r v. JULIUS AWASHISH, 2020 QCCQ 3614

R. c. Awashish JL 4477 2020 QCCQ 3614 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF VAL-D’OR “Criminal and Penal Division” Nos.: 614-01-003484-207; 614-01-003192-198; 614-01-003322-191 DATE: September 16, 2020 ______________________________________________________________________ BY THE HONOURABLE JACQUES LADOUCEUR, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

JULIUS AWASHISH Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 1.

BACKGROUND [ 1 ] The accused, an Aboriginal member of the Cree First Nation and the Mistissini community, pleaded guilty in December 2019 to charges of aggravated assault against his sister, theft of a purse and its content of $400, a breach of probation related to failing to perform community work, and two breaches of recognizance, that is, consuming alcohol and failing to observe a curfew. [ 2 ] During submissions on sentencing, counsels proposed a sentence totaling 34.7 months of imprisonment (1,057 days), less presentence custody, leaving a residual sentence of two years, as well as 24 months’ supervised probation.

Counsels took steps, in particular, to verify whether the accused could take

part in therapy at the Waseskun Center, which is a healing centre accredited by Correctional Service Canada and the Correctional Services of Quebec.

Depending on the circumstances, such therapy could take place during the prison sentence, upon release on parole, or when the probation order takes effect. [ 3 ] Especially given the Supreme Court’s teachings in Gladue [1] and Ipeelee , [2] and more recently those of the Quebec Court of Appeal in Diabo [3] and Denis-Damée , [4] the Court informed the parties that it questioned compliance with the public interest test established in Anthony-Cook [5] and asked them to make additional submissions on the reasons and circumstances underlying the joint submission. 2. ISSUES 2.1.

Should the Court approve the joint submission in light of the public interest test established in Anthony-Cook ? 2.2. If not, what is the appropriate sentence? 3. ANALYSIS 3.1. The offences 614-01-003192-198 [ 4 ] On October 10, 2019, the accused committed aggravated assault against his sister, Iris Awashish. [ 5 ] On that date, at approximately 3:00 p.m., the police received a call about a woman who was bleeding and appeared to have suffered a severe injury to her face. [ 6 ] The police arrived and saw that the victim’s face was bleeding and that she had a large cut on her eyebrow.

Due to the seriousness of the injury, she was immediately taken to receive medical care. [ 7 ] She later gave a statement explaining that she was the accused’s sister and that her brother had caused her injuries. She

explained that the accused had punched her on the right side of her face but that she did not know how many times because she fell after the first punch and could not remember everything that happened after that. She said that the accused also punched her elsewhere on her body and that he was heavily intoxicated by alcohol. She does not know why her brother acted this way. [ 8 ] The victim did not sustain any fractures to her face, but she had an approximately 3.5 centimetre long cut just above her eyebrow that required seven stiches.

She also had some serious bruises on different parts of her body, including her thorax, neck, and both breasts. A brain scan revealed internal swelling. [ 9 ] According to the victim impact statement on the consequences of the crime, [6] she is sad because she believes her brother needs help. She stated that she cannot sleep when she thinks about the fact that he could have killed her. She had to miss a few days of work due to swelling around her eyes. She said that she fears for the safety of her daughters because when the accused is intoxicated, he becomes violent. [ 10 ] A letter from Ms.

Awashish was filed in which she expressed her love for her brother. What is most painful for her is not the injuries, but the fear that he will not get better. She said that she forgives him and hopes that these events will allow him to become the loving brother he was in the past once again. 614-01-003322-191 [ 11 ] On December 16, 2019, the accused stole a family member’s purse containing $400.

At the time of his arrest, he had been consuming alcohol, which he was prohibited from doing under a release order, and he had failed to observe his curfew. 615-01-003484-207 [ 12 ] The accused did not perform 200 hours of community work related to a sentence imposed on August 15, 2018, further to a previous breach of a probation order rendered on December 1, 2016, according to which he had to perform 240 hours of community work.

At the time the sentence was handed down in 2018, a conditional sentence of five months was also imposed, concurrent with another conditional sentence of five months’ imprisonment in a case where the accused pleaded guilty to a charge of careless use of a firearm in the context of suicidal behaviour. 3.2. The presentence report and the Gladue report [ 13 ] When the guilty pleas were entered in December 2019, the Court ordered that a presentence report and a Gladue report be prepared. [ 14 ] Unfortunately, the Gladue report was never prepared due, among other things, to circumstances related to COVID-19.

In view of the time that passed, the accused waived his right to the preparation of that report. [ 15 ] The Court would like to pause here to mention that no Gladue report was previously filed in relation to the accused, despite his counsel’s erroneous belief in this regard.

Moreover, during his submissions, counsel for the prosecution stated that the Gladue criteria must have been considered in the accused’s previous sentences . [ 16 ] After informing the parties, the Court played back the recording of what had been said during the previous cases concerning the careless use of a firearm (614-01-001517-172) and assault causing bodily harm (614-01-000430-153). [ 17 ] As previously stated, no Gladue report was filed in the past, and replaying the recordings of the previous cases did not support the conclusion that specific submissions were made on the basis of Gladue .

Also, none of the probation orders rendered appears to have mentioned a referral to the justice committee. [ 18 ] The presentence report is useful, but serves a different purpose than a Gladue report because it is mainly intended to assess the risk of re-offending. [7] Moreover, presentence reports are usually prepared by a probation officer from the Ministry of Public Security, while Gladue reports are often prepared by a member of the Aboriginal community to which the accused belongs and who has specific training in that regard. [8] [ 19 ] The relationship of trust and the accused’s openness toward the author of a Gladue report are often much greater than towards the author of a presentence report, and even if certain aspects of the presentence report may be connected to what is described in Gladue , in most cases, it is but the tip of the iceberg. [ 20 ] The presentence report in this case states that the accused has very bad memories of his childhood.

He remembers having seen his parents consume alcohol repeatedly, particularly his father, and having witnessed many arguments between them. There was violence almost every day, and the accused saw his mother be severely beaten. He himself was thrown down the stairs by his father twice and was hospitalized on one of those occasions. His father also beat him severely with a stick for coming home late. [ 21 ] After his mother left when he was approximately 10 years old, his older sister Iris became the maternal figure.

The accused began committing theft at about age 10 in addition to missing school and smoking cannabis once or twice a month. He also started coming home later to avoid the unhealthy atmosphere that prevailed there. By age 15, he was a heavy cannabis user and regularly missed school, which he abandoned at age 17. Between the ages of 17 and 19, he used several types of drugs and consumed hard liquor abusively. [ 22 ] He attempted suicide for the first time at age 22 and was hospitalized at the Douglas Hospital.

When he returned to his community, he resumed drinking and used marijuana and cocaine while taking antidepressants. [ 23 ] He attempted suicide a second time and was then heavily medicated to treat his depressive episodes and panic attacks. He remained sober for a period of seven months, until the death of his grandfather, which led him to stop taking his medication because he

was unable to feel his emotions. He resumed using drugs and alcohol until he was incarcerated in this file. [ 24 ] The probation officer noted that the accused’s significant drug addiction may, to a large extent, explain his conduct, and also emphasized the poor management of his emotions and a potential for dangerousness when intoxicated by alcohol. He noted a progression in the gravity of the accused’s criminal conduct. [ 25 ] The accused takes responsibility for his actions, although he does not remember them.

His conduct following the offence suggests that he feels guilty and that he has empathy for his sister, but his level of awareness needs to be developed. [ 26 ] According to the probation officer, the accused remains fragile psychologically. If he returns to the community without first working on his vulnerabilities, the risk of relapse is significant.

Several traumas related to his childhood remain unresolved to this day. [ 27 ] However, he has some protective factors as a result of his intrinsic qualities, and he is able to work well when he is in a safe environment. [ 28 ] The accused says that he worked on himself during his incarceration and that he cannot remember ever feeling as good as he does now. The accused acknowledges that he needs help and that he is not able to resolve his problems on his own.

He is willing to go to therapy at the Waseskun Center. [ 29 ] The probation officer concluded that the accused has a good chance of achieving his goals if he is able to address his addiction issues successfully. If he does not address them, however, the risk of re-offending remains present. 3.3. Aggravating and mitigating factors 3.3.1.

Aggravating factors • He has a criminal record involving violence, that is, assault causing bodily harm committed on June 28, 2015, as well as an offence of careless use of a firearm committed on December 19, 2016; • The victim has permanent sequelae as she can no longer move her left eyebrow; she has a scar and remains afraid for her children; • He failed to comply with his obligation to perform community work twice; • There is a risk of re-offending. 3.3.2.

Mitigating factors • The accused pleaded guilty at the first opportunity; • He has remorse in regard to his conduct; • He has the support of his family; • He is young and therefore able to get his life back in order; • He has taken steps in the past to resolve his issues, having participated in therapy at Portage (which he did not complete because English is not his first language); • At the time of his last conviction, he was supposed to receive care in connection with his mental health issues, but according to his counsel, those services were not provided to him; • The presentence report reveals several consequences for the accused in connection with the systemic and background factors set out in Gladue and that have had a direct and concrete impact on the accused’s conduct . [ 30 ] Without characterizing it as a mitigating factor, the Court notes that, in its view, the victim’s serious injuries are at the lower end of the seriousness spectrum. 3.4.

The sentence proposed [ 31 ] The Court notes that all the sentences proposed, in all the files, are prison sentences. [ 32 ] For the offence of aggravated assault, the parties propose 28.7 months in custody (874 days). With respect to the offence of breach of probation for failing to perform 200 hours of community work, the parties propose 4 months in custody (122 days).

Last, they propose 4 consecutive months in custody (122 days) and 2 consecutive months in custody (61 days) for the offences of breach of a release order and theft of a purse and of $400. [ 33 ] These sentences total 34.7 months (1057 days) in custody, from which 10.7 months (218 days) of presentence custody, multiplied by a ratio of 1.5, which is equivalent to 327 days, are deducted according to the calculation made by the parties.

The Court notes that the accused contracted COVID-19 during his presentence custody at the Montreal detention centre. [ 34 ] The residual sentence is thus 730 days, that is, 24 months, in addition to which 24 months of supervised probation is proposed. The parties, in particular through counsel for the prosecution, who acted as the principal spokesperson, stated that the factor of deterrence must be prioritized. Moreover, the Court notes that a component concerning the accused’s rehabilitation is planned in connection with treatment at the Waseskun Healing Center.

[ 35 ] Defence counsel noted that his client has mental health problems and that, in his view, he is more likely to receive care in this regard if he is given a penitentiary sentence.

As for the fact that the accused could benefit from specific programs for Aboriginal persons at the Amos detention centre if he is sentenced to a provincial institution, defence counsel submits that it is hypothetical to say that his client will be incarcerated in Amos. [ 36 ] It should be noted that the joint submission of the parties is intended to result in the imposition of a sentence of exactly two years so that a probation order can be rendered and also so that the accused can serve his sentence in a penitentiary.

The Court notes that the calculation made by the parties regarding the pre-sentence custody is wrong. They calculated 218 days of pre-sentence custody on July 21, 2020. In fact, at that date, there was 249 days of pre-sentence custody. It seems that the parties forgot to include the period of detention between October 11 and November 11, 2019 (31 days).

So, if we apply the real period of pre-sentence custody to the proposed sentence, the imprisonment would be less than 2 years. [ 37 ] Counsel for the prosecution filed a few judgments in support of the joint submission. (Those decisions having been rendered before the judgment in Ipeelee .) [ 38 ] R . c. Diamond , 2006 QCCQ 2252 Twenty-four (24) months less one (1) day conditional sentence, less presentence custody, resulting in a residual sentence of eighteen (18) months’ conditional sentence with the obligation to undergo six (6) months of therapy : The accused pleaded guilty to a charge of aggravated assault.

She stabbed her spouse five times in a fit jealousy while under the influence of alcohol. There was a certain degree of planning, and the victim was seriously injured. The accused had a criminal record including violence, breach of probation, and breaking and entering. Certain Gladue factors were present, although she did not grow up in a dysfunctional environment. The Crown sought 36 months’ imprisonment, while the defence proposed between 18 and 24 months to be served in the community. [ 39 ] Oweetaluktuk c.

R. , 2011 QCCA 1099 Forty-two (42) months’ imprisonment less presentence custody, resulting in a residual sentence of thirty-eight and a half (38 ½) months : The accused pleaded guilty to charges of aggravated assault, assault with a weapon, and five counts of breach of probation. The judge sentenced him to 54 months’ imprisonment less presentence custody, resulting in a residual sentence of 50 months and 17 days, despite a joint recommendation of 42 months’ imprisonment. The accused punched his mother and his grandmother.

He also hit his mother with a kitchen chair and with a stool, pulled her hair, kicked her, stabbed her twice in the back with a kitchen knife, and cut her once in the face. The victim’s injuries were serious and required significant medical treatment. At the time of the offences, the accused was under a probation order further to a conviction 2 months earlier for assault. The Court of Appeal reversed the trial judgment and ratified the joint submission. [ 40 ] R . c .

Trapper , 2007 QCCQ 7790 Thirty (30) months’ imprisonment less presentence custody, resulting in a residual sentence of twelve (12) months followed by three (3) years’ supervised probation : The victim was involved in a fistfight with the accused during a drinking binge. The accused left and returned. He saw the victim, who was sleeping on the ground, and hit him with a golf club. The victim’s head injuries supported the inference that more than two blows were delivered. The victim had to be hospitalized for three days in intensive care in Montreal and 16 days in the brain trauma unit.

He suffered multiple fractures to his face, sinuses, and eye sockets, cerebral oedema, scratches to his cornea, and a cracked retina, in addition to psychological and emotional injuries. The victim was a 23-year-old member of the Mistissini Cree community and had wanted to become an airline pilot, which he had to forgo. The accused had a lengthy criminal record, including three convictions for assault, some involving a significant degree of violence. He had been raised in an environment free from violence, and there was no substance abuse in the home. [ 41 ] Grondin c.

R ., 2018 QCCA 429 This judgment was filed in support of the custodial sentence sought for failure to perform the 200 hours of community work. In that case, the Court of Appeal allowed the appeal from a sentence further to a facilitation conference in criminal matters during which the parties’ counsel agreed that the sentence for failure to perform 240 hours of community work is usually a custodial sentence of six months. This case originated in the Saint-Hyacinthe region.

The prosecution performed a calculation akin to a rule of three to say that if 240 hours entailed six months’ imprisonment, 200 hours entailed five, and that because of the principle of totality in sentencing (and probably to avoid exceeding two years’ imprisonment so that a probation order could be rendered), a period of four months in custody (122 days) was suggested. [ 42 ] Generally speaking, and with respect, the judgments submitted have little in common with the accused’s situation other than the fact that they concern offences of aggravated assault involving Aboriginal persons.

The violent nature of the acts committed is much higher and involves the use of either a knife or a blunt object, and the consequences of the acts committed are much more serious. [ 43 ] In addition, taking into account the Gladue criteria, the level of moral blameworthiness and the profiles of the accused in those cases appear less favourable than in this one. 3.5. Anthony-Cook ,

section 718.2(

e) of the Criminal Code , Gladue and Ipeelee

[ 44 ] In R . v. Anthony-Cook , [9] the Supreme Court recalled the essential nature of joint submissions on sentences made by Crown and defence counsel. In that case, the Supreme Court found that the proper test to apply to determine whether a joint submission should be accepted is the public interest.

Under the public interest test, “a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest .” [10] The test posits that rejection of a joint submission “denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.” [11] [ 45 ] The Court is of the view that the rejection of the joint submission in this case meets this high threshold.

As mentioned in R . v. Laforge , a decision concerning a joint submission for an Aboriginal offender, “the proposed sentence would be viewed by reasonable and informed persons as representing a breakdown in the proper functioning of the justice system.” [12] [ 46 ] Despite the Supreme Court’s pressing calls for action in Gladue and Ipeelee as well as that of the Quebec Court of Appeal in Denis-Damée and Diabo , the overrepresentation of Aboriginal persons in prison continues to increase.

Certain obligations in this respect, which are incumbent upon judges, must also be reflected in the sentencing process involving a sentence proposed by the parties in a joint submission. In addition, it does not consist of mere [ translation ] “consideration” to use the words of counsel for the prosecution. This consideration must be reflected concretely in the result submitted to the Court. In Ipeelee , the Supreme Court stated: [86] If the offender is Aboriginal, then courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue .

There is no sense comparing the sentence that a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, because there is only one offender standing before the court. [Emphasis added.] [ 47 ] That is one of the errors that the parties appeared to have made during arguments when counsel for the prosecution stated that because of the circumstances of the crime , a prison sentence of 36 months [13] would have been justified, emphasizing collective and individual deterrence as well as denunciation and the separation of the offender from society.

He then assessed the fitness of the submission by asking himself what he would have proposed if the accused was not an Aboriginal person and if the accused, an individual from Rouyn-Noranda or Val-d’Or for example, had the same criminal record for the same offences and was in the exact same situation with the same risk of reoffending. [ 48 ] In short, counsel justified his position first by assessing the fitness of the sentence solely with respect to the seriousness of the crime and then on the basis of a crime committed by an individual with identical characteristics to that of the accused, but who was not an Aboriginal person. [14] [ 49 ] In Denis-Damée c.

R ., the Court of Appeal reiterated the following: [ translation ] [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. ( Gladue at para. 66 ; Ipeelee at para. 59 .) [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”. ( Ipeelee at para. 60 ) [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 . ( Ipeelee at para. 73 ) These are the mitigating factors. ( R. v.

Wells , 2000 SCC 10 at para. 38 ) 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” . (Marie-Andrée Denis-Boileau and Marie-Ève Sylvestre, “ Ipeelee and the Duty to Resist”, translation of original French article, “ Ipeelee et le devoir de résistance” 21 C.C.L.R. 73 at 80.) [Emphasis added.] [ 50 ] Also, in Diabo , [15] the Court of Appeal stated the following: [59] Indeed, courts have warned against this kind of reasoning in their discussion of the methodology relevant to s. 718.2 (e) .

Chief Justice Richards wrote the following for the Court of Appeal for Saskatchewan in R. v. Chanalquay , 2015 SKCA 141 , on errors of method in sentencing Indigenous offenders: [37] I observe as well that the analysis mandated by s. 718.2 ( e ), as explained in Gladue and Ipeelee , is not a free-standing inquiry that is brought into play to adjust an otherwise fit sentence after it has been determined. Instead, the analysis is an integral part of the reasoning which leads to a fit sentence ( Gladue at para 88 ).

It does not stand outside of that reasoning and judges should not approach the sentencing exercise with a view to giving (or not giving) a specific or express reduction in a sentence because of Gladue factors. This is not what Gladue and Ipeelee provide.

[60 ] A fit sentence cannot, of course, be ascertained prior to the exercise of individualizing the penalty to take into account the circumstances of the offender. To do otherwise would suggest that a judge is right to sentence the offence and not the offender, which is diametrically opposed to s. 718 et seq . Cr.C . [Emphasis added.] [ 51 ] Last, in Ipeelee , the Supreme Court went on to say: [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. [Underlining and bold emphasis added by the Court.] [ 52 ] As we can see from a reading of these passages, the application of the principles developed in Gladue are not limited to an exercise in style.

In his arguments, counsel for the prosecution suggested that this sentencing principle is a principle to be applied in the same way as the other principles of sentencing set out in the Criminal Code . [ 53 ] The Court wishes to add a nuance. The principles of sentencing set out in s. 718.2 Cr. C. are not problematic except paragraph ( e ). In addition, this principle, with respect to Aboriginal offenders, is subsumed to a certain extent in the fundamental principle set out in s. 718.1 Cr. C. because it is related to the accused’s moral responsibility and blameworthiness.

Authors Parent and Desrosiers wrote the following: [ translation ] 160. More particularly, the sentencing process must take into account the seriousness of the crime, the degree of responsibility of the offender, and the specific circumstances of Aboriginal offenders . Result: [ translation ] “some of the traditional functions of sentencing, particularly valued in western societies, will have to make way for the objectives of corrective justice, espoused by most Aboriginal communities”.

To be “fair”, the sentence must correspond not only to the gravity of the offence and the degree of responsibility of the offender, but also to the circumstances specific to Aboriginal offenders , at the forefront of which is the traditional understanding of sentencing that emphasizes [ translation ] “healing and recovery of both the victim and the offender”. [16] [Underlining and bold emphasis added by the Court.] [ 54 ]

Section 718.2(

e) Cr. C. is therefore of fundamental importance with respect to the sentence to be imposed on an Aboriginal offender as much regarding the diminished moral blameworthiness than regarding restorative justice measures. This must be reflected in a concrete way in the sentence suggested. Not doing so is contrary to the public interest because of the significant value attached to this principle and the drastic situation of the overrepresentation of Aboriginal persons in prison.

As Lortie, J. stated in Awashish , [17] [ translation ] “ particular attention must be given to Aboriginal offenders .” [Emphasis added.] Also, in R . v. Laforge [18] , the judge says that “[a]ccording to Gladue and Ipeelee , a sentencing court must take a holistic approach to imposing a fit sentence.” [ 55 ] Thus, in Denis-Damée , [19] the Court of Appeal faulted the trial judge for emphasizing the significant gravity of the offence, which allowed him to find that the Aboriginal accused had a high degree of responsibility.

In so doing, he [ translation ] “completely failed to make the connection between the systemic and background factors and ... 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”. [20] [ 56 ] The Court of Appeal, in Denis-Damée , noted the exponential increase in the statistics concerning the imprisonment of Aboriginal persons. [ translation ] [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 . (At para. 62.) [96] I n 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% . ( Annual Report of the Office of the Correctional Investigator 2014- 2015, Government of Canada, at 36. ) [Emphasis added.] [ 57 ] Currently, in 2020, this proportion has reached 30% in both the penitentiaries and the provincial prisons. [21]

Federally Incarcerated Indigenous Population since 2001 [ 58 ] In connection with the statistics regarding the increase in the incarceration rate of Aboriginal persons, counsel for the prosecution filed excerpts from a report (exhibit R-3) titled Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s criminal Justice System / La lumière sur l’arrêt Gladue : défis, expériences et possibilités dans le système de justice pénal canadien . [22] He asserts that the statistics for the year 2013-2014 reveal that the data in this regard is better in Quebec than in the other provinces because the incarceration rate is 4% while the Aboriginal population is 2% (thus, double …). [ 59 ] Counsel for the prosecution noted that while it is important to apply the Gladue principles in Quebec to avoid the overrepresentation of Aboriginal persons in prison, the goal is not to reduce the national average by imposing sentences here that fall short of the fundamental principles of sentencing.

He added, “Our district plays a huge role in the huge difference that the Québec portrait is compared to center of Canada”. [ 60 ] As the Court mentioned at the sentence hearing, the report of the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec (commonly referred to as Commission Viens) [23] indicates the following: First of all, based on the data reviewed, the average daily population of provincial correctional facilities is 6.5% Indigenous .

This number indicates that Indigenous people are in fact overrepresented in the prison system, as it greatly exceeds the First Nations and Inuit percentage of Québec’s population, which is 1.4% according to official registers. The rapid growth of the Indigenous presence in Québec’s correctional system in recent years also merits discussion. Comparing data from 2006–2007 with that of 2015–2016 shows an 85.0% increase. This increase has been especially pronounced among Inuit populations (+183.0%) and Eeyou (Cree) populations (+82.0%) .

For the same period, the growth of the non-Indigenous prison population is estimated at 18.7% . The presence of Indigenous women has also risen sharply, up 320.0% in a little under 10 years (2006– 2007 vs. 2015–2016). The ratio of incarcerated individuals is particularly high among the Inuit (64 per 1,000 inhabitants) and Innus (56: 1,000), rates that are respectively 16 and 14 times higher than the incarceration rate for non-Indigenous people (4: 1,000) .

The group formed of the Mi’gmaq, Naskapi, Mohawk, Huron-Wendat, Abénakis, and Malécite nations, along with Indigenous people outside Québec (3: 1,000) presented a profile similar to that of non-Indigenous people.

The Atikamekw Nehirowisiw (5 times higher), Anishnabe (Algonquin/4.25 times higher) and the Eeyou (Cree/2.6 times higher) nations fall between these two extremes . [24] [References omitted; underlining and bold emphasis added.] [ 61 ] The Court notes that the staggering increase in the incarceration rate of Inuit and Cree persons is directly related to the cases handled by the DCPP in Amos regarding the communities living in the Eeyou Istchee and Nunavik territories. However, this situation results from several socioeconomic, political, and legal causes.

As for solutions, the Court of Appeal for Ontario in R . v . Sharma recently reiterated, in a very rare prologue, the essential message of the Supreme Court in Gladue that “[s]entencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system”. [25] [ 62 ] Also, in R . v.

Kuliktana , the Nunavut Court of Appeal says that “… in determining whether a proposed joint submission sentence for an offender is so unfit as to contravene the principles in Anthony-Cook , the sentencing court should, in my view, consider how Gladue factors might fit in to the situation”. [26] [ 63 ] In the Court’s view, the proposed sentence in this case is not the result of the appropriate and mandatory exercise required under s. 718.2 (

e) Cr. C. For the offence of aggravated assault, it is a long and singular prison sentence (28.7 months), to which must be added

the prison time for the other offences, resulting in a total of 34.7 months, and from which the parties subtract a sufficient amount of presentence custody time (10.7 months) – based on a wrong calculation – to ultimately permit the sentencing measure of two years’ supervised probation, while ensuring that the sentence is a penitentiary sentence for reasons that are uncertain and nebulous. In the background, the parties let the possibility remains that the accused could participate in therapy in a centre during his imprisonment.

That is not another available sanction, but rather a possible alternative to the manner in which the sentence will be served. [ 64 ] The sentence proposed in this case is not only excessive, but also likely to bring the administration of justice into disrepute and contrary to the public interest because: • It does not comply with the obligations set out in s. 718.2 (

e) Cr. C. or with Gladue and Ipeelee , as it does not take into account the accused’s actual moral blameworthiness and fails to consider the other reasonable sanctions available; • It perpetuates the problem of the overrepresentation of Aboriginal persons in prison [27] , with respect to both the accused and the precedent it sets. [ 65 ] In this regard, the Court notes that both counsel are experienced and that ratifying their submission would carry weight setting a precedent from which the Court finds it important to depart.

To ratify this submission would entail ignoring the message repeated by the Supreme Court and the Court of Appeal. It would mean opening the doors of the prisons and penitentiaries even wider to incarcerate Aboriginal persons in them . 4. THE APPROPRIATE SENTENCE [ 66 ] Recently, in R . v. Sharma , [28] the Court of Appeal for Ontario emphasized the importance of conditional sentences as other available sanctions under s. 718.2 (

e) Cr. C. with respect to Aboriginal offenders. [29] The Court stated: [33] … Parliament recognized the significant problem of overrepresentation of Aboriginal people in prisons in Canada, and enacted both a directive to sentencing judges in s. 718.2 (

e) and, most importantly, a real tool to address the problem in s. 742.1 : the conditional sentence . [34] In its landmark 1999 decision in Gladue , the Supreme Court identified s. 718.2 (

e) as a “watershed”, not merely a restatement of existing principles of restraint in sentencing: at para. 39. The court stated, at para. 40, that the purpose of s. 718.2 (

e) was remedial, particularly given the concurrent introduction of the conditional sentence in s. 742.1: The availability of the conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2 (

e) must be construed and applied in this light . … [37] Importantly, the court in Gladue rejected the suggestion that sentences that prioritize restorative justice principles are more lenient than sentences that impose a term of imprisonment.

Rather, they reflect Aboriginal justice concepts and enable a sentencing judge to impose a sentence that will better serve the purposes of sentencing for an Aboriginal offender , as the court recognized at para. 74 of Gladue : [O]ne of the unique circumstances of aboriginal offenders is that community-based sanctions coincide with the aboriginal concept of sentencing and the needs of aboriginal people and communities. It is often the case that neither aboriginal offenders nor their communities are well served by incarcerating offenders, particularly for less serious or non-violent offences.

Where these sanctions are reasonable in the circumstances, they should be implemented. In all instances, it is appropriate to attempt to craft the sentencing process and the sanctions imposed in accordance with the aboriginal perspective . … [45] The court also strongly rejected the suggestion that treating Aboriginal offenders differently in sentencing violates the parity principle, codified in s. 718.2 (

b) of the Criminal Code . That suggestion ignores the impact of the history of Aboriginal peoples in Canada, given that “[t]he overwhelming message emanating from the various reports and commissions on Aboriginal peoples’ involvement in the criminal justice system is that current levels of criminality are intimately tied to the legacy of colonialism”: at para. 77 . [46] Finally, LeBel J. identified two major errors that sentencing courts had made following Gladue that had the effect of both “significantly curtail[ing] the scope and potential remedial impact” of s. 718.2 (

e) as well as “thwarting what was originally envisioned by Gladue ”: Ipeelee , at para. 80 . … [49] The second error LeBel J. highlighted in sentencing decisions since Gladue related to the applicability of Gladue principles to serious or violent offences . Courts had picked up on one comment from Gladue , at paras. 33 and 79 , that suggested that for such offences, Aboriginal offenders and other offenders would likely receive similar jail sentences.

In Ipeelee , at paras. 86-87 , LeBel J. clarified that the Gladue framework was obligatory in every case and that the sentencing court has a duty to apply s. 718.2 (e), including for serious and violent offences . … [77 ] Parliament’s purpose in enacting s. 718.2 (e), together with the conditional sentence, was to address the issue of overincarceration

generally and in particular, the overincarceration of Aboriginal offenders in Canada . [Emphasis added.] [ 67 ] While it is true that the offence of aggravated assault is ineligible for a conditional sentence of imprisonment, the fact remains that all the other offences alleged permit the use of that type of sentence.

At the sentence hearing, the Court invited the parties to discuss that possibility, but counsel for the prosecution refused, so defence counsel did not express an opinion on the matter. [ 68 ] The Court reiterates that the sentences proposed in each of these files are prison sentences (the total duration of which is excessive in the Court’s view). [ 69 ] As the Court of Appeal noted in R . c .

Corminboeuf , [30] [ translation ] “it is possible … to sanction separate offences by a term of imprisonment for one of them followed by imprisonment to be served in the community for others, but not when the total sentence imposed amounts to two years or more”. [31] To that end, the Court must first verify whether the offences to be sanctioned warrant an overall sentence to be served in a penitentiary or a probationary sentence, [ translation ] “without taking presentence custody into account, in accordance with Fice .

If the Court excludes these two measures, it must then consider the possibility of a conditional sentence order and whether one of the offences can be sanctioned by such a sentence, consecutively to a sentence of imprisonment for the other”. [32] [ 70 ] The appropriate sentence for the offence of aggravated assault is a custodial sentence. That being said, do the seriousness of the crimes, the degree of responsibility of the offender, and the specific circumstances of Aboriginal persons call for an overall penitentiary sentence or a probationary sentence?

The answer to that question is no. [ 71 ] Before commenting on the appropriate sentence for each count, the Court notes that in accordance with Pham [33] and Suter , [34] it must consider the collateral consequences of the accused’s incarceration. [ 72 ] In this regard, the Commission Viens noted the following with respect to the consequences of the sentences imposed on Aboriginal offenders. Indigenous people are often incarcerated in institutions very far from their home communities .

For example, Eeyou (Cree) (64.0%) and Anishnabe (Algonquin) (62.1%) inmates are often placed in Amos, which is also home to a high proportion of Inuit inmates (20.9%). The highest proportion of Inuit inmates, however, is in Saint-Jérôme (48.4%).

Most Innus are incarcerated in Sept-Îles (59.3%); most Atikamekw Nehirowisiw in Roberval (43.5%). [35] … Although the programs and services provided are the same for everyone, six detention facilities with a high proportion of Indigenous inmates offer programs specifically geared to this clientele : the facilities in Amos, Baie-Comeau, Hull, New Carlisle, Saint-Jérôme and Sept-Îles. [36] … … the evidence also confirmed the presence of indirect discrimination, resulting from the laws, policies and practices and tools in place.

As Indigenous offenders are usually incarcerated thousands of kilometres away from their family and community and face significant cultural and language barriers and limited programs and services, they appear to be at a huge disadvantage in their relations with correctional services . The negative effects lead me to conclude that the prison system has failed in their rehabilitation.

And yet reintegration is at the heart of the principles set out in the Act respecting the Québec correctional system for all offenders. [37] [References omitted; emphasis added.] [ 73 ] As a judge sitting in the district of Abitibi -Témiscamingue – Eeyou Istchee – Nunavik, the Court is aware of regional specificities, including the existence of specific programs for Cree detainees at the Amos detention centre. [38] [ 74 ] According to defence counsel, that was not really taken into account because there is no guarantee that the accused will serve his sentence at the Amos detention centre.

The proposed penitentiary sentence, however, means that this uncertainty becomes a certainty that the accused will not serve his sentence in Amos . In addition, it would undoubtedly distance the accused from his community because there is no penitentiary near the Cree communities. [ 75 ] With respect to the collateral consequences of the sentence, the statistics from the Commission québécoise des libérations conditionnelles related to Aboriginal offenders reveal that Aboriginal persons serve a greater part of their sentence than non-Aboriginal persons do. [39] [ 76 ] Also, the Court noted in R . c.

Iserhoff [40] that the failure to build a detention centre above the 49th parallel in accordance with

section 18.0.26 of the James Bay and Northern Québec Agreement must be taken into account in the analysis of the collateral consequences of a sentence on Cree beneficiaries of the Agreement and that this right has not been suspended despite the Agreement concerning the administration of justice for the Crees. [41] This applies here. [ 77 ] Finally, the Court add that the goal is not to render the most lenient sentence. [ 78 ] That being said, and taking into account the principle of totality in sentencing, [42] the Court is of the view that the appropriate sentence for each file is as follows. [ 79 ] 614-01-003192-198 : Eighteen (18) months’ (548 days’) imprisonment, less presentence custody of 459 days, taking into account the ratio of 1:1.5, resulting in a residual sentence of 89 days.

Even if the accused was not detained in that file for the period between December 2019 and today, there is “a sufficient link between the pre-sentence detention for which credit is sought and the

offence for which the offender being sentenced.” [43] [ 80 ] 614-01-003484-207 : Conditional sentence order of four (4) months less one (1) day consecutive to the sentence rendered in file 614-01-003192198; [ 81 ] 614-01-003322-191 : • Count 3: Conditional sentence order of two (2) months’ imprisonment consecutive to the conditional sentence imposed in file 614- 01-003484-207; • Counts 1 and 2: Conditional sentence order of fifteen (15) days concurrent with each other and concurrent with count 3; [ 82 ] In the three files, an order imposing thirty (30) months’ supervised probation will be rendered. [ 83 ] It should be noted that both the conditional sentence order and the probation order will include the condition that the accused complete six (6) months of therapy at the Waseskun Center to heal his inner wounds, his violence issues, and his alcohol and drug abuse problems.

This therapy should start at the latest upon the accused’s release from prison, such that this judgment will be sent to the Waseskun Center. The Court suggests that counsel for the accused take the necessary steps with the Waseskun Center and with the correctional services so that the accused can take

part in this therapy.

THEREFORE, THE COURT: [ 84 ] In the file 614-01-003192-198 : [ 85 ] ORDERS the accused to serve a sentence of eighteen (18) months (548 days) of imprisonment less pre-sentence custody which is equivalent to 459 days for a residual of 89 days; [ 86 ] HIGHLY RECOMMENDS that the offender served his sentence of imprisonment at the Detention Center of Amos in order to benefit from the programs specifically intended for Cree inmates; [ 87 ] DIRECTS that the accused, at the end of his term of imprisonment, be released and remitted in the hands of an authorized representative of Waseskun Healing Center in order to take him directly to the Center or that Québec Correctional Services bring the accused at the Waseskun Healing Center; [44] [ 88 ] In the file 614-01-003484-207 : [ 89 ] ORDERS the accused to serve four (4) months less one day of conditional sentence order consecutively with the sentence rendered in the file 614-01-003192-198; [ 90 ] In the file 614-01-003322-191 : [ 91 ] ORDERS the accused to serve: • Two (2) months of conditional sentence order on count no. 3 consecutive with the conditional sentence order in the file 614-01- 003484-207; • Fifteen (15) days of conditional sentence order on counts no. 1 and no. 2 concurrently with each other and concurrent with count no. 3; [ 92 ] ORDERS the following conditions for the conditional sentence order for a period of six (6) months following the date of expiry of any other term of imprisonment being served: 1) Keep the peace and be of good behaviour; 2) Appear before the Court when required to do so by the Court; 3) Report to a supervisor; 4) Remain in the province of Québec, unless written permission to go outside that province is obtained from the Court or the supervisor; 5) Notify the Court or the supervisor of any change of address or name and promptly notify the Court or the supervisor of any change of employment or occupation; 6) Not harass, molest or threaten Iris Awashish and her children; 7) Be at his residence in Mistissini or at Waseskun Healing Center during the therapy at all times barring the following exceptions:

a) To attend a pre-scheduled appointment with his supervisor or the Justice Committee;

b) To appear before the Court as a witness or party to a dispute;

c) To appear before the Court if required to do so by the Court in this case;

d) For religious purposes, at a specified place, and at the time specified in writing by his supervisor;

e) To receive medical treatment for himself or a member of his immediate family;

f) To purchase food or necessary goods or services for himself or a member of his immediate family for not more than four (4) hours, according to the terms to be determined or with written permission, for any other period deemed appropriate by his supervisor;

g) To carry on legitimate gainful employment, as approved in writing by his supervisor;

h) To meet with any person (such as parents, therapists, AA or NA meetings, community service, etc.), with the prior written authorization of the supervisor with regard to the nature, place, time and duration of the meeting;

i) For any serious and/or urgent reason, with the prior written authorization of the supervisor; 8) Answer all phone calls from the supervisor during periods of curfew or house arrest, and take the necessary steps to be able to do so, except during the therapy at Waseskun Healing Center; 9) Maintain a ground telephone line and answer all phone calls from his supervisor except during the therapy at Waseskun Healing Center; 10) Not subscribed to a service of transfer of calls; 11) Facilitate access to his residence by the supervisor; 12) Notify the supervisor of any change of phone number within 48 hours; 13) Follow all of the supervisor’s written instructions regarding the application of the conditional sentence of imprisonment; 14) Refrain from using alcohol or any other intoxicating substances or having in his possession, except in accordance with a validly obtained medical prescription; 15) Refrain from consuming cannabis and derivatives group or having in his possession, except in accordance with a validly obtained medical prescription; 16) Refrain from being in a place where illegal drugs are used, sold, trafficked and distributed, being in bars or other licensed premises, including restaurants that have a liquor permit, except to eat a meal; 17) Undergo and complete therapy at Waseskun Healing Center to heal his inner wounds and to treat his anger management, violence and alcohol and drugs abuse issues for a minimum duration of six (6) months in accordance with the terms determined by the Waseskun Healing Center, with the agreement of the supervisor and that, as soon as he is released from the detention center; 18) Respect all the rules and instructions in force at Waseskun Healing Center; 19) Sign this conditional sentence order without delay. [ 93 ] ORDERS a supervised probation for a period of thirty (30) months in all the files, beginning at the end of the conditional sentence order, under the following conditions: 1) Keep the peace and be of good behaviour; 2) Appears before the Court when required to do so by the Court; 3) Notify the Court or the probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change of employment or occupation; 4) Not harass, molest or threaten Iris Awashish and her children; 5) Continue and complete his therapy at the Waseskun Healing Center, if it is not finished, for the duration and in accordance with the terms determined by the Waseskun Healing Center with the agreement of the probation officer; 6) Communicate (or report if required) to a probation officer within five (5) working days after the coming into force of the probation order and therefore, when required by the probation officer and in the manner directed by the probation officer for a duration of thirty (30) months; 7) Communicate (or report if required) to the Justice Committee within five (5) working days after the coming into force of the probation order and therefore, when required by the probation officer and in the manner directed by the Justice Committee for a duration of thirty (30) months; 8) Stay within the Court’s jurisdiction; 9) Be at his residence at the address (to be provided within a minimum of thirty (30) days prior to his departure from the Waseskun Healing Center) between 22:00 and 6:00 for the first six (6) months of the probation order, barring the following exceptions:

a) To receive emergency medical care for himself or a member of his immediate family;

b) To carry on legitimate gainful employment, as approved in writing by his supervisor;

c) To undergo therapy or attend appointments at the requests of the probation officer or the Justice Committee and in accordance with the terms determined by the probation officer or the Justice Committee;

d) For any other serious reason, with the prior authorization of the probation officer or the Justice Committee; 10) Refrain from using alcohol or any other intoxicating substances or having in his possession, except in accordance with a validly obtained medical prescription; 11) Refrain from consuming cannabis and derivatives group or having in his possession, except in accordance with a validly obtained medical prescription, being in a place where illegal drugs are used, sold, trafficked and distributed, 12) Refrain from being in bars or other licensed premises, including restaurants that have a liquor permit, except to eat a meal. 13) Follow the probation officer and the Justice Committee instructions concerning anger management, violence and alcohol and drugs abuse issues; 14) Follow all the recommendations of the Justice Committee regarding restorative measures that could be done respectfully toward his sister Iris, with the consent of his sister Iris; 15) Perform 150 hours of community service within eighteen (18) months and comply with the terms of performance indicated by the probation officer or any other caseworker designated by the probation officer; 16) Sign this probation order without delay. [ 94 ] RECOMMENDS that the probation officer designate the Justice Committee regarding the nature of the community services to be executed and the terms of performance; [ 95 ] RECOMMENDS that the probation officer and the Justice Committee take

part in establishing the measures that should be taken in regards to the accused and exchange any relevant informations; [ 96 ] ORDERS , subject to the precisions to be given at the court hearing, all other mandatory measures prescribed by law. __________________________________ JACQUES LADOUCEUR, J.C.Q.

M e Christian Leblanc Attorney for the prosecutor M e Michel Grenier Attorney for the accused Date of hearing: July 10 and 21, 2020 [21] Statistics Canada, Office of the Correctional Investigator, Indigenous People in Federal Custody Surpasses 30%, Correctional Investigator Issues Statement and Challenge https://bit.ly/3gHf1Sz . The percentage of 30% for provincial prisons is based on 2018 statistics. Statistics Canada, Adult and youth correctional statistics in Canada, 2016-2017 (Updated June 29, 2018) at 5 https://www150.statcan.gc.ca/n1/en/pub/85-002-x/2018001/article/54972-eng.pdf?st=BNOpU3RF