Ontario’s top court has put the province’s judges on notice: they must always take into account an Aboriginal person’s heritage at sentencing, even if the individual only found out about their background later in life.

The Court of Appeal ruled last week that an Oshawa judge erred in concluding that there was no link between Andrew Kreko’s Aboriginal heritage and the gun-related offences to which he pleaded guilty in 2013.

Ontario Court Justice David Stone said that a more likely connection would be Kreko’s “hip-hop affiliations.” He sentenced the then 24-year-old Toronto man, who was adopted by a non-Aboriginal couple as a toddler, to 13 years in prison in 2014.

Writing for a unanimous three-judge appeal court panel, Justice Gladys Pardu said that the case law is clear: a person does not have to establish a “causal link” between their Aboriginal heritage and the offences they’ve committed. The court reduced Kreko’s sentence to 9 years.

“The sentencing judge erred by failing to consider the intergenerational, systemic factors that were part of the appellant’s background, and which bore on his moral blameworthiness,” she wrote.

The Criminal Code and past Supreme Court of Canada rulings state that judges must pay particular attention to the circumstances of Aboriginal offenders and consider a range of sentencing options given the distinct history of Aboriginal peoples and their overrepresentation in the Canadian criminal justice system.

The Court of Appeal decision, advocates say, highlights the need for more education, not just for judges, but for all Canadians on these issues.

“It is unusual that an error of this magnitude is made on the question of whether Gladue applies,” said Kreko’s appeal lawyer, David E. Harris, referring to the landmark Supreme Court case that reinforced the obligation of judges to consider the unique circumstances of Aboriginal offenders.

Kreko’s crimes related to a robbery at gunpoint in an Ajax LCBO parking lot of Jason Gomes. When Gomes drove after Kreko, he was shot in the scalp but was not seriously injured, while Kreko also shot himself in the leg, causing serious injury, Pardu wrote.

Court heard that Kreko’s Aboriginal mother came from a chaotic home fuelled by alcoholism.

She gave birth to her son when she was a 15-year-old Crown ward. Kreko was soon placed in foster care, and adopted at the age of 2 by a couple of Finnish and French-Canadian descent. Soon after, his adoptive mother left the family.

Kreko only found out about his Aboriginal heritage from his adoptive father between the ages of 16 and 18.

“This came as a shock to him, and the realization of the loss of both his adoptive mother and his birth mother led to feelings of abandonment, resentment and a sense that he was unwanted,” Pardu wrote, adding Kreko has since found his birth mother and embraced his Aboriginal heritage.

The Truth and Reconciliation Commission has said that the child welfare system picked up from where residential schools left off, furthering the disconnection of Aboriginals from their heritage, said lawyer Emily Hill, who represented Aboriginal Legal Services of Toronto as an intervenor in the Kreko case.

“The problem is the idea that ‘Well, that person was adopted by non-Aboriginals and hasn’t had an Aboriginal experience,’ but our position is that it is an Aboriginal experience, because they are adopted out of their community, disproportionately involved with child welfare, and disproportionately adopted into non-Aboriginal homes and many of those adoptions break down,” she said.

In a letter sent to the Court of Appeal, Stone justified his decision by highlighting the fact that Kreko was adopted at a very young age and “was raised as a white child in Ajax.”

“It appeared to me that his Aboriginal connection had been irrelevant to his offences, or how he got there.

“While his partly Aboriginal teenage mother had given him up for adoption… the most important aspect of this was not some colonial treatment of the birth mother. It was his discovery that not only had he been abandoned by the woman he thought was his mother in Ajax, but that he had another mother, his birth mother, and she had abandoned him too…”

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The appeal decision noted that the court had simply asked Stone whether there were any rulings that would be relevant to the appeal. Pardu said Stone was wrong to send the letter.

“A trial judge should not use the report to supplement his or her reasons, as occurred in this case,” she said.

Stone declined to comment through a court spokeswoman. A former Crown attorney and defence lawyer who also practiced in the territories, Stone was appointed to the bench at the age of 40 in 1990.

A profile in the Star at the time compared him to Judge Harry Stone of the popular TV show Night Court, because they’re both “self-confessed hams.”

“A self-taught guitar player (who, during his university days, developed and taught a ‘six-week, play-by-ear, or your money-back guaranteed guitar course’), he centres his life on music, laughter, and the intensity of criminal law,” wrote Marjorie Green.

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