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| John L. Hill |
The 19-year-old had stabbed her husband upon discovering his infidelity while intoxicated after a party. After pleading guilty to manslaughter, she was sentenced to three years' imprisonment. She was paroled six months later. Some condemned the Gladue decision as an Indigenous “get out of jail free” card. However, the Supreme Court was adamant that sentencing judges must consider the unique circumstances of Indigenous offenders and alternatives to jail time.
On Oct. 26, 2019, Prince Rupert police were called to evict a renter of a hotel room suite. On arrival, the police did not find the renter. Instead, they found 29-year-old Colin Umpherville, who let them in the room. They also found a small quantity of methamphetamine in Umpherville’s possession. In the hotel room, the police
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At trial, Umpherville conceded he was guilty of drug possession but denied ownership of the firearm and ammunition, saying the goods belonged to the person sought to be evicted. It was held at trial that Umpherville was aware of and in possession of the weapon and ammunition. He was sentenced to five years imprisonment. He appealed (R. v. Umpherville, [2024] S.J. No. 365).
On appeal to the Saskatchewan Court of Appeal, he argued that the trial judge had erred in assessing Gladue principles. His sentence should be quashed and re-sentenced to 30 months less credit for remand custody.
In its assessment of Umpherville’s claim, the Saskatchewan Court of Appeal was forced to determine if Gladue principles were applicable. Although Umpherville’s father was of First Nations descent, a residential school survivor, and had struggled with addictions, he was largely absent from his son’s life. Umpherville traced his Métis heritage through his maternal great-grandfather; he did not feel a part of the Métis community or participate in its cultural traditions.
He did experience a horrendous youth witnessing his sisters being sexually violated and growing up in foster homes. He had been diagnosed with fetal alcohol spectrum disorder and attention deficit hyperactivity disorder. He dropped out of school after grade six. He began using alcohol and cannabis in his early teens; he took to selling drugs and had limited work experience. His criminal record lists 51 convictions.
Now 35 years old and the father of four children, he recognizes a need to change. But did the trial judge impose a demonstrably unfit sentence, allowing an Appeal Court to intervene (R. v. Friesen, 2020 SCC 9, R. v. Lacasse, 2015 SCC 64)?
In its determination that section 718.2(e) of the Criminal Code should be interpreted according to instructions in Gladue and R. v. Ipeelee, 2012 SCC 13, the Saskatchewan Court of Appeal looked not only at the wrong that had been committed (the “what” was done) but also looked at the context in which criminal actions took place (the “why” it was done). The Appeal Court cited R. v. Chanalquay, 2015 SKCA 141, as a necessary “jurisprudential touchstone” in ameliorating the problem of over-representation of Aboriginal people in prisons.
To ameliorate this problem, the court held that a sentencing judge has a non-discretionary duty to implement Gladue principles meaningfully. Although a criminal trial does not provide a forum to address the social determinants of crime, judges are expected to use the law to redress the staggering over-representation of Indigenous offenders in prisons. Gladue also directed that prison should be the last alternative, and where incarceration was necessary, the length of the sentence should be carefully considered.
The Saskatchewan Court also instructed lower courts to decide as instructed in R. v. Rabbit, 2023 ABCA 170 and have sentencing judges use empathy and ask how a person – not the world’s strongest or most resilient person – might be affected by difficult life experiences. Even though demanding denunciation and deterrence, the sentence imposed did not change the requirement to consider the secondary principle that bore upon the accused’s moral culpability.
Although unlawful firearm possession is always serious, it must be remembered that the gun was found in a backpack in a hotel room and not in a moving vehicle. It was not used as a part of an illegal event.
After considering many cases where firearms were used, recognizing the seriousness of the offence, and considering Umpherville’s extensive criminal history and potential for recidivism, a sentence of 36 months is deemed appropriate. However, with Gladue's principles in mind, a more just punishment would be 30 months less than 119 days of credit for pretrial custody.
The Saskatchewan Court of Appeal has endorsed looking at the “why” of the crime is as significant as the “what” crime was done. Gladue is not a way to go lightly on crime; it is a realization that simply getting tough on crime creates serious inequitable problems.
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.
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