The British Columbia Supreme Court has expanded the reach of a sentencing law aimed at reducing Indigenous incarceration rates, ruling that Indigenous-specific sentences can be applied even to offenders who have broken away from Indigenous communities and are only minimally aware of their heritage.
“The disconnect is one of the very harms associated with Canada’s colonial history and assimilationist policies,” Justice Len Marchand, the first indigenous member of the British Columbia Court of Appeal, wrote this week in a 3-0 decision.
The ruling reduces the sentence from five years in prison to four in the case of an unprovoked, near-fatal stabbing. This is not the first appellate decision to mention exclusion. Ontario’s Supreme Court has taken a similar stance, but Alberta’s is on the other side, cautioning against stretching sentencing principles “almost to the level of pure ethnicity.” The issue has not been debated in the Supreme Court of Canada, but the inconsistency in the rulings means the nation’s highest court will have a compelling reason to take up the issue in the event of a future appeal.
The BC ruling applies directly only in that province, but will be read by judges across the country and could prove influential.
The offender, David Kehoe, is a Métis man who prosecutors say was unaware of his Indigenous heritage until recently. He was convicted of aggravated assault after he used a kitchen knife to stab a man who had played loud music in the car park of an apartment building where Mr Kehoe lived.
Mr Kehoe, who was 30 at the time of the 2018 stabbing, had a record of 33 previous offenses as a youth and as an adult. (The victim suffered a lacerated liver and a punctured lung and underwent life-saving surgery. He did not submit a victim impact statement at Mr Kehoe’s sentencing hearing.)
Under federal sentencing law, judges must pay special attention to the circumstances of Indigenous offenders. The Supreme Court interpreted this law in a case called Gladue (which involved a fatal stabbing) to mean that the history of colonization had harmed indigenous peoples and that they were therefore entitled to special efforts to reduce their overrepresentation in the criminal justice system. Social workers and others write “Gladoo reports” for judges at sentencing to detail Indigenous factors.
Murray Sinclair, who chairs Canada’s Truth and Reconciliation Commission, said the decision in Mr. Kehoe’s case was important. “You have an appellate court effectively reminding the trial judges to stop being so lax about Gladue. Because that has been the trend for the last few years,” he said.
The rate of incarceration of the indigenous population continues to rise. As of Christmas, 34 percent of federal male inmates were Indigenous, and among female inmates, the rate was 48 percent, according to the Office of the Prison Examiner. The indigenous population constitutes just over 5 percent of the country’s population. In 1997, they made up 3 percent of the population and 12 percent of men in federal prisons.
In Mr. Kehoe’s case, the Gladue report noted addiction in his immediate family, homelessness as a teenager, abandonment by his mother and stepfather, the stabbing death of his brother, and the normalization of abuse and neglect in his family.
British Columbia prosecutor Grant Lindsay noted in his arguments that Mr. Kehoe’s parents and grandparents did not go to boarding schools. His offending was partly to do with growing up with a non-Indigenous stepfather who used and dealt drugs, Mr Lindsay said. Justice Alan Ross of the Supreme Court of British Columbia accepted that there was little connection between Mr. Kehoe’s local background and his crime and sentenced him to five years in prison.
But the British Columbia Court of Appeal said Judge Ross and the prosecutor misunderstood the harm caused by the Canadian policies. Justice Marchand, citing the final report of the Truth and Reconciliation Commission, wrote that Canada was deliberately seeking to eliminate indigenous communities as distinct peoples. The real issue, he said, was the role Mr. Kehoe’s disconnection played in his court appearance.
Justice Marchand, who was appointed by the Trudeau government to the appeals court in 2021, added that it was not “mere coincidence” that Mr. Kehoe’s Métis mother ended up in an unstable, dysfunctional environment. He cited the report of the National Inquiry into Missing and Murdered Indigenous Women and Girls to highlight this.
He wrote that he agreed with Judge Ross that an unrehabilitated Mr. Kehoe was a danger to society, but added that there were signs that Mr. Kehoe was rehabilitating.
Jonathan Rudin, director of special projects at Aboriginal Legal Services, a legal clinic in Toronto, said Judge Marchand writes sensitively and intelligently on Gladue issues and has done so as a lower court judge.
“He said on the facts of this case, you have to look at what the displacement of the Métis community means, even though it may be difficult for some people to articulate it. How do you articulate what you don’t know?’
The British Columbia decision also highlights how federal sentencing law pulls in two directions in another sense. The Quebec Supreme Court, for example, emphasized the need for tough sentences to deter and punish crimes committed by Indigenous men against Indigenous women.
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