British Columbia’s top court has broadened the sweep of a sentencing law meant to reduce incarceration rates among Indigenous peoples, ruling that Indigenous-specific sentencing can be applied even to offenders who have become disconnected from Indigenous communities and are only minimally aware of their heritage.
“Disconnection is one of the very harms associated with Canada’s colonial history and assimilationist polices,” Justice Len Marchand, the first Indigenous member of the B.C. Court of Appeal, wrote this week in a 3-0 ruling.
The decision reduces a five-year prison sentence to four in a case involving an unprovoked, near-fatal stabbing. It is not the first appellate ruling to mention disconnection. Ontario’s top court has taken a similar position, but Alberta’s is on the other side, cautioning against expanding sentencing principles “almost to a level of pure ethnicity.” The issue has not been debated at the Supreme Court of Canada, but the disparity in rulings means the nation’s highest court would have a compelling reason to take up the matter in the event of a future appeal.
The B.C. ruling applies directly only in that province, but will be read by judges across the country and could prove to be influential.
The offender, David Kehoe, is a Métis man who prosecutors argued had not been aware until recently of his Indigenous background. He was convicted of aggravated assault after he used a kitchen knife to stab a man who had played loud music in the parking lot 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 prior offences as a youth and as an adult. (The victim suffered a lacerated liver and punctured lung, and received life-saving surgery. He did not submit a victim-impact statement at Mr. Kehoe’s sentencing hearing.)
Under federal sentencing law, judges must pay particular attention to the circumstances of Indigenous offenders. The Supreme Court interpreted that law in a case called Gladue (which involved a fatal stabbing) to mean that the history of colonization has harmed Indigenous peoples, and that they are therefore entitled to special efforts to reduce their overrepresentation in the penal system. Social workers and others write “Gladue reports” for judges at sentencing time to detail Indigenous-related background factors.
Murray Sinclair, who chaired Canada’s Truth and Reconciliation Commission, said the decision on Mr. Kehoe’s case is an important one. “You’ve got an appellate court basically reminding trial judges to stop taking such a slack-ass attitude toward Gladue. Because that’s been the trend in the last several years,” he said.
Indigenous incarceration rates continue to rise. As of Christmas Day, 34 per cent of federal male prisoners were Indigenous, and among female prisoners the rate was 48 per cent, according to the Office of the Correctional Investigator. Indigenous peoples account for a little over 5 per cent of the country’s population. In 1997, they made up 3 per cent of the population and 12 per cent of men in federal prison.
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 normalization in his family of violence and neglect.
B.C. prosecutor Grant Lindsey noted in his arguments that Mr. Kehoe’s parents and grandparents had not gone to residential schools. His criminality was related in part to growing up with a non-Indigenous stepfather who used and trafficked drugs, Mr. Lindsey said. Justice Alan Ross of the B.C. Supreme Court accepted that there was little nexus between Mr. Kehoe’s Indigenous background and his crime, and sentenced him to five years in prison.
But the B.C. Court of Appeal said Justice Ross and the prosecutor misunderstood the harm done by Canadian policies. Justice Marchand, citing the Truth and Reconciliation Commission’s final report, wrote that Canada deliberately sought to eliminate Indigenous communities as distinct peoples. The real issue, he said, was the role that Mr. Kehoe’s disconnection played in his coming before the court.
Justice Marchand, who was appointed by the Trudeau government to the appeal court in 2021, added it was not “simply a coincidence” that Mr. Kehoe’s Métis mother had fallen into an unstable, dysfunctional environment. He cited the report of the National Inquiry into Missing and Murdered Indigenous Women and Girls to make that point.
He wrote that he agrees with Justice Ross that an unrehabilitated Mr. Kehoe presents a danger to society, but he added that there are signs Mr. Kehoe is rehabilitating himself.
Jonathan Rudin, special projects director at Aboriginal Legal Services, a Toronto legal clinic, said Justice Marchand writes sensitively and intelligently on Gladue-related issues, and did so as a lower-court judge as well.
“He said on the facts of this case, you need to look at what the dislocation 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 B.C. decision also highlights how federal sentencing law is being pulled in two directions in another sense. Quebec’s top court, for instance, has stressed the need for tough sentences to deter and denounce crimes committed by Indigenous men against Indigenous women.