After multiple attempts to schedule a sentencing hearing for Stephen Andrew Louvelle since his conviction for sexual assault in February, the matter has encountered another delay that will put things off for at least three more months.
When called in the Supreme Court of Newfoundland and Labrador in Corner Brook Wednesday, Louvelle’s lawyer asked that the court order a report exploring Louvelle’s aboriginal ancestry to determine whether or not that should be a factor in considering an appropriate sentence for him.
Gary Kearney, who did not represent Louvelle at trial but has been retained since his conviction, presented an application before Justice Alan Seaborn, asking the court to reschedule the sentencing hearing so there could be time to investigate whether Section 718.2(e) of the Criminal Code of Canada is relevant to this case.
That piece of legislation states that when imposing a sentence, the court has to consider that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”
The aim of Section 718.2(e) is to reduce the number of aboriginal offenders who are incarcerated.
Louvelle has applied for status as a member of the Qalipu Mi’kmaq First Nation Band, Kearney told the court, but his application had not been processed.
Some members of his family have already been granted their status, he added.
“There is no requirement that an individual be part of a recognized band before an order (for a Gladue report) can be issued,” argued Kearney, adding he has a duty to bring this factor to the court’s attention unless his client waives his right for his aboriginal status to be considered as part of the sentencing process.
The Gladue report would help determine if and how Louvelle’s aboriginal status should apply to his sentencing.
Louvelle is from St. George’s. This report, said Kearney, may take up to two months to complete because no Gladue report has ever been done for that community.
The completion of a Gladue report for Louvelle, noted Kearney, would mean that any future report for an offender from that community should not take as long because the community component would already have been covered off in the one done for Louvelle.
Crown attorney Mike Fox argued there is a difference between someone who is considered an aboriginal offender and an offender who has aboriginal heritage. He questioned why there was no reference whatsoever to Louvelle’s aboriginal status in a pre-sentence report already prepared for the court for the sentencing hearing.
If the Gladue report was ordered, Fox said the pre-sentence report that has been done is “inadequate.” While legislation sets out the criteria and process for a Gladue report to be done, Fox said the report should explore Louvelle’s personal connection to the aboriginal community in St. George’s.
The pre-sentence report was done by a probation officer from the Gander area. Kearney said it may be more expedient to have a probation officer from the Stephenville area do the Gladue report since its focus would be mainly in the community of St. George’s.
Fox said he had concerns about the length of time this serious matter has been before the court and that he was prepared to proceed with sentencing Wednesday.
Louvelle, 27, was found guilty of having a sexual relationship with a 12-year-old girl for several months in 2007. He went to trial in March 2011 but a jury was unable to reach a verdict.
His second trial was before a judge alone.
Seaborn agreed that this matter has been ongoing for a long time, including four appearances scheduled since February for the sentencing alone. Still, he said he was satisfied with Kearney’s argument that Louvelle’s aboriginal status could possibly be an issue for sentencing and that a Gladue report “could be of assistance to the court.”
The judge said he had no choice but to order the report so the court has “the best information” possible available for the sentencing.
The report will be done by a probation officer located closer to St. George’s.
Louvelle’s sentencing has now been adjourned until Sept. 11.