r v. Kevin, 2011 QCCQ 6970

R. c. Bibeau 2011 QCCQ 6970 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-055690-116 DATE: 17 June 2011 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ The QUEEN Prosecutor v.

Kevin Luc BIBEAU Accused _____________________________________________________________________________ JUDGMENT (Section 742.6 and Sentence) _____________________________________________________________________________ [ 1 ] Mr. Bibeau is again before the court and his situation is worse. He has pleaded guilty to uttering threats against his sometime companion, Ms. Chantal Richardson.

This offence necessarily constitutes a breach of the conditional sentence [1] of twelve months that was imposed on him on 23 March 2011 in relation to a sequence of offences and breaches. [2] He has an accelerating recent history of offences and breaches that is troubling for all and challenging for the court. He has profound medical difficulties, including [disease A] and a cluster of related concerns. He has a severe problem with his temper. He is a chronic alcoholic. When he consumes alcohol he expresses himself in anger and physical violence against those few who are close to him. His sometime companion, Ms.

Chantal Richardson, has been the victim of actual or threatened violence on repeated occasions. He has never entered - let alone successfully completed - a closed programme of therapy to address his many problems. [ 2 ] The court is seized of two matters. One is an application under

section 742.6 of the Criminal Code [3] to revoke or modify the terms of Mr. Bibeau’s conditional sentence, which of course is now suspended. The other is to fix a fit sentence for the threats to which he has most recently pleaded guilty. [ 3 ] Today Mr. Bibeau will lose his liberty. He will be confined for twelve months. This outcome is certain and not contested by the parties. The question addressed in these reasons is whether he will be detained in prison or within the confines of a closed treatment programme in an approved centre and under strict conditions. [ 4 ] The positions of the parties are clear.

The prosecution seeks revocation of the conditional sentence and a warrant for Mr. Bibeau’s committal to prison to serve the remainder of his term. The premise of this submission is retribution and denunciation. The prosecution stated earlier in these proceedings that its position would not change. And it did not. To support its position the prosecution submitted no information or evidence concerning the nature or quality of any treatment available within the prison system. Previous experience in Mr.

Bibeau’s case makes clear that the court cannot and should not make assumptions, in the absence of evidence, about the nature of quality of such services. The prosecution’s position is that Mr. Bibeau’s record of offences and breaches over the past year should entail the revocation of the remainder of the conditional sentence. In addition, of course, the prosecution seeks a sentence for the offence that most recently brought Mr. Bibeau to court. [ 5 ] The defence position is that prison is not a venue in which Mr.

Bibeau could expect treatment for his various problems and not a place in which there is a realistic prospect of successful rehabilitation. The defence recommends that Mr.

Bibeau be confined for treatment in the Waseskun Healing Centre for a period of twelve months, which would represent the ten unexpired months of his conditional sentence and two months consecutive for the breach of that sentence represented by the recent offence of uttering threats. [ 6 ] The defence called to the court a representative of the Waseskun Healing Centre to provide information about what treatment it can provide and the specific needs of Mr. Bibeau. It is an accredited institution that specialises in treatment for Aboriginal men.

It can provide focused care in a closed programme that will respond to Mr. Bibeau’s various needs in a comprehensive way. A representative of the Centre informed me that in difficult cases it has realised a success rate of about 60%. The same representative of the Centre also informed me that to maximise the chances of success a closed treatment of twelve months is preferable. [ 7 ] As for what the Centre can do specifically to help Mr. Bibeau, I was provided further information. First, they advise me that

he requires a treatment of twelve months in their facility. Second, the Centre can provide treatment and counselling with respect to anger management and the consumption of alcohol. Third, the Centre can provide and supervise appropriate care to manage his medical afflictions arising from [disease A]. Fourth, they can provide focused psychological counselling. Fifth, on any occasion that he is permitted by the Centre to leave the premises for an authorised reason, the Centre can ensure appropriate supervision in the form of a personal escort at all times between departure and return.

Sixth, the Centre will notify police of any non-compliance with conditions imposed on Mr. Bibeau with the intention that he be taken into custody and returned to this court. [ 8 ] Mr. Bibeau has had several chances and he has squandered them. For this reason he will lose his liberty and be confined for one year. I realise that the jurisprudence supports an assumption in favour of confinement in jail for breaches of conditional sentences. [4] I realise too that the strength of that assumption intensifies with repeated offences and continuing breaches.

But neither the Code nor the jurisprudence forecloses a disposition that would enforce closed confinement in an approved programme of treatment. [5] If the jurisprudence purported to achieve this result it would make a nonsense of the plain terms of

section 742.6(9) as well as the principles of sentencing set out at the beginning of

Part XXIII of the Code. [6] Nothing in the jurisprudence would suggest that all principles of sentencing except retribution and denunciation are extinguished upon on a guilty plea to a subsequent offence – even in the circumstances of this case. [ 9 ] The order I will make is consistent with provisions of the Code and with principles developed in the jurisprudence. [7] It is an unusual disposition. But this is an unusual case because there remains now only a stark choice between jail and closed confinement with treatment. What separates those options is a lesser or greater measure of hope.

As defined by the jurisprudence, [8] I will order a term of imprisonment in the community but in this case a closed community and under conditions that exceed current expectations of the Court of Appeal in relation to the stringency of conditional sentences. [9] This will be an unbroken period of detention for twelve months under strict conditions and therapeutic constraints. The terms of confinement address the need to ensure the protection of the general public and of specific persons. Its terms should minimise the risk of recidivism.

It expresses the element of retribution that must form part of a conditional sentence. It expresses an important element of denunciation. As proposed here, it will isolate the offender from the general population under specific terms. It obeys the injunction expressed by Parliament to use imprisonment in jail with restraint. [10] But it does not abandon the aim of rehabilitation under appropriate supervision and care. It is appropriate for any offender in similar circumstances but especially an Aboriginal offender. [11] [ 10 ] I have little sympathy for Mr.

Bibeau at this point precisely because he has squandered the opportunities provided to improve the quality of his life and the lives of those around him. He needs help and without it there is little prospect of improvement. He says that he wants help and, to this end, he has both personally and through counsel expressly affirmed his consent to closed treatment for twelve months. He needs a high standard of professional assistance to confront and, with any luck, manage his difficulties in a manner that presents no risk to himself or others.

I must take away his liberty by ordering his confinement but I will not take away his last hope without one last chance that effective treatment will assist him. [12] [ 11 ] This is not only my hope. It must be his and he must work to realise success. If confined treatment can defeat his addiction to alcohol and control his anger, that will be hope redeemed. Such success might bring other rewards to enhance the quality of Mr. Bibeau’s life.

There are burdens that he must bear for life but there are burdens that appropriate care can help him to manage or even to shed. [ 12 ] The place of mercy in Canadian penal justice is little developed in our jurisprudence. [13] There is a deep uncertainty whether mercy can be accommodated within the positive law of sentencing or recognised only as an exceptional reason to depart from the ordinary principles of the positive law that would apply in a given case. In a narrower form mercy is apparent in some notions of mitigation for personal hardship.

It may be seen also in decisions that seek to redress deprivations that would be cruel or pointless. But, in a broader sense, perhaps the most fertile ground for mercy is where the lawful power of courts can be used to allow hope to flourish if there is a chance of success. If there is such a chance, it may be argued that mercy provides a sufficient reason to depart from the path that would otherwise be dictated by retributive objectives within the positive law of sentencing. [ 13 ] In a case such as this, where the margin of hope has diminished rapidly and Mr.

Bibeau fully deserves punishment, I still see a chance. It is a chance that so far Mr. Bibeau has been denied by misfortune, not all of his own making. If that is today a chance of hope, I should forego the full force of retribution that he would otherwise deserve. And if this is mercy, I will take that chance every time that the law and the jurisprudence allow me - to do so in accordance with the evidence in the case, good judgment and sound policy. [ 14 ] For Mr. Bibeau the order binding him will be severe and I will tell him now that any breach will lead him directly to prison for a substantial period of time.

FOR THESE REASONS the order of the court is as follows: Conditional Sentence 1.1 You will be confined to the Waskesun Healing Centre for twelve months from this day to serve the remaining ten months of the conditional sentence imposed on 23 March 2011 and you will serve two months consecutive from the expiry of that term as the sentence of the court for the breach to which you pleaded guilty on 27 May 2011. 1.2 You must keep the peace and be of good behaviour. 1.3 You must appear before the court when required to do so by the court. 1.4 You must report to a supervisor within fifteen working days from the pronouncement of this order, and thereafter as required and in manner required by the supervisor. 1.5 You must remain within the jurisdiction of the court unless permission is obtained to go outside that jurisdiction, in writing and before such departure, from the court or supervisor or supervisor of Waseskun Healing Centre.

1.6 You must notify the court or the supervisor in advance of any change of name or address, and promptly inform the court or supervisor of any change of employment or occupation. 1.7 You must remain on the premises of the Waskesun Healing for the entire period of confinement with effect from this day.

As an exception to this term of confinement, you may leave the premises only with the express written permission of the supervisor or supervisor of the Waseskun Healing Centre for medical treatment or other personal emergency and only if accompanied at all times by a member of the staff. 1.8 For the duration of your confinement you must abide by the rules of the Centre and you must follow any and all programmes of treatment prescribed to you. 1.9 If you leave the premises of the Waskesun Healing Centre without permission of the supervisor or the accompaniment of a member of staff, you must immediately surrender to police in the nearest locality and be taken prisoner. 1.10 For the duration of your confinement you are forbidden to possess or consume alcoholic drinks of any kind. 1.11 You must re-read the conditions in this order every week for the duration of the term of twelve months.

Probation 2.1 For two years from the date of expiry of your confinement you will be subject to a probation order with the following conditions. 2.2 You must keep the peace and be of good behaviour. 2.3 You must appear before the court when required to do so by the court. 2.4 You must notify the court or the probation officer in advance of any change of name or address, and promptly inform the court or the probation officer of any change of employment or occupation. 2.5 You must report to the probation service in Montreal within seventy-two (72) hours of your release. 2.6 You must advise your probation officer of your address and any proposed change before changing your address. 2.7 You must not possess or consume alcoholic drinks of any kind. ____________________________________ PATRICK HEALY, J.C.Q.

M e Dennis Galiatsatos For the prosecution M e Michel F. Perreault For Mr. Kevin Luc Bibeau Date of hearing: 27 and 31 May, 2 June 2011