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Abstract: Transcript of the Reasons for Sentence
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R. v Avadluk 2009 NWTSC 28 S-1-CR2007000107 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - NOEL JUNIOR AVADLUK _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice L. A. Charbonneau, at Hay River in the Northwest Territories, on May 5th A.D., 2009. _________________________________________________________ APPEARANCES: Mr. M. Himmelman: Counsel for the Crown Mr. T. Boyd: Counsel for the Accused ---------------------------------------- Charge under s. 271 Criminal Code of Canada An Order has been made banning publication of the Complainant/Witness Pursuant to Section 486.4 of the Criminal Code of Canada Official Court Reporters 1 THE COURT: Good afternoon, everyone. 2 Before I begin, I just want to remind 3 everyone that yesterday I confirmed that there 4 was a publication ban in this matter which means 5 that any information that could disclose the 6 identity of the complainant is not to be 7 published or broadcast in any way. 8 Noel Junior Avadluk has pleaded guilty to a 9 charge of sexual assault, and today it is my task 10 to impose a fit sentence for that crime. There 11 are many things that must be taken into 12 consideration when sentencing a person. I must 13 say that I found the submissions that I heard 14 yesterday from both counsel very thorough and 15 very well presented. It was clear to me that 16 both of them have put a great deal of thought and 17 effort into this case and I did find their 18 submissions very helpful in arriving at what is 19 not an easy decision. 20 Mr. Avadluk also spoke yesterday morning and 21 he spoke for quite some time about some of the 22 struggles that he has faced in his life, some of 23 the things that he has come to realize and 24 understand about himself over the past months, 25 and how he wants to move forward from here. I 26 listened to him carefully and I have also given a 27 lot of thought to the things that he has told the Official Court Reporters 1 1 Court. 2 The circumstances of the offence committed 3 by Mr. Avadluk are set out in an agreed statement 4 of facts that was made an exhibit. It was marked 5 as Exhibit 1. Those facts were read into the 6 record when Mr. Avadluk entered his guilty plea 7 in Yellowknife on May 1st, and they were read 8 again into the record yesterday. I am not going 9 to read the whole document in its entirety but to 10 put my sentencing decision in context, I must 11 refer, to some extent, to what happened that day 12 because it is why we are all here. 13 In June of 2007 when this offence was 14 committed, the victim of this crime was 63 years 15 old. She came upon Mr. Avadluk when she was on 16 her way to a radio studio situated on the third 17 floor of the highrise building here in Hay River. 18 She went up the stairs, and Mr. Avadluk followed 19 her. She let him go by. He asked her what floor 20 she was going to and she told him. He said that 21 he was going to another floor. Before this day, 22 she did not know who he was. 23 When she arrived at the door of the unit 24 where she was going and unlocked the door, she 25 realized that Mr. Avadluk was right beside her. 26 She went into the unit and tried to close the 27 door but he prevented her from doing so. She did Official Court Reporters 2 1 everything that she could to try to keep him out. 2 But it did not work and he was eventually able to 3 force his way in. She screamed for help but he 4 put his hand over her mouth and pushed her to the 5 floor. She tried to struggle but eventually she 6 stopped because she was having difficulty 7 breathing. They then got up off the floor. He 8 asked her for some money and she gave him what 9 she had which was just small change. She asked 10 him what he wanted. He pushed her back to the 11 floor and then started sexually assaulting her by 12 putting his hands down her pants. He put his 13 fingers in her vagina and she thinks he stayed 14 that way for half an hour. He then got her to go 15 to the main area of the unit and held her with 16 her back over a chair. She said that hurt her 17 back so he put her back onto the floor. Her 18 estimate is that she was kept on the floor for 19 over two hours, and that he was touching her for 20 most of this time. At times she was able to get 21 his finger out of her but then he put it back in. 22 She was afraid he would have forced intercourse 23 with her. She was afraid that he would kill her. 24 At times he pulled her pants down and she pulled 25 them back up. At times he would lift her blouse 26 and touch her breasts and she would pull it back 27 down. She tried to resist at one point but he Official Court Reporters 3 1 pulled her hair so she stopped fighting. 2 Mr. Avadluk eventually told her that he was 3 going to leave. He sat down and she sat with 4 him. They talked. They later walked down the 5 hallway and he got on his knees and asked her to 6 forgive him. After he left, she returned to the 7 studio and called her husband who immediately 8 called the police. 9 It was about 1 o'clock in the afternoon when 10 she first arrived at the highrise that day. It 11 was about a quarter to four when she returned to 12 the studio and called her husband. So this 13 ordeal lasted well over two hours, almost three 14 hours. 15 The victim was treated at the outpatient 16 services at the local hospital. She had bruising 17 to various parts of her body. And I have no 18 doubt that those two to three hours of her life 19 left an impact less visible than bruises but far 20 more significant because this had to have been a 21 very very traumatic event for her. 22 Mr. Avadluk was on process when this 23 happened. On April 11th, he had been released on 24 an undertaking for various charges and he has 25 been in custody since his arrest the day 26 following this event. I was told that a few 27 months later he was sentenced on unrelated Official Court Reporters 4 1 matters and that the time that he spent on remand 2 from the point of arrest to the point of that 3 sentencing was taken into account at that 4 sentencing. So for this charge he has been in 5 pre-trial custody for 18 months. 6 Sentencing is not an exact science. Quite 7 the opposite. It requires weighing a lot of 8 different factors and it requires the exercise of 9 a considerable amount of discretion. It is a 10 complicated exercise, one that is often said to 11 be among the most difficult things that a Judge 12 has to do. And this case is no exception. 13 In any sentencing, the Court has to take 14 into account sentencing principles that are set 15 out in the Criminal Code. Those principles 16 provide the framework for every sentencing 17 decision that is ever made. I am not going to 18 read all of the sections in the Criminal Code but 19 I will read some excerpts because I think it is 20 important, again to put my decision in context. 21 One of the very important sections in the 22 Criminal Code on sentencing is Section 718 and it 23 reads, 24 The fundamental purpose of 25 sentencing is to contribute, along 26 with crime prevention initiatives, 27 to respect for the law and the Official Court Reporters 5 1 maintenance of a just, peaceful and 2 safe society by imposing just 3 sanctions that have one or more of 4 the following objectives: 5 (a) to denounce unlawful conduct; 6 (b) to deter the offender and other persons 7 from committing offences; 8 (c) to separate offenders from society where 9 necessary; 10 (d) to assist in rehabilitating offenders; 11 (e) to provide reparations for harm done to 12 victims or to the community; and 13 (f) to promote a sense of responsibility in 14 offenders, and acknowledgment of the 15 harm done to victims and to the community. 16 Another fundamental principle referred to in 17 Section 718.1 is that a sentence must be 18 proportionate to the gravity of the offence and 19 the degree of responsibility of the offender. 20 There are other sentencing principles and 21 some of the most relevant ones in this case, I 22 find, and those are principles that are listed in 23 Section 718.2, and I will not read them all, but 24 the most relevant ones, in my view, in this case 25 are that a sentence should be similar to 26 sentences imposed on similar offenders for 27 similar offences committed in similar Official Court Reporters 6 1 circumstances, and that all available sanctions 2 other than imprisonment that are reasonable in 3 the circumstances should be considered for all 4 offenders with particular attention to the 5 circumstances of aboriginal offenders. 6 I have heard a lot yesterday about 7 Mr. Avadluk's personal circumstances. 8 He is 36 years old, and his lawyer explained 9 the circumstances of his upbringing. I have no 10 doubt that those circumstances played an 11 important part in the many difficulties that he 12 has had with the law and those circumstances, 13 sadly, are similar to those that many aboriginal 14 people from the north have faced. 15 I was told that Mr. Avadluk's father was 16 largely absent from the home because he was a 17 heavy equipment operator and worked at various 18 job sites. The family was primarily in the care 19 of Mr. Avadluk's mother who, unfortunately, 20 abused alcohol significantly, which made life in 21 the household very chaotic. 22 Mr. Avadluk first came into contact with the 23 law when he was 12 years old for a relatively 24 minor offence for which he received a relatively 25 minor sentence. But he was then apprehended by 26 Social Services and, as a result of that 27 incident, placed in foster care far from his home Official Court Reporters 7 1 community of Kugluktuk. He was placed in the 2 care of a man and that man sexually abused him. 3 When Mr. Avadluk's lawyer talked about this 4 event during his submissions, I was able to 5 observe, and this is very understandable, that 6 this is a subject that brings out a lot of 7 emotion for Mr. Avadluk. Those emotions were 8 also apparent when he himself talked about that 9 aspect of his life. 10 Mr. Avadluk disclosed this abuse and was 11 placed in the care of other people who, 12 fortunately, appeared to have taken good care of 13 him. 14 When he was 15 years old, he returned to 15 Kugluktuk. By then he had lost some of his 16 Inuinnaqtun language and that made his 17 reintegration into that community more difficult. 18 A short time after, his mother decided to move to 19 Cambridge Bay and Mr. Avadluk moved there with 20 her. He was not treated well by his mother's 21 then spouse. The year that he spent in Cambridge 22 Bay was chaotic and described as "a year of 23 hell". 24 He eventually called his father so that 25 arrangements could be made for him to return to 26 Kugluktuk. At that point he was 16 years old. I 27 was told that an older sister was then more or Official Court Reporters 8 1 less in charge of the family at that point but 2 she abused alcohol too and things remained 3 chaotic. 4 So life continued to be difficult for 5 Mr. Avadluk and by then he himself, based on what 6 I heard, had started consuming and abusing 7 alcohol. 8 When Mr. Avadluk turned 18, he moved to 9 Edmonton. One of his sisters was living there, 10 having moved there many years before because she 11 needed special care because of a serious hearing 12 impairment that she had. By all accounts she has 13 done very well and now lives in Yellowknife. 14 Counsel described her as Mr. Avadluk's "anchor". 15 He hopes to be able to live with her after his 16 release, at least for a short time until he can 17 find a place of his own and get his life going 18 again. 19 Mr. Avadluk ran into some trouble when he 20 was in Edmonton and that is apparent from his 21 criminal record which includes a number of 22 convictions from that community. And again, this 23 appears to have occurred in circumstances where 24 he was abusing alcohol and other substances. 25 Mr. Avadluk eventually returned to the NWT 26 and lived in Yellowknife. He was able to secure 27 employment. He has worked at various jobs and I Official Court Reporters 9 1 am told that he is a skilled carver. But, as had 2 been the case in his years in Edmonton and before 3 that in Kugluktuk, his abuse of alcohol and, as 4 his counsel put it, his lack of certain basic 5 life skills, continued to lead him into all kinds 6 of trouble with the law. 7 Indeed, since he was first before the Court 8 in 1985, Mr. Avadluk has accumulated a 9 significant criminal record which includes over 10 40 convictions. Many are for property crimes, 11 many others are for breaches of court orders, and 12 some are for crimes of violence. 13 In 1995 there are convictions for assault 14 with weapon and assault causing bodily harm, each 15 brought about jail terms of five months. In 1996 16 there is a conviction for assault that led to a 17 jail term of four months, and another that led to 18 a jail term of six months. In 1999 there is 19 another conviction for assault, which appears to 20 have been of a spousal nature, for which he 21 received a sentence of eight months in jail. In 22 the year 2000, there is a conviction for assault 23 causing bodily harm and for that offence he 24 received a jail term of one year. And in 2007, 25 in his last series of convictions, one of the 26 charges was a charge for uttering death threats. 27 And as I have already said, for those series of Official Court Reporters 10 1 offences, the time that Mr. Avadluk has spent on 2 remand was taken into account on sentencing. He 3 essentially got time served. 4 While in custody Mr. Avadluk has been able 5 to access certain programs that are offered at 6 the North Slave Correctional Centre including AA 7 and a program called the Healing Drum which is 8 available both to inmates in the facility and to 9 people who are at large in the community. 10 Having talked about the circumstances of 11 this offence and the sentencing principles that 12 apply and Mr. Avadluk's circumstances, I now turn 13 to the analysis of what is a fit sentence for 14 this crime. 15 The Crown argues that a fit sentence is 16 three years and that from this I should deduct 17 whatever credit I find should be given to 18 Mr. Avadluk for the time that he has spent on 19 remand. Defence counsel argues that in all the 20 circumstances, including the time spent on 21 remand, the time that Mr. Avadluk has already 22 spent in custody should be sufficient and that my 23 sentence today should simply be one of time 24 served. 25 I spoke at length earlier about the personal 26 circumstances of Mr. Avadluk as they have been 27 explained to me yesterday. Because one of the Official Court Reporters 11 1 sentencing principles that I have to apply, 2 because Mr. Avadluk is an aboriginal man, is the 3 principle referred to at Section 718.2(e) of the 4 Criminal Code and I have read it before, I will 5 simply refer to it again. 6 All available sanctions other than 7 imprisonment that are reasonable in 8 the circumstances should be 9 considered for all offenders, with 10 particular attention to the 11 circumstances of aboriginal 12 offenders. 13 That last segment, the "particular attention 14 that must be paid to the circumstances of 15 aboriginal offenders", has been interpreted by 16 many courts, including the Supreme Court of 17 Canada, on a number of occasions. It has been 18 interpreted to mean that when sentencing an 19 aboriginal person, Courts must approach the case 20 differently than how they might approach it if 21 they were sentencing a non-aboriginal offender 22 and; specifically, the Court should take into 23 account the systemic and background factors that 24 have played a part in bringing the person before 25 the Courts as well as the type of sentencing 26 processes or sanctions that might be most 27 appropriate to an aboriginal offender because of Official Court Reporters 12 1 his or her particular heritage. 2 In this case the first aspect is the most 3 relevant. 4 The circumstances that Mr. Avadluk faced as 5 he was growing up no doubt contributed to his 6 coming into conflict with the law starting from a 7 very young age and, tragically, that first time 8 that he came into conflict with the law, to the 9 extent that it may have contributed to his 10 apprehension by Social Services and placement in 11 foster care, triggered other events that were 12 devastating to him. The abuse that he suffered 13 at the hands of his first foster parent obviously 14 had very negative impacts on him and we know that 15 that is often the case. Those who are abused 16 unfortunately sometimes repeat that pattern and 17 become abusers. It is also very common to see 18 that children who grow up in households where 19 alcohol is abused end up abusing alcohol 20 themselves. Dysfunction leads to dysfunction, 21 and the cycle continues. Mr. Avadluk's example 22 is an all too familiar example. 23 I recognize that Mr. Avadluk grew up in an 24 environment as a young aboriginal man where he 25 faced systemic difficulties, difficulties and 26 circumstances that are unfortunately shared by 27 many aboriginal people. I also recognize that Official Court Reporters 13 1 these things contributed to his difficulties 2 later in life including his steady pattern of 3 conflict with the law. The question is what 4 impact can this have on the sentence that I 5 impose today. 6 There is no suggestion that any specific 7 type of sanction other than imprisonment would be 8 better suited for Mr. Avadluk because of his 9 aboriginal heritage. But even if there were, the 10 crime that he has committed is so serious that I 11 don't think there is a reasonable alternative to 12 imprisonment in a case like this one. 13 As for whether his circumstances should 14 cause the Court to reduce the jail term that 15 would otherwise be imposed, the Supreme Court of 16 Canada has said, and Mr. Avadluk's lawyer 17 acknowledged this, that the more serious the 18 offence the less likely it is that the sentence 19 imposed on an aboriginal offender will be 20 different than the sentence imposed for the same 21 crime for a non-aboriginal offender. 22 So Mr. Avadluk's circumstances and personal 23 history are important to note, they must be taken 24 into account and I have taken them into account. 25 They go some distance in explaining some of the 26 difficulties that he has in his life. At the 27 same time, those circumstances do not eliminate Official Court Reporters 14 1 the need for other sentencing principles to also 2 be taken into account in the face of such a 3 serious crime. 4 Sexual assault is always a serious crime but 5 it can include a wide range of behaviours. This 6 sexual assault that Mr. Avadluk committed in June 7 of 2007 was a very serious one. It did not 8 involve sexual intercourse but that does not mean 9 that it was not serious. There was prolonged 10 digital penetration which is extremely intrusive. 11 It occurred in circumstances that could only be 12 completely terrifying for the victim. She was 13 afraid this would progress to an even more 14 intrusive assault. She was afraid she might get 15 killed. Mr. Avadluk said things to her during 16 the assault suggesting that she was letting it 17 happen, letting him do it, implying even that she 18 might be finding it enjoyable. This was 19 degrading behaviour and behaviour that showed 20 complete and contemptuous disregard for this 21 woman's personal and sexual integrity and 22 dignity. 23 Apart from the apparent seriousness of the 24 assault, there are significant aggravating 25 factors stemming from the facts of this offence. 26 The first is that Mr. Avadluk's actions 27 appear to have been somewhat planned. This may Official Court Reporters 15 1 have been a crime of opportunity in the sense 2 that he ran into her at the building and may not 3 have known in advance that she would be there, 4 but I can only conclude on the facts before me 5 that there was an element of short-term planning. 6 He asked her which floor she was going to. He 7 appears to have lied about where he was going. 8 And even if he was originally going to the fourth 9 floor, at some point he obviously made the 10 decision to follow her to the third floor, and I 11 infer that this was with the intention of taking 12 advantage of the situation. 13 It has been said on his behalf that he was 14 under the influence of drugs and alcohol when 15 this happened. And that may well be. But the 16 facts suggest that whatever he may have been 17 under the influence of, once he decided what he 18 was doing, he carried out those intentions with 19 some deliberateness and some persistence. The 20 fact that he made the comment that the victim 21 would probably call the police and the fact that 22 he later asked for her forgiveness also suggests 23 to me that whatever state he was in, he was aware 24 that he was doing something that was a serious 25 crime and something that was very wrong. 26 The second aggravating factor is the element 27 of confinement in this. As I have already Official Court Reporters 16 1 referred to, this incident lasted several hours 2 and during those hours the victim was prevented 3 from leaving the unit and her movements were 4 restrained. Mr. Avadluk asserted total control 5 over her, getting her to the floor, then against 6 a chair, then back to the floor. He used force 7 to control her and confine her. She was at his 8 mercy for those few hours and I am sure that she 9 knew it. 10 The third aggravating factor is that the 11 force used was not simply incidental to the 12 sexual act. She tried screaming, she tried 13 struggling, she tried fighting back. He put his 14 hand over her mouth, he forced her to the floor, 15 she had to stop struggling at points because she 16 was having trouble breathing and at one point her 17 hair was pulled. She was bruised in various 18 parts of her body and in her struggle, she 19 scratched him to the point of drawing blood. So 20 I find from all of this that she struggled hard 21 so there was definitely more force used here than 22 what was inherent in an unwanted sexual touching. 23 There are also other aggravating factors 24 stemming from the circumstances of this case. 25 The fact that Mr. Avadluk was already facing 26 other charges when this occurred and that he was 27 bound by an undertaking to keep the peace and be Official Court Reporters 17 1 of good behaviour. And finally, of course, 2 Mr. Avadluk's criminal record is an aggravating 3 factor. There are no prior convictions for 4 sexual offences, and I take it that into account, 5 but a fair number of offences on the record are 6 for crimes of violence, as I have referred to 7 earlier, and some brought on jail terms of some 8 significance. I remind myself it is very 9 important not to overemphasize the criminal 10 record because Mr. Avadluk should not be punished 11 over and over again for the crimes that he has 12 already been sentenced for. But from the 13 perspective of determining what is required for 14 the protection of the public, the record cannot 15 be disregarded. 16 There are also mitigating factors in this 17 case. The most significant one from the point of 18 view of things Mr. Avadluk had control over is 19 that he pleaded guilty. That plea is anything 20 but an early guilty plea. It came at the 11th 21 hour on Friday, May 1st, the last working day 22 before the trial was scheduled to commence on 23 Monday, May 4th. The victim did have to testify 24 at a preliminary hearing and the matter was set 25 for trial once before in late October/early 26 November of 2008 and was adjourned at the last 27 minute because there was a change of defence Official Court Reporters 18 1 counsel. 2 Despite the fact that the guilty plea came 3 so late in the proceedings, Crown counsel takes 4 the position that it should still, nonetheless, 5 have a significant mitigating effect. He said 6 that the Crown's case was strong in that there 7 was forensic evidence (DNA) that would have 8 assisted the Crown in proving its case, more 9 specifically, identity. But he also said that 10 there were frailties with some aspects of the 11 case and recognized that there is always 12 uncertainty in a trial and that reliance on 13 highly technical evidence comes with its 14 challenges and potential problems. Crown counsel 15 said that in the circumstances of this case, 16 there was great value in the certainty of outcome 17 that was brought about by his guilty plea. 18 Counsel are aware of all sorts of things 19 that the Court may not know. They obviously know 20 their case. So I accept what the prosecutor, who 21 is an experienced counsel, has said about the 22 significant value of the guilty plea in this case 23 and the significant mitigating impact it should 24 have even though it came late in the proceedings. 25 Apart from all of that, I have taken into 26 account something that is always true 27 irrespective of the strengths or frailties of the Official Court Reporters 19 1 Crown's case. 2 A guilty plea spares the victim from having 3 to testify and relive the events in question. I 4 do not doubt for a second, having seen many 5 witnesses testify in these types of cases, that 6 it was a great relief and much better for this 7 particular person not to have to testify about 8 the minute details of what happened to her during 9 those terrifying hours. 10 In addition, the guilty plea has saved 11 significant costs. This trial would have taken 12 at least a week, possibly more. I am told 13 witnesses would have had to have been brought 14 here from all corners of Canada - from Nova 15 Scotia, from British Columbia, from Manitoba, 16 some from elsewhere in to this jurisdiction, like 17 Inuvik, which is in the Northwest Territories but 18 is far away and a very costly place to travel to 19 and from. So there would have been significant 20 costs associated with this trial and all of this 21 was avoided. 22 Finally, and this is very important in my 23 view, a guilty plea, even one at the 11th hour, 24 represents an acknowledgment of responsibility on 25 the part of the offender. 26 Mr. Avadluk, when he spoke, alluded to this 27 a little bit. He talked about the importance of Official Court Reporters 20 1 not hiding anymore, and of the truth, and of not 2 lying to himself anymore. Sometimes it takes 3 people a long time to be able to admit their 4 wrongdoings, even to themselves. So I think this 5 guilty plea is important for that reason because 6 of what it says about where Mr. Avadluk is at. 7 The next factor that mitigates the sentence 8 is the time that Mr. Avadluk has already spent in 9 pre-trial custody - a period of some 18 months. 10 How much credit he should receive for that is the 11 matter for the Court's discretion. There is no 12 fixed or rigid formula and that is what the 13 Supreme Court of Canada said in the case of 14 R. v. Wust which was referred to by defence 15 counsel. 16 A number of factors have an impact on how 17 this discretion should be exercised. The 18 rationale for giving credit for remand time on a 19 ratio higher than one-for-one is that remand time 20 is sometimes considered "harder time" because of 21 the detention conditions. 22 In some jurisdictions prisoners, who are in 23 pre-trial custody, are held in separate centres 24 where little or no programs are offered. Some of 25 those centres are overcrowded and the detention 26 conditions are much harsher than the detention 27 conditions of those who are serving prisoners. Official Court Reporters 21 1 And sometimes even when remand prisoners are 2 housed in the same facilities as serving 3 prisoners, they are held in a separate part of 4 the facility where access to certain things 5 available to serving prisoners is limited. 6 There was no evidence called about the 7 conditions at the North Slave Correctional Centre 8 where Mr. Avadluk was held on remand but both 9 counsel provided the Court with information 10 during their submissions, and neither counsel 11 contested what the other one has said. There is 12 general agreement that remand prisoners at this 13 particular facility are able to apply for 14 programs available to regular inmates except 15 those that involve leaving the facility. 16 I accept that serving prisoners may have 17 priority of access to some of the programs but 18 there definitely are some programs available to 19 prisoners on remand. The best evidence of that 20 is that Mr. Avadluk himself (this is to his 21 credit) has availed himself of some of the 22 programs that were available, including AA and 23 the Healing Drum program that I have already 24 talked about. 25 There is no evidence or suggestion of 26 overcrowding of that particular facility either. 27 Mr. Avadluk had to share a room with various Official Court Reporters 22 1 people while on remand, one person at a time, 2 that is, but different people throughout the time 3 that he spent on remand, but that cannot be 4 characterized as "overcrowding" or harsh 5 detention conditions. 6 I also take into account the circumstances 7 that led to Mr. Avadluk being in remand. He has 8 a significant criminal record which includes a 9 large number of convictions for failure to abide 10 by Court orders. He was at large on process when 11 this offence was committed. Although he was 12 never released on this particular charge, he had 13 been released on other charges and had failed to 14 comply with his promises to the Court. That is 15 part of the reason why he remained detained all 16 of this time awaiting trial. 17 The last factor to consider is the fact that 18 remand time corresponds to a longer period of 19 time imposed as part of a sentence because people 20 do not earn remission for the time they spend on 21 remand. The reasoning, basically, is that if a 22 person were to be sentenced to 18 months in jail, 23 they could be expected to earn remission and not 24 serve the full 18 months. So if a person spends 25 18 months on remand, that amounts to the time 26 they would probably spend in jail if they 27 received a two year sentence taking into account Official Court Reporters 23 1 the remission that they would earn. 2 It is important to know that Judges are not 3 permitted to take remission into account when 4 they impose a sentence in the sense that it is 5 not permitted to make a sentence longer knowing 6 that part of it will not be served. So I am sure 7 at times it may be difficult for some members of 8 the public to understand why Courts are not 9 allowed to take remission into account when they 10 impose a sentence but are expected to take it 11 into account when they decide how much credit to 12 give to time spent on remand. But that is what 13 Courts have done everywhere in the country on a 14 regular basis and the Supreme Court of Canada has 15 confirmed in clear terms it is an appropriate 16 factor to consider, and so I have considered it. 17 Based on all of this, I am not satisfied 18 that Mr. Avadluk should receive credit for the 19 time he has spent on remand on a ratio as high as 20 two-for-one. Many of the factors that are 21 ordinarily present to justify this, or an even 22 higher ratio, are simply not present here. But 23 recognizing that remission is not earned on 24 remand time, I do accept that he should be given 25 credit on something more than a one-for-one 26 ratio. 27 I want to address the question of delay Official Court Reporters 24 1 briefly since both counsel have referred to it. 2 In my view it is simply a neutral factor in this 3 case. 4 The preliminary hearing was adjourned at the 5 request of the Crown because of an unrelated 6 tragic event that took place in this community 7 and impacted on the police's resources and 8 impacted personally several officers involved in 9 this case. The delay that came from this was two 10 months because the preliminary hearing had been 11 scheduled for October 12th and was rescheduled to 12 proceed, and did proceed, on December 13th. 13 Another part of the delay arose as a result 14 of the breakdown that occurred in the 15 relationship between Mr. Avadluk and his former 16 counsel. This breakdown occurred very shortly 17 before the date that had been originally set for 18 this trial in late October 2008. After 19 Mr. Avadluk got new counsel, the trial was 20 rescheduled for this week so the delay arising 21 from a change in counsel was about five months. 22 But again, just like with the adjournment of the 23 preliminary hearing, these things do happen from 24 time to time, and I do not think that the delay, 25 any of the delay that arose in this case, is a 26 significant factor except of course from the 27 point of view that Mr. Avadluk has spent this Official Court Reporters 25 1 time on remand and that will be taken into 2 account as I have already explained. 3 The Crown has brought a number of cases to 4 my attention, and I have reviewed them. When it 5 comes to sentencing, case law is of assistance in 6 setting out principles and sometimes ranges of 7 sentences, but there is always distinctions on 8 the facts and no two cases are ever the same, and 9 this is true for the cases that were filed in 10 this case. 11 All five were convictions that took place 12 after trial. There are distinctions on the facts 13 of each of these cases. Some involve full 14 intercourse, others not. But generally these 15 cases do support the proposition that a jail term 16 of some significance is required to address the 17 principles and purposes of sentencing in cases 18 like this one where there is serious interference 19 with the victim's sexual integrity, some force 20 used, and an element of confinement. 21 Sexual assault is a crime that is 22 unfortunately very prevalent in our jurisdiction. 23 It is a serious problem in our communities and 24 for that reason our Courts have stressed over and 25 over again the importance of denunciation and 26 deterrence as the paramount sentencing principles 27 in cases like this. Many of the cases that come Official Court Reporters 26 1 before the Courts involve offenders who know 2 their victims. Cases like this one, where the 3 offender preys on someone unknown to them, are 4 more rare but either way there is a strong need 5 to denounce and deter this type of conduct. 6 While rehabilitation is also a factor, in 7 this case it cannot take precedence over other 8 factors nor can the fact that Mr. Avadluk is an 9 aboriginal offender reduce the sentence that 10 should be imposed for this serious crime. 11 Even giving Mr. Avadluk the maximum credit 12 possible for his guilty plea, a sentence in the 13 range of three years is, in my view, at the low 14 end of what can be imposed in the circumstances. 15 This is because of the persistence and prolonged 16 nature of the sexual assault, its level of 17 intrusiveness, the element of confinement, and 18 also taking into account that Mr. Avadluk has 19 been before the Courts consistently over the last 20 last two decades and on a number of times for 21 crimes of violence. But because I will give Mr. 22 Avadluk credit for the time that he has spent in 23 custody, the sentence that I impose today will be 24 of less than two years, and this raises a 25 question of whether I should also place him on 26 probation when he is released. 27 I had given this issue a lot of thought. At Official Court Reporters 27 1 first blush, I would have been reluctant to do so 2 because of the many many breaches of convictions 3 on his criminal record. But I listened carefully 4 when Mr. Avadluk spoke yesterday. He said that 5 he has started to change his attitude and his 6 outlook on things, that he has taken some steps 7 to get help and deal with his issues, and he 8 wants to continue in that process. He wants his 9 life to change. He says that he does not want to 10 clash with people anymore, he is willing to 11 listen, and he wants to do the work he needs to 12 do to live a productive life. 13 I also consider that because of his 14 background, the struggles and some of the 15 systemic problems that he has faced, it is 16 appropriate to include a rehabilitative component 17 to his sentence despite his past record and 18 despite the fact that in the past these types of 19 court orders have not necessarily been complied 20 with very well. 21 So I am prepared to take a calculated risk 22 that this time will be the right one and that 23 Mr. Avadluk will take advantage of the 24 supervision and support he can get from a 25 probation officer once he is released from 26 custody. Because by then he will have been in 27 jail for longer than he had ever been before and Official Court Reporters 28 1 it would not be surprising if he needed some help 2 and some guidance to continue on the path that he 3 says he now wants to follow. So I am trusting 4 what Mr. Avadluk said yesterday to me, and he 5 said it directly to me, that his lawyer did not 6 need to be worried about him clashing with people 7 because he is tired of that, he is tired of the 8 negative attitude, he is tired of repeating the 9 same mistakes over and over again and he wants to 10 help himself. 11 Ultimately if Mr. Avadluk is successful in 12 rehabilitating himself, that will be the best way 13 to protect the public for good. He seems to have 14 realized that he needs to come to terms with what 15 has happened to him as a youth, and he can have 16 more positive outcomes in the rest of his life. 17 He seems to recognize that some of those issues 18 about his past are at the root of his being in 19 and out of court and in and out of jail over the 20 last 20 years, and he wants to change that. 21 It seems that some of the people that he has 22 been talking to about these things have helped 23 him to get some insight into his behaviour. 24 Hopefully he will persevere and hopefully he will 25 continue to have the support of some of those who 26 have tried to help him already. 27 He has a son, a daughter, and a grandchild Official Court Reporters 29 1 now. He is able to work at many jobs. He has 2 talents and he has skills. Substance abuse seems 3 to have been a major obstacle in his life and he 4 is the only one that can change that. No matter 5 what the Court does today, he is the one who 6 holds the keys to his future and who can decide 7 whether this will be one more conviction on his 8 record to be followed by more, or whether this is 9 going to truly be a turning point for him. And 10 it is this Court's sincere wish that he will 11 persevere and that in fact this will have been a 12 turning point. 13 Stand up please, Mr. Avadluk. 14 Mr. Avadluk, I have given you as much credit 15 as I can for your guilty plea. I listened 16 carefully to everything that was said but I feel 17 strongly that I must impose a further jail term 18 because of the seriousness of this particular 19 offence. So for the charge of sexual assault 20 there be a further term of imprisonment of 12 21 months. That term will be followed by a period 22 of probation for two years. I am not making this 23 probation order to punish you. I am making this 24 probation order because I hope that it will help 25 you do the things that you want to do when you 26 get out of jail. 27 The conditions of the probation order will Official Court Reporters 30 1 be very simple. You will have to keep the peace 2 and be of good behaviour, you know what that 3 means. You will have to appear before the Court 4 when you are required to do so. And you may 5 never be required to do so but if you are, you 6 have to appear. You will have to notify the 7 Court or the probation officer in advance of any 8 change of name or address, and promptly advise 9 your probation officer if you change employment 10 or occupation. You will take counselling as 11 directed by your probation officer. I am sure 12 that if you keep an open mind and if your 13 probation officer keeps an open mind, you will 14 not be directed to take counselling to harm you 15 or to cause you problems. You will be directed 16 to take counselling that is meant to assist you, 17 and I trust that you will be able to work with 18 someone who is trained to try to help people get 19 back on their feet after they have had lots of 20 problems. That's why that condition is there - 21 it is not to punish you, it is to help you. And 22 finally you will have absolutely no contact, 23 direct or indirect, with Jerrilyn Forsythe. I 24 don't need to explain that further to you, I am 25 sure that you understand why I am making that 26 condition as well as part of your order. 27 You can sit down. Official Court Reporters 31 1 There will also be ancillary orders as 2 requested by the Crown. 3 First, pursuant to Section 109 of the 4 Criminal Code, Mr. Avadluk will be prohibited 5 from possessing firearms or any of the other 6 items that are listed in Section 109 for a period 7 commencing today and expiring ten years from when 8 he is released from custody, and any such items 9 shall be surrendered forthwith. 10 There will also be a DNA order pursuant to 11 Section 487.051 of the Criminal Code. 12 And finally there will be an order pursuant 13 to Section 490.013 and that is an order that 14 Mr. Avadluk comply with the Sex Offender 15 Information Registration Act for a period of 20 16 years. 17 The written orders will be prepared setting 18 out all of this and they will be explained to 19 you, Mr. Avadluk. 20 Under the circumstances, I will not make an 21 order for a victim of crime surcharge. Given the 22 time that Mr. Avadluk has already spent in 23 custody and the fact that there will be further 24 custody, I am satisfied that there would be 25 hardship if such an order was made. 26 Do you require an order with respect to 27 exhibits, counsel? Official Court Reporters 32 1 MR. HIMMELMAN: That they be released, Your 2 Honour, into the custody of the RCMP pending the 3 appeal period. 4 THE COURT: And destroyed after the appeal 5 period? 6 MR. HIMMELMAN: Yes, with the exception of a 7 personal item belonging to the complainant, a 8 pair of shoes. 9 THE COURT: There will be an order for the 10 RCMP to retain the exhibits until the expiration 11 of the appeal period. After the expiration of 12 the appeal period, the exhibits are either to be 13 destroyed or returned to their lawful owners if 14 it is appropriate to do so. And I will leave 15 that with the authorities, Mr. Himmelman. 16 MR. HIMMELMAN: Thank you. 17 THE COURT: Anything further required by 18 the Crown? 19 MR. HIMMELMAN: Not from the Crown, Your 20 Honour, thank you. 21 THE COURT: Anything further from the 22 defence? 23 MR. BOYD: No, Your Honour, thank you. 24 THE COURT: I want to extend again my 25 thanks to both of you for your work and conduct 26 of this difficult case. Your submissions were 27 very helpful. Mr. Avadluk, good luck to you for Official Court Reporters 33 1 the future. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 34 1 2 3 Certified to be a true and accurate transcript pursuant to 4 Rules 723 and 724 of the Supreme Court Rules, 5 6 7 8 ____________________________ 9 Lois Hewitt, CSR(A), RPR, CRR Court Reporter 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 35
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