2019 QCCQ 3829, 2019 QCCQ 3829

Translated from the original French R. c. Mianscum 2019 QCCQ 3829 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF CHIBOUGAMAU “Criminal and Penal Division” No.: 170-01-000337-179 DATE: May 29, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE PIERRE LORTIE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

JOHNNY MIANSCUM Accused SENTENCING JUDGMENT INTRODUCTION [ 1 ] Johnny Mianscum, 25 years old, admits to having committed aggravated assault against K.T. [the complainant], thereby contravening s. 268 of the Criminal Code [Cr. C.]. [ 2 ] JL-3223 Noting the serious consequences, the prosecution seeks a sentence ranging from 20 to 24 months. [ 3 ] Mr. Mianscum pleads that he is rehabilitated. He asks the Court to suspend the passing of sentence and order probation including several measures (community work, supervision, etc.). [ 4 ] The context of the debate is that Mr.

Mianscum is an Aboriginal person who is a member of the Cree nation.

Section 718.2(

e) Cr. C. provides that a judge must consider all available sanctions other than imprisonment, “with particular attention to the circumstances of Aboriginal offenders.” The Supreme Court analyzed sentencing in Aboriginal matters in Gladue in 1999 [1] and Ipeelee in 2012. [2] ISSUE IN DISPUTE [ 5 ] What is the appropriate sentence in light of the serious consequences for the victim on the one hand, and the numerous mitigating factors for an Aboriginal accused on the other hand? EVIDENCE ON SENTENCING [ 6 ] The evidence rests on the following elements: 1) Counsel’s submissions and statement of facts. 2) Mr.

Mianscum’s testimony and the exhibits he filed. 3) The presentencing report and the Gladue report.

4) The complainant’s victim impact statement. BACKGROUND [ 7 ] The complainant lives in Saguenay–Lac-Saint-Jean. In August 2017, he went to Chibougamau. He spent the evening of August 24 to August 25 drinking at the CabArrêt bar and got completely drunk. [ 8 ] Mr. Mianscum was at the same bar with his female cousin, K.N. He also got completely drunk. [ 9 ] These people had never met before. [ 10 ] During the evening, Mr. Mianscum went up to a patron and accused him of taking a photo of K.N. without permission. The patron denied it, and Mr. Mianscum complained to the owner.

The patron showed his cell phone and proved that he had not taken any photo. The matter went no further. [ 11 ] When they were leaving, at about 3:30 a.m. the complainant approached K.N. and made inappropriate sexual remarks (he asked her to perform oral sex on him). She was insulted and slapped him. [ 12 ] K.M. complained to Mr. Mianscum about the remarks. He became angry and punched the complainant in the face. The complainant fell heavily to the ground, hit his head on the pavement and lost consciousness. [ 13 ] Mr.

Mianscum tried to help him, but the persons present pushed him away. [ 14 ] An ambulance was called to take the complainant to the hospital in Chibougamau. Due to the severity of the injuries, he was transferred to the Hôpital de l’Enfant-Jésus de Québec, which specializes in trauma care. He spent two weeks in a coma in the hospital because of the brain trauma, and he required brain surgery. He had a plate installed in his cheek and his nose was rebuilt. He then went through a long period of rehabilitation (physiotherapy, occupational therapy, and kinesiology).

He has permanent sequelae: loss of sense of smell, reduced vision, headaches, insomnia, etc. Emotionally, he feels discouraged, sad and anxious. He is impatient and tends to spend time alone. Financially, he sustained a substantial salary loss because he could not return to work. All of this increases his stress. His spouse and four children experience the repercussions of the aggression. [3] [ 15 ] Mr. Mianscum and K.N. were convicted of aggravated assault. [ 16 ] On August 31, 2018, Mr. Mianscum pleaded guilty to the charge laid.

Larouche J.C.Q. ordered the preparation of a presentencing report and a Gladue report. The case was then brought before this Court, which entered a conviction. [ 17 ] On November 2, 2018, K.N. pleaded guilty to the lesser included offence of common assault. Boillat J.C.Q. granted an absolute discharge. [ 18 ] On November 16, 2018, probation officer Patricia Gagné prepared a presentencing report.

On February 15, 2019, René Coon- Come, a community justice officer on the Oujé-Bougoumou Justice Committee, prepared a Gladue report. [ 19 ] On February 28, 2019, submissions on sentencing were held in Chibougamau. ⋄ ANALYSIS COMMUNITY PROFILE [ 20 ] As the Supreme Court recalled in Ipeelee , the sentencing judge is required to “give attention to the unique background and systemic factors which may have played a

part in bringing the particular offender before the courts .” [4] [ 21 ] Therefore, it is worthwhile focusing on the Cree community to which Mr. Mianscum belongs. [ 22 ] He lives in Oujé-Bougoumou, approximately sixty kilometers from Chibougamau. [ 23 ] In the 1900s, the population in the region was affected by displacement and relocation, most of which was caused by mining development. Those movements upset traditional life.

Nomads became sedentary. [ 24 ] To add to the stress, federal authorities forced many children to attend residential schools outside the community, which created a break with the family and tradition. [ 25 ] All of these shocks had profound social impacts.

As stated in Gladue , “[t]he unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people.” [5] These observations, with the necessary modifications, are applicable here. [ 26 ] When the James Bay Agreement was signed in 1974, the members of the future Oujé-Bougoumou community did not get territorial recognition. In 1989, government authorities granted the claims of the population that moved permanently to the newly built site near Lake Opémiska.

Approximately 900 people live at that location. [6] [ 27 ] Specialized services are limited due to the remoteness. [7] MR. MIANSCUM’S PROFILE

[ 28 ] Mr. Mianscum’s father attended the La Tuque residential school. He still has difficulty talking about that period of his life because of the abuse he suffered there. [ 29 ] Mr. Mianscum was raised in a climate of instability, marked by moving, changing schools (both on and off the reserve), exposure to drinking, his parent’s divorce and the absence of his father, who had to work far from the home.

At one time, he experienced feelings of rebellion. [ 30 ] Over the years, he developed a drug addiction. [ 31 ] He has two prior convictions: in 2012, he was fined for impaired driving; in 2013, he was put on probation after he breached an undertaking. [ 32 ] In spite of these tribulations, he has always been involved in his community and had several jobs. [ 33 ] He currently works in the canteen at the Oujé-Bougoumou sports complex. He enrolled in Algonquin College’s Culinary Management program.

He plans to become a chef and develop his administrative knowledge in that field. [ 34 ] In the presentencing report, the probation officer stated that Mr. Mianscum does not have a violent profile. The alleged acts were the result of a conflictual situation that he did not handle properly. In addition, he underestimated his physical strength while trying to protect his cousin. [ 35 ] After the events, he spent a long time thinking things over. He bonded with community elders and the Justice Committee and practised Aboriginal spiritual activities.

He developed tools to deal with his emotions through anger management training. In hindsight, he would have acted differently on August 25, 2017, by avoiding the confrontation and leaving the premises. [ 36 ] He has also completely stopped using drugs. [ 37 ] He prepared a PowerPoint presentation [8] on the risks associated with drinking. He intends to present it to his community’s young people. SENTENCING FACTORS [ 38 ]

Section 718 Cr. C. sets out the general purpose of sentencing: denunciation, deterrence, separation of the offender from society, where necessary, assist in rehabilitation, provide reparations for harm done, and promote a sense of responsibility and an acknowledgment of the harm done.

Section 718.1 adds a fundamental principle: the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 39 ] The aggravating circumstances are the following:

(1) The maximum sentence for aggravated assault is 14 years, which reflects the objective gravity of the offence.

(2) Mr. Mianscum was looking for trouble when he was at the bar (e.g., exchanges with a patron over the alleged photos). Upon his departure, he displayed a serious lack of judgment. Rather than simply walking away after the complainant’s insults, he escalated the confrontation, reacted too aggressively, and did not control his use of force.

(3) In his statement, the complainant described the terrible consequences for him. His life was put in danger, and he has sequelae from that assault. The Criminal Code specifically provides that the significant impact of an offence on a victim should be taken into consideration. [9] [ 40 ] The Court also notes the following mitigating factors:

(1) Mr. Mianscum pleaded guilty, thereby admitting his wrongdoing and sparing the complainant, who has no memory of the event, [10] from a painful trial.

(2) The culpable act was not planned and was of short duration.

(3) After the events, he was proactive and participated in several follow-up services, which he wants to continue.

(4) He had stopped drinking.

(5) He has been of good behaviour since the events and has complied with the conditions of an undertaking (i.e.: not to drink).

(6) At the time of the offence, he was 24 years old. In the case of young offenders, the courts tend to prioritize rehabilitation. [11] In Lacasse , the Supreme Court stated, “ an offender’s youth is often an important mitigating factor to consider.” [12]

(7) His criminal record, which dates back to 2012 and 2013, is short and does not involve violence.

(8) There are several stability factors: social involvement for many years, community support, regular employment, enrolment in studies, plans for the future. A few years ago, his potential was recognized when he was chosen for the Youth Leadership Symposium. The evidence establishes that he is already an asset for his community. The courts consider such social contribution favourably as a mitigating factor in sentencing. [13]

(9) The presentencing report is positive overall and describes good cooperation and a non-violent profile. The officer added that the risk of recidivism is manageable.

(10) The Gladue report states that Mr. Mianscum has actively participated in the Justice Committee’s remedial programs.

(11) Mr. Mianscum testified sincerely about the progress he has made since the events. When questioned about regrets and remorse, he demonstrated even deeper feelings, and after he read the victim impact statement, he could not find the words to express them. He was emotional. He understands the harm he has caused. [ 41 ] The Court cannot ignore the context. The events took place because the complainant, who was severely intoxicated, [14] insulted Mr. Mianscum’s cousin. Moreover, even if the violent act has been admitted, the consequences the complainant suffered were neither desired nor foreseeable. ⋄ [ 42 ] Pursuant to s. 718.2(

b) Cr. C., the Court must take parity of sentencing into account, that is, “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” [ 43 ] Over the years, the sentences ordered by the courts have established ranges of sentences to encourage parity. [15] As determined by the Supreme Court in R. v. Lacasse , [16] those ranges reflect all of the principles and purposes of sentencing. They are a

summary of the minimum and maximum sentences imposed in the past, and in any given case serve as application guides. The ranges, however, are not straightjackets. Rather, they are historical portraits for the use of judges. There is no hard and fast rule.

It is important to recall that “ [t]he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation.” [17] The weighing of the various factors may lead the judge to order a sentence outside the range without necessarily making an error. [ 44 ] In this case, the parties relied on several authorities, and the Court consulted others. The list and summaries are attached. [ 45 ] The prosecution referred to authors Parent and Desrosiers, [18] who identified three sentencing categories for aggravated assault in the case law:

(1) Cases with several mitigating factors: generally, imprisonment of a few months to two years less a day. [19]

(2) Cases with a mix of mitigating and aggravating factors: a prevalence of sentences of two to three years. [20]

(3) Cases with several aggravating factors: a prevalence of sentences of three to five years. [21] [ 46 ] It should be noted that at one time it was possible to impose a conditional sentence for aggravated assault for categories 1 and 2.

That is no longer possible since the amendments to the Criminal Code . [ 47 ] The prosecution considered the aggravating and mitigating factors and situated this case between categories 1 and 2, whence its position with respect to a sentence of about two years. [ 48 ] In Antonelli , the Court of Appeal identified numerous three-to-five-year sentences but did not exclude suspended sentences. [22] [ 49 ] This Court identified a few cases of suspended sentences:

(1) R. v. Nakamura : [23] An 18-year-old youth of Japanese origin, with no criminal record, was found guilty of aggravated assault. The judge considered the following mitigating factors: youth, no prior criminal record, gainful employment, letters of support, positive presentencing report.

(2) R. v. White : [24] A jury found the accused not guilty of attempted murder of an individual, but guilty of having stabbed him. That individual had beaten and threatened the accused beforehand. Mitigating factors: no prior criminal record, youth, good employment record, no substance use issues, no risk of reoffending, good conduct. [ 50 ] Along the same lines, in R. c. Brochu , [25] a Court of Quebec judge imposed that type of sentence on an accused who pleaded guilty to assault with a weapon and assault causing bodily harm.

In a fit of anger and jealousy, the accused suddenly threw a beer glass at the victim’s face, causing several lacerations that required her to go to the hospital emergency room for stitches. The judge ordered a suspended sentence due to the mitigating factors (guilty plea, no prior criminal record, youth, favourable presentencing report, unpremeditated act, low risk of recidivism, ongoing rehabilitation). [ 51 ] What about in Aboriginal cases? [ 52 ] It should be recalled that in 1996, Parliament amended the Criminal Code by providing at s. 718.2 (

e) with respect to sentencing: “ all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” That provision was part of the general reform of the Code that focused on restorative objectives. [ 53 ] In 1999, the Supreme Court accepted in Gladue [26] that the purpose of that provision was to remedy the serious issue of overrepresentation of Aboriginal individuals in prisons and to encourage judges to apply a restorative approach to sentencing.

The Court developed a method that provides for the examination of the distinct systemic factors and the types of proceedings that are appropriate when considering innovative practices. Judges are urged to take judicial notice of systemic factors and the priority given to a restorative approach by Aboriginal cultures. [ 54 ] In 2012, in Ipeelee , [27] the Supreme Court confirmed the principles in Gladue . It added that judges have considerably limited the scope and remedial potential of s. 718.2(

e) Cr. C. and have thereby undermined the objectives sought in Gladue . The Court noted that courts must take judicial notice of issues such as the history of colonialism, displacement, and residential schools and of how that history continues to translate for Aboriginal peoples. The Court emphasized that it is not appropriate to require Aboriginal offenders to establish

a causal link between historical factors and the commission of the offence. Moreover, it is not unfair to impose a different sanction on Aboriginal offenders. Such a disparity is justified due to the specific circumstances in which these offenders find themselves. [28] [55] In 2015, s. 718.2(

e) was amended and now reads as follows: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [56] In 2018, in Denis-Damée c. R. , [29] the Court of Appeal applied the principles set out in Gladue and Ipeelee . In the context of a guilty plea to a charge of manslaughter, the Court reduced the sentence from 6 to 2 years.

It took into account a Gladue report describing historical and systemic factors, which reduced the degree of moral culpability. [57] Based on these principles, the courts have ordered suspended sentences on several occasions in Aboriginal cases, as appears in Peters , [30] Nicholls , [31] Ross, [32] Poucachiche [33] and Iserhoff , [34] summaries of which are attached. [58] Several elements in Mr. Mianscum’s favour apply here, with the necessary adaptations.

DETERMINING THE SENTENCE BASED ON ALL THE FACTORS [59] The Criminal Code no longer allows certain offences to be punished by serving a sentence in the community. After extensive consultation, the Truth and Reconciliation Commission of Canada asked the federal government to allow judges, upon giving reasons, to depart from that restriction. [35] [60] It is difficult for a litigant in Oujé-Bougoumou to serve an intermittent sentence because of the distance to detention centres.

The same situation exists in Nunavik and was ruled illegal by Richard Grenier, J. [36] [61] Iserhoff established that when Aboriginal individuals are detained, they are cut off from their cultural environment in addition to being penalized from the standpoint of release on parole. [37] These are the indirect consequences of the sentence within the meaning of the Supreme Court’s decision in Suter . [38] [62] To paraphrase Jacques Ladouceur, J.C.Q., when a judge orders a sentence in Aboriginal matters, the toolbox is not well stocked. [39] [63] In accordance with the Supreme Court of Canada’s teachings in Gladue and Ipeelee , in that context the judge must be innovative and creative. [40] As Lamer C.J. stated in Proulx: “[t]he type of conditions imposed will be a function of the sentencing judge’s creativity.” [41] ⋄ [64] In this case, imprisonment is not necessary given the specific context and the mitigating factors analyzed in light of Gladue and Ipeelee .

Sending Mr. Mianscum to prison would undermine the remedial objective, might hinder rehabilitation and would deprive the community of a young leader. [65] A suspended sentence with probation is the appropriate sentence in this case. Restrictive conditions can be imposed that preserve Mr.

Mianscum’s liberty but include strict surveillance by the probation officer and the Oujé-Bougoumou Justice Committee, which, according to the Gladue report, is willing to supervise him. [66] As stated in Proulx , community service is another way of meeting the objective of general deterrence, in particular when “the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition.” [42] In this case, the PowerPoint presentation is ready, and the accused has expressed his wish to present it. [67] In the context of this offence, which was committed at night, deterrence and denunciation may also be accomplished by a curfew.

Section 732.1(3)(

h) Cr. C. provides that the judge can order that the offender “comply with such other reasonable conditions that the court considers desirable.” The Court of Appeal has accepted that type of measure in certain specific cases, [43] and it has been accepted in Aboriginal cases. [44] [68] According to the Court of Appeal in Harbour , [ translation ] “a suspended sentence imposed pursuant to s. 731(1)(

a) Cr. C. includes a mechanism allowing the Court to revoke the suspension at the Crown’s request if the offender commits a new offence, including the failure to comply with a probation order within the meaning of s. 733.1 Cr. C., and impose any sentence that could have been imposed on the offender had the passing of sentence not been suspended: s. 732.2(5) Cr. C. It is an effective remedy. [45] [69] Mr. Mianscum has complied with his conditions since 2017; the prognosis is reassuring.

CONCLUSION [70] FOR THESE REASONS, THE COURT: [71] SUSPENDS the passing of the sentence. [72] ORDERS the accused to submit to probation for a period of 3 years , with supervision for one year , subject to the following conditions:

(1) Keep the peace and be of good behaviour.

(2) Appear before the court when required to do so by the court.

(3) Notify the probation officer in advance of any change of name or address, and promptly notify the probation officer of any change of employment or occupation.

(4) Report to the probation officer within 48 hours of this judgment, and thereafter when required by the probation officer and in the manner directed by the probation officer during the year of supervision.

(5) Follow all of the probation officer’s instructions, including with respect to any assessment and therapy.

(6) For the first year of probation, remain in his residence between 10:00 p.m. and 6:00 a.m., subject to the following exceptions: (

a) To receive emergency medical care for himself and his immediate family, upon proof thereof to the probation officer. (

b) To hold gainful employment (provide the

schedule to the probation officer). (

c) To participate in therapy or attend meetings in the manner directed by the probation officer. (

d) For his studies, according to a

schedule approved by the probation officer. (

e) For any activity, under the immediate supervision of the Oujé-Bougoumou Justice Committee [the Committee]. In that case, Mr. Mianscum must notify the probation officer in advance. (

f) For any other serious reason and with the probation officer’s prior approval.

(7) Perform 240 hours of community work within 10 months of this judgment and comply with the terms of execution determined by the probation officer or any other worker designated by the probation officer.

(8) Report to the Committee within 48 hours of this judgment, and thereafter when required by the Committee and in the manner directed by the Committee during the one year of supervision. Follow the Committee’s instructions and recommendations with respect to any therapy, assessment and traditional or community activity.

(9) Continue to take steps in regard to his PowerPoint presentation on alcohol prevention and provide evidence thereof to the probation officer.

(10) Not to be at the complainant’s residence or place of work.

(11) Abstain from communicating directly or indirectly with the complainant.

(12) Not be in the complainant’s presence.

(13) Abstain from bothering, directly or indirectly, following, spying on or harassing the complainant.

(14) Not be at CabArrêt.

(15) Abstain from the consumption of alcohol or of any other intoxicating substance, or from having any in his possession.

(16) Abstain from the consumption of drugs and other controlled substances, or from having any in his possession, except in accordance with a validly-obtained medical prescription

(17) Abstain from consuming cannabis.

(18) Abstain from being in places where drugs or other controlled substances are used, sold, or trafficked.

(19) Abstain from being in bars, discos or other places with a liquor permit, including restaurants with a liquor permit, unless it is to have a meal.

(20) Immediately proceed to the court office to sign this probation order. [73] ORDERS the probation officer and the Oujé-Bougoumou Justice Committee to cooperate with each other in applying this sentence. [74] PROHIBITS the accused from possessing any of the weapons listed in s. 109(2) Cr. C.: (

a) For 10 years with respect to weapons in this category. (

b) For life with respect to weapons in this category. [75] LIFTS the prohibition under s. 109 so that the accused can hunt, in particular trap, so that he may support himself or his family, in accordance with s. 113 Cr. C. [76] ORDERS the taking of DNA samples pursuant to s. 487.051(1) Cr. C. (super-primary) within 90 days of this judgment.

__________________________________ PIERRE LORTIE, J.C.Q. Mtre Marie-Michelle Boulianne-OtisCriminal and penal prosecutor Mtre Félix PigeonCounsel for the accused Date of hearing: February 28 and March 1, 2019 CASE LAW (In chronological order) Note: Emphasis added.

(1) R. v. Gladue, (SCC), [1999] 1 S.C.R. 688: ▪ Analysis of new s. 718.2(

e) Cr. C. ▪ Aboriginal sentencing and sentencing factors

(2) R. v. Glaude, (QCCA): ▪ Two youths aged 18 and 19 years old committed aggravated assault against the victim, who suffered tragic consequences. Thelenient sentence of 12 months imposed on Glaude was upheld on appeal. ▪ [translation] “[10] … the judge was not stating a rule of law when she wrote that the courts only impose a prison sentence on veryyoung men with no prior criminal record in exceptional cases; rather, she was stating a tendency for judges, when determining the mostappropriate sentence, to take into account the fact that very young persons are frequently easily influenced and are immature.

From thatperspective, to promote the rehabilitation of these young adult offenders, the courts are lenient and generally avoid putting them in prisonwhere inmates serve long sentences and are often deeply involved in criminal activity.”

(3) R. c. Gollain, (QCCQ): ▪ Sentencing in a drug cultivation matter. ▪ Conditional discharge. Probation including providing the probation officer with a website project titled [translation] “The other sideof hydroponics,” setting out the risks of getting involved with drug cultivation.

(4) Antonelli c. R., 2008 QCCA 1573: ▪ [translation] “[74] In matters of aggravated assault that do not involve the usage of an automobile, the range of sentences, from asuspended sentence to imprisonment, is wide but the case law is not short of matters in which sentences of three to five years wereimposed.” ▪ The overall sentence of five years was upheld on appeal. The accused intentionally drove his automobile into a bus shelter twice andseriously injured four persons. The weight granted to the objectives of denunciation and deterrence was not inappropriate.

(5) R. v. Idlout, 2009 QCCQ 5104: ▪ The accused’s discharge will benefit the entire Aboriginal community to which he is an asset.

(6) Mazzara c. R., 2009 QCCA 1348: ▪ Mazzara drove into a restaurant parking lot with his friend Fontaine. He almost hit the vehicle of Lafrance (the victim) who wasabout to leave the parking lot. The two drivers exchanged words, and Mazzara got out of his vehicle and urged Lafrance to fight. WhenMazzara and Lafontaine left the restaurant, they noticed Lafrance’s vehicle following them. Fontaine went to talk to Lafrance and noticedthat he had an expandable baton. Fontaine warned Mazzara who told Fontaine that he had a baseball bat in the trunk of his vehicle.

Heactivated its opening mechanism so that Fontaine could retrieve it. Fontaine and Lafrance hit each other with their bats. Mazzara got outof his car to help Fontaine. Mazzara and Fontaine hit Lafrance, who fell to the ground, inert. Mazzara and Fontaine left. ▪ In Superior Court, a jury found Mazzara guilty of manslaughter. The judge sentenced him to 48 months. ▪ The sentence was upheld on appeal. ▪ Bich J.A.: [translation] “[26] With respect, this retelling of the circumstances of the incident appears at first glance to conceal a very

important contextual element in the assessment of the appellant’s responsibility and criminal intent: the actions of the victim himself, who wanted to pick a fight with his future assailants. It is clear that although those actions do not excuse the appellant, they contextualize the nature and degree of his participation in the commission of the offence and must have an impact on the determination of his responsibility. Therefore, we cannot ignore them .

(7) R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206: ▪ Flexibility and contextual nature of the sentencing process. ▪ “[44] The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code . But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules.

A judge can order a sentence outside that range as long as it is complies with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred .

(8) R. v. Peters , 2010 ONCA 30 : ▪ The Ontario Court of Appeal dismissed the Crown’s appeal of a suspended sentence with three years’ probation imposed on an Aboriginal offender who had pleaded guilty to a charge of aggravated assault (serving the sentence in the community was not possible). The accused struck the victim with a beer bottle causing lacerations to the victim’s face.

(9) R. c. Oweetaluktuk , 2011 QCCQ 12725 : ▪ A discharge was granted to an Aboriginal individual who pleaded guilty to charges of failure to comply with the conditions of an undertaking (alcohol consumption). The accused was an active person who was an asset to his community.

(10) R. c. Brochu , 2012 QCCQ 1209 : ▪ The accused pleaded guilty to two offences: assault with a weapon and assault causing bodily harm. In a fit of jealousy and anger, the accused suddenly threw a beer glass at the victim’s face, causing several lacerations that required a trip to the emergency room and 15 stitches. The judge ordered a suspended sentence due to mitigating factors (guilty plea, no prior record, youth, favourable presentencing report, unpremeditated act, low risk of recidivism, ongoing rehabilitation).

(11) R. v. Nakamura , 2012 BCSC 327 : ▪ An 18-year-old youth of Japanese origin with no prior record found guilty of aggravated assault was given a suspended sentence. Mitigating factors taken into account: youth, no prior record, gainful employment, statements of support, positive presentencing report, and immigrant status.

(12) R. v. Ipeelee , 2012 SCC 13 , [2012] 1. S.C.R. 433: ▪ Confirmation of the principles established in Gladue . ▪ “[79] In practice, similarity is a matter of degree. No two offenders will come before the courts with the same background and experiences, having committed the same crime in the exact same circumstances.

Section 718.2(

b) simply requires that any disparity between sanctions for different offenders be justified.”

(13) R. c. Riendeau , 2012 QCCA 1155 : ▪ The accused pleaded guilty to aggravated assault. During an altercation outside a bar, the victim was on the ground. The accused, who was wearing pointy heels, kicked him in the face and punctured his eye. The trial judge imposed a suspended sentence, which included a six-month curfew and amounted to a sentence served in the community. ▪ The Court of Appeal intervened and replaced the first sentence with six months’ imprisonment. [ translation ] “[29] The trial judge was aware, however, of the gravity of the act committed and of its consequences for the victim.

He felt the need to order a restriction on the respondent’s freedom and, in so doing, he imposed a condition, which strongly resembled a prison sentence served in the community for a period of six months. The Court is of the view that he erred in principle by omitting to apply the objectives of denunciation and general deterrence. This is a case where a prison sentence should have been imposed.”

(14) R. v. Nicholls , 2013 BCSC 1145 : ▪ A 21-year-old Aboriginal offender received a suspended sentence after being convicted of aggravated assault and assault with a weapon. The accused and the complainant were smoking marijuana; the complainant teased the accused, who attacked him with a knife. ▪ Mitigating factors: lack of a prior criminal record, compliance with bail conditions, accused stopped using drugs, and complete change of lifestyle. Three years’ probation under strict conditions, including participation in an Aboriginal justice program. Gladue factors (alcoholic mother, frequent moves, bullying at school).

(15) R. v. White , 2014 ONSC 2878 : ▪ An accused convicted of stabbing an individual received a suspended sentence. The individual had beaten and threatened the accused beforehand. Mitigating factors: lack of prior criminal record, youth, good employment history, no issues with drugs or alcohol,

no risk of recidivism. The victim’s behaviour was taken into account. A curfew was imposed as part of the probation.

(16) R. v. Ross , 2015 SKQB 150 : ▪ The accused was convicted of aggravated assault after she stabbed her sister in the cheek. The judge imposed a suspended sentence based on the Gladue factors. ▪ Note: The victim actively participated in a fight with the accused.

(17) R. v. Quock , 2015 YKTC 32 : ▪ The accused, an Aboriginal individual, was convicted of aggravated assault. After consuming alcohol with the victim (a man), he attacked him with a knife for no reason (wounds to the face, and a finger was severed). Several Gladue factors (abandonment by alcoholic parents, frequent moves, abuse, excessive substance use, several prior convictions, willingness to follow certain programs adapted to Aboriginal individuals, community support).

The Crown sought a three-year sentence. ▪ The judge applied Gladue and Ipeelee and imposed 395 days less the 329 days of custody for his time in remand for a remnant of 66 days (plus 30 days for breaches = 96 days). The accused was put on probation for two years with various supervisory measures and a curfew for a period of three months.

(18) R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089: “[11] … The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. [12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender.

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task.… [57] … Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing.

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.

However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges.… [58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation.

It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit.

Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. [60] In other words, sentencing ranges are primarily guidelines, and not hard and fast rules….As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle….”

(19) R. c. Poucachiche , C.Q. Abitibi, Locality of Val-d’Or, Criminal and Penal Division, No. 615-01-025671-168, February 20, 2018 . ▪ The accused, a 19-year-old Aboriginal individual, pleaded guilty to an offence of aggravated assault. The complainant had attacked him first with a broom handle armed with a pencil at the end. The accused retaliated and punched the complainant six or seven times (excess force) while he was on the ground. The complainant had sequelae. Mitigating factors: the accused was attacked; therapy, active in the community. Suspended sentence followed by probation.

(20) R. c. Juneau , 2018 QCCQ 1899 : ▪ [ translation ] “[44] In R. c. Fortin , [46] Jean Asselin J.C.Q. reviewed all of the sentencing decisions of the Court of Appeal rendered since Antonelli for aggravated assault, in which the range was between six months and 8 years in custody, whence the importance of distinguishing the circumstances of each case so that the sentence is proportionate and individualized.” ▪ The judge imposed a sentence of two years less a day on the accused, who was convicted of assaulting the victim with a baseball bat.

(21) R. v. Suter , 2018 SCC 34 , [2018] 2 S.C.R. 496: ▪ In determining the sentence, the judge may take into account the collateral consequences as mitigating factors. ▪ “[46] … Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences.

Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender. [47] … a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.”

(22) Denis-Damée c. R. , 2018 QCCA 1251 : ▪ Application of the principles established in Gladue and Ipeelee in the context of a guilty plea to a charge of manslaughter. The Court of Appeal reduced the sentence from six to two years. During a family squabble, the accused Atikamekw d’Opitciwan, aged 21 years old at the time, fatally stabbed her father with a knife while she was heavily intoxicated. The Court took into account a Gladue report, which contained a description of historical and systemic factors that lessened the degree of moral culpability.

(23) Sequaluk c. R. , 2018 QCCS 4853 , leave to appeal to QCCA granted (200-10-003594-186), 2019 QCCA 8 : ▪ The Superior Court ordered a suspended sentence in Kuujjuaq because it is impossible to order an intermittent sentence in Nunavik, which is an unacceptable discriminatory situation.

(24) Dubourg c. R. , 2018 QCCA 1999 : ▪ Guilty verdict on charges of assault with a weapon and aggravated assault. Concurrent fifteen-month sentence for each count of assault. The accused threw an object at the victim’s face during an altercation in a bar. As a result, the victim needed stitches and had to have surgery for a fracture to the face.

At the time of the trial, she still had blurred vision in one eye. ▪ [ translation ] “[49] In Dagenais , [47] the Court stated that aggravated assault [ translation ] “generally carries a firm prison term to properly express society’s denunciation of violent crimes against the person and to send a clear message of deterrence.” It also noted that sentences of 18 months to 3 years are common in cases where the offender has no record of violence. [48] In Antonelli , it was also noted that a suspended sentence is not necessarily precluded , but that prison sentences measured in terms of years are not unusual.”

(25) R. v. Charlie , 2018 YKTC 44 : ▪ The accused was found guilty of aggravated assault (attack of an aggressor after he was neutralized). Fourteen-month sentence, taking into account the following factors: the complainant was the aggressor; Gladue report, fetal alcohol syndrome.

(26) R. v. Quash , 2019 YKCA 8 : ▪ The Yukon Court of Appeal substituted a sentence of two years (less time spent in custody) for a sentence of ten months for aggravated assault. The accused was convicted following an assault with a knife. Consideration of Gladue factors. ▪ “[45] In our view, the weight of authority – which includes Yukon authorities – demonstrates that the starting point for sentences for aggravated assault is 16 months’ imprisonment, absent exceptional extenuating circumstances.”

(27) R. v. Iserhoff , 2019 QCCQ 2339 : ▪ Four Aboriginal individuals gratuitously assaulted the complainant (himself an Aboriginal person). There were serious consequences (broken wrist and jaw). The accused Iserhoff and Coon Come were found guilty. ▪ The judge took into account the lack of a detention centre near the remote Cree community in spite of undertakings by the Government to encourage the proximity of services. The judge found that detention in regular prisons that are not adapted to Aboriginal persons was a collateral consequence.

In addition, Aboriginal persons are at a disadvantage with respect to parole. All of these elements form a continuum with the principles established in Gladue and Ipeelee , and allow the sentence to be reduced. ▪ Iserhoff: Suspended sentence with three years’ probation including several follow-ups (including by the Justice Committee) and a curfew for one year. ▪ Coon Come: Imprisonment for eight months and three weeks.