[1] 2013 MBPC 30 THE PROVINCIAL COURT OF MANITOBA

2013 MBPC 30 (CanLII)

BETWEEN: HER MAJESTY THE QUEEN - and JANELLE CORALEE FRANCOIS, Accused.

) ) ) ) ) ) ) ) ) _____

Mr. E. Hachinski, for the Crown Mr. D. Kiesman, for the Accused

Sentence delivered April 30, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

SLOUGH, P.J.

(Orally)

Dealing with this matter, Janelle Francois is a 20-year-old member of a First Nations community. She has entered a guilty plea on a charge of breach of probation. The Crown recommends a short period of incarceration, 30 days, in addition to time, pardon me, including time already served. Counsel for the accused is seeking a sentence of time in custody. Ms. Francois' record includes five different groupings of offences commencing in 2009. The most serious charges on the record include assault and are with a a a weapon, peace dozen assault causing bodily harm, officer. In addition, there convictions orders. Convictions in 2011 and 2012 resulted in short incarceratory sentences of between 20 and 30 days on the breach of probation and fail to comply charges. for breaching assaulting more than and

recognizance

probation

Reviewed Release authorized by Slough, P.J.

[2] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 opinion The accused is currently on 18 months supervised probation which includes a condition she abstain from the consumption of alcohol. Although I don't know this, I expect alcohol played a role in many of the offences on her one in the circumstances. Dealing with the circumstances of this offence, on April 25, 2013, the accused was at the Portage Place Mall and was described as being heavily intoxicated. I should have noted that she's been out of custody since December of 2012. She was described by police as being belligerent. After being arrested, once the conditions of her probation order were discovered, she was detained and has spent the last six days in custody. Yesterday, she appeared before me and made a bail application. I indicated to counsel that due to her recent history of failing to comply with court orders, I would not consider release. Based on the representations made by the counsel that the accused is currently enrolled in adult education, I asked him to confirm that fact and today he did confirm that she, in fact, is taking courses thereby furthering her education. Today a guilty plea was entered. Notwithstanding this accused is her not significant without record, in my potential. She's
2013 MBPC 30 (CanLII)

record, and the order that she abstain is an appropriate

attempting to upgrade her education. She had been seeking to enrol in a culinary arts school but due to her arrest was unable to attend for an interview. And she's previously Foundation. herself. People like Ms. Francois form a significant portion of the individuals appearing in Canadian courts. The Adult Court Criminal Survey, Canadian Centre for Judicial Statistics, Statistics Canada 2011: indicates that volunteered at Clearly, she is the Behavioural Health motivated to rehabilitate

[3] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 21 percent of all cases in adult court are administration of justice offences. Administration of justice offences include failure to appear in court, unlawfully at large, failure to comply with a court order, and breach of in response to these offences unusual. In Canada, 55 percent of all custodial sentences are 30 days or less. Sentences of six months or less comprise 80.4 percent of all custodial sentences imposed upon men and 91.2 percent of all sentences imposed on women: Adult Criminal Court Survey, Canadian Centre for Judicial Statistics, Statistics Canada 2011. While these individuals form a significant
2013 MBPC 30 (CanLII)

probation.

Nor is the use of short incarceratory sentences

portion of the workload of the criminal justice system, in many ways they are virtually invisible. Short sentences rarely attract appellate review. Instead, accused like Ms. Francois are part of a group of individuals who are constantly in and out of remand centres and jails. At times, there may be valid reasons for imposing short sentences including specific deterrence or the need to stop a pattern of behaviour such as drinki ng or the use of drugs in the hope that rehabilitative measures such as probation can take hold once the person has dried out. Experience and interaction with Probation and Corrections in Manitoba suggests that custodial sentences of less than six months, let alone one month, do not provide an adequate opportunity for programming while incarcerated. Accordingly, rehabilitation through treatment while in custody is not a compelling rationale for sentences of six months or less. In this case the sentence recommended by the Crown is reasonable. Nevertheless, it is my observation that sentences for breach charges are frequently based on what the person received for the last breach without proper

[4] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 I am not aware of any legal principle that "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." The Supreme Court of Canada decision in R. v. consideration of the nature of the breach currently bef ore the court. This approach, at times, gives insufficient weight to what the Criminal Code, section 718.1, states is the fundamental principle of sentencing that:
2013 MBPC 30 (CanLII)

Ipeelee [2012] 1 S.C.R. 433 is not only important with respect to the sentencing of aboriginal people, it also speaks to the critical importance of proportionality in sentencing: "The fundamental principle of

sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing - the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect fundamental principle proportionality. is the sine qua the of

Proportionality non of a just

sanction."(paragraph 37)

[5] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 stipulates the de facto mandatory minimum for a new breach is the sentence that was imposed for the last breach. The use to be made of the accused's prior record is set out by Chief Justice Freedman in the Manitoba Court of Appeal
2013 MBPC 30 (CanLII)

decision in R. v. Young [1979] M.J. 150: I am not saying that a record is not a relevant consideration for a sentencing judge to keep in mind. Its role is, I think, to disentitle the accused person to leniency. But the record itself should not be invoked in such a manner that the sentence seems to be imposing double punishment, a sentence for what occurred in the offence in question plus something more for the past record. The appropriate sentence for a breach of court order should be based on the gravity of the breach as the predominant factor while taking into account the accused's record. In addition, it goes without saying that when dealing with a member of a First Nation community, the principles set out in Ipeelee and Gladue must be considered, and that is factored into this decision. My experience sitting in courts in both Winnipeg and Dauphin suggest that aboriginal people, many of whom suffer from issues involving poverty, addiction and mental health, are heavily impacted by the frequent sentences. use of short custodial

Taking these factors into account and based on the representations made by counsel for the accused that

[6] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 the accused, in fact, is enrolled in adult education and is seeking to improve herself, I'm satisfied the nature of the breach, consumption of alcohol, and taking into account the accused's record, warrants a sentence of one day, noting I am imposing that sentence as I believe it is proportionate to the nature of the breach and will not disrupt the accused's efforts at rehabilitation through her continuing education. I'm waiving costs and surcharge. MR. KIESMAN: only matter. THE COURT: THE ACCUSED: THE COURT: Thank you. That's my
2013 MBPC 30 (CanLII)

five days of pre-trial custody.

Thank you, Your Honour. All right. Um-hum. The,

Ms. Francois, those are

my reasons for decision. the Crown I think not

inappropriately was seeking a little longer period of jail but it's my view I'm hoping you'll get back into school, that you'll keep doing the things you're doing. You do have a serious record but if you -THE ACCUSED: Yeah. THE COURT: -- if you further your education and you keep doing what you're doing, then that'll give you the foundation to stay out of trouble. THE ACCUSED: Yes. THE COURT: So good luck. THE ACCUSED: Okay. THE COURT: Thank you. THE ACCUSED: Thank you. _____ Okay?