R. v. Paulson, 2020 ONCJ 86

ONTARIO COURT OF JUSTICE CITATION: R. v. Paulson , 2020 ONCJ 86 DATE: 2020 02 13 COURT FILE No.: 19-5687 BETWEEN: HER MAJESTY THE QUEEN — AND — MONEA PAULSON Before Justice G. L. ORSINI Reasons for Sentence released on February 13, 2020 J. Moser................................................................................................. counsel for the Crown C.

Dobson................................................................................... counsel for Monea Paulson ORSINI J.: Introduction [ 1 ] Monea Paulson, a 28-year-old Indigenous offender, is before the court for sentencing on three counts of Aggravated Assault, Breach of Recognizance and Assault. She stabbed three men without provocation or apparent motive while in a significantly intoxicated state and on a bail order that prohibited her from possessing weapons.

Following her arrest, she assaulted a female nurse while being processed for admission to the Elgin Middlesex Detention Centre. [ 2 ] In addition to reading about her personal circumstances in a Gladue Report dated December 4, 2019, the court had the opportunity to hear directly from Ms. Paulson and other members of her family during the course of a sentencing circle. [ 3 ] It is not disputed that background factors affecting Indigenous people in Canadian society have impacted Ms.

Paulson’s life in ways that bear on her moral blameworthiness. [ 4 ] However, as is often the case when dealing with serious violent offences, the question remains as to the weight to give those factors bearing in mind the principles of denunciate and deterrence . Position of the Parties [ 5 ] In s upport of its argument for a custodial sentence of 4 - 6 years, the Crown points largely to decision in R v Tourville [1] where of Justice Code identifies three ranges of sentences for aggravated assault. The Crown submits that the aggravated assaults committed by Ms.

Paulson fall into the third or high end of the range of cases in which 4-6 years imprisonment have been imposed for “… ‘unprovoked’ or ‘premeditated’ assaults with no suggestion of any elements of consent or self-defence.” [ 6 ] The Crown further submits that, but for the mitigating factors in this case, the aggravated assaults would merit a significantly higher sentence given that: (

a) they involved two separate and distinct occurrences; and (

b) unlike the first occurrence, the second occurrence involved some degree of premeditation.

[ 7 ] The defence submits that in spite of the seriousness of the offences, the mitigating factors, including those which impact upon Ms. Paulson’s moral blameworthiness, justify a time served sentence of 6 months, credited on a 1.5 -1 basis (the equivalent of 9 months), followed by 3 years of probation. The defence submits that the aggravated assaults should be treated as one continuing offence by a highly intoxicated person without any significant degree of forethought. Principles of Sentencing [ 8 ] The purposes and principles of sentencing are set out in

section 718 of the Criminal Code as follows : 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 9 ] Pursuant to sections 718.1 and 718.2, any sentence I impose must also be proportionate to the gravity of the offences and the degree of responsibility of Ms. Paulson having regard to the relevant aggravating and mitigating factors related to both the offences and Ms. Paulson. [ 10 ] Pursuant to

section 718.2(e), I must also consider all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims in this case and the community, with particular attention to Ms. Paulson’s circumstances as an Indigenous offender. [ 11 ] As indicated in the Supreme Court of Canada’s decision in R v Gladue [2] ,

section 718.2(

e) requires the court to adopt a different approach to the sentencing of Indigenous offenders. The Court must consider the following: (

i) the extent to which factors affecting Indigenous people in Canadian society have impacted upon Ms. Paulson’s moral blameworthiness; and (ii) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for Ms. Paulson because of her Indigenous heritage and connection. [ 12 ] This different approach, however, does not necessarily mandate a different result.

As indicated in Gladue, "[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non- aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing". [3] [ 13 ] In arriving at a just sentence for Ms.

Paulson, I am particularly mindful of the problems caused by unwarranted emphasis on the above-noted paragraph in Gladue, something that was emphasised in the Supreme Court of Canada’s subsequent decision in R v Ipeelee , [4] and most recently by the Ontario Court of Appeal in R v Martin , [5] and R v Altiman . [6] [ 14 ] At paragraphs 84, 85 and 87 of Ipeelee [7] , the Supreme Court stated: 84 Numerous courts have erroneously interpreted this generalization [in Gladue para. 79] as an indication that the Gladue principles do not apply to serious offences... 85 Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear that sentencing judges have a duty to apply s. 718.2( e ): "There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence" ( Gladue at para. 82) ...

Similarly, in Wells , Iacobucci J. reiterated, at para. 50, that [t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender. 87 The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation... [ 15 ] As indicated by the Ontario Court of Appeal in Altiman [8] , “ The key point is that the Gladue analysis conducted by a sentencing judge must focus on the circumstances of the offender that may bear on the offender's moral culpability for the offence.

A sentencing judge cannot let the seriousness of the offence deflect the court away from that focus.” Circumstances of the Offences [ 16 ] On January 25, 2019, Ms. Paulson was released on a recognizance of bail with a condition that she not be in possession of any weapons.

[ 17 ] Six days later, on January 31, 2019, Ms. Paulson and Mr. Fraser met for the first time. Mr. Fraser invited her to his apartment for a meal. He was 56 years of age at the time. [ 18 ] At approximately 3 a.m., Mr. Fraser was in his kitchen when Ms. Paulson picked up a knife that was on top of the television and stabbed him in left side of his back in the area of his scapula. Immediately prior to the attack she told him she was there to kill him. [ 19 ] According to Mr. Fraser, things had been going well until Ms.

Paulson began speaking about someone having died in the apartment and that she could see their ghost. It was following this that Mr. Fraser was attacked. The attack itself was completely unprovoked. [ 20 ] Following the initial attack, Ms. Paulson picked up a second knife that was on top of the microwave. Mr. Fraser defended himself by shielding his body with a bicycle that was in his apartment. He managed to lock himself in his bedroom where he remained until Ms. Paulson left the apartment in possession of the knives. [ 21 ] Ms. Paulson then made her way to the vestibule of a bank approximately 2 kms away. Mr.

Depuis and Mr. George were already in the vestibule as it provided them some shelter from the cold. [ 22 ] Video surveillance from the bank shows Ms. Paulson entering the vestibule and attacking both men shortly thereafter. Mr. Depuis received a stab wound to the upper left side of his neck while Mr. George received a stab wound below his left ear and left jaw area. Again, the attacks were completely unprovoked and unexpected. [ 23 ] Ms. Paulson then walked to the London Police Station a few blocks away. Video surveillance shows her trying to pry her way into the building through a locked door.

Police eventually responded and arrested her after she voluntarily disposed of the knife at their direction. When confronted by police she stated, “It was me, I killed those mother fuckers”. [ 24 ] All three victims received stitches to close their wounds and were released from the hospital the same day. None of the injuries were critical and there is no evidence of any lasting physical impact. No victim impact statements were filed. [ 25 ] Ultimately, Ms. Paulson was transferred from the London Police Station to the Elgin Middlesex Detention Centre later that same day.

While being processed for admission, she stood up and asked the admitting nurse if she came from a “fucked up family”. She then punched the nurse once in the face knocking her to the ground. The nurse’s injuries included a laceration to the inside of her mouth, swollen lips, a headache, a sore right shoulder and sore right ribs. [ 26 ] The Crown accepts that Ms. Paulson was significantly intoxicated and under the influence of drugs at the time of these events. According to one of the arresting officers, Ms. Paulson’s comments at the time were irrational. This was echoed by counsel who Ms.

Paulson contacted from the police station. Ms. Paulson also began self-harming by banging her head off walls at the police station. Restraints, including a helmet, had to be placed on her for her own protection. Circumstances of Ms. Paulson [ 27 ] The unique background and systemic factors related to Ms. Paulson’s status as an Indigenous person were outlined in a Gladue report dated December 4, 2019. The court also received a Forensic Psychiatric Assessment Report prepared by Dr. Levin, dated September 14, 2019. [ 28 ] Ms.

Paulson, 28, is a registered member of the Oneida Nation of the Thames and a single mother of four children ranging in ages from 2 to 11. She was 27 years of age at the time of the offences. [ 29 ] Her Indigenous heritage comes from her mother’s side of the family. Her parents separated when she was five years old. She has had no meaningful relationship with her father since that time. [ 30 ] Ms. Paulson’s life and current circumstances reflect the intergenerational trauma resulting from Canada’s Indian Residential School System.

Her maternal great grandparents and her maternal grandfather were residential school survivors. Her maternal grandfather spent 6 to 7 years at the Mount Elgin Industrial Institute, one of Canada’s first residential schools located 20 miles southwest of London, Ontario. [ 31 ] The impact of the residential school system on subsequent generations has been well documented. Canada’s residential school system was designed to assimilate Indigenous Peoples into Canadian society by eradicating their cultural traditions, spiritual beliefs and language.

It has led to increased rates of substance abuse, mental health problems, criminal activity, mortality/suicide, poverty, family breakdown and community disintegration. All of this has contributed to cycles of parenting deficiencies. [ 32 ] As indicated in the Royal Commission on Indigenous People [9] , the abuse and neglect suffered by residential school survivors left its mark on their lives and the lives of their descendants whose families have been characterized by further abuse and neglect. [ 33 ] The Gladue Report details the significant impact this had upon Ms. Paulson’s mother and Ms.

Paulson herself. [ 34 ] Her mother spent a significant amount of time in the care of other family members and ultimately ended up in foster care during a time that has since become known as the 60’s scoop. She experienced poverty, neglect and sexual abuse as a child and suffered from significant addiction issues of her own. She became involved in a number of physically abusive relationships and ultimately passed away at the age of 45 due to health complications related to her addiction issues. Ms. Paulson was 14 years of age at the time. [ 35 ] Not surprisingly, Ms.

Paulson’s childhood was marked by the same parenting deficiencies experienced by her own mother. Her mother’s addiction to alcohol and crack cocaine resulted in Ms. Paulson spending significant periods of her childhood with relatives and friends before being placed in foster care. Like her mother, she experienced neglect and sexual abuse at an early age. Indications are that she also experienced a significant amount of physical abuse at the hands of her mother.

[ 36 ] Following the death of her mother, Ms. Paulson left the care of her great aunt and became pregnant with her first son at the age of 15 . She began abusing alcohol and illicit substances and became involved in a number of physically and emotionally abusive relationships with men. She had three other children but ultimately lost custody of all four. [ 37 ] It would appear from the Gladue Report that Ms. Paulson maintained a period of sobriety and regained custody of her children prior to relapsing in December 2017 when she discovered that two of her children had been sexually abused by a neighbour.

Prior to that time, she had been employed in the construction industry for approximately 4-5 years. [ 38 ] As indicated in the above-noted Psychiatric Report, Ms. Paulson blamed herself for failing to protect her own children. In the opinion of Dr. Levin, which I accept, Ms. Paulson began reliving the abuse she suffered as a child. This led to the delayed onset of Post- Traumatic Stress Disorder stemming from the severe and prolonged abuse she experienced as a child. This further contributed to Ms. Paulson’s chaotic lifestyle and the re-apprehension of her children.

It compounded her reliance on larger amounts of alcohol and substances as a coping mechanism. [ 39 ] Following the re-apprehension of her children, Ms. Paulson’s life continued to spiral downward. She experienced significant blackouts due the consumption of alcohol, crystal methamphetamine and cocaine. It would appear that she was largely transient throughout 2018 up until the time of her arrest for the matters before the court. [ 40 ] In spite of her circumstances, Ms. Paulson has no prior criminal record.

She has remained in custody since the date of her arrest – a total of 377 days. [ 41 ] In the opinion of Dr. Levin, which I accept, Ms. Paulson’s actions were the result of extreme intoxication as opposed to any underlying psychological condition. I also accept Dr. Levin’s opinion that Ms. Paulson genuinely has no memory of the events in question. She displayed none of the symptoms commonly associated with individuals who fabricate memory loss in order to escape criminal responsibility. Aggravating and Mitigating Factors [ 42 ] I note the following aggravating factors in this case: (

i) all of the assaults were unprovoked and unexpected; (ii) the aggravated assaults involved the use of a weapon, namely a knife; (iii) Ms. Paulson had been on bail, having been released six days earlier with a condition that prohibited her from possessing weapons; and (iv) the level of violence involved in the attacks was significant. One man was stabbed in the back and two were stabbed in the area of their neck. This had the potential for significant, life threatening consequences. [ 43 ] The mitigating factors are as follows: (

i) Ms. Paulson entered a guilty plea; (ii) as indicated above, in spite of her background, Ms. Paulson has no prior criminal record; (iii) factors related to Ms. Paulson’s background as an Indigenous person have significantly impacted her life in ways that bear on her moral blameworthiness; (iv) Ms. Paulson was suffering from PTSD at the time of the offences; and (

v) as evidenced by the Gladue Report, a psychiatric report and comments made during the course of a sentencing circle, Ms. Paulson is generally remorseful for her actions and has expressed a sincere desire to pursue treatment. She has been receiving counselling while in custody. Her prospects for rehabilitation are good; Analysis [ 44 ] Counsel provided me with a number of cases with respect to the range of available sentences and I have considered the principal that a sentence for Ms. Paulson should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (see

section 718.2 (b). [ 45 ] At the same time, our courts have recognized that sentencing is an individualized process. It has been said that sentencing is not an exact science and that the above-noted principle should not be interpreted so as to restrict the discretion judges have in arriving at fit and just sentences. [10] [ 46 ] As indicated by Supreme Court Justice LeBel in R v Nasogaluak , [11] The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code . But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.

Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

[ 47 ] With respect to the aggravated assaults committed by Ms. Paulson, I find that consecutive sentences are not warranted given the nexus in both time and circumstance between the assault on Mr. Fraser and the assaults upon Mr. Dupuis and Mr. George. [ 48 ] In this regard, the circumstances are similar to those that existed in R v Sackanay [12] , where the Ontario Court of Appeal varied a sentence for aggravated assault so that it ran concurrently to a sentence for aggravated sexual assault even though the offences were separated in time by more than 19 hours. Mr.

Sackanay was in a continuous state of intoxication during this time. The court found that the sentencing judge failed to consider the nexus between the two offences attributable to the offender’s “consumption of drugs and alcohol, which in turn is related to the systemic disadvantages the appellant has suffered.” [13] [ 49 ] In Ms. Paulson’s case, the offences were separated by the amount of time it would have taken her to travel between the two locations, i.e. approximately 30 minutes.

This is far less than the time between the offences involved in Sackanay. [ 50 ] I also note that in Sackanay, the Court of Appeal imposed a sentence of 21 months for an aggravated assault where the offender attacked a taxi driver with a broken beer bottle causing stitches to the victim’s nose and lips and lacerations to his forehead. Mr. Sackanay was 26 years of age and had similarly been impacted by factors related to his Indigenous heritage. Unlike Ms. Paulson however, he had a significant criminal record which included offences of violence.

He had previously served a one-year custodial sentence as an adult. [ 51 ] In R v. Chickekoo [14] the Ontario Court of Appeal upheld a sentence of 18 months custody for an aggravated assault that involved smashing a beer bottle over the victim’s head during the course of a bar fight. The victim’s injuries were described as “life- threatening and permanently disfiguring” requiring 100 stitches during the course of a three-hour operation. Unlike Ms. Paulson, Ms. Chickekoo had a prior record for assault and numerous breaches of probation and bail. Ms.

Chickekoo was also convicted after a trial. [ 52 ] Although the attacks committed by Ms. Paulson did not occur in the context of a consent fight as was the case in Chickekoo , that fact alone does not warrant a higher sentence for Ms. Paulson. The absence of this factor is, I find, offset by the fact that Ms. Paulson pled guilty, does not have a criminal record and did not cause life-threatening and permanently disfiguring injuries. [ 53 ] Finally, Ms. Paulson’s moral blameworthiness must be viewed in light of her Indigenous heritage and the intergenerational impact of Canada’s Residential School Policy.

Although this does not operate as a justification or excuse for what occurred in this case, it goes some way in explaining how she finds herself before me today. [ 54 ] As a result of the intergenerational trauma associated with residential schools, Ms. Paulson has experienced abandonment and family breakdown, poverty, dislocation from her community and physical, emotional and sexual abuse. This significantly contributed to the addiction and mental health issues she now suffers from and which underlie the offences before this court. [ 55 ] As indicated by her counsel, it is surprising that Ms.

Paulson has not come before the court sooner. Conclusion [ 56 ] Considering all of these factors, it is my view that an appropriate sentence is one which reflects the time Ms. Paulson had already served. Accordingly, Ms. Paulson will be sentenced on the Aggravated Assaults and Breach of Recognizance to concurrent periods of time served of 388 days (the equivalent of 567 on a 1.5-1 basis), plus one day concurrent on both matters.

This equates with a sentence of almost 18.5 months. [ 57 ] With respect to the Assault at the jail, upon which the Crown proceeded summarily, there will be a concurrent period of time served of 30 days plus one day concurrent to the previous matters. [ 58 ] This will be followed by three years of probation, concurrent on all matters, with terms designed to protect the public and assist her in moving forward with culturally appropriate counselling and treatment. [ 59 ] For DNA purposes, Aggravated Assault is a primary designated offence.

Accordingly, I am ordering the taking of samples of bodily substances from Ms. Paulson that are reasonably required for the purpose of forensic DNA analysis. [ 60 ] There will also be a weapons prohibition pursuant to s. 109 of the Criminal Code prohibiting Ms. Paulson from possessing the weapons listed therein for life. [ 61 ] I want to take this opportunity to thank counsel for their professionalism in dealing with this matter. I would also like to thank the Gladue writer for a thorough report detailing Ms.

Paulson’s life circumstances and the Indigenous based services available to her upon her release. [ 62 ] The court is particularly indebted to those who participated in the sentencing circle, including Ms. Paulson. It is this court’s hope that this restorative approach will assist Ms. Paulson in her journey towards recovery. It is for Ms. Paulson, together with her family and extended community, to now assume responsibility for that recovery. Released: February 13, 2020

Signed: Justice G. L. Orsini [1] R v Tourville, 2011 ONSC 1677 [2] R v Gladue, (SCC), [1999] 1 S.C.R. 688 [3] Ibid., para. 79; see also R v Wells 2000 SCC 10 , [2000]1 S.C.R. 207 at para. 44 [4] R v Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433; see also R v Kakekagamick (2006), (ON CA), 81 O.R.(3d) 664 (C.A.), at para. 31, leave to appeal refused, [2007] S.C.C.A. No. 34 [5] R v Martin, [2018] O.J. No. 6591 [6] R v Altiman, 2019 ONCA 511 , [2019] O.J. No. 3216 [7] R v Ipeelee, supra. at para. 84, 85 and 87 [8] R v Altiman supra. at para. 85 [9] Royal Commission on Indigenous People, Part Two: False Assumptions and Failed Relationship,

Chapter 10 – Residential Schools,Discipline and Abuse [10] R v Ramage, [2010] ONCA 488; [11] R v Nasogaluak, 2010 SCC 6 [12] R v Sackanay (ON CA), [2000] O.J. No. 885 [13] Ibid., para. 12 [14] R v Chickekoo, 2008 ONCA 488