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The Ontario Court of Appeal has rejected a father-son meth dealing team’s request for a sentencing reduction based on their Indigenous background, ruling that deterrence comes before consideration of historical oppression for those convicted of serious drug crimes.

The ruling – upholding seven-year jail sentences for both the father and son – is the latest to consider how the particular circumstances of Indigenous offenders should affect everything from sentences to bail to what a jury is permitted to hear about the accused during a trial.

Myles Anevich, a lawyer for the father and son, said the appeal ruling was at odds with other recent decisions, such as a British Columbia Court of Appeal judgment last month involving David Kehoe, a Métis man convicted of an unprovoked, near-fatal stabbing of a man who played loud music. The appeal court reduced Mr. Kehoe’s sentence to four years from five, based on a history of family violence and abandonment that affected him in childhood.

In the case of his own clients, Leopold Mercier and his son Matthiew Mercier, Mr. Anevich said the Ontario ruling Monday was out of step with a widely accepted approach to sentencing Indigenous offenders. That approach, he said, requires courts to consider whether Canada’s destructive policies toward Indigenous peoples have reduced an offender’s responsibility for their actions.

“I think this ruling is legally wrong,” Mr. Anevich said in an interview of the 3-0 judgment. “I was actually surprised by it. I expected to win it quite handily.” He said he is contemplating an appeal to the Supreme Court of Canada but has not received instructions yet from his clients.

Courts have been torn between protecting society and attempting to reduce the disproportionate incarceration of Indigenous offenders. In federal prison, 34 per cent of male prisoners are Indigenous, while Indigenous peoples make up a little more than 5 per cent of the country’s population. Under a 1996 federal sentencing law, judges are instructed to pay attention to the particular circumstances of Indigenous offenders at sentencing.

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The Supreme Court of Canada interpreted that law – in a 1999 manslaughter case called Gladue – as an attempt to reduce incarceration rates of Indigenous peoples. It told judges they may take it as a fact that intergenerational trauma from residential schools, colonialism and racism have harmed subsequent generations.

Ever since, judges in some cases have received “Gladue reports” from psychologists and others before they sentence Indigenous offenders; the reports set out backgrounds of disadvantage related to their ancestry.

The Merciers’ case was unusual in that Ontario Court Justice Ann Alder was not aware of the men’s Indigenous backgrounds. The defence and prosecution had jointly asked her for seven years.

The Merciers ultimately went to Ontario’s highest court, however, and asked to present Gladue reports. The court agreed to let them do so.

The reports showed that the father had been exposed in his childhood to domestic violence, abuse, inconsistent parenting and frequent moves between cities, foster homes and relatives. He struggled with addiction. His son, as a child, experienced his father being in jail. He was expelled from high school. Both had tenuous connections to their Indigenous community but in the Kehoe ruling, the B.C. appeal court said the lack of connection may itself be caused by colonialism, and the Ontario appeal court accepted that principle in the Mercier case.

Based on the Gladue reports’ exploration of their Indigenous background, Leopold, who had also been convicted of trafficking a firearm, asked for a reduction to five years, and Matthiew sought four years. Leopold is in his 70s and has a long record; Matthiew is in his 30s and had none. Both pleaded guilty.

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The appeal court said that, at first glance, the men had a compelling argument, given the Gladue factors. But the judges went on to cite Justice Alder’s ruling on the need to make drug dealers face a tough punishment. The Merciers, she said, had a “family business” that drew on a “staggering” supply of meth – 300,000 pills.

“The message has to be,” Justice Alder wrote, “that the profits may be significant but so too will be the loss of liberty. This message is required to attempt to stop or reduce these type of offences … for everyone, and that is because of the devastating consequences of having these drugs on our streets.”

The appeal court, after citing that comment, said: “The Gladue Reports in this case do not ultimately displace these considerations.” It added that an Indigenous background is “one factor” to consider but not “determinative.” The ruling was written by Justice David Paciocco, Justice Lorne Sossin and Justice Lise Favreau.

The ruling underscores a tension that persists in “Gladue” rulings, nearly 25 years after the initial case. The tension is between an automatic “sentencing discount” – which the courts reject – and reduced responsibility for one’s actions because of historical disadvantage, which the courts accept.

“Indicating that you are Indigenous does not automatically qualify you for a sentencing discount,” said Jonathan Rudin, program director at Aboriginal Legal Services, which was not involved in the case.

Mr. Anevich, the Merciers’ lawyer, said it is not a sentencing discount “if you can establish a causal nexus between assimilationist policies, or at least the reverberation of them, and the offending behaviour.”

Lisa Kerr, a law professor at Queen’s University, said she, too, was surprised by the ruling. She said compelling Gladue factors were at play, including intergenerational trauma leading to family instability.

“To my mind, compelling Gladue factors should impact every sentence, even where the final outcome may involve a significant period of custody,” she said.

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