Supreme Court

R. v. Dillon, 2004 NWTSC 39
Date: 20040706
Docket: S-1-CR-2003000058

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


CHARLENE PATRICIA DILLON


Transcript of the Sentence by The Honourable Justice J.E. Richard, at Fort McPherson in the Northwest Territories, on Wednesday, June 23 A.D., 2004.


APPEARANCES:


Mr. N. Sinclair:   Counsel for the Crown

Mr. T. Boyd:   Counsel for the Accused


Charge under s. 268 Criminal Code of Canada


THE COURT:   Today it is my responsibility to impose an appropriate sentence in the case of a 21-year-old aboriginal woman who has committed a serious crime of violence, that is the crime of aggravated assault by stabbing her common-law husband with a knife on March 16th, 2003, contrary to section 268 of the Criminal Code.

This violent crime carries a maximum sentence of 14 years' imprisonment. There is no minimum punishment or sentence prescribed by law for this offence. The court, therefore, has a wide discretion in determining an appropriate sentence, taking into consideration the personal circumstances of the offender, the particular circumstances of her crime and all the time attempting to carry out the purpose and objectives of sentencing as required by Parliament.

As in most cases, there are both aggravating factors and mitigating factors present here. The offender is 21 years old and of Inuvialuit descent. As described in the presentence report, she was raised by her parents here in Fort McPherson and obtained Grade 10 education at the local school here.

Since 1999 she has been in a common-law relationship with Clarence Alexie, the victim of her crime. They have two children. Their ages are four years and nine months. Her common-law husband has steady employment and Ms. Dillon looks after the

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children. She is not employed at present but in the past has had sporadic employment as a cashier at Northern Store and the Co-op store.

She says that she started drinking alcohol when she was 14 years old and admits to having an alcohol abuse problem. On the date that she committed the crime for which she is to be sentenced, she had been on a one-day drinking binge. Her husband Clarence Alexie was also intoxicated. During a drunken argument between the two of them in their home, which escalated to pushing and shoving, Ms. Dillon picked up a steak knife and stabbed Mr. Alexie in the chest. There was a great deal of bleeding from the stab wound. Fortunately Mr. Alexie received immediate medical attention at the health centre here and was then medivac'd to Inuvik where he was treated and where he remained in hospital for six days. At the time of this offence, Ms. Dillon was two months pregnant with their youngest child.

I am told that the relationship between Mr. Alexie and Ms. Dillon has been a tumultuous one and that it is a regular occurrence for one of them to make a complaint of domestic violence to the police. Indeed, nine months after the stabbing in December of 2003, Mr. Alexie committed an assault on Ms. Dillon and is currently serving a 40-day intermittent sentence.

Ms. Dillon's criminal record is not a significant

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factor, the only entries being for unrelated offences as a youth some seven years ago.

It is an aggravating feature here, as pointed out by Crown counsel and as Parliament has directed, that this violent crime was committed by the offender against her common-law spouse. It is also an aggravating circumstance that the offender resorted to the use of a knife in this drunken argument with her husband. The use of a knife is indeed troubling because of the prevalence of knife-related crime in recent times in this jurisdiction. It seems that a knife has become the weapon of choice. It seems that not a week goes by without a knife-related crime before our courts. Crown counsel in his submissions says that there has been a number of stabbing incidents in this very community of Fort McPherson in recent times but refers specifically to only the recent Kierstad sentencing.

Violent crime is a serious social problem in our communities and has been for many years. The statistics that are published by Statistics Canada, for example, for the three most recent years for which published statistics are available shows that the rate of violent crime in this jurisdiction is consistently five times the national average. In my view, that reality comes into play when a sentencing judge is attempting to carry out the objectives of denunciation

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and general deterrence.

As counsel have stated, denunciation and deterrence are the primary objectives that ought to be achieved by the sentence imposed in a case like this.

On the mitigating side, it is to Ms. Dillon's credit that she pleads guilty. However, I note this comes only after a preliminary inquiry and only after a jury trial was, at her request, arranged in her home community. It is regrettable that it is only now, 15 months later, that this incident of serious domestic violence is being brought before the court for final disposition.

The offender, Ms. Dillon, stated to Hazel Nerysoo, the probation officer who prepared the presentence report, that she is sorry for what she did and that she accepts full responsibility for what she did. She also stated that she does not want to go to gaol for she will worry about the care of her two very young children if she is in gaol. Her husband also apparently does not want her to go to gaol for much the same reason. A real question that comes to my mind is whether the two of them are serious enough about dealing with the alcohol abuse in that household in order to keep her from going to gaol.

Defence counsel seeks a conditional sentence under section 742.1 of the Criminal Code. Crown counsel does not oppose the imposition of a sentence to be served in

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the community. Crown counsel also advises that the RCMP officers in the community agree that Ms. Dillon's sentence could be served in the community. Ms. Nerysoo, in the presentence report, has listed the services that are available in this community as follows:

“Services available in the hamlet of Fort McPherson include two alcohol and drug counsellors, a mental health worker, a community counsellor, two social workers, a justice committee, an elders committee and a probation officer. The Department of Justice also has a psychologist in the Inuvik office and family counselling services is provided to the region which includes individual, group and family sessions.”

Upon consideration of the provisions of section 742.1, I am satisfied that the statutory prerequisites are met and that a conditional sentence is an available option in this case and, therefore, it only remains for me to decide whether to exercise judicial discretion to do so in this case.

Taking direction from the Supreme Court of Canada decision in Proulx, it is clear that such a sentence would have to contain punitive conditions that restrict Ms. Dillon's liberty in addition to conditions with rehabilitative objectives. This is necessary in this case, of course, to address the objectives of denunciation and deterrence.

Quite apart from any strictly punitive conditions, it goes without saying that one particular condition of

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any community sentence imposed on Ms. Dillon must be that she abstain from the consumption of alcohol and not have any alcohol in the residence she shares with her husband, and it is this condition that is of most concern to me.

From my reading of the contents of the presentence report and from the equivocal statements of both counsel on the topic, I glean that it will be very, very difficult for Ms. Dillon to adhere to a no-alcohol condition while serving her sentence in the community and, accordingly, my concern is that imposing a conditional sentence as requested by defence counsel is just setting Ms. Dillon up for failure.

She told the probation officer Ms. Nerysoo that she does not want to go to gaol because she cannot bear the thought of being away from her children. Her husband, Mr. Alexie, told defence counsel that he does not want Ms. Dillon to go to gaol because he feels he will be unable to properly care for the children if their mother is in gaol. Surely the possibility or likelihood that Ms. Dillon will indeed go to gaol then is enough of an incentive for the two of them to do something about the alcohol abuse in that home as they told Ms. Nerysoo they want to do.

In the end and with more than a little hesitation, I have decided to grant Ms. Dillon's request and impose a conditional sentence. However, I want Ms. Dillon to

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know, and this she will learn for herself early on, that this community-based sentence will not be easy. It will be far from easy. The conditions I will impose will be onerous and will be difficult for her. She will be closely supervised and she will be watched by the community. It is my sincere hope that she has the ability to get through it and she should probably remind herself every day that tough as it is, it is better for her than being in a gaol in Fort Smith hundreds of miles away from her children and her family.

Please stand, Ms. Dillon, and just listen carefully to me. For the crime that you have committed, aggravated assault, contrary to section 268 of the Criminal Code, I hereby impose a sentence of imprisonment of 12 months, and I order that you serve that sentence in this community of Fort McPherson, subject to the following conditions:

1. Keep the peace and be of good behaviour;

2. Appear before this court when required by the court;

3. Report to the supervisor within 48 hours and thereafter as required by the supervisor;

4. Remain within the Northwest Territories unless written permission otherwise is provided by the court or the supervisor;

5. Notify the supervisor in advance of any change

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of name or address and promptly notify the supervisor of any change of employment or occupation;

6. Take any treatment program or counselling program as directed by the supervisor;

7. Abstain from the possession or consumption of alcohol or any illegal drugs;

8. You are prohibited from having any alcohol in your residence, house No. 544;

9. You are prohibited from being in any place where alcohol is served or being consumed;

10. You are to submit to the demand of a police officer for a sample of your blood or breath and you are to allow the police to search your residence at any time for the presence of alcohol;

11. During the first three months of your sentence you shall be under house arrest. That is, you shall remain in your residence, house No. 544, except for one three-consecutive-hour period daily between 8 a.m. and 8 p.m. as arranged with the supervisor, and except for medical emergencies as approved by the supervisor;

12. During the second three-month period of your sentence you will be under house curfew. That is, you shall remain in your residence, house No. 544, from 8 p.m. to 8 a.m. except for medical emergencies as approved by the supervisor;

13. You shall appear at the door of your

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residence whenever required to do so by a police officer or the supervisor during the first six months of your sentence;

14. During the final six months of your sentence you shall report daily to the RCMP detachment or to the supervisor as arranged with the supervisor; and

15. During the final six months of your sentence you shall perform community service work totalling 75 hours as directed by the supervisor.

Now, Ms. Dillon, as I have said, these conditions will be difficult for you. Do you understand these conditions?

THE ACCUSED:  Yes.

THE COURT:   I also want you to understand that if you breach any of these conditions at any time during the 12 months you will be brought before this court and this conditional sentence may be set aside and you may be required to serve the remaining part of your 12-month sentence in gaol in Fort Smith.

You are probably aware, Ms. Dillon, that that is precisely what happened in Margaret Kierstad's case recently, so that should be a reminder to you of what can happen if you do not obey these conditions. I will also advise you that if at any time the supervisor feels that there is a need or desire to change any of these conditions, the supervisor can apply to the court to make the change and that also applies to you and to

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the Crown prosecutor's office.

The sentence of 12 months will be followed by a further 12 months of probation. The conditions in the probation order, in addition to the statutory conditions, will be:

1. Abstain from the consumption of alcohol;

2. Submit to the demand of a police officer for a sample of your blood or breath; and

3. Take any treatment program or counselling program as directed by the probation officer.

The DNA order and the firearms prohibition order sought by the Crown are granted. There will be no victim fine surcharge.

Ms. Dillon, after we adjourn court, it will take the clerk some time to prepare the paperwork. I want you to wait here until that paperwork is completed. The clerk will provide you with copies of the conditional sentence order and the probation order and I am going to ask your lawyer, Mr. Tom Boyd, to review those orders carefully with you and to explain to you again carefully the consequences of any breach of either the conditional sentence order or the probation order, and I wish good luck to you and hope we don't see you back here in court. You can have a seat.

Is there anything further, counsel, on this case? Crown?

MR. SINCLAIR:  No, sir.

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MR. BOYD:   Sir, with respect to condition 11 on the conditional sentence order, after court yesterday Ms. Dillon and myself made contact with the health centre. They will apparently hold the ride which will take people in for medical treatment until mid-morning so I wonder if that could be permitted. The order provides that Ms. Nerysoo could approve it but if it was addressed in court then it just won't prevent her from getting in the vehicle. It's more or less just waiting there for her, holding up the others going in.

THE COURT:   You are saying they are leaving within the hour?

MR.BOYD:   They are hoping to leave within the hour. They said they would wait for her as late as 10:00.

THE COURT:   I want her to wait until the paperwork is completed. Is this Ms. Nerysoo here?

MR. BOYD:   Yes.

THE COURT:   I want her to wait until the paperwork is completed, Mr. Boyd, and after that I am going to rely on Ms. Nerysoo to make those decisions.

MR. BOYD:   Yes, sir, thank you.

THE COURT:   We will close court.

(AT WHICH TIME THE SENTENCE CONCLUDED)

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Certified to be a true and accurate transcript, pursuant to Rules 723 and 724 of the Supreme Court Rules.

Janet Harder
Court Reporter

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