R. v. Boissoneau, 2022 ONSC 6049

COURT FILE NO.: 8558/22

DATE: 2022-10-26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

K. Pritchard, Counsel for the Crown

• and -

J. Belisle, Counsel for the Defendant

ASHLEY BOISSONEAU

Defendant

HEARD: October 19, 2022

VARPIO J.

REASONS FOR SENTENCE

FACTS

1On October 19, 2022, Ms. Ashley Boissoneau plead guilty to unlawful possession of a firearm (contrary to section 91(1) of the Criminal Code of Canada), careless use of a firearm (contrary to section 86 of the Criminal Code of Canada) and possession of a weapon for the purpose of committing an offence (contrary to section 88 of the Criminal Code of Canada).

2The facts as accepted by the offender are that, on October 3, 2020, Ms. Boissoneau was residing at her home on Garden River Reserve. Her brother lived in the house beside her. Ms. Boissoneau’s domestic relationship had ended, and her ex-partner moved in with her brother.

3A disagreement ensued on the day in question. The parties (the offender, the brother and the ex-partner) were outside the brother’s residence at various points. At 1:40 a.m., the police were called to the brother’s residence to assist with a domestic complaint regarding the offender. The brother told police that the offender was “doing donuts” and threw the ex-partner’s belongings onto the brother’s driveway. During the course of the call, the brother stated that Ms. Boissoneau had returned to the brother’s residence with a gun.

4At 1:47 a.m., the police arrive on scene, and they saw the brother in a frantic state. The brother stated that Ms. Boissoneau had returned with a rifle and that she had fired one shot, about fifty feet away from her brother.

5At 3:45 a.m., containment was set up around Ms. Boissoneau’s residence and at 4:05 Ms. Boissoneau came out of the residence and was arrested, read her rights to counsel and cautioned. She admitted to firing the gun, but not at her ex-partner. Ms. Boissoneau’s teenaged daughter was present in the house at this time.

6Police searched the area and found a Winchester rifle in the bushes near the residence.

7Ms. Boissoneau was in custody from October 4, 2020 to December 7, 2020 (65 days) and then from October 23, 2021 to today (369 days) for a total of 432 days’ time served, or 648 days with enhanced 1.5 to 1 credit.

8No Victim Impact Statements were filed, and the Crown conceded that the brother and the ex-partner have not participated in the process.

POSITIONS OF THE PARTIES

9The Crown submits that, in normal circumstances, a penalty in the range of four years would be the tariff but, given the Gladue factors and the unique circumstances of this case, a sentence of two years less one day minus time served would be appropriate. This would equate to an approximate 79-day sentence from today.

10Ms. Boissoneau submits that the unique circumstances of this case are such that a sentence of time served is appropriate.

THE OFFENDER

11Ms. Boissoneau comes to the court as a 35-year-old woman with no criminal record.

12Both a Pre-Sentence Report and a Gladue Report were filed with the court.

13Ms. Boissoneau is the youngest of five children and she has a 13-year-old daughter who has numerous mental health and other issues.

14Ms. Boissoneau has been in counselling for several years for marijuana abuse. In her court filings, Ms. Boissoneau described the abuse she endured during a domestic relationship and her struggles to maintain sobriety.

15Ms. Boissoneau is an Ojibwe person from the Garden River First Nation whose maternal grandmother attended Shingwauk Indian Residential School in Sault Ste. Marie and whose mother attended Indian Day School in Garden River. Since her incarceration, she has taken considerable programming through the local custodial facility in an attempt to turn her life around.

THE LAW

The Criminal Code

16Section 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.

17Section 718.2 of the Criminal Code provides further direction regarding how to apply the principles of sentencing:

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,

shall be deemed to be aggravating circumstances;

(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.

The Governing Jurisprudence

18In 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).

19At 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.

20It is also clear that the offender need not show any causal links as between his or her background as an indigenous person and the commission of criminal offences (Ipeelee at para. 82).

AGGRAVATING AND MITIGATING FEATURES OF THE CASE

21The parties agree that the aggravating features of the case are as follows:

1. A firearm was used;

2. Children were present while the firearm was used;

3. The firearm was discharged in a residential area;

4. People were outside when the firearm was discharged;

5. The firearm was used to intimidate; and

6. The firearm was discharged in the context of a domestic dispute.

22The parties agree that the following are mitigating features of the case:

1. The guilty plea is a true expression of remorse since the case is not overly strong as against Ms. Boissoneau;

2. Ms. Boissoneau’s lack of a criminal record.

3. The Gladue factors are emphatic in this case in that Ms. Boissoneau and her family suffered from the ills of residential schools, sexual abuse and alcohol abuse;

4. The imposition of considerably more jail time could disproportionately affect Ms. Boissoneau’s daughter; and

5. The domestic situation as between Ms. Boissoneau and the ex-partner triggered post-traumatic issues for Ms. Boissoneau.

ANALYSIS

23I agree that the range described by both the Crown and the offender in this circumstance is appropriate. First, denunciation and deterrence must take the fore in sentencing Ms. Boissoneau given the inherent danger of the charges and the facts as agreed to.

24Also, I have no evidence that the victims were in any way traumatized by this event, nor do I have evidence that the danger caused to the community of Garden River was especially heightened given that the residences in Garden River are, as was conceded by all parties, akin to a rural/residential area rather than an urban one. The impact on the victim and the risk to the community was therefore not extreme.

25The determinative factor in this case is the weight to be attributed to the plea of guilt. The Crown’s case was certainly arguable but was not overwhelming. The victims’ lack of assistance, as was rightly conceded by the Crown, made the prosecution considerably more difficult since the prosecution would have had to rest upon:

1. Ms. Boissoneau’s statement to police;

2. The admission of the 911 recording as a res gestae exception to the hearsay rule; and

3. The seizure of the rifle.

26While it should not be suggested that the Crown’s case was weak, it cannot be stated that the Crown had an overwhelming case. Put another way, Ms. Boissoneau had a meaningful chance of being found “not guilty”. This fact puts a tremendous amount of weight on the show of remorse as evidenced by the plea of guilt. Exacerbating this phenomenon is the amount of counselling that Ms. Boissoneau has undertaken while in custody. She appears to be legitimately committed to rehabilitating herself and her plea must be considered in that light. Had the Crown’s case been somewhat stronger or had Ms. Boissoneau failed to improve her lot in life while in custody, a stiffer sentence would have been appropriate because the value of the plea as a show of remorse would be lessened.

27Given all the foregoing, Ms. Boissoneau’s submission reflects the appropriate balance as between aggravating and mitigating factors. Ms. Boissoneau shall be sentenced on all three counts, concurrently, as follows:

1. Time served of 432 days (for a credit of 648 days), plus one day;

2. Two-year term of probation with the following terms:

a. Report as directed to probation within 48 hours of release;

b. Counselling as directed by probation (PSR and Gladue Report to be sent to the probation officer);

c. No contact with Lee Boissoneau or Chris Robinson except with written consent filed with probation, which consent may be revoked at any time in any manner;

d. Not to attend Lee Boissoneau or Chris Robinson’s place of work, residence or school except with written revocable consent filed with probation, which consent may be revoked at any time in any manner.

28Ms. Boissoneau will be subject to a s. 110 order for a period of 10 years on all three counts.

29Ms. Boissoneau shall give a sample of her DNA to police as a secondary designated offence, as per findings of guilt under sections 91(1) and 88 of the Criminal Code of Canada.

30Ms. Boissoneau will be subject to a forfeiture order with respect to the firearms seized as per sections 115 and 491 of the Criminal Code of Canada.

Varpio J.