Reinstated appeal of sentence sought

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This article was published 12/05/2023 (900 days ago), so information in it may no longer be current.

A Manitoba man, whose three-year prison sentence for weapon and drug offences highlighted how young Indigenous offenders are often treated more harshly by the courts, is fighting to have his appeal heard after succumbing to the advice of “jailhouse counsel” who told him contesting his sentence could mean more time behind bars.

Ethan Wildcat, 21, was sentenced to prison last November. A month later, he filed a notice of appeal. In March, Wildcat abandoned his appeal.

Now Wildcat wants to reinstate his appeal, saying until recently he didn’t have a proper understanding of the process.

“At times, I have trouble understanding things and I often listen to what others tell me to my detriment,” Wildcat said in a court affidavit.

Wildcat was featured in a Free Press story last March that documented how two offenders — one Indigenous and from a disadvantaged background, one non-Indigenous and from a middle-class upbringing — who faced similarly serious offences, were handed starkly different sentences by the same judge.

Wildcat was arrested in March 2021 following a firearm incident at a Winnipeg home. When time came for sentencing, prosecutors sought a four-year prison sentence; the defence a two-year conditional sentence served in the community.

Another offender, Regan Breemersch, was arrested after he agreed to stash dozens of prohibited firearms in his garage. Similarly, prosecutors recommended he be sentenced to 3.5 years in prison, and the defence recommended a two-year conditional sentence.

Both men had been released on bail to the custody of Morberg House for residential treatment and rehabilitative programming. Both men received glowing praise from treatment staff about their progress.

Lawyers for both men argued the “exceptional circumstances” of their individual cases and their efforts to turn their lives around deserved consideration by the court.

Exceptional circumstances are a sentencing consideration that takes into account circumstances unique to an individual accused that would serve to reduce what would otherwise be an appropriate sentence.

In the end, only Breemersch escaped a prison sentence.

On August 26, provincial court Judge Rachel Rusen granted him a two-year conditional sentence, saying: “In the circumstances of this accused, I am satisfied there are exceptional circumstances such that a sentence of less than usual is justified.”

Wildcat wasn’t so lucky. “Mr. Wildcat is well on his way, and I don’t want to take that away from him,” Rusen said Nov. 9 before sentencing him to three years in prison. “But he has not fully and completely turned his life around since his arrest. Notwithstanding the Gladue factors and rehabilitative post-offence measures, his moral blameworthiness remains high.”

Wildcat said he had gone to court expecting to receive a conditional sentence. “I was completely surprised by the sentence,” he said in an affidavit.

Wildcat filed a notice of appeal on Dec. 8 in which he argued Rusen didn’t give appropriate weight to his rehabilitative efforts and Gladue factors, and erred in rejecting consideration of exceptional circumstances in his case.

In late February, Wildcat told his then-lawyer, Chris Gamby, he wanted to abandon his appeal.

“He advised me in no uncertain terms he did not wish to move forward with respect to his sentence appeal,” Gamby said in an April 14 affidavit. “He did not go into any depth or detail as to why.”

Court has heard Wildcat has cognitive limitations and a likely diagnosis of fetal alcohol spectrum disorder, and is susceptible to the influence of others.

“While at the material time, Mr. Wildcat appeared to understand the process and the impact of his decision… with the benefit of hindsight, I now call into question my assessment,” Gamby said.

In a March 27 affidavit in support of renewing his appeal, Wildcat said talks with other inmates at Stony Mountain Institution made him believe the appeal process would delay his parole or result in an even longer sentence.

“Other inmates advised me I should drop my appeal as it would be better for me,” he said. “I now understand this information… is incorrect… I felt influenced and pressured to follow their advice. I was fearful I needed to follow their advice.

“I am sorry that I followed the advice of strangers and people who did not have legal training, nor my best interests at heart,” he said.

Wildcat was “impressionable and reluctant to act contrary to the advice of ‘jailhouse counsel,’” his lawyers wrote in a motion brief filed April 14.

“The unique circumstances that resulted in his decision to abandon his appeal, and the brief delay between the abandonment and decision to reinstate, are reasonable in the circumstances and favour reinstatement,” Wildcat’s lawyers said.

The Crown opposes Wildcat’s motion, but has not yet filed any court briefs listing its reasons.

Wildcat’s lawyers said in an affidavit they anticipate the Crown will argue that allowing Wildcat to reinstate his appeal “could open the floodgates to others” who wish to do the same.

“This is not a new issue,” Wildcat’s lawyers said. “The mechanism to reinstate an appeal has always been available.”

Wildcat’s motion is set to be heard June 29.

dean.pritchard@freepress.mb.ca