Category: Sentencing Page 1 of 3

By: Lisa Silver

Case commented on: R v Germain, 2022 ABCA 257 (CanLII)

PDF version: Placing Parity in Perspective

The recent Alberta Court of Appeal decision of R v Germain, 2022 ABCA 257 (CanLII), reads like a judge’s “how to” manual for applying the sentencing principle of parity. Here, the Court not only discusses the role of parity in making a sentencing determination but also provides a step-by-step approach to applying the principle in practice. To do this, the Court relies on precedent and deference, the cornerstones of appellate review of sentencing. Significantly, the decision attempts to reconcile a long line of Court of Appeal decisions on starting points, with recent direction by the Supreme Court of Canada in R v Parranto, 2021 SCC 46 (CanLII), R v Friesen, 2020 SCC 9 (CanLII), and R v Lacasse, 2015 SCC 64 (CanLII), that sentencing is not a “mindless numbers game” involving a strict adherence to a minimum sentencing regime (see R v Ostertag, 2000 ABCA 232 (CanLII) at para 21). Rather, sentencing strives for individualization in the context of general principles. This seemingly incongruous task creates uncertainty in those very principles the sentencing court is bound to apply. Although the Germain decision clarifies the practicalities of sentencing, there remains considerable room in future decisions for further delineation of the framework of sentencing and the proper placement of the parity principle within it.

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By: Jennifer Koshan

PDF Version: Choice vs Coercive Control: The Alberta Court of Appeal Decision in R v Naslund

Case Commented On: R v Naslund, 2022 ABCA 6 (CanLII)

In January 2022, a majority of the Alberta Court of Appeal overturned a joint sentencing submission in the appeal of Helen Naslund, a woman who killed her husband after she sustained decades of his abuse. The sentencing decision of Justice Sterling Sanderman accepted the joint submission by the Crown and defence of 18 years imprisonment for the offence of manslaughter. This sentence was notorious for having imposed one of the longest known sentences for a survivor of intimate partner violence (IPV) who resorts to homicide. The sentencing decision was unreported, but quickly gained media attention and led to a petition to overturn the sentence imposed on Ms. Naslund. Writing for a majority of the Court of Appeal, Justice Sheila Greckol (Justice Kevin Feehan concurring, Justice Thomas Wakeling dissenting) reduced Ms. Naslund’s sentence to 9 years imprisonment.

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By: Lisa Silver

PDF Version: If Not Now, When?

Case Commented On: R v Natomagan, 2022 ABCA 48 (CanLII)

The opening paragraphs of the recent Alberta Court of Appeal decision in R v Natomagan, 2022 ABCA 48 (CanLII), belie the significance of the decision. It commences like many other appellate sentencing decisions, setting out the lower Court’s ruling by focusing on a narrow ground of appeal. In this case, that ground encompasses the Crown appeal against the imposition of a determinate rather than an indeterminate sentence for a designated dangerous offender. By paragraph 3, the Court has shown its hand and finds the sentencing judge “applied the wrong legal standard.” By paragraph 5, the Court allows the appeal and imposes an indeterminate sentence. So far, as expected. But it is in the next paragraph where the decision steps out of the ordinary and becomes a case to read closely, thoroughly, and with interest. There, the Court raises concerns with the “unfettered reliance” on the use of “actuarial risk assessment tools” in determining custodial options for Indigenous offenders within the criminal justice system (at para 6). The Court directly connects these biased risk assessment tools to the overrepresentation of Indigenous offenders in the carceral system (at paras 7 to 13). Finally, the Court provides a well-placed caution requiring judges to make informed decisions in using these tools (at para 141). Despite this warning and well-placed concern, the Court, as foreshadowed by the opening paragraphs, reverts to the usual by finding the offender, Ashton Natomagan, to be an “intractable risk to the public” (at para 137). This means the biased and discriminatory risk assessment tools did not impact the ultimate finding that he was a danger, requiring an indeterminate sentence (at paras 137 to 138). This disconnect between law and reality is a continuing theme in the criminal justice experience of Indigenous offenders. Although this decision is a positive step in recognizing wrongs and attempting to ameliorate injustices, more must be done now to change the future outcomes for Indigenous offenders like Ashton.

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