R. v. Bird, 2018 QCCQ 8863

Translated from the original French R. c. Penosway 2018 QCCQ 8863 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No.: 500-01-179011-181 DATE: November 23 rd 2018 ______________________________________________________________________ BEFORE THE HONOURABLE DENNIS GALIATSATOS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

GERMAIN PENOSWAY Accused ______________________________________________________________________ DECISION ON INTERIM RELEASE ______________________________________________________________________ Note* : this decision was originally rendered in French on November 23 rd 2018, before the Supreme Court of Canada released its judgment in R. v. Bird , 2019 SCC 7 . As such, caution must be exercised when reading paragraphs 5, 55-56, 63-71, 135, 166-173 below. *Editor’s note: Footnotes 21 and 83 have been modified from their original French version. INTRODUCTION [ 1 ] Mr.

Germain Penosway is facing three charges: [ translation ] Count 1: Between August 4 th 2018, and August 6 th 2018, in Montreal, District of Montreal, while subject to a supervision order under s. 753.1(3) of the Criminal Code in file number 615-01-01334-076, did fail or refuse to comply with the order’s terms, namely: to reside in a community correctional centre, thereby committing the indictable offence set out in s. 753.3(1) of the Criminal Code .

Count 2: Between August 4 th 2018, and August 6 th 2018, in Montreal, District of Montreal, while subject to a supervision order under s. 753.1(3) of the Criminal Code in file number 615-01-013334-076, did fail or refuse to comply with the order’s terms, namely: to obey a curfew between 11:00 pm and 6:00 am, thereby committing the indictable offence set out in s. 753.3(1) of the Criminal Code .

Count 3: Between August 4 th 2018, and August 6 th 2018, in Montreal, District of Montreal, while subject to a supervision order under s. 753.1(3) of the Criminal Code in file number 615-01-013334-076, did fail or refuse to comply with the order’s terms, namely: to abstain from consuming, procuring or possessing alcohol, thereby committing the indictable offence set out in 753.3(1) of the Criminal Code . [ 2 ] The prosecution objects to Mr.

Penosway’s release, arguing that his detention is necessary on the basis of all three grounds listed at s. 515(10) of the Criminal Code . [ 3 ] The defence, for its part, submits that the accused will attend his trial, that the protection of the public is not at risk, and that this is not a case where interim detention is necessary to maintain the public’s confidence in the administration of justice.

[ 4 ] Counsel for both parties agree that under s. 515 C.C. , the Crown bears the onus of establishing – on the balance of probabilities – that the detention of the accused is justified on one (or more) of the 3 criteria stipulated by Parliament. [ 5 ] As set out in detail below, during the hearing, the accused placed great emphasis on the eventual defence he intends to present at trial. This factor will have a significant impact on the analysis of the second and third grounds of detention. THE FACTS 1 - The origin of the long-term supervision order [ 6 ] On June 23 rd 2009, in the district of Amos, the accused was convicted of assault (s. 266(

a) C.C. ) and sexual interference (s. 151 C.C. ).

The Honourable Bigué J. imposed an overall sentence of 40 months, 8 months of which were attributed to the count of assault and 32 months to the count of sexual assault, to be served consecutively. [1] [ 7 ] In addition to the ancillary orders made under ss. 109 and 161 of the Criminal Code , the judge found the accused to be a “long- term offender” under s. 753.1 C.C. and imposed a long-term supervision order [2] for the maximum period of 10 years. [ 8 ] Without the benefit of Bigué J.’s reasons, the parties simply indicated to the Court that the victim had been a minor and that she had sustained serious injuries from the assault, during which the accused had been intoxicated. [ 9 ] Among the conditions of the L.T.S.O. currently applicable to the accused [3] are the following prohibitions: - Remain in a community correctional centre or community residential facility, or in another residential facility approved by Correctional Service Canada, for a period of 180 days and follow the program. [4] - Obey a curfew between 11:00 pm and 6:00 am, except for work-related purposes upon written authorization of your parole supervisor. - Abstain from consuming, procuring or possessing alcohol. - Prohibition from being on the territory of the Kitcisakik community (Lac Dozois and Grand Lac Victoria). - Follow the treatment plan/program established by your parole supervisor in the following fields: sexual deviance and/or substance abuse. - Travel perimeter authorized by the Metropolitan Montreal District: unless in possession of a valid travel authorization, the parolee must remain in the Province of Quebec, within a radius of 50 km from the Hochelaga CCC, located at 6905 Hochelaga Street, Montreal, H1N 1Y9. [ 10 ] The end of the L.T.S.O. was initially scheduled for 2019.

As a result of various suspensions and intervening sentences imposed on the accused because of his breaches, the order is now scheduled to end in 2023. 2 - The evidence in support of the new charges [ 11 ] The conditions of the L.T.S.O. are such that the accused must always report, announce and confirm his whereabouts and movements to his parole officer. [5] [ 12 ] On August 4 th 2018, at 11:43 am, he informed his P.O. that he was leaving the Community Correctional Centre [6] to go to the library. Later, at about 6:39 pm, he informed the P.O. that he was going to go for a walk on Ste-Catherine Street.

That was the last contact with the accused. [ 13 ] At 11:03 pm, the P.O. noted the accused’s failure to report and the fact that he was now in breach of his curfew. Given the accused’s history of non-compliance, the P.O. took steps for the immediate issuance of an arrest warrant. [ 14 ] Correctional Services did not hear from the accused on August 4 th , 5 th or 6 th 2018; they kept trying to locate him. [ 15 ] On August 6 th 2018, at 11:40 am, a P.O. contacted the accused’s employer, who immediately put her in contact with the accused.

During their telephone conversation, the accused admitted that he [ translation ] “screwed up,” but refused to elaborate further when questioned by the officer. He finally agreed to return to the C.C.C. on his own volition to discuss the situation with the authorities. The P.O. therefore gave him a chance to return without dispatching the police on site. [ 16 ] Some four hours later, however, despite his promise and the chance he was given, the accused had yet to return to the Centre.

On the contrary, at approximately 3:50 pm, SPVM officers received a 9-1-1 call from a woman in a shelter complaining that two men had entered her apartment. [7] On the scene, the police found the accused and another man. [8] [ 17 ] During the investigative detention of the two suspects, the police officers discovered that a warrant was outstanding for the accused – for fleeing the C.C.C. During his arrest, the accused was initially cooperative but then became aggressive, clenching his fists and raising his voice. Handcuffing him was challenging; the officers had to repeat their instructions several times.

The accused had to be handcuffed behind his back. Nevertheless, he moved around in an aggressive manner in the patrol car, refusing to be searched or let the

police officers fasten his seatbelt for the transport. [ 18 ] During his apprehension, Mr. Penosway threatened one of the police officers, saying: [ translation ] “I’m going to break your head, your brain and your spirit.” [ 19 ] The police officers noticed a strong smell of alcohol from the accused’s breath.

During the transport to the operational centre, the accused spat out the window onto the street. 3- The accused’s personal circumstances [ 20 ] In addition to the offences that gave rise to his L.T.S.O., the accused had a prior conviction – as a youth – for sexual assault in September 2006, for which he was sentenced to four months of detention and two months of supervision, followed by two years of probation. [ 21 ] Since his L.T.S.O. took effect, the accused has been found guilty of breaches 12 times under s. 753.3(1) C.C ., which is the same offence that he is currently accused of.

For each breach, he was sentenced to a long custodial sentence, in addition to the interruption of time remaining on his L.T.S.O.: - May 25 th 2010 → 2 counts → 9 months’ imprisonment; [9] - November 25 th 2011 → 3 counts → 11¼ months; [10] - December 20 th 2012 → 2 counts → 13 months; [11] - March 13 th 2015 → 3 counts → 16 months; [12] - January 6 th 2017 → 2 counts → 15 months. [ 22 ] He also has prior convictions for assaulting a peace officer (s. 270(1) C.C. – 2 counts) in 2012 and obstructing a police officer in the execution of his duties (s. 129 C.C. ) in 2015. [ 23 ] Moreover, in addition to the breaches he was accused and convicted of, he violated his conditions on other occasions and was given administrative suspensions and/or warnings by the Correctional Services. [ 24 ] In his most recent assessment by the Correctional Service of Canada, dated August 31 st 2018, [13] the P.O. stated that the official documentation describes close to 40 complaints regarding sexual offences committed while he was staying at group homes during or after running away, but for which he was never formally charged. [ 25 ] She describes the accused’s criminality as [ translation ] “precocious, serious and persistent”.

She adds the following: [ translation ] His criminal conduct is motivated by the immediate gratification of his own needs or is in response to accumulated frustrations that he is unable to assuage. When committing the act, he does not hesitate to use manipulation, intimidation or violence. His cycles of delinquency are characterized by his aggressiveness, impulsivity, low tolerance to frustration, poor management of his negative emotions and his problematic sexual attitude. [ 26 ] The accused has been the subject of several psychiatric assessments.

According to the specialists, there is a substantial risk that Mr. Penosway will reoffend, both violently and sexually. The most recent assessment found that the accused had a profile of sexual deviance and found the risk of reoffending to be [ translation ] “very high”. [ 27 ] During certain transitional periods, the accused seemed to be taking steps towards achieving his goals. It is however difficult for him to move from words to actions.

In the face of this cycle, which continues to repeat itself over and over again, the P.O. is of the view that [ translation ] “the prognosis for social reintegration is rather bleak, especially since he is not considered to be committed to a process of change.” [ 28 ] In addition to his many breaches of condition, the accused has accumulated many disciplinary write-ups while in detention, requiring many security interventions. He was even placed in administrative segregation on a few occasions.

He engages in intimidating, aggressive and threatening behaviour with staff. [ 29 ] Finally, in her strategic supervision plan, the P.O. explains the following: [ translation ] [T]he respondent shows fluctuating motivation to get involved in a process to help him reconnect with his cultural identity (follow-up with an elder, Aboriginal activities while in custody). These activities could allow him to re-establish contact with his roots, make peace with his past and achieve a healthy lifestyle, free of criminality. In light of this information, we are of the view that given Mr.

Penosway’s evolution since the beginning of his sentence, his inability to take himself in hand and the absence of significant progress in regard to his contributing factors, it is impossible for us to manage the risk he represents in the community at this time. Up to this point, the interventions and structure proposed have had no impact on the problematic elements of his cycle of delinquency that could lessen the risk he represents in the longer term.

Finally, in view of the fact that he continues to engage in problematic conduct, even with a strict structure, we can only conclude that the supervision strategies are

not effective in this case. [ 30 ] The Court also notes that the Correctional Services assessment report describes the accused’s incredibly difficult past and refers to the very significant social problems experienced by Aboriginal persons, which are passed down from one generation to the next. The assessor also considered the fact that First Nations persons have been ostracized by white people, and the consequences of their conduct can still be seen in Aboriginal communities.

The trauma that the accused suffered during his youth (sexual, physical and psychological abuse) no doubt contributed to his cognitive distortion and his hostility towards his community, the members of his family and authority figures. The trauma he suffered contributed to the emergence of a feeling of loss of cultural identity similar to that experienced by First Nation persons who went through the residential school system.

He witnessed the devastating impact that substance abuse had on the members of his community, and it can be assumed that he started consuming intoxicating substances under their influence or by imitation. 4- Testimony of the accused’s mother [ 31 ] The accused’s mother travelled from Kitcisakik to Montreal to testify at the interim release hearing. She has six children, all adults. [ 32 ] Kitcisakik is located 90 km south-east of Val-d’Or, or 230 km from Rouyn-Noranda.

It is a village where the inhabitants live in poorly insulated, mostly one-room, shacks without running water, electricity or toilets. [14] The population is between 300-430 inhabitants. [ 33 ] The accused’s mother experienced the Aboriginal residential schools and group homes. She struggled with alcoholism in the past. In fact, it was her parents who raised Mr. Penosway, who also went through the boarding school process. [ 34 ] All their ancestors have always lived in Kitcisakik.

She continues to live there today and works as a cook and educator in a daycare centre. [ 35 ] She explained that Algonquin culture is very important in their community. Their culture and customs are very traditional, focusing on trapping, fishing, moose hunting and nature.

What is most essential for them is the forest; it plays an essential role in their fulfilment and the satisfaction of their cultural and spiritual needs. [ 36 ] In the forest they regain their strength, wisdom and motivation. [ 37 ] She then explained that in 2008, there was a crisis in their community during which many sexual assaults were reported. The perpetrators were charged and convicted but later returned to the community after serving their prison sentence.

According to her, none of them reoffended, due to the excellent work since 2008 by the psychologists (who travel from Montreal) and other resources provided: Alcoholics Anonymous (A.A.) meetings, caregiver ceremonies, sweat lodges, sharing circles and external help from the elders of other communities. [ 38 ] She explained that she has influence over her son, Mr. Penosway. For instance, she explained that her other son was also often charged with domestic violence but that he has since been able to break that pattern, in part because he stopped using drugs and alcohol.

She acted as a surety for her other son in the past. [ 39 ] It should be noted that this other son lives in Kitcisakik, not in Montreal. [ 40 ] She added that, in her view, Mr. Penosway needs to experience their culture and acknowledge his roots. She is prepared to deposit $200 as security, which constitutes an enormous amount for her in the circumstances. [ 41 ] In cross-examination, she said that she wants to help her son go to meetings. However, she acknowledges that she will not be coming to Montreal often.

She has a full-time job in Kitcisakik and therefore cannot/does not want to live in Montreal. [ 42 ] When counsel asked her if she was aware that her son was under a condition prohibiting him from being present in their village, she simply responded that he should be allowed to go there because they have many resources from outside the community that come to help their youth. 5- Testimony of the accused [ 43 ] The accused has been working for some time as a warehouse clerk for the customs company DMS.

He works full-time, likes his job and is well-liked by his employer. [15] [ 44 ] During his testimony, he undertook to continue to respect the conditions of his L.T.S.O., which remain in effect, and to attend A.A. meetings and provide proof thereof. [ 45 ] He explained that he did not want to disappoint his mother or his community, which contributed to the amount of $200 offered to the Court. This is a huge consideration for him. [ 46 ] At the beginning of his L.T.S.O., he was placed in the Amos Community Residential Facility [16] for a period of 6-7 months. He was closer to his community.

During his cross-examination, he admitted that he was transferred to Montreal (and therefore expelled from the Amos C.R.F.) after being suspended and punished for getting into an altercation with another offender during which the accused threatened him. [ 47 ] He complains about the fact that in Montreal, he has no access to his Algonquin culture. For example, the only elder that the Correctional Services put him in contact with was not from the same nation as him; rather, he was Mohawk. But the values and customs

of the Mohawks and the Algonquins are fundamentally different. The Mohawk people relate more with an urban lifestyle. He complains that he cannot go fishing or to wooded areas because his order under s. 161 C.C. prohibits him from being in the presence of children. [ 48 ] Like his mother, he emphasized the importance of the forest on his spiritual and mental development. [ 49 ] In cross-examination, he admitted that he never asked his P.O. for permission to go walking in a wooded area although he often went out for walks on Ste-Catherine Street, to the Atwater subway station and the library.

POSITIONS OF THE PARTIES [ 50 ] In support of its application for detention, the Crown invokes the three grounds set out in s. 515(10) of the Criminal Code . [ 51 ] Crown counsel underscore the numerous breaches of conditions, including being unlawfully at large. She notes that even though C.C.C.

Hochelaga is an extremely structured and supervised environment, the accused was still unable to comply with his conditions. [ 52 ] As for the objective seriousness of the alleged offence, she argues that being unlawfully at large is one of the most serious forms of breach because the State loses all control over the offender. Such control is absolutely essential to managing the risk of reoffending. [ 53 ] The defence, for its part, places particular emphasis on R. v .

Gladue [17] during its submissions and deplores the fact that in the 20 years following that decision, despite all the warnings by the Supreme Court, the problem of the over-representation of Aboriginal people in the prison system has deteriorated rather than improved. [ 54 ] Defence counsel asks the Court to find solutions to the problem, even at the interim release hearing stage. [ 55 ] The backdrop of the accused’s arguments is the defence he intends to present at his eventual trial.

He plans on invoking s. 15 of the Canadian Charter of Rights and Freedoms in support of the allegation that he [18] has suffered systemic discrimination by the Correctional Service of Canada in two ways: 1) An Aboriginal person subject to a L.T.S.O. does not have fair access to community resources. 2) The Correctional Service of Canada uses actuarial tools that overestimate the risk that Aboriginal offenders will reoffend. [ 56 ] As a remedy, the defence intends to seek (1) a stay of proceedings, and (2) the quashing of the long-term supervision order. [ 57 ] Finally, the accused submits that the Crown has not met its burden under s. 515(10) C.C. on each of the three grounds.

Defence counsel notes that the accused has not committed any sexual offence since 2007. She highlights the accused’s job, the fact that he is offering a personal recognizance without deposit in the amount of $500 and the fact that his mother’s $200 deposit will certainly have an impact on his behaviour. [ 58 ] Counsel adds that if the accused is released, he will remain at the C.C.C.

Hochelaga, where he is already very well structured and supervised. [ 59 ] As for the third ground, confidence in the administration of justice, defence argues that a well-informed public would be aware of the unfortunate phenomenon of the over-representation of Aboriginal persons and thus sensitive to the fact that the numerous breaches arise from the fact that he was uprooted. [ 60 ] At the very end of her submissions, counsel for the accused concludes with the following proposition: [ translation ] The Court has the choice … has the discretion: to contribute to the problem or the solutions. [19] [ 61 ] With respect, the Court notes that this last argument was expressed in a heavy-handed, arguably inappropriate manner. [20] As presented, it can be somewhat self-serving.

I understand the argument advanced and its underlying motivation, but care must be taken to avoid oversimplifying or exaggerating. [21] Indeed, if the Court were to find – after carefully analyzing all the applicable legal principles – that the accused’s detention is necessary, it would certainly not appreciate being told it is “contributing to a problem”, simply rendering its judgment. [ 62 ] In other words, it goes without saying that the detention of an Aboriginal offender in accordance with the applicable legal criteria does not in any way show, ipso facto , an insensitivity by the courts, closed-mindedness or a failure to consider the realities of Aboriginal persons.

THE PROJECTED DEFENCE [ 63 ] At the hearing, with supporting documentation, the accused provided a detailed description of the defence he intends to present at trial. [ 64 ] He emphasizes the fact that he always lived in Kitcisakik before being found to be a long-term offender. Thus, but for the sentence imposed, he would still be there, with his community, fully benefitting from his culture and his family.

[ 65 ] The one and only reason that he was uprooted and transferred to Montreal (a district that he was utterly unfamiliar with – a totally different world) is the fact that the Correctional Service of Canada does not offer any C.C.C.s or C.R.F.s north of St-Jérôme, subject to a few exceptions that are clearly unsuitable.

The accused filed a directory of the Correctional Services’ national facilities (listing the C.C.C.s) [22] and a list of community-based residential facilities (listing the C.R.F.s) [23] showing that there are only eight beds at the Amos C.R.F., and only six beds at the Saint-Alphonse-de-Rodriguez C.R.F. [ 66 ] In other words, the federal government is therefore equipped to handle only 14 Aboriginal long-term offenders in the northern regions.

Although there is a Parole Office in Rouyn-Noranda, it is not a halfway house and offenders cannot reside there. [ 67 ] Furthermore, the defence cites the Supreme Court’s recent decision in Ewert v. Canada [24] and interprets it as supporting its position because the Court in that case found that the Canadian Correctional Services have a duty to ensure that the impugned assessment tools produce accurate information when applied to Aboriginal persons, which is not the case here.

On the contrary, according to the defence, the actuarial data used overestimates the risk that Aboriginal offenders will reoffend. [25] The Supreme Court did not have this evidence before it, but Mr. Penosway will present it at his trial. [ 68 ] The only way to foster the rehabilitation of Aboriginal offenders from the North is to give them access to their culture.

As an example, the defence cites excerpts from Nibisha Sioui’s doctoral thesis confirming that in the Kitcisakik community, forgiveness (from the family and the community) may be necessary to resolve tension and allow the rehabilitation process to begin.

Moreover, presence in the community can provide a new and destigmatizing perspective of offenders, who may also embark upon a process of healing and family resilience. [26] [ 69 ] The accused gives as an example the fact that the other sexual offenders from the village who returned after their sentences were able to rehabilitate themselves such that there is no more recidivism in the community. [ 70 ] According to the defence, not only is he unable to properly rehabilitate himself in Montreal, but on the contrary, his behaviour is deteriorating because of his forced uprooting.

The situation is similar to the Aboriginal residential schools, which have now been unanimously decried across the country.

The defence argues that [ translation ] “we created a problem and incarceration is not a solution to that problem”. [ 71 ] A psychological follow-up could not be implemented due to a lack of specialized resources for the Aboriginal clientele, which the Correctional Services acknowledge in their assessment report. [27] ANALYSIS 1- Basic principles applicable to interim release hearings [ 72 ] In principle, there is a strong presumption in law that the accused should benefit from interim release subject to reasonable conditions while awaiting trial.

First and foremost, it should be recalled that the accused is presumed innocent at this stage. [ 73 ] This presumption is rooted in our Constitution, at s. 11(

e) of the Charter , which provides that any person charged with an offence has the right not to be denied reasonable bail without just cause. [ 74 ] This right was recently described by the Supreme Court as an essential element of an enlightened criminal justice system . [28] At the heart of a free and democratic society is the liberty of its subjects.

Therefore, where the potential exists for the loss of freedom, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty. [29] [ 75 ] The presumption of release also flows from the wording of ss. 515(1) and 515(10) of the Criminal Code , which provide that the detention of an accused in custody will be justified only in one of the three cases listed, that is: -515(10)( a ) – first ground: detention is necessary to ensure the accused’s attendance in court; -515(10)( b ) – second ground: detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; -515(10)( c ) – third ground: detention is necessary to maintain confidence in the administration of justice. [ 76 ] Finally, the Court notes that in the bail system, the conditions themselves should not be used to modify the accused’s behaviour or to punish him. [ 77 ] As stated above, in this case, pursuant to s. 515 of the Criminal Code , it is up to the Crown to present grounds justifying the accused’s interim detention on the basis of one (or more) of the three grounds.

The burden is on the Crown, on a balance of probabilities. [ 78 ] Of course, this burden applies not only to detention, but also to any other possible form of release or release measure. All of this flows from the ladder principle, which is a fundamental element of Canadian law on bail. [ 79 ] In other words, the ladder principle must be strictly adhered to. Release is favoured at the earliest opportunity and on the least onerous grounds. If the Crown proposes a more restrictive form of release, it must show why this form is specifically necessary.

Each rung of the ladder must be considered individually and consecutively, and each must be rejected before moving to a more restrictive form of release. [30]

[ 80 ] It is thus in light of these principles that the Court will analyze the evidence presented by the parties and the guarantees offered by the defence.

a) The primary ground [ 81 ] Ensuring the attendance of the accused at trial is the primary purpose of any system of pre-trial release.

The Court must evaluate the risk of an accused absconding rather than facing trial (and potential sanctions). [31] Incidentally, the test is not whether it would be possible to find an accused who has fled, but rather whether the accused’s detention is necessary to ensure his or her presence before the court when required. [32] [ 82 ] In the assessment of this ground, the Court must consider the following: - The circumstances of the alleged offence; - Did the accused try to flee during arrest?

What was the accused’s reaction when apprehended? - Did the accused try to avoid being found and/or arrested? - Did the accused lie to the police or to the parole officer? - Connection to the community (place of residence, stability); - The accused’s employment or occupation; - The accused’s marital or family status. Does the accused have any dependent children? Does the accused have the support of his or her family?

Do the accused’s family and friends have a significant connection with the District of Montreal? - The accused’s character: does the accused have prior convictions for failure to attend court or does the accused show a general lack of respect for the orders rendered by the Court by failing to comply therewith? - The potential prison sentence in the event the accused is convicted. If it is long, would it therefore be in the accused’s interest not to attend court?

b) The secondary ground [ 83 ] On the secondary ground, the primary considerations for the Court are the protection and the safety of the public and any victim or witness. [ 84 ] While it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated, and even less required by s. 515(10) of the Criminal Code .

Rather, establishing the probability of dangerousness is sufficient to deny bail to those likely to be dangerous. [ 85 ] That being said, the accused will be detained only if there is a substantial likelihood that he will commit a criminal offence and only where this substantial likelihood endangers the safety of the public. [33] [ 86 ] The mere possibility that the accused will reoffend is insufficient. [34] [ 87 ] From a logical standpoint, pas misconduct of an accused is highly probative of likelihood of re-offence. [ 88 ] Without systematically leading to a detention order, the presence of prior convictions, pending cases or applicable probation orders are very important factors in determining an accused’s dangerousness. [ 89 ] In fact, Trotter J.A. characterizes the situation where an accused is already subject to conditions at the time of committing the new offence as “one of the strongest indicators in favour of detention on the secondary ground”. [35] [ 90 ] Also in applying s. 515(10)(

b) C.C. , for assessing the dangerousness of an accused, in R. c .

Rondeau , [36] the Quebec Court of Appeal set out a non-exhaustive list of factors for the Court to consider: - The nature of the offence; - The relevant circumstances of the offence, including prior and subsequent events; - The likelihood of a conviction; - The degree of participation by the accused; - The relationship of the accused with the victim; - The accused’s profile, i.e. , occupation, lifestyle, criminal record, family environment and mental state; - The accused’s conduct following the commission of the alleged offence; - The danger that the accused's interim release represents for the community, notably that part of the community affected by the case.

[ 91 ] It is the combined effect of these factors that is determinative. Moreover, it should be noted that none of these factors is predominant and that an overall balancing of the circumstances must be conducted. It is a delicate balancing exercise.

c) The tertiary ground [ 92 ] Concerning the third ground in s. 515(10) C.C. , that is, whether the accused’s detention is necessary to maintain confidence in the administration of justice, the Court must assess the situation objectively in light of the four factors set out by Parliament: 1) The apparent strength of the prosecution’s case; 2) The gravity of the offence; 3) The circumstances surrounding the commission of the offence, including whether a firearm was used; and 4) The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment. [ 93 ] Recently, in R. v.

St-Cloud , the Supreme Court of Canada summarized the basic principles that should guide judges when applying s. 515(10)(c). [ 94 ] This tertiary ground is a separate ground that, on its own, allows pre-trial detention to be ordered. Moreover, ground “(c)” is not a residual ground to be used only when grounds “(a)” and “(b)” have failed. Recourse to this ground for detention is not limited to exceptional circumstances, unimaginable crimes, the most heinous crimes, or even to certain categories of crimes. In this regard, the wording of s. 515(10)(

c) C.C. is clear and does not require exceptional or rare circumstances. [37] 2- The application of the Gladue principles to bail hearings [ 95 ] The application of the principles set out by the Supreme Court in R. v . Gladue [38] is the cornerstone of the argument advanced by the accused at the bail stage. [ 96 ] When asked by the Court about its position on the possible application of s. 718.2(

e) C.C. at the bail hearing stage, the Crown took a nuanced position. In its view, the application of s. 718.2(

e) C.C. is reserved for sentencing.

That being said, the prosecution acknowledges that the Court may (and must) give full consideration to the background and profile of the accused, including the fact that he is Aboriginal and has a very particular past, as shown by the evidence. [ 97 ] To the Court’s surprise, it appears that the Quebec Court of Appeal has never had to rule on this issue. [39] Moreover, the caselaw from across the country does not seem consistent. [ 98 ] In his book, The Law of Bail in Canada , Trotter J.A. cites well-known statistics showing the troubling critical over- representation of Aboriginal persons in the prison population.

He then makes the connection between s. 718.2(

e) C.C. and bail hearings, paying particular attention to Ontario caselaw: Most of the resulting jurisprudence and the voluminous commentary following Gladue have focused on sentencing considerations. However, it should come as no surprise that the same problems that cause disproportionate incarceration at the back end of the system are also found at the front end. According to Statistics Canada, for the 2006/2007 reporting period, approximately 4% of Canadians identified themselves as aboriginal.

However, the proportion of inmates on [pre-sentence] remand is close to five times as great, and growing. [40] […] While there was some initial doubt, it now seems generally accepted that Gladue principles have some application to the bail context . In Frontenac Ventures Corp. v . Ardoch Algonquin First Nation , [41] a civil contempt case, the Court of Appeal for Ontario held: … The Gladue principles have already been extended to a variety of other contexts in the criminal justice system, including bail , parole eligibility, dangerous offender applications, and disposition hearings of the Ontario Review Board.

Justice Brent Knazan argues that s. 718.2(

e) and Gladue are applicable to bail hearings given the eventual impact that pre-trial detention will have on sentencing. [42] Other decisions suggest that the principles enunciated in Gladue have a more direct application to bail [citations omitted]. Most recently in R. v . Robinson , [43] Winkler C.J.O considered an application under s. 680 of the Criminal Code to direct a review of a detention order. In the course of his reasons, the Chief Justice said: It is common ground that principles enunciated in the decision of the Supreme Court of Canada in R. v .

Gladue have application to the question of bail … The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular Aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds for release . … There are still many unanswered questions concerning the application of Gladue to the bail process … Moreover, it is somewhat unclear as to exactly how Gladue principles interact with the grounds for detention in s. 515(10) of the Criminal Code .

It may be that Gladue principles will be important in the application of the primary and tertiary grounds. However, these principles may be less applicable in relation to the secondary ground, especially as the level of alleged violence increases . [44] [Emphasis added] [ 99 ] In fact, Winkler C.J. explicitly referred to this principle in R. v. Robinson , holding that the more violent and serious the alleged

offence, the less weight will be given to Gladue principles at the bail stage.[45] [100] In his book Mack’s Criminal Law Trial Book, author Dallas Mack takes a similar approach: “As with sentencing there will beless distinction [at the bail stage] between Aboriginal and non-Aboriginal accused persons where the offence is more serious and theaccused has criminal antecedents and a poor history of compliance with conditions.”[46] [101] More recently, in R. v.

Hope, on an application for release while awaiting a new trial, the Ontario Court of Appeal reiterated thatGladue principles must be considered at the bail stage.[47] However, other than the statement of principle, the Court gave littleindication as to how to apply them.[48] [102] In R. v.

Silversmith, the Ontario Superior Court of Justice granted an application for bail review, holding that the trial judge haderred by mentioning the Gladue principles only superficially without actually applying them.[49] Turnbull J. proposed the followingframework: 1) The Court must consider the unique systemic or background factors that may have played a

part in bringing the particular Aboriginaloffender before the courts; 2) The Court must consider the types of [interim release] procedures, which may be appropriate in the circumstances for the offenderbecause of his or her particular Aboriginal heritage or connection. At this stage, the Court must ask:

a) Whether the sureties offered, in the context of the Aboriginal culture, can control the accused’s behaviour. Here, the Court considers whether there is particular cultural pressure encouraging the accused to comply with the conditions imposed, inaddition to the usual factors such as the physical proximity of the sureties and their ability to supervise and control the accused.

b) Whether interim detention of the Aboriginal accused would have a disproportionately negative impact on the accused in thecircumstances and whether that impact could be alleviated by strict bail conditions. At this stage, the Court takes into account the potential loss of employment, but with emphasis on the fact that the unemployment rate inAboriginal communities is very high.

c) Whether Aboriginal law, customs and traditions provide the necessary assurances of attendance in court and protection of the public. At this stage, the Court considers whether the accused has children and/or a family who have offered to act as sureties, their proximity,and whether their culture/traditions/customs place a sufficiently high emphasis on the family such that the accused will be more inclinedto comply with the conditions imposed.[50] [103] Writing for the same Court in R. v.

Atlookan, Wright J. expressed more reluctance to fully transpose the principles of s. 718.2(e)C.C. and in Gladue to bail hearings, noting that the proceedings are different. He nevertheless acknowledged that “the spirit of section718.2(e)” C.C. should be applied at the bail application stage, adding that: Considerations of restorative justice may well be appropriate at the bail stage of proceedings. However the fact remains that on a bailhearing everyone is entitled to remain free whether he be aboriginal or non-aboriginal unless good cause is shown why he should bedetained.[51] [104] Similarly, in R. v.

Neshawabin, O’Neill J. reiterated that a bail hearing is not a sentencing hearing and accordingly, s. 718.2(e)Cr. C. is not applicable, although unique systemic or background factors should indeed be considered. He expressed: [I]n a bail context, in a case where treatment is requested, and available, where appropriate sureties step forward, and where the accusedpresents a plan, with terms and conditions that can address the issues raised in s. 515(10)(a), (

b) and (c), arguments which suggest thatthere is no other alternative but pre-trial incarceration must be carefully scrutinized.[52] […] I come to [the conclusion that detention is warranted due to the risk of reoffending] even though I have set out at length my belief that theGladue sentencing principle ought to be taken into account, as much as possible, even at the stage of a bail hearing.[53] [105] In New Brunswick, the Court of Queen’s Bench was much more reluctant to import the Gladue principles to the bail stage. In R.v.

Sacobie, the Court allowed the Crown’s application for bail review and substituted an order for the detention of an Aboriginaloffender with an extensive criminal record, who was on probation at the time of the alleged offence and who had previously violated theconditions of a conditional sentence. In her reasons, Clendening J. explained: The trial judge then went into a lengthy decision based almost solely on the issue of alternative sentencing for Aboriginals. He followedthe reasoning of cases such as R. v.

Gladue, (SCC), [1999], 1 S.C.R. 688 and the reports mentioned inthe Gladue case. […] After considering the transcript of the show cause hearing, the decision of the judge, and the exhibits tendered I will allow thisapplication. The judge considered ─ that is the judge at the show cause hearing ─ considered Subsection 515(10) as he must, but I findthat the principles set out in 718.2, 742.1 and 718.2(

e) have no application to judicial interim release. I find that the judge had thebest of intentions, but these two areas of the Criminal Code do not overlap. It should be noted that Subsection 718.2(

e) does notmandate a non-custodial sentence; it simply provides for a different methodology of assessing a fit sentence. However, what must be considered in a judicial interim release is the criteria found in Subsection 515(10), as I previously stated. Mr.

Sacobie has an extensive criminal record. He is no longer a young offender; he is a man. He is alleged to have committed this particular crime while on probation. He has been constantly in trouble with the law for years. He has previously violated the conditions of a conditional sentence. The judge at the show cause made an error when he considered restorative justice in the place of the criteria and principles set out in subsection 515 (10) . They are to be considered separately . One cannot step forward to another

part in the Criminal Code to find a remedy as the judge did in this case. [54] [Emphasis added] [ 106 ] In Alberta, Veit J. set out the approach to be followed in R. v. A . , a case in which the Crown conceded that the Gladue principles should apply: A Gladue analysis must be applied when considering interim release. The Crown agrees that a Gladue analysis must be applied when considering interim judicial release: Hope , Oakes . The Crown also agrees that A. is personally entitled to a fulsome Gladue assessment.

A.’s circumstances are, indeed, worthy of review: -he is a treaty Indian whose grandparents were in residential schools; -his own upbringing was chaotic, with placements in foster homes and reunification with his siblings after long years of separation; -even after reunification, his family circumstances were poor. A.’s past failures to meet the deadlines imposed by the court system and his past equivocation with respect to counselling programs must be weighed against his chaotic upbringing and his possible cultural resistance to authority. [55] [ 107 ] Her colleague, Lee J., in R. v.

D.D.P. , stressed the importance of fully considering the Gladue principles but went further in the analysis by suggesting that the Gladue principles even permit setting aside the criteria set out in s. 515(10) : Based on my understanding of the Supreme Court of Canada's decisions in Gladue in 1999, and most recently in 2012 in Ipeelee , they expressed grave concerns with the Courts not fully taking into account the specific and special circumstances of the Aboriginal offence on sentencing.

While neither case specifically addresses Aboriginal persons in applications for Judicial Interim Release, I conclude that in addition to the rights of all Canadians under the Charter to reasonable bail, persons of Aboriginal status applying for bail should have their individual special circumstances considered as well irrespective of the existence of the primary, secondary or tertiary grounds .

The failure to consider an Aboriginal person's special circumstances during the often lengthy, protracted and stressful pre-trial period would amount to ignoring the important reality of our criminal justice system, which is that pretrial custody can adversely, directly and inevitably affect the Aboriginal offender long before the time he/she is sentenced.

If the rehabilitation of the Aboriginal offender is to be dealt with meaningfully, it should begin as soon as possible; and if the recidivism rates for Aboriginal offenders are to be brought down, their special and individual circumstances must be addressed at the pre-trial custody stage. [56] [Emphasis added] [ 108 ] In the case at bar, with the greatest respect, I profoundly disagree with the excerpt underlined above, and therefore will not follow it.

While the Gladue principles appear to be clearly relevant within the existing framework of s. 515(10) C .C. , they do not allow the Court to discard the provision altogether; it would be up to Parliament to amend the provision, not the courts. [ 109 ] The Court of Queen’s Bench for Saskatchewan essentially adopted the Ontario approach in R. v. Pinacie-Littlechief [57] and R. v. Cyr . [58] As for the Provincial Court, in R. v.

Daniels , readily acknowledged the application of the Gladue principles, but emphasized that they could not replace or distort the factors codified in s. 515(10) C.C. [59] [ 110 ] Nevertheless, in the recent R. v. Heathen , the Provincial Court judge chose not to follow the precedents of the Court of Queen’s Bench. [60] On the contrary, in a detailed analysis and following an exhaustive review of the caselaw from across the country, he came to the conclusion that the Gladue principles and s. 718.2(

e) Cr. C. have no place in the determination of interim release. After conducting a thorough review of the authorities, the judge firmly insisted that the principles are clearly irrelevant to bail hearings, because the objectives and considerations relevant to sentencing and bail are fundamentally different.

In fact, he was staunchly critical of various courts (including appellate and superior courts) for systematically acknowledging the application of Gladue , as presumed but without ever conducting a serious analysis, which has led to the unfortunate development of an abundant body of case law that is superficial and wrong in law. [ 111 ] In the case at bar, I cannot endorse the position in R. v. Heathen . I am certainly not inclined to dismiss – in one fell swoop – all the teachings of the Ontario Court of Appeal and the other superior courts referred to above.

That being said, while I do not entirely share Agnew J.’s opinion, it cannot be disregarded as completely illogical or unfounded either. Quite the contrary; his arguments are particularly compelling with respect to the following concerns: Rather than addressing the particular circumstances of this accused, and how those particular circumstances may answer the questions posed by the primary, secondary and tertiary grounds, reference to Gladue prompts attention to be focused instead on colonialism and its consequences.

To put it another way, a culture-based bail submission shows how the primary-, secondary- and tertiary-ground concerns are lessened by the particular circumstances of the particular accused; a Gladue -based bail submission focusses on the history of how the accused came to be in the social, economic and racial situation they are in - a history which does not affect the primary, secondary or tertiary grounds for bail, and is therefore unhelpful to the Court (and thus to the accused). [61] […]

Subsection 515(10) does not instruct the bail court to consider why the accused will not attend court, or why the risk to the safety of the public cannot be managed by appropriate conditions.

Rather, s. 515(10) instructs bail judges to consider whether detention is necessary for those reasons; why the accused is in the position they are in is not a consideration under s. 515(10). [62] [ 112 ] To the extent that these concerns underscore the importance of properly applying the statutory criteria set out by Parliament in s. 515(10) (and therefore not setting them aside for purely cultural, political or teleological reasons), the Court finds them legitimate and agrees with them.

That being said, in the Court’s opinion, it is indeed possible – and desirable – to consider the Gladue principles within the analytic framework provided for by Parliament. In other words, the two exercises are mutually exclusive or incompatible. [ 113 ] In R. v. Rich , the Newfoundland Supreme Court dismissed the application for bail review brought by an accused with an extensive criminal record.

In his analysis, Goodridge J. acknowledged the general application of the Gladue principles, while noting that they will have relatively little weight when the primary concern is public safety: On the question of whether the principles set out in the Gladue decision have relevance on a bail hearing, or bail review, the quick answer is yes. The principles are relevant, even though they may be less directly relevant on bail as compared to a sentencing hearing . I reject the Crown's argument that Gladue has no application to a bail hearing.

A bail hearing judge can and should consider the Gladue principles if the evidentiary basis is presented to support such consideration. However, when public safety is the focus of concern at the bail hearing, as a practical matter, it is unlikely that accused's background, as either aboriginal or non-aboriginal, will carry much weight . [63] [Emphasis added] [ 114 ] In R. v. Paul-Marr , the Nova Scotia Provincial Court considered the Gladue principles indirectly at the interim release stage.

According to Derrick J., it is when assessing the potential sentence that the accused might receive (a factor relevant to the secondary and tertiary grounds) that the Court should consider the possible application of s. 718.2(

e) Cr. C. , thereby reducing the impact of this factor. [64] [ 115 ] In the case at bar, having carefully reviewed the caselaw from various jurisdictions across the country, the Court adopts the following principles, which respect both the intent of Parliament and the teachings of the Supreme Court: 1) A sentence hearing and a bail hearing are fundamentally different proceedings with different objectives. It would therefore be illogical to apply s. 718.2(

e) C.C. or the Gladue principles equally in both cases. For example, at the sentencing stage, the principles of deterrence, denunciation and retribution are all relevant, sometimes predominant; moreover, these are precisely the principles that are most likely to be adjusted downwards after the principled consideration of Gladue principles. Yet these same factors should not be considered at the interim release stage. [65] The analytical framework is simply different. 2) That being said, the Gladue principles must nevertheless be considered at the interim release stage.

The Court must be particularly sensitive to systemic or background factors relevant to the accused, consider the over-representation of Aboriginal persons in the prison system and seek to the extent possible to find an appropriate release plan that would allow incarceration to be avoided. Here, I refer to the approach proposed by Turnbull J. in R. v. Silversmith . 3) Even a generous application of the Gladue principles does not allow the Court to disregard the criteria set out in s. 515(10) C.C. or distort the analysis of grounds (a), (

b) and (

c) for the purpose of promoting the principles of corrective justice, however commendable that objective may be. 4) The Gladue principles are more likely to influence the analysis of the primary and tertiary grounds set out in s. 515(10) C.C. Conversely, they will have less weight in the assessment of the secondary ground.

Therefore, if the Court finds that there is a substantial likelihood that the accused’s release will endanger the safety of the public, this consideration must prevail. [ 116 ] Despite the indisputable importance of the Gladue principles, it goes without saying that interim release will not – and should not – be automatic for Aboriginal accused. In fact, the same principle applies to sentencing. The Supreme Court of Canada [66] and appellate courts across the country [67] have often reiterated that the application of s. 718.2(

e) C.C. will not automatically lead to a sentence reduction, especially when the offence is serious and violent. 3- Application of the principles to this case a) Section 515(10)(

a) of the Criminal Code – the accused’s attendance at trial [ 117 ] Here, the defence reiterates the Gladue principles and asks the Court to consider the root causes of the accused’s breaches of conditions. [ 118 ] At first glance, the argument is not without interest. However, if the Court were to conclude that the accused would fail to attend his trial, how would the Gladue principles help to correct the situation? The accused would be absent. Should the judicial system simply tolerate his absence because of the Gladue principles? The Court must answer this question in the negative.

Attempting to flee, lying to the parole officer and his reaction to his arrest [ 119 ] When finally contacted by his P.O. after being AWOL for three days, the accused promised to turn himself in shortly. Instead, he continued to flee until he was apprehended by the police for totally unrelated reasons. [ 120 ] Furthermore, his extreme aggressiveness and threats against the police show (1) his dangerousness [secondary ground] and (2) his inability (or unwillingness) to respect authority. Both aspects are quite alarming.

Connection to the community, family situation and employment [ 121 ] The Court acknowledges that the accused had a stable job at the time of his last arrest. In accordance with the analysis in R. v. Silversmith , this factor weighs heavily on the Court, given the high unemployment rate affecting Aboriginal communities. His efforts in this regard are therefore laudable. However, his employment did not stop him from reoffending, as he did many times in the past.

In fact, the P.O. ended up contacting him at work, and during their conversation he promised to return to the C.C.C. but chose to flee instead. [ 122 ] As for his connection to the community, he admits that he has none. On the contrary, he complains that he was uprooted and dropped off in Montreal against his will. His family and community are all in Kitcisakik and his L.T.S.O. prohibits him from going there. He has no children and did not mention having a girlfriend.

The accused’s character [ 123 ] Here, the Court refers to the accused’s 12 prior convictions for breaches of the L.T.S.O. (including several for being unlawfully at large, most recently in 2017), in addition to other warnings and administrative suspensions.

The potential term of imprisonment [ 124 ] The accused is certainly liable, on conviction, for a potentially lengthy term of imprisonment. [ 125 ] The impact of the deposit offered by his mother will be discussed in the next section, [68] but the Court applies the same analysis to the primary ground. [ 126 ] In this case, the Crown has met its burden of proving that the accused’s detention is necessary to ensure his attendance in court. b) Section 515(10)(

b) of the Criminal Code – the danger to the public [ 127 ] The Court notes that Bigué J.’s decision imposing the sentence and the long-term offender designation is not under appeal and never was. [ 128 ] Accordingly, this observation implies that pursuant to s. 753.1 C.C. , the accused presented a substantial risk of reoffending sexually at the time of sentencing; his conduct indicated that he was likely to cause injury or other harm to other victims in the future.

We must accept that premise at this stage. [ 129 ] Moreover, in addition to the recent assessment report confirming the current risk of reoffending, the Court notes that since 2009, the accused has never filed an application with the Superior Court under s. 753.2(3) C.C. , which he could have done at any time, to ask the Court to reduce or terminate the L.T.S.O. on the ground that he no longer presents a substantial risk of reoffending and thereby no longer being a danger to the community. [ 130 ] Finally, pursuant to s. 134.1(4) of the Corrections and Conditional Release Act , [69] the accused could ask the Parole Board to remove or vary the application of any condition it has prescribed. [70] If dissatisfied with that decision, he could then apply to the Federal Court for judicial review. [71] In this case, the accused did not try to obtain any of those remedies. [ 131 ] Thus, the accused accepts at this stage, as he must in the circumstances, that he is dangerous and that there is a substantial risk that he will reoffend.

In fact, he did not seriously contest this during the hearing, although he clearly faults the federal authorities for not helping him sufficiently in his rehabilitation. [ 132 ] Obviously, the fact that the accused is very dangerous is a critical factor in the application of the secondary ground for detention. [ 133 ] In the same vein, I reiterate that the main objective of the dangerous offender regime is the protection of the public. [72] As the Supreme Court repeated in R. v . Johnson [73] and R. v .

Boutilier , [74] in light of a finding that the accused is very dangerous, the Court must nevertheless favour a finding of long-term offender (rather than dangerous offender), but only if it is convinced that a L.T.S.O. would reduce the risk of harm to an acceptable level. [ 134 ] In this case, the accused argues that the Correctional Services are unable – due to the lack of adequate resources – to reduce the risk he represents to an acceptable level. The argument itself is somewhat risky in that it practically suggests that he should be declared a dangerous offender …

i) The presumption of validity of the sentence and the conditions of supervision [ 135 ] Despite the apparent merit of the defence the accused intends to present at trial, it is useful to recall the basic principle that an order of the Court (or a L.T.S.O. in this case) must be complied with until it is cancelled or replaced by the Court.

The accused is bound to comply with its conditions, even if convinced that they will eventually be invalidated. [75] ii) Application of the Rondeau criteria The nature of the alleged offence, the circumstances in which the offence was committed, the accused’s profile and his conduct at the time of arrest [ 136 ] At this stage, the Court acknowledges and considers the indisputable over-representation of Aboriginal offenders in detention centres.

[ 137 ] The defence correctly points out that the accused has not reoffended sexually since 2007. [ 138 ] Although this factor is not negligible, its impact is tempered. [ 139 ] To be sure, at first glance, one might be tempted to think that these are “mere breaches” without any new substantive offence(s). [76] However, such reasoning is misleading. It is worth repeating that these conditions are essential to maintaining public safety.

They were specifically imposed on the accused by the Correctional Services, who are constantly assessing and monitoring his level of dangerousness and how to reduce it to a minimum. All of which is done, of course, in accordance with Bigué J.’s finding that the accused presents a substantial risk of reoffending. In and of themselves, L.T.S.O.s are rare. [ 140 ] Here, I agree with the Crown that being unlawfully at large is one of the worst types of L.T.S.O. breaches that an offender may commit. When the accused disappears and fails to report, the State loses all control and power of supervision over him.

Alas, that very supervision is crucial, according to the offender’s assessment and his past conduct.

Such a breach goes to the very heart of the long-term offenders regime. [ 141 ] I also consider the observations in his assessment report, which remain uncontradicted at this stage: his low tolerance to frustration, his poor management of negative emotions, his problematic sexual attitude, the very substantial risk of reoffending, the rather bleak prognosis for his reintegration into society, the numerous disciplinary breaches at the C.C.C., his aggressive, threatening and intimidating behaviour towards the staff. [ 142 ] The Court reiterates the accused’s many prior convictions in similar matters and his aggressive behaviour towards the police officers at the time of his arrest.

Let us recall that he threatened the police officer, saying he would [ translation ] “break [her] head”. He also had previous convictions for assaulting a police officer and obstructing a police officer. [ 143 ] The seriousness of the situation and the dangerousness that the accused represents are such that little weight can be assigned to the Gladue considerations. iii) The guarantees offered by the defence: release plan and surety [ 144 ] Mr.

Penosway proposes to go to A.A. meetings. [ 145 ] However, it is understood that he is already very closely followed and supervised by the Correctional Service of Canada. [ 146 ] Regarding the testimony of the accused’s mother, there is no doubt that it was sincere. [ 147 ] She offers a deposit of $200, which is a very substantial amount for her and the community of Kitcisakik. [ 148 ] Despite her good faith, her testimony has only a very limited impact on the analysis. [ 149 ] The surety must reassure the Court… vouch for the accused and pledge his presence at trial and his good conduct awaiting it. [77] [ 150 ] The duty of the surety is to act as a “civilian jailer”, ensuring the good behaviour of the accused while on bail and reporting him to the authorities if he does not comply with his conditions.

His primary is also to ensure the accused’s presence in court for trial. [ 151 ] Obviously, the surety cannot do everything and the system must avoid asking too much of them. Nor are they there to replace the police in crime prevention.

However, they must be in a position to have a sufficiently positive influence on the accused to incite him, to encourage him to respect his conditions. [78] [ 152 ] The extent of the surety’s responsibility for the accused’s behaviour will depend in part on the release conditions themselves. [79] [ 153 ] During her testimony, the accused’s mother did not establish that she would be able to exercise any control or even supervision over her son to prevent him from reoffending if he were released. [ 154 ] Rather, she offers a form of symbolic and emotional influence, hoping that her son will comply with his conditions out of respect for his mother and the heavy burden that the $200 deposit is for her. [ 155 ] Unfortunately, his mother’s love has not encouraged the accused to comply with his conditions in the last 10 years. [ 156 ] The defence adds that if the accused is granted interim release, the conditions of the L.T.S.O. will continue to apply, which should reassure the Court. [ 157 ] However, insofar as the accused has frequently and consistently breached his conditions, the resumption of the conditions of the L.T.S.O. offers the Court very little reassurance. [ 158 ] Pursuant to the approach advocated in R. v.

Silversmith , I must pay particular attention in this case to the cultural pressure that would encourage Mr. Penosway to comply with his conditions. [ 159 ] As the defence argued, the importance for the accused of his Algonquin culture and his respect for his hometown community enhance the impact of the $200 that his mother brings, with the support of his village. The accused therefore has additional motivation to comply with his conditions. [ 160 ] In this respect, despite this additional encouragement, the Court notes that the accused has continually breached his conditions

despite being severely punished by long prison sentences. For that reason, I do not think that his concern for his mother’s situation and that of his village will have a sufficient impact to encourage him to comply with his conditions. iv) The potential defence at trial [ 161 ] The potential argument regarding s. 15 of the Charter will be of central importance for the accused at trial. At this stage, it in fact seems doubtful at first glance that he has any other defence; the evidence is quite simple and overwhelming: either he was at the C.C.C. or he was not.

Thus, it is understandable that the accused intends to devote his energy to challenging the validity of the conditions themselves. [ 162 ] I note in passing that in attempting to bolster his potential defence at trial in support of his arguments, the accused indirectly harmed his position with respect to the application of the secondary ground for bail. [ 163 ] As explained above, the accused does not contest his status of long-term offender. In other words, he acknowledges that he is dangerous.

Rather, he faults the authorities for not providing him with adequate resources to reduce his dangerousness. [ 164 ] While that argument may be very beneficial to him at trial, it is quite the contrary at the interim release hearing: he has just explicitly admitted that the conditions are not good/effective enough to control his dangerousness. [ 165 ] In any event, during the interim release hearing, the judge’s role is rather limited in regard to the assessment of potential defences. [ 166 ] An interim release hearing is not a trial and should not become one.

Rather, it is a proceeding that is intended to be expeditious. [80] The evidence, on both sides, cannot be exhaustive. [ 167 ] However, the apparent strength of the evidence in the record must be analyzed by the Court for both the secondary ground (as prescribed by R. c . Rondeau ) and the tertiary ground (as set out in s. 515(10)(

c) Cr. C. ). [ 168 ] As indicated in R. v . St-Cloud , while being careful not to play the role of trial judge or jury, the Court must consider the quality of the evidence tendered by the Crown in order to determine the weight to be given to this factor in its balancing exercise. It is at this level that the Court must also consider any defence raised by the accused. [81] [ 169 ] In R. v .

Turcotte , the Quebec Court of Appeal reiterated that judges do not have the obligation to evaluate the merits of the defence at the interim release stage and that the exercise is limited to verifying whether the proposed defence has a prima facie air of reality. [82] [ 170 ] In this case, the projected defence is innovative and ambitious; it seeks nothing short of invalidating the entire long-term supervision system for First Nations persons in the North.

Although it is still in the embryonic stage of preparation, the Court certainly cannot characterize the defence as frivolous on its face. [ 171 ] At this stage, the defence does not seem to have concrete evidence that the systems used by the Correctional Services overestimate the risk of reoffending, but it has taken steps in this regard. [ 172 ] However, “overestimating the risk of reoffending” is only one aspect of his anticipated defence.

The other (apparently main) aspect is based on the lack of specialized resources that take into account the reality of Aboriginal persons here in the south of Quebec, where offenders are sent for the duration of their L.T.S.O. [ 173 ] At first glance, the mere fact that the Canadian Correctional Services displace offenders 500 km away from their homes to rehabilitate them in a completely foreign urban centre, where they are immersed in a culture and lifestyle that are completely different, confers credibility to the argument raised by the defence. [ 174 ] The Crown rightly points out that among all his L.T.S.O. breaches (or outing requests), the accused never even attempted to go to a forest for a walk and reconnect with his spirituality.

He now claims, however, that the forest is so important to him. On this specific point, the Court can readily take judicial notice of the fact that there are accessible forests located within a 50 km [83] radius of C.C.C. Hochelaga. [ 175 ] Moreover, the Crown is correct in invoking the fact that the accused did indeed have a place at the Amos C.R.F. before losing it as a result of his behaviour, which led him to be suspended and transferred. [ 176 ] All that being said, the proposed defence need not be perfect at this stage.

It will be up to the judge presiding the eventual trial to assess its strengths and weaknesses.

v) Conclusion on the secondary ground [ 177 ] The Court reiterates that none of the factors cited above is determinative. Having weighed all the factors, including the announced defence, I find that if the accused is released, there is a substantial likelihood that he will commit a criminal offence that will endanger the safety of the public. His detention is therefore necessary. [ 178 ] Even the most generous

interpretation of the Gladue principles does not require the Court to compromise the safety of the public by releasing a dangerous accused. c) Section 515(10)(

c) of the Criminal Code – public confidence

[ 179 ] The Crown’s evidence is strong. Subject to the announced defence based on s. 15 of the Charter , the evidence appears prima facie overwhelming. [ 180 ] The accused is facing a very serious charge, punishable by a maximum sentence of ten years. As the Crown rightly points out, the breach of a L.T.S.O. is more serious than a breach of probation. [84] [ 181 ] As mentioned above, I also agree with the Crown that being unlawfully at large is one of the worst types of breach that an offender can commit. [ 182 ] Mr. Penosway is a repeat offender in terms of breaching his L.T.S.O.

He has previously breached the order 12 times, for which he received 5 non-negligible prison sentences. The accused is therefore liable to a potentially severe sentence. In fact, pursuant to the principle of gradation of sentences, a sentence of over 15 months is likely. The Court cannot accept the defence’s argument that the accused could receive a suspended sentence because no other crime (in addition to s. 753.1(3) C.C. ) was committed.

The accused has already received long sentences for “simple” breaches under s. 753.1(3) C.C. , and it must be assumed that the previous sentencing judges gave full effect to s. 718.2(

e) Cr. C . [ 183 ] Considering the combined effect of the circumstances described, would the reasonable person, properly informed of the philosophy of the legislative provisions, Charter values and the actual circumstances of the case, lose confidence in the administration of justice if Mr. Penosway was released? [ 184 ] In the Court’s view, this is a borderline case. In the ordinary course, given the importance of L.T.S.O.s, given the accused’s repeated breaches and given the four criteria listed in s. 515(10)(

c) C.C. , I would certainly have found that the tertiary ground required the accused’s detention. [ 185 ] However, as Dawson J. rightly pointed out in R. v. Cyr : The public perception and confidence in the administration of justice is heavily influenced by the Aboriginal status of the accused. The Gladue principles pervade all aspects of the criminal process when First Nations persons are involved.

At the heart of it is the concern there are systemic disadvantages that result in disproportionate representation of natives in our prisons. [85] [ 186 ] Today, Canadian society is sensitive to and fully aware of the problem of the over-representation of Aboriginal persons in the prison system.

In addition, a well-informed public, aware of the evidence in this case, would clearly see that the scenario of uprooting and cultural isolation seems to be repeating itself again. [ 187 ] Finally, in view of the fact that no new substantive offence was committed and considering that the L.T.S.O. will continue to apply in full, [86] I do not think the public would lose confidence in the administration of justice if the accused was granted interim release. [ 188 ] The Crown has not met its burden with respect to the third ground.

CONCLUSION [ 189 ] The combination of all the relevant factors leads to the conclusion that the Crown has met its burden of establishing that detention is necessary to protect the safety of the public and to ensure the accused’s attendance in court. [ 190 ] In closing, the Court wishes to highlight the excellent work of counsel during the hearing. They presented their positions with great competence, preparation and skill. They both presented convincing arguments and both parties were well represented. No issue was left unanswered. Finally, the obvious level of preparation exceeded the norm.

FOR ALL THESE REASONS, THE COURT: ORDERS the interim detention of the accused, Mr. Germain Penosway, until the end of the proceedings. __________________________________ D. Galiatsatos, J.C.Q. M e Roxane Laporte Counsel for the Crown M e Rita Magloé-Francis Counsel for the accused Hearing dates: November 7 th and 8 th 2018