — who is not named in the appeal decision — made an error of law.

“A sentencing judge has a statutory duty to determine if the offender is Aboriginal and the failure of a sentencing judge to consider Gladue factors when sentencing an Aboriginal offender renders the decision open to appellate review,” Zuk wrote.

Gladue factors address the background of Indigenous offenders and are taken into account by judges during bail and sentencing hearings. The name stems from the landmark 1999 Supreme Court of Canada case R. v. Gladue.

According to the decision, evidence presented at Whitstone’s sentencing hearing “should reasonably have caused the sentencing judge to make inquiries to determine whether the offender was of Aboriginal ancestry.”

At the same time, Zuk wrote, there is no evidence to suggest Whitstone waived her right to provide evidence about her background, or that she was even aware of that right until shortly before the appeal was heard.

Neither Whitstone nor the lawyers present introduced evidence about her background at the sentencing, he wrote.

Zuk then outlined three possibilities: The judge was unaware of her background; the judge knew but did not request the necessary evidence; or the judge took those circumstances into account but did not reference them in his oral decision.

“In my view, each of those three circumstances would give rise to a good ground of appeal and open the judge’s sentencing decision to appellant review,” Zuk wrote.

In ordering the matter back to provincial court, Zuk emphasized that his decision has nothing to do with the appropriateness of the original sentence, and flows solely from the inability to determine from the court record what the sentencing judge knew.

“I expect that this will be a relatively rare occurrence, however it appears to have occurred in this case.”