Supreme Court
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Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
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
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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
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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,
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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1 Certified to be a true and
accurate transcript pursuant
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Supreme Court Rules,
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8 Lois Hewitt,
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