Crown argued that accused's negative experiences were not connected to his Indigenous heritage
The British Columbia Court of Appeal rejected the assertion that a disconnect between an Indigenous person from his heritage warranted a limited application of the Glaude factors in determining his sentence.
In 2018, David Johnathan Kehoe stabbed his victim without provocation. The victim was taken to the hospital and survived, with several surgeries. Kehoe was found guilty of aggravated assault and sentenced to five years’ imprisonment.
At sentencing, the judge considered that Kehoe was Métis but found the nexus between his Aboriginal status and the offence was limited. The judge agreed with the Crown’s submissions that despite having a troubled childhood, none of these negative experiences were connected to his Indigenous heritage.
Kehoe sought leave to appeal his sentence. He argued that the judge failed to give the Glaude principles full effect.
The appellate court agreed.
Disconnection from Indigenous heritage does not limit the Glaude factors
In R. v. Kehoe, 2023 BCCA 2, the appellate court ruled that the trial judge erred ruling that Kehoe’s disconnection from his Métis heritage, culture, and community played a limited role in the case.
“As a consequence of Canada’s colonial history and assimilationist policies, many Indigenous people have become disconnected from their ancestral communities, cultures, and associated positive social structures. This disconnection has contributed to the social and economic marginalization of Indigenous people in Canada, including their disproportionate interactions with the criminal justice system,” said the court.
The position that Kehoe’s disconnect from his Indigenous culture warrants limitation of the Glaude factors “subverts the remedial purpose of s. 718.2(e) of the Code and penalizes Mr. Kehoe for the success of Canada’s destructive policies,” said the court.
In sentencing Kehoe afresh, the appellate court took no issue with the sentencing judge’s description of the seriousness of the offense. However, in applying the Glaude principles, the appellate court found Kehoe to have a significantly reduced level of moral blameworthiness due to his background and being raised in a dysfunctional environment.
Thus, the appellate court reduced Kehoe’s sentence to four years’ imprisonment.
