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Abstract: Transcript of the Reasons for Sentence
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R. v. Payou, 2012 NWTSC 29 S-1-CR2011000130 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - PAUL PAYOU _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice J.E. Richard, at Fort Simpson in the Northwest Territories, on April 5th A.D., 2012. _________________________________________________________ APPEARANCES: Ms. D. Vaillancourt: Counsel for the Crown Mr. T. Boyd: Counsel for the Accused ---------------------------------------- Charge under s. 271 Criminal Code of Canada An order has been made banning publication of the identity of the Complainant/Witness pursuant to Section 486.4 of the Criminal Code of Canada Official Court Reporters 1 THE COURT: The offender before the 2 Court is a 60-year-old aboriginal man from 3 Fort Liard, Northwest Territories. Yesterday 4 he was convicted by a jury of his peers of a 5 serious crime of sexually assaulting an 6 intoxicated unconscious woman. Today it is my 7 responsibility to impose a fit sentence. 8 The circumstances of the offence are as 9 follows: 10 On February 6th, 2011, the victim, a 11 32-year-old aboriginal woman, living in her 12 home community of Fort Liard, was drinking 13 alcohol with friends and family at two 14 different residences in Fort Liard and, by 15 early evening, was becoming intoxicated. She 16 then went to the community health centre with 17 her friend Carla as Carla required medical 18 attention. The offender, who is Carla's 19 father, drove them to the health centre in his 20 vehicle. The offender waited in his vehicle 21 outside the health centre. There was alcohol 22 in his vehicle. 23 During the time while Carla was waiting 24 for or receiving medical attention, the victim 25 had several more drinks of alcohol at or in 26 the offender's vehicle. When the victim 27 decided to leave the health centre to go home, Official Court Reporters 1 1 she asked the offender to drive her home. 2 There was no more alcohol in the offender's 3 vehicle and so the offender offered to take 4 the victim to his home where she would have 5 more to drink and then he would drive her 6 home. 7 At the offender's home, he made her a 8 mixed vodka drink and then he gave her three 9 shooters of straight vodka. This would have 10 been nine or 10 o'clock in the evening. 11 After drinking the shooters, the victim 12 remembers nothing until she woke up the next 13 morning. She was laying on a bed in the 14 offender's livingroom, her pants were lowered, 15 and the offender was sitting beside her. The 16 victim said "what the hell's going on?" to 17 which the offender responded "nothing, you 18 just passed out, that's all". 19 The victim pulled up her pants and went to 20 the bathroom. She noticed blood on her pants, 21 and testified that she was on her monthly 22 period at that time. She also noticed hickeys 23 on her neck and breast. The offender drove 24 the victim to her home. After speaking with 25 family members at her home, she called the 26 police. She was later taken to the health 27 centre where a sexual assault kit was Official Court Reporters 2 1 completed. While the victim remembers nothing 2 of what happened to her during the night, she 3 learned from the police as a result of 4 forensic analysis that the offender had had 5 sex with her that night. 6 The victim knew the offender as she says 7 that he was friends with her own father and 8 also because she had babysat the offender's 9 children in the past. 10 The 60-year-old offender testified at his 11 trial that in February 2011, he and this 12 younger woman, the victim, were "very much in 13 love with each other". And that they had 14 consensual sex that night. By their verdict, 15 it is obvious that the jury did not believe 16 his evidence. By their verdict, the jury 17 found that the victim was not capable of 18 consenting to sexual activity because of her 19 gross intoxication. Having heard the trial 20 evidence, I am satisfied that this offender 21 intentionally supplied excessive amounts of 22 alcohol to an already intoxicated woman so 23 that he could have sex with her. 24 The personal circumstances of this 25 offender are as follows: 26 He is 60 years of age. He grew up in Fort 27 Nelson, British Columbia, in a large family Official Court Reporters 3 1 after his parents had relocated there from 2 northern Alberta. His parents, now deceased, 3 at some point had lost their treaty status 4 with the result that Mr. Payou and his 5 siblings did not regain treaty status and are 6 considered nonstatus aboriginal. 7 At a young age, this offender and his 8 siblings were taken away from the parents into 9 foster care. This offender spent much of his 10 youth, until age 15, in many foster homes away 11 from his family in Fort Nelson, and he lost 12 the aboriginal language that he had learned 13 from his parents, and he did not receive the 14 parental care and guidance usually associated 15 with a traditional family unit. 16 After age 15, he apparently got in with a 17 bad crowd and had a troubled life thereafter, 18 often in conflict with the law and indeed he 19 has an extensive criminal record between 1968 20 and 1987, primarily for property offences and 21 drinking and driving offences. 22 He gave up drinking alcohol in 1987 and he 23 says that he has not had a drink since that 24 time. 25 In 1988, Mr. Payou commenced a 26 relationship with a woman in Fort Liard, 27 Northwest Territories and they had three Official Court Reporters 4 1 children. That relationship lasted until the 2 year 2000. 3 Mr. Payou did not have much formal 4 schooling beyond Grade 8; however, to his 5 credit, he has upgraded himself by taking 6 trades training when he could and he 7 eventually took courses which resulted in him 8 getting his Grade 12 GED diploma. I am told 9 that Mr. Payou has always had steady 10 employment and in recent years has worked for 11 the municipal government in Fort Liard 12 providing water and sewer services to the 13 community. 14 In November of 2009, in Fort Liard, Mr. 15 Payou sexually assaulted a young girl. That 16 case came into this court in April 2011 when 17 he was convicted of sexual assault and 18 sentenced to three years imprisonment. He is 19 presently serving that sentence in Bowden 20 Institute in the province of Alberta. 21 That is a summary of this offender's 22 personal circumstances. 23 I turn now, briefly, to the victim in the 24 present case. 25 The victim in this case was quite 26 emotionally upset and distraught when 27 testifying at this trial, and understandably Official Court Reporters 5 1 so. She filed a brief victim impact statement 2 with the Court and I will read it into the 3 record. 4 Madam Clerk, I am going to ask you to mark 5 this document as Exhibit S-2 in these 6 proceedings. 7 The victim states as follows, and I 8 quote: 9 I feel so stupid for taking shots 10 with him, the accused. I am so 11 embarrassed for drinking with him. 12 Nothing like this has ever 13 happened to me before. I now keep 14 my thoughts to myself. I am too 15 embarrassed about this. I feel 16 everyone knows about this. My 17 family has to put up with my bad 18 moods. I felt safe with him, the 19 accused, because we, friends and 20 family, drank his booze before. 21 He always had booze in his truck 22 and his home. But he never drank 23 with us. Since he did not drink, 24 I felt safe. I never thought he 25 would hurt me. I want this to be 26 over so I can go home to my 27 family. I want no contact with Official Court Reporters 6 1 him. 2 One of the principles of sentencing which 3 guides a sentencing Judge is sometimes 4 referred to as parity. This principle is 5 described in the Criminal Code in these words: 6 "a sentence should be similar to sentences 7 imposed on similar offenders for similar 8 offences committed in similar circumstances". 9 When I have regard to those latter words, 10 "similar offences committed in similar 11 circumstances", I am mindful of the prevalence 12 of this very type of offence in this 13 jurisdiction. And by "this type of offence", 14 I am referring to the sexual assault of a 15 woman who is unconscious or passed out because 16 of alcohol consumption. 17 Regrettably, we have had many many many 18 similar cases come before the courts of this 19 jurisdiction for years, and it continues to be 20 a serious social problem in this jurisdiction 21 today. The Judges of this Court and of the 22 Court of Appeal have commented on this 23 situation over and over. One recent case 24 where this was highlighted was the decision of 25 this Court in R. v. Keith Roy Michel where a 26 young aboriginal offender was sentenced for a 27 similar offence which he committed in the Official Court Reporters 7 1 aboriginal community of Lutsel K'e. 2 The prevalence of this type of offence in 3 the communities of this jurisdiction is simply 4 appalling. Because of that situation, in my 5 view the sentencing objectives of denunciation 6 and deterrence require a fit and appropriate 7 sentence with those particular objectives in 8 mind. 9 The starting point, when considering a fit 10 sentence for an offence of this nature, is 11 three years imprisonment in a federal 12 penitentiary. During the consideration of a 13 fit sentence in each individual case, that 14 starting point can then be adjusted to reflect 15 the presence or absence of any aggravating or 16 mitigating circumstances. 17 In the determination of a fit sentence in 18 this case, I have considered the fundamental 19 purpose and the objectives of sentencing as 20 set forth by Parliament in the Criminal Code. 21 I acknowledge the fundamental sentencing 22 principle of proportionality, that is, that a 23 sentence must be proportionate to the gravity 24 of the offence and the degree of responsibility 25 of the offender. 26 In this case this offender's degree of 27 responsibility is high. Himself a nondrinker, Official Court Reporters 8 1 he deliberately plied an intoxicated woman 2 with more booze so that he could have sexual 3 gratification. His behaviour was egregious. 4 He displayed an appalling lack of regard for 5 the personal and bodily integrity of another 6 human being. 7 I have also considered other sentencing 8 principles set forth in Section 718.2 of the 9 Criminal Code. As Mr. Payou is an aboriginal 10 offender, I have had particular regard to 11 paragraph (e) of Section 718.2. 12 As required by the decisions of the 13 Supreme Court of Canada in Gladue and Ipeelee, 14 as sentencing Judge I take judicial notice of 15 the history of colonialism in this country, 16 the historical displacement of some aboriginal 17 peoples in Canada, the sad legacy of the 18 residential school system in Canada. These 19 are matters that have led to, and continue to 20 lead to, lower educational attainment by 21 aboriginal peoples generally, higher rates of 22 unemployment, higher rates of substance abuse 23 and social problems among aboriginal people 24 generally, and also higher levels of 25 incarceration of aboriginal people in Canada 26 as a whole. I take this context and these 27 historical circumstances into account when I Official Court Reporters 9 1 consider what sanctions are appropriate and 2 reasonable when imposing a fit sentence for 3 this aboriginal offender in this case. 4 In addition, in this case defence counsel 5 has provided to the Court some case-specific 6 or individual information about this 7 aboriginal offender's background, information 8 that I have referred to earlier. It shows 9 that his parents lost their children as a 10 result of the then state policies on 11 apprehension of children from aboriginal 12 families and aboriginal communities and, as a 13 result, his parents were prevented from 14 providing the usual parental care, love and 15 guidance that is associated with a traditional 16 family unit. This led to a dysfunctional 17 lifestyle by a young Paul Payou which 18 continued into his adult years. He did 19 however, as I have said, eventually grow out 20 of the dysfunctional lifestyle and he did 21 improve himself and was, for years, a 22 productive member of society. 23 Those, then, are some of the unique 24 circumstances of this aboriginal offender 25 which I take into account or into 26 consideration when I have regard to the 27 direction of Parliament in paragraph (e) of Official Court Reporters 10 1 Section 718.2. 2 However, at the end of the day, I regret 3 in all of the circumstances of this case that 4 I am unable in this case to impose a sanction 5 short of incarceration. I am unable to 6 conclude that the unique circumstances of 7 aboriginal offenders generally, or the 8 case-specific information about this 9 aboriginal offender, is of such a mitigating 10 nature as to impose a sanction short of 11 incarceration. 12 This was a very serious crime of violence. 13 Mr. Payou's conduct vis-a-vis this young 14 aboriginal woman was despicable. His moral 15 blameworthiness is high. His unique systemic 16 or background circumstances as an aboriginal 17 offender before this Court cannot and does not 18 diminish his moral culpability for this 19 serious crime of violence which is so 20 prevalent in this jurisdiction. 21 After much consideration, I have 22 determined that the principles of sentencing, 23 including proportionality and including the 24 Gladue principles contemplated by paragraph 25 (e) of Section 718.2, lead me to impose a fit 26 sentence for this aboriginal offender, Paul 27 Payou, that is similar to the sentences that Official Court Reporters 11 1 have been imposed upon similar aboriginal 2 offenders in this jurisdiction who have 3 committed a similar offence in similar 4 circumstances. 5 There are aggravating features to this 6 crime. 7 Mr. Payou's criminal record is an 8 aggravating feature although I take note that 9 most of it is dated and unrelated. It is an 10 aggravating factor in the determination of 11 sentence that the offender was, on February 7, 12 2011, on bail awaiting his trial a few months 13 later on a sexual assault charge in which the 14 complainant was a young girl in Fort Liard. 15 I find that there are no mitigating 16 circumstances in this case. I detect no 17 remorse on the offender's part for what he did 18 in committing this offence in February 2011. 19 There is another sentencing principle that 20 I must consider and that is sometimes referred 21 to as the totality principle. The law 22 requires that when the Court imposes a 23 sentence that is consecutive to another 24 sentence, the Court must be careful not to 25 impose a combined sentence that is unduly long 26 or unduly harsh. 27 In my view, a consecutive sentence is Official Court Reporters 12 1 appropriate in this case. Also, in my view, a 2 fit sentence for the present offence is one of 3 four years imprisonment. The principle of 4 totality requires that I take a "hard look" at 5 the combined sentence which would now mean a 6 further six years in penitentiary for this 7 60-year-old aboriginal offender, that is, the 8 two years remaining on the sentence that he is 9 now serving plus the four years consecutive 10 which would be imposed. I find that that 11 combined sentence is harsh, perhaps unduly 12 harsh, and as a result I will reduce somewhat 13 the consecutive sentence that I impose today. 14 I will just state for the record that I am 15 advised by counsel that this offender has no 16 pre-trial custody for which I must consider 17 any credit in the determination of sentence. 18 Please stand now, Mr. Payou. 19 Paul Payou for the crime that you have 20 committed, the sexual assault on Donna 21 Klondike contrary to Section 271 of the 22 Criminal Code, it is the sentence of this 23 Court that you be imprisoned for a term of 24 imprisonment of three years consecutive to any 25 other sentence presently being served. 26 In addition, I grant the mandatory 27 firearms prohibition order under Section 109 Official Court Reporters 13 1 of the Criminal Code for a period of ten years 2 consecutive to the existing firearms 3 prohibition order. 4 Next, I grant the mandatory order under 5 Section 487.051 of the Criminal Code requiring 6 you to provide a DNA sample. 7 Also, an order will issue under Section 8 490.012 requiring that you comply with the 9 provisions of the Sex Offender Information 10 Registration Act for life. 11 In the circumstances of the lengthy term 12 of incarceration to be served by Mr. Payou, 13 there will be no victim of crime surcharge. 14 Take a seat, sir. 15 Counsel, is there anything further on this 16 case? 17 MS. VAILLANCOURT: Nothing from the Crown, Your 18 Honour. 19 MR. BOYD: Nothing from the defence. 20 THE COURT: Fine, we will close court. 21 *EXHIBIT S-2: Victim Impact Statement 22 23 ------------------------------------- 24 25 26 27 Official Court Reporters 14 1 Certified to be a true and accurate transcript pursuant 2 to Rules 723 and 724 of the Supreme Court Rules, 3 4 5 6 7 ____________________________ 8 Lois Hewitt, Court Reporter 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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