Décision

[1]           The Crown seeks leave to appeal from a judgment of the Court of Québec, District of Beauharnois (the Honourable Judge Marie-Chantal Doucet), rendered November 30, 2017, which, inter alia, sentenced Dylan Diabo and Joseph Kirby to fines of $119,000 each, plus one year of probation and 50 hours of community service for one count of unlawful possession of unstamped tobacco products, contrary to s. 32(1) and 216(1)(a) of the Excise Act, 2001, an offence prosecuted by indictment.

[2]           For the reasons of Kasirer, J.A., with which Rochette and Healy, JJ.A. agree, THE COURT:

[3]           GRANTS the motion for leave to appeal;

[4]           DISMISSES the appeal.

[5]           Convicted of unlawful possession of unstamped tobacco products under the Excise Act, 2001,[1] Dylan Diabo and Joseph Kirby were sentenced by the Court of Québec to the statutory minimum fine of $119,000 each, with one year of probation and 50 hours of community service.[2] The judge declined to follow the Crown’s suggestion of 90-day prison terms for these two first-time offenders.

[6]           In the course of deciding the fit sentence, the judge observed that a significant proportion of contraband tobacco in Canada is smuggled through a region covered in part by the judicial district of Beauharnois near Montreal. The offenders live on the Kahnawake reserve, located in that district. They are Indigenous persons and members of the Mohawk Nation.

[7]           As a resident judge in Beauharnois, the judge noted that tobacco smuggling files appear on the court’s roll every week. Citing the Supreme Court in Lacasse,[3] she characterized the local problem as a “scourge”. The seriousness of the offence, the consequences of consumption of illicit tobacco on public health, and the connections between tobacco smuggling and organized crime on the reserve all suggested to the judge that a prison term would ordinarily be the appropriate sentence in order to satisfy sentencing objectives of deterrence and denunciation, even for a first offence.

[8]           After considering the relevant “Aboriginal reality”, however, the judge chose instead to sentence the offenders to fines, probation and community service.

[9]            The Crown seeks leave to appeal. It argues that the judge erred in applying s. 718.2(e) of the Criminal Code which provides that reasonable sanctions other than imprisonment should be considered for all offenders, “with particular attention to the circumstances of Aboriginal offenders / plus particulièrement en ce qui concerne les délinquants autochtones”.

[10]        After deciding that a prison term was required here, says the Crown, the judge erroneously chose to impose a more lenient penalty because the offenders are Indigenous persons. Counsel recalls that Cory and Iacobucci JJ. explained in R. v. Gladue that “s. 718.2(e) should not be taken as requiring an automatic reduction in sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal”.[4] The Crown contends that there was no evidence before the judge indicating how systemic discrimination in the Indigenous community was linked to the offenders themselves or to the commission of the tobacco-smuggling offence for which they were convicted. The scourge observed by the judge and the amount of contraband tobacco involved commanded prison terms for the offenders. In the circumstances, the fines, probation orders and community service imposed amount to an unfit sentence.

[11]        In my respectful view, the proposed appeal is ill-conceived. The Crown’s arguments are based on a chronic misperception that s. 718.2(e) Cr.C. grants Indigenous offenders a “race-based discount”[5] on sentence when, in point of fact, it simply gives a more precise expression to the venerable principle that a sentence must be individualized in order to be fit and proportional.

I           CONTEXT

[12]        Just after midnight on April 24, 2013, a van driven by Mr. Kirby in which Mr. Diabo was a passenger was stopped on the reserve by the R.C.M.P. pursuant to powers under the provincial Highway Safety Code. One of the police officers noticed a strong tobacco odour emanating from the vehicle and, while it was found to be carrying no cargo, some trace tobacco was seen on the floor. The officers released the respondents but kept the van under surveillance. Just before dawn the next morning, the vehicle was intercepted again. This time the police found 700,000 cigarettes in the rear and the respondents were detained. Soon thereafter, they were arrested and charged with unlawful possession of unstamped tobacco under the Excise Act, 2001.

[13]        At trial, the respondents offered no defence. Based on the evidence transferred from a voir dire and certain admissions, the trial judge found them both guilty.[6]

[14]        “Gladue reports”[7] were produced for both offenders prior to imposing sentence. Some of their family history and the circumstances of the Indigenous population in Kahnawake were recorded in those reports. What follows is a summary.

[15]        Born in Montreal when his mother was 15 years old, Dylan Diabo first lived in Kahnawake. At age 2, he moved with his mother to a nearby reserve and then returned with her to Kahnawake, at age 5, where he has lived ever since. Mr. Diabo was 21 at the time of his arrest and 26 at the time of sentencing. According to the Gladue report, he had a close relationship with his grandmother who cared for him for much of his childhood. He had no substantial relationship with his biological father. Mr. Diabo was shaken when, at age 14, he witnessed the accidental, drug-related death of his step-father with whom he was close.

[16]        Dylan Diabo lives in a long-term conjugal relationship with a Mohawk woman who is a social worker on the reserve. They have a son who was three at the time of sentence. Mr. Diabo has several siblings and half-siblings who also live on the reserve.

[17]        He graduated from high school at 16 and has been employed as an ironworker since 2008, although he was not working at the time of the offence.

[18]        Mr. Diabo described incidents in which he experienced racism by reason of his Indigenous heritage while participating in school sports. There was some family history of abuse recorded: his grandmother, who was interviewed for the report, explained that her mother and uncle had attended residential schools and that they had suffered mistreatment there. Mr. Diabo had no personal problems of addiction, nor did he report suffering abuse as a child. He said that he began drinking and experimenting with marijuana as a youth but gave it up when his son was born.

[19]        The Gladue consultant recorded Mr. Diabo’s connection to his community and his Mohawk identity. The report noted that he attended ceremonies and Longhouse socials as a child; he continues deer hunting and fishing with family members. His grandparents spoke the Mohawk language but he does not, as “the language was not passed down”. In respect of the systemic and background factors of Indigenous people that may have played a part in bringing this offender before the court and the specific case factors that have had an impact on Mr. Diabo, the consultant wrote:

In the present case we are looking at Dylan Diabo, a Mohawk man from Kahnawake, a community who suffered from governmental measures of assimilation like others in Canada and their long lasting effects on the generations to follow. The multigenerational trauma created from these policies of assimilation is recognized as having an impact up to this day on Indigenous communities […]. Dylan’s great-grandmothers Margaret Jacobs and Mary Montour attended residential school in Spanish, Ontario from age 6 years old to 15 years old, without coming home for the summers; Dylan’s great uncle was sexually abused while a boy at residential school; Dylan has lost his language, culture, traditions; Dylan never knew who his biological father was until age 8; Dylan has no relationship with his biological father; Dylan experienced racism at school, sports events and at work; Dylan witnessed and was traumatized by the sudden death of his step-father and sole male role model; Dylan started drinking alcohol at age 16 and smoking marijuana at age 18. Those are some of the Gladue factors that require specific attention by the court and they should be considered.

[20]        Mr. Diabo had no previous convictions. He was meeting regularly with a psychologist at the time of the report and “wants to stay sober in order to go to work every day”. Remorseful for the conduct leading to his conviction, Mr. Diabo admitted candidly that he committed the offence for “extra money”.

[21]        Joseph Kirby was 34 years old at the time of the arrest and 39 at sentencing. The Gladue Report states that he lives with his fiancée and her four children on the reserve, and with two of his four children from previous relationships. He was unemployed at the time the report was prepared, but hoped to be working soon in New York as an ironworker, a field in which he has experience. He is a high school graduate and planned to remain an ironworker until retirement.

[22]        His father was also a Mohawk ironworker. Mr. Kirby stated to the author of the Gladue report that he recalls, as a child, his father being drunk and regularly assaulting his mother. The offender’s relationship with his father is now a good one. When growing up playing hockey, he was subject to racist taunts because of his Indigenous heritage. No other abuse was reported. While he does not have an alcohol or drug problem, Mr. Kirby did state that he started to drink at the age of 12 or 13, and that he had been drinking on the night of his arrest in this file.

[23]        Mr. Kirby learned the Mohawk language at school and with his father and grandparents who were fluent. He attended Longhouse ceremonies as a child, but he is less able to do so now because he works in New York most weeks and generally is only on the reserve on weekends.

[24]        Under the section “Gladue considerations” for Joseph Kirby, the consultant reproduced, in identical language, much of what she had said in respect of Dylan Diabo. Noting that Mr. Kirby lived in a community that had “suffered from governmental measures of assimilation” resulting in “multigenerational trauma”, she added:

We are looking at Joseph Kirby, a 38 year old Mohawk man from Kahnawake, as a young child Joseph witnessed his father’s violence against his mother; Joseph experienced racism at sports events off the reserve; Joseph experienced the sudden deaths of a young cousin and a friend; Joseph tried alcohol/marijuana at age 12-13 the first time; at age 16, Joseph served 6 months at a youth facility and at the same time he became a father to his first born daughter; …….. Those are some of the Gladue factors that require specific attention by the court and they should be considered.[8]

[25]        He has no prior adult convictions; the report recorded unspecified proceedings brought against him when he was a minor. Mr. Kirby also expressed regret for his conduct and admitted that he committed the offence for “easy money”.

[26]        The Gladue consultant described the Mohawk community in which both offenders live in identical terms in the two reports. She wrote that the reserve is located about 10 km from Montreal and, with a population of about 8000, it is one of eight communities that make up the Mohawk Nation. While residents of Kahnawake once spoke predominately the Mohawk language, today they are mostly English speaking, contrasting with the largely French-speaking communities in and around Montreal. The reports stated that the Mohawk people, like other Indigenous peoples in Canada, have been subject to government measures and policies “based on assimilation, oppression and discrimination”. Reference was made in particular to the negative impact in Kahnawake of the conflict relating to the use of territory in the nearby Kanehsatake reserve in 1990.

[27]        The reports canvassed the advantages of the reserve being located so close to an urban center, “along with the negative influences affecting a nation in distress”. The economic conditions on the reserve were nevertheless described as having “flourished” in recent years. The consultant noted that the historical practice of Mohawks working in construction, particularly as ironworkers in New York, continues. The reports recorded that a “resurgence of Traditional Mohawk Culture” may be observed in Kahnawake, including language proficiency and ceremonial practices. This effort to promote a sense of ancestral identity has been necessary to counter the “negative influence” of government and organized religion and to “heal the generations from the effects of many years of oppression”.

[28]        At the hearing on sentence, the Gladue consultant explained summarily the availability of “alternative dispute resolution” methods available in the Kahnawake community. Under questioning, she declined to comment on whether contraband tobacco activities were tolerated on the reserve.

II          JUDGMENT OF THE COURT OF QUÉBEC ON SENTENCE[9]

[29]        The judge noted the Crown’s suggestion for prison sentences and the proposal from defence counsel for the minimum fines set out in s. 216 of the Act.

[30]        After reviewing the decided cases sentencing offenders for unlawful possession of unstamped tobacco, she noted that courts have expressed a preference for imposing fines for what have been characterized as “economic offences” under the Act but that prison terms have been imposed in some circumstances.

[31]        The judge wrote that, ordinarily, the severe problem of tobacco smuggling in the region would require prison terms here in service of sentencing objectives of denunciation and deterrence. “However”, she continued, “in light of section 718.2 of the Criminal Code and of the Gladue decision, a prison sentence is not appropriate in the personal situation of the accused, who are Aboriginal. The Court’s explanation follows” (para. [18], translation).[10]

[32]        The judge went on to describe the seriousness of the offences. Noting first that tobacco smuggling deprives the government of tax revenues to which it is entitled, she added that the offences have a negative impact on public health given that contraband is sold without the requisite warnings found on cigarette packaging. She observed further that the gravity of the offences is more marked in that organized crime is involved in the illegal tobacco trade, including on the reserve (paras [19] to [22]).

[33]        The judge then highlighted the fact that as much as 70% of the contraband tobacco in Canada transits through the Cornwall-Valleyfield corridor. As a judge familiar with the district of Beauharnois, she described it as a “place of choice for smuggling tobacco” and said that she was aware that it is a “scourge” in the region (para. [27]).

[34]        She stressed the seriousness of the charges in the case at bar. The quantity of tobacco seized was “considerable” and, while the offenders were simply “carriers”, the judge was of the view that “each link in the chain has its importance” (para. [32]).

[35]        Summing up her analysis of the gravity of the charge, the local situation and Parliament’s recognition of the seriousness of the crime, the judge repeated that these factors required imprisonment in order to denounce and deter this conduct in the judicial district. Even in the absence of prior convictions, the judge wrote that the terms of imprisonment suggested by the Crown would be appropriate (paras [34] and [35]).

[36]        The judge then turned to a consideration of s. 718.2(e) Cr.C.

[37]        Citing Gladue, she noted that systemic and background factors have led to an overrepresentation of Indigenous offenders in prisons, “arising from numerous causes that include poverty, substance abuse, and lack of education and of employment opportunities” (para. [38]). Added relevant factors here include the reliance of the Kahnawake economy on tobacco smuggling. The fact that the English-speaking local population has limited employment opportunities in part by reason of a “language barrier”, given that French is most commonly used off the reserve, is a further problem (para. [40]).

[38]        The Gladue reports indicated the reserve territory has become smaller over time; members of the community have suffered discrimination and assimilation as a result of government measures which have “impacted Aboriginal culture and identity for many generations” (para. [43]). Nevertheless, the judge noted that in recent years, economic fortunes have improved and that members of the community are “regaining their personal and cultural honour” (para. [44]).

[39]        The judge then proceeded to review the situation of the offenders, noting they had no adult criminal records. She considered specifically some of the family history of each of Joseph Kirby and Dylan Diabo and observed that they both expressed remorse. In the case of Mr. Kirby, she noted a willingness to undertake community service (in French, “mesures communautaires”) as part of the sentence (para. [51]).

[40]        Finally, the judge recognized her duty to consider alternative sentences to imprisonment for Indigenous offenders. She concluded that a minimum fine together with community service is the just and appropriate sentence for both Dylan Diabo and Joseph Kirby. The judge recalled that she must not grant an “automatic reduction of a sentence for Aboriginals” and that sentences must be “individualized” (para. [61]). Fines, together with probation and community service would be the fit sentence in the circumstances. The sentences met, in her view, the objective of deterrence and were “adapted to the Aboriginal reality” (para. [62]).

III         ARGUMENTS OF THE PARTIES

[41]        In seeking leave and, if granted, in support of the appeal itself, the Crown submits that the sentencing judge misinterpreted s. 718.2(e) Cr.C. and, in so doing, rendered an unfit sentence. Proper application of the principles set forth in Gladue and Ipeelee should have led the judge to impose a prison sentence for both respondents.

[42]        In essence, the Crown argues that the judge erred in respect of the methodology relevant to s. 718.2(e), leading her to impose a more lenient sentence upon Dylan Diabo and Joseph Kirby simply because they are Indigenous offenders. The Crown says that the judge herself concluded that, but for that factor, the fit sentence for possession of contraband tobacco was a prison sentence, even for first offenders, given the seriousness of the offence and the local scourge of contraband tobacco.

[43]        Not only did the judge err in providing the respondents with a “race-based discount”, she should have concluded, under s. 718.2(e), that their circumstances as Indigenous offenders were irrelevant to sentencing here. She erred in finding that the systemic and historic factors were tied to the commission of the offences.

[44]        Specific instances of the misapplication of s. 718.2(e) are advanced by the Crown: the judge wrongly held that community tolerance of the offence and its desire to regulate the tobacco trade were relevant under s. 718.2(e); she failed to consider all of the evidence relating to the positive economic situation on the reserve; and she relied inappropriately on restorative justice principles.

[45]        At the hearing, counsel insisted that the significant amount of contraband tobacco involved here meant that, for reasons of deterrence and dissuasion, a prison term was the only fit sentence, irrespective of considerations relating to s. 718.2(e).

[46]        In sum, the Crown concludes that a prison term of 90 days - as it had proposed to the sentencing judge - would be the fit sentence for this offence, notwithstanding the fact that they are Indigenous offenders.

[47]        The respondents argue that the judge made no errors in applying the relevant principles of sentencing, and that her choice not to impose prison terms merits deference on appeal. Alternatively, even if the judge erred in respect of s. 718.2(e), the respondents’ circumstances - the fact that they were found guilty of an economic crime, that they were first-time offenders who showed remorse, and only had a minor role in the smuggling operation - all point to the appropriateness of sentences other than imprisonment, without regard to their Indigenous heritage.

IV        ANALYSIS

[48]        The application for leave to appeal referred to the Court should be granted. The Crown’s arguments that the judge erred in applying s. 718.2(e) Cr.C. are sufficiently serious to satisfy the requirement for leave in s. 676(1)(d) Cr.C.

[49]        While I would grant leave, I would not disturb the sentence. I am not convinced that the judge committed an overriding error in her application of s. 718.2(e) Cr.C. Specifically, the sentence does not reflect a “race-based discount” but is merely the result of the exercise of the judge’s discretion to set a proportional and individualized sentence with a view to the whole of the circumstances.

IV.A     Gladue Framework

[50]        Before examining the grounds for appeal more closely, I find it useful to review s. 718.2(e) Cr.C. and some of the relevant authorities. At the time the offences were committed,[11] the Code provided:

[51]        Parliament directs, in s. 718.2(d), that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate. Section 718.2(e) underscores that approach for sentencing all offenders, and emphasizes that particular attention should be paid to the circumstances of Indigenous offenders. The Supreme Court has said that s. 718.2(e) is a remedial provision designed to contribute to correcting the problem of overrepresentation of Indigenous persons in Canadian prisons and to encourage judges to adopt a “restorative approach to sentencing”.[12]

[52]        In both Gladue and Ipeelee, the Court emphasized that s. 718.2(e) serves to “alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders” to take into account that the circumstances of Indigenous offenders are different from non-Indigenous offenders.[13] Specifically, LeBel J. explained in Ipeelee:

[59] […] When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).

[53]        Counsel has a “duty”[14] to bring individualized information before the court in every case, unless an offender waives his or her right to have it considered, as a means of supplementing evidence of the systemic and background factors affecting Indigenous people in Canada generally. Sentencing judges also have a “duty”[15] to craft a sentence that is fit and proper for the offence, the Indigenous offender and the victim.

[54]        The Supreme Court has been careful to explain that s. 718.2(e) Cr.C. is not an invitation to discount an otherwise fit sentence simply because an offender is an Indigenous person. “Rather”, wrote LeBel J. in Ipeelee, “sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case”.[16] In other words, the exercise remains one that stresses the individualization of a sentence, with regard to the “unique circumstances”[17] of a given Indigenous offender. Lastly, the offender does not have the burden of proving a causal link between the systemic and background factors alluded to in Gladue and Ipeelee and the commission of the relevant offence. These factors provide the necessary “context” to enable a judge to fix the appropriate sentence, and it is enough that they be “tied in some way to the particular offender and offence”.[18]

IV.B    Alleged Methodological Error

[55]        The Crown points specifically to paragraphs [18] and especially [35] of the judgment in support of its argument that the sentencing judge wrongly imposed a more lenient sentence simply because the respondents are Indigenous offenders. The judge wrote that the local scourge of tobacco smuggling, as well as the seriousness of the offence and its consequences on the public, would ordinarily mandate a prison sentence. After emphasizing that it was necessary to denounce and deter this kind of conduct in the judicial district of Beauharnois, she indicated that the public must be “informed of the severity of the punishment” (para. [33]), even in the case of first offenders: “In this light”, she wrote, “the Court considers that the terms of imprisonment suggested would be the appropriate sentences” (para. [35]).

[56]        The judge went on to consider s. 718.2(e) and the “Aboriginal reality” as it related to the convictions. In paragraphs [62] and [63], she concluded her reasons by alluding to the fact that the respondents were Indigenous offenders in a manner that suggests that she set aside the prison sentences that she would have imposed as fit sentences and substituted fines merely for that reason.

[57]        Did the judge err by granting the respondents a “race-based discount” on sentence as the Crown suggests?

[58]        The Crown is right to say that the manner in which the judgment was organized and written - the judge’s initial assertion that a prison term was an “appropriate” sentence followed by a Gladue-type analysis where she concluded that prison should not be imposed on the Indigenous offenders - could foster the impression that the respondents were afforded a “discounted” sentence by reason of their status. Had this reflected the judge’s sense of how to fix the sentence, it would have been a mistake in law: Ipeelee and Gladue, as noted above, stand firmly for the view that s. 718.2(e) Cr.C. does not grant a “remission of a warranted period of incarceration, simply because the offender is aboriginal”.[19]

[59]        Indeed, courts have warned against this kind of reasoning in their discussion of the methodology relevant to s. 718.2(e). Chief Justice Richards wrote the following for the Court of Appeal for Saskatchewan in R. v. Chanalquay[20] on errors of method in sentencing Indigenous offenders:

[37]      I observe as well that the analysis mandated by s. 718.2(e), as explained in Gladue and Ipeelee, is not a free-standing inquiry that is brought into play to adjust an otherwise fit sentence after it has been determined. Instead, the analysis is an integral part of the reasoning which leads to a fit sentence (Gladue at para 88). It does not stand outside of that reasoning and judges should not approach the sentencing exercise with a view to giving (or not giving) a specific or express reduction in a sentence because of Gladue factors. This is not what Gladue and Ipeelee provide.

[60]        A fit sentence cannot, of course, be ascertained prior to the exercise of individualizing the penalty to take into account the circumstances of the offender. To do otherwise would suggest that a judge is right to sentence the offence and not the offender, which is diametrically opposed to s. 718 et seq. Cr.C.[21] This kind of approach would contradict the method “designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed”.[22] To isolate the so-called Indigenous dimension of the sentencing process wrongly suggests that s. 718.2(e) stands apart from the general principles of individualization and proportionality in sentencing. In this sense, LeBel J. wrote, “Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences of the person standing before them”.[23]

[61]        When the judgment is read as a whole, however, it is plain that the judge did not in fact discount the sentence merely because the offenders are Indigenous persons. Her concluding paragraphs confirm that view:

[62]        Her observation that prison was required by reason of the local scourge of contraband tobacco was more in the nature of a preliminary comment prior to undertaking a complete analysis of what would be a fit sentence for Dylan Diabo and Joseph Kirby as individuals standing before her. The judge in no way neglected her duty to individualize the sentences. Paragraphs [45] to [60] speak directly to the circumstances of the offenders with, as Parliament mandates, particular attention to their circumstances as Indigenous offenders. In paragraphs [61], the judge explicitly warns herself against automatic reductions in sentence and recalls that “[s]entencing must be an individualized process”. The judge understood that she could not determine fit sentences without ensuring that they be proportional, including proper attention given factors relevant under s. 718.2(e) as part of the individualized sentencing exercise. And in paragraph [62], she recalled her duty, following Gladue and Ipeelee, to consider alternative sentences to prison terms before concluding as she did.

[63]        I am not convinced that an error in method having an impact on the sentence was made. Respectfully stated, it may have been more appropriate for the judge to have avoided offering a preliminary comment on the appropriateness of a prison term before considering factors relating to the individualization of the sentences. But even if one were to consider the manner in which the reasons were written as reflecting the mistake in method pointed to in Chanalquay, supra, the error is not, on its own, one that impugns the judge’s conclusion as to the fit sentence because the judge explained, in plain terms, how the respondents’ circumstances as Indigenous offenders contributed to the determination of a fit sentence. The Crown has not shown how the judge’s preliminary comment had an impact on the sentence in a manner that would invite intervention on appeal.[24]

[64]        But the Crown argues further that the judge’s analysis of the individual circumstances of the two offenders was also flawed because she took into account Gladue factors that were irrelevant to the case. I turn now to these grounds of appeal.

IV.C    Link between the systemic and background factors relevant to the Indigenous offenders and the offences they committed

[65]        The Crown argues that the sentencing judge “erred in concluding that the Respondents had established that the systemic and background factors identified in Gladue were ‘tied in some way’ to them and the offence they committed”.

[66]        While it recognizes that the respondents do not have to show a causal connection between these factors and the offence committed, the Crown contends that they need to establish “some specific link” between the factors and the circumstances relating to the commission of the offences. In the case of respondents, there was no evidence demonstrating how systemic discrimination suffered in the Kahnawake community was relevant to the commission of the tobacco smuggling offences.

[67]        The Crown returns to its race-based discount argument. Here, says the Crown citing R. v. Popowich,[25] the judge committed an error of principle by applying an “automatic discount” based on the negative experiences of the respondents’ ancestors and ignored the fact that the respondents themselves suffered no abuse and committed the offences simply to gain extra money.

[68]        This is, to my mind, the Crown’s most serious argument.

[69]        Systemic and background factors, as the Supreme Court recalled in Ipeelee, may bear on the offender’s culpability, “to the extent that they shed light on his or her level of moral blameworthiness”.[26]

[70]        In Ipeelee, LeBel J. explained that it is a mistake to require the offender to show “a causal link between background factors and the commission of the current offence” and that care must be taken not to impose an “evidentiary burden on offenders that was not intended by Gladue”.[27] Writing for the majority, he noted that systemic and background factors “provide the necessary context to enable a judge to determine an appropriate sentence”, but that

[t]his is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.[28]

[71]        In essence, the Crown’s argument is that the systemic and historical factors are not tied to these particular offenders or to the offence. The respondents themselves are not, says Crown counsel, struggling with “important issues”; they have regularly been employed; they have good support from their family and social “networks”, as the Gladue consultant remarked. The crimes were committed for “easy” or “extra” money when they could have worked in lawful pursuits on or off the reserve. These are not cases of poverty or of substance or physical abuse connected to the respondents’ Indigenous heritage. As a result, says the Crown, the sentencing judge should have observed the absence of “link” within the meaning of Ipeelee and set aside s. 718.2(e) as a possible mitigating factor and reverted to her preliminary view that terms of imprisonment were the fit sentences, even for first offenders like the respondents.

[72]        It is best to acknowledge that the offenders here are unlike many Indigenous offenders for whom the “link” between systemic and background factors and the circumstances of the offence they committed is more manifest.[29] The same cannot easily be said of the respondents who, by all available accounts, had a less traumatic upbringing and now have the advantage of stable support networks and reasonable employment prospects.

[73]        That said, the judge rightly took note of the problems facing Indigenous people “with respect to criminal justice and society in general” (para. [39]) as part of the context she had the duty to consider in sentencing the offenders. She accepted the evidence in the Gladue reports as relevant on that basis, as well as statistical evidence produced by the defence as to rates of incarceration in the Indigenous population,[30] and wrote:

[43]      The community of Kahnawake, like several others, has suffered assimilation and discrimination by different measures put in place by the government, which has impacted Aboriginal culture and identity for many generations.

[74]        It is true that the case-specific commentary in the judgment in respect of relevant links between Indigenous heritage and the personal circumstances of the offenders is also not robust. The judge was not, however, unaware of the relative advantages of the respondents and, at the same time, she recorded particular factors that may have played a part in bringing them before the court. Unlike Popowich cited here by the Crown, the sentence was not reduced merely because the offenders were inheritors of the legacy of some historical misfortune or distant trauma.[31] Here the judge relied on evidence in the Gladue reports on the particular Indigenous community and on specific information about the two offenders.

[75]        The judge noted that Mr. Kirby witnessed domestic violence at home as a child and that he began using alcohol and drugs as early as 12 years old. She recognized that Mr. Diabo’s family circumstances were challenging: his mother gave birth as a teenager; his step-father died in a drug-related death. Like Mr. Kirby, he used drugs and alcohol as a youth. The judge’s allusions to loss of Mohawk culture and multigenerational trauma (para. [43]) find support in the personal histories of both offenders as revealed in the Gladue reports. There was also evidence, which she did not mention, that both offenders had first-hand experiences as victims of racist taunts. On my reading of the judgment, these systemic and background factors, as well as the case-specific commentary, formed part of what the judge called “the whole of the specific circumstances in the records of all of the accused” (para. [63]) that justified finding the “link” required by the Supreme Court in Ipeelee.

[76]        In our case, the judge explained adequately that the offenders’ moral culpability was affected by Gladue factors and that the resulting sentence was tailored, in part, having regard to those factors. She explained how the Kanawake community suffered economically and socially as a result of untoward treatment of Indigenous people over time and, specifically, how the two offenders and their families had been affected.

[77]        In reviewing the finding on this point on appeal, I am mindful of the advantage that the judge had hearing the evidence first hand, as well as of her experience as a resident judge in the judicial district. Her views are entitled to deference, subject to the caveat explained in Lacasse.[32] Furthermore, appellate courts in Canada have underscored the importance of deference with regard to a sentencing judge’s evaluation of Gladue factors that mitigate an offender’s moral blameworthiness.[33] As Steel, J.A. wrote in R. v. Anderson[34] for a unanimous panel of the Manitoba Court of Appeal, “the sentencing judge is entitled to deference in her decision to apply Gladue principles so as to avoid lengthy incarceration for this individual”.

[78]        The Crown has identified no error of law or of principle on this point: the judge understood that while the respondents did not need to show a causal connection, they were required to show a link between the circumstances of the commission of the offence and the systemic and background factors identified in Gladue. For the judge, that link came from historical patterns of discrimination and government policy that affected the development of the offenders’ community, both culturally and economically, and had an impact on the lives of them and their families. The judge noted further case-specific experiences for both offenders that she considered to be relevant to the determination of a fit sentence. Those findings find support in the evidence.

[79]        On close consideration, it is clear that the Crown disagrees with the judge’s reading of the evidence relating to those factors and the case-specific materials as they relate to Dylan Diabo and Joseph Kirby and the offences committed, but it has pointed to no overriding error in the judge’s understanding of the facts here. Moreover, the Crown has failed to indicate why this Court should prefer its reading of the facts to that of the Gladue consultant. Nothing has been shown to displace the deference owed on appeal to the judge’s findings relating to the connection between the Gladue factors and the respondents. Another judge may have decided otherwise, but deference encourages us not to disturb her findings under s. 718.2(e). While the sentencing judge might have explained the link between the systemic and background factors and the presence of the offenders before her more explicitly, no reviewable error has been shown.

[80]        To quote LeBel J. again from Ipeelee, the evidence led under s. 718.2(e) provided the necessary “context” to enable the judge to determine the appropriate sentence. I see no overriding error in her conclusion that these factors were tied to Dylan Diabo and Joseph Kirby and the offences they committed. I would reject this ground of appeal.

IV.D    Tolerance and self-regulation of trade in contraband tobacco on the reserve

[81]        The Crown argues that the judge erred by concluding that community tolerance of the illegal tobacco trade on the reserve was a “systemic factor” that should be considered among the circumstances relevant, under s. 718.2(e) Cr.C., to the determination of the offenders’ sentences. It also argued that the judge erred by taking into account the Kahnawake community’s desire to self-regulate contraband tobacco.

[82]        The self-regulation argument should be rejected out of hand. When the judge mentioned, in paragraph [41], that “[t]he Aboriginal communities want to remedy this problem in a different manner than by increased sentences”, she was in no way delegating the choice as to what the fit sentence should be to the community. In fact, she was likely drawing from a note made in the Legislative Summary of Bill S-16: An Act to amend the Criminal Code (trafficking in contraband tobacco), a document submitted by the Crown on sentence.[35]

[83]        Did the judge mistakenly consider the community tolerance of the crime as a factor in her Gladue analysis?

[84]        Under the heading “Aboriginal reality”, the sentencing judge did refer to the pre-sentence report of the offender Taylor Diabo which commented on the extensive reliance on contraband tobacco in the community which is “accepted” by the local government and the peace keeping authorities (para. [40]).

[85]        I agree with the Crown that tolerance of contraband tobacco on the reserve, assuming it were established as a matter of evidence, should not be considered directly as a relevant factor under s. 718.2(e) analysis. Even where systemic factors are relevant, they do not serve to excuse criminal conduct.[36]

[86]        The better view is that the widespread illegal economy associated with contraband tobacco in the region helps to explain, at least indirectly, the economic setting of the Indigenous community in which the offences were committed. On this point, I find that R. v. Jacco,[37] a sentence imposed by Lachance J., then of the Court of Québec, offers a useful discussion of the attitudes towards contraband tobacco on the Kahnawake reserve. In that case, the sentencing judge wrote that the economy on the reserve relied heavily on the illegal tobacco trade and that the authorities on the reserve tolerated these activities. She recognized, rightly in my view, that community tolerance was not a systemic factor relevant under s. 718.2(e) Cr.C., “though poor social and economic conditions are”.[38] In other words, the prosperity related to illegal activities was accompanied by a weak or underdeveloped legitimate economy on the reserve and that latter fact is a relevant factor for analysis under s. 718.2(e).

[87]        As LeBel J. noted in Ipeelee, Indigenous offenders may find themselves “in situations of social and economic deprivation with lack of opportunities and limited options for positive development”.[39] Like other factors, the relevance of this is always a matter of degree, but the presence of a black market economy that limits options or positive development for the respondents could fairly be taken into account based on evidence before the judge.

[88]        There was evidence that the judge could rely on that indicated that the respondents’ legitimate employment prospects on the reserve were limited and that they often had to leave to find contract work as ironworkers in New York.

[89]        Indeed, some of the very studies submitted in first instance by the Crown suggest that much of the good economic conditions on the reserve can be associated with this illegal tobacco trade.[40] The judge drew the inference - and it is not an unfair one - that the legal economy offers fewer opportunities for residents and that, as noted in Jacco, the relatively depressed legal economy on the reserve is a relevant systemic factor.[41]

[90]        In any event, I am not convinced by the Crown’s argument that the sentencing judge fell prey to the error of considering community tolerance a mitigating factor relevant under s. 718.2(e).[42] As noted above, the judge observed that this tolerance does not mean than Indigenous communities want to treat contraband tobacco with impunity, but simply, she observed in paragraph [41], that they “want to remedy this problem [of the heavy reliance of the economy on illegal tobacco] in a different manner than by increased sentences”.[43] Furthermore, the judge took pains to note that both Dylan Diabo (para. [56]) and Joseph Kirby (para. [50]) acknowledged that what they did was wrong and showed remorse before her. Nowhere did she expressly say that they felt entitled to act as they did or that they had a right to be relieved from criminal sanction because of community tolerance. This ground of appeal is rejected.

IV.E     Failure to consider favourable economic conditions on the reserve

[91]        The Crown submits that the judge erred in that she failed to recognize that the proof regarding the economic situation on the reserve was contradictory and, in particular, that there was evidence suggesting that the economy was, in the words of the Gladue consultant, “flourishing”. Moreover the reserve is not isolated and, says the Crown, the judge failed to consider that “[i]t is located in the greater Montreal area, where there are many employment opportunities available, including those for English-speaking people”.

[92]        This argument is unfounded.

[93]        The judge said little about the economic conditions on the reserve, except to mention that “[i]n the past few years, the community has been economically sound” (para. [44]). She plainly did not mistake the reserve to be an especially impoverished place among Indigenous communities. As for the characterization of the economy as “flourishing” in the Gladue reports, the judge was not bound by this adjective which, respectfully stated, appears to me to be an ill-chosen way to describe a community that, while hardly prosperous, is nevertheless on the up-swing.[44] But while economic conditions may be better in Kahnawake than in some other Indigenous communities, the evidence before the judge was sufficient to show that the community had suffered the systemic effects of government policy and discrimination that served to inhibit the economy and the prospects of people who live on the reserve. It would not be unfair, either, to attribute some of the relative economic well-being to the illicit tobacco trade, in which case it is plainly wrong to consider Kahnawake’s economy as “flourishing” on any absolute measure.

[94]        As for the Crown’s view that the reserve is not “isolated”, the judge certainly did not mistake Kahnawake for a geographically isolated Indigenous community without economic opportunities. But the Crown’s argument is, to say the least, predicated on a fallacy: the mere fact that an Indigenous community, or Indigenous offenders, live close to an urban centre is no guarantee of a job where - as the evidence here discloses - the Mohawk people have suffered generations of discrimination and relative economic disadvantage compared to non-Indigenous people who live in and around Montreal. Frankly, the Crown’s suggestion that Kahnawake is part of the greater Montreal region that, like Montreal suburbs with sizeable English-speaking populations, have ready employment opportunities, trivializes how difficult it can be for Indigenous people to make their way on the reserve or off-reserve in the Montreal region. The Gladue reports, for example, make mention of the fact that, for Mohawk young people who choose to pursue schooling outside of the community, “dealing with racism on a daily basis is the norm”. It is striking, again as observed in the reports, that many on the reserve - including Joseph Kirby - leave the region to work in New York as ironworkers during the week and return to the reserve only on weekends.

[95]        Based on the evidence in the file, the judge was entitled to consider that the economic conditions in Kahnawake was a relevant negative systemic factor for the purposes of a Gladue analysis of the two offenders.

IV.F     Did the judge err by wrongly relying on restorative justice principles?

[96]        The Crown argues that the judge wrongly took into account restorative justice principles when the evidence from the Gladue consultant provided no indication of the currency of such principles in the Kahnawake community.

[97]        The argument should be rejected.

[98]        The Crown is critical of the quality of the Gladue reports as an account in this case. It is true that the consultant was unable to provide a precise indication of particular restorative justice programmes available in the community.[45] Surely, this cannot be the test for the fitness of this aspect of the sentence; as courts have made plain, the offender is not to be held accountable alone for shortcomings in this kind of pre-sentence report.[46] Moreover, the limited character of alternate sentencing programmes in a given Indigenous community does not eliminate a sentencing judge’s discretion to take into account general principles of restorative justice in crafting a sentence for an Indigenous offender.[47]

[99]        It was reasonable to consider the nature of the penalties imposed - fines, probation and community service - as consonant with the general sentencing objectives as well as the values associated with restorative justice spoken to in Gladue.[48] As the judge noted, the “victim” in the case of unlawful possession of unstamped tobacco under the Excise Act, 2001 is society as a whole. The nature of the offence is different than one involving crimes to persons or property where there is an identifiable primary victim. Naturally, a penalty’s “restorative” character necessarily takes on a different aspect than it would for, say, mischief, robbery or assault. To my mind, the fines and community service are no less restorative by virtue of the fact that they are not linked to proof of an Indigenous conception of justice explained in the Gladue reports.

IV.G    Were the sentences unfit?

[100]      Nothing in the Crown’s various arguments suggests to me - on the standard of review applicable in such matters - that the sentences imposed on the two respondents are unfit. Imposing significant fines and community service to first-time Indigenous offenders for this kind of offence was by no means unreasonable.

[101]     A further point bears mentioning here in respect of the deterrent and dissuasive character of the fines imposed. The Crown sees the fines as falling short of the impact that a prison term would have, both for the respondents and as a message for others.

[102]     At the hearing, the Crown argued that it had sought a ruling in first instance, and now on appeal, that the large quantity of unstamped tobacco products involved in the offence - 700,000 cigarettes - meant that a prison sentence was necessary to ensure that sentencing objectives of deterrence and dissuasion would be met here. The large quantity underscored the seriousness of the offences, and the fact that the respondents were first-time offenders and Indigenous persons should not deflect the courts from imposing prison terms to deter such conduct in a community where contraband is a scourge. The Crown took its argument a step further: connections between organized crime and tobacco smuggling on the reserve call for stiff sentences, even if the respondents were evidently small cogs in a bigger machine.

[103]      A first point must be made. The Crown’s suggestion that the large amount of tobacco involved meant that organized crime was involved in the conduct leading to the convictions here may or may not be well founded, but the record on appeal contains no evidence that Dylan Diabo and Joseph Kirby were part of a criminal organization. At best, the Crown produced an academic study that points to this as a social problem on the reserve. I decline to see it as a proven aggravating factor on sentence.

[104]     Second, the Crown is mistaken to suggest that the offence, given the amount of tobacco in play, is somehow inherently insulated from Gladue analysis. In Ipeelee, LeBel J. explained that it is wrong to think that Gladue principles do not apply to sentencing for some offences because of their seriousness; judges have a duty to consider the application of s. 718.2(e), and the appropriateness of sentences other than prison terms, in all cases.[49]

[105]     The fines of $119,000 - even as minimum fines under s. 216 of the Act - are of such a significant dimension that it is hard to argue that their deterrent and dissuasive effects would be less than weekend jail-time, especially given the financial circumstances of Dylan Diabo and Joseph Kirby. The judge recognized the deterrent effect of the fines and the community service and explicitly associated these penalties with her “duty to consider alternative sentences” (para. [62]). At the same time, these sanctions have a restorative dimension - the money is paid to the collectivity that has suffered the effects of contraband tobacco - as does the community service imposed by the judge. I would add that this approach to sentencing is not only in keeping with the rules relating to penalties for all offenders,[50] Indigenous or not, but is also consonant with an approach of preferring fines over prison terms for like offences in judgments of this and other courts.[51]

[106]     In any event, s. 216 of the Excise Act, 2001 already tailors the severity of sentences according to the relevant amount of tobacco involved, imposing higher minimum and maximum fines for substantial amounts. This suggests to me that by the Crown’s own measure of the seriousness of the offence, the sentence imposed on the respondents was harsher by reason of the substantial number of cigarettes seized. It is reasonable to think that these higher fines have not only a more palpable restorative aspect, but they serve to denounce and deter criminal conduct associated with the trade in illegal tobacco.

[107]     The judge was aware of this: in the penultimate paragraph of her reasons, she states that the combination of fines, probation and community service “reflects the required deterrence for the reasons explained above and is adapted to the Aboriginal reality”. Not only is this conclusion in keeping with Supreme Court’s explanations in Gladue and Ipeelee, it is deserving of deference on appeal.

[108]     In the sentencing judge’s estimation, the “whole of the specific circumstances in the records of all of the accused” (para. [63]) meant that a fit sentence did not, in the end, involve prison terms. It is important to underscore that, as befits the rules relating to the determination of sentences, her ultimate conclusion was guided by the fundamental principle of proportionality, according to which sentence must be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the individual offender: s. 718.1 Cr.C. Here, these circumstances included, beyond those relating to the offenders’ status as Indigenous persons, the fact that they are assets to the community as responsible family members, and more. As part of the exercise of arriving at a fit sentence, as recalled in Ipeelee, the judge was also right to consider the circumstances of the offenders as Indigenous persons in this “individualized assessment of all of the relevant factors and circumstances”.[52] At the end of the day, no reviewable error has been shown.

***

[109]     In sum, while grounds for appeal relating to the proper application of s. 718.2(e) Cr.C. are sufficiently serious that leave should be granted, I conclude that the judge made no overriding error in imposing fines as opposed to prison terms for the offenders here. Accordingly, I propose to dismiss the appeal.