Digest: R v Whitstone, 2018 SKQB 83

• Date: March 09, 2018

Reported as: 2018 SKQB 83

Docket Number: QB17464 , CRM 113/16 JCB

Court: Court of Queen's Bench

Date: 2018-03-09

Judges:

• Zuk

Subjects:

• Criminal Law � Sentencing � Aboriginal Offender - Appeal

Digest: The appellant was on an 18-month conditional sentence order when she committed new offences and was charged under s. 403(1) and s. 364(1) of the Criminal Code of impersonating someone with intent to obtain groceries from a store and fraudulently obtaining food from it. She was sentenced to six months� incarceration on each charge to be served concurrently. The Crown applied pursuant to s. 742.6 of the Code to convert the unexpired portion of the appellant�s conditional sentence order to be served in jail. Counsel for the appellant consented to the Crown application and the sentencing judge ordered her to spend the remaining 12 months of the conditional sentence order in a Provincial Correctional Centre. During the hearing, neither the Crown or defence counsel nor the sentencing judge raised the question of whether the appellant was Aboriginal, nor was it acknowledged in the sentencing. The appellant, representing herself, appealed her conviction and sentence but later abandoned her conviction appeal. During her oral submissions, the appellant raised the fact that she was an Aboriginal person and that the sentencing judge failed to address the Gladue considerations. The court defined the issues as: 1) whether s. 718.2(e) of the Code imposed an obligation on a sentencing judge to determine if the offender being sentenced was Aboriginal; 2) what was the effect of a sentencing judge�s failure to consider the circumstances of the offender being Aboriginal in sentencing the offender; and 3) whether a joint sentencing submission eliminated the obligation imposed on a sentencing judge under s. 718.2(e) to consider Gladue factors.
HELD: The appeal was allowed. The court set aside the sentence and the termination of the conditional sentence order. The...