2021 QCCQ 10499, 2021 QCCQ 10499

R. c.

Condo 2021 QCCQ 10499 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BONAVENTURE TOWN OF NEW CARLISLE Criminal Division No: 105-01-001291-199 105-01-001292-197 105-01-001301-196 105-01-001375-190 DATE: September 17, 2021 ______________________________________________________________________ BY THE HONOURABLE JANICK POIRIER, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor and KREG CONDO Accused ______________________________________________________________________ TRANSCRIPT OF THE JUDGMENT RENDERED ORALLY AT THE HEARING [1] ______________________________________________________________________ [ 1 ] Following a trial and guilty pleas in regard to certain counts, the accused is convicted of several offences.

The Court must impose a fit sentence to the accused. [ 2 ] The offences are the following : o File 105-01-001291-199: On January 16, 2019, the accused is arrested by the police while trying to leave a residence in Listuguj. At that time police officers have serious grounds to proceed to the arrest, but the accused refuses to comply and tries to flee, therefore resisting his arrest. o File 105-01-001292-197 : When the events of January 16, 2019 take place, the accused is subject to a long term supervision order under

section 753.1(3)

b) of the Criminal Code . He fails to respect that order by not keeping the peace and obeying the law (1 st count) and by not residing to the place approved by the Correctional Service of Canada (3 rd count). o File 105-01-001301-196: Following his arrest, on January 16, 2019, the accused is brought to the courthouse in New Carlisle in order to appear. He escapes and runs away to be followed by a peace officer who is able to reach and control him. o File 105-01-001375-190: From January 16, 2019, the accused is incarcerated in New Carlisle detention facility.

A few days later, on January 22, he attacks another inmate causing him injuries. POSITION OF THE PARTIES [ 3 ] Parties have adverse positions in regard to the length of the jail sentence to be served and the ratio for presentence custody. [ 4 ] However, the fact that the accused should be subject to a long-term supervision order for 10 years following his release is not in dispute. [ 5 ] The crown pleads that the following sentence would be appropriate: ➢ For resisting peace officers and the 1 st count of breach: 1 year;

➢ For the other count of breach, concerning the place of residence: 2 years concurrent; ➢ For escaping lawful custody: 1 year consecutive; ➢ For assault causing bodily harm: 6 years consecutive; ➢ That global sentence of 9 years should be reduced to 7 years to be reasonable. [ 6 ] Defense counsel rather suggests the following: ➢ For resisting: 9 months; ➢ For both breaches: 12 months concurrent ➢ For escaping: 9 months concurrent ➢ For the assault: 3 years consecutive, for a total of 4 years.

THE EVIDENCE [ 7 ] The evidence helps us to picture the offender’s situation. [ 8 ] The Gladue report and other documents from Institut Philippe-Pinel and correctional services tell us about his past and current challenges. [ 9 ] Mr. Condo is from the community of Gesgapegiag. He claims being sexually abused by an uncle as a child. He shows behavioural problems from a very young age and his parents use violence in order to punish him. He is entrusted to rehabilitation units through his teenage years. [ 10 ] As an adult, he commits his first offences, notably an assault with a weapon, on the day he turns 18.

He is sentenced to jail a few months later, in February of 2009. [ 11 ] Since then, the accused is convicted on a regular basis, notably for assaults, threats and breaches of probation. In 2014, in relation to several files, he is sentenced to 3 years and declared a long-term offender to be controlled for a period of 5 years. In 2016, following an assault in detention, he is sentenced to 90 days. [ 12 ] Mr. Condo is released in July of 2018 and he must respect a long-term surveillance order for 5 years. He resides in a halfway house when he decides to leave, without permission, in December of 2018.

At the trial, he explains that he wanted to go see his family and it was refused, so he took off. [ 13 ] He is arrested and detained from January 16, 2019. He commits the assault on Jean-François Samuel 6 days later. Obviously, he remains in custody ever since. In fact, at the light of his priors and other evidence, Mr. Condo spends the most part of his adult life in jail.

For instance, since 2013, he has been in custody all the time, expect between July 2018 and his arrest on January 16, 2019. [ 14 ] Being incarcerated does not prevent him from committing other violent offences. [ 15 ] In her assessment, in February of this year, psychologist Tiziana Costi concludes that the risk of violent re-offending remains high. At the light of the evidence, it does not come as a surprise. [ 16 ] On the other hand, the Gladue report gives us a little hope for the future. We can read that Mr. Condo bitterly regrets his assault on Mr. Samuel and says he is sorry for him.

He would like to work with an Aboriginal Elder to build a relation of trust that would lead him to change his lifestyle. We can read in the Gladue report: “ Mr. Condo has an active pro speech, but we must admit that the road to rehabilitation will be long ”. [ 17 ] When he testifies on sentence, the accused talks about his conditions of custody since January of 2019. He is transferred on numerous occasions and isolated at times. He denies refusing to participate in programs, saying there was none, he was just offered to meet people in order to talk.

He states he was not involved in any violent incidents since his last offence. He says he is improving in regard to self-control and emotions. [ 18 ] Despite what the accused states, the documentary evidence demonstrates that he still refuses to participate in some programs, even though he sometimes accepts to do so. [ 19 ] Since he is in presentence custody, Mr. Condo was moved on several occasions. He is incarcerated in Archambault Institution since the end of January 2021. In that facility, he has not been involved in a clinical follow-up with his parole officer.

However he had several meetings with the Elder to work on his aboriginal healing path. Moreover, he has not received a disciplinary report during his stay at Archambault, according to his parole officer’s report, written at the end of June. THE LAW [ 20 ] At the light of that evidence, the Court has to craft a fit sentence. [ 21 ] The fundamental purpose of sentencing is to protect society and to contribute, along with crime preventive initiatives, to respect for the law and the maintenance of a just, peaceful and safe society. To reach that goal, the Court must consider and balance various objectives.

[ 22 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Court must take into account any aggravating or mitigating circumstances relating to the offence or to the offender. It is appropriate to decide at first on the quantum of the sentence for each offence and then see if the total remains globally reasonable. The Court will also have to decide on the credit that should be provided for presentence custody. [ 23 ] Aggravating circumstances are the following: ➢ Mr.

Condo’s extensive criminal records, notably in regard to violent offences. ➢ The fact that, at the time of the events, he is bound by a long-term supervision order. ➢ Concerning the assault, the fact that Mr. Condo is already in custody when he commits the offence. [ 24 ] As for mitigating circumstances: ➢ Mr. Condo pleads guilty to most offences and admits his guilt for others. ➢ In the Gladue report, we see he shows regrets for his conduct in regard to the assault file. ➢ Mr.

Condo is a member of a First nation and struggles with consequences of a difficult childhood. [ 25 ] The Court also considers the following circumstances, although neither aggravating nor mitigating: ➢ The risk of violent reoffending is high. ➢ Despite expressing the desire to change his life, Mr. Condo did not undertake steps in order to solve his personal issues, learn to control his impulsivity and deal with frustration. [ 26 ] Balancing all factors, the Court believes that the accused remains a threat to public’s safety.

The protection of the public is the paramount goal in the present case. [ 27 ] This being said, the Court must also keep in mind what the supreme Court tells us about the long-term offender regime, on paragraph 50 of Ipeelee [2] : “The purpose of an LTSO (long term surveillance order) is two-fold: to protect the public and to rehabilitate offenders and reintegrate them into the community.” [ 28 ] What is the appropriate sentence, considering the nature of the offences, the circumstances of their commission and personal characteristics of the accused? o File 105-01-001291-199: For resisting peace officers in the execution of their duties, when they proceed to arrest Mr.

Condo on January 16, the Court considers that a sentence of one year is appropriate. o File 105-01-001292-197: Two counts of breach of a long term surveillance order, on January 16. Count number 1, for not obeying the law and keeping the peace and count number 3 for not residing where he should under the LTSO, one year concurrent on each count. The crown suggests 2 years on that count.

It is not unreasonable, but it is nevertheless longer than necessary at the light of the priors and caselaw. o File 105-01-001301-196: For escaping lawful custody on the same day: one year. o File 105-01-001375-190: For the assault causing bodily harm to Mr. Samuel, on January 22. That offence is liable to 10 years and is subjectively the most serious. It is a violent attack against an inmate. The accused has numerous related priors. In August of 2014, he receives a sentence of 3 years for assault with a weapon and assault causing bodily harm, and 2 years consecutive for 4 counts of assaults following

section 267 of the Criminal Code . He receives concurrent sentences for several other counts, on the same day. It is in regard to those violent offences that the court then declares the accused a long-term offender and issues a 5 years surveillance order. [ 29 ] In the present case, the crown pleads that a sentence of 6 years is appropriate, while defense suggests 3 years. It is true that the files of 2014 involve more different violent events than the present ones. However, the Court considers appropriate to impose a higher sentence than the last ones, without exceeding what is necessary.

Therefore, the accused will serve 4 years in that file. CREDIT FOR PRESENTENCE CUSTODY [ 30 ] Defense counsel submits that the credit should be of 1.5 days for each day in preventive custody, and 2 for 1 for periods of quarantine stemming from the pandemic situation. [ 31 ] Crown’s opinion is rather to the effect that it should be 1 for 1 except when the accused is in quarantine, where it could be 1.5 day per day. [ 32 ] It is the accused’s onus to establish he should be granted enhanced credit. The Court has to assess both quantitative and qualitative rationales in order to decide on the rate.

About the quantitative rationale, we can read the following, from the supreme Court, in the case of Summers [3] : [23] First, the quantitative rationale for the practice of granting enhanced credit is to ensure that the offender does not spend more time behind bars than if he had been released on bail.

[27] A ratio of 1.5:1 ensures that an offender who is released after serving two thirds of his sentence serves the same amount of time in jail, whether or not he is subject to pre-sentence detention. […] [71] The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely.

Of course, a lower rate may be appropriate when detention was a result of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole. […] [75] […] If it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity. [ 33 ] Mr. Condo served his last sentence until the very end. He failed to respect his long-term surveillance order, a couple of months after it came into force. He committed new offences, including a violent one. The risk of violent recidivism remains high.

He is very unlikely to be a candidate for early release. The quantitative approach does not militate in favour of enhanced credit. [ 34 ] What about the qualitative rationale? [ 35 ] We can read in Summers [4] : [28] […] Remand detention centres tend not to provide the educational, retraining or rehabilitation programs that are generally available when serving a sentence in corrections facilities. Consequently, time in pre-trial detention is often more onerous than post- sentence incarceration.

As Cronk J.A. noted in this case, overcrowding, inmate turnover, labour disputes and other factors also tend to make pre-sentence detention more onerous. [29] The impact of overcrowding, or a lack of educational programs, varies depending on the particular offender’s needs, character and disposition. Assigning enhanced credit on this basis is a qualitative, fact-dependent and discretionary exercise. [ 36 ] The documentary evidence adduced and the accused’s testimony provide significant information about Mr.

Condo’s situation in preventive custody. [ 37 ] The accused testifies about being moved from several detention facilities since January of 2019. Due to the pandemic, he had periods of quarantine on numerous occasions. He states being in isolation for significant periods of time. He says he wanted to do any program to improve himself but none were offered, it was just possible to talk to people and he “didn’t feel like talking to nobody”. However, the documentary evidence shows that he refused several opportunities to meet with counsellors. He nevertheless participated in meetings and programs, since June of 2020.

There were less options because of the covid, but still some. [ 38 ] At the light of the evidence, the Court is not willing to conclude that Mr. Condo was deprived of participating in support programs because he was in presentence custody. Furthermore, the covid’s impact on detainees is not specific to those who are in preventive custody. [ 39 ] Therefore, the qualitative rationale does not support the request for enhanced credit for the most part of time spent in detention prior to the sentence. [ 40 ] However, the periods of quarantine are different. It is notably because Mr.

Condo had pending cases, and was brought to New Carlisle on several occasions that he was moved. Living conditions when in quarantine are harsher than the usual life of a detainee. Mr. Condo is entitled to enhanced credit for all quarantine periods. As far as the rate is concerned, the Court is nevertheless bound by the provisions of

section 719 of the Criminal Code which provides for 1.5 day for each day spent in custody. FOR THESE REASONS, THE COURT: In file 105-01-001375-190: [ 41 ] IMPOSES a sentence of 1460 days (4 years); [ 42 ] TAKES INTO ACCOUNT the 975 days of presentence custody already served; [ 43 ] GRANTS a credit for that presentence custody equivalent to 1016 days, leaving a remainder of 444 days (1 year and 79 days) to serve; [ 44 ] PROHIBITS the accused from communicating directly or indirectly with Jean-François Samuel for the whole custodial period, pursuant to

section 743.21 of the Criminal Code ; [ 45 ] PRONOUNCES a prohibition order following

section 109 of the Criminal Code for a duration a 10 years following the accused’s release; [ 46 ] ORDERS the taking from the accused of samples of bodily substances required for the purpose of DNA analysis, pursuant to

section 487.051 of the Criminal Code ; [ 47 ] FINDS the accused to be a long-term offender and ORDERS that he be subject to long-term supervision for a period of 10 years, pursuant to

section 753.1 (1) of the Criminal Code . In file 105-01-001292-197: [ 48 ] IMPOSES a sentence of one year consecutive.

In files 105-01-001291-199 and 105-01-001301-196: [ 49 ] IMPOSES a sentence a one year, concurrently in each file but to be served consecutively to other sentences. _________________________________ JANICK POIRIER, J.C.Q. Me Isabelle Gavioli for the prosecutor Me Ariane Cayer for the accused Written judgment filed on October 6, 2021