The Ontario Court of Appeal has cut four years off the sentence of an aboriginal man who pled guilty to armed robbery in a case lawyers say will clarify whether sentencing judges should consider the background of indigenous offenders who were adopted as children.
“I think it will help sensitize a sentencing court to the various permutations that disadvantage and discrimination against aboriginal peoples can take,” Kreko’s lawyer, David Harris, says of the appeal court’s decision.
Ontario Court Justice David Stone sentenced Kreko to 13 years in prison in 2014 after he pled guilty to possession of a loaded prohibited firearm, armed robbery, and the intentional discharge of a firearm while being reckless as to the life or safety of another person. Kreko was arrested in 2012 after he robbed a man in a parking lot in Ajax, Ont., according to the appellant’s factum. He fired a bullet into the ground during the robbery and then a spray of bullets in a later altercation with the victim, wounding both men.
At Kreko’s sentencing, crown prosecutors argued his heritage was irrelevant to his sentence, as he had been raised by adoptive parents since he was an infant and had only recently found out he was aboriginal. They claimed he had not faced any of the systemic disadvantages experienced by many aboriginals, according to the court decision.
Harris, however, says his aboriginal background was relevant to his sentencing because his criminal offending began around the same time that he found out he was adopted and learned about his heritage.
“When he finally discovered his heritage and became aware of the culture which he had long ago lost, it is not surprising that he fell into a profound identity crisis,” Harris says. “This crisis coincided with the time his criminal offending began.”
At the heart of the sentencing court proceedings was a debate about whether the principles of R. v. Gladue applied to Kreko’s case. The Supreme Court decision determined that judges must consider an aboriginal offender’s background when sentencing him or her.
“In sentencing an aboriginal offender, judges must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts,” the decision said. “And (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage connection.”
In the reasons for his sentence, Stone said Kreko’s “aboriginal connection had been irrelevant to his offences, or how he got there.”
The Court of Appeal, however, found Stone had erred in his conclusion that Kreko’s aboriginal heritage was irrelevant to his sentencing.
“The appellant’s dislocation and loss of identity can be traced to systemic disadvantage and impoverishment extending back to his great-grandparents,” Justice Gladys Pardu wrote in the decision.
“This was relevant to his moral blameworthiness for the offences.”
Pardu added that Kreko’s heritage was “unquestionably part of the context underlying the offences.”
Pardu also cited R. v. Ipeelee, 2012, a Supreme Court decision that held aboriginal offenders should not have to establish a causal link between their heritage and the crimes they committed.
“The effect of intergenerational discrimination is profound, but it requires an appreciation of both the long, horrific history of aboriginal maltreatment and the sometimes-distant details of an accused’s background,” Harris says.