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Abstract: Reasons for Judgment and Reasons for Sentence
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R. v. Storr, 2008 NWTSC 36 S-1-CR-2007-000049 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - WAYLON STORR __________________________________________________________ Transcript of the Reasons for Judgment and Reasons for Sentence delivered by The Honourable Justice J.Z. Vertes, sitting in Inuvik, in the Northwest Territories, on the 13th day of May, A.D. 2008. __________________________________________________________ APPEARANCES: Mr. B. Lepage: Counsel for the Crown Mr. W. Storr: For himself (Charges under s. 266, 348(1)(b) and 88(1) Criminal Code) Official Court Reporters 1 THE COURT: Waylon Storr is charged with 2 three offences: (1) an assault on Jolene Lennie, 3 contrary to Section 266 of the Criminal Code; (2) 4 break, enter and commit mischief in the residence 5 of Jolene Lennie, contrary to Section 348(1)(b); 6 and (3) carrying a knife for the purpose of 7 committing an offence, contrary to Section 88(2) 8 of the Criminal Code. All of the alleged 9 offences arise out of the same sequence of events 10 occurring in the early morning hours of November 11 4, 2006, in Inuvik. 12 Here are the facts as I find them to be 13 based on the evidence I accept. 14 The accused and his then girlfriend, Sarah 15 MacNabb, were drinking at a party. They argued. 16 Sarah left and went to the home of Jolene Lennie. 17 Shortly thereafter the accused arrived. He 18 came in the front door of the residence. The 19 evidence is not clear as to whether the door was 20 closed or open, but it is agreed that it was not 21 locked. Jolene told him not to come in. He 22 forced himself in. Jolene's evidence on these 23 points was corroborated by Debbie Bernhardt and 24 Sarah. In the process of forcing himself in, the 25 accused struck Jolene in the face. This evidence 26 from Jolene is corroborated by Debbie. 27 Once inside the living room, the accused Official Court Reporters 1 1 tried to get Sarah to leave with him. She did 2 not want to. At one point, there was a 3 tug-of-war over Sarah with the accused on one end 4 and Jolene and Debbie on the other. 5 The accused then went into the kitchen and 6 took a kitchen knife. Jolene followed him, but 7 he pushed her out of the way and he punched her 8 again. He then went toward Sarah with the knife 9 in his hand. He was telling her he loved her and 10 wanted her to go with him. Debbie heard him say 11 he would cut his wrists, and at one point the 12 accused inflicted some superficial cuts on his 13 wrist. 14 The others in the house managed to calm him 15 down and the police were called. 16 This summary is taken from the evidence 17 given by Jolene and Debra. I accept it. I found 18 both witnesses to be straightforward. They did 19 not demonstrate any hostility or animosity toward 20 the accused, and I did not detect any tendency to 21 embellish what they had to say. 22 In some respects the evidence of Sarah 23 supports this narrative, but she did not see or 24 hear much because Debra was shielding her 25 throughout much of this. 26 The accused testified. He denied striking 27 Jolene at any time. He said he took the knife Official Court Reporters 2 1 because he thought Jolene was going for it. All 2 he did, he said, was to break the knife in two 3 and throw it away. He kept asking Sarah to go 4 with him, but she would not answer. 5 I do not believe the accused's version of 6 events, nor does his evidence leave me with a 7 reasonable doubt as to the facts recited above. 8 The main reason I say that is because of the 9 accused's own admission that he had been drinking 10 quite a bit that night. As he put it: "I just 11 remember flashes of that evening because I was 12 drinking." He says he was blacking in and out 13 and his memory of events is shaky. Asked why he 14 cut himself, he said he does not know, he cannot 15 remember, but obviously he did because, the next 16 morning, he had the cuts. 17 His intoxication was confirmed by the 18 observations of the arresting officers. Indeed, 19 the arresting officers were so concerned about 20 his condition that they wanted to take him for a 21 mental health assessment the following morning. 22 Debra described him, as well, as acting "freaky". 23 On Count 1, the charge of assault, I am 24 satisfied beyond a reasonable doubt that the 25 accused struck Jolene Lennie, as she said. I 26 therefore find him guilty of that charge. 27 On Count 2, the charge is breaking and Official Court Reporters 3 1 entering and committing the offence of mischief. 2 There is no question that the accused entered 3 Jolene Lennie's residence. However, I am not 4 convinced that the evidence establishes the 5 requisite "breaking" part of the offence. 6 Section 321 defines "break" as, among other 7 things, to open any thing that is used or 8 intended to be used to close or to cover an 9 opening. As I noted earlier, the evidence is not 10 clear as to whether the door to the Lennie 11 residence was open or closed. If it was open, I 12 fail to see how the full "break and enter" 13 offence can be said to have been committed. 14 There is no question that the accused came 15 into the residence over Jolene's objections. He 16 forced his way in. For that reason, I had 17 thought that it could be said he had committed 18 the offence of forcible entry, contrary to 19 Section 72 of the Criminal Code. Whether that 20 offence, however, is an included offence of the 21 offence under Section 348(1)(b) is unclear. A 22 2001 decision from the British Columbia Court of 23 Appeal, R. v. Schizgal, reported at 153 C.C.C. 24 (3d) 245, says it is not. 25 The Indictment, however, is worded so as to 26 incorporate the offence of mischief. That is a 27 lesser and included offence. One of the Official Court Reporters 4 1 definitions of mischief is the obstruction, 2 interruption or interference with the lawful use 3 or enjoyment of property. There is no question 4 that the actions of the accused interrupted the 5 lawful use of the Lennie residence by Jolene and 6 her invited guests. Furthermore, since mischief 7 is a general intent offence, the accused's 8 intoxication is not a defence. 9 Therefore, on Count 2, I find the accused 10 not guilty of the offence charged but guilty of 11 the lesser and included offence of mischief, 12 contrary to Section 430(1)(c) of the Criminal 13 Code. 14 Finally, on Count 3, the charge of carrying 15 a knife for the purpose of committing an offence, 16 Crown counsel concedes that this is a specific 17 intent offence. Intoxication, therefore, may 18 negate that intent. 19 In this case, there is ample evidence of the 20 accused's erratic behaviour. As Debra said, he 21 was acting "freaky". His actions were not those 22 of someone capable of forming a specific intent, 23 or, at least, the evidence raises a reasonable 24 doubt about his intent. 25 When asked about what offence the Crown is 26 alleging the accused had the knife for, Crown 27 counsel said it was to threaten Sarah or others Official Court Reporters 5 1 and, in that way, to get Sarah to go with him. 2 Debra at one point said that she heard the 3 accused say he will kill Sarah. But this was at 4 the same time, as she testified, that the accused 5 said he was going to kill himself. If that 6 statement was made, and I am not convinced that 7 it was, this seems more indicative of an 8 individual who is not thinking clearly and who 9 does not have the capacity to form the specific 10 intent necessary to support this charge. 11 Therefore, I find the accused not guilty on 12 Count 3. 13 (SUBMISSIONS ON SENTENCE BY COUNSEL) 14 (ADJOURNMENT) 15 THE COURT: The accused, Waylon Storr, was 16 convicted by me after a short trial on two 17 charges: One of assault, contrary to Section 266 18 of the Criminal Code, and the other of mischief, 19 contrary to Section 430(1)(c) of the Criminal 20 Code. 21 The case has a long history. The 22 circumstances of the offences are set out in my 23 reasons for judgment that I just delivered. The 24 facts as I found them to be in the support of the 25 two convictions are set out therein. 26 The offences occurred on November 4, 2006. 27 The accused had a preliminary inquiry. He was Official Court Reporters 6 1 committed to stand trial on May 16th, 2007. His 2 counsel withdrew on October 29th, 2007. There 3 were appearances in this court in October and 4 March of this year, and the accused appeared for 5 his trial and for his sentencing representing 6 himself. 7 He had been told at his last court 8 appearance in March that the case was proceeding 9 this week with or without a lawyer. Having said 10 that, I have to acknowledge that the accused 11 represented himself appropriately and put forth 12 submissions on his own behalf with respect to the 13 matters that I had to consider. 14 From examining the file, it appears that the 15 accused has been free on judicial interim release 16 since he was charged in December of 2006. It 17 does not appear that there were any conditions on 18 that release, and nothing has been said to me 19 that the accused has caused any difficulty since 20 he was charged and during that period of release 21 awaiting trial. 22 Crown counsel has provided me with a 23 criminal record. It is very brief. The accused 24 was convicted in June of 2006 of a charge of 25 assaulting a police officer. He was fined $750. 26 The accused is 22 years old. He lives with 27 his parents here in Inuvik. He has a Grade 11 Official Court Reporters 7 1 education but has training in welding and 2 mechanics. He had been working in the family 3 construction and trucking business up until last 4 year when it ceased operations. He tells me he 5 is trying to get into an apprenticeship program 6 and there is a good prospect of his doing so. 7 Crown counsel has submitted that the 8 circumstances of the offences call for a short 9 jail term plus a period of probation. That 10 probation period, Crown counsel suggests, should 11 at least include a requirement that the accused 12 attend any counselling or treatment programs as 13 may be directed by his probation officer to deal 14 with anger management and probably alcohol abuse 15 issues. The accused tells me that he is willing 16 to engage in such programs and that he thinks it 17 would be a good idea. 18 I must say that I gave serious consideration 19 to a short jail term when I first thought about 20 the circumstances of this offence, but learning 21 more about Mr. Storr's background, and 22 particularly considering the fact that he has 23 been out on release since being charged awaiting 24 trial for such a long period of time without any 25 apparent incident, satisfies me that the goals of 26 sentencing can be met without sending Mr. Storr 27 to jail. Official Court Reporters 8 1 Mr. Storr, stand up, sir. I thought you 2 handled yourself very well during the trial and 3 in making your comments on sentencing. And as I 4 said, ordinarily, if your personal circumstances 5 were not the way they are, I think anybody would 6 give serious consideration to a jail term. I am 7 not going to do that. Instead, I am going to 8 suspend the passing of sentence and I am going to 9 put you on probation for a period of two years. 10 The conditions of probation are this. You are to 11 keep the peace and be of good behaviour. 12 MR. STORR: Yeah. 13 THE COURT: Two, you are to report to the 14 Court if and when required to do so. 15 MR. STORR: Yes. 16 THE COURT: You are to seek and maintain 17 steady employment or attendance at an education 18 or trades training course. You are to report to 19 and be under the supervision of a probation 20 officer, and you are to report to the probation 21 officer here in Inuvik within 48 hours. 22 MR. STORR: Yeah. 23 THE COURT: You are to attend any 24 counselling or treatment programs as directed by 25 the probation officer. Do you agree to that? 26 MR. STORR: Yes. 27 THE COURT: You are not to contact Jolene Official Court Reporters 9 1 Lennie or to approach her residence. You are to 2 perform 120 hours of community service work 3 during the first 12 months of your probation 4 period under the direction of your probation 5 officer. 6 MR. STORR: Yeah. 7 THE COURT: And during the first 12 months 8 of your probation, you are not to be in any bar 9 unless you are working there; and if you are 10 working in a bar as a bouncer, as you told me, 11 then you are to be sober. 12 MR. STORR: Yeah. 13 THE COURT: You understand those 14 conditions? 15 MR. STORR: Yes. 16 THE COURT: Now, I have suspended the 17 passing of sentence, and what that means, and you 18 should be clear about this, Mr. Storr, if you 19 break any of these conditions, if you commit an 20 offence, then you can be brought before me and I 21 can sentence you, re-sentence you, for these 22 charges. Do you understand? 23 MR. STORR: Yes. 24 THE COURT: All right. A suspended 25 sentence will apply on both charges, Madam Clerk. 26 THE COURT CLERK: Thank you, sir. 27 THE COURT: You can have a seat. Official Court Reporters 10 1 Under the circumstances, I will waive the 2 requirement for a victim of crime surcharge. Is 3 there anything I have neglected, Mr. Lepage? 4 MR. LEPAGE: No, Your Honour. Thank you. 5 THE COURT: Mr. Storr, you are going to 6 have to stick around while the clerk prepares the 7 probation order. You are going to have a chance 8 to review it. You will have to sign it. And 9 then, Mr. Lepage, perhaps you can give 10 information to Mr. Storr how he can get in touch 11 with the probation officer. 12 MR. LEPAGE: Certainly, Your Honour. 13 THE COURT: Do you have any questions, 14 Mr. Storr? 15 MR. STORR: No. 16 THE COURT: Then thank you. Thank you, 17 Mr. Lepage. 18 ................................. 19 20 21 Certified Pursuant to Rule 723 of the Rules of Court 22 23 24 Jane Romanowich, CSR(A), RPR 25 Court Reporter 26 27 Official Court Reporters 11
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