2019 QCCQ 8755, 2019 QCCQ 8755

R. c. L.P. 2019 QCCQ 8755 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF PUVIRNITUQ Criminal Division No: 640-01-040147-184 640-01-040244-189 640-01-040245-186 640-01-040431-182 DATE: October 25, 2019 ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ THE CROWN Applicant v. L. P.

Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ WARNING: The Criminal Code forbids that any information that could identify the victim shall be published in any document or broadcast or transmitted in any way (sections 486.4 (1)). [ 1 ] The accused pleaded guilty to the following offences: 640-01-040147-184 1.

Between June 21, 2017, and February 28, 2018, in Town A, district of Abitibi, bound by a probation order in the file number 640-01- 038173-168, failed or refused to comply with that order by neglecting to respect a condition of the order, to wit: report to a probation officer within 48 hours of your release after the coming into force of the probation order and thereafter, when required by the probation officer and in the manner directed by the probation officer committing thereby the indictable offence provided by

section 733.1 (1)

a) of the Criminal Code . 640-01-040244-189 1. On or about April 9, 2018, in Town B, district of Abitibi, in committing an assault on C. K., did use a weapon, committing thereby the indictable offence provided by

section 267

a) of the Criminal Code . 2. On or about April 9, 2018, in Town B, district of Abitibi, in committing an assault on C. K., did cause bodily harm to the said person, committing thereby the indictable offence provided by

section 267

b) of the Criminal Code . 4. On or about April 9, 2018, in Town B, district of Abitibi, did commit an aggravated sexual assault on C. K., by wounding, maiming, disfiguring him, or endangers her life, committing thereby the indictable offence provided by section 273 (1)

(2) b) of the Criminal Code . 640-01-040245-186 1. On or about April 9, 2018, in Town B, district of Abitibi, bound by a probation order in the file number 640-01-038173-168, failed or refused to comply with that order by not keeping the peace and not having a good behavior, committing thereby the offence punishable on

summary conviction provided by

section 733.1 (1)

b) of the Criminal Code . 640-01-040431-182 3. Between January 18, 2012, and January 19, 2012, in Town B, district of Abitibi, in committing an assault on C. K., did wound, maim, disfigure, committing thereby the indictable offence provided by

section 268 of the Criminal Code . 4. Between January 18, 2012, and January 19, 2012, in Town B, district of Abitibi, did confine, imprison or forcibly seize C. K., committing thereby the indictable offence provided by section 279

(2) a) of the Criminal Code . Factual context 1. 640-01-040244-189 and 640-01-040245-186, events of April 9, 2018 [ 2 ] On April 9, 2018, after the birthday party of their eldest son, the accused and his spouse went to P. P.’s home (accused’s

cousin). At this place, they drank alcohol. P. was watching television when he heard noise from another room. When he arrived, he saw the victim maintained on the floor by the accused. The victim was firmly held by the arms and the neck. She appeared to be choking. The victim was crying and she was afraid of what the accused was doing to her. [ 3 ] To stop the accused from hurting the victim, P. kicked him in the face and tried to throw both of them out of his house.

It was hard for him to get them out because the accused always went back to the victim as he was still angry at her. [ 4 ] The victim said “nothing happened,” “it’s nothing,” but P. knew something wrong happened to the victim. P. finally got them out and waited about 10 to 15 minutes before calling the police. [ 5 ] P. did not call the police immediately because he was afraid that somebody would press charges against him because he had beaten the accused.

He told the police that the accused and the victim should be at House A, which is the accused’s house. [ 6 ] The police officers arrived at the House A and met with Ms. E. P., the accused’s mother. Ms. P. seemed scared. She mentioned to the officers that she heard furniture moving and bangs coming from L.’s bedroom on the second floor. [ 7 ] The police rushed upstairs. The door was blocked by a dumbbell, but they saw, from the opening of the door, that the victim was unconscious on a mattress between the bed and the door. Her pants and her underwear were down and she no longer had her sweater.

The police shouted at the accused to open the door. He complied, they entered the room and arrested him for assault. He resisted so they had to use force to get him out of the room. [ 8 ] One of the police officers took care of the victim who was still unconscious. He saw blood everywhere in the room, but much more on her pants. He tried to bring the victim back to consciousness, but it was difficult. An ambulance was called to bring her to the hospital. [ 9 ] The following day, the police received information from the hospital: the victim had vagina injuries and lost a lot of blood.

The nurse in charge of the victim said there was blood everywhere and she was wondering what had happened to her. The victim was in and out of consciousness and she managed to mention that the accused introduced his fist into her vagina, which caused the wounds and bleeding. [ 10 ] She was first brought to the Town A hospital to close several vaginal lacerations that were between 10 and 15 centimetres, but the pain was too intense and they did not have the proper medical equipment. The victim had to be medevaced to Montreal. [ 11 ] The medical file reveals that the victim lost one litre of blood.

The consequences would have been much more serious if the police did not arrive so quickly. [ 12 ] The victim’s injuries are summarized as follows: • Vaginal lacerations that were between 10 and 15 centimetres; • A laceration of one centimetre on the tongue because the accused bit her; • After arriving at the hospital, she was not able to walk; • She received a blood transfusion; • She was unconscious for a long time and she suffered a lot. 2. 640-01-040431-182, events between January 18, 2012, and January 19, 2012 [ 13 ] Following her declaration to the police regarding the events of April 9, 2019, the victim said this was not the first time she was assaulted by the accused.

She talked about an event of January 2012 or 2013. With the aid of a police officer, and the research in her medical file, she confirmed it was in 2012 as she also was hospitalized and medevaced to Montreal at that time. [ 14 ] In the night between January 18 and 19, 2012, the accused was highly intoxicated and got mad at her. He kept her in the house by locking the doors, grabbed her by the hairs and beat her all over her body. He hit her in the vaginal area. [ 15 ] Her jaw was fractured, she had bruises all over her body and her face and her lower lip was torn by a bite made by the accused.

She was also bitten on the left arm. [ 16 ] The accused admits that he was highly intoxicated during both events and that he does not recall the events. 3. 640-01-040147-184 - June 21, 2017, and February 28, 2018 [ 17 ] The accused admits having met with the probation officer, but he recognizes that he forgot all the other meetings because of his important memory issue. He also adds that he was very busy taking care of his children and hunting. Position of the parties 1.

The prosecutor [ 18 ] The prosecutor is seeking a sentence of 6 years of detention for the event of April 2019 from which he proposes to subtract the period of preventive custody of 199 days. He suggests that a consecutive detention period of two years less a day be imposed for the 2012 events. The total of eight years being, in his view, excessive, he suggests that the latter sentence be concurrent to the first.

[ 19 ] The prosecutor pleads that the accused is not a good candidate for a probation. The event of April 2019 occurred as he was bound by a probation order. In the past, he was found guilty of breaches of undertaking. The victim is very scared of him. The accused did not remember the events and blames his alcohol addiction. Moreover, considering his memory issues, it would be difficult for him to fully benefit from a therapy or any other follow-up. The community, and more specifically the victim, have to be protected against him and a long period of detention is the only option. 2.

The defense [ 20 ] The defence is seeking a 44-month detention period less the preventive custody for a total of 2 years less one day followed by a supervised probation for both events. Even if the accused breached his probation and also breached an undertaking, the defence insists on the fact that the accused recognizes the impact of his alcohol consumption and considers being able to respect the conditions. Time spent in preventive custody [ 21 ] The accused is detained since April 9, 2019. As of today, he served 199 days of preventive custody. The prosecution agrees to consider a ratio of 1.5 days.

Personal situation [ 22 ] The accused is actually 32 years old. He was 31 in 2018 and 24 in 2012. He started his relationship with C. K. when he was 20 years old. She was 17. She got pregnant a year later. When their first son was born, the accused moved in with her, the baby, her father and her two brothers (A. and J.). According to the victim, they had a good relationship and did not fight often. She described him as a very good father. [ 23 ] The accused also has a 9-year-old daughter from another relationship. He never lived with the mother who raised their daughter alone. The accused sometimes babysits her.

At the beginning of their relationship, the victim had a difficult time to accept this child, but she finally accepted her. She is now welcome at their home. In 2016, their second son was born. [ 24 ] Before his detention, the accused lived at his mother’s place with his two brothers, his two nephews, his spouse and their two children. They lived in a four-bedroom house. The accused and the victim shared their room with their children. [ 25 ] The victim worked for [Company A] on a

schedule of 2 weeks on – 2 weeks off. The accused is only working part-time, but he enjoys his job. He would like to work more. The victim says that he is very good at taking care of the children and he is described as a very good cook. [ 26 ] He often spends time on the land practising traditional activities. He fishes, hunts and traps to provide food for his family, his extended family and he sells the extra meat to [Organism A] for which he is paid.

Objectives and principles of sentencing [ 27 ] 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 for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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 offence or 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, including

their 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 be deemed 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. [28] 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 [29] The history of priors is the following: Dateinfraction Date sentence Infraction Victim Sentence 17-01-2012 04-12-2012Uttering threats to causedeath or bodily harm 8-month probation +30 h. communityservice04-10-2013 26-02-2014Impaired driving Fine : 1 000 $ 26-01-2014 26-02-2014 Assault causing bodily harm C.

K., spouse 2 days preventivecustody 12-month probation +60 h. communityserviceUttering threats to causedeath or bodily harm E. P., mother Same probation + 30h. community service 20-03-2014 06-10-2014 Assault causing bodily harm C. K., spouse 16-month probation +140 h. communityserviceForcible confinement(indictable) C.

K., spouse same probation + 140h. community service 21-03-2014 06-10-2014 Breach undertaking (meetsocial services) Same probation + 10h. community serviceBreach undertaking (reportpolice station) Same probation + 10h. community service 15-09-2014 06-10-2014 Breach undertaking 22 days preventivecustody 1 day detention Same probationBreach undertaking (meetsocial services) 22 days preventivecustody 1 day detentionconcurrent Same probation

05-04-2015 01-06-2015 Forcible confinement C. K., spouse 6-month CSO 12-month probation Assault (summary) C. K., spouse 6-month CSO concurrent Same probation Assaulting peace officer peace officer 6-month CSO concurrent Same probation Breach of probation (not communicate with C. K.) 6-month CSO Same probation 08-10-2015 23-02-2016 Possession for purpose of trafficking 4 months preventive custody 1 day detention 12-month probation 24-12-2016 22-03-2017 Assault (indictable) X, his youngest child 270 days of detention less 88 days preventive custody (x 1.5) 12-month supervised probation Assault with a weapon A.

K., brother-in- law 270 days of detention less 88 days preventive custody (x 1.5) concurrent Same probation Assault causing bodily harm aA. K., brother-in- law 270 days of detention less 88 days preventive custody (x 1.5) concurrent Same probation Objective gravity [ 30 ] The objective gravity is assessed on the basis of the maximal sentence and the minimum sentence (when there is one) for each offence.

In the present situation, the objective gravity of the offences to which he pleaded guilty, is the following: Offence Minimum sentence Maximum sentence 267 (a) - Assault with a weapon (indictable) 10 years 267 (b) - Assault causing bodily harm (indictable) 10 years 273 (1) (2) (b) - Aggravated sexual assault For life 268 - Aggravated assault 14 years 279 (2) (a) - Forcible confinement (indictable) 10 years [ 31 ] The offences are all offences against the person and on the higher level of the scale of gravity.

Subjective gravity [ 32 ] The subjective gravity is related to the circumstances related to the commission of the offences and to the particular situation of the accused. While analyzing the subjective gravity of each offence, the judge has to take into consideration the aggravating and the mitigating circumstances. 1. The aggravating circumstances • Violence [ 33 ] The two offences were perpetrated with a high level of violence. In 2019, the accused’s cousin had to kick him in the face to get him to stop the assault and it was very difficult to get him out of the house.

This shows all the anger and persistence of the accused who was, at that time, out of control. A few minutes later, at the family house, the accused continued to beat the victim. His mother was present, but she was too scared to intervene. • Conjugal offence [ 34 ] The victim has been his spouse for the last 12 years. She is the mother of their two sons. According to his priors, the violence of the accused towards his spouse started in 2012. In 2018, he had been convicted three times for offences against her: twice in 2014 for

which he received suspended sentences and probations and in 2015 where he was ordered to serve a conditional sentence order for a period of six months. [ 35 ] The Court of Appeal had opportunity, in 2012, to remind as of the importance of the principle of denunciation and deterrence in the situation of conjugal violence [2] : [36] […] qu'il était du devoir du juge de considérer, comme circonstance aggravante, les éléments de preuve établissant que l’infraction perpétrée par l’appelant constitue un mauvais traitement de sa conjointe.

En effet, la peine imposée devait faire voir que le statut de conjoint de la victime était un facteur aggravant en application du principe de détermination de la peine consacré à l’

article 718.2a) (ii) C.cr .

Même si cela n'est pas le seul facteur en jeu, les tribunaux doivent reconnaître l’importance particulière de la dénonciation et de la dissuasion d’un comportement qui, par sa nature même, mine la relation de confiance qui caractérise la vie commune 4 . […] [ 36 ] In 1998, the Honourable Justice Otis from the Court of Appeal [3] , listed the non-exhaustive factors to be used to qualify the moral blameworthiness: - La nature et la gravité intrinsèque des infractions se traduisant, notamment, par l'usage de menaces, violence, contrainte psychologique et manipulation, etc. - La fréquence des infractions et l'espace temporel qui les contient. - L'abus de confiance et l'abus d'autorité caractérisant les relations du délinquant avec la victime. - Les désordres sous-jacents à la commission des infractions: détresse psychologique du délinquant, pathologies et déviances, intoxication, etc. - Les condamnations antérieures du délinquant: proximité temporelle avec l'infraction reprochée et nature des condamnations antérieures. - Le comportement du délinquant après la commission des infractions: aveux, collaboration à l'enquête, implication immédiate dans un programme de traitement, potentiel de réadaptation, assistance financière s'il y a lieu, compassion et empathie à l'endroit des victimes (remords, regrets, etc.). - Le délai entre la commission des infractions et la déclaration de culpabilité comme facteur d'atténuation selon le comportement du délinquant (âge du délinquant, intégration sociale et professionnelle, commission d'autres infractions, etc.). - La victime: gravité des atteintes à l'intégrité physique et psychologique se traduisant, notamment, par l'âge, la nature et l'ampleur de l'agression, la fréquence et la durée, le caractère de la victime, sa vulnérabilité (déficience mentale ou physique), l'abus de confiance ou d'autorité, les séquelles traumatiques, etc. • Vulnerability of the victim [ 37 ] The victim was 22 years old in 2012 and 28 in 2018.

As mentioned, considering that it was not the first offence committed by the accused against her, she knew exactly how the accused could be mad at her and what could result of this anger. She is an Inuk woman, mother of two young children. As a member of the Town B community, she is affected by the systemic, historical and personal factors of Aboriginal people.

She has her own issues, and she is surrounded by people with a lot of personal issues. [ 38 ] The Court shares the position of Justice Lacoursière [4] expressed in 2016 regarding the personal situation of the aboriginal victims: [135] They (the victims) too have been subject to historical forces and the years of upheaval and economic development in this community. In addition to being victims of the accused’s actions, they suffer from direct or systemic discrimination.

They are equally likely to suffer the negative after-effects of resettlement and, according to the Gladue report, some of them are economically and socially disadvantaged, unlike the accused. In addition, three of them are now unable to live permanently in the community. • Consequences on the victim [ 39 ] On both occasions, the victim had to be medevaced to Montreal to get treatment for her injuries as the medical facilities in her community could not take care of her considering the seriousness of her situation. In 2018, she was unconscious for a while, and was not able to walk. She suffered a lot of pain.

The consequences on a long term basis are unknown. [ 40 ] During her hospitalization, the extended family members had to take care of her children, as she was absent and the accused was detained. After being discharged from the hospital, she had to stay home in place of going back to work and provide for her children. [ 41 ] Today, she is still very scared of the accused. She was present in the court house of Town B when the trial was scheduled to take place in December 2018, and she was ready to testify.

As the accused pleaded guilty, she was exempted from this very difficult task and from having to face the accused. [ 42 ] As the lawyer requested a pre-sentential report and a complementary Gladue report, the sentence hearing was postponed in May 2019 in Town C as the undersigned was not scheduled to sit in Town B for next months. [ 43 ] On May 21, 2019, the sentence hearing took place and the victim was not present. It was confirmed that she left Town B to assist at the hearing in Town C, but when the plane stopped in Town D, she was unable to continue the trip as she was to be in the accused’s presence.

She decided to go back to Town B.

[ 44 ] As expressed by the Court of Appeal of Alberta, the physical, psychological and emotional consequence of the sexual assault, and much more the aggravated sexual assault, are obvious [5] : [175] Rape and other major sexual assaults are grave and serious acts of violence. As the Supreme Court explained in R. v. McCraw: Violence is inherent in the act of rape.... It seems to me that to argue that a woman who has been forced to have sexual intercourse has not necessarily suffered grave and serious violence is to ignore the perspective of women....

Violence and the threat of serious bodily harm are indeed the hallmarks of rape.... rape is a crime that is likely to have serious psychological consequences and may, as well, have serious physical effects....[Emphasis added.] [176] While these comments were made in the context of rape, that is non-consensual vaginal intercourse, they apply with equal force to other major sexual assaults. When an offender commits a major sexual assault, including rape, against a person, this act of violence causes harm. It is harm to both the victim and society.

A major sexual assault constitutes a serious violation of a person’s body and an equally serious violation of their sexual autonomy and freedom of choice. These breaches of one’s physical integrity and privacy are indisputable and undeniable. That harm, and it is substantial, is inferred from the very nature of the assault.

Add to this the serious breach of a person’s human dignity and the gravity of a major sexual assault perpetrated on a victim becomes readily apparent. [177] In addition to this very grave harm, there is also intrinsic to major sexual assaults the likelihood of other very real psychological or emotional harm. That includes fear, humiliation, degradation, sleeplessness, a sense of defilement, shame and embarrassment, inability to trust, inability to form personal or intimate relationships in adulthood with other socialization problems and the risk of self-harm or even suicide.

While these effects fall into the psychological or emotional harm category, they may be equally or even more serious than the physical ones but much less obvious, indeed even unascertainable at sentencing. [181] It all comes down to this. The Supreme Court has never endorsed the concept of a harmless rape or other major sexual assault. And this Court is certainly not prepared to do so. For these reasons, in sentencing for sexual assaults under s. 271, the sentencing judge must take into account the likelihood of serious psychological or emotional harm to victims flowing from a major sexual assault.

Indeed, we are bound to say that, given what is now known about the nature and extent of the harm inherent in major sexual assaults, it would be irresponsible to do otherwise. • Prior convictions [ 45 ] As listed, the accused has a few priors. The majority of his offences are crimes against persons and persons who are close to him: his spouse, his mother and his brother in-law (one of his best friends also). [ 46 ] For those offences, the most serious sentence he received is 9 months of jail followed by a 12 months supervised probation.

He served two thirds of his sentence and was released in September 2017. • Probation [ 47 ] As admitted by the accused, he was bound by a supervised probation which started after his release in September 2017 and was in until September 2018. He admits that he had to keep the peace and to be of good behaviour. He did not respect his condition to do so nor did he respect the condition to meet with his probation officer as often as required.

During that period, he re-offended by committing a much more serious offence. • Risk of recidivism (no) [ 48 ] The Crown attorney pleaded that the risk of recidivism is very high according to the profile of the accused. The Court does not share this point of view. The risk of recidivism is never totally absent, but that is not the question. The Court is not convinced that the risk is too high to be supported by the society. 2. The mitigating circumstances • Guilty plea [ 49 ] The accused pleaded guilty thus avoiding a two-day trial and preventing the victim from testifying.

Even if she had been ready to do so, this exercise would have been painful and tedious. Her preparation with the Crown attorney brought back bad memories. It would have been very difficult for her to testify in the court room, in the presence of the accused and to be cross-examined. [ 50 ] It is true that the accused pleaded guilty on the day scheduled for the trial to start. One could argue that his decision was late to come. The Court wants to point out that the accused did not have the opportunity to do so earlier, as he had to wait for the Court to sit and to be brought to Court in Town B.

The situation of Inuk offenders is different than the situation of an accused who is brought to the court house at every Court date. • Substance abuse [ 51 ] During those two events, the accused was highly intoxicated by alcohol. He says he has no recollection of the events. He pleaded guilty as he is convinced that the prosecutor could have proven beyond a reasonable doubt all of the essential elements of the infractions. [ 52 ] For the most recent event, he woke up the day after at the police station. He was informed that he was under arrest for assault.

He had more information from the Gladue writer, who described him the scene when the police officers arrived. He was totally passed out and does not recall any details after arriving at his cousin’s house. [ 53 ] Because of his high level of intoxication, the level of moral blameworthiness should be reduced. [6]

• Remorse [ 54 ] When the accused was met by the Gladue writer and was reminded what he did, he said: “I feel bad, I hurt C.” and he said he felt guilty. [ 55 ] When he came back from detention in September 2017, he went to live at his mother’s place. He went to see C. and apologize for what he did to his brother. She forgave him and moved back with him and the children. [ 56 ] Upon his arrival, he asked C. to come with him to see his brother-in-law, A., to apologize for what he did. He remembers that he was very sorry for him. He was relieved when A. told him that he forgave him also.

A. confirmed to the Gladue writer to be very happy to see the accused back in the community, and they became friends as they were before. [ 57 ] As the Court of Appeal [7] said: [54] Selon le jugement, les regrets et les remords « ne pèsent guère lourd dans la balance lorsqu'on a commis l'irréparable et que la réparation est impossible ». Avec égards pour le juge de première instance, il est tellement rare qu'une réparation soit possible que son affirmation équivaut à toutes fins utiles à refuser de tenir compte des remords et des regrets. Cela serait contraire aux principes reconnus (voir notamment R c.

Gavin , 2009 QCCA 1 , J.E. 2009-122 , paragr. 25 ) puisqu'ils démontrent que l'accusé reconnaît ses torts (paragr. 718 (

f) C.cr .) et assume sa responsabilité, un volet positif qui demeure pertinent, ne serait-ce qu'au regard des chances de réhabilitation, même si l'accusé ne peut réparer le tort qu'il a causé. • Personal situation of the accused and his age [ 58 ] The accused is a young Inuk offender. He was seriously injured twice during a car accident. The first incident happened when he was 16 years old. While he drove his snowmobile, he was hit by another vehicle. He was medevaced to Montreal.

After that, he was unable to practise hockey as before and had to stop being part of [teem A]. [ 59 ] When he was 26 years old, he had an ATV accident as he drove while being impaired by alcohol. He has recollection of the accident and was medevaced again to Montreal. He had a head laceration and multiple fractures. Since then he suffers from many painful headaches. According to his mother and the victim, since this accident, he gets angry more often especially if he drinks alcohol. He also has an important memory issue since then. [ 60 ] He is also affected by many systemic and historical factors.

The Court will detail those factors in the

section regarding the Gladue report. • Rehabilitation perspective [ 61 ] The accused recognizes that his substance abuse is the reason of his presence in front of the criminal court. He is now sober in detention and really wants to quit drinking totally. He is of the opinion that he can stay sober without help, but he is seriously considering enrolling at the Treatment Centre A. For him, the support of his mother and his extended family will be helpful. [ 62 ] He misses his children a lot and would like to be able to take care of them as he did before.

He would like to raise them and to teach them his traditional values. [ 63 ] His aunt is a member of the Justice Committee, and she is ready to help him. The accused could also benefit from the support of [Organism B] men’s association. This group offers services of rehabilitation to the men from Town B who have alcohol, drugs and/or violence issues, by connecting them with the traditional activities. Pre-sentence report [ 64 ] The Court retains the following aspects from the pre-sentence report prepared by Ms.

Mylène Boutin and dated from May 8, 2019. [ 65 ] The writer puts emphasis on the fact that the accused had chances with his probation order to take serious steps to address his substance abuse and his anger management issues. He did not. [ 66 ] Ms. Boutin concludes and recommends: To conclude, we understand that Mr. P. can be a great asset for his family and his community. However, unless he seriously address his issues, we believe that the risk of reoffending, especially in a domestic context remains highly elevated. Mr.

P. was recently given the chance to stay with his close ones, help them by providing for them and taking care of his family, but contrariwise, he ended up causing severe consequences on his intimate partner, once more. In such, we wish to reiterate the fact past sentencing in the community was far from successful and he did not seemed to take those correctional measure seriously. In our opinion, it demonstrates that in order to obtain success in rehabilitating, a much higher level of supervision would be more appropriate.

Gladue report [ 67 ] A first Gladue report was made on March 13, 2017, previously to the sentencing in the file 640-01-038173-168 (assault, assault with a weapon and assault causing bodily harm) and a complementary report was prepared on February 7, 2019, for the purpose of the present file. Both were signed by the same writer. The Court retains the following relevant aspects. 1. The community of Town B [ 68 ] Town B is a village located on the Hudson Coast. Regarding his history, the Gladue writer mentions:

It is important to consider the systemic, historic and individual factors of Aboriginal people that may have played a

part in bringing the individual in front of the Court and therefore, in this case factors that may have impacted L.’s life and behaviours directly or indirectly, to seek proper response to his crimes. In the present situation, we are looking at the case of L. P., a 30 year-old Inuk man from Town B, an Inuit village who was affected deeply by policies of assimilation, which have contributed to weaken the culture and increase social problems up to this day.

Town B, like other Inuit villages, has gone through the pain caused by the forced placement of children into residential schools, where many suffered from discrimination, physical and sexual abuse and neglect. It is well documented by the Royal commission on Aboriginal people that the trauma endured by children in residential school and the disconnections from their family have had long-lasting effects on them and on generation, which followed. At least one member of L.’s family, his grandmother M. P., has gone through residential school.

The massacre of the Huskie dogs is also a governmental measure which has hurt profoundly Inuit, forcing them to a sedentary lifestyle which they weren’t used to and prevented them from maintaining their tradition alive and to remain independent. The aches and anger caused by this massacre is still talked about today and felt in some families in Town B. L.’s grandfather G. P. was one of the many whose valuable Husky dogs were killed during this important massacre. Town B has also been severely impacted by the relocation of families to Town E, which occurred in the fifties. L.’s paternal grandmother, Z.

Pa., and her family are amongst those who were relocated to Town E. The relocation of families from Town B has not only hurt the families who were left there to live in poor conditions, but as well the families who remained in Town B and missed their loved ones who took many years to return. 2. Profile of the accused • First Gladue Report (March 13, 2017) [ 69 ] The accused’s parents come from Town B, but his paternal grandmother originally came from Town E, and has been relocated in Town B.

The accused grew up with his parents and his younger brother in an environment free of alcohol and violence. [ 70 ] His mother had three children from a previous union: one daughter and two sons. [ 71 ] His parents were very hard workers. His maternal grandmother took care of him and his brother sometimes, but most of the time they were alone. He was very close to his brother. His mother describes him as a happy and easy child. [ 72 ] Very soon, the accused was initiated to traditional activities. At 5 years old, he killed his first goose and caught his first fish. At 8 years old, he killed his first caribou.

He was very proud and has good memories of those moments. [ 73 ] When he was 9 years old, his parents moved to a bigger house in another part of the village. The accused started to be a victim of bullying from the other children. His mother said that he changed at that time and became less happy. [ 74 ] His parents separated when he was 11 years old. His father left for Town E, and he never saw him since. He and his brother were raised by their mother.

He communicates with his father by the phone and through Facebook, but he misses him a lot. [ 75 ] At 11, he also started playing hockey almost every day with his friends at the arena. He enjoyed this sport a lot. [ 76 ] Once in high school, the bullying increased, but he continued to love going to school. [ 77 ] When he was 12 years old, the community of Town B was affected by 19 suicides, mostly young men. The members of the community decided to take action, and the [Organism B] Men’s association was created.

This association still exists today and provides services of rehabilitation and support through a mechanical shop, a wood shop and a cabin, five kilometres away from the village. [ 78 ] At 13 years old, the accused started being part of [teem A] and he enjoyed it. [ 79 ] Three years later, his maternal grandmother died. He loved her a lot and still misses her. This same year he had a snowmobile accident and he dropped out of school without finished his secondary 2. He started smoking marijuana and was not interested in school anymore. [ 80 ] The accused hunts every day since he stopped school.

He provides for his family and for the community members. [ 81 ] Many people in his surroundings committed suicide or died tragically: - His sister in 2008. She was drunk and she drowned in the river with her car. His mother is convinced that she knew what she did and it was a suicide; - His cousin in 2013. He shot himself. The accused was very close to him, and he still misses him a lot; - His brother-in-law (victim’s brother) in 2015. He was shot by the police officers. The accused was living with him at that time.

He ignores the circumstance of the event, but was very angry at the police officers; - His close friend (victim’s cousin) in 2017. He hung himself. The accused was detained at that time. As he did not know he could ask to attend the funerals, he never asked for it. [ 82 ] The accused is well surrounded by his spouse’s family and by his own family, his mother, his uncles and his aunts with whom he practises traditional activities on a daily basis. He is also well supported by his best friend. [ 83 ] The accused says he has a good relationship with Ituk Ningiuk who works at the Social Services.

He met him on a few occasions. Mr. Ningiuk also organizes meetings with a group of men regarding addiction issues similar to AA meetings. [ 84 ] The accused started smoking cigarettes at 11 years old, consuming alcohol at 14, smoking marijuana at 16 and he still smoked until his detention, around one gram daily. He reduced his alcohol consumption since his first son was born without any help.

[ 85 ] The accused admits having a hard time to express his emotions. He needs help to learn to express himself adequately. He also wants to stop drinking as all his criminal behaviours are connected with his consumption. • Second Gladue report (February 7, 2019) [ 86 ] During his previous jail sentence, the accused participated to three sessions of Qullik Program [8] and to AA meetings. Because of his memory issues, he does not remember what was said during those sessions. [ 87 ] During the summer 2017, a teenager from the community of Town B was sexually assaulted and murdered.

All the community was very affected by this tragic event. The murderer was not found immediately. The accused was informed of the situation in detention and was scared for his family.

A few weeks after his arrival in Town B from detention, one of his friends was arrested for this murder. [ 88 ] After his jail sentence, he continued to have the same routine: taking care of the children, playing street hockey with his sons after school and daycare, taking care of the house in the absence of his spouse, hunting, fishing, and also taking care of his nephews when his mother had to leave the community. [ 89 ] He said that it’s difficult to avoid consuming alcohol, because family members living in the same house consume every week. He limits his consumption to once a month.

He also started to consume marijuana on a daily basis again, between five and ten grams per day, but never in the presence of the children. He explains this consumption helps him not to feel the headaches he has since his accident. [ 90 ] Another tragic event affected him in November 2017, when one of his friends was stabbed. In October 2018, while in preventive custody, his mother informed him that his cousin committed suicide by hanging himself. One month later, he learned on TV that another cousin was shot by the police and died.

He asked the authorization to attend the funeral, but the permission was declined. [ 91 ] Regarding his memory issues, the Gladue writer mentions: L. said that it is difficult for him to live with his memory problem. He explained that he forgets about appointments, conversations and important events in his life. He added that he cannot remember what he learns during group meetings such as Qullik and A.A. meetings. L. said that he would like to undergo an evaluation to understand better the impacts of his accident on his brain and get appropriate help to deal with this condition. His aunt N.

P.. said that it would be a good idea that L. gets an evaluation. She thinks that it would make it easier for the community and the justice committee to offer the proper help to L.. Ph. A. agreed with the suggestion. [ 92 ] He would like to apologize to the victim if she accepts. He asked his aunt, member of the Justice Committee, to accompany him in this process and she accepted. He wants to work with the Justice Committee and the coordinator confirms that the organization can provide help for him.

He wants to stay connected to his culture, to continue to provide country food for his extended family and to benefit from the services of the [Organism B] Men’s association. Gladue considerations: systemic, historical and individual factors of Aboriginal people—Recommendations [ 93 ] Taking into consideration the Gladue factors, the writer recommends: • That L. undergoes a psychological/psychiatric evaluation and follows any recommendations that will be made; • That L. participates in culturally adapted programs to address his issues; • That L. attends treatment centre A to deal with his addiction and trauma.

Once back in Town B: • That L. lives with his mother E. P.; • That L. participates in a follow-up with Ituk Ningiuk, a community worker at Health Center A, on an individual and group setting to receive help with alcohol addiction, on a

schedule agreed with the worker; • That L. apologizes to the victim with the help of the justice committee if the victim accepts to receive his apologies; • That L. participates in a follow-up with the justice committee and participates to the outings with the committee when they occur; • That L. participates in traditional activities with [Organism B] men’s association and/or with his aunt E. P. to maintain contact with his culture, provide country food for his family and manage alcohol abuse in a traditional way.

The parity [ 94 ] In 2004, Justice Sansfaçon [9] drew a portrait of the sentence generally imposed by the Court for sexual offences. This list was cited with approbation by the Court of Appeal [10] in 2014. [ 95 ] The Court studied jurisprudence provided by the parties and some other decisions also. It’s important to mention that, as the Crown attorney said, no similar situation was found. Reference Date Male- Female- with or without prior Aboriginal offender or not Offence Sentence

R. c. Neashish [11] 2016-10-11 Male without prior Aboriginal Multiples sexual assaults on 5 victims. Abuse of authority (offender was a policeman, during police intervention) and on victims under 16-year-old 6 years concurrent between each file. Denis-Damée c. R [12] 2018-08-08 Female without prior Aboriginal Manslaughter 2 years + 3- year supervised probation R. c. Turpin [13] 2018-03-12 Man without prior No Sexual assault 30 months R. v. Qumaluk [14] 2019-03-22 Man with many priors in similar matter Aboriginal. Inuit from Hudson Bay Sexual assault on an adolescent 5 years R. c.

E.F. [15] 2016-05-31 Man without prior No Aggravated sexual assault - conjugal context 8 years R. v. Lemaigre [16] 2018-04-05 Man with priors not similar matter Aboriginal Sexual assault 3.5 years R. c. Hubert [17] 2017-10-18 Female without any prior No Sexual assault with the participation of a third party 2 years + 3- year supervised probation R. c. Cloutier [18] 2004-12-20 Man without any prior No Multiple sexual assaults 42 months Dyck v. R [19] 2014-09-12 Man with priors not similar matter No Aggravated sexual assault – conjugal context – similar injuries on the victim – bounded by a probation 6 years R. v.

Green [20] 1998-06-12 (one year before R. c. Gladue) Man without prior Aboriginal - Inuit Aggravated sexual assault – similar facts than the event of 2018 - similar injuries on the victim – the accused call the clinic himself and revealed his guilty to the police few hours later. 4.5 years Analysis 1.

Sentence [ 96 ] After having taken into consideration all the circumstances of the present file, the principles of sentencing and the Gladue factors, the Court considers, as the Gladue writer suggests, that the accused is well surrounded to be able to succeed his process of rehabilitation. [ 97 ] The Court does not share the position expressed in the pre-sentential report as it does not appear complete and it expresses opinions which do not consider the Inuit values. [ 98 ] The Court has judicial knowledge that the Justice Committee of Town B and his members are known for their important involvement and strong mobilization towards their community members.

The [Organism B] Men’s Association also showed its implication in the community for many years. The accused has the chance to have close family members in the Justice Committee who have confidence that he could come back and be an asset for his community. [ 99 ] The Court does not minimize the seriousness of the infraction and the important consequences on the victim. The evidence shows that the accused feels bad for what he did and is ready to respect the victim.

He would like to be able to excuse himself, but only if she accepts. [ 100 ] The Court also has to consider the consequences of the detention, not only on the accused, but also on his children who have the right to know their father, to grow up in his presence and to learn from him the Inuit values. [ 101 ] The accused had serious injuries since his last accident. Those injuries have an impact on his personality and on his health. He would like to know more about them, to receive treatment if possible or minimally to adapt his life to his long-term.

As any other person, he has the right to receive this medical attention which will help him and his family members.

[ 102 ] This will be the first step on his way to rehabilitation.

The following steps will be to follow the medical recommendations and to benefit from all services offered in his community. [ 103 ] The Court considers that it will be more beneficial for the accused and the society to impose a long period of supervised probation after a two years less one day of detention for the event of 2018, concurrent on each count, and a period of 18 months followed by the same probation for the offence of 2012, concurrent on each count. [ 104 ] For the file of breach of probation, the Court will impose a sentence of 60 days of detention. [ 105 ] The Court reminds the accused the importance to respect the conditions of the probation because the objective is not only to supervise him.

The main goal is to offer him the opportunity to become a better person, gain and/or maintain his sobriety, a healthy lifestyle and understand and control his emotions so he does not turn to violent behaviour when he is angry. 2. Sentence concurrent or consecutive? [ 106 ] The Criminal Code establishes: 718.3

(4) The court that sentences an accused shall consider directing (

a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing; and (

b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when (

i) the offences do not arise out of the same event or series of events, (ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or (iii) one of the offences was committed while the accused was fleeing from a peace officer. [ 107 ] As Justice François Huot [21] written in a very detailed decision: [426] As a general rule, criminal offences with [TRANSLATION] “a close connection”, arising from the same incident or forming part of the same criminal transaction will result in concurrent sentences for the accused. [427] However, s. 718.3(4) Cr.

C. stipulates that the judge who imposes a prison sentence may order that it be served consecutively to any other, including when offences do not arise out of the same event or series of events. In so doing, the judge must nevertheless review the total impact of the sentences and ensure that the cumulative term of imprisonment is just and appropriate. In other words, the total sentence rendered must not exceed the overall culpability of the offender.

In this regard, it can be said that the totality principle is, in fact, a specific application of the proportionality principle. [432] The court must first establish an appropriate sentence for each of the offences concerned by weighing their objective and subjective gravity. When sentences of imprisonment are imposed, it must then determine whether they are to be served concurrently or consecutively. To decide on this matter, the judge simply uses “common sense”.

In the third and final step, the court takes a last look at the combined sentence to ensure that it is “just and appropriate”, given the offender’s overall culpability. The goal here is to avoid imposing on the accused a “crushing sentence” not in keeping with his or her record and rehabilitation prospects. [ 108 ] Considering the offences have no link between them, the sentence should be consecutive.

That being said, after taking into consideration the totality of this sentence, the Court considers that a period of four years would be excessive and, for the reasons exposed previously, a total of two years is a fit sentence. 3. Preventive custody [ 109 ] Regarding the preventive custody, the Criminal Code establish: 719

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody. [ 110 ] In 2019 the Court of appeal [22] resume, as follows, the principles establish by the Supreme Court [23] in 2014: - The correct rate cannot be determined by a rigid formula, and is best left to the sentencing judge; - The circumstances referred to in section 719(3.1) do not need to be exceptional; - Section 719(3.1) is an exception to the general rule; - The quantitative rationale for the practice of granting enhanced credit is to ensure that the offender does not spend more time behind bars than if he had been released on bail; - The second rationale for enhanced credit is qualitative in nature.

Time in pre-trial detention is often more onerous than post-sentence incarceration. As Cronk J.A. noted in this case, overcrowding, inmate turnover, labour disputes and other factors also tend to make pre-

sentence detention more onerous; - The onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention. Generally speaking, the fact that a pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit; - When evaluating the qualitative rationale for granting enhanced credit, the onus is on the offender, but it will generally not be necessary to lead extensive evidence.

Of course, the Crown may respond by challenging such an inference; - The judge can take into account the agreements between the parties concerning the conditions of pre-trial detention and their impact on the qualitative criteria; - Sections 719(3) and 719(3.1) do not exist in isolation, but form part of the overall sentencing scheme in the Criminal Code .

Section 719 should be interpreted in a manner that is consistent with the principles and purposes of sentencing; - The sentencing judge is also required to give reasons for any credit granted (s. 719(3.2)). [ 111 ] The parties suggested to the Court to consider a ratio of 1:1.5 for each day of preventive custody. Considering the seriousness of the offence, the Court can’t concur with this suggestion and does not consider that any reason was provided to justify the application of this ratio. [ 112 ] The Court will deduce only the real period of preventive custody which is as of today 199 days.

The accused will have to serve 730–199 = 531 days of detention as of today.

FOR THOSE REASONS, THE COURT: [ 113 ] CONDEMNS the accused to serve, in the following files: 640-01-040244-189 2 years less one day (730) of detention less the preventive custody (199) for a total of 531 days as of today on counts 1, 2 and 4, concurrently with all the counts. 640-01-040431-182 18 months on counts 3 and 4, concurrently with all the counts and with the other record. 640-01-040147-184 60 days on count 1, concurrently with the other records. 640-01-040245-186 60 days on count 1, concurrently with the other records. [ 114 ] RECOMMENDS , during the detention, that the accused: - Undergo a psychological/psychiatric evaluation and follows any recommendations that will be made; - Participate in culturally adapted programs to address his issues; - Attend treatment centre A to deal with his addiction and trauma. [ 115 ] ORDERS a prohibition to communicate directly or indirectly with the victim C.

K. during the period of detention according to

section 743.21 Cr.C . [ 116 ] ORDERS the accused to respect the following conditions of his probation for a period of 3 years: - Keep the peace and be of good behaviour; - Appear before the Court when required to do so; - Remain under the jurisdiction of the Province of Quebec; - Notify the probation officer of any change of address or name and quickly notify of any change of employment or occupation; - Communicate with the probation officer following the 5 working days of his release and after following the modalities imposed by the probation officer; - Prohibition to communicate directly or indirectly with the victim C.

K., except if the probation officer obtain her previous consent and only in a process of apologies, the modalities having to be discussed and agreed with the victim; - Follow the counsels and directives of the probation officer regarding any medical, psychological, psychiatric or neuropsychiatric follow-up and follow the medical recommendations and prescription; - Follow the counsels and directives of the probation officer regarding any therapy or follow-up with regards with drugs and alcohol

addiction and anger management; - Provide the probation officer with the relevant authorization to allow him or her to receive information regarding the accused’s participation and evolution in any kind of therapeutic follow-up; - Prohibition to possess any firearm except for the purpose of traditional activities; The probation order applies on all records. [ 117 ] AUTHORIZES to take samples of bodily substances according to

section 487.051

(1) Cr.C . (primary designated offence) and ORDERS the accused to comply, in the files: 640-01-040244-189 and 640-01-040431-182 on each count. [ 118 ] PROHIBIT the accused from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years (

section 109 Cr.C .) except for the purpose of traditional activities( section 113 (1) Cr.C .). [ 119 ] ORDERS the accused to comply with Sex Offender Information Registration Act (section 490.012 Cr.C .) for life. __________________________________ PEGGY WAROLIN J.C.Q. Me Vincent Huet, attorney for the Crown Me Nicholas Ouellet, attorney for the accused Dates of hearing: December 18, 2018 and May 21, 2019