2020 QCCQ 12357, 2020 QCCQ 12357

R. c. Jamieson 2020 QCCQ 12357 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TEMISCAMINGUE TOWN OF VILLE-MARIE Criminal Division No: 610-01-007854-197 DATE: December 17, 2020 ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ THE CROWN Applicant v.

JULIANNE JAMIESON Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On June 18, 2020, the accused was declared guilty on the following offence: On or about December 21, 2018, in Notre-Dame-du-Nord, district of Temiscamingue, did have in her possession for the purpose of trafficking Methamphetamines, committing thereby the indictable offence provided by section 5 (2)

(3) a) of the Controlled Drugs and Substances Act . Factual Context [ 2 ] After an investigation, the accused had been arrested, and the police found 165 pills of methamphetamines at her residence. She admitted the nature of the drugs and the possession, but she denied that this possession was in a purpose of trafficking. According to her, she consumed generally one pill every two or three days.

Different accounting documents were also seized at her place with different cellphones. [ 3 ] The accused explained that this was accounting regarding the pies that she cooks for her family members and community members. [ 4 ] Based on the circumstantial evidence and the numerous contradictions in the accused’s testimony, the Court declared her guilty of possession in a purpose of trafficking. Position of the Parties 1.

The prosecution [ 5 ] The prosecution is seeking a sentence of eight months of detention followed by a supervised probation of eighteen months, in which the accused would have to follow all the recommendations made by the probation officer about her drug addiction issues. [ 6 ] The prosecution pleads that the Gladue report and the pre-sentence report mention that the accused does not wish to follow any therapy nor to receive any services. Doing so, she was very surprised when she receives the recent letter from Ms. Renaud saying that the accused made steps to seek help.

The prosecutor adds that the community has to be protected against the impact of the drug’s consumption. 2. The defence [ 7 ] The defence suggests a 90 days discontinued jail sentence followed by an 18 months supervised probation, with the same order regarding the follow-up for the drug addiction and also a follow-up regarding past traumas. During this probation, the defence suggests that the accused perform 200 hours of community services. The defence also suggests that the accused participate to programs available in her community regarding ceremonies and sweat lodges.

Personal Situation [ 8 ] The accused is a 56-year-old aboriginal woman. She lives in the community of Temiskaming First Nation. She has her own house, and she lives with her boyfriend of the last three years. She has two adult children. Her daughter lives in the same community, and her son is in preventive custody. She was declared inapt to work since 1990 after being the victim of an assault in a context of conjugal violence. Since that, she did suffer from a post-traumatic syndrome disorder. [ 9 ] The accused admits her drug addiction and explains that she consumes to be able to do what she has to do.

Objectives and Principles of Sentencing [10] The relevant sections of the Criminal Code are the following: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 orreleased on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall bedeemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [11] As expressed by the Honourable Justice LeBel in R. v.

Nasogaluak[1], the sentencing is an individualized process: [43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion tocraft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentenceis, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case (R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v.Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and it falls to thesentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relativeimportance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similaroffences.

The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factorsensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. Judicial Record [12] The accused has one prior, not in a similar matter, for a theft committed in Ontario for which she served her sentence in Quebecin 2001. Objective Gravity

[ 13 ] The objective gravity is assessed on the basis of the maximal sentence and the minimum sentence (when there is one). In the present situation, the objective gravity of the offence to which she was declared guilty, is the following: Offence Minimum sentence Maximum sentence 5 (2) (3) a) - Possession for purpose of trafficking (indictable) no Imprisonment for life Subjective Gravity [ 14 ] The subjective gravity is related to the circumstances related to the commission of the offence and to the particular situation of the accused.

While analyzing the subjective gravity of the offence, the judge has to take into consideration the aggravating and the mitigating circumstances. 1. The aggravating circumstances • Prior convictions [ 15 ] As listed, the accused has a one prior which is not related to drug trafficking. Doing so, the Court does not retain this prior as an aggravating factor. 2. The mitigating circumstances • Personal situation of the accused [ 16 ] The accused is an Algonquin woman. She had been seriously injured in a context of conjugal violence.

She was hospitalized for two weeks with major injuries to both hands (right hand smashed and left hand broken) operated on and 6 screws were inserted to put her hand together, 45 stitches to her head, head swollen from trauma, bruises and swelling all over body, 3 dislocated disks and her eyes were bleeding. Pre-sentence Report [ 17 ] The Court retains the following aspects from the pre-sentence report prepared by Ms. Francesca Gauthier-D. and dated from August 31, 2020. [ 18 ] The writer puts emphasis on the historical factors and the traumas the accused faced in her life.

She also puts emphasis on the rehabilitation capacities that she considers at a low level. [ 19 ] Ms. Gauthier-D. wrote: En regard des accusations dont madame Jamieson fait face en ce moment, celle-ci réfute toute implication dans un quelconque trafic de stupéfiants. Selon ses dires, les drogues trouvées, soit les speeds, étaient ceux pour sa consommation personnelle.

À l’approche de la période des fêtes, elle avait fait des provisions de méthamphétamines pour se maintenir énergique alors qu’elle devait s’occuper de confectionner des desserts pour le party de Noël de la résidence pour aînés et pour faire face aux nombreuses soirées festives à venir. Madame relate s’épuiser rapidement. Considérant que madame nie tout lien avec un trafic de stupéfiants, il nous est difficile d’établir clairement les circonstances entourant ses gestes. Cependant, nous pouvons croire que sa propre toxicomanie peut y être liée.

Madame Jamieson semble banaliser les conséquences de la vente de drogues et présente peu d’introspection quant à ses comportements. Elle reconnaît qu’elle pourrait prendre autre chose que des drogues pour se gérer. Elle anticipe grandement la sentence à venir. Gladue Report [ 20 ] A Gladue report was made on September 14, 2020. The Court retains the following relevant aspects of this report written by Ms. Sharon McBride. 1.

The community of Timiskaming First Nation [ 21 ] The community is neighbouring the town of Notre-Dame-du-Nord, located on the west part of the province of Quebec, at 30 minutes north of the town of Ville-Marie. 2. Profile of the accused [ 22 ] The accused was born from the union of Ms. Levina Chevrier (Algonquin) and Mr. John Jamieson (non-native). She has two brothers and she is the youngest. She also has three half-siblings from other unions from her parents. She grew up in an environment of consumption, violence and parties, to the point that she considered this way of life as normal.

Both parents were heavy drinkers, jealous and violent. At one point, the parents get separated and the accused went to live with her mother and her two brothers at her aunt’s place in Matagami. Her aunt was violent towards her, probably because she was bothered to take care of the children while the mother was absent. [ 23 ] To run away from the harassing attitude of the father, the mother moved with her children to Temiskaming First Nation and rapidly after in Hamilton, Ontario. The mother was very scared about the father.

The mother started a new relationship which was also very chaotic with again alcohol consumption, violence and jealousy. [ 24 ] After six years, the relation ended and the accused moved with her mother in Val-d’Or, where the mother started a new relation

with a Cree man, Mr. Edward Blackned. This man became rapidly a good parental figure for the accused and despite the separation between him and her mother, she still has very good bonds with him. This man is a survivor from the residential school. [ 25 ] The accused stated that she was selling drugs in Val-d’Or at a very young age. According to her, she was able to find everything the clients requested except heroine.

She was called “the Queen of the 3 rd Avenue.” The drug consumption was accepted at home, and she remembers consuming with her mother. [ 26 ] The family came back living in Temiskaming First Nation with Mr. Edward Blackned. At 16 years old, she met the father of her son. He was violent, abusive and had an alcohol consumption issue. She left him when the baby was two weeks, remained single for a few months and started a relation with another man who was also abusive. She ended the relation after one year. [ 27 ] At 21 years old, she met Mr. Placide Renaud who was 39 years old. She became pregnant.

This man was also abusive, violent and extremely controlling. He would have physically, sexually and mentally abused her. She was very scared of him. He threatened to kill her with a gun pointed at her head. After four years she escapes the relation and left with the two children. She was hiding in different towns and different places. After hearing that he was harassing her mother, she came back living in Notre-Dame-du-Nord. In June 1990, he caught her and beat her with a 2x4 wood plank within inches of her life.

As mentioned, she was hospitalized for two weeks with very serious injuries. [ 28 ] The accused stated that her relation with her children is good despite having been victim of an “accident with her son in which she was attacked with a knife because of a bag of drugs.” [ 29 ] She spoke about the numerous losses she had in the past few years (family members and very close friends). She says being very deeply affected. [ 30 ] The accused attempted once to her life, during her relationship with Placide Renaud.

She took pills and was hospitalized in the intensive care unit. [ 31 ] She started smoking cigarettes at 10 years old, marijuana at 12 and according to her, by 15 she had experimented everything. She started drinking between 12 and 14 years old. She attended an addiction centre in Toronto on an outpatient basis, but she does not remember the dates. For now, she consumes marijuana on a daily basis.

She uses speed and other drugs for energy. [ 32 ] The accused does not use the resources available on the community. [ 33 ] Regarding the health aspect, she has limitations due to the assault she was the victim of in 1990. She recognized that she would need help for her mental health, but “she does not trust enough to consult. Despite this, she states that she is a strong person and is usually the one that is always ready to help people and some friends turn to her for advice and help.” [ 34 ] Ms. Jamieson is not really involved in her community.

She was more by the past, but currently she does not participate to activities. She is scared by the possibility to receive a jail sentence and about what her grandchildren will hear about their grandmother in the community. [ 35 ] The Gladue report writer notes that “Ms. Jamieson continues to deny her guilt even after explanations of the court process and outcome.

She continues to state that she is the victim and that she is constantly harassed and followed by the police. […] Julianne Jamieson is not receptive of any proposed recommendations of treatment centers, psychological help, or help from any community resource.

She states that she is a care giver not a care receiver, that she is the one that helps people, no one needs to help her.” Gladue Considerations: systemic, historical and individual factors of Aboriginal people—Recommendations [ 36 ] Taking into consideration the Gladue factors, the writer makes the following recommendations: Considering that: Julianne Jamieson states that she does not want help offered by the resources in our community. Considering that: Julianne Jamieson does not want to attend a treatment facility or treatment center.

Considering that: Julianne Jamieson states that she can help herself and feels like she is the victim in this file. Considering that: Julianne Jamieson has been living at the same permanent address for many years and owns her home.

The following restorative, rehabilitative and healing recommendations are presented to the court to be considered as a possible alternative, if the court is in the opinion that they represent reasonable options under the present circumstances: —That Julianne Jamieson consult and follow recommendations and treatment for her drug dependency by a drug and alcohol abuse counsellor. —That Julianne Jamieson be followed by a probation officer to help guide her to proper resources with regards to healing from childhood trauma of neglect, fear and ever presence of drugs and alcohol in her life, a resource that would be acceptable to both Ms.

Jamieson and the judicial process. —That Ms. Jamieson benefit from meeting with a psychologist or psychiatrist to help her overcome her feelings of victimization and to be able to properly go through her grief which is still very present. —That Ms. Jamieson reconnect with her culture through the Timiskaming First Nation cultural program, which will bring her back to the 7 Grandfather Teachings, ceremonies and sweat lodges. —That Ms. Jamieson meet with a social worker from the Timiskaming First Nation health center to be assessed and oriented to proper

resources to receive help with her drug addiction. The Parity [ 37 ] The Court considered the exercise recently made by Justice Jacques Ladouceur in R. c. Esau [2] about drug trafficking by aboriginal offenders. Those examples sustain the possibility to order a suspended sentence in certain circumstances.

Analysis [ 38 ] After having taken into consideration all the circumstances of the present file, the principles of sentencing and the Gladue factors, the Court considers that the accused is able to succeed a process of rehabilitation. [ 39 ] The Court does not minimize the seriousness of the infraction and the important consequences on the community.

The Court also considered the facts that the accused until recently, denied not only her responsibility, but was also totally reluctant to receive help for her issues. [ 40 ] Indeed, such attitude constituted a risk not only for her, but also for her entire community because having access such easily to drugs has important consequences on addict people and on youths to develop such addiction. [ 41 ] The accused grew up in an environment where the consumption was normal. She consumed with her mother, and she was trafficking drugs at 16 years old at the knowledge of her mother.

Her parents, who were supposed to be models from her, raised her in this way and inevitably, she developed an addiction. She was involved in different relationships with consumers and because of a drug issues, she was the victim of an accident from her son. This addiction is multigenerational. [ 42 ] This addiction brings her to make trafficking of drugs and by her fault other people are maintained in their addiction and some others developed one. [ 43 ] Now, it is time for her to realize the seriousness and the gravity of the situation.

She is scared about what her grandchildren will be told in the community about their grandmother. Obviously, she will have to seriously think about the next generation and to contribute to stopping this multigenerational trauma. Obviously, she does not want her grandchildren to develop the same addiction as her and finish like her to have to face the justice system. She will also have to seriously think about the feelings of the parents and the grandparents of the persons who buy drugs from her. How scared those people would be for the well-being of their son, daughter, grandson, and granddaughter.

It could be hers! [ 44 ] It is time for her to receive the appropriate help. Even if she considers being strong and being a care giver, not a care receiver, it is urgent that she admit her issues and that she work on it. She has to address her traumas properly and sincerely, because avoiding traumas by drug consumption is lying to herself. [ 45 ] As mentioned, the accused was reluctant to receive this help until recently. Both the pre-sentence report writer and the Gladue report writer reported that fact.

But the accused surprised everybody by providing the Court with an attestation that she had requested help just before the sentence hearing. Even if this action is recent, it shows that she starts to realize and that she wants to get help. [ 46 ] She does not have to be penalized for the delay to seek for this help. The important, it is not the time it takes.

The important is the recognizance, and the energy she is ready to invest to address her issues. [ 47 ] For this reason, the Court considers that she is a good candidate for a suspended sentence with very specific conditions that will be detailed later. [ 48 ] Before, the Court would like to say a word on the discontinued jail sentence that was proposed by the accused. First, considering the actual pandemic, this jail sentence would not be executed. Imposing a jail sentence which is not executed is sending an inappropriate message to the community.

Moreover, even if it would have been, it is unrealistic to request to the accused who receive only welfare to drive from Notre-Dame-du-Nord to Amos back and forth every weekend (400 km per weekend). [ 49 ] For those reasons, the Court will favour restorative justice measures to bring the accused to address her issues, to prevent any recidivism and also to make her give back to her community. Indeed, as mentioned earlier, the drugs are wreaking havoc in the community.

The accused, by her trafficking, contributes to this situation and she will have to pay back by her community service and by the recognizance that she will demonstrate to her community members.

FOR THOSE REASONS, THE COURT: [ 50 ] ORDERS a suspended sentence; [ 51 ] ORDERS the accused to respect the following conditions of her probation for a period of two years: - Keep the peace and be of good behaviour; - Appear before the Court when required to do so; - Notify the probation officer of any change of address or name or phone number and quickly notify of any change of employment or occupation; - Communicate with the probation officer no later than December 17, 2020, at 4:00 PM and after following the modalities imposed by the probation officer; - For the first year of the probation order, be at her 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 herself and her 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; - Follow all other advice and recommendations of the probation officer regarding her substance abuse problem as well as her injuries related to her past; - Perform two hundred (200) 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 Timiskaming First Nation 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 a newspaper or any other way), within no more than six (6) months; [ 52 ] RECOMMENDS that the community service be realized with an organization that help people (Indigenous people if possible) with drugs and alcohol addiction problems; [ 53 ] ORDERS the confiscation and destruction of all drugs and items seized; [ 54 ] PROHIBITS the accused from possessing any firearm, crossbow, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition and explosive substance for a period of ten (10) years. __________________________________ PEGGY WAROLIN J.C.Q.

Me Émilie Larose, attorney for the Crown Me Antoine Meunier, attorney for the accused Dates of hearing: September 23, 2020