A Saskatoon street gang member convicted in 2019 of torturing a rival gang member lost his appeal to have his prison sentence reduced.
Indian Posse Matthew Junior Gamble, 36, wanted his 7.5-year prison sentence reduced to five years, based on Gladue factors.
Saskatchewan Chief Justice Robert Richards dismissed Gamble鈥檚 appeal. In the May 5 Court of Appeal decision, Chief Justice Richards, in concurrence with Justices Neal Caldwell and Jeffery Kalmakoff, ruled that the trial judge鈥檚 decision to reject Gamble鈥檚 request for a Gladue Report wasn鈥檛 unreasonable.
Gamble鈥檚 lawyer Laura Mischuk had appealed his sentence on the grounds that the trial judge erred by not ordering the preparation of a Gladue Report claiming it led the trial judge to impose a 鈥渄emonstrably unfit sentence.鈥�
The trial judge had relied on three Pre-Sentence Reports (PSR) saying they were sufficient.
Tortured rival gang member in basement
During Gamble鈥檚 Saskatoon Court of Queen鈥檚 Bench trial in 2019, the court heard that on May 16, 2017, Gamble and two other men 鈥� all members of Indian Posse 鈥� attacked Julian Desjarlais and dragged him down the entry stairs to a suite in the basement of a house in Saskatoon.
Desjarlais was held against his will, beaten and threatened with death. Gamble, the ringleader, branded Desjarlais with knives heated on a stove, burning 鈥淚P鈥� (Indian Posse) and 鈥淭SK鈥� (Terror Squad Killers) into his chest.
Gamble also cut off the end portion of Desjarlais鈥檚 left-hand ring finger. The torture lasted for hours and ended only when Desjarlais broke a window and escaped.
鈥淢r. Gamble鈥檚 confinement, assault, torture and maiming of the victim along with the other gang members, and his inducement of terror in his victim, are disgusting,鈥� said the trial judge.
鈥淣o right-thinking person could countenance his actions, or believe that his actions are excused or even explained by his upbringing.鈥�
The trial judge said while the proper application of the Gladue and other personal factors do diminish his moral responsibility to a degree, none of this operates to excuse Gamble.
鈥淚t is time for him to take ownership of his actions and his behaviour, and decide what sort of a person he wants to be in the future.鈥�
Gladue factors
By law, judges must consider Gladue factors when sentencing First Nations people and address an Aboriginal offender鈥檚 circumstances, as well as the systemic and background factors that contributed to those circumstances. 听
Gladue was a landmark Supreme Court of Canada decision handed down in 1999. The ruling says that failing to take Aboriginal circumstances into account violates the fundamental principle of sentencing.
The Supreme Court said courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples.
The Supreme Court said these matters, on their own, don鈥檛 necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.
The Gladue Principles also state restorative justice may be more appropriate for Aboriginal offenders. Restorative justice focuses on healing those affected by the criminal act, including the offender, which is more in line with traditional Aboriginal justice. This restorative justice approach is also meant to act as a solution to reducing the over-representation of Aboriginals in Canadian jails.
Chief Justice Richards said systemic and background factors may bear on the culpability or moral blameworthiness of the offender and impact the nature of a fit sentence but it鈥檚 not an 鈥渦nvarnished direction to impose shorter sentences on Aboriginal offenders.鈥�
This means Gladue factors don鈥檛 automatically trump or displace other sentencing considerations and objectives. Gladue doesn鈥檛 require that Aboriginal offenders always be sentenced in a manner, which gives greatest weight to the principles of restorative justice, as opposed to goals such as deterrence, denunciation and separation.
The Supreme Court said Gladue considerations shouldn鈥檛 drive a judge to ignore other sentencing principles and objectives.
Pre-Sentence Reports vs. Gladue Report
According to court documents, the trial judge had ordered a PSR, which took Gladue factors into consideration. Gamble, however, wanted a full Gladue Report. He didn鈥檛 have the money to pay for it and asked the state to pay. Court Services opposed the order saying there was sufficient information through a series of three PSR鈥檚.
After the first PSR was done, the trial judge wasn鈥檛 satisfied and asked for a second PSR with further and better Gladue information on five different factors including clarifying, after contradictory information was provided, whether Gamble had attended a residential school and, if so, where.
Gamble鈥檚 counsel had concerns with the second PSR. The judge agreed and ordered a third PSR to include more information on how Gamble鈥檚 offending affected his home community of Beardy鈥檚, since he spent little time on Thunderchild. The third PSR also explored how Gamble鈥檚 stepfather鈥檚 gang involvement led to his own criminality and involvement in the same gang.
Defence applied for an order that a publicly funded Gladue Report be prepared. The trial judge denied the order. Chief Justice Richards said it鈥檚 safe to say the trial judge had reservations about the evidence advanced in support of Gamble鈥檚 application.
The trial judge said the form that Gladue information was presented to the Court mattered 鈥渇ar, far less鈥� than the information itself. He said Gladue information didn鈥檛 have to come before the Court in the form of a report and rejected the proposition that a Gladue report would be superior to a PSR. He found that the Gladue information presented to him by way of the three PSRs was adequate and the content of the report was more important than the title on its cover. He found that the information made available to him by way of the revised and expanded PSRs was sufficient information to assess and address the Gladue considerations relating to Gamble鈥檚 situation.
Gamble鈥檚 lawyer said the PSR鈥檚 were lacking because they didn鈥檛 adequately explore his gang involvement and how that involvement affected his moral blameworthiness. He was affiliated with Indian Posse since the age of 10. She argued that the trial judge was left with no understanding of how gang life is situated in his cultural history and how it affects his moral blameworthiness.
Chief Justice Richards ruled that the trial judge鈥檚 decision to forego a Gladue report wasn鈥檛 unreasonable. The report wasn鈥檛 necessary and as a result, the trial judge made no error.
鈥淭he trial judge had, by virtue of three PSRs, a considerable amount of information about Gamble鈥檚 specific background, upbringing, family circumstances and so forth. All of that revealed quite clearly how the legacy of colonialism, displacement and lack of opportunity had affected Mr. Gamble personally. While, of course, more detail is always possible in relation to a story as complicated and multi-dimensional as the life of an individual, the PSRs offered the trial judge a solid sense of Mr. Gamble鈥檚 upbringing, his family instability, his mistreatment by caregivers and others, his involvement with drugs and so forth.鈥�
Sentencing
The trial judge said mitigating factors included Gamble鈥檚 unfortunate upbringing and family background, his expression of remorse and the fact that he had very recently consulted with STR8 UP, an organization that assists individuals to remove themselves from gang lifestyles. In light of those factors, he concluded that to some degree at least, Gamble鈥檚 moral blameworthiness was reduced or mitigated.
For aggravating factors the judge pointed to Gamble鈥檚 extensive criminal record with a pattern of violent crimes, his gang affiliation, the fact that the offences involved confinement, severe violence, mutilation, death threats, and torture extending for hours, Gamble鈥檚 role as the ringleader of the men who perpetrated the attack, and the marked and lasting impact of the attack on the victim.
The trial judge said he considered Gamble鈥檚 circumstances and the Gladue factors that show there is some diminishment of his moral responsibility but in the circumstances of this case he is a highly culpable individual.
Gamble鈥檚 lawyer also argued that regardless of whether there was a problem with respect to the adequacy of the Gladue information before the trial judge, his sentence is demonstrably unfit. She suggested an appropriate sentence would have been five years.
Chief Justice Richards said the sentence imposed on Gamble was significant but considering the nature of the crimes he committed, the relevant aggravating and mitigating factors, and similar sentencing decisions, he wasn鈥檛 persuaded that it was demonstrably unfit.
Indian Posse
Indian Posse started in 1988 in Winnipeg, Man., and is one of the largest street gangs in Canada. Indian Posse moved west as a result of the federal parole system. Many of the offenders served their sentence in Edmonton's maximum-security prison and were released in that city on parole. They embraced Edmonton as their new home and set up chapters.
The Indian Posse hierarchy consists of chiefs at the top with warriors under them, and then strykers below them.
Criminal Intelligence Service Canada (CISC) designated Indian Posse as a member of Aboriginal Based Organized Crime (ABOC), along with Redd Alert and Alberta Warriors. CISC says that Indian Posse engages in marijuana cultivation, illegal firearms activities, auto theft, drug trafficking, gambling, and facilitates criminal activities for the Hells Angels Outlaw motorcycle club and Asian-based networks.
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