2019 QCCQ 7986, 2019 QCCQ 7986

R. c. Icebound 2019 QCCQ 7986 SENTENCE / AGRESSION SEXUELLE 272 (1)d),

(2) b) C.C. Peine individualisée pour complices Articles 718 a), b), c), d),

e) et f); 718.2

b) et

e) C.C. COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY - WASWANIPI N° : 614-01-001229-166 DATE : September 23 rd , 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE LOUIS A. LEGAULT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

GABRIEL ICEBOUND and kevin gunner Defense ______________________________________________________________________ SENTENCE Written version ______________________________________________________________________ [ 1 ] The two accused have been found guilty of sexual assault on the person of a 25 years old lady as he was a party to that offence with another person, namely Mr. Kevin Gunner (section 272 (1)d)

(2) b) the Criminal Code ). OBJECTIVE GRAVITY [ 2 ] The offence is punishable by a fourteen years jail sentence. RECOMMANDATION OF THE PARTIES [ 3 ] JL 2407 Prosecution attorney recommends that a jail sentence of 3 years be imposed on both accused. [ 4 ] Defence attorneys plead that a 90 days discontinued sentence would suffice and be an individualised fit sentence. A three year probation with numerous conditions would also be an adequate tool to serve the purposes of rehabilitation and social reinsertion together with the accused engaging in diverse relevant follow-up, therapies and healing process.

SUBJECTIVE GRAVITY [ 5 ] On the night of November 5 th 2016, the victim was intoxicated by alcohol and had chosen to share some good time and drinks with the two accused and they had passed some time even flirting as the three were seen hugging, kissing at the lower level of a bar. The victim so far had showed her consent and willingness to be in their company as her group of friends chose to walk away. [ 6 ] There is evidence that sometime after as timewise, the group of female friends or acquaintances were walking back from a short distance, a female crying and screaming was heard.

She was yelling it was enough and calling for help. [ 7 ] As part of the group of the victim’s friend hasted to get to the site where the voices were coming from to witness and intervene and they within a short time found a sexual assault going on. [ 8 ] Gabriel Icebound was seen moving back and forth sexually penetrating the victim from behind as she was held by the waist or

nearby by him. The victim was bent at a 90 degrees angle. She had her hands on a wall and was bent over Kevin Gunner who appeared to retain her and was indeed against her. She was retained in passivity from falling down, also contributing together with the force imposed by Gabriel Icebound on the victim to the ongoing assault and thus restraining her. [ 9 ] The victim was certainly very intoxicated. [ 10 ] There was nothing passive in the move of the accused Kevin Gunner as he did not leave the site of the assault.

It is not known if the screams for help and affirmation it sufficed, started after the beginning of the sexual intercourse or from the time her pants were taken down. No evidence was accrued as to any refusal or denial or absence of consent until that very time where she is heard refusing. There was enough time for the accused to step aside and disassociate himself from the ongoing sexual assault, take distance and be passive. [ 11 ] Both accused had been drinking. None of the accused speaks to being drunk. Gabriel Icebound says that he has no alcohol abuse problem.

Kevin Gunner spoke to the fact that drinking alcohol contributed to his overacting and became a problem and that he needed to cease drinking, ascertaining a bad judgment as a consequence of his drinking. [ 12 ] The victim that was 25 years old was very intoxicated. It was so earlier in the evening when in the company of friends. It was so as she was begging to be given a drink and it was certainly so when she was offered a drink by the duo of accused and it clearly was the case when she was observed being assaulted sexually.

She was drunk. [ 13 ] When the group of friends or acquaintances of the victim got there, they are the ones that got Gabriel Icebound to cease the sexual assault and both accused walked away from the scene. AGGRAVATING FACTORS FOR BOTH ACCUSED [ 14 ] The sexual assault was sexually intrusive and lasted certainly less than 30 seconds to one minute from the time the victim refused that the sexual encounter continues. It went on way past the refusal voiced loud.

The fact that two accused were involved in the commission of the offence is for both an aggravating factor as no one ceased the sexual encounter from the time she protested, refused and yelled for help asking that the whole acting out ceases forthwith to no avail until help arrived. [ 15 ] It is not known whether the refusal was expressed from the time before the victim’s pants were down, at that time or after. There is no evidence of the victim having refused to be in the company of the two accused.

There is no evidence that the victim refused or consented to be undressed and there is no evidence that she consented to it. How she got undressed is not in evidence. [ 16 ] But, force was used from the time the victim yelled it was enough, making it clear that from that time, she refused categorically that it be pursued and that from that time, the evidence beyond a reasonable doubt is that she was being sexually assaulted. The pants of the victim were kept down as she was sexually assaulted. The offence was intimately intrusive as there was sexual penetration by Gabriel Icebound.

No evidence permits to conclude that Kevin Gunner had any other participation than being actively present, certainly not passive, as the victim was bending on him, was under the physical control and restraint of both. [ 17 ] Complicity is a component of the infraction and in any case speaks to diverse levels of participation resulting nonetheless in the commission of the sexual assault with the assistance of an accomplice. The complicity of Kevin Gunner contributed to the act of committing the sexual assault by the main Gabriel Icebound.

Both accused were then encouraging one another in the offence being performed. It cannot however be concluded that both accused had premeditated or planned the commission of the infraction. They got carried in the execution of the offence certainly through alcohol and if from the very start, all three were truly intoxicated, and the victim apparently very intoxicated and representing a person rather borderline but able to consent or refuse the pursuance of the intimate encounter as it had been agreed and started at the bar. The victim was unable to free herself and her intoxication contributed to it.

Kevin Gunner had ample time to move away and ceased restraining the victim. [ 18 ] The offence ceased only when the witnesses intervened as Gabriel Icebound was pushed off by one of the victim’s friends that with others came along walking rapidly in the direction of the call for help being voiced in the night. Kevin Gunner walked away and so did Gabriel Icebound after he managed to take up his pants. [ 19 ] It is only before sentence was rendered and after each accused was invited to add to their representations that a Victim’s Impact Statement was produced. She was indeed deeply hurt and humiliated.

It was a life changer for her so far. Her faith in human nature and sense of security and trust was hurt. She has not overcome the traumas suffered, she isolates herself and she is insecure, fearful of the offenders. [ 20 ] The victim’s family has certainly suffered from the disorganizing and hurtful consequences on her of that serious intimate intrusion.

The whole community suffers from such a disgraceful and illegal behaviour. [ 21 ] The Presentence reporter and the Gladue reporter speak to a very light risk of both accused although he never confessed to any wrong doing or did not demonstrate to these reporters any empathy which is not surprising due to Defence’s denial. Kevin Gunner spoke to the reporters of the necessity of undergoing healing measures in order to settle his alcohol abuse problems and of working with the resources of the community so as to curve down what he felt was problematic in his life.

The report on Gabriel Icebound relevancy that he submits to any specific treatment regarding sexual abusers is questioned in view of his denial of any guilt and his coherence in denying the need of any problem even of alcohol consumption abuse except the very need to heal generally from the difficulties of his childhood and abuse suffered. But such denial does not in any manner whatsoever constitute an aggravating factor. [ 22 ] The accused Kevin Gunner has no prior of a sexual nature.

But he has criminal priors that date back to 2000 and 2010 relating to charges of assault, threats, mischief or breach for which he was convicted or to a suspended sentence or a fine. [ 23 ] The accused Gabriel Icebound has no criminal prior and it is a mitigating factor and it contributes to support a finding of lighter risk of reoffending on the part of the pre-sentence reporters.

PRE-SENTENCE REPORT FOR GABRIEL ICEBOUND [ 24 ] Throughout the judicial process until the representations, the accused was on bail and he abided by all the conditions he was bound by.

In Court, as is also reiterated in the Pre-sentence Report and the Gladue Report, the accused reaffirms his innocence, to nothing having occurred, to his having no alcohol abuse problem, to consuming 10 bottles of beer on that evening, to having abided by the bail conditions namely regarding remaining sober and not communicating with the victim and to being from a family that is law abiding. [ 25 ] Gabriel Icebound is a Cree born in Waswanipi. [ 26 ] Gabriel Icebound has painful memories of his childhood, of the serious consequences on him of his parents having a serious alcohol problem, of his father being violent and abusive, of his mother being beaten who fled away often until doing it for good. [ 27 ] He has also painful memories of being sexually assaulted when at his grand-parents place notwithstanding the presence of two adults.

The accused had learning difficulties and he was unable to succeed more than his first year of high school. To cope and continue heading towards maturity, he benefited of the expert help of social services. [ 28 ] Gabriel Icebound failed his attempt to reconnect with his father who rejected him. He had diverse jobs. From 2012 to 2016, he acted as a substitute policeman which job he lost after being criminally pursued. [ 29 ] From 2007 to 2016, he lived with his wife and they had 3 children. The current pursuits contributed to the separation of the couple.

The accused suffered a depression period. [ 30 ] Since 2017, the accused lives happily with a lady companion that has 4 teenagers. [ 31 ] The accused states that although drinking since the age of 22 years old, he is in control of his alcohol consumption and that he knows his limits, that he is sober since the event of 2016.

The probation officer considers his alcohol consumption to be more problematic than he suggests, mainly due to the fact «he is struggling to verbalize his emotions […] even with his close relatives. » (page 8 PSR) « […] the drinking of the litigant that might certainly have helped to diminish his judgment and control» (page 9 PSR) Indeed, alcohol consumption was the determining and disinhibiting factor in the accused acting out. Since his arrest, the accused has stopped drinking and found a wellness and is full time working. [ 32 ] The accused is ready to undertake a therapeutic follow-up namely with Mr.

Iseroff with whom he has his past experience. He is ready to respect and follow the court’s recommendations and would like to continue his traditional activities. [ 33 ] The probation officer is of the opinion that the past traumas are to be addressed as the offender identifies the relevance of such help.

He needs also to develop an awareness of the ins and outs of his consumption habits. (page 9 PSR) He will need also to submit to an awareness program named Parcours within his social rehabilitation whether in a closed or open environment to allow a process of awareness and accountability to develop for the acts committed. So much thinks the Gladue reporter. [ 34 ] Gabriel Icebound’s mother believes his son has lots of anger as his best friend went with his wife. This would be when he started drinking.

His attitude is also of an emotional uneasiness as his father would have fought his girlfriend and she has invited him to seek forgiveness with his dad. His mother did not adapt to living and working up north in a women’s shelter and in group home as she felt sad for her children.

She spoke of Gabriel Icebound being a lonely boy and man. [ 35 ] The probation officer believes in a low reoffending risk, namely due to the absence of a criminal history, the presence of a support network, a capacity to learn from mistakes, the expected impact on him of the judicial process, the social reprobation and his situational stability. [ 36 ] Gabriel Icebound was assessed by the probation officer as having offered a good and transparent collaboration. He is said to have «a system of pro-social values in keeping with the one conveyed by society. » (page 8 PRS). [ 37 ] Mr.

Icebound’s alcohol consumption would be more problematic than he suggests mainly due to the fact he is struggling to verbalize his emotions… even with his close relatives. » (page 8, PSR) The probation officer states that «the drinking of the litigant that night certainly helped to diminish his judgment and control. » (page 9, PSR). [ 38 ] Since his arrest, the accused has stopped drinking, found a wellness and is full time working. [ 39 ] The accused is ready to undertake a therapeutic follow-up, namely with Mr. Joseph Neeposh with whom he has shared his past experience.

He is ready to respect and follow the recommendations regarding therapy, treatment, healing and he would like to continue working. [ 40 ] The probation officer is of the opinion that past traumas are to be addressed.

He needs also to develop an awareness of the ins and outs of his consumption habits (page 9, PSR) [ 41 ] The ongoing denial by the accused of his guilt suggests that he should undergo the Parcours program in jail so as to allow a process of awareness and accountability for the acts committed. [ 42 ] The probation officer believes in a low reoffending risk, namely due to the absence of criminal history, the presence of a support network, a capacity to learn from mistakes, the expected impact of the judicial process, the social MITIGATING FACTORS REGARDING GABRIEL ICEBOUND [ 43 ] The accused was assessed by the probation officer as having offered a good and transparent collaboration.

He has no criminal priors. He is presently working and stable in his personal life. The risk of reoffending is light.

[ 44 ] His willingness to submit to any therapy is oriented towards getting the healing therapy offered in his community. But it is not motivated or supported by any acknowledgement of any substance abuse problem, or any stress management or any personal acknowledgement. PRESENTENCE REPORT OF KEVIN GUNNER [ 45 ] Kevin Gunner is 47 years old. He is a member of the Cree Nation. [ 46 ] Born in Mistissini, he lives since 1995 in Waswanipi. He was given in adoption by his mother. His biological father showed very lately in his life. He was brought up by his grand-mother. He had a sister. He is married.

His parents and grandparents suffered a passage in the residential schools. Their life was troubled by excessive alcohol drinking and violence until he was 12. [ 47 ] It is at the age of fifteen years old that he was informed that he had been adopted. He has painful memories of his foster parents drinking and partying with other family members until the age of 12. He would when that happened, choose to play outdoors, sleep elsewhere. During those years, he was the victim of traumatising events that are still hurting him emotionally. From grade 4 in High school, he often was in the bush with his foster father.

In 2002, he completed his professional studies diploma in heavy machinery mechanic and obtained the supervisor positon with the municipality, [ 48 ] He knows his biological mother. She was a heavy drinker. He could not trust her. He felt rejected by her. She lied to him on the identity of his father that he finally only met at the age of 33 years old in 2005. That relationship was crucial and beneficial to the accused.

Unfortunately, his biological father died in 2012 which left the accused in shock. [ 49 ] The schooling period was difficult because he suffered until the dawn of his adolescence of racism and ostracism by white students. The accused lived hardly from his rejection and solitude until the time where he expanded his social network. [ 50 ] Since 1999, he is married and with his wife, they are the parents of 2 children, a 23 years old son and a 15 years old daughter. Since 1999, he is married and with his wife, they are the parents of 2 children, a 23 years old son and a 15 years old daughter.

Both are very affected by the current criminal pursuits and the couple has managed to consolidate their relationship. [ 51 ] He is a supervisor of public works for the municipality. He is on a paid leave of absence. He has obtained a degree of mechanics. He ceased his studies. [ 52 ] As to his alcohol drinking habits, between the end of his adolescence and his wedding, he drank in a recreational context.

He resumed his drinking after the death of his foster mother as he mismanaged emotionally her loss (page 9, PSR). [ 53 ] His priors of domestic violence and mischief for which he was imposed suspended probations and community work before 2002 and in 2010 where he was imposed a fine and a probation do speak to an accused that has been generally in his adult life a compliant citizen. [ 54 ] He still lives with his wife which speaks to the accused growing-up to solve his anger management problem and also speaks to the accused until 2016 having resolved any alcohol abuse problem.

As says the probation officer, «nothing indicates the presence of a delinquent dynamic rooted in him. We rather observe in its entirety a system of pro-social values in keeping with the one conveyed by society. » (page 10, PSR) [ 55 ] It was noted that notwithstanding his collaboration, «his level of accountability remained low, all of the more that he conceives having abused alcohol that night and forgetting some parts.

Anyway, he recognizes that this evening was a bad thing, sadly tragic in brief, he presents remorse, but these seem more related to himself while the empathy level for the victim remains partial. »(PSR, page 10) [ 56 ] The probation reporter speaks to the expected collaboration by showing openness and giving access to his support confirming certain of the information he provided. (PSR, page 10) [ 57 ] The probation reporter speaks to «a man who possibly suffered from a feeling of betrayal coming from the significate people around him during childhood. Some traumas are also seen unresolved.

Kevin Gunner has been confronted to multiple griefs that significantly affected him. (PSR page 11) «Consequently, he would have found shelter in alcohol consumption to alleviate his sorrow, though, if the offender have been able to demonstrate a rather stable operation in the past, it appears that he was in prowl of certain emotional frailty supporting bad decisions in this particular period, probably as being more centered on his own needs.

It is surely in this state of mind that that night under the influence of alcohol and looking for fun with his partner, that the litigant would have put his moral judgment aside, allowing the acting out in a situation which, however, appears to us as an isolated occurrence. » (PSR, page 11) [ 58 ] Kevin Gunner has quitted his alcohol consumption, he took some steps in therapy until November 2017 with a psychologist with regards to his childhood trauma, griefs and he experienced difficulties in his life.

He took over the entire housework since laid off as his wife is experiencing health issues. [ 59 ] The officer speaks to the accused ready to invest himself in a therapeutic follow-up as ordered by the court, and if fired from his job, to take a heavy machinery class, traditional activities are wished regarding cultural identity and recovery.

The probation officer felt that «his project was being partially relevant as it includes a therapeutic step linked to the few identified criminogenic factors and considering negation of most of the facts» (PSR, page 11) [ 60 ] The probation officer is of the opinion that Kevin Gunner could benefit from identifying elements that could lead to a loss of control and result in extremely serious decisions. […] the alcohol consumption remains […] the determining and disinhibiting factor to the subject’s acting out on the night. » (PSR, page 12) However, there are well identified emotional issues who motivate these actions and order a therapeutic intervention so no other events arise to taint his route. » (PSR, page 12) The Parcours program is recommended to allow a process of awareness and accountability for the acts committed.

[61] The probation officer is confident with a positive prognosis encouraged «a low recurrence in his criminality.

The presence of asupport network, a capacity to learn from his mistakes in this case by the expected impact on him of the judicial process had and thesocial reprobation exerted by the community as well as occupational stability.»(page 12, PSR) MITIGATING FACTORS FOR KEVIN GUNNER [62] Kevin Gunner has no criminal priors in sexual assault, His priors of the nature of assaults, threats, breaches date back to 1999,2000 save a mischief in 2010, all of which he was condemned or by suspended sentences and probations or the mischief by a fine. [63] In his last statement before sentence and even before a Victim’s Impact Statement was deposited, Kevin Gunner voiced hisheartfelt expressions of regrets, remorse, being sorry for the victim and her family, his acute awareness as to the torts suffered by thevictim, her family and her community.

The accused is believed and trusted on his sincerity. [64] Gladue factors regarding the community, the family and himself are believed and key in the sentence to be rendered and areanalyzed herein. [65] As another circumstantial factor on sentence, Kevin Gunner asks that be taken into account the plea of her daughter for a lightersentence without jail, a good job that he still has but may not have depending on the sentence. He invokes his key role in his family andnamely with his teen daughter who is frail and desperate of being deprived of the presence and support of her father.

GLADUE REPORT REGARDING SYSTEMIC AND BACKGROUND CIRCUMSTANCES CONCERNING THEOFFENDERS GROUP [66] Two reporters have prepared a Gladue report, Mr. Henry George Gull for Kevin Gunner and it can be said that the pre-sentencereports by Marie-France Beaudouin truly reflect the historical systemic and background circumstances contextual to the commission ofthe infractions. [67] The general systemic and background findings are quite the same for both Kevin Gunner and Gabriel Icebound.

Reference willbe made also to the background as described by the probation reporter for both. [68] The background and historic circumstances both in the inland communities of Mistissini and Waswanipi are described ashaving imposed difficult times before the signing of the James Bay agreement. The Gladue reporter Henry George Gull writes that«Both communities Mistissini and Waswanipi suffered from difficult times before […] 1975. From unemployment, alcoholism, and thepain and suffering caused by the residential schools.

To this day the community of Waswanipi still faces a shortage of houses, manyhomes are overcrowded and the community has a majority of ages 18 to 35, very few elders. It is also the most southern community inthe Cree Nation […] it is more easily accessible for alcohol and drugs to enter the community. Also, because of addictions to alcohol anddrugs or domestic violence others have broken relationships, may children are placed into foster care, until the parents can resolve theirissues.

Because of addictions many young adults become repeat offenders. » (page 8, Gladue report of Kevin Gunner). [69] And the reporter quotes R c Gladue and namely writes that «The background factors, which figure prominently in the cessationof crime by aboriginal offenders, are by now well known.

Years of dislocation and economic development have translated for manyaboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack of relevance of education, substanceabuse, loneliness, and community fragmentation»((R c Gladue, (SCC), [1999] 1 SCR 688, paragraph 67) [70] The Gladue considerations as they are referred to in the probation report are of utmost importance. This understanding of thehistorical general situation is very significant to the situation of the Cree or Eeyou Istchee nation»

Thus, for several decades, children hadbeen separated from their families, forbidden to express themselves in their mother tongue and live according to their traditions. Many ofthe children were neglected, physically, verbally, psychologically or sexually abused during their stay in residential schools. It isimportant to make a return to these historical elements because the community of Mistissini was affected by this law and because therepercussions of the attendance of the residential schools are transmitted from generation to generation.

Considering the trauma enduredat residential schools, many children were raised without a meaningful and adequate parental model». (Presentence Report of GabrielIcebound, page 4) » In addition, the separation of families and the learning of a new culture would have created attachment problems anda lack of sense of belonging to the Native culture in some individuals.

Some of them are no longer able to communicate with elders in thecommunity as they spoke no longer the same language»(Presentence report of Gabriel Icebound, page 5, Presentence Report of KevinGunner, page 5) [71] « Over the years, studies have identified specific problematic spheres that have persisted since assimilation within NativeCommunities.

For example, familial violence, poverty, lack of housing and overcrowding, pathological gambling, health issues, highdrop-out rates, high infant mortality rates, alcoholism and drug addiction, high suicide rates, high rates of sexual assaults, HIV andsexually transmitted infections, teenage pregnancies, children placement, and criminality. According to Pierre Picard, psychologist andmember of the Aboriginal Psychosocial Interventions Group, the rates for all problematic spheres are generally 5 to 7 times moreelevated than within the rest of the Quebec population.

The resources in Cree communities are limited. » (Presentence Report KevinGunner, page 6; Presentence Report Gabriel Icebound, page 5). [72] Many of these problems have to do with the goal of assimilation of natives, through detracting from their legal rights those whohad the Indian status and creating reserves and thus interfering with the customs and habits of the First Nations who were formerlynomads and forcing parents to send their children in residential schools under pain of their allowance being severed. (Presentence Reportof Kevin Gunner, page 5.) PARTICULAR CIRCUMSTANCES OF THE OFFENDER WHICH MAY CONTRIBUTE TO HIS FRAILTIES INHERITEDOR LEARNED THROUGH THE SYSTEMIC OR BACKGROUND CIRCUMSTANCES REGARDING GABRIELICEBOUND. [73] Gabriel Icebound is 36 years old.

He is born Cree in Mistissini.

[ 74 ] Until the age of 5 years old, he got to know his father S. I.. He has painful memories of his childhood, moving from cities to cities, both having a significant alcohol abuse problem and his mother being regularly beaten-up by his father and he tossed in bed. He witnessed it and remembers it. Because of that, the accused was confided to a grand aunt and for over two years, it became the worst period of his life, as he was sexually abused by a man living in that house as the two other adults were assisting the abuser.

That was a nightmare for two years. [ 75 ] His mother was an alcoholic and, when she became pregnant of her daughter, she stopped drinking and this is when he resumed living in Chisasibi with his mother and his stepfather from the age of 8 to 21 years old. As a child, she was placed in a foster home for the purposes of attending school but there were always parties in the house. [ 76 ] Gabriel Icebound was bullied at school. He did not get over his grade one high school even after he studied at adult school. [ 77 ] Gabriel Icebound attempted to establish a relationship with his father.

In Waswanipi, his father told him of his Residential school experience that was pretty hard, «where he went through a lot […] where he got sexually assaulted and [...] got beaten up by a priest. » (page 2 under Education, Gladue Report) Gabriel felt sorry and was affected by the abuse suffered by his father but he could not get to know or get along with his father as his father was drinking. The efforts of Gabriel to bridge the relationship to his biological father and catch up and get to know him did not achieve his purpose and he remained sour and sorry for this not happening.

At 21, the father rejected contacts with him. [ 78 ] The heavy baggage of his early childhood and childhood until his mother got to live with his stepfather appear to have contributed to cause his learning difficulties notwithstanding his efforts. [ 79 ] He stayed with his mother who became Christian and joined his mother as she visited her family. Gabriel then started working as a garbage man or cell guard and from 2002 to 2016 as a substitute policeman still in Waswanipi.

He has had occupational stability until the infraction alleged and since then, his life was shaken, his marriage ended after a ten years marriage, and he has until the death of his paternal grandmother lived with her, unemployed, isolated and he has been since with his current girlfriend and her four teenagers in a relationship marked by complicity. [ 80 ] His past traumas are to be addressed as the offender identifies the relevance of such help. He needs also to develop an awareness of the ins and outs of his consumption habits.

He will need also to submit to an awareness program named « Parcours» within his social rehabilitation whether in a closed or open environment to allow a process of awareness and accountability to develop for the acts committed. [ 81 ] Gabriel Icebound’s mother believes his son has lots of anger as his best friend went with his wife. This would be when he started drinking. His attitude is also of an emotional uneasiness as his father would have fought his girlfriend and she has invited him to seek forgiveness with his dad.

His mother did not adapt to living and working up north in a women’s shelter and in group home as she felt sad for her children. She spoke of Gabriel Icebound being a lonely boy and man. [ 82 ] Gabriel Icebound grandmother went to a residential school, she experienced abuse in school and she was indeed abused sexually, mentally and emotionally. She did not detail that information to her daughter. [ 83 ] Mr. Gabriel Icebound experienced alcohol at age 22 in Waswanipi, used it in a recreational context, does not appreciate those gatherings, will maintain drinking habits at a rate of a dozen when he drinks.

He says he knows his limits and knows when to stop and he remains in control of his consumption. He has ended consuming alcohol since his arrest. [ 84 ] The accused has no criminal priors. PARTICULAR CIRCUMSTANCES OF THE OFFENDER WHICH MAY CONTRIBUTE TO HIS FRAILTIES INHERITED OR LEARNED THROUGH THE SYSTEMIC OR BACKGROUND CIRCUMSTANCES REGARDING KEVIN GUNNER [ 85 ] Kevin Gunner was born Cree and was given in adoption to a couple. He has painful memories of his childhood as his foster parents were drinking and partying. He would then rather hide under the bed, play outside or sleep elsewhere to be safe.

He was affected emotionally and mentally and even scared when there were arguments at his home. [ 86 ] At school until the dawn of his adolescence, he suffered racism and ostracism and he perceived it as being alike residential schools. [ 87 ] As he lived at his aunt’s place, he was abused by an uncle, even in the presence of adults who did not protect him and who witnessed the abuse. He was left traumatised. Lived at his grandfather had a temper when he was intoxicated. [ 88 ] He only learned of his adoption when in his teens.

His identification quest was countered by his biological mother and he suffered lots of anger through that unsatisfactory and underdeveloped relationship and he felt rejected and violated through the mother’s hiding his father’s identity. [ 89 ] He has suffered traumas that seem unsolved and has been confronted to multiple griefs during his life including his foster father, biological father, biological mother and other relatives including an uncle. [ 90 ] The accused began his alcohol consumption habits around the end of adolescence, firstly on a recreational context, more regularly till his wedding and has resumed excessive drinking when his foster mother passed away in 2016.

His consumption coincides with some criminal behavior although not elaborated he indulged into. It was in 1998 and 2000 conjugal violence mainly and a breach of probation. The accused and his wife are still living together. In 2010, he committed a mischief for which he was fined. [ 91 ] Kevin Gunner has been working throughout and has a steady job and responsibilities in heavy mechanics for the community.

[ 92 ] Kevin Gunner has a few priors of conjugal violence and breach between 1998 and 2000 and a prior of mischief in 2010. All of these were settled through suspended sentences and probations or a fine. Alcohol way instrumental when he committed those criminal infractions. These infractions or date back to before his marriage or happened as he had lost a foster mother. His spousal relationship is stable, revitalised since the criminal incident and he had two children, one of whom a police officer and a 15 years old daughter [...].

Her father is close to her and helps her overcome her difficult to achieve stability in the course of her adolescence. ANALYSIS [ 93 ] Denunciation, collective deterrence and isolation when needed are certainly amongst those objectives to serve in sentencing a sexual assault case.

This does not set aside the need that a custom fit sentence should be imposed also taking into account that those former objectives should be also considered in the light of an accused rehabilitating, socially reinserting, developing an acute awareness of the torts done to the victim and to society. [ 94 ] Such objectives can be attained through the considerations of what would be a sentence that would both protect the society, the victim included, foster and serve a peaceful and just society and would be an individualized fit sentence that serves in a balanced way all those objectives and reaffirms anew the social contract and understanding this society has with its citizens and thus serves to control the risk of reoffending in the best interest of the community and family and individuals directly concerned. [ 95 ] The whole situation calls for measures that for First Nations and First People involved and for its offenders, constitute an available sanction otherwise than incarceration, including a combination of less incarceration and a restrained freedom with the conditions necessary to foster rehabilitation and if possible measures of restorative justice with the community in general. [ 96 ] Measures of isolation are to be used with great caution in harmonizing other measures serving rehabilitation and the life of the community as society needs the best of its citizens and that they be law abiding citizens.

For that, there are several local and national Cree, native or non-native resources that can serve the growth, healing and wellness of the offenders and of their society. There are several resources regarding adults facing addictions, substance abuse, anger management or emotional dependency problems. It is not my belief that to protect the development of a just and peaceful society, incarceration can be used widely to punish, not that punishment is not a tool also relevant to foster rehabilitation.

Wherever jail is relevant and necessary to achieve the objectives of sentencing socially and individually as well, it has to be used with great caution. [ 97 ] The subjective gravity has to be weight so as to impose a custom fit sentence, the least restraining sentence as reasonable, one fit to serve the growth of a fair and just society in taking into account the goals of rehabilitation, social reinsertion, reconciliation between the community and its defaulting citizens and the development of their awareness, all goals to be served in a personalized and community way. [ 98 ] The Gladue and Pre-sentence Reports speak to those national, community family general situations that have contributed to their losses of empowerment, to the loss of diverse skills and abilities through the decisions and policies implemented by governments, to the loss of their sense of belonging and identification.

The communities are hurt and frail and strive to develop hope and abilities and projects where the sense of togetherness will be encouraged. Over-incarceration calls for adapted measures where incarceration is reduced without affecting the message of denunciation, of justice, of equity, of security needed namely for adult female victims.

In this case, in view of the devastating effect of the intrusive sexual assault on the victim, the long term advantage of a probation order distancing victim and accused persons will serve to achieve and further the sense of security and integrity needed by the victim. [ 99 ] The Cree national and community and family traumatic historic and intergenerational trauma do reflect at least indirectly and contribute to some understanding of the major losses or weaknesses of its citizens in their abilities to develop personally and community wise.

They contribute to explain those inherited frailties in families and communities and individuals harmed in their ability to grow up, to develop self-esteem, to face the challenges of betrayals and contempt and losses of abilities though generations, sense of belonging, cultural values, victimization all of these, and much more impacting in diverse pernicious ways the life of the persons of their society.

Amongst those factors that also contribute to the frailties developed there are factors such as «loss of family, education, substance abuse, domestic violence in family, sexual abuse, underemployment, low income and trauma»(7 th page of the Gladue Report of both accused) [ 100 ] Generally both accomplices to a sexual assault should be punished in a similar fashion when they are directly involved or assisting the commission of a sexual assault. [ 101 ] A fit sentence regarding Mr. Gabriel Icebound cannot be the one recommended by Prosecution.

A sentence of three to six years jail sentence may be fit without considering the Gladue aspects. But such is not the case taking into account the Gladue aspects. [ 102 ] Gabriel Icebound has no priors, it is the first time he will have to serve a sentence. This sexual assault is subjectively very serious. The absence of admission or remorse or regrets or acknowledgement of a serious alcohol abuse problem is not an aggravating factor.

Nonetheless, it is for who acknowledges his wrong doing shows remorse, regrets, empathy and enters a pathway of healing that it is a mitigating factor in the sentence to be assessed and rendered. [ 103 ] Defence recommends for both a 90-days discontinued sentence having in mind namely the very long traveling back and forth necessary to travel to the Jail of Amos, their personal situation and the very light risk of reoffending and the necessity and sufficiency of imposing the least restraining sentence.

Such a sentence would not be reasonable and sufficient to denounce the subjective gravity of the infraction taking into account all of the aggravating circumstances notwithstanding the mitigating factors including the Gladue factors and the personal family circumstances of Kevin Gunner. [ 104 ] Regarding Gabriel Icebound, taking into account all of the factors to be considered, a two years jail sentence represents an individualized fit sentence and a probation order of 3 years will be made, namely to give the victim the protection of diverse orders regarding the contacts with her and regarding the necessity of Gabriel Icebound getting engaged in a process of healing and follow-up and therapy as he has generally agreed to. [ 105 ] The situation of Kevin Gunner calls for the same remarks as to what would be an individualized fit sentence.

There are important

differences that are mitigating and show a true pathway of rehabilitation, social reinsertion and development of his awareness as to the torts caused to the victim and to the community. [ 106 ] Kevin Gunner is far from having remained unaware or Teflon for what he did. In Court, at the end of the hearing process after the representations of both attorneys, he spoke in a radically different fashion about the infraction of which he was found guilty. [ 107 ] He was clear, emotional, learned, articulate, sensitive, displaying more than common sense, but also a sound understanding of the impact of his wrongdoing.

He showed an understanding of the consequences suffered by the victim, family, community and even his family like I have seen no one so demonstrate. He did so even before the Victim’s impact statement was communicated to the Court before the sentence to be rendered. [ 108 ] Kevin Gunner resents deep inside how wrong he was and how much he breached his personal commitment to grow otherwise. Indeed it took a very long time to the accused to admit to his wrong doing openly. He did not directly readily admit to his wrongdoing in the Presentence Report or in the Gladue Report.

But he had admitted his lack of judgment and error in drinking as he did. And it is believed that he was quite cornered by the ongoing debate on his guilt and his strong denial. [ 109 ] Therefore, as he chose to speak to his manifest error of judgment and to the nature and extent of the consequences on the victim, the victim’s family, his own family and community, he was not only sincere but truthful in that late address to the court before sentence. He is regretful, sorry, remorseful, shameful and he voices very well what he perceived was the impact on the victim and her family and on the community.

All of that improves the expectation of the accused representing a very light risk of reoffending. [ 110 ] Kevin Gunner acute understanding of his unacceptable and wrongful behavior speaks to a man having developed a fine and articulate intuition and knowledge of how female individuals namely need to be spared from such an intrusive and hurtful behavior, potentially a changer of life. He showed empathy and understanding for the rights of women to their integrity and dignity.

He showed insight which is most welcomed. [ 111 ] Kevin Gunner understands, resents and is truly sorry for the consequences of his offence on his family, on his children, on his community and he is sorry and takes full responsibility. [...]. He plays a major role at home. Her daughter’s plea to save her father any incarceration was vibrant and it is an affirmation that he is significant in her life.

This is a reality that contributes to shape the sentence to be rendered but does not set aside the need to denounce her father’s behavior although it is believed that the objective of personal deterrence is achieved and the risk of reoffending truly very minimal. [ 112 ] As for Gabriel Icebound, and certainly very clearly for Kevin Gunner, the passage to the offence had a close connection with his more problematic episodes of alcohol consumption. The accused breach of sobriety was key in indulging into that criminal conduct.

Kevin Gunner voiced a blunt show of awareness as to the devastating effects of his drinking on that night and of his having resumed alcohol with the ill effect of exacerbating his emotions and weakening his judgment and inducing him to indulge in assisting the commission of the offence.

Kevin Gunner believes that he overacted mainly because he had resumed abusive alcohol consumption and that it contributed importantly to a negative change in his behaviour and this most serious error of judgment impacting his life and the life of others. [ 113 ] Kevin Gunner is resolved never to indulge any more in any alcohol consumption and in reoffending.

The accused move to speak openly notwithstanding his definite lack of transparency with the Presentence and Gladue reporters justifies the Court’s opinion that he is sincere, has a sound understanding of the human being and of the extremely serious aftermath for the victim and for all of his delinquent drinking and serious misbehaviour. [ 114 ] If restorative justice has to be given a sense, it can be so in giving its full value to the accused regrets, to his willingness to address excuses to the victim and her family, his being caught up by his judicial obligation not to enter in touch with the victim and his inability to say that much to her family.

If there is any redemption to be achieved in part as the victim cannot be reinstated in her pre- sexual assault situation, that very frank, truthful and deep expression of having acted wrong and thus having hurt not only the victim and her parents but also all of his family and children and community, it can be hoped that this might be a starting point for the victim. Scars will remain in her memory, trust and relationships. Kevin Gunner should be able to serve actively again his community. [ 115 ] I believe strongly that in

section 718 of the Criminal Code , there are a number of objectives and factors that are to be interpreted with a wide, demanding and coherent openness in order to permit the development of an adapted meaningful socially, individualized and judicially innovative justice.

The solutions and views of an individualized fit justice should also reflect the need and ability of diverse local, regional and national resources to contribute to rehabilitate and socially reinsert offenders. [ 116 ] The existence of proper healing, therapeutic resources, of an active Justice Committee, of community support and social reinsertion occasions are most important for the delinquent to foster his rehabilitation and a better integration in the community so as to likely diminish significantly the rate of reoffending of the community’s citizens.

This is so and has been demonstrated relevant and useful where proper intense resources are offered when a citizen truly is structurally invested in his own rehabilitation. No doubt that this would have an immense impact on the rate of reoffending. [ 117 ] Incarceration unaccompanied by a thorough and intensive investment in healing and therapeutic resources would not serve the best interest of a peaceful and just society.

Likewise, namely to foster sobriety and serve healing and rehabilitation when in the community, persons under probation should benefit of a variety of adapted thorough and if deemed better, intensive investment in healing and therapeutic resources and services. This would help build more security within the community, more stability, much less reoffending and would foster a guarantee of development of a peaceful and just society. [ 118 ] Regarding Gabriel Icebound, a fit and individualized sentence is a 2 years jail sentence with a 3 years’ probation.

Regarding Kevin Gunner, a fit and individualized sentence is a 16 months jail sentence with a 3 years’ probation. FOR THOSE REASONS:

The Court condemns Gabriel Icebound to a jail sentence of 2 years. The Court condemns Kevin Gunner to a jail sentence of sixteen months. The two accused will be bound by a three years’ probation following their respective jail sentence at the following conditions Keep the peace, be of good behaviour.

Appear before the Court when required to do so by the Court Notify the probation officer of any change of address, phone number, or name or quickly notify of any change of employment and occupation Report to a probation officer and to the Justice Committee of Mistissini within a period of 10 working days after the coming in force of the Probation Order and thereafter , when required by the probation officer and in the manner directed by the probation officer as well as by the Justice Committee.

The accused shall consent and insure that reports of the Justice Committee of Mistissini shall be communicated upon demand to the Probation officer. The accused shall submit to any and all follow-up, treatment, therapy or healing resources as recommended by the Probation officer regarding substance abuse problems, stress management and sexual delinquency. The Court orders the accused not to communicate directly or indirectly with the victim or attend the victim’s residence.

Prohibition to the accused to be in possession of any firearm, cross-bows, ammunition, restricted use or prohibited use weapons, explosive substances in virtue of

section 109 of the Criminal Code , under reserve of

section 113 of the Criminal Code for a period of 10 years. Order to comply with the Sex Offender Information Registration Act in virtue of

section 490.012 of the Criminal Code for a period of 20 years from these presents. Order authorizing the taking of bodily substances for forensic DNA analysis under

section 487.051 (1) and (2) of the Criminal Code within 60 days of these presents. __________________________________ LOUIS A. LEGAULT, J.C.Q. Me Marie-Josée Barry-Gosselin Attorney for Prosecution Me Ratha Heang Attorney for the accused Kevin Gunner Me Michel Grenier Attorney for the accused Gabriel Icebound Dates of hearing: April 5 th 2018, May 22 nd 2018, July 18 th 2018, August 14 th 2018 and September 23 rd , 2019.