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R. v. J.L.M., 2017 BCCA 258

Lawyer: Lolita Rudovica

In the decision, the panel struck down as unconstitutional a minimum sentence under the Criminal Code and engaged in a sophisticated analysis of the intergenerational effects on aboriginal accused as a result of colonialism and residential schools.

The Court of Appeal held: The trial judge erred in law in assessing J.L.M.’s Aboriginal heritage in sentencing, resulting in a demonstrably unfit sentence. The mandatory minimum sentence, is grossly disproportionate when applied to J.L.M., based on the bottom end of the range, and in any event, is grossly disproportionate when imposed in a reasonable hypothetical context, and thus it violates s. 12 of the Charter. The mandatory minimum sentence cannot be justified under s. 1 of the Charter, and is declared of no force or effect. A nine-month conditional sentence order to be served under house arrest, with strict conditions, is a fit sentence for J.L.M. that takes into account his Aboriginal background, his personal circumstances, and the goals of sentencing.