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Abstract: Transcript of the Reasons for Sentence
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R. v. Yelle, 2012 NWTSC 46 S-1-CR-2011-000175 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - GARY EDWARD YELLE __________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice K. Shaner, sitting in Yellowknife, in the Northwest Territories, on the 4th day of June, A.D. 2012. __________________________________________________________ APPEARANCES: Mr. M. Lecorre: Counsel for the Crown Mr. G. Wool: Counsel for the Accused (Charges under s. 271 and 266 of the Criminal Code of Canada) BAN ON PUBLICATION OF THE COMPLAINANT/WITNESS PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE Official Court Reporters 1 THE COURT: Good afternoon. 2 MR. WOOL: Good afternoon, Your Honour. 3 THE COURT: Mr. Yelle, Counsel. 4 On May 31st, 2012, a jury found Gary Yelle 5 guilty of assault on Ms. W. pursuant to 6 Section 266 of the Criminal Code. Sentencing 7 submissions from both Crown and defence, as well 8 as comments from Mr. Yelle himself, were heard on 9 June 1st, 2012. Today it is my responsibility to 10 impose a fit and proper sentence on Mr. Yelle and 11 to provide the reasons for that sentence. 12 Mr. Yelle was charged with sexual assault 13 and with uttering a threat to cause bodily harm. 14 The only witness was the victim, Ms. W. 15 The jury was instructed that they could accept 16 all, some, or none of her evidence. Instructions 17 were provided on the elements of both sexual 18 assault and the lesser and included offence of 19 assault. It was put to the jury that what set 20 sexual assault apart from assault is the 21 intentional application of force in circumstances 22 of a sexual nature. The jury was also instructed 23 on elements of the offence of uttering a threat 24 to cause bodily harm. Ultimately, the jury found 25 Mr. Yelle guilty of assault but not sexual 26 assault, nor uttering a threat to cause bodily 27 harm. Official Court Reporters 1 1 As noted by my colleague Justice Charbonneau 2 in R. v. Courouble, which is an unreported 3 decision found at 2012 NWTSC 10: 4 To the extent that a jury's 5 verdict leaves any ambiguity about 6 the facts that it found were 7 proven beyond a reasonable doubt, 8 it is the responsibility of the 9 trial judge to make findings of 10 fact that should form the basis of 11 sentence. 12 Ms. W. testified to various actions by 13 Mr. Yelle: that he punched her, that he 14 scratched her, and he choked her. She identified 15 the pictures in Exhibit 2 as injuries that were 16 caused to her by Mr. Yelle, to her limbs and to 17 her torso. She also said that Mr. Yelle punched 18 her in the head. This was in relation to 19 questions about why she was having difficulties 20 remembering the events, and it was not among the 21 injuries that she had described on direct or 22 under cross-examination, nor in any previous 23 statements. In the circumstances, I am not 24 convinced beyond a reasonable doubt that 25 Mr. Yelle punched Ms. W. in the head and, 26 therefore, this part of her testimony does not 27 form part of the facts upon which this sentence Official Court Reporters 2 1 will be based. 2 Ms. W. testified that Mr. Yelle pulled 3 her pants down and that he had oral and vaginal 4 sex with her. She testified this is when she 5 sustained the scratches to her buttocks and lower 6 back pictured in photograph number 4 in Exhibit 7 2. In finding Mr. Yelle was not guilty of sexual 8 assault, it is clear that the jury rejected 9 Ms. W.'s testimony about these things, 10 including, as Crown conceded, her testimony about 11 the photographs of the scratch marks. None of 12 this evidence can or should be taken into account 13 in this sentencing. Similarly, as there was a 14 finding of not guilty on the charge of uttering a 15 threat to cause bodily harm, the jury obviously 16 rejected Ms. W.'s testimony about any 17 threatening words spoken by Mr. Yelle. 18 I have made the following conclusions. 19 Sometime on the evening of September 3rd, 2011, 20 Gary Yelle assaulted Ms. W. The two were 21 known to each other. Ms. W. testified that 22 she met Mr. Yelle many years ago while she was 23 living in Fort Resolution. 24 On that night, she was visiting Yellowknife 25 from her home community of Behchoko. She was 26 staying with her sister. She met Mr. Yelle by 27 chance on the street, which she called the Gold Official Court Reporters 3 1 Range street during her testimony. Mr. Yelle had 2 a bottle of alcohol, possibly wine, possibly 3 vodka, with him. The two of them walked to a red 4 truck that was parked in what appears from 5 photographs tendered in Exhibit 3 to be a fairly 6 secluded area behind a local high school. They 7 got into the cab of the truck and it was 8 following this that Mr. Yelle punched and choked 9 Ms. W. Ms. W. tried to escape but she 10 could not open the door. She did testify that 11 the pictures of the truck in Exhibit 3, which 12 were taken by the RCMP and which show that the 13 truck has a broken window, accurately depicted 14 what the truck looked like at the time of the 15 assault. In my view, however, the fact that the 16 window was broken would not necessarily provide 17 an opportunity for Ms. W. to leave, and, 18 accordingly, I accept her testimony that she was 19 unable to get out of the truck. 20 Ms. W. did not consent to Mr. Yelle's 21 actions. 22 The assault left Ms. W. with bruises to 23 her torso and arms and a scratch on her lower 24 leg. In submissions, Mr. Wool, the defence 25 counsel, pointed out that when Ms. W. 26 testified, she said Mr. Yelle punched her in the 27 stomach and identified the injury therefrom as Official Court Reporters 4 1 being shown in pictures 2 and 3 of Exhibit 2. 2 These pictures are of bruising to the hip area 3 and not to the stomach. In my view, however, 4 nothing turns on this. What is important is that 5 Ms. W. testified that she sustained the 6 injuries which were pictured in Exhibit 2, with 7 the exception of the picture number 4 in Exhibit 8 2 as I noted earlier, as a result of the assault. 9 There are no pictures of injuries to 10 Ms. W.'s neck as a result of being choked. 11 This does not, in and of itself, though, mean 12 that she was not choked or that Mr. Yelle did not 13 have his hands around her neck as she testified. 14 The lack of a picture simply means that there was 15 no photographic evidence tendered that would show 16 bruising or marks. Ms. W.'s testimony was 17 clear and credible that Mr. Yelle choked her and 18 she did not waiver from this position. 19 The Criminal Code sets out the principles of 20 sentencing that provide a framework to guide the 21 Court in imposing an appropriate sentence. The 22 fundamental purpose of sentencing "is to 23 contribute, along with crime prevention 24 initiatives, to respect for the law and 25 maintenance of a just, peaceful, and safe society 26 by imposing just sanctions that have one or more 27 of the following objectives", and those Official Court Reporters 5 1 objectives are: to denounce unlawful conduct; to 2 deter the offender and other persons from 3 committing offences; to separate offenders from 4 society where necessary; to assist in 5 rehabilitating offenders; to provide reparations 6 for harm done to victims or to the community; and 7 to promote a sense of responsibility in 8 offenders, an acknowledgment of the harm done to 9 the victim and to the community. 10 Section 718.1 talks about the 11 proportionality principle in sentencing, which is 12 that a sentence must be proportionate to the 13 gravity of the offence and the degree of 14 responsibility of the offender. Then Section 15 718.2 sets out other principles, including that 16 found in subsection (e) which provides: 17 all available sanctions other than 18 imprisonment that are reasonable 19 in the circumstances should be 20 considered for all offenders, with 21 particular attention to the 22 circumstances of aboriginal 23 offenders. 24 When prosecuted by indictment, assault 25 carries with it a maximum penalty of five years. 26 The range of sentences is very wide and that is 27 not surprising. The severity of the actions that Official Court Reporters 6 1 form the basis of assault vary widely, so we tend 2 to characterize assaults on a continuum with 3 those less severe, such as the often-cited 4 example of a shove, at one end, all the way up to 5 those where there is more violence and the victim 6 sustains more significant injuries. 7 In this case, the Crown submitted that this 8 was a grave assault. Defence counsel argued that 9 the assault was relatively minor. In my view, 10 the circumstances of the assault place it at the 11 higher end of the seriousness continuum and 12 Mr. Yelle bears a very high degree indeed of 13 moral blameworthiness. 14 The assault was unexpected and unprovoked. 15 Ms. W. went willingly with Mr. Yelle, a 16 person she knew. She obviously trusted that he 17 would not harm her since she was willing to go to 18 a secluded location with him. Ms. W. was 19 trapped in cab of a truck with Mr. Yelle for a 20 period of time. She was punched and she was 21 choked. She was left with bruises, the ones on 22 her hip being very large. I believe Ms. W.'s 23 testimony when she said that she was scared while 24 she was in the truck with Mr. Yelle. It would be 25 unreasonable and illogical to find otherwise. 26 The Crown submitted Mr. Yelle's criminal 27 record during sentencing submissions. I point Official Court Reporters 7 1 out that Mr. Yelle's criminal record is not the 2 basis upon which he is to be punished; however, 3 it is a very important consideration in 4 determining the nature of the sentence to be 5 imposed to meet the principles and objectives of 6 sentencing. Thirteen of the adult convictions 7 contained in the record are directly relevant 8 here. There are ten assault convictions, two 9 convictions for assault with a weapon, and one 10 conviction for assaulting a peace officer. They 11 go all the way back to 1990, and it is fair to 12 say that they occur with relative regularity, 13 particularly over the last ten years. The most 14 recent assault conviction is dated April 15th, 15 2011, for which Mr. Yelle received a four-month 16 sentence. This means he would have been released 17 only shortly before he assaulted Ms. W. on 18 September 3rd, 2011. 19 Mr. Yelle's record also contains no less 20 than 43 convictions for offences against the 21 administration of justice, including breaches of 22 recognizance, failures to appear, and breaches of 23 probation. These are, in my view, highly 24 relevant to the type of sentence that should be 25 imposed to ensure that the principles and 26 objectives of sentencing are met. 27 Mr. Wool made submissions with respect to Official Court Reporters 8 1 Mr. Yelle's personal circumstances. Mr. Yelle is 2 44 years old and he is the father of a new baby 3 with his common-law wife. He has a Grade 10 4 education and he has struggled for many years 5 with alcohol addiction. He is a talented artist 6 and he has worked as a hunting and fishing guide. 7 While in pre-trial custody, Mr. Yelle put 8 his time to very good use and took advantage of 9 available programming through the correctional 10 facility. These were the Embracing Our Human 11 Nest Program through the Healing Drum Society, 12 which he completed in February 2012, Community 13 Reintegration Program at North Slave Correctional 14 Centre, which he completed on May 11th, 2012, a 15 number of life skills courses, and a Bible study 16 course. As well, Mr. Yelle regularly attended 17 Alcoholics Anonymous meetings at the North Slave 18 Correctional Centre starting in September 2011. 19 Mr. Yelle is an aboriginal man. As I noted 20 earlier, Section 718.2(e) of the Criminal Code 21 provides that "all available sanction other than 22 imprisonment that are reasonable in the 23 circumstances should be considered for all 24 offenders, with particular attention to the 25 circumstances of aboriginal offenders". This 26 last phrase is what is known as the Gladue 27 principle. It is important to bear in mind that Official Court Reporters 9 1 this does not create a separate sentencing regime 2 for aboriginal offenders. As stated recently by 3 the Supreme Court of Canada in Ipeelee at 4 paragraph 60: 5 ... courts must take judicial 6 notice of such matters as the 7 history of colonialism, 8 displacement, and residential 9 schools and how that history 10 continues to translate into lower 11 educational attainment, lower 12 income, higher unemployment, 13 higher rates of substance abuse 14 and suicide, and of course higher 15 levels of incarceration for 16 Aboriginal peoples. These 17 matters, on their own, do not 18 necessarily justify a different 19 sentence for Aboriginal offenders. 20 Rather, they provide the necessary 21 context for understanding and 22 evaluating the case-specific 23 information presented by counsel. 24 Counsel have a duty to bring that 25 individualized information before 26 the court in every case, unless 27 the offender expressly waives his Official Court Reporters 10 1 right to have it considered. 2 In this case, there is not a great deal of 3 information about Mr. Yelle's personal 4 circumstances before the Court, and so it is 5 difficult to undertake an evaluation in any 6 detail. That said, it still remains incumbent 7 upon me as the sentencing judge to consider all 8 available sanctions besides imprisonment that may 9 be reasonable in the circumstances of this case, 10 and I have done so. 11 Mr. Lecorre, for the Crown, submitted that a 12 term of imprisonment of two years less a day with 13 one-to-one credit for the time, which is 14 approximately nine months, that Mr. Yelle spent 15 in pre-trial custody is appropriate, followed by 16 a one-year term of probation with minimal 17 conditions. Defence counsel says that a term of 18 probation plus the time served with no additional 19 jail time is appropriate. 20 In my view and in all of the circumstances, 21 this is a case where a longer term of 22 imprisonment is required to meet the goals and 23 objectives of sentencing. This was a serious, 24 ugly assault with many aggravating factors, and 25 the sentence imposed must send a strong message 26 to Mr. Yelle and others that this type of conduct 27 is completely and utterly unacceptable in our Official Court Reporters 11 1 society. As I noted at the time he committed the 2 offence, Mr. Yelle had only just been released 3 from a four-month prison term for assault for the 4 thirteenth time. Clearly, the message that this 5 is unacceptable and that he has to take 6 responsibility for his actions is not getting 7 through to him. The sentence that is imposed 8 today has to be meaningful, and I am not 9 convinced that a probationary sentence plus time 10 served would be meaningful to Mr. Yelle. This is 11 not to say that Mr. Yelle is not capable of 12 changing the direction of his life. He is still 13 a relatively young man, being 44 years of age. 14 As noted earlier, he has used his time awaiting 15 trial very productively. 16 In sentencing submissions, Mr. Yelle was 17 provided with an opportunity to speak and he 18 acknowledged that he needs to take treatment for 19 alcohol use and that he can finally see where his 20 problems in life originate. His willingness to 21 work to change is encouraging and admirable, but 22 that in and of itself does not justify what the 23 defence proposes, that being time served followed 24 by a minimally intrusive probation. 25 Mr. Yelle, can you please stand. You are 26 sentenced to a term of imprisonment of one year 27 which is net of the one-to-one credit for time Official Court Reporters 12 1 spent in remand. This will take your term of 2 imprisonment to approximately 21 months in total. 3 This will be followed by a term of probation of 4 one year. The terms of the probation order will 5 be that you will, in addition to the mandatory 6 conditions which will be explained to you, report 7 to a probation officer within seven days of being 8 released and, thereafter, as directed by the 9 probation officer; remain within the Northwest 10 Territories unless you have written permission to 11 go outside of the Northwest Territories from your 12 probation officer; and you will have no contact 13 whatsoever with Ms. W. 14 In addition, there will be an order for a 15 DNA sample to be taken in accordance with Section 16 487.051 of the Criminal Code. I note your 17 counsel's comment that your DNA is already in the 18 system, Mr. Yelle, but I do not have any evidence 19 of that before me. This is a relatively 20 unintrusive procedure and, therefore, I will make 21 the order. 22 I will also make a discretionary prohibition 23 order under Section 110 of the Criminal Code with 24 respect to all of the weapons listed therein for 25 a period of three years from the day Mr. Yelle is 26 released. Should you need to obtain a firearm 27 for the purposes of sustenance or hunting, Official Court Reporters 13 1 Mr. Yelle, you may make application to a 2 competent authority under Section 113 of the 3 Criminal Code for an exception. That decision 4 will be within the exclusive decision of the 5 competent authority, however. There will be no 6 victims of crime surcharge. Mr. Yelle, do you 7 understand? 8 THE ACCUSED: Yes. 9 THE COURT: Mr. Yelle, let me say that the 10 steps you have taken to deal with your problems 11 to date are encouraging. You are a new father 12 and you are a young man and you have many years 13 ahead of you with your new family. Please use 14 your time in prison and on probation to try and 15 change the direction of your life. You may sit 16 down. 17 Counsel, is there anything else? 18 MR. LECORRE: Thank you, Your Honour. The 19 110 order, that's for ten years, Your Honour? 20 THE COURT: It is for three years. 21 MR. LECORRE: Just three years. Okay. 22 Thank you. Thank you, Your Honour. 23 MR. WOOL: Nothing further. 24 THE COURT: Court is closed. 25 ................................. 26 27 Official Court Reporters 14 1 2 3 Certified Pursuant to Rule 723 of the Rules of Court 4 5 6 Jane Romanowich, CSR(A) 7 Court Reporter 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 15
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