r v. NATHAN FIREMAN-COX, 2022 QCCQ 5382

R. c. Fireman-Cox 2022 QCCQ 5382 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF CHISASIBI “Criminal and Penal Division” Nos.: 614-01-002931-190 614-01-002932-198 614-01-002933-196 DATE: August 9, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE JACQUES LADOUCEUR, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

NATHAN FIREMAN-COX Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ 1. CONTEXT [ 1 ] On November 27, 2020, the accused pleaded guilty to the following charges related to an event that occurred on June 26, 2019: [ 2 ] 614-01-002931-190 On or about June 26, 2019, in Chisasibi, district of Abitibi, did break and enter in a dwelling-house situated at [...] and therein did commit an indictable offence, to wit: a sexual assault, committing thereby the indictable offence provided by section 348(1) b)

d) of the Criminal Code . [ 3 ] 614-01-02932-198 On or about June 26, 2019, in Chisasibi, district of Abitibi, did steal from House [...], panties of a value not exceeding 5000,00$, committing thereby the offence punishable on

summary conviction provided by

section 334b) (ii) of the Criminal Code . [ 4 ] 614-01-002933-196 On or about June 26, 2019, in Chisasibi, district of Abitibi, did, being at large on an undertaking given to before a justice or a judge in the file(s) 614-01-002751-172 and 614-01-002687-198, fail to comply with a condition therein to wit: “Not drink any alcoholic beverages or have them in my possession” while he was bound to do so, committing thereby the offence punishable on

summary conviction provided by section 145(3)

b) of the Criminal Code . [ 5 ] The victim is the mother of a young woman that the accused knew at the time. During the night, the accused was drinking alcohol not very far from the house where the victim was living. He had been drinking quickly with his friends. Now drunk, he decided to go to the house to see A., the young woman that he knew, who is a little bit older than him. [ 6 ] Walking into the house, he found a pair of women’s underwear in the laundry room and decided to take them. [ 7 ] Then he went to A.’s room and slept there for a while, since she was not there. [ 8 ] When he woke up, it was daylight.

He saw somebody in another room and thought that maybe it was A.. [ 9 ] He therefore went into the room, pulled down his pants, and touched the woman on the left thigh. [ 10 ] The woman, who was A.’s mother, woke up and asked him loudly what he was doing there. [ 11 ] Realizing that it was not A., the accused fled from the house. [ 12 ] A couple of minutes later, he was arrested by a police officer, after the victim called the police station. [ 13 ] They found the underwear on the accused and arrested him.

[ 14 ] At the time, the accused was bound by an undertaking prohibiting him from drinking alcohol. [ 15 ] The Crown is asking for a term of imprisonment of six to twelve months, taking into account that the accused has participated in a program with the Justice Committee since he was charged. [ 16 ] The accused proposes a suspended sentence with a probation order and submits that a conditional sentence order is not available for the offence of breaking and entering but is available for the other two charges. 2. THE GLADUE REPORT [ 17 ] A Gladue report has been prepared by Ms.

Marlene Bearskin. [ 18 ] It informs us that the accused is a quiet young man. He lives with his mother and sister in Chisasibi and has never really known his father, who left them when the boy was around 5 years old. [ 19 ] His mother started consuming alcohol after his father left. In 2008, she quit drinking and is still living a sober life today. [ 20 ] The mother was interviewed by the Gladue report writer.

She said she never had any problems with her son, who loved going to school as well as hunting and fishing with his grandparents and other family members. [ 21 ] He was liked in school, and he played sports like basketball, football and hockey. [ 22 ] It seems that the accused changed in 2014. He began acting strangely, sitting alone and smiling and laughing in the house.

He had a hard time sleeping, and one night he went into his mother’s room and asked if he could stay with her and sleep because there were voices in his head. [ 23 ] These episodes got worse, so he was brought to the hospital for a few nights and given medication.

He explained to his mother that the voices he heard were telling him to do something bad or to hurt people. [ 24 ] In 2015, he was sent to the Douglas Hospital in Montréal, where he was diagnosed with schizophrenia. [ 25 ] Currently, the accused rarely goes anywhere where there is a lot of people because he feels that others do not want to be around him. [ 26 ] The Gladue report writer also met with the grandparents and they explained that they knew the accused as a happy young boy who enjoyed going out on the land and hunting and fishing. [ 27 ] The grandparents were in residential schools. [ 28 ] Concerning the personal situation of the accused, he currently needs two credits to finish high school and has been on the Hunters Income Security Program since 2021. [ 29 ] The Gladue report writer made some recommendations to meet with the Justice Committee and participate in a program that the Justice Committee suggests. 3.

THE PRE-SENTENCE REPORT [ 30 ] This report was prepared by Mr.

Kevin Beaulieu. [ 31 ] In that report, it is mentioned that the accused stated that he was raped when he was 6 years old but that it was difficult to explore this event because of the inconsistency of his explanations. [ 32 ] The pre-sentence report also mentions that the accused had good grades and no learning disabilities, and that he started to associate with disreputable people who used cannabis at the age of 14. [ 33 ] While in Secondary 5, he was kicked out of class for his disruptive behaviour and apparently dropped out of school at the age of 17. [ 34 ] His situation appears to have deteriorated towards the end of adolescence.

This seems to have been related to his drug consumption, which also apparently had an impact on his mental health. This period marks the beginning of a series of events during which he faced personal failures, rejection and social exclusion. [ 35 ] The pre-sentence report also states that the accused is apparently sober of all substances since his release from custody. [ 36 ] The writer specifies that his assessment is subject to significant limits that may have influenced his analysis.

He also points out that the young man is facing mental health issues that affect his social functioning and his perception of his situation. [ 37 ] The report also states that “his actions seem impulsive and thoughtless, which would have been fuelled by his distorted beliefs and impaired judgment caused by his alcohol intoxication … and with a substance abuse issue.” [ 38 ] The report finds that the risk of reoffending is high since the accused does not take much accountability for his actions and denies any problems.

However, if he participates in follow-up treatment and opens up about his sadness, the risk could be reduced

significantly. 4. AGGRAVATING FACTORS [ 39 ] In his submissions, the prosecutor insisted on the objective of denunciation, saying the following: And I believe here, it’s denunciation that the Court has to aim at because the Court needs to send a message that we need to protect the castle that is the residence of someone. [1] [ 40 ]

Section 348.1 of the Criminal Code ( Cr.C .) specifically provides that, when breaking and entering is in relation to a dwelling- house, it is an aggravating circumstance when the dwelling-house was occupied at the time the offence was committed. [ 41 ] In fact, what we call “the castle concept” is a principle that has been confirmed frequently and more specifically in Eccles v . Bourque , where we can read the following: For these principles, we go back to vintage common law, to 1604, and Senayne’s Case (1604), 5 Co.

Rep. 91 a; 77 E.R. 194 , in which the principle, so firmly entrenched in our jurisprudence, that every man’s house is his castle, was expressed in these words [p. 195]: “That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose’.

That, then, is the basic principle, as important today as in Biblical times (Deuteronomy 24:10) or in the 17th century. [2] [ 42 ] Although it is still an aggravating circumstance, the Court considers that those specific circumstances have less weight in the case of Indigenous people. [ 43 ] Social, historical and cultural reasons –as well as legal considerations – ensure that the notion of individual property and ownership (land and house) does not have the same value or the same status among Indigenous people as it does with non-Indigenous, European and North American cultures. [ 44 ] That being said, the degree of seriousness of this circumstance can still be high, even in an Indigenous environment, depending on the circumstances. [ 45 ] However, in this case, while recognizing that it is an aggravating factor, the Court considers that it is at low or moderate. [ 46 ] As for the other aggravating factors, apart from those that flow intrinsically from the nature of the charges, the Court adds the vulnerability of the victim, who was sleeping when the crime was committed. [ 47 ] It should be noted that no victim impact statement on the consequences of the crime was produced, despite the steps taken by the prosecution for this purpose. 5.

MITIGATING FACTORS [ 48 ] The mitigating factors far outnumber the aggravating factors.

The Court lists the following: • The accused has no criminal record; • The actions of the accused were fuelled by distorted beliefs and impaired judgment due to alcohol intoxication, as stated by the probation officer, and the accused has been sober since his release from custody; • The seriousness of the sexual assault is at the lower end bottom of the scale; • The accused has already begun his rehabilitation by participating in a Justice Committee program; • The accused pleaded guilty to the charges. [ 49 ] The Court also considers the Gladue factors. In this respect, the Court notes that

section 718.2(

e) Cr. C ., in connection with the Gladue factors, is independent and distinct from the aggravating and mitigating circumstances under

section 718.2(

a) Cr. C . It is therefore not a “simple” mitigating factor, and it should be assigned weight comparable to the other sentencing principles, including for example those concerning parity of sentencing (section 718.2(

b) Cr. C .) and the principle of the totality of the sentences (section 718.2(

c) Cr. C .). [ 50 ] As the Court of Appeal pointed out in Denis-Damée [3] the Court notes that it is not necessary to establish a causal link between the systemic and background factors and the commission of the offence. [4] [ 51 ] Here, the defendant’s grandparents attended residential schools. In addition, the defendant’s father was not present in his life and his mother had problems with alcohol consumption until 2008. [ 52 ] Also, the Gladue report refers to the dramatic impacts and traumas experienced in the past by the community of Chisasibi.

These traumas are related to, among other things, sedentarization, the Indian Act , the imposition of southern Canadian culture, policies of Indigenous assimilation and the residential schools. 6. THE APPROPRIATE SENTENCE

[ 53 ] When rendering judgment in Gladue in 1999, the Supreme Court found that there was a crisis in the Canadian criminal justice system because of the overrepresentation of Indigenous people in prison. At the time the rate was 12%.

In January 2020, that rate reached 30% and, according to the Office of the Correctional Investigator, it is still rising. [5] [ 54 ] The courts have said on many occasions that the rate of imprisonment of Indigenous people is a very serious and persistent problem and that, in addition to recognizing the Gladue factors, it is necessary to give tangible and full effect to them by seeking alternative sanctions to imprisonment. [6] [ 55 ] It is also necessary to consider the effectiveness of a prison sentence in terms of rehabilitation when the offender is Indigenous. [ 56 ] According to a report of the Auditor General of Canada titled Systemic Barriers , Correctional Service Canada has failed to identify and eliminate systemic barriers that persistently disadvantage certain groups of offenders. [ 57 ] More particularly, Indigenous offenders are placed at higher security levels on admission. [7] [ 58 ] Also, more Indigenous offenders remain in custody until their statutory release and are released directly into the community from higher levels of security; they are therefore disadvantaged regarding access to a gradual and structured return to the community under parole supervision before the end of their sentences. [8] [ 59 ] The result is that those offenders are deprived of conditional release, including parole supervision, which has consistently been demonstrated to contribute to an offender’s successful reintegration into his community. [9] [ 60 ] In fact, Indigenous offenders remain in custody longer than other offenders and are released on parole months later than other offenders. [10] [ 61 ] This situation is similar in provincial detention centers. [11] [ 62 ] In Friesen [12] the Supreme Court pointed out the importance of the objective of rehabilitation “because it offers long-term protection ( Gladue , at para. 56 ),” and also that “a community environment is often more favourable to rehabilitation than prison (see Proulx , at para. 16 and 22)”. [13] [ 63 ] And in Gladue , we can read that “[t]hus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals.” [14] [ 64 ] Here, the charge of breaking and entering a dwelling-house and committing a sexual assault therein does not qualify for a conditional sentence.

Counsel for the accused suggests that, if the Court finds that a term of imprisonment is necessary, it could be imposed for the charges of theft and breach of recognizance, which are eligible for a conditional sentence order. [ 65 ] The Court cannot do indirectly what it cannot do directly. [ 66 ] On the other hand, taking into account what was said previously, and considering the preventive detention of 40 days – which is equivalent to 60 days – and the fact that more than 3 years have elapsed since the commission of the offences, during which time the accused has behaved very well, the Court finds that a prison sentence is not necessary. [ 67 ] A suspended sentence, including a probation order for a period of thirty (30) months with the maximum number of hours of community work provided for by law and a curfew for a certain period of time, given that the crime was committed at night, appears to be an appropriate sentence in this case.

FOR THESE REASONS, THE COURT: [ 68 ] ORDERS that the sentence be suspended in the three (3) files; [ 69 ] ISSUES a probation order for a period of thirty (30) months, with the following conditions • Keep the peace and be of good behaviour; • Appear before the Court when required to do so by the Court; • Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation; • Abstain from communication with the victim, either directly or indirectly; • Communicate with a probation officer within five (5) working days after the coming into force of the probation order, and thereafter when required by the probation officer and in the manner directed by the probation officer, for a period of eighteen (18) months; • Communicate with the Justice Committee within five (5) working days after the coming into force of the probation order, and thereafter when required by the Justice Committee in the manner directed by the Justice Committee, for a period of eighteen (18) months; • Follow the instructions of the Justice Committee and those of the probation officer concerning mental health issues, social and emotional vulnerability and sex education;

• Perform two hundred and forty (240) hours of community service within eighteen (18) months as of today, and comply with the terms of performance indicated by the probation officer in collaboration with the Justice Committee: − 614-01-002931-190: 200 hours − 614-01-002932-198: 25 hours − 614-01-002933-196: 15 hours • For the six (6) first months, be at your residence between 10 p.m. and 6 a.m., barring the following exceptions: − To receive emergency medical care for yourself or your immediate family; − To carry on legitimate gainful employment or study; − For any other serious reason, including traditional activities, with the prior written authorization of the probation officer; [ 70 ] COMPLY with the Sex Offender Information Registration Act for a period of twenty (20) years; [ 71 ] AUTHORIZES peace officers to take from the accused the number of samples of bodily substances that is reasonably required for forensic DNA analysis; [ 72 ] ORDERS the accused to collaborate and to provide the said samples of bodily substances; [ 73 ] PROHIBITS the accused from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of ten (10) years. [ 74 ] ORDERS that a copy of this judgment be transmitted to the Justice Committee within a maximum period of ten (10) days. __________________________________ JACQUES LADOUCEUR, J.C.Q.

Mtre Nicolas Bigué and Mtre Marie-Soleil Bouchard Attorneys for the prosecution Mtre Claude Beaudet Attorney for the accused Date of hearing: November 27, 2020 and March 11, 2022