R v Elliot

In this case, defense counsel prepared a Gladue report containing a recommendation that the accused participate in a sentencing circle at the Halifax Mi’kmaq Native Friendship Centre. The Crown opposed the sentencing circle referral.

The issue before the Court was whether the accused’s charges were too serious to consider an option other than imprisonment. The Court noted that the Criminal Code does not regulate the use of sentencing circles. Rather, the sentencing court determines referrals to sentencing circles. The Court noted that s. 718.2(e) of the Criminal Codecompels sentencing courts to pay particular attention to Aboriginal offenders as it considers all sanctions other than imprisonment. The Court also cited R. v. Gladue, where the Supreme Court held that sentencing courts must “inquire into the causes of the problem [of the overrepresentation of Aboriginal people in Canadian prisons] and… endeavour to remedy it, to the extent that a remedy is possible through the sentencing process”.

The Court ultimately determined that the accused’s charges did not preclude him from receiving a referral to a sentencing circle. In this case, there was no mandatory minimum sentence; the Crown had previously agreed to a sentencing circle recommendation; and the accused had served considerable pre-trial custody that would result in a significant credit towards his overall sentence.

The second issue in this case was whether or not a sentencing circle was appropriate given the accused’s personal circumstances. The Court reviewed case law that established non-exhaustive criteria to be considered when deciding if a matter should be referred to a sentencing circle. The guiding principles include that: (1) the accused must agree to a sentencing circle referral; (2) the accused must have deep roots connecting them to the community and the people hosting the sentencing circle to ensure he or she feels accountability; (3) elders or community leaders must participate in the circle to supervise the offender’s compliance; (4) the victim must be a willing participant; (5) the sentencing court should attempt to determine if the victim is subject to battered spouse syndrome; (6) the facts must not be in dispute; and (7) the court must be willing to take a calculated risk in departing from the typical sentencing structure.

The Crown argued that the accused did not have deep roots in the community set to host the sentencing circle because there was insufficient evidence to prove that the accused had resided in the community for very long. However, the Court determined that the term “deep roots”, as set out in the criteria above, is to be appreciated flexibly and applied with consideration to the particular circumstances of the offender and community. Accordingly, the Court determined that a sentencing circle was appropriate in this case and referred all charges to such a sentencing circle, which will provide non-binding recommendations to the Court.