Test case profile
Clarifying the connection between Aboriginal heritage and criminal sentencing
Under LAO's Aboriginal Justice Strategy, improving services for First Nation, Métis and Inuit clients has been paramount—and improving access to Gladue services has been an important part of this strategy. This was why, in 2016, LAO supported Andrew Kreko's appeal to challenge a trial judge who did not take Mr. Kreko's Aboriginal heritage into account at sentencing.
In 2014, Mr. Kreko was sentenced to 13 years in prison for robbing a man at gunpoint in a parking lot and shooting at him after the man drove over him with his car. The trial judge ruled he did not have to consider the Gladue factors because he saw no link between Mr. Kreko's Aboriginal heritage and the offences that he pled guilty to.
The Court of Appeal, however, concluded that judges must always factor in an Aboriginal person's heritage at sentencing if it has a bearing on the offence committed—even if the offender discovers their background later in life as was the case with Mr. Kreko.
The Court of Appeal also reduced Mr. Kreko's sentence from 13 years to nine.
LAO supported this appeal because of the impact it has on Aboriginal offenders for whom the application of Gladue might be in question.
In its appeal decision in R. v. Kreko the Court of Appeal reasserted the primacy of the Supreme Court of Canada's decisions in Gladue and Ipeelee. It insisted that the courts have an onerous responsibility to apply the principles articulated in those cases, not to merely pay lip service to them. The shameful maltreatment and discrimination against Aboriginal and indigenous peoples over centuries demands no less.
More specifically, the Court of Appeal's reiteration that there is no need for a causal connection between an Aboriginal offender's history and his or her offences—that a contextual relationship is enough—guarantees that the reach of the aboriginal sentencing principles will not be artificially restricted.
I think the Kreko judgment will help sensitize sentencing judges to the various permutations that disadvantage and discrimination against Aboriginal peoples can take. The effect of intergenerational discrimination is profound but it can be difficult to unearth. It requires an appreciation of both the long horrific history of Aboriginal maltreatment and the sometimes distant details of an accused's heritage. A sentencing court may well be required to go deeper into the personal and collective Aboriginal background than is generally the case with a non-Aboriginal offender.
In this instance, when Mr. Kreko finally discovered his heritage and became aware of the culture which he had lost long ago, it is not surprising that he fell into a profound identity crisis. This crisis coincided with the commencement of his criminal offending. Without understanding the Mr. Kreko's sad history going back several generations, the effect on him in the here and now could not be properly understood.
While from a narrow point of view, an aboriginal person may appear unaffected by his or her heritage, a look into the past generation of their family history will often tell a story of corrosive, long term discrimination which has hindered his or her development and growth.
The Court of Appeal's recognition of these historical personal facts will give new life to Gladue applications in situations outside the stereotypic Gladue scenario.
— David E. Harris, lawyer for Andrew Kreko