R. v. Desouza

R. v. Desouza Collection Decisions of the Court of Appeal Date 2025-04-17 Neutral citation 2025 ONCA 289 Docket numbers COA-24-CR-1216 Judges MacPherson, James C.; Sossin, Lorne; Monahan, Patrick J. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Desouza, 2025 ONCA 289 DATE: 20250417 DOCKET: COA-24-CR-1216 MacPherson, Sossin and Monahan JJ.A. BETWEEN His Majesty the King Respondent and Matthew Desouza Appellant Adrian Forsythe, for the appellant Michael S. Dunn, for the respondent Heard: April 11, 2025 On appeal from the sentence imposed by Justice Alfred J. O’Marra of the Superior Court of Justice on February 9, 2024. REASONS FOR DECISION [1] The appellant pleaded guilty to human trafficking offences, assault with a weapon and failing to comply with a release order. He was sentenced to seven years, less presentence custody. He appeals his sentence,[1] arguing that the sentencing judge did not properly apply Gladue principles and that the sentence is demonstrably unfit. [2] For the reasons set out below, we do not see a basis for appellate interference with the sentence and dismiss the appeal. [3] The parties agree that a sentencing judge’s determination of sentence is due significant deference, and that intervention is warranted only where (1) the sentence is demonstrably unfit; or (2) the sentencing judge made an error in principle that had an impact on the sentence: see R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 13, 29-31; and R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. [4] The requirement that the sentencing judge consider the factors set out by the Supreme Court in R. v. Gladue, [1999] 1 S.C.R. 688, is not in dispute. The Gladue principles set out in s. 718.2(e) of the Criminal Code are well-established. These principles give rise to specific Gladue factors, which must be considered whenever an Indigenous offender is sentenced, and their application is individual and offence specific: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 71-75. [5] Pursuant to the Gladue factors, the sentencing judge first must take judicial notice of the systemic and background context affecting Indigenous peoples in Canadian society. The sentencing judge must then factor into the sentencing analysis two considerations: a) first, the unique systemic or background factors which may have played a part in bringing the particular Indigenous offender before the courts, and b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Indigenous heritage or connection: R. v. Wesley, 2025 ONCA 51, at para. 112. [6] The sentencing judge also must ask whether the Gladue principles impact the types of sanctions that achieve the objectives of sentencing: R. v. Bourdon, 2024 ONCA 8, 95 C.R. (7th) 219, at paras. 25-28. [7] The appellant is a member of the Upper Cayuga of the Six Nations of the Grand River but had little connection to his Indigenous culture until he was incarcerated in 2015. He was subject to an attempted sexual assault when he was 12 years old and became involved in the youth criminal justice system from the age of 14. [8] The Gladue report also reviewed the profoundly destructive intergenerational effects of Canada’s residential schools and policies of severing connections between Indigenous persons and their communities. In the appellant’s case, his maternal grandmother experienced residential school harms, and his mother experienced poverty, neglect and sexual abuse after being adopted by a non-Indigenous family at the age of five. The appellant’s mother gave birth to him when she was 18 and gave him up to the same non-Indigenous couple when he was five years of age. [9] The sentencing judge referred to the Gladue report, in addition to the pre-sentence report, which further described his upbringing in foster homes and sleeping in stolen cars when he was not in jail. The report also described that, during his most recent detention, he had participated successfully in several programs including employment readiness, cultural identity, personal declaration, financial literacy and transformative change programs. [10] The sentencing judge concludes his consideration of the Gladue principles in the context of the broader sentencing analysis by stating the following: In terms of the Gladue consideration, I am mindful of the systemic and background factors that affect [I]ndigenous people leading to their over incarceration in our justice system. Based on the information provided in the Gladue report prepared in this matter, [the appellant] has been affected by the deprivation he has experienced and the consequences of systemic factors. However, while he has experienced personal deprivations that have led to his criminality, and involvement in the criminal justice system, I do not find that they diminish his moral culpability or blameworthiness in this instance. Rather, in the commission of these offences he has repeated his willingness to victimize another person. In this instance he exploited a vulnerable person with threats of violence over an extended period of time. His conduct was pernicious and predatory. He commodified and dehumanized the victim for his own financial gain. I take into account the principles articulated by the Supreme Court in [R. v. Gladue and R. v. Ipeelee], that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is also necessary to ensure that the sentencing objectives of deterrence, denunciation and deterrence specific in this instance are met while mindful of the need to encourage rehabilitation. I take into account that while in detention, [the appellant] has taken many programs and advanced his education which demonstrates his rehabilitation potential. [11] The appellant argues that the sentencing judge erred in finding that the Gladue report did not diminish his moral blameworthiness in this instance. Rather than balance moral blameworthiness with the seriousness of the offence in the application of the principle of proportionality, the appellant asserts that the sentencing judge relied on the seriousness of the offence to reach his conclusion with respect to moral blameworthiness. [12] The appellant underscores that sentencing judges should be aware of the “devastating intergenerational effects of the collective experiences of Aboriginal peoples” (Ipeelee, at para. 82), and that an Indigenous offender need not establish a detailed, causal link between systemic and background factors and their moral culpability for the offence in question, relying on R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, at paras. 45-46. [13] The Crown contends that there is no requirement that a sentencing judge link the Gladue principles to the assessment of moral blameworthiness per se. [14] According to the Crown, the appellant’s concern really goes to the weight to be accorded to the Gladue report. [15] We agree. The sentencing judge properly instructed himself on the importance of the Gladue principles in the sentencing analysis, and he referred to those principles and the appellant’s Gladue report at several junctures in his reasons. [16] The sentencing judge’s reference to those principles not diminishing the appellant’s moral blameworthiness was not a statement made in the abstract, but rather in the specific context of this offender “in this instance,” given the appellant’s willingness to victimize another person while still facing consequences from a previous conviction on similar grounds. [17] We see no error in this conclusion or in the sentencing judge’s application of Gladue principles in his sentencing of the appellant. [18] The appellant also raises grounds of appeal relating to the failure of the sentencing judge to give due regard to the appellant’s expression of remorse and guilty plea. As the sentencing judge makes clear in his reasons, these elements were considered as mitigating factors in the sentencing analysis. That said, the sentencing judge viewed each as attenuated. In the case of the expression of remorse, the sentencing judge observed that the appellant’s reference to both he and the victim being harmed suggested he had not fully appreciated the impact of his actions on the victim, and in the case of the plea, the sentencing judge observed that it came somewhat late in the process. [19] At the conclusion of his analysis, the sentencing judge stated, “In considering all of the applicable sentencing principals, [the appellant’s] moral culpability and blameworthiness, his plea, his personal antecedence and background and rehabilitation potential, the total appropriate sentence in this case I consider is one of 7 years incarceration as shall be endorsed on the indictment.” [20] It was open to the sentencing judge to give effect to these mitigating factors in the way that he did. The sentencing judge’s sentence of seven years fell between the defence’s recommendation of five years and Crown’s recommendation of nine years. [21] In our view, the sentencing judge’s analysis reveals no error and the appellant’s sentence was fit. DISPOSITION [22] For these reasons, we grant leave to appeal the sentence but dismiss the appeal. [23] We thank counsel for the appellant and the Crown for their helpful submissions. “J.C. MacPherson J.A.” “L. Sossin J.A.” “P.J. Monahan J.A.” [1] The appellant is separately appealing his conviction, and that appeal has not yet been heard.