2019 QCCA 858, 2019 QCCA 858

R. c. Hester 2019 QCCA 858 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-003441-172 (640-01-020495-108) DATE: MAY 13, 2019 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. JULIE DUTIL, J.A. ROBERT M. MAINVILLE, J.A. HER MAJESTY THE QUEEN APPELLANT — Prosecutrix v. WILLARD HESTER RESPONDENT — Accused JUDGMENT [ 1 ] With leave from a judge of this Court granted on November 15, 2017, the Crown appeals the sentence imposed on the respondent on September 18, 2017 by the Honourable Mr.

Justice Guy de Blois of the Superior Court following a jury verdict reached by a jury on December 10, 2016 which found him guilty on a charge of manslaughter. [ 2 ] The appeal was heard on April 8, 2019 in Quebec City and the matter was taken under advisement. [ 3 ] For the reasons of Mainville, J.A., with which Rochette and Dutil JJ.A. concur, THE COURT : [ 4 ] DISMISSES the appeal; LOUIS ROCHETTE, J.A. JULIE DUTIL, J.A. ROBERT M. MAINVILLE, J.A.

Mtre Geneviève Lamontagne DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For Appellant Mtre Ratha Heang RATHA HEANG, AVOCAT For Respondent Date of hearing: April 8, 2019 REASONS OF MAINVILLE, J.A.

[ 5 ] On December 10, 2016, the respondent, Willard Hester, was found guilty by a jury of the following charge: On or about July 24, 2010, in Chisasibi, district of Abitibi, did cause the death of Aaron Bearskin, committing thereby a manslaughter, the indictable offence provided by sections 234 and 236b) of the Criminal Code . [ 6 ] On September 18, 2017, the Honourable Mr. Justice Guy de Blois of the Superior Court sentenced the respondent to a period of imprisonment of two (2) years less a day. [1] This term of imprisonment was reduced to 546 days taking into account the time spent in pre-trial custody.

A probation period of three (3) years was added to the incarceration comprising various conditions, notably the performance of 240 hours of community service within a period of 18 months, counselling with community elders, sessions with a psychologist and active participation in various community activities. [ 7 ] The Crown appeals this sentence on two grounds: (

a) it does not reflect the sentencing objectives of denunciation and deterrence set out in

section 718 of the Criminal Code (“ Cr.C . ”); and (

b) it does not respect the principle of proportionality found in

section 718.1 Cr.C . THE CONTEXT [ 8 ] The respondent and the victim, Aaron Bearskin, were friends and members of the Cree Nation of Quebec. At the time of the events leading to the charge, they were both residing in the Cree community of Chisasibi, near the coast of James Bay. On the evening of July 23, 2010, the respondent was drinking and consuming cocaine together with the victim and three other persons.

The party was held at the respondent’s house in Chisasibi and continued throughout the night. [ 9 ] In the early morning of July 24, 2010, the victim, Aaron Bearskin, was seen standing between the kitchen and the dining room of the house, with blood streaming from his chest. A knife was on the dining room floor. He was brought to the local hospital and declared dead. [ 10 ] The police arrested the respondent near his home. He had discarded his t-shirt and socks and was in a state of inebriation.

In his police interview, he remembered little of the events, though he acknowledged that he had seen the victim kiss his wife and had fled the scene when he saw the victim covered in blood. [ 11 ] The respondent was charged with manslaughter. The prosecution’s case was circumstantial. The Crown’s theory was that the respondent had acted in a fit of jealousy fuelled by alcohol and cocaine, which led him to stab the victim in the kitchen. The defence submitted that the Crown had not refuted beyond a reasonable doubt the reasonable alternative theory that the victim had committed suicide by stabbing himself.

The defence further submitted that, in any event, the Crown had not established the respondent’s guilt beyond a reasonable doubt. [ 12 ] A first jury trial was held in 2014. On June 20, 2014, the jury found the respondent guilty as charged. He was subsequently sentenced to five (5) years' imprisonment. However, on September 10, 2015, this Court set aside the verdict and ordered a new trial since technical issues had made it impossible to obtain the complete transcript of the testimony of three witnesses. [2] [ 13 ] A new jury trial was held in 2016.

On December 10, 2016, the second jury also found the respondent guilty as charged, leading to the sentence now under appeal. THE SENTENCING JUDGMENT [ 14 ] After setting out the applicable sentencing objectives and principles, the judge analyzed the factors related to the victim, those related to the crime and those related to the accused, as well as the case law, to ultimately reach a fit sentence. [ 15 ] With respect to the victim, the judge noted his young age (25) and his close relationship with the respondent.

He also took note of the impact his untimely death had on his family, his friends and his community, as well as his involvement as a proud and active member of that community. [ 16 ] As for the crime itself, the judge noted that a knife had been used, which was an aggravating factor.

He also noted, however, that the victim died of a single stab wound, that the crime took place over a very short period of time, without any evidence of deliberation or planning, and that the respondent was in an advanced state of intoxication from alcohol and drugs when he acted. [ 17 ] A large part of the judge’s analysis focussed on the respondent. Since it is obvious that the factors related to the respondent are what particularly influenced the judge’s decision with respect to the sentence, the excerpts of his reasons dealing with these factors are reproduced in full: [3] [42] Willard Hester is a Cree man.

He was 37 years old at the time of the offence. He now is 44 years old. [43] He has been living in Waskaganish for approximately 10 years. He is married, with three children aged between 5 and 15. He and his wife have also been foster parents to children of the community placed in their care by the department of Social Services. [44] Willard Hester is the tenth of eleven children. He was an introverted child, raised in a good environment. He shared with the Gladue report writer that he did not witness violence at home when growing up, and that his parents separated when he was young.

They consumed alcohol, but quit when he was still a child. [45] He has fond memories of his family together, practising traditional activities in the bush. His parents led a traditional life, and lived off the land, operating their trap line. His father taught him the traditional way of life, survival in the bush and the value of work.

[46] Mr. Hester’s educational background does not appear to be problematic, but he mentioned seeing other students being abused by the teachers at school, which made him scared and angry. He left school after completing secondary IV, and attended adult education later on. He has completed various training programs, and has always been working. [47] His family has directly faced the trauma and consequences of residential schools. Although neither he nor his parents attended, his six oldest siblings were forced to. Two of his aunts also never came back from these schools.

When his siblings returned home for the summer, their behaviour had changed: they would act out, argue with their parents and consume alcohol. [48] The members of Cree communities are exposed, either directly or indirectly, to the destructive repercussions of substance abuse, violence and lack of adequate resources. Such issues stem from the history and systemic factors of Aboriginal people, and have played a

part in bringing Willard Hester before this Court. [49] Mr. Hester started consuming alcohol at the age of 14. He was a heavy drinker for many years, and experienced blackouts on a regular basis. He smoked cannabis for a time, then stopped. He consumed cocaine from 2008 until the death of Mr. Bearskin. [50] He had his first encounter with the criminal justice system in 1992, when he was found guilty of assault, then in 2009 for driving while impaired and failure or refusal to comply with demand.

As noted in his pre-sentence report, “his previous convictions appear to be linked to a problematic use of psychotropic substances”. Substance abuse and alcohol consumption again played an important role in what happened on July 24, 2010. [51] Mr. Hester did not address his addictions before the event. However, he quit consuming on his own after the death of Mr.

Bearskin, and has remained sober for seven years now. [52] During his interview with the probation officer, he admitted that his previous acquaintances “partied often”, and that he has since modified his network and stopped associating with people who consume drugs and alcohol. [53] Although he does not remember what happened, he feels responsible and shows genuine empathy towards the victim. He knows that his intoxication is not an excuse for his actions, and has not minimized his involvement. [54] He is deeply troubled by the fact that he will never know for sure what happened on that night.

He grieves the loss of a nephew and a friend, and will never be able to have closure on this part of his life. [55] He shows a high degree of introspection in that matter, and is aware of the link between his past consumption and the consequences of his actions. The death of Mr.

Bearskin and the ensuing judicial procedures have had a dissuasive effect on him, and serve as a constant reminder of the importance of staying sober. [56] In light of the changes he has made in his life since the event, that is, the absence of new criminal offences, the presence of a support network, a well-nourished reflection process, a maintained sobriety and an occupational stability, Willard Hester’s probation officer has placed him at a low risk of reoffending.

She has also noted that he has adequately functioned since his release, and possesses the capacities and the necessary mobilization to pursue his personal development. [57] Mr. Hester feels a deep bond with his Aboriginal heritage. His family and the community elders have instilled traditional values in him early on in his childhood. Throughout the years, he has contributed to his community by building houses, helping elders, hunting and sharing traditional food, and taking his children and other children of the community in the bush to teach them traditional activities.

He is also the representative for his family’s trap line, and has performed navigation studies as the Cree territory environment protector. [58] He is currently a volunteer firefighter, and sometimes monitors the community at night as part of his security work. He has been hired as a guide for various contracts, where he teaches the Cree way of life and traditions to youth and adults involved in the court system, community members, tourists and students.

The participants then give back to the community by sharing the wild meat and fish they have harvested. [59] The complementary pre-sentence and Gladue reports show that Willard Hester has kept himself employed and involved in his community through the years, and that he is committed to repairing the harm he has done. [60] When asked about his past incarceration, he said the hardest issue he has faced was the language barriers and not being able to speak the Cree language. It was also difficult for him to be in a different environment. [61] Mr.

Hester has been receiving healing while out on the land with family members, youth, at-risk youth and community members, and has been seeking advice and guidance from respected elders. [62] He attaches great importance to his involvement with the youth, which has a therapeutic effect on him. He spends his free time hunting and fishing in the bush. Being in touch with nature helps him ventilate his emotions. [63] He is actively involved in community programs, training programs, contracts, studies, employment, and volunteer work.

He shares his particular skills with his community and takes pride in promoting the Cree way of life in Waskaganish. [64] Willard Hester has shown he is a responsible father, husband and provider. He has respected his conditions, collaborated well during the completion of the reports, and met with counsellors.

His immediate family has been and continues to be an important source of support. [65] He is also willing to meet with Aaron Bearskin’s family – if they agree to it – as part of their healing journey. [ 18 ] Based on these factors and after reviewing various sentencing cases, the judge imposed the following sentence: [4] [98] SENTENCES the accused to a period of imprisonment of two (2) years less one (1) day (729 days), reducing this period to a

term of 546 days from this day , taking into account the time spent in pre-trial custody; [99] ORDERS that the accused, as soon as he is released from prison, comply with a probation for a period of three (3) years and respect the compulsory conditions and also the following optional conditions: - report to a probation officer within ten (10) days of his release from prison; - abstain from consuming alcohol or other intoxicating substances or drugs, except in accordance with a medical prescription; - perform two hundred and forty (240) hours of community service within a period of eighteen (18) months; - attend counselling with Elders in the community for guidance, advice and support; - attend sessions with the Department of Justice and Correctional Services psychologist, Lorraine Spencer, when she is available and in the community; - share and work with youth in his community and other Cree communities; - volunteer with the Mobile Treatment program that is offered on a yearly basis, which is located 20 kilometres from his community; - continue his healing journey in his own community out on the land with his family; - receive counselling with his wife and children; - teach traditional activities to youth, at-risk youth and members in his community; - participate with his son and get involved and work with youth and guides who take

part in the yearly Canoe Brigades; - provide and cut wood for the elderly and families that are in need; - work with the Cree Culture Boys Classes, for example, cutting wood, setting rabbit snares, setting beaver traps and teaching ways of survival. [100] ACKNOWLEDGES the accused’s willingness to meet with the victim’s family, if they agree to it, by writing a letter, arranging a meeting or setting up a healing circle with the Wiyaaskunichewin Justice Committee. [101] ORDERS a prohibition from possessing any firearms and weapons as listed in

section 109 of the Criminal Code for a period of ten (10) years after his release; [102] LIFTS the prohibition order for sustenance, as provided in section 113(1) (

a) of the Criminal Code ; [103] ORDERS the accused to give the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis in accordance with

section 487.051 of the Criminal Code ; [104] ORDERS the accused to pay the victim surcharge. ANALYSIS [ 19 ]

Section 718 Cr.C . sets out the fundamental purpose and the objectives of sentencing: [5] 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: 718 Le prononcé des peines a pour objectif essentiel de protéger la société et de contribuer, parallèlement à d’autres initiatives de prévention du crime, au respect de la loi et au maintien d’une société juste, paisible et sûre par l’infliction de sanctions justes visant un ou plusieurs des objectifs suivants : (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

a) dénoncer le comportement illégal et le tort causé par celui-ci aux victimes ou à la collectivité; (

b) to deter the offender and other persons from committing offences;

b) dissuader les délinquants, et quiconque, de commettre des infractions; (

c) to separate offenders from society, where necessary;

c) isoler, au besoin, les délinquants du reste de la société; (

d) to assist in rehabilitating offenders;

d) favoriser la réinsertion sociale des délinquants; (

e) to provide reparations for harm done to victims or to the community; and

e) assurer la réparation des torts causés aux victimes ou à la collectivité;

(

f) to promote a sense of responsibility inoffenders, and acknowledgment of the harmdone to victims or to the community.

f) susciter la conscience de leurs responsabilitéschez les délinquants, notamment par lareconnaissance du tort qu’ils ont causé auxvictimes ou à la collectivité. [20] The Crown recognizes that the sentencing judge considered these sentencing objectives, but submits that he gave insufficientweight to those enumerated at paragraphs 718(

a) and (

b) Cr.C. concerning denunciation and deterrence.

The Crown adds that the judgefailed to recognize the respondent’s motive for the crime (jealousy resulting from the victim kissing his wife) and gave insufficientweight to the use of a weapon (a knife) by the respondent, to his criminal record and to his lack of remorse. [21] Contrary to the submissions made on behalf of the Crown, the sentencing judge was clearly aware of the objectives ofdeterrence and denunciation, specifically mentioning these in his reasons: “In such cases of violence, the objectives of denunciation anddeterrence should be given consideration.”[6] The judge further noted the objective gravity of the crime,[7] the young age of the victimand the impact of his death on his family, friends and community.[8] The judge also identified the use of a weapon as an aggravatingfactor in this case,[9] as well as the vicious nature of the attack suffered by the victim.[10] [22] Moreover, the judge specifically considered both the remorse expressed by the respondent and the dissuasion which resultedfrom this remorse.[11] He also took into account the respondent’s previous convictions, while noting that these were directly related tohis prior problems with substance abuse, problems which had now been brought under control.[12] The judge further found that thesesubstance abuse problems were themselves the result, in part, of the respondent’s aboriginal circumstances.[13] [23] It is thus apparent from the sentencing judgment that the judge did not neglect to consider the objectives of dissuasion anddeterrence.

The judge considered these objectives and, in reaching his decision, he weighed them with respect to other sentencingobjectives. The Crown’s appeal, therefore, is not based on the argument that the judge neglected to consider specific sentencingobjectives, but rather on a disagreement with the manner in which the judge weighed the various aggravating and mitigating factors inreaching his conclusion with respect to an appropriate sentence. As noted in R. v. Lacasse, “determining the weight to be given toaggravating or mitigating circumstances falls strictly within the sentencing judge’s discretion.

The decision to weigh such factors in agiven way is not itself an error that opens the door to appellate intervention unless the weighing is unreasonable”.[14] [24] In this case, while being acutely aware of the objective gravity of the offence, the sentencing judge took into account allsentencing objectives, including deterrence and dissuasion, but favoured the objective of rehabilitation in order to reach a sentence whichhe deemed proportionate not only to the gravity of the offence, but also to the respondent’s circumstances as an aboriginal offender.

In sodoing, he clearly considered the degree of responsibility of the respondent, but also a multitude of other pertinent factors.

In view of thedetailed analysis carried out by the sentencing judge, the Crown has failed to demonstrate that he acted unreasonably in his considerationof the sentencing objectives enumerated in the Criminal Code or in weighing all pertinent factors. [25] The second ground of appeal raised by the Crown concerns the application of the principle of proportionality under section718.1 Cr.C.: 718.1 A sentence must be proportionate to thegravity of the offence and the degree ofresponsibility of the offender. 718.1 La peine est proportionnelle à la gravitéde l’infraction et au degré de responsabilité dudélinquant. [26] Relying on R. v.

Nasogaluak, the Crown submits that this principle applies whatever the weight the judge may accord to thesentencing objectives.[15] However, the principle of proportionality also affords a large discretion to sentencing judges:[16] [41] (…) But what does proportionality mean in the context of sentencing? [42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender andthe gravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protectiveangle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicialand social censure (J. V. Roberts and D. P.

Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense ofSentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’scondemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moralculpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against theoffence and punishes the offender no more than is necessary. [43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion tocraft a sentence that is tailored to the nature of the offence and the circumstances of the offender.

The determination of a “fit” sentenceis, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case (R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v.Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and it falls to thesentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.

The relativeimportance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similaroffences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factorsensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. [44] The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance

with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. (…) [46] Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence.

In M. (C.A.), LamerC.J. cautioned that a sentence could only be interfered with if it was “demonstrably unfit” or if it reflected an error in principle, thefailure to consider a relevant factor, or the over-emphasis of a relevant factor (para. 90; see also R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R.163, at paras. 14-15; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123-26; R. v. McDonnell, (SCC), [1997] 1S.C.R. 948, at paras. 14-17; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227). As Laskin J.A. explained in R. v. McKnight(1999), (ON CA), 135 C.C.C. (3d) 41 (Ont.

C.A.), at para. 35, however, this does not mean that appellate courts caninterfere with a sentence simply because they would have weighed the relevant factors differently (…) (…) (Emphasis added) [27] In this case, the sentence imposed upon the respondent is within the wide range of sentences available for the crime ofmanslaughter, which can vary considerably. [28] Indeed, the sentencing judge referred to numerous similar manslaughter cases in which a sentence of imprisonment of two (2)years less a day was deemed fit, including the case of R. v.

Young,[17] where the accused had stabbed her aunt during a fight while theywere both intoxicated, had been previously convicted for assault with a weapon and was under a supervised probation order at the time ofthe offence. In that case, the Court of Appeal of Manitoba reduced the sentence to two (2) years less a day, with a supervised probationorder of three (3) years. The sentencing judge also referred to the cases of R. v. Emard,[18] where the accused stabbed her husbandwhile both were fighting and intoxicated; a sentence of two (2) years less one day was deemed fit, to be served in the community.[19] InR. v.

Davidson, [20] the accused had twice run over the victim with his car, then dragged his body into a river while under the influenceof alcohol; a sentence of two (2) years less a day with three (3) years’ probation comprising two hundred (200) hours of communityservice was deemed fit in light of the exemplary post-offence conduct, continued sobriety and community involvement. Likewise, in R.v. Gladue,[21] the Supreme Court of Canada confirmed a three-year prison sentence for a manslaughter offence committed by anaboriginal woman on her common-law spouse while she was intoxicated and acted in a fit of jealousy.

Moreover, in the recent decisionof Denis-Damée v.

R.,[22] rendered after the sentencing order in this case, this Court reduced a six year sentence of incarcerationimposed upon an aboriginal offender who pleaded guilty to manslaughter to two years of incarceration followed by a probation of threeyears. [29] Though each sentence must be determined taking into account the specific circumstances of the offence and of the offender, thesentencing cases referred to by the sentencing judge suggest that the sentence he determined in this case was well within the range ofsentencing options available to him. [30] The real criticism levelled by the Crown is not that the sentence is necessarily unfit, but rather that it is substantially less thanthe five (5)-year sentence of incarceration imposed on the respondent after his first jury trial.

The Crown submits that the sentencingjudge in this case was (

a) bound to consider that prior sentence, and (

b) obliged to justify why he was imposing a different, more lenientsentence. According to the Crown, absent a cogent explanation as to why a sentence of two (2) years less a day should be substituted forthe prior sentence of five (5) years, the more lenient sentence should be deemed demonstrably unfit. [31] The Crown’s position on this issue is disingenuous.

Though the sentencing judge and the parties were all acutely aware that therespondent had previously been sentenced to five (5) years at his first trial — the judge specifically refers to this in his reasons[23] —neither the Crown nor the defence relied on this prior sentence at the sentencing hearing before the Honourable Mr. Justice de Blois.That is not unexpected in light of the fact the Crown was seeking a sentence of eight (8) years of incarceration and the defence a sentenceof two (2) years less a day.

It is therefore somewhat surprising that the Crown now criticizes the judge for not having taken that priorsentence into account when it never itself requested him to do so. [32] That being stated, it is the situation of the offender at the time of sentencing which is to be taken into account in determining afit sentence.[24] A previous sentence imposed on the offender for the same offence – a situation which can occur when the firstconviction is overturned on appeal and a new trial is ordered – need not necessarily be followed, particularly when the circumstances ofthe offender have changed between the first and second trial, as is the case here. [33] Approximately three years elapsed between the first and second sentencing proceedings.

During that time, the respondentfurther demonstrated his low risk of reoffending and strictly adhered to all the conditions imposed on him. Moreover, while the pre-sentencing report of November 20, 2014, concluded that there was a risk of reoffending,[25] the complementary pre-sentencing report ofMay 15, 2017, concluded, to the contrary, that the respondent presented a low risk of reoffending:[26] In short, we are facing a person who adequately functioned since his release and possessing the capacities as well as the necessarymobilization to pursue his personal development.

Certain protection factors that are present encourage a positive prognostic, especiallythe absence of new criminal offences, the presence of a supportive network, a reflection process being well nourished since the arrest,the apparent maintain of the delinquent’s sobriety and an occupational stability. Consequently, we evaluate a low risk of reoffending. [34] Similarly, the complementary Gladue report of June 16, 2017, described a substantially different and improved picture of therespondent:[27] Willard has collaborated well and has made himself available to complete the report.

Noted from the Gladue Report dated November 21,2014, he still strongly believes that healing can be done out on the land where he can be close to his family and community.

Throughout the Complementary Report it shows that Willard has helped himself since his release in February of 2015 and will continue. It also shows that he has been receiving healing while being out on the land with family, youth, at risk youth and community members which he will continue to do. He continues to seek advice and guidance from respected Elders in the community. Willard also shows that he keeps himself busy by being involved and contributing towards community programs, contracts, studies, employment, training courses and volunteerism.

It also shows that he is very active within the community and is reintegrating well and at the same time he is giving back to the community for the harm that was caused; this also shows that he is accepted within the community. Willard also gives back to the community by helping and guiding youth, at risk youth and community members by offering and sharing his knowledge in teaching them traditions and the Cree Way of Life and it shows he is a responsible father and husband who cares for the needs of his children and provides for the means of his family.

Willard has been respecting his conditions although he has gone out past his curfew which was for emergencies only and is explained in the report. [ 35 ] The sentencing judge was not bound by the prior sentence. Moreover, at the sentencing hearing, neither the Crown nor the defence suggested that he was so bound, nor did they suggest that he should consider that prior sentence in reaching his decision.

In these circumstances, the Crown’s submission that the judge was bound both to consider that prior sentence and to justify deviating from it must be rejected. [ 36 ] The sentencing judge properly considered all the sentencing objectives as well as all the factors pertinent to this case, including the circumstances of the respondent as an aboriginal offender, as s. 718.2 (

e) Cr.C . required him to do: 718 .2 A court that imposes a sentence shall also take into consideration the following principles: 718.2 Le tribunal détermine la peine à infliger compte tenu également des principes suivants : (…) […] (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

e) l’examen, plus particulièrement en ce qui concerne les délinquants autochtones, de toutes les sanctions substitutives qui sont raisonnables dans les circonstances et qui tiennent compte du tort causé aux victimes ou à la collectivité. [ 37 ] The Supreme Court of Canada explained in Gladue how sentencing judges are to play their remedial role under this provision: [28] [66] How are sentencing judges to play their remedial role? The words of s. 718.2 (

e) instruct the sentencing judge to pay particular attention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from those of non-aboriginal offenders. The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly: (

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the courts; and (

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. (…) [70] Closely related to the background and systemic factors which have contributed to an excessive aboriginal incarceration rate are the different conceptions of appropriate sentencing procedures and sanctions held by aboriginal people.

A significant problem experienced by aboriginal people who come into contact with the criminal justice system is that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by these offenders and their community. The aims of restorative justice as now expressed in paras. ( d ), ( e ), and (

f) of s. 718 of the Criminal Code apply to all offenders, and not only aboriginal offenders. However, most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition is extremely important to the analysis under s. 718.2 ( e ). [71] The concept and principles of a restorative approach will necessarily have to be developed over time in the jurisprudence, as different issues and different conceptions of sentencing are addressed in their appropriate context.

In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender.

The focus is on the human beings closely affected by the crime. (…) [72] The existing overemphasis on incarceration in Canada may be partly due to the perception that a restorative approach is a more lenient approach to crime and that imprisonment constitutes the ultimate punishment. Yet in our view a sentence focussed on restorative justice is not necessarily a “lighter” punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence. (…)

[ 38 ] This is precisely the analytical exercise which the sentencing judge carried out in order to determine a fit sentence for the respondent. [ 39 ] The Crown has failed to establish that the judge committed an error of law or of principle that would allow this Court to interfere with the sentence, nor has it demonstrated that the sentence is demonstratively unfit or otherwise based on the failure to consider, or on the overemphasis of, a relevant sentencing objective or a relevant factor. [ 40 ] For these reasons, the Crown’s appeal of the sentence should be dismissed. ROBERT M. MAINVILLE, J.A.