[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): R. v. Proulx, 2022 ONSC 3686

COURT FILE NO.: CR-20-99

DATE: 2022/06/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PRESTON PROULX

Defendant

M. Crystal, for the Crown

G. Clark, for the Defendant

HEARD: June 16, 2022

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the victim may not be published, broadcast or transmitted in any manner. These reasons have been anonymized to permit their publication.

REASONS FOR DECISION ON SENTENCE

Ellies R.S.J.

OVERVIEW

[1] For reasons delivered on March 8, 2022 (2022 ONSC 1495), Mr. Proulx was found guilty of forcibly confining, threatening, assaulting, and sexually assaulting B. W. He is before me now for sentencing.

[2] Crown counsel seeks a global sentence of five years imprisonment, less some credit for the restrictive bail conditions to which Mr. Proulx was subject since his arrest on the charges in March 2019. Defence counsel submits that a global sentence of exactly two years (the minimum penitentiary sentence) is more appropriate.

[3] I agree with the submission of counsel for the defence. To explain why, I will begin with a brief discussion of the purpose and the relevant principles of sentencing before moving to a discussion of the circumstances in which those principles must be applied in this case.

THE FUNDAMENTAL PURPOSE OF SENTENCING

[4] As codified in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46, the fundamental purpose of sentencing is to protect society and to contribute to respect for the law by denouncing unlawful conduct, deterring the offender and others from committing crimes, and rehabilitating offenders, among other things.

[5] Where a victim is vulnerable because she is both female and Indigenous, as she was in this case, s. 718.04 of the Code requires the sentencing court to prioritize denunciation and deterrence over the other methods available to achieve sentencing's fundamental purpose.

THE FUNDAMENTAL PRINCIPLE OF SENTENCING

[6] However, even where denunciation and deterrence are paramount, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is the fundamental principle of sentencing. While the principle is codified in s. 718.1 of the Code, it is a principle of constitutional, and not merely statutory, importance: R. v. Ipeelee, 2012 SCC 13, at para. 36. Thus, even where the Code requires a court to prioritize denunciation and deterrence, a sentencing judge retains the discretion to accord significant weight to other factors in arriving at a fit sentence: R. v. Friesen, 2020 SCC 9, at para. 104.

[7] When sentencing an Indigenous offender, the degree of responsibility of the offender must be assessed in light of the shameful history of the federal government's campaign to wipe out the culture of Indigenous Canadians and the devastating effect that campaign has had on subsequent generations of Indigenous people: s. 718.2(e); Ipeelee, at para. 73. To do otherwise is to perpetuate, not ameliorate, the harm done to our country's first inhabitants.

SENTENCING GUIDELINES

[8] To achieve the fundamental purpose of sentencing, while at the same time respecting its fundamental principle, the Code requires a sentencing court to consider certain circumstances as aggravating. As I will come to, several are relevant here.

[9] Against these presumptively aggravating circumstances, the Code requires the court to exercise restraint in the sentencing process. Section 718.2(d) provides that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate. Section 718.2(e) provides that all available sanctions other than imprisonment should be considered where they are reasonable in the circumstances and consistent with the harm done "with particular attention to the circumstances of Aboriginal offenders."

[10] I turn now to the task of applying these principles to achieve the fundamental purpose of sentencing in this particular case.

APPLICATION TO THIS CASE

Statutory Restrictions

[11] I begin by considering the statutory restrictions on the sentence I am permitted to impose.

[12] The submissions made by both counsel recognize that this is not a case in which a non-custodial sentence would be appropriate. Because Mr. Proulx has been convicted of sexual assault in a proceeding prosecuted by indictment, s. 742.1(f) of the Code precludes the possibility of a custodial sentence being served in the community as a conditional sentence.

[13] The issue, therefore, is not whether Mr. Proulx must be imprisoned, but for how long.

Range of Sentence

[14] On behalf of the Crown, Mr. Crystal submits that the appropriate range of sentence in this case is three to five years imprisonment on the sexual assault charge: R. v. Bradley, 2008 ONCA 179, at para. 18. He submits that an appropriate sentence on that charge would be four years and that a further consecutive sentence of one year should be imposed on the charge of forcible confinement.

[15] On behalf of Mr. Proulx, Mr. Clark submits that the appropriate range of sentence for the sexual assault is twenty-one months to four years. He relies on the decision in R. v. Smith, 2011 ONCA 564, at para. 87, although he concedes that the decision in Smith preceded certain relevant amendments to the Code, including s. 718.04 (relating to the vulnerability of Indigenous females).

[16] I do not believe it is necessary for me to resolve the apparent conflict in these submissions. While these submissions are helpful, sentencing ranges serve as guidelines in sentencing, and not as hard and fast rules: Friesen, at para. 37. I do not believe that I am constrained to a minimum sentence of three years on the facts of this case for reasons I will now explain.

[17] I will begin by examining the aggravating circumstances before turning to those that I believe are mitigating.

Impact on the Victim

[18] The victim, B.W., is Indigenous. However, she managed to pull herself out of a cycle that is often very difficult for many Indigenous people to escape. At the time of the trial, she had completed one college degree and was working on another. She impressed me while giving her evidence as an intelligent, articulate young woman.

[19] Ms. W. took Mr. Proulx in after he was discharged from the North Bay Regional Health Centre and was instrumental in keeping him sober until the evening of the events that bring us together. It is not surprising, therefore, that these events have had a significant impact on her. In the Victim Impact Statement admitted on consent, she relates how she became deeply depressed, failed in her efforts to obtain another college degree, was afraid to leave her home, and developed a condition in which she is afraid to swallow as a result of being choked, among other things.

[20] Ms. W’s Indigenous background, her history as Mr. Proulx’s intimate partner, and the significant impact these offences have had on her are all aggravating factors in sentencing: ss. 718.2(a)(ii), 718.2(a)(iii.1), and 718.201.

Lack of a Criminal Record

[21] I begin my review of the mitigating factors by considering whether Mr. Proulx has a criminal record.

[22] Although Mr. Proulx was convicted of an offence in 2017, the Crown concedes that he is to be treated as a first offender because he was granted a conditional discharge on that offence which discharge later became absolute: R. v. Montesano, 2019 ONCA 194.

The Offender's Indigenous Background

[23] In my view, one of the most significant mitigating factors in this case is Mr. Proulx's Indigenous background.

[24] Mr. Proulx was born in Moose Factory. He is a member of the Fort Severn First Nation, a small Cree community of about 400 people located on the north bank of the Severn River, near Hudson's Bay. He is a "Status Indian" under the Indian Act, R.S.C. 1985, c. I-5. His mother is Indigenous. Mr. Proulx's maternal grandmother attended St. Anne's Residential School in Fort Albany. St. Anne's is perhaps best known for its use of an electric chair as a means of punishing the students forced to attend there.

[25] Mr. Proulx's maternal grandparents had seven children and no money. Mr. Proulx's mother slept on the floor of their home with her younger brother until her teens, when she began to sleep beside her parents' bed. What money her parents had seems to have been spent on alcohol because she told the author of the Gladue report that she would be shipped off to her uncle's home every weekend, when her parents would drink.

[26] Mr. Proulx's mother married a non-Indigenous man and they had two children together. However, as Mr. Proulx discovered later in life, his father has a son from another relationship. For the balance of these reasons, I will call Mr. Proulx by his first name, so as to be able to distinguish him from his father, Daniel Proulx.

[27] Like his mother, Preston grew up in Moosonee, another isolated community, this one located on the banks of the Moose River, near the shore of James Bay. While Moosonee is larger than Fort Severn, it does not offer a great deal more opportunity for young people to flourish. Nonetheless, Preston’s early childhood seemed to have progressed as well as it could. His father had a job as a shop teacher at the local high school and his mother worked from time-to-time.

[28] Preston was quite close to his father when he was young, but when he was about nine years old, his father got very busy building his maternal grandparents a home and Preston saw less of his father as result. The trade-off was that he became quite close to his grandparents, who moved into the Proulx family home while their own house was being built.

[29] Young Preston’s life changed significantly when he was about nine years old. That is when his mother had an affair and then abandoned her family, leaving her husband alone with Preston and his sister. From that point forward, Preston’s father began to drink heavily. His drinking led to other problems, including emotional and financial difficulties. Things got so bad that the family would have to go without hydro sometimes.

[30] The senior Mr. Proulx’s drinking led to another problem for Preston: physical abuse. The author of the Gladue report quotes Preston as saying (at p. 15):

My dad would discipline me as a child through beating me from what I remember and through his aggression from alcohol use. I guess I thought it was him being a good father and it made me think that discipline through physical contact was okay going forward, which it was not.

[31] Preston’s sister did not do well after their mother left. She attempted suicide. Preston, on the other hand, seemed to do better, at least at first. He got a job working outside of the home to help his father pay the bills, became involved in sports, and managed to save enough money to attend hockey school for two months one summer in Ottawa when he was about 16. When he returned to Moosonee, he resumed working at various jobs, in some of which he assumed significant degrees of responsibility.

[32] After graduating from high school, Preston was accepted into the paramedic program at Northern College, in Timmins. However, he decided instead to pursue his dream of playing hockey, eventually playing Tier II Junior A Hockey in Mattawa during the 2014-2015 season. Unfortunately, he suffered a knee injury and was unable to continue to play hockey at such a high level. Preston moved back to his father’s home in Moosonee and back into the work force.

[33] Throughout this time, there was a problem luring in Preston’s background. Like so many of the young people in Moosonee, he began drinking and doing drugs at a young age. When his maternal great-grandmother and his maternal grandfather both died in 2015, Preston’s problem with alcohol moved to the forefront.

[34] In 2017, Preston was charged with a criminal offence. The charge was later withdrawn when he was exonerated by DNA analysis, but the stigma of being charged in a small community remained. Preston’s drinking problem grew worse. Eventually, he became suicidal. That was when he was flown to North Bay and when the victim, B.W. entered the picture. Preston managed to stay sober from the time he went to live with Ms. W. in May 2018 until at or about the time he committed these offences in March 2019.

[35] I view Preston’s Indigenous background as a significant mitigating factor not just in the abstract, but as a concrete contributing factor in the commission of these offences.

[36] I view the assault that occurred in the parking lot outside Ms. W.’s apartment as a reflection of the violence that Preston suffered at the hands of his father. I view the involvement of alcohol in all of the offences as a manifestation of the effect of Canada’s efforts to solve the so-called “Indian question” referred to at page 15 of the Gladue report. As the report outlines, alcohol was a problem for Preston’s maternal grandparents and for his parents. It is not surprising, then, that it became a problem for him, too.

Onerous Bail Conditions

[37] As both counsel have urged me to do, I also view the terms of Preston’s pre-trial release order to be a mitigating factor: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.), at para. 36.

[38] At the time he was charged with these offences, Preston was employed locally. He later began working for the Ontario Northland Railway. His job required him to travel the rail line extensively. Although it was varied several times, for a period of time, the release order required Preston to provide the police with 48 hours notice before relocating for work purposes. This was an onerous condition.

[39] As I understand it, the release order prevented Preston from attending two very important funerals. Notwithstanding his father’s shortcomings, Preston was very close to his dad, who was really the only parent he knew for most of his life. His father died in March 2021.

[40] As I mentioned earlier, when Preston was between the ages of 16 and 18, his father admitted that he had another son. Preston’s step-brother died in an accident in August 2021.

[41] According to the submissions of Mr. Clark, Preston was not able to attend either funeral because of the terms of his release and the difficult process involved in having them varied.

Strong Potential for Rehabilitation

[42] I come now to what I view as the most significant mitigating factor in this case: Preston Proulx’s strong potential for rehabilitation.

[43] As I highlighted earlier, notwithstanding the nature of his upbringing, Preston always managed to find and maintain employment, often in jobs with significant responsibility. He managed not only to help his father with the bills but saved enough to go to hockey school. When he returned to Moosonee after his hockey career was cut short, he returned to the work force, eventually becoming the store manager at a national furniture chain.

[44] When he was released from the hospital here in North Bay, he returned immediately to the work force, eventually training as a heavy equipment operator and working for a local municipality. Today, he has a responsible position as a track maintenance foreman/supervisor with the ONR.

[45] I see a great deal of potential in Preston. He has the intelligence and the drive to break free of the cycle that constrains so many people with his history. I fear that a sentence that is overly long will crush that drive and perpetuate the harm that has already been done to him as an Indigenous person.

CONCLUSION

[46] For all of these reasons, I impose the following sentences with respect to the following offences:

(a) With respect to the offence of sexual assault, two years imprisonment;

(b) With respect to the offence of forcible confinement, six months imprisonment. I could find no authority for Mr. Crystal’s submission that imprisonment in these circumstances should be consecutive to the offences that were committed during the confinement. Indeed, the only authority I was able to find was to the contrary: see, for e.g., R. v. D., 2018 ONSC 1198. The sentence, therefore, shall be concurrent;

(d) With respect to the offence of threatening, one month, concurrent.

[47] In addition, ancillary orders will issue as follows:

(a) A non-communication order with B.W. pursuant to s. 743.21 of the Code;

(a) An order for a DNA sample pursuant to s. 487.051 of the Code;

(b) An order for registration under the Sex Offenders Information Registration Act for 20 years, pursuant to s. 490.12 of the Code;

(c) An order prohibiting Mr. Proulx from possessing any firearm or other thing mentioned in s. 109 for a period of 10 years, as required under s. 109(2) of the Code; and

(d) An order for payment of the required Victim Fine Surcharge under s. 737 of the Code.

M.G. Ellies R.S. J.

Released: June 20, 2022