Supreme Court

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• IN TUE SUPREHE COURT OF THE NORTlIIvEST TERRITORIES HERIIAJESTY THE QUEEN versus S . DENEYOUA, C. DEl-iEYOUA, D. DENEYOUA, M. HORESAY. Reasons for Judgirccnt BEFORE: Mr. Justice C. F. Tallis, held in the Main Courtroom, Federal Building, Yellowknife, N.W.T., on Monday, July 11, 1977 at 3:15 p.m. Nethorcut C Coiapäny Lii.iited Official Reporters 4 4 York Street Toronto, Ontario M5J 1R4

wm^m ^XiihcrcHl cl ( c. XlJ. •Jcniilo, (Jiilario 1 IN THE SUPREI-IE COURT OF THE NORTHWEST TERRITORIES 2 3 HER MAJESTY THE QUEEN 4 versus 5 S. DENEYOUA, C. DENEYOUA, D. DENEYOUA, M. HORESAY. 6 7 Reasons For Judgment 8 9 BEFORE: Mr. Justice C. F. Tallis, held in 10 the Main Courtroom, Federal Building, Yellowknife, N.W.T., on Monday, July 11 11, 1977 at 3:15 p.m. 12 13 14 15 APPEARANCES: 16 B. Fontaine, Esq. Counsel for the Crown 17 P. Ayotte, Esy. Counsel for S. Deneyoua & M. Horesay 18

T. Richard, Esq, Counsel for D. D. Eneyoua & 19 C. Deneyoua. 20 21 22 Nethercut & Company Limited, Official Pcporters, 23 44 York Street, Toronto, Ontario. 24 M5J 1R2 25 Per: P. ^^' 0'Nei11.

Xclfinnd (C Cf. £l,l. Jcroii>o, üiilorjo Yellov/knife, N.W.T. 1 July 11, 1977. 2 THE COURT: I propose tö . - f i r s t of a l l de l i ve r judgment in the case of Chr is t ine 3 Deneyoua and I think the reasons for judgment v/i l l be 4 appliceible to a l l cases . i'Iy reason for giving 5 judgment in a l i t t l e more d e t a i l in a t l e a s t one of 6 the cases i s to lay down some guidel ines for future 7 cons ide ra t ion . The appel lant Chr is t ine Deneyoua was 8 charged with an offence in the following terms, t h a t 9 she did on or about the 28th day of May A.D., 1977 at 10 or near Fort Simpson in the Northv/est T e r r i t o r i e s while 11 bound by a probat ion order made by the Magis t ra te ' s 12 Court on the 24th of May, 1977 wi l fu l ly f a i l to 13

comply with such order , to w i t , abstain t o t a l l y from 14

tlie consumption or possession of alcohol contrary to 15 Section 666, S.S. (1) of the Criminal Code. 16 To t h i s Charge the appeilanr. 17 appeared v/ithout counsel and pleaded gu i l t y and was

18 sentenced by the p res id ing J u s t i c e of the Peace to a

19 term of s i x months imprisonment. She has appealed 20 tlie sentence imposed on her . Unfortunately the record 21 in t h i s appeal does not contain any evidence or informa-22 t ion concerning the subraissions t h a t were placed beforo 23 the pre!3iding J u s t i c e of tiie Peace. Apparently a 24 pj^e-sentence r e p o r t was not obtained. 25

.»äa Jcrowto, ünlario 3 1 In future I would l ike to 2 po in t out t h a t in cases of t h i s kind i t i s imperative 3 t h a t a l l aspects of the matter of sentencing be ful ly 4 canvassed by the Court. As a matter of record the 5 Court should i n s i s t on a comprehensive pre-sentence 6 r epo r t in a case of t h i s nature with fü l l and complete 7 d e t a i l s of any proposals or programmss availc±)le for 8 a youthful offender such as the appe l lan t . This w i l l 9 involve a co-ordinated e f f o r t on the p a r t of prosecut ing 10 a u t h o r i t i e s and where the prosecution i s represented 11 by a po l i ce o f f i ce r I include a po l ice o f f ice r in t h a t 12 d e f i n i t i o n , the Department of Social Development, 13 Native Court workers and other agencies t ha t are 14 involved in deal ing with matters of t h i s kind. 15 Furthermore, in appropriate 16 casesyand t h i s i s a c l a s s i c example, evidence should 17 be ikduc^d as to the a v a i l a b i l i t y of employment in 18 the Community, the p o s s i b l i t y of vocat ional t r a i n i n g 19 and the a v a i l a b i l i t y of upgrading courses before 20 sentence i s passed, I t i s of course des i rab le for 21 the Court to know v/hether or not the ind iv idua l such 22 as t h i s appe l l an t i s ready to ava i l he r se i f of 23 oppor tun i t i e s i f such are a v a i l a b l e . I t i s often 24 des i rüb le for the Court to i n s i s t t h a t counsel be 25 made av«-; i ̂ >̂ i'=' —̂ the accused. This i s p a r t i c u l a r l y ^^ ^

Xclfu-rcul <f; Co. DJ. •Jircnlo, (jiilario A 1 so where a s u b s t a n t i a l prison term i s sought. ) 2 The appel lant in t h i s p a r t i c u l a r 3 case , as previous ly mentioned, was convicted of a 4 cr iminal offence under Section 666- S.S. (1) : 5 "An accused who i s bo\md by 6 a probation order and who 7 wi l fu l ly f a i l s or refuses to 8 comply with t h a t order i s 9 gui l ty of an offense on summary 10 convic t ion ." 11 The maximum penal ty t h a t can be imposed for such an 12 offence i s s e t for th in Section 722, S.S. (1) of the 13 Criminal Code which provides as follows: 14 "Except where otherv/ise 15 expressly provided by law 16 everyone who i s convicted of 17 an offence punishable on 18 summary conviction i s l i a b l e 19 to a fine of not more t ha t 20 $500.00 and to impj:iiscnment 21 for s ix months or to bo th ." 2.2 The fac ts in t h i s p a r t i c u l a r 23 case are not in d i spu t e . The appel lan t was bound by 24 tlie ternis of a probat ion order made by Magistrate 25 Slaven a t For t Simpson in the Northv/est Ter r i to r i e r . on

.-rrr^aw*^ Xdlimid (C Co. £lJ. T\C, 'iloroiito, ünlario 5 i May 24th, 19 77. Within a fev/ days a f t e r the order a ) 2 breach was committed of the one terra which required her 3 to abs ta in corapletely from the use and possession of 4 a lcoho l . There i s no Suggestion in the facts s e t forth 5 t h a t she was impaired or c rea t ing a disturbance at the 6 time of her apprehension. The Liquor Ordinance of the 7 Northwest T e r r i t o r i e s contains severa l provis ions 8 deal ing with the unlawful consumption of l iquor and I 9 r e f e r in t h i s p a r t i c u l a r case to Section 67 (1) and 10 Section 88 of t h a t ordinance. In shor t Section 67 (1) 11 makes i t an offence for a person under age to consume 12 or have l iquor in h i s or her possess ion. Section 88 13 provides a penal ty and t h a t penal ty i s a maximum of 14 seven days imprisonment and a fine of $25.00. Those 15 are the outer l i m i t s . In t h i s p a r t i c u l a r case the 16 appe l l an t i s e ighteen years of age. She res ides in 17 the For t Simpson d i s t r i c t in the Northwest T e r r i t o r i e s . 18 She comes frora a large family and a t the present time 19 i t should be noted t h a t she has grade s ix by way of 20 educat ion . At the time of t h i s offence she was not 21 employed. Since her i nca rce ra t ion which was ef fec ted 22 June I s t , 1977 the Court does have the bene f i t of a 23 r epo r t prepared by Mrs. Anne Enge, Chief Matron a t the 24 • - rrr-,-optional ccntiTe. Mrs. Enge has done

Xclficniil (ö Co. fitl. Ts£. '•Jci<i:lo, ünlario D 1 a commendable j o b i n d e a l i n g v / i th t h e s e young p e o p l e 2 and i n p l a c i n g b e f o r e t h e C o u r t i n a v e r y s u c c i n c t v/ay 3 h e r c a n d i d v i e w s . I q u o t e from h e r 4 " C h r i s t i n e 5 g i r l 6 a g e . 7 i n Simpson and i s 8 d e p e n d a n t on h e r p a r e n t s 9 a l i v i n g . 10 s c h o o l p r e s e n t l y employed a t t h e Twin 11 P i n e Motor Inn and seeras t o be 12 13 d o i n g a f a i r l y 14 can h a v e t h i s 15 s h e w i s h e s . a t t e n d i n g a d u l t 16 s c h o o l i n F o r t Smi th 17 S e p t e m b e r . 18 g u i d a n c e , s u p e r v i s i o n 19 c o u n s e l l i n g 20 y e a r s b e c a u s e h e r a t t i t u d e 21 t h e 22 somewhat n e g a t i v e . 23 b e h a v i o u r h c r o i s 24 And t h e n a t t h e c o n c l u s i o n 25

r e p o r t : i s a shy cmd q u i e t and i s e i g h t e e n y e a r s of She h a s n e v e r h e l d a j o b t o t a l l y f o r She h a s been o u t of f o r two y e a r s . She i s good j o b . She j o b as l o n g as She i s c o n t e m p l a t i i i g v o c a t i o n a l t r a i n p i g i n T h i s g i r l n e e d s and f o r t h e n e x t few f o r f u t u r e a p p e a r s t o be Her e x c e l l e n t . " cf t h e r e o o r t w i t h r e f e r e n c e

u. Xcldaail cC Co. DJ. •loronlo, Onlariu 7 1 to a l l of the g i r l s she has t h i s to say. \ 2 "Their future looks qu i te 3 bleak but I don ' t bel ieve tha t 4 i t i s too l a t e to help thera 5 in sorae form or o the r . They 6 r e a l l y should t ry to improve 7 t h e i r education and get a t rade 8 of some kind or learn to hold 9 down a steady job. The four 10 g i r l s have been very good here 11 and a l l work w e l l . " 12 I have no doubt, and indeed I 13 am prepared to take j u d i c i a l no t ice of the fac t t h a t 14 there i s an extremely high r a t e of unemployment in the 15 Fort Simpson d i s t r i c t as in o ther d i s t r i c t s . The 16 prospects of work for an untrained or an unski l led 17 person of any age are very l imi ted to say the l e a s t . 18 I think t h a t Mrs. Enge has c l ea r ly recognized t h i s 19 v/hen she has emphasized the d e s i r a b i l i t y of these 20 accused improving t h e i r education and ge t t i ng t r a i n i n g 21 of sorae type . I have no doubt t h a t l iquor has been 22 a major problem in the a p p e l l a n t ' s background. 23 Learned counsel for the appel lan t 24 frankly acknowledged t h i s and Mr. Sibbeston v/ho appeared 25 as coun.sel i n i t i a l l y dea l t v/ith the matter in very v iv id

uU3k K •ydluirul (C Co. DlJ. '•'/(ronlo, (Jnlariu 8 1 terms. I t should be noted tha t Mr. Sibbeston has \ 2 personal ly l ived in t h a t community and spoke with some 3 personal knowledge. The record of the appel lant with 4 r e spec t to i n f r ac t i ons a r i s i ng under the Liquor 5 Ordinance or r e l a t e d matters a r i s i n g from the use of 6 l i quor i s ,not good. While she may not feel t h a t l iquor 7 i s a problem there i s no doubt in my mind t h a t i t has 8 been a con t r ibu t ing fac tor to her problems emd unless 9 she i s prepared to r e a l i z e t h a t then of course the 10 future i s qu i t e bleak for her . When t h i s matter f i r s t 11 came on before me I expressed deep concern over the 12 matter of sentencing in t h i s case . From the record i t 13 appeared to me t h a t the various aspects of the sentencing 14 process had not been ful ly canvassed. Furtherraore, 15 the appe l lan t was not represented by counsel . This 16 i s most unfor tuna te , because I am s a t i s f i e d t h a t many r e l evan t fac tors were not brought to the a t t en t ion of 17 the Court below. Under the circumstances I gave detaile<^ 18 d i r e c t i o n s to counsel when t h i s matter f i r s t came before 19 me by way of appeal . I ind ica ted t h a t the Court required 20 a d e t a i l e d pre-sentence repor t and a l so a co-ordinated 21 e f f o r t by various agencies and departments to br ing 22 forward a s u i t a b l e or a l t e r n a t i v e plcui or progrämme 23 for the cons idera t ion of the Court . I have already 24 J- 1-. ,̂ 4, T L 1 ,-v "K f̂ ,-v / ^ 4~f-\ c* r^fn -i- V» r.' +• ^ ^

rs^rXiOrrl X-lf,na,l c(- Co. DJ. '/ dironlo, ünlario 9 l 1 co-operat ion has been extended by many people in t h i s 2 connection. Counsel appearing on the case have gone 3 out of t h e i r way to deal with t h i s matter not only on 4 a l ega l b a s i s , but a l so canvassing a l l aspects of the 5 case and t h i s includes some of the soc ia l aspects t h a t 6 were r a i s ed before me. 7 I do hope tha t t h i s approach 8 w i l l serve a t i e a s t as a model or s tepping stone for 9 future cases of t h i s kind. I have already mentioned 10 the fac t t h a t Mrs. Enge has gone out of her v/ay to 0/'"-11 do v/hat she can. Mrs. Sear was good enough to appear 12 here in Court and personal ly speak at length on matters 13 a f fec t ing not only t h i s appe l lan t but the other three 14 appe l lan t s who are before me. I think tha t t h i s i s a 15 good example of the work t h a t often goes unnoticed when 16 i t i s performed by the Native Court Workers Associat ion. 17 I t is/however/ g r a t i fy ing to know there are people who 18 are prepared to a s s i s t t h e i r own kinfolk in t ry ing to 19 salvage something out of what could turn out to be 20 broken l i v e s in the fu tu re . I have a l readly remarked 21 t h a t counsel apparent ly have received co-operat ion 22 from many o ther s o c i a l v/orkers and i t i s my hope t h a t 23 in due course even g r ea t e r co-ord.tnation w i l l occur. 24 F In recent times an "iadministrato ^A -hi-i •f-h.o r ' o n r t . Mr. P a u l .^rli R n r t p ?)nd

Xlfurcul (0 Co. DJ. üiVonlo, ünlario 10 1 for t h o s e of you who do n o t know hira I happen t o know \ 2 t h a t he has a very d i s t i n g u i s h e d r eco rd äs an R.C.M.P. 3 o f f i c e r when he was s t a t i o n e d very n e a r an Ind ian 4 r e s e r v a t i o n a t R o s t h e m , Sasketchevran. His a b i l i t y 5 t o work wi th the peop le and coramunicate v;ith them was 6 such t h a t when he was t r a n s f e r r e d they h e l d a c i v i c 7 func t ion fo r him on the r e s e r v e . I mention t h a t because 8 I know t h a t he w i l l undoubtedly be happy t o a s s i s t i n 9 any f u t u r e approaches of t h i s n a t u r e . 10 I f e e l t h a t i f t h i s type of 11 approach i s t aken i n f u t u r e cases tlie sav ing t o t h e 12 p u b l i c i n bo th monetary and non-monetary terms v / i l l 13 be s u b s t a n t i a l . 14 I have taken the t r o u b l e t o •15 review i n some d e t a i l t h e S i t u a t i o n concern ing 16 t h e s e n t e n c e imposed i n t h i s case because i t does 17 p o i n t ou t a r a t h e r anomalous S i t u a t i o n . I f t he 18 a p p e l l a n t had been charged wi th a S u b s t a n t i v e offence 19 under S e c t i o n 88 of the Liquor Ordinance the maximum 20 p e n a l t y would have been seven days imprisonment p l u s 21 a $25.00 f i n e . 22 However, t h e same unlawful 23 a c t when p roceeded v^ith i n t h i s case r e s u l t s i n a 24 p r i s o n term of s i x months . I have reviewed the ^ ,-,•(-r-, n o •; ri n- PiViß T ;̂ m f.nti .qfied from t h o s e ^