Ontario Court of Justice

Date: April 29, 2019 Location: Sudbury

Between

Her Majesty the Queen

— AND —

Misty Assinewai

Before: Justice Randall W. Lalande

Reasons for Sentence released on: April 29, 2019

Counsel:

• Jeffrey Martin, for the Crown
• Alexander Toffoli, for the accused Misty Assinewai

LALANDE J.:

1: INTRODUCTION

1:1 Personal History

[1] The accused, Misty Assinewai (whom I shall refer to as "Misty") was born on November 27, 1985. She is now 33 years old. Her biological parents are Deborah Pheasant and Timothy Cooper. Both are members of the Wikwemikong Unceded Indian Reserve.

[2] Misty's eldest sibling Marlan was killed while an inmate at Millhaven. Her sister Josephine died in an accident at the age of 22 years. Her sister Marsha resides in North Bay. Her twin siblings Patricia and Tricia live in Sudbury.

[3] Misty has five (5) siblings. Her siblings were born from three different biological fathers. Misty's biological father Timothy Cooper lives in Wikwemikong. According to Misty, her birth resulted from her mother having had a one-night relationship with Mr. Cooper while married to Donald Assinewai hence she inherited the surname "Assinewai". Her mother, whom she describes as an alcoholic, lives in North Bay. As a child, her mother attended at a residential school in the Village of Spanish for several years. Currently she has very little contact with either parent.

[4] During her interview with Margret Larochelle (Gladue caseworker), Misty described her infant upbringing as follows:

"Because my mom was an alcoholic, we were in and out of foster care our whole lives. The very first time I was taken away from my mom, I was two months old. I remember living with Donald Assinewai as a baby but not with my mom. At two years of age, Donald was going to put me up for adoption but my mom came back and got me."

[5] When Misty was five years old she was returned to foster care. While in foster care she was sexually abused by her foster mother's son.

[6] It is reported in the Gladue report that she has a memory of being molested a number of times as she grew up. During her interview she explained how she tried to seek guidance and support from her mother. She received very little emotional support. Essentially she felt shut out, alone and helpless.

[7] She was again in foster care when she graduated from grade 8. To her disappointment her mother, although expected to attend, did not attend her graduation. Although poised to show up, her mother later explained that she had met an old friend, drank to excess, passed out and missed the event.

[8] Between the ages of 14 and 15 years, Misty resided at the Youthdale Treatment Centre in Magnetawan. She subsequently was taken into foster care by her Children's Aid Society worker Ms. Anne King. She ended up running away from the residence after having connected with her sister Joy. After having moved to Wikwemikong and while attempting to deal with a number of life issues at an early age, she commenced consuming alcohol, attempted suicide on at least one occasion and eventually became addicted to opioids while living with her mother (who was also addicted).

[9] Misty is the mother of three children. The two eldest children Autumn Rose (age 7) and Ozzie (age 5) reside with their father Ozzie Osawamick at Wikwemikong. Her youngest child Zariah Lynn Assinewai born June/July 2018 was apprehended soon after birth and remains in foster care.

[10] Misty underwent an abortion in 2014. She also suffered a miscarriage in 2016.

[11] She had been in a relationship with Ozzie Osawamick. After that relationship deteriorated, she increasingly abused alcohol. She also became addicted to cocaine. She eventually became homeless. During the currency of being homeless and seeking refuge, she became the victim of a violent sexual assault in 2017 after being drugged.

[12] In 2017, Misty met a person by the name of David. He was married. She became pregnant from her union with him in October 2017. Her child Zariah (above-noted) was born in June/July, 2018.

[13] In anticipation of giving birth to Zariah, she managed with the assistance of Ontario Works to secure an apartment. She abstained from consuming alcohol. The child Zariah was, however, apprehended and placed in foster care at three weeks old. Subsequently she relapsed.

1:2 Current Circumstances

[14] Prior to entering a plea of guilt to four (4) charges on July 6, 2018, Misty's record consisted of one conviction at North Bay on July 7, 2017 for failing to comply with a recognizance. She was found guilty and granted a conditional discharge at Sudbury on August 15, 2017 by Justice Boucher for five (5) offences including assault, mischief, fail to comply with a recognizance, fail to attend court and transportation fraud.

[15] The four (4) charges to which she entered a plea of guilt on July 6, 2018 consisted of fail to comply with bail supervision, fail to attend court January 12, 2018 and two (2) counts of failing to report to probation services.

[16] Her sentence was deferred. She remained in custody but on July 9, 2018 she was released from custody on a recognizance. The Friendship Centre had submitted a plan in support of her release. She was referred to several programs namely Healthy Kids, the Triple P Parenting Program and a drug and alcohol program. She expressed a clear commitment to co-operate with her probation officer. Her sentence was postponed to August 10, 2018.

[17] The July 9, 2018 recognizance contained several conditions including that Misty keep the peace and be of good behaviour and comply with all terms of her probation order dated August 15, 2017 made by Justice Boucher.

[18] On August 10, 2018 the court received a memo from Misty's probation officer Connie Lacroix dated July 24, 2018. The report was not positive. In part the report stated as follows:

"She admitted to me on July 18 that police knocked on her door, and she did not answer it. She reported on July 18 under the influence of drugs and admitted to using cocaine and speed. She admitted that she never followed through with counselling at the Native Friendship Centre for the Healthy Kids or drugs and alcohol programs."

[19] Several letters were filed on Misty's behalf from the Friendship Centre including a letter dated July 27, 2018 by Lorraine Lafontaine confirming that she attended to see a drug and alcohol counsellor and a letter dated July 21, 2018 setting out her plans to deal with her addictions and other issues. Her sentencing date was postponed to September 10, 2018 and then further adjourned.

[20] On September 29, 2018 at 6:00 p.m. Misty stole goods valued at $143.74 from the Real Canadian Superstore. The goods were recovered.

[21] On October 1, 2018 Misty operated a motor vehicle while her ability to do so was impaired. She drove through a stop sign and collided with another vehicle. The person in the other vehicle (Mr. Aboubakar) sustained injuries including a left lung contusion and a linear fracture to the pelvis. He remained in hospital until October 7, 2018 following which he was released on a plan of therapy. Following the collision, Misty fled the scene on foot. She was successfully located by a police dog in some nearby shrubs. When arrested she was in possession of 1.1 grams of crack cocaine.

[22] She entered a plea of guilt on October 31, 2018 to impaired care and control causing bodily harm, possession of a schedule 1 substance and failing to comply with her recognizance by not keeping the peace. She entered a plea of guilt to the theft she committed on September 29, 2018 on April 2, 2019.

[23] After her arrest on the charges committed on October 1, 2018, she remained in custody. On the date set for her sentencing hearing (October 31, 2018) counsel made extensive submissions. The Crown asked the court to consider a global period of custody extending 12 months plus 24 months probation. The federal prosecutor sought 30 days custody plus probation.

[24] Defence counsel submitted that the court consider imposing a conditional sentence with tight and meaningful conditions. In the alternative he submitted that the court consider imposing a custodial sentence of 90 days to be served intermittently.

[25] At the conclusion of submissions made by counsel, the issue of ordering a Gladue report was raised by the court. In view of Misty's aboriginal status, her life issues as disclosed by counsel, her relatively brief criminal record and her growing history involving conflict with the law, the obtaining of a Gladue report was considered necessary. Counsel were not in disagreement.

[26] Misty's sentencing hearing was adjourned to December 21, 2018. A thorough Gladue report authored by Margret Larochelle (Gladue caseworker) was received on December 11, 2018. It is to be noted that Misty fully co-operated in the preparation of the report.

[27] Misty's sentencing hearing proceeded on December 21, 2018. At that time she had been in custody for 82 days or 123 days enhanced.

[28] Misty was sentenced on all four (4) charges to which pleas of guilt had been entered on July 6, 2018. She was sentenced to a period of custody of one (1) day jail on each of the four (4) counts with 60 days pre-trial custody equally allotted over two (2) counts (i.e. 30 days each) namely fail to comply with her probation order and fail to attend court. She was also placed on probation for 24 months.

[29] The three (3) charges stemming from October 1, 2018 to which she had entered pleas of guilt on October 31, 2018 were adjourned to December 28, 2018. On that date she was released on a bail recognizance with strict terms including the following:

• Report to Greater Sudbury Police Service (GSPS) every Friday between 7:00 a.m. and 3:00 p.m.;
• Report to Elizabeth Fry, Bail Supervision Program each Monday, Wednesday and Friday and/or as directed by the program supervisor;
• Reside at 2-58 Bloor Street, Sudbury;
• Remain in residence between the hours of 9:00 p.m. and 7:00 a.m.;
• Attend at the Enaahtig Healing Lodge for the 21-day residential treatment program starting January 21, 2019;
• Take all reasonable steps to ensure admission at the Monarch Recovery Services; and
• Attend the Canadian Mental Health Association (CMHA) on a weekly basis commencing Tuesday, January 8, 2019 or as directed by the justice case manager for counselling.

[30] The probation order made on December 21, 2018 extending for a period of 24 months contains conditions requiring Misty to report to a probation officer and actively participate in any assessment, counselling or rehabilitative programs as directed including for substance abuse, alcohol abuse, parenting, psychological issues and life skills.

[31] On April 2, 2019, her sentencing hearing proceeded on the charge of theft (committed September 29, 2018) as well as on the three (3) charges upon which she was found guilty further to her pleas on October 31, 2018.

[32] The matter was adjourned to today for a sentencing decision.

2: SENTENCING PRINCIPLES

[33] Section 718 of the Criminal Code sets out the various principles and objectives to be considered by the court when imposing a sentence. The objectives are denunciation, general and specific deterrence, separation of offenders, rehabilitation, making reparations and promotion of a sense of responsibility in the offenders.

[34] According to section 718.1 of the Criminal Code the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality is central to the sentencing process. Section 718.2 sets out a non-exhaustive list of secondary sentencing principles that a court must consider in determining an appropriate sentence.

[35] Sub-section 718.2(d) and (e) state as follows:

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[36] Sub-section 718.2(a) states "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender". The following mitigating and aggravating factors are relevant to the determination of an appropriate sentence:

Mitigating Factors

• She provided a certificate having completed the 21-day residential program at Enaahtig Healing Lodge in Alban. In part, the program teaches persons who attend to learn how they have been impacted by childhood and adult abuse and how it affects their life today. The focus is on a healthy, balanced life. Topics touched include healthy relationships and provides for life skill workshops;

• She continued to report as required to the Elizabeth Fry Society three (3) days per week and while in custody took the Empower Life Skills Program;

• She applied for the Women's Residential Treatment Program at Monarch Recovery Services on November 7, 2018. She was placed on a wait list for March 2019;

• She continued to regularly exercise access to her daughter Zariah four (4) days per week. This was confirmed by Kina. Her access takes place every week on Monday, Wednesday, Friday and Saturday;

• She earlier accessed the Shkagamik-Kwe Health Centre for post-partum follow-up;

• She has expressed remorse (see her letter to RWL);

• She has maintained her reporting schedule to GSPS, Elizabeth Fry and CMHA;

• She has been complying with her probation order.

Aggravating Factors

• She committed a flagrant theft on September 29, 2018 having started routine visits with her daughter and while on a bail recognizance;

• She committed further offences on October 1, 2018 while on a bail recognizance;

• On July 24, 2018, 14 days after she was released from custody, a negative report was provided by probation services stemming from poor compliance;

• On October 1, 2018 when committing further offences she had consumed alcohol and was in possession of 1.1 grams of crack cocaine.

3: POSITION OF DEFENCE COUNSEL

[37] Mr. Toffoli reminded the court that Misty still has the benefit of 76 days (enhanced) of unaccounted custody time. She has not faltered since being released on December 28, 2018. She attends faithfully at the Elizabeth Fry bail verification and supervision program and at CMHA. She completed the 21 day residential program and is poised to attend at Monarch. She continues to routinely attend access visits with her child.

[38] Mr. Toffoli urged the court, if additional jail was to be imposed, to consider a jail sentence to be served in the community. In his submission, it is open to the court to consider a blended type sentence taking into account that a conditional sentence is not available on the charge of impaired causing bodily harm.

4: POSITION OF THE CROWN ATTORNEY

[39] Mr. Martin candidly indicated that he does not envy the court being faced with the challenge of imposing an appropriate sentence in these circumstances. He highlighted that Misty's conduct resulted in a serious accident with injuries to Mr. Aboubakar. The situation was aggravated by her attempt to flee. When apprehended she was in possession of illicit drugs. In his submission a sentence of 12 months jail would not be outside an appropriate range. However, given Misty's recent progressive efforts Mr. Martin submitted that a lesser of sentence of six months jail ought to be imposed. This, in his words, would provide her with a 50% discount (so to speak).

[40] In essence, the Crown is seeking the following disposition:

• Six (6) months straight custody to address the issues of deterrence and denunciation;
• Twenty-four (24) months probation with a condition that she not attend at the Superstore;
• A three (3) year driving prohibition;
• A DNA order;
• An order under section 109 extending for ten (10) years.

5: ANALYSIS

[41] While sentences are not to be automatically reduced for aboriginal offenders, a different approach is mandated because of the systemic or background factors that have historically played a part in bringing them to court. Misty Assinewai's background may be taken as an example.

[42] While her conduct warrants a jail sentence, the hardships that she has suffered, and which have played a role in inhibiting her from attaining social independence and stability, must be taken into account in determining a fit sentence.

[43] Her consumption of alcohol and drugs is related to systemic disadvantages she has suffered starting when she was a young child. To her credit she understands the difficulty that she now finds herself in. Her ambition to extract herself from bad habits, inappropriate influences and addictions must not be lost in determining an appropriate sentence.

5:1 Victim Impact Statement

[44] I have carefully reviewed Mr. Aboubakar's victim impact statement. Following the accident and in consequence of his injuries, his ability to function was seriously compromised. His studies were interrupted. As part of his recovery he had to attend therapy sessions and follow-up medical assessments. He described having become impatient and frustrated.

[45] The fact that the accident caused bodily harm to Mr. Aboubakar is an important element impacting the sentencing process. The legislation reflects the seriousness of the offence. Sub-section 255(2) of the Criminal Code states that anyone committing the offence of impaired driving causing bodily harm is guilty of an indictable offence and liable to imprisonment for not more than 10 years.

5:2 Dr. Veluri's Report

[46] Dr. Veluri provided an insightful report dated November 1, 2018. He identified the fact that Misty has had a long history of alcohol and drug abuse. He made the following comments:

"She became emotional and tearful a couple of times. She looked mildly depressed. Her affect was constricted. She had no suicidal ideas or psychotic features. She was alert and orientated. She had good insight into her condition."

[47] Dr. Veluri indicated that Misty, in part, suffered from an adjustment disorder with mixed anxiety and depressed mood because of the situation she was in. He did not think that she suffered from post-partum depression. He diagnosed her as having an adjustment disorder (with mixed anxiety and depressed mood), an alcohol use disorder and a poly-drug use disorder. He prescribed medication in terms of clonazepam 0.5 milligrams.

5:3 Misty's Personal Statements to the Court

[48] Misty provided two separate letters to the court. She expressed being anxious about commencing routine visits with her daughter. She also spoke about a plan to do better. She stated:

• "I can't help but be eager to see my daughter…I can't wait to get back to my apartment. I have to organize, pack and get ready for treatment".

• "All I truly want is to get back on the path I was already on prior to my whole world falling apart. I am so frustrated for a girl like me to be stuck in a life like this."

• "I can't stop thinking about the man in the other vehicle. It's my unfortunate reality to hold in my conscience this being I have hurt. If I could reach out in some way to help him in his life, providing within good reason, I would".

[49] In the second letter Misty provided, she made comment about being in custody. She indicated that it gave her time to think about her life and to hold herself accountable. In part she stated:

• "I can no longer ignore the issues I have faced in my past as well as the issues I will face in my present and future. Being in jail has really helped open my eyes to a miserable life I don't want to continue living".

[50] Generally speaking, Misty has demonstrated some insightfulness about her conduct and determination to do better.

6: CONCLUSION

[51] I must agree with both counsels' comments that this is a challenging and even difficult sentencing. While the principles of specific and general deterrence loom at the forefront because of Misty's repeated criminal behaviour while on bail, the court must still give appropriate and sufficient weight to the direction of section 718.2(d) and (e) of the Code and particularly with respect to the words "with particular attention to the circumstances of aboriginal offenders".

[52] The Gladue decision mandates a different approach to sentencing aboriginal people and in essence encourages sentencing judges to have recourse, if possible in the circumstances of the case, to a more restorative approach.

[53] The Gladue report highlights that Misty remains eager to attend treatment and admits that substance abuse played a major role regarding her charges. After speaking about the trauma in her life and the impact that it has had on her, she acknowledged that the demons in her life (i.e. addiction issues) can no longer be ignored.

[54] The fact that Misty completed the 21 day program is an important sign of progress which hopefully will serve as a springboard toward her long term recovery.

[55] While I am sensitive to the principle of restraint, I must nonetheless impose a sentence also reflective of the seriousness of the offence and most importantly respecting the offences of impaired driving causing bodily harm.

[56] Arguably a conditional sentence could meet the objectives of denunciation and deterrence as effectively as incarceration especially in view of the principle of restraint. This is well-enunciated in the seminal decision of R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61, decided by the Supreme Court of Canada in 2000.

[57] After considering the fullness of the Gladue report, relevant aggravating and mitigating factors, the principles of sentencing including the principle of restraint and Misty's personal history including her efforts in dealing with her addiction and life issues, I must conclude that a period of some custody in addition to other sentencing measures must be imposed.

[58] Consequently she shall be sentenced as follows:

1) On the charge of impaired driving causing bodily harm: There shall be a period of custody of 90 days less 66 days already served for a net of 24 days. In view of submissions made regarding her recovery and on the heels of having completed the 21-day residential program, she shall be allowed to serve the jail time intermittently on weekends.

She shall be taken into custody today for processing. She will turn herself in this Friday, May 3, 2019 at 8:30 p.m. and be released the following Monday, May 6, 2019 at 6:30 a.m. She shall serve her sentence identically each consecutive weekend until the sentence order has been satisfied;

2) On the charge of possession of 1.1 grams of cocaine: She is sentenced to a period of custody of four (4) months which she may, in accordance with the provisions of section 742 of the Code, serve in the community.

In terms of the conditional sentence order, she shall, in addition to the statutory terms, comply with the following:

• Remain in your residence daily between the hours of 9:00 p.m. and 7:00 a.m. unless, with the approval of your sentencing supervisor, obtained in writing in advance;
• Not buy, possess or consume alcohol or drugs except with a valid medical prescription;
• Take all reasonable steps to ensure admission at Monarch Recovery Services;
• Report as directed;
• Comply with all terms of your probation order made on December 21, 2018; and
• Not attend at the Real Canadian Superstore;

3) On the charge of fail to comply: She is sentenced to a period of custody of one (1) day concurrent. Ten (10) days pre-trial custody shall be allotted to this charge for sentencing purposes;

4) On the charge of theft: She shall be placed on a probation order for a period of two (2) years. The order which shall be concurrent with her existing probation of December 21, 2018 with conditions as follows:

• Keep the peace and be of good behaviour;
• Report to probation services within 48 hours;
• Not attend at the Real Canadian Superstore; and
• Comply with all terms of the December 21, 2018 probation order;

5) Any items seized further to the investigation of October 1, 2018 shall be forfeited to the Crown;

6) There shall be a DNA order where she shall supply a small sample of her blood in the usual sterile conditions for analysis and data banking;

7) There shall be an order under section 109 of the Code prohibiting her from possessing firearms, ammunition and other items as listed, all of which shall appear on the face of the order for a period of ten (10) years;

8) You shall be prohibited from operating a motor vehicle on any street, road, highway or other public place in Canada for a period of three years.

Released: April 29, 2019

Signed: Justice Randall W. Lalande