2020 QCCA 1239, 2020 QCCA 1239

R. c. L.P. 2020 QCCA 1239 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003713-190 (640-01-040147-184) (640-01-040244-189) (640-01-040245-186) (640-01-040431-182) DATE: SEPTEMBER 25, 2020 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. SIMON RUEL, J.A. SUZANNE GAGNÉ, J.A. HER MAJESTY THE QUEEN APPELLANT v. L. P. RESPONDENT JUDGMENT (Order restricting publication under

section 486.4 of the Criminal Code ) WARNING: The Criminal Code forbids that any information that could identity the victim shall be published in any document or broadcast or transmitted in any way (sections 486.4 (1)). [ 1 ] The Crown seeks leave to appeal a judgment rendered on October 25, 2019 by the Court of Québec, District of Abitibi (the Honourable Peggy Warolin), [1] which imposed on the respondent a sentence of imprisonment of two years less a day, less 199 days spent in pre-trial custody, followed by three years’ probation with supervision, after he pleaded guilty to seven counts related to two distinct sets of events of domestic violence. [ 2 ] For the reasons of Ruel, J.A., with which Gagné, J.A. concurs, THE COURT : [ 3 ] GRANTS the motion for leave to appeal; [ 4 ] ALLOWS the appeal; [ 5 ] REVERSES the judgment rendered by the Court of Québec in part, and, proceeding to render the judgment that should have been rendered, REPLACES the conclusions of the judgment under appeal at paragraphs 113 to 119 with the following: [113] CONDEMNS the accused to serve, in the following files: In file no. 640-01-040244-189 A sentence of 44 months on counts 1, 2 and 4, to be served concurrently ; In file no. 640-01-040431-182 A sentence of 18 months on counts 3 and 4, to be served concurrently with the sentence imposed in file no. 640-01-040244-189; To the 44-month total sentence in files no. 640-01-040244-189 and 640-01-040431-182, the time served by the respondent in pre-trial detention should be deducted at a 1.5 to one ratio, which is a deduction of 846 days (564 X 1.5), the net sentence being 492 days, or 16.4 months; In file no. 640-01-040147-184 60 days on count 1, to be served concurrently with the sentences in the other records; In file no. 640-01-040245-186 60 days on count 1, to be served concurrently with the sentences in the other records. [114] ORDERS a prohibition to communicate directly or indirectly with the victim C.

K. during the period of detention, according to

section 743.21 of the Criminal Code; [115] ORDERS the accused to respect the following conditions of his probation for a period of 3 years following his release, conditionsto which he has consented: • Keep the peace and be of good behaviour; • Appear before the Court when required to do so; • Remain within the Province of Quebec; • Notify the probation officer of any change of address or name and quickly notify the probation officer of any change ofemployment or occupation; • Communicate with the probation officer within 5 working days of his release and thereafter on such terms as are imposed by theprobation officer; • Refrain from communicating directly or indirectly with the victim, C.

K., except if the probation officer obtains her previousconsent and only for purposes of a process of apologizing, the terms of such process to be discussed and agreed upon with the victim; • Undergo a psychological and psychiatric evaluation, and follow any recommendations made by the health professionals; • FolIow the advice and directives of the probation officer regarding any psychological and psychiatric evaluation or follow-up; • Attend the [Center A], or another therapeutic program for his alcohol addiction and anger management issues, under thesupervision of his probation officer; • Follow the advice and directives of the probation officer regarding any therapy or follow-up with regards to his alcohol addictionand anger management issues; • Participate in culturally adapted programs to address his alcohol addiction and anger management issues; • Provide the probation officer with the relevant authorization to allow him or her to receive information regarding his participationand progress in any kind of therapeutic follow-up; • Refrain from possessing any firearm except for the purpose of traditional activities.

The probation order applies on all records. [116] AUTHORIZES the taking of samples of bodily substances according to

section 487.051(1) of the Criminal Code (primarydesignated offence) and ORDERS the accused to comply, in files no. 640-01-040244-189 and no. 640-01-040431-182 on each count; [117] PROHIBITS the accused from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow,restricted weapon, ammunition and explosive substance for a period of 10 years (section 109 of the Criminal Code) except for thepurpose of traditional activities (section 113(1) of the Criminal Code); [118] ORDERS the accused to comply with the Sex Offender Information Registration Act (section 490.012 of the Criminal Code) forlife. [6] Thibault J.A., dissenting, would not have altered the sentence imposed, but would have allowed the appeal for the sole purposeof transforming the recommendations contained in paragraph 114 of the trial judgment into an order, given the respondent's agreement tosubmit thereto, and so as to modify the calculation of the time spent in preventive detention in accordance with the figures indicated byRuel J.A. [7] The dissent pertains to the demonstrably unfit nature of the sentence and to the existence of errors that had an effect on thesentence, in light of the objectives and principles set out in the Criminal Code, more specifically ss. 718.04, 718.201 and 718.2(e), and inlight of the judgments in R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13. FRANCE THIBAULT, J.A. SIMON RUEL, J.A. SUZANNE GAGNÉ, J.A. Me Vincent HuetDirector of Criminal and Penal ProsecutionsFor appellant Me Caroline Jennis

Bureau d’aide juridique de Val-D’Or For respondent Date of hearing: June 12, 2020 and June 17, 2020 REASONS OF RUEL, J.A. Context [ 8 ] The victim, C. K., and the respondent, L. P., are residents of City B, a northern Inuit community of Nunavik on Hudson Bay. They had been in a common law relationship, qualified as “on and off”, for the previous twelve years. They have two sons, now aged 4 and 11 years.

The respondent also has a 10-year-old daughter from another relationship. [ 9 ] The respondent has a long history of violent domestic abuse against the victim. [ 10 ] The pattern is more or less the same and the abuses occur when the respondent is in a severe state of alcohol intoxication.

He commits abuses against the victim or members of their entourage as they attempt to protect the victim from the respondent’s violence The respondent is arrested, jailed, and the next day, has no memory of the events, feels guilty and wishes to apologize. [ 11 ] The respondent was charged in relation to two distinct incidents, in April 2018 and in January 2012. In both cases, the respondent was seriously intoxicated by alcohol. He verbalised having no memory of the incidents.

The events of April 2018 [ 12 ] On April 9, 2018, after the birthday party of their eldest son, the respondent and the victim went to the home of P. P., the respondent’s cousin. There, they drank alcohol and became inebriated. Later that evening, P. was watching television when he heard noise from another room. When he reached the room, he saw the victim held firmly on the floor by the respondent who was choking her. [2] [ 13 ] P. P. tried to make the respondent stop by kicking him in the head.

He attempted to expel the parties from his house, which was difficult because the respondent was very angry and would continuously harass the victim. When P. finally managed to get the parties out of his house, he waited for a moment and then called the police, telling them that the parties would likely be at the respondent’s house. [3] [ 14 ] The police arrived at the respondent’s house and met with E. P., the respondent’s mother.

E. seemed scared and mentioned to the officers that she had heard furniture moving and bangs coming from the respondent’s bedroom, on the second floor. [4] [ 15 ] The police rushed upstairs. The door was blocked, but they could see through the opening that the victim was unconscious on a mattress. Her pants and her underwear were down and she no longer had her sweater on. The police shouted at the respondent to open the door. He complied, and they entered the room and attempted to restrain him.

The respondent resisted his arrest and the police had to use force to remove him from the house. [5] [ 16 ] When the police intervened, the victim was unconscious. She was in critical condition. There was blood all over her pants and throughout the room. The victim had to be rushed by ambulance to City A Hospital. [6] [ 17 ] The nurse in charge at the hospital stated that the victim was covered with blood and wondered what had happened to her.

The victim fell in and out of consciousness and managed to tell the medical staff that the respondent had introduced his fist into her vagina, causing intense pain and bleeding. The victim was in severe pain at the hospital.

She had lost a considerable quantity of blood. [7] [ 18 ] Considering her critical condition and the unavailability of necessary medical equipment in City A, the victim had to be transferred by medevac to Montreal. [8] [ 19 ] The medical record reveals that: the victim had internal vaginal lacerations that were between 10 and 15 centimetres; she also had a laceration of one centimetre on the tongue because the respondent had bitten her; she lost one litre of blood, which required a transfusion; when arriving at the hospital, she was not able to walk; she endured severe pain; she was unconscious for a long time. [9] [ 20 ] The victim suffered severe consequences from the respondent’s assault.

After being discharged from the hospital, she could not work and provide for her family. To this day, she is still very scared of the respondent. She was unable to attend the sentencing hearing on May 21, 2019, as she feared being in the respondent’s presence.

The sentencing judge wrote that “the physical, psychological and emotional consequence of the sexual assault, and much more the aggravated sexual assault, are obvious”. [10] [ 21 ] The respondent was charged with and pleaded guilty to the following offences in relation to this incident: assault with a weapon, [11] assault causing bodily harm, [12] and aggravated sexual assault by maiming, wounding or endangering the life of the victim. [13]

[ 22 ] While committing the offences, the respondent was under a probation order to keep the peace in relation to convictions for assault, assault with a weapon and assault causing bodily harm in March of 2017 (which will be discussed below). The respondent was therefore also charged with failure to comply with a probation order. [14] The events of January 2012 [ 23 ] In her declaration to the police regarding the events of April 9, 2018, the victim revealed that it was not the first time she had been assaulted by the respondent.

She gave details about an event that occurred in January 2012, when she was assaulted and injured by the respondent. [15] [ 24 ] In the night of January 18, 2012, the respondent was highly intoxicated and became mad at the victim. He locked her in the house, grabbed her by the hair and beat her all over her body, including in the vaginal area, causing her injuries. [16] [ 25 ] She had a fractured jaw and bruises all over her body. Considering the seriousness of her injuries, the victim had to be transferred by medevac to Montreal.

She had been bitten by the respondent on her left arm, and she also had facial and lower lip biting injuries caused by the respondent. [17] [ 26 ] The respondent was charged with and pleaded guilty to the following offences in relation to this incident: aggravated assault by maiming, wounding or disfiguring the victim, [18] and forcible confinement. [19] Prior judicial record [ 27 ] As indicated, the respondent has a history of violent domestic abuse against the victim or members of the parties’ entourage who have attempted to protect the victim from the respondent’s violence: • In February 2014 (events of January 2014) – the respondent was found guilty of assault causing bodily harm against the victim and uttering death threats against his own mother.

He received a suspended sentence, along with a 12-month probation order which included 60 and 30 hours of community service; • In October 2014 (events of March 2014) – the respondent was found guilty of assault causing bodily harm and forcible confinement against the victim. He received a suspended sentence, along with a 16-month probation, which included 140 hours of community service; • In June 2015 (events of April 2015) – the respondent was found guilty of forcible confinement and assault against the victim. He was also found guilty of assaulting a peace officer.

He received a 6 month conditional sentence order, with a 12-month probation; • In March 2017 (events of December 2016), the respondent was found guilty of assault against his youngest son, as well as assault with a weapon and assault causing bodily harm against his brother-in-law as the latter was attempting to protect the victim. He was sentenced to 270 days of detention, less 88 days of pre-trial custody, with a 12-month supervised probation.

Gladue and pre-sentence reports [ 28 ] A first Gladue report was prepared in March 2017, in connection with the convictions for assault, assault with a weapon and assault causing bodily harm against the respondent’s son and brother-in-law. [ 29 ] The respondent grew up in City B and was raised in an environment free of violence or substance abuse. Because both of his parents were working, he spent most of his time with his brother and extended family members. He has good memories of his childhood as he was involved in traditional activities with his family and friends.

At the age of 11, his father moved to City C, and he never saw him again, which affected him. He was subsequently raised primarily by his mother. [ 30 ] The respondent had good grades academically, until he was bullied in secondary II, which caused him to start smoking marijuana and abandon his education. The respondent has a limited work history.

However, he is known as a good hunter, a traditional activity he would practice regularly, sharing his game with his family and relatives and with members of his community through the hunters’ support program. [ 31 ] The respondent takes his parental role seriously and is described as being good at taking care of his children. He brings one of his sons out hunting on the land, and wishes to pass Inuit traditions to his children.

He is well surrounded by his family, including his mother, aunts, uncles and friends. [ 32 ] He suffered many losses in his community to suicide or shootings, including one of his closest cousins, a good friend of his, and a brother-in-law who was shot by the police in the community. [ 33 ] The respondent had an all-terrain-vehicle (“ATV”) accident when he was 26 years old. He was drunk and driving in his community. He suffered a head laceration and multiple fractures.

He had to be transferred by medevac to Montreal where he underwent surgery for a moderate traumatic brain injury. [ 34 ] Since then, the respondent suffers from headaches and memory losses. It is from that point on, according to his mother and spouse, that his personality changed and he would have aggressive outbursts, particularly when drinking. [ 35 ] The respondent has a long history of drinking problems. He started drinking alcohol at the age of 14, and has been a regular drinker throughout his adult life.

He was accused of multiple incidents of violence against the victim and members of his entourage while severely intoxicated. [ 36 ] The author of the Gladue report indicates that, after the 2016 violent incidents involving his son and brother-in-law, the respondent acknowledged his drinking problems and recognized that he needed to stop drinking. He agreed to meet with a community

worker at the [Center A] to manage his anger and develop strategies to refrain from drinking, to participate in the activities of the [C Association], which is dedicated to assisting men with addictions, and also to take

part in the activities of the [B Association] of City B, which promotes Inuit culture and traditions. [ 37 ] The “ Gladue Considerations” of the 2017 report are as follows: […] we are looking at the case of L. P., a 30 year-old Inuk man from City B, an Inuit village who was affected deeply by policies of assimilations, which have contributed to weaken the culture and increase social problems up to this day. City B, like other Inuit villages, has gone through the pain caused by the forced placement of children into residential schools, where many suffered from discrimination, physical and sexual abuse and neglect.

It is well documented by the Royal commission on Aboriginal people that the trauma endured by children in residential school and the disconnections from their family have had long lasting effects on them and on generation, which followed. At least one member of L.’s family, his grandmother M. P., has gone through residential school. The massacre of the Huskie dogs is also a governmental measure which have hurt profoundly Inuit, forcing them to a sedentary life style which they weren’t used to and prevented them to maintain their tradition alive and to remain independent.

The aches and anger caused by this massacre is still talked about today and felt in some families in City B. L.’s grandfather G. P. was one of the many whose valuable Husky dogs were killed during this important massacre. City B has been also severely impacted by the relocation of families to City C, which occurred in the fifties. L.’s paternal grandmother, Z. Pa., and her family are amongst those who were relocated to City C.

The relocation of families from City B has not only hurt the families who were left there to live in poor conditions, but as well the families who remained in City B and missed their loved ones who took many years to return. As a young child, L. was left without adult supervision most of the time. He was bullied by his neighbors starting at age 9, as well as in Sunday school. When L. was 11, his father moved away in City C and he has never seen him again because of the distance. He was 12 when City B was severely impacted by 19 suicides, causing long lasting pain and trauma throughout the community.

L. was bullied weekly in high school. He dropped out of school with only a secondary 1 completed, making it difficult for him to find sustainable employment. He was 21 when his sister Ma. committed suicide. Five years later, he lost his cousin W. to suicide as well. His brother-in- law J. was shot two years later.

At age 29, he lost his close friend Er. to suicide. [Reproduced as written.] [ 38 ] Considering that the respondent “recognizes his problem with alcohol and anger management and has identified resources to help him deal with these issues, both in detention and in his community”, the Gladue report’s recommendations included that the respondent: attend programs related to his addiction and reduction of consumption, including the [C Association]; meet with a community worker at the [Center A]; and participate in traditional activities such as the [B Association]. [ 39 ] The respondent was released from prison in relation to the incidents of December 2016 against his son and brother-in-law and returned to the community in September 2017.

He initially moved back in with his mother, and then reunited with the victim and their children. [ 40 ] A few months later, on April 9, 2018, again , despite having acknowledged his drinking problems a few months earlier, and as he was bound to keep the peace and have a good behaviour under a probation order, the respondent violently assaulted the victim while under the influence of alcohol. [ 41 ] A supplemental Gladue report was prepared on February 7, 2019. The report noted that, while detained, the respondent participated in programs on healthy relationships and alcoholism.

After being released in September 2017, he apologized to his brother- in-law and to the victim before moving back in with her.

Unable to find work, he took care of the children while the victim worked at the [Company A] near City C, on a two-weeks on/two-weeks off schedule. [ 42 ] A number of additional tragic events occurred in the life of the respondent since his sentencing in March 2017: a teenager from the community was sexually assaulted and murdered; his friend’s sister was stabbed to death; one of his cousins hanged himself and another was shot by police officers. [ 43 ] Regarding the crimes committed in 2012 against the victim, the respondent stated that he could not remember anything considering his high level of intoxication.

As for the events of April 9, 2018, the respondent remembers smoking marijuana and drinking six beers and a 10-ounce bottle of vodka before blacking out. He says he does not remember anything until he woke up at the police station the following morning . [ 44 ] The respondent, again , stated that he needed help to manage his anger and drinking issues. He planned on attending Alcoholics Anonymous meetings and participating in anger management programs. He hoped to attend the [Center A] in City D, because it is culturally adapted.

Finally, the respondent mentioned that he wished to apologize to the victim and to keep providing country food for his family and community. [ 45 ] The supplemental Gladue report recommended that, while in detention, the respondent: undergo a psychological/psychiatric evaluation and follow any recommendations made; participate in culturally adapted programs to address his issues; and attend the [Center A] to deal with his addiction and trauma. [ 46 ] The report recommended that, once back in City B, the respondent: participate in a follow-up with a community worker at the [Center A] to receive help with alcohol addiction; apologize to the victim with the help of the justice committee and if the victim agrees to receive his apologies; participate in a follow-up with the justice committee; and participate in traditional activities with the [B Association] through the assistance of his aunt N.

P. in order to maintain contact with his culture, provide country food for his family and manage his alcohol problem in a traditional way. [ 47 ] In addition to the supplemental Gladue report, a pre-sentence report was prepared on May 8, 2019. The report concludes that there is a “highly elevated” risk of re-offence against the victim. Despite the respondent’s history of extreme spousal violence against the victim, the report states that he “would like to get back with the victim if she is willing to”.

The report further notes that although the respondent has expressed a certain feeling of shame, “he did not seemed [ sic ] to truly question himself about his wrongdoings”.

[ 48 ] The respondent believes he can solve his alcohol problem by himself. While he expressed his willingness to quit drinking, he took no serious step in that direction. On the contrary, he “previously agreed to engage himself in follow-ups about alcohol, but failed to do so”.

In addition, even if the respondent asserts that he would be ready to take action with respect to his drinking problem, he “still tends to minimize his responsibility for his violent behaviors, by putting the blame on alcohol, which is quite problematic”. [ 49 ] The report identifies two “protective factors”: (1) the respondent’s motivation to avoid detention in order to be with his children and (2) the support of his family and friends. The respondent plans to stop drinking, find a job and be with his children.

However, despite these factors, the pre-sentence report is quite pessimistic about the respondent’s true willingness to address his problem and the prospects of re-offending: To conclude, we understand that Mr. P. can be a great asset for his family and his community. However, unless he seriously address his issues, we believe that the risk of reoffending, especially in a domestic context remains highly elevated . Mr.

P. was recently given the chance to stay with his close ones, help them by providing for them and taking care of his family, but contrariwise, he ended up causing severe consequences on his intimate partner, once more . ln such, we wish to reiterate the fact that past sentencing in the community was far from successful and he did not seemed to take those correctional measure seriously . ln our opinion, it demonstrates that in order to obtain success in rehabilitating, a much higher level of supervision would be more appropriate . [Emphasis added; reproduced as written.] Judgment under appeal [ 50 ] Considering the respondent’s past breaches of probation and undertaking, his history of domestic violence, his lack of insight concerning his alcohol problem, and the need to protect the victim and the community, the Crown was of the view that the respondent was not a good candidate for a probation order.

It sought the imposition of a 6-year sentence, less time served in pre-trial custody. [ 51 ] On the other hand, because the respondent recognized the impact of his alcohol consumption and was willing to respect the conditions suggested by the Gladue report, the defense sought the imposition of a 44-month sentence, less time spent in pre-trial custody, which would bring the “net sentence” to two years less one day.

That sentence could then be coupled with a supervised probation order. [ 52 ] Disregarding both the suggestions of the Crown and of the defense, and taking into account the considerations included in the Gladue reports, the judge imposed a global sentence of imprisonment of two years less a day, minus time spent in pre-trial custody, and a 3 year probation period with supervision. [ 53 ] The judge was concerned about the eventual return of the respondent within his community without supervision.

Despite the alarming conclusions of the pre-sentence report, the judge did not believe that the respondent’s risk of recidivism was very high.

While acknowledging that the “risk of recidivism is never totally absent”, she was “not convinced that the risk is too high to be supported by the society”. [20] [ 54 ] The judge did not endorse the pre-sentence report “as it does not appear complete and it expresses opinions which do not consider the Inuit values”. [21] To the judge, “it will be more beneficial for the accused and the society to impose a long period of supervised probation after two years less one day of detention”. [22] [ 55 ] The judge took into account the respondent’s criminal record, the fact that he was on probation when he committed the April 2018 aggression and the gravity of the offences, which were perpetrated against his spouse, who suffered both physical and psychological consequences. [ 56 ] On the other hand, the judge considered the following as mitigating circumstances: the guilty pleas; substance abuse: “[b]ecause of his high level of intoxication, the level of moral blameworthiness [of the respondent] should be reduced”; [23] the remorse expressed by the respondent; his personal situation and age; and his prospects for rehabilitation. [ 57 ] On that last point, according to the judge, the respondent recognizes his problem of substance abuse.

He is sober while in detention and expressed the will to quit drinking. While he believes he can stay sober without help, the respondent is seriously considering enrolling at the [Center A] for his addictions. [ 58 ] The judge stated that she did not minimize the seriousness of the offences and the consequences on the victim.

However, she felt bound to take into consideration the consequences of the detention, not only on the respondent, but also on his children. [24] She also highlighted the respondent’s injuries and memory issues resulting from his ATV accident, as well as the fact that he would like to receive appropriate treatment, which “will be the first step on his way to rehabilitation”. [25] [ 59 ] Moreover, the judge noted that the respondent had the support of his mother and of his extended family. The respondent’s aunt is a member of the Justice Committee and is willing to help him.

The respondent could also benefit from the support of the [B Association]. The judge considered that the respondent was sufficiently well surrounded to achieve rehabilitation. Analysis [ 60 ] The Crown argues that the sentence imposed on the respondent by the judge is demonstrably unfit and jeopardizes confidence in the administration of justice. In accordance with the principle of proportionality, the circumstances of this case clearly justified a significant penitentiary term. [ 61 ] The Crown submits that the judge should have emphasized the objectives of deterrence and denunciation. It notes that

section 718.201 of the Criminal Code , which was recently enacted, sends a clear message that the increased vulnerability of female victims of domestic violence, especially to those who are Indigenous, should be properly considered in sentencing. The level of intoxication cannot

always suffice to diminish blameworthiness, especially for violent crimes. One must look at all the circumstances of the case to fully appreciate such blameworthiness, which the judge failed to do. [ 62 ] The respondent contends that the judgment under appeal should be approached with deference. Even when the offence is a serious one and imprisonment is necessary, the Indigenous context must be considered.

The sentencing judge correctly applied the principles set by the Supreme Court in Gladue [26] and Ipeelee. [27] [ 63 ] The respondent further submits that the Gladue report made recommendations to favour rehabilitation and reinsertion of the respondent within his community, which were reasonable. It is Parliament’s intention that the sentence be adapted according to aggravating circumstances, such as domestic violence, but the fundamental principle remains that the sentence must be individualized.

The judge applied those principles and the Crown identified no error. [ 64 ] With great respect for the thorough analysis of the sentencing judge, considering the context of this case, which involves repeated instances of extraordinary domestic violence, the judge erred in principle: (1) by failing to properly consider and give weight to the increased vulnerability and the particular circumstances of the Indigenous female victim who was the subject of violent spousal abuses; (2) by unduly minimizing the respondent’s risk of recidivism and the imperative of isolating him to ensure the protection of the victim; and (3) by considering alcohol intoxication as a mitigating factor.

These errors had a direct impact on the sentence imposed . [ 65 ] Consequently, the Court must perform its own analysis to determine a fit sentence for the respondent, applying the prin ciples of sentencing afresh to the facts, without deference to the existing sentence. [28] [ 66 ] Sections 718 to 718.201 of the Criminal Code contain a list of objectives and principles guiding judges in sentencing, which is an inherently contextual and individual process. [29] None of these objectives trump the other and it is the difficult role of sentencing judges “to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed”. [30] [ 67 ] When considering the sentence to be imposed on an Indigenous offender,

section 718.2 (

e) of the Criminal Code requires the judge to take into consideration “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community […] with particular attention to the circumstances of Aboriginal offenders ” [emphasis added]. [ 68 ] The Supreme Court interpreted that provision in R. v. Gladue , establishing that sentencing judges must consider: (1) the unique systemic or background factors having played a

part in bringing the particular aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. [31] This framework was reaffirmed by the Supreme Court in R. v.

Ipeelee . [32] [ 69 ] With respect to the unique systemic or background factors, the sentencing judge must take judicial notice of and consider “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and […] higher levels of incarceration for Aboriginal peoples”. [33] [ 70 ] Concerning the types of sentencing procedures and sanctions which may be appropriate, “a significant problem experienced by aboriginal people who come into contact with the criminal justice system is that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by these offenders and their community”.

According to the Supreme Court in Gladue , “most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice” [emphasis in the original]. [34] [ 71 ]

Section 718.2 (

e) of the Criminal Code “is a direction to sentencing judges to consider certain unique circumstances pertaining to aboriginal offenders as a part of the task of weighing the multitude of factors which must be taken into account in striving to impose a fit sentence”. [35] [ 72 ] However, this provision should not detract from the judge’s “fundamental duty to fashion a sentence that is fit and proper in the circumstances of the offence, the offender and the victim ” [emphasis added]. [36] [ 73 ] On this matter, it is important to underline that

section 718.2 (

e) of the Criminal Code was amended in 2015, which is after Ipeelee was rendered, to add “harm done to victims or to the community” as a consideration in sentencing Indigenous offenders. [37] In the parliamentary debates, the Minister of Justice stated that “[a]dding a requirement that the court also consider the harm done to victims and to the community would help to ensure there is a proper balance between the rights of offenders and those who have been victimized by offenders' behaviour”. [38] [ 74 ] Speaking of victims, the perspective and trauma suffered by the victims of domestic violence are aggravating contextual factors that must be taken into account by sentencing judges. Under

section 718.2( a )(ii) of the Criminal Code , judges must take into consideration as an aggravating factor “evidence that the offender, in committing the offence, abused the offender’s intimate partner”. [ 75 ] Irrespective of whether domestic abuse or sexual violence occur in the Indigenous context, general denunciation and individual deterrence remain key considerations for preserving the confidence of victims in the criminal justice system. [39] [ 76 ] In 2019, sections 718.04 and 718.201 were added to the sentencing provisions of the Criminal Code to further emphasize the need to give proper consideration and weight to the increased vulnerability of female victims in cases of abuse, with particular attention to the circumstances of Indigenous female victims. [ 77 ]

Section 718.04 is included as a sentencing objective, and reads as follows :

Objectifs — infraction à l’égard d’une personne vulnérable 718.04 Le tribunal qui impose une peine pour une infraction qui constitue un mauvais traitement à l’égard d’une personne vulnérable en raison de sa situation personnelle, notamment en raison du fait qu’elle est une personne autochtone de sexe féminin , accorde une attention particulière aux objectifs de dénonciation et de dissuasion de l’agissement à l’origine de l’infraction.[Soulignements ajoutés] Objectives — offence against vulnerable person 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [Emphasis added.] [ 78 ]

Section 718.201 of the Criminal Code adds, as a sentencing consideration, the increased vulnerability of female victims of domestic violence or violence by intimate partners, with “particular attention to the circumstances of Aboriginal female victims”: Considération additionnelle – vulnérabilité accrue 718.201 Le tribunal qui impose une peine pour une infraction qui constitue un mauvais traitement à l’égard d’un partenaire intime prend en considération la vulnérabilité accrue des victimes de sexe féminin, en accordant une attention particulière à la situation des victimes autochtones de sexe féminin . [Soulignements ajoutés] Additional consideration – increased vulnerability 718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims . [Emphasis added.] [ 79 ] These provisions came into force on September 19, 2019, [40] that is between the presentation of the parties’ oral arguments (May 21, 2019) in the respondent’s case and the day the sentencing judgment was rendered (October 25, 2019). [ 80 ] The protection of vulnerable female Indigenous victims as a sentencing consideration is not a novelty, and was judicially considered prior to the enactment of sections 718.04 and 718.201 of the Criminal Code . [ 81 ] In R v.

Whitehead , the Saskatchewan Court of Appeal wrote that it was “ vital that the application of s. 718.2(

e) not be seen as discounting the lives of or harms done to Aboriginal victims of crime, their families and their communities”. [41] In R. v. Williams , the British Columbia Court of Appeal wrote that there was “ much to be said for the sentencing judge’s concern for the protection of Aboriginal victims […] and for the role of deterrence in the Aboriginal community”. [42] [ 82 ] More specifically concerning the vulnerability of Indigenous women in the domestic context, in R. v. A.D. , [43] the Court of Appeal of Alberta wrote that: [25] The fundamental purpose of sentencing is to protect society (s 718).

Unfortunately, there is clear and overwhelming evidence that, when it comes to protecting Aboriginal women from violence and discrimination, more needs to be done . The homicide rate for Aboriginal women is six times that of non-Aboriginal women, and higher than the rate for non-Aboriginal men. Aboriginal women are almost three times more likely to experience violent victimization than non-Aboriginal women.

Compared with non-Aboriginal women, Aboriginal women are almost three times more likely to report being the victim of spousal violence and, compared with non-Aboriginal victims of spousal violence, Aboriginal women are more likely to have experienced spousal violence on more than one occasion. [26] The sad fact is that Aboriginal women are disproportionately affected by domestic violence and violence in general and this reality should inform the sentencing process if there is to be any hope of achieving the fundamental purpose of sentencing and meeting the objectives set out in

section 718 of the Criminal Code , which include denunciation and deterrence. […] [29] Taking the circumstances of Aboriginal victims into account in sentencing is consistent with the principles of sentencing, and arguably necessary in order to meaningfully achieve the fundamental purpose of sentencing, namely the protection of the public.

The circumstances of both the victim and the offender must be considered as relevant factors and, along with other relevant factors (e.g. aggravating and mitigating), be considered by the sentencing judge to arrive at a fit sentence. [44] [Emphasis added.] [ 83 ] In the parliamentary debates, the Minister of Justice stated that the addition of sections 718.04 and 718.201 to the Criminal Code was intended to address recommendations 5.17 and 5.18 of the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, which was issued in 2019, [45] as well as concerns expressed by the Supreme Court in R. v.

Barton . [46] [ 84 ] In its final report, the National Inquiry into Missing and Murdered Indigenous Women and Girls noted that the rate of domestic family violence in the Indigenous context was extremely high. [47] [ 85 ] According to the Inquiry, pathways to violence include social and economic marginalization of Indigenous people: “[p]overty, lack of safe housing, food insecurity, and other socio-economic realities are widely understood to compromise the physical, mental, emotional, and spiritual health of Indigenous people, and, in particular, Indigenous women, girls […]”. [48] Pathways to violence also include the insufficiency of institutional response to all forms of interpersonal violence suffered by Indigenous women and girls, including from law enforcement. [49]

[ 86 ] The Inquiry emphasized that Indigenous victims of violence often feel re-victimized by the judicial system and that stereotypes against Indigenous women often justify a lack of action and the adoption of accountability measures for the offenders. [50] [ 87 ] The Inquiry concluded that the “Canadian criminal justice system fails to provide justice for Indigenous people, especially missing and murdered Indigenous women, girls […]” and to “hold accountable those who commit violence against [them]”. [51] [ 88 ] Regarding legislative shortcomings to address violence against Indigenous women, the Inquiry concluded that “the language used in the […] Criminal Code and in criminal justice proceedings, minimizes the nature and severity of violent offences and serves to minimize the responsibility of the offender and the impact of the crime”. [52] [ 89 ] In this spirit, the Inquiry made recommendations 5.17 and 5.18 as follows: 5.17 We call upon federal, provincial, and territorial governments to thoroughly evaluate the impacts of Gladue principles and

section 718.2 (

e) of the Criminal Code on sentencing equity as it relates to violence against Indigenous women, girls, and 2SLGBTQQIA people. 5.18 We call upon the federal government to consider violence against Indigenous women, girls, and 2SLGBTQQIA people as an aggravating factor at sentencing, and to amend the Criminal Code accordingly, with the passage and enactment of Bill S-215. [53] [ 90 ] In R. v.

Barton , the Supreme Court wrote that: “to better ensure Indigenous women and girls receive the full protection and benefit of the law in sexual assault cases, our criminal justice system should take reasonable steps to address biases, prejudices, and stereotypes against Indigenous women and girls openly, honestly, and without fear”. [54] [ 91 ] Therefore, even before the enactment of sections 718.04 and 718.201 of the Criminal Code , the protection of vulnerable Indigenous women who were victims of abuse, whether or not in the domestic context, and the recognition of the suffering endured by these victims, were key considerations in sentencing offenders. [ 92 ] Systemic factors have affected and are continuing to affect Indigenous offenders facing the criminal justice system. [55] These factors have resulted in overrepresentation of Indigenous offenders in penitentiary institutions, a problem that Parliament sought to address by encouraging judges to use restorative approaches to sentencing when possible and appropriate,. [56] [ 93 ] In the present matter, the judge took into account the Gladue considerations diminishing the moral blameworthiness [57] of the respondent for his crimes, which include: historical wrongs, discrimination and abuses against the Inuit People; a governmental policy of forced sedentarization and the massacre of Husky dogs, which profoundly hurt the Inuit People; the relocation of families to other communities, including members of the respondent’s family; a dismal number of suicides in the community or involving close relatives and friends of the respondent; and chronic substance and alcohol abuse starting when the respondent was young. [ 94 ] This being said, the crimes committed by the respondent are of an extreme gravity.

They were committed in a domestic context, against his spouse, the mother of two of his children. The violence keeps repeating itself, only increasing in intensity, gravity and depravity through time, culminating in 2018 with intrusive, damaging and degrading physical and sexual violence against the victim not dissimilar to the fact pattern in Barton . [ 95 ] The victim is very vulnerable. [ 96 ] Because of the recurrent criminality and incarceration of the respondent, she is currently assuming sole responsibility for the parties’ children.

Although the respondent contributes to feeding his family through traditional hunting activities while he is not incarcerated, the victim is the financial provider for the family, working at the [Company A], which is not located in her community, on a two-weeks on/two-weeks off schedule. [ 97 ] She too, as an Inuk woman and victim, suffered from policies of community dislocation, sedentarization, forced relocation, suicides or shootings in the community.

Historic, social and socio-economic realities clearly had inter-generational impacts in compromising her physical, mental, emotional, and spiritual health and her personal integrity as an Indigenous woman. [ 98 ] As the Nunavut Court of Justice wrote in R. v. Iqalukjuaq : [35] The inter-generational effects of colonialism have not only contributed to the staggeringly high rates of Indigenous offending. This was the problem sought to be addressed by Criminal Code

section 718.2 (

e) and Gladue . The impact of colonialism also gave rise to the very same inter-generational effects which have left all Inuit women – and not just intimate partners - in a particularly vulnerable position in society . In my view, this reality ought to inform the deliberations of a Nunavut sentencing judge when sentencing an offender who has victimized an Inuk woman. [58] [Emphasis added.] [ 99 ] The victim was repeatedly assaulted by the respondent over the years. The parties live in a small and isolated community on Hudson Bay.

The victim is trapped as she will inevitably be in close contact with the respondent when he returns from detention. The aggressions had a lasting impact on the victim who is terrified of the respondent, to the point that she could not attend the sentencing hearing for fear of being in his presence. [59] [ 100 ] She is one of many Indigenous women who are disproportionately affected by domestic violence. In a study released in January 2020, the Pauktuutit Inuit Women of Canada and Dr.

Elizabeth Comack of the Department of Sociology and Criminology of the University of Manitoba concluded that “[g]endered violence against Inuit women is a problem of massive proportions”; in Nunavik, 74% of Inuit women reported experiencing violence in the home, and 46% reported experiencing sexual assault. [60] [ 101 ] The judge acknowledged that the victim was vulnerable but, in my view, erred in not adequately considering and weighing her increased vulnerability as an Indigenous woman who was the victim of extreme and repeated physical and sexual violence suffered at the

hands of her spouse, the respondent, over the entire span of their relationship. [ 102 ] The judge did not believe that the respondent’s risk of recidivism was very high, considering that he was sober while in detention, recognized his problem with alcohol and expressed the desire to quit drinking. The judge erred in that regard. [ 103 ] The respondent has suffered from alcohol addiction for many years.

The violent events against his spouse and members of his entourage keep repeating themselves while the respondent is intoxicated. [ 104 ] The first Gladue report prepared for sentencing of the respondent in relation to the December 16, 2016 assaults against family members indicated that he recognized his alcohol and anger management problems and had identified community resources to help him deal with these issues, which included participation in anger management and Alcoholics Anonymous meetings, meetings with a community worker at the [Center A] and participation in traditional activities such as the [B Association]. [ 105 ] Despite the availability of community resources and support, a few months after his return to the community, the respondent violently assaulted the victim.

The pre-sentence report notes that “past sentencing in the community was far from successful and [the respondent] did not seemed [ sic ] to take those correctional measures seriously”. [ 106 ] The respondent’s belief that he can stay sober without help constitutes wishful thinking. [ 107 ] As regards the respondent's alcohol addiction, the pre-sentence report notes that, although he expressed his willingness to quit drinking, no information was provided about any serious steps taken in that direction.

On the contrary, the respondent “previously agreed to engage himself in follow-ups about alcohol, but failed to do so”, including after the January 2017 guilty plea.

In addition, even if the respondent now asserts that he would be ready to take action, he “still tends to minimize his responsibility for his violent behaviors, by putting the blame on alcohol, which is quite problematic”. [ 108 ] Consequently, the pre-sentence report concludes that “unless [the respondent] seriously address his issues [which he is conscious of], we believe that the risk of reoffending, especially in a domestic context remains highly elevated”. [ 109 ] According to the judge, the moral blameworthiness of the respondent is reduced because of his high level of intoxication when the offences were committed.

I cannot adhere to that statement in the present matter. [ 110 ] A high degree of intoxication may, in some circumstances, reduce the moral blameworthiness of an accused and have an impact on sentencing as part of the contextual factors to be considered to render a just sentence. [61] However, that will depend on the circumstances. For example, “some persons become more dangerous while under the influence of intoxicants, and the penalty may reflect that dangerousness”. [62] [ 111 ] In Régimballe c.

R ., our Court wrote that intoxication may be treated as a mitigating or aggravating factor in sentencing, depending on the circumstances, but generally, for violent crimes, alcohol intoxication will be considered an aggravating factor, or in the best case scenario, a neutral factor. [63] The consideration of substance or alcohol intoxication in sentencing may thus be considered a mixed factor – aggravating or mitigating, with the emphasis depending on the circumstances. [64] [ 112 ] The circumstances may include whether the accused knew that, while intoxicated, he may become aggressive or violent but nonetheless kept drinking of failed to meaningfully address an addiction.

In such a context, the accused’s blameworthiness is higher and the consumption of alcohol may become an aggravating factor. [65] [ 113 ] In the present matter, while the respondent’s heavy drinking problems and associated violent behaviour cannot be dissociated from the Gladue considerations discussed above, given the particular circumstances of this case, his consumption of alcohol should be considered an aggravating factor. His high level of intoxication cannot be considered a mitigating factor. It is, at best, a neutral factor. [ 114 ] The offences involved a high degree of violence.

The respondent was aware of the fact that he loses control over himself when he drinks. These were not the first instances of violent offences perpetrated by the respondent while intoxicated. Yet, he drank six beers and a 10-ounce bottle of vodka before the events of April 9, 2018.

Despite the fact that the respondent was obviously cognizant of his addiction, the pre-sentence report noted that he “did not mobilized [ sic ] himself in order to get rid of his alcohol addiction”. [ 115 ] As to the length of his imprisonment, in file no. 640-01-040244-189 (events of April 9, 2018), a sentence of 44 months per count, to be served concurrently, for a total of 44 months – the quantum recommended by the defense – should be imposed, which will fulfill the objectives of general denunciation, individual deterrence and the need to isolate the respondent to ensure the protection of the victim. [ 116 ] As for file no. 640-01-040431-182 (events of January 18, 2012), a sentence of 18 months per count, to be served concurrently, for a total of 18 months, should be imposed on the respondent. [ 117 ] A review of the jurisprudence shows that the sentences imposed for crimes involving serious sexual violence (sexual assault with a weapon, sexual assault causing bodily harm or aggravated sexual assault) committed in a domestic context range from one year to 10 years, with a median sentence in the 4- to 6-year range. [66] [ 118 ] In the present case, the objective gravity of the offences is high.

The maximum sentence for assault with a weapon, assault causing bodily harm and forcible confinement is 10 years, [67] whereas it is 14 years for aggravated assault. [68] An offender who commits an aggravated sexual assault is liable to imprisonment for life. [69] [ 119 ] There are numerous aggravating factors in the present case: the high degree of violence with which the offences were perpetrated; the fact that these crimes constitute domestic violence; the vulnerability of the victim, an Indigenous woman; the fact that

the respondent committed the offences of April 9, 2018 while subject to a probation order; the respondent’s alcohol consumption; the high risks of recidivism; and the respondent’s long history of violence towards the same victim. [ 120 ] On the other hand, due consideration should be given to the historical, sociological and economic factors described in the Gladue reports concerning the respondent as an Inuk offender. In a way, he is the product of policies of assimilation which have contributed to weakening the traditional culture of the Inuit and of the social fabric of the communities.

The respondent was affected by the departure of his father to City C when he was a child. He was impacted by the despair of the youth in his community as manifested by addictions and multiple suicides, including the suicides of family members and friends. [ 121 ] He pleaded guilty to the offences.

The community has offered to support the respondent in his stated intention to rehabilitate himself. [ 122 ] This being said, Gladue and Ipeelee do not suggest that, “as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation”. [70] [ 123 ] There are some serious offences and some offenders for which and for whom the aforementioned goals of deterrence, denunciation, and separation remain fundamentally relevant. [71] In cases of sexual violence against Indigenous women, the Gladue factors affecting the offender have to be weighed against the necessity to give appropriate consideration to the historical and systemic circumstances of Indigenous women victims of sexual violence in the domestic context, the whole to meaningfully achieve the fundamental purposes of sentencing and the protection of the public. [ 124 ] This is a difficult question of balancing but, in this case, considering the increased vulnerability of the victim as an Inuk woman, the extreme gravity and repeated nature of the domestic abuse, and the grim prospects of the respondent re-offending, denunciation, deterrence and the need to isolate the respondent to ensure the protection and security of the victim are preponderant considerations. [ 125 ] In balancing all of these elements, as recommended by the defense, I therefore believe that total sentences of 44 months (events of April 9, 2018) and of 18 months (events of January 18, 2012) of imprisonment are fit and appropriate. [ 126 ] The question now is whether these sentences should be consecutive or concurrent with one another.

When faced with multiple offences arising from distinct events, courts must first determine the appropriate sentence for each offence, decide if the sentences should be imposed concurrently or consecutively and finally, in the latter case, determine if the total sentence is in accordance with the principles of totality and proportionality. [72] [ 127 ] Here, the sentences of 44 and 18 months should in principle be imposed consecutively, considering that the offences committed on April 9, 2018 and January 18, 2012 “do not arise out of the same events or series of events”. [73] This would amount to a total sentence of 62 months, or just over 5 years. [ 128 ] However, taking into account the Gladue considerations as well as the need to have a probation order so as to maximize the respondent’s chances of rehabilitation and to ensure the protection of the victim and the community, I am of the view that a sentence of 5 years would be excessive with regards to the principles of totality and proportionality.

Therefore, the sentences shall be imposed concurrently. [ 129 ] With respect to the deduction of pre-trial custody, the judge wrote that the respondent has been detained since April 9, 2019. [74] Considering the seriousness of the offences, she applied a one to one ratio and consequently deducted 199 days of pre-trial custody from the sentence of incarceration. [ 130 ] The judge made a calculation error, which was conceded by the parties. In fact, the respondent has been detained since his arrest on April 9, 2018 .

Therefore, at the moment of sentencing, the judge should have considered a total of 564 days of pre-trial custody (199 + 365).

If the judge had not made that error, the net sentence imposed on the respondent (at a 1:1 ratio) would have been 166 days, or 5.5 months. [ 131 ] In this case, the circumstances justify the application of a 1.5 to one ratio under section 719(3.1) of the Criminal Code . [75] In fact, the application of a one to one ratio is “insufficient to account for the full impact of that detention, both quantitatively and qualitatively”, [76] considering the detrimental impact of detention on Indigenous offenders [77] and the loss of eligibility for early release because the time in pre-trial detention does not count for the purposes of eligibility for parole. [ 132 ] Consequently, after deducting the time served by the respondent in pre-trial detention at a 1.5 to one ratio, which is a deduction of 846 days (564 X 1.5), from the total 44-month concurrent sentence, the net sentence is 492 days, or 16.4 months. [ 133 ] The respondent clearly needs serious help to cure or at least manage his addiction and associated impulsiveness and aggressiveness.

As it stands, in the absence of treatment and tight supervision, he remains a grave danger to the victim and to his community.

He suffered a serious ATV accident from which he seems to harbour psychological, psychiatric or neurological issues which need to be further investigated. [ 134 ] Eventually, the respondent will return to his community of City B and will inevitably cross paths with the victim, the mother of two of his children. [ 135 ] In this context, the judge adequately considered that a probationary period was necessary to ensure that the respondent is properly medically investigated, and that his addiction is treated, so as to increase his chances of rehabilitation. A probationary period

also ensures that the respondent will not be released without a safety net, as he would be supervised in the community. [ 136 ] Indeed, “the main aim of probation is rehabilitation and reintegration of an offender into the community, although protection of the public is not offside as a companion factor”. [78] As a result, “society benefits from constraints aimed at facilitating rehabilitation and protecting society”. [79] [ 137 ] Probation will remain available with a sentence of 44 months which, less the deduction for pre-trial detention, amounts to a net sentence of 16.4 months. [ 138 ] In fact, under section 731(1) (

b) of the Criminal Code , a court that sentences an offender to imprisonment “ for a term not exceeding two years [may] direct that the offender comply with the conditions prescribed in a probation order”. Section 731(1) (

b) refers to the “the actual term of imprisonment imposed by the court after taking into account any time spent in pre - sentence custody”, [80] that is the “net sentence” after deduction of the time spent in pre - sentence custody. [ 139 ] The duration of the probation order in the respondent’s case should be three years. [ 140 ] The judge made recommendations in her judgment, which should be made mandatory, considering the consent of the respondent communicated by counsel to this Court, namely that he: (1) undergo a psychological and psychiatric evaluation and follow recommendations made by the health professionals; (2) attend the [Center A], or another therapeutic program, for his alcohol addiction and anger management issues, under the supervision of his probation officer; and (3) participate in culturally adapted programs to address his alcohol addiction and anger management issues. [ 141 ] For these reasons, I would grant the motion for leave to appeal, allow the appeal, and reverse the judgment of the Court of Québec in part to the following effect: • In file no. 640-01-040244-189, impose on the respondent a sentence of 44 months on counts 1, 2 and 4, to be served concurrently; • In file no. 640-01-040431-182, impose on the respondent a sentence of 18 months on counts 3 and 4, to be served concurrently, with the sentence imposed in file no. 640-01-040244-189; • To the 44-month total sentence in files no. 640-01-040244-189 and 640-01-040431-182, the time served by the respondent in pre- trial detention should be deducted at a 1.5 to one ratio, which is a deduction of 846 days (564 X 1.5), the net sentence being 492 days, or 16.4 months; • Impose the following probation conditions on the respondent, for a period of 3 years following his release, conditions to which he has consented: o Keep the peace and be of good behaviour; o Appear before the Court when required to do so; o Remain within the Province of Quebec; o Notify the probation officer of any change of address or name and quickly notify the probation officer of any change of employment or occupation; o Communicate with the probation officer within 5 working days of his release and thereafter on such terms as are imposed by the probation officer; o Refrain from communicating directly or indirectly with the victim, C.

K., except if the probation officer obtains her previous consent and only for purposes of a process of apologizing, the terms of such process to be discussed and agreed upon with the victim; o U ndergo a psychological and psychiatric evaluation, and follow any recommendations made by the health professionals; o FolIow the advice and directives of the probation officer regarding any psychological and psychiatric evaluation or follow-up; o Attend the [Center A], or another therapeutic program for alcohol addiction and anger management issues, under the supervision of his probation officer; o Follow the advice and directives of the probation officer regarding any therapy or follow-up with regards to alcohol addiction and anger management; o Participate in culturally adapted programs to address alcohol addiction and anger management issues; o Provide the probation officer with the relevant authorization to allow him or her to receive information regarding his participation and progress in any kind of therapeutic follow-up.

SIMON RUEL, J.A.

MOTIFS DE LA JUGE THIBAULT [ 142 ] Voici la peine prononcée par la juge de première instance : [113] CONDEMNS the accused to serve, in the following files: 640-01-040244-189 2 years less one day (730) of detention less the preventive custody (199) [81] for a total of 531 days as of today on counts 1, 2 and 4, concurrently with all the counts. 640-01-040431-182 18 months on counts 3 and 4, concurrently with all the counts and with the other record. 640-01-040147-184 60 days on count 1, concurrently with the other records. 640-01-040245-186 60 days on count 1, concurrently with the other records. [114] RECOMMENDS, during the detention, that the accused: - Undergo a psychological/psychiatric evaluation and follows any recommendations that will be made; - Participate in culturally adapted programs to address his issues; - Attend [Center A] to deal with his addiction and trauma. [115] ORDERS a prohibition to communicate directly or indirectly with the victim C.K. during the period of detention according to

section 743.21 Cr.C . [116] ORDERS the accused to respect the following conditions of his probation for a period of 3 years: - Keep the peace and be of good behaviour; - Appear before the Court when required to do so; - Remain under the jurisdiction of the Province of Quebec; - Notify the probation officer of any change of address or name and quickly notify of any change of employment or occupation; - Communicate with the probation officer following the 5 working days of his release and after following the modalities imposed by the probation officer; - Prohibition to communicate directly or indirectly with the victim C.K., except if the probation officer obtain her previous consent and only in a process of apologies, the modalities having to be discussed and agreed with the victim; - Follow the counsels and directives of the probation officer regarding any medical, psychological, psychiatric or neuropsychiatric follow-up and follow the medical recommendations and prescription; - Follow the counsels and directives of the probation officer regarding any therapy or follow-up with regards with drugs and alcohol addiction and anger management; - Provide the probation officer with the relevant authorization to allow him or her to receive information regarding the accused’s participation and evolution in any kind of therapeutic follow-up; - Prohibition to possess any firearm except for the purpose of traditional activities; The probation order applies on all records.

[117] AUTHORIZES to take samples of bodily substances according to

section 487.051

(1) Cr.C . (primary designated offence) and ORDERS the accused to comply, in the files: 640-01-040244-189 and 640-01-040431-182 on each count. [118] PROHIBIT the accused from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years (

section 109 Cr.C .) except for the purpose of traditional activities ( section 113 (1) Cr.C .). [119] ORDERS the accused to comply with Sex Offender Information Registration Act (section 490.012 Cr.C .) for life. [ 143 ] La peine imposée par la juge de première instance peut être qualifiée de clémente, mais, à mon humble avis, elle ne constitue pas une peine manifestement non indiquée au regard des circonstances particulières de l’affaire et du droit applicable.

De plus, la juge n’a commis aucune erreur de principe qui a eu une incidence sur la peine. *** [ 144 ] La juge de première instance reconnaît de façon expresse la nature extrêmement violente des agressions commises par l’intimé (paragr. 33), leur caractère répétitif, le contexte de relation conjugale pendant laquelle elles ont été perpétrées (paragr. 34-36), la grande vulnérabilité de la victime, incluant le fait qu’il s’agit d’une victime autochtone (paragr. 38) ainsi que les conséquences importantes subies par cette dernière (paragr. 37 à 44 et 99). [ 145 ] Après une revue des facteurs atténuants et aggravants ainsi que l’étude des rapports Gladue et présentenciel, la juge impose à l’intimé une peine d’emprisonnement de deux ans moins un jour, assortie d’une longue période de probation (trois ans), une mesure qui vise tant à assurer la protection de la société qu’à faciliter la réinsertion sociale du délinquant ( alinéa 732.1(3)

h) C.cr .). Il s’ensuit que l’intimé sera sous autorité judiciaire pendant cinq ans, assujetti à des conditions qui visent à connaître l’origine de ses pertes de mémoire, la nature de ses problèmes de santé, à traiter son alcoolisme, source de sa criminalité, ainsi qu’à exercer un contrôle et une surveillance de ses activités. [ 146 ] La juge de première instance prend appui sur le rapport Gladue . Celui-ci décrit l’ampleur des facteurs systémiques et historiques affectant les membres de la communauté dans laquelle vit l’intimé.

En plus, le rapport énumère certains événements traumatiques qui ont marqué sa vie : It is important to consider the systemic, historic and individual factors of Aboriginal people that may have played a

part in bringing the individual in front of the Court and therefore, in this case factors that may have impacted L.’s life and behaviours directly or indirectly, to seek proper response to his crimes. In the present situation, we are looking at the case of L. P., a 30 year-old Inuk man from City B, an Inuit village who was affected deeply by policies of assimilations, which have contributed to weaken the culture and increase social problems up to this day.

City B, like other Inuit villages, has gone through the pain caused by the forced placement of children into residential schools, where many suffered from discrimination, physical and sexual abuse and neglect. It is well documented by the Royal commission on Aboriginal people that the trauma endured by children in residential school and the disconnections from their family have had long lasting effects on them and on generation, which followed. At least one member of L.’s family, his grandmother M. P., has gone through residential school.

The massacre of the Huskie dogs is also a governmental measure which have hurt profoundly Inuit, forcing them to a sedentary life style which they weren’t used to and prevented them to maintain their tradition alive and to remain independent. The aches and anger caused by this massacre is still talked about today and felt in some families in City B. L.’s grandfather G. P. was one of the many whose valuable Husky dogs were killed during this important massacre. City B has been also severely impacted by the relocation of families to City C, which occurred in the fifties. L.’s paternal grandmother, Z.

Pa., and her family are amongst those who were relocated to City C. The relocation of families from City B has not only hurt the families who were left there to live in poor conditions, but as well the families who remained in City B and missed their loved ones who took many years to return. As a young child, L. was left without adult supervision most of the time. He was bullied by his neighbors starting at age 9, as well as in Sunday school. When L. was 11, his father moved away in City C and he has never seen him again because of the distance.

He was 12 when City B was severely impacted by 19 suicides, causing long lasting pain and trauma throughout the community. L. was bullied weekly in high school. He dropped out of school with only a secondary 1 completed, making it difficult for him to find sustainable employment. He was 21 when his sister Ma. committed suicide. Five years later, he lost his cousin W. to suicide as well. His brother-in- law J. was shot two years later. At age 29, he lost his close friend Er. to suicide.

These are some of the Gladue factors that require a specific attention by the Court and should be considered. [Transcription textuelle] [ 147 ] Le rapport contient les recommandations suivantes : • That L. undergoes a psychological/psychiatric evaluation and follows any recommendations that will be made; • That L. participates in culturally adapted programs to address his issues; • That L. attends [Center A] to deal with his addiction and trauma. Once back in City B : • That L. lives with his mother E.

P.; • That L. participates in a follow-up with [Social Worker 1], community worker at [Center A], on an individual and group setting to receive help with alcohol addiction, on a

schedule agreed with the worker; • That L. apologizes to the victim with the help of the justice committee if the victim accepts to receive his apologies;

• That L. participates in a follow-up with the justice committee and participates to the outings with the committee when they occur; • That L. participates in traditional activities with [B Association] and/or with his aunt N.

P. to maintain contact with his culture, provide country food for his family and manage alcohol abuse in a traditional way. [ 148 ] En plus de considérer les facteurs systémiques et historiques qui affectent directement les Autochtones de Ville B et expliquent la présence de l’intimé devant les tribunaux, la juge énumère plusieurs circonstances qui ont marqué l’intimé encore plus profondément, notamment le fait qu’il a été laissé à lui-même durant pratiquement toute son enfance, la séparation de ses parents, l’abandon par son père, l’intimidation dont il a été victime dès son jeune âge, le suicide de plusieurs membres de sa communauté et, plus particulièrement, de personnes qui lui étaient chères (sa sœur, son cousin et un ami), deux accidents qui l’ont laissé avec des séquelles physiques et psychologiques notables, sa consommation d’alcool et de marihuana depuis l’adolescence, etc. [ 149 ] Le rapport présentenciel indique que l’intimé peut devenir un actif pour sa famille et sa communauté.

Il précise cependant que, si ce dernier ne règle pas son problème de consommation, le risque de récidive est élevé. Le rapport recommande une peine comportant plus de supervision qu’une peine dans la communauté : To conclude, we understand that Mr. P. can be a great asset for his family and his community, However, unless he seriously address his issues, we believe that the risk of reoffending, especially in a domestic context remains highly elevated. Mr.

P. was recently given the chance to stay with his close ones, help them by providing for them and taking care of his family, but contrariwise, he ended up causing severe consequences on his intimate partner, once more. In such , we wish to reiterate the fact that past sentencing in the community was far from successful and he did not seemed to take those correctional measure seriously.

In our opinion, it demonstrates that in order to obtain success in rehabilitating, a much higher level of supervision would be more appropriate. [Je souligne] [ 150 ] Même si ce rapport fait état d’un risque très élevé de récidive, la juge conclut que la réhabilitation de l’intimé demeure réaliste, notamment parce que ce dernier peut compter sur le support de sa famille ainsi que sur l’appui du Justice Committee of City B et [de l'Association B], des organismes locaux dont l’implication dans la communauté est reconnue.

Elle tient compte de la recommandation du rapport présentenciel et elle impose à l’intimé une peine d’emprisonnement de deux ans moins un jour accompagnée d’une probation de trois ans comportant des conditions visant notamment à combattre son problème d’alcoolisme, des mesures bénéfiques pour l’intimé, ses jeunes enfants (dont il s’occupe de prè

s) et sa communauté. [ 151 ] Vu la gravité ainsi que le nombre de crimes commis, le contexte de violence conjugale et la vulnérabilité de la victime, il peut être tentant d’imposer une peine plus sévère que celle infligée par la juge de première instance. Mais, à mon avis, ce n’est pas le rôle d’une cour d’appel.

Celle-ci doit se concentrer sur le caractère manifestement non indiqué de la peine imposée par un juge d’instance, qui connaît la communauté où les crimes ont été commis, les services qui y sont offerts et leur efficacité. [ 152 ] De plus, l’idée d’imposer une peine plus sévère uniquement parce que des crimes violents ont été commis dans un contexte de relation conjugale à l’égard d’une victime autochtone vulnérable, sans tenir compte à sa juste valeur du facteur Gladue et de toutes les circonstances de l’affaire, serait de nature à perpétuer la surreprésentation des Autochtones dans le système de justice pénale, une problématique que le législateur et les enseignements de la Cour suprême cherchent à résoudre depuis plusieurs années.

Cette situation dramatique, faut-il le rappeler, affecte autant les femmes que les hommes autochtones [82] . *** [ 153 ] Comme on le sait, une réforme législative majeure a vu le jour en 1996 par l’ajout, entre autres, de l’ alinéa 718.2

e) C.cr . Cette disposition prescrit que, lors de la détermination de la peine, particulièrement en ce qui concerne les délinquants autochtones, le tribunal examine toutes les sanctions substitutives qui sont raisonnables dans les circonstances et qui tiennent compte du tort causé à la victime et à la communauté. [ 154 ] Il s’agit d’une disposition réparatrice destinée à réduire la surreprésentation des Autochtones dans le système de justice pénale canadien, une problématique bien documentée [83] . Pour paraphraser la Cour suprême dans R. c.

Gladue , « les chiffres sont criants et reflètent ce qu’on peut à bon droit qualifier de crise dans le système canadien de justice pénale. La surreprésentation critique des Autochtones au sein de la population carcérale comme dans le système de justice pénale témoigne d’un problème social attristant et urgent » [84] . [ 155 ] En 1999, la Cour suprême a eu l’occasion d’interpréter cette disposition pour la première fois dans l’affaire R. c.

Gladue , au terme d’une réflexion nourrie par l’étude de rapports d’expertise documentés et éclairants ainsi que par la consultation de statistiques révélatrices. [ 156 ] Il s’agit d’un arrêt singulier pour deux raisons. [ 157 ] En premier lieu, dans sa discussion concernant l’objet réparateur de la disposition en question, la Cour suprême reconnaît le problème du recours excessif à l’incarcération au Canada, et la récurrente remise en question de son efficacité à l’égard des objectifs traditionnels de la peine ainsi que la surreprésentation des Autochtones canadiens dans les établissements de détention, et ce, dans le cadre de la discrimination systémique subie par les Autochtones dans le système de justice pénale.

Ces enjeux étant à l’origine de l’intention législative de l’ alinéa 718.2

e) C.cr . , la Cour suprême

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