2019 QCCQ 7985, 2019 QCCQ 7985

Translated from the original French – Not verified by SOQUIJ R. c. Dubé 2019 QCCQ 7985 JL-3223 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ROBERVAL Criminal and Penal Division Nos.: 155-01-001438-191, 155-01-001554-195, 155-01-001555-192, 155-01-001718-196, 155-01-001719-194 DATE: December 30, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE PIERRE LORTIE, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

DAN-LEE DUBÉ Accused ______________________________________________________________________ JUDGMENT INTERIM RELEASE ORDER ______________________________________________________________________ INTRODUCTION [ 1 ] Dan-Lee Dubé (the accused), 26 years old, has been charged as follows: 1) 155-01-001438-191: On April 25, 2019, sexual assault with a weapon and forcible confinement of Ms.

M.B. 2) 155-01-001554-195: Between November 1 and November 2, 2019, did breach his bail conditions by not respecting his curfew and by being found at a certain address. 3) 155-01-001555-192: On the same dates, breach of probation (keep the peace and be of good behaviour). 4) 155-01-001718-196: Between December 4 and December 10, 2019, did harass workers at the Opitciwan sawmill (the sawmill). 5) 155-01-001719-194: On the same dates, did breach his conditions by not being of good behaviour and by using substances. [ 2 ] On December 27, 2019, the interim release hearing was held in Roberval.

Due to the complaint regarding breach of the conditions of his release, the onus was on the accused to show cause why detention in custody was not justified. [1] [ 3 ] The prosecution objected mainly on the ground of the substantial likelihood that he would not comply with any potential conditions. This was demonstrated by the numerous past breaches.

[ 4 ] The accused, an Aboriginal person and a member of the Opitciwan Atikamekw community, undertakes to respect all the conditions that the Court may impose. In addition, he argues that the prosecution’s evidence is weak. [ 5 ] In its analysis, the Court will have to consider the new provisions of the Criminal Code (Cr.

C.) that came into force on December 18, 2019, concerning the principle of restraint (section 493.1) and the particular attention that must be paid to Aboriginal accused who are overrepresented in the prison system (section 493.2). [ 6 ] The teachings of the Supreme Court in Myers must also be taken into consideration. [2] CONTEXT [ 7 ] On April 25, 2019, M.B., who lives in Roberval, was walking alone and was attacked by a man armed with a rock who took her into a bush and attempted to sexually assault her.

Fortunately, a third person intervened and was able to scare off the assailant, who was not found at that time. The police conducted an investigation and obtained a rather vague description of the assailant, who was allegedly an Aboriginal person. They collected a DNA sample from the victim’s clothing and linked it to four potential contributors.

Since the profile of the accused appeared to match, he was arrested on October 22, 2019, and then released with various conditions, including a curfew and a prohibition against going near the victim’s home. [ 8 ] The accused’s cousin claims to have seen him near the prohibited residence between November 1 and November 2, 2019, around 3 a.m. She allegedly asked him to leave and he complied. It should be noted that this place is known to the accused because there is a home there where he has previously slept.

Informed of his alleged presence, M.B. made a complaint to the police. [ 9 ] In December 2019, the accused contacted the representatives of the sawmill several times concerning a so-called labor dispute. At the time, he made incoherent remarks. The accused’s family and the sawmill employees were worried. He met with a doctor in the context of a procedure under Act “P-38.” [3] The doctor noted that he was calm and did not present any risk of suicide. [4] [ 10 ] He was subsequently charged with the present offences and arrested by the police on December 10, 2019.

At the time of the appearance, the court issued an order to assess criminal responsibility. In his report, dated December 19, the psychiatrist at the Chicoutimi hospital concluded that the accused did not meet the criteria of

section 16 Cr. C. and did not suffer from a psychiatric illness. [5] [ 11 ] On December 27, during the interim release hearing, the prosecution set out the facts and filed a list of the accused’s lengthy criminal history. [6] [ 12 ] The accused, who expresses himself properly in French, testified without addressing the facts of this case. He described his life’s journey and proposed conditions of supervision. PROFILE OF THE ACCUSED [ 13 ] Originally from Opitciwan, he still lives in this community. [ 14 ] His father died a few years ago.

Before he died, he asked him to take care of the family, which he agreed to do. [ 15 ] He lives with his mother and takes care of his family. [ 16 ] He has two children with his first spouse. A third child, from another relationship, will be born soon. [ 17 ] His relationship with his first spouse is difficult, mainly because she uses substances. [ 18 ] The accused admits that he himself has some problems. However, he has significantly cut back and uses on weekends. He abstains when he works. [ 19 ] He is trained in the field of machinery.

He has worked at the sawmill for several years and testified that he is valued by his employer. He uses his salary to support his family. [ 20 ] He stated that his mother is ready to take him in again. His spouse currently lives somewhere else. This distance is beneficial because it reduces the risk of using substances. [ 21 ] In March 2020, he will participate in a training organized by the band council, which will enable him to hold a job.

Returning to the sawmill is not out of the question if the employer there takes the initiative to contact him and if he behaves well. [ 22 ] He says that he is able to stop using. His family obligations are an important source of motivation. In addition, he is prepared to submit to any conditions that the Court may impose (curfews, prohibitions against communicating, not going to certain locations, etc.). He is able to deposit $300, which is a significant amount of money for him.

CRIMINAL RECORD [ 23 ] Since 2011, the accused has regularly found himself before the courts for assaults, threats, mischief, and thefts. [ 24 ] There are about twenty breaches of conditions related to recognizances or probation orders. [ 25 ] He has had several stays in prison. The most severe sentence was seven months.

ANALYSIS AND DECISION [ 26 ]

Section 11(

e) of the Canadian Charter of Rights and Freedoms enshrines the right not to be denied reasonable bail without just cause. [ 27 ] In Antic , rendered in 2017, the Supreme Court recalled that release is to be favoured at the earliest reasonable opportunity and on the least onerous grounds. [7] [ 28 ] On March 28, 2019, in Myers , a case dealing with pre-trial detention when the trial is delayed, the Supreme Court examined the principles governing interim release.

It noted that “nearly half of the individuals in provincial jails are accused persons in pre-trial custody”, where the conditions are dire. [8] In addition, “Indigenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions”. [9] In general, such a situation “can have serious detrimental impacts on an accused person’s ability to raise a defence” in addition to proving costly for society. [10] In sum, “pre-trial detention is a measure of last resort”. [11] [ 29 ] In keeping with this approach, the new provisions of the Criminal Code establish, first, the principle of restraint and second, factors relating to vulnerable populations: [12] 493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be. 493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of: (

a) Aboriginal accused; and ; (

b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part. [ 30 ] As mentioned, the accused is a member of the Atikamekw Nation. In Gladue [13] and Ipeelee , [14] rendered in 1999 and 2012, respectively, the Supreme Court pointed out the recurring problem of the overrepresentation of Aboriginal people in the prison system. Based on

section 718.1(

e) Cr.

C., the Court proposed a special approach to sentencing in light of the particular circumstances of these offenders whose lives are “far removed from the experience of most Canadians.” [15] Judges were encouraged to take judicial notice of the broad systemic and background factors affecting Aboriginal people generally. [16] [ 31 ] The factors identified in Gladue , with the necessary adaptations, are applicable to the hearing on interim release. [17] [ 32 ] To understand the accused’s situation, it is useful to draw a portrait of his community. [ 33 ] For some years now, the judges of Saguenay-Lac-Saint-Jean have been assigned to Roberval in criminal matters.

As they perform their duties, they regularly hear files originating from Opitciwan and, accordingly, have developed a certain knowledge of the area. In addition, resort to external sources is permitted. [18] [ 34 ] The following information can be found on the Commission de toponymie du Québec’s website. The Opitciwan reserve is located on the north shore of the Gouin Reservoir, at the source of the Saint-Maurice River, approximately 150 km south of Chibougamau. It is the most isolated of the Atikamekw reserves in Quebec.

The construction of the La Loutre dam in 1917 caused the displacement of the population and led to the construction of a new village. More than 1,100 people live on the reserve, which comprises an area of approximately 1 km 2 . The band council is the main employer on the reserve. [19] [ 35 ] A forest road of several kilometers links Opitciwan to Route 167 in the Ashuapmushuan Wildlife Reserve, between La Doré and Chibougamau.

During certain periods (winter, thaw), transportation is uncertain, which adds to the feeling of isolation. [ 36 ] It is known that this community is affected by a high unemployment rate, poverty, a permanent housing crisis, a suicide rate above the Canadian average, and a high level of school dropouts. [20] [ 37 ] Like many other Aboriginal communities, it suffers from the consequences of alcohol and drug abuse.

It leads to the commission of crimes, especially since therapeutic resources are limited. [21] [ 38 ] Moreover, in the past, the children attended residential schools, which were designed to cut them off from their culture. These traumas have had an intergenerational impact, as has been demonstrated by the Truth and Reconciliation Commission of Canada. [ 39 ] All of this data establishes a contextual framework that allows us to understand the accused’s life experiences.

He could not escape this sad reality, as is apparent from his testimony and his criminal record, which is long for a 26-year-old youth. [ 40 ] That said, can he be released? The prosecution objects, citing the numerous past breaches. At first glance, this argument is serious.

It must however be placed in an Aboriginal context. [ 41 ] The Commission chaired by the Honourable Jacques Viens (the Commissioner), [22] in its final report, submitted on September 30, 2019, [23] found that, for many reasons, court orders are impossible to comply with: the small size of the communities, which places accused persons in the presence of victims, the housing shortages, the generalized problem of alcohol and drug consumption, the lack of therapeutic resources, etc. Breaches are among the offences people residing in Indigenous communities are most frequently charged with.

This overprosecution contributes “to the revolving door cycle in the courts.” [24]

[ 42 ] For all these reasons, this Court will place the accused’s lengthy criminal history with respect to breaches in context. [ 43 ] Furthermore, the Court finds the following: 1) The accused testified calmly and with composure. On several occasions, he spoke about the importance of family and the responsibilities he assumes towards them. He exhibits a determination to stay away from substance use. 2) He will have a permanent address at his mother’s house.

She has taken on this responsibility in the past after noticing that her son was not well. 3) He has demonstrated stability in employment. 4) The complainant M.B., who is not an intimate partner, lives in Roberval, 275 km away from Opitciwan. Various supervisory measures can ensure her security. 5) One of the representatives of the sawmill, involved in the harassment case, does not want to cut ties with the accused, who is a good worker. 6) The psychiatrist’s report did not identify any particular mental problem or dangerousness.

The previous behaviour, strange and agitated, is the result of substance use and lack of sleep. [ 44 ] In this context, the accused’s release plan, while imperfect, makes sense given the context. [ 45 ] Moreover, even though this is not the trial stage, the Court cannot ignore certain elements of the defence: 1) Regarding the assault and forcible confinement in April 2019, the identification is uncertain.

The fact that the evidence is circumstantial no doubt weighed in favour of release by the prosecution after the first arrest was made in October 2019. 2) Regarding breaches in November 2019, the accused has a witness who will say that he was not in Roberval on that date. In addition, the victim’s version could have reliability issues. 3) Concerning the harassment in December 2019, the comments are mainly characterized by their incoherence.

Moreover, one of the representatives of the sawmill considers the situation to be unfortunate and does not want to cut ties with the accused, who is a good worker. [ 46 ] For all of these reasons, the Court concludes that there is no basis for detention if supervisory measures are established. CONCLUSION [ 47 ] FOR THESE REASONS, THE COURT: [ 48 ] RENDERS an order of interim release subject to conditions to be specified upon rendering judgment. __________________________________ PIERRE LORTIE Judge of the Court of Quebec

Mtre Julie Villeneuve Director of Public Prosecutions Mtre William Langlais Counsel for the accused Date of hearing: December 27, 2019 [18] R. v. Sioui, (SCC), [1990] 1 S.C.R. 1025 at 1050; Tremblay c. R., 2010 QCCA 2072 at para 23.