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Abstract: Transcript of the Summary Conviction Appeal Decision
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R. v. Sanderson, 2010 NWTSC 59 S-1-CR2009000109 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: BRIAN SANDERSON Appellant - vs. - HER MAJESTY THE QUEEN Respondent _________________________________________________________ Transcript of the Summary Conviction Appeal Decision of The Honourable Justice D. M. Cooper, at Yellowknife in the Northwest Territories, on July 2nd A.D., 2010. _________________________________________________________ APPEARANCES: Mr. H. Latimer: Counsel for the Appellant Ms. D. Vaillancourt: Counsel for the Respondent Official Court Reporters 1 THE COURT: We are here in the matter of 2 R. v. Sanderson and these are my reasons on 3 sentence. 4 At the outset, since I am delivering this 5 judgment orally, I will reserve the right to 6 amend the transcript for the purpose of inserting 7 case citations and correcting minor unintended 8 errors in grammar, syntax, or other clerical 9 slips. 10 The appellant appeals from sentences imposed 11 on him in Territorial Court. After a trial on 12 August 6th, 2009, he was found guilty on October 13 22nd, 2009, and sentenced on the charge of common 14 assault under Section 266 of the Criminal Code, 15 and a charge of unlawful confinement under 16 Section 279(2) of the Code to five and eight 17 months in jail respectively, with the sentences 18 to run consecutively. 19 He also pleaded guilty on October 22nd to a 20 charge of breach of recognizance on October 21st 21 and was sentenced to two months in jail 22 consecutive. That sentence is not under appeal. 23 The appellant argues that the sentencing 24 Judge erred in imposing consecutive sentences in 25 circumstances where he says that the offences 26 arose out of the same transaction and were 27 basically similar in nature; to wit, an invasion Official Court Reporters 1 1 of the person of the victim. He also suggests 2 that in not imposing the sentences concurrently, 3 the result is that the totality of the sentence 4 is excessive particularly given that the 5 sentencing Judge presumed psychological harm in 6 the absence of any evidence of it. He adds that 7 the sentence, in totality, offends the principles 8 set out in 718.1; namely, that a sentence must be 9 proportionate to the gravity of the offence. 10 The standard of review to be applied by the 11 appellate court is one based on deference and 12 absent an error in principle, failure to consider 13 a relevant factor or an overemphasis of an 14 appropriate factor, the decision of the 15 sentencing Judge should only be interfered with 16 if the sentence is "demonstrably unfit". 17 See R. v. L. M., [2008] 2 S.C.R. 163. See also 18 R. v. Shropshire, [1995] 4 S.C.R. 277. And see 19 R. v. M.(C.A.), [1996] 1. S.C.R. 500. 20 On August 6th, 2009, T. L. (the victim) was 21 at her residence with the appellant. The two 22 were in a spousal relationship. An argument 23 ensued. The appellant was intoxicated and 24 holding their 18 month old child. During the 25 argument, the victim's mother arrived and took 26 the child from the appellant who then got angry 27 at the victim and pinned her to the corner of the Official Court Reporters 2 1 wall in the kitchen with his shoulder. She ran 2 from the house and got into the box of a truck. 3 The trial Judge found the controlling behaviour 4 of the appellant in the house to have been an 5 assault. 6 The appellant ran out to the truck, pulled 7 the victim onto the ground, dragged her into the 8 house and locked the door. The police arrived to 9 find the accused on top of the victim, holding 10 her down, and observed that she was crying softly 11 and was upset. For these actions, the trial 12 Judge found the accused guilty of unlawful 13 confinement. 14 The appellant was on probation for having 15 previously assaulted the victim at the time these 16 offences occurred. The breach of his 17 recognizance conviction resulted from his having 18 had contact with the victim in her home the day 19 before the continuation of his trial in Lutsel K'e 20 at which the Territorial Court was to deliver its 21 verdict and impose sentence. As stated above, 22 the appellant was sentenced on this charge to two 23 months consecutive. 24 The Crown sought a global sentence of 12 to 25 14 months custody. The defence asked the Court 26 to "consider" imposing concurrent sentences while 27 submitting "the counts are intertwined" but Official Court Reporters 3 1 stated "I leave that up to Your Honour". 2 It is to be noted that the victim testified 3 at trial in support of the appellant, however, 4 her evidence was rejected. 5 The issues are: 6 Did the sentencing Judge commit an error in 7 principle by imposing consecutive sentences on 8 the charges of assault and unlawful confinement 9 in the circumstances of the case? 10 If not, did the sentencing Judge err in 11 imposing a global sentence that was excessive in 12 the circumstances of the case. 13 The appellant argues strenuously that the 14 sentencing Judge erred in failing to apply the 15 "principle" laid down in R. v. Haines, [1975] 16 O.J. No. 251, a decision of the Ontario High 17 Court, to the effect that where offences are 18 seemingly part of the same transaction, are 19 similar in nature and where the same person is 20 the victim in the offences, the sentences should 21 be served concurrently. 22 The Crown argues that a correct statement of 23 the law is set out in R. v. Crocker, [1991] N.J. 24 No. 33, where the Newfoundland Court of Appeal 25 stated: 26 "The decision of the Ontario Court of 27 Appeal" - and I had previously mentioned the Official Court Reporters 4 1 Ontario High Court, I correct myself, it was the 2 Ontario Court of Appeal - 3 in R. v. Haines (1975), 29 C.R.N.S. 4 239 suggests that multiple 5 convictions may be grouped and 6 concurrent sentences imposed for 7 each group. In that case, the 8 accused had committed 17 offences 9 which could fall into five groups. 10 The decision of the Court of Appeal 11 appears not to have stated any 12 principle but rather to have been 13 designed to achieve a proper 14 totality. 15 The principle of totality is 16 not one that is expressly recognized 17 by the Criminal Code but is 18 nevertheless well established by the 19 principles of sentencing. A person 20 should generally receive separate 21 and consecutive sentences for 22 separate offences. The sentence for 23 each offence should be appropriate 24 for that offence as if no other 25 offence were involved. While this 26 may not be a constant principle, it 27 is nevertheless a practical Official Court Reporters 5 1 consideration. The imposition of a 2 heavy sentence for one offence and a 3 lighter than usual sentence for 4 another offence to achieve proper 5 totality may be counterproductive if 6 subsequently the conviction 7 supporting the heavier offence is 8 set aside or the sentence with 9 respect to it substantially reduced. 10 The imposition of fit sentences 11 for each of several offences may 12 result in a total term of 13 imprisonment so lengthy as to be 14 unrealistic or disproportionate to 15 the conduct of the accused. Where 16 there are multiple convictions and 17 sentences, the sentences must be 18 added together to see whether they 19 are, in totality, excessive. If 20 they are, it becomes necessary to 21 determine what term of imprisonment 22 is not excessive and to make some of 23 the sentences imposed concurrent to 24 each other, but only for the purpose 25 of achieving a proper totality. 26 In summary, consecutive 27 sentences should be imposed unless Official Court Reporters 6 1 there is a valid reason not to do 2 so. Each sentence should be an 3 appropriate one for the offence. 4 Concurrent sentences may, but are 5 not required to be, imposed where 6 multiple convictions arise out of 7 several offences which constitute a 8 single criminal adventure, and may 9 be impose to achieve proper totality 10 for multiple convictions. 11 In R. v. McDonnell, [1997] 1 S.C.R. 948, 12 Mr. Justice Sopinka, writing for the majority, 13 stated at paragraph 46: 14 In my opinion, the decision to order 15 concurrent or consecutive sentences 16 should be treated with the same 17 deference owed by appellate Courts 18 to sentencing Judges concerning the 19 length of sentences ordered. The 20 rationale for deference with respect 21 to the length of sentence, clearly 22 stated in both Shropshire 23 and M.(C.A.), applies equally to the 24 decision to order concurrent or 25 consecutive sentences. In both 26 setting duration and the type of 27 sentence, the sentencing Judge Official Court Reporters 7 1 exercises his or her discretion 2 based on his or her first-hand 3 knowledge of the case; it is not for 4 an appellate court to intervene 5 absent an error in principle, unless 6 the sentencing Judge ignored factors 7 or imposed a sentence which, 8 considered in its entirety, is 9 demonstrably unfit. 10 Finally, in the case of R. v. A.T.S. [2004] 11 N.J. No.1, the Newfoundland and Labrador Court of 12 Appeal adopted, with approval, the following 13 statement of Professor Allan Manson in The Law of 14 Sentencing at paragraph 28 of the judgment as 15 follows: 16 There has been some controversy over 17 how to calculate individual 18 sentences when the totality 19 principle operates to cap the global 20 sentence. One method would be to 21 artificially reduce the duration of 22 the component sentences so that when 23 grouped together consecutively they 24 add up to the appropriate global 25 sentence. This has been rejected by 26 most courts which prefer to impose 27 appropriate individual sentences and Official Court Reporters 8 1 then order that some, or all of 2 them, be served concurrently to 3 reach the right global sentence. 4 The latter method is preferable 5 because it ensures frankness that 6 each conviction will generate an 7 appropriate sentence, whether served 8 concurrently or consecutively. 9 Moreover, the impact of individual 10 sentences will be preserved even if 11 an appeal intervenes to eliminate 12 some of the elements of the merged 13 sentence. 14 To synthesize the decisions in Crocker, 15 McDonnell and A.T.S. that the sentencing Judge 16 has a discretion to sentence consecutively or 17 concurrently; that sentences should be imposed 18 consecutively unless the "global" sentence is 19 excessive and thus unfit; and that the 20 methodology of grouping certain offences together 21 where there are multiple infractions and then 22 sentencing concurrently is not a legal principle 23 but is a tool or a rational way in which to 24 achieve appropriate totality of sentence. 25 The defence referred the Court to 26 R. v. Desmarest, (1986) 2 Q.A.C. 151, where it 27 was held that "as a general rule" where an Official Court Reporters 9 1 accused is convicted before the same Court of a 2 number of offences arising from the same 3 transaction the Court will impose sentences 4 concurrently. I do not read the judgment as 5 setting out a legal principle that must be 6 followed in all cases but rather as a guideline 7 to Judges. The case predates Crocker, McDonnell 8 and A. T. S. and, if I am wrong in my 9 interpretation of what the Court is saying, I am 10 of the view that the reasoning in the case has 11 subsequently been rejected. Finally, counsel 12 have not cited any authorities from the Northwest 13 Territories where the "concurrent versus 14 consecutive" issue has been directly examined and 15 I am not aware of any. To the extent that the 16 ratio in Desmarest is still good law in the 17 province of Quebec, I would respectfully decline 18 to adopt the reasoning in that case in this 19 jurisdiction but prefer the approach in the triad 20 of cases cited. 21 The only issue, then, is whether the global 22 sentence of 13 months is excessive and therefore 23 unfit. Whether the sentencing Judge arrived at 24 the totality of sentence by imposing concurrent 25 or consecutive sentences is largely irrelevant. 26 In most cases, an appellate Court will, as in 27 Haines, group multiple offences (there were 17 in Official Court Reporters 10 1 total) into categories and impose sentences 2 within those discrete categories concurrently 3 since the result of sentencing on each offence 4 consecutively would otherwise be an excessive 5 (and unfit) penalty. However, there are cases 6 where sentencing concurrently could also result 7 in an unfit sentence - one that is too lenient 8 and fails to reflect the seriousness of the 9 offences. It occurs to me that this might well 10 be a case in point. See R. v. Munilla, [1986] 11 M.J. No. 27. 12 In any event, I find that the sentencing 13 Judge did not err in imposing sentences 14 consecutively in this case and reject this ground 15 of appeal. 16 When examining the issue of totality, as I 17 have said I am to defer to the decision of the 18 sentencing Judge unless I am persuaded that there 19 was an error that resulted in the imposition of 20 an unfit sentence. 21 Fundamental to the question is an 22 examination of the record of the appellant, which 23 I am attaching as Appendix A to this judgment. 24 A cursory review of this record discloses 25 that the appellant is an intractable and 26 remorseless recidivist with 37 previous 27 convictions dating from 1988. He has Official Court Reporters 11 1 demonstrated no regard whatsoever for court 2 orders, starting with his breach of probation in 3 1993. More importantly, he has four previous 4 spousal assaults (three on the same victim) and 5 two of these were assaults that caused bodily 6 harm. The appellant has been treated leniently 7 by the courts given his deplorable record and 8 obvious proclivity to control, threaten, and 9 batter his common-law spouse. At the time of 10 these offences, he was on probation for having 11 assaulted the victim in late 2008. 12 The sentencing Judge referred to 13 Section 718.2(a)(ii) in noting that abuse of the 14 offender's spouse is an aggravating factor in 15 sentencing. 16 The appellant argues that incorporating 17 Section 718.2(a)(ii) into a sentence as an 18 aggravating factor is to doubly penalize an 19 accused and is, ergo, unconstitutional - a breach 20 of Section 15 of the Charter of Rights and 21 Freedoms. I am not sure that I have entirely 22 captured the logic of this argument but to the 23 extent that I do, I reject it. It is open to 24 Parliament to enact statutory provisions 25 respecting the public's denunciation of some 26 kinds of criminal activity. The section also 27 directs courts to consider circumstances that are Official Court Reporters 12 1 mitigating. In any event, the appellant has not 2 mounted a Charter challenge and I need give no 3 further consideration to this line of argument. 4 Further, the appellant argues that the 5 sentencing Judge presumed psychological harm to 6 the victim and the child when there was no 7 evidence before the Court to that effect. And 8 following McDonnell, supra, she was not entitled 9 to make that presumption and made a fundamental 10 error in doing so. 11 Paragraph 37 of the McDonnell judgment reads 12 as follows: 13 To the extent that the Court of 14 Appeal held that the Crown need not 15 prove psychological harm in some 16 instances, but rather such harm may 17 be presumed, it was an error. As 18 stated above, if the Crown wishes to 19 rely upon the existence of 20 psychological harm, in my view the 21 Crown should charge under the 22 section set out in the Code that 23 contemplates harm, Section 272(c), 24 and prove the offence. 25 Accepting that harm may be an 26 aggravating factor under 27 Section 271, R. v. Gardiner, [1982] Official Court Reporters 13 1 2 S.C.R. 368, held that each 2 aggravating factor in a sentencing 3 hearing must be proved beyond a 4 reasonable doubt. Such an approach 5 is confirmed by Parliament in the 6 new Section 724(3)(e) of the 7 Criminal Code. If psychological 8 harm may be presumed, the burden of 9 proving harm as an aggravating 10 factor is improperly lifted from the 11 Crown and shifted to the accused to 12 disprove harm. 13 McDonnell was decided in 1996 and can hardly 14 be described as "dated". And yet, the reasoning 15 that psychological harm cannot be presumed in 16 cases of sexual assault, and by inference 17 domestic violence, runs contrary to the 18 mainstream notions of Canadian society which are 19 that by their very nature, these offences will 20 almost always result in emotional damage and 21 psychological trauma to the victims and their 22 families. In the case of domestic violence, 23 evidence that it is an extremely serious societal 24 problem and recognized as such across Canada is 25 to be found in the fact that most, if not all, 26 provinces and Territories have now passed 27 emergency protection legislation specifically Official Court Reporters 14 1 dealing with spousal and child abuse. 2 There is now a considerable body of 3 literature on the effects of domestic violence on 4 victims, children, and society. That the 5 sentencing Judge was sensitive to this issue is 6 amply demonstrated when she read an unattributed 7 passage from a body of research to the appellant 8 at sentencing as follows: 9 With great respect, Mr. 10 Latimer, to say that this is not so 11 bad because there was no physical 12 injuries -- if there were physical 13 injuries, first, it would be a 14 different charge; it would be an 15 assault causing. This is an 16 assault. 17 I hope, Mr. Sanderson, you do 18 not think for a minute that you did 19 not cause any harm or have any 20 harmful effects on Tainchay 21 Lockhart, the mother of your child. 22 The bruises and the black eyes and 23 cuts, blood, may go away. But you 24 beat a woman and drag her around and 25 tell me that your relationship is 26 based on love - Mr. Sanderson, that 27 is a relationship based on fear. Official Court Reporters 15 1 Mr. Sanderson, you think about 2 Jonas. I want to read to you. This 3 is a small part of something that I 4 read probably a couple of years ago 5 now, but on the effects of domestic 6 violence, and these are the effects 7 on children: 8 "Recent research studies have 9 confirmed what has been intuitively 10 known for some time: witnessing 11 domestic violence endangers the 12 emotional well being and development 13 of children. The immediate trauma 14 of witnessing abuse includes 15 self-blame, fear for their parents' 16 safety and, ultimately, fear for 17 self. The range of resulting 18 problems are varied and include 19 psychosomatic disorders such as 20 stuttering, anxiety, fear, sleep, 21 sleep disruption, and school 22 problems. Older children have a 23 tendency to identify with the 24 aggressor and lose respect for the 25 victim, usually their mother. As 26 many as 75 percent of boys who 27 witness the abuse of a parent have Official Court Reporters 16 1 demonstrable behavioural problems, 2 are much more likely to be arrested 3 by police and to engage in 4 delinquent behaviour". 5 So Mr. Sanderson, I hope that 6 you do not think, first off, that 7 you are not causing any harm to your 8 partner by treating her this way, 9 and, Mr. Sanderson, I hope you 10 realize the harm you are causing to 11 your son. 12 There is also a section of the 13 Criminal Code, Section 718.2(a)(ii), 14 which says that if the victim of 15 a -- or if a crime is committed and 16 it is either against your spouse or 17 your common-law partner or your 18 child, that is aggravating. That 19 always has been, Mr. Sanderson, but 20 now the Criminal Code says that 21 right in there. That is because we 22 as a community have decided we are 23 not going to put up with it. Family 24 violence has to stop, partly because 25 of the harm it causes, the sheer 26 physical harm, the emotional harm, 27 and the cycle it causes. Children Official Court Reporters 17 1 do what they see. You think about 2 what you are teaching your son. 3 This Court has sympathy with the remarks of 4 the sentencing Judge and largely identifies with 5 those remarks. 6 Courts across the country, including the 7 Northwest Territories, in the Northwest 8 Territories, have often commented on the 9 prevalence of spousal assault, as did the 10 sentencing Judge here. 11 In R. v. Attig, [1992] N.W.T.J. No. 107 at 12 page 109, Vertes J. of this Court stated: 13 Canadian society has now started to 14 recognize the extent of the problem 15 of domestic violence. I see no 16 distinction between acts of violence 17 occurring during a relationship or 18 after the relationship has ended. I 19 do not see why acts that are only 20 threatened, as opposed to being 21 actually carried out, should also 22 not be regarded as acts of violence. 23 Threats such as these, in these 24 circumstances, obviously instill 25 terror and fear in the victim. It 26 may not be overt physical violence, 27 but it is certainly psychological Official Court Reporters 18 1 violence. It is really, in essence, 2 just another way that this man tried 3 to control this woman. The assault 4 as well, while relatively minor, is 5 an example of the accused's lack of 6 appreciation for anything but his 7 own desires. 8 There was evidence of harm in that case but 9 I identify with the observations of Justice 10 Vertes. While there is no evidence here that the 11 victim suffered physical harm, it is common sense 12 that the threat of it would have been present 13 given the record of the appellant. 14 The sentencing Judge rightly treated these 15 offences seriously and felt the need to emphasize 16 the principles of deterrence and denunciation and 17 to send a message to the appellant who has been 18 demonstrably incapable of refraining from abusing 19 his spouse. That she did impose a rather lengthy 20 period of incarceration was entirely proper in 21 the circumstances. 22 I must however, consider the so-called "jump 23 principle" [see Sentencing, Clayton C. Ruby, 24 Lexis Nexis, 7th ed. at Chapter 13.28) 25 particularly in light of the appellant's argument 26 concerning the presumption of psychological harm. 27 Although I am of the view that a sharp increase Official Court Reporters 19 1 in jail time was warranted, the question is 2 whether it was excessive in this case. 3 What is somewhat unusual here is that there 4 was no evidence whatsoever of physical or 5 psychological harm. In the normal course, a 6 complainant would testify at trial and relate the 7 fear she (he) had at the time of the offence and 8 speak to the emotional and lasting psychological 9 harm that she continues to experience. The trial 10 Judge can evaluate the evidence and the 11 credibility of the complainant and conclude that 12 the element of harm has been proved beyond 13 reasonable doubt. In the case of a guilty plea, 14 often a victim's impact statement can constitute 15 proof of psychological trauma. On occasion, a 16 Court may hear expert evidence. In other cases, 17 where the Court, after a guilty plea, only hears 18 submissions from the Crown alleging psychological 19 harm, the defence may not challenge that 20 assertion. But here, the victim, in testifying, 21 actually attempted to exonerate the appellant by 22 claiming that she voluntarily accompanied him 23 back into the house from the truck. Her evidence 24 was not impeached by the Crown but the trial 25 Judge nevertheless completely rejected it, 26 finding it totally lacking in credibility. 27 However, at the end of the trial there was no Official Court Reporters 20 1 evidence of harm from the victim or from any 2 other witnesses. 3 As mentioned, while Courts can comment on 4 the prevalence and dangers to society of certain 5 kinds of crime and further take into account that 6 an aspect of a crime, as here, is by statute to 7 be considered as aggravating on sentence, quaere 8 whether a Court can presume harm when there is no 9 evidence of it before the Court and treat that as 10 an additional and not insubstantial aggravating 11 factor. 12 Having carefully reviewed the remarks of the 13 sentencing Judge, I am satisfied that she did, in 14 fact, presume psychological harm and consider 15 this an important factor which aggravated this 16 offence over and above the record of the 17 appellant and the aggravation prescribed 18 by Section 718.2(a)(ii). 19 As noted, the accused's record is lamentable 20 and even contemptible considering his record of 21 convictions for spousal assault. However, the 22 longest period for which he has been incarcerated 23 for spousal assault was five months (in 2002) and 24 his last such conviction for common assault in 25 December of 2008 resulted in a sentence of 90 26 days in jail. I appreciate that, in addition to 27 assault, here the appellant was convicted of Official Court Reporters 21 1 unlawful confinement. But having regard to the 2 facts, it was in the nature of an ongoing or 3 extended common assault, albeit of a somewhat 4 more serious one. 5 Had there been evidence before the 6 sentencing Court of any physical or psychological 7 harm, I would have dismissed this appeal. In the 8 circumstances, however, I find that in factoring 9 the element of psychological harm, without any 10 evidence of such harm, the sentencing Judge was 11 in error. Having referred to the "jump 12 principle", it is my view that the resulting 13 sentence was excessive although not to a large 14 degree. A sentence that doubles any previous 15 period of incarceration for spousal assault 16 would, in my view, satisfy the various principles 17 of sentencing, including the principles of 18 totality. 19 Accordingly I would grant the appeal and 20 substitute a sentence of five months for the 21 sentence of eight months for the offence of 22 unlawful confinement to be served consecutive to 23 the five month sentence for common assault which 24 remains undisturbed. 25 Is there anything else, counsel? 26 MS. VAILLANCOURT: No. 27 THE COURT: Thank you, counsel. Official Court Reporters 22 1 MR. LATIMER: Thank you, Your Honour. 2 THE COURT: I am going to retire for ten 3 minutes, and I will deliver the reasons in the 4 case of R. v. Stuart. 5 (ADJOURNMENT) 6 7 8 ------------------------------------- 9 10 11 Certified to be a true and accurate transcript pursuant 12 to Rules 723 and 724 of the Supreme Court Rules, 13 14 15 16 ____________________________ 17 Lois Hewitt, CSR(A), RPR, CRR Court Reporter 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 23
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