Supreme Court

R. v. Bilodeau, 2002 NWTSC 31
Date: 20020417
Docket: S-1-CR2002/006

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


ADRIAN BILODEAU


Transcript of the Oral Reasons for Sentence by The Honourable Justice J.Z. Vertes, at Yeliowknife in the Northwest Territories, on March 28th A.D., 2002.


APPEARANCES:

Mr. A. Fox:   Counsel for the Crown

Mr. C. Watt:   Counsel for the Accused


Charge under s. 344(b), s. 267(b) Criminal Code of Canada


THE COURT:   In this case, Adrian Bilodeau has entered a plea of guilty to a charge of assault causing bodily harm. The facts are set out in Exhibit 1, the Agreed Statement of Facts.

Briefly, they outline an incident on October 28th, 2001, here in Yellowknife, whereby Mr. Bilodeau and a friend of his, Mr. Patry, were drinking and had called a taxi. When the taxi arrived, Mr. Patry entered the taxi with an open bottle of beer. The taxi driver told him to get rid of it, Mr. Patry refused, and there was an argument. When Mr. Bilodeau entered the cab, he entered into the argument with the taxi driver and that argument escalated into violence whereby Mr. Bilodeau struck the taxi driver, then both he and the taxi driver got out of the cab, Mr. Bilodeau invited the taxi driver to fight and they did. Mr. Bilodeau landed a number of punches that resulted in the taxi driver being knocked down to the ground and also resulted in some fairly serious looking bruising and other injuries to the taxi driver's face.

To Mr. Bilodeau's credit, once he knocked down the taxi driver he stopped further violence. He went to the aid of the taxi driver and tried to assist him. Granted, he tried to convince the taxi driver not to call the police but when the police did arrive, he apparently was cooperative with them.

[Page 1]

He has been in pre-trial custody since then.

While the altercation was going on, however, Mr. Patry took the opportunity to steal the taxi driver's wallet and took off with a significant amount of money.

Both Mr. Patry and Mr. Biiodeau were charged with robbery and assault. If I am recalling correctly with respect to Mr. Patry, he faced two similar charges as well.

MR. FOX:   That's correct, sir.

THE COURT:   And a few weeks ago, Mr. Patry pleaded guilty to the charge of theft and was sentenced to the equivalent of 12 months in custody taking into account pre-trial custody. Of course the actual sentence was somewhat less than 12 months. Mr. Patry was also put on probation primarily with a view to enforcing a compensation order in favour of the victim.

In this case, Crown counsel, I think quite accurately, noted the vulnerability of taxi drivers such as the victim in this case to acts of violence and theft and suggests that an appropriate sentence would be in the high territorial range considering all of the factors in this case. I think certainly part and parcel of that submission, and I do not disagree with it, is the need to send a message of deterrence because of the vulnerablity of victims

[Page 2]

such as the taxi drive in this case.

Defence counsel, however, did note a number of factors in arguing that a sentence should be somewhat shorter and somewhat similar to that imposed on Mr. Patry.

I think by their submissions, both counsel have recognized that this would not be an appropriate case for the consideration of any type of sentence other than actual incarceration. I did not hear any arguments to support the imposition of a conditional sentence or some other type of alternative and indeed, in my view, I do not think that the principles of sentencing would justify anything other than actual incarceration in this case considering the nature of the crime and considering the nature of the victim and the overall circumstances, not to mention the circumstances of the offenders and this particular offender as I will get to momentarily.

The point that concerned me after hearing the submissions, of course, is how to relate Mr. Bilodeau's situation to that of Mr. Patry's, how to relate his situation to the overall circumstances of this offence.

While I think it can be fairly said that the Crown has acknowledged, by accepting a plea to theft on the part of Mr. Patry and a plea to assault

[Page 3]

causing bodily harm on the part of Mr. Bilodeau and by dropping the robbery charges in both cases, the Crown has acknowledged that these two were not acting in concert in terms of what, from the victim's perspective, must have been a robbery. From the victim's perspective, the entire set of circumstances is a robbery. He was robbed of a significant amount of money and he was beaten up in the process. But I think that the Crown has acknowledged that these two, while they were there together, they were obviously friends, acted independently without knowledge of what the other one was going to do or had done at the instant.

I think Mr. Fox described the roles of the two individuals quite accurately when he said that what Mr. Bilodeau did was an impulsive drunken act of violence and I think it was Mr. Fox, but perhaps it was Mr. Watt, who described what Mr. Patry did as an opportunistic theft, taking advantage of the violence going on between Mr. Bilodeau and the taxi driver to then steal the taxi driver's money. So it is clear, and I think that the Crown accepts, that Mr. Bilodeau had no part of the theft and Mr. Patry had no part of the actual assault. But as I said, from the perspective of the victim it is still a robbery. It is one set of circumstances; it is just that two different people took two different roles

[Page 4]

in it.

As counsel know, the fundamental principle of sentencing is that of proportionality.

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. So it is very much an individualized assessment in each case. But to determine the degree of responsibility of the individual offender, the Court must take account the relationship of the offender to the circumstances as a whole and to the other participating offenders. This does not mean that sentences must necessarily be the same for each co-perpetrator, if I may use that term, but one cannot approach sentencing without regard to the overall circumstances and to the situation of the other individuals involved in those circumstances.

As I said, in this case the Crown has acknowledged that this offender had no role in the theft but of course this offender was the instigator of violence - he struck the first blow, he invited the taxi driver to fight, and that created the opportunity for the other offender to steal the taxi driver's money. So in that sense, the overall circumstances were indeed serious.

There are a number of aggravating factors, some of which I have already touched on - the fact that

[Page 5]

the victim in this case, the taxi driver, is in a vulnerable class of individuals providing a service to the public.

Another factor is Mr. Bilodeau's record. By my count, he has been convicted of 23 offences between 1987 and 2001. It is a lengthy record, most of it however unrelated being a record of thefts, property offences, that sort of thing, but I note that the last two convictions on his record are for assault, one in 1999 and one in 2001 for which he did serve jail time.

The other aggravating factor, of course, is that he was on probation at the time of this offence.

But I think, as I said before, Mr. Fox accurately described what Mr. Bilodeau did here as an impulsive drunken act of violence. There does not appear to have been any planning; or certainly I won't dignify what happened here as showing any signs of premeditation. It does seem to me to be, on the part of both of these individuals, quite an impulsive act.

In terms of mitigating factors, there is the guilty plea which I always consider to be a mitigating factor. I recognize that it does not come at the first opportunity, at an early opportunity, but I also take into account what Mr. Watt said,

[Page 6]

that Mr. Bilodeau was facing the robbery charge as well and I am sure, while it is no business of mine as to what plea negotiations went on, experience tells me that undoubtedly there were long and extensive negotiations with respect to trying to resolve this case. I do take the guilty plea into account as a mitigating factor.

I take into account the fact that Mr. Bilodeau ceased the violence after knocking down the taxi driver, that he seems to have tried to assist him, and apparently was cooperative with the police.

This man is 33 years old. I am told that he has a fairly steady work history.

It is significant to me to hear the words from Mr. Bilodeau as to what appears to be a sense of self-recognition now as to what he needs to do so as to avoid, I think as he put it, spending the rest of his life behind bars.

Mr. Bilodeau is obviously mature enough, and I expect intelligent enough, to recognize that with his background, with his record, any offence will land him in jail and will keep landing him in jail. And I take his word seriously, that perhaps now he has come to the realization that he is going to have to take some very significant and positive steps to overcome whatever problems he had in the past, whether it was his drug abuse or alcohol abuse

[Page 7]

problem, and plan for the future, plan for himself and his family; how to avoid repetition of this type of behaviour, impulsive as it may have been. But I do take those words very seriously and I take them into account.

In my opinion, there are a number of similarities between Mr. Bilodeau and Mr. Patry. If I recall correctly, they were somewhat similarly situated in that Mr. Patry too had a criminal record. He too had spent time in jail before. I don't think that he was much different in age or much different in background really. So when I look at the overall circumstances, in my opinion an appropriate sentence in this case would be similar to that imposed to Mr. Patry, that is, the equivalent of 12 months custody if I were sentencing him today without any consideration for pre-trial custody.

Having regard to the fact that he has been in custody already for five months now, I will credit him two-to-one as is usual so I will credit him with the equivalent of ten months of that 12 months so therefore my sentence is a further two months incarceration.

I am going to also, however, place Mr. Bilodeau on a further probation order for one year. Having regard to his comments about his self-recognition

[Page 8]

about the fact that maybe it is time for him to take steps to turn his life around, I think that maybe he should have a little impetus and assistance if he is serious about it.

I will place him on probation for a period of one year from the date of his release. The conditions of that probation are, of course, that he is to keep the peace and be of good behaviour. He is to report to the Court if and when required to do so. He is to report forthwith upon his release to the probation officer and he is to continue to report to the probation officer as and when directed. He is to attend and participate in any counselling or treatment programs that are recommended by the probation officer. He is to perform 100 hours of community service within that year of probation under the direction of the probation officer.

Do you understand those terms, Mr. Bilodeau?

THE ACCUSED:  Yes, sir.

THE COURT:   Now, Mr. Bilodeau, I am doing this because I am taking your comments seriously, sort of a carrot and stick. The stick is, if you don't abide by the terms of your probation or if you get into trouble again, you can be charged for that, you can be charged with breaching the terms of your probation; do you understand that?

[Page 9]

THE ACCUSED:  Yes, sir.

THE COURT:   The carrot, however, is that there are, I am sure, a number of programs and a number of mechanisms by which the probation officer may be able to assist you in terms of your own rehabilitation. It is really up to you but if you work with the probation officer, you might get further ahead than on your own.

In addition, as requested by Crown counsel I make the DNA order for the provision of a sample for DNA analysis. You will prepare the formal order, Mr. Fox?

MR. FOX:   I have a draft order here, sir, if I can submit it now.

THE COURT:   Have you seen this, Mr. Watt? I am sure it is in the usual terms.

MR. WATT:   I have not scrutinized that particular one but Mr. Fox advised me that it is the standard order.

THE COURT:   Then, Madam Clerk, you can bring this to me after we are finished and I will have a closer look at it and sign it if it's appropriate.

In addition, there will be a firearm prohibition order. I think that the mandatory minimum is ten years, Mr. Fox?

MR. FOX:   It is, sir.

THE COURT:   There will be an order

[Page 10]

prohibiting Mr. Bilodeau from having in his possession any firearms, ammunition, or explosives for a period of no less than ten years from the date of his release. And again Mr. Fox, I assume that you will prepare the usual order?

MR. FOX:   I will, sir.

THE COURT:   Under the circumstances, there will be no victim of crime fine surcharge. Have I neglected anything, counsel? Mr. Watt?

MR. WATT:   Not that I can think of, Your Honour.

MR. FOX:   No, sir.

THE COURT:   Then thank you for your submissions, gentlemen.

(AT WHICH TIME THE ORAL REASONS FOR SENTENCE CONCLUDED)


Certified pursuant to Rule 723 of the Supreme Court Rules.


Lois Hewitt,
Court Reporter

[Page 11]