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Abstract: Transcript of the Reasons for Sentence
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R. v. Mercredi, 2010 NWTSC 05 S-1-CR2009000052 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - DONALD GORDON MERCREDI _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice D. M. Cooper, at Yellowknife in the Northwest Territories, on January 11th A.D., 2010. _________________________________________________________ APPEARANCES: Ms. C. Carrasco: Counsel for the Crown Mr. T. Boyd: Counsel for the Accused ---------------------------------------- Charge under s. 267(b) Criminal Code of Canada Official Court Reporters 1 THE COURT: The accused has pleaded guilty 2 today to the charge of having assaulted his 3 spouse Bessie Kahak on February 10th, 2009 at 4 Yellowknife, Northwest Territories and having 5 caused bodily harm to her contrary to 6 Section 267(b) of the Criminal Code. This 7 offence carries with it a maximum sentence of ten 8 years' imprisonment. 9 Crown and defence have filed an Agreed 10 Statement of Facts but disagree on what the 11 appropriate sentence should be. The Crown 12 submits that a proper sentence would be 18 months 13 in jail less credit for remand time and a period 14 of probation. The defence argues that this is a 15 case that warrants the least restrictive sanction 16 possible and asks the Court to impose a 17 conditional sentence. 18 On the night in question, the accused and 19 his spouse of 20 years, Ms. Kahak, were drinking 20 heavily in their apartment and shortly before 21 midnight were overheard by a neighbour arguing 22 who also heard the accused say "I'm trying to 23 sleep. I'm trying to get some sleep, leave me 24 alone". The arguing continued. At some later 25 time, the neighbour heard a loud bang and then 26 quiet followed by the sound of children crying 27 and screaming. She called the police who Official Court Reporters 1 1 arrived. She, the neighbour, called police, who 2 arrived to find Mr. Mercredi in a highly 3 intoxicated state and Ms. Kahak bleeding and with 4 severe swelling and bruising in the area of her 5 left eye. 6 She was taken to the Stanton Hospital and 7 later medivaced to Edmonton where she underwent 8 surgery to repair serious traumatic fractures to 9 the left orbital rim. Fragments from the 10 fractures had penetrated and lodged in the area 11 of the frontal lobe of her brain and could have 12 well been life threatening. The surgery was 13 successful and Ms. Kahak has now recovered. 14 The fundamental purpose of sentencing is to 15 contribute, along with crime prevention 16 initiatives, to respect of the law and the 17 maintenance of a just, peaceful, and safe society 18 by imposing just sanctions that have one or more 19 of the following objectives: to denounce 20 unlawful conduct; to deter the offender and other 21 persons from committing offences; to separate 22 offenders from society where necessary; to assist 23 in rehabilitating offenders; and to promote a 24 sense of responsibility in offenders and 25 acknowledgment of the harm done to victims and to 26 the community. 27 Another principle of sentencing is that a Official Court Reporters 2 1 sentence must be proportionate to the gravity of 2 the offence and the degree of responsibility of 3 the offender. 4 It is prescribed in the Criminal Code that 5 certain elements of an offence are to be 6 considered as aggravating and some others as 7 mitigating. 8 It is aggravating that the offender in this 9 case abused his spouse or common-law partner. 10 Yet another principle says that all 11 available sanctions other than imprisonment, that 12 are reasonable in the circumstances, should be 13 considered for all offenders with particular 14 attention to the circumstances of aboriginal 15 offenders. 16 I did not hear any representations with 17 respect to Mr. Mercredi's heritage. I do not 18 think that I would be wrong to assume that Mr. 19 Mercredi is either a Dene or more likely of Metis 20 heritage. Would that be the case, Mr. Boyd? 21 MR. BOYD: Yes, sir. 22 THE COURT: Now, I heard very little of 23 the background of the accused but consider this 24 of less importance in dealing with an adult 45 25 years of age as here. 26 I did hear that the accused was incarcerated 27 on remand from February 11th to June 17th, Official Court Reporters 3 1 2009 (a period slightly in excess of four 2 months). During that time, and subsequently, he 3 seemingly has done what he could do to 4 demonstrate that he is serious about dealing with 5 the issues that have brought him before the Court 6 today. 7 I have heard the accused address the Court 8 and I think I could characterize his sentiments 9 as being remorseful. He demonstrates today a 10 great deal more insight into his problem and what 11 he has to do in the future to deal with that, a 12 great deal more insight than most accused we see. 13 What he has said, I think attests to the personal 14 growth that he has undergone in the last seven 15 months and his awareness. I am mindful that for 16 someone to live in the Salvation Army for the 17 past seven months, given the regime that is 18 imposed on the residents of that facility, Mr. 19 Mercredi has done well and I accept that this has 20 not been easy. 21 In addition to living in the environment at 22 the Salvation Army, Mr. Mercredi's attended 23 counselling, various programs and discussion 24 groups run by the John Howard Society, meetings 25 of Alcoholics Anonymous. As well, during this 26 period he worked for the Housing Corporation in a 27 maintenance position for a one-month term in Official Court Reporters 4 1 August. And he did contracting work on his own 2 for which he rendered an invoice of $11,000 in 3 October which would indicate to the Court that he 4 was a fully engaged and hard working contractor 5 at that point in time. 6 The victim Ms. Kahak provided a letter to 7 the Court in which she essentially asks the Court 8 for leniency for her husband and expresses fear 9 for the family if it loses his income or if she 10 cannot work because he is not at home to look 11 after the children. She also expresses her hope 12 that she and the accused could continue their 13 relationship as husband and wife, parents and 14 grandparents, and at this time with a changed and 15 positive lifestyle. 16 Mr. Mercredi is an apprentice carpenter and 17 he has completed one year of the four required 18 for certification. I am told that he very much 19 wants to continue his apprenticeship and to 20 attend the next training session at Fort Smith 21 during the months of March and April of this 22 year. 23 Counsel for the accused advised the Court 24 that his client pleaded guilty to spare his 25 12-year-old daughter from having to testify. And 26 to buttress the credibility of this 27 representation, counsel noted that the accused Official Court Reporters 5 1 admitted her testimony at the preliminary inquiry 2 by way of written agreement with the Crown. The 3 accused, in speaking to the Court, underscored 4 that one of the reasons why he wanted to change 5 his plea to that of guilty was to spare his 6 daughter the need of testifying in this case. 7 The accused is indeed to be credited for 8 having entered a guilty plea, although given the 9 facts as alleged, he may well have considered 10 himself inextricably caught. In any event, given 11 the lateness of the plea the accused does not get 12 the same benefit that he might have obtained had 13 the plea come much earlier in the process but I 14 will nevertheless accord it considerable weight 15 in mitigation of sentence in these circumstances. 16 I do observe that in cases where the accused 17 is so intoxicated that he is unable to instruct 18 counsel as to what actually did happen, there is 19 an added responsibility on defence counsel to 20 have the evidence "tested", if that is the 21 correct word, in court as opposed to assuming 22 that it is as it is represented to be in Crown 23 disclosure. 24 Mr. Mercredi wants to preserve his family 25 and his counsel has put before me sufficient 26 evidence to convince me that this time Mr. 27 Mercredi is serious about rehabilitating himself. Official Court Reporters 6 1 I can also take into account here that Mr. 2 Mercredi gave the police an inculpatory 3 statement, that luckily the harm he caused his 4 wife has done no lasting damage and that his wife 5 and oldest daughter want him back albeit as a 6 changed person. 7 If all I had to consider was the principle 8 of personal deterrence then I would be of the 9 view that a conditional sentence may indeed be a 10 realistic option. However, there are several 11 aggravating factors in this case as pointed out 12 by the Crown. 13 The assault was upon his spouse and, as I 14 have mentioned, I am required by law to consider 15 that an aggravating factor. 16 The accused has an unenviable record 17 although far from the worst that the Court has 18 seen. It includes 15 convictions dating from 19 1984 for assault, sexual assault in 1994, spousal 20 assault in 2000, spousal assault with a weapon in 21 2001, as well as an additional spousal assault 22 for which he received a concurrent sentence. On 23 this last spousal assault with a weapon, he was 24 sentenced to one year in jail after deduction for 25 time served. 26 He has four previous convictions for 27 drinking and driving offences but apart from a Official Court Reporters 7 1 conviction in May of this year for impaired 2 driving and two minor convictions (I will call 3 them "minor convictions" for failure to comply 4 with a condition of his undertaking in December 5 of this year) he has not had trouble with the law 6 since 2001. Nevertheless, the record is not 7 enviable. 8 Further, there were three children in the 9 home who were 2, 9, and 11 years old at the time. 10 As the accused concedes, there is little doubt 11 that this has had a traumatizing effect on them. 12 The Crown submits that in addition to 13 specific deterrence, the Court must take into 14 account and give emphasis to the principles of 15 general deterrence, denunciation, and protection 16 of the public. 17 Four authorities, four cases from this 18 jurisdiction were provided by the Crown, 19 including a transcript of the sentencing of the 20 accused for spousal assault with a weapon in 21 2001. 22 In R. v. Lafferty the accused, who had a 23 record of 39 previous convictions, was sentenced 24 to a term of 16 months in jail taking into 25 account pre-trial detention for having assaulted 26 his wife. Mr. Justice Vertes, who presided at 27 the time, indicated that a proper sentence would Official Court Reporters 8 1 be between the range of 30 to 36 months. The 2 accused had been committing offences consistently 3 since he became an adult and he had 17 previous 4 convictions for violent offences. 5 In the case of R. v. Tsetta, the accused had 6 choked his wife and fractured her jaw. He had a 7 lengthy and related criminal record and was on 8 probation for spousal assault when he committed 9 the offence. He excelled at his job and he was a 10 hard worker. Madam Justice Schuler imposed a 11 global sentence of 20 months - 16 for the 12 assault, two for the breach of probation, and two 13 for the breach of undertaking. 14 In the case of R. v. N. J. A., the 15 circumstances were similar to the case at bar and 16 the accused was sentenced to one year in jail 17 after having been credited double time for seven 18 months spent on remand. 19 When the accused was asked if he wished to 20 say anything at his 2001 sentence, he said he was 21 "really sorry", that his wife had given him two 22 beautiful children, that he didn't want them to 23 grow up seeing this, he hoped they were young 24 enough they wouldn't remember, and he promised to 25 learn from the experience. 26 For eight years the accused did appear to 27 learn. But his words expressed then have a Official Court Reporters 9 1 somewhat hollow ring today and the Court must ask 2 itself whether, despite the protestations of the 3 accused and his apparent dedication to 4 rehabilitation, if the accused has it within 5 himself to avoid alcohol entirely or at least 6 avoid binge drinking in the future. 7 The accused, in addressing the Court, has 8 assured the Court that he will rehabilitate 9 himself and he has been doing that for seven 10 months. As I have noted, his behaviour over the 11 past seven months augurs well for his future 12 rehabilitation. 13 I am going to impose a period of 14 incarceration here and a period of probation. 15 The Crown advised that the victim does not wish 16 the no-contact order to remain in effect so that 17 will not be a term. Nor is the Crown asking that 18 there be a prohibition against the possession or 19 consumption of alcohol. I think this is wise. 20 If someone is an alcoholic, making it a criminal 21 offence to drink is unlikely to change his or her 22 behaviour in the long term. That change has to 23 come from within. 24 The defence has asked that I accord double 25 time for time spent on remand, or approximately 26 eight and a half months, in keeping with some 27 previous cases. Official Court Reporters 10 1 Over the past year, there has been a growing 2 awareness of the conditions for remanded inmates 3 at the North Slave Correctional Centre through 4 inquiries and submissions of counsel and as a 5 result of evidence given by a Mr. Paul Pierce, a 6 case manager in the institution, in the matter of 7 R. v. Gerald Paul Stuart with Judge Schmaltz 8 presiding. One would conclude, in reviewing that 9 evidence, that living conditions in the North 10 Slave Correctional Centre are virtually identical 11 for remanded inmates to those accorded to serving 12 inmates and are as agreeable and benign as one 13 could expect. 14 The programming available to remanded 15 inmates is also the same as that of serving 16 inmates except for those programs which would 17 require to speak of events surrounding the 18 offence with which he is charged; for example, 19 anger management. Nor would the remanded 20 prisoner be able to avail himself of programs 21 conducted outside of the institution. 22 Apart from those aspects I have mentioned, 23 the incarcerations of remanded inmates is very 24 very similar to those of serving prisoners. 25 Accordingly, there really isn't any evidence to 26 support a claim that remand time in the Northwest 27 Territories is "hard time" that should attract a Official Court Reporters 11 1 highly significant period of credit. However, as 2 defence counsel reminded the Court, there is no 3 statutory remission of sentence on remand. 4 Stand up please, Mr. Mercredi. 5 On the charge of assault causing bodily harm 6 to your wife, I am going to sentence you to a 7 term of imprisonment of 14 months less credit for 8 remand time of six months, so your sentence will 9 be eight months in jail. 10 This is to be followed by one year of 11 probation on the following terms: 12 You keep the peace and be of good behavior; 13 that you appear before the Court when you are 14 required to do so; that you report to your 15 probation officer within 24 hours of your release 16 and thereafter when directed; and to take or 17 continue to take counselling generally but 18 specifically for anger management and alcohol and 19 substance abuse; and to refrain from the 20 consumption of alcohol in the presence of Bessie 21 Kahak and/or your children. So if you do 22 continue consuming alcohol after your release, 23 that will be your choice. Given your history, 24 that would not be a very wise choice. 25 Very little good seems to come from 26 excessive consumption of alcohol, and I am sure 27 that you understand that now, and I am sure that Official Court Reporters 12 1 your wife understands that now. You have turned 2 your world upside down, and that of your family 3 upside down, and only time will tell if your 4 children will bear the scars of this episode and 5 the entire court process. You understand, I 6 think, your conduct has tormented and deeply and 7 adversely affected a number of people. I think 8 that you understand that. 9 You will be in jail for eight months, less 10 than that counting statutory remission. But you 11 should be eligible for day parole after you have 12 served one-sixth of the eight months. That 13 should allow you to take the apprenticeship 14 course in Fort Smith and I would recommend that 15 officials at the North Slave Correctional Centre 16 give close consideration to assist you in 17 enrolling in the second year of the 18 apprenticeship program and transferring you to 19 the River Ridge facility in Fort Smith while you 20 are at that program. 21 There will be a Section 109 firearms 22 prohibition order. It will be in effect for a 23 period of ten years. And a DNA order requiring 24 you give a sample of your blood when requested to 25 do so by the RCMP. Under the circumstances, 26 there will be no victim surcharge. 27 Have I forgotten anything, counsel? Official Court Reporters 13 1 MS. CARRASCO: Your Honour, I am wondering 2 with respect to the exhibits filed at the 3 preliminary inquiry if the Court would make an 4 order to release those to the Crown after the 5 expiry of the appeal period. 6 THE COURT: You are asking for an order 7 for? 8 MS. CARRASCO: The release of the exhibits to 9 the Crown after expiry of the appeal period. 10 They were filed at the preliminary inquiry. 11 THE COURT: All right. Mr. Boyd? 12 MR. BOYD: No objection, Your Honour. 13 THE COURT: All right, there will be an 14 order to release exhibits identified at the 15 preliminary or filed at the preliminary inquiry 16 to the Crown at the expiration of the appeal 17 period. 18 MS. CARRASCO: Yes, sir. 19 THE COURT: Is there anything else? 20 MS. CARRASCO: No, thank you. 21 MR. BOYD: No, sir, thank you. 22 THE COURT: You may sit down, Mr. 23 Mercredi. I would like to wish you luck, Mr. 24 Mercredi, and hopefully we don't see you here 25 again and hopefully you and your wife can rebuild 26 your relationship and your family. So use your 27 time wisely. It won't be very long, use it Official Court Reporters 14 1 wisely. 2 I would like very much to thank counsel for 3 your very able preparation and submissions in 4 this matter and your cooperation, and I would 5 like to thank the court staff as usual, thank 6 you. 7 8 9 ------------------------------------- 10 11 12 Certified to be a true and accurate transcript pursuant 13 to Rules 723 and 724 of the Supreme Court Rules, 14 15 16 17 ____________________________ 18 Lois Hewitt, CSR(A), RPR, CRR Court Reporter 19 20 21 22 23 24 25 26 27 Official Court Reporters 15
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