r v. GABRIEL ISERHOFF, 2019 QCCQ 2339

R. c. Iserhoff 2019 QCCQ 2339 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF MISTISSINI Criminal Division No. 614-01-000060-158 DATE: April 10, 2019 ______________________________________________________________________ PRESENT: THE HONOURABLE JACQUES LADOUCEUR J.C.Q ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

GABRIEL ISERHOFF and TROY COON COME Accused and ATTORNEY GENERAL OF QUÉBEC Intervener and CREE NATION GOVERNMENT Impleaded party ______________________________________________________________________ JUDGMENT ON SENTENCING ______________________________________________________________________ November 11, 1975 The Government of Québec and the Grand Council of the Crees enter into the James Bay and Northern Québec Agreement (hereinafter referred to as JBNQA). This agreement aims to provide a framework for hydroelectric development on the James Bay territory and to pay monetary compensation to the Cree.

It is also intended to recognize and circumscribe certain cultural, social, legal and governmental rights of the Cree communities and their members on the territories concerned. Among other things, the JBNQA provides for the establishment of appropriate detention institutions above the 49th parallel. April 23, 1999 The Supreme Court of Canada renders Gladue , [1] which deals with sentencing for Aboriginal accused. In it, the Court notes “ the excessive imprisonment and the estrangement of the aboriginal peoples from the Canadian criminal justice system ˮ .

The Supreme Court characterizes the situation as “ a crisis in the Canadian criminal justice system” and “a sad and pressing social problem ˮ . [2]

March 23, 2012 The Supreme Court renders Ipeelee , [3] in which it notes “ the failure in applying Gladue principles to resolve the problem of the overrepresentation of Aboriginal people in the criminal justice system. ” . [4] The Court reiterates a question raised by Professor Jonathan Rudin regarding the overrepresentation problem: “ If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today? ” [5] June 13, 2018 The Supreme Court renders Ewert , [6] recognizing that, in the Corrections and Conditional Release Act there is “ systemic discrimination faced by Indigenous persons in the Canadian correctional system ” . [7] December 14, 2018 The Supreme Court renders Boudreault , [8] in which it reaffirms that there is a “ serious problem of overrepresentation of Indigenous peoples in prison ” . [9] Indeed, not only has the situation not improved since Ipeelee, it has worsened.

What is more, to this day, 43 years after the parties entered into the JBNQA, no detention institutions have yet been established above the 49 th parallel. table of contents 1. BACKGROUND .. 1 2. ISSUES . 2 3. THE EVIDENCE . 2 3.1. The presentence report and the Gladue report concerning the accused Iserhoff . 2 3.2. Testimonies of Ms. Louise Coonishish and the accused Iserhoff . 4 3.3. The presentence report and the Gladue report concerning the accused Coon Come . 5 3.4. Testimony of Ms. Agnes Cheezo Shicapio . 7 3.5.

Medical reports and victim impact statement . 7 4. some PRINCIPLES FROM THE CRIMINAL CODE AND THE FACTS RELEVANT TO THEIR APPLICATION .. 8 4.1. The general principles of sentencing . 8 4.2. Parity in sentencing (s. 718.2(

b) of the Criminal Code) 8 4.3. Subsection 718.2(

e) of the Criminal Code and the problem of the overrepresentation of Aboriginal people in prison . 9 4.3.1. A few numbers . 9 4.3.2. Subsection 718(

e) of the Cr. C. 10 5. The collateral consequences of the sentence and State conduct . 13 5.1. The collateral consequences . 13 5.2. State conduct . 15 6. The lack of detention centres above the 49th parallel . 15 6.1. Introduction 15

6.2. The legal basis of the steps taken by the Court . 18 6.3. Agreement concerning the administration of justice for the crees (April 1, 2007) 20 6.4. The position of the Cree Nation Government . 21 6.5. The position of the Attorney General of Québec . 22 6.6. The reality of the current situation . 22 6.7. Analysis of the situation . 25 6.8.

Summary of the situation concerning collateral consequences . 27 7. ANALYSIS AND THE APPROPRIATE SENTENCE . 28 7.1. Aggravating factors common to the two accused . 28 7.2. Additional aggravating factor concerning the accused Iserhoff . 29 7.3. Additional aggravating factors concerning the accused Coon Come . 29 7.4. Mitigating factors concerning the accused Iserhoff . 29 7.5. Mitigating factors concerning the accused Coon Come . 30 7.6. The appropriate sentence . 30 7.6.1. Sentence regarding the accused Iserhoff 31 7.6.2.

Sentence regarding the accused Coon Come . 32 ANNEX A - Agreement concerning the administration of justice for the Crees (April 1, 2007) 37 ANNEX B - Translation of letter and comments of Attorney General of Québec (October 26, 2018) 45 ANNEX C - Translation of letter and comments of Attorney General of Québec (November 2, 2018) 50 ANNEX D - Translation of the sworn declaration of Ms.

Suzie Dessureault, interim director of Amos Detention Centre (December 19, 2018) 52 ANNEX E - Comments, arguments and documents of the Cree Nation Government (December 18, 2018 ) 6 3 ANNEX F - Translation of letter and comments of Attorney General of Québec (January 30, 2019) 8 0 ANNEX G - Translation of the sworn declaration of Ms. Suzie Dessureault, interim director of Amos Detention Centre (January 29, 2019) 10 1 ANNEX H - Comments of the Cree Nation Government (January 30, 2019) 10 7 1.

BACKGROUND [ 1 ] Following a trial held on October 26, 2017, both accused were convicted of the following offence committed with two accomplices: On or about August 25, 2014, in Mistissini, district of Abitibi, in committing an assault on Brian Voyageur, did wound, maim, disfigure, committing thereby the indictable offence provided by

section 268 of the Criminal Code . [ 2 ] This crime is punishable by 14 years’ imprisonment. [ 3 ] According to the evidence at trial, the victim was celebrating his birthday in the company of his girlfriend. They were outside when the victim was accosted by an individual who was with others. [ 4 ] The individual wanted to fight, and the victim tried to escape by running.

The four accused ganged up on him and beat the victim for no reason by kicking and punching him. [ 5 ] The testimony of the victim’s girlfriend in cross-examination, in comparison with that given in the preliminary inquiry, suggests that the accused Iserhoff was less involved than the accused Coon Come and the other two persons. [ 6 ] The victim’s injuries were a broken jaw in three places and a fractured wrist that required the insertion of a screw and two metal rods.

[ 7 ] During submissions on sentencing, counsel for the prosecution asked that the accused Iserhoff be given a sentence of two years’ imprisonment plus another two years’ probation.

She suggested the same prison sentence for the accused Coon Come, in addition to a three-year probation period. [ 8 ] Counsel for the accused Iserhoff suggested that there be no imprisonment but instead a suspended sentence plus 3 years’ supervised probation and 240 hours of community work. [ 9 ] Before the Gladue report was completed, counsel for the accused Coon Come suggested 13 months’ imprisonment followed by 3 years’ probation, with the first two years supervised.

He noted that the accused served 2 weeks in preventive detention following his arrest in the summer of 2018 after failing to appear in Court. [ 10 ] Concerning the accused Iserhoff, the writer of the Gladue report stated that, “[s]hould ‘loss of liberty’ be necessary, then the place of confinement should be in close proximity to the offender’s community, where family support can be more visible and available.” Regarding the accused Coon Come, the Gladue report reads that “[i]f the court feels that a prison term is necessary in the offender’s case, then the term should be served in a penal institution that is closest to his community, where continual support can be available in addressing his issues.” [ 11 ] The closest provincial detention institutions are approximately 350 and 500 kilometres from Mistissini, in Roberval and in Amos, both below the 49 th parallel.

And there are no federal penitentiaries whatsoever in the judicial district of Abitibi. [ 12 ] Both accused are members of the Cree First Nation of Mistissini as well as registered beneficiaries [10] within the meaning of the JBNQA. Section 2(2) of the Act approving the Agreement concerning James Bay and Northern Québec (RLRQ, c.

C-67 ) is to the effect that “[t]he beneficiaries of the Agreement are hereby acknowledged to have the rights, privileges and benefits granted to them”. [ 13 ] Paragraph 18.0.26 of the JBNQA provides that “[a]s quickly as possible after the execution of the Agreement and after consultation with Cree local authorities, the appropriate detention institutions will be established within the ‘judicial district of Abitibi’ so that Crees subject to imprisonment, committal or detention, shall not imprisoned, committed or detained in any institution below the 49 th parallel of latitude ”. (Emphasis added) [ 14 ] As mentioned, such detention institutions do not yet exist. 2.

ISSUES [ 15 ] 1 - What is the fit sentence in the circumstances? [ 16 ] 2 - Does the lack of detention institutions above the 49 th parallel in compliance with paragraph 18.0.26 of the JBNQA have any impact on the sentence to be rendered, and if so, what is the impact? 3. THE EVIDENCE 3.1. The presentence report and the Gladue report concerning the accused Iserhoff [ 17 ] A pre-sentence report, dated May 24, 2018, was prepared by Ms. Tracy Fournier. This report is unfavourable to the accused.

The probation officer is of the view that he shows little motivation to make an effort to resolve the problems that led to his criminal conduct. In her view, he has little or ambiguous remorse for his actions, although he is able to display empathy for the victim. [ 18 ] She states that the accused must take active

part in a program to develop a greater sense of responsibility for the crimes he committed and acquire a true sense of remorse, and that if he does not, the risk of reoffending remains high in the short term. [ 19 ] The probation officer states that the accused has a drinking problem, that there was no limit to his drinking, and that “[t]his would bring him to a point where his anger would have no barrier and lead him into trouble such as violence and police interventions.” [11] [ 20 ] The accused has a criminal record of offences committed while under the influence of alcohol, including three assaults committed in 2007, 2010 and 2012, for which he was ordered to perform community work.

The accused also pleaded guilty in 2009 to a charge of using a firearm in a careless manner or without reasonable precautions for the safety of other persons under s. 86(1) Cr. C. A conditional sentence order was made, including 9 months of house arrest and 100 hours of community work and 16 months’ probation. This sentence was upheld by the Court of Appeal, which nonetheless described it as harsh.

In that case, the origin of the accused’s criminal conduct was also related to alcohol consumption, as the accused was extremely intoxicated when the offence was committed. [ 21 ] The probation officer stated that “[t]he offender has many previous convictions that span more than 10 years for various crimes fueled by the same pattern of anger, consumption and violence. His prior sentences have not seemed to produce the desired effects of preventing reoffending.” [12] [ 22 ] The accused’s conduct first became problematic when he was in secondary 4.

He used marijuana daily around the age of 12, and then began using cocaine for about 2 years. His biggest problem is with alcohol, which he started consuming when he was 16 years old. [ 23 ] According to the probation officer, the accused does not believe in traditional programs. This statement is not consistent with

the Gladue report, prepared by Mr. Roderick Petawabano, on May 18, 2018, which states that the accused appreciates traditional activities and Cree culture and that he is grateful to his parents and grandparents for the feeling of belonging he has developed. [ 24 ] According to the Gladue report, the accused employs his talents as a wood sculptor, among other things, “to promote his own culture and the Cree way of life.” [13] It states that the accused understands the gravity of the offence that he committed.

However, a reading of the report confirms that the accused downplays his participation. [ 25 ] The incident took place at a time in the accused’s life when he was experiencing serious problems with alcohol as a result of, among other things, the separation of his parents, who had been married for 30 years. [ 26 ] According to the Gladue report, the accused regrets what happened and feels serious and sincere remorse. [ 27 ] A reading of the report also reveals that his parents attended the residential school in La Tuque in the 1970s. [ 28 ] The Gladue report states that the accused should receive services from the Cree Justice Department, which would enable him to face the consequences of his parents’ separation and any other problems he is facing. [ 29 ] As stated above, if the accused is deprived of his freedom, this report proposes that the place of confinement should be in close proximity to the offender’s community, where family support can be more visible and available. 3.2.

Testimonies of Ms. Louise Coonishish and the accused Iserhoff [ 30 ] Ms. Louise Coonishish, community justice officer, testified. She writes Gladue reports and explains that the differences between the presentence report and the Gladue report may be a result of the language barrier, and that it is in her view difficult for a non- Aboriginal person to accurately perceive the emotions of an Aboriginal person. [ 31 ] Ms. Coonishish knows the Iserhoff family and states that there is a great deal of alcoholism among its members and that this has affected the children. [ 32 ] She confirmed that the accused takes

part in traditional activities. [ 33 ] Regarding imprisonment, she states that in her experience, there are sometimes language barriers with prison staff, meaning that when Aboriginal people return after several months of imprisonment, little progress has been made. Often they relapse into alcohol and drugs. [ 34 ] In her opinion, the best solution is a conditional sentence order and for the accused to take

part in traditional programs established by the justice committee. [ 35 ] The accused also testified. He explained, among other things, a statement in the Gladue report that he did not want the person who wrote the report to meet with other people. The accused denies making any such statement. He claims that on this subject, he said, “I don’t mind”. The author of the report (who had just started to work as a writer) was not present and did not testify. It is therefore difficult for the Court to determine what is true or not.

However, the result is that no one other than the accused was met for the preparation of the Gladue report. [ 36 ] Regarding the events that took place four years ago, he testified that he feels remorse. The Court notes that when this question was asked in English, the accused did not understand the meaning of the word “remorse” and the question therefore had to be translated into Cree. [ 37 ] He currently lives with his spouse who works as a coordinator at the daycare. Two children, 2 and 8 years old, are living with them.

The accused is not the biological father of the eldest, but he takes care of the child. [ 38 ] He has reduced his alcohol intake and he wishes to stop completely. At his last appearance before the Court on December 19, 2018, the accused had drunk alcohol twice since last August. ( On April 10, he deposed a letter confirming that he had complete a 5 weeks therapy for substance abuse on February 14, 2019 ). Mr.

Gordon Petawabano, pastor of the church, acted as his mentor. [ 39 ] At the time of the hearing in July 2018, he was working as labourer at Sunrise Camp, which is a Christian camp for children that teaches children life values from a biblical perspective, according to the letter drafted by Pastor Gordon Petawabano. Mr. Petawabano stated that the accused is a very efficient and committed worker. The accused’s income at the time was $600 a week.

After his job ended on August 3, 2018, he began to work full time as a mechanic at Matoush Tire Shop, starting in the first week of October 2018. [ 40 ] The accused said that he is proud of his Cree culture. [ 41 ] Given the lack of detention centres above the 49th parallel, he hopes that he will be detained at the Amos detention centre if he receives a prison sentence. [ 42 ] Although he has a shy personality, the accused says that he is prepared to share his personal experience of alcohol abuse and the effects of violence with small groups in schools, under the supervision of the justice committee. [ 43 ] Moreover, as a user of Facebook (which is one of the favourite means of communication on the Eeyou Istchee James Bay territory), when he sees that young people are in distress, he contacts them in the hopes of helping them and sharing his own experience.

He has done this on two occasions and considers it to be part of his healing process.

3.3. The presentence report and the Gladue report concerning the accused Coon Come [ 44 ] A presentence report dated May 31, 2018, was prepared by probation officer Marie-France Beaudoin. The report states that the accused had a very difficult childhood. He grew up in an environment of constant paternal violence towards the maternal figure. His parents suffered from alcoholism and the accused lived in different foster homes apart from his siblings. [ 45 ] [...] [ 46 ] He dropped out of school at the age of 18 and he quickly entered the job market, mainly in the construction field.

At the time of submissions on sentencing, he was not working. [ 47 ] He was introduced to alcohol with his older brothers at the age of 18, which coincides with his legal problems. Around the age of 20, he added cocaine, ecstasy and speed. He stopped using drugs for about ten years and started therapy for his alcohol problem, which he was not able to complete. [ 48 ] His criminal record goes back to 2000. The offences are characterized by violence towards various people including his girlfriend, children and members of the community.

He was sentenced to prison for violent crimes for the first time in December 2007, receiving a sentence of 6 months’ imprisonment. Another prison sentence for a total of 10 months was imposed in April 2011, the whole followed by 24 months of probation.

Recently, in August 2017, he pleaded guilty to assault and assault causing bodily harm committed in 2017 and 2015, for which he was condemned to make a donation of $800 in the first case and to perform 200 hours of community work in the other, followed by 24 months of probation in both cases. [ 49 ] According to the probation officer, the accused admits his responsibility but tends to minimize it. He connects his acting out to excessive alcohol consumption.

According to the probation officer, he expresses regrets and guilt towards the victim. [ 50 ] The report states that the accused is a man with significant emotional deficiencies. He has evolved in an environment marked by violence and alcohol abuse that has marked him strongly. He decreased his alcohol consumption and steps were taken so that he could go into therapy. He completed the Biidamin Program, which is related to grief and abandonment and was accepted for therapy in Oka beginning on February 25, 2019 but decided not attending the program at that time.

Then, he was accepted for the same therapy beginning on April 15, 2019. [ 51 ] The accused is open to participating in all existing programs in the community that can help him maintain his sobriety, but he remains skeptical about the benefits that anger management treatment could have on him, considering that he does not have that problem when he is sober. [ 52 ] According to the officer, six weeks of therapy is insufficient and the accused needs to be involved in a treatment of a more significant duration.

The probation officer concluded by stating that the success of the offender’s social reintegration will largely depend on his mobilization and his involvement in such a process, because otherwise the risk that he will reoffend and commit crimes of the same nature seems imminent. [ 53 ] In the Gladue report, we learn that “the mother attended La Tuque Indian Residential School for a period of seven (7) years.” [ 54 ] “[H]e learned much from his grandparents in the practice of Cree cultural skills and customs [and] still maintains these traditional practices and skills whenever he has the opportunity.” [ 55 ] He has two sons, aged 17 and 19, who are living with their mother.

He has a good and positive relationship with them. [ 56 ] The problem in his life has been alcohol abuse, for which he definitely needs treatment.

The writer stated that the accused has admitted to having an anger problem, and this is most likely another negative factor that needs to be seriously considered and addressed if the accused wishes to have a more positive life. [ 57 ] It appears that the death of his sister in a tragic automobile accident approximately eight years ago still has a profound effect on the accused because he was very close to her. [ 58 ] According to the writer of the report, the accused has good intentions, but now is the time for him to take action.

He understands the seriousness and severity of the convictions against him and “[h]e does not feel good at all about what he has done, and the pain he has caused to other.” He is aware that he is at risk of going to prison and he has in fact told his mother. 3.4. Testimony of Ms. Agnes Cheezo Shicapio [ 59 ] Ms. Cheezo Shicapio is a community worker for social services. She met with the accused over the last year. At the time, the accused took steps to enter therapy, but his request expired and the employee taking care of his file did not follow up.

She stated that she is working with him on his anger issues and his past, and that the fact that the discussions take place in the Cree language strengthens the bond of trust and increases the effectiveness of their meetings. [ 60 ] At the time of submissions on sentencing in December 2018, steps were taken for him to take

part in therapy for his anger issues and substance abuse issues. She believes that the accused is sincere in the steps he is taking and that his remorse is real. 3.5. Medical reports and victim impact statement

[ 61 ] The medical reports reveal the seriousness of the injuries suffered by the victim. After going to the Hospital Centre of Chisasibi, where he was met by a doctor, the victim was referred to the Hospital Centre of Chibougamau. Subsequently, the victim had to go to the Hospital Centre of Amos. He underwent surgery under general anesthesia to repair his left wrist fracture by installing a screw and wires. During the same operation, the victim also had surgery to repair his jaw, which was broken in three places.

Fastening material was also implanted to repair the fractures. [ 62 ] In his victim impact statement dated August 9, 2017, the victim states that the attack left him with intense physical pain that made him feel sadness and fear. The victim also stated that he felt anger and rage because he was “tired of the physical pain he felt and he just thought that it wasn’t fair.” The victim also had frequent headaches, needed to take medication, and had trouble sleeping.

The left wrist fracture made it more difficult to do tasks at home and, according to the surgeon, his injuries will probably cause him arthritis in the future. [ 63 ] The attack he experienced caused him to miss the opportunity to take

part in a job-training program for a company in Chisasibi. [ 64 ] The victim fears going out when it is dark. He has lost his trust in others. He finds it hard to explain why such a thing happened when he had done nothing reprehensible, and he says that no one deserves to be treated this way. [ 65 ] He trusts the justice system and adds that he is not acting in vengeance. He also hopes that victims of this type of crimes know that justice can be done. He concludes by saying, “I want justice not because they deserve it but because I am the one who needs it more.” [14] 4.

SOME PRINCIPLES FROM THE CRIMINAL CODE AND THE FACTS RELEVANT TO THEIR APPLICATION 4.1.

The general principles of sentencing [ 66 ] The sentencing objectives are the following: to denounce unlawful conduct and the harm done, to deter, to separate offenders from society where necessary, to rehabilitate offenders, to provide reparations for harm done to victims or to the community, to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 67 ] The Court notes that the objectives of reparations for harm done to victims or to the community and the promotion of a sense of responsibility in offenders through the acknowledgment of the harm done to victims or to the community are the two objectives that are most closely compatible with restorative justice, the approach favoured by Aboriginal peoples.

These two objectives are in fact directly related to the principle of sentencing set out in s. 718.2(

e) Cr. C. , whereby all available sanctions other than imprisonment should be considered, which will be discussed below. [ 68 ] Moreover, the fundamental principle is that of proportionality of sentence, which means “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. [15] 4.2. Parity in sentencing (s. 718.2(

b) of the Criminal Code) [ 69 ] In Poirier v. R ., [16] the Court of Appeal of Quebec noted that, under s. 718.2(

b) Cr.

C ., courts must consider that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [ 70 ] According to the Court of Appeal, [ translation ] “this is all the more true when the case involves co-accused who are guilty of the same crimes or of similar crimes.” [ 71 ] The Court of Appeal also points out that this principle does not prohibit disparity if it is justified in the circumstances, due to the existence of the proportionality rule, and that the whole is subordinate to the fundamental principle of proportionality. [17] The Court of Appeal quoted the following passage: [ translation ] “sentence individualization remains, and it requires variations that depend on the offender’s individual characteristics and his moral culpability because of both his participation in the crime and the degree of this participation”.

It then refers to the author Ruby and to the fact that the principle of parity “does not require equal sentences, but only that any differences between sentences for similar offences in similar circumstances be rationally explicable.” [18] [ 72 ] Further, in cases where the offence is the same and the participation of the co-accused is similar, the factors relating to an accused’s individual profile and his or her conduct after the crime (collaboration, remorse, insight, guilty plea) will have an effect on how the sentences are modulated.

This is not a mathematical operation, however, and judges have broad discretion. [ 73 ] In this case, the co-accused Curtis Iserhoff and Joel Iserhoff pleaded guilty to a reduced charge of simple assault by way of

summary conviction, even if the incriminating facts were the same as in this case . This open-mindedness on the part of the prosecution was intended to allow the parties to agree on a sentence permitting a conditional sentence and to avoid a trial. [ 74 ] The Court approved a joint submission whereby the accused Joel Iserhoff, age 32, was ordered to serve a conditional sentence for a period of 18 months, including 9 months of house arrest followed by a curfew for the remainder of the sentence, in addition to performing 100 hours of community service.

The conditional sentence order was followed by supervised probation for 12 months. [ 75 ] As for Curtis Iserhoff, age 27, the Court approved a joint submission of a conditional sentence order for a period of 20 months (including two months for another file), with the accused having to remain in his residence at all times for the first 10 months and under curfew for the remainder of the conditional sentence. In addition to meeting with the supervisor, the accused had to meet with the Justice

Committee and follow their recommendations. He also had to continue meeting with a psychologist and attend a traditional Cree fishing project.

No probation order followed the conditional sentence order. [ 76 ] No Gladue reports were ordered for those accused. [ 77 ] While the Court acknowledges the significant advantages of these joint submissions , [19] it adds, although without making an absolute statement in this respect, that these agreements reveal that the prosecution considered that, in the cases of the accomplices who pleaded guilty to lesser offences based on the same facts , conditional sentences (whether or not paired with a probation order) were sufficient to achieve the objectives of denunciation and general deterrence.

In the eyes of the public, it is clear that the co-accused took

part in the same “crime”. 4.3. Subsection 718.2(

e) of the Criminal Code and the problem of the overrepresentation of Aboriginal people in prison 4.3.1. A few numbers [ 78 ] In R. v. Mazza , [20] the Honourable Marie-Josée Ménard of the Court of Québec found that, according to the criteria for judicial notice established by the Supreme Court in R. v. Find , [21] a judge is authorized to take judicial notice of statistics from Statistics Canada. The Court shares this point of view and adds that the Court may refer to statistics originating from reliable governmental sources.

The numbers that follow are therefore from Statistics Canada , [22] from the information contained in the sworn statement of Ms.

Suzie Dessureault, interim director of the Amos Detention Centre (Exhibit SJ-10), and from the judgment in Ipeelee : • 1988: Aboriginal people represented 10 % of inmates in federal penitentiaries and constituted 2% of the population of Canada; [23] • 1999: 12% of inmates in federal penitentiaries were Aboriginal; • 1996 to 2001: The incarceration of Aboriginal people increased by 3% , while the incarceration of non-Aboriginal people decreased by 22% ; [24] • 2005: Aboriginal people represent 17% of admissions to federal penitentiaries; [25] • 2001 to 2006 : The incarceration of Aboriginal people increased by 4%, whereas there was an overall 9% decrease in incarcerations; [26] • 2006-2007: Aboriginal people represented 20% of admissions to custody in federal correctional services; [27] • 2006-2007: Aboriginal people represent 21% of admissions to custody in provincial correctional services; [28] • 2016-2017:Aboriginal people represent 27% of admissions to custody in federal correctional services and 4.1% of the adult population of Canada; [29] • 2016-2017: Aboriginal people represent 30% of admissions to custody in provincial correctional services; [30] • 2006-2007 to 2016-2017: The proportion of Aboriginal inmates in provincial detention facilities increased by 9 percentage points from 21% to 30% , and the population of Aboriginal inmates in federal detention facilities increased by 7 percentage points , from 20% to 27% . 4.3.2.

Subsection 718(

e) of the Cr. C. [ 79 ] Subsection 718.2(

e) Cr. C. requires 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, in particular because of the over-representation of Aboriginal individuals in Canadian prisons [31] . [ 80 ] Recently, in R . c. Diabo [32] and Denis-Damée c. R. [33] , the Court of Appeal reiterated the principles in Gladue and Ipeelee .

It noted, among other things, that a causal link between the background and systemic factors and the offence is not required and that the principles in Gladue apply even to serious offences.

With respect to background and systemic factors, the judge must, “in every case” take judicial notice and consider the “history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”. [34] [ 81 ] The Court of Appeal also notes the existence of different Aboriginal conceptions of appropriate sanctions, noting that [ translation ] “ traditional Aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice and that this tradition is extremely important ”. [35] (Emphasis added) [ 82 ] Although incarceration is not a fitting solution for Aboriginal offenders or their community, especially in cases of minor or non- violent offences, there are nevertheless some serious offences and some offenders for which and for whom isolation, denunciation and deterrence are fundamentally relevant. [36] Also, [ translation ] “When imprisonment is required, Aboriginal circumstances must be considered when determining the term of imprisonment , even where an offence is considered serious.” [37] (Emphasis added) [ 83 ] In Gladue , the Supreme Court stated that “the aboriginal offenders are, as a result of these unique systemic and background factors , more adversely affected by incarceration and less likely to be ‘rehabilitated’ thereby, because the internment milieu is often

culturally inappropriate and regrettably discrimination toward them is so often rampant in penal institutions”.[38] (Emphasis added) [84] In this situation, therefore, s. 718.2(

e) Cr. C. requires that the Court should consider all available sanctions, other thanimprisonment, that are reasonable in the circumstances.

Gladue adds, among other things, that “[s]entencing judges are among thosedecision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.”[39] [85] In Ipeelee, the Court notes that trial judges benefit from broad discretion and that they “must have sufficient manoeuvrability totailor sentences to the circumstances of the particular offence and the particular offender.”[40] It adds that “sentencing judges arerequired to pay particular attention to the circumstances of Aboriginal offenders” and that this is achieved “by directing judges to craftsentences in a manner that is meaningful to Aboriginal people.”[41] [86] In addition, as stated in Ipeelee, the Court must avoid rendering a sentence that could be seen as providing a race-baseddiscount .[42] Furthermore, in Diabo,[43] the Court of Appeal, referring to R. v.

Chanalquay ,[44] a judgment of the Court of Appeal forSaskatchewan, states that the sentencing judge should not proceed in two stages by first rendering the sentence he or she considers to beappropriate, and then reducing it to take into consideration the Gladue criteria. Doing so “would suggest that a judge is right to sentencethe offence and not the offender, which is diametrically opposed to s. 718 et seq. Cr.

C.” [87] As the authors Hugues Parent and Julie Desrosiers write: [translation] This attention, which arises due to the overrepresentation of Aboriginal people in Canadian prisons, is expressed by establishing adifferent and innovative approach to sentencing, and more precisely, to the consideration of the unique systemic or background factorsthat might be at the origin of the criminal activity of certain Aboriginal people (degree of culpability of the offender) and the types ofsanctions and sentencing procedures that are consistent with an offender’s Aboriginal background (effectiveness of the sentence). … While the consideration of the systemic and background factors that might be at the origin of the criminal activity of some Aboriginalpeople is related to an offender’s “degree of culpability”, the choice of penalties or sentencing procedures that are consistent with theoffender’s Aboriginal background have more to do with the “effectiveness of the sentence” being considered.

Although they do not sharea single, homogenous notion of the sentencing process, most Aboriginal communities have a different concept of sentencing that “takesinto account principles of restorative justice” and the needs of their communities.[45] (Emphasis added) [88] In short, “[f]irst, systemic and background factors may bear on the culpability of the offender, to the extent that they shed lighton his or her level of moral blameworthiness. … The second set of circumstances – the types of sanctions which may be appropriate –bears not on the degree of culpability of the offender, but on the effectiveness of the sentence itself .”[46] [89] The Court notes that, in this case, a conditional sentence of imprisonment is not available.

This type of sentence is excluded bys. 742.1 Cr. C. because the offenders have been convicted of an offence prosecuted by way of indictment for which the maximum termof imprisonment is more than 10 years and that resulted in bodily harm. [90] Therefore, an observation is necessary. The Court’s sentencing judgment is circumscribed by the constraints imposed byParliament. In this case, however, the toolbox is not well stocked.

Judges may be asked to adapt sanctions to the situation of Aboriginalpeople but they must have the tools to do so. [47] [91] In both Gladue and Ipeelee, the Supreme Court encourages judges to be innovative and creative. In the view of the Court, thisstatement applies to the determination of the sentence itself and to sentencing procedures, while remaining within legal parameters. 5. The collateral consequences of the sentence and Stateconduct 5.1. The collateral consequences [92] Although this is not a mitigating factor, the Supreme Court in R. v. Pham[48] and the Court of Appeal in Costa v.

R.[49] statethat the Court must also consider the significant collateral consequences of incarceration on an accused and the accused’s family.[50] [93] More recently, in Suter v. R., [51] the Supreme Court stated the following: [46] … Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateralconsequences.

Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by takinginto account all the relevant circumstances related to the offence and the offender. [47] There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from theconviction itself: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11; R. v. Bunn (1997), (MB CA), 118Man. R. (2d) 300 (C.A.), at para. 23; R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183 (“Bunn (SCC)”), at para. 23; Tran v.

Canada (PublicSafety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289. In his text The Law of Sentencing (2001), Professor AllanManson notes that they may also flow from the very act of committing the offence:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While notpunishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. I agree with Professor Manson’s observation, much as it constitutes an incremental extension of this Court’s characterization of collateralconsequences in Pham.

In my view, a collateral consequence includes any consequence arising from the commission of an offence, theconviction for an offence, or the sentence imposed for an offence, that impacts the offender. [48] Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2(

a) of the Criminal Code —as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the “personalcircumstances of the offender” (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of thesentencing principles of individualization and parity: ibid.; s. 718.2(

b) of the Criminal Code.2 The question is not whether collateralconsequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of thoseconsequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering agiven sentence unfit.3 [49] Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commissionof the offence.

In fact, “[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as amitigating factor is greatly diminished” (Manson, at p. 137).

Nevertheless, in order to be considered at sentencing, collateralconsequences must relate to the offence and the circumstances of the offender. … [56] I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case — collateralconsequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence orthe moral blameworthiness of the offender.

There is, however, no requirement that collateral consequences emanate from statemisconduct in order to be considered as a factor at sentencing: see Bunn (SCC), at para. 23; R. v. McDonald, 2016 NUCA 4, at paras. 41-44 ; R. v. Stanberry, 2015 QCCQ 1097, 18 C.R. (7th) 87, at paras. 18-20; R. v. Bell, 2013 MBQB 80, 290 Man. R. (2d) 79, atpara. 87; Folino, at para. 29; R. v. Heatherington, 2005 ABCA 393, 380 A.R. 395, at paras. 5-6; R. v. Owens (2002), (ON CA), 161 O.A.C. 229, at paras. 10-11; R. v. Abouabdellah (1996), (QC CA), 109 C.C.C. (3d) 477 (C.A. Qc), atp. 480; R. v.

Carroll (1995), (BC CA), 56 B.C.A.C. 138, at paras. 11-12. (Emphasis added) [94] Recently in Ibrahim c. R., [52] the Court of Appeal of Quebec stated that [translation] “judges must evaluate whether it ispossible, as a result of collateral consequences, that an offender is no longer like the others, rendering a given sentence unfit”. [53] Later,in R. c.

Lefrançois ,[54] it wrote that [translation] “the collateral consequences of a sentence therefore include all its effects on theoffender in question” (Emphasis added). [55] Obviously, since a prison sentence by its very nature has significant consequences on anoffender, the impact on the offender must be greater because of his or her circumstances for it to be considered. [56] 5.2. State conduct [95] The sentencing regime in the Criminal Code “provides some scope for sentencing judges to consider not only the actions of theoffender, but also those of state actors” (Emphasis added).

Where the state misconduct relates to the offender, the sentencing judge maytake the relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) of the Charter; since misconduct thatdoes not amount to a Charter breach but impacts the offender may also be a relevant factor in crafting a fit sentence.[57] [96] Which now brings us to the issue of the absence of detention institutions above the 49th parallel. 6. The lack of detention centres above the 49th parallel 6.1.

Introduction [58] [97] It is worth noting that, in the Gladue report for the accused Iserhoff, the author states that if a sentence depriving the accusedof liberty is imposed, it would be desirable that it be served in a facility located near the community to make it easier for him to havecontact with this family. The Gladue report for the accused Coon Come contains similar remarks. [98] At the sentencing hearing for the accused Iserhoff, the Court informed counsel of certain provisions of the JBNQA, moreparticularly those in

section 18, which contains a series of provisions relating to the responsibilities of both levels of government in theadministration of justice in Cree communities. 18.0.26 As quickly as possible after the execution of the Agreement and after consultation with Cree local authorities, theappropriate detention institutions will be established within the “judicial district of Abitibi” so that Crees subject to imprisonment, committal or detention, shall not imprisoned, committed or detained in any institution below the 49th parallel oflatitude, except where they are detained pending trial or pending their sentence or judgment before a court having jurisdiction below the 49th parallel of latitude.

However, Crees who, after their sentence, are imprisoned, committed or detained in any placewhatsoever, have the right, if they so desire, to be imprisoned, committed or detained in small institutions situated within theterritory of James Bay, if such institutions are appropriate taking into consideration all circumstances. (Bold added)

18.0.29 In accordance with a federal-provincial agreement with respect to costs of the programs of services referred to in this Section, it shall be provided:

a) that Crees who are sentenced by any court to imprisonment for life or for a number of years not less than two (2) or for imprisonment to less than two (2) years may be detained in a place of detention situated and established in the James Bay Territory, including Great Whale River after consultation with the Cree local authority of the “judicial district of Abitibi”; [ 99 ] Because no detention centres have been built above the 49 th parallel to this day, the Court invited the parties to share their comments and/or submit evidence, if appropriate, on the impact of these JBNQA provisions and the lack of detention centres above the 49 th parallel on the sentence to be imposed. [ 100 ] On September 10, 2018, the criminal and penal prosecutor sent a letter to the Court stating that [ translation ] “it is not within the mandate of the Crown prosecutor to provide an opinion on the legal impact of the non-existence of a detention facility north of the 49 th parallel, despite s. 18.0.26 of the James Bay Agreement”.

The prosecutor stated that this issue fell instead under the jurisdiction of the Attorney General of Québec and made a few comments regarding geography. The Court, however, is of the view that limiting the discussion to geographical aspects only ignores all the sociological, anthropological and cultural aspects that are doubtlessly the basis for the existence of paragraph 18.0.26.

What is more, this provision must be read in combination with paragraph 18.0.27 of the JBNQA, which provides: 18.0.27 All institutions, penitentiaries and places of detention in the “judicial district of Abitibi” for the Crees and non-Native persons shall be staffed totally or in part by Crees taking into account the available Cree manpower suitable.

For such purposes, programs shall be established to train Crees as staff, correctional or detention officers and as officers required for probation, parole, rehabilitation and aftercare services. [ 101 ] In addition, paragraph 18.0.26 of the JBNQA sets out the right of all Crees, after they have been sentenced, to be incarcerated “in small institutions situated within the territory of James Bay, if such institutions are appropriate taking into consideration all circumstances”. Such “small institutions” also do not yet exist. [ 102 ] Counsel for the accused Iserhoff submits that [ translation ] “Mr.

Iserhoff is disadvantaged by the geographical situation compared with a non-Aboriginal accused”, given the heavier burden he will have to bear if he receives an intermittent sentence, specifically in terms of obtaining a means of transportation, the resulting costs, and the time required to travel to the detention centres below the 49 th parallel. He argues that his equality rights under s. 15 of the Canadian Charter of Rights and Freedoms are violated.

No prior notice of a constitutional challenge was filed, and the Court therefore does not intend to rule on this argument. [59] [ 103 ] In addition, the Court notes that, on February 7, 2002, the Agreement Respecting a New Relationship between the Cree Nation and the Government of Québec [60] (known as La Paix des Braves ) was signed.

The only allusion to matters concerning the administration of justice in this agreement is the following: 2.8 The provisions of the James Bay and Northern Québec Agreement and of the existing agreements and existing financial arrangements will continue to apply in the absence of indications to the contrary in this Agreement . It is noted in particular that Québec will continue to fund for the Crees ,pursuant to the provisions of the James Bay and Northern Québec Agreement, its share of the services and fixed assets stipulated in the James Bay and Northern Québec Agreement , including but not limited to: …

d) public security and administration of justice ; (Emphasis and bold added) [ 104 ] Then, in 2007, the Government of Québec and the Grand Council of Crees and the Cree Regional Authority entered into the Agreement concerning the Administration of Justice for the Crees (hereinafter referred to as the 2007 Agreement). [61] This agreement makes it possible to resolve issues relating to

section 18 of the JBNQA and to bring court actions brought by the Crees on such matters to an end. [ 105 ] After becoming familiar with this Agreement, the Court sent a copy to counsel so that they might include it in their commentary, if appropriate. [ 106 ] After these steps, the Attorney General of Québec intervened. 6.2. The legal basis of the steps taken by the Court [ 107 ] Subsections 723(3) to (5) Cr. C. provide the following :

(3) Production of evidence — The court may, on its own motion, after hearing arguments from the prosecutor and offender, require the production of evidence that would assist it in determining the appropriate sentence.

(4) Compel appearance — Where it is necessary in the interests of justice, the court may, after consulting the parties, compel the appearance of any person who is a compellable witness to assist the court in determining the appropriate sentence.

(5) Hearsay evidence — Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice, compel a person to testify where the person (

a) has personal knowledge of the matter;

(

b) is reasonably available; and (

c) is a compellable witness. [108] In her written submissions dated January 30, 2019, the Attorney General of Québec considered the correctness of the steps takenby the Court and referred to paragraphs 67 to 70 of R. v. Hamilton ,[62] a judgment of the Court of Appeal for Ontario. [109] The Court reproduces paragraph 66 of Hamilton: No one suggests that a trial judge is obliged to remain passive during the sentencing phase of the criminal process. Trial judges can, andsometimes must, assume an active role in the course of a sentencing proceeding.

Section 723(3) of the Criminal Code provides that acourt may, on its own motion, require the production of evidence that "would assist in the determination of the appropriate sentence".Quite apart from that statutory power, the case law has long recognized that where a trial judge is required by law to consider a factor indetermining the appropriate sentence and counsel has not provided [page20 ]the information necessary to properly consider that factor,the court can, on its own initiative, make the necessary inquiries and obtain the necessary evidence: R. v.

Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207, 141 C.C.C. (3d) 368, at pp. 233-35 S.C.R., pp. 390-91 C.C.C.; R. v.Gladue, (SCC), [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385, at paras. 84-85. (Emphasis added) [110] Also, Gladue[63] contains the following passage : [93] ...

Section 718.2(

e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently,because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: … (

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his orher particular aboriginal heritage or connection. (Emphasis added) [111] When the Court expressed its concerns regarding the recommendation in the accused Iserhoff’s Gladue report and the existenceof paragraph 18.0.26 of the JBNQA, counsel for the accused Iserhoff stated that he shared the Court’s concerns. [112] As stated above, the Court asked the parties to submit their comments in writing and invited them to also file evidence if theywished. [113] Following the intervention of the Attorney General of Québec, the Court suggested that a notice could be sent to the Cree NationGovernment ,[64] asking them to submit their comments, since they are parties to the JBNQA.

The Cree Nation Government agreed andsubmitted its written comments, after having read those of the Attorney General of Québec. [114] Additional information was also requested from the Attorney General of Québec regarding, inter alia, the situation at the AmosDetention Centre. Consequently, a first affidavit from the interim director of the detention centre, Ms. Suzie Dessureault, was filed ,[65]followed by a second one a little later on. [66] [115] The Court also allowed each party to [translation] “respond” to the other party’s written arguments.

In addition, a telephonemanagement conference was held to ensure that the manner of proceeding was suitable.

During the management conference, the Courtverified whether the parties had any additional points or questions to raise, which they did not. [116] At every point in the process, the Court asked the parties whether they had any objections in this respect, and the parties did notprotest in any of these instances. [117] The Court notes that, generally speaking, the aim of the process is to determine whether the lack of a detention centre near thecommunity has an impact on the sentence to be ordered in light of the principles set out in Suter [67] and Nasogaluak ,[68] bearing inmind, if appropriate, the relevant provisions of the JBNQA and subsequent agreements. [118] At the outset, the Court notes that the principles in Nasogaluak are not applicable here because no state misconduct has beenestablished.

That said, the position of the Cree Nation Government and the Attorney General of Québec now remains to be verified, andit must also be determined whether there is any impact on the sentence to be rendered in light of Suter. 6.3. The 2007 Agreement [119] The Cree Nation Government points out that, for a long time, the implementation of

section 18 of James Bay Agreement and thepromise of an integrated justice system remained nothing more than a promise. Relations between the Crees and Québec were difficult inthe ‘80s and ‘90s regarding the implementation of James Bay Agreement. Legal proceedings (Coon Come #1 and Coon Come #2) [69]had to be undertaken and then the Paix des Braves was concluded in 2002. [120] It was five (5) years later, in 2007, that the parties entered into the Agreement concerning the Administration of Justice. [121] Both the Cree Nation Government and the Attorney General of Québec agree that the 2007 Agreement established a new

relationship between the Cree Nation Government and Québec regarding justice, so that they now work collaboratively as equal partners. [ 122 ] According to counsel for the Cree Nation Government, “the Cree Nation would now determine how to implement many areas of

section 18 with funds from Québecˮ. The 2007 Agreement did not change or amend any of the provisions of

section 18 , it only changed the way that those provisions would now be implemented.

Following the signature of the 2007 Agreement, the Cree Nation Government immediately set to work and established a Department of Justice and Correctional System. [ 123 ] In the written submissions dated January 30, 2019, the Attorney General of Québec, who had initially referred to the “suspension” of paragraph 18.0.26, corrected the course by stating that the situation was better characterized, as the Cree Nation Government proposes, as the initial implementation of this undertaking and part of an entirely new way of conceiving of the relationship between the Crees and Québec in matters of justice. [ 124 ] The 2007 Agreement provides, inter alia , the following: 5.

The funding provided pursuant to

section 2 hereof shall be administered and allocated by the CRA. This funding shall be a flexible tool under the control of the CRA in order to facilitate and improve the administration of Justice for Crees and in the Cree communities. This funding will be used, among others, for the initiatives related to the justice system and the correctional system, including the following: …

d) development of specific programs for incarcerated Cree charged with an offence and Cree detained after having been found guilty of an offence, and for their regrouping in the detention centre in Amos or in such other suitable facilities as may be agreed upon from time to time by Québec and the CRA; … 10. In consideration of the present Agreement, the Coon Come #1 proceedings and Coon Come #2 proceedings shall be discontinued , without costs, by the Cree parties thereto as against Québec in respect to all allegations and conclusions relating to

Section 18 of the JBNQA. Québec accepts such discontinuance without costs in relation to the allegations and conclusions relating to

Section 18 of the JBNQA. The Parties undertake that within the ninety (90) days that follows the coming into force of this Agreement, they will cause to be filed in the records of the Courts the documents necessary to give effect to the discontinuances contemplated by this section. (…) 19. This Agreement shall come into force upon its signature by the Parties and shall be deemed to have effect as of April 1 st , 2007. It shall remain in force until March 31 st , 2027. (Emphasis added) 6.4. The position of the Cree Nation Government [ 125 ] According to the Cree Nation Government,

section 18 of the JBNQA was adopted to provide for a justice system that is truly integrated with Cree realities and that is based on the following themes: • Connection to the community on the land; • Cree involvement; • Cree values and Cree way of life; • Partnership collaboration. [ 126 ] In its view, “the notion of proximity in paragraphs 18.0.26 and 18.0.29 must be construed as an essential element maintaining the bond or connection between Cree detainees, their communities and the land.” [ 127 ] It adds that appropriate detention institutions shall be established in Eeyou Istchee, and that as provisional measures , Cree offenders who are committed to provincial detention shall have the right to be detained at the ADC (Amos Detention Centre) and an appropriate number of places shall be set aside to insure that Crees who wish to exercise such a right can do so. [ 128 ] In addition to the construction of detention institutions north of the 49 th parallel , the Cree Nation Government notes that paragraph18.0.26 of the JBNQA provides that Crees have the right if they so desire to be imprisoned in small institutions within the territory of James Bay, if such institutions are appropriate taking into account all circumstances. [ 129 ] According to the Cree Nation Government, the right of Cree offenders to serve their entire sentence at the ADC shall take precedence over all the other factors and considerations that are normally taken into account by the director of the establishment to decide where a detainee will stay. [ 130 ] Because this is a treaty right, it takes precedence over all incompatible statutes, including the Act respecting the Québec correctional system , [70] which must be interpreted to give effect to the rights set out in the JBNQA. 6.5.

The position of the Attorney General of Québec

[ 131 ] The Attorney General of Québec states that grouping Cree beneficiaries whose circumstances require imprisonment at the ADC as an initial measure appears to be a scenario the treaty partners desire.

The Attorney General of Québec states that grouping the inmates in Amos should be seen as an [ translation ] “initial compromise” that will enable the realization of the purpose of paragraph 18.0.26 of the JBNQA. [ 132 ] However , according to the Attorney General of Québec, this [ translation ] “initial compromise” is subject to the constraints on the director of the establishment, who must consider all the factors when determining where the inmate will serve the sentence.

In support of its argument, the Attorney General of Québec relies on the final words of paragraph 18.0.26, which states “taking into consideration all circumstances”. [ 133 ] The Court notes that the words to which the Attorney General of Québec refers do not concern detention centres established above the 49th parallel but rather "small institutions", which also do not exist yet. 6.6. The reality of the current situation [ 134 ] The Court notes that the JBNQA was adopted in 1975 and the 2007 Agreement was entered into nearly twelve (12) years ago.

The least that can be said is that, despite this passage of time, the situation remains ambiguous. [ 135 ] In fact, the implementation of this provisional measure or initial compromise is so imprecise that the Cree Nation Government suggests that an agreement or protocol be put in place to apply it. [ 136 ] According to the Cree Nation Government, this agreement or protocol should provide that the factors and considerations that the director of the ADC should take into account must be applied in a manner consistent with the right of Cree offenders to serve their sentence at the ADC. [ 137 ] According to the Cree Nation Government, Québec’s commitment in 2007 to group Cree detainees at the Amos Centre would have required planning, including in terms of the spaces available, and facilitation to accommodate special needs and programs. [ 138 ] As we shall see later on, almost none of that seems to exist. [ 139 ] The Cree Nation Government states that “requests have been made for a

section of the new rebuilt Amos Centre to be set aside and reserved for Cree offenders and detainees. Requests have also been made for classrooms and Cree and Québec representatives have had discussions about putting in place an agreement or protocol in this regard, but this has yet to be done ”. [ 140 ] According to the second affidavit of Ms. Suzie Dessureault, interim director of the Amos detention centre, there are no spots reserved for Cree inmates at the ADC, nor is there any specific

section reserved for Crees or any specific program to group them together. She confirms that, while the right invoked by the Cree Nation Government exists, it cannot always be respected because of the factors that must be considered, although the ADC aims and will continue to aim at ensuring the stability of the Cree inmate population that is admitted. [ 141 ] Regarding the grouping of the Cree clientele, she confirms that no agreement has been signed with the Ministère de la Sécurité publique but that they hope to do so. Ms.

Dessureault adds that if the accused Iserhoff is sentenced to less than two (2) years’ imprisonment, he will serve his sentence in Amos and will be taken into custody in accordance with normal considerations, that is, an assessment of the need for safe supervision, the programs available, the places available, etc. [ 142 ] She also refers to s. 34 of the Act respecting the Québec correctional system , which provides for the power of the facility in Amos to transfer an inmate to another facility. [ 143 ] The Court notes that nothing in the Act respecting the Québec correctional system or the regulations circumscribes the director’s power. [ 144 ] She confirms that there are specific programs for the rehabilitation of the Cree clientele in Amos. [ 145 ] If a Cree inmate is transferred, it will probably be to the Roberval facility or the Saint-Jérôme facility, where workers in what is generally referred to as the “Cree Programˮ go twice a month to serve the Cree clientele. [ 146 ] Ms.

Dessureault also confirms that there is no designated area for Aboriginal inmates in other detention centres except for the two areas reserved for Inuit inmates in Saint-Jérôme. [ 147 ] In addition, the new ADC, which opened on November 17, 2018, contains 220 places, unlike the 120 in the former facility, and the increase was intended to respond, among others, to the needs of the Cree and Inuit populations. [ 148 ] When her affidavits were drafted, only 166 places were available, because of the need for more staff, among other things. [ 149 ] When the statistics provided by Ms.

Dessureault on the average daily population are analyzed, it is apparent that daily , there is 1 Cree person out of 2 who is at the ADC (10 out of 19, rounded out). [71] The exact number of days a Cree inmate spends at the ADC is unknown (because of transfers, among other things), but if this statistic is applied to all Cree inmates, it means that, on average, each one will serve 1 day out of 2 – that is to say, 50% of his sentence – at the ADC. [ 150 ] According to these statistics, the total Cree inmate population serving a sentence in Amos was 10 out of the total 120 inmates at the time of the statistics.

As for the Saint-Jérôme detention centre, the statistics indicate a single Cree inmate out of 362 total inmates. And in the Roberval institution, a Cree inmate serving his sentence there will in principle be in the company of 8 other Cree inmates, out of a total of 169 inmates.

[ 151 ] The statistics reveal that other Cree individuals are there as detainee , but the Court has judicial knowledge that detainees are not normally held in the same area as inmates. [ 152 ] Also, the statistics regarding parole that Ms. Dessureault has provided reveals the following: [72] [ 153 ] From 2013 to 2018: • Of the 1,142 Aboriginal individuals eligible for temporary absence in preparation for conditional release , 77 requests (6.7%) were processed and 37 (48%) were granted.

Thus, 3% of eligible Aboriginal persons obtained authorization for absence ; • Of the 17,368 non-Aboriginal persons eligible for temporary absence in preparation for conditional release , 3,974 requests (23%) were processed and 2,689 (68%) were granted. Thus, 16% of eligible non-Aboriginal persons obtained authorization for absence; • Of the 1,142 Aboriginal persons eligible for conditional release , 405 (35%) filed a request for parole.

Thus, 737 of eligible Aboriginal persons (65%) waived their right ; • Of the 17,368 eligible non-Aboriginal persons eligible for conditional release , 10,021 (58 %) filed a request for parole.

Thus, 7,347 of eligible non-Aboriginal persons (42%) waived their right ; • 41% of Aboriginal persons who filed requests for conditional release obtained a favourable decision, compared with 55% of non-Aboriginal persons who filed a request for conditional release ; • 15% of the 1,142 eligible Aboriginal persons were granted conditional release , compared with 30% of the 17,368 eligible non- Aboriginal persons ; [ 154 ] The Court does not exactly know the precise causes of this disparity between the statistics for Aboriginal people and non- Aboriginal people.

One observation is clear, however: in terms of percentages, there are fewer Aboriginal individuals filing requests for temporary absence in preparation for conditional release and requests for conditional release, and there is also a higher percentage of eligible Aboriginal people who waive the right to file an application for conditional release. Thus, ultimately, the percentage of non- Aboriginal people who obtained conditional release is double that of the eligible Aboriginal people who did (30% versus 15%). 6.7.

Analysis of the situation [ 155 ] Regarding the collateral consequences of the sentence on the accused, the Attorney General of Québec submits that nothing in the evidence supports a statement that a prison sentence to be served in Amos will have physical, emotional, social, or financial consequences that would set his circumstances apart and differentiate it from the usual direct consequences of a prison sentence. [ 156 ] According to the Attorney General of Québec, given the lack of evidence of any connection between the portrait that emerges of the category of incarcerated Aboriginal individuals and Mr.

Iserhoff’s personal circumstances, the purposes of individualization and parity of sentences risk being compromised. To the Attorney General, the statistics comparing two groups such as non-Aboriginal persons and Aboriginal persons do not ground definite conclusions about either Mr. Iserhoff or Cree people in general. [ 157 ] The Court does not agree. First, the exercise does not involve drawing definite conclusions, or even, as per Suter , foreseeable ones. [ 158 ] It also does not involve systematically making all pre-sentence hearings into “commissions of inquiry”, as the Attorney General of Québec claims.

Rather, it involves recognizing a sufficiently probative and generalized factual situation, as opposed to an uncertain and exceptional one, so that it may in principle be considered by the courts without requiring proof every time. [73] [ 159 ] In short, it involves considering a faithful portrait of a state of affairs that reveals a systemic situation. [ 160 ] It is easy to imagine the various effects of a Cree person serving a sentence in a detention centre on the Eeeyou Istchee territory, adapted to Cree values and ways of life, and with Cree individuals among the staff members, as opposed to a detention centre in Amos, Saint-Jérôme or elsewhere.

It is also clear that, for a Cree person, serving a sentence in Amos is probably less challenging than serving it in another detention centre. [ 161 ] The personal situation and the individualization of the sentence to be imposed on the accused Iserhoff and Coon Come must take into account a fundamental and very important characteristic: they are Aboriginal . [ 162 ] The Court must necessarily consider this reality when assessing the collateral effects of the sentence. Moreover, the Court is of the view that Gladue also justifies taking it into account when it states that s. 718.2 (

e) Cr. C . requires judges to approach sentencing differently because of the specific situation of Aboriginal people. [74] This must be done with the aim of considering the consequences of a prison sentence on an Aboriginal accused, so as to determine whether such a sentence is appropriate or whether an available sanction other than imprisonment is more suitable.

In addition, the Court’s obligation under s. 718.2 ( d ), whereby an offender should not be deprived of liberty if less restrictive sanctions are available, must not be forgotten. [ 163 ] What is more, while both the Cree Nation Government and the Attorney General of Québec are of the view that the right of Cree inmates to serve the sentence at the ADC exists, the application of that right varies from one party to the other. [ 164 ] The Court notes that paragraph 5(

d) of the 2007 Agreement that provides for the grouping of Cree inmates at the ADC as a temporary measure has existed for 12 years and that this grouping has not yet taken place. And the Cree Nation Government and the Attorney General of Québec, including the ADC authorities, do not agree on how the grouping should be carried out. They have taken few steps to make it happen, aside from establishing programs for Cree inmates, most of which were developed and implemented by the Cree Department of Justice and Correctional Services.

[ 165 ] It should be recalled that the Court’s powers are limited in this inquiry, the purpose of which is to determine the appropriate sentence for the accused.

Consequently, it is not possible for the Court to render a declaratory judgment on litigious rights and consequently order detention centre authorities to act a certain way. [ 166 ] What is more, although this temporary compromise was made to decrease the impact on beneficiaries of the lack of detention institutions above the 49th parallel, the fact nevertheless remains that the collateral consequences of the sentence must be assessed on the basis of the full exercise of this recognized right of beneficiaries to benefit of detention institutions above the 49 th parallel. [ 167 ] Also, while the collateral consequences under the compromise are less significant, the impact of the compromise must also be assessed in terms of the reality revealed by the statistics, in other words, that a Cree inmate will, on average, serve 50% of his sentence in a facility other than the ADC.

This is in fact what the Cree Nation Government is highlighting when it says, “the absence of assurances that the Cree offender will remain at the Amos Centre for his/her entire sentence should be taken by the Court into account as a factor in the determination of an appropriate sentence.” [ 168 ] In fact, it is not only the absence of assurance that the accused will remain at the Amos Centre that has to be taken into account, but also the fact that an Aboriginal accused, whether in Amos, Roberval or Saint-Jérôme, finds himself in an environment where he is part of a small minority, far from the Aboriginal environment, and culturally isolated. [ 169 ] A pessimistic prognosis regarding the right to absence and parole should also be mentioned.

On this subject, the Court refers to Nur , [75] where the Supreme Court states that while the role of the parole board is to ensure that an offender is safely released into the community, the judge is the only one who exercises the function of ensuring that an offender serves a proportionate sentence . [76] This is the task the Court is performing now, while taking these realities into account. [ 170 ] The finding here, based on the statistics, is that the safe release of an offender into the community takes place after a longer period of time when the offender is Aboriginal.

Accordingly, the Court must also take this situation into account, pursuant to the ruling in Suter , so as to render a proportionate sentence. 6.8.

Summary of the situation concerning collateral consequences [ 171 ] The Court submits the following

summary: • The parties entered into the 2007 Agreement so that the obligations in

section 18 of the JBNQA could be implemented a different way to ensure that they would be fulfilled; • The 2007 Agreement did not suspend the right set out in paragraph 18.0.26 of the JBNQA; • To reduce the negative effects of the failure to fulfill the undertaking to build detention centres above the 49 th parallel, the parties have agreed on a temporary compromise, namely the grouping of Cree inmates in Amos and the establishment of programs adapted to them; • More than ten (10) years after the 2007 Agreement, the temporary compromise has still not been implemented; • Because the Cree beneficiaries’ right set out in paragraph 18.0.26 of the JBNQA is not suspended, Cree inmates remain beneficiaries of this right, and it is on the basis of this right that the collateral consequences of the sentence must be assessed. [ 172 ] As for the collateral consequences, the Court considers the following: • The Cree inmate is in a detention centre far away from his family and community, making it more difficult to receive visits from his loved ones and maintain a connection with his culture; • The Cree inmate will on average serve half of his sentence in a facility other than the ADC; • The Cree inmate is imprisoned in a cultural environment that is fundamentally different from his Aboriginal culture and where he is demographically underrepresented, which contributes to making his imprisonment a more difficult challenge; • The Cree inmate has a substantially lower expectation of being granted temporary absence in preparation for conditional release and release on parole than non-Aboriginal inmates do.

Therefore, in principle, he will spend more time in detention than a non- Aboriginal inmate. [ 173 ] That being the case, the collateral consequences are only one of the considerations and relevant factors the Court must take into account during sentencing. Recently, in Émond c.

R ., the Court of Appeal noted that [ translation ] “the factors extrinsic to the assessment of proportionality inevitably fall under the sentencing judge’s discretion”. [77] The Court notes that the sum of collateral consequences in this case has a significant impact, particularly as they are in a way on a continuum of the principles set out in Gladue and Ipeelee : 1. The systemic and background factors concerned moral blameworthiness and relate to the past; 2. The sentencing process is connected with the present; 3. The collateral consequences relate to the future. 7. ANALYSIS AND THE APPROPRIATE SENTENCE

7.1.

Aggravating factors common to the two accused [174] They are the following: • This is a serious crime, punishable by a maximum of 14 years’ imprisonment. • It was a case of mindless violence. • Even though the victim fled, the attackers ran after him to beat him up. • There were many attackers, allowing the victim no chance to defend himself. • The victim has suffered from psychological as well as physical injuries. • Both accused minimize their participation. • Both accused have criminal records for violent offences. • Both accused were aware of the effects that excessive alcohol consumption would have on them with regard to their violent nature.They had received serious warning in the past. (R. v.

Cook, 2009 QCCA 2423; R. v. Bois, [1986] R.J.Q. 1397 and R. v. Quévillon, (QC CA), REJB 1999-11010). 7.2. Additional aggravating factor concerning the accused Iserhoff [175] It is the following: • The accused was on probation when he committed the offence. 7.3.

Additional aggravating factors concerning the accused Coon Come [176] They are the following: • The number of prior offences in similar cases is high: his criminal record includes 20 offences involving acts of violence; • Since the offence was committed, he has committed other offences involving violence and breaches in 3 different cases, onDecember 23, 2015, June 10, 2017, and June 23, 2017, for which supervised p

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