Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
R. v. Gladue, 2011 NWTSC 25
S-1-CR2010000094
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- vs. -
NEAL GLADUE
_________________________________________________________
Transcript of the Reasons for Sentence of The Honourable
Justice L. A. Charbonneau, at Yellowknife in the Northwest
Territories, on May 5th A.D., 2011.
_________________________________________________________
APPEARANCES:
Mr. A. Godfrey: Counsel for the Crown
Mr. T. Boyd: Counsel for the Accused
----------------------------------------
Charge under s. 267(a) Criminal Code of Canada
Official Court Reporters
1 THE COURT: Neal Gladue has pleaded
2 guilty this morning to a charge of assault
3 with a weapon contrary to Section 267(a) of
4 the Criminal Code, and now it is my
5 responsibility to impose a sentence on him for
6 that crime.
7 The circumstances of the offence that I
8 heard about this morning were that on the date
9 of the offence, June 21st, 2009, Mr. Gladue
10 had been consuming alcohol and, for some
11 unknown reason, got into an argument and a
12 fight with Mr. Fabian, the victim in this
13 matter. It appears that other people who were
14 around were able to break up that fight, which
15 took place near Mr. Gladue's residence, but
16 then he went inside the house and came back
17 out with a golf club and started swinging it
18 at Mr. Fabian. He tried to hit Mr. Fabian,
19 who put up his arm to protect himself, and as
20 a result of being struck with the club
21 suffered a puncture injury to his arm. It
22 appears that Mr. Gladue continued to try to
23 hit Mr. Fabian with the golf club but
24 eventually Mr. Fabian got the golf club away
25 from him and then he started hitting
26 Mr. Gladue with it, and he struck him on the
27 head causing a gash on Mr. Gladue's head that
Official Court Reporters 1
1 required some sutures.
2 This came to an end again because other
3 people intervened. No one seems to remember
4 what the fight was even about.
5 Everyone is very lucky that there were not
6 more severe consequences to either men. A
7 person, especially an intoxicated angry out of
8 control person, can cause another person a lot
9 of damage and very serious injuries with
10 something like a golf club. And this Court
11 occasionally, unfortunately, has to deal with
12 matters that are actually manslaughter charges
13 based on someone being killed in one of those
14 types of senseless fights that seems to have
15 occurred in this case. Even when people don't
16 intend on causing death to others, when doing
17 things like hitting them with golf clubs or
18 using any kind of weapon, that unfortunately
19 is sometimes the consequence. Fortunately
20 that was not the case here and no one was
21 seriously injured, but I make this comment to
22 underscore the seriousness of the type of
23 offence and which explains why Courts tend to
24 treat them seriously and more often than not,
25 impose jail terms to those who are convicted
26 of them.
27 Mr. Gladue had a preliminary hearing in
Official Court Reporters 2
1 the Territorial Court and he was committed to
2 stand trial. After that he indicated his
3 intention to plead guilty, which was done
4 before this Court, and a pre-sentence report
5 was ordered.
6 I have read that pre-sentence report a
7 number of times this morning. I read it
8 before court and I have read it again while I
9 was considering my decision.
10 It is a very thorough pre-sentence report
11 and I really want to commend its author Ms.
12 Beck for it. I found it extremely helpful in
13 dealing with this matter.
14 It is everything that a pre-sentence
15 report should be. It goes in a great deal
16 deal over Mr. Gladue's personal circumstances,
17 his family history, the circumstances of his
18 growing up and his present situation. And it
19 is a PSR that is very positive towards him.
20 It describes the obstacles that he has had to
21 overcome and how, despite some of those
22 challenges, instead of doing what some
23 do - turn against others and do to them what
24 was done to him - he took charge of his life.
25 He worked hard. He developed what appears to
26 have been a very positive relationship with
27 his girlfriend and has done what he could to
Official Court Reporters 3
1 provide for his family. All of this of course
2 is to his credit and bodes very well for his
3 prospects of rehabilitation.
4 As I have said, though, the crime that he
5 has committed is a serious one. It is
6 punishable by a maximum of ten years in jail
7 and that in and of itself shows how seriously
8 Parliament treats it. Getting into physical
9 fights is not a good thing, assaulting other
10 people is not a good thing and is a crime in
11 and of itself. But introducing a weapon into
12 a fight is even worse. It escalates things.
13 It increases greatly the potential for serious
14 injury. Because of that, deterrence and
15 denunciation - that is, trying to discourage
16 him from acting this way and also sending a
17 message to the public that the conduct is
18 wrong - are often the two sentencing
19 principles that are given priority when a
20 crime of violence is committed.
21 In any sentencing, other factors are also
22 important and rehabilitation of the offender
23 is one of them.
24 By all accounts, Mr. Gladue is a good
25 candidate for rehabilitation. And because he
26 is an aboriginal offender, the Criminal Code
27 requires me to approach his sentencing by
Official Court Reporters 4
1 considering the systemic factors that may have
2 contributed to his getting into conflict with
3 the law, as well as whether sentencing tools
4 other than incarceration might be more
5 appropriate to achieve the goals and purposes
6 of sentencing.
7 Another sentencing principle that I must
8 be mindful of is parity, and it was referred
9 to this morning. Parity simply means that
10 people who are in similar positions and commit
11 similar crimes can expect to receive similar
12 sentences.
13 Mr. Fabian was sentenced to two years less
14 a day in jail and then was given some credit
15 for some remand time, and of course what is
16 being suggested here is very different from
17 that. Here the two men were involved in the
18 fight, they each used a weapon. Mr. Gladue
19 was the one who introduced the weapon into the
20 fight, which is aggravating, but I also have
21 to recognize that the circumstances of these
22 two people are very different.
23 Mr. Fabian, I am told, had an extensive
24 criminal record spanning over a few decades
25 with numerous convictions for crimes of
26 violence. He had been sent to jail on several
27 occasions, twice receiving a penitentiary
Official Court Reporters 5
1 sentence. By contrast, Mr. Gladue is 22 years
2 old. He has no criminal record at all. So
3 that places these two offenders in very
4 dissimilar circumstances even though the
5 actual offence they committed could be
6 considered to be quite similar.
7 Counsel have presented me with a joint
8 submission on this matter. The law is clear
9 that a joint submission should be followed by
10 the Court unless it is clearly unreasonable.
11 The law expects sentencing Judges to give
12 considerable weight to a position that is
13 arrived at by two counsel who are intimately
14 familiar with the case and who have given the
15 various considerations that come into play
16 some serious thought.
17 I am satisfied, based on what I have heard
18 this morning, that this is a position that was
19 arrived at after both the Crown and defence
20 gave it some serious consideration and
21 discussion. And in addition, I certainly do
22 not think that what is being proposed is
23 unreasonable. It is not the type of sentence
24 that we see frequently, in this Court at
25 least, for crimes of violence, but that does
26 not mean that it is unreasonable in the
27 circumstances of this case.
Official Court Reporters 6
1 I agree that this is a proper way to deal
2 with this matter. A jail term is required
3 because of the seriousness of the offence and
4 the other factors that I have referred to but,
5 in the circumstances of this case, I think it
6 is appropriate to allow Mr. Gladue to serve
7 that sentence in the community.
8 Just briefly, the Criminal Code provides
9 some criteria that have to be met before a
10 conditional sentence can be imposed, and I
11 have considered them.
12 First of all, it is only appropriate to
13 use that sentencing tool if the sentence the
14 Court would impose would be a sentence of less
15 than two years, and that is clearly the case
16 here. That is evidenced by the fact that the
17 other person involved who, as I have already
18 mentioned, had a very significant criminal
19 record got a sentence of less than two years.
20 So that requirement is met.
21 The second requirement is that a
22 conditional sentence would not endanger the
23 safety of the community. That is usually the
24 requirement that gives the Courts more
25 difficulty. But based on everything that has
26 been adduced, presented in the pre-sentence
27 report and in submissions about Mr. Gladue,
Official Court Reporters 7
1 the fact that this seems to have been
2 completely out of character for him, and all
3 of the other positive things that he has going
4 for him, I do not think that allowing him to
5 serve his sentence in the community is going
6 to endanger the public in Hay River or
7 anywhere else. Specifically, I have
8 considered the following mitigating factors in
9 arriving at this conclusion:
10 I have considered the guilty plea. I have
11 considered the fact that Mr. Gladue was
12 cooperative with the investigation from the
13 start, as confirmed by the police officer
14 interviewed for the pre-sentence report who
15 said that Mr. Gladue gave a statement. I have
16 taken into account his young age and his
17 family circumstances. He has a stable
18 relationship and a new child, and I am
19 confident that he will want to direct his
20 efforts towards supporting them, not getting
21 himself into trouble.
22 I have given great consideration to the
23 pre-sentence report which talks at length
24 about his personal circumstances and
25 specifically recommends a community-based
26 sentence. A recommendation in a pre-sentence
27 report is not determinative obviously, but
Official Court Reporters 8
1 given the circumstances that are set out in
2 this pre-sentence report, it reinforces me in
3 my opinion that it is an appropriate outcome
4 for this case.
5 I have also taken into account Mr.
6 Gladue's remorse which I accept as genuine.
7 And I have taken into account the fact
8 that he was charged for this offence a long
9 time ago, he has been on process since, and
10 there is no indication that there have been
11 any problems or that he has not complied with
12 his release terms. In fact, again the police
13 officer interviewed for this pre-sentence
14 report confirmed that he had never had any
15 problems with him before this and he has not
16 had any difficulties with Mr. Gladue since.
17 And that also says a lot coming from an
18 officer of the agency that is responsible for
19 maintaining peace in a community.
20 So Mr. Gladue, please stand up.
21 For the reasons that I have given,
22 Mr. Gladue, I am going to agree with the
23 suggestion that was made by the lawyers, and I
24 am going to impose a jail term of one year but
25 I will permit you to serve that jail term in
26 the community. So there are a few conditions
27 that I have to read so you can sit down and I
Official Court Reporters 9
1 will list them out for you.
2 THE ACCUSED: Sit down?
3 THE COURT: You can have a seat, yes.
4 Pursuant to the Criminal Code, there are
5 mandatory conditions any time the Court
6 imposes a conditional sentence order.
7 The first is that he keep the peace and be
8 of good behaviour;
9 that he appear before the Court when
10 required to do so by the Court;
11 that he report to a supervisor within two
12 days of today's date which means, Mr. Gladue,
13 when you go back to Hay River you go and see
14 Probation Services and they will assign you a
15 conditional sentence supervisor. Actually
16 today is Thursday so I will make that within
17 four days of today's date, just in case that
18 you have a problem finding them before the
19 weekend. And thereafter you will report to
20 the conditional sentence supervisor when and
21 as directed by that supervisor. They will
22 decide how often they will need to see you.
23 Next, you will remain in the jurisdiction
24 of this Court, that is the Northwest
25 Territories, unless written permission to go
26 outside the jurisdiction is obtained from the
27 Court or from your supervisor. So if you need
Official Court Reporters 10
1 to go visit family for example in Alberta, you
2 need to get written permission from your
3 conditional sentence supervisor first.
4 And you will notify the Court or the
5 conditional sentence supervisor of any change
6 of name or address and changes in employment
7 or occupation. So if you are able to get your
8 own house, you need to let your conditional
9 sentence supervisor know your new address and
10 you need to keep that conditional sentence
11 supervisor advised about what is going on with
12 your work. And you will need to do that for
13 other reasons related to the other conditions
14 that I am going to include, that I am about to
15 tell you about.
16 The other conditions will be that you
17 abstain absolutely from the possession or
18 consumption of alcohol or drugs. You were
19 very honest with the author of the
20 pre-sentence report and you acknowledged that
21 you have been using marijuana. Marijuana is
22 still an illegal substance and in any event it
23 is probably better for you not to consume
24 anything of that nature because it seems that
25 alcohol was a factor in this incident with
26 Mr. Fabian. So for the duration of this
27 conditional sentence order -- well no drugs is
Official Court Reporters 11
1 always the case really under the law, but
2 there will be a no alcohol condition.
3 The next condition is that you will take
4 counselling as directed. I leave it up to you
5 and the conditional sentence supervisor to
6 discuss what, if anything, can be done to help
7 you to work out some of the issues that you
8 may still have in your life. So that
9 condition is simply to follow the directions
10 of the supervisor in that regard.
11 You will provide support for your spouse
12 and your child. That is simply continuing to
13 do what you have been doing until now,
14 obviously within your capacity and your
15 ability to do so.
16 You will have no contact with Brian
17 Fabian, and I am going to put an exception
18 here because of a comment that you made in the
19 pre-sentence report. The exception is you can
20 have indirect contact with him for the
21 purposes, if you wish, I am not ordering you
22 to do so, but if you wish to give him a
23 written apology for what you did, I am giving
24 you permission to do that. But it has to be
25 in writing and it will have to be delivered to
26 him through a third party, possibly the
27 conditional sentence supervisor or someone
Official Court Reporters 12
1 else. I emphasize this - I am not ordering
2 you to apologize. I don't believe in ordering
3 people to apologize. But in the pre-sentence
4 report you said that because of the no-contact
5 order you hadn't been able to apologize. So
6 if you want to, for that you can have contact
7 with him.
8 The next condition is that you will
9 perform 200 hours of community service work.
10 And that is something that will be worked out
11 with your conditional sentence supervisor.
12 That's work for free for the benefit of the
13 community, usually. Your supervisor will be
14 able to tell you what it can be, but it is a
15 way to emphasize that you broke the law, you
16 did something that society does not approve
17 of, and that you are making amends. And
18 hopefully it will be work that will benefit
19 somebody.
20 The next condition is that you reside at
21 House 213 Wolf Drive unless and until you are
22 able to get your own house. I am not wanting
23 to interfere with your efforts to get your own
24 house. The point is this is your address for
25 now so you have to stay there. And if it
26 changes you let your supervisor know.
27 The next thing is that you have to be
Official Court Reporters 13
1 inside that residence between 11 p.m. and 6
2 a.m., that's a curfew essentially, except if
3 for employment reasons your conditional
4 sentence supervisor gives you written
5 permission not to be there. So it complicates
6 things a bit but that's what a conditional
7 sentence is. You are not a free man. So when
8 you know more, if you know that your
9 employment requires you to go either to the
10 fire fighting camp or somewhere else, you let
11 her know, or him, if it is a him, and get
12 written permission to not comply with the
13 curfew. Otherwise it is in force. And it is
14 the same for the house arrest.
15 I am going to impose a house arrest
16 condition for the first four months of the
17 conditional sentence. This is not for the
18 full year, it is just for the first four
19 months. But for the first four months you
20 have to remain in your residence basically all
21 the time except for medical emergencies, with
22 the same exception - unless for employment
23 purposes your conditional sentence supervisor
24 gives you written permission to do otherwise.
25 So the curfew is for the whole year, the
26 house arrest is for the first four months.
27 And in both cases if for employment purposes
Official Court Reporters 14
1 you need an exception, then you can ask for
2 it.
3 Now if you decide that you want to plan a
4 trip to visit your family with your child, you
5 will have to ask the Court's permission. I
6 don't want to leave this as an open-ended for
7 any reason your conditional sentence
8 supervisor can lift these conditions. Because
9 the alternative is that you would be sitting
10 in jail and you would have had no freedom. So
11 if you decide within this timeframe you want
12 to go on a trip, then you will have to ask
13 permission for that. It can be done by
14 consent. If the Crown doesn't oppose the
15 request then an order can be submitted by
16 consent so that the Court will grant you that
17 permission. I am putting that condition in
18 because it is important that everyone
19 understand that this is a meaningful, that it
20 is not as though you were just on probation or
21 completely free and you can do, go about your
22 life the normal way. Because this is kind of
23 an exceptional sentence for this type of
24 offence. So do you understand all of that?
25 THE ACCUSED: Yeah.
26 THE COURT: If you have any trouble
27 understanding any of these conditions, speak
Official Court Reporters 15
1 to Mr. Boyd and I am sure that the conditional
2 sentence supervisor will be able to help you
3 out as well. All right, you understand all of
4 that?
5 THE ACCUSED: Yeah.
6 THE COURT: Now, I will also make a
7 firearms prohibition order. It is mandatory
8 in my opinion under Section 109 of the
9 Criminal Code. But, because of the evidence
10 that is before the Court about your hunting
11 activities and the fact that you have provided
12 sustenance for your family through that, I
13 authorize, pursuant to Section 113 of the
14 Criminal Code, the chief firearms officer to
15 issue you an authorization on certain
16 conditions. So there is a firearms
17 prohibition order in place but the firearms
18 officer has this Court's permission to decide
19 on what conditions you can, for sustenance
20 purposes, provide for your family, so you can
21 have hunting activities.
22 There will also be a DNA order which is
23 because this is a primary designated offence.
24 And the last thing is there is going to be
25 a victim of crime surcharge. You will be
26 working, it sounds like, and so that money
27 goes into a fund that is used to assist
Official Court Reporters 16
1 victims of crime, not necessarily the victim
2 of this crime but victims of crime in general.
3 And when people have the means to pay it, it
4 is part of what the Criminal Code contemplates
5 is to happen. I think for indictable matters
6 it is $100.
7 MR. GODFREY: I believe that's correct.
8 THE COURT: So I will give you 60 days
9 to pay that. It is a hundred dollars but I
10 don't know what your situation is. I will
11 give you 60 days. Again if that presents a
12 problem for whatever reason, speak to
13 Mr. Boyd.
14 Mr. Godfrey, have I overlooked anything?
15 MR. GODFREY: No, I believe that's
16 everything.
17 THE COURT: Mr. Boyd, have I overlooked
18 anything?
19 MR. BOYD: No, Your Honour, thank you.
20 THE COURT: Has everything that I have
21 said clear?
22 MR. BOYD: Yes, and if it isn't I will
23 explain to Mr. Gladue.
24 THE COURT: It is clear to you at least?
25 MR. BOYD: Yes, it is.
26 THE COURT: That's a start. Well, thank
27 you, counsel, for your submissions on this
Official Court Reporters 17
1 case, and good luck to you, Mr. Gladue.
2 (ADJOURNMENT)
3
4 -------------------------------------
5
6
7 Certified to be a true and
accurate transcript pursuant
8 to Rules 723 and 724 of the
Supreme Court Rules,
9
10
11
12 ____________________________
13 Lois Hewitt,
Court Reporter
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Official Court Reporters 18
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.