2021 QCCQ 11037, 2021 QCCQ 11037

R. c. Crow 2021 QCCQ 11037 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF VAL-D’OR « Criminal and Penal Division » No: 640-01-044133-206 640-01-044138-205 DATE: February 23, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE RENÉE LEMOINE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

KEVIN CROW Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused pleaded guilty to dangerous operation of a motor vehicle causing bodily harm, operation of a motor vehicle while impaired causing bodily harm, failure to stop after an accident resulting in bodily harm, aggravated assault and mischief. [ 2 ] A fit and appropriate sentence must be determined for these offences. [ 3 ] The event occurred on June 26, 2020, in Umiujaq, when Mr.

Crow used his mother’s vehicle as a weapon and deliberately hit an all-terrain vehicle (ATV). Ms. Alexandra Paterson, the former intimate partner of the accused, and her friend Ms. Malaya Sala were seriously injured. [ 4 ] An agreed statement of facts was submitted to the Court and read into the record at the sentencing hearing on December 16, 2020.

CIRCUMSTANCES OF THE OFFENCE [ 5 ] The agreed facts detail the circumstances of the offences as follow: − Kevin Crow and Alexandra Paterson were in a relationship for many years and have a child together; − Alexandra Paterson ended the relationship around May 2020 because the couple was always fighting and arguing; − Alexandra Paterson thought that Kevin Crow was in a relationship with Caroline Weetaltuk; − During the night of June 26, 2020, Alexandra Paterson and Malaya Sala were driving in the community on an ATV when they noticed Caroline Weetaltuk; − They got into a physical altercation; − When Kevin Crow noticed the situation, he approached them and both Malaya Sala and Alexandra Paterson left on the ATV; − At the time, Kevin Crow was intoxicated and acknowledges that he was angry at his ex-girlfriend; − He went to his residence and borrowed his mother’s Ford SUV in order to look for Alexandra Paterson and Malaya Sala in the community; − His brother tried to stop him from leaving with the SUV since he noticed he was intoxicated but did not manage to stop him; − While driving around in the community, he saw the plaintiffs in the opposite lane at an intersection; − He accelerated deliberately and drove directly into the opposite lane to collide with the ATV;

− Malaya Sala tried to get off the road to avoid being hit but could not prevent the collision; − Many people witnessed the collision and some of them saw Alexandra Paterson fly into the air; − The impact was so violent that both women were seriously injured and medevacked to Montreal to receive health care, as per appendix 1 (medical report of Alexandra Paterson) and appendix 2 (medical report of Malaya Sala). − More specifically, the impact severed Alexandra Paterson’s leg in two; − The accused has no memory of what happened after the collision but admits that the Crown would be able to establish that Kevin Crow hit Alexandra Paterson, while she was lying on the ground in pain missing a foot, and called her “a fucking bitch”; − Witnesses arrived on the scene and noted that Kevin Crow was angry, yelling and saying the accident was Alexandra’s fault; − He then fled the scene without offering any assistance to the two victims; − As a result of the impact, both vehicles were damaged; − On June 27, 2020, Kevin Crow called Malaya Sala’s father and told him he was sorry, that his intentions at first were not to hit the victims, and that he was only angry with Alexandra Paterson; − The same day, Kevin Crow surrendered himself to the police station to be arrested; − It must be noted that Kevin Crow acknowledges the facts presented in the present document; − It must also be noted that there is no joint submission as yet − The guilty pleas have been entered so that a Gladue report and a pre-sentence report can be prepared; SENTENCING POSITION OF THE CROWN AND DEFENSE [ 6 ] Crown counsel submitted that Mr.

Crow should be sentenced to a global term of imprisonment of six years less the time served in preventive custody. She also recommended a four-year driving prohibition. [ 7 ] Defense counsel submitted that a global sentence of 32 months, less time served in preventive custody, would be appropriate and take into consideration the objective of denunciation and deterrence but also the Gladue and Ipelee principles. CIRCUMSTANCES OF THE OFFENDER [ 8 ] A pre-sentence report was filed with the Court describing the accused’s personal circumstances. [ 9 ] Mr. Crow is a 29-year-old Inuk man born in Puvirnituq.

He moved to Umiujaq a few years later and considers this community his home. [ 10 ] He grew up in an environment where his father was abusive toward his mother and both of his parents were alcoholics. His mother moved to Umiujaq to flee this environment. [ 11 ] His mother continued to abuse alcohol and this environment led to his placement due to parental neglect. [ 12 ] During his childhood, he moved to Montreal with the family.

He did most of his schooling in Montreal, returning to Umiujaq during the summer. [ 13 ] The relationship with the victim, Alexandra Paterson, was tinted with psychological and physical violence. The accused explained to the probation officer that his anger towards his partner had been building up because of jealousy issues and because she decided to entrust their child to social services. [ 14 ] He began to drink excessively and to suffer from depression.

According to him, he attempted to commit suicide a few times. [ 15 ] According to the probation officer, the accused has a tendency to victimize himself and blames the victim for her inappropriate behaviour, which led him to lose his judgment. [ 16 ] The risk of recidivism will remain high until Mr. Crow works on himself, particularly to improve his insight, anger management and to resolve his alcohol addiction and drug abuse problems. THE GLADUE REPORT [ 17 ] A Gladue report was filed with the Court in order to explain the circumstances and the historical and systemic factors which have played a

part in his offences. [ 18 ] Mr. Paulusi Samuel Amittu-Goodson, the author of the Gladue report, described the accused’s childhood, as mentioned in the pre-sentence report. He grew up in an environment with conjugal violence and substances abuse by both of his parents. [ 19 ] He travelled back and forth between Montreal and Umiujaq until he was 17 years old.

[ 20 ] He started smoking marijuana at 16 and becoming angry wondering why his father was not in his life. [ 21 ] The author of the Gladue report described the specific factors that affected the accused as the follows: […] has been sexually abused when she was 8 years old until her teenage years and started to drink alcohol from then on. Both of Kevin’s parents were smoking marijuana. From the time he was little to the age of 8, Kevin witnessed his mother being beat up by his father, […].

Kevin’s mother abused alcohol when Kevin was young, therefore putting Kevin in a situation where he had to take care of his siblings. After his parents separated, Kevin moved around multiple times in and from Montreal, Umiujaq, Kuujjuaraapik, and therefore having to attend school in different schools. At the age of 10, Kevin and his brother, […], were put in a foster family by the Youth Protection Services. Kevin started smoking Marijuana when he was 16 years old with his friends and got expelled from school twice due to it.

Kevin dropped out when he was 17 years old with a Secondary 2 completed, therefore reducing his employment opportunities. Kevin started to drink alcohol at 18 and quickly struggled with overdrinking. From the age of 19, Kevin started having encounters with the law. Every time he committed a crime involving violence in the past, he was intoxicated by alcohol. Kevin served two jail sentences. Kevin started having relationship problems regarding his son with his ex-girlfriend […] and this resulted to him abusing alcohol again. At the age of 28, he lost a cousin to suicide.

At the age of 29, Kevin tried to commit suicide twice. Because his ex-girlfriend […] decided to give up on their son, […], and due to Kevin’s present detention, […] was placed by Youth Protection at […] place.

These are some of the Gladue factors that require a specific attention by the Court and should be considered. (Anonymization by the Court) [ 22 ] He suggests the following restorative and healing recommendations: − That Kevin live in Umiujaq and care for his 3 year old son X; − That Kevin attend Social Services in Umiujaq and see the addiction worker, Kevin Archer; − That Kevin see Mary Sala (Justice Committee Coordinator for Kuujjuaraapik) once a month for guidance and counselling; − That Kevin see Willie Kumaluk and follow his guidance on and off the land; That Kevin participate in the Men’s Association’s Traditional Activities held by Jack Niviaxie to reconnect with his culture; − That Kevin seek, and maintain, employment to provide for his family.

THE ACCUSED’S CRIMINAL RECORD [ 23 ] The accused has many prior convictions. His record began in 2011 with mischief and assault with a weapon. [ 24 ] In 2012, he served a jail sentence of 30 days for charges of mischief, uttering threats, assaulting a peace officer and several breaches of conditions.

He also received a sentence of six months of imprisonment for drugs trafficking and conspiracy. [ 25 ] In 2014, a conditional sentence of four months was imposed for charges of mischief, assault with a weapon, assaulting a peace officer and uttering threats. [ 26 ] In 2016, another conditional sentence of four months was imposed for three charges of uttering threats, assaulting a peace officer and a few charges of breach of probation. [ 27 ] In 2017, a global sentence of 300 days of imprisonment was imposed for charges of assault causing bodily harm, impaired driving and several charges of breach of conditions. [ 28 ] Finally, in 2018, he served a one-year term of imprisonment for drug trafficking. [ 29 ] According to the probation officer, the accused’s significant substance abuse problem could partly explain the recidivism, but he also noted difficulty in learning from his mistakes and a great deficiency in managing his emotions, a low level of tolerance for frustration and the use of violence in conflict management.

THE IMPACT ON THE VICTIMS [ 30 ] Both victims sustained serious injuries. [ 31 ] Alexandra Paterson lost her leg by amputation. She has been hospitalized for two months in Montreal. She is still in a lot of pain. [ 32 ] Even if Mrs. Paterson did not testify at the sentencing hearing, she was present and the Court heard her distress when the Crown prosecutor described the consequences of this event for her. She is 21 years old and will be disabled for the rest of her life. [ 33 ] The Court must also mention the important psychological consequences for her.

She does not feel safe anymore and has nightmares. [ 34 ] The other victim, Malaya Sala, sustained an open fracture of the left tibia. She still has pain after a few months. She also has psychological consequences and feels unsafe in her home community.

AGGRAVATING AND MITIGATING FACTORS [ 35 ] The Crown prosecutor underlined the fact that the offence is

an act of violence involving an intimate partner, which is a statutory aggravating factor under

section 718.2 of the Criminal Code . [ 36 ] The offence was deliberate because it was motivated by anger towards the victim, Alexandra Paterson. [ 37 ] The use of an SUV to commit the offence, which is very destructive: his conduct seriously endangered the life of two young women. [ 38 ] He displayed significant hostility towards Mrs.

Paterson while she was lying on the ground with a foot missing: he hit her on the head and called her “a bitch”. [ 39 ] The accused fled the scene and did not offer any assistance to the victims despite their serious medical conditions. [ 40 ] The Court must also take into account the serious injuries sustained by both victims and the impact of those injuries on them for the rest of their lives. [ 41 ] It was an offence against a vulnerable person as set out in

section 718.04 of the Criminal Code . The offence involved the abuse of a vulnerable person, that is, an aboriginal woman. [ 42 ] A criminal record of violence, more specifically the prior convictions for acts of violence against the same victim or in the context of domestic violence, is also an aggravating factor. [ 43 ] As for the mitigating factors, the accused entered guilty pleas thereby avoiding a trial. [ 44 ] The agreed facts suggest that he accepted responsibility for his actions even if he does not remember the event.

He acknowledges that the event occurred as described in the witnesses’ statements. [ 45 ] The accused is an Inuit man who experiences the intergenerational consequences of historical decisions taken with respect to the Inuit. [ 46 ] The young age of the accused is also a mitigating factor. THE FUNDAMENTAL PRINCIPLE OF SENTENCING [ 47 ] The fundamental principle of sentencing is proportionality, as set out in

section 718.1 of the Criminal Code : A sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender. [ 48 ] The gravity of any offence is reflected in the maximum penalty for the offence. [ 49 ] The maximum penalty for aggravated assault, dangerous driving and failure to stop after an accident resulting bodily harm is 14 years' imprisonment. The offence of assault with a weapon is punishable by a maximum of 10 years' imprisonment. [ 50 ] The gravity of an offence varies with the circumstances and takes into account the consequences for the victim and society. SENTENCING PRINCIPLES AND OBJECTIVES [ 51 ]

Section 718 of the Criminal Code provides that the purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

The sentence must have the following objectives: − to denounce unlawful conduct; − to deter the offender and other persons from committing offences; − to separate offenders from society, where necessary; − to assist in rehabilitating offenders; − to provide reparations for harm done to victims or to the community; and − to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 52 ] To impose a fair sanction, the Court must consider the following principles: − the sentence must be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; − parity in sentencing, that is, similar sentences are imposed for similar offences committed in similar circumstances; − where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; − an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

− all available sanctions other than imprisonment that are justified in the circumstances, with particular attention to the circumstances of Aboriginal offenders. [ 53 ] Sentencing is an individualized process in which it falls to the judge to determine which objective or objectives merit the greatest weight, given the particulars of the case [1] . ANALYSIS [ 54 ] As previously mentioned in R . v. Qalingo , [2] conjugal violence is a social and health problem in Nunavik communities.

Indigenous women must be protected and the Court has to avoid trivializing the use of violence against intimate partners or in a conjugal context. [ 55 ] In this case, Mr. Crow caused significant harm to two victims. He endangered their lives by hitting them with an SUV when they were on a ATV and vulnerable and without protection. [ 56 ] The offence occurred because of Mr. Crow’s anger towards his former intimate partner. He deliberately drove into the ATV, causing serious injuries to the two young women who were on that vehicle. [ 57 ] The accused’s moral blameworthiness is high. It is true that Mr.

Crow is an Aboriginal person who is affected by historical and systemic factors which play a

part in bringing him before the Court for such an offence. According to the decision of the Supreme Court in Gladue and Ipelee , those factors can have an impact on his moral blameworthiness. Nevertheless, as stated recently by the Quebec Court of Appeal in R . v. L.P ., [3] the Gladue factors affecting the offender must be weighed and balanced to give appropriate consideration to the historical and systemic circumstances of indigenous women who are victims of violent offences in a domestic context. [4] [ 58 ] According to

section 718.04 Criminal Code , the Court must give consideration to the fact that indigenous women are vulnerable and, in the case of Mrs. Paterson, that vulnerability is increased when the victim is a female and the violence is committed by her intimate partner. [ 59 ] The Court is of the view that the objectives of denunciation, deterrence and isolation must prevail. However, it does not set aside the objective of rehabilitation through programs adapted to Mr. Crow’s issues and appropriate to his culture. [ 60 ] Crown and defence counsel submitted decisions with respect to the range of sentences.

There is a wide range of sentences for cases of aggravated assault in which an offender used a motor vehicle as a weapon. [ 61 ] In R . v. Cloutier , [5] a six-year term of imprisonment was imposed on a first-time offender. There were four victims and the injuries were severe. The motive was revenge and he was not remorseful. He had an undiagnosed mental health issues. [ 62 ] In Antonelli v . R. [6] a five-year term of imprisonment was imposed where the offender drove deliberately into a bus shelter. He was a first-time offender with a mental health issue. He acted deliberately out of anger.

The victims were the brother and friends of his former girlfriend. One of the victims has been in a wheelchair since the event. [ 63 ] In R . v . Loveys , [7] the Court imposed a sentence of 26 months for aggravated assault and dangerous driving causing bodily harm. Mr. Lovey was a first-time offender with no history of violence. He was 20 years old at the time of the offence and 24 years old when he was sentenced. He had deliberately struck two victims with his car. One of the victims was his former girlfriend, and the other her friend.

His former girlfriend was treated for a broken arm, and her friend for a concussion, multiple fractured facial bones and lacerations to the face. The offender expressed regret and remorse. He was depressed and suicidal after the end of a romantic relationship. [ 64 ] In R . v. Simon [8] , a 41-year-old aboriginal offender pleaded guilty to an assault in a conjugal context and dangerous driving. For the first offence, he grabbed his spouse by the shirt and punched her in the face. For the dangerous driving offence, he hit his spouse with his truck. She was thrown into the ditch and knocked unconscious.

He had a criminal record with three prior assaults, one of which was in a domestic context. He had shown a poor response to supervision. He received a global sentence of 16 months. [ 65 ] In

summary, the range of sentences for aggravated assault depends on the circumstances of the offence and offender. [ 66 ] As discussed above, in this case there are many aggravating circumstances. The injuries were very serious and permanently disabled one of the victims. [ 67 ] The accused has prior convictions for violent offences (6). The risk of recidivism is high. Mr. Crow must work on his personal issues to decrease his potential for dangerous behaviour.

He also has to improve his insight to take full responsibility for his actions. [ 68 ] Having considered the Gladue and Ipelee factors affecting the offender and also the vulnerability of indigenous women in a context of domestic violence and their need to be protected, the Court believes that a total sentence of 48 months of imprisonment is fit and appropriate. [ 69 ] Consequently, a sentence of 1460 days less the time served by the accused in pre-trial custody at a ratio of 1.5 to 1, that is, a deduction of 365 days (243 days X 1.5), for a sentence of 1095 days (36 months) will be imposed.

FOR THOSE REASONS, THE COURT: In file 640-01-044133-206

[ 70 ] SENTENCES the accused to 1460 days of imprisonment, less the time served in pre-trial custody at a ratio of 1.5 to 1, that is, a deduction of 365 days (243 days X 1.5), for a sentence of 1095 days (36 months) on counts (4), (5) and (7); [ 71 ] SENTENCES the accused to 445 days concurrent (18 months) of imprisonment on count (6); [ 72 ] ORDERS a prohibition from operating a motor vehicle anywhere in Canada for a period of 4 years, on count (4) and (5); [ 73 ] ORDERS that a sample of bodily substances be collected for forensic DNA analysis, under ss. 487.051 and 487.06(1) Criminal Code within a delay of 90 days, on count (7); [ 74 ] PROHIBITS the accused from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years, on counts (4), (5), (6) and (7); [ 75 ] PROHIBITS the accused, pursuant to

section 743.21(1) of the Criminal Code , from communicating directly or indirectly with Alexandra Paterson or Malaya Sala during the custodial period; [ 76 ] EXEMPTS the accused from paying the victim surcharge; In file 640-01-044138-205 [ 77 ] SENTENCES the accused to 180 days concurrent (6 months) of imprisonment. __________________________________ RENÉE LEMOINE, J.C.Q. Mtre Annie-Claude Breton Attorney for the prosecutor Mtre Marie-Ève Turgeon Attorney for the accused Date of hearing: December 15, 2020