Supreme Court

R. v. Sanguez, 2005 NWTSC 39
Date: 20050408
Docket: S-1-CR2004000007

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


GAIL SANGUEZ


Transcript of the Reasons for Sentence by The Honourable Justice J.Z. Vertes, at Hay River in the Northwest Territories, on March 29th A.D., 2005.


APPEARANCES:

Mr. J. Burke:   Counsel for the Crown

Mr. M. Hansen:   Counsel for the Accused


Charge under s. 334(a) Criminal Code of Canada


THE COURT:   Gail Sanguez has entered a plea of guilty to a charge of theft, contrary to Section 334(a) of the Criminal Code. Specifically, she has admitted that, over a period of four months, she stole a total of $16,839.75 from her employer. Her employer was, in effect, her community. She was the manager of the general store located in Jean Marie River, a store owned by the Jean Marie River First Nation. Jean Marie River is a tiny community of less than 100 people located some 100 kilometers from Fort Simpson.

The theft was accomplished by a series of withdrawals, some 58 separate transactions in total, from the store's account. The result of this financial loss was the closure of the store, the only grocery store in Jean Marie River. The effect on the community was succinctly put in a statement written by the Band Manager of the Jean Marie River First Nation. He wrote;

“What did we lose and what did it cost?

- We lost $16,000.

- We lost our little general store.

- We lost local shopping.

- We lost profits that would have gone to our band.

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- We lost employment for two individuals.

- It costs our people time and expense to go shopping in Fort Simpson.

- It also set a bad example for the youth of the community”.

The community, as represented by the Band Council, feels a degree of sympathy for the accused and her family. But at the same time it felt, quite understandably in my view, that this conduct must be made an example of so that it does not happen again.

The accused is 36 years old. She is married and the mother of five children. Her husband is frequently away from home since he travels to Alberta for work.

I was told that this theft was caused by a combination of alcohol abuse and financial stress. The thefts started as small withdrawals, taken with the intent of repayment, but then continued and escalated. By all accounts, this conduct is viewed by most people as being out-of-character for the accused. She has no prior criminal record. And she indicated early in the proceedings against her that she wished to plead guilty to this charge. That is a highly

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mitigating factor.

The traditional approach to sentencing for this kind of offence, one involving a breach of trust, has been to emphasize deterrence. This usually resulted in sentences of imprisonment, often in a penitentiary, absent exceptional circumstances. Today, however, the Courts are instructed by Parliament to take an individualized approach to sentencing, to look for the least restrictive sanction available while fashioning a sentence that is proportionate to the seriousness of the crime and the blameworthiness of the offender.

This modern approach has led to numerous cases, including several recent ones from this jurisdiction, where offenders who stole from their employers were sentenced to something other than in-custody terms. This does not mean, however, that sentences of imprisonment will not be imposed in these types of cases. Indeed, this just emphasizes the fact that sentencing must be done on an individualized basis.

In the present case, Crown counsel has submitted that a conditional sentence would be appropriate. Defence counsel agreed with that submission although he argued over the length. Both counsel, however, recognized the importance

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of restitution in this case. Restitution, in these circumstances, recognizes that it is the community at large who have suffered by this crime and also demonstrates the desire and willingness of the accused to be reintegrated with the community. This is particularly important in the context here where the accused is an aboriginal offender living within a small aboriginal community where the interests of restoration and harmony may be more important than individual punishment.

In my opinion a conditional sentence, in this particular case, can address the objective of restoring this accused with her community as well as those of deterrence and denunciation. The statutory criteria for such a sentence are met. I would not impose a penitentiary sentence in this case nor would I consider a purely non-custodial sentence to be appropriate. There is no evidence that this accused poses a danger to the community. Nor would a conditional sentence, in my opinion, be contrary to the fundamental principles and objectives of sentencing.

Some of the proposed conditions have given me some cause for concern. There is no sentence supervisor or probation officer in Jean Marie

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River. There is no resident police officer. So, in essence, the entire community will have to become supervisors. I expect that if there is a violation of any condition then they will report it. Also, since the accused's supervisor will be based in Fort Simpson, I expect that there will have to be some flexibility in the supervision. The accused will probably have to travel to Fort Simpson regularly and I expect that the accused will take it upon herself to work closely with her supervisor. But, because of these logistical issues, and the fact that often the accused will be the only parent at home taking care of the children, in my opinion it is unrealistic to impose a condition of house arrest as is customary in conditional sentence orders. I think there are other ways, however, of achieving the punitive objects of the sentence.

In reference to the logistical limitations that I just recounted, the fact that there are few resources, if any, available locally in Jean Marie River should not act as a deterrent to providing this accused with the same range of sanctions that are available to any other accused in this country. I did not hear Crown counsel take that position because in fact it was Crown counsel who suggested a conditional sentence

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order. But I think it is important to emphasize that just because there may be logistical problems and practical concerns with respect to how a conditional sentence is going to be supervised in a small, out-of-the-way community with few resources and with no resident supervisor, that itself should be no impediment to imposing a conditional sentence just as any other similarly situated offender would receive in any other community in this country. If it becomes an issue then obviously the authorities will have to address the lack of resources available in our communities.

I also had concerns, however, over the accused's ability to make restitution given the high cost of living in Jean Marie River. I am told that she has employment available to her in the local sawmill. She is apparently the only person who can operate the notcher machine which is used to prepare logs for house construction. She will be paid $15 per hour. Crown and defence have suggested a schedule for payment of the restitution. Plus, in addition to any other sanctions, if the accused does not pay the restitution as ordered, the Jean Marie River First Nations Band may take civil enforcement proceedings pursuant to Section 741 of the

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Criminal Code.

For these reasons, I sentence the accused to a term of two years less one day to be served conditionally in her community. Ms. Sanguez, the conditions will be as follows:

(1) You are to keep the peace and be of good behaviour;

(2) You are to report to this Court if and when required to do so;

(3) You are to report to the conditional sentence supervisor in Fort Simpson within 72 hours and be under supervision for the duration of the conditional sentence;

(4) You are to remain within the jurisdiction of the Court and not leave the Northwest Territories without first obtaining permission from your supervisor or the Court;

(5) You are to seek and/or maintain employment;

(6) You are to perform 180 hours of community service work within the first 18 months of this order as directed by your supervisor;

(7) You are to abstain absolutely from the consumption or possession of alcohol and prohibited narcotic drugs;

(8) You are to attend such counselling or treatment programmes as may be directed by your

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supervisor;

(9) You are to maintain a curfew in Jean Marie River where you will be required to be at home between the hours of 10 p.m. and 6 a.m. except in case of an emergency or if given permission by your supervisor to be away from home at other hours;

(10) You are to pay restitution in the total sum of $16,839.75 as follows:

(a) all payments are to be sent to the Clerk of the Court in Yellowknife for the benefit of the Jean Marie River First Nations Band;

(b) the minimum sum of $3,000 in total must be paid by no later than September 28th, 2005. That can be paid in one lump sum or it can be paid in little bits from time to time but the requirement is to pay at least $3,000 by no later than September 28th, 2005;

(c) a further sum of at least $3,000, either in a lump sum or in smaller payments over time, is to be paid by no later than March 28th, 2006;

(d) a further sum of $3,000 is to be

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paid by no later than September 28th, 2006;

(e) the balance of $7,839.75, or whatever lesser amount is still owing, is to be paid by no later than the expiry date of this sentence.

Now, Ms. Sanguez, that restitution provides for a schedule of payments over the course of the next two years. If for some reason you are unable to make these payments, if for some reason you run into difficulty, then speak to your supervisor. If you run into any difficulty with any aspect of this sentence, speak to your supervisor. Because, I must tell you, if you do not comply with any of these conditions, if you breach any of these conditions, if you do not satisfy any of these conditions, then you can be brought back to court and the conditional sentence could be suspended and you could be required to spend the rest of the time in jail. Do you understand that?

THE ACCUSED:  (Affirmative nod)

THE COURT:   If you commit another offence, you could be charged for that. If any of these conditions need to be changed, speak to your supervisor because there are very simple ways of

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making those changes if they are appropriate. Work with your supervisor, Ms. Sanguez. I am sure that neither you nor your family nor your community wants to see you sitting behind bars for no good reason.

I am sure your counsel will go over the conditional sentence order in detail with you and, Mr. Hansen, I encourage you to review those particular sections of the Criminal Code with your client.

Is there anything that I have neglected, counsel? Mr. Burke?

MR. BURKE:   No, sir, thank you.

MR. HANSEN:   No, sir. The only suggestion that I would make, sir, is where you refer to “with permission” that it be written permission so there is no confusion.

THE COURT:   Yes, certainly when I talk about permission from the supervisor, it should be written permission but my emphasis here is to speak to the supervisor beforehand.

MR. HANSEN:   Yes, sir.

THE COURT:   Don't expect to be forgiven after the fact. Do you understand what I mean? This is a situation where you to have seek permission beforehand if there is going to be any deviation from this order. And if your

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supervisor suggests some counselling program, some treatment programs, then discuss it with your supervisor.

THE ACCUSED:  (Affirmative nod)

THE COURT:   If you encounter difficulties, discuss that with your supervisor.

THE ACCUSED:  (Affirmative nod).

THE COURT:   I am going to direct, Madam Reporter, that a transcript be prepared of my remarks on the sentencing and in due course copies should be forwarded to the sentence supervisor in Fort Simpson. And I ask that you forward a copy of the transcript to the Band Manager of the Jean Marie River First Nations in Jean Marie River so the community can have it available for their review as well so that they know what happened in this case and they know what conditions Ms. Sanguez must comply with.

If there nothing else, counsel, thank you for your assistance, we will close court.



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

Lois Hewitt,
Court Reporter

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