COURT FILE NO.: 8311/20
DATE: 2022-06-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Woods, Counsel for the Crown
- and -
TERRY BELLEAU
A. Hagan, Counsel for the Accused
Accused
HEARD: January 26, 2022
VARPIO J.
REASONS FOR SENTENCE
[1] On October 29, 2021, I found Mr. Belleau guilty of two counts of pointing a firearm contrary to section 87 of the Criminal Code of Canada, one count of assault, one count of assault with a weapon, and one count of mischief to property (2021 ONSC 6977).
[2] The Crown seeks an upper reformatory sentence. It submits that denunciation and deterrence demand such a term of imprisonment.
[3] Mr. Belleau submits that a conditional sentence is appropriate given the Gladue factors at play, as well as the governing jurisprudence.
FACTS
The Victim
[4] Ms. Belleau submitted a Victim Impact Statement. In that document, she stated that she is "broken, tired, warn down [sic] scared, powerless, full of anger and hate". Although it was never explicitly stated in the document, these emotions appear to stem from years of abuse suffered at the hands of the accused and, presumably, from the offences themselves. She described the fact that she "still cannot sleep, the nights I do sleep I sleep ever so lightly because I continue to live in the life I left over two years ago; a life I lived for 17 years".
[5] Ms. Belleau stated that she has learned to hate the person that she has become as she awaits "the consequences [of] the next drunken rage". She described in some detail about how the patterns of abuse result in the physiological need for cortisol, whereby Ms. Belleau cannot not function without the perpetual highs and lows associated with the physiological need for adrenaline. This need caused her to reach out for counselling.
[6] Ms. Belleau has also suffered financially as a result of reporting the crime to the police as she has consolidated the loans that she and her ex-husband accumulated over the course of the relationship.
[7] Ms. Belleau wrote that she now lives with "daily" triggers, "[s]omething as small as quick changes in movement without me understanding why or being caught of [sic] guard is something that is still very hard and triggering for me. I tend to stay within my own circle because these are the people I know I can trust". She described her ongoing journey as follows:
Nothing will bring me justice; nothing will take this way of life from me. The only person who will heal me is me. I have to find it in me to overcome everything that I learned and lived through from the age of 15. No amount of money, no amount of time behind bars, no amount of distance between him and myself will fix me, running from who I am at that specific moment will not fix me. It may relieve some stress, it help me in that particular moment, it may tear my family apart, it may destroy the things that I have built thus far. There is so much unknown to what will fix me that most days I do not think there is a way to "fix" me. Some days are harder than others. More days than none I think I have this new way of life I truly believe I'm making progress; I've escaped the life that made me this person. Then its something as small as the tone in someone's voice, the way a person is walking, the smell of the room or the person passing that closes the walls in and makes me feel as if I am drowning. Some days I want to run, leave the country start a new life, then I come back to reality and remember I can do whatever I need to but I need to heal me to make a better me no matter where I am in the world or where he is in the world. I continue to allow him to have this over me. It may not be intentional it may not be the goal for him but this is reality for me, this is my life daily, this is me struggling with me every minute and every hour of the day, this is the life of Jessica, when will it stop, when will I find the normal life, when will I be fixed?
The Offender
[8] A Pre-Sentence Report ("PSR") was filed with the court. Mr. Belleau has no criminal record. It described his indigenous heritage.
[9] The PSR states that Mr. Belleau was bullied in school, and called names like "dumb and wagon burner". He struggled academically and was diagnosed with ADHD.
[10] He has worked at the family gas station for as long as he can remember, although he tried a stint as a roofer.
[11] Mr. Belleau used marijuana and cannabis oil starting in high school. He was a binge drinker, but has stopped binging.
[12] He dealt with considerable trauma in his life including the sudden death of his older brother when he was young, as well as anxiety and depression for which he is seeking counselling. He has also disclosed that he was the victim of a sexual assault. Mr. Jay Nixon, Case Manager with the Garden River Wellness Centre, confirmed to the PSR writer that Mr. Belleau has been actively involved with that organization since January 2019. The PSR writer stated:
Mr. Nixon explained how the subject has kept all appointments as scheduled, has been conscientious, motivated and is seeking supports within the community. Mr. Nixon stated during his involvement, the subject has been "open, forthcoming and has demonstrated a desire to change for the better and pursue optimal well being in all aspects of life including, but not limited to, mental health, financial security, familial harmony and psychosocial stability". In advocacy, Mr. Nixon stated, "I believe the Court process has been punitive and a deterrent for future negative behaviours. In my 35-years of employment in human services, to be this stringent in my advocacy is rare. I am only doing so as this case seems exceptional in terms of the efforts of the client in a good way."
[13] The PSR writer also quoted Ms. Bethany Higgins, Mental Wellness Counsellor, Psychotherapist with Maamwesying North Shore Community Health Services. Ms. Higgins has been working with Mr. Belleau since January 2022 and the PSR writer stated that "[a]lthough not formally diagnosed, [Ms. Higgins] noted the subject presents with 'signs of severe anxiety'". Ms. Higgins outlined a treatment plan to the PSR writer including Cognitive Behavioural Therapy work and coping strategies. Ms. Higgins stated to the writer that she is "genuinely impressed with his level of engagement, openness, honesty and authentic commitment to bettering himself. I believe him to be a person of character who recognizes his decisions and how they impact those around him".
[14] Of note, the PSR writer stated:
When asked about the offences before the Court, the subject does not accept ownership for the charges he was convicted of. He recognizes he played a role in the marital breakdown, especially how his use of alcohol negatively affected the relationship. He accepts responsibility for his role in verbal and emotional abuse, lack of communication and lack of respect however stated he did not perpetuate any physical violence in the relationship.
[15] In fact, the offender claimed that he received physical, mental and emotional abuse at the hands of Ms. Belleau.
[16] As a result of the foregoing, the PSR writer opined:
Given his current motivation to address areas in his life that would reduce his risk to reoffend and his pledge to continue with counselling and programming, the subject is suitable for any term of community-based supervision as deemed appropriate by the Court.
[17] Mr. Belleau filed letters from Mr. Nixon and Ms. Higgins describing the positive efforts undertaken by Mr. Belleau in his therapeutic and other sessions. These letters outline commendable aspects of Mr. Belleau's efforts and personality.
[18] The offender filed letters of support from Ms. Katie Solomon (who is married to Mr. Belleau's cousin), Chief Andy Rickard and Counsellor Dan Tice of the Garden River First Nation.
[19] Mr. Belleau also filed a letter from the Big Arrow gas station describing his employment duties.
[20] A Gladue report was prepared for the court. Mr. Belleau is a member of the Garden River First Nation. Mr. Belleau's grandfather attended the Spanish Residential School for five years. His parents attended the Garden River Roman Catholic Indian Day School. Mr. Belleau's grandfather and parents either suffered, or observed, many of the horrors described far too often as being daily features of residential school or "Indian Day School" such as physical, psychological and sexual abuse.
[21] Alcoholism was a feature of Mr. Belleau's grandparents' lives, which undoubtedly affected subsequent generations. Indeed, Mr. Belleau's father drank to excess until his mother forced his father to quit.
[22] Mr. Belleau suffered the loss of his teenage brother when Mr. Belleau was six years old. The brother died in a fire.
[23] Mr. Belleau did not participate in a "traditional" indigenous lifestyle growing up.
ANALYSIS
Sentencing Principles Contained Within the [Criminal Code of Canada](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[24] Section 718 of the Criminal Code of Canada describes the general principles to be considered in sentencing offenders:
Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[25] Section 718.04 of the Criminal Code deals with the principles to be applied with respect to vulnerable victims, including indigenous females:
Objectives — offence against vulnerable person
718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
[26] Section 718.2 of the Criminal Code provides further direction regarding the application of those principles:
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii) evidence that the offender, in committing the offence, abused the offender's intimate partner or a member of the victim or the offender's family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[27] The Crown and the defence appear to agree that deterrence and denunciation must be primary considerations when sentencing an offender in this situation: see R. v. Sidhu, 2011 ONCA 139; R. v. Smith, 2011 ONCA 564; R. v. Boucher, 2004 CanLII 17719 (ON CA), [2004] O.J. No. 2689 (CA); R. v. Smith, [1999] OJ. No. 2694 (CA); and R. v. O'Neill, [2009] O.J. No. 5926 (Sup Ct). This statement of law is trite given that extended periods of spousal abuse and the use of firearms clearly ought to attract meaningful custodial sentences given the need to denounce and deter that conduct.
[28] The parties differ, however, on the impact of the Gladue principles as it relates to Mr. Belleau's status as an indigenous person and whether the restorative features of the Gladue principles are such that a conditional sentence is appropriate in the circumstances.
Gladue and Ipeelee
[29] In R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, the Supreme Court of Canada enunciated principles regarding the sentencing of indigenous offenders. These principles were revisited in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. At para. 59 of Ipeelee, the majority of the Supreme Court reaffirmed the principles initially described in Gladue:
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).
[30] At para. 60 of Ipeelee, the majority also described those matters about which the court must take judicial notice:
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.
[31] The offender need not show any causal links as between his or her background as an indigenous individual and the commission of criminal offences (Ipeelee at para. 82).
[32] Equally, I must be cognizant of the fact that, per para. 79 of Gladue,
[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, event taking into accounts their different concepts of sentencing.
[33] However, at paras 84 to 87 of Ipeelee, the majority of the Supreme Court cautioned against placing an overemphasis on the passage quoted in the preceding paragraph. In particular, the majority stated at para. 85:
Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear that sentencing judges have a duty to apply s. 718.2(e): "There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence" (Gladue, at para. 82). Similarly, in Wells, Iacobucci J. reiterated, at para. 50, that
[t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender.
This element of duty has not completely escaped the attention of Canadian appellate courts (see, e.g., R. v. Kakekagamick (2006), 2006 CanLII 28549 (ON CA), 214 O.A.C. 127; R. v. Jensen (2005), 2005 CanLII 7649 (ON CA), 196 O.A.C. 119; R. v. Abraham, 2000 ABCA 159, 261 A.R. 192).
Conditional Sentences
[34] Section 742.1 of the Criminal Code states:
742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3.
[35] Section 752 of the Criminal Code defines a "serious personal Injury" offence:
serious personal injury offence means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or...
[36] In R. v. Proulx, 2000 SCC 5, the Supreme Court of Canada gave guidance regarding the imposition of conditional sentences at paras. 113 to 116:
In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender's prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim's wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code). This list is not exhaustive.
Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.
Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. I repeat that each case must be considered individually.
Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fit sentence. As La Forest J. stated in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 329, "[i]n a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender". There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations pursuant to s. 718.3.
[37] Finally, in R. v. Doering, 2020 ONSC 5618, Pomerance J. described the delicacy required of a sentencing judge at para. 3:
It is sometimes said that sentencing is an art rather than a science. As noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58: "It involves a variety of factors that are difficult to define with precision." That does not mean that judges exercise a free hand. The "art" - the discretion inherent in the exercise - is constrained by well-defined rules and principles. Discretion is necessary to ensure that the sentencing is an individual process, carefully tailored to the circumstances before the court. The ultimate goal is a sentence that is "proportionate to the gravity of the offence and the degree of responsibility of the offender" (s. 718.1 of the Criminal Code, R.S.C. 1985, c. C-46). This, in turn, calls for consideration of several factors. As it was put by Lamer C.J. (as he then was) in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327, at para. 91, sentencing is "a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community."
Application to the Instant Case
[38] As noted in these reasons, there are several principles engaged by this case but the crux of this decision boils down to a simple question: whether the accused's personal progress is such that the factors auguring for a conditional sentence overcome the need to emphasize deterrence and denunciation.
[39] A review of the salient factors of this case reveals that the following issues argue strongly in favour of incarceration:
The extended spousal abuse;
The vulnerable nature of the victim's existence given the fact that, on several occasions, she depended upon the accused financially. This vulnerability was enhanced by the fact that she lived with her in-laws for a period of time;
The seriousness of the firearms offence; and
The obvious impact that the years of abuse had upon the victim. She is only now recovering from same.
[40] Normally, these are the kinds of factors that would cause a court to reflexively impose a jail sentence given the crimes for which Mr. Belleau was found guilty. Extended spousal abuse that causes a victim to have long-term difficulties makes me think that a clear message needs to be sent to Mr. Belleau and the community that this kind of behaviour is simply unacceptable. The use of firearms in the promulgation of that abuse would normally demand that Mr. Belleau spend time in jail to ensure that the appropriate message is sent.
[41] The analysis is not, however, that simple.
[42] First, Ipeelee states that I must consider Mr. Belleau's status as an indigenous person and the impact that that has had upon his criminal conduct. His family suffered in residential school and that experience had a lasting impact. Although causation is not a factor to be considered under Ipeelee, it is clear that Mr. Belleau has suffered from the effects of his family's residential school experience, especially when one considers that he himself has struggled with alcohol and addiction.
[43] Second, Mr. Belleau's counsellors have been universal in their support for his rehabilitative prospects. Of especial note, Mr. Nixon has effectively stated that Mr. Belleau's strong prospect for rehabilitation is a rarity. I place considerable weight upon this statement as it would seem to indicate that Mr. Belleau's efforts and prospects for success are unique.
[44] Third, although Mr. Belleau has not shown contrition for his criminal actions, he has certainly accepted responsibility for many non-criminal actions he undertook within the context of the marriage.[^1]
[45] I must examine the factors described herein relative to the statement made in Proulx whereby the Supreme Court opined that, "[w]here a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration." This is just such a case. Had Mr. Belleau not made exceptional progress and had his counsellors not found him to be a unique candidate, it is unlikely that he would have received a conditional sentence given the need for deterrence and denunciation. In fact, I struggled making this decision as a result of the powerful need to emphasized deterrence and denunciation.
[46] Nonetheless, when I consider the fact that a combination of punitive and restorative objectives can be met with a conditional sentence in the unique circumstances of this case, I am comfortable that that is the appropriate result.
CONCLUSION
[47] Given the foregoing, I hereby sentence Mr. Belleau to a conditional sentence of two years less one day for the firearms charges. These sentences will run concurrently. The assault with a weapon, the assault and the mischief to property charges will receive absolute discharges.
[48] Mr. Belleau will be subject to house arrest for the entirety of the sentence save and except for work purposes, and for other situations as specified by counsel. I invite submissions regarding the terms of the conditional sentence including the need for continued counselling, cultural training and potential community service. I also require submissions regarding how access to children may affect the terms of this conditional sentence order.
[49] Mr. Belleau will be subject to two years of probation after the completion of the conditional sentence subject to the following terms:
- No contact, directly or indirectly, with Jessica Belleau or Amaya Gabcan except:
(i) through a third party for the purpose of arranging/facilitating child address;
(ii) in accordance with the conditions of a valid and subsisting family court order;
(iii) through and/or in the presence of counsel for the purpose of family court proceedings.
Possess no weapons as defined by the Criminal Code;
Not to possess or apply for any firearms licences;
Not be within 25 metres of the victim or her family's home, work, school or any place she or her family are known to be;
Report to probation as required; and
Counselling as directed, including PAR.
[50] Mr. Belleau will provide his DNA today in the courthouse as s. 267(a) of the Criminal Code is a primary compulsory offence.
[51] Mr. Belleau will be subject to a section 109 prohibition for a period of 10 years as per s. 267(a) of the Criminal Code.
[52] Mr. Belleau will forfeit the handgun seized as per s. 491 of the Criminal Code.
Varpio J.
Released: June 22, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TERRY BELLEAU
REASONS FOR SENTENCE
Varpio J.
Released: June 22, 2022
[^1]: Given Mr. Belleau's plea of "not guilty" and the presumption of innocence, Mr. Belleau's failure to accept responsibility for his criminal conduct is a non-factor that is hereby attributed no weight.