Judge demands Indigenous sentencing report after offender claims he's 'Caucasian': 'He is plainly not'
A Yellowknife judge has insisted a man who claimed to be Caucasian get a report meant for Indigenous offenders before he sentences him for breaking into a hotel.
Jeremy Kuneyuna — who already has 90 convictions — appeared in the Territorial Court of the Northwest Territories recently to be sentenced for breaking into a hotel.
“Mr. Kuneyuna states that he is ‘Caucasian’ and on that basis has provided no information relating to case specific factors relating to his background as an indigenous offender,” Judge Robert David Gorin wrote in an April 22 decision.
“When I asked him about why he had an Inuit surname, he provided no meaningful response. Also, he is plainly not Caucasian. Rather, his background is indigenous. I will say that I know this from dealings I have had with Mr. Kuneyuna in previous court proceedings.”
Kuneyuna pleaded guilty to the hotel break-in and represented himself in court.
“He joins with the Crown in submitting that a six-month term of imprisonment would be appropriate,” Gorin said.
“He has a criminal record containing approximately 90 criminal convictions over half of which are property related with approximately a dozen of those being for break and enter offences.”
But the judge didn’t accept that sentencing recommendation.
“In my view, regardless of the ‘joint submission’ provided by Mr. Kuneyuna and the Crown, his erroneous position as to his heritage does not amount to a waiver of the need for this court to make the inquiry as to his background factors that are required by the cases of Gladue and Ipeelee,” Gorin said. “I require more information than he is prepared to provide me. While I do not require a complete pre-sentence report, I do require a report that provides me with his background factors as an indigenous offender.”
Gladue and Ipeelee are both landmark Supreme Court of Canada decisions that require sentencing judges to consider the unique circumstances of Indigenous offenders to address their overrepresentation in Canada’s prisons. They require judges to take the impact of colonialism, residential schools and intergenerational trauma into account when sentencing Indigenous offenders.
According to the 2012 Supreme Court of Canada decision on Ipeelee, “counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered,” Gorin said in his recent decision on Kuneyuna.
“In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties.”
Gorin “agreed completely” that judges on the Supreme Court of Canada “could clearly have mandated ‘Gladue reports’ had they so wished. They did not. It is the Gladue information that is indispensable, not the Gladue report,” he said.
“However, there may be instances where the required information is not available from other sources and a Gladue Report is necessary. I find this to be such a case.”
Without a “true waiver on the part of the accused, it is essential that the court be provided with that information in order to carry out sentencing in the case of an indigenous offender,” Gorin said.
“I conclude that the implied powers doctrine would allow this court to order a Gladue Report in the absence of the required information from another source, in order to fulfill its obligations under” a section of the Criminal Code that dictates “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.”
Gorin ordered a Gladue report be produced on Kuneyuna.
“To be clear, I am not ordering a full Pre-Sentence Report, since it is only the case specific information relating to Mr. Kuneyuna as an indigenous offender that I require,” said the judge.
He adjourned Kuneyuna’s sentencing until June 5. “The Gladue Report is to be filed with the clerk of the court no later than 4 p.m. on June 1,” said the judge. “The accused is remanded into custody until that time.”
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