There are many cases that come before the courts, almost all receiving little attention or public mention, but once in awhile there are some that make you take note. From Provincial courts to Supreme Courts to Appeals courts one can almost always find a case or two that will make you scratch your head, or possibly get a little agitated.
The case that recently had me perk up and get a higher blood pressure reading is the case of Robert Mero.
He is a 34 year old male, whose father was Metis and his mother was non-indigenous; making him one fourth of Indigenous heritage. Why are we mentioning this, because it was this 25% of his heritage which was enough to keep Mr. Mero from going to jail.
In the eyes of the learned Justice Len Marchand of the BC Court of Appeal, his “moral blameworthiness” necessitated that the 40 month sentence to which he was originally sentenced (by the Supreme Court of Vancouver Judge Joel Groves )–be reduced, more accurately eliminated. Mr. Mero should not go to jail in the view of the Appeals Court as he should not be held accountable due to his Metis heritage. The sentencing was wrong according to Justice Marchand because “neither the Crown or Judge addressed his Indigenous background”.
The unwieldy terminology of “moral blameworthiness”, clearly something only lawyers could come up with, stems from the Supreme Court of Canada and what is now referenced as the Gladue decision.
Regina vs Gladue was a decision by the Supreme Court specifically dealt with sentencing principles that had been layed out in Section 718.2 (e) of the Criminal Code of Canada and had been enacted by Parliament in 1995. This section directed that the courts need to consider “all available sanctions, other than imprisonment” for all offenders. However, it needed to pay “particular attention to the circumstances of Aboriginal offenders”. (It should also be noted that these provisions were put into the Criminal Code under Prime Minister Jean Chretien and the Liberals who ironically have been recently criticized for not understanding the problems in the residential schools.)
Gladue was the first case where the Supreme Court considered these provisions and set out to try and define what factors should be taken into consideration under this newly defined law. In the Gladue case, a young Indigenous woman had appealed her manslaughter sentence of three years for stabbing her boyfriend to death (life was cheap even back then). The pitiful sentence of three years was upheld despite the appeal, but the Supreme court ruled that they should have at least considered her Indigenous background.
The changes to the Code were orchestrated and passed because of the “over representation” of the Indigenous in the Canadian judicial system. The term “over representation” is a bit of a misnomer, they were not going to jail in disproportionate numbers because they were being picked to “represent”, they were going to jail due to the massive criminal problems existing in the Indigenous populations.
This was an attempt by the Liberals of that time to solve the abnormally high criminal activity amongst the Indigenous– from the top down. Too many in jail, simple solution, just don’t send them to jail.
No need to address the actual criminal activity at its origin, which is a much more complicated set of social ills. The overall affect of course was the diminishment of personal responsibility, and broadly, it also had the affect of creating different laws or at least very different treatment before those laws according to race.
In the years since this has morphed into Judges now automatically asking for a pre-sentence report which formalize these considerations for Indigenous offenders. This sociological based report is termed a Gladue report. This report, or lack of a report was a central factor which played out in the case of Mr. Mero.
Mr. Mero’s crime in this case was not a minor crime and he would be unlikely to have received any nominations for citizen of the year in Prince George, where this matter began. A search warrant was conducted of Mr Mero’s residence by the police in Prince George in 2016. It led to the seizure of a .38 calibre pistol, ammunition, 23 grams of heroin, and a bullet proof vest. Clearly, Mr. Mero was exhibiting all the characteristics of a drug dealer.
Mr. Mero had previously served two other jail times, in 2005 and 2006. It was what the Appeals Court called a “dated criminal record”.
Mr. Mero and his defence council (he went through two defence counsels) went through all the motions that are tried in this day and age. A motion of too long to get to trial (Jordan decision) was first tried. The Judge ruled that the delays were due to defence counsel scheduling and the fact that his 1st defence lawyer had gotten suddenly sick. The court chastised the defence counsel: “Mr. Mero’s trial counsel has shown, effectively, since the beginning of the trial, an ability to delay matters on behalf of his client”.
Then the defence argued that Mr Mero who suffers from a lung disease should not go to jail because of the high rate of Covid in the jails which could prove to be detrimental to his health. Worth a try, considering the panic which has pervaded Canadian society over Covid, but this too didn’t work.
The defence counsel then argued that no Gladue report had been prepared. It turns out that they had six months to produce a pre-sentence report but failed to get one before the courts in time. So the sentencing went ahead without a Gladue report.
Justice Marchand of the BC Appeals Court felt that this was a massive oversight.
As a result he imposed a “conditional sentence” of 2 years less a day– the 1st year to be served under house arrest, to be followed by a curfew. He was placed under probation for the drug offences. This decision by Marchand was concurred with and signed off by two other Justices; Mary Saunders and Bruce Butler.
So what would have been in a Gladue report that could alter an outcome to such a degree? Usually, there is general information about the Metis “nation”, the intergenerational aspects of “colonialism” and “displacement”, racism and systemic discrimination, forced attendance at Residential schools and the “over representation” of the Indigenous in the jails of this country.
This is not to deny that Mr. Mero clearly had a troubled life. Most criminals can point to historic family issues. In his defence argument he pointed to the fact that he was “unable to complete school”, his “childhood was traumatic”, his “life was marred with addictions” and that he had “come into conflict with the law”. Mr. Mero’s father was not believed to have been at fault but he was often “away at work” and this left him with a mother who had significant mental health issues. He had runaway from home at 12 years old and got caught up in the street level drug trade, an all too common story.
However, it would be difficult for Mero to argue that these issues were directly related to his Indigenous upbringing. One need not worry because the courts have ruled that “it is not necessary to establish a direct causal link between systemic and background factors and the offence at issue”, as it may be “impossible to establish” a link. In other words you don’t have to prove a causal relationship.
The other aspect of this case which gave me pause was that this was a verdict by Justice Marchand. There are 26 Justices in the Appeals court, but in this instance Mr. Marchand was assigned the case.
Mr. Marchand is the son of Len Marchand Sr, the first Indigenous cabinet minister who once served under Pierre Trudeau. Len Marchand Jr. is a member of the Okanagan Indian Band having grown up in Kamloops, B.C. He articled and practised law in Kamloops with Fulton and Company. While there he spent a substantial part of his career working on “reconciliation for Indigenous people”, was pursuing historic civil claims of child abuse and represented residential school “survivors” and also served on the selection committee for the Truth and Reconciliation Committee.
There is no evidence here that Mr. Marchand had a clear bias in favour of Indigenous claims of “systemic racism”. Also, this is not to claim that all Indigenous cases need to be assigned based on their cultural background. But in this instance the appeal revolved around a Gladue application, central to which is the belief that there should be judicial favourable considerations granted to the Indigenous that are not available to others. That the application of the laws should be different because of their culture and background.
It is difficult to determine whether justice was served in Mr. Mero’s case, but I suspect he was merely a player of the system.Whether justice was served in this case we can leave to others, but does justice also need to be seen as having been done?
Should this case have been handled by someone who had spent the majority of his working life on Indigenous causes or is there a definite taint to this case.
Gladue is just one of the many pronouncements coming from the benches of the Supreme Court of Canada, the BC Supreme Court and in this case the Appeals Courts. They are germinated from the left leaning political dominance in British Columbia. It leads to favourable judicial appointments. Maybe well intentioned, but clearly with very pronounced political leanings. A left propensity to believe that government must protect all and everyone from the evils that society put upon us. Personal responsibility replaced by societal responsibility.
Maybe it is time for a return to the centre, where the vast majority of Canadians actually live. Not necessarily to the right or the left, but where common sense is the prevailing ethos.
The laws of this country are being diminished, watered down, leaving a large class of people now feeling disenfranchised. Many would not be o.k with rules and laws being applied differently depending on your cultural background. It is a difficult issue, but the current judicial climate seems destined to lead to trouble.
A personal note
I apologize for the delay in the publication of this blog.
I have recently moved– swimming against the prevailing current and have moved back to the heart of the City of Vancouver leaving the quiet countryside. I have been surrounded by cardboard and the joys of re-connecting with life in the supposedly faster lane.
Thanks for your patience and your continuing support.