Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the oral reasons for sentence
Decision Content
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)
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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