r v. HARRY JR OKIMAWINEW, 2015 QCCQ 8372

R. c. Okimawinew 2015 QCCQ 8372 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL « Criminal and Penal Division » No: 505-01-109861-126 505-01-118947-130 505-01-121114-140 505-01-125221-149 505-01-125222-147 DATE: September 22, 2015 ______________________________________________________________________ BY THE HONOURABLE RICHARD MARLEAU, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

HARRY JR OKIMAWINEW Accused ______________________________________________________________________ SENTENCE ______________________________________________________________________ [ 1 ] In December 2014, after his trial, the accused was declared guilty, in what can be described as the " main file " [1] , of numerous counts of domestic violence related infractions : breaking and entering with assault, confinement, assault, uttering threats and inducement under threats of violence to withdraw money. [ 2 ] The victim is his ex common-law partner.

She was living with their two children aged 10 and 14 in the trailer in Kahnawake that was the family residence prior to the separation in September 2013. [ 3 ] The event took place on December 24, 2013. [ 4 ] The accused calls her around 11 h 30 pm and request that she picks him up at his mother's place. He seems intoxicated and claims that he had just trashed his mother's house. She refuses and hangs up on him. He calls back, but she doesn't answer. [ 5 ] Shortly after, he knocks on the door while a taxi waits outside. He asks for money, having to pay for the taxi [2] .

She tells him to leave and that she does not have any money. The scene took an ugly turn from that moment. [ 6 ] He forces his way in, angry, and still demands money. [ 7 ] She succeeds in closing the door on him, but he shoves his way in again, banging with his fists and feet. A window near the entrance is broken. [ 8 ] In short, from the moment of re-entry, the victim was punched in the face, pushed and followed in the bedroom where she had taken refuge with the children.

He also forces his way in there, takes her out, pushes and hit her again. [ 9 ] He forces her to leave with him in her vehicle to go withdraw money at the local bank. She is hit again during the short trip and threatened to be killed if she didn't stop her behaviour [3] . [ 10 ] She was forced to withdraw money ($60.00) and give it to him. He then requested that she drives him to a bar in Chateauguay. He continues hitting her and uttering death threats. [ 11 ] Her route from the bank to Chateauguay had her pass in front of the Peace Keepers station.

In despair, she manages to drive in the parking lot, escape the car and seek help. [ 12 ] The accused was arrested in the car. He was somehow cooperative initially with the officers involved, but not for long. He eventually resisted arrest and uttered threats to an officer and was also found guilty of these two infractions at his trial. [ 13 ] The accused also had pending cases at the time of the trial and in the following months decided to plead guilty as follows : a) 505-01-109861-126 - August 15, 2012 - Care and control of a motor vehicle while impaired by alcohol;

b) 505-01-121114-140, between January 18 th and 20 th 2014 - breach of condition. The accused had communicated with the victim. This condition had been ordered in the main file; c) 505-01-125221-149 - May 22, 2014 - Assault on Landon Meloche. The Peace Keepers had been called for a disturbance between the two at the Moose Lounge and witnessed one punch on arrival.

In this matter, the victim was reluctant to lay charges or cooperate and did not file any victim impact statement; alcohol was a factor; d) 505-01-125222-147 - May 22, 2014 - breach of condition – Still in relation with the conditions originally imposed in the main file, the assault on Mr. Meloche took place at a time when the accused was to respect a curfew at his parent's house.

THE VICTIM [ 14 ] Her victim impact statement is in line with her testimony at trial : she suffered bruises and an injured eye during the repeated assaults the night of the crime. [ 15 ] She still fears him and she is highly afraid for her safety or that of the children. She is convinced that he might get in a rage again and come attack her. She had to change residence, avoid driving in Kahnawake or parking in obvious places in the community by fear of being noticed by him while he was free on bail.

THE ACCUSED [ 16 ] He declined to offer observations at the sentence hearing. [ 17 ] We know more about him following a presentence report that was ordered. Since the accused is a Mohawk/Cree living in Kahnawake, this report was submitted by a native court worker in accordance with the Gladue and Ipeelee decisions of the Supreme Court of Canada (see references at para. 41) and will be referred as a " Gladue Report " in what follows. [ 18 ] Now 40 years old, the accused has had a difficult childhood tainted by the alcohol and violence present in his family and surroundings.

He was also separated from his parents at an early age to attend school. Later on, when his parents settled in Kahnawake, he was discriminated at the local school for not being a full Mohawk. [ 19 ] In short, the relevant conditions that can lead to a conclusion that a Gladue report has to be factored in the sentence process are present, and both parties agree on that point. [ 20 ] Two other factors are also significant :

a) the accused started consuming alcohol at age 16 and it became problematic as the years went by;

b) he was involved 10 years ago in an altercation that left him in a coma at the hospital. The resulting injuries or long-term effect are not detailed but inferences can be drawn from the report that anger issues are more present since then. [ 21 ] The accused never addressed these issues in the past. In fact, he seems to acknowledge for the first time that he could maybe benefit from a psychologist for his anger problem. [ 22 ] We also learn that as of April 2015, the employer where he worked for a few months in 2014 was ready to employ him again.

He had been mostly employed during his adult years. [ 23 ] Finally, the accused has priors. [ 24 ] In August and November of 2014, he was declared guilty of breach of conditions and uttering threats. The record is not clear as to the natures of the breaches, but seeing his record, we can infer that they were in relation with our main file. He is detained in custody since November 14th, 2014.

He received one day of detention for the earliest breach and 3 days for the latest. [ 25 ] Both parties agree and jointly suggest that the first month in custody following November 14th, 2014 is to be credited on a 1.5 ratio and the balance on a 1 for 1 ratio. [ 26 ] The rest of this priors starts in 1997 for assault causing bodily harm ($200 fine), and breach of probation ($100 fine). Follows an impaired driving accusation in 2000 ($1200 fine), another impaired driving accusation in 2007 ($2000 fine).

Finally, uttering threats in November 2014, but for an infraction committed on December 14 th , 2013. (3 days of detention) POSITION OF THE PARTIES [ 27 ] Crown puts much emphasis on the gravity of the infractions in the main file. Not only domestic violence is to be denounced and punished, but the breaking and entering is a home invasion and therefore has to be considered as an additional aggravating circumstance. [ 28 ] A sentence of 3-4 years is proposed.

However, considering the Gladue report, Crown is now suggesting 2 years in order to favour the possibility of a probation that could order the suggestions of the report, namely that the accused sees a psychologist and be subject to a follow-up. [ 29 ] As for the other files, the suggestions are as follows : ▪ impaired driving : 60 days due to the priors; ▪ breach of condition : 15 days for each file, concurrent between themselves, but consecutive to any other sentence;

▪ assault and the related breach : 30 days concurrent between themselves, but consecutive to any other sentence. [30] Different judgments are proposed to support the principles involved or these propositions[4]. [31] Defence concedes the gravity of the infractions. However, in most of the case proposed by crown, the accused had numerouspriors, had used weapons and none was a native. [32] The breaking and entering charge should be considered as such, with no aggravating factor associated to a home invasion. Onlydenunciation and deterrence should be considered.

The accused has never served any significant jail term so far and we should considertherapy or counselling as a step in rehabilitation. Defence agrees to a 3 years probation that would include such orders. [33] In short, the time now spent in custody is sufficient as " time served " in the main file. The impaired driving charge sentenceshould be a fine : $3500 is suggested A suspended sentence is suggested in the assault file against Mr Meloche, as with the breaches. [34] Defence also presents decisions to support these propositions[5]. THE LAW [35] In R. v.

L.M. 2008 SCC 31 , [2008] 2 S.C.R. 163, Justice Lebel of the Supreme Court said a follows : [17] Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’scompetence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46 , at para. 22; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 ,at para. 82).

To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and thepersonal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code: - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment ofand reparations for the harm they have done (s. 718 Cr.

C.) (see Appendix); - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender (s. 718.1 Cr. C.); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentenceshould be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and thatavailable sanctions other than imprisonment should be considered (s. 718.2 Cr. C.).

HOME INVASION [36] Is it a home invasion? [37] Defence relied on Dussault, one of crown’s case, rendered in 2011 by our court, to argue that s. 348.1 (Aggravatingcircumstances - home invasion) should not apply. [38] Notwithstanding the circumstances that lead to that conclusion in that case, the Quebec Court of Appeal in R v Rincon Arias2014 QCCA 822 subsequently ruled that the legislator saw fit to provide under which circumstances Courts have to consider thepresence of a person in a dwelling house as an aggravating circumstance and that this choice of the legislator is to be respected. [39] Those circumstances are fairly simple : • the dwelling house was occupied; • the accused knew that the dwelling house was occupied; • he used violence or threats of violence to a person or property; • he was convicted of an offence enumerated at 348.1, one of which is breaking and entering. [40] All those circumstances are present.

Consequently, s. 348.1 has to be factored in the sentence. GUIDING PRINCIPLES [41] This being said, two other Court of Appeal decisions are chosen to guide this Court in the sentencing process. Both are recent andeither summarize or address issues at play here. [42] First, in R. v. Sikyea 2015 NWTCA 6 , 2015 NWTCA 06, the Court had to rule on the sentence imposed on a native withan alcohol problem who had sexually assaulted the victim after breaking and entering her dwelling house.

The first instance judge hadfound that while Gladue systemic factors were present, it did not justify a short prison term. [43] The court of Appeal said as follows : [15] The appellant’s argument raises the application of what the trial judge accurately characterized as expressions of the restraintprinciple set out in ss 718.2(

d) and 718.2(

e) of the Criminal Code and the case law thereunder. We discern no error in the approach takenby the trial judge on this topic. The trial judge addressed herself to the principles emanating from R v Gladue (SCC),[1999] 1 SCR 688 and from R v Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433 and concluded that the individual circumstances ofthe appellant did not make it reasonable to apply s 718.2(

e) of the Code to reduction of his sentence from a proportional one. We do not

find error in this. Parliament expressly sets out in s 718.2(

e) of the Code that the sentence imposed must be reasonable in the circumstances. [16] The trial judge’s ultimate finding was that the sentence of seven years was proportional to the gravity of the offence and to the degree of responsibility of the offender. As to gravity of the offence, it has been recognized in our law for centuries that (howsoever modest or penetrable a private residence may be) an occupant is entitled to live there safely and unmolested.

Added to this is the fact that the complainant was also entitled to be respected and protected in her personal autonomy and integrity in her home, and the violation was very grave. The trial judge found that the complainant was very seriously affected by that assault even still at trial. [ 44 ] The proper approach is therefore to determine a reasonable sentence in the circumstances.

In that process, the mere presence of a Gladue report does not justify an automatic reduction of sentence in itself. [ 45 ] As to how to calculate that sentence, especially when numerous files and infractions are present and not necessarily related to one another, the Quebec Court of Appeal in R. c.

Guerrero Silva 2015 QCCA 1334 suggests a clear path to follow. [ 46 ] This appeal dealt with the proper sentence to impose for infractions of domestic violence nature, with numerous other infractions not related to the main file, as is the case here. [ 47 ] Freely translated from French and resumed, Justice Vauclair writes as follows for the Court : ▪ s. 725(1)

a) says that the judge is bound to determine the sentence for each of the infraction (para. 54); ▪ This does not prohibit a global sentence, recognized by s. 728 (para. 54); ▪ Notwithstanding this relative flexibility, the privileged approach in presence of multiple infractions, especially when the parties are not in agreement, is to fix the sentence for each of them, decide if they should be concurrent or consecutive and finally, if the latter applies, it they contravene the fundamental principle of proportionality (s. 718.1) or totality (s.718.2c) (para. 55); ▪ The exercise has to be transparent and should allow the accused and the public to understand fully the reasons of the judge (para. 56). [ 48 ] Also relevant to the present case, Justice Vauclair adds at para. 59 that under reserve of the totality principle, crimes that are different criminal transactions should be subject to consecutive sentences by principle.

It is also the case when the infractions are targeting different public interest protections, such as breach of a court order or, there is an aggravating circumstance that justifies it or, the crime is committed while the accused is subject to a court order. [ 49 ] Finally, Justice Vauclair recalls the seriousness of domestic violence, an aggravating factor to any criminal infraction that should receive a consequent answer from the Courts (para. 61).

APPLICATION OF THE PRINCIPLES [ 50 ] The aggravating factors are therefore as follows : ▪ the offender, in committing the offence, abused his common law partner; ▪ the offence of breaking and entering fits the definition of home invasion as per s. 348.1; ▪ the objective gravity of the infractions, one of which (breaking and entering) is liable to imprisonment for life; ▪ the accused has priors; ▪ the enduring consequences of the crime on the victim. [ 51 ] We can also infer that the crime left some consequences on the children, since they were present and awake from the moment the accused arrived that night until he left with the victim for the bank.

They witnessed what took place. They should not have. [ 52 ] There are no real mitigating circumstance to factor in, save for the recent opening of the accused to consult for his anger problem.

However, this leaves in the open his alcohol problem that is documented in the Gladue report and that the accused does not seem to acknowledge. [ 53 ] This also leads the undersigned to believe that the risk to re-offend is present should the accused fail to address these issues. [ 54 ] As for the home invasion factor, the Court of Appeal mentioned in Rincon Arias that once the criteria are established to either fit or not the definition, we always have to look at the circumstances present in order to find the fit sentence. [ 55 ] This Court does not agree with Crown that it somehow brings an automatic scale of sentencing in the 3-4 years range if that was indeed their position.

Neither the facts of the case or the circumstances justify it. Without debating further, the sentences in that range have more aggravating circumstances. [ 56 ] It should not, however, diminish or trivialize the circumstances present here. CONCLUSION [ 57 ] Even though the accused has some priors, some associated with violence, he was never sentenced to any lengthy detention in the past. His record is also not as extensive as some of the accused in both parties jurisprudence.

It is also the first time that he is convicted of such serious crimes as the ones in the main file, as with others not related, all at once.

[ 58 ] Taking into account the sentence imposed in Guerrero Silva and the review of other sentences also mentioned in that decision, combined to the circumstances of the accused, the fit and global sentence in the main file it to be 18 months. It will apply on all counts, since they originate from the same transaction. [ 59 ] The time spent in custody is to be credited as suggested. It falls just short of 11 months.

To facilitate matters, the Court will use its discretion to fix the credit at 11 months. [ 60 ] It follows that a 7 months sentence as of now is ordered on each count in file 505-01-118947-130, concurrent between themselves. [ 61 ] For the other files : ▪ care and control while impaired (505-01-109861-126) - considering the two priors and the recurrent denunciation and deterrence as primary objectives for that type of infraction in jurisprudence, considering that no notice of previous conviction was served : 15 days, consecutive to any other sentence. ▪ breach of condition - January 2014 (505-01-121114-140) 15 days, consecutive to any other sentence; ▪ assault and breach of condition - (505-01-125221-149) May 2014 – (505-01-125222-147), 30 days each, concurrent between themselves, but consecutive to any other sentence. [ 62 ] A probation order for a period of 3 years will also be ordered, with the conditions to be read at the hearing, as with any other mandatory orders that flow from the convictions, including cost or surfine. __________________________________ RICHARD MARLEAU, J.C.Q.

Me Martin Bourgeois Counsel for criminal and penal prosecutions For the Prosecutor Me Tonya Perron For the accused Date of hearing: August 11 th , 2015