CITATION: R. v. Jourdain, 2016 ONSC 7890
COURT FILE NO.: CR-15-0032
DATE: 2016-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
- and -
D. MacKenzie, for the Crown
Alyssa Jourdain,
D. Bruzzese and S. Shroff, for the Accused
Accused
DELIVERED: December 20, 2016, at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Reasons For Sentence
[1] Alyssa Jourdain entered a plea of guilty on May 20, 2016 upon a charge of manslaughter, contrary to sections 234 and 236 of the Criminal Code. Her participation in the offence was as an accessory after the fact.
[2] This is the sentencing of Ms. Jourdain for the offence of which she stands convicted.
[3] The principal in the offence, Chauncy Grover, pleaded guilty to manslaughter. On a joint submission, he was sentenced to a term of imprisonment of nine years, with credit for time served at a ratio of 1.5 days to 1.0.
[4] The Crown and defence do not agree on an appropriate sentence for Ms. Jourdain.
Facts
[5] On August 17, 2014, Mr. Grover, Ms. Jourdain and the victim, 64 year old Leslie Perrault, were together at an apartment that Mr. Grover and Ms. Jourdain were renting on Machar Street in Thunder Bay.
[6] On his arrest, Mr. Grover admitted to police that he killed Mr. Perrault by stabbing him. Initially, Mr. Grover told police that he had returned to the apartment and found Mr. Perrault sexually assaulting Ms. Jourdain. Mr. Grover told police he confronted Mr. Perrault and stabbed him. Subsequently, Mr. Grover told an inmate at the jail where he was being held after his arrest that he, Ms. Jourdain and Mr. Perrault were consuming alcohol at the apartment. At some point Mr. Grover asked Mr. Perrault for money to buy cocaine. Mr. Perrault refused. An altercation ensued and Mr. Grover stabbed Mr. Perrault.
[7] Ms. Jourdain's involvement as an accessory after the fact began when she and Mr. Grover wrapped Mr. Perrault's body in blankets and dragged it to the basement apartment where it was left on a couch. The floor in the kitchen where the stabbing took place appeared to have been mopped.
[8] Mr. Grover and Ms. Jourdain took Mr. Perrault's wallet containing his bank card and personal identification number. They fled the apartment and took approximately $10,000 from Mr. Perrault's account. They spent the money on drugs. They were arrested and charged with Mr. Perrault's killing on August 25, 2014.
[9] Ms. Jourdain remained in custody for 18 months after her arrest until her release on bail. The Crown and defence agree that she should be credited with time served on a 1.5 to 1.0 ratio, for credit for pre-sentence custody of 27 months.
Circumstances of Ms. Jourdain
[10] Ms. Jourdain is 46 years old. She was born in Dryden. She is a band member of Nigigoonsiminikaaning First Nation, a relatively isolated Ojibway community approximately 40 kilometres east of Fort Frances.
[11] A comprehensive pre-sentence report, with a Gladue component, was prepared by the Ministry of Community Safety and Correctional Services. A Gladue Report was also prepared by the Thunder Bay Indian Friendship Centre.
[12] Ms. Jourdain is the mother of two children, ages 28 and 26. She is the grandmother of five children.
[13] Ms. Jourdain's mother is 65 years of age. She is a band member of Naotkamegwanning First Nation on Lake of the Woods. As a young girl, she attended residential school several miles south of Kenora. She was sent to a girl's school in Toronto for a year because of her drinking and then lived in a number of foster homes until she returned to her reserve at age 18. In 1969, at age 18, she met Ms. Jourdain's father. Ms. Jourdain was born a year later in Dryden. Ms. Jourdain recalls her parents drinking and fighting. She was first apprehended by child welfare services at age three. When she was returned to her parents, they moved to International Falls and later to Tower, Minnesota. Her parents had two more children. The children were placed in foster care at times while living in the United States. Her parents sought treatment to address their addictions.
[14] Ms. Jourdain experienced racism and bullying while she attended elementary school. She recounted to the Gladue worker that on one occasion in grade two, her young friend asked her to come for a sleepover. She was given permission to go. When she arrived at her friend's house, her friend's parents told her friend to get in the house. They closed the door on Ms. Jourdain and left her outside, a 30 minute drive from her own home on the reserve. She walked back to the school in the dark, afraid and unsure where to otherwise go. Two men saw her plight and drove her back to her home on the reserve.
[15] Ms. Jourdain experienced sexual abuse from multiple perpetrators beginning at age three or four.
[16] Her family moved to Couchiching First Nation near Fort Frances when Ms. Jourdain was eight years old. Her parents separated when she was nine. Her mother moved with the three children to Thunder Bay. In Thunder Bay, the children were apprehended because of their mother's drinking and her neglect of the children.
[17] Ms. Jourdain's father gained custody of the children. He and the children moved to Nigigoonsiminikaaning First Nation where he worked as a bus driver.
[18] Ms. Jourdain's father had been taken from his home at an early age and placed in a residential school in Fort Frances and Kenora. He had a long term addiction to alcohol. Home life with him and the three children was dysfunctional because of his alcohol abuse. When he drank, he either left the children on the reserve or left them in a van outside bars. The children were victims of his violence when he was intoxicated.
[19] In 1982, Ms. Jourdain's father moved the family to Thunder Bay. Her father quit drinking and went to college, becoming a Native Alcohol and Drug Worker.
[20] Ms. Jourdain began to sniff solvents at age 11.
[21] Ms. Jourdain dropped out of high school at age 14. She lived on the streets and with a boyfriend for a year before returning home. Shortly after, she was placed in a group home where she lived for three years. At age 16 she ran away to Cochrane. She returned to Thunder Bay. At age 17 she had her first child. She had her second child a year and a half later. She placed the children with Child and Family Services while she attempted to cope with depression and alcohol abuse.
[22] Ms. Jourdain became involved with the criminal justice system at age 16. She accumulated a number of convictions over approximately the next 15 years for assaults, impaired driving, theft and breaches of court orders.
[23] Her father died in 2012.
[24] Ms. Jourdain continued an on-again off-again relationship with the father of her children. Alcohol, violence and sexual abuse continued to be factors in her life. By 2002, she and the father of her children had become daily users of cocaine and Oxycontin. She lost custody of her children. She entered programs to deal with her addictions but her episodes of sobriety gave way to further drug and alcohol abuse.
[25] In 2011, Ms. Jourdain became a daily user of heroin. She subsequently went in a methadone program.
[26] She met Mr. Grover in 2013. They worked together at Central Carwash from November 2013 until her arrest in August 2014. Although the manager of the carwash said that Ms. Jourdain initially was a very hard worker, reliable and responsible, her continued addictions led to struggles at work. Ms. Jourdain told the writer of the Gladue Report that by August 2014 all of her cheques and the cheques of Mr. Grover from their employment at the carwash were cashed and "...the money was going up our arms."
[27] However, Ms. Jourdain began to take significant steps to turn her life around while incarcerated on the present charge. The author of the pre-sentence reports indicates that while at the Thunder Bay Correctional Centre, Ms. Jourdain completed 11 certificates in a variety of programs and obtained grades in the 80s and 90s. For this sentencing, I have been presented with Certificates from those programs that include:
• Preparing for Change
• Overcoming Low Self-Esteem
• Overcoming Co-Dependence
• Substance Abuse
• Anger Management
• Grief
• Power vs. Equality
[28] After Ms. Jourdain was released on bail on March 4, 2016, she attended programs that ranged in length from six to 12 weeks in Anger Management at Beendigen, Women in Transition at the Catholic Family Development Centre and Life Skills at Beendigen.
[29] She attended at a session on Grief and Loss with a clinical psychologist.
[30] Ms. Jourdain took individual counselling services with a family counsellor at Beendigen on healing goals which she had set. The family counsellor noted Ms. Jourdain's willingness to explore and address underlying issues, her capacity to work with integrity and her desire to heal from the historical trauma that she had endured. She attended regularly scheduled appointments with the counsellor and actively participated on the healing goals which she had set.
[31] Ms. Jourdain attended appointments with the Aboriginal Alcohol and Drug Worker at the Thunder Bay Indian Friendship Centre. She received counselling through the Indian Residential Schools Resolution Health Support Program.
[32] Ms. Jourdain has completed intake procedures to be accepted into a six week residential treatment program at Native Horizons Treatment Centre Inc., located in Hagersville, in Haldimand County. The dates for which she is being considered are January 8 to February 17, 2017.
[33] Ms. Jourdain is a client of Alpha Court Community Mental Health and Addictions Services, which provides services for people with mental health illness and addiction. She is required to meet with her case manager a minimum of once per week. Alpha Court advises that it provides individualized, recovery-oriented, community-based services, including life skills training, supportive counselling, crisis intervention and prevention and advocacy. It provides safe, decent and affordable housing.
Impact on the Victims
[34] On the initial submissions on sentence, Victim Impact Statements were received from Mr. Perrault's daughters, granddaughter, sister and friends.
[35] The loss of Mr. Perrault has been devastating to his family. They speak of its impact on all aspects of their lives – their physical, emotional and spiritual health; their ability to work; their ability to interact with their friends, family and partners. They refer to fear, anxiety, panic attacks and loss of trust. Mr. Perrault's friends describe him as one of the most influential people they have met. They speak of his willingness to help people in need and his belief in the trustworthiness of all persons.
[36] Mr. Perrault's daughter, Cynthia Perrault, outlined Mr. Perrault's impressive accomplishments in the face of his own traumatic background of residential school, beginning at age five, where he suffered physical, sexual, emotional and spiritual abuse. Notwithstanding the overwhelming difficulty of escaping from the trauma of his background, Mr. Perrault graduated from high school, worked on his reserve as a Teacher's Aide, a Community Health Care Aide and a Social Worker. He then attended Lakehead University and received his Bachelor of Arts and Honours Bachelor of Arts. He worked at Family and Children's Services in Thunder Bay, as a Customary Care Co-ordinator at the Native Child and Family Services in Toronto, with Weechi-it-te-win Family Services in Fort Frances as a Community Liaison Co-ordinator and at an Aboriginal social service agency in British Columbia. In 1997, he received his Master's Degree of Social Work from Lakehead University. Unfortunately, he subsequently suffered a stroke, which put an end to his ability to work.
[37] Mr. Perrault is described as an excellent provider, caregiver, father, a down to earth, funny, hardworking, caring and respectful man.
Expression of Remorse
[38] The author of the pre-sentence report states that Ms. Jourdain had little recollection of the events surrounding the charge. However, she did express to the author a great deal of remorse for her actions and remorse for the loss suffered by the victim's family.
Legal Parameters
[39] Manslaughter carries a maximum of life imprisonment. However, s. 463(a) of the Criminal Code provides that a person who is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused may be sentenced to imprisonment for life, is liable to imprisonment for a term not exceeding 14 years. There is an exception for conviction of accessory after the fact to murder. In such cases, the maximum punishment is imprisonment for life under s. 240 of the Criminal Code.
[40] Accessory after the fact is defined in s. 23(1) of the Criminal Code.
23 (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
Position of the Crown
[41] The Crown submits that Ms. Jourdain should receive a sentence of four years imprisonment, subject to enhanced credit for time served of 27 months, leaving an effective sentence of a further one year and nine months imprisonment.
Position of the Defence
[42] The defence submits that the 27 months of pre-sentence custody, together with the imposition of three years of probation will satisfy the principles of denunciation and general deterrence, which are prominent sentencing principles for this offence.
Principles of Sentencing
[43] The fundamental purpose of the criminal law is the protection of society. This principle has been codified in s. 718 of the Criminal Code which emphasizes that the fundamental purpose of sentencing is to encourage respect for the law and the maintenance of a "just, peaceful and safe society" by imposing just sanctions. These sanctions must have one or more of the following objectives:
• to denounce unlawful conduct;
• to deter the offender and other persons from committing crimes;
• to separate offenders from society, where necessary;
• to assist in rehabilitating offenders;
• to provide reparations for harm done to victims or to the community; and
• to promote a sense of responsibility in offenders and an acknowledgement of harm done to victims and to the community.
[44] The principle of denunciation focuses on the conduct of the offender, not on the personal characteristics of the offender. It is a public expression of society's attitude towards an offence committed, an expression of society's disapproval of an act that encroaches on our society's basic code of values. The principle of general deterrence seeks to provide a threat or an example to others in order to discourage crime by making it clear that criminal behaviour will result in punishment. Rehabilitation mandates punishment to fit the offender. It is aimed at the renunciation by the offender of his or her wrongdoing and his or her re-establishment as an honourable, law-abiding citizen. Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Every sentence must meet this fundamental and overarching principle of proportionality. The punishment must fit the crime.
[45] Section 718.2 directs that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Section 718.2 also requires the sentencing court to take into consideration, among others, these principles:
• a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances;
• an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;
• 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.
[46] It is essential that the sentencing court consider and blend all the relevant sentencing principles.
[47] Because Ms. Jourdain is an Aboriginal offender, it is important to firstly consider the principles in Gladue, as reviewed by the Supreme Court of Canada in R v. Ipeelee, [2012] S.C.R. 433 (S.C.C.), and as discussed by the Court of Appeal in R. v. Kakekagamic (2006), 2006 28549 (ON CA), 81 O.R. (3d) 664 (C.A.). R. v. Whiskeyjack (2008), 2008 ONCA 800, 93 O.R. (3d) 743 (C.A.), R. v. Jacko, 2010 ONCA 452 (CA) and R. v. Collins, 2011 ONCA 182 (CA).
[48] Ipeelee emphasizes that the overrepresentation of Aboriginal people in Canadian prisons was the impetus for the specific reference to Aboriginal people in s. 718.2 of the Criminal Code. In speaking about Gladue's response to this "sad and pressing social problem," Lebel J. states at paras. 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, 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.
[49] The systemic and background factors may bear on the culpability of the offender. They are mitigating in nature in that they may diminish the moral blameworthiness of the offender: Ipeelee at para. 73. The types of sanctions which may be appropriate also bear not only on the degree of culpability of the offender but on the effectiveness of the sentence itself: Ipeelee at para. 74. In R. v. Jacko, at para. 61, Watt J.A. expands on this second set of circumstances: As Gladue teaches, "it is important to recognize that, for many, if not the vast majority of Aboriginal offenders, our current sentencing concepts have not responded to the needs, experience and perspectives of Aboriginal people or Aboriginal communities: Gladue, at para 73."
[50] Ipeelee emphasizes the distinct history of Aboriginal people. At para. 77, Ipeelee holds: "The overwhelming message emanating from reports and commissions on Aboriginal peoples' involvement in the criminal justice system is that current levels of criminality are intimately tied to the legacy of colonialism..."
[51] Ipeelee discusses two errors which have arisen in the jurisprudence applying s. 718.2(e).
[52] Firstly, some cases have erroneously suggested that there is an onus on an Aboriginal offender to prove a causal link between background factors and the offence in question before those factors may be considered by the sentencing judges. There is no such evidentiary burden.
[53] Secondly, some courts have erroneously interpreted Gladue to mean that it does not apply to serious or violent offences. Ipeelee holds that application of the Gladue principles is required in every case involving an Aboriginal offender.
Mitigating and Aggravating Factors
[54] The mitigating factors on this sentencing are:
• Ms. Jourdain's background and personal circumstances as an Aboriginal offender with systemic issues including the aftermath of the residential school experiences of her mother and father.
• Ms. Jourdain was the victim of neglect, sexual abuse, violence and racism. She began substance abuse at age 10 which continued through to this offence.
• While in pre-sentence custody, Ms. Jourdain took and completed every course available to her. Upon her release from bail, she has engaged in counselling with a variety of services and has continued to take and complete multiple programs directed at understanding and resolving the issues that have derailed her life. She is prepared to enter a residential treatment program as a term of a probation order and has taken steps to be accepted into the program as early as possible after this sentencing.
• Ms. Jourdain participated in the offence as an accessory after the fact, not as a principal or an aider or abetter.
• She has expressed great remorse for her criminal act.
• Ms. Jourdain co-operated fully and was forthcoming in the preparation of the pre-sentence report and the Gladue Report.
• She entered a plea of guilty.
[55] The aggravating factors are:
• Acting as an accessory after the fact frustrates the legitimate investigation of crime. It is a serious offence. See Watt J. (as he then was) in R. v. Wisdom, [1992] O.J. No. 3110 (S.C.S.).
• Ms. Jourdain's involvement was not transient; it was significant in nature, extent and duration.
• There is no evidence that Ms. Jourdain was threatened or coerced by Mr. Grover to conceal Mr. Perrault's body.
• Ms. Jourdain participated in taking Mr. Perrault's money from his account and, with Mr. Grover, used the money to feed her drug addiction.
• Ms. Jourdain has a criminal record of approximately 10 offences, dating between 1989 and 2004. Her longest period of incarceration prior to this offence was 120 days for driving with more than 80 milligrams of alcohol in her blood. That was her third drinking and driving conviction.
Discussion
[56] I am satisfied that the systemic factors discussed in Gladue and Ipeelee, including the residential school experiences of her parents, have played a pivotal role in the life which Ms. Jourdain has led. Ms. Jourdain experienced repeated sexual assaults beginning at age three, substance abuse at age 10, a childhood of neglect, physical abuse and racism, and life on the streets at age 14. Ms. Jourdain's path to a destructive lifestyle as an adult was laid out for her from the beginning.
[57] Viewed from this perspective, the insight which Ms. Jourdain appears to have acquired since her arrest, as to the causes and symptoms of her destructive lifestyle, and the steps which she has taken to address those issues, both while in custody and while on bail, must be recognized.
[58] In R. v. Wells, 2000 SCC 10, the Supreme Court of Canada held that while the objective of restorative justice applies to all offenders, the requirement to pay "particular attention to the circumstances of Aboriginal offenders" recognizes that most traditional concepts of sentencing hold restorative justice to be the primary objective.
[59] In imposing a fit and just sentence on Ms. Jourdain, the Gladue and Ipeelee principles also require consideration of the impact that the systemic factors present in Ms. Jourdain's case have had on the indigenous population at large and the fact that because of those systemic factors, Aboriginal offenders are seriously overrepresented in Canada's prison population.
[60] These considerations must have a tangible impact on the appropriate sentence for Ms. Jourdain to give meaning to the remedial provisions of s. 718.2(2) and the forceful directives in Gladue and Ipeelee.
[61] I have been referred to three decisions where the accused was an accessory after the fact to manslaughter: R. v. Chouinard, [2005] O.J. No. 3143 (S.C.J.); R. v. Gilbert, 2006 NSPC 58 (Prov Ct); and R. v. Nicholas, [2009] N.B.J. No. 404 (Q.B.).
[62] In Chouinard, the accused was a 34 year old Aboriginal woman with a background similar to that of Ms. Jourdain. She was present during a brutal beating to death of the victim. Her role after the beating was to discuss with others the disposal of the body and to participate in the disposal and to clean up the scene of the killing. In Chouinard, Justice Ratushny held that a period of incarceration of 36 months would be appropriate. She credited the accused, on a two for one basis, with 14 months time served and imposed a conditional sentence of 22 months.
[63] In Gilbert, there were two accused of Aboriginal heritage, a young man and his mother. The young man was given the knife used to kill the victim, immediately after the stabbing. He took the knife to his apartment and hid it. Later, his mother instructed his girlfriend to retrieve the knife and give it to her. The mother refused to disclose what she did with that crucial piece of evidence. The Provincial Court judge imposed a conditional sentence of two years less a day.
[64] In Nicholas, the accused was an Aboriginal woman who, after the victim had been choked to death by the principal offender, helped the principal to wrap the body in a blanket. On leaving the victim, they took his keys and his wallet. They took his truck. The accused tried unsuccessfully to use the victim's credit card to buy gas for the truck. The truck was later abandoned on the side of the road after a tire had blown. The sentence imposed was two years imprisonment, based on a joint submission of the Crown and defence.
[65] I accept the submission of defence counsel that the time that Ms. Jourdain has spent in pre-sentence custody satisfies the sentencing principles of denunciation and general deterrence. It is in line with the sentences imposed in those few cases that have concerned an accessory after the fact to manslaughter. In none of the three cases to which I was referred had the accused completed the many programs and taken the counselling services which Ms. Jourdain did after her arrest to address the issues which have led her to this crime and to improve her position and herself.
[66] Although Ms. Jourdain has a criminal record, there is a 10 year gap prior to this offence.
[67] There is a marked distinction in this case between the moral culpability of Mr. Grover, as principal in the manslaughter, and Ms. Jourdain as an accessory after the fact. Parity of sentences of the two offenders is not a factor.
[68] It is important to sentence in an individual manner that incorporates Ms. Jourdain's personal circumstances. Rehabilitation is realistically achievable in this case. To return Ms. Jourdain to prison, would, in my view, be counterproductive to her rehabilitation. A further period of incarceration would not serve the ends of restorative justice. The community and the offender are better served by continuing the steps that have been taken, including providing cultural supports to promote healing and the reintegration of Ms. Jourdain as a productive member of society.
Conclusion
[69] Ms. Jourdain spent 18 months in pre-sentence custody. She is entitled to credit for 27 months incarceration. A sentence of 27 months would be appropriate in the circumstances of this case and in the circumstances of this offender. A sentence of "time served" is not, however, a legal sentence. I therefore sentence Ms. Jourdain to imprisonment for one further day, deemed to be served in court today.
[70] In addition to this sentence, Ms. Jourdain shall be bound by a probation order for a period of three years to abide by the following conditions as set out in Schedule A.
"original signed by"
Regional Senior Justice D. C. Shaw
Released: December 20, 2016
CITATION: R. v. Jourdain, 2016 ONSC 7890
COURT FILE NO.: CR-15-0032
DATE: 2016-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
- and -
Alyssa Jourdain,
Accused
REASONS FOR JUDGMENT
Shaw R.S.J.
Released: December 20, 2016
/sab