2016 QCCQ 2200, 2016 QCCQ 2200

Unofficial English Translation R. c. Mequish 2016 QCCQ 2200 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ST-MAURICE LOCALITY OF LA TUQUE “Criminal and Penal Division” No.: 425-01-009099-158 DATE: April 13, 2016 ______________________________________________________________________ THE HONOURABLE DAVID BOUCHARD, J.C.Q., PRESIDING ______________________________________________________________________ Her Majesty The Queen Prosecutrix-Applicant v.

Christine MEQUISH Accused-Respondent ______________________________________________________________________ DECISION ON AN APPLICATION FOR FINDING THAT THE ACCUSED IS A DANGEROUS OFFENDER (section 753 Cr. C. ) ______________________________________________________________________ [ 1 ] On May 14, 2015, the accused pleaded guilty to the offence of robbery with respect to Jun Yu, committed on February 6, 2015. [1] [ 2 ] The Crown brought an application for finding that the accused is a dangerous offender. [ 3 ] Under the circumstances, on July 7, 2015, the Court remanded the accused for assessment under

section 752.1(1) of the Criminal Code . [ 4 ] In support of its application, the Crown filed the following documents with the Court as proof of their content. Counsel for the accused consented to the filing of : - Exhibit R-1: Dangerous offender expert report; [2] - Exhibit R-3: The accused’s criminal record; - Exhibit R-4: Indictment and complementary report from the SPVM concerning a homicide that occurred on May 14, 2006. [ 5 ] In addition, the Court ordered the preparation of a Gladue pre-sentence report to have a complete picture of the accused, given that she is an Aboriginal person.

This report is also in evidence. [3] THE FACTS [ 6 ] On February 6, 2015, the accused and two other persons went into Dépanneur Michel et Line. It was 11:01 p.m. when they arrived. [ 7 ] While the two other persons were at the cash with the clerk, the accused took two cases of beer (2 x 12 cans) and left the store without paying for them. [ 8 ] Ms. Yu, the clerk, decided to follow the accused outside to require payment for the beer or get it back. [ 9 ] The accused refused to comply and ran off. [ 10 ] However, a few minutes later, the clerk was able to catch up with her and tried to take back the cases of beer.

The accused

refused and hit her in the shoulder. [ 11 ] The clerk took hold of one case, ripping it open. Several cans fell to the ground. [ 12 ] The accused took advantage of this to take a can and use it to hit the clerk on the head. She picked up the other cans and ran off for good.

The clerk called the police on her cell phone. [ 13 ] The accused was arrested almost 36 hours after the events and has been detained temporarily since then. [ 14 ] The Crown submits that the accused should be found to be a dangerous offender and given an indeterminate sentence. [ 15 ] It maintains that the evidence shows beyond a reasonable doubt that she, first, committed a serious personal injury offence [4] and, second, constitutes a threat to the life, safety or physical or mental well-being of other persons based on the following, in particular: - That through the pattern of repetitive behaviour and the act for which she has entered a guilty plea, she has shown that she is unable to control herself, and that there is every indication that she will in all likelihood cause death or serious injury to or inflict severe psychological damage on other persons; - That through the continued pattern of repetitive behaviour, she has shown a marked indifference as to the reasonably foreseeable consequences of her behaviour on other persons; - And that her behaviour is so brutal that it is impossible not to conclude that future behaviour is unlikely to be inhibited by normal standards of behavioural restraint. [ 16 ] For his part, counsel for the accused took note of the findings of the expert report stating the need to find the accused to be a dangerous offender, but stated that the expert report is very technical and does not sufficiently take into account the fact that the accused is an Aboriginal person. [ 17 ] For him, the Gladue report humanizes the accused’s situation.

He asks the Court to read the two reports in relation to each other, rather than in opposition, to understand the reality of the Aboriginal people. [ 18 ] In short, he submitted that the accused should be found to be a long-term offender and be sentenced to three years in prison for the offence underlying the current application.

ISSUE IN DISPUTE [ 19 ] The main issue in dispute in the present case is, first, to determine whether the accused meets the criteria imposed by Parliament for finding someone to be a dangerous offender. [5] [ 20 ] Thereafter, if necessary, the Court must impose the sentence that is appropriate to her situation pursuant to subsections 753(4) and (4.1) of the Criminal Code and sentencing objectives and principles [6] or find that the accused is instead a long-term offender (753(5) Cr.

C. ) and also sentence her for the offence committed. [ 21 ] In its analysis, the Court will determine the repercussions of the accused’s Aboriginal status. [ 22 ] Finally, the Court states that the dangerous offender presumption enacted under subsection 753(1.1) Cr. C. will not be considered specifically. The Crown has elected not to avail itself of the presumption since it could not determine whether the sentence of two years less a day imposed on the accused in 1990 was following a period of pre-sentence custody.

DISCUSSION AND ANALYSIS [ 23 ] The legislative scheme applicable to dangerous offenders is part of the sentencing process and shares the same objectives and principles despite its specificity and exceptional nature. [ 24 ] Protecting the public, however, is its ultimate objective.

There is therefore a preventive aspect to the sentence the Court must impose and a punitive aspect for the serious personal injury offence for which the accused has acknowledged her guilt. [7] [ 25 ] Under these circumstances, the accused’s past is relevant to convincing the Court that the action of the accused is not the result of an isolated act, but part of generalized violent, aggressive or brutal behaviour that she cannot control.

The accused’s situation [ 26 ] The dangerous offender expert report and the Gladue report reveal the following points. [ 27 ] Christine Mequish is a 58 year-old Atikamekw woman from the Opitciwan community. She was born following the rape of her mother, who was deaf. [ 28 ] Throughout her childhood, she lived with her maternal grandparents. Her mother, two of her aunts, and her brother and sister lived there as well. The Atikamekw language was spoken daily in the family. Everyone slept on the floor.

The home was not equipped with running water or a toilet. [ 29 ] About the age of six or seven, she learned the true identity of her biological father. She felt angry. For her, her father was the man who had looked after her since she was born, her maternal grandfather. [ 30 ] At the village school, Mequish was an orderly little girl, clean and resourceful. However, at age 9, because she was having

difficulty at school, she was placed by her maternal grandmother, along with her sister and brother, with an Atikamekw couple living in Manouane, a neighbouring First Nations reserve. She claims that she was the victim of an attempted sexual assault by the son of her foster mother during this time. [ 31 ] At the age of 11, like all the children of the village, she was sent to the Pointe-Bleue residential school where she remained until she was 15. At that age, she decided to leave school. She maintains that she was the victim of sexual assault by one of the nuns while at the residential school.

She returned home and helped her grandmother with the housework, including fetching water. [ 32 ] It was during this time that she began a relationship with an Aboriginal man that ended up turning into a conjugal violence nightmare. Mequish took refuge with two of her children in a shelter for battered women in 1987. [ 33 ] During this relationship, she developed and experienced problems with alcohol consumption. She was aware of the situation, to the point that she decided to entrust her children to a foster family. [ 34 ] The next years were marked by several prison stays. Her life was unstable.

Mequish was unable to take back control of her situation. She drank alcohol excessively, up to 10 drinks a day. She also used cocaine and crack intravenously, but stopped in 1992 through sheer willpower. [ 35 ] During all these years, Mequish had only casual jobs. Naturally, her repeated periods of incarceration greatly limited the regularity of her jobs. [ 36 ] While she was married, she was a stay-at-home mother who looked after the children and the home in Opitciwan. After that, she became a home care assistant for a man in the Montreal area between 1997 and 2006.

She also did house cleaning in different places. While she was in detention, she worked in the laundry room. Ultimately, she only reached the fourth year of secondary school and, as an income source, she receives last-resort government assistance.

Analysis of her offences [ 37 ] Mequish’s criminal record [8] is extensive. [ 38 ] It details 87 previous offences of all kinds between 1984 and 2015, including the following: - 25 previous offences related to violent acts against others, such as assault, assault with a weapon and/or causing bodily harm, uttering threats to cause death or bodily harm and assault on a peace officer; - 40 previous offences related to breach of conditions (promise, recognizance, probation or order taken pursuant to

section 810 Cr. C. ); - 2 previous offences related to extortion and a robbery; - 1 previous offence related to involuntary homicide in 2008 in which the circumstances [9] are oddly similar to the facts in the offence underlying the present application; [ 39 ] It seems that most of the previous offences committed by the accused were closely linked to her alcohol issues. [10] [ 40 ] Most of the offences committed by the accused took place in the judicial district of Montreal.

However, some of the crimes were also committed in the districts of Saint-Jérôme, Trois-Rivières and Saint-Maurice. [ 41 ] Her criminal record also shows that there were only brief periods of calm: a three-year period between 1984 and 1987 and a two-year period between 2004 and 2006. At the time of the February 6, 2015, robbery, she had been released only 10 months before.

She had been in La Tuque for only a few days when she committed her offence. [ 42 ] Her prison record is hardly any better. [ 43 ] Reports from correctional services mention that her behaviour was punctuated with aggressive acts, disciplinary offences and issues adjusting and making an effort to take

part in programs. [11] [ 44 ] In 1994, Mequish attempted suicide. In 1998, despite her positive involvement, she ran away from a rehabilitation centre, relapsed into addiction and found herself unlawfully at large.

In 1999, she ran away from the hospital where she was as a detainee. [ 45 ] Also according to these reports, between 2006 and 2008, while in pre-trial detention, she was involved in six incidents including using physical violence, using insulting or threatening language or gestures, interfering, refusing to comply with the rules, as well as possession and use or trade in unauthorized items. [ 46 ] In 2009 and 2011, her security rating was raised due to her involvement in unlawful activities concerning tobacco products. [ 47 ] Mequish’s behaviour led to her being placed in segregation on a few occasions. [ 48 ] During her period of detention, between 2008 and 2014, her statutory release was revoked three times for violations of the conditions imposed by the Parole Board. [ 49 ] Finally, the disciplinary record at the Ministère de la sécurité du Québec, cited by the psychologist Lamontagne, mentions five disciplinary offences between April and July 2015 for the accused’s behavioural problems and non-compliance with the rules.

Psychological profile

[ 50 ] The expert report by the psychologist Lamontagne points out that over the years, Mequish has been subject to several psychiatric, psychological and neuropsychological assessments. [ 51 ] From this report, we learn that she had her first contact with psychiatry at the time of her separation from her violent partner. She was then diagnosed with depression. [ 52 ] This same diagnosis was regularly repeated by the various health care professionals she encountered during her prison stays. Sometimes, the depressive episodes were more significant.

The accused would then express a desire to die; in fact, she did attempt to commit suicide. [ 53 ] It also seems that the accused is characterized by an anti-social personality with borderline traits and significant cognitive deficits. She has issues with maintaining focus, her working memory and language skills. However, the pathology that is consistently identified is her alcohol addiction and abuse.

There is no mention of remission except when she is institutionalized. [ 54 ] In all, the psychologist Lamontagne considers that Mequish’s general functioning presents [ translation ] “ significant deficits with respect to her ability to regulate her emotions and control her impulses.” [12] He states: [ translation ] … she seems to live her life in the spur of the moment, unable to plan realistically or follow those plans for more than a few weeks.

She shows a behavioural pattern marked by persistent irresponsibility (unemployment, inability to look after her children, breach of probation, etc.); lack of concern respecting the foreseeable consequences of her behaviour; indifference to the rights, property and safety of others; lack of empathy; low capacity for remorse about the damage or injury she has caused; and a tendency to engage in criminal behaviour. All these characteristics tend to be exacerbated when Mequish is intoxicated. Unfortunately, being intoxicated is for her the rule rather than the exception.

Moreover, she seems to have a tendency to become particularly violent and aggressive when intoxicated. [13] Risk assessment [ 55 ] The assessment of the accused’s risk of criminally re-offending and being a danger to society is the principal basis for finding that she is a dangerous offender. [ 56 ] In this context, the psychologist Lamontagne lists the tools used to support his findings in his report. [ 57 ] First, he read the past assessments filed in the accused’s federal prison record between September 2008 and December 2013.

The issue of the risk of criminally re-offending can be found there in several forms and expressions, particularly the following: - September 2008: [ translation ] “… we assess the risk of general and violent re-offending to be substantial … the social reintegration potential (SRP) is low.” ; - January 2009: [ translation ] “ The results of the LSI-R place the subject’s profile among women who represent a high level of intervention.

This tends to signal a substantial risk of general re-offending (violent or non-violent crime) … the spheres of the subject’s life have been unstable on several levels.” ; - November 2011: [ translation ] “… she still displays a need for the structure of a penitentiary…reducing the risk of re-offending to a lower level remains unrealistic… incarceration meets her needs” ; - January 2012: [ translation ] “ The subject receives little prosocial support … low potential for social reintegration … Mequish represents a very high risk of criminally re-offending…” ; - February 2013: [ translation ] “… the cognitive deficits found in the subject very likely have a significant impact on her potential for rehabilitation and thus on her risk of re-offending … the subject’s condition requires more attention … as well as a higher level of supervision” ; - September 2013: [ translation ] “ Mequish has deep-rooted criminal values… She is impulsive, aggressive and her drinking problem makes it harder for her to manage her emotions.

The risk of re-offending is high and the reintegration potential is low…” ; - December 2013: [ translation ] “ The medium-term future prognosis seems fairly bleak to us…” [ 58 ] The expert Lamontagne then used an instrument, the PCL-R, to assess the extent to which Mequish matched the prototype for psychopathy. [ 59 ] The analysis showed that she did not qualify as a psychopath.

She was, however, in the mid-range of North American offenders concerning interpersonal, emotional, lifestyle and antisocial behaviour aspects. [ 60 ] This test highlights the characteristics Mequish has that affect her ability to reintegrate into society: inability to make realistic long-term plans, impulsiveness, irresponsibility, lack of self-control, the failure of her previous releases, variety of offences, need for stimulation, and a parasitic lifestyle. [ 61 ] Thirdly, the expert also used the LS/CMI clinical instrument and its eight criminogenic risk and need factors, [14] and Mequish’s score is in the Very High Risk category. [ 62 ] Lastly, the results are the same with the HCR-20 guidelines. [15] [ 63 ] In

summary, the following extract from the report of the psychologist Lamontagne clearly reflects his conclusions as to the assessment of the risk posed by the accused and her ability to successfully reintegrate into society: [16]

[ translation ] …it appears that there is a high risk of criminal and violent recidivism. Clearly, Mequish has established a pattern of repetitive behaviour, showing a marked degree of indifference respecting the reasonably foreseeable consequences of her behaviour as well as a failure to restrain her behaviour, suggesting a likelihood of her causing injury to or inflicting severe psychological damage on other persons in the future if she has the opportunity to do so.

Mequish’s offending behaviour appears to be rooted in adverse childhood experiences… she was unable to develop mechanisms to control her impulses and modulate emotions, as required to function adequately in society. … Because she feels that she lives in a chaotic, unpredictable and wicked social universe, she tends to espouse the principle of immediate gratification, doing what is necessary, in the moment, to have a good time or avoid pain, regardless of the long-term consequences of this behaviour. … …Mequish’s experiences with being released generally end in failure. … I cannot identify measures that could reduce the risk to an acceptable level for the community in a determinable period of time. … Gladue sentencing report [ 64 ] A court sentencing an Aboriginal offender is reminded by the Supreme Court of Canada in Gladue [17] and Ipeelee [18] of its obligation to take into account the factors specific to the offender’s reality. [ 65 ] These are referred to as unique systemic and background factors which may have played a

part in bringing the particular Aboriginal offenders before the courts.

It comes down to a general factor related to the origins of their community. [ 66 ] Furthermore, more specifically with regard to the Aboriginal offender to be sentenced, the possibility should be assessed of imposing a sanction that may be appropriate for such an offender because of the offender’s Aboriginal heritage or connection. [ 67 ] These judgments recall that it [ translation ] “is now recognized that it is necessary to abandon the presumption that all offenders and all communities share the same values and that, given these different world views, a different or alternative sanction may also more effectively achieve the objectives of sentencing in a particular community.” [ 68 ] For this reason, the Court requested that a report specific to the Aboriginal reality of Mequish be prepared and filed at the sentencing hearing. [19] [ 69 ] For the purposes of this judgment, the history of the Atikamekw community of Opitciwan, the accused’s community, should be briefly reviewed.

This history is recounted in greater detail in the Gladue report adduced in evidence. [20] [ 70 ] The community is located north of the Gouin reservoir, which is one of the sources of the Saint-Maurice River. The Opitciwan Reserve was officially created in 1950 and currently has 2,300 inhabitants. [ 71 ] In the old days, this people lived from hunting, trapping, fishing and gathering activities. The fur trade did not significantly change their traditional way of life, but they nevertheless became economically dependent on it.

The collapse of the fur trade led to economic marginalization to the point that they had to adapt and devote less time to subsistence activities and traditional resource management principles on their territory. [ 72 ] Despite the remoteness of their territory, forestry operations reached the Atikamekw people and ended up having an impact on the development of their resources while simultaneously increasing their economic dependence, resulting what some referred to as dispossession of territory. [ 73 ] This led the Atikamekws to adopt a more sedentary way of living, disrupting social interaction in the community.

What functions were formerly fulfilled by family became the responsibility of institutions. [ 74 ] Assimilation became a solution to alleviate economic problems related to land dispossession. Its objective was to provide Aboriginals with the means to participate in the job market and to elevate their social and economic condition. [ 75 ] Such assimilation operated through mandatory schooling. Aboriginal children had to attend school until the age of 16 and, above all, leave their surroundings to continue their education.

This led to the creation of Indian residential schools. [ 76 ] The traumas experienced by the residential students were many and lasting. The young Atikamekws discovered strict discipline to which they had never been exposed within their families. Their isolation was more than physical; uprooted from their surroundings, the young people were also deprived of traditional knowledge and their native tongue, which created a generational gulf.

Upon leaving the residential schools, the former students found it hard to join either white or Aboriginal communities because they had been isolated from both for so many years. [ 77 ] This systemic oppression seems to have led to a number of social consequences in the community such as the predominance of drug and alcohol addiction, a high family violence rate, major relationship issues, sexual assaults, low self-esteem, high unemployment rates, low levels of education, and high suicide and incarceration rates. [ 78 ] Mequish lived through this policy of assimilation and the related traumas.

Her family suffered the negative impacts of a drastic change in their way of life. As a young child, she developed a connection to her culture through her grandfather, by berry picking, canoeing, making snowshoes and working with beaver pelts. She was raised in the forest. During these times with the family, she spoke

Atikamekw. [ 79 ] During her stay in Montreal, she went to the Native Friendship Centre of Montreal to find her peers. While in detention, she even participated in a sweat lodge activity. [ 80 ] At the sentencing hearing, counsel for Mequish reminded the Court that the accused still had a close connection to her culture. He therefore emphasized the importance attached by the accused to her arts and crafts and her desire to go back to live in her community and rejoin the members of her family. [ 81 ] Mequish also testified at the hearing. She said that she is more peaceful today.

She stated that her offending behaviour was the result of the post-traumatic shock suffered following many physical and sexual assaults. [ 82 ] She said that she was [ translation ] “fed up” with being in prison, and she cried. DECISION [ 83 ] As previously indicated, the Court must determine if the evidence justifies finding beyond a reasonable doubt that the accused meets the criteria of

section 753 of the Criminal Code and must therefore be declared a dangerous offender. [ 84 ] First, the robbery committed by the accused is a serious personal injury offence, as defined in

section 752 of the Criminal Code . [ 85 ] It is an offence that is punishable by life imprisonment, and the circumstances of the robbery include the use of physical violence by Mequish. [ 86 ] Furthermore, the Court considers that the Crown’s evidence shows beyond a reasonable doubt that the accused constitutes a threat to the life, safety or physical or mental well-being of other persons. [ 87 ] The Court is of the opinion that the expert report of the psychologist Lamontagne is complete, accurate and based on concrete facts from the accused’s judicial history and prison record. [ 88 ] In the past, Mequish committed offences, showing her inability to control her behaviour.

Her 87 criminal convictions between 1984 and 2015, and the robbery on February 6, 2015, demonstrate this inability to control her actions. The Court points out that she had been at full liberty for only 10 months at the time. [ 89 ] Furthermore, there is every indication that she is likely to cause death or serious injury to other persons, or inflict severe psychological damage on other persons.

The Court is shocked by the factual similarities between the robbery on February 6, 2015, and the homicide committed by the accused in May 2006. [ 90 ] The accused exhibits brutal behaviour primarily when under the influence of alcohol. [ 91 ] Her dangerousness and risk of re-offending are high. This behaviour is unlikely in the future to be inhibited by normal standards of behavioural restraint. [ 92 ] In addition, Parliament has imposed a duty on the Court to declare that an offender is found to be a dangerous offender when the conditions are met.

Judicial discretion no longer exists on this point. [ 93 ] The authors Parent and Desrosiers [21] state the following on the subject: [ translation ] The true objective of the sentencing reform regarding dangerous offenders in Canada is therefore not so much to ease the applicable statutory regime, but to extend it to certain people whose high risk of recidivism (serious personal injury offences) cannot be controlled within the community.

With the increasingly milder sentences that can be imposed on dangerous offenders, this safety measure has consequently been broadened as has the resolve to include the maximum number of individuals who may pose a threat to society. (Emphasis added.) [ 94 ] It is important to protect and ensure the safety of the public and thereby give full effect to the main objective of these statutory provisions, that is, to “protect the public”. [ 95 ] Mequish must be declared a dangerous offender. [ 96 ] Under the circumstances, what is the measure that the Court must impose? [ 97 ] Subsection 753(4.1) of the Criminal Code states:

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. (Emphasis added.) [ 98 ] In R v. Lavoie , [22] Justice Fafard of the Court of Quebec states that there are few court decisions interpreting the concept that there is a reasonable expectation that a lesser measure will adequately protect the public . Nevertheless, she emphasizes as relevant a recent decision, R . v . Taylor , [23] where the judge, in a detailed analysis of the scope of new subsection 4.1, finds that to lower the risk to

an acceptable level for the public, [ translation ] a reasonable possibility of treatment must be considered in the same way and using the same requirements as with a long-term offender declaration. [ 99 ] In R v . M.D. L ., [24] Downs J. quotes with approval the criteria accepted by the Court of Appeal for Ontario, [25] which provide a three-step test: 1. There must be evidence of treatability of the offender that is more than an expression of mere hope; 2. This evidence must indicate that the offender can be treated within a definite period of time; 3.

This evidence must be specific to the offender in question. [ 100 ] Does the case of Mequish allow the Court to consider this exception and impose a sentence other than for an indeterminate period? [ 101 ] The expert Lamontagne was unable to identify measures that could potentially reduce the risk to an acceptable level for society within a reasonable period of time. [ 102 ] However, the Gladue report on Mequish’s Aboriginal specificity indicates relevant factors suggesting [ translation ] a reasonable possibility of treatment . [ 103 ] First, the Court finds that the accused recognizes the main cause of her acting out: her alcohol addiction.

She knows, like several individuals working with her, that she can function adequately in society when she abstains from alcohol. [ 104 ] Also, it seems that in the past, she was able to exhibit strong willpower and cooperation when followed by the social worker Tremblay, who can still offer his services in the short- and long-term. [ 105 ] Moreover, the Huron-Wendat psychologist, Anik Sioui, has agreed to meet with Mequish again.

In fact, she states that the accused is eligible for Health Canada’s Indian Residential School Resolution Health Support Program. [ 106 ] In Montreal, a number of resources for Aboriginal women are available to facilitate the accused’s reintegration: the Native Friendship Centre of Montreal; the Native Women’s Centre of Montréal and the specific program offered for Aboriginal women at the Women’s Centre of Montréal. [ 107 ] The accused’s own words can be added, as written by the author of the Gladue report and also verbalized at the hearing, suggesting that there is a reasonable possibility of treatment. [ 108 ] First, she stated: [ translation ] “ You change as you grow older.

You want to do good things. ” [ 109 ] The Court cannot ignore the impact of age in its assessment. It is quite reasonable to infer that the fact that she is now 58 years old can only be positive for her. [ 110 ] Second, she states that she no longer has the same perception of her prison stays in jail: [ translation ] “ I cannot drink, that’s all. I don’t want to go back to jail. Before, it didn’t really matter to me if I went back.” [ 111 ] In this regard, the Court points out that it had the opportunity to see and hear the accused at the hearing. Her sadness was noticeable.

Her resolve to change was not at all affected by any signs of manipulation or falsehood. [ 112 ] Moreover, in the final analysis, despite the legal specificity of the dangerous offender declaration process, the Court also has a duty to take into account the general sentencing objectives and principles under sections 718 and following of the Criminal Code , and in Mequish’s case, her Aboriginal reality, as expressly stipulated in paragraph 718.2 (

e) of the Criminal Code . [ 113 ] In 2012, in Ipeelee , [26] the Supreme Court of Canada, per Justice Lebel, recalls the scope of this statutory sentencing principle reserved for Aboriginal offenders: [59] The Court held, therefore, that s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing ( Gladue , at para. 93 ). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non- Aboriginal offenders…. (Emphasis added.) … [68] …The purpose of sentencing is to promote a just, peaceful and safe society through the imposition of just sanctions that, among other things, deter criminality and rehabilitate offenders, all in accordance with the fundamental principle of proportionality.

Just sanctions are those that do not operate in a discriminatory manner. … [ 114 ] The Court considers that in the accused’s case, it is therefore appropriate to apply this specific sentencing principle. [ 115 ] A sentence should be imposed for a specified period and the accused should be ordered to be subject to a period of long-term supervision, thereby applying the exception provided for in subsection 753(4.1) Cr.

C. [ 116 ] There is a clear connection between the accused’s documented causes of offending, her moral blameworthiness and the systemic and background factors experienced by the Atikamekw community of Opitciwan.

[ 117 ] Reports of the Royal Commission on Aboriginal Peoples and the most recent report of the Truth and Reconciliation Commission expose the intergenerational effects of the Indian residential schools and the result of several decades of physical, emotional, sexual and spiritual abuse. [ 118 ] Mequish’s Aboriginal heritage and connections require consideration by the Court to impose a fair and appropriate sanction. [ 119 ] Her childhood and adolescence took place in the context of the implementation of the policy of assimilation.

She had to go to an Indian residential school to complete her education, where she was far from her family circle and cultural environment. She was assaulted while at the residential school and even in her community. She did not complete her education.

She developed a relationship marked by violence with an Aboriginal man in her community. [ 120 ] There is an explicit causal relationship between the accused’s Aboriginal status and the major problems she subsequently developed. [ 121 ] Imposing a sentence of detention in a penitentiary for an indeterminate period fails to comply with this specific sentencing principle. Moreover, it is even excessive given the subjective seriousness of the underlying offence. [ 122 ] However, it is important to denounce the accused’s criminal behaviour.

A robbery is still an offence of significant objective seriousness. [ 123 ] The accused’s personal situation is also an argument to consider the objective of personal deterrence. The aggravating factors related to the event on February 6, 2015, are more connected to the accused and her background. [ 124 ] Furthermore, the accused’s motivation regarding her social reintegration should be supported by imposing a sentence for a period of time.

FOR ALL THESE REASONS, THE COURT: DECLARES the accused a dangerous offender; SENTENCES the accused to 48 months’ imprisonment, less 21 months of pre-sentence custody, which is equivalent to a sentence of 27 months’ imprisonment as of today’s date; ORDERS the accused to be under long-term supervision for 10 years; ORDERS , under

section 760 of the Criminal Code , that a copy of the reports provided by psychologists, sexologists, criminologists and other experts, and the exhibits and observations of the Court with respect to the reasons for the finding, together with a transcript of the hearing of this application, be forwarded to the Correctional Service of Canada for informational purposes; PROHIBITS the accused under

section 109 Cr. C. from having in her possession a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, any ammunition, prohibited ammunition or explosive substance for 20 years; AUTHORIZES the taking of bodily substances for forensic DNA analysis pursuant to

section 487.051 Cr. C., which is to be done within 90 days; ORDERS payment of the victim surcharge. __________________________________ DAVID BOUCHARD, J.C.Q. Mtre Éric Thériault Crown Prosecutor Mtre Marc Villeneuve Counsel for the accused Date of hearing: January 21, 2016