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Abstract: Transcript of the oral reasons for sentence
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R. v. Fraser, 2007 NWTSC 13 S-1-CR-2006000062/S-1-CR-2006000083 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - and - MICHAEL ROBERT FRASER _____________________________________________________ Transcript of the Oral Reasons for Sentence delivered by the Honourable Justice J.E. Richard, sitting at Yellowknife, in the Northwest Territories, on January 31st, A.D. 2007. _____________________________________________________ APPEARANCES: Mr. S. Hinkley: Counsel for the Crown Ms. S. Tkatch: Mr. D. Rideout: Counsel for the Accused (Charges under s. 149(1)(a), 465(1)(c) Criminal Code) Official Court Reporters 1 THE COURT: The offender before the Court 2 is Michael Fraser, a 53-year-old, long-term 3 resident of the Northwest Territories and a man 4 with a long criminal record. 5 Last month he completed his most recent 6 sentence of imprisonment as a result of having 7 committed an offence in January, 2005, the 8 offence being possession of cocaine for the 9 purpose of trafficking. He now pleads guilty to 10 two other offences, both of them serious, both of 11 them outstanding for some time. 12 The first matter is an offence of so-called 13 "public mischief" contrary to section 140 of the 14 Criminal Code. That section of the Criminal Code 15 states that it is an offence to, with intent to 16 mislead, cause the police to enter into an 17 investigation by reporting a non-existent crime. 18 The charge is that in June and July of 2005, 19 with intent to mislead the police, Mr. Fraser 20 caused Inspector Fortin, the Officer in Charge of 21 the Yellowknife Detachment of the RCMP, to enter 22 into an investigation by making a false statement 23 to the effect that certain members of the RCMP 24 had sexually assaulted his female friend, Julie 25 MacKeinzo. 26 The background to this is that in January, 27 2005 Mr. Fraser and his friend, Ms. MacKeinzo, Official Court Reporters 1 1 had been arrested by the RCMP and charged with 2 unlawful possession of cocaine. While those 3 charges were pending, Mr. Fraser and 4 Ms. MacKeinzo attended at the RCMP Detachment to 5 see Inspector Fortin and accused members of the 6 RCMP of sexually assaulting Ms. MacKeinzo while 7 she was detained at the detachment upon her 8 arrest in January, 2005. The accusations were 9 entirely false and Mr. Fraser knew that they were 10 false. 11 Although the Criminal Code terms this 12 offence "public mischief", that is really a 13 misnomer, because the word "mischief" in the 14 English language has the connotation of something 15 minor, or wrongdoing that is merely annoying or 16 irritating. It may be that some crimes of public 17 mischief are minor, but this one is not. It is a 18 serious offence against the administration of 19 justice. As stated by the Alberta Court in the 20 Ambrose case, the sting of this kind of crime is 21 not so much causing the police to waste their 22 time and resources, but, rather, the real harm 23 done is the danger that innocent persons might be 24 prosecuted and lose their reputations, their 25 jobs, their livelihoods. 26 The accusations of Mr. Fraser and 27 Ms. MacKeinzo were taken seriously by the police Official Court Reporters 2 1 authorities. These accusations were investigated 2 promptly and thoroughly. The investigation 3 concluded that nothing untoward had happened at 4 all. Subsequently, Ms. MacKeinzo attended again 5 at the RCMP Detachment and recanted her earlier 6 accusations. 7 Mr. Fraser and Ms. MacKeinzo were both 8 charged under the public mischief section of the 9 Criminal Code. The Crown proceeded separately 10 against each of them and proceeded by indictment. 11 The maximum sentence is five years' imprisonment. 12 Mr. Fraser elected trial by Judge and jury. 13 A Preliminary Inquiry was held in August, 2006 14 and Mr. Fraser was committed to stand trial. A 15 pre-trial conference was held in November, 2006, 16 at which time Mr. Fraser indicated the trial was 17 proceeding. Subpoenas were issued in December, 18 2006 for 11 trial witnesses, including 10 police 19 officers and detachment guards. Mr. Fraser's 20 jury trial was scheduled for March 5th, five 21 weeks from now. 22 Although he came before the Court this week 23 and pleaded guilty and acknowledged that what he 24 told the police commander in June, 2005 was false 25 and although that plea and that acknowledgement 26 act in mitigation of sentence, it cannot be said 27 that this plea of guilty to that charge is made Official Court Reporters 3 1 by Mr. Fraser at the earliest reasonable 2 opportunity. 3 One of the purposes of the sentencing 4 process is to promote respect for the law. The 5 principles of denunciation and deterrence are 6 particularly important considerations in 7 determining an appropriate sentence in this case, 8 as is the principle of proportionality, in other 9 words, the sentence ought to be proportionate to 10 the gravity of the crime. 11 If I were to consider this offence as a 12 stand alone offence, and taking into 13 consideration all of the circumstances of this 14 offence committed by this offender, including the 15 circumstances of the plea to this offence and the 16 criminal history of this offender, I would have 17 imposed a sentence of 18 months' imprisonment. 18 I turn now to the other serious offence to 19 which Mr. Fraser pleads guilty. He is charged in 20 an indictment with conspiring with another man, a 21 Mr. Wong, to commit the crime of trafficking in 22 cocaine contrary to section 465 of the Criminal 23 Code. The time frame in the indictment is July 24 to October, 2005. 25 It is a notorious fact in our community that 26 there has been a flourishing but illegal trade in 27 cocaine in Yellowknife for a number of years. I Official Court Reporters 4 1 will repeat again what was said in another case 2 in this courtroom a few months ago: 3 "The illegal trade in cocaine and 4 crack cocaine in Yellowknife has had 5 a devastating effect on the people 6 and on the social life of our 7 community. We know this because of 8 the many cases that come before the 9 courts where we see the snowball 10 effect on the commission of crimes 11 in this community. We see thefts, 12 B & Es, assaults, domestic violence, 13 and we have seen homicides, all 14 related to cocaine addiction. We 15 have seen broken families. We have 16 seen destroyed lives. It has been 17 said many times in this courtroom 18 that the illegal cocaine trade is 19 like a plague which has infested the 20 social fabric of our community. 21 Those who are involved in the supply 22 and sale and trafficking of cocaine 23 are like vultures or predators who 24 are preying upon those weak members 25 of the community who are addicted to 26 this drug. The traffickers are 27 presumably doing this for profit or Official Court Reporters 5 1 money. They apparently have no 2 scruples about preying upon 3 vulnerable people. For this reason 4 alone, they ought to be punished. 5 They are doing so even though there 6 is a risk that they will end up in 7 jail for a substantial period of 8 time." 9 I will acknowledge here that it is said on 10 behalf of Michael Fraser on this sentencing 11 hearing that he was engaged in cocaine 12 trafficking in our community, in part, to finance 13 his own addiction to cocaine. 14 The RCMP in Yellowknife have devoted many 15 resources to combatting the illegal cocaine trade 16 in Yellowknife in recent years and have conducted 17 major investigations. One such major 18 investigation resulted in this charge against 19 Mr. Fraser and many charges against other 20 individuals. 21 One of the primary targets in the subject 22 investigation was Mr. Wong. The RCMP obtained 23 judicial authorization to intercept Mr. Wong's 24 private communications, commonly known as wire 25 taps. They intercepted Mr. Wong's telephone 26 communications, and, also, by means of a 27 recording device placed within his residence they Official Court Reporters 6 1 intercepted conversations taking place there. In 2 this manner, the police learned of conversations 3 between Mr. Wong and Mr. Fraser, and in-person 4 meetings between Mr. Wong and Mr. Fraser, in 5 which they discussed Mr. Wong supplying 6 quantities of cocaine to Mr. Fraser for resale on 7 the streets of Yellowknife. 8 In one conversation between the two of them 9 on September 16th, 2005 Mr. Fraser is heard to 10 say that he wanted to get going again with his 11 trafficking in cocaine. I pause here to note 12 that this would have been at a point in time when 13 he was on bail awaiting trial on a cocaine 14 possession for the purpose charge stemming from 15 January, 2005 for which he was later convicted 16 and sentenced. 17 The transactions which Mr. Wong and Mr. 18 Fraser were discussing and on which they made 19 agreements generally involved quantities of one 20 ounce or less, although Mr. Fraser is heard to 21 request three or four ounces at a time. The 22 recorded conversations also give an indication 23 that Mr. Fraser had many customers, and perhaps 24 also one or more street dealers working for him. 25 Mr. Fraser was arrested and charged in 26 connection with this cocaine trafficking matter 27 in October, 2005 and released on bail. A few Official Court Reporters 7 1 months later he was arrested on the public 2 mischief charge. Although he has been in custody 3 since December, 2005, counsel on this sentencing 4 hearing are in agreement that because of other 5 matters, including being a serving prisoner, that 6 he has only been in remand, in effect, on the 7 matters for which he is being sentenced today 8 since December 24th, 2006, or one month ago. 9 Mr. Fraser elected trial by Judge and jury 10 on the drug conspiracy charge. The Preliminary 11 Inquiry was concluded in late October, 2006 and 12 Mr. Fraser was committed to stand trial. The 13 trial date had not yet been set when Mr. Fraser 14 appeared in court this week to plead guilty to 15 this charge. 16 Crown counsel concedes that had the trial of 17 the charge against Mr. Fraser proceeded, it would 18 have likely required a lot of time and resources, 19 given the anticipated challenges to the validity 20 of the wire tap authorizations and, in any event, 21 the sheer quantity or length of the wire tap 22 evidence. Crown counsel acknowledges, then, that 23 Mr. Fraser's plea of guilty operates in 24 mitigation of sentence on this drug conspiracy 25 charge for that reason. 26 Once again, denunciation and deterrence, 27 both general and specific, are important Official Court Reporters 8 1 principles in determining the appropriate 2 sentence for this drug conspiracy charge. To 3 these I would add the principle of parity. That 4 is, the law requires that any sentence imposed be 5 similar to sentences imposed on similar offenders 6 for the commission of a similar offence. Sadly, 7 we have had lots of similar offences and similar 8 offenders in Yellowknife in recent years. 9 Mr. Fraser's guilty plea is a mitigating 10 feature in the determination of an appropriate 11 sentence on the drug conspiracy charge. An 12 aggravating feature of this crime is the fact 13 that he was engaged in this illegal activity 14 while on bail and awaiting his trial for a 15 similar offence. 16 His past life of criminal behaviour is also 17 an aggravating factor. He has a horrendous 18 criminal record. That record is mainly one of 19 property offences, but also includes many crimes 20 of violence, and drug offences. He has been 21 sentenced to a penitentiary term on four separate 22 occasions in the last 20 years. He has four 23 prior convictions for drug offences, including 24 three in the past five years. Indeed, we are 25 instructed by Parliament in section 10 of the 26 Controlled Drugs and Substances Act that his 27 similar convictions in the year 2002 and the year Official Court Reporters 9 1 2006 constitute an aggravating factor in this 2 sentencing determination. 3 If I were to consider this drug conspiracy 4 offence as a stand alone offence, and taking into 5 consideration all of the circumstances of this 6 offence and this offender, including the guilty 7 plea, I would have imposed a sentence of two 8 years' imprisonment. 9 These two offences of which Mr. Fraser is 10 convicted today are separate and unrelated. 11 There is no connection between the two. The only 12 element they have in common is that both were 13 committed within the same three or four-month 14 time frame here in Yellowknife. 15 Separate offences merit separate punishment. 16 In the normal course, then, consecutive sentences 17 ought to be imposed. In that regard, I am then 18 required by law to consider the principle of 19 totality, as Parliament has provided a direction 20 to sentencing Judges in section 718.2 of the 21 Criminal Code that where consecutive sentences 22 are to be imposed, the combined sentence should 23 not be unduly long or harsh. 24 If I imposed the two individual sentences 25 that I have mentioned and made them consecutive, 26 the global sentence would be three and a half 27 years' imprisonment. Upon careful consideration, Official Court Reporters 10 1 I cannot say that such a combined sentence would 2 be either harsh or unduly long in the 3 circumstances before me. 4 However, I have been given by two Crown 5 counsel and defence counsel for Mr. Fraser a 6 joint recommendation or a joint submission for a 7 global sentence for Mr. Fraser of two and a half 8 years' imprisonment. 9 Although a joint submission from counsel in 10 the case is not binding on me as sentencing 11 Judge, I am required by law to give it serious 12 consideration. Previous decisions of this Court 13 and of the Court of Appeal indicate that a 14 sentencing Judge should depart from the joint 15 submission only if there are cogent reasons for 16 doing so; for example, if the sentence being 17 recommended is unfit or unreasonable or contrary 18 to the public interest. 19 So I have considered that question, as I am 20 required to do so: Is a global sentence of two 21 and a half years for these two crimes unfit or 22 unreasonable? In my view, it is light, or on the 23 lenient side, and, although I might disagree with 24 it, upon reflection I am unable to say that it is 25 unfit or unreasonable. 26 It is in the public interest that reasonable 27 plea bargains be encouraged, as well as joint Official Court Reporters 11 1 submissions on sentencing, so that trials do not 2 have to be held in every case, so that witnesses 3 do not have to be further inconvenienced, so that 4 the workload or the backlog of cases before the 5 Court can be dealt with in a more expedient way; 6 always, though, with the proviso that the 7 ultimate sentence is in the Court's discretion in 8 the final analysis. 9 Again, on reflection, I cannot say that a 10 global sentence of two and a half years' 11 imprisonment for Mr. Fraser for these two crimes 12 is contrary to the public interest. 13 In some other cases, the Court has not 14 hesitated to depart from a joint submission when 15 the proposed sentence is unreasonable, but, after 16 careful deliberation, I find that this is not one 17 of those cases. 18 So, after much deliberation, I have decided 19 to accept counsels' joint recommendation on an 20 appropriate global sentence. 21 I decline to make any recommendation or 22 endorsement about where Mr. Fraser might serve 23 his term of imprisonment. I know nothing about 24 William Head Institution at Victoria, B.C. or the 25 programs or resources available there, and it 26 would be irresponsible of me to make any such 27 recommendation. The corrections authorities, I Official Court Reporters 12 1 am certain, are familiar with Michael Fraser, and 2 it is for them to decide where Mr. Fraser should 3 appropriately serve his sentence. 4 Please stand, Mr. Fraser. Michael Fraser, 5 for the two crimes that you have been convicted 6 of, the sentence of the Court is as follows: For 7 the offence of conspiring to traffic in cocaine 8 contrary to section 465 of the Criminal Code, the 9 sentence is two and a half years' imprisonment. 10 For the offence of public mischief contrary to 11 section 140 of the Criminal Code, the sentence is 12 two and a half years' imprisonment concurrent. 13 In the circumstances, there will be no 14 victim fine surcharge. 15 You may sit. Now, counsel, is there 16 anything further on this case? 17 MR. HINKLEY: Not from the Crown, Your 18 Honour, no. 19 MR. RIDEOUT: Nothing further, Your Honour. 20 THE COURT: Fine. Thank you. We will 21 close court. 22 Certified to be a true and accurate transcript pursuant 23 to Rules 723 and 724 of the Supreme Court Rules. 24 25 ______________________________ 26 Jill MacDonald, CSR(A), RPR 27 Court Reporter Official Court Reporters 13
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