2011 QCCQ 15643, 2011 QCCQ 15643

R. c.

Brien 2011 QCCQ 15643 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF MISTISSINI Criminal Division NO: 640-01-021301-107 640-01-021302-105 640-01-020059-102 640-01-022187-117 DATE: June 1, 2011 ______________________________________________________________________ BY THE HONOURABLE LUCILLE CHABOT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Complainant - and - DYLAN BRIEN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Dylan Brien pleaded guilty to 33 counts contained in four files. [ 2 ] In the file 640-01-020059-102 , he faces the following accusations: 1) Simple assault (s. 266(

b) Cr. C. ). 2) Uttering threats to cause death or bodily harm (s. 264.1(1)a)(2)

b) Cr. C. ). 3) Assault on a police officer (s. 270(1)(a)(2)(

b) Cr. C ). [ 3 ] On May 29, 2010, the accused, when at the police station, grabbed the sweater of the cell guard, threatened people saying that he would beat them when released, and spat on the shoulder of a police officer. Mr. Brien was intoxicated and does not have a clear recollection of those events. He has read the evidence gathered against him and declares that the witnesses would tell the court the same facts if there were a trial. [ 4 ] In file 640-01-022187-117 , Mr. Brien is charged with having committed an assault while using a weapon.

Here again, the accused was intoxicated, but he admits that the prosecution would fulfill its burden of evidence if there were a trial. The victim, a young woman, owed $ 40 to the accused's sister. Mr. Brien decided to collect the money. The victim was in her car with her young baby. When she proceeded to leave, the accused threw a can of beer and it hit the car, splashing the victim and her baby. [ 5 ] In file, 640-01-021302-105 , Mr.

Brien pleaded guilty to two counts of failure to comply with the conditions of a probation order. [ 6 ] In the main file, 640-01-021301-107 , the accused is facing 27 counts related to an event that took place on October 15, 2010; the most serious charges being attempted murders. [ 7 ] Mr. Brien, duly represented and assisted by counsel, decided to enter guilty pleas on each count. The requirements of

section 606 Cr. C . have been met, first by the accused's lawyer, and thereafter by the court. Fully aware of his rights, he confirms his decision to plead guilty. [ 8 ] The accused also signed a written narrative of the events which may be summarized as follows: [ 9 ] He had a few drinks in Chibougamau. On his way back home, he told his friend that he had a gun at home and could kill

someone. He went to his house and grabbed a 12 gauge shotgun and a .30-06 rifle. His mother tried to prevent him from leaving with the firearms, but to no avail. [ 10 ] He wandered around the streets firing at people, houses, and cars for two hours. After having shot to death a dog with the .30-06, the rifle jammed. He continued shooting with the 12 gauge. He aimed at a group of 10 young people injuring Brandon Gunner who was trying to protect a girl. Officer Charlie Gunner was hit in the face while trying to get people out of the street.

Both had to receive medical care. [ 11 ] While walking in the streets of Mistissini and between dwelling houses, Mr. Brien continued to fire and yelled things like "Who wants to die? I feel like killing somebody." He shot at Stephan Wylde, and Johnny Gunner, fortunately missing his targets. He pointed the 12 gauge at police officers, shot at them whenever they tried to peek out from their barricade. He was cautious to fire only three or four shots at a time before reloading. As the shotgun could hold five shot shells, he always had one or two shots left while reloading to prevent the police from charging at him.

He never surrendered and had to be tackled to the ground by police officers. [ 12 ] Objective gravity of the crimes: ▪ Attempted murder is liable to life imprisonment with a minimum of 4 years (s. 239(1)(a)

(1) Cr. C .). ▪ Using a firearm while committing an offence is liable to 14 years with a minimum of 1 year if it is a first offence or a minimum of 3 years if it is a subsequent offence (s. 85(1)(a)

(3) Cr. C .), to be served consecutively to any punishment imposed for an offence arising out of the same event. ▪ Intentionally discharging a firearm while being reckless is liable to a maximum sentence of 14 years with a minimum sentence of 4 years (s. 244.2(1)(

b) and (3)(

b) Cr. C .). ▪ Assault with a weapon is liable to 10 years when prosecuted as an indictable offence (s. 267(

a) Cr. C .). ▪ Possession of a weapon for a dangerous purpose is liable to 10 years (s. 88(2)(

a) Cr. C .). ▪ Assault on a police officer with a weapon or causing bodily harm is liable to 10 years (s. 270.01(a)(2)(

a) Cr. C .). ▪ Mischief is liable to 10 years (s. 430(1)(a)(3)(

a) Cr. C .). ▪ Pointing a firearm is liable to 5 years (s. 87(2)(

a) Cr. C .). ▪ Uttering threats to cause death or bodily harm is liable to 5 years if it is prosecuted as an indictable offence and 18 months if on

summary conviction (s. 264.1(1)(a)(2)(

a) and (

b) Cr. C .). ▪ Injuring an animal is liable to 5 years (s. 445.1(1)(a)(2)(

a) Cr. C .). ▪ Careless use of a firearm is liable to 2 years for a first offence, 5 years for a second or subsequent offences (s. 86(1)(3)(

a) Cr. C .). ▪ Breach of probation, prosecuted as an indictable offence is liable to 2 years (s. 733.1(1)(

a) Cr. C .). ▪ Assault on a police officer prosecuted by

summary conviction is liable to 6 months (s. 270(2)(

b) Cr. C .). ▪ Simple assault on

summary conviction is liable to 6 months (s. 266(

b) Cr. C .). [ 13 ] Sentencing principles: [ 14 ] The paramount question is: What sentence should this offender receive for those offences committed in the circumstances they were committed? [ 15 ] The court has to consider the objective gravity of the crimes and the scope of responsibility of the offender. [ 16 ] The Criminal Code establishes principles and goals for sentencing.

The sentence, in the case at bar, must be aimed at achieving one overall objective: to ensure that the members of this community are protected. [ 17 ] In the last three years, an alarming number of cases involving intoxicated people and the careless use of firearms have occurred in this community. The present file is the most serious one brought to court. [ 18 ] No one was killed, but anyone who crossed the accused's path that night could have been. Thankfully, the .30-06 rifle jammed. If it hadn't, the court would be dealing with murder convictions today. [ 19 ] The intention of Mr.

Brien that night was clearly to kill. As the judge of the Supreme Court said in the Logan case: "Quite simply, an attempted murderer is, if caught and convicted, a 'lucky murderer'." [1] [ 20 ] Why? Because the intention was there. All that differs are the consequences. [ 21 ] This case cries out for a substantial term of imprisonment so as to denounce such behaviour and to provide general deterrence to other people of like intent. [ 22 ] Alcohol consumption and the availability of firearms in almost every house trigger such sad events. We can see a direct connection between alcohol consumption and violence.

Most of the cases on the court list are alcohol-related. As written by judge Daniel Bédard in 2007:

Traditional activities of hunting […] are exercised by a large portion of the population. Consequently, the availability of firearms is evident and these firearms are in the majority of the cases, kept in the residences, not in accordance with federal storage regulations. Put together, alcohol abuse and availability of firearms constitute the necessary and sufficient ingredients that lead to explosive situations [2] . [ 23 ] Denunciation and general deterrence are the only tools that can be used by a court to prevent such events. It goes without saying that one does not have to pay for all the others.

A sentence has to be shaped for this offender taking into account his background. The community itself must establish effective measures of prevention. Not only from by-laws enacted by the Band Council, not only by regulations enforced by the police; it has to come from each person, as responsible adults living in the community. What kind of community would we like to live in? Which kind of environment do our children need to become responsible and fulfilled persons?

Do our teens have the right to gather in the streets of Mistissini without risking being injured by others under the influence of alcohol? [ 24 ] In the last two years, many young men have been sent to the penitentiary for such crimes: Aaron Swallow, Willard Trapper, Marco Blacksmith, Willie Blacksmith. If not mistaken, all in their twenties… How many should the court send to the penitentiary for the message to be understood loud and clear? How many young people can this community afford to lose?

Do we have to wait for a child, a teen, a mother, a father, a police officer to be killed before taking steps to solve this problem? We all have to share and bear the responsibility of finding solutions to make our environment safer. [ 25 ] Mr. Brien is a member of the Cree First Nation. The Criminal Code commands that special attention be taken when sentencing aboriginal offenders. [ 26 ] In R. v.

Gladue , the Supreme Court of Canada said: […] sentencing judges should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and different from those of non-aboriginal offenders.

The fact that the reference to aboriginal offenders is contained in s. 718.2 (e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction. […] […] the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a

part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member [3] . [ 27 ] The Supreme Court also acknowledged that, at times, denunciation, deterrence, and particularly the protection of the public must override restorative justice principles. The court wrote: In describing the effects of s. 718

(2) e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation and separation. It is not reasonable to assume that aboriginal people themselves do not believe in the importance of these latter goals, an even if they do not, that such goals must not predominate in appropriate cases.

Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. Yet, even where the offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the more violent and serious the offence, the more it is, as 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 . [ 28 ] In the present files, in which there are very serious offences of violence, the principles of the protection of the community, denunciation and deterrence are of paramount importance. [ 29 ] As a judge, I have presided over court sessions in Mistissini for almost six years.

I make no pretence of having a full extent of knowledge in Cree matters, but I am aware of a number of things that might have played a role in the unique background of the Cree nation. I keep in mind for instance, that many people were forced to attend residential schools.

As a result, many struggle with exercising their parental responsibilities since they did not have a model, having practically been raised far from their own parents. [ 30 ] I am also aware that people strive to maintain their roots, their ancestral lifestyle and values alive, that many young people, by quitting school early, have not developed their full potential, that alcohol abuse and violence are not part of ancestral values of the Cree Nation. [ 31 ] I am confident that this blooming community has the tools to change things for a better future, such as: the strength of its youth, the wisdom of its elders and the willingness of people of Mistissini to reach a common goal: a safe, peaceful and thriving community.

Position of the prosecution and the defence: [ 32 ] With the consent of Mr. Brien, both counsel made a joint submission for a term of imprisonment of 10 years. [ 33 ] Is 10 years a fit sentence for the attempted murders of a police officer and of a young man trying to protect someone else? [ 34 ] Even if the court is not bound by a joint submission, it must consider this submission seriously. The Appeal Courts across the country had to intervene in files where such joint submissions were put aside by the sentencing judge. The Ontario Court of Appeal, in a case reviewing the law about joint submissions wrote:

It is trite law that the court always retains an overriding discretion to accept or reject any recommendations of counsel with respect to the quantum of sentence, even where a joint submission is made by experienced counsel: [4] [ 35 ] In R. v. Douglas and R. v. Verdi-Douglas , the Court of Appeal of Quebec says: Canadian appellate courts have expressed in different ways the standard for determining when trial judges may properly reject joint submissions on sentence accompanied by negotiated admissions of guilt. Whatever the language used, the standard is meant to be an exacting one.

Appellate courts, increasingly in recent years, have stated time and again that trial judges should not reject jointly proposed sentences unless they are "unreasonable", "contrary to the public interest", "unfit", or "would bring the administration of justice into disrepute" [5] . [ 36 ] In R. v.

Tsicos , the Ontario Court of Appeal adds: Although the sentencing judge was not required to accept the joint submission, this court has emphasized on numerous occasions the high threshold for rejecting a joint sentencing submission given the need, among other matters, to foster confidence by an accused, who gives up his right to a trial, that a joint sentencing submission obtained in return for a plea of guilty will be respected by the sentencing judge and, at least, not disregarded without sufficient cause [6] . Case law: [ 37 ] In R. v. Gordon [7] , the accused, a young adult, fired three shots.

The primary target managed to escape, but pellets struck three bystanders. Gordon was under probation. His prior convictions did not involve violent crimes. He was sentenced to 10 years, in addition to 2½ years of preventive custody. [ 38 ] In R. v. Thiara [8] , the accused was 19 years old at the time of the offence. He committed attempted murder with a firearm. He had no prior convictions. He had a supportive family and showed remorse. The court, saying that violence has to be denounced in the clearest possible way, sentenced him to 10 years of imprisonment. [ 39 ] In R. v.

Joseph [9] , the accused fired many shots from a .22 rifle at another man and struck his wife. There was no life threatening injury. The court rejected a joint submission of 7 years because it was deemed unreasonable. Taking into account the seriousness of the accusation of attempted murder, the fact that around 50 shots were fired, that the shooting took place in a rural area where there were residences and a school, the judge declares that the applicable range is from 10 to 15 years and imposes a sentence of 10 years. [ 40 ] In R. v. Johnston [10] , the accused is a 27-year-old father of two.

He has a grade 10 education, is described as a good worker and has a prior criminal record for non-violent offences. He was on probation when he committed attempted murder. The victim was struck by a shot fired by the accused after a night spent in a bar. The total sentence is one of 9½ years. [ 41 ] In R. v. Redhead [11] , an 18-year-old female was convicted of attempted murder on a police officer engaged in the execution of his duties. The accused's sister called for assistance. When the police officer arrived, the accused plunged a large knife in his chest area.

The victim suffered no physical injury as his Kevlar vest saved him. The accused has prior convictions related to violence as a youth. She addressed the victim in court offering an apology. The accused is a member of Shamattawa First Nation. The court writes that she has lived a horrible existence: she was sexually and physically assaulted, she started drinking at age 11 and had experimented with most drugs by age 15. She was intoxicated when she stabbed the police officer. She was sentenced to 10 years of imprisonment.

The court makes an analysis of case laws of attempted murder on police officers and writes: Police officers perform a public duty in the protection of members of society. They are called upon to put their lives in danger every time they answer a call for assistance. The courts owe a duty to them in return. Deterrence and denunciation are the principal sentencing factors in any case involving the attempted murder of a police officer. Decision: [ 42 ] Mr. Brien is a young man, member of the Mistissini Cree First Nation. He quit school in Secondary II, so he does not have any degree or qualifications.

He worked for one year, until June 2010, as a monitor at the Youth Centre. [ 43 ] He became a father last February, while in custody. [ 44 ] He wishes to resolve his alcohol-related problem and upon his return, following his imprisonment, be a caring father to his child. [ 45 ] In the case at bar, the court takes into account as aggravating factors: ▪ It was clearly premeditated. ▪ It is a senseless crime without apparent motive. ▪ The number of shots fired: 95 shots on a distance of one kilometre during a period of approximately two hours. ▪ One of the firearms is a powerful weapon designed to hunt big game. ▪ The shooting took place in a residential area therefore innocent people were at risk. ▪ Two people were injured, one being a police officer in the course of his duties.

▪ The accused never surrendered. ▪ Prior convictions related to firearms: − On May 19, 2005, he was declared guilty of two counts of pointing a firearm. − On July 21, 2005, he pleaded guilty to two other counts of pointing a firearm. − On October 26, 2005, he pleaded guilty on one count of careless use of a firearm. − On August 30, 2007, he pleaded guilty to one count of pointing a firearm. ▪ He was bound by a probation order. ▪ The accused was aware that alcohol consumption could lead him to commit violence. At the time of the shooting, he had two pending files involving violence when intoxicated.

The court cannot say if it was also the same regarding the prior convictions as a youth. It has not been specified. [ 46 ] Mitigating factors: ▪ The accused pleaded guilty, avoiding a possibly long trial with many witnesses. On the other hand, the evidence was overwhelming. ▪ He shows remorse. Before the members of his community, he apologized to the three police officers who testified. ▪ He is a young adult, only 20 years old.

His young age makes the court believe that rehabilitation is still a goal that can be achieved. [ 47 ] The court considers the joint submission reasonable taking into account the gravity of the offences committed without any motive. Protection of the public, denunciation, general and specific deterrence must be the focus of this sentence even if there are what we call Gladue factors present. [ 48 ] Both counsel have jointly suggested a specific amount of time of imprisonment on each count, in each file. There are counts for which they asked for a conditional stay of proceedings.

The court might have had a different opinion about the apportionment on certain counts but, in the end, it would make no difference. [ 49 ] The accused has been in custody since October 15, 2010, that is to say, a period of 7½ months for which credit will be given. [ 50 ] In the main file 640-01-021301-107: − On the first count: 2 years; − On the second count: 5 years; − On the third count: conditional stay of proceedings; − On the fourth count: 2 years; − On the fifth count: conditional stay of proceedings; − On the sixth count: 2 years; − On the seventh count: 10 years; − On the eighth count: 6 years; − On the ninth count: 2 years; − On the tenth count: 6 years; − On the eleventh count: 2 years; − On the twelfth count: 2 years; − On the thirteenth count: conditional stay of proceeding; − On the fourteenth count: conditional stay of proceedings; − On the fifteenth count: 2 years; − On the sixteenth count: 10 years; − On the seventeenth count: conditional stay of proceedings; − On the eighteenth count: 2 years;

− On the nineteenth count: 10 years; − On the twentieth count: 6 years; − On the twenty-first count: 2 years; − On the twenty-second count: 6 years; − On the twenty-third count: 2 years; − On the twenty-fourth count: 6 years; − On the twenty-fifth count: 2 years; − On the twenty-sixth count: 6 years; and − On the twenty-seventh count: 2 years. [ 51 ] In file 640-01-020059-102: [ 52 ] On each of the three counts: 4 months of detention concurrent between them and concurrent to all other files. [ 53 ] In the third file: 640-01-022187-117: [ 54 ] One count of assault with a weapon: 6 months concurrent to all other files. [ 55 ] In file 640-01-021302-105: [ 56 ] For breaches of probation: 6 months on each of the two counts, concurrent between them and to all other files. [ 57 ] Given the pre-sentence custody, from this day, Mr.

Brien will have to serve a period of 9 years and 4½ months. [ 58 ] The court issues an order authorizing the taking of any number of samples of one or more bodily substances that is reasonably required for the purpose of forensic DNA analysis. The firearms prohibition: [ 59 ] The prosecution submits that a lifetime firearms prohibition is mandatory because of the previous convictions of Mr. Brien related to firearms. The Crown attorney points out that a similar order, for a period of two years, was rendered in 2007 in application of

section 51 of the Youth Criminal Justice Act . [ 60 ] The defence lawyer asks for the exception set out by s. 113 Cr. C . to allow Mr. Brien to practice traditional activities such as hunting. [ 61 ] The defence admits the previous convictions. Those are: − On May 19, 2005, Mr. Brien was convicted of indictable offences under s. 87(2)(

a) Cr. C. , pointing a firearm (2 counts). − On July 21, 2005, Mr. Brien pleaded guilty to two other similar charges on

summary conviction. − On October 26, 2005, Mr. Brien entered a guilty plea on the count of careless use of a firearm. − On August 30, 2007, he was again before the court on an indictable offence accused of one count of pointing a firearm under s. 82(2)(

a) Cr. C . The court issued a prohibition to possess firearms for a period of two years ( s. 51 , Y.C.J.A .). This last one being the one that is relevant here. [ 62 ] For the purpose of the application of s. 109(3) Cr. C ., can the court take into account Mr. Brien's conviction as a youth? [ 63 ] S. 119(2) (

h) of the Youth Criminal Justice Act provides that the access period to the youth's record is five years if he was convicted on an indictable offence. [ 64 ] S. 119(9) of the Youth Criminal Justice Act provides that if the person is convicted of another offence during this 5-year period, the record, for the purpose of the Criminal Records Act , is deemed to be a conviction. S. 120(6) of the Youth Criminal Justice Act states: If, during the period of access to a record under subsection (3) [this period being 5 years], the young person is convicted of an additional offence set out in the

schedule [here attempted murders, assault with a weapon or causing bodily harm], committed when he or she was an adult, […]

b) for the purposes of the Criminal Records Act , the finding of guilt in respect of the offence for which the record is kept is deemed to be a conviction [12] . [Brackets added by the undersigned] [ 65 ] Clearly Mr. Brien's previous conviction as a young person are relevant and can be considered.

[66] Is this prohibition to possess firearms for life mandatory? [67] An order rendered under s. 109 Cr. C. is considered as a "punishment" even if the primary goal of such an order ispreventive.[13] [68] Is a lifetime ban mandatory if the prosecution did not serve the accused with a notice that the Crown would seek a greaterpunishment by reason of prior conviction? [69] The Criminal Code, at s. 727(1) stipulates: 727.

(1) Subject to subsections (3) and (4), where an offender is convicted of an offence for which a greater punishment may be imposedby reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutorsatisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof.[14] [70] The Manitoba Court of Appeal wrote: It is clear that the absence of notice negates the mandatory nature of a prohibition imposed by reasons of previous convictions (see R v.Ferguson (N.A. (1995), (BC CA), 64 B.C.A.C. 211; R v.

King (1996), (PE SCAD), 107 C.C.C.(3d) 542 (PEICA);[15] [71] The only prohibition order that is mandatory in the absence of a notice for greater punishment is the one under s. 109(2) Cr.C. for a period of 10 years. [72] This 10-year period is a minimum. The court still has the discretion to increase that period of prohibition, if the particularfacts of the crime committed or the particular situation of this offender commends it. [73] In Ellis, Judge Rosenberg of the Ontario Court of Appeal wrote: "By virtue of s-s. (2), 'in the case of a first conviction' thefirearms prohibition must be for at least ten years.

It was common ground, however, that the judge may impose a longer prohibition up tolife." [16] [74] In spite of his young age, Mr. Brien's record shows four prior convictions related to firearms. From the case at bar and fromprior convictions, we can say that he is capable of violence. What is worrisome here is the fact that the last events show a burst of angerthat no one can fully explain. [75] The court considers appropriate a 15-year prohibition. In accordance with section 109(2), the court issues an order prohibitingthe accused from possessing: a.

Any firearms, other than prohibited firearms or restricted firearms, and any cross-bow, restricted weapon, ammunition andexplosive substance, during the period that begins on the day the order below is made and ends 15 years after the accused's release fromimprisonment. and b. Any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [76] The application for the lifting of the prohibition order for sustenance is premature. [77] The previous convictions and the facts that occurred on October 15, 2010, clearly show that Mr.

Brien cannot be trusted withfirearms. It is the fifth time he is before the court for crimes related to firearms. Any person who acts as irresponsibly as Mr. Brien withfirearms should not be entitled to possess such weapons. For the time being, the court has no evidence that could lead to grant anexception for hunting. [78] After his term of imprisonment, if Mr. Brien still wants to be granted the exception provided by s. 113 Cr.

C., he will have toask the court and tender evidence that he is rehabilitated and that he is able to act in a safe and responsible manner if such an exception isallowed. [79] The court dismisses the application for the lifting of the firearms prohibition order and reserves Mr. Brien's right to submit tothe court such a motion after he has completed his term of imprisonment. [80] The court waives the victim fine surcharge in all the files and waives the costs in files 640-01-020059-102 and 640-01-022187-117. __________________________________ LUCILLE CHABOT, J.Q.C.

Me François Doyon-GasconLawyer for the prosecution Me Catherine Gagnon

Lawyer for the accused Date of hearing: March 18, 2011