Justice Ron Veale insisted that he needs more information before he can sentence a Watson Lake man on two counts of sexual assault.
Kenneth Stewart pleaded guilty last week to sexually assaulting two females, ages 13 and 16, in separate incidents.
The defence counsel asked that Stewart be sentenced to the time already spent in custody, about two years, and released.
The crown is seeking a four-year sentence.
The judge has requested that defence produce a document describing how Stewart’s First Nation heritage should be taken into consideration before he makes a decision about the length and type of sentence.
The defence lawyer asked to waive the right to have that information produced, but the judge denied the request.
The document the judge asked for is called a pre-sentence report. They typically include information about the offender’s personal history that could be taken into account when considering a jail term.
However, Judge Veale specifically requested a report with a “Gladue focus,” meaning specific information about a person’s aboriginal background and how alternatives to incarceration might be considered for sentencing.
The legal tradition of asking for this kind of information goes back to an amendment made to the criminal code in 1996 which states that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”
The Supreme Court of Canada’s 1999 decision, R. v. Gladue, offered the first interpretation of this new law.
That decision found that the requirement was “designed to ameliorate the serious problem of over-representation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.”
The Gladue decision has changed the way judges approach the sentencing of aboriginal offenders, as they are now required to take colonial histories, in addition to personal histories, into account.
“Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing,” the decision says.
The Supreme Court found that judges must take these special circumstances into consideration, but also that “The offender may waive the gathering of that information.”
It does not specify if a judge has the authority to deny an offender’s request to waive that right.
The findings of the Supreme Court in R. v. Gladue have been upheld in many subsequent decisions.
The irony in Stewart’s case is that it is possible that the judge’s insistence that his aboriginal ancestry be taken into account could actually increase the amount of time he spends in custody, although the legislation was specifically designed to decrease incarceration rates for aboriginal people.
The case returns to court in September.
Contact Jacqueline Ronson at
jronson@yukon-news.com