British Columbia’s highest court has reduced the sentence of a man with Indigenous heritage in a precedent-setting appeal.
In the decision posted Tuesday, a three-judge panel at the B.C. Court of Appeal took one year off a five-year sentence on a conviction of aggravated assault for David Johnathan Michael Kehoe, ruling that the trial judge had not adequately considered the defendant’s Métis heritage.
Kehoe, whose mother was Indigenous, was convicted in February 2021 after an unprovoked stabbing that left the victim with life-threatening injuries, according to the ruling.
The key issue in the appeal was what are known as the Gladue principles, the result of a 1999 Supreme Court of Canada ruling that determined judges must take Canada’s colonial past into account when sentencing Indigenous offenders.
During Kehoe’s sentencing hearing, Crown prosecutors argued that the Gladue principles should hold little weight, because he was disconnected from his Métis heritage, community and culture.
Kehoe had only recently learned about his Indigenous heritage, prosecutors submitted, arguing his problems were “occasioned by his stepfather’s lifestyle and connection to the drug trade.”
However, the appeal court found that Kehoe’s lack of connection to his Indigenous heritage was, itself, a part of the problem.
“Disconnection is one of the very harms associated with Canada’s colonial history and assimilationist policies that Gladue seeks to address. The circumstances called on the judge to consider whether and how the appellant’s disconnection played a role in his coming before the court,” the appeal court ruled.
“In the absence of policies specifically designed to disconnect Indigenous people from their communities, cultures and supports, the appellant stood a much better chance of being raised in a stable and functional environment where his heritage was celebrated and where he would develop pro-social and community-oriented values.”
In the ruling, Justice Len Marchand went on to write that it was not “simply a coincidence” Kehoe’s mother had become disconnected from her Métis community and culture.
“In the absence of policies specifically designed to disconnect Indigenous people from their communities, cultures and supports, Mr. Kehoe’s mother stood a much better chance of raising him in a stable and functional environment where his heritage was celebrated and where he would develop pro-social and community-oriented values.”
Arron Sumexheltza, a B.C. Indigenous lawyer who was not connected with the case, called the ruling “important,” adding it would have an effect in B.C. and beyond.
“The court stated that Canada, in its policies and laws over the last hundred years, the purpose of those policies was to eliminate Aboriginal people as a distinct peoples and to assimilate them into the Canadian mainstream against their will,” Sumexheltza said. “As a result of that, there’s more of a likelihood that indigenous peoples will be involved in the criminal justice system.
“And so what the court said in this decision is that the disconnection that a person has with their their culture, in many or most instances could be a result of Canada’s laws. So in the case that said, this needs to be considered.”
Sumexheltza went on to note that Canada imprisons Indigenous offenders at an alarming rate.
Indigenous people currently make up about one third of all federal inmates in Canada, while accounting for just five per cent of the Canadian population.
-With files from Julie Nolin