2018 QCCA 1251, 2018 QCCA 1251

Translated from the original French Denis-Damée c. R. 2018 QCCA 1251 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF OF QUEBEC No.: 200-10-003374-175 (155-01-000608-166) DATE: AUGUST 6, 2018 CORAM: THE HONOURABLE DOMINIQUE BÉLANGER, J.A. SIMON RUEL, J.A. JOCELYN F. RANCOURT, J.A. STACEY SIKOUNIK DENIS-DAMÉE APPLICANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Crown Prosecutor JUDGMENT [ 1 ] The applicant, Stacey-Sikounik Denis-Damée, seeks leave to appeal [1] a sentence of six years of imprisonment imposed by the Court of Québec, Criminal and Penal Division, District of Roberval (the Honourable Judge Michel Boudreault), on May 29, 2017, [2] after she pleaded guilty to a charge of manslaughter committed against her father. [ 2 ] The appeal concerns the sentencing of this young member of the Opitciwan Indigenous community, whose life has been marked by a totally dysfunctional family and undermined by alcohol, drugs and violence.

Guided by the judgments of the Supreme Court of Canada in Gladue and Ipeelee , this Court’s role consists of determining whether the Court of Québec judgment applied the principles set out in those cases and whether the assessment of the resulting sentence justifies the Court’s intervention. [ 3 ] For the reasons that follow, the Court is of the view that its intervention is necessary to reduce the six-year sentence to a two- year sentence, followed by a three-year probation period.

BACKGROUND [ 4 ] The exercise the Court has been asked to undertake requires it to examine the circumstances of the fatal event that occurred on June 28, 2015, to understand of Stacey-Sikounik’s personal and family history, and to draw a portrait of the Opitciwan community. Incident on June 28, 2015 [ 5 ] The life of this young First Nations person, aged 21 years old at the time of the killing of her father, has been anything but smooth and tranquil. She was raised in a dysfunctional family environment marked by substance abuse.

Her parents were cocaine addicts and she herself started using drugs when she was 9 years old. [ 6 ] On the evening of June 28, 2015, Stacey-Sikounik was intoxicated with alcohol and drugs. She found out that her father was with his young mistress in a house not far from the family home. She went there with her mother. Once there, her mother ordered her husband to return home. On the way back, Stacey-Sikounik and her father came to blows because she did not accept that her father could have a relationship with a girl her own age. [ 7 ] Things settled down once they returned to the family home.

The three of them retired to their bedrooms. [ 8 ] A few minutes later, Stacey-Sikounik came out of her bedroom with a hunting knife. She went to her parents’ bedroom, opened the door and came face-to-face with her father. She then fatally stabbed him in the chest. [ 9 ] The evidence established that the father had threatened her with knife a few weeks prior to the incident on June 28, 2015.

[ 10 ] Stacey-Sikounik was charged with murder. She was incarcerated until February 11, 2016, at which time she started six months of therapy that she successfully completed. She pleaded guilty to a reduced charge of manslaughter on June 15, 2016.

She was again detained on October 14, 2016, for having breached her release conditions. [ 11 ] At the sentencing hearing, the respondent sought a six-year prison term while the applicant proposed a two-year sentence, plus two months for the breach of the release conditions. [ 12 ] On May 29, 2017, the judge sentenced her to six years of imprisonment, while crediting her 1 year and 295 days for pre- sentencing custody. Stacey-Sikounik’s family and personal history [3] [ 13 ] Stacey-Sikounik is a member of the Atikamekw Nation.

She was born in Opitciwan, [4] an Aboriginal community on the north shore of the Gouin Reservoir, approximately 280 kilometres west of Roberval. [ 14 ] She is the eldest of two children. She has a brother. [ 15 ] Her father attended the Pointe-Bleue residential school when he was young and was never the same after he returned to his community following his one-year stay. His life was troubled by the daily use of psychotropic substances and alcohol. [ 16 ] Stacey-Sikounik’s mother attended the Pointe-Bleue residential school for three years. She has three children from a previous relationship.

The father of her three children committed suicide with a firearm. Her life has also been troubled by daily drug and alcohol use. [ 17 ] The maternal and paternal grandparents attended Aboriginal residential schools. [ 18 ] Stacey-Sikounik is constantly haunted by the memory of seeing her father take cocaine. Her father became aggressive during these episodes of excessive drug use and verbally denigrated her. She and her brother hid from him because they were afraid of being the target of his ire. Her mother also became aggressive when deprived of drugs.

Despite this, she still loves her mother. [ 19 ] Her parents each received an indemnity under the Indian Residential Schools Settlement Agreement . That indemnity was used to buy drugs and perpetuate their cycle of drug use. [ 20 ] The single moment of happiness from her childhood occurred when she was six years old. She remembers a family outing to the forest during which both her father and mother were sober. [ 21 ] At 7 years old, she observed that her parents used alcohol and drugs non-stop. The family lacked food because her parents used the money they had to satisfy their drug habit.

Her father made the rounds of the cabins to steal things and even sold the children’s toys to purchase drugs and alcohol. [ 22 ] She started smoking cigarettes when she was 9 years old and started using marijuana shortly thereafter. She smoked one to three joints a day and developed a dependency. [ 23 ] She decided to leave home when she was 11 years old because she was tired of seeing her parents take drugs and quarrel. She took refuge with her grandmother, Katerine Awashish, and told a social worker about the dysfunction in her family unit. She was placed in foster care with Lydia Damée-Denis, her aunt.

She continued to take drugs and started to sniff gasoline (naphtha), which is easy to use and inexpensive. [ 24 ] When she was 12 years old, she turned to cocaine while continuing to sniff naphtha. She asked for help and wanted to be placed in an institution. She was sent to the Foyer Mamo for young offenders. That experience proved negative because she received no help, only reprimands. [ 25 ] She left school in Secondary I. She dropped out due to her absenteeism caused by her daily drug use.

She was also bullied at school because of her father’s questionable behaviour. [ 26 ] Between the ages of 12 to 15, she was sent to Foyer Florence, a group home for members of the Atikamekw Nation. She liked it there because she could stay in her room and take drugs. [ 27 ] When she was 15 years old, she continued her to seek an escape from reality. She started to inject cocaine intravenously. She rapidly became addicted. She returned to her parents’ home and saw that it was being used as a haven by several people who went there to take drugs. [ 28 ] Her intravenous cocaine use increased.

To pay for her habit, she prostituted herself once a week. A friend with whom she used to shoot up died of an overdose. She contracted Hepatitis C during this period. [ 29 ] When she was 18 years old, her arms, destroyed by swelling and infection, could no longer be used to inject cocaine intravenously. She turned to methamphetamine, a synthetic drug whose effects resemble cocaine. She used it daily with the members of her family. She tried to commit suicide twice while in the grip of toxic psychosis.

She was hospitalized in psychiatric units three times between January and March 2013. [ 30 ] She started therapies that she did not complete because the allure of drugs was always stronger. [ 31 ] On the date she committed the fatal act that killed her father, she was under the influence of drugs and alcohol, having taken cocaine, methamphetamine, beer and hard liquor.

[ 32 ] She has no criminal record. History of the Opitciwan Aboriginal community [ 33 ] The Gladue Report contains a historical description of the Opitciwan Aboriginal community, prepared by historian Jérôme Morneau. [ 34 ] The document explains that the logging that started in the 1890s deprived the Atikamekw of access to their territory, making it difficult for them to practice their traditional activities. The construction of the La Loutre Damn between 1915 and 1917 to create the Gouin Reservoir flooded their land.

A good portion of the Opitciwan village was submerged, and many families saw their hunting grounds swallowed up. [ 35 ] Their lifestyle was profoundly altered. They became sedentary, which deeply upset the social relationships.

Indigenous women lost their role as teachers and the men no longer fulfilled their traditional role as providers and managers of the territory’s resources. [ 36 ] After the fur trade collapsed in the 1930s, the Canadian authorities encouraged the assimilation of the Indigenous peoples through education which, it was said, would enable them to join the labour market and improve their socio-economic condition. [ 37 ] The children were uprooted from their environment and sent to residential schools.

Atikamekw children had to go to the Saint- Marc-de-Figuery residential school, near Amos, and later the one in Pointe-Bleue, close to Roberval. [ 38 ] There, the Atikamekw children were totally isolated from their families and subject to abuse. They were also not taught the traditional ways or their mother tongue.

All this created a generation gap that translated into a feeling of acculturation and alienation. [ 39 ] The students and subsequent generations have suffered numerous consequences as a result of their experiences at residential schools: alcoholism, drug addiction, domestic violence, sexual harassment, suicidal tendencies, criminality and dropping out of school. [ 40 ] The Royal Commission on Aboriginal Peoples (1996) acknowledged the stigma caused to Indigenous peoples. The Government of Canada signed the Indian Residential Schools Settlement Agreement (2007) and formally apologized in 2008.

In 2015, the Truth and Reconciliation Commission of Canada found that the residential schools had served as a tool for the cultural genocide of Indigenous peoples. [ 41 ] In the pre-sentence report, the probation officer noted the significant social problems experienced by the community that were related to drug addiction and violence.

Judgment a quo [ 42 ] After recounting the facts and describing the Obedjiwan Atikamekw community, the judge stated that [ translation ] “the Indigenous context of the Denis-Damée family has had a direct impact on the use of toxic substances ...” [5] [ 43 ] He drew the portrait of Stacey-Sikounik by emphasizing the fact that [ translation ] “[t]he accused’s childhood and family history are troubling.” [6] He completed the portrait by stating that the Court would inevitably have to give particular consideration to the circumstances of Indigenous offenders under s. 718.2 (

e) of the Criminal Code . [ 44 ] He then addressed the legal principles that would guide him in sentencing.

He noted that, [ translation ] “[h]aving regard to the foregoing on the Obedjiwan Indigenous community and the Denis-Damée family portrait, the fact nonetheless remains that the Court must follow the general sentencing principles of the Criminal Code . ” [7] He added that, with respect to Indigenous offenders, he must [ translation ] “also consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community.” [8] [ 45 ] The judge then addressed the objective gravity of the offence of manslaughter and assessed Stacey-Sikounik’s degree of moral responsibility as being the highest. [9] [ 46 ] With respect to the subjective gravity, the judge stated that Stacey-Sikounik [ translation ] “is very remorseful about the act committed and explained the harm she suffered as a result of the rejection and psychological violence she experienced during childhood.” [10] He described the therapy she had followed and her relapse in October 2016 that led to her re-incarceration.

Her probation officer noted that the risk of re-offending could not be ruled out. The judge agreed with Stacey-Sikounik when she said that she [ translation ] “is very remorseful, but is convinced that she would never have committed such

an act in normal conditions and had she not used drugs.” [11] The Gladue Report to which the judge refers describes her as a person who is not lazy and who is currently registered in a program to obtain her Secondary III. [12] [ 47 ] Based on his analysis of the case law, the judge distinguished Stacey-Sikounik’s case from Gladue, in which the accused was sentenced to three years’ imprisonment. He noted that the distinguishing feature was based on Ms.

Gladue’s hyperthyroidism, a condition not found in Stacey-Sikounik. [ 48 ] He went on to remark on the principle elaborated in Gladue whereby [ translation ] “generally, the more serious and violent the crime, the greater the probability that the prison terms of a member of the First Nations and someone from a European background will be similar.

It is still always necessary to consider the particular circumstances of Aboriginal offenders.” [13] [ 49 ] The judge inferred from the principles that emerge from the case law that [ translation ] “the courts will consider the accused’s level of blameworthiness in the commission of the homicide without, of course, forgetting to attribute the required significance to the other factors.” [14] [ 50 ] He identified the offence of manslaughter committed by Stacey-Sikounik along the scale of prison sentences that [ translation ]

“ranges from 9 years to life imprisonment, with most sentences ranging from 10 to 15 years.” [15] In so doing, he determined that [ translation ] “[t]he 6-year prison sentence sought by the Crown is therefore less than what is established by the case law.” [16] [ 51 ] According to the judge, there are no words or sentence that can redress the consequences of such a crime for the Denis-Damée family. [ 52 ] He noted that the disadvantageous systemic factors largely explain why she found herself before the court.

He reiterated that the objectives of sentencing are denunciation and deterrence, and delivered the following message: [ translation ] [109] However, it is clear from the case law that the key objectives of sentencing in cases of manslaughter are denunciation and deterrence.

The sentence that the court must impose today must send a message that this type of violence will not be tolerated by our society, in particular the one in which the accused was living, and that, in the future, those who act violently instead of showing restraint must face the serious consequences of the criminal justice system. [110] Rehabilitation is also an important objective here. The accused is a young woman without a criminal record and rehabilitation is a realistic objective.

The sentence must also take that into account. [111] Moreover, the sentence must respect the overarching principle of proportionality, meaning that it must reflect the gravity of the offence and the accused’s degree of moral responsibility. It must also reflect the parity principle in that the sentence cannot markedly depart from those imposed in other cases with similar circumstances. [17] [ 53 ] The judge determined that Stacey-Sikounik had a high degree of moral responsibility for the homicide committed.

He explained this as follows: [ translation ] [112] As previously stated, we now know that the accused has a high degree of moral responsibility for the homicide committed. The court must also consider that a weapon was used in the commission of the offence without provocation. That action was unjustified in the circumstances. [18] [ 54 ] The judge stated that the message of deterrence must be accompanied by an educational message to the community about the risks and consequences associated with drug and alcohol abuse.

As such, he wrote the following: [ translation ] [118] Unfortunately, Stacey-Sikounik Denis-Damée is proof of this. [119] The court cannot allow the inhabitants of that community to seek their own justice on the pretext of a troubled past. [120] Due to the principle of individualized sentencing, however, the court must not impose an excessive sentence on the accused to send a message to the Indigenous community that the alcohol and drug use and violence must stop. [19] [ 55 ] He agreed with the Crown’s suggestion of six years’ imprisonment less 1 year and 295 days for pre-sentencing custody.

APPLICABLE LAW Principle of proportionality of sentencing [ 56 ] A cardinal rule in sentencing, the principle of proportionality is enshrined in s. 718.1 of the Criminal Code : 718.1 La peine est proportionnelle à la gravité de l’infraction et au degré de responsabilité du délinquant. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 57 ] As noted by LeBel J. in R. v.

Ipeelee , [20] “[p]roportionality is the sine qua non of a just sanction.” [21] The principle ensures that “the sentence reflects the gravity of the offence” and that it “does not exceed what is appropriate, given the moral blameworthiness of the offender.” [22] [ 58 ] In their Traité de droit criminel portant sur la peine , [23] authors Hugues Parent and Julie Desrosiers write that [ translation ] “[t]he objective gravity of each crime therefore corresponds to the position it occupies on the scale of gravity of crimes”, [24] while subjective gravity [ translation ] “refers to the circumstances surrounding the commission of the crime ( ’ way in which the offences were committed’).” [25] [ 59 ] The offender’s degree of responsibility corresponds to his or her moral culpability.

In R. v. Arcand , [26] the Alberta Court of Appeal described the way in which moral culpability should be assessed: The “degree of responsibility of the offender” as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed. For this assessment, courts are able to draw extensively on criminal justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability.

However, the reference in s. 718.1 is not simply to the “ mens rea degree of responsibility of the offender” at the time of commission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affecting

culpability. These might relate, for example, to the offender’s personal circumstances, mental capacity or motive for committing the crime. Where else does the Code provide for an offender’s degree of responsibility generally to be taken into account? Here, too, the answer takes us to s. 718.2 . [Emphasis added.] [ 60 ] This analysis gives rise to two observations. First observation: an offender’s moral culpability varies according to the harm intended or the degree of recklessness or wilful blindness. The greater the harm, the greater the offender’s moral culpability.

Second observation: moral culpability encompasses a series of factors, including those related to the offender’s personality, and the consideration of these factors should not be limited to the period during which the offence was committed. As noted by authors Parent and Desrosiers, [ translation ] “it is the criminal’s entire personality that is scrutinized and opened to judicial analysis.” [27] Sentencing Indigenous offenders [ 61 ] The sentencing principles are set out in s. 718.2 of the Criminal Code . Each principle listed in that

section must be considered by the judge when assessing the sentence. No one principle systematically trumps the others. [28] [ 62 ] It is for the trial judge “to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ..., subject to the overarching guidelines and principles in the Code and in the case law.” [29] [ 63 ]

Section 718.2 (

e) of the Criminal Code refers to the principle that all available sanctions other than imprisonment should be considered, with particular attention given to Aboriginal offenders . The earlier version [30] of this provision, which is applicable to this case, reads as follows: 718.2 Le tribunal détermine la peine à infliger compte tenu également des principes suivants : […]

e) l’examen de toutes les sanctions substitutives applicables qui sont justifiées dans les circonstances, plus particulièrement en ce qui concerne les délinquants autochtones . 718.2 A court that imposes a sentence shall also take into consideration the following principles: […]

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 . [Emphasis added.] [ 64 ] This provision has the remedial purpose of restricting the use of prison for all offenders, and as having a particular remedial role with respect to Indigenous peoples. [31] [ 65 ] Following a detailed study on the overrepresentation [32] of Indigenous offenders in penitentiaries, in 1998 the Supreme Court of Canada stated that “[t]here is evidence that this widespread racism [against Indigenous peoples] has translated into systemic discrimination in the criminal justice system”. [33] [ 66 ] This disturbing finding led the highest court in the land to develop a specific analytical framework for sentencing Indigenous offenders in Gladue , [34] a framework that was reconsidered and reaffirmed 13 years later in Ipeelee . [35] [ 67 ] The framework that emerged in Gladue requires the judge, when sentencing an Indigenous offender, to consider the following: (

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the courts; and (

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. [36] [ 68 ] With respect to the aspect on systemic or background factors , the trial judge must “in every case” take judicial notice and consider “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”. [37] [ 69 ] In Ipeelee , the Supreme Court subsequently specified that the consideration of such factors may bear on the culpability of the offender by shedding light on his or her lower level of moral blameworthiness . [38] These are the mitigating factors. [39] In this regard, authors Denis-Boileau and Sylvestre wrote that ” [s]ignificantly and forging new law, Justice LeBel posits the consideration of the background and systemic factors as forming an inherent part of the proportionality principle”. [40]

[ 70 ] With respect to the branch relating to appropriate sanctions for Aboriginal offenders , in Gladue , the highest court in the land noted that Aboriginal people held different conceptions in this regard. Among other things, the Court explained that most traditional Indigenous conceptions of sentencing place a primary emphasis upon the ideals of restorative justice [41] and that this tradition is extremely important to the analysis under s. 718.2 (

e) of the Criminal Code . [42] In this respect, it very often happens that incarceration is not an appropriate solution for Indigenous offenders or their community, especially in cases of minor or non-violent offences.

Nonetheless, it is noted further on in the same decision that “ [ c ] learly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant.” [43] [ 71 ] When imprisonment is required, the Indigenous context must be considered when determining the term of imprisonment, even where an offence is considered serious. [44] It is incumbent upon the judge “to attempt to acquire information regarding the circumstances of the offender as an aboriginal person.” [45] The Supreme Court went so far as to say that “the sentencing judge may and should in appropriate circumstances and where practicable request that witnesses be called who may testify as to reasonable alternatives.” [46] [ 72 ] The Court had the opportunity to point out earlier that, in Ipeelee , the Supreme Court reconsidered and reaffirmed the Gladue framework of analysis.

After observing the difficulties in interpreting and applying both s. 718.2 (

e) and Gladue , the Court corrected the development of the case law in two respects. [ 73 ] The first concerns the establishment of a causal link between the systemic and background factors and the commission of the offence: no such connection is required.

The second involves the idea expressed in Gladue whereby “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for Indigenous and non-Indigenous offenders will be close to each other or the same, even taking into account their different concepts of sentencing.” [47] The Supreme Court stated that the courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences. [48] It then went on to note that judges have a duty to s. 718.2 (

e) and that “[i]f the offender is Aboriginal, then courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue . ” [49] [ 74 ] Again in Ipeelee , the Supreme Court recalled the principle set out in s. 718.2 (

e) whereby a sentencing judge must consider all other available sanctions that are reasonable in an Indigenous context. [50] [ 75 ] In short, s. 718.2 (

e) of the Criminal Code is therefore [ translation ] “a specific application of the principle of individualized sentencing as defined through the lens of the Aboriginal reality.” [51] Similar sentences [ 76 ] This principle, also known as parity , is the [ translation ] “correspondence of sentences imposed on offenders sharing common characteristics who have committed similar offences in similar circumstances.” [52] [ 77 ] Naturally, “the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless, theoretical exercise of.” [53] That is why it is necessary that this principle, as well as that of proportionality, be coherently articulated when searching for an appropriate and individualized sentence. [54] [ 78 ] The courts appear unanimous on this issue: the principle of parity does not preclude disparity between two offenders who committed the same offence where warranted by the circumstances. [55] [ 79 ] When this principle is raised on appeal, intervention is justified only where there is a substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. [56] Standard of review [ 80 ] Sentencing, “[f]ar from being an exact science or an inflexible predetermined procedure,” [57] is a delicate art that is primarily a matter for the trial judge. [58] [ 81 ] In R. v.

Lacasse , [59] the Supreme Court of Canada wrote that the sentencing judge enjoys wide latitude. [60] Appellate intervention will only be justified to vary the sentence where the trial judge has committed an error in principle, failed to consider a relevant factor or erroneously considered an aggravating or mitigating factor and such an error had an impact on the sentence. [61] [ 82 ] Where the sentence concerns an Indigenous offender, the highest court in the land clarified in R. v. Ipeelee [62] that the failure to apply the Gladue principles constitutes an error justifying appellate intervention.

It wrote as follows: [87] The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.

ANALYSIS [ 83 ] The Court must determine whether the trial judge failed to consider the particular circumstances of Indigenous offenders when he

sentenced Stacey-Sikounik. [ 84 ] As discussed above, the principles established in Gladue and confirmed in Ipeelee require that the sentencing judge 1) take judicial notice of the systemic and background factors which may have influenced an Indigenous offender’s moral blameworthiness; and 2) consider alternatives to (available sanctions other than) imprisonment for Aboriginal offenders. [ 85 ] How do these principles apply in the present case?

Gladue principles Systemic and background factors [ 86 ] In paragraph 108 of his judgment, the judge acknowledged the existence of disadvantageous systemic factors [63] that [ translation ] “largely explain why she now finds herself before the Court.” [64] [ 87 ] In paragraphs 109 to 111, the judge succinctly addressed the key sentencing objectives in cases of manslaughter by referring to denunciation and deterrence. He also mentioned the objective of rehabilitation and the principles of proportionality and parity. [ 88 ] He then went on to characterize Stacey-Sikounik’s degree of moral responsibility.

Paragraphs 112 to 114 are worth reproducing to clearly understand the trial judge’s reasoning: [ translation ] [112] As previously stated, we now know that the accused has a high degree of moral responsibility in the homicide committed. [65] The court must also consider that a weapon was used in the commission of the offence without provocation.

That action was unjustified in the circumstances. [113] It should be recalled that, at the time of the events, the victim was with his spouse in his bedroom, while the accused was in her own bedroom before she used the knife to commit the irreparable act. [114] The nature of the crime and the high degree of violence used call for a sentence that takes into account the factors of denunciation and deterrence, which must be predominant. [ 89 ] The judge emphasized the significant gravity of the offence, which allowed him to find that Stacey-Sikounik has a high degree of responsibility. [ 90 ] In so doing, he completely failed to make the connection between the systemic and background factors and Stacey-Sikounik’s moral culpability.

He limited himself to the relationship between the gravity of the offence and the degree of moral blameworthiness, without considering the Indigenous context inherent to the systemic and background factors. It is therefore impossible to know whether or not these factors could have influenced the petitioner’s moral culpability, as the sentencing judge did not address this issue.

The judgment does not help the Court understand how the difficult life experienced by Stacey-Sikounik might lessen her moral culpability. [ 91 ] The failure to apply the first Gladue principle constitutes an error that justifies this Court’s intervention, as stated by LeBel J. in Ipeelee , [66] especially since the evidence established that the conduct resulted from substance abuse connected to the systemic and background factors. This error in principle had an impact on both the sentence and its reasonableness.

Other available sanctions [ 92 ] In paragraph 54 of the judgment, under the heading [ translation ] “Sentencing law and principles”, the judge stated that the court [ translation ] “must also consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community.” [ 93 ] The Gladue Report filed with the Court of Quebec recommends restorative, rehabilitation and healing measures that its author described as reasonable options in the circumstances of the case: [ translation ] Considering the obvious Gladue implications and that this is the first time such an assessment is requested, I believe that Stacey- Sikounik Denis-Damée could be encouraged by a sentence that physically and morally favours her rehabilitation; It shall be recommended that she again be sent to a long-term therapy centre (longer than 6 months), either with judicial oversight or as part of a conditional discharge; Given her sincere desire to rehabilitate and her intellectual abilities, when sentencing her, encouraging her to work toward achieving her educational objectives should be considered; [67] [ 94 ] Despite these clear statements, it is obvious that the judge did not address the issue of other available sanctions in his reasons.

Nonetheless, it was his duty to do so, even if, as counsel explained at the hearing, the resources available to implement alternative sanctions are unfortunately scarce. [ 95 ] In Ipeelee , LeBel J. referred to the statistics establishing that the overrepresentation of Indigenous offender in the criminal justice system has only increased in recent decades and is worse than ever. In 1999, Indigenous persons made up 12% of all federal admissions, while in 2005, they accounted for 17% of Canadian inmates. [68] [ 96 ] In 2015, Indigenous inmates represented 24.4% of the total federal custody population.

In the ten year period between 2005 and

2015, the Aboriginal inmate population increased by more than 50%. [69] [ 97 ] The situation of incarcerated Indigenous women should also be noted, as it is even more troubling than that of Indigenous men.

Over the same period, from 2005 to 2015, the number of Indigenous women inmates has doubled, with Indigenous women representing 35.5% of all federally sentenced women inmates. [70] In 2016-2017, they represented 37% of all federally sentenced women inmates. [71] [ 98 ] In other words, Indigenous women are even more overrepresented in penitentiaries than are Indigenous men. [ 99 ] Moreover, the Corrections and Conditional Release Act [72] sets out certain mechanisms and programs for Indigenous people, but again nothing seems to have been put in place that would have allowed the trial judge to find an alternative to imprisonment or even to order probation conditions that were adapted and useful to the applicant. [73] Resources for Indigenous offenders are cruelly lacking.

Fit sentence [ 100 ] The fundamental principle of proportionality enshrined in s. 718.1 Cr. C. is articulated around the gravity of the offence and the degree of responsibility (or moral culpability) of the offender. [ 101 ] The judge found that the objective gravity of the offence of manslaughter should be treated as a near murder.

Without contesting the average sentence accepted by the judge for the offence of manslaughter, it must be acknowledged that this average, drawn from a review of the case law by authors Parent and Desrosiers, [74] does not distinguish between judgments rendered in cases involving non- Indigenous offenders and those involving Indigenous offenders. [75] Similarly, it is worth noting that R. c. Vallée , which the judge relied on to adopt the sentencing scale for near murders, was not rendered in an Indigenous context and that the court clearly did not have to examine the principles applicable under s. 718.2 (

e) Cr.

C. [76] The judge appeared to accept the respondent’s argument in favour of the sentence of six years’ imprisonment when he stated that [ translation ] “it is to be believed that it takes into account several mitigating factors, including the particular situation of Indigenous offenders”. [77] With all due respect, this assessment lacks circumspection and is based on an arbitrary consideration. [ 102 ] As to the degree of moral culpability, without excusing and trivializing the crime committed by this young Indigenous person, the problems endemic in the community recounted in the Gladue Report, the consequences of the fact that Stacey-Sikounik’s parents and grandparents attended residential schools on their descendants, and the pitiful family environment in which she was raised constitute systemic and background factors that lessen her degree of moral culpability. [ 103 ] A childhood ruined by her parents’ behaviour, her adoption and reproduction, by necessity, of the lifestyle her parents passed on, her inexorable descent into the abyss of drugs, her permanent state of intoxication, and the lack of efficient resources to help her: “[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled.” [78] Stated frankly, we find ourselves here beyond the limits of human dignity. [ 104 ] Furthermore, Stacey-Sikounik was sincere when she told the caseworkers that she in no way wanted her father to die.

She is anxious about having committed an irreparable act, and she remains aware and convinced that she would never have done so had she not been intoxicated.

She is very repentant. [ 105 ] Undoubtedly, Stacey-Sikounik was in a difficult situation indeed, which diminished her moral culpability. [79] Moreover, given that she had no intention to cause serious harm, it can also be argued that her moral culpability was low. [80] [ 106 ] With all due respect, the judge was mistaken when he characterized Stacey-Sikounik’s degree of moral culpability as high. [ 107 ] The judge considered several aggravating factors, including the lack of provocation, which cannot be considered an aggravating factor, and the high degree of moral culpability, which does not reflect reality.

The mitigating factors were properly assessed. [ 108 ] The judge attached considerable importance to the factors of denunciation and deterrence. In paragraphs 116 and 117, he wrote that the leading cause of the migration of part of the Opitciwan population is alcohol and drug use, as well as all of its consequences, including violence. This justified his sending the community a message of deterrence and education.

In paragraph 119, he wrote a striking sentence: [ translation ] “The Court cannot allow the inhabitants of this community to seek their own justice on the pretext of a troubled past.” While he nuanced his words in the following paragraph by stating that he cannot give [ translation ] “the accused an excessive sentence”, his remarks water down the spirit of the Supreme Court’s decisions in Gladue and Ipeelee , which address the problem of the overrepresentation of Indigenous people in prison due to different conceptions of justice and discriminatory systemic and background factors. [ 109 ] The judge correctly described Stacey-Sikounik’s potential for rehabilitation: [81] [ translation ] “We have here a young woman who, with the help of professionals and caseworkers, has all the potential to reintegrate into society after serving her sentence and to lead and honest life among the population and with her family.” [82] The author of the Gladue Report noted both her ability for insight, her intelligence ([ translation ] “She is very intelligent”), her willingness to work, her kindness when she is not using drugs, her frankness, her open-mindedness and her good listening skills. [ 110 ] It is worth noting that she is currently working toward completing Secondary IV while incarcerated and that she firmly intends to obtain her high school diploma.

She also said that she does not want to return to her community and that she is entirely ready and willing to continue therapy once she is released. [ 111 ] According to the probation officer who prepared the pre-sentence report, the risk of re-offending [ translation ] “cannot be ruled out”.

He feels that she will have [ translation ] “a hard time facing her future, as long as she remains fragile.” He goes on to conclude that [ translation ] “the offender has no choice but to undergo major therapy.” [ 112 ] In these circumstances, the Court finds that the six-year sentence violates the principle of proportionality and is of the view that the appropriate prison term is two years, followed by three years’ probation.

[ 113 ] It would not be desirable to let Stacey-Sikounik leave prison without the benefit of supervision measures that will enable her to firmly establish a new life plan. Therefore, to ensure both her reintegration into society and the safety of the community, it is critical that she be subject to a probation order pursuant to s. 731(1)(

b) Cr. C. , for cases where the prison term is two years. [83] [ 114 ] The situation in this case presents considerable factual similarities with those in Gladue , the outcome of which was a sentence of three years’ imprisonment.

Therefore, according to the parity principle, a sentence of three years’ imprisonment could have been seriously considered here. [ 115 ] However, given the very particular circumstances described above, the Court finds that such a sentence would be unfit. [ 116 ] At the risk of repetition, a probation order is necessary to ensure that Stacey-Sikounik successfully reintegrates into society.

In a situation of scarcity of resources to treat Indigenous offenders, these probation measures will enable this young woman to complete the therapy that the probation officer considers to be unavoidable. [ 117 ] Probation orders are by nature highly restrictive and are akin to an alternative sanction. [84] They ensure the protection of society while also favouring the rehabilitation of offenders. [85] [ 118 ] Such orders “afford sentencing judges [where appropriate] the flexibility to opt for shorter prison terms followed by community supervision, rather than the longer prison terms that they would have otherwise unnecessarily imposed.” [86] [ 119 ] They are an “effective and efficient alternative” when a long prison sentence is not justified and there is a potential for the offender’s rehabilitation. [87] [ 120 ] Such is the case with Stacey-Sikounik. [ 121 ] The sentence will therefore include the conditions of probation from the conclusions of the judgment. [ 122 ] Given that the parties have not proposed any available sanctions other than imprisonment, it is difficult, if not impossible, for the Court to align the sentence and conditions of probation with Aboriginal principles of restorative justice.

The signal, however, is clear: both the parties and the sentencing judge must seriously analyse reasonable alternative sanctions when seeking a fit sentence for an Aboriginal offender.

FOR THE FOREGOING REASONS, THE COURT: [ 123 ] GRANTS the application for leave to appeal; [ 124 ] ALLOWS the appeal in part; [ 125 ] SETS ASIDE the judgment on sentence and SUBSTITUTES by a sentence of two years and a probation order of three years for the sentence of six years imposed by the Court of Québec, with the following conditions: Report to the probation officer within five working days of this judgment; Keep the peace and be of good behaviour; Notify the probation officer of any change of name or address, and promptly notify the probation officer of any change of employment or occupation; Only change address pursuant to the conditions set by the probation officer; Remain within the jurisdiction of the court in the district in which she lives, unless written permission to go outside that jurisdiction is obtained from the probation officer; Abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; Provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by a probation officer in a notice in Form 51 served on the offender; Abstain from owning, possessing or carrying a weapon; Undergo therapy for a minimum of six months in an alcohol and drug rehabilitation centre; Comply with the instructions of the probation officer on continuing her education. [ 126 ] ORDERS that the appellant be taken to the clerk of the Court of Quebec, District of Roberval, so that she may read the conditions of the probation order and sign an undertaking to comply therewith.

DOMINIQUE BÉLANGER, J.A. SIMON RUEL, J.A.

JOCELYN F. RANCOURT, J.A. Mtre Denis Otis Lalancette, Otis For the appellant Mtre Marie-Anne Robert Criminal and Penal Prosecutor For the respondent Date of hearing: March 16, 2018 Restorative justice is concerned with the restoration of the parties that are affected by the commission of an offence. Crime generally affects at least three parties: the victim, the community, and the offender. A restorative justice approach seeks to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved.

This is accomplished, in part, through the rehabilitation of the offender, reparations to the victim and to the community, and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community. 731

(1) Lorsqu’une personne est déclarée coupable d’une infraction, le tribunal peut, vu l’âge et la réputation du délinquant, la nature de l’infraction et les circonstances dans lesquelles elle a été commise : […]

b) en plus d’infliger une amende au délinquant ou de le condamner à un emprisonnement maximal de deux ans, ordonner que le délinquant se conforme aux conditions prévues dans une ordonnance de probation. 731

(1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, […] (

b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.