R. v. Bissonneault, 2021 BCPC 378

Citation: R. v.

Bissonneault 2021 BCPC 378 Date: 20211006 File Nos: AG44846923-1, AH54457380-1, AH44069088-1, AH63688900-1, AH51468083- 1, AH44110310-1, AH65912844-1, AH03988906-1, AH08025357-1, AH08149892-1, AH12018497-1, AH12056661-1, AH15616470-1, AH15634381- 1, AH15657648-1, AH15980700-1, AH16073215-1, AH16112451-1, AH16127806-1, AH30366563-1, AH35204411-1, AH39800083-1, AH48189006- 1, AH56968913-1, AH58710768-1, AH63613642-1, AH64765476-1, AH15684188-1, AH21247516-1, AH23855317-1, AH27272806-1, AH27323443- 1, AH27381318-1, AH30223549-1, AH35106914-1, AH39860970-1, AH44235944-1, AH48233423-1, AH48242177-1, AH48243779-1, AH48273750- 1, AH51454925-1, AH55126835-1, AH58714538-1, AH61735688-1, AH63682473-1, AH64851902-1, AH65877949-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v.

MICHEL WILLIAM BOISSONNEAULT REASONS FOR SENTENCE OF THE JUDICIAL JUSTICE Z. MAKHDOOM Appearing for the Crown: Constable McGuinness Counsel for the Defendant: M. Gervin J. Hadley, Articled Student Place of Hearing: Vancouver , B.C. Date of Hearing: June 7, 2021 Date of Judgment: October 6, 2021 [ 1 ] THE COURT : Well, Mr. Boissonneault, it is now in your hands. Society has an ability to do things for you because you are part of the society and we all are part of the same deal, we are part of the same family and we look after each other, right? That is, the motor behind the notion of society is social solidarity.

That entails, our mutual concern for the welfare and wellness of one another. [ 2 ] I am mindful of the deleterious consequences of colonialism on the First Nations Aboriginal societies and communities. Sadly, such phenomenon is not exclusive to North America. It has shown to be an inevitable consequence of colonialism, whether in Australia or South America, Africa or Asia. The scourge and ravages of colonialism experienced by the colonized everywhere have been more or less similar, with one difference.

That is, the outcomes of settler colonial circumstances vary from the circumstances of extractive colonialism experienced by the people of, for example, Algeria or Mali or India or Indonesia. The experience of our First Nations communities in Canada consists enduring the curse of settler colonialism. Have a seat. Pull up a chair. Have a seat right there.

[ 3 ] UNIDENTIFIED SPEAKER: [Inaudible/not near microphone]. [ 4 ] THE COURT: Yes, there is a chair there. [ 5 ] UNIDENTIFIED SPEAKER: Oh, thank you. [ 6 ] THE COURT: I understand the context of your malaise, Mr. Boissonneault. I would like to be able to walk with you, my heart is with you. I do not have any power to effect a real change in the manner Canada treats its First Nations population. As a human person who is at the very bottom of the judicial food chain, while being grateful to you for affording me this opportunity to speak with you, all I can do is offer you a few sentiments, few reflections.

Thank you for considering these. [ 7 ] I do have a power in this case to issue a fine. Penalties in cases involving recurrent pattern of offending vary, as well, these are dependent upon the application of the sentencing principles and other considerations, such as your individual circumstances and their colonial context. These could be very high, could be very low, and may even be waived. I can order you to go through a probationary period and comply with the conditions.

I think in the course of your life, you have seen sufficient episodes or events that would encompass practically every aspect of my connection with you. You must have met people in a significant position of power when they are dealing with your communities. Also those with a substantial level of humility and modesty, as well as those helping you cope with your addiction issues or other struggles in life. The struggles in life that we do not see, but form a big part of what we are. We are human. Perhaps like all sentient beings, we experience degrees of difficulties associated with our life.

That is the nature of human condition. In our toolkits we carry necessary tools to cope with the demands of our condition. All of us have those concerns. How we cope or manage our condition depends upon what emotional and intellectual, familial or communal, societal or spiritual resources we have.

Some of us are able to cope with that condition in solitude, some of us are afforded necessary tools and skills to deal with those aspects of human condition, and then there are some of us whose experience being part of a society or a community is so egregiously painful that their alienation is total. [ 8 ] Franz Fanon, a psychiatrist, was of the opinion that colonialism deprives humans of their innate abilities and resources for managing their cognitive and affective challenges.

In many respects a huge number of our First Nations people experience this alienation because they see all that was for their use and purposes has been taken away. Many feel that there is no solid place where they can rest their feet, feel grounded and consider themselves as a part of a community or a society. Thinkers like Fanon have made significant contributions towards analysis of such deficits. [ 9 ] As I said earlier, settler colonialism has its own dynamics that are extremely toxic, highly corrosive, historically these have proven to be rather poisonous for societies.

Conscientious intellectuals like Fanon or many South American thinkers and educators like Eduardo Galeano or Paulo Freire, for example, have used various methods to examine and analyse the nature of colonialism and its impact on human collectives and individual minds. If you wish to start your own pedagogic journey, a good read, for example, would be Eduardo Galeano. A very good writer, writes as if he is writing a poetry, but it is prose.

That gives you a kind of a picture of what is there, what other people have experienced. [ 10 ] What you are experiencing is unique but with universalistic characteristics; its uniqueness lay in the fact that the impact of settler colonialism is always so fulsome, with consequences transcending individual, affecting the entirety of human collectives. Hundreds of millions of First Nations people, Aboriginal people have experienced what you have. Whether in Australia or Brazil Guatemala or Canada or United States, the nature of scourge has remained painfully similar.

While the pain and suffering is always personal, the consequences are collective. [ 11 ] Courts in our country, Canada, have demonstrably pursued an enlightened path towards understanding the impact of colonialism on communities and individuals. Social critiques and scholars may have been enlightened the way we would like them to see at some point in our history. As a society, we perhaps have moved on from the painfully racist and myopic sociological constructs, afforded us by the likes of Auguste Comte or Herbert Spencer, from the latter half of the 19 th century.

Notwithstanding the fact that we are a settler colonial country, our courts have come a long way from the times when an Aboriginal person entering the courtroom would be instantly seen by the judge as a guilty person, to the point where courts are making these painstaking multidisciplinary leaps towards finding the better way of dealing with hugely traumatized alleged offenders belonging to First Nations. [ 12 ] The purpose of sentence following a guilty finding or guilty plea, at least in this country is not truly punitive.

As such, a sentence would primarily be guided by the societal imperative for rehabilitating the alleged wrong-doers. Unlike some places where a sentence after a conviction may cause loss of many rights associated with one’s citizenship, including losing one’s franchise, an inexplicable consequence often not contemplated by the sentencing judge but administratively applied. In Canada, the purpose of sentence primarily is to deter an accused person from re-offending.

If a monetary fine of one dollar can deter a person from re-offending, then that is an appropriate sentence; if 20,000 is needed to deter a person, then that would be an appropriate sentence. It is not the quantity, it is not the money part that we are concerned about. Thankfully, your servants like myself, who serve as judges, believe that we are not collectors for the government. We do not work to give government more money so that they can build more roads or buy more military equipment. We pay our taxes for those purpose.

Imposing a financial penalty in order to balance our books, in my respectful view, is tantamount to extortion. Courts are places where justice is rendered and served; Court are not collection agencies. At the core of every penalty issued by our Courts is the desire to deter an offender. [ 13 ] A question inevitably arise: how to deter a person whose mind is completely captive to their addictions? In that context, we seek out and order alternatives to fiscal penalties. Coming back to the case at bar. A giant folder is before me full of tickets that were issued to Mr.

Boissonneault during the time when his life was driven by his addictions. Nothing but the next fix mattered to him. He was captive. In the context of a society, public transit is a great thing. I happen to nurture a belief that in a civilized society, public transit would be recognized as a human right hence paid for by taxes with no additional requirements for payment of fare. Nobody will have to pay in order to get from point A to point B.

A fair argument one could proffer that, well, if our Charter of Rights and Freedoms guarantees my mobility rights, then it is also incumbent upon the society to facilitate the promulgation and enforcement of those rights. So if I am poor, I do not have a job, I am affected by my addictions, how in the heavens will I ever consider paying some money to go inside a train station? It does not work that way.

[ 14 ] Unlike our SkyTrain system which is an automated system with only occasional presence of any Transit personnel, our buses are driven by a live driver. During many bus rides, I’ve noticed impecunious humans would board a bus let the driver know that they are “broke”, and invariably I have seen driver motioning them to go find a seat. This cannot happen with SkyTrain. Yes, each SkyTrain station is equipped with public phone a person could use to call for help. In order to take advantage of that process, a person must, at the very least, be in control of their faculties. Addictions take away that control.

As an addicted person, I would likely use every penny in my possession towards acquisition of next fix. This is exactly what Mr. Boissonneault did. [ 15 ] In the submissions made by Mr. Hadley on your behalf Mr.

Boissonneault there is fair amount of meat there that whenever you were sober you did things for yourself and you felt better, and I think in one of your -- those extended periods of sobriety you decided to deal with these tickets and you went to the UBC law school, seeking their help, which is a marvelous thing to do and which does tell us about one thing, that when you are sober, you are able to do certain things. [ 16 ] Well, I cannot force you to be sober. It is not something that any human outside of one’s own self can assure.

If somebody like imbibing alcoholic drinks, they’d do everything within their means to satisfy those cravings. However, how to stop after imbibing a dram or two of a nice whisky or a pint or two of a nice beer. That is where you have to find your strength. UBC cannot give you that strength. Court cannot give you that strength. You can, Mr. Boissonneault. [ 17 ] I’m mindful of your experience with residential schools. Your family had a very negative interaction with the faith-based residential school program.

As you know, these residential schools here were not run by the humanist society, they were all run by various churches. The purpose, we have often heard was to “banish an Indian out of an Indian”, as if Aboriginal values and sensibilities were demons needing to be exorcised. A Christian value system was at the core of settler colonialism. Churches were given powers to apprehend Aboriginal children, with or often without any parental or personal consent, as well financial support to sustain their so-called “pedagogic work”.

No secular entity showed up to say, “we are going to open a residential school right in front of that one run by a church and we are going to do it differently because we are humanists”. Our humanist societies never thought of engaging in, paraphrasing great South American educator and philosopher Paulo Freire, some form of “pedagogy of the oppressed”. [ 18 ] Let’s get back to the 48 tickets or violations of the British Columbia Transit Safety Regulations concerning you. There were some times when there was no ticket for weeks.

And then, there are days when you were ticketed twice at different times at different locations. Then there are the ones that are not about avoiding the fare, but for drinking and doing things which people like Officer McGuinness would find very offensive, not because it offends them, per se, but it offends the law. Something like a charter of obligations is enforced by the transit authority in order to ensure safety, peace and security of its employees and transit riders when inside the transit properties. Breaches of that charter or “code of conduct” may lead to issuance of violation tickets.

Moreover, transit areas if not properly regulated and monitored could become loci of serious accidents. Fast trains or buses, fast moving public, folks in wheelchairs, the ones lugging along lots of luggage or bicycles, you get my drift. The train lines are electrified. Any mishap could cause somebody their life. You need to put yourself in the shoes of Officer McGuinness and imagine what they have to deal with.

Then we see people with special needs like yourself, as you were in those days, right? [ 19 ] I am mindful of the need perhaps for a new social contract which would enumerate newer human rights as a response to the fast changing world. We live in a society whose economic order is organized on the capitalist structure. There are people who tend to articulate their notion of justice in the terms of rights, using the Universal Declaration of Human Rights as a template. In the aftermath of Nuremburg, we came out with that pretty remarkable document. It is not a binding document, it is not law, but it is a guide.

We were one of its signatories. Sadly, free transit wasn’t one of the rights enshrined in that document. [ 20 ] Riders must pay when taking the train. To tell you the truth, the transit tariff in Vancouver is very reasonable when we compare it with similar systems in countries similar to ours. My personal opinion that has no bearing on these proceedings is that transit should be free and remain inside public ownership. [ 21 ] I am mindful of your current circumstances and the foregoing context. My sentence is going to be twofold.

Number one, I would like to put you on a probation for the period of six months pursuant to s. 79 of the Offence Act . Only one condition apply. That is, you shall obey the transit rules. That means if you do not have money to ride a train, request a free pass. There are phones at every SkyTrain station, you pick up that phone and tell them that here I am, I need help. They will probably help you. [ 22 ] Otherwise, if you are seeing a social worker, or if you are receiving any kind of income assistance under Ministry of Social Services or from federal government advise your social worker of your need for a pass.

I have seen those passes myself in court where somebody's pass has been misused by somebody else, they get charged. If the matter proceed with a trial, transit authorities tend to put that pass before Court as an exhibit. Maybe there are new rule, Officer McGuinness may enlighten us on that. [ 23 ] CONSTABLE McGUINNESS: Yes, Your Worship. As well as the station attendants at any SkyTrain station, as well as the police officers.

So if you need to get on the SkyTrain system and you don't have money, the police have the ability to get you into the system with a courtesy card, and that prevents damage to our gates by people forcing their ways through and the police are very amenable to giving those out to the people in need. [ 24 ] THE COURT: Right. And they do -- I remember there not very long ago, I went to see a buddy in Strathcona. I had forgotten my wallet at home, so I walked from here, but when I was returning home, it was a weekend, it was about 11 o'clock, right? I did not feel like walking, so I thought I'll take a bus.

I automatically thought my wallet is with me, I have that old man orange compass card, right? So I went to take my compass card, but I have none, and the bus driver is looking at me, so I said, "I apologize. I think I don't have my wallet, so I'll just walk." He says, "No, no, no, I'll take you. Where are you going?" So he was very kind, right? I did not have to pay. [ 25 ] There is one feeling that we need to nurture the most in us. It is called gratitude. Feel grateful no matter what. I’m mindful of what has been done to you is beyond description.

I cannot even fathom being in your moccasins and discern how painful is your being. I cannot possibly imagine other than to accept on a human level what you have gone through. So probation is one aspect that you need to deal with. There is no reporting requirement, you do not have to report. The only person that you need to report is yourself. I also want you to know that if there are more cases like this, it will be rather difficult for me to be lenient with you.

[ 26 ] In terms of probation, I will much rather suspend the sentence with fine of with no fine amount specified in case of breach of the one condition I read to you. That means the original penalties that are on the face of the ticket are assumed to be the sentence, but you do not have to pay anything. What you need to do is for six months, hopefully forever, but at least six months, it is a good, short window, that you obey the transit rules, and it looks like you have made an effort today to come to court, right? Your lawyers are very impressed by that and so am I.

So is Officer McGuinness. [ 27 ] It is very nice that you have taken time to be here and it is very nice that you have made efforts to explain to me your circumstances and you have explained that to Mr. Hadley, who was able to articulate those for you. Do not let it go. These opportunities are rare. I am a refugee myself even a minuscule manifestation of kindness, inspires me, right, and I latch onto that. You need to do something like that. You need to look at people and you need to consider yourself as a part of these people's universe.

You are not outside of that. [ 28 ] I understand that colonial experience pushes you out of that, right? But you need to hold on to your ancestry, to our collective present. This is your country, right? We hear every day declarations of unceded lands of First Nations people and all the rest of it. Go out here at art gallery, what do we see? These are painful manifestations of a life.

Can you imagine every day during lunchtime when I go for my lunchtime walk I got re-traumatized by looking at art gallery, all those little Teddy bears and those little shoes and little outfits that kids would wear and remember how many kids were killed, right? Every day I see that, and I am an outsider. My connection with you is only human, right? I experience colonialism, you experience colonialism, but the worst aspect of it. [ 29 ] So your probation begins today. You need to go down to the registry in the same building. Mr. Hadley will walk you down.

They will complete this form and a Justice of Peace will read you that condition. You can sign for it and you will be on your way. Okay? Do not get in trouble, please, especially in the area of transit. [ 30 ] As your brother, as a friend, I can only offer one thing. Try to find yourself. You are there. You are not lost. You are there, but you need to be found. We all go on a furlough. Our life, human condition is so difficult at times that it forces us to go on a furlough.

We take a leave from our own selves, from our own minds, from our own thoughts, from our own beliefs and are values and our desires and our dreams. We put them all in abeyance and we walk away thinking that the path we are walking is the primrose path. It is a very narrow, very short-path. You can get wasted all night drinking nice hooch. The next morning you wake up with a headache, right? It is all gone. The euphoria is now over. [ 31 ] I mean, I cannot lecture you. You have seen life from much closer vantage than I have seen it. You have seen more in life than I can even imagine.

You can lecture me on how to live a good life and I would be grateful to you for that lecture. I consider attention as the most remarkable gift a human can give to another. So if you kindly pay attention to what we have spoken here, you’d earn my gratitude. I think have lectured you enough. [ 32 ] At this point, I believe that given the intervening variables, like your addiction, if those variables are not present, you will be a great electrician, you will be a great human being. Maybe raise a family. You are 53 years old. You are not old. I am old. You are a young man. You still have hair.

There are some people who do not even have hair, right? You need to take charge. All right? And to begin your day by expressing gratitude to Mr. Hadley and Mr. Gervin for their remarkable commitment to you. I am very grateful to UBC's Aboriginal law program and the professors, their students, for being so thoughtful and thoughtfully providing you much needed representation. You could not have afforded a lawyer. They gave you the best of what our society can offer and it is lovely. It is inspiring. [ 33 ] So start your day by expressing gratitude to them. If you have a few coins, offer to buy them a cup of coffee.

Generosity never fails. I mean, nothing is wrong with that. It is beautiful. But before you go, kindly attend the registry downstairs and ask them that I have suspended your sentence. I have placed you on a probation for the period of six months with only one condition is that you have to obey transit rules. [ 34 ] Okay. I wish you all the best and I wish you success, but please move towards success. Do not move towards failure. You can do it. Okay? You have a good day. Do you have any question of me? [ 35 ] THE DISPUTANT: No, sir.

Thank you, Your Honour, for your considerations and, in my opinion, a very excellent last half hour. [ 36 ] THE COURT: Thank you. (REASONS CONCLUDED)