2019 QCCQ 1327, 2019 QCCQ 1327

R. c. Gordon 2019 QCCQ 1327 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF KUUJJUAQ Criminal & Penal Division No: 635-01-017177-180 635-01-017181-182 635-01-017119-182 DATE: March 12, 2019 ______________________________________________________________________ BY THE HONOURABLE PAUL CHEVALIER, J.C.Q. ______________________________________________________________________ THE QUEEN Plaintiff v.

SAMMY GORDON Accused ______________________________________________________________________ SENTENCE ______________________________________________________________________ [ 1 ] Mr Sammy Gordon pleaded guilty for having, in Aupaluk, on July 10, 2018 In file 635-01-017177-180: • count 1: assaulted Pasha Airo, s. 266

a) Cr. C.; • count 3: caused bodily harm to A.K. (200-[...]) in assaulting her, s. 267

b) Cr. C.; • count 4: caused bodily harm to Billie Ben Tukkiapik in assaulting her, s. 267

b) Cr. C.; • count 5: illegally confined A.K., s. 279

(2) a) Cr. C.; • count 6: pointed a firearm at Billie Ben Tukkiapik and Pasha Airo, s. 87

(2) a) Cr. C.; In file 635-01-017181-182: • count 1: stored firearms contrary to the regulations, s. 86 (2)

(3) a) Cr. C.; • count 2: possessed firearms while prohibited from doing so by an order under the Criminal Code, s. 117.01 (1)

(3) a) Cr. C.; In file 635-01-017119-182: • count 1: carried or possessed a weapon for a purpose dangerous to the public peace, s. 88

(2) a) Cr. C. THE FACTS [ 2 ] Highly intoxicated, for no reason accused started being aggressive towards A.K., his girlfriend. He started to choke her, pulled her arm with enough strength to dislocate her shoulder, ripped her shirt and prevented her from escaping. She screamed for help, shouting that she wanted to go and that accused wanted to kill her. [ 3 ] Pasha Airo and Billie Ben Tukkiapik passing by heard her screams through an opened window and went inside accused's house, the door being unlocked. They heard noise coming from the bedroom and they decided to go see what was happening.

Accused told them to leave while he was holding A.K., telling her that she would not go out, and he punched her on her chest. [ 4 ] He then punched Pasha Airo on her chest and pulled her hair, grabbed Billie Ben Tukkiapik by her arms and pushed her so she hit her head on a corner. Accused repeated he wanted to kill A.K., took a firearm and loaded it.

[ 5 ] The three victims succeeded to run out of the house, followed by the accused who pointed a firearm in their direction. They hid behind a truck and heard three gunshots. [ 6 ] When the police officers entered into accused's house, they could see clear signs of struggle and accused was seated at the kitchen table, still holding a rifle in his hands and drinking alcohol. Accused appeared suicidal to the officers who had to negotiate with him for an hour or so before he surrendered and handed over his firearm.

The officer seized ammunition and three other firearms unlocked easily accessible. [ 7 ] Accused has no recollection of those events on account of his extreme intoxication. THE PARTIES' POSITION [ 8 ] The Crown considers that accused deserves a sentence of imprisonment of three years, less the time spent in preventive detention. The Prosecutor explains that she had already taken into consideration the fact that accused is an Inuk, that a Gladue Report was filed, which is more favourable to accused than the Presentence Report.

It is for those reasons that she had previously asked for a stay of proceedings on a count charging accused with discharging a firearm while being reckless as to the life of others (s. 244.2 (1) b)

(3) b) Cr. C.) in order for him not to have to face a minimum sentence of imprisonment of four years. [ 9 ] She stresses the previous convictions of accused, from October 2013 to July 2017, for six different counts of assault and five counts of threats conveyed, most of the time in a domestic context. [ 10 ] She also points out the fact that too often the Courts have to deal in Nunavik with intoxicated persons who get mad for no clear reason and use violence against other people or use a firearm to scare, injure or kill other persons.

This situation warrants the importance that must be given to the sentencing objectives of denunciation and deterrent effect in this case. [ 11 ] She insists as well on the fact that accused was on probation when he committed these offences after being sentenced to a conditional sentence of imprisonment of six months, followed by a probation order in July 4, 2017, for assaulting his previous girlfriend and threatening her to cause her death. [ 12 ] Defence counsel considers that a sentence of imprisonment of nine to twelve months, less the time spent in preventive detention, followed by a supervised probation for three years would be adequate.

Such a sentence would respect the gradation of sentences principle since accused's last sentence was an imprisonment for six months and since it would be his first sentence of detention. It would moreover protect society for three years since accused would have to work on his issues under his probation officer's supervision. [ 13 ] Defence counsel insists on the systemic and historical factors that affected the Inuit people, which explains in part why such a proportion of them are in front of a Criminal Court.

She puts the emphasis on accused's individual factors that made him who he is now, with all the issues he has to work on, and which eventually led him to commit his crimes. These factors are detailed in the Gladue Report, the Presentence Report and accused's testimony given at the sentencing hearing.

THE SENTENCING OBJECTIVES [ 14 ] When deciding what is a fit sentence, a Court must, according to the different circumstances of the case, try to achieve one or more of the following objectives: to denounce the illegal conduct of accused; to deter him and other persons from committing offences; to separate an offender from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; to promote a sense of responsibility in offenders, and acknowledgment of the harm done; when an offence involved the abuse of a person under the age of eighteen years, to give primary consideration to the objectives of denunciation and deterrence of such conduct (s. 718.01 Cr.

C.) THE SENTENCING PRINCIPLES [ 15 ] The fundamental sentencing principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 16 ] It should therefore be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender. [ 17 ] It should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 18 ] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims should be considered for all offenders, with particular attention to the particular circumstances of Aboriginal offenders.

ANALYSIS The principle of proportionality [ 19 ] As for the objective gravity of the crimes, assault causing bodily harm, illegal confinement and possessing a firearm for a purpose dangerous to the public peace are punishable by a maximum term of imprisonment of ten years. Accused is liable to an imprisonment of five years for the other offences for which he pleaded guilty.

[ 20 ] Their subjective gravity refers to the circumstances of the crimes, the way they were committed [1] . Especially the assault causing bodily harm to A.K., her illegal confinement and the firing of three gunshots in a residential area at around 3:40 AM are subjectively serious. [ 21 ] An accused's degree of responsibility corresponds to his moral blameworthiness.

It varies according to the harm he intended to cause, or to his degree of recklessness or wilful blindness as to the consequences of his acts [2] . [ 22 ] The more serious are his intentions, or the higher is his degree of recklessness, the higher is his moral blameworthiness.

But to determine one's moral blameworthiness, a Court must not limit itself to look at the precise moment when the crime was committed, it must consider all of the factors linked to the accused's personality [3] . [ 23 ] Accused's personal circumstances include the fact that even though he did not suffer directly from residential schools, from the dog slaughter or any traumatizing governmental measures of assimilation, as many other Inuit, he is most likely affected by multi- generational trauma [4] .

As a matter of fact, one of his uncles was sent to a residential school, suffered from it and spoke about it. [ 24 ] It also includes the fact that he grew up in a family characterized by alcohol and drug abuse, physical violence, lack of food. [ 25 ] He started sniffing gas when he was twelve years old and alcohol when he was sixteen. [ 26 ] He lost his uncle who was murdered when he was fifteen, lost at the same age a cousin who committed suicide, lost a friend, also by suicide, when he was eighteen, lost a friend who drowned when he was twenty-one, lost another friend and an ex-girlfriend who committed suicide later.

All very traumatizing and distressing events that deeply affected him. [ 27 ] He tried twice to commit suicide in 2016 and 2017. [ 28 ] He was sexually assaulted by an older woman when he was eighteen, and it lasted for over a year because that woman was blackmailing him, which brought him to isolate himself and « destroyed his life » , according to him. [ 29 ] It is therefore not surprising that he would have tried to forget all those painful experiences in seeking refuge into alcohol and becoming alcoholic, even at his age, now twenty-four years old. [ 30 ] He cannot, therefore, be considered fully responsible for the crimes he committed.

There was no deliberate and conscious intent to commit them, even though voluntary intoxication is not a defence.

The principle of tailoring sentences [ 31 ] As for the aggravating circumstances, accused's previous convictions are certainly one of them; the fact that he was on probation for offences of a similar nature (assault and threats to a spouse) is another one; the physical harm caused to the victims as well; the psychological harm caused to the victims, who are still traumatized by the events and who still fear being in contact with accused since they live in a small community, Aupaluk, where reside less than 200 persons [5] , is another one; as is the violence used against a spouse (s. 718.2 a) (ii) Cr.

C.) and the violence used against a person under the age of eighteen years (s. 718.2 (a) (ii.1) Cr.

C.); the use of a loaded firearm to threaten, to aim at fleeing persons and to fire shots at night in a residential area is certainly an aggravating circumstance, as is the fact that, according to the Presentence Report, accused represents « a certain risk of reoffending » [6] . [ 32 ] The mitigating circumstances include the guilty plea of accused, preventing the victims to have to live again the traumatizing events they went through by having to describe them again in detail while testifying; accused's sincere remorse; his apologies to A.K. that he expressed in Court and his desire to apologize to his two other victims; his acknowledgment of issues he has to work on: alcohol abuse, anger management and psychological problems caused by what he had to go through in his childhood and in his teenage years; the fact that while in detention, he attended all programs available to detainees awaiting their trial; the fact that he is conscious that he has to continue to work on his issues and is not only willing but eager to work on them; the fact that his former job is waiting for him; the fact that the Justice Committee is willing to help him. [ 33 ] The Court cannot conclude that the aggravating factors outdo the mitigating ones.

They more or less equal themselves. The principle of similarity in sentences [ 34 ] The Court has not been referred to a case where similar crimes had been committed by similar offenders in similar circumstances. [ 35 ] The Manitoba Court of Appeal judgment [7] referred to by the Crown deals with a non-Aboriginal offender while the Québec Court of Appeal judgment [8] referred to by Defence counsel deals with a manslaughter, a much serious offence committed by a young Atikamekw woman without previous conviction. [ 36 ] This sentencing principle does therefore not apply here.

The less restrictive sentence principle [ 37 ] For a less restrictive sentence than imprisonment to be considered, it must be reasonable in the circumstances and consistent with the harm done.

[ 38 ] Such a sentence would be unreasonable, considering the fact that accused is to be sentenced for a seventh, an eight and a ninth charge of assault. It would also be inconsistent with the physical and psychological harm done to the three victims. CONCLUSION [ 39 ] In the Court's opinion, the sentence proposed by the Crown does not enough take into consideration the mitigating factors nor accused's personal circumstances.

The sentence proposed by Defence counsel does not enough take into consideration the aggravating factors. [ 40 ] A fit sentence must give enough weight to the Inuit status of accused and balance adequately the aggravating and mitigating circumstances present here. A term of imprisonment of two years, or 731 days from today, will allow the Court to add a three year supervised probation.

Such a sentence will reflect the gravity of the crimes, will have a rehabilitative dimension and will also protect society by ensuring that for three more years, accused will be forced to continue to work on his issues and be supervised for that purpose, in order not to present a danger anymore to other persons. [ 41 ] The Court must take into consideration the time already spent in custody after bail was denied. Accused was arrested on July 10, 2018, and was therefore detained for 246 days, which must be counted as 369 days according to s. 719 (3.1) Cr. C.

Accused is therefore sentenced to a term of imprisonment of 362 days starting today. [ 42 ] He will also have to comply with the following conditions of a probation order which will be in force for a period of three years starting after his sentence of imprisonment: • keep the peace and be of good behaviour; • report to a probation officer within one week after his release from custody and thereafter whenever required by him and in the manner directed by him; • notify the probation officer in advance of any change of address and promptly notify him of any change of employment or occupation; • follow the probation officer's recommendations regarding the issues he has to work on; • cooperate with the Justice Committee for that purpose; • apply at Makitautik and/or Isuarsivik to get help for his different issues; • appear before the Court when required to do so by the Court; • abstain from communicating directly or indirectly with A.K., Billie Ben Tukkiapik and Pasha Airo except to offer them his apologies through the probation officer if they accept and except if they provide a written revocable consent; • abstain from going to their residence or place of employment except if they provide a written revocable consent; • make reasonable efforts to get or to keep an employment. [ 43 ] The Court is also making an order under s. 109 Cr.

C. prohibiting the accused from possessing any firearm, cross-bow, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substance. This order is for life and is made in file no. 635-01-017177-180 on counts no. 3, 4, 5 and 6; in file no. 635-01-017119-182 on count no. 1 and in file 635-01-017181-182 on counts no. 1 and 2. [ 44 ] The Court makes the order under s. 487.051 Cr.

C. in file 635-01-017177-180 on counts no. 3, 4 and 5, for the taking of accused's bodily substances for DNA analysis within the coming 30 days. [ 45 ] The Court orders the forfeiture and the destruction of the firearms and the ammunition seized. __________________________________ PAUL CHEVALIER, J.C.Q. Me Annie Sills Massicotte Lawyer of Prosecution Me Véronique Leduc Lawyer of Accused Date of hearing: January 9, 2019