Supreme Court

«sc ^^-71 o^r IN THE SUPREME COURT OF THE NORTmVEST TERRITORIES ) BETWEEN

HER MAJESTY THE QUEEN -and-ALBERT SMITH Counsel Mr. O.J.T. Troy, Q.C for the Crown Mr. John Vertes for the Defendant

ORAL REASONS FOR SENTENCE OF THE HONOURABLE, MR, JUSTICE C F. TALLIS .-=•--

I am prepared to deal with the question of sentence in this particular matter this morning, and I would '- like to thänk both counsel and the probation officer for ; the material that has been placed before the Court. In this particular case, the accused was found guilty of an offence under Section 86(b) of the Criminal Code, namely, using a firearm, to wit: a .22 calibre rifle in a manner that was dangerous to the safety of the said Karen Loyer. This offence took place on May 13, 1977, at Yellov/knife in the Northv/est Territories. The circumstances giving rise to this particular offence have already been detailed in the evidence, and I made reference to the evidence which I accepted as being true and correct beyond a reasonable doubt in my oral reasons for / '' )

- 2 -judgment, and I found the accused guilty. However, I must repeat that in this particular case, the discharge of the v/eapon under tlie circumstances that I accepted in evidence leads rae to the clear conclusion tliat the accused is very fortunate that he did not kill I-Iiss Loyer or at least seriously injure lier, A weapon in the .hands of a person who is under the influence of liquor is a very dangerous thing, and as I have already stated to counsel in argument, it is my opinion that a person v/ith a background in hunting and trapping should be v/ell aware of those dangers. In this particular case, I am called upon to impose a sentence which I feel is right and proper having regard to all of the circumstances. Learned counsel for the accused has referred to the Manitoba Court of Appeal judgment v/hich outlines the various factors that must be taken into account. I agree with those factors that he has referred to and the sarae factors are discussed in a little different way in other cases such as R. V. Hinch and Salanski, R. v. Morrissette, and R. v. Wilmott. We must however remember that one of the fundamental purposes of criminal law is the protection of society, and i.n striking an appropriate balance betv/een the various factors that one must take into account, sight must not be lost of that fact. . this particular case, the Court was advised In

- 3 ­this morning that Miss Loyer has returned to the accused and is now living v/ith him. If I conceive my function and responsibility as being the imposition of a sentence based on the case that was placed before me, the fact that Miss Loyer may have chosen to go back to the accused is her choice, and the Court is not a party to that and must deal with the evidence as it unfolded and as it was characterized during thf̂ course of the trial.

In this particular case, the accused has a long criminal record, v/hich has in no way been miniraized by his counsel. E:chibit S2 indicates that he started getting into difficulty in July of 1951 and has been i.n difficulty on a number of occasions since that time. The last offence of obstruction v/as on January 11, 1975. On May 20, 1975, he was convicted of an offence under Section 2 36 of the Criminal Code of Canada. Prior to those last convictions, the accused has quite a nuniber of convictions for driving offences and other offences such as assault causing bodily härm and so forth. I v/ill not itemize these offences because they are part of the Court record as set forth in Exhibit S2. Turning then to this case, with those factual underpinnings and background on liie part of the accused, quite frank] ̂' having regard to the treatment that the accused has received in the past, I cannot find any mitigating circumstances in this case. The use of liquor undoubtedly precipitated the ^ ^

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argument v/hich Ied to the discharge of the weapon. However, intoxication or drunkenness is not an excuse in lav/. It may explain the conduct, and in this case, I think that the use of liquor undoubtedly contributed to the course of conduct that is outlined.

The police v/ere called to investigate v/hat could have been a very serious Situation, and there is no doubt that at the time in question, Miss Loyer was very frightened and her sister was even more frightened.

In this particular case, I think that a meaningful sentence requires a period of incarceration. In the light of past sentences, this Court is not justified in extending leniency by not imposing a term of incarceration. On the other hand, the last offence involving obstruction did take place in 1975, and the accused is entitled to some consideration in that sense. If he is genuinely interested in mending his v/ays, then of course one of the first things he must do is quit drinking. The pre-sentence report v/ould indicate that the accused does not consider his past drinking as a serious problem to him. I don't know v/hat is required to bring hom.e that fact if scanning his ov/n record does not give sorae indication to hira that he cannot handle liquor. In thi.s particular case, I feel that the ends of ^

- 5 ­justice demand a jail sentence, and I accordingly sentence the accused to a term of four (4) months imprisonment in the Yellov/knife Correctional Center. In addition thereto, I direct that he enter into a probation order for a period of tv/o (2) years, to conmience after the expiration of this sentence; and in addition to the statutory terms that are set forth in the Criminal Code, requiring him to keep the peace and be of good behaviour and to appear before this Court as and v/hen required to do so, I direct that he comply with the follov/ing additional terms:

First of all there v/ill be a condition that he abstain absolutely from the consumption of liquor; and, secondly, that he make reasonable efforts to obtain employment or continue with seif-employment. Arrangements can be made to have the accused sign this probation order when it is prepared by the Clerk of the Court; and I want to say to you, Mr. Smith, that it seems to me that the time has corae when you have to make up your mind about liquor, If you feel that liquor has not been a Problem in your life, hopefully, you will do some soul-searching when you are incarcerated; and if and when the accused is released, Mr, Troy, I would expect that if there is any breach of this order that the accused will be brought before me, I feel that I have exercised some leniency in ' being as merciful as I can under the circumstances, and I

- 6 ­must say that my initial reaction after hearing the evidence was to impose a mucli greater sentence than this, Hov/ever, there are factors tliat came out in the pre-sentence report and in the sul^missions of counsel v/hich persuaded me that perhaps this man will have the matter forcefully brought home to him by a sentence of this amount. If it does not achieve the desired end, then, of course, I have no doubt that the accused v/ill be before me again. In this particular case, I am going to make a further order that weapons be forfeited.

Certified Correct Elaine Bilodeau Court Reporter

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