2021 QCCQ 6542, 2021 QCCQ 6542

Translated from the original French R. c. G.L. 2021 QCCQ 6542 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICTS OF: ROBERVAL ABITIBI Criminal and Penal Division Nos.: 155-01-001561-208 and 155-01-001802-214 in Roberval 170-01-000074-202 and 170-01-000284-207 in Chibougamau DATE: July 8, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE PIERRE LORTIE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. G. L.

Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ ORDER [ 1 ] The Court issued an order under s. 486.5 of the Criminal Code ( Cr. C. ), prohibiting the publication or broadcast of any information that could in any way identify the victim, who is the accused’s spouse. [ 2 ] There is no order concerning the accused’s identity. Because personal information appears, however, the Court will use initials in the interests of privacy. LANGUAGE ISSUES [ 3 ] The accused speaks English fluently.

He also speaks Cree and French. [ 4 ] After consulting with the accused, the sentencing hearing was conducted in French. [ 5 ] To make it easier for the accused to understand and because probation supervision will involve English workers in a Cree environment, the Court will ask that this judgment be translated into English. BACKGROUND [ 6 ] The accused is 35 years old.

He pleaded guilty to the following offences (in chronological order): ▪ 170-01-000074-202, in Chibougamau [1] on February 28, 2020: 1) Assaulting his spouse by strangling her. [2] 2) Assaulting a police officer by threatening to use an iron bar. [3] 3) Obstructing the work of a police officer. [4] ▪ 170-01-000284-207, in Chibougamau on September 17, 2020: 1) Failure to report to the police station for the purpose of identification. [5] ▪ 155-01-001561-208, in Waswanipi on December 8, 2020: [6]

1) Being at his spouse’s address while prohibited. [7] 2) Being in his spouse’s presence. 3) Consuming drugs. ▪ 155-01-001802-214, in Trois-Rivières on February 1, 2021: [8] 1) Failing to reside at Maison Carignan during therapy. [9] [ 7 ] Sentencing takes into consideration the fact that the accused is an Aboriginal person and member of the Cree First Nation of Waswanipi. Enacted in 1996, s. 718.2(

e) Cr. C. states that the judge must take into consideration all available sanctions, other than imprisonment, “with particular attention to the circumstances of Aboriginal offenders”. The Supreme Court of Canada analyzed this provision in 1999 in Gladue [10] and in 2012 in Ipeelee . [11] [ 8 ]

Section 718.04 Cr. C. , however, asks the courts to give primary consideration to the objectives of denunciation and deterrence when the offence involves abuse of a vulnerable person, in particular Aboriginal women.

Section 718.201 adds that such attention is given for offences that constitute abuse of an Aboriginal intimate partner. Both these provisions were enacted in 2019. [12] [ 9 ] The present victim, the accused’s spouse, is a vulnerable Aboriginal woman. In this context, the prosecution is of the view that a total sentence of 30 months is appropriate. However, if the Gladue factors are considered, the sentence is 24 months less pre-trial custody, for a balance of 17 months.

This approach has the advantage of including a probation order with conditions: supervision, protection measures for the victim, etc. [ 10 ] The accused, for his part, described his life history and the intergenerational trauma he has suffered. For these reasons, the 7 months spent in custody is amply sufficient. [ 11 ] The prosecution and the accused agree with 3 years’ probation with 2 years’ supervision. Their positions are inconsistent, however, on the measures concerning the victim. The prosecution seeks maximum protection conditions.

The accused notes that he is still in a relationship with the victim, who wants the relationship to continue. In fact, she never wanted to file a complaint. ISSUES First issue [ 12 ] What is the appropriate sentence, after balancing the relevant factors in ss. 718.04 and 718.201 versus s. 718.2(

e) Cr. C. ? To paraphrase the Honourable Leonard Marchand in R. v. C.C.C . , [13] it is difficult because two crises that arise from the same historical factors pull in opposite directions. On the one hand, the circumstances call to denounce and deter domestic violence against a vulnerable Aboriginal woman. On the other hand, the judge must not exacerbate the grotesquely disproportionate rate of incarceration of Aboriginal people. There is no easy solution.

Second issue [ 13 ] What are the appropriate probation measures, in particular concerning a prohibition on consuming substances and future communications with the spouse? CHRONOLOGY OF FACTS AND PROCEEDINGS [ 14 ] On February 28, 2020, Chibougamau police officers received a call concerning a violent quarrel between a couple in an apartment. It was reported that the accused was beating his spouse. When the police arrived, the door was open and they saw the accused in the midst of strangling his spouse, who was gasping for air. They told the accused to release her. He did not.

He was staring at the victim in the eyes. An officer intervened to free her from his grasp. He had to bring the accused to the ground. The accused resisted, grabbed an iron bar, and advanced threateningly toward the officer, who had to use pepper spray. The accused was finally restrained. Police met with the victim, but she did not want to file a complaint or make a statement because it was apparently the first time the accused had been violent. She said that he had taken a lot of cocaine, that he had powder all over his face, and that he had totally lost his mind. She added that his behaviour was not normal.

He was hallucinating and wanted to throw people out of the apartment, even though the couple was alone. [ 15 ] The accused was charged with assaulting his spouse, assaulting the police officer, and obstructing the work of a police officer. He was then released with various conditions, including not to be at his spouse’s address or in her presence, and not to possess or take drugs. [ 16 ] The accused then failed to report to the police station for fingerprinting. [ 17 ] On December 8, 2020, neighbours reported another altercation between the accused and the spouse.

The police intervened, but the spouse refused to file a complaint. The accused was clearly intoxicated. Moreover, he was prohibited from being in his spouse’s presence. The accused was charged with breaching his release conditions. [ 18 ] After a hearing before a judge, the accused was sent to Maison Carignan in Trois-Rivières for treatment. After staying there for a few days, on February 1, 2021, he escaped and returned to Chibougamau, where he was arrested.

He has been in custody ever since. [ 19 ] On March 4, 2021, the accused pleaded guilty before this Court, which ordered a Gladue report and a pre-sentence report to be prepared.

[ 20 ] Marjorie Icebound, Community Reintegration Officer in Waswanipi, prepared the Gladue report. [ 21 ] Julie Painchaud-Rivard, a probation officer with the Direction des services professionels correctionnels in Saguenay-Lac-Saint- Jean, prepared the pre-sentence report on an Aboriginal offender. [ 22 ] Sentencing submissions were presented on May 28, 2021. The Court took the case under advisement. PROFILES OF THE COMMUNITY AND THE ACCUSED [ 23 ] Both reports draw a full picture of the Waswanipi community and the accused.

The Court has also consulted a text by historian Jérôme Morneau entitled “Historiques des communautés autochtones du Québec pour servir à la rédaction des rapports Gladue”, which deals specifically with Waswanipi. [14] Below is a

summary. Waswanipi [ 24 ] This Cree community is located 154 kilometres west of Chibougamau and has approximately 2,500 inhabitants. In 1978, it was recognized as a reserve. [ 25 ] Members were traditionally nomadic and engaged in the following activities over a large territory not limited to the current reserve: hunting, fishing, trapping, and gathering. [ 26 ] They gradually become sedentary following contact with the Europeans, which disrupted the traditional way of life. The Hudson’s Bay Company set up trading posts, and the Cree endured the ups and downs of the fur trade, which collapsed around 1930.

Part of their territory was also flooded during the hydroelectric development in the 70s, displacing the population.

In addition to the impact on displacements, fauna, and fishing, this loss had cultural and psychological repercussions. [15] The 1975 James Bay and Northern Québec Agreement had both a positive (e.g., land protection, financial compensation, services) and a negative (e.g., way of life, social changes) impact. [ 27 ] Under federal assimilation policies, between the 1940s and 1970s, children were torn from their living environments and sent to residential schools, primarily in Ontario. [ 28 ] As related by historian Morneau: [ translation ] “former students and subsequent generations have suffered many consequences, including alcoholism, drug addiction, domestic violence, sexual harassment, suicidal tendencies, criminal behaviour, and dropping out of school.

These consequences were acknowledged by the Royal Commission on Aboriginal Peoples (1996) and the Canadian government, who signed the Indian Residential Schools Settlement Agreement (2007) and apologized (2008). In 2015, the Truth and Reconciliation Commission of Canada concluded that the residential schools were a tool for the cultural genocide of Indigenous peoples. [16] The Court of Appeal in Denis-Damée cited with approval the Commission’s conclusions. [17] Accused [ 29 ] His parents suffered the consequences of all this upheaval. They developed serious substance abuse issues.

There was also domestic violence. [ 30 ] The accused, who is the eldest of six children, was exposed to the violence and substance use and was also sexually abused by a close family friend. The children were left to their own devices. The accused was placed in a foster family when he was 9 years old and experienced housing instability. [ 31 ] During a certain period, he trafficked drugs for his father. He also had serious behavioural problems. He started fires with a lighter and was cruel to animals. Later, he self-mutilated and attempted suicide.

He was prescribed drugs for his mental health issues (bipolar disorder, anxiety). [ 32 ] School was marked by bullying and violence. He stagnated at the presecondary level. [ 33 ] He started drinking and using drugs at a very young age. He also sniffed gas. He hallucinated when he consumed substances. He started treatment that he was unable to complete. [18] He currently has a drug debt of $50,000, which makes him vulnerable to reprisals by his dealer. [ 34 ] Now an adult, he cannot hold a job due to his substance abuse.

For the past two years, he has been participating in a program whose purpose is to perpetuate Aboriginal traditions. He goes into the forest and practises trapping. [ 35 ] He had a child with his first spouse. That relationship was affected by drug use. He hit and raped his first spouse, which in 2005 led to a federal sentence of 27 months. The victim had become an outlet for all of his misfortunes. [ 36 ] He began a second relationship and had two children. [ 37 ] For the past three years, he has been in a relationship with the present victim, who wants to remain in the relationship.

CRIMINAL RECORD [ 38 ] Attached as a

schedule to this judgment is a list of his prior convictions. [19] The probation officer summarized the accused’s circumstances as follows: [ translation ]

... his criminal record began in 2003, when he was 17 years old, with a theft charge for which he was sentenced to probation and 60 hours of community work, which he did not perform, according to the notes attached to the federal record. His adult record began as soon as he reached the age of majority. It includes primarily offences against the person and against property, and reveals that he has great difficulty complying with court conditions.

More specifically, it includes robbery, sexual assault, assault (2 counts), domestic assault (2 counts), assaulting a police officer, gross indecency, theft (4 counts), breaking and entering (2 counts), mischief, conspiracy, possession of narcotics, breach of undertaking (4 counts), breach of recognizance (19 counts), and breach of probation (11 counts).

To date, he has been sentenced to custody, including a federal term of 27 months in 2005, probation with or without supervision, community work, a 10- year firearms prohibition, the taking of a DNA sample, and registration in the sex offender register for 20 years, a donation, costs, and a victim surcharge. ANALYSIS AND DECISION [ 39 ] The accused admits that he assaulted his spouse by strangling her. He further admits that he assaulted a police officer by threatening to use an iron bar while committing obstruction.

Last, he admits that he breached his release conditions by communicating with his spouse and by ending his therapy early. [ 40 ] What is the appropriate sentence? [ 41 ]

Section 718 Cr. C. sets out the general objectives of sentencing: to denounce, to deter, to separate offenders from society where necessary, to assist in rehabilitation, to provide reparation for harm done, and to promote a sense of responsibility through the acknowledgement of harm done.

Section 718.1 Cr.

C. adds this fundamental principle: the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 42 ] That being said, the aggravating factors are: 1) The maximum sentence for assault by strangulation and assault with a weapon against a police officer is 10 years, which reflects the objective gravity. 2) The Criminal Code codifies certain factors with respect to the spouse: 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. 718.2(a)(ii) … the offender, in committing the offence, abused the offender’s intimate partner …. 718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims . [20] 3) The circumstances here are particularly troubling.

The accused assaulted his spouse in their apartment, somewhere she could expect to be safe with a trusted person. Furthermore, the accused threatened the police officer with an iron bar and obstructed his work. 4) He has prior convictions, including a 27-month sentence in 2005 for domestic violence involving another spouse. 5) According to the pre-sentence report, despite the opportunity for therapy, the accused has not turned his life around. This aggravating factor cannot be granted its full effect, however, as the accused submits. One, he has a serious drug addiction, exacerbated by a mental health issue.

Two, he was not offered therapy based on his Aboriginal culture. 6) The spouse has not filed a victim impact statement. It may be inferred, however, that she was adversely affected by the assault. 7) Overall, the pre-sentence report is unfavourable and identifies weak insight and certain distortions.

As long as the accused does nothing to change his life, there is a risk of violent re-offending. [ 43 ] The Court accepts the following mitigating factors: 1) The accused pleaded guilty, thereby admitting his wrongdoings and sparing his spouse a painful trial. 2) According to the Gladue report, the accused is a nice man when sober. He wants to heal his past, forgive himself, and ask forgiveness from those he has hurt in his life. He is now ready to commit to the process because he realizes that he has lost control over his life and is unfortunately repeating what he witnessed in his youth.

He wants to participate in a traditional healing program where he can speak with an elder of the community. 3) The accused’s painful past mitigates his moral blameworthiness. This factor will be further developed below. [ 44 ] What is the impact of the accused’s intoxicated state during the commission of the offences?

The Court of Appeal in Régimballe found that, in violent crimes, intoxication is generally considered an aggravating or, at most, a neutral, factor. [21] To paraphrase authors Parent and Desrosiers, it is easier to forgive an inexperienced young person who commits an offence while intoxicated than someone who has been consuming for years and who keeps committing violent acts. [22] The Court of Appeal reiterated these principles in September 2002 in L.P. [23] The accused here cannot ignore the fact that he becomes violent when intoxicated. [ 45 ] Under s. 718.2(

b) Cr. C. , the Court must take into consideration the principle of parity of sentencing, whereby “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

[ 46 ] Over the years, the courts have imposed punishments and thus created ranges of sentences to encourage parity. [24] As the Supreme Court stated in Lacasse , [25] these ranges reflect all the principles and objectives of sentencing. They are a

summary of the minimum and maximum sentences imposed in the past, which serve as an application guide depending on the case. However, the ranges are not straitjackets. They should instead be seen as historical portraits for the use of sentencing judges, without any absolute rule.

Above all, it must not be forgotten that “[t]he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation.” [26] Balancing the various factors can lead the judge to disregard the ranges without it necessarily being an error. [ 47 ] In domestic violence matters, as the Court of Appeal stated in F.J. , [27] the courts generally give primary consideration to the objectives of denunciation and deterrence.

The objectives of rehabilitation and a return to society are in such cases placed on the back burner. [28] In Paulino Mercedes , [29] the Honourable Serge Cimon of the Court of Quebec analyzed the issue of domestic violence and recalled that [ translation ] “everyone is entitled to be protected from violence by a spouse, as a stranger would be”. [30] [ 48 ] In Michel , [31] the Honourable Julie Riendeau of the Court of Quebec reviewed the case law and observed that sentences vary from discharges to several years of imprisonment, depending on the mode of prosecution and the circumstances of the case.

The judge added, [ translation ] “This is the very example of the principle that sentences must be individualized”. [ 49 ] What is the situation in Aboriginal matters? [ 50 ] It should be recalled that in 1996, Parliament amended the Criminal Code to add the following in s. 718.2(

e) concerning sentencing: “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.” This provision was part of the Code ’s overall reform to emphasize restorative objectives. [ 51 ] In 1999, the Supreme Court in Gladue [32] noted that the provision was designed to ameliorate the serious problem of overrepresentation of Aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.

The Court developed an approach that takes into account the unique systemic factors and types of procedures which may be appropriate by considering innovative practices. Judges were asked to take judicial notice of systemic factors and of the priority given in Aboriginal cultures to a restorative approach. Judges must try to find an alternative to incarceration [33] based on the “perspectives of aboriginal people or aboriginal communities.” [34] If incarceration is imposed, the length of the term must be carefully considered. [35] [ 52 ] In 2012, the Supreme Court in Ipeelee [36] confirmed the Gladue principles.

It added that judges had significantly curtailed the scope and potential remedial impact of s. 718.2(

e) Cr. C., thwarting what was originally envisioned by Gladue . The Court recalled that courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to affect Aboriginal peoples today. The Court noted that Aboriginal offenders need not establish a causal link between background factors and the commission of an offence. It is also not unfair to impose a different sanction on Aboriginal offenders. This disparity is justified based on their unique circumstances. [37] Systemic and background factors may bear on moral blameworthiness because they may have played a

part in the Aboriginal offender’s conduct. [38] [ 53 ] In 2015, s. 718.2(

e) was amended and now reads as follows: 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. [ 54 ] In 2018, the Court of Appeal in R. c. Denis-Damée [39] applied the Gladue and Ipeelee principles. The accused, an Atikamekw of Opitciwan, pleaded guilty to a reduced charge of manslaughter committed against her father.

The trial judge sentenced her to 6 years. [40] The Court of Appeal intervened and reduced the sentence to 2 years, taking into account a Gladue report that described the systemic and background factors that lessened the degree of moral blameworthiness. [ 55 ] The judgment of the Court of Appeal in L.P. [41] warrants particular attention. [ 56 ] In that case, the accused pleaded guilty to various offences against his Aboriginal spouse, including aggravated assault and forcible confinement in 2012 (crimes reported in 2018), assault with a weapon, assault causing bodily harm, and aggravated sexual assault in 2018.

The accused, aged 31 in 2019, had a major substance abuse problem and prior convictions for violence. [ 57 ] At trial, the prosecution asked for a sentence of 6 years. The accused proposed 44 months. In both cases, pre-trial custody had to be deducted. The trial judge identified several Gladue factors and took into account the accused’s intoxicated state at the time of the offences. On that basis, she imposed a total sentence of 2 years less a day. She also deducted 199 days for a net sentence of 17½ months. [42] [ 58 ] The Court of Appeal rendered its decision on September 25, 2020.

Ruel and Gagné JJ.A. decided to intervene on appeal. Thibault J.A. dissented and would have upheld the presumptive sentence. [ 59 ] Ruel J.A. noted that the trial judge erred in law by failing to consider the vulnerability of the Aboriginal female victim, by minimizing the risk of re-offending, and by considering the intoxication to be a mitigating factor. For these reasons, he felt that a sentence of 44 months was justified, less pre-trial custody of 492 days, [43] for a net sentence of 16.4 months.

Gagné J.A. agreed. [ 60 ] Thibault J.A. felt that the sentence respected Gladue and Ipeelee , even though it was lenient. [ 61 ] The three judges referred to ss. 718.04 and 718.201 Cr. C. in the wake of the National Inquiry into Missing and Murdered Indigenous Women and Girls and the Supreme Court’s decision in Barton expressing its concerns about violence against Indigenous women. [44] These women are therefore victims twice over. First, due to the violence against them, and second, due to colonial policies and systemic discrimination. [45]

[ 62 ] How do the Gladue factors apply? [ 63 ] Ruel J.A. acknowledged that it was difficult to balance the factors, but that denunciation and deterrence were to be given primary consideration. [46] [ 64 ] Thibault J.A. noted tension between ss. 718.04 and 718.201 and s. 718.2(

e) Cr.

C. [47] In her opinion, this apparent tension was to be resolved every time by taking into account the circumstances of the case, based on the factors in s. 718 (denunciation, deterrence, offence involving abuse of a vulnerable Aboriginal woman, separation, rehabilitation, reparation for harm, sense of responsibility, victim’s vulnerability). [48] In addition: [ translation ] [152] ... the idea of imposing a harsher sentence solely because violent crimes were committed in a conjugal relationship involving a vulnerable Aboriginal victim, without taking into account the fair value of the Gladue factor and all the circumstances of the case, would perpetuate the overrepresentation of Aboriginal peoples in the criminal justice system, a problem that Parliament and the rulings of the Supreme Court have sought to address for many years.

It should be recalled that this tragic situation affects Aboriginal women as much as Aboriginal men. [ 65 ] Moreover, in Qalingo , [49] the Honourable Renée Lemoine of the Court of Quebec reviewed the case law on domestic violence of a certain seriousness. She listed seven judgments that imposed prison sentences varying from 10 to 24 months, for an average of 15½ months and a median of 12 months. [50] [ 66 ] In Qalingo , the accused acknowledged burning his spouse’s cheek with a hot knife. One month later, he bit her and pulled her hair while she was holding a baby.

He threatened to beat her again if she talked back. After balancing the aggravating factors (degree of violence, amused by the victim’s suffering, seriousness of the injuries, prior convictions for acts of violence against the victim) and the mitigating factors (guilty plea, not premeditated, Gladue factors), the judge sentenced him to 4 years.

Such a harsh sentence cannot apply here because Qalingo was more serious. ◊ [ 67 ] To paraphrase the Honourable Jacques Ladouceur of the Court of Quebec, the toolbox is not well stocked when judges impose sentences in Aboriginal cases. [51] [ 68 ] Between the remedial provision of s. 718.2(

e) on the one hand, and the addition of minimum sentences, increased maximum sentences, the addition of aggravating circumstances, and the limit on sentences to be served in the community on the other, the Criminal Code reforms have complicated the task. [52] [ 69 ] In this context, the judge must be innovative and creative, [53] according to the teachings of Gladue and Ipeelee . [ 70 ] In another context, in the Supreme Court’s decision in Proulx , Lamer C.J. wrote the following about sentences: “The type of conditions imposed will be a function of the sentencing judge’s creativity.” [54] [ 71 ] In this light, the Court will try to find a balance between imprisonment and the probation measures tailored to this case.

Presumptive sentence [ 72 ] The prosecution’s suggestion to impose a sentence of less than 2 years, which permits probation, is appropriate. This reflects the Aboriginal perspective described in the Gladue report. [ 73 ] However, the Court does not agree with the approach of imposing a global sentence and then granting a reduction. As stated in Gladue , a sentence is not automatically reduced simply because the accused is an Aboriginal person.

Instead, all the factors must be taken into account and given weight according to the circumstances of the case. [55] In Chanalquay , a judgment of the Court of Appeal of Alberta, Richards C.J. stated that the analysis is an integral part of the reasoning which leads to a fit sentence. [56] [ 74 ] What is the effect of any prior convictions, including the earlier 27-month sentence for domestic violence involving another spouse? As the Court of Appeal stated in Boisvert , [57] a repeat offender must not be “punished again”.

Gradation is not an immutable principle, [58] and a sentence is not automatically increased for a repeat offence. [59] [ 75 ] In this light, after balancing the aggravating and mitigating factors and taking into account the Gladue factors that bear on moral blameworthiness, the Court imposes a total sentence of 18 months less pre-trial custody of 9½ months, leaving on this day a balance of 8½ months . [ 76 ] When computing pre-trial custody, the Court considers the 7 months as of the date of sentencing submissions on May 28, 2021, plus the time served during deliberations. [60] Probation measures [ 77 ] When the term of imprisonment does not exceed 2 years, [61] the Court may direct that the accused comply with a probation order for a maximum of 3 years. [62] [ 78 ] Some conditions are compulsory, including to keep the peace and be of good behaviour. [63] [ 79 ] Others are optional.

Therefore, the Court may order the accused:

(

a) to report to a probation officer: (

i) within two working days, or such longer period as the court directs, after the making of the probation order, and; (ii) thereafter, when required by the probation officer and in the manner directed by the probation officer; (a.1) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order or from going to any place or geographic area specified in the order, except in accordance with any specified conditions that the court considers necessary ; (

c) abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance ; (

h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community . [ 80 ]

Section 732.2(3) Cr.

C. provides that the court may change the optional conditions in the event there is a change in circumstances. [ 81 ] If an accused fails to comply with the order, he or she commits a new offence and is guilty of an indictable offence and liable to a maximum of 4 years of imprisonment. [64] [ 82 ] What are the appropriate conditions in this case? [ 83 ] With respect to the term, the Court accepts the parties’ proposal of 3 years with 2 years’ supervision. [ 84 ] The Gladue report recommends the following optional conditions: [65] 1) Traditional Treatment Program (Waseskun Healing Center) 6 months minimum 2) Supervised Probation 2 Years 3) Land Based Family Circle 4) Followed by Probation Officer 5) Followed by Waswanipi Justice Committee 6) Participate in Cultural and land-based programs recommended by [Justice Committeee] 7) Continue Sessions with the Psychologist Lorraine Spencer *Started sessions via Video Conference 8) Therapy for Trauma with a therapist 9) Participate in Sweat Lodge Ceremonies whenever possible 10) Abstain from using drugs.

Alcohol and attending bars 11) Follow up with an Elder [ 85 ] With the exception of clause 10, the Court agrees with these conditions because they are consistent with Aboriginal restorative values. Indeed, the accused states that he is now ready to invest in programs with the Justice Committee. [ 86 ] Should he be prohibited from consuming drugs or alcohol? [ 87 ] In theory, the answer is yes. In reality, the answer is more nuanced. [ 88 ] The final report of the Viens Commission [66] addresses the issue of release conditions during probation.

It quotes a witness who stated that “not being able to stop drinking is like asking …someone with cancer… to stop having cancer. [67] [ 89 ] Also in the report, breaches of conditions are among the offences most often charged against people residing in Indigenous communities. All this contributes to the revolving door cycle in the courts. [68] [ 90 ] This case involves a mental health issue in addition to drug addiction. [ 91 ] For all these reasons, the Court will not prohibit the accused from consuming.

It is preferable to prioritize conditions to promote rehabilitation and protect the spouse. [ 92 ] What about communication with the victim, who is the spouse? [ 93 ] The prosecution asks the Court to impose the maximum protection conditions: a prohibition on communication and on being in her physical presence, at her home, workplace, or within a certain block. [ 94 ] Counsel for the accused recalls that the parties are not separated and that the victim wants to resume the relationship. She also

refused to cooperate with the complaint process. [ 95 ] In these circumstances, the Court opts for an intermediate solution given that the accused will be receiving many services. [ 96 ] Therefore, he will be prohibited from communicating with the victim or being in her presence unless he complies with his supervision. Specific conditions are set out in the conclusions. In particular, the accused must obtain his probation officer’s prior approval . [ 97 ] This will protect the victim and motivate the accused to rehabilitate himself. ◊ [ 98 ] The accused is at a crossroads.

It is now up to him to prove himself and make the right choices. ◊ CONCLUSION [ 99 ] FOR THESE REASONS, THE COURT : [ 100 ] SENTENCES the accused as follows, to be served concurrently: 170-01-000074-202 1) Assault (strangled victim) 2) Assaulting a police officer 3) Obstruction 18 months (9½ months) 8½ months 6 months 6 months 170-01-000284-207 Failure to provide identification 1 day 155-01-001561-208 1) Breach 2) Breach 3) Breach 3 months 3 months 3 months 155-01-001802-214 Breach 3 months [ 101 ] PROHIBITS the accused, under s. 743.21 Cr.

C. , from communicating, directly or indirectly, with the victim during the custodial period. [ 102 ] ORDERS that the accused be on probation for a term of 3 years , with 2 years of supervision , according to the following conditions: 1) Keep the peace and be of good behaviour. 2) Appear before the court when required to do so by the court. 3) Notify 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 . 4) Report to a probation officer within 48 hours of his release from prison and, thereafter, when required by the probation officer and in the manner directed by the probation officer during the 2 years’ supervision.

Follow the instructions of the officer, particularly regarding any assessment or therapy. 5) Contact the Waswanipi Justice Committee (the Committee) within 48 hours of his release from prison and, thereafter, when required by the Committee and in the manner directed by the Committee during the 2 years’ supervision. Follow the instructions and recommendations of the Committee regarding any therapy, assessment, or traditional and/or community activity. 6) Abstain from being in bars, discotheques or other licensed premises, including restaurants with a liquor licence, except to eat a meal.

7) Take the medication prescribed by his physician according to the prescribed dosage and follow the physician’s recommended treatment. 8) Concerning the victim:

a) Not be in her physical presence, not communicate directly or indirectly with her, or be at her home or her workplace. This clause is the exception if all the following conditions are met: i. The accused complies with the supervision of his probation officer and the Justice Committee. ii. The accused obtains the prior approval of the probation officer or the designated worker, who may determine the terms and conditions tailored to this case (ex.: frequency of meetings and communications, manner, etc.). iii. During every communication or authorized presence, the accused must be sober and remain sober.

b) Not to directly or indirectly bother, follow, spy on, or harass the victim.

c) Not to directly or indirectly refer to the victim using any media, including social media. 9) Sign the order. [ 103 ] ASKS the probation officer and the Waswanipi Justice Committee to cooperate in applying the probation conditions. [ 104 ] ASKS the court clerk to have the judgment translated into English. [ 105 ] ASKS the court clerk to send a copy of this judgment to: ▪ Julie Painchaud-Rivard, probation officer with the Direction des services professionnels correctionnels in Saguenay–Lac-Saint-Jean . ▪ Marjorie Icebound, Community Reintegration Officer in Waswanipi. [ 106 ] EXEMPTS the accused from paying the victim surcharge in each file. [ 107 ] IN FILE 170-01-000074-202, on counts 1 and 2: ▪ PROHIBITS the accused from possessing the firearms described in s. 109(2) Cr.

C. for 10 years for the first category and for life for the weapons in the second category and LIFTS this prohibition under s. 113 Cr. C. so that the accused can hunt and trap in order to sustain himself or his family. ▪ ORDERS the taking of DNA samples under s. 487.051(1) Cr. C. within 90 days of this judgment. __________________________________ PIERRE LORTIE Judge of the Court of Quebec Mtre Marie-Michelle Boulianne-Otis Director of Criminal and Penal Prosecutions Mtre Sébastien Talbot Counsel for the accused Date of hearing: May 28, 2021

SCHEDULE 1 TREATMENT ACCORDING

TO THE PRE-SENTENCE REPORT Taken in charge by social services when he was 9 years old until he was 18 years old. Psychiatric consultations and one hospitalization during adolescence related to suicidal ideas. Psychological assessment and psychosexual services during his federal term in 2005. Therapy at Maison Carignan in September 2011 pursuant to a Court undertaking. He left without permission after two weeks. On September 4, 2018, he was admitted to the emergency room and wanted to go see a NADDAP Worker in Oujé-Bougoumou, but did not follow through.

On August 19, 2019, he was admitted to the emergency room and wanted to take steps to go to detox. Steps were taken to admit him to a drug addiction centre, but he did not follow through. Therapy at Maison Carignan in January 2021 pursuant to a Court undertaking. He left without permission after a few days in the resource. He said that he occasionally participates in traditional activities (sweat lodge) with the justice committee.

SCHEDULE 2 CRIMINAL RECORD FILE COUNTS SENTENCING DATE SENTENCE 615-01-025576-169 348(1)(b)(

e) March 27, 2017 Prison: 90 days 614-01-000022-158 733.1(1)(

a) August 25, 2015 Probation order: 12 months 125 hours C.W. [69] 640-01-033344-145 733.1(1)(

b) November 12, 2014 Conditional sentence Probation order: 12 months with supervision 640-01-033339-145 1) 129(a)(e) 3) 173(1)

b) November 12, 2014 Conditional sentence Probation order: 12 months with supervision 640-01-033436-149 733.1(1)(

b) November 12, 2014 Conditional sentence Probation order: 12 months with supervision 615-01-022534-146 1) 145(3)(a) 2) 145(3)(

b) May 27, 2014 Prison: 6 months Probation order: 12 months with supervision 155-01 000344-143 4(1)(3)(a) [70] May 27, 2014 Prison: 6 months Probation order: 12 months with supervision 170-01-000065-143 145(5.1)(

a) May 27, 2014 Prison: 6 months Probation order: 12 months with supervision 170-01-000064-146 733.1(1)(

a) May 27, 2014 Prison: 6 months Probation order: 12 months with supervision 170-01-000063-148 334(b)(

i) May 27, 2014 Prison: 6 months Probation order: 12 months with supervision 615-01-021417-137 334(b)(ii) May 27, 2014 Prison: 6 months Probation order: 12 months with supervision 640-01-026716-127 733.1(1)(

b) August 20, 2013 Probation order: 10 months 100 hours C.W. 155-01-000563-122 465(1)(

d) June 5, 2012 30 days consecutive (time served) 640-01-022595-111 733.1(1)(

a) August 23, 2011 Donation: $600 Probation order: 6 months

155-01-001511-112 1) 145(3)(a) 2) 145(3)(a) 3) 145(3)(a) 4) 145(3)(

a) October 31, 2011 Prison: 4 months Probation order: 2 years with supervision 155-01-001510-114 344(1)(

b) October 31, 2011 Prison: 12 months Probation order: 2 years with supervision 170-01-000296-110 733.1(1)(

a) October 31, 2011 Prison: 3 months Probation order: 2 years with supervision 170-01-000295-112 1) 145(3)(a) 2) 145(3)(a) 3) 145(3)(

a) October 31, 2011 Prison: 4 months Probation order: 2 years with supervision 170-01-000293-117 334(

i) October 31, 2011 Prison: 2 months Probation order: 2 years with supervision 170-01-000274-117 733.1(1)(

a) October 31, 2011 Prison: 1 month Probation order: 2 years with supervision 170-01-000273-119 334(b)(

i) October 31, 2011 Prison: 2 months Probation order: 2 years with supervision 170-01-000229-103 1) 145(3)(a) 2) 145(3)(a) 3) 145(3)(

a) September 2, 2010 Prison: 30 days Probation order: 12 months 170-01-000228-105 348(1)(b)(

e) September 2, 2010 Prison: 1 day consecutive 170-01-000138-106 1) 145(3)(a) 2) 145(3)(a) 3) 145(3)(

a) September 2, 2010 Prison: 30 days Probation order: 12 months 170-01-000046-101 1) 810 2) 810 September 2, 2010 Term: 12 months 170-01-000045-103 810 September 2, 2010 Term: 12 months 640-01-016755-093 1) 145(5.1)(b) 2) 145(3)(

b) September 29, 2009 Donation: $50 Probation order: 6 months 640-01-017092-090 430(1)(a)(

b) September 29, 2009 Donation: $400 Probation order: 6 months 640-01-010509-058 1) 266(b) 2) 266(b) 3) 145(3)(b) 4) 145(3)(b) 5) 145(3)(

b) August 30, 2005 Prison: 27 months 640-01-009364-044 1) 145(5)(b) 2) 145(5)(

b) August 30, 2005 Prison: 27 months 640-01-009348-047 271(1)(

a) August 30, 2005 Prison: 27 months 640-01-009816-050 733.1(1)(

b) August 30, 2005 Prison: 27 months 640-01-009353-047 266(

b) August 30, 2005 Prison: 27 months 640-01-008064-033 1) 266(b) 2) 270(1)(a)(2) (

b) May 17, 2004 Suspended sentence 30 hours C.W. Youth record Theft 2003 60 hours C.W.