ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-100
DATE: 2012/07/27

BETWEEN:

HER MAJESTY THE QUEEN – and – ERIC MONTOUR Accused

Jason Pilon, for the Crown
Graeme Hamilton, for the Accused

HEARD: June 20 th , 2012

LAFRANCE-CARDINAL, J.

[ 1 ] On March 29 th , 2012 the accused pled guilty to failing to stop for police and dangerous driving, contrary to s. 249 of the Criminal Code .

THE FACTS:

[ 2 ] The parties have filed an agreed statement of facts which summarizes the events of May 31 st , 2011 which occurred at approximately 2:00 a.m. Mr. Montour would have failed to stop for police in the City of Cornwall and would have driven dangerously in order to evade police. At one point in time the Cornwall City Police ceased the pursuit and notified surrounding agencies. At approximately 2:07 a.m. the Akwesasne Mohawk Police observed the vehicle driven by the accused on the Akwesasne Reserve, and three police units tried to stop Mr. Montour but to no avail. Roadblocks were set up. Mr. Montour was able to manoeuvre around the police cars and escaped. Shortly thereafter Mr. Montour lost control of his vehicle and crashed. The police officers surrounded the vehicle and conducted a high risk takedown. Mr. Montour became compliant and identified himself by name. He required assistance to exit the vehicle as he was trapped. He was placed under arrest for flight from a police officer. During that time police could detect a strong odour of alcohol emanating from Mr. Montour’s breath, his eyes were glossy and his speech was slurred. He vomited at the scene. He was subsequently advised that he was also under arrest for impaired driving, dangerous operation of a motor vehicle, and driving while disqualified. Mr. Montour’s mother arrived on the scene of the accident and the accused apologized repeatedly to her. He was escorted by ambulance to the Cornwall Community Hospital, treated, and escorted back to the police station. No sample of Mr. Montour’s breath was ever taken. At the time of the offence Mr. Montour was a suspended driver. Mr. Montour was detained on the secondary grounds at a bail hearing on May 31 st , 2011 but he was released at a bail review on August 18 th , 2011 after spending 80 days in pre-trial custody. Mr. Montour has made it known at the very beginning of the court proceedings that he wished to plead guilty.

CRIMINAL RECORD

[ 3 ] Mr. Montour has a criminal record commencing in 2002 for driving while ability impaired causing bodily harm. In 2003 and 2005 he was also convicted of driving while disqualified. In February 2010, he was arrested again for driving while disqualified. He obtained a 45 day intermittent sentence and a three year driving prohibition. He was also found guilty on that same day of impersonation contrary to s. 403 of the Criminal Code for which he received a concurrent 45 day jail intermittent sentence. On the 29 th day of April 2010 he was found guilty of a breach of recognizance for having care and control of a motor vehicle. At that time he received a fine of $1,000 and one day jail. The 2010 convictions all related to 2007 offences. At the time of this particular offence he was a suspended driver but he was not prohibited from driving.

PRE-SENTENCE REPORT

[ 4 ] The pre-sentence report is an extremely positive one. It confirms that Mr. Montour is a 35 year old repeat offender who was born in Cornwall and raised in Akwesasne. His parents separated when he was very young and he has had no contact with his father since that time. His mother remarried when he was seven or eight years of age to a gentleman who owned a bar. There was heavy drinking and some domestic abuse directed to both his mother and himself, his stepfather was addicted to alcohol. In order to protect him from the abuse, Mr. Montour went to live with his maternal grandparents at a very young age and he is living with them now pursuant to conditions of his release. Mr. Montour is a Christian and also believes in the Mohawk traditional ways. Mr. Montour now has a very good relationship with his step father as he has ceased drinking for approximately 20 years and is no longer in the bar business. Mr. Montour benefits from great family support, most importantly from his mother and his maternal grandparents. They are there to support him in all of his endeavours, they make sure he is able to attend his medical appointments, they drive him to wherever he is needed. All of his siblings live on the same 25 acre piece of land and he considers himself blessed to have four of them who are all close to one another. Mr. Montour is single, he has no children. Mr. Montour obtained his high school diploma on May 18 th , 2002 and then attended the culinary arts program at Iohahi:io Adult Education Centre in Akwesasne. He received his certificate on June 6 th , 2008. He is presently employed as a part-time cook for a retirement home on Cornwall Island. He started that employment in December of 2011 and he is quite happy with this job as he finds it rewarding. He also works as a self-employed construction contractor and he works in plumbing for a friend of his. He does what he needs to do in order to earn income, and he rarely finds himself out of work.

[ 5 ] Drugs are not an issue for Mr. Montour like it is for many youths on the Reserve. He was smoking marijuana on weekends up until the time of his arrest but he has stopped doing so because he is under house arrest. Mr. Montour believes that he was a social drinker and that his consumption was always under control. His criminal record may paint another picture. He added, however, that during the time of his arrest he had been in a downward spiral for a period of about two weeks. He was having relationship issues and was having difficulties coping. He was drinking heavily during this period of time which resulted in the current charges. He indicates that he has never been taught to deal with emotional distress and drinking was his only coping mechanism.

[ 6 ] To his credit Mr. Montour, when released on the bail review, attended a six week alcohol rehabilitation program called Onen'tó:kon in Kanehsatake, Quebec. He completed the program in October of 2011. The residential counsellor describes the offender as a person who became very spiritual, who was able to deal with his emotions in a positive way and got along very well with co-residents and staff. The counsellor indicates that Mr. Montour went out of his way to reach out to others at AA and NA meetings. This was the very first time the offender received any kind of treatment dealing with coping with emotions and he believes that he is now better equipped to deal with them. He now attends AA twice a week.

NATIVE STATUS

[ 7 ] Mr. Montour is a First Nations/Aboriginal/North American Indian having affiliation with the Mohawks of Akwesasne through his parents’ membership status. He was raised exclusively in Akwesasne. The probation officer indicates that there is no doubt that Mr. Montour’s upbringing around alcohol and around physical abuse marked who he is today. He states,

“Akwesasne and the other First Nations/Aboriginal people of the Americas have long and proud histories that includes rich cultural and spiritual traditions. Many of these aspects, however, were altered or even taken away when confronted by the arrival of Europeans and future governmental policies. The forced introduction of a foreign culture and values to Aboriginal societies, the dispossession of native people from their homelands, and the installation of alien forms of governance began a cycle of social, physical and spiritual destruction that is still evident in the present day. Some of the resulting issues are poverty, poor health, high incarceration and suicide rates and substance abuse problems or alcoholism. An underlying issue to these problems is an individual’s loss of identity and a learned helplessness from having their values oppressed and their rights ignored. In this author’s estimation these issues have played a role in his life due to the intergenerational nature of the experiences he had with physical abuse and alcoholism.”

He further notes:

“This upbringing description associated with alcohol use painted the activity merely as part of the local heritage characterized by such notion that its use is justified to deal with internal distress or to accompany various celebrations. The offender was to be no exception to experiencing these messages and subsequently sought choices as he heavily associated with friends and family who led alcohol influenced lifestyles. His early experiences with physical abuse and alcoholism further eliminates current trends proving how engrained these aspects are within the environment of Akwesasne. His decisions to engage in this lifestyle were rather easy and arguably “predetermined”.

[ 8 ] Section 718.2 (e) of the Criminal Code talks of sentencing principles and it specifically states at paragraph (e) that:

“All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

SENTENCE

[ 9 ] The Crown in this case is indicating that the proper sentence in the circumstance is one of eight to ten months incarceration, less the time spent of 80 days, and less whatever time the court finds fit to discount the sentence to take into consideration the house arrest component and strict release conditions ( R.v. Downes , 2006 3957 (ON CA) , [2006], 205 C.C.C. (3d) 488). They are asking for 3 years probation, a driving prohibition and a DNA order.

The defence is asking that the 80 days pre-trial custody be inscribed as the proper sentence for the flight for police and that Mr. Montour be given a consecutive sentence of conditional jail with regards to the dangerous operation or dangerous driving of a motor vehicle. Defence take no issue with regards to the ancillary orders sought by the Crown, save and except that they are requesting a driving prohibition of two years rather than three and a shorter period of probation.

[ 10 ] The Crown affirms that denunciation and deterrence is the paramount consideration in a case such as this one, and that rehabilitation is not at the forefront being secondary to public safety, (R.v. M.(G. ), 1992 7399 (ON CA) , [1992] O.J. No. 2304 (Ont. C.A.). The Crown concedes that there are many mitigating factors and reasons to be lenient with Mr. Montour including the very positive pre-sentence report, however they contend that if the court is too lenient, then there is no denunciation and no deterrence and that it sends the wrong message to the residents of our community and more particularly those of the Akwesasne community. The Crown argues that the punishment must be denunciating, that everyone must know that if they are being chased by police and if they fail to stop, they will go to jail.

[ 11 ] I believe that an 80 day pre-sentence custody for failing to stop for police is a proper sentence for this offender. It is lenient but it is in line with many local cases ( R.v. George , [1995] O.J. No. 2120 (Ont. C.J.) , ( R.v. Lazore, September 25, 2006, unreported judgment of Bordeleau J. (Cornwall, Ontario) (Ont. C.J.), ( R.v. Leduc , May 13, 2005, unreported judgment of Lafrance-Cardinal J. (Cornwall, Ontario) (Ont. S.C.J.) , (R.v. Cook , September 4 th , 2003, unreported judgment of Griffiths J. (Cornwall, Ontario) (Ont. C.J.) , and (R.v. Chiasson , [2008] O.J. No. 466 (Ont. C.A.) . It does reinforce the message that if you fail to stop for police and a chase ensues, you will go to jail. It is however conceded that reformatory range sentences are often imposed to reflect the need for general deterrence on such a serious offence confirming the need to protect police and innocent bystanders. The question becomes whether or not the dangerous driving should be a consecutive jail sentence or whether or not the circumstances of this case warrant a conditional jail sentence. I find that all four criteria of s. 742.1 are met:

a) There is no minimum term of imprisonment.

b) A term of imprisonment of less than two years is appropriate.

c) The safety of the community will not be endangered by Mr. Montour serving his sentence in the community. Safeguards can be ordered including electronic monitoring, non-consumption of alcohol and drugs, and regular attendance at AA meetings to enforce and maintain the rehabilitative process already commenced.

d) The conditional jail sentence would be consistent with the principles of sentencing. It would satisfy the principle of proportionality, apply Gladue and give effect to the mitigating factors.

I also believe that Mr. Montour should be permitted to serve the sentence in the community for the following reasons:

1. He had commenced rehabilitating himself prior to the occurrence of May of 2011 by finishing high school and attending the culinary program on the Reserve.

2. He was working fulltime.

3. Contrary to many youths on the Reserve, Mr. Montour was not involved in illegal smuggling, he was not lured with the promise of easy cash for a few hours of work, nor was he involved in the consumption of OxyContin, the drug of choice for many Natives on the Akwesasne Reserve. Mr. Montour had an issue with alcohol and was able to drink socially up until May of 2011 when he realized that his girlfriend had been cheating on him and when he ws unable to emotionally cope with the news.

4. Mr. Montour attended a rehab facility and not only did he just attend in order to satisfy the conditions of the court, but he attended and fully participated. The report is glorious. Since then he has not consumed any alcohol. I’m satisfied that he has not consumed any alcohol because he is living with his grandparents who are keeping a watchful eye on him, and the Akwesasne Reserve is a very small community, where everyone knows each other, and should he have been out drinking, it would not have been long before the authorities would have been made aware of it.

5. Since being released from the rehab program, he has attended regular AA meetings, both in the City of Cornwall and on the Reserve.

6. He has found solace in the traditional ways of the Mohawk teachings.

7. Again, he is working both as a cook in an old age residential facility but also as a plumber and on construction, he keeps himself occupied.

8. Even though his upbringing included much alcohol consumption, his step-father is no longer drinking and I am confident Mr. Montour will do everything in his power to follow that same road.

9. Mr. Montour is Native and pursuant to s. 718.2 (e) and considering his personal quest to become a better person, his strict adherence to the release conditions and his pro-social lifestyle, a conditional sentence is available and can be imposed. The Supreme Court of Canada in R.v. Ipeelee states at paragraph 38:

“Despite the constraints imposed by the principle of proportionality, trial judges enjoy a broad discretion in the sentencing process. The determination of a fit sentence is, subject to any specific statutory rules that have survived Charter scrutiny, a highly individualized process. Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender. Appellate courts have recognized the scope of this discretion and granted considerable deference to a judge’s choice of sentence. As Lamer C.J. stated in R.v. M. (C.A.) , 1996 230 (SCC) , [1996] 1 S.C.R. 500, at para. 90 :

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code . [Emphasis in original.]”

10. A long probation order will ensure continued compliance.

[ 12 ] In R.v. Wells , 2000 SCC 10 , [2000] 1 S.C.R. 207, Justice Iacobucci indicates, “The goals of denunciation and deterrence are fundamentally relevant to the offender’s community.” In this case, the members of the Akwesasne Reserve see Mr. Montour as a young man who is having difficulties with alcohol, who is a hard worker, living a legal lifestyle, working at an old age residential facility. The message in that community will be that he has spent 80 days in jail, then went for six weeks of rehab, and came out of it a stronger person. The residents of the Akwesasne Reserve now see a young man who is regularly attending AA meetings to assist him in continuing a pro-social lifestyle. The message will be, once you come out of jail, if you seek rehabilitation, follow through with recommendations, adopt a pro-social lifestyle, follow rules and regulations, surround yourself with a good support group, maintain employment, then the court will be more lenient.

[ 13 ] Consequently, the sentence shall be as follows:

1. Failing to stop for police under s. 249.1(1) of the Criminal Code , 80 days time served, 3 years driving prohibition from March 29 th , 2012, and 2 years probation.

2. Dangerous driving under s. 249(1)(c), a conditional jail sentence of 12 months.

a. The first 6 months Mr. Montour will be subject to full house arrest. For the first 6 months, he must be home at all times except to work or attend school, attend counselling, attend AA, attend for medical appointments or medical emergencies, except for 4 hours per week which the court will allow you to attend to your personal affairs.

b. The order will be subject to operation door knock.

c. After the first 6 months, you will be subject to a curfew of 11:00 p.m. to 6 a.m., save and except for work purposes, on a schedule pre-approved by your supervisor.

d. During the whole conditional jail sentence, there is to be no consumption of alcohol and non-prescribed drugs.

e. To continue the rehabilitative work commenced, you are to attend a minimum of 1 AA meeting per week.

f. Reside at an address approved of by your supervisor and probation officer.

g. Abstain from driving any motorized vehicle.

3. Following your conditional jail sentence, you will be subject to a probation order for 2 years, the terms of your probation will be:

a. Keep the peace and be of good behaviour.

b. Reside at a residence approved by your probation officer.

c. Report to a probation officer as directed.

d. Abstain from the use of alcohol and non-prescribed drugs.

e. Attend a minimum of 1 AA meeting per week.

4. There will be a DNA order.

5. There will also be a driving prohibition of 3 years commencing March 29 th , 2012.

Justice Lafrance-Cardinal

Released: July 27 th , 2012

COURT FILE NO.: 11-100
DATE: 2012/07/27

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ERIC MONTOUR REASONS FOR SENTENCING Justice Lafrance-Cardinal

Released: July 27 th , 2012