R. c. Carrier 2020 QCCQ 110 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF D’ABITIBI Northern Village of Kuujjuaq « Criminal & penal division » N° : 635-01-016820-186 635-01-017533-184 635-01-017577-181 635-01-017578-189 635-01-017745-192 635-01-018141-193 635-01-018207-192 DATE : January 20, 2020 ______________________________________________________________________ BY THE HONOURABLE PAUL CHEVALIER, J.C.Q. ______________________________________________________________________ THE QUEEN Plaintiff v.

FELIX CARRIER Accused ______________________________________________________________________ S E N T E N C E ______________________________________________________________________ [ 1 ] The Court has to sentence Felix Carrier for numerous offences he committed over a sixteen-month period. THE FACTS [ 2 ] Accused is a young man who turned eighteen years old on [...], 2018. He then had no previous conviction or pending file in Youth Court. In July, 2019, he had been in a relationship with Cathy Kudluk for three years and they had a seven months old baby together.

He registered a plea of guilt which was accepted by the Court on July 19, 2019, for the following offences. [ 3 ] In file 16820, assault on Cathy Kudluk (s. 266(

a) Cr. C.) and forcible confinement of Cathy (s. 279

(2) a) Cr. C.). On February 27, 2018, he started punching and kicking Cathy KudluK, prevented her from escaping and after grabbing her, brought her in his car. She managed to run away but he succeeded to catch her up, brought her back in the car and punched her again. [ 4 ] In file 17533, sexual assault on X (s. 271(

b) Cr. C.), replaced on September 16, 2019 by a plea of guilt on a charge of sexual interference (s. 151 (

b) Cr. C.). On May 11, 2018, X., who was fourteen years old, was sleeping at accused’s place when she was awakened by accused touching her private parts over her pants, trying to pull them down, wanting to have sex with her. He stopped when she threatened to charge him. [ 5 ] In file 17577, uttering threats at Susan KudluK (s. 264.1

(2) b) Cr. C.). On August 28, 2018, while stepping out of Cathy’s residence after being ordered to leave by Cathy’s father because Cathy was crying, accused threatened Susan, Cathy’s sister, to beat her up. [ 6 ] In file 17578, assault on Alek Kudluk (s. 266 (

b) Cr. C.) and mischief (s. 430

(4) b) Cr. C.). On November 24, 2018, while in a car with Cathy’s brother, Alek, accused tried to punch him and to pull him out of the car, damaging his T-shirt and the fur of his parka. [ 7 ] In file 17745, assault on Daisy Kudluk (s. 266 (

b) Cr. C.), failure to comply with a condition, 2 counts, (s. 145

(3) b) Cr. C.). On January 14, 2019, while Cathy was crying with her baby in her arms, her mother, Daisy, took the baby to protect her but was pushed by accused. He was bound by two different undertakings not to go to Cathy’s house. [ 8 ] In file 18141, assault on Susan Kudluk (s. 266 (

b) CR. C.), failure to comply with an undertaking, 2 counts, (s. 145 (3)

b) Cr.

C.). On May 27, 2019, hearing her sister shout, Susan tried to go to the phone to call the police, but accused went at her, pushed her, punched her and pulled her hair. He was bound by a condition not to communicate with her and by a condition not to harass, molest or threaten her. [ 9 ] In file 18207, assault on Cathy Kudluk (s. 266 (

a) Cr. C.), uttering threats (s. 264.1

(2) a) Cr. C.) and failure to comply with a condition (s. 145(3)

a) Cr. C.). On June 20, 2019, six days after being released, accused found her, beat her up, tried to pull her into the water, slapped her and later sent her a message stating that he would “cut her”. He was bound by an undertaking and by a recognizance. REASONS FOR THE POSTPONMENTS [ 10 ] On July 19, 2019, when the pleas were entered, the Court vacated all the previous undertakings and recognizance entered in the different files and ordered accused to remain detained. He had already served forty days in preventive detention. [ 11 ] Defence counsel informed the Court that he intended to challenge the constitutionality of the minimum sentence of six months of imprisonment under s. 271(

b) Cr. C. He filed a medical report and an affidavit from accused’s mother [1] and a statement from Cathy Kudluk [2] . Accused testified and the Court postponed all the files to July 29, 2019. [ 12 ] On July 29, 2019, defence counsel had not yet filed his motion because he had not received the audio-recording he needed to prepare the motion. He presented a motion for the interim release of accused to which Crown counsel objected, arguing that the Court had no more jurisdiction, having ordered ten days before accused’s detention. [ 13 ] On August 7, 2019, the Court ruled it had jurisdiction under s. 523 (2) Cr.

C. to vacate its previous order of detention and released accused under strict conditions, namely to live at his sister’s residence in Kuujjuaq. All the files were postponed to the next court term. [ 14 ] On September 16, 2019, with the consent of the Crown, accused was allowed to withdraw his guilty plea on the charge of sexual assault and pleaded guilty to a charge of sexual interference (s. 151 (

b) Cr. C.). The matter of challenging the constitutionality of the minimum sentence for sexual assault ceased to be an issue and the files were postponed to November 7, 2019 for the sentencing hearing. [ 15 ] On November 7, 2019, accused testified, the Court heard the arguments of both parties but decided to postpone its decision to January 20, 2020, in order to see if accused would be able to comply with the strict conditions that had been ordered for a longer period than three months.

THE PARTIES POSITION [ 16 ] Crown counsel considers that a global sentence of eighteen months of imprisonment would be a fit sentence, namely four months in file 16820, ninety days in file 17533, five days in file 17577, ten days in file 17578, forty days in file 17745, thirty days in file 18141, eight months in file 18207, all those sentences having to be served consecutively since the offences did not arise out of the same event or series of events.

Such a sentence would also be justified by the fact that many of the offences were committed while accused was bound by an undertaking or a recognizance and by the fact that many of them involve domestic violence. [ 17 ] Defence counsel, relying on the personal circumstances of accused and on the fact that he has spent a total of seventy-four days in preventive custody, which must be regarded, according to s. 719 (3) Cr. C., as one hundred and eleven days, considers that, at the most, a conditional sentence of imprisonment should be imposed, accused having stabilized his situation.

THE SENTENCING OBJECTIVES AND PRINCIPLES [ 18 ] 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. [ 19 ] The Court must keep in mind that 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. [ 20 ] The sentence should therefore be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender. [ 21 ] It should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 22 ] 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 sentencing principle of proportionality [ 23 ] What is called the “objective gravity” of a crime refers to the maximum penalty attached to that crime by the Criminal Code . [ 24 ] As for the crimes committed by accused, an assault, when prosecuted by way of indictment was punishable by a maximum term of imprisonment of five years, and by a maximum term of six months if prosecuted by way of

summary conviction. Forcible confinement is punishable by a maximum term of imprisonment of ten years. The maximum term of imprisonment for uttering threats is five years if prosecuted by way of indictment and eighteen months if prosecuted by way of

summary conviction. The sexual interference with a person under the age of 16 years committed by accused is punished by a maximum term of imprisonment of two years less a day and by a minimum term of imprisonment of ninety days. The mischief then commited made him liable to a maximum term of imprisonment of six months. For failure to comply with a condition of undertaking or recognizance when the offences were committed, accused was liable to a maximum term of imprisonment of two years if prosecuted by way of indictment or to a maximum term of six months if prosecuted by way of

summary conviction. [ 25 ] The “subjective gravity” of a crime refers to the circumstances of that crime, the way it was committed. The circumstances of the different offences committed by accused were briefly explained earlier and, as for the sexual offence, when analyzing the different factors given by the Québec Court of Appeal in L. (J.-J.) [3] , the Court cannot consider that we are facing a very serious crime for which accused’s criminal responsibility is high. [ 26 ] 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. [ 27 ] 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 [4] . [ 28 ] Accused’s personal circumstances are explained in the medical report dated July 5, 2019, and in the affidavit of accused’s mother [5] . His birth and delivery were very difficult, the cord choked him and he was blue when he was born. He has a lower level of maturity, learning and communicating difficulties, an anger management problem, high impulsivity and reactivity, intermittent explosive disorder. He suffered many traumas when growing up and needed support.

A few years before committing his offences, accused was taking medication which had a crucial and positive impact on him. He unfortunately decided on his own to stop taking it. [ 29 ] As in every community in Nunavik there is a lack of local resources, and in Kangirsuk where accused lives, there is a quick turnaround of social workers at the CLSC and they are overwhelmed with clients and responsibilities.

As a consequence, and also on account of his lower level of intellectual maturity, accused did not succeed in receiving sufficient help from the CLSC social services and doing his follow ups. [ 30 ] Accused’s degree of responsibility cannot, therefore, be compared with the responsibility of a person who would not have the various health problems accused is suffering from. [ 31 ] The Court has therefore to impose sentences for offences which are not the most serious ones, to an offender who has a lessened degree of responsibility.

The sentencing principle of tailoring sentences [ 32 ] As for the aggravating factors, the amount of crimes is one, as is the fact that many of them were committed while accused was under conditions. [ 33 ] The fact that in committing some of the offences accused abused his common-law partner is an aggravating factor, as well is the fact that in another occasion he abused a person under the age of eighteen years old. [ 34 ] As for the mitigating factors, accused’s pleas of guilt are one. [ 35 ] The positive impact on his behaviour that can be seen since he started again to take his medication regularly is an other one. [ 36 ] As is the fact that he acknowledges his problems and intends to work on them and seek the necessary help for that. [ 37 ] Cathy Kudluk, despite the fact that she was one of accused’s victim, not only continued to speak with him on a regular basis but went to visit him twice in Kuujjuaq, which indicates that she forgave him, and which is a mitigating factor. [ 38 ] The mental health of accused when he committed his offences must also be regarded as a mitigating factor. [ 39 ] The Court must conclude that here the mitigating factors outdo the aggravating factors.

The sentencing principle of similarity in sentences [ 40 ] This sentencing principle cannot be considered here on account of the very particular personal circumstances of accused.

The less restrictive sentencing principle [ 41 ] For a less restrictive sentence than imprisonment to be considered, with a particular attention to the circumstances of accused who is an Aboriginal offender, such a sentence must be reasonable in the circumstances. [ 42 ] The Court is fully aware of the systemic and historical factors that have affected the Inuit people and, through intergenerational heritage, accused himself.

It is also aware of the particular circumstances concerning the village of Kangirsuk. [ 43 ] But the Ontario Court of Appeal, relying on the judgment of the Supreme Court of Canada in Ipeelee [6] , sated that “for an offender’s Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case” [7] . [ 44 ] Aware that a Court cannot try to find a causal link between an accused’s background factors and the commission of the offences for which he deserves a sentence, the Court here has nonetheless to recognize that if accused had been living in a place where adequate social and health services are systematically provided, he would have received the adequate services needed by his condition, unlike what happened in Kangirsuk, and he would not have developed the health and behavioral problems that led him to commit his offences. [ 45 ] Therefore, the Court must conclude that the systemic and background factors that affect Inuit people have impacted accused’s life in a way that it decreased his degree of responsibility and indicates which types of sentencing objectives should be prioritized in his case.

The sentencing objectives that must be prioritized [ 46 ] The Court has to give primary consideration to the objectives of denunciation and deterrence in the file of sexual interference since such conduct involved an abuse of a person under the age of eighteen years (s. 718.01 Cr. C.).

Those two objectives must also be given some importance when we deal with offences of conjugal violence. [ 47 ] But even when deterrence and denunciation are the primary objectives in determining a sentence, “it is over-simplification to assume that the objectives of denunciation and deterrence are only served by severity. […] The key principle in sentencing is proportionality” [8] . [ 48 ] When an offender suffers from a mental disease, it is recognized that emphasis must be put on the rehabilitation and treatment of the offender and that less importance must be given to denunciation and deterrence [9] . [ 49 ] A relative importance must therefore be given to the objectives of denunciation and deterrence and a more important one to the objective of rehabilitation, considering the fact that the objective and subjective gravity of the offences is not very important, that accused’s responsibility is lessened and that the mitigating factors outdo the aggravating ones. [ 50 ] The objective of promoting a sense of responsibility in accused and acknowledgment of the harm done to the victims seems to be achieved since accused recognizes his problems, which he did not before, and is ready to work on them to avoid reoffending. [ 51 ] The objective of separating accused from society does not seem to be, here, necessary.

CONCLUSION [ 52 ] In file 635-01-016820-186, since accused had no prior conviction, despite the gravity of the offences but considering the fact that he had been over eighteen years old for only seven days when he committed is first offences, and considering his mental health problems at that time, on both counts a suspended sentence with a probation of two years is a fit sentence with the compulsory conditions, namely keep the peace and be of good behaviour, appear before the Court when required to do so and notify the probation officer in advance of any change of name or address and promptly notify him or her of any change of employment or occupation.

The Court does not impose the condition concerning the victim since it is included in the probation imposed in file 635-01-018207-192. On count no. two, an order, under s. 109 Cr. C., prohibiting the possession of firearms and other items for a period of ten years is made. An order under s. 487.051(1) Cr.

C. for the taking of bodily substances for DNA analysis is made and will have to be executed within sixty days. [ 53 ] In file 635-01-017533-184, the minimum sentence of imprisonment of ninety days is the adequate sentence, but considering the fact that accused was detained in preventive custody for seventy-four days and is deemed to have already served a total of one hundred and eleven days, which is more than the compulsory sentence of ninety days, the sentence is a term of imprisonment of one day. An order under s. 487.051(1) Cr.

C. for the taking of bodily substances for DNA analysis is made, which will have to be executed within sixty days. An order under ss. 490.012 (1) and 490.013

(2) a) Cr.

C. is made, requiring accused to comply with the Sex Offender Information Registration Act for a period of ten years. [ 54 ] In file 635-01-017577-181, a fit sentence is a suspended sentence and a probation for two years with the compulsory conditions without the condition regarding the victim which is included in another probation order. [ 55 ] In file 635-01-017578-189, a fit sentence is a suspended sentence and a probation of two years on both counts with the compulsory conditions except the condition regarding the victim which is included in another probation order. [ 56 ] In file 635-01-017745-192, a fit sentence would be a global term of imprisonment of five days consecutive to the sentence of

ninety days that should have been imposed in file 635-01-017533-184, but considering the previous detention of seventy-four days counting for one hundred and eleven days, accused will have to serve on each of the three counts one day of detention. [ 57 ] In file 635-01-018141-193, a fit sentence would be a global term of imprisonment of ten days consecutive to the sentence of five days that should have been imposed in file 635-01-0117745-192, but considering the previous detention of seventy-four days counting for one hundred and eleven days, accused will have to serve on each of the three counts one day of detention. [ 58 ] In file 635-01-018207-192, for offences committed six days after being released from detention, in order to take into account the gravity of these offences, the fact that it was the seventh time accused was abusing someone, and to deter him from assaulting or threatening again Cathy Kudluk, a sentence of imprisonment is necessary. [ 59 ] None of the charges in this file was punishable by a sentence of ten years of imprisonment or by a minimum term of imprisonment.

The Court is satisfied, with accused’s will to correct himself, which he has already started to do, that a conditional sentence of imprisonment would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. [ 60 ] Therefore, on the two first counts, accused is sentenced to a term of imprisonment of four months that he will have the privilege to serve in the community if he complies with the following conditions:

a) keep the peace and be of good behaviour;

b) appear before the Court when required to do so by the Court;

c) report to a supervisor within twenty-four hours and thereafter whenever required by the supervisor, remain in the province of Québec unless written permission given by the supervisor;

d) notify the supervisor of any change of address or name and promptly notify of any change of employment or occupation;

e) answer all phone calls during the conditional sentence order and take the necessary steps to be able to do so;

f) facilitate access to your residence by the supervisor;

g) notify the supervisor of any change of phone number;

h) follow all of the supervisor’s instructions regarding the application of the conditional sentence order;

i) abstain from communicating directly or indirectly with X;

j) abstain from communicating with Susan Kudluk, Alek Kudluk and Daisy Kudluk, except if they provide a written revocable consent to the police;

k) abstain from harassing, molesting or bothering Cathy Kudluk;

l) refrain from using or possessing alcohol or any other intoxicating substance, including marijuana, except in accordance with a valid medical prescription;

m) take the prescribed medication as prescribed;

n) follow all of the supervisor’s instructions regarding any therapy, counselling or follow-up necessary;

o) attend any therapy, counselling or follow-up decided by an appropriate doctor or social worker;

p) perform forty hours of community service under the supervisor’s supervision; [ 61 ] For the two first months of the conditional sentence order, be at his residence at all time except: • to attend a pre-scheduled appointment with the supervisor; • to appear before the Court if required to do so; • to receive medical treatment or any authorized form of treatment or counselling or follow-up with the authorization of the supervisor; • to perform community service in accordance with the terms set by the supervisor; • to report to the police station to give bodily substances as ordered; • to comply with the Sex Offender Information Registration Act; • for any serious and/or urgent reason with the prior written authorization of the supervisor; [ 62 ] For the last two months, be at his residence from 10: P.M. to 7: A.M. except for medical or treatment purposes with the authorization of the supervisor and except for any serious and/or urgent reason with the prior written authorization of the supervisor. [ 63 ] This conditional sentence order will be followed by a probation order that will be in force for a period of twenty months by which accused will undertake to comply with the following conditions:

a) keep the peace and be of good behaviour;

b) report to a probation officer within a week after the end of the conditional sentence order and thereafter whenever required by the probation officer;

c) abstain from communicating directly or indirectly with X;

d) abstain from communicating with Susan Kudluk, Alek Kudluk and Daisy Kudluk, except if they provide a written revocable consent to the police;

e) abstain from harassing, molesting or bothering Cathy Kudluk;

f) refrain from using or possessing alcohol or any other intoxicating substance, including marijuana, except in accordance with a valid medical prescription;

g) take the prescribed medication as prescribed;

h) follow all of the probation officer’s instructions regarding any therapy, counselling or follow-up necessary;

i) attend any therapy, counselling or follow-up decided by an appropriate doctor or social worker;

j) perform sixty hours of community service under the probation officer’s supervision within six months. [ 64 ] On the third count, accused is sentenced to a conditional sentence of imprisonment of fifteen days with the conditions set for the two first counts. [ 65 ] Accused will not have to pay the fine surcharge since it came into force In July 2019. [ 66 ] It is a global sentence of imprisonment of seven months and a half that accused would have had to serve if he had not been previously detained and be granted a credit for that detention. __________________________________ PAUL CHEVALIER, J.C.Q.

Me Marie-Josée Barry-Gosselin Me Patrick Cardinal For the Crown Me Louis-Nicholas Coupal For the accused Dates of sentencing hearing : July 19 and 29, 2019 August 7, 2019 September 16, 2019 November 7, 2019