2020 QCCQ 2438, 2020 QCCQ 2438

Translated from the original French R. c. Charlish 2020 QCCQ 2438 JL-3223 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ROBERVAL Criminal and Penal Division Nos.: 155-01-000338-194, 155-01-000631-192, 155-01-000850-198, 155-01-001534-197 DATE: June 11, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE PIERRE LORTIE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

MAVERICK CHARLISH Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] On December 4, 2019, Maverick Charlish (the accused), age 25, pleaded guilty to the following offences (in chronological order): File Date (between) Offence 155-01-001534-197 November 16, 2018 May 31, 2019 Breach of probation (failure to report to a probation officer in accordance with the terms established by the probation officer). 155-01-000338-194 November 29 2018 December 14, 2018 Trafficking in cocaine in Mashteuiatsh. [1] 155-01-000631-192 November 29, 2018 December 14, 2018 Two breaches of probation: having disturbed the peace (count 1) and being present at a location where drugs are used, sold, or trafficked (count 2). 155-01-000850-198 May 6, 2019 Breach of probation for having failed to perform 100 hours of community work within 12 months of May 7, 2018. [ 2 ] Because of the objective gravity of the offence of trafficking and a recent conviction for a similar offence, the prosecution seeks a sentence of 15 months.

An additional 3 months should be added for the breach of probation, for a total of 18 months. [ 3 ] The accused’s position has evolved for reasons that will be explained below. In the end, he suggested an intermittent sentence of 90 days combined with therapy.

[ 4 ] The debate takes place in a context where the accused is an Aboriginal person who is a member of the Mashteuiatsh Innu Nation. Paragraph 718.2 (

e) of the Criminal Code (Cr. C.) provides that the judge must take into consideration all available sanctions, other than imprisonment, “with particular attention to the circumstances of Aboriginal offenders”. Sentencing in such cases was analyzed by the Supreme Court in Gladue in 1999 [2] and in Ipeelee in 2012. [3] ISSUE [ 5 ] What is the appropriate sentence, considering the aggravating factors on the one hand and the mitigating factors on the other, for an Aboriginal accused?

LEGAL CONTEXT HISTORY OF FRAUD [ 6 ] On May 16, 2014, the accused, who was then 19 years old, was sentenced to 20 hours of community work for having defrauded a financial institution of $300. HISTORY OF DRUG-RELATED OFFENCE [ 7 ] On January 18, 2018, he pleaded guilty to a charge of trafficking in cocaine between 2015 and 2017. The police had previously been informed of suspicious activity and then searched his home. [ 8 ] For the purpose of sentencing, Michel Boudreault, J.C.Q., ordered that a presentence report and a Gladue report be prepared. [ 9 ] Submissions on sentencing took place on May 7, 2018.

The prosecution sought an 18-month term of imprisonment and the accused suggested an intermittent sentence. [ 10 ] Despite the presence of aggravating factors (e.g., objective gravity, the scourge of drugs in the community), the judge accepted the defence’s position and imposed an intermittent sentence of 60 days. In addition, he imposed two years’ probation, including 18 months with supervision, and 100 hours of community work. The reasons may be summarized as follows:

(1) As is the case for many Aboriginal persons, the accused has been marked by a painful past that led him to delinquency. These are Gladue factors.

(2) His trafficking is related to an addiction and the payment of drug debts.

(3) The accused cooperated. He was transparent with the police, and he pleaded guilty.

(4) The judge did not accept the opinion of the probation officer that there was a high risk of recidivism.

(5) Several elements establish that rehabilitation is in progress (abstinence from hard drugs, meetings with an addiction counselor, compliance with the conditions of release).

(6) The accused has a short criminal record. In addition, he is young and provides support to his family (spouse and children). THE CURRENT FILES [ 11 ] On December 4, 2019, the accused pleaded guilty before this Court to the offence of trafficking in cocaine between November 29 and December 14, 2018. He also acknowledged the breach of probation. [ 12 ] The principal facts can be summarized as follows. [ 13 ] Following the sentence rendered on May 7, 2018, the accused continued to use cannabis but reduced the quantity.

For a time, he stayed away from methamphetamines and cocaine, but for various reasons, he relapsed and resumed selling to pay for his consumption. [ 14 ] The police received information about him, conducted surveillance, and noticed comings and goings at his home. They subsequently obtained a search warrant, which led to this arrest. [ 15 ] During this episode of disorganization, the accused breached the conditions of his probation.

THE ACCUSED’S PROFILE [ 16 ] During submissions on sentencing, the Court granted the application of counsel to file the presentence and Gladue reports that were previously prepared because they remain relevant. The reports provide a complete picture of the accused’s situation. [ 17 ] As noted by the Supreme Court in Ipeelee , his life story “is far removed from the experience of most Canadians”. [4] [ 18 ] Since childhood, he has been exposed to instability, violence, and substance use. His relationship with his mother has become practically non-existent.

Because he was a victim of physical and sexual abuse, he was placed in a foster home. His integration into school was difficult. He completed a few work internships and found some casual employment.

[ 19 ] He was introduced to drugs by his family members, who trivialized and normalized its use. He gradually became involved in trafficking to pay for his purchases and repay his debts. [5] He also used drugs as a coping mechanism to deal with his difficulty managing his emotions and the issues arising from his past. [6] He is aware of the problem and has consulted an addiction counselor, but has not managed to remain abstinent. [ 20 ] The hardships piled up. He lost his driver's licence, which limited his means of transportation.

In addition, he incurred debts with certain government bodies. [ 21 ] He has a spouse who is a member of the same community and who also has problems with substance use. The couple have two young children and live in Mashteuiatsh, in an apartment that is part of a band council program. [ 22 ] The Gladue report adds some general history about the community, which is located on the western shore of the Lac-Saint-Jean area, a few kilometres from Roberval. It was incorporated as an Indian reserve in 1856. Two elements warrant attention.

First, this initially nomadic population became sedentary, which caused profound upheaval, in particular with respect to traditional activities. Second, in the past, the children were torn away from their families and placed in residential schools intended to assimilate them. The impact of that trauma has been transmitted over several generations and is at the root of many problems (alcoholism, drug addiction, suicide, crime, overrepresentation in the prison system, etc.). To a certain extent, even if the accused is not directly concerned, these social conditions have affected him.

THE SENTENCING HEARING [ 23 ] First, counsel for the accused explained that the accused wanted to go to therapy. However, his spouse and children need him such that he cannot leave them for an extended period. In that context, and considering those restrictions, counsel suggested a sentence totalling four months with follow-up during probation. [ 24 ] The Court then asked for information on the programs available in the community. [ 25 ] The hearing was suspended to allow the Indigenous c ourtworker Stéphane Duchesne to appear and enlighten the Court. Mr.

Duchesne knows the Mashteuiatsh community well, and in his position, he supports Aboriginal offenders through the judicial process, acts as a supervisor, and prepares Gladue reports. He is the author of the report in this case and knows the accused well. The following elements emerged from his testimony:

(1) There are no justice committees in Mashteuiatsh. The Court refers to the work of the Viens Commission, which described the usefulness of such committees as follows: [7] The roles and responsibilities of those committees vary with each community’s needs and priorities. In general, it can be said that their goal is to offer an alternative to or complement the structures of the existing justice system. They take care of a number of things, including: diversion, sentencing recommendations, supervised probation, suspended sentences, conditional release, authorized leave, crime prevention and community support—healing circles, offender reintegration and citizen mediation.

(2) Mr. Duchesne added that among the resources available to all types of clients, there is a housing resource in Jonquière called Le Séjour , a community organization that helps those suffering from issues related to substance abuse or addiction. Mr. Duchesne said that some members of the Mashteuiatsh community go to that centre.

(3) With respect to Aboriginal clients, there is the Centre Kapatakan Gilles-Jourdain in Mani-Utenam, near Sept-Îles. It is an organization accredited by the Ministère de la Sécurité publique whose mission is to provide services adapted to Aboriginal values and traditions to Innu adults and other First Nations members, with the objective of healing and rehabilitation.

(4) There is also the Wapan rehabilitation centre in La Tuque. It provides treatment and follow-up services to First Nations adults.

(5) Mashteuiatsh social services can also provide support and direct a person to the appropriate resources, to the extent that he or she is willing and participates in the follow-up required.

(6) After sentencing, the probation department can ask Mr. Duchesne to follow-up with an accused in Mashteuiatsh.

(7) With respect to the accused in this case, Mr. Duchesne notes that he is open and cooperative. Before his relapse, he had made sincere efforts to change. [ 26 ] After having heard Mr. Duchesne, the accused decided to testify. He was transparent and described his drug addiction. He now realizes that he must get to the root of the problem and that long-term therapy is needed even if that causes him to be away from his family.

He realizes that he is reproducing for his children the conditions that led to his substance use. [ 27 ] It should be noted that the accused’s testimony before the Court was very difficult emotionally. He could not hold back his tears when his counsel described his life course. [ 28 ] In any event, counsel redirected the focus to the fact that the accused is willing to undergo therapy. He now suggests a 90-day sentence with supervised probation. ◊ ANALYSIS AND DECISION [ 29 ] This is a difficult case.

[ 30 ] For one, cocaine trafficking is an objectively serious offence, for which the offender is liable to imprisonment for life. In addition, on a daily basis in court, judges are witness to the devastation caused by drugs, especially with respect to youth. What is more, this case concerns a subsequent occurrence of the same offence for which the accused was convicted a few months earlier, along with a breach of probation. In the circumstances, the sentence sought by the prosecution is not unreasonable. [ 31 ] Moreover, the Court cannot ignore the unique systemic and background factors that are mitigating in nature in that they have played a

part in the Aboriginal offender’s conduct. [8] In Gladue and Ipeelee , the Supreme Court urges sentencing judges to address the sources of the problem rather than reproducing the “revolving door cycle in the courts”. [9] [ 32 ] After balancing these factors, the Court will apply the principles of corrective justice outlined in Gladue .

Thus, “[t]he focus is on the human beings closely affected by the crime”, [10] which “is not necessarily a “lighter” punishment. [11] [ 33 ] The accused is therefore granted a last chance with a total sentence of 90 days to be served intermittently and supervised probation including therapy, the terms of which will be established by the probation officer. [ 34 ] To prioritize that initiative and taking into consideration the accused’s family obligations, the Court will not add community work.

It is appropriate to focus on what is essential, therapy, which is already an enormous challenge. [ 35 ] The accused has been informed that there will be consequences if he breaches his conditions. If he complies with them, he will have taken an important step towards rehabilitation for his own good as well as the good of his family and his community. [ 36 ] It is now up to him to make the right choices.

CONCLUSION [ 37 ] FOR THESE REASONS, THE COURT : [ 38 ] IMPOSES the following concurrent sentences to be served intermittently: 155-01-000338-194 Trafficking in cocaine 90 days 155-01-000631-192 Breach of probation Count 1: Causing a disturbance Count 2: Present at a location 30 days 30 days 155-01-000850-198 Breach of probation Failing to perform community work 30 days 155-01-001534-197 Breach of probation Failure to report to probation officer 30 days [ 39 ] FORMALLY RECOGNIZES the accused’s consent to undergo therapy. [ 40 ] ORDERS the accused to comply with the conditions set out in a three-year probation order, including two years of supervision, the whole accompanied by terms to be specified when passing the sentence. [ 41 ] RENDERS various orders, the terms of which will be specified when passing the sentence. __________________________________ PIERRE LORTIE Judge of the Court of Quebec Mtre Julie Villeneuve Director of Criminal and Penal Prosecutions Mtre Sébastien Talbot Counsel for the accused Date of hearing: December 4, 2019