r v. MARION ESAU, 2020 QCCQ 5044

R. c. Esau 2020 QCCQ 5044 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF VAL-D’OR “Criminal and Penal Division” No: 614-01-002980-197 DATE: October 1, 2020 ______________________________________________________________________ BY THE HONOURABLE JACQUES LADOUCEUR, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v. MARION ESAU Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ 1.

BACKGROUND [ 1 ] On July 29, 2019, the accused, Marion Esau, a 54-year-old Aboriginal woman from the Cree First Nation, pleaded guilty to charges of having, on July 10, 2019 , trafficked in cocaine and having had cocaine in her possession for the purpose of trafficking. [ 2 ] The parties filed a

summary of the facts setting out the following: (

a) On July 10, 2019, in Waskaganish, police officers executed a telewarrant to search an automobile, which happened to be a taxi; (

b) During the interception and search, the accused was inside the vehicle, as was the taxi driver and two other people; (

c) The search of the vehicle yielded 47.9 grams of cocaine in bags located behind the driver’s seat, two scales, and other items related to the consumption and sale of drugs; (

d) The accused gave a statement to the police acknowledging that the cocaine seized belonged to her; she also acknowledged selling drugs in Waskaganish; (

e) She admitted that she could sell a bag of 7 grams of cocaine for $400; (

f) She said that she took full responsibility for her actions and declared that the other occupants of the taxi were not involved in her activities. [ 3 ] When the guilty pleas were entered, the parties asked that a presentence report and a Gladue report be prepared. [ 4 ] After these reports were received, counsel made their submissions on sentencing. [ 5 ] The prosecution asked for a sentence of 12 to 15 months of imprisonment and between 18 months and 2 years of supervised probation. [ 6 ] The defence is of the view that a suspended sentence or an intermittent prison sentence of 90 days followed by 3 years of probation would be sufficient. 2.

ISSUE [ 7 ] What is the appropriate sentence? 3. THE PRESENTENCE REPORT AND THE GLADUE REPORT [ 8 ] The accused is the second-youngest child in a family of 11 children from the same biological parents. The parents and her older brothers developed problems with alcohol, and drinking parties frequently took place at the home, often involving fights and violence. [ 9 ] During these events, the accused was frightened, and she and her younger brother would hide in their room or under the bed. [ 10 ] Because of the drinking and the violence, one of her brothers committed suicide at the age of 14.

The accused was 11 years old at the time, and she was marked by this event. Indeed, they heard the gunshot that he fired to kill himself.

[ 11 ] Through the years, other members of her extended family also committed suicide. [ 12 ] The accused does not really have any good memories of her childhood, since her mother did not raise all the children. Some were sent to a foster family in Moose Factory, while others were raised by the grandmother. Four of her brothers and sisters were sent to the same residential school in Moose Factory that her father had attended. [ 13 ] She remembers violence at home, including an incident during which her father attacked her mother with an axe, striking her hand and head.

She had to be hospitalized for a long time. [ 14 ] After living in Moose Factory until she was 12 years old, the family moved to Waskaganish. [ 15 ] For family activities such as camping or fishing, the parents would bring the boys along, but not the girls. [ 16 ] Furthermore, the family followed a traditional lifestyle, placing little emphasis on schooling.

Her father and several members of her family attended Indian residential schools. [ 17 ] Because her parents are Pentecostal, the accused could not really fully develop during her adolescence, and her mother was the one who chose her future husband, an uneducated man who lived primarily in the woods. She was 16 years old at the time. During her marriage to this man, who was two years older than her, the accused had four children.

She was isolated during that period, and the only places she visited were her grandparents’ homes. [ 18 ] During this forced marriage, her husband saw other women and went out every weekend. She did housework at home until she found a job at a store in Waskaganish. Her husband, who is the one who made the decisions, allowed her to work, but he constantly called her at the store. On a few occasions, she went to work with visible marks of violence and felt humiliated.

She finally decided to quit because her injuries were increasingly frequent and apparent. [ 19 ] During her marriage, the accused experienced several forms of abuse, including sexual – her husband would force her to have intercourse – physical, psychological, and financial. [ 20 ] Her mother-in-law also took her son away. She was not able to raise him because her mother-in-law claimed that she had adopted him, although that was not true. [ 21 ] Isolated, friendless, and unable to see even her parents, she considered suicide. Finally, however, she found the courage to leave her community and go to Val-d’Or.

When she decided to leave her husband, his parents took her baby girl away from her. [ 22 ] Therefore, when she left her husband, she also had to leave her children behind. She went to social services for help, but did not receive any. [ 23 ] In Val-d’Or, she lived in fear of her husband finding her. Ultimately, he did find her and beat her. She then moved to Montreal, where she was homeless. Her substance abuse problems worsened. [ 24 ] In 2000, she met another man, with whom she had a relationship for seven years. Violence was a fact of life.

At one point, he hit her with a golf club while she was lying down, striking her between her ear and jaw and then strangling her until she lost consciousness. On another occasion, while they were at a camp, he beat her so hard that she had to be taken to the hospital in a sled. She was hospitalized for two weeks. [ 25 ] She met her current spouse in 2011. [ 26 ] At first, they had serious substance abuse issues. Although their relationship is not violent, they were homeless. [ 27 ] Four years ago, her spouse learned that he had diabetes.

That was when the accused stopped using drugs. [ 28 ] Because her spouse had numerous health problems, it was primarily the accused who took care of him and accompanied him to Montreal when he had to go for treatment. [ 29 ] The accused has a criminal record going back to 1999, when she was 34 years old. Her prior offences are related primarily with her periods of homelessness and substance abuse.

The offences were mostly assault, threats, and theft, and they resulted in occasionally supervised probationary sentences, community work, and fines. [ 30 ] While the reports were being prepared, she volunteered to prepare meals at Chez Willie, a homeless shelter in Val-d’Or, when she did not have to take care of her spouse. [ 31 ] According to the probation officer, the accused accepts full responsibility for her actions.

She acknowledges that her actions have caused harm to her community and, for certain individuals, have contributed to drug addiction. [ 32 ] The probation officer adds that the accused has shown a good capacity for introspection and an acceptable degree of empathy, both for her community and individually, such that she characterizes her degree of awareness to be relatively high. [ 33 ] She states that the accused’s actions seem to be the result of her personal history.

They were not based on any delinquent values, but arose instead from financial reasons and an inability to draw boundaries. [ 34 ] In the probation officer’s opinion, the accused must take

part in various treatment and programs to heal the wounds caused by her past life. Failing this, the risk of reoffending will increase in the future. [ 35 ] The author of the Gladue report emphasizes that the accused will begin a process of healing. The accused is worried about her

husband if she is sent to prison. She is also worried about her daughter, who needs support for mental health issues. Her daughter sometimes gives her some respite by helping her take care of her son, who is epileptic and an alcoholic. [ 36 ] As for her connection with the community in Waskaganish, the accused states that approximately 75% of the population is Pentecostal and that she is therefore not very welcome there because she left her husband. Before her arrest, she would go there for about one week during the summer every year.

According to the author, access to therapy would be easier in Montreal, which offers more options, support, and services. [ 37 ] Considering the many Gladue criteria and the accused’s current situation, the author is of the view that, while deterrence may be achieved with a custodial sentence, no services would be available to help the accused with her trauma caused by the sexual and physical abuse she has suffered. The author therefore suggests several restorative justice measures that could be imposed on the accused. 4.

POSITIONS OF THE PARTIES, AGGRAVATING FACTORS AND MITIGATING FACTORS [ 38 ] The prosecution justifies its request for 12 to 15 months’ imprisonment primarily on the following grounds: • The accused no longer lives in the community and has lived in the urban centre of Val-d’Or for nine years; • Her motivation was greed and a desire to make money; • She is aware of the problems relating to drug use, she herself having been a victim; • She abused the trust of the people to whom she sold drugs; • Drug use has caused many problems in the communities, and the focus should therefore be on denunciation and deterrence. [ 39 ] Counsel for the prosecution admits that the evidence does not justify charging the accused for offences other than those of July 10, to which she has pleaded guilty. [ 40 ] He acknowledges that the accused has suffered because of the tragic ordeals she has experienced, but he feels that a message must be sent to the community. [ 41 ] He adds that were it not for the considerations that must be made under Gladue , he would have sought a penitentiary sentence. [ 42 ] Regarding the fact that the accused lives in an urban centre, the Court finds that this has no impact. [1] [ 43 ] Counsel for the accused states the following: • She made an incriminating statement in which she admitted everything and took full responsibility; • She pleaded guilty at the first reasonable opportunity; • She has sincere remorse; • She acknowledges the harm she has done to the community; • She is invested in healing and in her rehabilitation, she displays an open mind, and she is prepared to take

part in therapy; • She takes care of her spouse on a full-time basis and helps to care for two of her children; • Her moral blameworthiness is greatly reduced in light of the many Gladue factors. [ 44 ] Counsel for the accused also notes that the accused was detained between July 10 and 27, 2019, and that she has since signed a recognizance with which she has fully complied. [ 45 ] He also states that her reason for trafficking in narcotics in her community was to prevent users from taking poor-quality drugs.

The Court considers that this is illogical and immature reasoning on the accused’s part. [ 46 ] Finally, the Court notes that the accused, as an Aboriginal woman, had been victim of violence as it has been discussed in The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls , Ottawa, 2019.

In fact, she had to flee from her community and also from Val-d’Or to live in Montréal because she wanted to escape from her violent spouse. [ 47 ] In a recent judgment, the Honourable France Thibeault, J.C.A., “note from these sources [2] that Aboriginal women are doubly affected by the colonial policies and systemic discrimination that Aboriginal people have faced for decades”. [3] 5.

ANALYSIS AND THE APPROPRIATE SENTENCE [ 48 ] The objectives of sentencing are denunciation, individual and collective deterrence, the separation of offenders from society where necessary, rehabilitation, reparations for harm done to victims and to the community, and the promotion of a sense of responsibility in offenders, in particular through the acknowledgement of the harm they have caused. [4]

Section 718.2 Cr. C . sets out the principles of sentencing. The fundamental principle in

section 718.1 Cr. C . states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 49 ] Without setting aside the other principles of sentencing, the Court notes the importance of the principle in

section 718.2(

e) Cr. C . whereby, in cases involving Aboriginal offenders, consideration should be given to all available sanctions other than imprisonment

that are reasonable in the circumstances and consistent with the harm done to victims or to the community. This principle, as it relates to Aboriginal offenders, is subsumed to a certain extent by the fundamental principle in

section 718.1 Cr. C . because it concerns the moral blameworthiness (or responsibility) of the accused. [ translation ] 160. More specifically concerning the sentencing process, it must take into account the gravity of the offence, the degree of responsibility of the offender, and the unique circumstances of Aboriginal offenders . The result: [ translation ] “Some traditional functions of sentencing that are particularly valued in Western societies must yield to the objective of corrective justice, which is favoured by most Aboriginal communities”.

To be “just”, a sentence must not merely correspond to the gravity of the offence and the degree of responsibility of the offender, but also to the unique circumstances of Aboriginal offenders , first on the list of which are traditional conceptions of sentencing that emphasize “the healing and restoration of both the victim and the offender”. [5] (Underlining and bold added.) [ 50 ]

Section 718.2(

e) Cr. C. is therefore of fundamental importance to the sentencing of an Aboriginal offender. It must be manifested concretely in the sentence that is imposed, because of the high value accorded to this principle and the dramatic overrepresentation of Aboriginal offenders in prisons.

As Lortie, J.A. stated in Awashish , [ translation ] “ specific attention must be paid to Aboriginal offenders ”. [6] (Emphasis added.) [ 51 ] Recently in Denis-Damée , the Court of Appeal faulted the trial judge for emphasizing the significant gravity of the offence in order to find that the Aboriginal offender had a high degree of responsibility.

Thus, the judge [ translation ] “completely failed to make the connection between the systemic and background factors and ... moral culpability”. [7] Doing so means limiting oneself to [ translation ] “the relationship between the gravity of the offence and the degree of moral blameworthiness, without considering the Indigenous context inherent to the systemic and background factors.” [8] [ 52 ] The Court of Appeal noted the exponential spike in the statistics regarding imprisoned Aboriginal offenders: [ translation ] [95] In Ipeelee , LeBel J. referred to the statistics establishing that the overrepresentation of Indigenous offender in the criminal justice system has only increased in recent decades and is worse than ever.

In 1999, Indigenous persons made up 12% of all federal admissions, while in 2005, they accounted for 17% of Canadian inmates . [96] In 2015, Indigenous inmates represented 24.4% of the total federal custody population.

In the ten year period between 2005 and 2015, the Aboriginal inmate population increased by more than 50% . (A nnual Report of the Office of the Correctional Investigator 2014- 2015, Government of Canada, at 36 .) (Emphasis added.) [ 53 ] Currently, in 2020, this proportion has reached 30% in both penitentiaries and provincial prisons. [9] [ 54 ] The Court of Appeal continued: [translation] [97] The situation of incarcerated Indigenous women should also be noted, as it is even more troubling than that of Indigenous men .

Over the same period, from 2005 to 2015, the number of Indigenous women inmates has doubled, with Indigenous women representing 35.5% of all federally sentenced women inmates.

In 2016-2017, they represented 37% of all federally sentenced women inmates [98] In other words, Indigenous women are even more overrepresented in penitentiaries than are Indigenous men. (Emphasis added.) [ 55 ] According to the Office of the Correctional Investigator of Canada, “the numbers are even more troubling for Indigenous women, who now account for 42% of the women inmate population in Canada.” [10] [ 56 ] Counsel for the accused submits a few sentencing decisions for narcotics trafficking offences concerning Aboriginal offenders, where suspended sentences were ordered. • R . v .

Geddes , 2018 BCSC 132 [ 57 ] The accused was a 33-year-old Métis man who sold cocaine and heroin to an undercover police officer on five occasions. The accused himself had substance abuse problems at the time of the offences, but he stopped using three years before the sentence was handed down.

He renewed his relationships with the elders in his community. [ 58 ] Several Gladue factors were identified in relation to the accused. [ 59 ] According to the judge, “to impose a prison sentence in these particular circumstances would, in fact, undermine the public confidence in our justice system.” [11] [ 60 ] Finally, a two-year suspended sentence was imposed, with probation including 225 hours of community service to be completed, whenever possible, for the benefit of those suffering the effects of drug addiction in the Métis community. • R . v. McGill , 2016 ONCJ 138

[ 61 ] The accused, a 40-year-old Aboriginal man, father to an 8-year-old child, was found in possession of 300 grams of cocaine (including 167 grams of crack) and $3,000 in cash. He pleaded guilty to a charge of trafficking. [ 62 ] He had had a difficult childhood. At the time of sentencing, he had begun rehabilitation. [ 63 ] A suspended sentence of 30 months, including 6 months of curfew, was imposed. No community work was ordered. • R . v .

Voss , 2014 BCPC 43 [ 64 ] The accused, a 29-year-old Aboriginal man who had a troubled childhood and who was struggling with substance abuse issues, was charged with possession of drugs for the purpose of trafficking. The drugs seized were 22 grams of cocaine and 56 grams of crack. The accused had no criminal record, and he took steps to address his problems. The Court imposed a sentence of 30 months of probation, with the obligation to perform 80 hours of community service and to participate in specific programs. A 15-month curfew was also imposed. • R . v .

Francis-Simms , 2017 ONCJ 402 [ 65 ] The accused was a 25-year-old Aboriginal man, who pleaded guilty to a charge of heroin trafficking and possession for the purpose of trafficking. This was not his first such offence. The Court took note of the intergenerational trauma suffered. The offence was committed while the accused was addicted to the drug. Following a sentencing circle, a joint suggestion was made and was confirmed by the Court.

The accused was given a suspended sentence of 12 months, during which he had to follow intensive therapy and rehabilitation. [ 66 ] Obviously, several aspects of these judgments are similar to the case before us, while others can be distinguished. Here the Court emphasizes that the accused did not commit the offence to meet her own needs in a situation of drug addiction.

Although this point does not weigh in her favour, the fact nevertheless remains that a consideration of the circumstances – that is, the gravity of the offence, the degree of responsibility of the accused, and the unique circumstances of the Aboriginal offender – do weigh in favour of a suspended sentence.

The accused’s life has been harrowing because of circumstances directly related to her status as an Aboriginal person and due to systemic and background factors. [ 67 ] The Court notes that it has a duty to consider the circumstances that are unique to Aboriginal offenders (and even more serious for Aboriginal women) and that, “[t]herefore, application of the Gladue principles is required in every case involving an Aboriginal offender”. [12] (Emphasis added.) [ 68 ] A suspended sentence is possible only if the Court does not order imprisonment or a fine.

Put simply, a single day of imprisonment or a fine of a single dollar would rule out a suspended sentence. [ 69 ] In Harbour c. R . , [13] Vauclair J.A. stated the following: [ translation ] [88] Moreover, a suspended sentence must be accompanied by a probation order that may last up to three years. In R. c. Brunet , 2016 QCCA 2059 , this Court noted that a suspended sentence ordered under s. 731(1)(

a) Cr. C . includes a mechanism whereby the suspension may be revoked at the request of the Crown if the offender commits a new offence, including a failure to comply with the probation order within the meaning of s. 733.1 Cr. C ., and any sentence that could have been imposed if the passing of sentence had not been suspended may now be imposed: s. 732.2(5) Cr. C .

It is an effective measure . (Emphasis added.) [ 70 ] Before that, with regard to denunciation and general deterrence, Vauclair J.A. wrote: [ translation ] [83] Moreover, I note that denunciation and general deterrence are vague objectives that can quickly lead to disproportionate sentences if they are not weighted with care .

While recognizing their general usefulness, the Court has on more than one occasion noted the uncertain and limited nature of the objective of general deterrence. (Emphasis added.) [ 71 ] Finally, he stated the following (in connection with a discharge sentence): [ translation ] [91] A discharge under s. 730 Cr. C. is applicable in the case of any offence except one subject to a minimum sentence or punishable by fourteen years or more of imprisonment, and it is in no way an exceptional measure. ... [92] The measure is even possible when the crime can be characterized as a “scourge”.

I readily adopt as my own the remarks of the Honourable Judge Rothman in R. v. Moreau [14] , whereby even when the crime is highly prevalent in the community, general deterrence is merely one concern and each case must be examined on its own merits. (Emphasis added.) [ 72 ] The Court finds that these remarks are also relevant to suspended sentences. [ 73 ] Also, in R. c. Bercier , the Court of Appeal of Quebec notes that a suspended sentence [ translation ] “is consistent with the

philosophy of restorative justice”. [15] [ 74 ] Consequently, the Court finds that a suspended sentence of 36 months with restorative justice measures to be more fully described in the disposition is an appropriate sentence.

FOR THESE REASONS, THE COURT: [ 75 ] SUSPENDS the passing of the sentence; [ 76 ] ORDERS that the accused be released on the following conditions in a probation order for the duration of three (3) years: • Keep the peace and be of good behaviour; • Appear before the Court when required to do so by the Court; • Notify the probation officer of any change of address, phone number, employment or occupation; • Report or communicate with a probation officer within two (2) working days and thereafter, as required by the probation officer and in the manner directed by the probation officer; • For the first year of the probation order, be at your residence between 10 p.m. and 6 a.m. and answer all phone calls that could be made by the probation officer regarding the respect of curfew, barring the following exceptions: (

a) To receive emergency medical care for yourself and your immediate family; (

b) To carry on legitimate gainful employment; (

c) To undergo therapy or attend appointments at the request of the probation officer and in accordance with the terms determined by the probation officer; (

d) For any other serious reason, with the prior authorization of the probation officer. • Be at your residence in Montréal beginning on October 4 at midnight; • Follow all other advice and recommendations of the probation officer regarding your substance abuse problem as well as your injuries related to your past, including monitoring of all services and participation in all relevant programs provided by the Native Women’s Shelter of Montreal and the Chez Doris shelter in Montreal; • Perform one hundred and eighty (180) hours of community service within eighteen (18) months and comply with the terms of performance indicated by the probation officer or any other caseworker designated by the probation officer; • Under the supervision of the probation officer or any other person or a body designated by the probation officer, write a letter of apology to the community of Waskaganish regarding the offence that has been committed and, with the help and under the supervision of the probation officer, send the said letter in accordance with the terms determined by the probation officer (letter to the Band Council or publication of the letter in the newspaper “The Nation” or any other way), within no more than six (6) months; [ 77 ] RECOMMENDS that community service be done with an organization that helps people (Indigenous people if possible) with drug and/or alcohol addiction problems; [ 78 ] ORDERS the confiscation and destruction of all drugs and items seized; [ 79 ] PROHIBITS the accused from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of ten (10) years. __________________________________ JACQUES LADOUCEUR, J.C.Q.

Mtre Nicolas Bigué Counsel for the prosecution Mtre Samuel Bérubé de Deus Counsel for the accused Date of hearing: June 19, 2020 [9] Office of the Correctional Investigator: Indigenous People in Federal Custody Surpasses 30% –Correctional Investigator Issues Statement and Challenge , https://bit.ly/3gHf1Sz. The 30% in provincial prisons is based on 2018 statistics: Adult and youth correctional statistics in Canada, 2016-2017 , updated 19 June 2018, Statistics Canada, at 5 https://bit.ly/3hUC11g.