COURT FILE NO.: CR-11-2228
DATE: 20120507
Delivered Orally: May 7, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Perry Leonard Corbiere
Defendant
Thomas Meehan, for the Crown
Frank P. Retar, for Perry Leonard Corbiere
Chris Diana, for the Ministry of Community Safety and Correctional Services
Marc Garson, for the Ministry of the Attorney General
Pomerance J.:
Introduction
[1] Perry Corbiere pleaded guilty to one count of sexual assault and one count of robbery. A third count, alleging break and enter, is to be withdrawn by the Crown. The charges arise from an incident in which Perry Corbiere broke into the home of the victim, who was 62 years of age, stole her money and jewellery, and sexually assaulted her, forcing fellatio and vaginal intercourse.
[2] It was acknowledged by all before the court, including counsel for Mr. Corbiere, that the offences call for a lengthy term of imprisonment in the penitentiary. The defence submits that a sentence in the range of eight years should be imposed. The Crown submits that a sentence of ten years should be imposed and that, pursuant to s. 743.6(1) of the Criminal Code, the offender should be ordered to serve one half of his sentence before being eligible for parole.
[3] Perry Corbiere is an Aboriginal offender with ties to his culture and heritage. He has, in the past, participated in the healing traditions of his community. His background, and that of his family, reflects systemic disadvantage and discrimination of the type historically aimed at Aboriginal peoples in Canada. This is a case in which the remedial provisions of s. 718.2(e) of the Criminal Code are engaged.
The Offence
[4] On August 16, 2010, the victim, S.G., was at home watching television when Perry Corbiere entered her residence through an unlocked door. Upon entering, he demanded money. S.G. obtained her purse and offered the money inside, which amounted to four dollars in change. The offender was not satisfied and asked for jewellery. He began to search the residence, opening cupboards, checking the fridge and freezer, and searching through her bedroom drawers. He ordered that the victim remove several rings from her hands. The victim begged the suspect to let her keep the wedding band on her right hand as it belonged to her mother. He allowed her to do so.
[5] After taking the victim’s jewellery, Perry Corbiere demanded that she expose her breasts. He fondled her breasts and sucked on them. He then took the victim into the bedroom where he directed her to get on the bed. He ordered her to perform fellatio and she complied. He told the victim to pull her pants down and he penetrated her vaginally with his penis from behind. After a few minutes, he removed his penis and told her to lie on her back. He tried to penetrate her again without success. He then told the victim to kneel on all fours, whereupon he forcibly entered her again. He asked her if it felt good and if she liked it. The victim was afraid and therefore said that it felt good and that he was doing it well. At one point, the offender stopped. He told the victim that he had not ejaculated. He got dressed and fled out the back door.
[6] A DNA sample taken from the victim’s breast was submitted to the national DNA data bank. It generated a “hit” on Perry Corbiere’s profile, causing a DNA warrant to be obtained which linked him directly to the offence.
[7] This offence had a devastating impact on the victim, as chronicled in her victim impact statement. Her sense of safety and security has been shattered. Immediately after the offence, she left her home and continues to experience fear of other people. She has withdrawn from the world, isolating herself emotionally from everyone, including friends and family. She perceives that women and children are prey and must be constantly on guard for their safety. As she poignantly described the effect of the incident in her victim impact statement: “Life can change in a blink of an eye”.
The Sentencing Hearing: Limited availability of Gladue Reports in Windsor
[8] Mr. Corbiere first came before the court to enter a plea and be sentenced on December 2, 2011. The material then before the court included a 2006 Gladue report prepared for an earlier offence. This material needed to be updated. When I expressed my intention to order an updated Gladue report, counsel for Mr. Corbiere advised that he had already looked into the matter. He had been told by Aboriginal Legal Services Toronto (ALST) that the agency did not have the funding to send a trained Gladue caseworker to Windsor. ALST could only prepare a report for Mr. Corbiere if the correctional officials transferred him to the Sarnia jail. When asked directly by the court, Perry Corbiere expressed a clear wish to have updated Gladue material presented at his sentencing hearing. It was suggested by counsel that I recommend a transfer to Sarnia.
[9] This caused me concern. First, while the court could recommend a transfer to Sarnia, this would not bind correctional officials, who could choose whether or not to follow the recommendation. Mr. Corbiere required special accommodation in custody to protect him from the general population; his transfer would depend on those facilities being available in Sarnia. In any event, it seemed that the availability of a Gladue report should not depend on the good graces of correctional officials and their willingness to transfer a prisoner in a given case. Nor, it seemed, should the availability of such information depend on where an offender is situated. Section 718.2(e) applies to offenders across Canada, wherever they may reside and wherever they may be sentenced. As I put it in my later endorsement of January 6, 2012:
The remedial provisions of s. 718.2(e) of the Criminal Code are not location specific. These provisions require that courts in all jurisdictions across Canada have access to comprehensive information about offenders’ aboriginal backgrounds and the extent to which systemic disadvantage, discrimination and other related factors have influenced the offenders’ circumstances. This is an important objective relating to the proper administration of justice. It is designed to address and ameliorate the overrepresentation of aboriginal offenders in Canadian jails.
[10] In light of these difficulties, I directed that the matter go over one week. In the interim, on November 8, 2011, I received a letter from Jonathan Rudin, Program Director of ALST. In his letter, Mr. Rudin explained that the Gladue caseworkers employed by ALST serve four distinct geographic areas – Toronto, Brantford-Hamilton, Waterloo-Wellington, and Sarnia. Mr. Rudin confirmed that his agency does not receive funding to provide Gladue reports for offenders outside these catchment areas.
[11] Perry Corbiere was back before the court on November 9, 2011. In order to address the funding issue, I made an order directing that the Ministry of Community Safety and Correctional Services (MCSCS), Probation and Parole Division, provide the funding to allow a properly trained Gladue worker to attend in Windsor and prepare a Gladue report for Perry Corbiere. Mindful of the fact that the Ministry was not represented before the court, I stipulated that, if the Ministry wished to challenge the order, it could file material no later than December 30, 2011 and a hearing would be scheduled.
[12] No formal materials were filed by the Ministry. Nor did the Ministry request a hearing. Rather, a letter dated December 21, 2011 was sent to me by Natalie Osadchy, counsel in the Legal Services Branch of the MCSCS. In her letter, Ms. Osadchy reported:
The Ministry has determined that operationally it is in a position to transfer Mr. Corbiere from the Windsor Jail to the Sarnia Jail for the purpose of having a case worker from Aboriginal Legal Services of Toronto (ALST) prepare an updated Gladue report.
[13] In the letter, Ms. Osadchy pointed out that funding for the ALST was provided by the Ministry of the Attorney General of Ontario, the Department of Justice, and Legal Aid Ontario. She closed her letter with the following request:
The Ministry is respectfully inquiring, in light of the aforementioned circumstances, whether Your Honour would consider rescinding or varying the Order of December 9, 2011 without the necessity of a full Hearing in this matter (perhaps administratively, if feasible) or alternatively on or before the next return date?
[14] I was not prepared to rescind or vary the order of December 9 on an administrative or other basis. The fact remained that Mr. Corbiere did not have access to Gladue-related services in Windsor that would have been available to him in other city centres. An assurance that he would be transferred to Sarnia offered a band-aid solution, but it did not address the underlying injury. There persisted the systemic concern that Aboriginal offenders in Windsor were being denied access to certain services available to Aboriginal offenders in other city centres. In a written ruling released on January 6, 2012, I expressly declined to rescind the order, directing that a hearing take place:
I will instead direct that a hearing take place on the question of whether the appropriate ministry and/or agency should provide the funding necessary to allow a properly trained Gladue worker to attend in Windsor, Ontario to prepare an updated Gladue report for Mr. Corbiere. I understand from Ms. Osadchy’s letter that the ministries and agencies responsible for such funding may include the Ministry of the Attorney General of Ontario, the federal Department of Justice and Legal Aid Ontario. I direct that this order be served upon appropriate representatives of those Ministries and agencies, as well as Mr. Rudin, legal director of Aboriginal Legal Services of Toronto.
[15] The hearing was set for February 3, 2012.
[16] On February 3, 2012, Chris Diana, counsel for MCSCS, appeared before the court, as did Marc Garson, counsel for the Ministry of the Attorney General of Ontario (MAG). At the outset of the hearing, I was advised that, sometime after my ruling of January 6, 2012, Mr. Corbiere had been transferred to the Sarnia jail where an updated Gladue report had been prepared.
[17] This came as a surprise to the court. Giving government officials the benefit of the doubt, I will assume that Mr. Corbiere was not transferred to Sarnia for the purpose of sidestepping the broader systemic issue. I will assume that the transfer was motivated by a desire to assist the court, rather than a desire to frustrate the stated objective of the hearing.
[18] Be that as it may, the effect of having the Gladue report prepared outside of Windsor was that the hearing became academic, at least where Perry Corbiere was concerned. It is the case before the court that drives its jurisdiction. Mr. Garson’s position was that, once a Gladue report was produced for Mr. Corbiere, the jurisdiction of the court to inquire into the availability of such reports was effectively spent. I had to agree. It is not my role, as a sentencing judge, to conduct a reference or general inquiry. Nor is it my place to direct allocation of government resources in the abstract. The concern of the court was to ensure that Mr. Corbiere had the full benefit of the remedial Gladue principles in the context of his sentencing hearing. By virtue of the Sarnia report, that goal was met.
[19] It is nonetheless appropriate to summarize counsel’s assertions about the availability of Gladue reports outside of the ALST catchment areas. These representations might assist counsel and judges in future cases.
[20] Counsel for MAG, Mr. Garson, explained that there are four dedicated Gladue-based service providers operating within Ontario. ALST serves four distinct geographic areas – Toronto, Brantford-Hamilton, Waterloo-Wellington and Sarnia. The Ontario Federation of Indian Friendship Centres offers services within London Ontario. The United Chiefs and Counsel of Manitoulin (UCCM) operates in parts of Northern Ontario. The Thunder Bay region is covered by Thunder Bay Gladue Services. These agencies are variously funded by the Ministry of the Attorney General, the Department of Justice and Legal Aid Ontario.
[21] Outside of these catchment areas, the preparation of Gladue material falls to the MCSCS, as the Ministry responsible for preparation of pre-sentence reports (PSR). Mr. Diana reported that probation and parole officers are trained that, when dealing with an Aboriginal offender, they are to prepare a pre-sentence report “with a Gladue component”. During submissions, I expressed concern about the adequacy of these “Gladue components”, as compared to the focussed and comprehensive material found in the “Gladue reports”. Counsel assured me that the quality of information about an Aboriginal offender in a PSR should be no different than the quality of information found in a Gladue report. Counsel submitted that, where a PSR falls short of this standard, the court should direct the author to attend court to provide further information.
[22] It follows then that, at least in theory, a pre-sentence report prepared for Aboriginal offenders should contain the same type of information that would ordinarily be found in a Gladue report. It remains to be seen whether this standard is met in practice. It has been observed by some authors that: “Gladue reports contain considerably more detailed information regarding the offender’s background, family and life circumstances than PSRs”. (see K. Hannah-Moffat and P. Maurutto, “Re-contextualizing pre-sentence reports: Risk and race” (2010) 12 Punishment & Society 262, at pp. 265, 273, 275, 278, as cited by Hill J. in R. v. Knockwood, 2012 ONSC 2238 at para. 54(10)). This was attributed to factors such as the training of dedicated Gladue caseworkers, the in-depth approach taken to the gathering of information about Aboriginal history and background, and the conceptual difference between a Gladue report and a PSR:
A Gladue report and its recommendations are holistic and contextualized accounts that characterize the Aboriginal offender’s needs, risk and community options differently from the actuarial risk-based character of PSRs. Essentially, they adopt a non-actuarial model and more contextualized approach to situate and frame Aboriginal offender’s risk.
[23] There is no magic in a label. A “Gladue Report” by any other name is just as important to the court. Its value does not depend on it being prepared by a particular agency. Its value does hinge on the content of the document and the extent to which it has captured the historical, cultural, social, spiritual and other influences at play in this context. In R. v. Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] O.J. No. 3346 (C.A.), LaForme J.A. observed that a court sentencing an Aboriginal offender must be guided by directed by information about:
A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and
B) 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.
[24] More recently, the Supreme Court of Canada affirmed that this type of information is “indispensable” to a sentencing court. As explained in R. v. Ipeelee and Ladue, 2012 SCC 13, at paragraph 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. Counsel 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. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code. [emphasis added]
[25] Ultimately, it is the responsibility of the court to ensure that the full range of necessary information is available. LaForme J.A. made this point in Kakekagamick, at paragraphs 45-46:
Where counsel does not adduce the evidence, it is still incumbent on the sentencing judge to try to acquire information on the circumstances of the offender as an Aboriginal person (Gladue, para. 84). In most cases, the information contained in a pre-sentence report may be sufficient to meet the requirement of special attention to the circumstances of Aboriginal offenders. But, where that information is insufficient, s. 718.2(e) permits the sentencing judge to request that witnesses be called to testify as to reasonable alternatives to a custodial sentence.
While the role of the sentencing judge is not that of a board of inquiry, there is nevertheless an obligation to make inquiries beyond the information contained in the pre-sentence report in "appropriate circumstances", where such inquiries are "practicable" (Gladue, para. 84). The sentencing judge's assessment of whether further inquiries are either appropriate or practicable is to be accorded deference (Wells, para. 54).
[26] If a pre-sentence report is lacking in its richness of detail or historical/systemic background, it is incumbent upon the sentencing judge to make further inquiries. The court may direct that the report be supplemented in writing or it may direct the attendance of witnesses that can offer the information and perspective that is needed.
[27] Alternatively, where Gladue information is not made available in a proper, timely or comprehensive manner, the court may consider other remedies. In R. v. Knockwood, 2012 ONSC 2238, Hill J. concluded that deficiencies in Gladue-based services in Quebec warranted a reduction in an Aboriginal offender’s sentence. Applying the principle in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, Hill J. ruled as follows in paragraphs 69-72:
The sentencing hearing in this case ought to have proceeded in early December 2011. Instead, the sentencing occurred 4 months later and 8 months after the offender’s plea of Guilt. This is not as soon as practicable.
The circumstances of the delay are important:
(1) almost immediately after the court’s order for a Gladue report, Quebec probation services reported that because Gladue reports are not prepared in that province one would not be prepared
(2) Ms. Knockwood, an Aboriginal person, was compelled to settle for an offer of a PSR with “Gladue content”
(3) Quebec probation services balked at preparing the report in a timely fashion
(4) while the report was filed with the court within the prescribed time, it had no Gladue content, was otherwise content-inadequate, and typed in the French language which the offender could not understand
(5) upset, insulted and afraid that the court would not receive the background information necessary to understanding who she was as an offender, Ms. Knockwood on her own attempted to get a Gladue report in Montreal only to find that she would have to pay for such a report
(6) the Province of Quebec may get to the training necessary for the preparation of Gladue reports over a dozen years after the Gladue case was decided
(7) the offender has suffered stress and upset as a result of the delay in preparation of the report and the sentencing itself.
The outrageousness of this story is self-evident. A shameful wrong. Contempt for the rights of Aboriginal Canadians. A denial of equality.
The state misconduct is measured as much in the circumstances and consequences of the delay for Ms. Knockwood as it is in the actual months of delay. But for the intervention of Mr. Diana and the work of Mr. King, the damage would have been further aggravated. The misconduct falls squarely to be addressed by a Nasogaluak remedy.
[28] I am satisfied that the updated Gladue report prepared by ALST for Mr. Corbiere while he was in the Sarnia jail captured the relevant and necessary information about his Aboriginal status and background. However, problems relating to the obtaining of Gladue information in Windsor and other centres raise continuing concerns for the administration of justice. There is no reason to believe that offenders in Windsor will be transferred to Sarnia jail for Gladue reports as a matter of course. To the contrary, the indication was that Perry Corbiere’s transfer was an exception to the norm. What of the Aboriginal offender who is not in custody? Would he or she be expected to travel to Sarnia? Would a Gladue report even be available for an offender who was willing to travel, or would he or she be required to settle for a pre-sentence report with Gladue content? The Gladue framework requires a factual foundation, without which it is a hollow gesture. In Ipeelee and Ladue, the Supreme Court of Canada revitalized the remedial principles at stake in this context. Their application in Windsor and similarly situated locations will be seen in due course.
[29] I will now turn to a discussion of the circumstances of Perry Corbiere, as they relate to the sentencing determination .
Circumstances of the Offender
[30] Perry Corbiere was born on March 8, 1984 to Lucy and Gerald Corbiere in West Bay (Manitoulin Island) Ontario. He is the second of four children. Gerald Corbiere was a registered band member in West Bay. Lucy Corbiere was a band member from the nearby community of Wikwemikong. Perry Corbiere is registered with the M’Chigeeng First nation.
[31] The offender’s mother, Lucy Corbiere, was born to an alcoholic mother. She and each of her six sisters had different fathers. She was initially raised by her grandparents, who had a farm where they harvested animals and fish for food. After Lucy’s grandmother died, the children were returned to their birthmother who remained an alcoholic. After a fire broke out in the home, the seven girls became wards of the Children’s Aid Society. Lucy Corbiere was told that she was too old to be adopted and would therefore be placed in foster homes. Thus began a terrible ordeal. She woke up one morning to find her long hair cut off and was told: “all you Indian kids have stringy, dirty hair”. She was denied food for two weeks because she did not know how to use a fork and knife properly. She was physically and sexually abused.
[32] These experiences left an imprint on Lucy Corbiere, and affected her ability to parent. Perry Corbiere was conceived five months after his mother Lucy and father Gerald began dating. His father, Gerald, was a violent alcoholic. His mother and father drank and fought on a regular basis when he was young. His father assaulted his mother on various occasions, but stopped after four or five criminal charges had been laid. As the domestic turmoil calmed, Gerald began staying away from home. Lucy Corbiere was, functionally, a single parent.
[33] She experienced difficulties in the parenting role. Perry Corbiere was born three weeks early. He had experienced a lack of oxygen in the womb and his heartbeat was only 28 beats a minute. This led doctors to predict that he might suffer from a mental disability. As he grew older, Perry Corbiere’s cognitive skills were slow to develop. When he was about seven years old, he was diagnosed with Attention Deficit Hyperactivity Disorder and was prescribed Ritalin. He had difficulty in school and could not read and write though he was in grade seven. On his first day of high school, he was kicked out of school because he became violent and broke the vice-principal’s nose after being called a “wagonburner”.
[34] Perry Corbiere began stealing money from his parents when he was 15 or 16 years of age. It was around that time that he also started drinking alcohol and consuming drugs such as marijuana, hash and hash oil. He was having difficulty fitting into his school and social environment.
[35] A dramatic turning point occurred when Perry Corbiere was 17 years of age. He had travelled with his family to his mother’s community in Wikwemikong. While his family attended a funeral, Mr. Corbiere played basketball with a friend. Seven or eight adults approached the two teenagers as they played ball. Mr. Corbiere did not feel threatened by these people. Sadly, his instincts were terribly wrong. The adults were drunk and set upon Perry Corbiere just as his friend managed to run away. The offender was brutally beaten. He recalls seeing women jumping on his head with both feet and stomping on his face. He lost consciousness and was later found face down in a nearby creek.
[36] Perry Corbiere was taken to a nearby hospital where he spent time in the intensive care unit with severe head trauma. He was in a coma for several days. The doctors reported that one more blow could well have killed him. The psychological scars of this event remain with Perry Corbiere to this day. He experiences flashbacks when confronted with violent or potentially violent situations. He experiences difficulties that may be attributable to acquired brain trauma suffered as a result of the beating. This type of brain injury can lead to problems in cognitive, behavioural and emotional functioning. There is reason to believe that Perry Corbiere would benefit from being assessed for brain injury, as well as mental health issues. He is currently taking Seroquel, an anti-psychotic medication as well as Cipralex, an anti-depressant. While in Sarnia, he told his Gladue worker:
I have problems sometimes thinking straight, or remembering stuff. I hear voices telling me that people want to hurt me; that I’m not wanted, end life, but I’d never do that. I know it all comes from that attack when I was younger. They never tested me after that and I think they should have.
[37] Perry Corbiere has not been able to secure a mental health evaluation while in jail. He was seen by one worker from the Canadian Mental Health Association, but was transferred out of the Sarnia jail before he could see Dr. Komer.
[38] Despite his youth, the offender has amassed a lengthy criminal record, dating back to 1998, when he was a young offender. He has been in a perpetual cycle of incarceration, registering criminal convictions in virtually every year between 1998 and 2010. His typical pattern is to commit a new offence within a short time of being released from jail. As it was put in the updated Gladue report:
For the offences for which his first Gladue report was prepared, Perry was sentenced to two months and ten days incarceration. He was released on November 25, 2006 and on January 1, 2007, 59 days after his release, Perry was arrested again. When that sentence was complete, even though he was to be released on February 22, 2007, he was arrested that day on other charges and was incarcerated until March 9, 2007. After 93 days, Perry was once again incarcerated until 24 days. Once released on July 4, 2007, it was 144 days before being arrested November 25, 2007. When released on January 9, 2008, Perry was only out for 11 days before being arrested again January 20, 2008. Although he was to be released on February 8, he was arrested on other charges and stayed incarcerated until April 22, 2008. After that arrest, Perry remained out of jail for 322 days. In 2009, Perry spent 15 days in jail and was released on March 24 2009. After that date, Perry stayed out of jail for 544 days until he was arrested on September 19, 2010 and has been incarcerated since that date.
[39] Perry Corbiere has prior convictions for uttering threats, robbery, break and enter, and assault. He does not have prior convictions for sexual offences. The longest sentence that has served is one of nine months incarceration for attempt robbery and break, enter and theft in 2004. His uncle is serving a life sentence in Kingston, having been incarcerated for the last 28 years. Mr. Corbiere is afraid of meeting a similar fate, but is well on his way if he continues on the path of criminality. At least part of his difficulty stems from substance abuse. Perry Corbiere told his Gladue worker he had a serious addiction to crack cocaine and that he engaged in “heavy” use of the drug between 2006 to 2008. He asserts that he has now been drug free for three years.
[40] While incarcerated in relation to this offence, Mr. Corbiere has taken steps to improve himself. He has enrolled in various courses, including Bible studies for which he has obtained several certificates. At the same time, he candidly acknowledged to the Gladue worker that he has had “60 misconducts this time being incarcerated”. He attributes these disciplinary infractions to situations in which he is prompted to fight other inmates. Mr. Corbiere asserts that, because of his size, he is targeted by other inmates who wish to assert their superiority. Counsel submitted that he is also targeted because of the nature of the charges against him. When he is set upon in a violent fashion, he responds in kind. According to the offender, when he is under attack, he experiences flashbacks to the attack left him in a coma many years ago.
[41] Perry Corbiere’s link to his Aboriginal heritage is a stabilizing influence in his life. From time to time, he has benefitted from Aboriginal healing programs and initiatives. According to Leslie Saunders, the program coordinator at the Meeting Place Drop-in Centre in Toronto, Perry Corbiere has participated in a weekly spirit circle with the Elder. A letter from St. Christopher House, dated in June 2009, noted that Perry Corbiere had attended a three day traditional healing retreat, and that he had participated in healing circles and sweat lodges. He delivered a “thoughtful, honest and dynamic speech” to families and Elders about his experiences in the criminal justice system. He has worked in other capacities to tell his story to Aboriginal youth. His involvement in cultural and traditional ceremonies tends to increase during periods of sobriety. Currently, he wants to enter a treatment centre or healing lodge so that he can break the cycle of incarceration.
[42] Perry Corbiere has acknowledged that he needs help. He says that he is ready to change his life. As he told the Gladue worker:
I’ve had enough. I don’t want to be in here anymore. This time is my last chance. When I get out I have to straighten up. I want to get involved in the Native community events so that eventually I can become an Elder. I know I could help younger people to keep outta trouble. I just have to stay away from dope and old friends.
[43] Similar sentiments were contained in a letter to the court from Mr. Corbiere, read into the record by his counsel during the sentencing hearing.
Analysis
[44] The offences before the court are serious. Perry Corbiere broke into the victim’s home; stole her property; and when the property was gone, robbed her of her sexual integrity. This was a callous attack on a vulnerable victim. The sexual acts demanded by the offender were highly invasive. He ordered that she perform fellatio and raped her, penetrating her on more than one occasion. The sentence imposed must reflect the court’s abhorrence for the offence and society’s denunciation of crimes of sexual violence. The targeting of the victim in her own home is a significant aggravating factor exacerbating the trauma and impact on the victim. The home is a protective haven; a place where we should all expect to feel safe. The actions of the offender have destroyed the victim’s sense of security in her home and have left her feeling unsafe everywhere.
[45] The range submitted to the court by counsel is eight to ten years in the penitentiary. The defence seeks a sentence of eight years incarceration. The Crown submits that ten years should be imposed, together with an order that the offender serve one-half of the sentence before parole eligible (s. 743.6(1) of the Code). Perry Corbiere was arrested for these offences on April 25, 2011. Both counsel advocate the application of one for one credit for days spent in pre-sentence custody.
[46] In requesting a sentence of eight years, counsel for Mr. Corbiere observed that ten years is the maximum penalty for the count of sexual assault. He submitted that the robbery was separated in time from the sexual assault and was more in the nature of a theft than a robbery. I cannot agree. There is no indication of how long Perry Corbiere remained in the victim’s home. What is clear is that the events formed a single transaction of implied and actual violence. I do not think it appropriate to parse the events in the manner suggested. The total sentence should reflect both offences to which the offender pleaded. The break and enter count is to be withdrawn by the Crown. Nonetheless, the intrusion into the victim’s home is an aggravating feature of the facts available for the court’s consideration.
[47] While the offences are serious, I must nonetheless give full consideration to the sentencing principles set out in R. v. Gladue and its progeny. These principles apply to all offences and it is the duty of the sentencing judge to apply them. This approach does not necessarily dictate a different sentencing result; it does, however, call for a different methodology in the calculation of a fit sentence. As noted in Ipeelee and Ladue, at paragraphs 59-60:
The Court held, therefore, that s. 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) 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 (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).
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.
[48] No direct causal link need be shown between background factors and the offences before the court. It would be difficult for an offender to demonstrate such a link. The process is, more broadly concerned with the intergenerational effects of the collective experiences of Aboriginal peoples. As recently observed the Supreme Court of Canada in Ipeelee and Ladue, at paragraph 83: “Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence”.
[49] This context is relevant in this case. Perry Corbiere has experienced several challenges in his life, many of which relate to his Aboriginal status and background. These include the discrimination and abuse experienced by his mother; the consequent difficulties that she experienced raising the offender; the alcoholism of his father; the offender’s own experience of discrimination; his addiction to destructive substances; his learning difficulties; the potential impact of brain injury and the violence and trauma that has followed him since he was brutally beaten as a teenager.
[50] I accept that Perry Corbiere is genuinely remorseful about the events that have brought him to court. This is evident from his plea of guilt and the heartfelt letter that was read on his behalf into the court record. I accept that he genuinely wishes to turn his life around. It is for him to make that happen, albeit with the help of others in his environment. He has given to and received from the Aboriginal community in the past, and has demonstrated a commitment to the betterment of himself and others. He has used his experience in the criminal justice system as a cautionary tale to dissuade other youths who might be tempted to break the law.
[51] Unfortunately, these positive experiences have not prevented Perry Corbiere from committing further offences. They did not prevent him from committing the offences for which he is now to be sentenced. These offences mark a jump in the severity of his crimes – a disturbing escalation of violence. The commitment to Gladue principles does not foreclose application of the principles of general deterrence and denunciation in connection with violent offences. The principle of proportionality requires a sentence that reflects the gravity of the offence and the moral culpability of the offender, just as it requires a sentence reflecting the systemic and contextual factors contributing to the criminality.
[52] Having considered the contextual backdrop and “Gladue” factors, together with the circumstances of the offence, I am satisfied that a sentence of nine years in the penitentiary is a fit and appropriate sentence, minus credit for days served in pre-sentence custody, on a one for one basis.
Parole Eligibility
[53] Counsel for the Crown requested that I consider making an order under s. 743.6(1) of the Criminal Code that would require Perry Corbiere to serve one-half of his sentence before he is eligible for parole.
[54] Section 746.3(1) of the Code provides as follows:
Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for an offence set out in Schedule I or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.
[55] This section requires the court to consider principles of deterrence and denunciation in dictating an increased period of parole ineligibility. The Gladue methodology has as much application in this context as it does in the fixing of a fit sentence. An increase in the period of parole ineligibility is, on its face, contrary to the restorative principles underlying s. 718.2(e). This does not mean that such an order is unavailable for Aboriginal offenders. Rather, it means that the court can only make such an order where it has undertaken a full analysis of the systemic, cultural, and background factors referenced by Gladue.
[56] I am disinclined to make an order delaying Perry Corbiere’s eligibility for parole. First, I am not convinced that it is consistent with Gladue principles to make such an order in this case. Secondly, and in any event, I believe that the parole authorities are in the best position to assess Perry Corbiere’s prospects for parole when the time comes. They will be best placed to consider the relevant factors, including his Aboriginal heritage, in deciding whether his release should be delayed.
Recommendations
[57] Perry Corbiere faces many challenges on the road to rehabilitation, including issues relating to his substance abuse, anger management, flashbacks, learning difficulties, quite possibly, the ramifications of a brain injury. He has performed well in the past when given a meaningful opportunity to participate in Aboriginal traditions. It is through continued involvement in his community and culture that he may find the strength to conquer his demons and turn his life around.
[58] It is for that reason that I recommend to correctional officials that Perry Corbiere be incarcerated at a facility and in circumstances that give full recognition to his Aboriginal status. I further recommend that Perry Corbiere be given access to programs that allow him to explore and benefit from Aboriginal culture and traditions, such as healing lodges and Aboriginal based counselling services.
Ancillary Orders
[59] Perry Corbiere shall provide a DNA sample for purposes of the DNA data bank, pursuant to s. 487.051 of the Criminal Code.
[60] He shall comply with the Sexual Offender Information and Registration Act for a period of 20 years.
[61] He shall be subject to a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code.
Renee M. Pomerance
Justice
Delivered Orally: May 7, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Perry Leonard Corbiere
Defendant
REASONS FOR JUDGMENT
Pomerance J.
Delivered Orally: May 7, 2012