Supreme Court

R. v. Brule, 2002 NWTSC 27
Date: 20020403
Docket: S-1-CR-2001000098

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- and -


MARK ERNEST BRULE


Transcript of the Reasons for Sentence delivered by The Honourable Justice V.A. Schuler, sitting in Fort Providence, in the Northwest Territories, on the 26th day of March, A.D. 2002.


APPEARANCES:

Ms. S. Bond:   Counsel for the Crown

Mr. S. Shabala:   Counsel for the Defendant


(Charge under s. 271 of the Criminal Code of Canada)


THE COURT:   Mr. Brule, before I sentence you is there anything you wish to say? If so, please stand and you may say it.

THE ACCUSED:  Yes. I want to say I accept the jury's decision, and, also, I'd like to apologize to my common-law, Norma Gargan, and to Grace Gargan for my actions, and that's all.

THE COURT:   Thank you. I will proceed to give the sentence now.

Mr. Brule has been convicted by the jury of the offence of sexual assault. I am not going to go into a lot of detail, but it is clear to me that in convicting him, the jury must have accepted Miss Landry's evidence, must have accepted that what happened was that Mr. Brule took advantage of her, his sister-in-law, when she was asleep in the armchair in his house and had sexual intercourse with her while she was asleep or passed out, and that it was only on waking up that she realized what was happening and was able to push him away and go to her sister's room where she asked that the police be called.

The offence of sexual assault is a very serious one, and, unfortunately, it is an offence that is all too common in the Northwest Territories and, I am sure, elsewhere as well.

As I said to the jury, a sexual assault is an assault that violates the sexual privacy and integrity

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of the victim, and that is exactly what Mr. Brule has done in this case.

In my view, although I am not sure that it can be characterized in the traditional sense as a breach of trust, the circumstances are certainly aggravated by the fact that this was Mr. Brule's sister-in-law and that he did this in his home where she was staying and where her sister was sleeping only -- I take it from the evidence, probably a few feet away in the bedroom. In other words, this was a situation where Miss Landry should have felt that she was safe and that she could expect to go to sleep without having anyone bother her, and, instead, her own brother-in-law committed a sexual assault on her while she was in that condition.

The principles of sentencing have been said, have been repeated, many, many times by this Court and by other courts that for the offence of sexual assault, the principles of denunciation - in other words, showing how the community rejects this kind of behaviour, how the community looks down on this kind of behaviour - and, also, deterrence - in other words, that the sentence send a signal to other men who would do this kind of thing, that it attempt to dissuade them from committing this type of offence. Those are the main principles the Court has to keep in mind. Now, those are not, obviously, to the exclusion of other things, and I have to consider all the

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circumstances in this case.

Mr. Brule is a man who is 34 years old. He has spent all his life here in Fort Providence, and he has a common-law wife and three children, and it appears from what has been said that he has made attempts to educate himself, to become employed, and that he has been able to do that in the past.

I have to take into account that he does have a criminal record, and although there is only one offence on the record that is related to the sexual assault charge that I am dealing with now, and that is an assault for which Mr. Brule was convicted in 1997 and for which he received a $200 fine, apart from that, the record is of unrelated offences and there are no sexual offences on the record. One thing that is of concern is the fact that there are three previous convictions from 1998 and now three convictions in 2002 for failing to obey Court orders, and that obviously is something that is of concern.

There was no guilty plea in this case. Mr. Brule exercised his right to a trial, which, of course, he is entitled to do, and I don't treat that in any way as an aggravating factor or make anything of that. It is simply a neutral factor.

In my view, the fact that there apparently was a brief relationship between Mr. Brule and Miss Landry over a year ago is of no relevance. It seems to me

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that had it been in some way relevant, then it would have been properly the subject of an application to put that evidence before the jury. But that not having been done, it has to be treated as irrelevant. It has nothing to do with what happened on the occasion in question. Seems to me that based on Miss Landry's evidence, it would have been obvious to Mr. Brule that she was asleep or she was passed out in the armchair and that she didn't know what was going on. So I don't think that in any way mitigates the offence or does anything that takes away from the seriousness of the offence.

It is unfortunate that with the record that Mr. Brule has and with his having indicated through counsel that it is alcohol-related, that Mr. Brule has not dealt with his alcohol problem earlier. I appreciate -- I understand there was the one attempt to get counselling. But, Mr. Brule, you can't blame your problems on alcohol. Alcohol is just a thing that is there. You are the one who takes the drink. You are the one who decides whether you are going to take a drink. That is something you can spend some time thinking about, and, I hope, something you will do something about for the future, for the sake of yourself and your family.

I do take into account that here today Mr. Brule has said that he accepts the jury's verdict. It is

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not often that I hear that from a person who is convicted by a jury, and I do take that into account; and I take into account that he has indicated here today his wish to apologize to both Miss Landry and his common-law wife.

These cases are always very difficult. An event like this, which probably took a matter of very little time, now obviously is going to mean that Mr. Brule pays the consequences, which are serious consequences.

I will say for the record that I take -- or I suppose I am assuming to some extent, but having heard that he grew up here in Fort Providence, having seen Mr. Brule, I take it that he is an aboriginal person. I do take that into account as I must under the Criminal Code. There has not been anything put before me that would suggest that there are any particular factors relating to that that ought to impact on my sentence, but I do take into account that for someone from a small community like Fort Providence, the prospect of a lengthy period of incarceration may be more difficult or involve some further difficulties that might not exist in other cases. In any event, as I say, nothing in particular has been suggested to me as a result of that, so I go no farther with that.

I do have to, as well, keep in mind other sentences that have been imposed in this jurisdiction for this type of offence, and, in my view, the

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sentence that I am going to impose is in keeping with those other sentences for similar offences, or offences of sexual assault in similar circumstances.

Please stand, Mr. Brule.

Mr. Brule, the sentence I impose on you is one of three years imprisonment.

In my view, under Section 110 of the Criminal Code, I am obliged to impose a firearm prohibition order because the offence of sexual assault is an offence of violence. So I do impose an order then. I am sorry, not Section 110. One hundred and nine. I do impose such an order prohibiting you from the possession of firearms, ammunition, and the other devices that are referred to in the section, for a period which will commence today and which will expire upon a date which is ten years after your release from imprisonment.

Does your client have any such items?

MR. SHABALA:  I'm informed he has no firearms or ammunition.

THE COURT:   Just for the record, the order will be that any such items be surrendered to the RCMP forthwith.

With respect to the DNA order that is requested, as this is a primary designated offence and nothing has been brought to my attention that would suggest that the order ought not to be made, considering the

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terms of the order as presented to me and the offence of which Mr. Brule has been convicted, then the order as presented will issue.

You may sit down Mr. Brule.

The victim of crime surcharge will be waived in the circumstances.

Now, is there anything else that I need to deal with, Counsel?

MS. BOND:   No, Your Honour.

MR. SHABALA:  Nothing from the defence, Your Honour.

THE COURT:   All right. I will leave the exhibit here for you, Madam Clerk. I wish to thank you, Counsel, for your presentation of the case. We will close court.


Certified Pursuant to Rule 723 of the Rules of Court

Jane Romanowich, CSR(A), RPR
Court Reporter

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