r v. BRIAN KAWAPIT, 2013 QCCQ 5935

JL3645 R. c. Kawapit 2013 QCCQ 5935 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI COMMUNITY OF WHAPMAGOOSTUI Criminal and Penal chamber Nos. 640-01-018624-099 / 640-01-019310-102 / 640-01-018015-090 DATE: April 12, 2013 ______________________________________________________________________ PRESENT: RENÉE LEMOINE J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

BRIAN KAWAPIT Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I - INTRODUCTION [ 1 ] The accused, Brian Kawapit, pleaded guilty to the following offences: File: 640-01-018624-099 [ … ] 2.

On or about December 5, 2009, in Whapmagoostui, district of Abitibi, operating a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances, being pursued by a peace officer operating a motor vehicle, in order to evade the police officer, did fail to stop the vehicle as soon as was reasonable in the circumstances and did cause bodily harm to I. R., committing thereby the indictable offence provided by

section 249.1(3) (4)(

a) of the Criminal Code . [ … ] 5. On or about December 5, 2009, in Whapmagoostui, district of Abitibi, did operate a motor vehicle, while his ability to drive a motor vehicle was impaired by alcohol or a drug and causing thereby bodily harm to I. R., committing thereby the indictable offence provided by section 255(2) of the Criminal Code . File: 640-01-019310-102 1. On or about September 20, 2009, in Kuujjuarapik, district of Abitibi, did operate a motor vehicle, while his ability to drive a motor vehicle was impaired by alcohol or a drug, committing thereby the offence punishable on

summary conviction provided by sections 253(1) (

a) and 255(1) of the Criminal Code . File: 640-01-018015-090 1. On or about April 11, 2009, in Kuujjuarapik, district of Abitibi, did operate a motor vehicle, while his ability to drive a motor vehicle was impaired by alcohol or a drug, committing thereby the offence punishable on

summary conviction provided by sections 253(1) (

a) and 255(1) of the Criminal Code . II – ISSUES [ 2 ] What is the appropriate sentence, considering the nature of the offences, the circumstances of their commission and personal characteristics of the accused?

[ 3 ] If the Court finds that a sentence of imprisonment of less than two years is an appropriate sentence, the Court must decide the following questions: [ 4 ] Would a sentence of imprisonment in the community have been the appropriate sentence were it not for the legislative amendments? [ 5 ] Does the exclusion of a sentence of imprisonment in the community give rise to cruel and unusual treatment or punishment, within the meaning of

section 12 of the Canadian Charter of Rights and Freedoms (the "Charter")? [ 6 ] Does the prohibition against imposing a sentence of imprisonment in the community under sections 742.1 and 752 of the Criminal Code constitute a violation of the right to liberty and the right not to be arbitrarily imprisoned set forth in sections 7 and 9 of the Charter ? [ 7 ] If so, is the violation justified, within the meaning of

section 1 of the Charter ? III – THE FACTS File: 640-01-018015-090 [ 8 ] On April 11, 2009, the accused was operating a snowmobile when the police intercepted him at 9:40 p.m. His ability to drive was impaired by alcohol. File: 640-01-019310-102 [ 9 ] Five months later, on September 20, 2009, he was operating a motor vehicle while his ability to do so was impaired by alcohol.

File: 640-01-018624-099 [ 10 ] On December 5, 2009, in the northern community of Whapmagoostui, the accused and another individual were trying to free an all-terrain vehicle (ATV) that was stuck in the snow. [ 11 ] Police officers parked close by were watching the scene. When the two individuals managed to free the all-terrain vehicle from the snow, the officers saw that the accused got behind the wheel and was heading their way. [ 12 ] The police officers noted that the accused showed signs of intoxication.

They therefore attempted to pull over the vehicle driven by the accused in order to check his ability to operate it. [ 13 ] The accused refused to stop and began insulting the police officers who were trying to pull him over. The officers turned on their roof lights to let the accused know they wanted him to stop, but the accused was fleeing the police. [ 14 ] The accused was driving approximately 50 km/h when he hit I. R., who was walking on the road.

The victim was thrown about 10 feet before he fell onto the road. [ 15 ] The accused fleeing the police continued on his way, hit the pedestrian, and his passenger was thrown from the ATV due to the force of the impact. [ 16 ] To prevent other accidents and immobilize the ATV operated by the accused, the police officers decided to intercept the accused with their patrol vehicle by driving it into the ATV to bring it to a stop. IV – THE PERSONAL CIRCUMSTANCES OF THE ACCUSED [ 17 ] At the time of the event of December 5, 2009, the accused was 22 years old. He did not have a criminal record.

However, he had been pulled over twice for alcohol-impaired driving, on April 11, 2009 and September 20, 2009. [ 18 ] The accused was born and grew up in the community of Whapmagoostui. He spent most of his childhood in the bush with his parents, who taught him traditional values. His father had a drinking problem, however, and the accused regularly witnessed his father subject his mother to domestic violence. The violence occurred when they were not living in the bush. The accused confirmed to the probation officer that his parents still have a drinking problem.

But according to the Justice Committee report, in the spring of 2011, the accused's father stopped drinking for medical reasons and his mother to be supportive for her husband stopped drinking as well. [ 19 ] The accused dropped out of school in Secondary III. He liked school, but had trouble attending in the morning, because he had to baby-sit his siblings at night. [ 20 ] At 18 years of age, the accused became a hunter. He took

part in the Income Security program of his community. He spent most of his time in the bush. He hunted to provide for himself and his family. He also worked at the Cree Cultural Camp in Whapmagoostui. He was given small contracts by the band council of his community. [ 21 ] The offences committed in 2009 are linked to the beginning of alcohol intake by the accused. He would drink alcohol every three or four months.

Following his arrest and preventive custody, he quit drinking. [ 22 ] He reportedly started using marijuana very early on, at the start of adolescence, and quit around the age of 15. [ 23 ] According to the evaluation by the probation officer, the accused learned an adequate system of values, which is a positive element in rehabilitation. However, the accused seems to be easily influenced and impulsive, which played a role in the commission of

the offences. His lack of judgment and his poor ability to anticipate must also be taken into account in the evaluation of the contributing factors in the events. Although the accused has taken measures to change his lifestyle and stay sober, the probation officer suggests that he works with a professional to avoid re-offending. [ 24 ] The accused began follow-up in April 2012 with Dennis Windingo, a counsellor with the Cree Board of Health and Social Services of James Bay (CBHSSJB). Mr. Windingo confirmed that the accused attends the meetings scheduled as part of his follow-up. He has to travel outside his community for his treatment. [ 25 ] The accused has also taken

part in meetings with the Whapmagoostui Justice and Healing Committee. He participated in a circle held on September 14, 2011 with members of the justice committee, his family and the victim, I. R.. [ 26 ] The Court believes it is important to reproduce part of the report prepared by the Whapmagoostui Justice and Healing Committee: The recommendations of the Circle The discussions made on a consensus basis led to measures, according to the circle, that would satisfy the needs of all participants and the community.

As a result, the following recommendations which were formulated are satisfactory of the participants and also, appeared to comply with the sentencing objectives and principles used by the court when determining a sentence. Participation in the Circle; deterrence and reparation In the Circle, Brian Kawapit had to face the sad realization that he had caused harm to I. R., and he was deeply remorseful. During the Circle, he saw and heard the real impact of the event on his own family as well. The Circle has, until now, been the only process that appears to have had a reparative effect on the victim.

Also, the re-establishment of connection between the individuals affected by the situation has also helped to restore balance. The Circle itself appears to us to have helped to deter the offender from committing offences. It also appears to have helped to provide some reparation for harm done to the victim, and to promote a sense of responsibility for Brian, and acknowledgement of the harm done to the victim and to his community.

View of the participants concerning imprisonment The participants in the Circle consider that imprisonment would only increase Brian Kawapit's isolation and make him withdraw and be more introverted. It is known that for young aboriginal delinquents, imprisonment increases ostracism. Participants considered that after a prison sentence, the risk of re-offending would not be reduced since little possibilities of healing and working on his issues and self- esteem will be present.

The best alternative to imprisonment, in their view, is a structured supervised probation, along with the conditions described below and the involvement of the justice committee and his family, which Brian accepted as well.

The participants and the justice committee feel that since Brian Kawapit has already served time in preventive custody (2 weeks) and in addition, has shown great collaboration since the incident and has respected his conditions since December 2009, it is highly probable that he will continue to respect conditions imposed and show good collaboration if a structured probation along with support and traditional counselling is ordered by the court.

Recommendations for sentence of Brian Kawapit Brian Kawapit shall be under a supervised probation order to two years under which the accused shall do all of the following: − For the first 18 months of his probation, Brian Kawapit shall go in the bush during the periods where traditional Cree people go in the bush. Brian will stay with his parents and extended family and/or with any other person appointed by the Whapmagoostui justice committee for the duration of these stays in the bush.

Therefore, Brian would go from October to December and return in the community in December, when hunters and trappers are coming back, then return to the bush from April until June and so on. − Upon his return to the community in December, Brian shall bring back traditional food for the Christmas feast, from the result of hunting of trapping. This measure is designed to maintain and enrich the connection with the traditional Cree culture that Brian Kawapit and the participants feel he deeply needs.

It is also designed to provide supervision for Brian and isolate him from possible negative influence for some periods of time. It will offer Brian some time out to continue his personal introspective and healing process in a peaceful environment. Family members of appointed people will be responsible for supervising Brian in the bush. − Brian shall also get guidance and traditional counselling from designated elders in the bush and in the community to deal in a more traditional manner with his issues and drinking.

The justice committee will be responsible of pairing Brian with elders. − Brian shall come back to Whapmagoostui when traditional people and hunters come out of the bush back into the community. During these periods in the community, Brian shall live with his parents at 51 Bipichow Maskino and respect his curfew and be home between 23h and 7h, except for traditional activities. − Brian shall attend monthly meeting with the Whapmagoostui Justice Healing Committee, and as well meet his probation officer

when requested to do so. − Brian shall perform 240 hours of community work within a period of 9 months, working at summer and winter traditional gatherings and other traditional activities which require cutting woods, getting boughs and rocks, providing country food, etc This measure will allow Brian to make a positive contribution to community life in Whapmagoostui, to donate his time and to repair the harm caused to his community − Brian shall show good conduct, cooperate with the people involved in each measure, and refrain from drinking alcohol during the probation period of two years − Brian shall refrain from driving a motor vehicle on during a period of three years.

It appears clear to the Whapmagoostui Justice and Healing committee that the recommendations resulting from the Circle held on September 14th, 2011 will help the court for the examination of all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, with particular attention to the circumstances of aboriginal offenders. (section 718.2(e)). [ sic ] [ 27 ] The Whapmagoostui Justice and Healing Committee is very active and involved in the judicial process. The committee's report reflects the Cree community of Whapmagoostui's specific conception of sentencing.

The participants in the circle advocate a holistic approach aimed at getting the accused to take responsibility for his actions and at providing reparations for harm done to the victim and the community at large. [ 28 ] The Court also heard the testimony of Mr. Rusty Mamiamscum, a member of the justice committee since 1997. [ 29 ] With respect to the committee's recommendations, Mr. Mamiamscum explained the importance of hunting in traditional Aboriginal values. Hunting is not a sporting activity. In the past, the Cree people have been struck by famine.

Consequently, eating game meat has a spiritual and sacred aspect to it. Hunters are highly respected in the community. The objective of the recommendation to hunt on behalf of the community is to provide reparations for harm done, in order to restore balance. [ 30 ] The victim, I. R., is a hunter. He was unable to hunt during his period of disability. It is therefore important for the justice committee to make such a recommendation. [ 31 ] In addition, Mr.

Mamiamscum emphasized that the historical reality of the nine Cree communities is different and that this social and cultural difference must be taken into account. [ 32 ] Mr. Mamiamscum described the accused as a highly introverted young man. The accused nevertheless expressed sincere regret and remorse within the circle. V – THE CONSEQUENCES FOR THE VICTIM [ 33 ] Mr. I. R. is a member of the Cree community of Whapmagoostui and a highly respected hunter. [ 34 ] He sustained a broken femur and lost consciousness in the accident.

As a result of the injuries, the victim was hospitalized and underwent an operation and treatment for several months. At the sentencing hearing, Mr. R. said that he had fully recovered within a year. The accident obviously had major consequences on his ability to hunt during his period of disability. As mentioned earlier, Mr. R. took

part in the circle. He confirmed that the accused apologized to him as part of that process. VI – THE LAW The applicable sentences [ 35 ] Dangerous operation of a motor vehicle causing bodily harm, while being pursued by a peace officer in order to evade the police officer and did fail to stop, renders the offender liable to imprisonment for a term not exceeding 14 years, under

section 249.1(4) (

a) of the Criminal Code . [ 36 ] Impaired driving causing bodily harm is punishable by imprisonment for a term not exceeding 10 years, in accordance with section 255(2) of the Criminal Code . [ 37 ] Pursuant to section 255(3.3) of the Criminal Code , the minimum punishment described in section 255(1) (

a) of the Criminal Code applies for a first offence, a fine of not less than $1000. [ 38 ] As for the two offences of operating a motor vehicle while impaired, a fine of at least $1000 applies. [ 39 ]

Section 742.1 of the Criminal Code rules out the possibility of a conditional sentence of imprisonment . That provision must be applied in combination with

section 752 of the Criminal Code , pursuant to which an offence involving conduct endangering or likely to endanger the life or safety of another person constitutes a "serious personal injury offence", within the meaning of subparagraph ( a )(ii). [ 40 ] In Boisclair v. La Reine , [1] the Court of Appeal of Québec recently confirmed that, once a judge determines that conduct endangering the life or safety of another person is involved, it is a "serious personal injury offence" and imprisonment in the community is not an option.

The general principles and objectives of sentencing [ 41 ]

Section 718 of the Criminal Code sets forth the objectives to be taken into account in sentencing. 718. The fundamental purpose of sentencing is 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; (

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 and to the community. [ 42 ]

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In addition,

section 718.2 sets forth the other principles that must be considered in sentencing. In particular, the Court must increase or reduce a sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. It must take into account that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Moreover, an offender should not be deprived of liberty until the Court has considered all available sanctions other than imprisonment, with particular attention to be paid to the situation of Aboriginal offenders. [ 43 ] Of course, sentencing is an individual process in which all the relevant factors provided for in the Criminal Code must be considered. [2] [ 44 ] The method proposed by the Supreme Court of Canada in the case of Aboriginal offenders requires the Court to examine several aspects described as follows in Gladue . [3] 80 As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?

What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown?

Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? 81 The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence.

The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstances in light of the aims and principles of sentencing as set out in

Part XXIII of the Criminal Code and in the jurisprudence, the judge must strive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2(e), sentencing judges have been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration which are appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing. In this way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender.

Position of the parties [ 45 ] The Crown prosecutor suggested imprisonment for a term of between 18 and 24 months less a day. [ 46 ] That position is based on the necessity of meeting the objectives of denunciation and deterrence and of reflecting the intention of the legislator, who increased the sentences for this type of offence. [ 47 ] Counsel for the defence acknowledged the gravity of the offence committed.

However, he pointed out that sentencing is an individual process in which all the relevant factors must be considered. [ 48 ] In his view, the accused does not pose a threat to his community and the various circumstances support an imprisonment in the community. VII - ANALYSIS The aggravating factors [ 49 ] The accused was arrested for impaired driving twice, in April and September, in the eight months prior to the accident. [ 50 ] The accused did not stop when the police intervened, and he hit I. R. while fleeing the police.

[ 51 ] The accused fleeing the police hit the victim and was immobilized a few minutes later by the police. [ 52 ] He was intoxicated to the point where he has no recollection of the event. [ 53 ] The risk of committing an offence of the same or similar nature cannot be completely ruled out. [ 54 ] The injuries inflicted on the victim and the resulting prejudice.

The mitigating factors [ 55 ] The accused pleaded guilty and recognized his responsibility. [ 56 ] He has cooperated adequately with the probation officer and the Whapmagoostui Justice and Healing Committee. [ 57 ] He has no prior convictions. [ 58 ] He is sincerely remorseful and expressed his remorse to the victim, his family and his community within the circle. [ 59 ] He stopped consuming alcohol after the accident and receives services to help him stay sober. [ 60 ] The accused's chances of rehabilitation are positive according to the Justice Committee and also according to the probation officer even if she does not appreciate in the same manner the risk of recidivism.

The distinctive systemic and background factors [ 61 ] The Court must ensure that it has all the information it needs to meet the principle of

section 718.2 (

e) of the Criminal Code , which stipulates that particular attention must be paid to Aboriginal offenders. [4] [ 62 ] More recently, in R. v. Ipeelee , [5] the Supreme Court of Canada indicated that judicial notice of the systemic and background factors must be taken. Given the courts' hesitation to heed that directive, the Supreme Court listed the background elements that have an impact on understanding the situation of Aboriginal offenders and on determining an appropriate sentence.

These include, in particular, the history of colonialism, displacement, residential schools, and how that history still affects the communities today, in the form of lower levels of education, lower income, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for First Nations members. [ 63 ] The justice committee's report shows that, during childhood and early adulthood, the accused was exposed to an environment in which the parents drank a lot when they were not in the bush. His parents themselves grew up with parents who had a drinking problem. Mr.

Kawapit's family has not been immune to the intergenerational effects of the collective experience of Aboriginal people. [ 64 ] The Court refers to a document entitled The Cree and Social Impacts of Historic Events in James Bay , prepared by Janie Pachano.

Several factors are identified as having had major social impacts for the Cree Nation. [ 65 ] The historic events include the establishment of the Hudson's Bay Company and the start of the fur trade, which made alcohol a part of trading. [ 66 ] The arrival of the missionaries, whose values ran up against traditional Aboriginal values and whose influence considerably, affected traditional beliefs and practices. [ 67 ] The placement of children in residential schools also contributed to the deterioration of the social situation in Cree communities.

The result was a situation of intergenerational neglect described as follows: Many who attended residential schools have good memories of those years. They are grateful of the strengths they have developed as a result of their experience, for being survivors inspite of traumatic experiences. Perhaps the most serious social impact of the residential schools on Fort George was the result of the forced separation of the children from their families. At least two or three generations of Cree spent their formative years in residential school where there no parenting role models.

As they themselves became parents, they had no skills to draw on and their children suffered. Child and elder neglect became more common, as did conjugal violence, sexual abuse, etc. [ sic ] [ 68 ] The systemic factors do not excuse or justify the accused for the offence committed.

They establish the contextual frame resulting in an appropriate sentence. [ 69 ] In the past as the situation today, each individual was and still is very important to his or her community. [ 70 ] Even today, the bond between the members of the community makes the community strong and autonomous. [ 71 ] From a historical standpoint, the Cree Nation is described as follows: The Cree could not have survived to date had not their ancestors been strong physically, mentally, emotionally and spiritually.

They survived off the land through the harshest of winters, through lengthy periods of great needs when large numbers of their population died of starvation. They could not have survived without strong values, without strong work ethic, without looking out for and helping each other through the worst of times. [6]

[ sic ] [ 72 ] That way of life and the tough living conditions explain the Aboriginal perspective, which favours restorative justice. The justice committee report offers the following explanation: Dealing with the crime from a Cree perspective.

The participants, all crees, wish to promote an holistic approach which is part of their cultural heritage in their response to crime: − The response to crime should encourage the restoration balance; − The rehabilitation of the offender and rebuilding his links with the community are vital; − Reparation to the community and victim is essential; − The objective of dissuasion is more likely to be achieved through a process such as the Circle, where the individual has to face the people affected by his actions, be accountable, be active in finding ways to repair the damage he has done and ways to prevent such event to reoccur.

Therefore: − The participants in the Circle consider that a prison sentence would do more harm to Brian Kawapit and would not contribute to teach him to become a fully responsible person or to restore the harm done to the victim and the community. [ sic ] [ 73 ] The sentencing process is aimed at imposing a just and appropriate sentence.

Sections 718 to 718.2 of the Criminal Code confer broad discretionary power so that the sentence crafted meets the objectives of sentencing. [ 74 ] The Court's discretionary power is limited by the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. R. v. Nasogaluak [7] states that the ranges of sanctions for certain offences are not hard-and-fast rules, but guidelines.

Sentencing judges must ensure that they adhere to the principles and objectives of sentencing. [ 75 ] In that regard, Ipeelee [8] reiterates that the parity principle in

section 718.2 (

d) demands that any disparity be justified. Different sanctions for Aboriginal offenders are justified by the offenders' unique circumstances. The Supreme Court confirmed that the parity principle must not undermine the remedial purpose of

section 718.2 ( e ). [ 76 ] The Court recognizes that the Crown's suggestion to impose imprisonment is in line with the range of sentences for this type of offence. In fact, a number of decisions were submitted in support of that recommendation: R. v. Shawn Côté Impaired driving causing bodily harm 8 months Non-Aboriginal offender 22 years old Victim – fractured sternum, broken ribs and fractured right ankle Passenger – broken back R. v. Marcel Busque Accused – 63 years, 10 months old Impaired driving causing bodily harm Victim severely disabled Sentence of 48 months 3-year driving prohibtion R. v. Bélanger Impaired driving causing bodily harm Several previous offences

(6) Child victim – slight limp 18 months' imprisonment 5-year driving prohibition R. v. Steven Yuliusie Inuit, resident of Saluit Hit and run causing death Victim – 6-year-old child Seven breaches of recognizance Impaired driving Joint recommendation Sentence – 2 years and a day 5-year driving prohibition [77] In the case of Ferland v. R.[9], the Appeal Court of Québec states that in cases involving driving a motorized vehicle, thesentence must reflect the disapproval of the society.

The Court makes an extensive review of the jurisprudence, which confirms thatimprisonment is generally imposed in this matter. [78] Having weighed the principles and objectives in sections 718 and 718.2 of the Criminal Code, the Court considers that it isjustifiable in the present case to deviate from the range of sentences generally imposed for this type of offence. [79] The justice committee's recommendation not to impose imprisonment raises the issue of the application of the principles inGladue,[10] in the event of serious or violent crime. [80] The Supreme Court tackles the issue head-on in Ipeelee,[11] when it says that the courts erroneously interpret the principles inGladue as not applying to serious or violent crime.

The Court wrote: [84] The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of theGladue principles to sentencing decisions for serious or violent offences. As Professor Roach has indicated, "appellate courts haveattended disproportionately to just a few paragraphs in these two Supreme Court judgments — paragraphs that discuss the relevance ofGladue in serious cases and compare the sentencing of Aboriginal and non-Aboriginal offenders" (K. Roach, "One Step Forward, TwoSteps Back: Gladue at Ten and in the Courts of Appeal" (2009), 54 Crim.

L.Q. 470, at p. 472). The passage in Gladue that has receivedthis unwarranted emphasis is the observation that 2012 SCC 13 "[g]enerally, the more violent and serious the offence the morelikely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same,even taking into account their different concepts of sentencing" (para. 79; see also Wells, at paras. 42-44).

Numerous courts haveerroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v.Carrière (2002), (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.)) [81] The legislator's exclusion of imprisonment in the community for crimes involving a "serious personal injury offence" within themeaning of

section 752 of the Criminal Code also raises a question. Can a sanction other than imprisonment be considered, given thelegislator's exclusion of imprisonment in the community? [82] At first glance, it can seem paradoxical to consider a sanction other than imprisonment when the legislator appears to wantharsher sentences for this type of offence. [83] However, there is no minimum term of imprisonment for the offences committed by the accused and the Court still has judicialdiscretion. [84] In R. v. Perry,[12] the Court of Appeal of Québec had this to say in its examination of the constitutionality of

section 742.1 ofthe Criminal Code: [TRANSLATION] [106]

Section 742.1 Cr.C. does not impose a mandatory minimum term of imprisonment. The judge has full discretion in setting theterms of the sentence imposed, in compliance with the purpose and principles set forth in sections 718 to 718.2 Cr.C., and, where thepunishment is imprisonment, in setting the term. The legislator ruled out only one option—imprisonment in the community. [85] Since the legislator did not amend

section 718.2(

e) of the Criminal Code, the Court must follow the method proposed inGladue[13] and the clarifications in Ipeelee[14] in interpreting this remedial provision. [86] In R. v. Peters,[15] the Court of Appeal of Ontario shows that it is possible to conclude that incarceration is not an appropriatesanction, even in the case of a serious crime committed by an Aboriginal offender. The Court of Appeal concluded that the sentencingjudge correctly weighed the applicable principles and objectives in reaching that conclusion.

[87] The sentence must be in keeping with the fundamental principle of proportionality. The sentence must be proportionate to thegravity of the offence and the degree of responsibility of the offender. Admittedly, the offences committed by the accused are serious,both objectively and subjectively, because they caused bodily harm to a member of his community.

As regards the responsibility of theaccused, Wells[16] and Ipeelee teach that the moral blameworthiness of the accused, in the case of an Aboriginal offender, may beinfluenced by systemic and background factors. [73] First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his orher level of moral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "theunique systemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender’sconduct" (para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntaryconduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities andlimited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actionswere not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish theirmoral culpability.

As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097 ,2002 ABQB 1097, 331 A.R. 50, after describing the background factors that lead to Mr. Skani coming before the court, "[f]ew mortalscould withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into accountwould violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender.

The existence of such circumstances may also indicate that a sanction that takes account of theunderlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. As Cory and Iacobucci JJ.state in Gladue, at para. 69: In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors inevaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to thecommunity of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevanceprecisely because the prevention of crime as well as individual and social healing cannot occur through other means. [88] Consequently, the Court is of the view that this element should be taken into account as a mitigating factor, in the accused'scase, in determining the appropriate sentence. [89] Can the objectives of denunciation and deterrence be met otherwise than by imposing a sentence of detention? [90] The Court believes that, to achieve the remedial purpose of

section 718.2(

e) of the Criminal Code, account should be taken ofthe justice committee's vision for attaining the objectives of denunciation and deterrence. The justice committee holds that participationin the circle and the accused's obligation to take responsibility by facing his victim and listening to him talk about the damage causedhim has an element of deterrence and denunciation, as does the impact of his action on his own family.

The process is a prerequisite tosentencing, but will be ongoing if the accused is required to hunt for his community and to do voluntary work. [91] The importance of such a process in a small community whose members regularly interact with one another cannot beunderestimated. Facing the community on an ongoing basis is, in the opinion of the Committee, an essential element of denunciation anddeterrence. [92] In that regard, the Supreme Court of Canada stated in Gladue[17] that the restorative approach is not necessarily a lenientsentence.

The Court had this to say in paragraph 72: 72 The existing overemphasis on incarceration in Canada may be partly due to the perception that a restorative approach is a morelenient approach to crime and that imprisonment constitutes the ultimate punishment. Yet in our view a sentence focussed on restorativejustice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined withprobationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

See Kwochka,supra, who writes at p. 165: At this point there is some divergence among proponents of restorative justice. Some seek to abandon the punishment paradigm byfocusing on the differing goals of a restorative system. Others, while cognizant of the differing goals, argue for a restorative system interms of a punishment model. They argue that non-custodial sentences can have an equivalent punishment value when produced andadministered by a restorative system and that the healing process can be more intense than incarceration.

Restorative justice necessarilyinvolves some form of restitution and reintegration into the community. Central to the process is the need for offenders to takeresponsibility for their actions. By comparison, incarceration obviates the need to accept responsibility.

Facing victim and community isfor some more frightening than the possibility of a term of imprisonment and yields a more beneficial result in that the offender maybecome a healed and functional member of the community rather than a bitter offender returning after a term of imprisonment. [93] The imposition of a sentence in line with the Cree community of Whapmagoostui's specific conception of sentencing, whilefollowing the applicable legal principles, appears to be the most appropriate sanction for the accused and his community. [94] The testimony of Mr.

Losty Mamianscum shows that the members of the Justice Committee understand the applicable legalprinciples and, even if they have a holistic approach, consider that sometimes sentence of imprisonment must be rendered. The Courtrefers to Mr. Maminascum’s testimony at page 55 of the transcription: […] Well in my considerate opinion, I think it would undermine the work of the Justice committee and it would also undermine the, theefforts at rehabilitation. (Translation) But I think that the principles that were outlined by the Prosecutor, we're all aiming for those principles as well.

( Translation ) And we do understand that sometimes (inaudible) would have to be sent South for their safety and the safety of the, of the people. ( Translation ) But Brian is not one of those people. […] [ 95 ] It should be emphasized that this decision does not mean that a sanction other than imprisonment will automatically be imposed with respect to First Nations members.

The circumstances of the event, the personal situation of the accused and his community, and the involvement of the Whapmagoostui Justice and Healing Committee are all factors enabling the Court to reach this conclusion. [ 96 ] The Court takes into account the preventive custody of 17 days that can be considered 34 days, pursuant to

section 719 of the Criminal Code as it was in force at the time of the offences. The long period of almost 3 years and a half during the time the accused was under strict conditions of an interim release must also be taken into account. [ 97 ] The Court, in application to the principle established by the Supreme Court of Canada, should not decide with respect to constitutional issues considering the sentence imposed to the accused. [ 98 ] The Supreme Court of Canada reminds this principle in the case of Phillips v.

Nova Scotia (Commission of Inquiry into the Westray Mine tragedy) : [18] [ 6 ] This Court has said on numerous occasions that it should not decide issues of law that are not necessary to a resolution of an appeal.

This is particularly true with respect to constitutional issues and the principle applies with even greater emphasis in circumstances in which the foundation upon which the proceedings were launched has ceased to exist. [ 99 ] On a full consideration of all the principles of sentencing, including rehabilitation and the principle of restorative justice, as well as the principles of deterrence and denunciation, the sentence will be: IN THE FILE: 640-01-018624-099 Count #2 For the offence of operating a motor vehicle in a dangerous manner in order to evade the police officers, did fail to stop and cause bodily harm to Mr.

I. R.. A suspended sentence and probation for a period of two years with the following conditions: Keep the peace and be of good behaviour; Appear before the Court when required to do so by the Court;.

Report to the Whapmagoostui Justice Healing Committee and the probation officer within a delay of five working days and, thereafter, when required by the probation officer and the Justice Committee; Notify the Court, the probation officer and the Justice Committee of any change of name, address and promptly notify any change of employment or occupation; Reside with your parents at 51 Bipichow Maskino and be at this address between 11:00 p.m. and 7:00 a.m., except for traditional activities; For the first 18 months of the probation order, be in the bush during the periods where traditional Cree people are in the bush, with your parents and extended family or with any other person appointed by the Whapmagoostui Justice Committee for the duration of these stays in the bush.

Therefore, you would go from October to December and return in the community in December, when hunters and trappers are coming back, then return to the bush from April until June, and so on; Upon your return in the community in December, you shall bring back traditional food for the Christmas feast, from the result of hunting and trapping according to the conditions imposed by the Whapmagoostui Justice Healing Committee; Get guidance and traditional counseling from designated elders, in the bush and in the community, to deal in a more traditional manner with your issues and drinking problem.

The Justice Committee will be responsible of pairing Mr.

Kawapit with elders; Attend twice a month meetings with the Whapmagoostui Justice Healing Committee; Follow recommendations and instructions given by the probation officer concerning alcohol issue; Perform 240 hours of community work within a 9 months delay, working at summer and winter traditional gathering and other traditional activities, which include cutting wood, getting boughs and rocks, providing country food, etc; Prohibition to consume alcohol or any alcoholic beverages; Prohibition to drive motorized vehicles anywhere in Canada for a period of 3 years pursuant to section 259(1) of the Criminal Code .

Count #5 The minimum fine of $1000 without cost and surcharge fine; Same probation for a period of 2 years; Prohibition to drive any motorized vehicles for a period of 3 years. IN THE FILE: 640-01-019310-102 The minimum fine of $1000 without cost and surcharge fine; Prohibition to drive any motorized vehicles for a period of 3 years. IN THE FILE: 640-01-018015-090 The minimum fine of $1000 without cost and surcharge fine; Prohibition to drive any motorized vehicles for a period of 3 years. __________________________________ RENÉE LEMOINE J.C.Q. M e Marie-Josée Barry-Gosselin Counsel for the prosecutor M e Yan Massé Counsel for the accused