Court File and Parties

Court File No.: 113004 Date: June 28, 2012 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jessica Bouchard

Before: Justice D. DiGiuseppe

Oral Reasons released on: March 28, 2012

Counsel:

• Ronald Poirier, for the Crown
• Don Rusnak, for the accused Jessica Bouchard

Reasons for Sentence

DIGIUSEPPE J.:

A. Overview

[1] Jessica Bouchard is charged with trafficking in marijuana. She pled guilty and the matter was adjourned for the preparation of a pre-sentence report. Facts were read into the record, a finding was made and the court heard sentencing submissions on January 25th, 2012. The matter was adjourned to today's date for the imposition of sentence.

[2] Ms. Bouchard will be sentenced to a term of imprisonment. The issue, simply stated, is whether that sentence of imprisonment ought to be served in the community.

B. Circumstances of the Offence

[3] On April 16th, 2011, three young girls aged 11 to 14 years, were at a store in Longlac. The owner of the store believed the girls were under the influence of drugs. When confronted, one of the girls said that Ms. Bouchard, her aunt, had given them marijuana. The three girls subsequently gave statements to police indicating that Ms. Bouchard, at the girls' request, purchased marijuana for them. They then smoked the marijuana in her home and in her presence. Ms. Bouchard was bound by a conditional sentence order at the time of this offence.

C. Circumstances of the Offender

[4] Ms. Bouchard is a 33 year old aboriginal woman from Long Lake 58 First Nation. The pre-sentence report, filed as an exhibit in this sentencing hearing, chronicles an all too common experience for many of Canada's indigenous peoples, a lifetime filled with abuse and neglect.

[5] The PSR sets out Ms. Bouchard's personal history, as well as that of her family and her community. She is the second of six children born to Maxine Bouchard and Edward Legarde Senior. She has lived most of her life in the community of Long Lake 58 First Nation.

[6] Following is a summary of Ms. Bouchard's life experiences as a child, a childhood defined in many ways by abuse, neglect and impoverished living conditions:

1. Both of Ms. Bouchard's parents drank heavily and were often unable to care for their children. As a result, the children were shuttled between relatives and occasionally in foster-care.

2. Ms. Bouchard's parents separated when she was 12 years old, exacerbating an already unstable and dysfunctional environment.

3. She was physically abused by both parents.

4. She was sexually abused while in foster care and by extended family members. She recalls particularly being sexually abused by one uncle, who is deceased, and two others, both of whom suffer mild to moderate mental health problems.

5. Ms. Bouchard has a significant history of substance abuse dating to early adolescence. This includes the abuse of alcohol and drugs. Ms. Bouchard indicated that her substance abuse was a coping mechanism to deal with issues around sexual abuse. She had been involved with counselling in the past, with varying degrees of success.

[7] In many ways Ms. Bouchard is also a product of her community. To say that Long Lake 58 First Nation is in crisis would be an understatement. Many in this community, including members of Ms. Bouchard's family, attended residential schools, and they and their offspring continue to suffer the consequences of that experience. Many individuals returned from their experience damaged, angry and resentful and were unable to provide the nurturing needed to raise their own children. As a result, children were raised in environments characterized by abuse, violence and neglect. Unfortunately, that cycle continues to this day.

[8] Currently this community is caught in the vice-like grip of prescription drug abuse. The PSR reveals a chilling statistic with respect to this problem: of 164 adult residents between 19 and 49 years of age, 38 are actively abusing oxycodone; 96 are involved in treatment, 76 are on methadone, and 20 are on suboxin, leaving only 30 adults in that age group completely free of some form of opiate dependency.

[9] It is suggested that these current problems find their root in the residential school experience. At page 3 of the pre-sentence report:

"Overall, it is a community characterized by a loss of culture, violence, broken homes and addiction. Many attribute these current problems to the inter-generational legacy of the residential school system."

[10] Community leaders are seeking to address this scourge by seeking greater police presence, vigilance and enforcement to help reduce crime, and enhanced treatment programs with an aboriginal cultural component to address the health issues.

[11] To her credit, Ms. Bouchard has taken some positive steps recently. While in custody following the termination of a conditional sentence order, she has obtained credits towards a high school diploma. Since her release, she is abstaining from the consumption of alcohol and opiates without a medical prescription. She has been involved in the methadone maintenance program for over a year and has eight recent clean urine tests.

[12] Both Ms. Bouchard's probation officer and community case worker have noted a positive change in her attitude and behaviour. She is highly motivated to care for her 10 year old son who currently resides with her and her grandmother, although he is not yet in her care exclusively.

[13] Ms. Bouchard has an extensive criminal record involving assaults, property offences and breaches of court orders. There have been four separate breaches of conditional sentence orders, the most recent in August, 2011, resulting in the termination of that order. Sentences have included community based dispositions and jail. Her response to community supervision has been mixed. She struggles with compliance. This is unfortunate because it is those community based dispositions, coupled with her insight and commitment, that provide Ms. Bouchard with the best opportunity through counselling to address those factors that contribute to her offending behaviour.

Ms. Bouchard continues to resist a lengthy and restrictive community supervision order. She is fearful that she may be unable to comply with conditions, and find herself continuously stuck in the quagmire of the justice system. Ironically, this insight, according to the author of the pre-sentence report, demonstrates progress in Ms. Bouchard's addressing her issues.

D. Position of Crown and Defence

[14] The Crown seeks a jail sentence in the range of six to nine months. While it is conceded that Ms. Bouchard has struggled with many issues, most of which were not of her doing, the fact that she was trafficking to children and bound by a conditional sentence order of imprisonment are aggravating factors which demand a deterrent sentence. The Crown also seeks a DNA order and a section 109 Criminal Code firearms prohibition for ten years.

[15] The defence asks that I take into account those systemic factors that have contributed to Ms. Bouchard's offending behaviour and impose a jail sentence of six months to be served in the community.

The Law

[16] The purpose and principles of sentencing are set out in section 718 of the Criminal Code. That section reads as follows:

"The fundamental purpose of sentencing, is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims of the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community."

[17] Section 718.1 of the Criminal Code requires that sentences imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Criminal Code requires the court to consider any aggravating or mitigating circumstances, paying particular attention to the circumstances of aboriginal offenders.

[18] Section 10 of the Controlled Drugs and Substances Act requires a sentencing court to consider as an aggravating factor that an offender trafficked to a person under the age of 18 years.

[19] The Supreme Court of Canada in Regina v. Gladue, [1999] S.C.J. 19 considered in detail sentencing principles including those involved in sentencing aboriginal offenders. Sentencing judges must consider the unique circumstances of aboriginal offenders, including systemic or background factors that may have played a part in bringing offenders before the court. These circumstances must inform the court when considering the sentencing objectives set out in the Criminal Code. The balance sought to be struck with respect to these various sentencing objectives is described in Gladue at paragraphs 78 and 79:

"In describing the effect of section 718.2 (e) in this way, we do not mean to suggest that as a general practice aboriginal offenders must always be sentenced in a manner which gives greater weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation and separation. Clearly, there are some serious offences and some offenders for which and for whom, separation, denunciation and deterrence are fundamentally relevant. Generally, the more violent and serious the offence, the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing."

F. Reasons

[20] The pre-sentence report clearly identifies the inter-generational impact that violence, neglect and substance abuse has had on Ms. Bouchard. It is abundantly clear to me that Ms. Bouchard's character was forged by her personal experience, including that in her home and her community. It should be no surprise that Ms. Bouchard's behaviour, which includes substance abuse and violence, reflects the environment she was exposed to as a child, and in some measure, at least within the broader context of her community, continues to be exposed to.

[21] The Criminal Code provides for the imposition of a jail sentence to be served in the community in appropriate circumstances, provided certain statutory pre-conditions are satisfied; that there is no minimum jail sentence prescribed; that the sentence to be imposed is less than two years; and that serving the sentence in the community would not endanger the safety of the community and be consistent with the fundamental purposes and principles of sentencing set out in the Criminal Code.

[22] The offence before the court is extremely serious, particularly so in the context of the community within which it was committed. Long Lake 58 First Nation is struggling with the drug addiction of its members. This addiction not only affects the individual, but those who come into contact with these individuals; family members, particularly children, the extended community and members of the public who might be at risk of criminal behaviour related to drug abuse.

[23] Ms. Bouchard's conduct was deplorable. It was particularly insidious as it targeted children, a significant aggravating factor. As such, the overarching sentencing objective in crimes of this nature is denunciation and deterrence. While I am mindful that a conditional sentence of imprisonment could address those sentencing objectives, particularly if onerous and punitive conditions were imposed, I am not satisfied that it could do so in these circumstances. The deterrent and denunciatory message must be firm. Those who provide drugs to children will go to jail.

[24] Even if deterrence and denunciation could be addressed in a conditional sentence of imprisonment, given Ms. Bouchard's history of non-compliance while on community supervision, I have very little confidence, notwithstanding her recent progress, that she would comply with the terms of a conditional sentence order. The risk of Ms. Bouchard re-offending is high and the potential damage to the community, particularly its children, is significant.

[25] A sentence of imprisonment within the range suggested by Crown counsel, absent the compelling Gladue factors affecting Ms. Bouchard, could be justified. However, in my view, that range of sentence must be tempered to reflect those systemic factors that have contributed to Ms. Bouchard's offending behaviour and address her rehabilitation.

G. Disposition

[26] Ms. Bouchard will be sentenced to a term of imprisonment of four months. Following this term of imprisonment, Ms. Bouchard will be placed on probation for a period of twelve months. The terms of the probation order will be as follows:

(1) keep the peace and be of good behaviour;

(2) report to a probation officer within five working days after your release from custody, thereafter as required by your probation officer;

(3) abstain absolutely from the purchase, possession, consumption of any drugs banned under the Controlled Drugs and Substances Act, except in accordance with a medical prescription; and

(4) attend and actively participate in such rehabilitative programs for substance abuse, mental health issues and such other counselling as is recommended by your probation officer.

Pursuant to section 109 of the Criminal Code, Ms. Bouchard will be prohibited from possessing any firearms, ammunition or explosive substance for a period of ten years.

I will exempt Ms. Bouchard from the victim fine surcharge.

Released: June 28, 2012

Signed: "Justice D. DiGiuseppe"