Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
R. v. Pascal, 2012 NWTSC 40 S-1-CR-2012-000035 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - MICHAEL ALEXANDER PASCAL Transcript of the Reasons for Sentence delivered by The Honourable Justice K. M. Shaner, in Yellowknife, in the Northwest Territories, on the 27th day of April, 2012. APPEARANCES: Ms. J. Patterson: Counsel on behalf of the Crown Mr. M. Hansen: Counsel on behalf of the Accused ------------------------------------- Charges under ss. 268 C.C. and 264.1(1)(a) C.C. 1 THE COURT: I am now in a position to 2 deliver reasons for sentence and to impose 3 sentence upon Mr. Pascal. 4 On April 23rd, 2011, which was this past 5 Monday, Michael Pascal pled guilty to aggravated 6 assault and uttering a threat, contrary to 7 section 268 and 264.1(1)(a) of the Criminal Code 8 respectively. Convictions were entered, and 9 today it is my responsibility to impose a 10 sentence on Mr. Pascal. 11 We heard at the hearing that Mr. Pascal is 12 an aboriginal individual who is 40 years of age. 13 An Agreed Statement of Facts was entered as 14 an exhibit on April 23rd, and Ms. Patterson read 15 it into the record. I am not going to repeat 16 that process, but I am going to summarize those 17 facts as it is important that there be context 18 for this sentence. 19 On August 12th, 2011, Mr. Pascal and two 20 other people were drinking alcohol in a shed 21 outside of his residence in Fort McPherson, 22 Northwest Territories. From the photographs of 23 the shed that were filed on consent as Exhibit 24 S-2, it appears that the shed is a small building 25 approximately the size of a large bedroom, with a 26 wood stove, a small sitting area with a couch, 27 and an eating area that contains a modestly-sized Official Court Reporters 1 1 table. Sometime between 7 and 8 o'clock that 2 night, the victim, Miller Kasook, who was then 17 3 years old, and his friend arrived and started to 4 drink with the men who were in the shed, 5 including Mr. Pascal. Mr. Pascal was heavily 6 intoxicated at the time, and he appeared angry 7 with Mr. Kasook. He went outside briefly and 8 then returned; and when he did, he grabbed a 9 hunting knife from the cupboard and said, "I'm 10 going to sharpen my knife." Shortly after this, 11 he moved towards where Mr. Kasook was sitting and 12 swung the knife at him. Mr. Kasook was stabbed 13 in the chest. The wound was later determined to 14 be three to four centimetres long and one 15 centimetre wide. The depth was unknown. 16 Mr. Kasook tried to evade Mr. Pascal, but 17 Mr. Pascal locked the shed and yelled "I'm going 18 to kill you, you're going nowhere" at Mr. Kasook. 19 The victim was yelling for help during the 20 attack. Mr. Pascal's sister, who happened to be 21 outside of the shed - I am not sure where but she 22 was not inside the shed - heard this and she 23 broke the door open. At this point Mr. Pascal 24 stopped his attack. He said, "I'm not going to 25 go to jail" and he left the shed, threw the knife 26 into some bushes and he ran away. Mr. Pascal's 27 sister told everyone to leave. Official Court Reporters 2 1 Mr. Kasook, the victim, received assistance 2 from community members outside of another 3 residence, and Mr. Kasook was later transported 4 by RCMP and received medical treatment in Fort 5 McPherson. He was later flown to Inuvik for 6 treatment at the hospital there, and it was there 7 that the wound was sutured. 8 At approximately 10 to 10 that same night, 9 Mr. Pascal called his boss to say he would not be 10 coming to work because "the boy is dead" and he 11 had to run. Mr. Pascal was crying during that 12 call. 13 Approximately a half hour later the RCMP saw 14 Mr. Pascal at an intersection. They arrested 15 him. He appeared intoxicated. 16 The RCMP made an audio recording during the 17 arrest and transport. They attempted to read Mr. 18 Pascal his rights and the police caution, and Mr. 19 Pascal made a number of utterances (which were 20 read into the record on Monday) about the death 21 of his daughter Charleigh Amber Pascal. Later 22 while in cells, he asked the jail guard if the 23 boy had died, and then said, "He's the one who 24 took my daughter Charleigh to the lake." 25 In a statement he gave to RCMP the next day 26 on August 13th, 2011, Mr. Pascal advised that his 27 daughter had frozen to death on March 22nd, 2008, Official Court Reporters 3 1 at the age of 15, and he believed that Mr. Kasook 2 and another member of the Kasook family were 3 responsible. 4 He also told the RCMP that he recalled 5 drinking the day before with Mr. Nerysoo, but 6 that he did not recall stabbing Mr. Kasook and he 7 did not believe he would do something like that. 8 The Criminal Code provides that the 9 fundamental purpose in sentencing is to 10 contribute to respect for the law, and the 11 maintenance of a just, peaceful and safe society 12 by imposing just sanctions that have one or more 13 of a number of stated objectives. Those 14 objectives are set out in the Criminal Code. 15 They are: denunciation; specific and general 16 deterrence; where necessary, separation from of 17 an offender from society; rehabilitation of 18 offenders; reparation for harm done to victims or 19 to the community; and promotion of a sense of 20 responsibility in offenders, and acknowledgement 21 of the harm done to victims and to the community. 22 Proportionality is another principle in 23 sentencing which is specifically set out at 24 section 718.1. The sentence must be 25 proportionate to the gravity of the offence and 26 the degree of responsibility or what is also 27 called the moral blameworthiness of the offender. Official Court Reporters 4 1 There are two other principles found in 2 section 718.2 that are highly relevant in this 3 case; namely, that like offenders and offences 4 should be treated similarly, and also what is 5 known as the Gladue principle which is stated in 6 the Criminal Code as follows: 7 8 All available sanctions other than 9 imprisonment that are reasonable in 10 the circumstances should be 11 considered for all offenders, with 12 particular attention to the 13 circumstances of aboriginal 14 offenders. 15 16 Both of the charges to which guilty pleas 17 were entered are very serious ones. Aggravated 18 assault carries with it a maximum penalty of 14 19 years of imprisonment, which signifies the 20 seriousness with which Parliament treated it, and 21 uttering threats carries with it a maximum of 22 five years. 23 Aggravated assault falls into the definition 24 of a serious personal injury offence and as such, 25 the only options in sentencing are incarceration, 26 probation, or a combination of those two. 27 On Monday, the Crown indicated that it is Official Court Reporters 5 1 seeking a sentence of three to three and a half 2 years. Ms. Patterson submitted a number of cases 3 on the appropriate range of sentence which 4 suggests that a term of imprisonment of 30 months 5 to five years is what is typically given in cases 6 like this. 7 Mr. Hansen, for the defence, pointed out 8 that the sentences in those cases were imposed 9 after trial, which is not the case here. He also 10 filed a number of authorities where the court 11 imposed sentences in the lower range, including 12 R. v. Lennie where the sentence was two years 13 less a day; R. v. Theriault where the sentence 14 imposed was 22 months; and R. v. Lafferty where a 15 one year sentence was imposed. The facts in R. 16 v. Dillon, which was also tendered by defence, 17 are quite different and combined with the 18 requirements now found in the Criminal Code for 19 sentencing in a case of this nature, the Dillon 20 case is distinguishable and is not of much use in 21 this circumstance. 22 In this case there are some mitigating 23 factors: 24 First, Mr. Pascal has taken responsibility 25 for his actions and he entered guilty pleas. I 26 realize that this did not come before the start 27 of the preliminary inquiry and so the victim did Official Court Reporters 6 1 have to testify there, but I am satisfied with 2 the explanation that was given by Mr. Hansen 3 about the time it took to change the plea to 4 guilty. In summary, it was after additional 5 information was acquired and disclosed by the 6 Crown about the events of that night. Mr. Pascal 7 acted very quickly after that information came to 8 his attention and it did save the victim the 9 grief of having to go through another round of 10 testimony in a trial. 11 As well, through his counsel on Monday and 12 again today, Mr. Pascal offered an apology to the 13 victim, his friends and his family, and I am 14 satisfied that he is truly remorseful for his 15 actions. 16 There are a number of very aggravating 17 circumstances here as well though: 18 The victim was very young. He was 17 years 19 old at the time, compared to the accused who was 20 at the time 39 or 40. 21 There is the nature of the threat that was 22 made to the victim. Mr. Pascal threatened to 23 kill him. 24 Mr. Pascal locked the door to the shed which 25 prevented Mr. Kasook from leaving. 26 The use of the knife in this attack is 27 particularly aggravating because of the risk it Official Court Reporters 7 1 introduced. In submissions on Monday, Mr. Hansen 2 urged that the injury suffered by Mr. Kasook was 3 not life threatening and perhaps not that 4 serious. But looking at the photographs of the 5 wound that were tendered as Exhibit S-3, as well 6 as the description in the agreed facts, I have to 7 disagree. The victim was stabbed, and stab 8 wounds are serious. I do recognize that Mr. 9 Pascal is not to be punished for what might have 10 happened, but nevertheless it bears mentioning 11 that the outcome in this case could have been 12 much worse. 13 Mr. Hansen also indicated that one of the 14 factors underlying the attack was that Mr. Pascal 15 blames the victim for the death of his, Mr. 16 Pascal's, daughter in 2008. What happened to Mr. 17 Pascal's daughter is nothing short of tragic, and 18 I do not think any one of us in this room could 19 begin to imagine how painful this must have been 20 for Mr. Pascal. Nevertheless from the victim's 21 perspective, the attack was entirely unprovoked 22 and certainly it was unexpected. This is highly 23 aggravating. Similarly, the evidence that Mr. 24 Pascal was perhaps motivated to attack Mr. Kasook 25 because he blamed him for his daughter's death is 26 also highly aggravating. 27 Mr. Hansen provided some information about Official Court Reporters 8 1 Mr. Pascal's life. Mr. Pascal is trained in a 2 number of trades and he has a very strong and 3 positive work history. From Mr. Hansen's 4 submissions, it appears that Mr. Pascal himself 5 had a difficult childhood. Both of his parents 6 attended residential school, and Mr. Pascal 7 attended residential school, too. His father 8 drank and was not around. His mother was 9 responsible for the family and although she did 10 not drink, Mr. Hansen indicated that the home was 11 a violent one. 12 After Mr. Pascal lost his daughter, who was 13 15 at the time, he went on a six month drinking 14 binge. After that, he attended treatment on his 15 own and counselling in a 45 day program. 16 Through his lawyer, he represented that he 17 does not feel he has too many problems with 18 alcohol although he admits on the day in question 19 here he drank too much. And again, he said he 20 would not have done this had he been sober. 21 He realizes that he has to deal with the 22 death of his daughter and he has to deal with his 23 grief. He has expressed a desire and willingness 24 to do so. 25 I have also taken Mr. Pascal's criminal 26 record into consideration. It includes five 27 convictions for assault - in 1991, 1993, 1995 and Official Court Reporters 9 1 1997. There is a conviction for assault causing 2 bodily harm from 1997, and a break and enter with 3 assault in 2003, along with a number of 4 convictions resulting from non-compliance with 5 probation orders and undertakings. I note, 6 however, that there have been no convictions of 7 any kind since 2003. 8 The importance of the Gladue principle which 9 I spoke of earlier was recently enforced by the 10 Supreme Court of Canada in R. v. Ipeelee. At 11 paragraph 59, Justice LeBel stated the following: 12 13 When sentencing an Aboriginal 14 offender, a judge must consider: 15 (a) the unique systemic or 16 background factors that may have 17 played a part in bringing the 18 particular Aboriginal offender 19 before the courts; and (b) the types 20 of sentencing procedures and 21 sanctions which may be appropriate 22 in the circumstances for the 23 offender because of his or her 24 particular Aboriginal heritage or 25 connection. Judges may take 26 judicial notice of the broad 27 systemic and background factors Official Court Reporters 10 1 affecting Aboriginal people 2 generally, but additional 3 case-specific information will have 4 to come from counsel and from the 5 pre-sentence report. 6 7 As Justice Charbonneau pointed out in the 8 Lennie case which was filed by Mr. Hansen, there 9 are limits on how these factors in Gladue impact 10 the sentence, and the need to discourage violence 11 in aboriginal communities is just as important as 12 it is anywhere else. 13 Mr. Kasook, a 17 year old boy, had a right 14 to be and feel safe amongst older adults. The 15 circumstances of this case are such that there 16 has to be a strong message sent through 17 sentencing to both Mr. Pascal and, in general, 18 that what happened was wholly unacceptable. 19 Certainly this falls on the high end of moral 20 blameworthiness. 21 That said, I have absolutely no doubt that 22 Mr. Pascal's upbringing and experience of both 23 himself and his parents in the residential school 24 system have contributed to his past involvement 25 with the criminal justice system, his alcohol 26 use, and his stated inability to deal with the 27 loss of his daughter. It, no doubt, contributed Official Court Reporters 11 1 to this very sad and very senseless event. 2 The Crown's position on the need for a 3 sentence that both denounces and deters this 4 conduct is well taken. However, I do still 5 believe that that can be achieved through a 6 lesser period of incarceration than what is 7 sought, combined with a probationary period. 8 Given the nine year gap between these offences 9 and the last offence, Mr. Pascal's voluntary 10 entry into treatment after the death of his 11 daughter in 2008, as well as his strong work 12 history over the past few years, I sincerely 13 believe that he is capable of change and that he 14 is capable of taking responsibility for his life. 15 In fairness, I think he should have that 16 opportunity. 17 Mr. Pascal, can I ask that you please stand. 18 You are sentenced to a period of 20 months 19 of imprisonment, which is net of the one-to-one 20 credit for time spent in remand, which will be 21 followed by a term of probation of two years for 22 the charge of aggravated assault. 23 For the charge of uttering a threat, you are 24 sentenced to a period of six months' imprisonment 25 to run concurrently with the 20 month term for 26 aggravated assault. 27 The terms of the probation order will be Official Court Reporters 12 1 that you will, in addition to the mandatory 2 conditions which your lawyer can explain to you, 3 report to a probation officer within seven days 4 of being released and thereafter as directed by 5 the probation officer; abstain completely from 6 consumption of alcohol or other intoxicating 7 substances; abstain from the consumption of drugs 8 except in accordance with directions of a 9 licenced medical practitioner. You will not have 10 any contact with Mr. Miller Kasook. 11 Mr. Pascal, while you are in prison you will 12 no doubt have opportunities for treatment to help 13 you deal with the issues that have led to you 14 coming to this point. I urge you to take 15 advantage of anything that is offered to you. It 16 is completely up to you to change the direction 17 of your life. 18 Do you understand the sentence that I have 19 imposed? 20 THE ACCUSED: Yes. 21 THE COURT: You can sit down, Mr. Pascal. 22 In addition, there will be an order for a 23 DNA sample to be taken in accordance with section 24 487.051 of the Criminal Code, and there will be a 25 firearms prohibition under section 109. Given 26 your counsel's submissions both on Monday and 27 today and what I heard about your reliance on Official Court Reporters 13 1 hunting and your traditional lifestyle, as well 2 as the fact that your criminal record does not 3 contain any firearms offences that I could see, I 4 will make the order under section 113(1) of the 5 Criminal Code that would authorize the chief 6 firearms officer or Registrar to issue a 7 certificate for you to possess and use firearms 8 for the purposes of subsistence hunting. But 9 again, the decision to issue that licence is not 10 for me; it is within the purview of either the 11 Registrar or the chief firearms officer. 12 There will be no victims of crime surcharge. 13 Finally, Mr. Homberg, with respect to the 14 wish of Mr. Pascal to serve his prison term in 15 Whitehorse, I cannot see that I have any 16 authority to make that kind of an endorsement or 17 to order it, but I do think that it is open to 18 either yourself or Mr. Hansen to contact 19 Corrections officials here in the Northwest 20 Territories and see if those arrangements can be 21 made through the correctional system. Certainly 22 given Mr. Hansen's submissions about the family 23 connections and support system that your client 24 would have in Whitehorse, I think that it would 25 be worthwhile to pursue that. If it is helpful 26 for the Corrections service, then certainly I 27 would recommend ordering a transcript and Official Court Reporters 14 1 providing that to the Corrections officials. 2 MR. HOMBERG: Thank you, Your Honour. I 3 will pass on your comments to Mr. Hansen. 4 THE COURT: Thank you. And finally with 5 respect to the request for the forfeiture order, 6 that order is granted, Ms. Patterson. 7 MS. PATTERSON: Thank you, Your Honour. Would 8 you like me to follow up with a paper order for 9 Your Honour's signature? 10 THE COURT: Yes, please. 11 Is there anything else? 12 MS. PATTERSON: I can't recall whether we had 13 come to an agreement about the amount of time 14 served that Mr. Pascal had spent in relation to 15 this matter. But I would ask, if possible, that 16 if we could come to a decision what that is so 17 that it may be recorded accurately on the record 18 of proceedings. 19 THE COURT: All right. Mr. Homberg, was 20 that resolved? 21 MR. HOMBERG: The note that I had received 22 from Mr. Hansen indicated that this individual 23 had, or that Mr. Hansen had at least asked for 24 four months credit, and Mr. Pascal says plus he 25 did two months house arrest as well. 26 MS. PATTERSON: Yes, Your Honour. I think 27 that with respect to the two month house arrest, Official Court Reporters 15 1 I think the submission, if I recall correctly, 2 from Mr. Hansen was that that would be for Your 3 Honour to consider in terms of the length of 4 sentence to impose. But in terms of actual time 5 served, my recollection of the discussion on the 6 record was that he was remanded in custody on 7 December the 5th, had been -- sorry, December the 8 2nd he was in custody initially. A show cause 9 hearing was held, decision was given on December 10 the 5th. But he was sentenced to 15 days on a 11 breach so that should be removed from that, the 12 amount of time served. So my submission would be 13 that it would be from December 2nd, 2011, until 14 today's date less 15 days. 15 THE COURT: Less 15 days. Okay, so that 16 is approximately four and a half months. 17 MS. PATTERSON: I think very close to it, yes, 18 Your Honour. 19 THE COURT: Well, if that is the case. I 20 was working from the assumption that it was four 21 months, which is why the sentence of 20 months 22 was imposed. But since the warrant has not been 23 signed yet, I think it is still open to correct 24 that. Just so that that is reflected 25 appropriately, we will revise that 20 month 26 sentence to be a 19 month plus 15 day sentence. 27 MS. PATTERSON: Thank you, Your Honour. Official Court Reporters 16 1 THE COURT: Is there anything else? 2 MR. HOMBERG: No, Your Honour. 3 THE COURT: All right. We will close 4 court. Thank you very much. 5 .............................. 6 7 Certified to be a true and accurate transcript pursuant 8 to Rule 723 and 724 of the Supreme Court Rules of Court. 9 10 ______________________________ 11 Annette Wright, RPR, CSR(A) Court Reporter 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 17
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.