ONTARIO COURT OF JUSTICE

CITATION: R. v. Dupuis, 2022 ONCJ 393

DATE: August 30, 2022

COURT FILE No.: 2138104377

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CHARLENE DUPUIS, and VIRGINIA SIME

Before Justice Angela L. McLeod

Judicial pretrial January 27, 2022

Sentencing Hearing March 22, 2022

Maria Di Clemente.............................................................................. counsel for the Crown

Melvyn Malick.................................................................................. counsel for the accused

McLeod J.:

OVERVIEW

[1] Ms. Dupuis and Ms. Sime were jointly charged with assaulting police constables Elise Claridge and Blair King pursuant to section 270(1)(a) of the Criminal Code. Arising out the same incident, Ms. Dupuis was also charged with assaulting civilian Eileen Magee. Guilty pleas were entered, and convictions registered. A number of other charges were withdrawn.

[2] After the initial sentencing hearing, Ms. Sime pled guilty to an unrelated breach of undertaking charge arising in June 2022. She was found in the company of Eileen McGee, a witness to the original assault. She was intoxicated when arrested.

[3] The Crown elected to proceed summarily on all charges.

SUMMARY OF THE FACTS

[4] As is often the case in today’s reality, the incident was not only captured on video, but it was also subsequently uploaded to YouTube, in a video entitled “2 DRUNK GIRLS ASSAULTED BY BARRIE POLICE”. A copy of the video was filed as Exhibit #3 on sentencing.

[5] The Barrie Police received a 911 call for service. Officers Claridge and King arrived on scene shortly thereafter.

[6] Ms. Sime had moved into the residence two days earlier and had invited both Ms. Dupuis and Ms. Magee over. The parties consumed alcohol and were extremely intoxicated.

[7] Ms. Dupuis and Ms. Sime began to physically fight. Ms. Magee attempted to intervene and was then punched in the nose by Ms. Dupuis. Ms. Magee called the police.

[8] While in the course of Ms. Dupuis being arrested, Ms. Sime grabbed the arm of Officer Claridge.

[9] The video, captured by an uninvolved observer, shows Ms. Dupuis on an upper landing, at the top of a set of steep cement stairs. The parties are outside at the entrance to the residence. Officer Claridge is attempting to gain control over Ms. Dupuis who is shouting “fuck you”. Officer Claridge and Ms. Dupuis collapse to a sitting position, with the officer’s back against the outside brick wall.

[10] A second scene is depicted on the lower landing, ground level. Ms. Sime has been handcuffed by Officer King. She is face down, prone position.

[11] Officer Claridge is advising Ms. Dupuis that she is under arrest for public intoxication. Ms. Dupuis, slurring her words, says “I don’t think so, for what?”. She then swings her right arm up and over her head and lashes backwards at the officer. The photographer can be heard saying “just don’t resist”. Ms. Dupuis then uses her feet to push both herself and the officer backwards, and into the brick wall and she is assaulting the officer while saying “I don’t think so, you stupid bitch”. You can clearly hear the officer’s head hitting the wall several times. Ms. Dupuis then grabs a hold of the officer’s hair. At this point, Officer King leaves Ms. Sime and comes to assist Officer Claridge, who is essentially pinned into a corner.

[12] Officer King attempts to pull Ms. Dupuis’ hands from Officer Claridge’s hair. She begins to kick at him, while continuing to hold on to Officer Claridge’s hair. Officer King employs two strikes to her abdomen area, in an effort to get her to release Officer Claridge. Officer King loses his glasses in the process.

[13] Officer King attempts to pull Ms. Dupuis away from Officer Claridge. The whole lot go down the steep cement steps, Officer Claridge headfirst. Ms. Sime has risen to her feet and is standing at the side of the lower landing. Ms. Sime immediately attempts to push Officer King who is continuing to attempt to remove Ms. Dupuis’ hands from Officer Claridge’s hair. Officer King then pushes Ms. Sime and directs her to “get down”. She falls to the ground.

[14] Officer King strikes Ms. Dupuis in the face and she finally lets go of Officer Claridge’s hair. Both officers are attempting to subdue Ms. Dupuis on the lower landing. Ms. Sime rises to her feet, steps toward the officers and is screaming “don’t touch her”. She is again directed to sit down. She refuses and kicks Officer King’s arm. Civilians can be heard saying “don’t resist” and “sit down”. Officer King lets go of Ms. Dupuis and takes Ms. Sime to the ground. He can be heard to say “enough”.

[15] Officer King leaves Ms. Sime and returns to assist Officer Claridge as Ms. Dupuis once again takes a hold of her hair. A civilian shouts at Ms. Dupuis to “let go of her, later on you can figure it out”. Officer King strikes Ms. Dupuis in the head area again and she lets go of Officer Claridge’s hair for the second time.

[16] A third officer arrives on scene and all three officers are attempting to restrain Ms. Dupuis. Ms. Sime continues to shout at the officers. Officer King gets up and once again takes Ms. Sime to the ground. A civilian shouts at Ms. Sime to “sit down and let them do their job”. Ms. Sime kicks this man.

[17] Throughout the process Ms. Dupuis constantly screams “fuck you! fuck you! fuck you, you piece of shit!”

[18] The video ends with both women handcuffed and on the ground.

[19] Ms. Sime was on probation, for assault, at the time of the incident.

CIRCUMSTANCES OF THE OFFENDERS

[20] Ms. Dupuis has a criminal record, filed as Exhibit #1. Her convictions begin in 2004, as a youth, and end in 2015. There are a total of 11 convictions, including offences against the administration of justice, drug offences, mischief, impaired driving, and assault. She has received three custodial sentences.

[21] A Gladue letter was authored and filed as Exhibit #5.

[22] Ms. Dupuis is “registered as a “Status Indian” under the Indian Act. [she] is a member of the Chippewas of Rama First Nation.” Her grandparents attended Rama Indian Day School.

[23] Ms. Dupuis has three children. The eldest is 14 years old and lives with her father. The youngest two, aged 12 and 3 years old, regularly live with Ms. Dupuis, but are currently living with their aunt as a result of a CAS investigation.

[24] Ms. Dupuis advised that her mother and father were great parents, who “showed a lot of love, they did not drink, nor did they do drugs.” She has a past history of drug abuse but asserts that she is currently drug free. She drinks alcohol.

[25] She works at Casino Rama as a greeter in a restaurant.

[26] The Gladue writer made a number of recommendations, including accessing various Indigenous treatment programs.

[27] She did not address the court.

[28] Ms. Sime has a criminal record, filed as Exhibit #2. She has one entry, a conviction for assault in 2020, for which she received a conditional discharge and 12 months probation. The assault was against her mother.

[29] Ms. Sime is 29 years of age, has no children, rents a room, and works in the kitchen at the Rama Casino.

[30] Ms. Sime has substance abuse issues. She has not taken any counselling but is open to participating.

[31] Ms. Sime is taking online classes at Georgian College, see Exhibit #4. Ms. Sime filed a reference letter from a fellow employee, see Exhibit #4.

[32] Ms. Sime did not address the court.

VICTIM IMPACT

[33] Neither Officer filed formal victim impact. Both were present for the sentencing submissions and were invited by the court to speak to the impact. Officer King suffered a cracked tooth which required a crown and multiple visits to the dentist. He was impacted by having to take Officer Claridge to the hospital.

[34] Officer Claridge had several “chunks of hair ripped” from her scalp. She suffered a mild head injury as a result of having her head “bashed” against the wall.

POSITION OF THE PARTIES

[35] The Crown seeks a custodial sentence of 90 days for Ms. Dupuis, along with ancillary orders. The Crown seeks a custodial sentence of 30 days for Ms. Sime in respect of the assault convictions and a consecutive 30 days custody in respect of the breach of undertaking conviction, along with ancillary orders.

[36] The defence seeks a conditional sentence order for both women in the range of 6-10 months in respect of the assault convictions. The defence seeks a conditional discharge in respect of Ms. Sime’s breach of undertaking conviction. The ancillary orders are jointly submitted as appropriate.

ANALYSIS

[37] I find the following to be mitigating factors for consideration:

(1) The pleas of guilt

[38] I find the following to be aggravating factors for consideration:

(1) Ms. Dupuis’ criminal record

(2) Ms. Sime’s criminal record

(3) Each defendant was told to stop several times, including by general members of the public, each continued to assault the officers nonetheless

(4) The assaultive behaviour was protracted

(5) The assaultive behaviour required three officers to take control

(6) The assaultive behaviour was significant and put the officers in great harm

(7) There was a third victim of assault, Eileen McGee

(8) One officer required multiple visits to the dentist and required a crown

(9) One officer required treatment at a hospital and was missing chunks of hair; her injuries were long lasting

(10) Ms. Sime was on probation for assault at the time of the incident

(11) Ms. Sime had been arrested and charged with breaching her undertaking, for communication with Eileen McGee and for consuming alcohol twice before the June 2022 breach to which she has pled guilty

(12) Ms. Sime’s breach of undertaking took place while awaiting the imposition of sentencing for the assault conviction

[39] The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

(a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) deterring the offender and others from committing crimes;

(c) separating offenders from society where necessary;

(d) assisting in the rehabilitation of the offender;

(e) providing reparations for harm done to the victim or to the community;

(f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.

[40] The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

ASSAULT OF A PEACE OFFICER

[41] Section 718.02 of the Criminal Code states as follows:

718.02 Objectives — offence against peace officer or other justice system participant

When a court imposes a sentence for an offence under subsection 270(1), section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

[42] Police officers have one of the most difficult jobs. As first responders they never know what to expect. They must deal with intoxicated parties, angry parties, mentally ill parties. They deal with accused and with victims. They must deal with constant security concerns.

[43] Their role is integral to the administration of justice, as the Supreme Court noted in Quebec v. Montreal Service de Police, 2008 SCC 48, “The police officer’s role is of course essential to any organized society since it ensures order and security”.

SENTENCING INDIGENOUS OFFENDERS

[44] Section 718.2(e) of the Criminal Code states as follows:

718.2 Other sentencing principles

A court that imposes a sentence shall also take into consideration the following principles:

(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.

[45] In R. v. Gamble, 2021 SKCA 72, the court noted at paragraph 40:

40 In Gladue and R v Ipeelee 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], the Supreme Court affirmed that s. 718.2(e) is designed to ameliorate the problem of overrepresentation of Aboriginal peoples in Canadian prisons. The Court held that it requires judges to use a different method of analysis for determining a fit sentence for an Aboriginal person (Ipeelee at para 59). That methodology focusses on the unique circumstances of an Aboriginal offender that could reasonably and justifiably affect his or her sentence.

41 Speaking more particularly, systemic and background factors may bear on the culpability or moral blameworthiness of the offender and thereby impact the nature of a fit sentence (Ipeelee at para 73). As well, consideration of the types of sentencing procedures and sanctions that may be available might suggest that an alternative to a custodial sentence can achieve the necessary sentencing objectives. See: R v Chanalquay 2015 SKCA 141 at paras 39-41, [2016] 4 WWR 242 [Chanalquay].

42 There is no discretion in any of this. The sentencing judge must consider the situation of an Aboriginal offender (Ipeelee at para 86). As the Supreme Court said in Ipeelee at paragraph 85, "the only discretion concerns the determination of a just and appropriate sentence".

43 All of that said, s. 718.2(e) is not an unvarnished direction to impose shorter sentences on Aboriginal offenders. That point was made as follows in Chanalquay:

[38] Further, and relatedly, s. 718.2(e) and the Gladue analysis mandated by it do not automatically trump or displace other sentencing considerations and objectives. More particularly, s. 718.2(e) does not require that Aboriginal offenders always be sentenced in a manner which gives greatest weight to the principles of restorative justice, as opposed to goals such as deterrence, denunciation and separation (Gladue at para 78). As the Supreme Court has said, "The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances" (Gladue at para 81). In other words, Gladue considerations should not drive a judge to ignore other sentencing principles and objectives. The question in sentencing an Aboriginal offender, as for other offenders, will always be "For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code?" (Emphasis in original) (Gladue at para 80)

44 An obvious question arises from all of this. How is a judge to obtain the information required to make a sentencing decision as per the dictates of Gladue and Ipeelee? The Supreme Court has provided guidance on this front. As for the broad systemic and background factors affecting Aboriginal people generally, Ipeelee instructs that sentencing judges have an obligation to take judicial notice of such matters:

[60] Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts must take judicial notice of such matters as 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 of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. ...

(Emphasis in original)

45 With respect to the information bearing particularly on the individual offender who is before a sentencing judge, Ipeelee, at paragraph 60, advises that "[c]ounsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered". This echoes the comment in Gladue to the effect that "it will be extremely helpful to the sentencing judge for counsel on both sides to adduce relevant evidence. Indeed, it is to be expected that counsel will fulfil their role and assist the sentencing judge in this way" (at para 83). There are, self-evidently, various ways in which this can be done: (a) evidence from the offender; (b) evidence from other individuals in possession of relevant information (for example, the particulars of the offender's background, existing situation, treatment needs, programming options and so forth); (c) the submissions of counsel; and (d) reports prepared specifically for the purpose of presenting relevant information to the sentencing judge including, of course, a PSR prepared as per s. 721 of the Criminal Code. See: R v Park 2016 MBCA 107 at para 27, 343 CCC (3d) 347; R v Peekeekoot 2014 SKCA 97 at para 118, 446 Sask R 22 [Peekeekoot].

46 Gladue also instructs that, when counsel do not adduce the necessary evidence, "it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person" (at para 84). Similarly, the Court observed in R v Wells 2000 SCC 10 at para 54, [2000] 1 SCR 207, that "even where counsel do not provide the necessary information, s. 718.2(e) places an affirmative obligation upon the sentencing judge to inquire into the relevant circumstances". See also: R v Wolfleg 2018 ABCA 222 at para 61, 363 CCC (3d) 168 [Wolfleg] . All of this is no doubt rooted in s. 723(3) of the Criminal Code which provides that a sentencing judge may, on his or her own motion, after hearing argument from the prosecutor and the offender, "require the production of evidence that would assist [him or her] in determining the appropriate sentence".

47 The overriding imperative in all of this is to ensure that the sentencing judge has the benefit of the information necessary to allow him or her to give meaningful effect to s. 718.2(e). The emphasis in this regard must be on substance not form, on content not packaging. It matters not whether the relevant information comes before the sentencing judge in a document with the label "Gladue report" or whether it comes before him or her in a PSR or, for that matter, by way of the testimony of the offender, the submissions of counsel, or some other way or combination of ways. The question will always be whether, at the end of the day, the judge has the information necessary to allow him or her to give effect to s. 718.2(e). See: Peekeekoot at para 118; R v Lawson 2012 BCCA 508 at paras 26-27, 294 CCC (3d) 369; Wolfleg at para 52; R v Bonnetrouge 2017 NWTCA 1 at para 24.

[46] Recently, in R. v. Bear, 2022 SKCA 69, the Saskatchewan Court of Appeal summarized and reiterated the approach to be taken in determining the appropriate sentence for an Indigenous offender:

[36] It is important to recognize that Gladue and Ipeelee are not unvarnished calls to impose shorter jail terms on Aboriginal offenders. The Supreme Court's reasoning is far more nuanced than that. Its approach is very much tied to the concept of restorative justice and the decision in Gladue, in particular, returns repeatedly to that concept in explaining how it is that sanctions other than incarceration might satisfy the sentencing objectives referenced in Part XXIII of the Criminal Code. It is essential that this basic theme be remembered. In very simplified terms, the fundamental dynamic underlying s. 718.2(e) when a trial judge sentences an Aboriginal offender is not merely one of reflexively giving less jail time. Rather, it involves the subtler idea of attempting to limit or minimize jail time by using restorative justice approaches when and if such approaches are appropriate. In the end, s. 718.2(e) means what it says: "all available sanctions other than imprisonment that are reasonable in the circumstance should be considered...."

[37] I observe as well that the analysis mandated by s. 718.2(e), as explained in Gladue and Ipeelee, is not a free-standing inquiry that is brought into play to adjust an otherwise fit sentence after it has been determined. Instead, the analysis is an integral part of the reasoning which leads to a fit sentence (Gladue at para 88). It does not stand outside of that reasoning and judges should not approach the sentencing exercise with a view to giving (or not giving) a specific or express reduction in a sentence because of Gladue factors. This is not what Gladue and Ipeelee provide.

[38] Further, and relatedly, s. 718.2(e) and the Gladue analysis mandated by it do not automatically trump or displace other sentencing considerations and objectives. More particularly, s. 718.2(e) does not require that Aboriginal offenders always be sentenced in a manner which gives greatest weight to the principles of restorative justice, as opposed to goals such as deterrence, denunciation and separation (Gladue at para 78). As the Supreme Court has said, "The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances" (Gladue at para 81). In other words, Gladue considerations should not drive a judge to ignore other sentencing principles and objectives. The question in sentencing an Aboriginal offender, as for other offenders, will always be "For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code?" (Emphasis in original) (Gladue at para 80)

(Emphasis in original)

109 Determining the effect that systemic or background factors may have had on an Indigenous offender's moral culpability does not require the establishment of a causal link between those factors and the commission of the offence (Ipeelee at para 81). However, the assessment of the impact of Gladue factors cannot be conducted entirely in the abstract. It must be rooted in the factual realities of the case before the sentencing judge, as stated in Chanalquay:

[52] A sentencing judge should not simply stack up all of the Gladue-type considerations at play in a case and, if the list is long or severe, automatically proceed on the assumption such factors have had a substantial limiting effect on the offender's culpability. The required analysis is more demanding than that. To determine the extent to which Gladue factors impact on an offender's moral culpability, a sentencing judge must examine both the nature of the relevant factors and the particulars of the crime in issue. He or she should then consider the extent to which the unique circumstances of the offender "bear on his or her culpability" (Ipeelee at para 83) in the specific context of the case at hand. As mandated by the Supreme Court, the search here is not for a cause-and-effect relationship but for circumstances that cast light on the degree of the offender's blameworthiness for the specific offence in issue. It might be that the Gladue considerations impact the offender's culpability a great deal, not at all, or only to some intermediate extent.

110 Important in all of this, from the standpoint of appellate review, are the reasons given by the sentencing judge. While it may often be hard to quantify the effect that Gladue considerations have on the determination of an appropriate sentence, a sentencing court should explain why Gladue factors affected an offender's moral culpability or why they had no effect. In the absence of such an explanation, it may be difficult for a reviewing court to determine whether the sentencing judge conducted the requisite analysis. However, "[w]hen adequate reasons are given as to why a sentencing judge found that Gladue factors had or had not affected moral culpability, whether or how that finding affected the sentence imposed are matters of judicial discretion that warrant appellate deference" (Dillon at para 34, emphasis in original).

CONDITIONAL SENTENCE ORDER – LAW AND GENERAL PRINCIPLES

[42] Section 742.1 of the Criminal Code sets out the considerations for a CSO. In summary, there are four criteria to be met:

(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(2) the court must impose a term of imprisonment of less than two years;

(3) the safety of the community would not be endangered by the offender serving the sentence in the community; and,

(4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[43] The first three criteria establish whether a CSO is available; the last whether it is appropriate.

[44] A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, the court held:

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

[45] Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration:

41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72,

in our view a sentence focused on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

42 Moreover, the conditional sentence is not subject to reduction through parole. This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole of offenders "serving sentences of imprisonment in provincial correctional facilities" (R. v. W. (J.) (1997), 1997 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.) at p. 33).

CONCLUSION

[47] A joint submission was not presented.

[48] Given the above noted aggravating factors, the Crown position is not appropriate and would not adequately meet the sentencing principles identified.

[49] Charlene Dupuis is sentenced to a 270 day conditional sentence order, to be followed by 18 months probation, a s. 110 order for 5 years and a DNA order.

[50] Virgina Sime was not only on probation at the time of the assault, but she also subsequently breached her undertaking three times. I find that a conditional sentence order would not meet the principles of denunciation or deterrence and that the safety of the community would be endangered if one were imposed. As such, Ms. Sime is sentenced to 90 days custody in respect of the assault on the peace officers, and a consecutive 45 days in respect of the breach of undertaking. This is to be followed by 18 months probation, a s. 110 order for 5 years and a DNA order.

Released: August 30, 2022 .

Signed: Justice Angela L. McLeod