2012 QCCQ 2794, 2012 QCCQ 2794

R. c. Labbé 2012 QCCQ 2794 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF CHISASIBI “Criminal Division” N°: 640-01-022867-114 DATE: March 26, 2012 ______________________________________________________________________ BY THE HONOURABLE CLAUDE BIGUÉ, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff c.

MARTIN LABBÉ Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ [ 1 ] The accused pleaded guilty to a count of careless use of a firearm (s. 86, C.C.C.). The event took place on April 18, 2010, in Chisasibi, a Cree community located on the James Bay coast. POSITION OF THE PARTIES: [ 2 ] The Crown Attorney proposed a sentence of imprisonment ranging between 18 and 24 months whereas the Defence Counsel suggested a conditional sentence of imprisonment for a period of 8 to 10 months.

THE FACTS: [ 3 ] In the early morning of April 18, 2010, the accused comes back home, intoxicated by alcohol. He got angry the previous night when one of his friends decided not to pay back the money he owed him. [ 4 ] At around 5:50 a.m., he takes a gun, goes outside and shoots two times in the air. [ 5 ] Someone calls Police Officer Bremer, who just heard the same fire shots.

A neighbour also confirms the facts. [ 6 ] Before the police arrive on the premises, the accused goes back into his house, and fires a third shot through the kitchen window. [ 7 ] Upon arrival, the police try to communicate with the accused through a loudspeaker. Then a fourth shot is heard. [ 8 ] The mother goes down to the basement where the fourth shot was heard from. She finds her son in his bedroom, wounded. The fourth shot was aimed at himself. The accused is covered with blood. The mother rushes outside and asks the police to come in. [ 9 ] There is no resistance.

The accused is first taken to the clinic, and later evacuated by air to a Montreal hospital. [ 10 ] The offender stays in the hospital for 8 weeks. He will never totally recover from the self-inflicted injuries to his shoulder. OBJECTIVE GRAVITY: [ 11 ] The maximum jail term for the accusation under

section (86(1)(3)

a) of the Criminal Code (indictable offence) is two years, for a first offender. THE ACCUSED: [ 12 ] Now 30 years old, the accused was 28 when the event occurred. He is single, has no children and has always lived with his mother. [ 13 ] Mr. Labbé was only 13 when his father left Chisasibi to go back to his Innu community located very far from Chisasibi. He never came back and there were few contacts between father and son thereafter. The accused suffered deeply from the separation of his parents and the absence of his father.

[ 14 ] The accused has never been employed. He receives income security. His only occupation is spending periods in the bush, from time to time, to practice traditional activities. [ 15 ] He has no prior convictions. THE PRE-SENTENCE REPORT: [ 16 ] Probation Officer Sylvie Vincent prepared a very well drafted pre-sentence report for the Court. [ 17 ] Mr. Labbé has been abstinent from alcohol since March 2011. He attended a six-week therapy for his alcohol problem. His motivation to stay sober seems to be intrinsic, reports Ms.

Vincent. [ 18 ] He also contacted a social worker for a follow-up with the Social Services. Social Worker Minnie Bullfrog testified and confirmed to the Court that the counselling with Mr. Labbé was successful. She said that she supports Mr. Labbé’s plans for additional alcohol treatment and a follow-up with a psychologist. She added that spending time in the bush will allow Mr.

Labbé to get involved in traditional activities and reach his rehabilitation goals. [ 19 ] Probation Officer Sylvie Vincent also suggested an anger management program, and she considered positively his intentions to work and to cut off ties with his negative friends. She concluded by saying that she believes Mr. Labbé’s plans for the future are pertinent and realistic but that he cannot achieve his plans alone.

AGGRAVATING FACTORS: [ 20 ] The aggravating factors are: ➢ Four gun shots were fired in the village when it was still night time for most members of the community; ➢ The accused was heavily intoxicated by alcohol; ➢ He shot through a window without caring for the fact that the bullets could reach neighbouring houses and people; ➢ Other people were in the house that morning: his mother and his nephew; ➢ Firearms-related crimes occur too often in the Cree communities; it raises many concerns for the safety of other community members and of Police Officers who have to intervene in such situations [1] .

MITIGATING FACTORS: [ 21 ] The mitigating factors are: ➢ The accused pleaded guilty at a relatively early stage of the proceedings; ➢ He already attended a six-week therapy (Onen’to: kon) and has begun regular counselling with a social worker and a psychologist; ➢ He recognizes the gravity of his acts and shows remorse; ➢ He has no prior convictions; ➢ The pre-sentence report is favourable to the accused although “the risk of recidivism is still present”. [ 22 ] The fact that the accused suffered much pain from the injuries he caused himself when he shot his own shoulder is not a mitigating factor [2] .

SENTENCING OBJECTIVES AND PRINCIPLES: [ 23 ] The first sentencing objective is to denounce the misuse of firearms inside a community, and this under the influence of alcohol. It jeopardizes people’s lives. [ 24 ] The second objective of

section 718 C.C.C. is also pertinent: to deter the offender and other persons from committing such offences. [ 25 ] Police Officers in Cree communities have to intervene too often for “gun call” events, without any prior notice, where an offender shoots without caring for the actual threat to people in the surroundings. [ 26 ] When sentencing a native person, a judge must also refer to

section 718.2

e) C.C.C. and consider, where possible, all available sanctions other than firm imprisonment that are reasonable in the circumstances of aboriginal offenders. [ 27 ] This additional sentencing principle, arising from

section 718.2

e) C.C.C. and specific to native people, was considered as “restorative justice” in the case of R. v. Gladue , a decision of the Supreme Court of Canada [3] . Restorative justice reminds that the objectives of social rehabilitation (718 c)) as well as taking responsibility for the harm done to the victims and to the community (718 f)), must also be assessed. [ 28 ] The Court will prioritize the objectives of denunciation and deterrence; then, the Court will give some attention to the objective of rehabilitation since a detailed and realistic plan was proposed.

CASE LAW: [29] In cases involving counts under sections other than the sole

section 86 such as in the present case, the Courts haveconsidered severe jail sentences, especially when shots were fired at persons and near persons, or when the events surrounding theshooting lasted long enough for the police forces to be mobilized around the place of shooting, or when negotiations took place with anaccused barricaded in a house[4]. [30] In some other cases, judges have decided that conditional sentence orders should be granted when no shots or very few shotswere fired, and when the shots were not directly aimed at persons. This was the case in R. v.

Iserhoff[5], amongst others. [31] In the Iserhoff decision, the Court of Appeal considered that a conditional sentence of 16 months was a fit sentence for anoffender who had fired two shots from the window of a house, within 45 minutes. No one was directly aimed at and no one was injured,although some people were in the vicinity. The accused had prior convictions.

The Court of Appeal describes the sentence as a severeone and summarizes the decision of Judge Roy as follows:[6] “Qualifiant d’extrêmement graves les gestes posés par l’appelant, le juge de première instance conclut d’abord qu’une peined’emprisonnement s’impose. Il tient, toutefois, compte de la priorité donnée dans les cultures autochtones à une approche corrective dela détermination de la peine, tel que préconisé par l’arrêt R. c.

Gladue, (1999) (SCC), 1 R.C.S. 688, de la Coursuprême, en imposant à l’appelant une peine à purger dans la communauté.” [32] In the case of Charlie Kumarluk, there was only one shot but the shot was aimed at a house, and reached it; it was at night,and the house was occupied by many persons. The accused, who had prior convictions, was sentenced to a conditional sentence order of22 months[7]. [33] In the case of R. v.

Blackmith, Judge Lucille Chabot expresses how serious gun call events have become in the communities: “Those kinds of crimes (careless use of firearms and other counts of misuse of guns) put at risk the whole community.” (p. 26) “When the files are in front of the Court, it is almost too late. The only thing the Court can do is to denounce (those crimes). It is veryworrying to see how it seems easy to have access to firearms even by people under the influence of alcohol… People of this communityhave the right to live peacefully.” (p. 27)[8] ANALYSIS: - The length of detention: [34] Four shots were fired.

The first two shots were fired in the air, but in an inhabited surrounding. On the third short, through awindow, the offender did not pay attention to where the bullet could land; there was no specific aim, but there were other houses in thevicinity. The fourth shot reached a human person, the offender himself, who admits to attempting suicide. The whole sequence of eventslasted only 18 minutes, from 5h30 to 6h08 a.m. [35] This case is somewhat more serious than Iserhoff.

Then, taking into consideration the comment of the Court of Appeal inIserhoff, qualifying the sentence a severe one, I conclude that a detention period of 18 months will be a fit sentence in this case ofcareless use of a firearm (s. 86). - Detention in jail or in the community: [36] It is the duty of the Court to assess all available sanctions other than imprisonment that are reasonable concerning a nativeperson, as set out in

section 718.2

e) C.C.C. This means for the Court to consider granting the opportunity of a conditional sentenceorder, which implies detention in the community instead of in jail. [37] The pre-sentence report confirms that Mr. Labbé’s plans for the future are pertinent. Well supported, the offender will not beat risk in the community. [38] The offender does receive support from a social worker. His mother testified to be fully supportive of her son; however, theProbation Officer added in a final note that Mr.

Labbé should be more independent from his mother, with whom he has lived all his life.In this view, the offender could benefit from greater integration into the community. [39] This goal can be achieved, hopefully, by performing community work, and also by referring the offender to the members ofhis community that accept to be involved in offender rehabilitation through the Justice Committee. [40] The Justice Committee members will decide whether they can be of help to the offender. If they believe so, they will decideon the frequency of their intervention with Mr.

Labbé. [41] As part of his rehabilitation, the offender will have to address two paramount issues, that is, alcohol abuse and angermanagement. [42] A supervised period of probation will apply after the conditional sentence order, for a period of 24 months (2 years). [43] FOR THESE REASONS, THE COURT: [44] SENTENCES the accused to a detention period of 18 months to be served in the community, under the terms and conditionsappearing in the formal minutes of this case, including: ➢ 9 months of house arrest;

➢ 9 months of curfew (10 p.m. to 6 a.m.); ➢ 100 hours of community work, to be performed within 9 months; ➢ Attend two treatment programs, regarding substance abuse and anger management; and take formal steps to register to these programs within 30 days; ➢ Follow the instructions and report to the supervisor on the therapies and treatment; ➢ Take steps to spend time in the bush with an elder or another reliable person, in agreement with the Probation Officer, and report on it to the Probation Officer upon each return from the bush; ➢ Meet with the Justice Committee members within a delay of 5 days from today, and thereafter, as scheduled by the Justice committee of Chisasibi, and in the manner instructed by the Justice Committee; ➢ Continue to meet with the Social Services on a regular basis, as scheduled; ➢ Continue to meet with a psychologist on a regular basis, also meet with a psychiatrist and follow their instructions; ➢ Take the necessary steps to find a job or return to school, and submit proof to the supervisor on request. [ 45 ] ORDERS that, at the end of the conditional sentence order, a supervised probation will apply for 24 months, under the terms and conditions appearing in the formal minutes of this file, including: ➢ The probation will be supervised; ➢ Report to the Probation Officer within 5 working days following the end of the conditional sentence order and thereafter, when required by the Probation Officer and in the manner directed by him or her; ➢ Follow the instructions set out by the Probation Officer, namely but not exclusively on substance abuse and anger management therapy and treatment, and report on these to the Probation Officer. [ 46 ] PROHIBITS Mr.

Martin Labbé from having in his possession any firearms, ammunitions or explosive substances for a period of 4 years, pursuant to

section 110 of the Code, except for traditional hunting (s. 113 C.C.C.). [ 47 ] WAIVES the victim’s surcharge. __________________________________ CLAUDE BIGUÉ, J.C.Q. Me Mélanie Gagné Crown Prosecutor Me Claude Beaudet Defence Counsel Dates of hearing: January 18, and March 26, 2012