A man convicted of a gun crime has been given a conditional sentence instead of prison time, after the judge factored in his Indigenous heritage, and specifically his great-grandfather’s experiences as a residential school survivor.
The judge felt the grandfather’s experiences have affected the defendant and his family through generations.
The man was arrested in 2019 in possession of an illegal handgun and pleaded guilty to two firearm-related charges in 2022.
The judge acknowledged that during the time of the man’s arrest, he was attempting to visit sex workers at the hotel and that he carried the firearm for the purposes of protection.
“I infer that he only armed himself with the handgun on that day because he was worried about being robbed or threatened by the sex-trade workers or their associates,” said justice Burnstein, adding the defendant wasn’t using the gun for further criminal purposes like drug trafficking.
The judge also noted that the man had previously owned the firearm legally, though his license had expired in 2017.
“While that does not in any way excuse his offences on Nov. 15, 2019, this fact does mitigate some of the harm otherwise associated with possessing handguns,” said Burnstein in his decision. “Unlike ‘outlaws’ who possess illegal handguns, (the man’s) possession did not contribute to the criminal underworld’s black market for firearms.”
Burnstein stated that in addition to those other mitigating factors, the most significant individual factor considered in the man’s sentencing was his Indigenous heritage, which linked back to the fact that the man’s great-grandfather was a residential school survivor.
“The impact of his great grandfather’s negative experience with Canada’s residential school system can be readily traced to (his) childhood estrangement from his abusive alcoholic father,” said Burnstein.
Since the 1999 Gladue case, Canadian judges have been required to weigh the trauma associated with Indigenous heritage in sentencing Indigenous offenders.
The man’s great-grandfather lost the family’s legal status under the Indian Act after refusing to put his children in a residential school which caused the family to lose connection with their Mohawk heritage, the judge found. Burnstein said the defendant endured a “profound negative impact” as a result of being estranged from his father and culture during his upbringing.
“Furthermore, as he was growing up, (the man) was frequently the target of racial slurs by neighbourhood peers and would sometimes be forced by older tougher boys to fight because of his apparent Indigenous heritage.” said Burnstein.
Burnstein stated that had he would have sentenced the man to an 18-month prison sentence had it not been for the aforementioned mitigating factors.
“To put it bluntly, Indigenous offenders like (this man) have sacrificed enough,” stated Burstein.
“They need not be sacrificed again on the altar of deterrence and denunciation when a lesser restrictive sentence would reasonably accomplish the same objectives. In the absence of any particularly aggravating factors in a case involving a first-time (firearm) offence, I am satisfied that imposing a conditional sentence on an Indigenous offender whose life has been negatively impacted by the ‘legacy of colonialism’ would almost always better promote the notion that Canada is ‘a just, peaceful and safe society’ than would a period of actual imprisonment.”
The man received a conditional sentence of two years less a day with house arrest and he may only leave his house for the purpose of attending work.
Burnstein said he felt the conditional sentence would help the man build a better relationship with his son.
“Courts should strive to break, rather than perpetuate, the cycle of paternal estrangement, which has sadly been so prevalent among descendants of residential school survivors,” said Burnstein.
Burnstein also noted during his sentencing decision that while the Indigenous population in Canada has remained constant, their representation in the prison population continues to grow.
In 1998, Indigenous people made up 12% of the country’s total prison population and by 2008 that number had risen to 20%.
As of 2022, Indigenous people account for 32% of the total number of people that are incarcerated.
