 |
| John L. Hill |
Dean Barter committed a multitude of offences between Feb. 19, 2020 and Jan. 9, 2021, including the robbery of a pub while armed with a knife. He was charged with and pleaded guilty to having committed 10 criminal offences: failing to appear in court, resisting arrest, possession of ammunition in contravention of a prohibition order, escaping lawful custody, breach of a release order (three counts), robbery, possession of a weapon to commit an offence and theft.
Barter pleaded guilty in Provincial Court and was sentenced to six years imprisonment (R. v. Barter, [2021] N.J. No. 81). The sentencing judge considered deterrence and denunciation the main sentencing principles to be applied. He was made aware of Barter’s previous penitentiary sentence for robbery and his issues with substance abuse. Nonetheless, the punishment imposed also considered the reasoning in R. v. Johnson, 2020 MBCA 10, where it was held that while factors personal to the accused remain relevant, they necessarily take on a lesser role when denunciation and deterrence are paramount. The Crown had described Barter as “a life-time criminal,” and the sentencing judge determined that “he must be separated from society.”
After Barter’s guilty plea was accepted, the Crown indicated it wanted a sentence of four and a half to five years less time spent in custody. It was not a joint submission. Barter asked the sentencing judge to focus on his attempts at rehabilitation since he had been struggling with addiction issues his whole life. Barter refused to withdraw his guilty plea, and the judge imposed a six-year penalty.
Barter’s appeal argument was based solely on the judge’s failure to notify the parties that he was about to impose a higher sentence than the parties had recommended. The Appeal Court determined that the test set
Rawf8: ISTOCKPHOTO.COM
The court held that this error alone was insufficient to justify appellate intervention unless it could be shown that the lack of further submissions would have impacted the sentence calculation. Given the broad discretion afforded to sentencing judges, appellate courts will intervene only when there is an error in principle or if the sentence is demonstrably unfit (R. v. Friesen, 2020 SCC 9 and R. v. Lacasse, 2015 SCC 64).
However, the Nahanee decision provided that an appellate court could consider further information that could not be put before the sentencing judge and would impact the sentence. To admit fresh evidence, the appellate court must conclude that it is in the interest of justice to allow its admission (R. v. Sipos, 2014 SCC 47 and Barendregt v. Grebliunas, 2022 SCC 22).
Barter sought to admit fresh evidence that he was of Mi’kmaq decent and that his Indigeneity should meet the Palmer test for reception (Palmer v. The Queen, [1980 1 S.C.R. 759). However, a simple assertion of one’s Indigenous background does not necessarily lead to a mitigation of a sentence; this was reaffirmed in the cases of R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13.
In this case, there is insufficient information that Barter’s assertion of Indigenous background would have led to a mitigation of the sentence. Barter has not provided linkages with his behaviours and factors emanating from a colonial disadvantageous history. Even though an offender is not required to draw a straight line between Aboriginal status and the offences charged, there must be more than a simple assertion of Indigenous ancestry. Similarly, there is nothing to link his addictions to his native ancestry.
The sentencing judge didn’t have to lessen the penalty considered appropriate when the offender established his status as a drug addict. In R. v. Breen (Nfld. C.A.), [1982] N.J. No. 43, such mitigation arises when the addiction results in behaviour entirely out of character.
Barter has a criminal history spanning almost 40 years; his offending is not out of character.
With the passage of time and the bulk of the sentence being served, the Court of Appeal found it inappropriate to quash the sentence and ask another court to consider further evidence in mitigation. Based on the information the Appeal Court has received, there is no expectation that the sentence will be reduced. The sentence appeal was dismissed.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.