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Abstract: Transcript of the Reasons for Sentence
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R. v. Bourque, 2013 NWTSC 37 S-1-CR2013000022 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - STEIN RANDALL BOURQUE _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice V. A. Schuler, at Yellowknife in the Northwest Territories, on June 20th A.D., 2013. _________________________________________________________ APPEARANCES: Mr. D. Praught: Counsel for the Crown Ms. C. Wawzonek: Counsel for the Accused ---------------------------------------- Charge under s. 267(b) Criminal Code of Canada 1 THE COURT: Mr. Bourque has pled guilty 2 to, and is now convicted of, assault causing 3 bodily harm contrary to Section 267(b) of the 4 Criminal Code. Mr. Bourque admits that he bit 5 off the end of the victim's nose. 6 He admits, as further detailed in the 7 agreed statement of facts, that late on the 8 night of Friday, February 24th, 2012, he was 9 at the Raven Pub here in Yellowknife. He was 10 intoxicated. The victim, Frank Anderson, and 11 his girlfriend Alice Maudsley were also at the 12 Raven. Mr. Bourque and Ms. Maudsley went to 13 school together in Fort Smith but had not seen 14 each other for about three years at that time. 15 Mr. Bourque made sexually suggestive 16 remarks to Ms. Maudsley and said that she 17 would be going home with him notwithstanding 18 that she told him that she was there with her 19 boyfriend. The remarks were made several 20 times over the course of an hour, following 21 which Mr. Anderson and Ms. Maudsley decided to 22 leave the pub. 23 As they were standing on the sidewalk, 24 Mr. Bourque came out of the pub and approached 25 them, and again made sexual remarks to 26 Ms. Maudsley. Mr. Anderson got between them 27 and began to defend his girlfriend. He and Official Court Reporters 1 1 Mr. Bourque began shouting at each other and 2 Mr. Bourque pushed Mr. Anderson on his 3 shoulders. Mr. Anderson responded by grabbing 4 Mr. Bourque by his shoulders and they began to 5 wrestle. 6 After about a minute Mr. Anderson ended up 7 on the ground on his back with Mr. Bourque on 8 top holding him down. Mr. Bourque then, to 9 quote the agreed statement of facts, "moved in 10 and bit off the end of Mr. Anderson's nose". 11 While witnesses pulled Mr. Bourque off 12 Mr. Anderson, Mr. Bourque spat the severed 13 piece of nose at Mr. Anderson and it landed on 14 his jacket. Mr. Bourque ran away and jumped 15 in a taxi. Mr. Anderson got up, discovered 16 what had happened to his nose, and fainted. 17 Mr. Bourque was arrested about an hour 18 later at his mother's home. He was 19 intoxicated, agitated, and spoke of harming 20 himself when told the reason for his arrest. 21 Mr. Anderson was taken to the hospital. 22 Examination revealed that the inferior distal 23 portion of his nose had been removed exposing 24 the nasal cartilage. Fortunately a witness 25 had retrieved the severed part of the nose and 26 it was reattached shortly after arrival at the 27 hospital, however Mr. Anderson spent four or Official Court Reporters 2 1 five days there and then it was several weeks 2 before he was weaned off morphine that he had 3 been given for the pain. 4 Victim impact statements were provided by 5 both Mr. Anderson and Ms. Maudsley. 6 Mr. Anderson remembers nothing of the assault 7 but is reminded daily of it by seeing the scar 8 and says also that he is asked about the 9 disfigurement daily. He was unable to work 10 for at least two weeks and says that he lost a 11 promotion because he could not deal with 12 hiring new people. 13 In his second victim impact statement 14 dated June 12, this year, he says that he 15 still has the scar and suffers from anxiety 16 and sometimes pain. 17 Crown counsel advised that Mr. Anderson 18 may yet have reconstructive surgery. 19 Ms. Maudsley's victim impact statement 20 talks about how traumatic the event was for 21 her, that it has left her feeling fearful and 22 unsafe and also that her daily life with 23 Mr. Anderson is affected because of what 24 appears to be his increased sensitivity to 25 smells and tastes. She describes watching 26 what happened as like watching a horror movie. 27 I have no doubt that it was very traumatic Official Court Reporters 3 1 for both her and Mr. Anderson. 2 Mr. Bourque was 22 years old at the time 3 of the offence. He is 23 now. He has 4 somewhere between a Grade 10 and 11 education. 5 He is originally from Fort Smith, where he was 6 raised by his great-aunt and uncle because his 7 mother had addictions and was unable to raise 8 him. Although he has no relationship with his 9 biological father and his relationship with 10 his mother is problematic due to unresolved 11 background issues arising from her abuse of 12 alcohol, his extended family is supportive of 13 him and his great-aunt says that he is taking 14 steps to deal with his issues more than he has 15 in the past. 16 Mr. Bourque is of Métis descent. He has 17 had his own struggles with alcohol. 18 After this offence he obtained work in 19 British Columbia. Because he did not appear 20 in court on this charge, he was arrested there 21 and brought back to the Northwest Territories. 22 After his release in August of 2012, he stayed 23 in Fort Smith where he has been working at 24 Northwestern Airlines where he is reportedly 25 well-regarded as an employee. 26 As related by defence counsel, his family 27 members seem to agree that alcohol is a poison Official Court Reporters 4 1 to Mr. Bourque and he should not drink. And 2 that is something that he needs to listen to 3 and pay attention to. 4 The court record indicates that 5 Mr. Bourque was originally released on a 6 recognizance on February 25, 2012 with several 7 conditions, including that he not consume or 8 possess alcohol. After going to British 9 Columbia, as I have indicated he failed to 10 appear in the Northwest Territories on this 11 charge in March 2012 and was arrested in 12 August 2012 and released a couple weeks later. 13 He was not convicted of failing to appear and 14 there is no indication that he has been 15 charged for that so I will assume that 16 whatever explanation he offered was accepted. 17 For the past several months, since August 18 24, 2012, he has been on a recognizance with 19 several conditions, including a ban on alcohol 20 and a curfew. In January, he breached the 21 curfew condition and was fined and given time 22 served. Otherwise, it appears that he has 23 been able to comply with the recognizance. 24 Mr. Bourque does have a prior criminal 25 record. In 2008, he was convicted of uttering 26 threats and was given a suspended sentence 27 with probation for one year. That is the only Official Court Reporters 5 1 conviction on his record relating to violence. 2 In May of 2009 he was convicted of resisting 3 or obstructing a peace officer, causing a 4 disturbance, and two counts of breach of 5 probation. He received fines. In June of 6 2009 he was convicted of two more counts of 7 breach of probation, again receiving fines. 8 In March of 2011 he was convicted of resisting 9 or obstructing a peace officer for which he 10 was sentenced to 60 days in jail. At the same 11 time he was convicted of possession of 12 marijuana and received a fine. 13 Mr. Bourque takes the position that his 14 prior record reflects his struggles with 15 alcohol rather than a path to criminality. I 16 will accept that it reflects his struggles 17 with alcohol but it also means that 18 Mr. Bourque has been brought before the court 19 before, he is aware that he gets into trouble 20 when he drinks, he is aware of what the 21 consequences can be. His record is not a 22 lengthy one but it is not a negligible one 23 either. And with this conviction for assault 24 causing bodily harm, the record has become 25 increasingly serious over the last five years. 26 In sentencing Mr. Bourque, as in any other 27 case, I have to consider the aggravating and Official Court Reporters 6 1 mitigating factors. 2 The main and significant mitigating factor 3 is the guilty plea. It means that Mr. Bourque 4 is remorseful, that he takes responsibility 5 for what he has done. Because he waived the 6 preliminary inquiry and there was no trial, 7 the witnesses did not have to testify. This 8 not only saves them from having to take time 9 out of their schedules to testify in court but 10 in a case like this (involving a traumatic 11 incident) it means that Mr. Anderson and also 12 Ms. Maudsley did not have to testify about and 13 relive this event. So the guilty plea is a 14 significant mitigating factor even though it 15 comes over a year after the offence was 16 committed and therefore cannot be described as 17 an early guilty plea. And I do accept that 18 Mr. Bourque is truly remorseful for what he 19 has done. 20 Mr. Bourque's youth has been referred to. 21 He is only 23, and I take that into account. 22 Rehabilitation is very much a consideration at 23 that age. However, I would not put 24 Mr. Bourque into the same category as the 25 youthful first offenders that were referred to 26 in some of the cases cited. He is not a 27 teenager. He is not a first offender. I have Official Court Reporters 7 1 no doubt that he received the benefit of being 2 a youthful first offender when he was 3 sentenced in the past. But, he has gone 4 beyond that now and cannot claim any longer to 5 be in that category. 6 I take into account the letters that have 7 been filed that speak well of Mr. Bourque and 8 indicate that the offence that he has 9 committed is considered to be out of character 10 for him by people who know him. But as so 11 often happens, the Mr. Bourque who is a good 12 employee and looks after other people's 13 children and animals now has to suffer the 14 consequences of what the intoxicated 15 Mr. Bourque did. At the same time, the fact 16 that Mr. Bourque has done quite well since the 17 offence and trying hard to make a stable life 18 for himself does bode well for the future. 19 As for aggravating factors, I will start 20 by acknowledging that Mr. Bourque is not here 21 to be sentenced for being rude and obnoxious 22 to Ms. Maudsley. However, his behaviour 23 toward her is part of the background to this 24 offence. He was persistent and aggressive in 25 the sense of repeatedly making suggestive 26 remarks to Ms. Maudsley even after she had 27 left the Raven Pub and to the point where Official Court Reporters 8 1 Mr. Anderson eventually intervened. It was 2 Mr. Bourque who then escalated things into the 3 physical by pushing Mr. Anderson. 4 Although there was a struggle between the 5 two men, it is clear that Mr. Bourque got the 6 the better of Mr. Anderson. He held him down 7 on the ground and it was then that he bit off 8 the end of Mr. Anderson's nose. So in my view 9 it is clear, and I find, that Mr. Bourque was 10 the aggressor and he displayed that aggression 11 by an act that is quite unusual and, indeed, I 12 think fairly described as repugnant and that I 13 am sure Mr. Bourque cannot believe and does 14 not want to believe that he actually did, and 15 that is reflected by what he said to the 16 police officer on arrest. But the fact 17 remains that Mr. Bourque admits that he did do 18 it. 19 It's hard to understand why he did it. On 20 the facts, as I have noted, Mr. Anderson was 21 down on the ground at that point so I can only 22 think that perhaps it was extreme anger or 23 jealousy. But, in any event it does not help 24 to speculate. On the facts that are admitted, 25 there cannot have been any understandable 26 reason, if ever such an act could be 27 understandable such as in self-defence. Official Court Reporters 9 1 The assault itself is a serious one and it 2 had and continues to have serious 3 consequences. Bruises fade and eventually 4 disappear but in this case the victim has a 5 disfigurement on a prominent part of his face 6 so he will always be reminded of the trauma 7 associated with it. Also, the potential 8 dangers of a human bite are well known. 9 Mr. Anderson had to undergo HIV and other 10 tests which fortunately turned out to be 11 negative. 12 In my view the location of the bite is 13 aggravating. Any bite is serious but to 14 actually bite someone right on the face (on 15 the nose) is even more serious. The 16 consequences cannot be hidden or disguised 17 with a hat or hair as Crown counsel pointed 18 out. 19 Because Mr. Bourque is of Métis descent, 20 Section 718 of the Criminal Code is relevant. 21 It requires that I consider all available 22 sanctions other than imprisonment that are 23 reasonable in the circumstances, with 24 particular attention to the circumstances of 25 aboriginal offenders. This means that I must 26 consider any systemic or background factors 27 that Mr. Bourque has been affected by and that Official Court Reporters 10 1 have contributed to him coming into conflict 2 with the law. And I must also consider 3 whether there are alternative sentencing 4 approaches that might be more effective or 5 better suited to him. 6 Mr. Bourque's family life has obviously 7 been negatively affected by alcohol. His 8 counsel has described how he was not raised by 9 his mother because of her addiction and 10 drinking in her home. He himself has also 11 abused alcohol, and he was intoxicated at the 12 time of the offence that he is now being 13 sentenced for. And as I have also noted, his 14 family members have indicated that alcohol is 15 a poison to him so obviously they are 16 concerned about his abuse of alcohol. So I 17 accept that Mr. Bourque, as so many people in 18 the north and perhaps in particular aboriginal 19 people, is affected by the rampant misuse and 20 abuse of alcohol, and I bear that in mind. 21 But I also note that the law does not say that 22 this automatically means a reduction in 23 sentence from what a sentence would otherwise 24 be. And in cases of violence, other 25 principles such as denunciation and deterrence 26 and protection of the public must play a 27 significant role. Official Court Reporters 11 1 Almost every day in this court, we deal 2 with young people, mostly men, aboriginal and 3 non-aboriginal, who drink too much. Their 4 self-control is affected and they take out 5 their anger or whatever emotion they are 6 feeling on other people - victims who suffer 7 physically and very often psychologically. So 8 a sentence for a violent offence has to have, 9 as one of its objectives discouraging the use 10 of violence by others. Mr. Bourque has a 11 record, and although rehabilitation is still 12 important because of his age, the sentence 13 should also be such as to discourage him from 14 committing further crimes, whether violent or 15 not. 16 The fundamental principle of sentencing is 17 that a sentence should be proportionate to the 18 gravity of the offence and the degree of 19 responsibility of the offender. Here the 20 offence is serious for the reasons that I have 21 outlined. I do note that Mr. Bourque was 22 charged and is now convicted of assault 23 causing bodily harm and not aggravated 24 assault, which is the charge in the other 25 biting cases that were cited. So I do bear in 26 mind that he is convicted of the less serious 27 offence and that's what I am sentencing him Official Court Reporters 12 1 for. 2 Mr. Bourque's degree of responsibility is 3 reflected in the fact that he started the 4 whole series of events that led to this 5 assault. 6 Under the Criminal Code, the maximum 7 sentence for assault causing bodily harm is 8 ten years imprisonment. There is no minimum 9 sentence however a conditional sentence is not 10 available. 11 Crown counsel seeks a sentence of 15 to 18 12 months with credit for the two weeks that 13 Mr. Bourque spent in remand after being 14 arrested in British Columbia. Crown counsel 15 also submits that the sentence should be 16 followed by two or three years of probation. 17 Defence counsel submits that a sentence of 18 90 days intermittent followed by three years 19 probation would be appropriate in this case. 20 I have reviewed the cases that were 21 provided by counsel. All cases, of course, 22 are different and sentencing is a very 23 individualized process in our system of 24 justice. 25 In the Lidstone case, a 1997 decision of 26 the British Columbia Court of Appeal, which 27 dealt with biting an ear, the majority in the Official Court Reporters 13 1 Court of Appeal talks about a range of 2 sentence although it doesn't actually say what 3 that range is, except that it puts two years 4 less a day at the high end of the range but 5 appropriate in that particular case. The 6 other cases cited range from two months in the 7 Pearson case, which is a case that I heard in 8 2000, to just under two years when remand time 9 was taken into account in Kirkpatrick, which 10 is a 2006 decision of the British Columbia 11 Provincial Court. 12 All of those cases involved biting an ear 13 and therefore did not involve as prominent and 14 disfiguring an injury as in this case. Some 15 of the accused had more serious records than 16 Mr. Bourque. Some did not plead guilty so 17 they did not have the benefit of that 18 mitigating factor. 19 In Kirkpatrick, there was a history of the 20 accused breaching court orders to stay away 21 from her husband, who was the victim of the 22 bite, although the sentencing Judge stopped 23 short of finding that she had assaulted him in 24 the past. 25 On the facts, I view this case as more 26 serious than the Pearson case, not only 27 because of the location of the bite but also Official Court Reporters 14 1 because in Pearson the struggle was ongoing at 2 the time of the bite. The victim was not down 3 on the ground being held there as the facts 4 indicate in this case. On the other hand, 5 there was no guilty plea in that case. 6 So in coming to a decision about the 7 appropriate sentence in this case, which I 8 will say has been a difficult one, I have 9 tried to balance all these different factors 10 and considerations. In all the circumstances, 11 I think that the sentence that is requested by 12 the Crown is too high but the sentence that is 13 proposed by the defence is too low to reflect 14 the seriousness of the offence. 15 In this case, because there will be a jail 16 term, the victim surcharge will be waived. 17 Because assault causing bodily harm is a 18 primary designated offence, there will be a 19 DNA order in the usual terms. 20 There will also be the mandatory firearm 21 prohibition order in the usual terms. It will 22 begin today and will expire ten years after 23 Mr. Bourque's release from imprisonment. Any 24 firearms and other items prohibited by the 25 order are to be surrendered to the RCMP 26 forthwith. 27 Stand up, please, Mr. Bourque. Official Court Reporters 15 1 I am sure, Mr. Bourque, that it has been a 2 shock to you to learn that you have it in you 3 to do such a terrible thing with such severe 4 consequences while you are under the influence 5 of alcohol. And it seems to me that what you 6 have to ask yourself is if you continue to 7 drink, what else might you do when you are 8 intoxicated? What other terrible things could 9 you do? So that is a concern, because this 10 is a very unusual type of assault. And it 11 means that the Court has to be concerned about 12 protecting the public. And the solution, and 13 you have heard it from your lawyer when she 14 has repeated what your aunts have said, is 15 don't drink. And I know that's not easy for a 16 young man to not drink at all, and I am not 17 saying that it would be easy for you not to do 18 that. But essentially, if you don't want to 19 spend large chunks of your life in jail, 20 that's what you have to do, is just stop 21 drinking. 22 Your lawyer has also said to the Court 23 that your family has made the observation that 24 you have matured. So you need to demonstrate 25 that that is in fact true by continuing the 26 work that you have done in these past months 27 to try to make your life better and not Official Court Reporters 16 1 letting other people lead you into trouble. 2 In other words, you have to take control of 3 your own life. 4 I have considered and I have credited the 5 two weeks of remand time, which I will credit 6 as three weeks. 7 In my view an appropriate sentence, 8 Mr. Bourque, for what you did in this case 9 would be in the range of eight to ten months 10 in jail. With credit for the remand time and 11 your guilty plea, and considering that the 12 victims, and by that I mean Mr. Anderson and 13 Ms. Maudsley, have not had to testify at all, 14 the sentence that I am imposing today is six 15 months in jail. 16 On release from that sentence, you will be 17 on probation for two years. Along with the 18 statutory conditions, you will have no contact 19 directly or indirectly with Frank Anderson and 20 Alice Maudsley. You will report to a 21 probation officer within two days of your 22 release from jail and thereafter as directed 23 by the probation officer. You will take such 24 counselling as your probation officer directs, 25 and it is the recommendation of this Court 26 that the counselling include anger management, 27 grief and alcohol abuse counselling. And for Official Court Reporters 17 1 the two years of your probation, and obviously 2 as well while you are in jail, you are to 3 abstain absolutely from the possession and 4 consumption of alcohol. 5 Now, counsel, I don't know whether it is 6 something that the correctional authorities 7 would consider but I am prepared to make the 8 recommendation that Mr. Bourque serve his time 9 in Fort Smith so that he can be close to his 10 family supports. I just don't know whether 11 this is the type of sentence that would 12 normally be considered there. 13 MS. WAWZONEK: I don't know if it is 14 either, Your Honour, but it certainly can't 15 hurt. He will likely have to go through the 16 application process one way or the other. 17 THE COURT: Because it does appear that 18 you have been helped by your family support 19 and that's where it is, I will direct the 20 clerk to endorse the warrant with the 21 recommendation that you serve your time in 22 Fort Smith. 23 You can have a seat, Mr. Bourque. 24 Is there anything else, counsel? 25 MR. PRAUGHT: No, Your Honour. 26 MS. WAWZONEK: No, Your Honour, thank you. 27 THE COURT: Thank you very much for your Official Court Reporters 18 1 submissions then, and we will close court. 2 (ADJOURNED) 3 ------------------------------------------- 4 5 6 Certified to be a true and accurate transcript pursuant 7 to Rules 723 and 724 of the Supreme Court Rules, 8 9 10 11 12 ____________________________ 13 Lois Hewitt, Court Reporter 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 19
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