Category Archives: Sentencing

Lost in Precedent: Preserving “the Rule of Law” Through the Minimization of Identity

By: Emma Arnold-Fyfe

PDF Version: Lost in Precedent: Preserving “the Rule of Law” Through the Minimization of Identity

Case Commented On: R v Blackplume, 2021 ABCA 2 (CanLII)

Editor’s Note

During Equity, Diversity and Inclusion (EDI) Week at the University of Calgary in February 2021, the Faculty of Law’s EDI Committee held a research-a-thon where students undertook research on the law’s treatment of equity, diversity and inclusion issues. We are publishing a series of ABlawg posts that are the product of this initiative. This post is the second in the series.

Introduction

The case of R v Blackplume, 2021 ABCA 2 (CanLII) involved consideration of whether the accused should be declared a dangerous offender and consequently subjected to an indeterminate sentence. The accused, Lucy Blackplume, survived a severely traumatic childhood, often witnessing domestic violence and drug and alcohol abuse. She was “repeatedly sexually assaulted by various relatives and others from a young age” (at para 8). In addition to having cognitive functions at the level of a 9- or 10-year-old, Ms. Blackplume suffers from various personality disorders, psychopathy, and Fetal Alcohol Spectrum Disorder. It is not possible for her to appreciate the consequences of her actions, “exercise self-control, or filter impulses” (at para 7).

 The criminal record of Ms. Blackplume began in 2008 with a conviction for sexual assault, and she has spent almost 12 years in institutions. While institutionalized, she has spent “notable periods of time in segregation, isolation or observation,” and over that time has been the target of threats because of, among other things, her gender expression (at para 11).  Previous efforts to treat Blackplume’s conditions, including through a fifteen-month high-intensity sex-offender treatment program, have been unsuccessful (at para 12).

Continue reading →

Like A House of Cards: Sentencing McKnight

By: Lisa Silver

PDF Version: Like A House of Cards: Sentencing McKnight

Case Commented On: R v McKnight, 2020 ABQB 443 (CanLII)

Law abhors a vacuum; to be meaningful, legal rules and principles must be tethered to reality. This means the law is animated by the factual circumstances of each particular case. Law garners gravitas or weight in the application of the law to the facts. In short, the law needs context. This basic proposition is particularly important in sentencing an offender after conviction by a jury. Once the jury trial ends, the trial judge is no longer the “judge of the law” (R v Pan; R v Sawyer, 2001 SCC 42 (CanLII) at para 43) but transforms into the sentencing judge, who must work with both fact and law. The recent Alberta Queen’s Bench sentencing decision by Justice Sulyma in R v McKnight, 2020 ABQB 443 (CanLII), highlights the difficulties inherent in this judicial transition and the need for clarification in this area. Not unlike the metaphorical “house of cards”, the decision also demonstrates the importance of the foundational facts to the integrity of the entire sentencing process.

Continue reading →

Binding The Courts: The Use of Precedent in Sentencing Starting Points

By: Lisa Silver

PDF Version: Binding The Courts: The Use of Precedent in Sentencing Starting Points

Cases Commented On: R v Felix, 2019 ABCA 458; R v Parranto, 2019 ABCA 457

The Alberta Court of Appeal recently released two companion decisions on sentencing starting points in R v Felix, 2019 ABCA 458, and R v Parranto, 2019 ABCA 457. In Felix and Parranto, the Alberta Court of Appeal considers the appropriate sentencing starting point for an offender involved in the wholesale trafficking of fentanyl, an insidious and dangerous drug responsible for the deaths of many Albertans. These decisions are prime examples of how an appellate court grapples with precedential authority in arriving at the final outcome. In this post, I will discuss these cases as exemplars of this precedential process, which lies at the heart of the rule of law under our common law system. These decisions give us a glimpse of the complexities of precedent, in cases where there is no issue of whether precedent should be followed but rather on the issue of how best to follow it. Continue reading →

Gladue Factors: Still Not a “Race-Based Discount”

By: Amy Matychuk

PDF Version: Gladue Factors: Still Not a “Race-Based Discount”

Case Commented On: R v Matchee, 2019 ABCA 251

In R v Matchee, Justices Patricia Rowbotham, Ritu Khullar, and Dawn Pentelechuk of the Alberta Court of Appeal (ABCA) overturned Alberta Court of Queen’s Bench Justice Eldon J. Simpson’s sentencing decision because it did not give proper effect to Gladue factors (named for the case that created them, R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC)). The ABCA sentenced the offender afresh, substituting a six-year sentence for the original seven-year sentence (though with the deduction of three years 7.5 months credit for pre-sentence custody the remaining sentence was two years 4.5 months). The ABCA also commented on the correct application of Gladue factors, which are frequently misapplied and misunderstood as a “race-based discount” rather than “a partial remedy for the systemic discrimination suffered by [A]boriginal people which has led to their overrepresentation in the criminal justice system” (at para 31). Continue reading →

Alberta Court of Appeal Broadens the Scope of Offences for Conditional Discharges

By: Serena Eshaghurshan

PDF Version: Alberta Court of Appeal Broadens the Scope of Offences for Conditional Discharges

Case Commented On: R v Chowdhury, 2019 ABCA 205

In May 2019, the Alberta Court of Appeal (ABCA) heard an appeal for a dangerous driving causing bodily harm case. The appellant, Mr. Chowdhury, sought a conditional discharge, but the sentencing Judge refused to grant one. Mr. Chowdhury appealed his sentence and was surprisingly granted a conditional discharge, the first of its kind for this offence. Continue reading →