2019 QCCQ 2341, 2019 QCCQ 2341

R. c. Georgekish 2019 QCCQ 2341 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF WASKAGANISH Criminal Division No: 614-01-000389-151 DATE: April 5, 2019 ______________________________________________________________________ BY THE HONOURABLE THIERRY R. POTVIN, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN PROSECUTION v.

JOLENE GEORGEKISH ACCUSED ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused has pleaded guilty in March 2018 to one count of conspiracy to commit drug trafficking and one count of drug trafficking. [ 2 ] The sentence hearing was held on January 22 nd of 2019 after the filing of a pre-sentential report and a Gladue Report. [ 3 ] The court now has to determine the sentence to be imposed.

The facts [ 4 ] In May 2014, the accused travelled to Ottawa in order to buy a large quantity of cocaine destined to be sold in Waskaganish.

She was given a large sum of money for the transaction by her sister Colleen Georgekish. [ 5 ] The police of the Eeyou Eenou Police force detachment of Waskaganish obtained a search warrant and the accused was intercepted on the highway before she got back to the community. [ 6 ] During the search of the vehicle where the accused was taking place, the police found 296.5gr of cocaine and a large quantity of small Ziploc bags. [ 7 ] The estimated street value of the drugs seized is around thirty five thousand (35 000) dollars. [ 8 ] The investigation showed that the accused was to be paid for the trip with one ounce of cocaine.

She was then, and still is, a regular consumer of cocaine. [ 9 ] It is also admitted that Colleen Georgekish was the instigator of this transaction.

Position of the prosecution [ 10 ] The prosecutor is asking the court to impose a two (2) year detention period followed by a three (3) year supervised probation order. [ 11 ] The main argument of the crown is that the court should put more emphasis on the deterrence and denunciation objectives rather than rehabilitation. [ 12 ] It argues that the accused has taken no steps since her arrest to address the issues that played a role in the commission of the present infractions and that despite the presence of many systemic and historical factors in the context of an aboriginal offender, a significant period of detention is warranted to underline the very high gravity of the crime and the impact of this sort of crime to Cree communities.

Position of the accused [ 13 ] The defence is proposing a twelve (12) months detention period followed by a three (3) year supervised probation order. [ 14 ] She argues that there are many factors in the life of the accused that diminishes the moral blameworthiness of the accused. [ 15 ] It is also argued that the Cree community of Waskaganish offers alternative solutions in order for the court to craft a fit sentence

that can also offer perspectives of rehabilitation. [ 16 ] Among other things, there is an active justice committee that can be involved during the probation period of the sentence. The law [ 17 ] The criminal code, at

section 718 provides that the court shall impose a sentence that aims to: “protect society and to contribute along with crime prevention initiatives, to respect for 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. [ 18 ]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 19 ] Furthermore,

section 718.2 states that, in crafting a sentence, the court shall take under consideration all mitigating and aggravating factors such as: (iv) evidence that the offence was committed to the benefit or, at the direction of or in association with a criminal organization; [ 20 ] Also a governing principal is that a sentence should be similar for similar offences in similar circumstances committed by similar offenders; [ 21 ] Lastly,

section 718.2 (

e) imposes the following; (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. The accused [ 22 ] Mrs. Jolene Georgekish is a 36 years old woman member of the Cree Nation. [ 23 ] At the time of the offence, the accused only had a few prior convictions, mainly for crimes against the person and breaches of conditions.

Other than a 9 months conditional sentence order, she has never been detained. [ 24 ] Most, if not all, of the criminal history of Mrs.

Georgekish went on during the years 2004 to 2008. [ 25 ] At the time of registering guilty pleas, the court ordered the writing of a Gladue report and a pre-sentential report. [ 26 ] We learn from those reports that the accused was born in Moosefactory and that the family moved to Chisasibi before moving to Waskaganish. [ 27 ] Both parents went to residential schools. [ 28 ] The pre-sentential report mentions the following: “The offender would have experienced a few traumatic events in her past.

Not only did she have to live with negligence, violence and parental abandonment, she would also be the victim [...].” [ 29 ] The accused was placed for a number of years through the youth protection system, far from her community. [ 30 ] She started drinking at age 14 and started to consume cocaine at age 20. She went to therapy in the year 2013 to get rid of an addiction to crack cocaine. [ 31 ] Mrs. Georgekish is now a mother of 6 children, she still uses cocaine and alcohol and she has not worked since 2006.

More recently, she lost a baby in March of last year and has received no support for grieving issues. [ 32 ] The reports underlines a lack of specialised services in the community. There are no services for drug addiction except the mobile treatment six weeks program, and overloaded social workers. The psychologist and the psychiatrist come only on a monthly basis. [ 33 ] Unfortunately, the accused neglected or refused to answer questions relating to her crimes and did not collaborate fully, which leaves the impression that she only wants to give informations that could mitigate the sentence to come.

[ 34 ] The evaluation of the pre-sentential writer is that the accused does not understand the impacts of her criminal behavior on her community and feels no sense of responsibility. She sees herself as a victim and only talks about the impacts of the future sentence on herself. [ 35 ] The accused offers no concrete plan to address underlying issues and thus, the evaluation of the risk of reoffending is set to high.

Since the commission of the infraction was to finance her own drug consumption, the fact that the accused still consumes cocaine and the fact that she has not worked since 2006 are important factors that played a large role for this evaluation of risks. The crime [ 36 ] Mrs. Georgekish pleaded guilty to a charge of conspiracy to commit drug trafficking under section 465(1)

c) and to a charge of drug trafficking under section 5(1)(3)a). Those infractions were committed in May 2014. [ 37 ] Objectively, the crimes of trafficking cocaine and conspiracy to commit trafficking of cocaine are punishable by life imprisonment.

They are among the gravest infractions provided by criminal law. [ 38 ] The police investigation lead to the seizure of a very large quantity of drugs, more precisely 296.5gr of cocaine. [ 39 ] The courts are at the forefront to observe the devastating effects of drug consumption in the northern communities of the James Bay area. [ 40 ] How many children were raised under parental neglect because of drug use? [ 41 ] How many cases of conjugal violence involves a person in need of money to buy drugs? [ 42 ] How many are not able to keep a regular job because of drug addiction? [ 43 ] The many effects of illegal drug use are seen and felt in a majority of the files in front of any court. [ 44 ] Drug addiction is, without a doubt, one important symptom of intergenerational traumas inflicted on Aboriginal people.

The need to numb down overwhelming feelings of pain and grief leads many people to consume alcohol and drugs to the point where it prevents them from functioning normally. [ 45 ] Drug traffickers are essentially running a business that profits off of this pain and this suffering. Their goal is to make money from the illness that is drug addiction. [ 46 ] The accused is especially well placed to know how strong such an addiction can be.

She has suffered from it for years and yet, she can feel no empathy for others. [ 47 ] Also, the accused was arrested in possession of 296.5 gr of cocaine. [ 48 ] One cannot buy such a large quantity of drugs from a simple street vendor.

It is clear that, in order to buy 296 gr of cocaine, the accused and her co-conspirator must have had contacts with a criminal organisation and ways to finance such an important transaction. [ 49 ] This kind of purchase has to be planned in advanced, and there needs to be a structure put in place to sell the drugs after. [ 50 ] Even if the accused was not the main instigator of the transaction, she willingly and knowingly participated actively to the transaction. [ 51 ] The street value of the drugs seized is estimated up to 35 thousand dollars. [ 52 ] For a community already living in a somewhat generalised poverty, that is 35 thousand dollars not used to feed it’s people, not used to provide services to community members, not used to give hope and heal wounds.

Alternative sanctions to imprisonment [ 53 ] Mrs.

Georgekish certainly has suffered from the parental neglect, [...] a disconnection from her aboriginal roots. [ 54 ] In the recent years, the community of Waskaganish has been served by their very reliable and very competent justice committee. [ 55 ] It is the opinion of the court that such a resource is invaluable to the rehabilitation of many offenders and to a lasting and true peace within the community. [ 56 ] It is the court’s experience that the culturally adapted interventions from justice committees or other local service providers at the stage of the sentence offer far better results than simply resorting to imprisonment alone. [ 57 ] This is not to say that imprisonment should be discarded.

It is not an either/or situation. The code provides that a sentence should aim at many objectives. Rehabilitation is certainly an important one, but so is denouncing the crime, and deterring anyone from committing them. [ 58 ] The jurisprudence steadily states that deterrence and denunciation should be prioritized in crimes of trafficking of cocaine. [ 59 ] In the present case, the very large quantity of drugs in possession of the accused warrants a somewhat lengthy term of imprisonment.

[ 60 ] Also, the court gathers from the evidence that the accused is not clearly and significantly engaged in the process of rehabilitation. [ 61 ] Since her arrest, she has diminished her consumption of illegal drugs but has taken no steps to get rid of her addiction. [ 62 ] Neither has she engaged in a plan to gain employment or reconnect with her culture. She has been passive. [ 63 ] In other words, the court sees no reason, from the evidence, to depart from the jurisprudence and shall then give more importance to denunciation and deterrence rather than aiming primarily at rehabilitation.

Analysis [ 64 ] That being said, the court has to evaluate the historical, systemic and personal factors that may have played a role in the presence of this offender in front of the court. [ 65 ] The coming into force of

section 718.2(

e) and the Supreme Court of Canada decisions that interpreted that

section made it clear that a court should take under consideration the very special context of aboriginal offenders. [ 66 ] The present case is a clear illustration of the need to look at the broader picture before crafting a sentence for an aboriginal offender. [ 67 ] The life of the accused has been a series of traumas and tragedies. [ 68 ] Violence, neglect, alcohol abuse by the parents, [...] are probably only the tip of the iceberg when looking at the life of Mrs.

Georgekish. [ 69 ] Many of those factors are demonstrably the consequence of intergenerational traumas inflicted on Aboriginal nations in Canada. [ 70 ] There are also systemic factors in play in the present file. [ 71 ] It is well known that legal gainful employment is hard to find in small communities such as Waskaganish. Finding a job is certainly more of a challenge here than in many larger cities.

This puts pressure on some people and may lead them to choose illegal sources of revenues. [ 72 ] All those issues must be taken under consideration by the court in assessing the moral blameworthiness of the accused. [ 73 ] The court must also asses the aggravating and mitigating factors in order to craft a fit sentence. [ 74 ] The court considers the following as aggravating factors : - The quantity of drugs in possession of the accused; - The nature of the drugs; - The vulnerability of the community where the drugs were destined to be sold; - The presence of a number of prior convictions; - The absence of empathy towards the victims; - The absence of sense of responsibility and acknowledgment of the effects of drug trafficking; - The important risk of reoffending; - The lack of transparency during the evaluation process done by the Gladue report writer and pre-sentencing report writer. [ 75 ] The court considers the following as mitigating circumstance : - The plea of guilt; - The collaboration with the police investigation; - The fact that the crime was one single transaction; - The lower moral blameworthiness considering the historical, systemic and personal factors as an aboriginal offender.

Sentence [ 76 ] Considering all of the above, the court believes that a 20 months detention sentence and a 3 year supervised probation is a fit sentence. It reflects the gravity of the crime that was committed while taking under consideration the diminished level of moral blameworthiness of the offender. It also aims at providing support from both the probation services and the justice committee to help the accused’s rehabilitation. FOR THOSE REASONS, THE COURT: ORDERS that the accused serves 20 months of detention on count 2 and count 3, concurrent between them, followed by;

ORDERS a supervised probation of 3 years with the following conditions: - Keep the peace and be of good behavior; - Be in court when required to do so; - Advise the court and the probation officer of any change of name, address or occupation; - Report to a probation officer within 48 hours of release and thereafter when required and in the manner directed by the probation officer for the duration of the probation order; - Follow any advice regarding any issues that played a role into the commission of the crimes for which the accused is now being sentenced; - Report to the justice committee of Waskaganish within 48 hours of release; - Follow any advice and program offered by the justice committee regarding any issues that played a role into the commission of the crimes for which the accused is now being sentenced; - Undertake steps to return to a learning institution or to find a legitimate and gainful employment; - Not to possess, carry or acquire, for any reason, weapons, offensive or restricted weapons, or imitation weapons, including starting pistols and pellet guns, firearms, cross-bows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, explosive substances; - Not to go to places where drugs are used, sold or trafficked. __________________________________ THIERRY R.

POTVIN Me Sabrina Girard Directeur des poursuites criminelles et pénales ─ Amos Prosecutor Me Clara Lafrance-Egervari, Avocate Attorney for the accused Dates of hearing: January 22 and April 2, 2019