Supreme Court
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Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
R. v. Gargan, 2011 NWTSC 47 S-1-CR-2008-000067
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- V -
CHRISTOPHER GARGAN
_________________________________________________________
Transcript of the Reasons for Sentence by The Honourable
Justice L. A. Charbonneau, sitting in Hay River, in the
Northwest Territories, on the 16th day of September, A.D.,
2011.
_________________________________________________________
APPEARANCES:
Mr. G. Boyd: Counsel for the Crown
Ms. C. Wawzonek: Counsel for the Defence
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Charge under s. 271 Criminal Code of Canada
Ban on Publication pursuant to s. 486.4 of the Criminal Code protecting the identity of the complainant.
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1 THE COURT: Yesterday I found Christopher
2 Gargan guilty of sexual assault, and I must now
3 sentence him for that serious crime. In any
4 sentencing the Court must take into account the
5 circumstances of the offence, the circumstances
6 of the offender, and the sentencing principles
7 that are set out in the Criminal Code.
8 In this specific case an important
9 sentencing factor is the outcome of a sentencing
10 hearing that was held over two years ago, after
11 Mr. Gargan was convicted of this charge by a
12 jury. I did not hear any suggestion this morning
13 that the circumstances of the offence that came
14 out in the evidence adduced at that trial were
15 different from the circumstances that came out
16 in the evidence at this trial. The sentence
17 that was imposed by this Court after the first
18 trial was four years imprisonment. Although
19 the conviction was the subject of an appeal,
20 the sentence never was, and I have not heard
21 any suggestion that it was not a fit sentence
22 for this crime committed by this offender,
23 considering the legal principles applicable
24 in light of the evidence that was before the
25 Court at that time.
26 So the question for me today really is
27 whether there are any reasons to impose, for
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1 that same offence, a sentence that is different
2 from the one that was imposed back in January of
3 2009. Parity is an important principle in our
4 criminal sentencing law. It is specifically set
5 out as a sentencing principle in the Criminal
6 Code, and it requires that similar crimes,
7 committed by similar offenders, should result
8 in similar sentences.
9 In the application of that principle it
10 is often said that no two cases are exactly
11 alike, but of course when we are dealing with
12 the very same offence, committed by the very
13 same offender, on the very same date, that
14 comes as close as it can to two cases being
15 alike.
16 It is still open to me to take into account,
17 as defence counsel suggests I should in this
18 case, differences between the offender's personal
19 circumstances at this time and what those
20 circumstances were at the time of the original
21 sentencing. More specifically, some of his more
22 recent efforts towards rehabilitation and the
23 fact that he now has support from certain people,
24 which he may not have had at the time of his
25 original sentencing, and the fact that he has
26 now, for the first time, completed a treatment
27 program, something that he had not been able to
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1 do in the past. All of these things could draw a
2 meaningful distinction between his circumstances
3 at the time of the original sentencing and his
4 circumstances now.
5 Still, I think that in order to foster
6 public confidence in the administration of
7 justice and in the sentencing process, I must
8 be very cautious that any difference between the
9 sentence I find to be fit today and the sentence
10 that was found to be fit in January of 2009 be
11 clearly justified and anchored on solid reasons.
12 To put the sentencing decision in context,
13 I will briefly refer again to the circumstances
14 of the offence as they were disclosed at this
15 trial.
16 The complainant is Mr. Gargan's cousin.
17 Shortly before this incident happened she had
18 given him permission to stay for a time in the
19 basement of her house in Fort Providence. He
20 had slept there one night at the start of the
21 week, but she had not seen him in the several
22 days that followed, leading up to the night of
23 this incident.
24 That day the complainant had been drinking
25 with her boyfriend earlier in the morning, but
26 had stopped early in the afternoon. It appears
27 from the evidence at the trial that she was not
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1 feeling well that day, and slept for a while in
2 the afternoon at her boyfriend's parents' house
3 and later at her own house. In the evening she
4 and her boyfriend purchased a case of beer and
5 returned home with her boyfriend's brother, but
6 not along after they got back to their house she
7 went to bed in her room and fell asleep. The two
8 brothers stayed at the house and drank beer and
9 started watching a movie.
10 Mr. Gargan arrived at the house sometime
11 later in a highly intoxicated state. He had been
12 drinking beer at the house of a relative of his
13 for some period of time and had decided to go
14 back to the complainant's house to go to sleep.
15 The complainant's boyfriend had some concerns
16 about whether Mr. Gargan had permission to be
17 there, but in the end Mr. Gargan did go to the
18 basement, laid down on the mattress that was
19 there for him to sleep on, and remained in the
20 house.
21 The two brothers eventually left the house,
22 and when they did the only people in the house
23 were the complainant and Mr. Gargan, and as
24 far as the boyfriend knew both were asleep.
25 Ms. Gargan woke up sometime later to someone
26 on top of her, kissing her face, and having
27 sexual intercourse with her. It was dark and
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1 she could not see the person's face. She had
2 an immediate reaction, pushed the person off
3 and turned on the light, at which point she saw
4 someone on her bed under a blanket. She pulled
5 off the blanket and saw that it was Mr. Gargan.
6 She immediately went to call the police, and RCMP
7 officers attended within minutes of the call and
8 took Mr. Gargan into custody.
9 The recording of the call made to the RCMP
10 was entered in evidence at this trial and showed
11 that the complainant was in a very distraught
12 state when she called. This was confirmed by the
13 evidence of her sister, who she also called that
14 night, and the evidence of the police officer who
15 spoke with her also that night when he arrived at
16 the house.
17 In her victim impact statement, which is
18 marked as Exhibit S-1, the complainant talks
19 about the effect that this assault had on her.
20 Sadly these effects are not uncommon consequences
21 to the crime of sexual assault. She describes
22 fear of being alone; she describes having to sell
23 the bed this happened on; no longer being able to
24 sleep in her bedroom; checking her basement and
25 other rooms of her house before going to sleep;
26 putting a chair under the doorknob to block and
27 to prevent anyone from coming in; that when she
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1 thinks about this this makes her mad and makes
2 her feel not good about herself; and that she
3 has had difficulty sleeping.
4 This victim impact statement is over two
5 years old. It was prepared in January of 2009,
6 and I was not provided with any updated victim
7 impact statement in this case. So I do not
8 know to what extent she still is experiencing
9 these effects. But what was visible during
10 her evidence was when she got to the point of
11 describing what she woke up to she became upset,
12 and it was apparent to me that she still finds
13 this, not surprisingly, a very upsetting thing
14 to think about and to talk about. And there is
15 nothing unusual about that unfortunately when
16 dealing with these types of events.
17 Sexual assault is a serious crime, it has
18 a serious impact on victims. It is a crime that
19 is extremely prevalent in this jurisdiction, and
20 in particular is often committed against women
21 who are sleeping. This Court has repeatedly
22 talked about the prevalence of this offence in
23 this jurisdiction and has repeatedly imposed
24 significant jail terms to those who are found
25 guilty of it. In so doing, the Court attempts
26 to send a clear message about the seriousness
27 of this conduct. Unfortunately, it appears
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1 that it is conduct that continues to occur
2 all too frequently in most of our communities.
3 The paramount sentencing principles
4 that apply to these types of offences are
5 denunciation, that is the need to send a
6 clear message about society's disapproval
7 of this conduct, and deterrence, that is the
8 hope that the sentences imposed will discourage
9 the offender before the Court, but also other
10 persons from engaging in this conduct. Other
11 sentencing principles set out in the Criminal
12 Code must also of course be taken into account,
13 including rehabilitation, but they cannot be
14 given first place when dealing with this type
15 of offence.
16 Specifically, in the circumstances here,
17 there are some aggravating features. The
18 victim was particularly vulnerable because
19 she was asleep in her own home. The accused
20 took advantage of the fact that he had been
21 permitted to stay in this home. I tend to
22 agree with defence counsel that this maybe
23 cannot be characterized as the same type of
24 breach of trust that is contemplated in the
25 section of the Criminal Code that specifically
26 makes it an aggravating factor, because that
27 provision seems to contemplate situations where
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1 there is more of the dynamic of control or
2 dependency between the victim and the offender.
3 But still, it is a factor to consider, something
4 that makes in my view the matter more serious,
5 that Mr. Gargan was a guest in the home and was
6 permitted to stay there because she trusted him.
7 It is also an aggravating factor that
8 Mr. Gargan has an extensive criminal record.
9 He does not have any prior convictions for
10 sexual offences, but he does have a number of
11 convictions for crimes against people, crimes
12 of violence.
13 As far as matters that would tend to
14 mitigate this sentence, I am bound to take
15 into account that Mr. Gargan is an aboriginal
16 offender, and I am required to approach this
17 sentencing with a lens that takes this into
18 account. This means taking into account any
19 systemic or background factors that may have
20 contributed to his coming into conflict with the
21 law, and also it requires me to consider what
22 sentencing approaches may be more appropriate
23 to him because of his aboriginal heritage.
24 I have heard that he is a residential
25 school survivor and I have heard that he was
26 faced, while growing up, and surrounded by,
27 a lot of dysfunction, and by many people who
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1 abused alcohol. There is very little doubt
2 in my mind that Mr. Gargan has indeed faced
3 systemic factors that have contributed to
4 his difficulties with the law that probably
5 contributed to his own unhealthy relationship
6 with alcohol, which in turn has resulted in a
7 fairly consistent pattern of breaking the law,
8 going back to even before he was an adult. He
9 is now in his 40s, and one can only hope that he
10 will succeed in making these proceedings a true
11 turning point in his life. Of course, only
12 time will tell whether that will be the case.
13 Because this was a very serious offence I am
14 not able to conclude that this is a case where
15 consideration of Mr. Gargan's aboriginal heritage
16 can result in a reduction of what would otherwise
17 be an appropriate sentence for this crime. I am
18 convinced that it is as important a value in
19 aboriginal communities as it is in non-aboriginal
20 communities that people should be safe in their
21 own homes and that people who are sleeping should
22 not be violated and treated like objects for the
23 sexual gratification of others.
24 Taking into account the circumstances as
25 a whole, those of the offence, those of the
26 offender and the applicable legal principles,
27 I do consider that the sentence that was imposed
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1 back in January of 2009 was a fit one. So the
2 issue now really is the extent to which the
3 intervening events between that sentencing
4 hearing and now can cause me to impose a
5 sentence that is different from the one he
6 received back then. Before turning to that,
7 I must briefly go over the procedural history
8 of this matter because it has a significant
9 bearing on the sentence I will impose today.
10 Mr. Gargan was sentenced to four years
11 imprisonment in January of 2009, as I said.
12 Sometime later he filed an appeal from his
13 conviction. He was not represented by counsel,
14 so there were some considerable delays in the
15 hearing of his appeal. But the appeal was
16 allowed on October 20th of 2010, and the
17 conviction was set aside. At that point
18 Mr. Gargan's presumption of innocence was
19 restored and the process he had been on before
20 his trial came into effect again. So he was
21 released. At that point he had served one
22 year and nine months of his four-year sentence.
23 Mr. Gargan was arrested for a breach of his
24 no-alcohol condition on January 19th, 2011. He
25 pleaded guilty to that charge three days later
26 and received a jail term of 60 days for that
27 offence. At the same time his process on this
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1 charge was cancelled, which means that at the
2 expiration of the 60-day sentence he was on
3 remand on this charge. His matter came up for
4 a mandatory bail review pursuant to Section
5 525 of the Criminal Code, and at that time
6 he applied for release. He was released on a
7 recognizance, with surety, on June 17th, 2011.
8 His counsel advised this morning, and I have
9 no reason to doubt, that Mr. Gargan did well over
10 the summer months after his release. There was
11 not as much work available for him or possible
12 for him to do as his surety had hoped, but I am
13 told that Mr. Gargan complied with the condition
14 to reside with his surety as required, and
15 functioned well in the community of Yellowknife
16 with the support of others.
17 I am told that as the trial date approached
18 and his stress level increased, his emotional
19 state deteriorated. He was required to turn
20 himself into the custody of the Hay River RCMP
21 on Friday, September 9th, the Friday before the
22 start of this trial. Arrangements had been made
23 for him to travel to Hay River to attend, but in
24 the end he did not get on the flight and he was
25 arrested, as I understand, in an intoxicated
26 state, in Yellowknife on September 9th. I also
27 understand that it was his surety who contacted
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1 the RCMP, which of course is something that was
2 the surety's duty to do if he had any reason to
3 believe that Mr. Gargan was no longer complying
4 with the terms of his release.
5 So there are two ways, as I see it, in which
6 these intervening events, and by this I mean the
7 events between January of 2009 and today, two
8 ways that these events can have a bearing on my
9 decision. The first and clear and obvious one
10 is that the time that Mr. Gargan has spent in
11 custody as a result of this offence must now be
12 taken into account in determining what jail term
13 should be imposed today.
14 This is provided for in Section 719(3)
15 of the Criminal Code. That is a provision that
16 is usually understood to apply to remand time,
17 pre-trial custody, but its wording is very
18 general and speaks of "any time spent in custody
19 as a result of the offence." So clearly, as a
20 matter of simple fairness, but also by operation
21 of that provision, both the remand time and the
22 time that was spent serving the original sentence
23 have to be taken into account. The amount of
24 time that was served before the appeal was
25 allowed amounts to 21 months.
26 The second aspect of the time spent in
27 custody is the remand time, the time spent
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1 between the expiration of the sentence imposed,
2 in January of 2011, and his release on bail in
3 June of 2011. Counsel were not able to determine
4 what his release date on the 60-day jail term
5 would have been but for the fact he was on remand
6 on this charge. Defence counsel is suggesting
7 I use the yardstick of assuming that he would
8 have been released after two-thirds of the
9 sentence, which is what usually happens, and
10 that means that he would have been eligible for
11 release approximately 40 days after the sentence
12 was imposed, sometime in early March of 2011.
13 This remand time, about three and a half months,
14 has to be taken into account.
15 He has also spent the last week in custody
16 in police cells, and I recognize that that
17 type of time in custody would be more difficult
18 than time spent on remand at the North Slave
19 Correctional Centre. He did not turn himself
20 into custody as required, but the fact is
21 that even if he had, he still would have
22 spent this week in police custody because that
23 was the intent of the terms of his release that
24 I determined at the bail hearing in June of 2011.
25 So it was not because of any of his actions that
26 he spent that week in custody. He was going to
27 spend that week in custody in any event.
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1 The question is how much credit he should
2 receive for the remand time. Defence counsel is
3 suggesting that I use a ratio of two-for-one and
4 the Crown is suggesting that I use a slightly
5 smaller ratio. With respect to the remand time
6 after the expiration of his sentence for the
7 breach, I am mindful that he has been sentenced
8 and punished for that breach, and I must be
9 careful not to punish him again by reducing the
10 credit I will give him for the time he spent on
11 remand as a result.
12 At the same time, I cannot overlook
13 completely that this and his bad track record
14 for non-compliance with court orders was part
15 of why he found himself on remand. I also take
16 into account that he had access to programs
17 while he was on remand. It is to his credit,
18 of course, but it does mitigate one of the
19 reasons why remand time is traditionally
20 treated as "harder time."
21 This is not an exact science, it is the
22 matter of the exercise of discretion and a
23 careful weighing. But having regard to totality
24 in the circumstances for the remand time as a
25 whole, the three and a half months from after the
26 expiration of the January sentence and the time
27 spent in police cells, I have concluded that
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1 Mr. Gargan should be given credit for six months
2 for the remand time as a whole. So for time that
3 he has already spent in custody I will reduce the
4 sentence by 27 months.
5 The second way in which the intervening
6 events could be relevant to the ultimate
7 sentence imposed today is what defence counsel
8 is asking me to do, and that is to take into
9 account the circumstances that have arisen
10 since the conviction appeal was granted in the
11 fall of 2010. Obviously anything that happened
12 after that was not before the Court in January
13 of 2009. So defence counsel has referred to the
14 effort that Mr. Gargan made, treatment that he
15 has received, things that are evidenced by the
16 documents that were filed as Exhibit S-3.
17 It is apparent from these materials, which
18 had also been submitted when Mr. Gargan applied
19 for release in June of 2011, that he was an
20 active and eager participant in a four-week
21 program called "Embracing our Human-Nest" and
22 that his efforts and his sincerity in the process
23 were noted by those in charge of delivering that
24 program. The question is whether that, and how
25 he did during the summer, can materially affect
26 the sentence that I impose today considering, as
27 counsel also acknowledges, that not everything
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1 that has happened since October of 2010 is in
2 Mr. Gargan's favour. I do acknowledge that there
3 is more that can be said today about his efforts
4 towards working on himself than there was before
5 the Court in January of 2009, but there have
6 also been in this intervening time events that
7 unfortunately have been consistent with some of
8 his past patterns of conduct.
9 It is also significant, I think, that one
10 way or another the consequences of today's
11 sentencing will be quite different than the
12 consequences of the sentencing that occurred
13 in January of 2009. Saying that I mean this:
14 Despite the very serious nature of this offence
15 Mr. Gargan will not today receive a sentence in
16 the penitentiary range. He will not be sent to
17 a Southern institution, far from his support
18 network and what is familiar to him. Because of
19 all of these intervening events, the procedural
20 events, the appeal and the time things took,
21 he will in essence serve almost half of his
22 sentence in the North as opposed to in a
23 Southern penitentiary, which is a huge
24 difference.
25 One of the issues that came up this morning
26 was how the sentence I impose today will be
27 characterized if I do impose a sentence that
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1 is under two years, but having started from a
2 penitentiary sentence and giving Mr. Gargan
3 credit for remand. In other words, what is
4 the proper characterization of such a sentence?
5 Having reviewed the issue to the extent I was
6 able to in the last few hours, since I heard
7 the submissions, I conclude that the sentence
8 that I will impose today will be characterized
9 and administered as a territorial sentence.
10 The question of whether, in this kind of
11 situation, the sentence is characterized as a
12 federal sentence or a territorial one, when there
13 is this type of impact arising from remand time,
14 was actually examined by the Supreme Court of
15 Canada in the case that defence counsel referred
16 me to, R. v. Mathieu, [2008] S.C.C. 21. That was
17 actually a series of cases that were all heard
18 by the Supreme Court together, and the issue
19 in those cases were variations on this issue.
20 In some of the cases judges who had been of the
21 view that a penitentiary sentence was a fit
22 sentence, but because of lengthy remand time
23 imposed a sentence under two years, added
24 probation orders onto the sentence; the validity
25 of these probation orders was challenged on
26 appeal.
27 In one other case, a judge who found that a
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1 fit sentence was a sentence in the penitentiary
2 range, reduced it to take into account remand
3 time, but nonetheless used a provision in the
4 Code that allows a judge to order that half the
5 sentence be served before the person is eligible
6 for parole. The section in the Code, of course,
7 says that this is possible when the judge imposes
8 a sentence of more than two years. So in these
9 two different ways the very nature of a sentence
10 that becomes a territorial sentence as a result
11 of the Court giving credit for remand time was
12 very much the issue.
13 The result of these cases was that the
14 Supreme Court concluded that the probation
15 orders were valid and that the order deferring
16 eligibility for parole was not valid. The
17 sentence begins on the day it is imposed. So if
18 that sentence is less than two years on the day
19 it is imposed it is for all intents and purposes
20 a territorial sentence.
21 I know that there are other areas of the law
22 where the reasoning is different; in fact, the
23 exact opposite. For example, when dealing with
24 the question of whether a conditional sentence is
25 available or not one of the requirements is that
26 the sentence be under two years; in that context
27 the Supreme Court of Canada has decided that if
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1 what would be a fit sentence is over two years,
2 but because of remand time the sentence actually
3 imposed is less, a conditional sentence is not
4 available. R. v. Fice, [2005] S.C.C. 32. But
5 that case was discussed in the Mathieu decision
6 that I have already referred to and was
7 distinguished, and the general tone is that those
8 situations - the situation of the conditional
9 sentence example - are the exception, not the
10 rule.
11 So all of this to say that the sentence
12 I impose today will be a territorial sentence.
13 I imagine there is a very good chance Mr. Gargan
14 will be able to serve it in Yellowknife where the
15 person who was his surety and some of his other
16 support people live, where the program he once
17 took and was successful at is administered, as
18 well as others. So that situation for him will
19 be very different than having to be sent to a
20 Southern institution.
21 One can only hope that Mr. Gargan will be
22 able to build on some of the positive things he
23 was able to achieve when he was there the last
24 time. I do not want to be heard as undermining
25 or making light of the progress that he was able
26 to make last spring and of the positive steps
27 that he took then, and since then, to better his
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1 life. Those are important steps, and I sincerely
2 hope that this is the direction he will continue
3 to go in. I simply do not think that overall
4 they can make a material difference for the
5 purposes of this sentencing hearing.
6 I think it would be irresponsible for me
7 to pick out the positive things from this time
8 period and ignore the negative ones. The fact is
9 that after his release in October of 2010, after
10 his appeal was allowed, Mr. Gargan's progress has
11 not been without its setbacks. He did breach
12 conditions of his release in January of 2011,
13 and then more recently he appears to have gotten
14 off track again as his trial approached.
15 I am not here today to sentence him for
16 those most recent events, and I am certainly not
17 here to punish him again for the January breach,
18 but I do have to be realistic in examining what
19 is being put forward as a reason to impose a
20 sentence that is less than what was found to
21 be appropriate at the last sentencing hearing.
22 On the whole I conclude that the time that
23 he has spent in custody already is really the
24 only material factor that justifies a departure
25 from the sentence that was imposed last time,
26 and I hope I have been clear in explaining why.
27 The Crown has asked for a number of
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1 ancillary orders, and I am going to make
2 those orders.
3 So there will be an order that Mr. Gargan
4 comply with the Sexual Offender Information
5 Registry Act for a period of 20 years.
6 There will be a firearms prohibition order
7 for a period commencing today and expiring ten
8 years from his release. As there are no firearms
9 in his possession the surrender order will be
10 forthwith.
11 There will be a DNA order as this is a
12 primary designated offence. The provision
13 of the Criminal Code that I was trying to
14 remember during the submissions is Section
15 487.071. It is intended to avoid samples
16 being taken from someone when their profile
17 is already in the database. The old provisions
18 used to put the onus on the Crown to advise the
19 Court if the profile was already in the databank,
20 in which case the Court was not permitted to make
21 the order.
22 That has been changed, and now the provision
23 actually places the onus on the police officer
24 who is tasked with executing the order. The
25 section says that before taking the samples the
26 peace officer shall verify whether the database
27 already contains the person's profile, and if
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1 so, it says that the officer shall not take any
2 bodily substance. Then there are certain things
3 that have to be done. So I, of course, have to
4 assume that these requirements will be complied
5 with. But the DNA order will be made.
6 Under the circumstances there will not be a
7 victim of crime surcharge. I am satisfied that
8 under the circumstances that would create some
9 hardship.
10 Finally, any exhibits that were seized
11 in this matter will be returned to their
12 lawful owner, if that is appropriate, or in
13 the alternative destroyed. But all of that,
14 of course, only at the expiration of the
15 appeal period.
16 Mr. Gargan, stand up, please. Mr. Gargan,
17 for the reasons I have given I have concluded
18 that a fit sentence for this crime is four years.
19 But I am going to give you credit for the time
20 you have already spent in jail for this, before
21 your appeal and since your appeal, credit of a
22 total of 27 months. So I am sentencing you to
23 a further term of imprisonment of 21 months,
24 and I will not make a probation order.
25 When you addressed me earlier you asked me
26 to not take away hope. I think hope has to come
27 from inside, not from the outside. I remember
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1 very well, when I saw you in court in June in
2 Yellowknife, I remember very well Mr. MacDonald
3 and how much he was willing to help you and how
4 much his own story made it possible for him to
5 understand how hard it is, and I am sure that he
6 will be there for you. So I encourage you to not
7 give up hope. You can sit down.
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10 Certified to be a true and
accurate transcript, pursuant
11 to Rules 723 and 724 of the
Supreme Court Rules.
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14 Joel Bowker
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