2020 QCCQ 8906, 2020 QCCQ 8906

R. c. Gordon 2020 QCCQ 8906 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF KUUJJUAQ « Chambre criminelle et pénale »

N° : 635-01-019428-201 635-01-019451-203 635-01-019464-206 635-01-019463-208 DATE : December 18, 2020 ______________________________________________________________________ BY THE HONOURABLE PAUL CHEVALIER, J.C.Q. ______________________________________________________________________ THE QUEEN Plaintiff vs MARK JR GORDON Accused ______________________________________________________________________ S E N T E N C E ______________________________________________________________________ [ 1 ] Mark Jr.

Gordon, an Inuk man 41 years old, pled guilty on August 08, 2020 for having assaulted Sophie Savard-Tukkiapik on July 11, 2020 (file 635-01-019428-201), for breaching a condition of a release order, to wit not to consume alcohol, on July 22, 2020 (file 635-01-019451-203), for breaching the same condition of a release order on July 25, 2020 (file 635-01-019464-206), for having, within two hours after ceasing to operate a conveyance, a blood alcohol concentration of 190 mg of alcohol in 100 ml of blood on July 26, 2020, for having on the same date operated a conveyance while prohibited from doing so by an order made on January 7, 2020 under the Criminal Code and for breaching a condition of a release order, to wit not to be in the presence of Sophie Savard-Tukkiapik, on the same date (file 635-01-019463-208). [ 2 ] The Crown asks the Court to impose on accused a sentence of imprisonment of one year on the assault charge, less the preventing custody.

Accused has a history of domestic violence and a lengthy criminal record which demand that the objectives of denunciation, deterrence and separation be given priority. Accused is fully aware that one of his problems is his alcohol abusive consumption, but nothing has been done up to now to address that issue. Three years ago, accused had the benefit of receiving a conditional sentence of imprisonment but he managed to breach it twice before it was cancelled. [ 3 ] Defence counsel considers that accused deserves to benefit again of a conditional sentence of imprisonment.

She relies on the Gladue Report, on the fact that accused is accepted at Centre l'Envolée, a treatment center which provides a closed six month therapy, on the fact that accused started to open up on his problems, is willing to work on his issues, has already tried to seek help before committing the current offences, and on the fact that some identified persons are ready to work with him in the community when he comes back. [ 4 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender and must be individualized, meaning that it should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence and the offender.

The Court must also consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Aboriginal offenders. The sentencing principle of proportionality [ 5 ] As for the objective gravity of the offences, for assaulting Ms. Savard-Tukkiapik, accused is liable to a maximum term of imprisonment of five years.

For breaching conditions of a release order, the maximum sentence is an imprisonment for two years less a day and for the offences related to the operation of a motor vehicle it is an imprisonment of ten years. [ 6 ] As for the subjective gravity of the assault, accused was dragging his victim by the hair in the stairs while she was yelling that she did not want to go, and a third person had to intervene to put an end to it. Ms. Savard-Tukkiapik stated that she was hurt, but it was not

serious [1] . Accused and the victim were highly intoxicated. [ 7 ] They both were again highly intoxicated when they left on a motor vehicle driven by accused who had been prohibited to drive seven months earlier by a court order. [ 8 ] Accused's responsibility is not reduced because of his intoxication since he has been aware of this problem for many years and did nothing to address it. [ 9 ] His « moral culpability varies according to the harm intended or the degree of recklessness or wilful blindness » [2] . To assess that moral culpability, the Court must consider « the unique systemic or background factors which may have played a

part in bringing [accused] in front of the courts» [3] as well as « those related to the [accused's] personality, and the consideration of these factors should not be limited to the period during which the offence was committed » [4] . [ 10 ] Concerning the historic and systemic factors that impacted accused, the Gladue Report reminds us that : Social, political, economic, demographic and territorial upheavals have marked the history of the community of Kuujjuaq since the early 20th century.

Changes that occurred over several centuries in the south of Québec, from first contact to sedentarization (sic), took place in Nunavik in the space of a few generations.

This sudden mutation is reflected today in a range of problems that affect all aspects of the community. [5] [ 11 ] Speaking now of the personal factors that affected accused, without going into the details disclosed in the Gladue Report, let's just say that he grew up in a dysfunctional environment, was 8 years old when his parents separated, was victim of bullying in school during his childhood, was verbally and physically abused by his step-father as a teenager, lacked a stable and structured environment, being often moved from a place to another, dropped out of school at age 16 with only a secondary 2 completed, lost a friend to suicide when he was 17 and started to abuse alcohol weekly at age 17 to forget about his problems.

He never opened up about them, sure that nobody would understand him and thinking he would be able to handle that by himself. [ 12 ] He is the father of 8 children from 6 different mothers, was 18 when his first son was born and had many relationships that ended because his spouses were cheating on him, which brought him to drink more to ease the pain. [ 13 ] He lost a 7 year old child when he was 26, lost a cousin who committed suicide when he was 34 and another one when he was 37, which affected him deeply.

His father passed away in tragic circumstances a month before accused committed the present offences which led him to abuse alcohol to ease the pain. [ 14 ] The different lifelong traumas sustained by accused, coupled with the historic and systemic background factors that affected accused and his community, have impacted his life in a way that bears on his blameworthiness [6] , decreases it and reduces his overall responsibility. The sentencing principle of individualization [ 15 ] The aggravating factors are numerous.

His prior convictions are certainly one: 22 for different offences of assault, 17 for different breaches of court orders, 2 for motor vehicle related offences, to mention only these convictions out of a total of 54 from 1999 to 2020. [ 16 ] The fact that the assault was perpetrated on Ms. Savard Tukkiapik, his spouse, is another one, according to s. 718.2 (a) (ii) Cr.

C. [ 17 ] The fact that the different offences were committed while accused was under several probation orders dated April 30, 2019 and February 11, 2020 constitutes an aggravating factor. [7] [ 18 ] Another aggravating circumstance is the fact that, according to the probation officer who prepared the pre-sentence report, « without active participation [by the accused] in [different] programs and therapeutic follow-up with qualified professionals that aim to resolve the underlying causes of his acts, the risk of violent reoffending will remain high over a short term ». [8] [ 19 ] As for the mitigating factors, accused's plea of guilt one month after being arrested is one. [ 20 ] The fact that he is remorseful, apologized to his victim and for the first time acknowledges his issues and expresses the will to work on them and to seek help for that purpose is another one [9] as well is the fact that he tried to get some help for that before being arrested, showing that it is not a last-minute attempt to have a lenient sentence. [ 21 ] The fact that he has a concrete and realistic plan for coming back into his community after attending a closed therapy shows that he is not making a vain wish and it constitutes a mitigating circumstance. [ 22 ] The fact that he collaborated with the authorities and showed real openness with the writers of the Gladue report and the pre- sentence report is another one.

The sentencing objectives [ 23 ] Primary consideration must be given to the objectives of denunciation and deterrence because accused abused an Inuit woman [10] , because of his lengthy criminal record and because of the aggravating circumstances present here.

[ 24 ] Notwithstanding the importance to be given to those exemplary objectives, the objective of assisting in accused's rehabilitation must receive a special attention since for the first time accused is motivated to change his life and get the necessary help for that. [ 25 ] According to the probation officer, « this would seem to be a genuine motivation. Any program offered should aim at healthy resolution of grief and management of emotions such as anger.

However, this should be envisioned only after, or together, with formal help to work on consumption issues as well ». [11] This is exactly what accused is asking for, to attend a closed therapy « to put an end to his consumption of intoxicating substances » [12] at Centre l'Envolée, a certified resource by the Minister of Health and Social Services. [ 26 ] The objective of separating accused from society is here necessary.

When the numerous sentences of imprisonment in the past did not succeed in achieving the desired deterrence objective, it is then important to separate accused from society, said the Québec Court of Appeal [13] . This objective is also necessary to reflect the importance that must here be given to those of denunciation and deterrence. Both counsels agree to the fact that a sentence of imprisonment of one year would be appropriate, but they disagree on how that sentence should be served. [ 27 ] The objective of providing reparation for the harm done cannot be achieved, but Ms.

Savard-Tukkiapik certainly forgave accused for what he did on July 11, 2020 since she said to the writer of the Gladue report that she hoped he would come back home soon and that she missed him [14] . [ 28 ] Accused's introspection is described by the probation officer as seeming embryonic as well as rudimentary [15] , but at least accused started working on that too since it brought him to insist on apologizing to his victim even if he was prohibited to communicate with her, showing that he acknowledged the harm done. The appropriate sentence [ 29 ] Accused has been preventively detained for 154 days.

According to s. 719 (3) and (3.1), this time spent in custody should be credited and considered as 231 days to be deducted from the time accused will have to serve if sentenced to a term of imprisonment. [ 30 ] For the motor vehicle offences, the Crown is asking for a sentence of 120 days, from which 119 days should be credited, leaving accused to serve one day of detention for those two offences. [ 31 ] The remaining 112 days should be deducted from the period of one year of imprisonment required by the Crown for the assault charge, leaving accused to serve approximately eight more months of incarceration, being then separated from society.

Unfortunately very few programs are available in provincial detention facilities on account of Covid 19 and even if they were available, none of them is an intensive program. Such sentence should also be followed by a probation order. [ 32 ] The sentence of imprisonment suggested by the Defence would separate accused from society for a minimum period of six months while he would have to work on his alcohol consumption on a day-to-day basis, before going back in his community where he would receive guidance and counselling by trusted people to work on his other issues in a more culturally adapted environment.

Such a sentence should also be followed by a probation order. [ 33 ] Keeping in mind that « the fundamental purpose of sentencing is to protect society… » [16] , the Court considers that the sentence proposed by Defence counsel is the most appropriate measure to protect society by ensuring that accused will first get, in a formal, structured and safe environment, the necessary tools to remain sober and then, in a more traditional environment, culturally adapted guidance and counselling aiming at healthy resolution of grief and management of emotions such as anger. [ 34 ] Such a measure will moreover have a rehabilitative and restorative effect, more adapted to accused's Inuit heritage, is a less restrictive sanction than a sentence of incarceration [17] and therefore complies with the sentencing principles enacted by s. 718.2 (

d) and (c). [ 35 ] The conditions for imposing such a sentence are met. The Court is satisfied that it would not endanger the safety of the community. Even though the probation officer considers that accused « would show an underdeveloped level of maturity » [18] , he nevertheless considers accused's motivation to change his life as genuine. [ 36 ] As for accused's maturity, the Court considers that it has certainly developed when we see that he realizes now that his relationship with Ms.

Savard-Tukkiapik does not have a chance to continue [19] and when we read that : Mark knows that when he goes back to Kuujjuaq, he will have important decisions to make. He shares, « Everything will be on the table, I will have to chose wisely what to do. I know I don't have to take all at once. I'm going to say This will put me in trouble, I will leave it on the table.

I will take this other one, more positive, it will keep me safe and happy ». [20] CONCLUSION [ 37 ] In file 635-01-019463-208, for having operated a conveyance with an illegal concentration of alcohol in his blood (count no. 1) and while he was prohibited to operate such conveyance (count no. 3), the sentence of the Court is an imprisonment of 120 days on each count to be served concurrently. An order prohibiting accused from operating a motor vehicle for a period of three years is made, according to s. 320.24 (1) (2) c).

Since accused has been preventively detained for what must be considered to be a total of 231 days, he will have to serve 1 more day of detention, 119 of these 231 days being deducted from the sentence of 120 days. For not complying with a condition of a release order (count no. 6), the sentence of the Court is a term of imprisonment of 30 days, but considering the preventive detention, he will have to serve I day of detention, concurrent with the sentences imposed on counts no. 1 and 3.

[ 38 ] In file 635-01-019451-203, on count no. 2 and in file 635-01-019464-206, for not complying with a condition of a release order, the sentence should be a term of imprisonment of 30 days to be served concurrently, but on account of the preventive detention, accused will have to serve one day of detention. [ 39 ] In file 635-01-019428-201, for the assault on Ms.

Savard-Tukkiapik, the Court imposes on accused a sentence of imprisonment of one year and orders that it be served in the community if he complies with the following conditions : - Keep the peace and be of good behaviour; - Appear before the court when required to do so by the court; - Report to a supervisor within two working days after being transferred to Centre l'Envolée and thereafter when required by the supervisor and in the manner directed by him; - Remain within the jurisdiction of the court unless written permission is given by the supervisor; - Notify the supervisor in advance of any change of name or address and promptly notify him of any change of employment or occupation; - Abstain from the consumption of alcohol or any other intoxicating substance and of drugs except in accordance with a medical prescription; - Abstain from communicating with Sophie Savard Tukkiapik, or from going to her residence, unless it is under the supervision or with the consent of the D.Y.P., or with the authorization of the supervisor; - Answer every phone call to allow the supervisor to verify accused's compliance with the conditions of this order; - Accept to be detained and transferred to a Montréal detention center until being taken in charge by a representative of Centre l'Envolée; - Reside at Centre l'Envolée until the program has been successfully completed for at least six months; - Stay at that resource 24 hours on 24, except with the written permission of the center and then complying with the conditions of the permission; - Respect the rules of the house; - Participate actively in the therapy; - Abstain from communicating or attempting to do so, in any way, with a person who has , to his knowledge, a criminal record, except as part of the therapy at L'Envolée; - For the remaining period of the conditional sentence order, reside at a place approved by the supervisor; - Be at that residence between 10:00 PM and 7:00 AM except for medical reasons and except with the permission of the supervisor; - Follow the recommendations and the directions of the supervisor; - Report, within two working days of his return in the community, to Mary Mesher and Lizzie Ematuluk from the Justice Committee of Kuujjuaq and have a follow-up with them to receive guidance and counselling; - Report, within two working days of his return in the community, to Johnny Jr.

May from Qayak Network and have a follow-up with him to receive counselling; - Attend AA meetings when they resume; - Make reasonable efforts to look for an employment and to maintain it. [ 40 ] This sentence of imprisonment will be followed by a probation order which will be in force for a period of one year.

Accused will have to abide by the following conditions : - Keep the peace and be of good behaviour; - Appear before the court when required to do so by the court; - Notify the probation officer in advance of any change of name or address, and promptly notify him of any change of employment or occupation; - Report to a probation officer within one week after the end of the conditional sentence of imprisonment and thereafter whenever required to do so by the probation officer; - Follow the recommendations and instructions of the probation officer; - Continue to have the different follow-ups aimed at helping him to work on his different issues; - Abstain from communicating with Sophie Savard Tukkiapik, or from going to her residence, unless it is under the supervision or

with the consent of the D.Y.P., or with the authorization of the probation officer. [ 41 ] In this file, the Court is making the order under s. 109 Cr. C. prohibiting accused from possessing firearms and other weapons for a period of ten years, with the exception provided by s. 113 Cr.

C. [ 42 ] In conclusion, accused will have to serve a sentence of incarceration of one day, will have to serve a conditional sentence of imprisonment of one year followed by a probation order for one year, but will remain detained a few more days, since he agrees to that, in order to be transferred as soon as possible to a Montréal detention facility to be taken in charge by a representative of Centre l'Envolée. __________________________________ PAUL CHEVALIER, J.C.Q. Me Joanie Marion For the Crown Me Virginie Dallaire For the accused Date of hearing : December 8, 2020