r v. LAWRENCE SPENCER, 2019 QCCQ 1821

R. c. Spencer 2019 QCCQ 1821 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF VAL-D’OR “Criminal and Penal Division” No: 615-01-026699-176 DATE: January 31, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE RENÉE LEMOINE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

LAWRENCE SPENCER Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On April 20, 2018, the accused, Lawrence Spencer, pleaded guilty to a charge of aggravated assault against K. P., committed on April 9, 2016, under

section 268 of the Criminal Code (the Code ). THE POSITIONS OF THE PARTIES ON SENTENCE [ 2 ] The accused submits that a jail sentence is not necessary to achieve the goal of sentencing in this case. The principles of Gladue and Ipeelee must be applied. Under

section 718.2 (

e) of the Code , the Court must consider alternatives to incarceration for indigenous offenders. [ 3 ] Crown counsel is of the view that a 12 months’ jail term should be imposed along with 24 months’ probation. THE OBJECTIVE GRAVITY OF THE OFFENCE [ 4 ] The offence of aggravated assault carries a maximum sentence of 14 years’ imprisonment. THE ACCUSED [ 5 ] The accused is 21 years old. He has no criminal record. He is a young Cree native from the community of Chisasibi. He is the father of a 6-month-old baby.

THE PRE-SENTENCING REPORT [ 6 ] The pre-sentencing report gives the Court a more complete portrait of the accused’s situation. [ 7 ] He grew up in a well-respected family in their community with strong pro-social values. His father and grandfather taught him about traditional life and hunting. The bush and traditional life have an important place in his life. [ 8 ] According to the probation officer, the family strongly supports him and is optimistic about the accused’s rehabilitation. [ 9 ] The accused experienced a few traumatic events in the past.

The probation officer suggested that there are unresolved issues concerning one of the events. It would be important to evaluate their effect on the offender. [ 10 ] As for his alcohol consumption, the accused decided to quit drinking when his baby was born. He still uses marijuana on a regular basis. He does not use it while he is at work or miss work because of it. [ 11 ] The accused works for a construction company in his village.

He is a valued employee who is perceived as a hard worker and reliable. [ 12 ] In her assessment of the accused’s criminal conduct, the probation officer stated the following: […] we find that the offender’s introspective capacity as well as his level of awareness are lacking but respond well to intervention and

any reinsertion plan will need to benefit from a program of sensibilization on violence and its effects. The offender does possess empathy, however his capacity of empathy is also lacking as it distinguishes between innocent and non- innocent victims. For victims that he considers innocent, he is able to understand how they feel and will even intervene, as he would when he was a child, to help others that were being bullied. However, he shows little empathy for victims that he feels deserve what they get as they would have wronged someone.

He tells us he would never hurt anyone innocent and would even take their defense, but that someone who wrongs deserves what happens to them. It will be imperative that he work as such to raise his awareness of the implications and effects of his dynamic, and the effects for the victim. [ 13 ] After hearing the victim’s testimony, the undersigned asked him specific questions on that matter. It appears that he can be sensitive and realizes the impact of his violence on the victim.

Despite this progress, it is still important that he benefit from a program of sensitivity training regarding violence and its effects, as recommended by the probation officer. [ 14 ] The probation officer stated that the risk of reoffending is linked to the accused’s participation in a program to help him develop a greater sense of responsibility for the consequences of his acts on potential victims. His active participation in a program would aim to resolve the underlying causes of these acts and develop genuine feelings of remorse.

She stated, “without this development, the risk will remain moderate over the long term”. THE GLADUE REPORT [ 15 ] The Gladue report contains the same information as the probation report. It is useful to reproduce the

summary and proposed recommendations of that report:

SUMMARY AND PROPOSED RECOMMENDATIONS Based on interviews with family members. Grandmother Lilian and girlfriend were not available for interviews for this report. Considering that Lawrence is still a young man and has led a quiet life till recently, there is not too much to say about this young man. Lawrence a 21 year old Indigenous young man who comes from a Cree community called Chisasibi, a community situated at the mouth of the La Grande River, with a population of approximately 5000 people.

Chisasibi is a small Cree community which was called Fort George before the community members were moved to the mainland, Fort George was on an island, established by the Hudson’s Bay fur traders. Lawrence lives with his girlfriend Chelsea-Grace and their son hunter who is six (6) months old this month, sometime they will stay at his parents place or at Chelsea-Grace’s home also at the place where he lives at his grand-mother Lillian’s home. Lawrence does not go to school he does not see himself continuing his education anytime soon.

He does have a full time job working as a laborer for a local construction company called Mookabi Construction for about a year now. Lawrence helps with the raising of his son, by purchasing things that a baby would need, buys groceries for the family. When his parents and siblings moved out of the grandparent’s home to their new home, he stayed behind to help and comfort his grandmother Lillian who had recently lost her husband at her request to which Lawrence agreed to.

Although he still smokes marijuana, Lawrence has lowered his consumption of alcohol to a minimal to every other weekend recently since the incident he has not consumed any alcohol. Although he works full time he still manages to go out on the land hunting n trapping providing traditional food for his immediate and extended family. Lawrence does not have any priors in the court system. Although he does not show any remorse about the incident in Val D’or, he says he does feel sorry for the victim.

RECOMMENDATIONS The following rehabilitation, restorative and healing recommendations are presented to the court to be examined as possible alternatives so that deterrence might be achieved with detention, and that in some facilities there are no services available that would help him deal with his issues if does have some and his chance of rehabilitation, also there is the chance of language barrier as his English is limited. 1. That Lawrence meet with the Justice Committee at least once a month or when requested by the Justice Committee 2.

That Lawrence follows all recommendations requested by the Justice Committee regarding his rehabilitation. 3. That Lawrence attend the Elders Bush Program when it is available. 4. That Lawrence continue his journey of sobriety and that he seek help if and when he should need it. (Exact reproduction) THE EVIDENCE ON SENTENCING [ 16 ] The parties admit the following facts: 1. The Cree Nation minor hockey tournament took place in Val d’Or from April 8 th , 2016 to April 10 th , 2016;

2. Many people from every Cree nations were in Val d’Or during that week-end; 3. On the night from April 8 th to April 9 th , the accused, Lawrence Spencer, Tristan Snowboy, Keana Otter and Calsey Matoush were hanging out together; 4. Tristan Snowboy and the accused knew each other and they met the girls in town; 5. Tristan Snowboy turned 18 on that night; 6. They spent the night drinking alcohol together; 7. At some point during the night, one of the four members’ crew would have asked to K. P. to find them some weed; 8. They would have gave him cash in order to do so; 9.

At some point, the individuals would of been unsatisfied of the steps taken by K. P. in order to find them weed; 10. They got mad and started harassing him; 11. By then, there is an altercation that is caught on tape by an apartment entry video camera; 12. We can see Lawrence Spencer, Tristan Snowboy, Keana Otter and Calsey Matoush harassing the victim K. P.; 13. The victim is trapped in corner’s entrance room for a few minutes; 14. At some point Tristan Snowboy and the accused are molesting the victim; 15.

At 5h32min, the victim tries to escape from the forcible confinement by pushing Tristan Snowboy and he is held still in the corner by the accused and his accomplice; 16. The accused and Tristan Snowboy then lift him up the wall while the victim tries to protect himself in order to escape; 17. The altercation gets really violent and the victim is getting beaten up by the accused, Tristan Snowboy and an accomplice; 18. The accused is throwing several punches at victim’s head; 19. Calsey Matoush and Keana Otter steal items in victim’s pocket and backpack while Tristan Snowboy and the accused keep beating him up; 20.

They stole beers, cash, meds and a cellphone; 21. Calsey Matoush tries to block the camera view with a hat; however we still can see parts of what is going on; 22. The victim is beaten up for about five minutes; 23. The robbery will stop because neighbors will hear yells, get out of their apartment and call the police; 24. The victim will suffer serious injuries including a broken nose; 25. The victim says he lost consciousness during the altercation and he was transported to the hospital; 26. Police officers as well as the medical staff noticed that he was conscious when they saw him; 27.

He stayed in hospital for a day and the victim said he had to go under surgery later on because he had hard times breathing within the next few days after the beat up; 28. The accused gave a statement saying he remembers punching him four times in the face and kicking him twice in the body; 29. He also said that they were intoxicated by alcohol on that night; 30. Tristan Snowboy pled guilty on September 25 th , 2017 in Kuujjuarapik / Whapmagoostui, his hometown, to a count of robbery; 31. He has been sentenced: a. 9 months of custody followed by: b.

A 24 months supervised probation including the specific condition to perform a 150 hours of community service; c. A prohibition to have any firearm for a period of 10 years (+ 113) d. A DNA sample to be provided within 60 days. 32. He pled guilty on first reasonable occasion after negotiations between two defence lawyers and Jonathan Tondreau Lord after discussions with his father, policeman Gordon Snowboy. (Exact reproduction)

(Anonymization of the Court) THE VICTIM, K. P., TESTIFIED ON THE SENTENCE [ 17 ] He explained that he lost consciousness during the assault. He suffered serious injuries. He had a broken nose and pain in the back, ribs and neck. He took medication (morphine) for three or four weeks. He had difficulty sleeping for almost one month. He refused to leave his residence for a few weeks because he was disfigured. He did not go to the hospital for surgery for his broken nose as planned. [ 18 ] As for the psychological consequences of the event, K. P. stated that he has a very difficult family life.

Because of his past, he feels unsafe and anxious. The assault aggravated that situation. After the event, he became depressed and medication was prescribed for a period of six months. [ 19 ] Recently, he underwent seven months of therapy for addiction. Since his return to his community of Lac Simon, he has obtained an attestation of equivalence of Secondary V. He has also completed vocational training. [ 20 ] The Court also watched the video of the assault. We can see the high level of violence used during the assault.

The picture clearly shows that the accused actively participated in the assault by punching and kicking the victim in the head. It was a group attack and the victim was alone in a very vulnerable situation. [ 21 ] The picture of the victim showed that he was unrecognizable because of the swelling in his face. THE LAW [ 22 ] The purpose and principles of sentencing are contained in sections 718 and following of the Code . [ 23 ] More specifically,

section 718 states that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.

Those sanctions should have one or more of the following objectives: to denounce unlawful conduct and the harm done to victims or to the community, to deter the offender and other persons from committing offences, to separate offenders from society, when necessary, to assist in the rehabilitation of offenders, to provide reparations for harm done to victims or to the community, and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 24 ] The fundamental principle of sentencing is contained in

section 718.1 of the Code , which states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 25 ] Of course, sentencing is an individual process in which all the relevant factors provided for in the Code must be considered. [ 26 ] The method proposed by the Supreme Court of Canada in the case of Indigenous offenders requires the Court to examine several aspects described as follows in Gladue : [1] 80 As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offense, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?

What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offense? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown?

Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? 81 The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence.

The sentencing judge is required to take into account all of the surrounding circumstances regarding the offense, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstances in light of the aims and principles of sentencing as set out in

Part XXIII of the Criminal Code and in the jurisprudence, the judge must strive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2( e ), sentencing judges have been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration which are appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing. In this way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender. [ 27 ] In R. v.

Ipeelee , [2] the Supreme Court of Canada indicated that judicial notice of the systemic and background factors must be taken. Given the Court’s hesitation to heed that directive, the Supreme Court listed the background elements that have an impact on understanding the situation of indigenous offenders and on determining an appropriate sentence.

These include, in particular, the history of colonization, displacement, residential schools, and how that history still affects the community today in the form of the lower level of education, lower income, higher unemployment, higher rates of substances abuse and suicide, and higher levels of incarceration for First Nations’ members. [ 28 ] It is also important to underline that the offenders do not have the burden of proving a causal link between the systemic and background factors and the commission of the relevant offence. [3] [ 29 ] In the present case, the accused grew up in a functional family.

Nevertheless he was impacted by some systemic or background factors. He has a low level of education. He was exposed to the social and collective impacts in the community through various events

such suicide of two of his friends and also a situation of abuse at the age of sixteen. He is also a member of a community who has an over representation of social ills. [ 30 ] In the case of Gladue , the Supreme Court stated that the particular circumstances of indigenous offenders “suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction”. [4] [ 31 ] Recently the Quebec Court of Appeal in Denis-Damée [5] reminded us that the framework established in Gladue contains two different aspects: [ translation ] [ 67 ] … (

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. [6] [ 32 ] At paragraph 70, the Court of Appeal added the following: [ translation ] [70] In Gladue , the highest court in the land found that Aboriginal people hold different conceptions on the subject of appropriate sanctions in an Aboriginal context. It explained, among other things, that most traditional Aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice and that this tradition is extremely important to the analysis under s. 718.2 (

e) of the Criminal Code 43].

It is often the case that imprisonment is not an appropriate solution for Aboriginal offenders or their communities, particularly for less serious or non-violent offences Nevertheless, in that same decision it is noted later that: “Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant.” AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 33 ] The Court considers the following elements as aggravating factors: − The high level of violence; − The vulnerability of the victim, who was attacked by four individuals including the offender; − The consequences for the victim (physical and psychological consequences); − The active participation of the accused in the attack; − The risk of reoffending cannot be completely ruled out; [ 34 ] As for the mitigating factors: − The guilty plea of the accused and his collaboration; − His young age; − The fact that he has no criminal record; − His potential for rehabilitation; − His sobriety; − The particular circumstances of the accused as an indigenous offender; ISSUES [ 35 ] What is the appropriate sentence for this young Cree man, who is a first offender and pleaded guilty to a violent offence? [ 36 ] The Court acknowledges that the Crown’s suggestion to impose imprisonment is in line with the range of sentences for this type of offence. [ 37 ] The Court’s discretionary power is limited by the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

R. v. Nasogaluak [7] states that the ranges of sanctions for certain offences are nor hard-and-fast rules, but guidelines. Sentencing judges must ensure that they adhere to the principles and objectives of sentencing. [ 38 ] In that regard, Ipeelee [8] reiterates that the parity principle in

section 718.2 (

a) demands that any disparity be justified. Different sanctions for Indigenous offenders are justified by the offender’s unique circumstances. The Supreme Court confirmed that the parity principle must not undermine the remedial purpose of

section 718.2 (e).

[39] The defence’s recommendation not to impose imprisonment raises the issue of the application of the principles of Gladue, in theevent of serious or violent crime. [40] The Supreme Court in Ipeelee stated that the courts erroneously interpret the principles in Gladue as not applying to serious orviolent crime. The Supreme Court wrote: [84] The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of theGladue principles to sentencing decisions for serious or violent offences.

As Professor Roach has indicated, “appellate courts haveattended disproportionately to just a few paragraphs in these two Supreme Court judgments — paragraphs that discuss the relevance ofGladue in serious cases and compare the sentencing of Aboriginal and non-Aboriginal offenders” (K. Roach, “One Step Forward, TwoSteps Back: Gladue at Ten and in the Courts of Appeal” (2009), 54 Crim. L.Q. 470, at p. 472).

The passage in Gladue that has receivedthis unwarranted emphasis is the observation that “[g]enerally, the more violent and serious the offence he more likely it is as a practicalreality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking intoaccount their different concepts of sentencing” (para. 79; see also Wells, at paras. 42-44). Numerous courts have erroneously interpretedthis generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), (ON CA), 164 C.C.C. (3d) 569 (Ont.

C.A.)). [41] In R. v. Peters[9], the Court of Appeal of Ontario shows that it is possible to conclude that incarceration is not an appropriatesanction, even in the case of serious crime committed by an Indigenous offender. The Court of Appeal concluded that the sentencingcorrectly weighed the applicable principles and objectives in reaching that conclusion. [42] The Court takes into consideration the young age of the offender and his potential for rehabilitation.

It is true that he needssome counselling to fully understand his responsibility and the consequences of his behaviour, but the Court believes that the programrecommended by the probation officer and the follow-up with the Justice Committee and the probation officer will achieve thatobjective. [43] The Court is also of the view that a substantial quantity of community work will have to be performed to repair the harm done. [44] In fact, the Court adopts a restorative approach that will be a more appropriate sanction for the circumstances of the offender asan indigenous person and more significant given his Aboriginal heritage. [45] The Supreme Court of Canada stated in Gladue that the restorative approach is not necessarily a more lenient sentence.

Inparagraph 72, the Court stated: 72 The existing overemphasis on incarceration in Canada may be partly due to the perception that a restorative approach is a morelenient approach to crime and that imprisonment constitutes the ultimate punishment. Yet in our view a sentence focussed on restorativejustice is not necessarily a “lighter” punishment.

Some proponents of restorative justice argue that when it is combined withprobationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence. […] [46] The Court strongly recommends that the victim be part of the holistic approach if it is possible, subject to his acceptance, toparticipate in that process.

It could be a letter of apology prepared by the accused or any other steps to ensure that the accused takes hisresponsibility toward the victim, all under the supervision of the probation officer. [47] The sentence will be a suspended sentence with a probation for a period of two years with the following conditions: − Report to the probation officer within five working days and thereafter in the manner directed by the probation officer; − Follow counsel and recommendations given by the probation officer regarding drugs or alcohol issues and anger managementissues, and any program to develop a greater sense of responsibility; − Report to the Justice Committee within five working days; − Meet the Justice Committee at least once a month or when requested by the Justice Committee; − Follow all the recommendations of the Justice Committee and get guidance and traditional counseling; − Take the steps to meet the NNADAP worker and attend a therapy; − Follow the recommendation of the NNADAP worker; − Take the necessary steps to apologize or to take the responsibility of your act toward the victim, under the supervision of theprobation officer; − Attend the Elders Bush Program as soon it will be available and report to the probation officer of the completion of the program; − Performs 200 hours of community works within a delay of 18 months; − Prohibition to communicate directly or indirectly with K.

P., except with his consent and through the supervision of the probationofficer for the purpose of the healing process; − Prohibition to go to the residence of K. P. or at any place where K. P. can live; − Prohibition to be in a public place where K. P. will be [48] ORDERS that the accused be prohibited from possessing firearms under

section 109 of the Code for a period of 10 years,

except under

section 113 of the Code for hunting or traditional activities for sustenance or the sustenance of the family; [ 49 ] ORDERS that the accused provide a bodily substance for the purpose of DNA analysis within a delay of 60 days, at the detention center or at the Chisasibi police Station. Signed in Val-d’Or on February 1, 2019 __________________________________ RENÉE LEMOINE, J.C.Q. Mtre Clara-Élodie De Pue Attorney for the prosecutor Mtre Claude Beaudet Attorney for the accused Date of hearing: August 31 and December 7, 2018