R v Rodrigue

The Territorial Court of Yukon released a decision on February 11, 2015 in <a href="http://www.canlii.org/en/yk/yktc/doc/2015/2015yktc5/2015yktc5.html" title="R. v. Rodrigue"><em>R</em><i>. v. Rodrigue</i></a>, sentencing an Aboriginal offender, Ms. Rodrigue, to a conditional discharge with a two-year probation order for the offence of assault causing bodily harm.

The offence

In January of 2014, Ms. Rodrigue was intoxicated at a bar in Whitehorse while a dispute was taking place between the complainant, Ms. Pauch, and another individual. A friend of Ms. Pauch’s was trying to mediate the dispute when, without warning, Ms. Rodrigue threw a glass at Ms. Pauch, striking her face above her eyebrow. Ms. Pauch then threw a glass at Ms. Rodrigue, striking her nose. While both parties were initially charged with assault causing bodily harm, the Crown stayed the charges against Ms. Pauch.

Position of the parties

Crown counsel submitted that a sentence of 8 to 12 months ought to be imposed. Counsel for Ms. Rodrigue submitted that she should be sentenced to a period of probation attached to a conditional discharge.

Ms. Rodrigue’s background

Ms. Rodrigue was 22 years old when the incident occurred and had no previous criminal record. Her mother is Inuvialuit, of Inuit and Gwich’in heritage, and is currently serving day parole in Edmonton after having served a prison sentence for second-degree murder. Ms. Rodrigue’s maternal grandmother attended residential school. Ms. Rodrigue described her childhood as being “fraught with violence” and said that her parents were “always using drugs around [her and her three sisters]”.

Ms. Rodrigue and her sisters were taken into care by Family and Children’s Services on numerous occasions until they were placed in permanent care when Mr. Rodrigue was nine years old, following a fight between her parents in which her mother broke a glass over her father’s head. Ms. Rodrigue subsequently had limited contact with her parents while in foster care until she reaching adulthood. Ms. Rodrigue was kicked out of foster care at the age of 17 due to her rebellion and partying behaviour. Ms. Rodrigue also suffered domestic violence from a past partner, the father of her two children, and this past partner was charged with assault against her on three separate occasions.


Crown counsel and counsel for Ms. Rodrigue agreed that Gladue considerations were relevant in this case. The Court found that the negative aspects of Ms. Rodrigue’s home life were “consistent with what is seen all too often in this Court in association with the fallout of the residential school system and other governmental policies intended to separate Aboriginal peoples from their families, their communities and their culture in an attempt to assimilate them into the dominant non-Aboriginal society”.

The Court examined the positive achievements in Ms. Rodrigue’s life such as having graduated high school, maintained a good work record and long term employment, and successfully raising two children without any financial or emotional support from the children’s father. She had also stopped drinking since the time of the offence and accepted responsibility by entering a guilty plea. The Court held that there was no need for a sentence to deter her from the commission of further offences as the incident was out of character for her and the Court was satisfied that she had “learned her lesson”, noting, among other things, that she was left with a permanent scar on her face as a result of the incident.

The Court held that a custodial offence was not necessary and was satisfied that a period of probation could achieve the goals of denunciation and deterrence.

Conditional discharge

The Court went on to consider whether the period of probation ought to be attached to a conditional discharge, which would spare Ms. Rodrigue a criminal record. The Court noted that pursuant to s. 730(1) of the Criminal Code it could issue a conditional discharge if it considered this to be “in the best interests of the accused and not contrary to the public interest”.

Best interests of Ms. Rodrigue

The Court stated that avoiding a criminal record will not always be in the best interests of an offender as there may be occasions where an offender’s rehabilitation or deterrence will require a criminal conviction for an offence. However, the Court found that Ms. Rodrigue did not need to be specifically deterred and was not in need of rehabilitation in the sense of being turned away from criminal activity and towards “pro-social life choices”. It found that not having a criminal record was in her best interests, particularly due to her young age and uncertain future plans.

Public interest

In addressing whether a conditional discharge was in the public interest, the Court was “mindful of Ms. Rodrigue’s Aboriginal ancestry”. The Court quoted from Prime Minister Stephen Harper’s apology to Aboriginal Peoples on behalf of Canadians on June 11, 2008, reproducting a passage from the speech that addressed the assimilative objectives of the residential school system, its “lasting and damaging impact on Aboriginal culture, heritage and language”, and its contribution to the social problems that continue to exist in many communities today.

The Court stated that there is a public interest component to making “reparations to Aboriginal peoples, to their communities, to their children and to their children’s children for the harm done to them by the destructive governmental policies such as the residential school system”. The Court further stated that the public interest component of the discharge option “must include, in the case of Aboriginal offenders, a consideration by the court as to whether a discharge further the public interest towards making such reparations in the case of the individual Aboriginal offender”; if it does, then this factor militates towards the granting of a discharge so long as it is balanced against other relevant factors such as the need for general deterrence, in order to achieve a sentence that is proportional, just and fit. The Court also noted that the public interest includes more than sending a strong "tough on crime" message. It also requires the justice system to "get it right on crime".

In this case, the Court found that a conditional discharge would in all likelihood further the public interest.