) Mr. E. Hachinski, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. D. Kiesman, - v. -, 2013 MBPC 30

2013 MBPC 30 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Mr. E. Hachinski, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. D. Kiesman, - and - ) for the Accused ) JANELLE CORALEE FRANCOIS, ) ) Sentence delivered Accused. ) April 30, 2013 _____ SLOUGH, P.J. (Orally) Dealing with this matter, Janelle Francois is a 20-year-old member of a First Nations community. She has entered a guilty plea on a charge of breach of probation. The Crown recommends a short period of incarceration, 30 days, in addition to time, pardon me, including time already served. Counsel for the accused is seeking a sentence of time in custody.

Ms. Francois' record includes five different groupings of offences commencing in 2009. The most serious charges on the record include assault with a weapon, assault causing bodily harm, and assaulting a peace officer. In addition, there are more than a dozen convictions for breaching recognizance and probation orders. Convictions in 2011 and 2012 resulted in short incarceratory sentences of between 20 and 30 days on the breach of probation and fail to comply charges. The accused is currently on 18 months supervised probation which includes a condition she abstain from the consumption of alcohol.

Although I don't know this, I expect alcohol played a role in many of the offences on her record, and the order that she abstain is an appropriate one in the circumstances. Dealing with the circumstances of this offence, on April 25, 2013, the accused was at the Portage Place Mall and was described as being heavily intoxicated. I should have noted that she's been out of custody since December of 2012. She was described by police as being belligerent. After being arrested, once the conditions of her probation order were discovered, she was detained and has spent the last six days in custody.

Yesterday, she appeared before me and made a bail application. I indicated to counsel that due to her recent history of failing to comply with court orders, I would not consider release. Based on the representations made by the counsel that the accused is currently enrolled in adult education, I asked him to confirm that fact and today he did confirm that she, in fact, is taking courses thereby furthering her education. Today a guilty plea was entered. Notwithstanding her significant record, in my opinion this accused is not without potential. She's attempting to upgrade her education.

She had been seeking to enrol in a culinary arts school but due to her arrest was unable to attend for an interview. And she's previously volunteered at the Behavioural Health Foundation. Clearly, she is motivated to rehabilitate herself. People like Ms. Francois form a significant portion of the individuals appearing in Canadian courts. The Adult Court Criminal Survey, Canadian Centre for Judicial Statistics, Statistics Canada 2011: indicates that 21 percent of all cases in adult court are administration of justice offences.

Administration of justice offences include failure to appear in court, unlawfully at large, failure to comply with a court order, and breach of probation. Nor is the use of short incarceratory sentences in response to these offences unusual. In Canada, 55 percent of all custodial sentences are 30 days or less. Sentences of six months or less comprise 80.4 percent of all custodial sentences imposed upon men and 91.2 percent of all sentences imposed on women: Adult Criminal Court Survey, Canadian Centre for Judicial Statistics, Statistics Canada 2011.

While these individuals form a significant portion of the workload of the criminal justice system, in many ways they are virtually invisible. Short sentences rarely attract appellate review. Instead, accused like Ms. Francois are part of a group of individuals who are

constantly in and out of remand centres and jails. At times, there may be valid reasons for imposing short sentences including specific deterrence or the need to stop a pattern ofbehaviour such as drinking or the use of drugs in the hope that rehabilitative measures such as probation can take hold once the personhas dried out. Experience and interaction with Probation and Corrections in Manitoba suggests that custodial sentences of less than six months, letalone one month, do not provide an adequate opportunity for programming while incarcerated.

Accordingly, rehabilitation throughtreatment while in custody is not a compelling rationale for sentences of six months or less. In this case the sentence recommended by the Crown is reasonable. Nevertheless, it is my observation that sentences for breachcharges are frequently based on what the person received for the last breach without proper consideration of the nature of the breachcurrently before the court. This approach, at times, gives insufficient weight to what the Criminal Code,

section 718.1, states is thefundamental principle of sentencing that: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." The Supreme Court of Canada decision in R. v.

Ipeelee 2012 SCC 13 , [2012] 1 S.C.R. 433 is not only important withrespect to the sentencing of aboriginal people, it also speaks to the critical importance of proportionality in sentencing: "The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing - themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality.

Proportionality is the sine qua non of a just sanction."(paragraph 37) I am not aware of any legal principle that stipulates the de facto mandatory minimum for a new breach is the sentence that wasimposed for the last breach. The use to be made of the accused's prior record is set out by Chief Justice Freedman in the Manitoba Courtof Appeal decision in R. v. Young [1979] M.J. 150: I am not saying that a record is not a relevant consideration for a sentencing judge to keep in mind. Its role is, I think, to disentitle theaccused person to leniency.

But the record itself should not be invoked in such a manner that the sentence seems to be imposing doublepunishment, a sentence for what occurred in the offence in question plus something more for the past record. The appropriate sentence for a breach of court order should be based on the gravity of the breach as the predominant factor whiletaking into account the accused's record. In addition, it goes without saying that when dealing with a member of a First Nation community, the principles set out in Ipeeleeand Gladue must be considered, and that is factored into this decision.

My experience sitting in courts in both Winnipeg and Dauphinsuggest that aboriginal people, many of whom suffer from issues involving poverty, addiction and mental health, are heavily impactedby the frequent use of short custodial sentences. Taking these factors into account and based on the representations made by counsel for the accused that the accused, in fact, isenrolled in adult education and is seeking to improve herself, I'm satisfied the nature of the breach, consumption of alcohol, and takinginto account the accused's record, warrants a sentence of one day, noting five days of pre-trial custody.

I am imposing that sentence as I believe it is proportionate to the nature of the breach and will not disrupt the accused's efforts atrehabilitation through her continuing education. I'm waiving costs and surcharge. Thank you. MR. KIESMAN: Thank you, Your Honour. That's my only matter. THE COURT: All right. Ms. Francois, those are my reasons for decision. THE ACCUSED: Um-hum. THE COURT: The, the Crown I think not inappropriately was seeking a little longer period of jail but it's my view I'm hopingyou'll get back into school, that you'll keep doing the things you're doing.

You do have a serious record but if you -- THE ACCUSED: Yeah. THE COURT: -- if you further your education and you keep doing what you're doing, then that'll give you the foundation to stayout of trouble. Okay?

THE ACCUSED: Yes. THE COURT: So good luck. THE ACCUSED: Okay. THE COURT: Thank you. THE ACCUSED: Thank you. _____