An appeal court has found that a judge mistakenly failed to consider the Cree background of a drug trafficker who had been taken from his Manitoba parents as an infant and raised by a non-Aboriginal family on Prince Edward Island.
Nicholas George Nash McInnis was taken from his biological Cree parents at birth and placed in the care of Manitoba Child and Family Services.
When he was seven months old, he was adopted by John and Brenda McInnis, who are originally from Sherwood, P.E.I., and are not Indigenous.
A provincial court judge rejected a joint Crown-defence submission that would have seen the 20-year-old man avoid jail time for possession of cannabis for the purpose of trafficking, after he was found with 15 grams of cannabis at Charlottetown Rural High School.
Furthermore, she decided not to consider the man’s Aboriginal heritage in arriving at her decision – an intermittent sentence of 90 days in jail – because he had been adopted at a very young age.
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In a new ruling, the Prince Edward Island Court of Appeal said the judge erred in refusing to accept the systemic factors that would reduce McInnis’s culpability.
“The law is clear. Sentencing judges must pay particular attention to the circumstances of Aboriginal offenders,” the decision said.
“A sentencing judge… did not consider the impact of broad historical events and the systemic factors that played a part in the appellant’s make up.”
The Supreme Court of Canada’s 1999 Gladue decision said judges must take note of systemic or background factors when determining a sentence for Indigenous offenders in order to address their “serious overrepresentation” in prison.
The appeal court said McInnis’s so-called Gladue report – a summary of an offender’s circumstances presented to the court at sentencing – “sufficiently illustrated the link between (his) Aboriginal heritage and the reason for a reduction of his moral blameworthiness in relation to the offence.”
Some of the factors outlined in that report were the fact that he attempted suicide at age 17, that he was diagnosed with Fetal Alcohol Spectrum Disorder, that he was dislocated from Aboriginal people and struggled with cultural identity, and that he experienced racism, bullying and racial profiling.
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The appeal court imposed the joint recommended sentence – two years’ probation.
“The diminished culpability of the appellant warranted a departure from the overriding principles of denunciation and deterrence to accommodate the principle of rehabilitation and a restorative justice plan,” the decision said.
“The jointly proposed sentence was sufficient in the circumstances, and was focused on a rehabilitative and restorative sentence for the appellant, and did not fail the public interest test.”
The decision added: “A well-informed member of the public, armed with the knowledge of all of the circumstances of the offence and offender, as well as the systemic factors related to Gladue considerations, would not conclude the joint submission represented a breakdown of the effective operation of the criminal justice system.”