r v. KYLE NEEPOSH, 2020 QCCQ 1235

R. c. Neeposh 2020 QCCQ 1235 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF “Criminal Division” Nos.: 614-01-002174-189 614-01-002179-188 DATE: March 13, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE JACQUES LADOUCEUR, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v. KYLE NEEPOSH Accused ______________________________________________________________________ JUDGMENT ON SENTENCING ______________________________________________________________________ Table of contents 1.

INTRODUCTION ................................................................................................................... 3 2. THE CONTEXT ..................................................................................................................... 3 3. ISSUES .................................................................................................................................. 5 4. POSITIONS OF THE PARTIES .......................................................................................... 6 5.

ANALYSIS ............................................................................................................................. 6 5.1. The assessment of the constitutional validity of a minimum sentence ............ 6 5.2. Some other principles of sentencing ..................................................................... 8

5.2.1.

Section 718.2 (

e) of the Criminal Code and Gladue ............................................ 8 5.2.2. The collateral consequences of the sentence ................................................... 10 5.2.3. Deterrence ................................................................................................................ 11 6. THE AGGRAVATING AND MITIGATING FACTORS AND OTHER RELEVANT CIRCUMSTANCES 12 6.1. The aggravating factors .......................................................................................... 12 6.2.

The mitigating factors .............................................................................................. 13 7. THE JUST AND APPROPRIATE SENTENCE ............................................................. 14 8. COMPARISON BETWEEN THE PROPORTIONATE SENTENCE AND THE MANDATORY MINIMUM SENTENCE ............................................................................................................. 17 9.

THE SENTENCE FOR THE OFFENCE INVOLVING OFFICER VROYE AND TOTALITY IN SENTENCING ............................................................................................................................ 18 1. INTRODUCTION [ 1 ] Four years. That is the mandatory minimum sentence to which the accused could be condemned as the consequence of an event that occurred early one morning in May 2018.

The accused discharged a firearm while being reckless as to the life or safety of another person as he was walking in the streets of Mistissini, an Aboriginal community. [ 2 ] The accused acknowledges the facts but challenges the constitutional validity of that mandatory minimum sentence. 2. THE CONTEXT [1] [ 3 ] Kyle Neeposh was born in 1991 and is 28 years old. He is the sixth child of a family of ten siblings and is a member of the Cree First Nation. [ 4 ] His early childhood was in a big family of thirteen people in a house with four bedrooms, two washrooms and a small open space in the basement.

He had to share a bed with his brothers. [ 5 ] He then spent time mainly [...], separated from his siblings until he became an adolescent. [ 6 ] At around the age of 5 or 6, he was abused [...]. [ 7 ] He was a popular student at school, making others laugh and helping them in different ways.

But some children accused him of doing stupid things, so he was regularly suspended. [ 8 ] In high school he fell prey to bad influences and started to smoke marijuana in reaction to feelings of abandonment and anger related to his father’s attitude. [ 9 ] The family reunited during his teenage years, and his father was uncompromising and used verbal and physical violence to discipline him. His father had his favourites among the children, and the accused was not one of them. [ 10 ] At the age of 18, he dropped out his carpentry course and began to drink. He met the woman who would become the mother of his child.

Gradually his consumption of alcohol took up more and more space in his life, so by the time his daughter was born when he was 22, he was drinking and taking cocaine every day. [ 11 ] After the birth of his daughter, things went well with the mother until 2017, when she had another baby with another man.

Although he tried to work things out with her, helping out with her pregnancy by setting up the room before the baby was born and making a crib for the baby, she left him in October 2017 because of his addiction. [ 12 ] At that point, he started drinking heavily and having anger issues, isolating himself from his family and struggling to find employment. [ 13 ] He moved to his parent’s home and began to have suicidal thoughts.

This was the context in which the accused committed the offence for which the Court has to render a sentence. [ 14 ] On May 25, 2018, he went to a party where his sister and his ex-girlfriend, both drunk, got into a fight. The accused did not intervene. Later on, however, he tried to fix things with his ex-girlfriend, but in vain. She apparently told him to “go kill yourself”. At that point, he started drinking hard liquor and continued for several hours. Later, two individuals apparently tried to approach him, but

because the accused refused to speak, they got into a fight. [ 15 ] After that, a witness saw the accused going into his residence. He appeared to be angry and was waving his arms. When he came out of the residence, he had a gun case. He took the gun out of the case and disappeared down the street. [ 16 ] At 5:26 a.m., the police received a call on the emergency line from a witness explaining what he had seen. The witness heard two gunshots after he called the police. [ 17 ] After that, numerous calls about the accused were made to the emergency line, and multiple gunshots were heard by the officer.

Later on, seven empty cartridges from a .12 caliber firearm were found. [ 18 ] One of the witnesses, Malick Rabbitskin, was at a party, outside on the balcony, when he saw the accused in the street, holding the firearm. The accused fired three shots in the direction of the witness.

The witness felt the pellets hitting him twice but did not sustain any injuries. [ 19 ] Officer Kaei Vroye found the accused and asked him several times to put his hands in the air. [ 20 ] The accused turned his body towards the officer, holding his firearm and pointing it in the direction of the officer’s torso. [ 21 ] When the officer asked him to drop his gun, the accused turned the firearm toward his chin and kneeled on the ground. [ 22 ] The officer asked him to stop, as two individuals approached the accused.

Before they could reach him, the suspect dropped his gun and crumbled to the ground. [ 23 ] The officers on the scene handcuffed the accused, who was screaming. [ 24 ] The firearm was secured, and there were no remaining rounds in the chamber or the loading barrel. [ 25 ] After being placed under arrest, the accused was aggressive towards the officers. He had a strong odour of alcohol and his eyes were bloodshot.

He was placed in a cell at the police station where he tried to choke himself. [ 26 ] The accused was charged with numerous offences related to the use of a firearm, and he pleaded guilty to the following charges: 614-01-002179-188: 1. In committing an assault against M.R. (2000-[...]), did use a weapon (267(

a) of the Criminal Code ); 2. Did point a firearm at M.R. (2000-[...]) (87(2)(

a) of the Criminal Code ); 3. Did intentionally discharge a firearm while being reckless as to the life or safety of another person (244.2(1)(

b) and (3)(

b) of the Criminal Code ); 614-01-002174-189 : 3. Did point a firearm at Kaei Vroye (87 (2)(

a) of the Criminal Code ); 4. Did carry or possess a weapon for a dangerous purpose to the public peace (88(2)(

a) of the Criminal Code ); [ 27 ] The most serious charge is of having intentionally discharged a firearm while being reckless as to the life or safety of another person. [ 28 ] The accused challenges the constitutionality of the minimum sentence of four (4) years of imprisonment. 3.

ISSUES [ 29 ] In determining the appropriate sentence for the charge of discharging a firearm while being reckless, how should the Court proceed with respect to the impact of all the facts and the other counts? [ 30 ] What is the appropriate sentence for that charge? [ 31 ] If the appropriate sentence is less than four years of imprisonment, is the minimum sentence of four years of imprisonment grossly disproportionate? [ 32 ] What is the appropriate sentence that should be rendered for the totality of the charges? 4.

POSITIONS OF THE PARTIES [ 33 ] The Crown prosecutor proposes a sentence of four years of imprisonment, taking into account the mitigating factors. Without the mitigating factors, she would have asked for a term of six years of imprisonment. She proposes that all the terms of imprisonment in both files be concurrent. [ 34 ] The accused proposes two years less one day of imprisonment followed by a probation order of three years, including 240 hours

of community service. 5. ANALYSIS 5.1.

The assessment of the constitutional validity of a minimum sentence [ 35 ] In submissions on sentencing, the Court asked the parties to share their comments and observations on the following question: • In a constitutional challenge of a minimum sentence, is the Court required to consider solely the offence carrying a minimum sentence, or must it consider all of the offences committed when determining the just and appropriate sentence? [ 36 ] This is an important question because, depending on how the just and appropriate sentence is determined, the answer could adjust it upwards, which could itself have an impact on the determination of whether the minimum sentence is disproportionate, if necessary. [ 37 ] More specifically, the Court is concerned with the event where the firearm was pointed at Officer Vroye in relation to determining the appropriate sentence for the offence carrying a minimum sentence. [ 38 ] The Attorney General of Quebec submits that all of the circumstances must be taken into account, including those related to pointing the gun at Officer Vroye.

She relies on R. v. Morrisey , [2] where the Supreme Court stated that, to properly consider a

section 12 challenge to a punishment, “the court must examine all of the relevant contextual factors ”. ( Emphasis added. ) The Supreme Court refers in that case to Smith [3] and Goltz . [4] In Smith , Lamer J. stated that, among other things, “the particular circumstances of the case ” must be taken into account. [ 39 ] Those mentions of the “relevant contextual factors” and the “particular circumstances of the case” are simply references to

section 718.2 (

a) of the Criminal Code , which sets out the sentencing principle whereby “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence of the offender”. (Emphasis added.) [ 40 ] Indeed, this is also affirmed by the Supreme Court at paragraph 38 of Morrisey , under the heading “ Particular Circumstances of the Offender and the Case ”.

The Court states that “at this stage, the reviewing court is to look for mitigating and aggravating factors that would affect the appropriateness of the sentence”. [ 41 ] In Morrisey , two offences were at issue, but they arose entirely from the same act, namely, a charge of criminal negligence causing death with a firearm and pointing a firearm.

In short, the accused in that case had pointed his firearm at another person and a shot was fired, causing the individual’s death. [ 42 ] Also, in Smith , the facts related to a single charge [5] . [ 43 ] The Attorney General of Quebec also submits the judgment in Lloyd [6] as an example in support of its argument. In that case, the appropriate sentence of twelve months was determined by taking the three charges into account.

That case is of little use, however, since the three counts were intimately related, all being connected with the possession of three drugs of different natures. [ 44 ] The Court determined that the answer to the question could be found in Desjardins c.

R ., [7] which contains the following excerpt: [ translation ] As a general rule, prison sentences should be concurrent if the charges arise from a single event or if they involve ongoing criminal acts, unless the law provides for consecutive sentences or the court finds that one of the counts forming part of the single event contains an aggravating factor that justifies a consecutive sentence . [8] (Emphasis added.) [ 45 ] The Court is of the view that the sequence involving the pointing of a firearm at the police officer contains an aggravating factor that justifies a consecutive sentence, such that it should not be taken into account in the sentencing for the offence that carries a minimum sentence. [ 46 ] The specific aggravating factors in the offence of pointing a firearm at the police officer concern, first, the fact that the victim is a police officer who was also armed and, second, the fact that the police officer suffered personal consequences.

Indeed, he testified that he was deeply troubled by having a firearm pointed at him and by realizing that he could have used his firearm against a suspect whose weapon turned out to be unloaded. [ 47 ] Furthermore, where a court decides to impose consecutive sentences, it must take into account the general principle of proportionality, which manifests more specifically here as the “totality principle”. [ 48 ] According to the Supreme Court in R. v.

M.(C.A.) , [9] “the totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.” [10] [ 49 ] Since the Court has already announced that it will render a consecutive sentence for the offence of pointing a firearm at a police officer, it will bear this principle of totality in sentencing in mind when the time comes to render the final sentence. 5.2. Some other principles of sentencing

[ 50 ] The fundamental principle of sentencing is the proportionality of sentences, which means that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [11] [ 51 ] The Court also wishes to discuss three aspects of sentencing that it considers important in this case: the Gladue [12] criteria, the collateral consequences of the sentence and deterrence. 5.2.1.

Section 718.2(

e) of the Criminal Code and Gladue [13] [ 52 ]

Section 718.2 (

e) of the Criminal Code and Gladue concern the problem of the overrepresentation of Aboriginal persons in prison. As stated in R . v. Iserhoff , [14] the number of Aboriginal inmates who were in federal penitentiaries in 1999 represented 12%. This percentage has been continuously increasing, reaching 27% in 2017 in federal correctional institutions, while in provincial prisons, this number is 30%. According to the Office of the Correctional Investigator of the Government of Canada , the percentage in federal penitentiaries is 30% today in 2020. [15] [ 53 ]

Section 718.2 (

e) of the Criminal Code , Gladue and Ipeelee seek to reduce the incarceration of Aboriginal persons.

The Supreme Court has identified two sets of circumstances to consider when sentencing an Aboriginal offender. [ 54 ] The first is that the “systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness …” whereas “[t]he second set of circumstances – the types of sanctions which may be appropriate – bears not on the degree of culpability of the offender, but on the effectiveness of the sentence itself.” [16] [ 55 ] It is difficult to understand and accurately explain the consistent increase in the rate of incarceration of Aboriginal persons, despite the many references to this situation by the Supreme Court as well as appellate courts across Canada, including in Quebec in Diabo [17] and Denis-Damée , [18] among others. [ 56 ] And yet, in Gladue , the Supreme Court stated the following: Sentencing judges are among those decision - makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. [19] [ 57 ] Despite this message to judges expressed more than 20 years ago, the situation has worsened year after year. While we do not bear full responsibility – there are multiple causes – the fact nevertheless remains that we judges are the ones rendering these prison sentences.

That means that we also have the power to act to exert a positive effect on this drastic situation. [ 58 ] That concerns the prosecution and the defence also, regarding joint submissions. In Anthony-Cook [20] , the Supreme Court mentions that “[joint submissions] are vital to the efficient operation of the criminal justice system”. That is particularly true from all the actors in the judicial system regarding justice in the North.

On the other hand, we should question ourselves regarding the high frequency of joint submission proposing term of imprisonment . [ 59 ] Put simply, if this critical situation is to be checked, concrete and consistent action must be taken in response to the calls to action that the higher courts have made to us on the subject of prison sentences for Aboriginal persons. 5.2.2. The collateral consequences of the sentence [ 60 ] As the Supreme Court stated in R . v. Pham [21] and more recently in Suter v.

R . [22] the Court must consider the significant collateral consequences of incarceration on an accused and the accused’s family. [ 61 ] Therefore, the Court must take into consideration all the relevant circumstances of the offence and the offender that may flow from the length of the sentence or from the conviction itself. Such consequences may be that the offender may suffer physical, emotional, social or financial consequences. [ 62 ] Here, the accused is a member of the Cree First Nation of Mistissini and a beneficiary of the James Bay and Northern Quebec Agreement (hereinafter JBNQA).

As explained in Iserhoff , [23]

section 18 of the JBNQA states that “Crees subject to imprisonment, committal or detention, shall not be imprisoned, committed or detained in any institution below the 49 th parallel of latitude”. [24] In reality, however, no detention centres have been built above the 49 th parallel. The Cree Nation Government and the Attorney General of Quebec entered an Agreement [25] in 2007, but it did not change or amend any of the provisions in

section 18 of the JBNQA. [ 63 ] Currently, there are some specific rehabilitation programs for the Cree clientele in the Detention Centre in Amos, which is the nearest detention centre to the Eeyou Istchee territory.

It appears, however, that on a daily basis, one Cree person out of two in detention is not at the Amos Detention Centre. [26] [ 64 ] Also, the percentage of non-Aboriginal persons who obtained conditional release is double that of the eligible Aboriginal persons (30% versus 15%). [27] [ 65 ] As for the federal penitentiaries, the statistics show that Aboriginal offenders serve a greater portion of their sentences before being released.

In 2017-2018, Aboriginal offenders under federal responsibility served longer periods of their sentences before their first day parole, and before full parole that non-Aboriginal offenders. [28] [ 66 ] The Court notes the following observation it made in Iserhoff :

[172] As for the collateral consequences, the Court considers the following: • The Cree inmate is in a detention centre far away from his family and community, making it more difficult to receive visits from his loved ones and maintain a connection with his culture; • The Cree inmate will on average serve half of his sentence in a facility other than the ADC; • The Cree inmate is imprisoned in a cultural environment that is fundamentally different from his Aboriginal culture and where he is demographically underrepresented, which contributes to making his imprisonment a more difficult challenge; • The Cree inmate has a substantially lower expectation of being granted temporary absence in preparation for conditional release and release on parole than non-Aboriginal inmates do.

Therefore, in principle, he will spend more time in detention than a non-Aboriginal inmate. [ 67 ] Also, because the rights of Cree beneficiaries set out in paragraph 18.0.26 of the JBNQA are not suspended, Cree inmates remain beneficiaries of this right, which must be part of the basis of the assessment of the collateral consequence of the sentence. [29] 5.2.3. Deterrence [ 68 ] In its submissions, counsel for the prosecution placed great emphasis on the objective of general deterrence.

Specifically, she invoked the high level of recurrence of this type of offence in Cree communities. [ 69 ] The Court invited counsel for the prosecution and the Attorney General of Quebec to submit statistics to this effect to support those statements. A first time, period of six weeks was granted, which was subsequently extended by three weeks. No statistics supporting the prosecution’s submissions were filed. [ 70 ] In Lacelle Belec c .

R . [30] , the Court of Appeal noted that [ translation ] “measuring the achievement of the objective of general deterrence nevertheless remains highly problematic and, at the risk of repetition, Paré , cited above, establishes its limitations”. [31] [ 71 ] Paré [32] does indeed state that the objectives of general deterrence and denunciation are uncertain and limited in nature. 6. THE AGGRAVATING AND MITIGATING FACTORS AND OTHER RELEVANT CIRCUMSTANCES 6.1.

The aggravating factors • The incident took place outside, in a residential area; • Several shots were fired (7); • Some shots were fired in the direction of a house where people were on the balcony; • One of these people, Malick Robbitskin, was struck by a projectile (but did not suffer an injury because of the distance from which it was shot).

This person does not feel safe when he sees the accused and he feared that the accused might commit the same type of crime; • According to his victim impact statement, another person, Isaiah Diamond, suffered certain consequences for a short period of time, namely trouble sleeping and some psychological discomfort for approximately one week; • The incident took place in an isolated community that did not have police backup available; [ 72 ] Sergeant Shannon Nakogee testified in connection with the dangerousness of the act committed and filed certain technical documents concerning the weapon, the ammunition, and their technical features.

Several hypotheses were put forth regarding the degree of dangerousness of the acts committed by the accused and the consequences that could have ensued. Sergeant Nakogee is an experienced firearms user, but he did not testify as an expert. The hypotheses he proposes are supported by weak evidence, mainly in regard of the distance between the shots and the balcony.

In reality, although the high degree of dangerousness of the acts committed by the accused cannot be denied, it seems that the velocity of the projectiles shots in the direction of the people on the balcony was not sufficient to cause damages because also of the part of the body that was struck by the projectiles. 6.2.

The mitigating factors [33] • The Gladue report shows that the accused was affected by the damaging consequences of the residential schools to his family and his community, and that he himself suffered serious injury in connection with these systemic and background factors; • He has taken serious steps towards rehabilitation (but did relapse); • He has entered a guilty plea; • He is father to a daughter of whom he was taking care until he was placed in detention;

• His family supports him; • He has no criminal record; • He feels remorse; [ 73 ] The accused was detained at the time of submissions on sentencing because he had been arrested further to an event involving police intervention since he had drunk alcohol while prohibited from doing so. This happened two times before. Each time shortly before the sentencing hearing, and can be explained by the accused’s discouragement at the possibility of serving a minimum sentence of four years. [ 74 ] The accused has filed documents to confirm steps taken towards rehabilitation.

They include, inter alia , an achievement certificate that certifies that he successfully completed a six-week alcohol and drug abuse treatment program on February 14, 2019, at Onen’t Ó :kon Healing Lodge, and a letter from the representative of the lodge confirming that the accused participated well and that he “has been highly motivated to change and has exhibited remorse for things he’s done in the past.” [ 75 ] He also enrolled at Sabtuan Adult Education Services in preparation for a vocational training program, and a letter signed by a representative of the Sabtuan Adult Education Services confirms that he “has a perfect attendance, and is working hard toward his goal.” 7.

THE JUST AND APPROPRIATE SENTENCE [ 76 ] The parties refer the Court to several judgments rendered in similar cases. The Court has already dealt with most of those decisions in its judgment in R. c. Gunner [34] [ 77 ] The Attorney General of Quebec submits the recent judgment in R. c . Griffith [35] In that case, the accused was facing a minimum sentence of five years of imprisonment in connection with the offence of having intentionally discharged a restricted firearm or prohibited firearm while being reckless as to the life or safety of another person.

The challenge was dismissed, and the accused was sentenced to 81 months in prison. That case can be distinguished in several respects. The accused had several prior offences. He had an idle lifestyle, never holding down a job for more than three months, and had a long-term drinking problem but had never received any kind of therapy. In addition, he was originally facing a charge of attempted murder with a restricted firearm or prohibited firearm, by having discharged it in the direction of a person.

The accused had fired the weapon in a parking lot, early in the morning, towards an inhabited building, the highway, and some people. The shots had been discharged in two sequences. The incident took place in an area where citizens had been dealing with persistent loitering, drugs, violence and weapons issues over the years, and the evidence showed that Griffith was often there. In fact, this case is very distinguishable from the present case. [ 78 ] Also, as said in R. v.

Sellars [36] , concerning the principle of parity between sentence for Aboriginal offenders and other offenders : [31] A disparity between sentences for Aboriginal offenders and other offenders can be justified where there are circumstances unique to the Aboriginal offender, even when considering the principle of parity as codified in s. 718.2 (

b) that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ( Ipeelee at paras. 78‒79 ). Similarly, a sentence outside the established range of sentences for an offence can still be a fit sentence if it is proportionate to the gravity of the offence and degree of responsibility of the offender ( Lacasse at para. 58 ). (Emphasis added.) [ 79 ] The Court finds that the judgment that has most in common with this case is that rendered in Gunner , [37] in terms of the profiles of the accused and the circumstances of the crimes.

In both cases, two young Cree men in their twenties with no criminal records committed similar crimes in the community of Mistissini. [ 80 ] The Court considers that the sentence for the offence of intentionally discharging a firearm while being reckless as to the life or safety of another person should be less harsh than the sentence in Gunner , for the following reasons: • Even if fewer shots were fired in Gunner , the acts committed by this accused had a greater potential of causing death. • The accused Gunner fired a shot from a short distance away from a police officer, who felt the projectile graze his head. • The police officer and the accused Gunner were a short distance away from each other, in an apartment and near a room where there was a 3-year-old child, in a building of twelve apartments, which had to be evacuated. • The events in Gunner took place over a much longer period of about two hours. • The consequences to the victim, a peace officer, were much more serious than those in this case. • Although he has relapsed, Mr.

Neeposh has taken several concrete steps towards rehabilitation. • The Gladue reports in the two cases show that Mr. Neeposh has had a more difficult history; • The collateral consequences of the sentences, particularly given the fact that there is no detention centre above the 49th parallel, was not considered in the sentencing of the accused Gunner. [ 81 ] The prosecution submits that sentencing must place great emphasis on general deterrence by ordering a long period of incarceration, considering the fact that Aboriginal persons all have access to easily obtained firearms and that they must be aware of the

harsh criminal consequences of using them in the community. [ 82 ] The defence argues that the fact that firearms can be found in most homes and are accessible reduces the moral responsibility of offenders. [ 83 ] In the Court’s opinion, there is only a slight difference between both opinions. Fundamentally, the purpose of a firearm to an Aboriginal person must be taken into account. It is a tool that has been used for centuries and is still used today for subsistence purposes.

For non-Aboriginal persons, on the contrary, hunting weapons are primarily recreational or sports accessories and their possession is therefore limited to those who practise these sports. But neither of the groups bears more responsibility for their proper use than the other. [ 84 ] In the absence of evidence of the frequency with which firearms-related offences are committed, it is not appropriate to be more severe. [ 85 ] As noted earlier, the objective of general deterrence is always difficult to attain.

This is especially true since such crimes are committed in a situation of psychological distress, when the offender’s concerns are not focused on the number of years in prison he or she might serve. [ 86 ] The commission of the offences was connected to the various factors set out in Gladue , and it is with these factors in mind that moral responsibility should be reduced. Ultimately, this means that the cause should be the subject of our attention, more than the consequences.

We may very well send Aboriginal persons who commit this type of crime to prison for a long time, but nothing will change if nothing is done at the source to prevent collective and individual suffering from continuing. [ 87 ] Therefore, the Court finds that a sentence of twenty (20) months is the appropriate sentence in the circumstances for the offence requiring the minimum sentence. [ 88 ] Also, an order prohibiting the possession of firearms with no possibility to obtain the lifting of the prohibition under

section 113 of the Criminal Code , so as to encourage the accused in his rehabilitation by allowing him to apply for the lifting of the prohibition under

section 113 of the Criminal Code after a certain period of time has elapsed. [ 89 ] As stated earlier in Gunner , “[t]he Court therefore considers that an order prohibiting the possession of firearms under

section 109 of the Criminal Code , with no possibility of obtaining a lifting of the prohibition under

section 113 of the Criminal Code for a set period of time, sends a message to members of Aboriginal communities while being directly linked with the type of offence–use of firearms–on which the Court is pronouncing a sentence.” [ 90 ] As for the probation order, since the accused would be able to benefit from certain programs during his incarceration, probation of 24 months appears sufficient. [ 91 ] A curfew has to be part of the probation order considering that the crimes have been committed at night. 8.

COMPARISON BETWEEN THE PROPORTIONATE SENTENCE AND THE MANDATORY MINIMUM SENTENCE [ 92 ] The test of cruel and unusual punishment is a stringent and demanding test designed to avoid interfering with the legislator’s discretion. In Lloyd [38] and Nur , [39] the Supreme Court set out in clear terms the principle applicable to the situation. The minimum sentence that is challenged must be more than simply excessive.

It must be the case that “the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.” [40] [ 93 ] The Court finds that the minimum sentence here is equal to more than double the appropriate sentence. [ 94 ] What is more, as noted above, the problem of Aboriginal over-representation in prisons and penitentiaries is not merely continuing but worsening year after year.

In addition, it is generally a more difficult ordeal for Aboriginal persons to serve prison sentences because, among other things, of the distance from their communities. And finally, the statistics show that Aboriginal persons serve a longer portion of their prison sentences before being allowed to go on outings or being released on parole than non-Aboriginal persons do. [ 95 ] The drafting and enactment of the provision setting out a minimum prison sentence of four years seems to have been done without consideration of the specific consequences for Aboriginal persons.

While there cannot be two systems of justice, the fact remains that adapting the implications of this minimum sentence provision to Aboriginal persons from communities that hunt and for whom firearms are part of their traditional way of life results in a circuitous process with unforeseen consequences, namely, the application of

section 718.2 (

e) of the Criminal Code and a constitutional challenge. [ 96 ] In consequence, the Court concludes that, in the case of the accused, the minimum punishment of imprisonment for a term of four years provided under

section 244.2(3) (

b) of the Criminal Code infringes on the right not to be subjected to cruel and unusual treatment or punishment, contrary to

section 12 of the Canadian Charter . [ 97 ] As for justification under

section 1 of the Canadian Charter of Rights and Freedoms , the Attorney General of Quebec admits that, in the event of a violation of

section 12 of the Charter , it cannot be justified under

section 1 of the Charter .

9. THE SENTENCE FOR THE OFFENCE INVOLVING OFFICER VROYE AND TOTALITY IN SENTENCING [ 98 ] As stated at the outset, the punishment for this offence including aggravating factors requires consecutive sentences. Further taking into account the principle of totality in sentencing, the Court finds that a sentence of six (6) months is an appropriate sentence. The total is twenty-six (26) months, from which we must subtract 209 days for the pre-sentencing custody (139 X 1.5). THEREFORE, THE COURT [ 99 ] In file 614-01002179-188 : [ 100 ] DECLARES that the minimum mandatory punishment of imprisonment for a term of four (4) years provided under

section 244.2(3) (

b) of the Criminal Code is unconstitutional and inoperative with respect to the accused; [ 101 ] SENTENCES the accused to serve a sentence of imprisonment for a term of 391 days, that is: • Imprisonment for a term of 391 days on the third count (20 months, that is, 600 days less 209 days spent in pre-sentence custody calculated at a ratio of 1:1.5 days, which is equivalent to 391 days (600 – 209 = 391)); • Imprisonment for a term of three (3) months on the first count, concurrent with the third and second count; • Imprisonment for a term of four (4) months on the second count, concurrent with the first and third count; [ 102 ] In file 615-01-002174-189 : • Imprisonment for a term of 180 days on the third count, consecutive to any other sentence: • Imprisonment of three (3) months on the fourth count, concurrent with the third count; [ 103 ] Total on both files: 571 days of imprisonment. [ 104 ] ORDERS a probation order for two (2) years beginning upon release of the accused from custody, under the following conditions: • That he keep the peace and be of good behaviour; • That he appear before the Court when required to do so by the Court; • That he provide notice of any change of address and notify the probation officer within 48 hours of any change of employment or occupation; • That he communicate with the probation officer within three working days of his release from prison and, subsequently, when required and in the manner required by the probation officer for a period of 18 months; • That he follow all of the probation officer’s instructions concerning his anger problem and his drug and alcohol abuse problems, including therapy; • That he communicate with the Justice Committee within five working days of his release from prison and, subsequently, when required and in the manner required by the Justice Committee for a period of 18 months; • That he follow all of the Justice Committee’s instructions concerning care and treatment for intergenerational trauma and treatment for his anger problems and drug and alcohol abuse problems; • That he abstain from consuming alcohol, drugs and narcotics, including cannabis, except in accordance with a validly obtained medical prescription; • Be at his residence between 10 p.m. and 6 a.m., for the first six (6) months of the probation, barring the following exceptions:

a) For medical emergency for himself or his family;

b) For work;

c) For traditional activities;

d) For any serious reason, with the prior authorization of the probation officer. • That he perform 240 hours of community service within 18 months and comply with the terms of performance indicated by the probation officer or any other caseworker designated by the probation officer; • Under the supervision of the Justice Committee, that he write a letter of apology to the victims Malick Rabbitskin, Isaiah Diamond and Kaei Vroye, and give them those letters of apology if this is considered appropriate by the Justice Committee; this must be done under the terms and conditions set out by the Justice Committee and under its supervision, including with respect to giving the letter to the victims in person, in the presence of a member of the Justice Committee, if the victims consent and the Justice Committee

considers such an action appropriate; [ 105 ] RECOMMENDS that the probation officer and the Justice Committee work together in collaboration and communicate with each other when drawing up and implementing various measures for the rehabilitation of the accused and concerning the nature of the community works that the accused will have to accomplish; [ 106 ] PROHIBITS the accused from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 15 years after his release from imprisonment; [ 107 ] DECLINES to grant the accused any exemption to possess a firearm for traditional activities as may be permitted under

section 113 of the Criminal Code for a period of 3 years after his release from imprisonment; [ 108 ] RESERVES the accused’s right to apply for the lifting of the prohibition to possess a firearm under

section 113 of the Criminal Code after the expiry of the said period of 3 years, depending on the situation of the accused at the time of the application, if it is filed, and on changes and improvements with respect to the accused’s present problems; [ 109 ] RECOMMENDS that, if such an application for the lifting of the prohibition under

section 113 of the Criminal Code is filed, it be done before the undersigned judge; [ 110 ] ORDERS the accused to provide DNA sample within 60 days; [ 111 ] ORDERS the confiscation of the firearm and ammunition seized, to be forfeited to Her Majesty and to be disposed of as the Attorney General of Quebec directs. __________________________________ JACQUES LADOUCEUR, J.C.Q. Mtre Marie-Josée Barry-Gosselin and Mtre Geneviève Lamontagne For the prosecution Mtre Alexandre Duval For the Attorney General of Quebec Mtre Ratha Heang For the accused Date of hearing: December 5 and 6, 2019