Supreme Court

i IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN; HER MAJESTY THE QUEEN - and -RICHARD A. ANDRE and FRANK JAMES JEROME

Remanded for Sentencing to November 9, 1977 after a finding of Guilty by a Jury on October 24, 1977

Sentence: Richard Allen Andre - Two and one-half years Imprisonment in a Federal Penitentiary

Frank James Jerome - Two years less one day imprisonment

\ Oral Reasons for Judgment delivered November 9, 1977 at Inuvik, Northwest Territories Oral Reasons for Judgment by: The Honourable Mr. Justice C F. Tallis Counsel; Mr. B. Fontaine, for the Crown

Mr. P. Ayotte, for the Defendant, Richard A. Andre Mr. C. Dalton, for the Defendant, Frank James Jerome

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•s^BOBa^mxi § IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN; THE QUEEN v.

RICHARD A. ANDRE and FRANK JAMES JEROME Counsel: Mr. B. Fontaine, for the Crown Mr. P. Ayotte for the Defendant, Richard A. Andre Mr. C. Dalton for the Defendant, Frank James Jerome ORAL REASONS FOR JUDGMENT OF THE HONOURABLE l MR. JUSTICE C F. TALLIS In this particular matter I am prepared to deal with

the issue of sentencing at this point, but at the outset I would like to. thank all counsel for the submissions that they have made on the question öf sentence. I would also like to thank the Probation Services for the pre-sentence report that has been pre­pared in the case of each accused. j I have earlier indicated that I have had the opportunity of going through those reports and I have taken into account the information contained in those reports as well as the information that has been submitted to me by counsel in their submissions. ~^n this particular case, the accused, Frank James Jerome, and the accused Richard Allen Andre, were convicted by ) a jury in Inuvik of the offence of rape. The verdict was rendered

- 2 ­after hearing evidence in this courtroom, and I think it is fair tojay that the members of the Jury represented a fair cross-section of society and indeed, I could not help but notice that the various age groups were represented, if I may use that term. The crime of rape is recognized under our Criminal Code as a serious crime. The maximum sentence that may be imposed is life imprisonment. I make reference to the maximum that may be , imposed because that reflects society's view of the serious nature of the offence, and it does indicate the sentence that can be im­posed where the circumstances are extreme. 1 think that this fact is often overlooked by people who give way to their sexual passions whether under the influence of l liquor or whether under other influences which have a similar ef-fect. On the other hand, I recognize that the Court is vested

with a wide discretion on the issue of sentence because Parliament in its wisdom has seen fit to impose no minimum sentence. This places a great responsibility on a trial judge in sentencing be­cause within that ränge, the sentencing judge has a responsibility to endeavour to impose a sentence in each case which properly takes into account the various factors and principles that must be dealt with in imposing sentence. As I see it, this means that I am charged with the respon­sibility of imposing a sentence that will vindicate the law, but yet at the same time does not crush or destroy the hope of rehabil­itation that one has, particularly when you are dealing with young

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- 3 -offenders. Unfortunately, many of these cases arise under circum­stances where liquor has been used to excess. I have said before in passing sentence and I repeat that the excessive use of liquor is not an excuse. The law does not look upon it as an excuse, although in some cases it may be taken into account in mitigation of sentence. I would also point out that members of the community look to the police and the Courts ' to express their disapproval of the conduct which is criminal, namely rape. Female persons of all age groups and regardless of their sexual experience are entitled to that measure of respect that common decency require in any group of people. In saying that, t I think that young girls are entitled to the protection of the law which is extended to all Citizens, and in this particular case,

the complainant was a relatively young girl. She may have had previous sexual experience, but that does not give any male person a licence to seek self-gratification at her expense. I would hope in this particular case that the victim does not suffer emotional scars from the incident that took place, but I am in no position and I do not think anyone eise is in a position to make a judgment on that issue at this particular point. I think that everyone appreciates that a trial judge has a very difficult task in trying to impose a proper sentence when the people involved are relatively young. I know that all )

m^ I .- 4 ­counsel are familiär with the principles that must be applied in sentencing, but I think that it bears repetition to quote the words of Chief Justice Culliton in Regina v. Morrissette et al, 12 C.R.N.S. 392, particularly at 393, where the learned Chief Justice stated as follows: - " There is no problem which causes both the trial Judge and members of this Court more anxious consideration than the deter-.---' mination of an appropriate and proper ' ' sentence for a criminal offence. Both trial and appellate judges must be ever mindful of the fact that the principal purpose of the criminal process, of which sentencing is an important elemhnt, is the protection of society.

From time to time, courts have reviewed the principles to be considered in the deter­mination of proper sentences. This Court recently did so in Regina v. Kissick (1969) 70 W.W.R. 365. As has been stated many times, \ the factors to be considered are: (1) punish-ment; (2) deterrence; (3) protection of the public; and (4) the reformation and rehabili­tation of the offender. The real problem arises in deciding the factor to be emphasized in a particular case. Of necessity, the circumstances surrounding the commission of an offence differ in each case so that even for the same offence sen­tences may justifiably show a wide Variation."

I pause here to point out that the term 'deterrence' as used in that particular judgment refers not only to deterring the accused from further conduct of this nature, but also de­terring other people who might be minded to pursue a similar course of action. I snould add that I have also considered the sentencing principles that are carefully reviewed in The Queen v. Wilmott, \

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/ /i - 5 -(1967) 1 C.C.C. 171, particularly at pages 177 to 179; and also the principles enunciated in R. v. Hinch et al, 62 W.W.R. 205. The latter case is of particular importance because it deals in a little more detail with the factors that the Court must consider, I have also carefully considered a judgment that is of great significance in dealing with young people, and that is the judgment of the Alberta Appellate Division in Regina v. Beacon and Modney, 31 C.C.C. (2d) at page 56. That case deals with a Situation where youthful offenders are before the Courts and it points out that where possible, the Court should avoid giving lengthy custodial sentences to youthful offenders. l However, a review of cases involving the offence of rape indicates that you must exercise some caution in applying that principle. I have already pointed out that 10 years or so ago the sentences for rape were very heavy; but it apparently has been viewed at all levels as being improper except in extreme cases to impose lengthy penitentiary terms. On looking back over some of the cases involving gang rapes, it was not unusual for a sen­tence in the neighbourhood of 7 or 10 or 12 years to be imposed. That approach has been rejected in more recent times on the footing that the penal authorities in many cases can bring about a change in attitude on the part of offenders of this nature so that there will not be any repetition of the offence. •

- 6 -Again, I have carefully reviewed the pre-sentence re­ports in the case of Jerome and in the case of Andre, and I think they outline the Situation in substantial detail. Under the cir-cumstances, I am not going to repeat what is said in those reports because they are exhibits in this Court on the issue of sentence. In this particular case, it has been strenuously and sincerely urged that I should take into account the welfare and rehabilitation of each accused. I agree that this is an important factor to be taken into account, but the authorities that I have referred to indicate that this is not the only factor that must be taken into account. The other factors merit the consideration of this Court and my problem in this case is to strike a reason-t able balance between the various factors that I have mentioned. Rape is, as I have said, a serious offence and is so recognized by Parliament, the Courts and in the community. A Short sentence or^a suspended sentence in a case of this nature would quite properly be construed by the public and members of the community as an indication that the Court does not take a serious view of the offence of rape; that is not so. I have earlier indicated that Parliament has vested me with a wide dis­cretion and in exercising that discretion, I am charged with the responsibility of considering any mitigating or aggravating cir­cumstances relevant to the offence. ~In this particular case, counsel involved in the sub­missions on sentence have quite properly drawn my attention to )

- 7 ­i these various factors and facts that emerged not only from the hearing, but also from the material placed before the Court. I accordingly have considered the personal background of each ac­cused and have attempted to balance the factors that I indicated must be taken into account. However, since some reference has been made to the liquor problem, which very clearly emerged in the evidence in this case, I would be remiss in my duty if i did not say that while members of the community are entitled to look to the Police and the Courts for assistance when crimes of this nature have occurred l also take the view that members of the com­munity have a responsibility to grapple with the liquor problem which was really vividly described in this particular case by t some of the witnesses and which l think is well known to police officers serving in the community. Criminal law cannot be administered in a vacuum and where a problem of this nature is of major proportions, and when you look' at the problem that arose in this case, you would have to express some alarm, to say the least. Community participation and responsibility must also take its rightful place in efforts to deal with the Situation. I have on occasion heard evidence in other communities from police officers who have served for a number of years where the problem has been outlined in great detail, and as I cast ^Y mind's eye back over the numerous jury trials that I have pre­sided over in the last year and a half, I would have to say th it i liquor has been a matter of some consequence in at least 95 percent

- 8 ­of the cases. This ought to teil us something when we are en­deavouring to deal with matters of this kind, and I think adds some substance to the position of the Court that the community and its members have a responsibility to endeavour to deal with the Problem and not simply look to the police to solve all their Problems after an offence has taken place. Turning now then to the issue of sentence in this par­ticular case, I did have occasion to review some of the sentences that I have imposed at various times, and in one case where there was substantially more violence than in this particular case, I did impose a sentence cf three and one-half years imprisonment. This case can be distinguished because on the facts of this case, t we did not have what I would characterize as extreme violence. Turning therefore to the case of the accused Frank James Jerome,

and bearing in mind the time that he has already served in custody, I have decided that his background and circumstances do not call for a penitentiary term. ' I do however feel that an appropriate sentence in this particular case would be two years less one day in the Yellowknife Correctional Centre, and in addition thereto, I adopt the recom­mendation of the Probation Officer that probation may well be of some assistance in this particular case; and I accordingly direct that the accused comply with the conditions prescribed in a pro­bation Order which is to run for a period of one year from the expiration of this sentence. \

SfSSsnPTass - 9 -In addition to the usual terms or as they are sometimes called, the statutory terms contained in Section 663(2) of the Criminal Code. I direct that the following conditions be included: (1) That the said Frank James Jerome shall report to the probation of­ficer at Inuvik as required;

(2) That he will seek and maintain suitable employment and/or attend educational upgrading;

(3) That he will obtain such alcohol ^ counselling as may be directed by the probation officer;

(4) That he will notify the probation of­ficer of any change in address and/or employment. I have not included a requirement that he report to the I R.C.M.P. on a monthly basis, because I feel that if he is in con­tact with the probation Services and is required to report to them, that ought to be sufficient. . Turning now to the accused Richard Allen Andre, I have given anxious consideration to this particular case in view of the previous convictions of the accused. I do however recognize that this accused is a youthful person with an unhappy background, to say the least. By the same token, as I have said in the submissions of counsel, I think he knows the difference between right and wrong and must appreciate that his conduct on this particular occasion was not acceptable. Taking inte account the time that he has spent in cus­tody awaiting trial, I impose in this case a sentence of two and one-half years imprisonment 1 »

- 10 ­in a Federal Penitentiary; but having regard to this boy's back­ground and the submissions made by his counsel, I strongly recommend that this sentence be served in the Yellowknife Correctional Centre rather than in a penitentiary in one of the provinces. I hope that this boy will in fact pursue certain avenues of training that are open to him, and I am thinking particularly of his expressed desire to acquire skills in the field of hunting, trapping and fishing. In Order to emphasize my recommendation, I am going to have a transcript of my remarks submitted to the Superintendent of the Yellowknife Correctional Centre so that there will be no mistake as to the position that this Court takes in making that l recommendation. The record shows that he did have the opportunity to go to a wilderness camp in southern Canada, but I see no reason why the facilities that are available in the Northwest Territories should not be on a par or perhaps better than the facilities that are available in other centres. From what I have seen of the facilities, I am inclined to the view that they are much better than you would find in many jurisdictions, and accordingly having regard to the accused's background, I feel that emphasis must be placed on the request and recommendation that I have made that he serve this time at the Yellowknife Correctional Centre; and this means that I anticipate that after careful Screening, he may well qualify for the programmes that I have mentioned.

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I also recommend in the very strengest of terms that every effort be made for this young man to have some treatment for his alcohol problem. I think it is imperative that a Pro­gramme be embarked upon immediately, because we have a tragic Situation here where even at an early age this boy was cate­gorized as an alcoholic and indeed was taking the anti-buse treat-ment. When I say tragic, I mean tragic not only for the accused, but also for society at large. In this particular case, I think that it would also be helpful if the Department of Social Development were in fact in­volved in this boy's future after his release. l THE COURT: Now on the matter that is presently before the Court, I am sitting in my capacity as a Magistrate of the North­west Territories, and I gather that you now want to enter a plea to the Charge under Section 666(1) of the Criminal Code, do you? MR. AYOTTE: Yes, My Lord. THE COURT: All right. Would you read the Charge to the ac-cused. This is a summary conviction, and accordingly, counsel can enter the plea if he wants to. THE CLERK; Are you Richard Allan Andre? MR. ANDRE; Yes. THE CLERK; (Charge read). Do you understand the Charge? MR. ANDRE; Yes. }

- 12 -THE CLERK: How do you plead to this Charge, guilty or not guilty? MR. ANDRE: Guilty. THE CLERK; The plea is guilty, My Lord. THE COURT: Mr. Fontaine? MR. FONTAINE: Sir, the facts giving rise to this Charge were , that on the 9th of September, 1976, Mr. Andre appeared before Your Lordship in Fort McPherson and was convicted of a charge of indecent assault on a female person, was given a suspended sentence for a period of two years. One of the conditions of the probation order was that the accused abstain from the use of alcohol. The o t exact wording is "completely abstain from the consump-; ion of alcoholic beverages." On the 17th of June, 1977, Mr. Andre was here in Inuvik, and he came to the attention of the police as a result of a phone call made at 11.30, made in relation to a rape complaint. Mr. Andre was apprehended later on, and this would be in fact on the 18th of June, and he appeared to be intoxicated at the time of his arrest. A breathalyzer test was taken at 3.30 in the morning, and the results were 140 and 150 milligrams of alcohol per 100 millilitres of blood. Now, he had been in custody for a few hours al­ready and at one time prior to that, during the same night had I a higher level of alcohol in his blood. Did I say 150 and 140 milligrams, it's 140 and 150 in order.

•mamgn i - 13 -The Crown has no previous conviction under that section to allege. However, Mr. Andre was convicted on the 15th day of April, 1975 for breach of condition of an undertaking once then sentenced to eight days in jail. The other convictions that Mr. Andre has are on the record of the Supreme Court. THE COURT: I really don't think it is necessary because they are before me on the other matter. The question I wanted to ask . you is that in view of the prosecution for rape and the fact that this really occurred around the same time and was involved in the rape case in the sense that liquor was prevalent that night, what is your attitude on the concurrent rather than consecutive sentence? MR. FONTAINE: Well, frankly, Sir, I know that in imposing the first sentence the Court had all the circumstances in mind and \ it seems to me you can either take both views, one is that the fact it was that specific condition on the probation order has been disregarded.^ - THE COURT: Mr. Ayotte quite properly disclosed to me what Position he was going to make of this case, and he has followed through with the position that he outlined because I accepted without reservation that he told me he was going to enter a plea of guilty on this . MR. FONTAINE: What I don't know, I don't know the attitude of Mr. Ayotte. I don't know what the Court had in mind when it fixed sentence. I don't know if he said, Well, I will disregard the fact that he was drinking contrary to the probation order \

- 14 ­l and impose the sentence of rape and deal with that separately or not. Frankly, it is whatever attitude the Court takes. I can­

not criticize it. THE COURT: Don't you think there is sufficient nexus between the two to Warrant a concurrent sentence? MR. FONTAINE: I can say another view can be taken as logically .that they are two separate matters. I suppose if the Court would be consistent with, well, Your Lordship sitting as Magistrate, consistent with your Lordship sitting in the Supreme Court. THE COURT: I hope I am. Mr. FONTAINE: I do not know if your Lordship will say. Well, I will take the whole thing into account or not. It is simply I would like to point out this is not a Charge for failing to comply, but for breaching a specific condition that was made to him in September '76. THE COURT: Mr. Ayotte? MR. AYOTTE: My Lord, I don't intend to repeat everything I said before, but if I may, I would like to point out again my comments about the wilfulness in view of the evidence you have that this man is an alcoholic and has been on anti-buse and did try for a month to not drink. I think it was conceivable when that probation order was given, had the Court known at the time -I don't know whether that and the other report was before him at the time, that they may have not put so streng a condition.

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J.Ll —L,iil.l t - 15 -THE COURT: It was in front of me and I deliberately put that in. It was a Joint Submission of counsel that it should be in. It may have been raotivated by a desire to keep him out of jail, which is a very laudable motive. At that time it was put in there quite deliberately, but I will be quite candid with both of you, after Mr. Ayotte quite properly told me what disposition he was going to make out of this, outlining to me the fact the matter was before the Court I did take it into account in assessing the sentence of the Supreme Court matter; and accordingly it seems to me that the sentence here should be a concurrent one because there is a sufficient nexus between the two matters that are before the Court, and merely because I am sitting as Magistrate on one as a matter of accommodation should not, I think, affect the overall circumstances. MR. AYOTTE: That is my only Submission. THE COURT; Secondly, in the sentence on the other one, I did quite properly take into account the time served on remand which is a fairly lengthy period of time; and accordingly I think having regard to our objectives on the other sentence, to add a consecutive term here would be undesirable. MR. AYOTTE; That was to be my Submission. Whatever term is imposed, I would ask that it be concurrent. THE COURT; Mind you, the term I am going to impose will be one to indicate the Court's disapproval of the breach. That, I suppose in a sense is academic, Mr. Ayotte.