Sentence cut in half for Saskatchewan man who identifies as Métis

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Saskatchewan’s top court has cut a five-year prison sentence in half for a man Prince Rupert police caught with a handgun, ammunition and methamphetamine because the trial judge didn’t properly consider his Indigenous background and how he was affected by systemic discrimination.

Colin Umpherville, who identifies as Métis through his maternal great-grandfather, successfully argued in Saskatchewan’s Court of Appeal that the judge who sentenced him made mistakes in applying what are dubbed Gladue principles. Those were set out in a Supreme Court of Canada decision a quarter century back and indicate sentencing judges must consider the unique circumstances of Indigenous offenders, as well as systemic issues like the impact of residential schools, to address the over-representation of Indigenous people in Canada’s prisons.

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“Mr. Umpherville’s crimes are serious and called for a term of imprisonment. However, I agree with Mr. Umpherville that the judge erred in his application of the principles set out in R v Gladue … and the cases interpreting and affirming that decision,” Chief Justice Robert W. Leurer said in a recent decision from the three-judge panel.

“The judge’s errors had an impact on the sentence that Mr. Umpherville received” for possession of a .22 handgun and 50 rounds of ammunition for it, even though he didn’t have a firearms licence, “requiring this court to sentence him afresh with respect to that charge. After engaging in this sentencing exercise, I have concluded that, in the present circumstances, a fit sentence for the offence … is a term of imprisonment of 30 months, less credit for time spent in remand.”

Two police officers discovered Umpherville in a hotel room on Oct. 26, 2019. They had been called there to evict a renter of a suite, who was not Umpherville. But that’s who let them in the room.

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“He had a small quantity of methamphetamine in his possession. With him in the room was a backpack that contained a .22 calibre handgun, 50 rounds of ammunition compatible with the handgun, and an operational weigh scale,” said the Dec. 20 decision.

Umpherville was 29 at the time. He is now 35.

“Mr. Umpherville’s father was of First Nations descent and a residential school survivor,” said the decision. “His father ‘struggled with addictions to cope with his past’ and died when Mr. Umpherville was nine years old. Mr. Umpherville has no memory of his father, but he believes that he ‘may not have been in so much trouble in his life’ if his father had not passed away.”

Umpherville can only remember “small traumatic snippets” from the first six years of his life, the court heard. “One of these is ‘being in his mother’s home during a party when he was around six years old, where he witnessed his (older) sisters being sexually abused by adult men.’ He ‘recalls experiencing an enraging helplessness because he was too small to help his sisters.’ Mr. Umpherville believes that this was the last time he and his sisters were in their mother’s home, as the children were then apprehended by the Ministry of Social Services.”

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He was not exposed to First Nations culture growing up.

“He identifies as Métis through his maternal great-grandfather. Yet, he ‘does not feel a part of the Métis community and has never been involved in the cultural traditions of the Métis people.’”

Umpherville told the court he’s been diagnosed with fetal alcohol spectrum disorder and attention deficit hyperactivity disorder. “The last grade in school Mr. Umpherville completed in full was grade six.”

The father of four is estranged from the sole long-term romantic partner he’s ever had and “has committed violence against her, which was associated with his substance abuse.”

Umpherville told the court he needs to upgrade his education.

“He ‘feels once he is in school, everything else will fall into place,’” said the decision. “Yet, the pre-sentence report indicates that ‘his plan to accomplish such includes selling drugs while waiting to be accepted into school and that Mr. Umpherville ‘considers committing property crimes or harming people as worse crimes than selling drugs.’”

An assessment “classifies Mr. Umpherville in the high-risk category to reoffend and states that, when he is compared to the remainder of the Saskatchewan offender population, he was ‘assessed to be at the 98th percentile which means two per cent of Saskatchewan offenders were assessed as having more risk factors.’”

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The judge who sentenced Umpherville noted “the Gladue factors are significant,” in his life, and needed to be considered when determining his level of “moral culpability.”

“But I also recognize that at the same time, they don’t necessarily … and don’t automatically result in a lower sentence than what other individuals would … get for the same type of offences.”

The sentencing judge “concluded that Mr. Umpherville’s ‘prospects of rehabilitation look very low,’” said the Appeal Court decision. “He expressed hope that Mr. Umpherville might receive programming while incarcerated that could improve his prospects of rehabilitation, but he stated that he was not prepared to ‘very soon set (him) back into a public or — or a probation program where (he) can have a chance to continue to give effect to (his) current beliefs that drugs don’t harm people, and that it’s okay for (him) to sell drugs.’”

The sentencing judge, who accepted the Crown’s recommendation that Umpherville get five years in prison, made two mistakes in applying Gladue to his circumstances, according to the Appeal Court.

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“First, the judge did not assess the extent to which Mr. Umpherville’s Gladue factors influenced his moral culpability,” Leurer said. “Second, the judge incorrectly drew, from the need to emphasize the sentencing principles of deterrence and denunciation, the conclusion that Mr. Umpherville’s Gladue factors could not affect the appropriate term of imprisonment in this case.”

A recent “one day snapshot” of the Saskatchewan’s incarcerated population revealed “77 per cent of those in custody were Indigenous, with 41 per cent of them being on remand,” said the decision, which notes “judges are obliged to attempt to redress these tragic realities.”

Thirty months is the longest sentence Umpherville has ever received, said the decision. “Given the facts of this case, a sentence of this length will be long enough to properly emphasize denunciation and deterrence. It will also appropriately account for the offsetting aggravating and mitigating circumstances, including the Gladue factors that impact Mr. Umpherville’s moral culpability for these offences.”

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A quarter century ago, the Supreme Court of Canada handed down its decision in the case of Jamie Tanis Gladue, a young Cree woman who had killed her common-law husband.

Gladue was 19 when she stabbed her husband upon discovering his infidelity, while intoxicated after a party. She pleaded guilty to manslaughter and was sentenced to three years’ imprisonment, receiving parole after six months.

The Supreme Court upheld Gladue’s sentence, but it was a landmark decision. The court stated that sentencing judges must consider the unique circumstances of Indigenous offenders, as well as alternatives to jail time.

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