The Court issued a suspended sentence and a three-year probation order for a 54-year-old Cree woman found guilty of trafficking in cocaine and possession of cocaine for the purpose of trafficking. The Court took judicial notice of the increasingly disproportionate numbers of Indigenous women in Canadian prisons. It found the circumstances of Ms. Esau’s life to be harrowing, including recurring experiences of domestic violence, forced marriage to a sexually, physically, and psychologically abusive husband in her Pentecostal community, and periods of homelessness. The Gladue report and the Pre-Sentence Report highlighted the need for participation in treatment and healing programs.
Marion Esau, a 54-year-old Indigenous woman from the Cree First Nation, pleaded guilty to charges of having trafficked in cocaine and having had cocaine in her possession for the purpose of trafficking. A Pre-Sentence Report and Gladue report were prepared. Ms. Esau was from a large family from the same biological parents. The family had problems with alcohol, and violence was common in the home. Suicide was rampant, indeed one of her brothers committed suicide at the age of 14. Furthermore, the family followed a traditional lifestyle, placing little emphasis on schooling. Her father and several members of her family attended Indian residential schools.
Because her parents are Pentecostal, Ms. Esau was forced into marriage at the age of 16. Her mother was the one who chose her husband, an uneducated man who lived primarily in the woods. During her marriage, she had four children, and was subject to extreme domestic violence. Isolated, friendless, and unable to see even her parents, she considered suicide. When she left her husband, she also had to leave her children behind. She went to social services for help, but did not receive any. After leaving her husband, she became involved with another man but also experienced severe violence in that relationship. Her current spousal relationship is not violent, but they were homeless.
Ms. Esau has a criminal record going back to 1999, when she was 34 years old. Her prior offences are related primarily with her periods of homelessness and substance abuse. The offences were mostly assault, threats, and theft, and they resulted in occasionally supervised probationary sentences, community work, and fines. She accepts full responsibility for her actions and has shown a good capacity for introspection and an acceptable degree of empathy, both for her community and individually. In the probation officer’s opinion, Ms. Esau must take part in various treatment and programs to heal the wounds caused by her past life. The author of the Gladue report emphasized that Ms. Esau is worried about her husband and daughter if she is sent to prison. Her daughter sometimes gives her some respite by helping her take care of her son, who is epileptic and an alcoholic.
The Court notes that Ms. Esau, as an Indigenous woman, had been victim of violence as it has been discussed in The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Without setting aside the other principles of sentencing, the Court notes the importance of the principle in section 718.2(e) Criminal Code. In cases involving Indigenous offenders, consideration should be given to all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community. The Court finds that a suspended sentence of 36 months with restorative justice measures to be an appropriate sentence.