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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




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         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




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         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




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         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




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         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




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         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




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         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




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         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




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         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.




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         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




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         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.




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         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




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         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




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         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




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         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.




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         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




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         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




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         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




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         1         submissions then, and we will close court.

         2     (ADJOURNED)

         3         -------------------------------------------

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         6                           Certified to be a true and
                                     accurate transcript pursuant
         7                           to Rules 723 and 724 of the
                                     Supreme Court Rules,
         8

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        12                           ____________________________

        13                           Lois Hewitt,
                                     Court Reporter
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