Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
R. v. Mannilaq, 2012 NWTSC 48
S-1-CR2011000155
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- vs. -
FRANK MANNILAQ
_________________________________________________________
Transcript of the Reasons for Sentence by The Honourable
Justice L. A. Charbonneau, at Yellowknife in the Northwest
Territories, on May 31st A.D., 2012.
_________________________________________________________
APPEARANCES:
Mr. B. MacPherson: Counsel for the Crown
Mr. S. Petitpas: Counsel for the Accused
----------------------------------------
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: Counsel, I am ready to give
2 my decision on Mr. Mannilaq'a matter. Before
3 I start, I just want to reiterate that
4 yesterday I issued a publication ban so that
5 no information that could disclose the
6 identity of the complainant in this matter
7 should be published or broadcast.
8 Yesterday, Frank Mannilaq pleaded guilty
9 to a charge of sexual assault, and today it is
10 my responsibility to decide what a fit
11 sentence is for the serious crime that he has
12 committed.
13 It is often said that sentencing is one of
14 the hardest tasks that a Judge has, and that
15 is for many reasons. One of them is that in
16 those cases, such as this one, where a jail
17 term has to be imposed, there really is
18 nothing joyful about that. There is nothing
19 joyful about sentencing someone to a long jail
20 term but sometimes that is what the law and
21 the objectives of sentencing require.
22 Even though the task and process of
23 imposing sentence is never easy, it can
24 certainly be made less difficult, in some ways
25 at least, where counsel provide thorough
26 submissions in support of the position that
27 they advance, whether they do so by presenting
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1 a joint submission or simply by justifying
2 whatever position they are advancing.
3 In this case, I not only have the benefit
4 of a joint submission presented by counsel but
5 I also have the benefit of very thorough and
6 very helpful submissions from both of them
7 explaining the reasons why they each say that
8 this joint submission is a fit sentence for
9 this offence. So at the outset, I want to
10 thank both counsel for those submissions and
11 commend them on the quality of the submissions
12 and the materials that they presented to me
13 yesterday because they really were very
14 helpful.
15 In any sentencing, the Court has to take
16 into account a number of factors - the
17 sentencing principles that are set out in the
18 Criminal Code, the circumstances of the
19 offence that was committed, and the
20 circumstances of the person that committed it.
21 All that must be considered.
22 Starting with the circumstances of the
23 offence, I am not going to read again all the
24 paragraphs of the agreed statement of facts
25 that was read into the record yesterday, but I
26 do want to summarize the facts to put the
27 matter in context.
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1 The victim of this crime and Mr. Mannilaq
2 knew each other somewhat but not very well.
3 On the evening in question, they met at the
4 drop-in centre of the John Howard Society in
5 Yellowknife. The victim had some vodka with
6 her and she offered him some. At one point
7 they left the drop-in centre and they went to
8 the Northern Lites motel, essentially looking
9 for a party. They walked to an exterior
10 corridor that runs along the back side of the
11 building on the second floor. Mr. Mannilaq
12 made sexual advances to her and she told him
13 that she was not interested. His response was
14 to throw her on the floor and get on top of
15 her. She continued to protest but to no
16 avail. He pulled her pants and underwear down
17 and pried her legs open. The admitted facts
18 are that she became so overtaken with fear
19 that she blacked out and has no memory of what
20 he did after that.
21 Police officers, who happened to be in the
22 area, overheard part of what was going on,
23 mainly her protests. They attended the area
24 and intervened.
25 What they saw when they arrived was the
26 victim on her back struggling with her pants
27 and underwear down, Mr. Mannilaq holding her
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1 legs apart, and his face close to her genital
2 area. They pulled him off of her and arrested
3 him. They noted he was very intoxicated.
4 They noted the victim was also intoxicated and
5 very upset.
6 She was taken to the hospital and samples
7 were collected for DNA testing. No evidence
8 gathered as part of that testing suggests that
9 sexual intercourse took place.
10 The victim was not seriously injured
11 physically. She experienced some discomfort
12 in her buttocks area from being thrown to the
13 floor. She was, however, quite traumatized by
14 this as is evidenced by her Victim Impact
15 Statement, which has been filed as an exhibit,
16 and which I will return to later.
17 Mr. Mannilaq gave a statement to the
18 police saying he did not have any memory of
19 the incident and this remains his position at
20 this hearing although, through his guilty
21 plea, he acknowledged that this is what he did
22 and through his counsel he acknowledged the
23 seriousness of what he did.
24 Turning now to his circumstances, he is 38
25 years old and spent most of his life in the
26 Nunavut community of Taloyoak. He is
27 currently single but has two daughters, aged
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1 13 and 15, from a previous relationship, and
2 they live with their mother in Taloyoak.
3 Mr. Mannilaq moved to Yellowknife in 2009.
4 For a time he lived at Bailey House which is a
5 transitional home for men in Yellowknife. He
6 was evicted from there as a result of his
7 alcohol consumption. After that, he lived at
8 the Salvation Army which offers beds for
9 homeless people and he has lived there for the
10 last two and a half years.
11 Both of Mr. Mannilaq's parents struggled
12 with alcohol as he was growing up. He
13 witnessed a lot of violence in the home. He
14 himself was subjected to physical and mental
15 abuse from his father. He and several of his
16 siblings started drinking alcohol at a young
17 age. He, according to his counsel, was an
18 alcoholic by the time he turned 16 years old.
19 He has tried to make efforts to deal with
20 his alcohol issues. He has attended AA
21 meetings and twice he took residential
22 treatment programs. The first was a two week
23 program in Dettah in 1999 when the treatment
24 centre on the road to Dettah was still open.
25 He was able to complete that program. He took
26 another program in Hay River in the year 2000
27 but was not able to complete it because he was
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1 caught consuming intoxicating substances while
2 he was there.
3 It is very much obvious from the
4 circumstances of the offence for which I must
5 sentence him today, and from other things I
6 have heard about his living situation in
7 Yellowknife (including how he lost his ability
8 to stay at the Bailey House) that alcohol
9 remains an issue for him and he has not yet
10 found a way to win his battle against that
11 addiction.
12 He has a Grade 8 education which he has
13 supplemented by taking training in various
14 areas. I am told that he took a one year
15 carpentry course in 1998 and also a course as
16 as driller's helper in the year 2000 through
17 Arctic College. A year and a half ago, he was
18 diagnosed with schizophrenia, an illness which
19 he controls by taking medication, and he has
20 been on disability since then. But before
21 that he had been able to work on various jobs.
22 He was a labourer for the hamlet of Taloyoak.
23 He built tables, boxes, and cabinets also, and
24 he also paints on canvass so he does have
25 artistic abilities. He has also undertaken
26 activities out on the land with his father and
27 helped his father build a cabin in the year
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1 2005.
2 Mr. Mannilaq has a lengthy and significant
3 criminal record. I have no doubt that a lot
4 of his convictions are related to the
5 consumption of alcohol. But, there is a
6 disturbing number of convictions for sexual
7 offences on that record, a total of four,
8 between the years 2000 and 2009. And now, of
9 course, there is this additional conviction
10 for this offence that he committed in 2011.
11 He is, of course, not to be sentenced on
12 his criminal record; that is, he is not to be
13 punished over and over for the crimes that he
14 has committed in the past and for which he has
15 already been sentenced. But there is no doubt
16 that a criminal record like his raises immense
17 public safety concerns even though the
18 sentences imposed for his earlier sexual
19 offences suggest that they were less serious
20 than the offence I have to sentence him for
21 today.
22 I also do not think that these
23 convictions, and this most recent offence, can
24 simply be attributed to the consumption of
25 alcohol. A lot of people drink and a lot of
26 people drink too much and do not become
27 violent and do not become sexual predators.
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1 It is the Court's hope that while in jail
2 serving his sentence for this offence, Mr.
3 Mannilaq will have the benefit of counselling
4 and treatment programs to try to get at the
5 root of his behaviour. It does not sound as
6 though he has had much access to that type of
7 treatment or resources until now.
8 In the interests of his rehabilitation and
9 to ensure that the public is protected in the
10 future, it is, in my view, imperative that
11 this be addressed in a meaningful way and
12 every attempt to do so should be undertaken by
13 the correctional authorities. As I have said,
14 the sentences imposed for his other sexual
15 offences, and the sentences that he has
16 received generally for his various offences,
17 show that this recent crime is by far the most
18 serious one that he has committed so there is
19 an escalation in his behaviour which is of
20 concern to the Court. And I am not a doctor,
21 but I presume that if he is taking medication
22 in relation to his schizophrenia, the mix of
23 that medication with alcohol might have very
24 severe and dangerous consequences both to him
25 as far as his health, and also potentially
26 other negative consequences for others.
27 Sadly, it may be that by receiving a
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1 significant jail term today, Mr. Mannilaq will
2 have access to programming and help he may not
3 have been able to access as a free man. But I
4 simply make this point about the need for
5 treatment and counselling because, as I say,
6 the escalation in his behaviour is of concern
7 and I think the underlying issues have to be
8 addressed to the extent possible. And for
9 that reason I direct that a transcript of my
10 reasons for sentence be sent to the
11 correctional authorities. It is not done as a
12 matter of course when sentences in the
13 territorial range are imposed, but this is a
14 case where I think it should be done.
15 The next consideration, on sentencing, are
16 the principles of sentencing. They are set
17 out in the Criminal Code, and I will not refer
18 to them all here, but the fundamental
19 sentencing principle is proportionality. The
20 sentence should be proportionate to the
21 gravity of offence committed and the degree of
22 blameworthiness of the offender. All the
23 other sentencing principles flow from that
24 general one.
25 Looking at the gravity of the offence,
26 although counsel have presented a joint
27 submission, they are not entirely agreed as to
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1 how this offence should be characterized; more
2 specifically, whether it falls within the
3 category of "major sexual assault" as defined
4 in case law from the province of Alberta,
5 which has also been adopted and applied for
6 many years in this jurisdiction.
7 The concept of major sexual assault is a
8 creation of the jurisprudence - a means of
9 identifying certain categories of sexual
10 assault which are serious enough to make
11 deterrence and denunciation the paramount
12 sentencing principles on the basis of the harm
13 that those types of assaults cause and the
14 level of blameworthiness that they entail.
15 The concept of major sexual assault has
16 been the subject of much commentary but it has
17 been reaffirmed in Alberta by the Court of
18 Appeal in Arcand [2010] ABCA 363, and that
19 decision has itself been adopted in our Court
20 of Appeal in R. v. A.J.P.J. 2001 NWTCA 2, so
21 therefore it is binding on me as a Supreme
22 Court Judge. The definition, such as it is,
23 of a major sexual assault, was reiterated at
24 paragraph 171 of the Arcand decision:
25 A sexual assault is a major sexual
26 assault where the sexual assault
27 is of a nature or character such
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1 that a reasonable person could
2 foresee that it is likely to cause
3 serious psychological or emotional
4 harm, whether or not physical
5 injury occurs. The harm might
6 come from the force threatened or
7 used or from the sexual aspect of
8 the situation or from any
9 combination of the two. A major
10 sexual assault includes but is not
11 limited to non-consensual vaginal
12 intercourse, anal intercourse,
13 fellatio and cunnilingus.
14 Then the Court went on to say that
15 sentencing Judges could determine whether a
16 specific set of facts corresponded to this
17 definition in the event that a sexual assault
18 is not one of those specifically identified
19 situations that they talked about. So it is
20 up to a sentencing Judge in each case to
21 assess whether a particular sexual assault is
22 a major sexual assault.
23 Here, there is no suggestion of sexual
24 intercourse having taken place. There is not
25 even evidence that Mr. Mannilaq's clothes were
26 off when the police officers intervened.
27 There is no evidence establishing that he
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1 forced oral sex on the victim because she has
2 no memory of what happened, and all the police
3 officers saw was that his head was between her
4 legs and close to her genitals. So there is
5 no proof that he actually was able to do what
6 he seemed on his way to doing before the
7 police officers intervened. And I agree with
8 the defence counsel that the facts, as
9 admitted, do not establish that actual contact
10 was made with her genital area.
11 That being said, in my view the behaviour
12 described here falls within the parameters of
13 what constitutes a major sexual assault.
14 Whether or not oral sex is completed or not,
15 or whether an act of attempted intercourse is
16 completed or not, one must look at the
17 surrounding circumstances and the whole
18 context to determine the level of seriousness
19 of the conduct.
20 Here, those circumstances are that he made
21 advances to this woman and she said 'no'. She
22 was thrown to the ground, her clothes were
23 taken down, her legs were pried apart, and she
24 had Mr. Mannilaq on top of her ignoring her
25 protests, holding her legs apart and with his
26 head between them. This is a serious
27 violation of her personal and sexual integrity
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1 and a serious violation of her human dignity.
2 It would be a traumatic violating experience
3 no matter if there was actual contact with the
4 genitals or not. In my respectful view, it
5 does fall within the parameters of a major
6 sexual assault and the sentencing principles
7 that apply to that category of offence apply
8 to this case.
9 That being so, the starting point for
10 sentencing is three years in jail. That is
11 not a minimum sentence and it is not a rigid
12 tariff. Rather, it is where the sentencing
13 Court must start and make the necessary
14 adjustments to reflect any aggravating or
15 mitigating features of the case. The starting
16 point is simply a reflection of the
17 proportionality principle. It reflects the
18 gravity of an offence like this one and the
19 degree of blameworthiness of the offender who
20 commits it. And this is for good reason.
21 Serious sexual assaults have a terrible impact
22 on the victims and on the community as a
23 whole.
24 The Victim Impact Statement that was filed
25 in this case is an example, stated in simple
26 but compelling terms, of the type of harm that
27 sexual assaults cause. On the Victim Impact
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1 Statement form the victim indicated that she
2 did not want to read it in court herself, and
3 I can certainly understand that, especially
4 after hearing Crown counsel's description of
5 how upset she was the last time she had to be
6 in court. But I am going to read it into the
7 record because I think it serves a purpose.
8 The impact of these crimes should be known and
9 it should be known not just in a theoretical
10 and intellectualised level but in the very
11 real concrete way in which people affected by
12 these types of things describe them. This
13 Victim Impact Statement reads as follows:
14 I don't go out as much anymore. I
15 am afraid of the dark now. As
16 soon as it starts getting dark I
17 go home. I have become leery of
18 who I talk to and befriend. Not
19 as outgoing as I used to be. The
20 first month was the worst. I felt
21 dirty, afraid, humiliated. I
22 asked how did it happen, what
23 could I have done differently?
24 After I cried a lot all the time
25 at night too. I had dreams,
26 scarey images at night, I couldn't
27 sleep. Every time I closed my
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1 eyes I wondered. I don't go to
2 the drop-in anymore. I don't feel
3 comfortable there. It is the
4 closest place in town with a phone
5 but I can't go there anymore, I
6 don't feel safe. I had to go to
7 court for the preliminary. First
8 time I saw him since it happened.
9 So scared I felt sick to my
10 stomach, having to be there in
11 front of him, staring at me while
12 I talked about it. Since then
13 I've been waiting for it all to be
14 over, worrying about it. I was
15 dreading the thought of having to
16 go to court again. I used to feel
17 confident walking down the street,
18 with dignity. Since this
19 happened, it has been hard. I am
20 working hard to get my confidence
21 and dignity back. This shouldn't
22 have happened. I don't want to
23 see him after this is over, if
24 possible, I want him to stay away.
25 That is what this type of offence does.
26 That is the effect. This event has robbed
27 this particular victim of a lot of things. It
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1 has taken away her ability to go to a drop-in
2 centre where she felt comfortable and a place
3 she was able to use to socialize. She has
4 lost her ability to access the support that
5 she got from that drop-in centre. That is
6 terribly unfair because she did not do
7 anything wrong. And yet she loses not only
8 her sense of personal safety but access to a
9 place where she could get support. The Court
10 can only hope that with some help and with
11 time she will be able to overcome her trauma
12 and her fear and she will be able to resume
13 some of the things that she was able to do in
14 the past.
15 This type of sexual assault is inherently
16 serious, even when no violence is used other
17 than the force inherent in the act. Here,
18 there was some force used to subdue the
19 victim. She was thrown to the ground.
20 Although she was not seriously injured
21 physically, it is a fact that Mr. Mannilaq did
22 use some force to overcome her, and that is to
23 be considered.
24 The criminal record is also an aggravating
25 factor because it is extensive and it is
26 related. As I have already said, it raises
27 serious concerns about the threat that
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1 Mr. Mannilaq poses to the community.
2 The prevalence of sexual assaults in our
3 community is another factor that I must
4 consider.
5 Sadly, this Court often has the
6 opportunity to comment about the prevalence of
7 sexual assaults in this jurisdiction. In this
8 case, there is more, because Crown counsel has
9 noted that there have been a number of other
10 instances of sexual assaults that have taken
11 place in public areas in the city of
12 Yellowknife. And whatever the reason is for
13 that, it does have a profound impact on
14 people's sense of safety in the community,
15 especially a community like this one where
16 people are accustomed to feeling safe. And it
17 underscores the need for sentences that will
18 have a denunciatory and deterrent effect on
19 others who might be inclined to behave in this
20 appalling way.
21 The Crown has argued that there was an
22 element of breach of trust here. That may be
23 so to some extent in the sense that the victim
24 knew Mr. Mannilaq a little bit, met him in a
25 place where she was comfortable (the drop-in
26 centre), and obviously, she did not expect
27 this kind of conduct from him or she would not
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1 have gone anywhere alone with him. This,
2 however, could probably be said in most
3 situations involving sexual assault.
4 There is no evidence here of a special
5 trust relationship we sometimes see, for
6 instance when the accused is the spouse of a
7 victim (as in the R. v. D.W.G. case which was
8 filed by the Crown), or when the offender is a
9 relative or someone who is acting in a
10 position of trust (a teacher or a parent or an
11 older relative), or when someone is a guest in
12 the victim's home. So I do not see the
13 element of breach of trust as being a
14 significant one in this case.
15 Apart from the inherent seriousness of the
16 offence, the main aggravating factor really is
17 the criminal record, especially because of the
18 related convictions. That record would
19 suggest that a sentence higher than the three
20 year starting point is warranted. But there
21 are mitigating factors also. And the first, a
22 very important one, is the guilty plea.
23 A guilty plea is always a mitigating
24 factor on sentencing and for very good reason.
25 It is a very concrete expression of an
26 offender's remorse. It avoids the time and
27 expense of a trial. And, mostly, it spares
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1 the victim and other witnesses from having to
2 testify. That is especially important in a
3 sexual assault case.
4 It also provides certainty of outcome to
5 the victim and it avoids anyone continuing to
6 believe or choose to believe that maybe the
7 incident did not happen, maybe she consented,
8 or maybe she is lying about what happened.
9 Because sometimes when matters go to trial and
10 people are convicted, there remain some who
11 refuse to accept that the incident actually
12 happened. A guilty plea removes all of that
13 and one can hope that it relieves some burden
14 or takes some burden off the shoulders of the
15 victim. And here, based on what Crown counsel
16 said and based on what is in the Victim Impact
17 Statement, it is clear that for this
18 particular individual this was a significant
19 factor; she was dreading court proceedings and
20 she did not have to go through them for trial,
21 and that is because Mr. Mannilaq was willing
22 to accept responsibility even if his guilty
23 plea came only a few days before trial.
24 On that point, it is true that this was
25 not a guilty plea at the earliest opportunity
26 but it was ahead of the trial date,
27 sufficiently ahead that the complainant did
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1 not have to come to court yesterday. And the
2 timing of the guilty plea, in my opinion, has
3 to be placed in context.
4 Mr. Mannilaq has no recollection of what
5 happened on that night. The complainant
6 herself experienced a blackout in the middle
7 of the incident. Under those circumstances,
8 and again I understood the Crown to fairly
9 concede this, one can understand why the
10 accused and his counsel wanted to have a
11 preliminary hearing to assess the nature and
12 the strength of the Crown's case.
13 Another reason why it might be argued that
14 the guilty plea might have less of a
15 mitigating impact is that Mr. Mannilaq was
16 basically caught in the act by two police
17 officers. That is a factor. It could be said
18 that in some ways, at least, Mr. Mannilaq was
19 almost inescapably caught. But he was still
20 presumed innocent, he still had the right to
21 rely on that presumption of innocence, and he
22 still had the right to have a trial. And he
23 gave up that right so he should, in my view,
24 get enormous credit in all of the
25 circumstances for his guilty plea.
26 I must also consider his circumstances as
27 an aboriginal offender. He is an Inuk from
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1 the community of Taloyoak, as I have already
2 said, and this requires the Court to approach
3 his sentencing differently than what otherwise
4 might be the case, and that is because of
5 Section 718.2(e) of the Criminal Code and how
6 that provision has been interpreted by the
7 Supreme Court.
8 What I heard about Mr. Mannilaq's
9 circumstances as he was growing up, what he
10 faced, the type of abuse that he was subjected
11 to, his early involvement with alcohol and
12 becoming an alcoholic at a very early age, all
13 that unfortunately is something we commonly
14 hear in this jurisdiction, and there is no
15 doubt in my mind that these things played a
16 part in his involvement with the criminal
17 justice system, as it has with many aboriginal
18 people of all ages in this jurisdiction. That
19 said, when a person becomes a threat to the
20 safety of the community and commits serious
21 crimes and, as in this case, seriously violate
22 the physical integrity and personal dignity of
23 another person, the tragic circumstances that
24 played a part in them having that kind of
25 behaviour does not relieve the Court of its
26 responsibility to impose sentences that will
27 protect the public and denounce the behaviour.
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1 The Court is required to examine sentencing
2 options other than imprisonment and to
3 exercise restraint if imprisonment is
4 required. But as fairly and realistically
5 conceded by defence counsel in this case, the
6 circumstances here require the imposition of a
7 significant jail term notwithstanding the
8 consideration that must be given to Mr.
9 Mannilaq's aboriginal descent, his background,
10 and the circumstances that he faced.
11 The other factor that I must take into
12 account is the time that Mr. Mannilaq has
13 spent on remand. He has been in custody for
14 ten and a half months since his arrest on this
15 charge, although after he was taken into
16 custody he pleaded guilty to an unrelated
17 charge and was sentenced to three months in
18 jail. So the total remand time that can be
19 taken into account at this sentencing hearing
20 is seven and a half months.
21 Under the Criminal Code, the Court has
22 discretion to give an offender credit for time
23 spent in pre-trial custody. That discretion
24 is now less broad than it once was. The
25 Criminal Code used to say simply the time
26 spent in pre-trial custody could be taken into
27 account by the sentencing Judge. Now there
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1 are more specific parameters that have been
2 set and that limit how that discretion can be
3 exercised.
4 There are situations where there is no
5 discretion to give credit beyond the ratio of
6 one for one. And even when the Court has the
7 discretion to do more, it cannot give enhanced
8 credit beyond a ratio of one to one and a
9 half. This is the case where I have the
10 discretion to increase the credit to be given
11 to pre-trial custody beyond the one for one
12 ratio.
13 Defence has brought to my attention the
14 case of R. v. Desjarlais which is a decision
15 by the Chief Judge of the Territorial Court
16 which addresses the issue of credit to be
17 given to remand time. In that decision, the
18 Chief Judge agreed with the Crown's suggestion
19 that the amendments to the Criminal Code
20 showed an intention by Parliament that,
21 generally, credit for remand time should be
22 given on a one for one ratio and not on an
23 enhanced basis. However, the Chief Judge
24 ruled that evidence about a person's good
25 behaviour while on remand could justify
26 enhanced credit being given for remand time
27 because if, as a serving prisoner, displaying
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1 similar behaviour could earn remission, it
2 would be unfair not to take that into account
3 when a remand prisoner who behaved in the same
4 way is not able to get remission while in
5 pre-trial custody.
6 The starting point in the analysis has to
7 be the provisions of the Code, more
8 specifically paragraph (3) and paragraph (3.1)
9 of Section 719. So paragraph (3) says,
10 In determining the sentence to be
11 imposed on a person convicted of
12 an offence, the Court may take
13 into account any time spent in
14 custody by the person as a result
15 of the offence but the Court shall
16 limit any credit for that time to
17 a maximum of one day for each day
18 spent in custody.
19 Paragraph (3.1) says,
20 Despite subsection (3), if the
21 circumstances justify it, the
22 maximum is one and a half days for
23 each day spent in custody unless
24 the reason for detaining the
25 person in custody was stated in
26 the record under subsections
27 515(9.1) or the person was
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1 detained in custody under
2 Section 524(4) or (8).
3 The last part refers to those
4 circumstances where the Court does not have
5 discretion. In this case I do. So despite
6 subsection (3), if the circumstances justify
7 it, it is open to me to give credit on an
8 enhanced basis up to a ratio of one to 1.5.
9 I agree with the conclusion that was
10 reached by the Territorial Court in the
11 Desjarlais case that there should not be an
12 assumption that every serving prisoner will
13 earn remission.
14 I also agree that where there is evidence
15 or credible information presented to the Court
16 that a prisoner on remand has displayed
17 behaviour that is such that they would have
18 earned remission if they had been a serving
19 prisoner, that is a relevant consideration in
20 deciding whether credit for remand time should
21 be calculated on an enhanced basis.
22 There are undoubtedly a variety of other
23 circumstances that could justify enhanced
24 credit being given for remand time and it
25 could well be also, conversely, that even when
26 a person has behaved very well while on remand
27 the Court may decide not to grant credit on an
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1 enhanced basis. In my view, the exercise of
2 discretion in this area has to be driven by
3 the specific circumstances of each case and
4 not by applying any kind of automatic or
5 mechanical approach.
6 It is noteworthy that Parliament chose to
7 limit the discretion of sentencing Judges in
8 this area in some ways but not in others. The
9 amendments to the section do set out specific
10 circumstances where enhanced credit cannot be
11 given, and the amendments also set a limit to
12 the rate to which the enhancement can be
13 given. It cannot be more than to a ratio of
14 one to 1.5. But within those limits, the
15 Parliament has set out a fairly broad test
16 (the test "if the circumstances justify") for
17 sentencing Judges to use in deciding how the
18 discretion should be exercised. That signals
19 that despite the fact that in some ways the
20 discretion has been limited, the intent is
21 still for sentencing Judges to apply their
22 discretion based on the individual
23 circumstances of each case.
24 Here, the information provided by Mr.
25 Mannilaq's counsel was not contested by the
26 Crown. Counsel are officers of the Court and
27 unless there are objections from the other
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1 party or concerns about the reliability of the
2 information conveyed (for example if the
3 offender himself is the only source of the
4 information) I do not see any reason not to
5 rely on any information that counsel provide,
6 especially when, as in this case, counsel has
7 spoken directly with the offender's case
8 manager. So I accept without any hesitation
9 what I have been told about the fact that Mr.
10 Mannilaq was essentially a model prisoner
11 while he was on remand and for those reasons,
12 in the circumstances of this case, I am of the
13 view that it is appropriate to give him
14 enhanced credit for his remand time on the
15 basis of a one to 1.5 ratio. So that means
16 for the seven and a half months that he has
17 spent in pre-trial custody, I will give him
18 credit roughly for 11 months and a week.
19 The joint submission that counsel have
20 presented is that a fit sentence for this
21 crime would be in the area of three years and,
22 once remand time is taken into account, that
23 the Court should impose a sentence of two
24 years less one day because there is no
25 compelling reason to impose a penitentiary
26 sentence at this point.
27 In my view counsel are correct. A
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1 sentence in the area of three years
2 imprisonment, in my view, is fit for this
3 crime. The criminal record is aggravating but
4 there are also mitigating factors and, in my
5 opinion, the mitigating and aggravating
6 factors in this case essentially cancel each
7 other out, if I can put it that way.
8 There is never one single fit sentence for
9 a crime. I have no hesitation in agreeing
10 with counsel that little would be accomplished
11 here by imposing a sentence of three years,
12 give 11 months and a week credit for the
13 remand time, and arrive at a sentence of 24
14 months and three weeks, the net effect of
15 which would be risking that Mr. Mannilaq be
16 sent to a southern penitentiary.
17 In Yellowknife, Mr. Mannilaq is already
18 far away from his home community of Taloyoak.
19 Despite the relatively lengthy criminal
20 record, the longest sentence that he has ever
21 received, by my count, is six months in jail
22 and other sentences have been a few months. I
23 do not see any benefit in imposing a
24 penitentiary sentence on him today. I do not
25 think that the objectives of sentencing,
26 including deterrence and denunciation, require
27 that I do that. The principle of restraint
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1 means that jail should be used as a last
2 resort on sentencing. But it also means that
3 when jail is required, no sentence should ever
4 be any longer than what is required to achieve
5 the objectives of sentencing and, in this
6 case, I do not see in that any sentencing
7 objective would be undermined in any way by
8 keeping the further jail term that I impose
9 today within a range that would allow Mr.
10 Mannilaq to serve it in the institution where
11 he has spent his remand time and where, by all
12 accounts, he has done well.
13 This approach also takes into account the
14 principle of rehabilitation which, although
15 not paramount in a case like this, must never
16 ever be overlooked.
17 I have not referred in any detail this
18 afternoon to the legal principles that talk
19 about the fact that sentencing Judges should
20 give very serious consideration to a joint
21 submission and only decline to follow it if it
22 is clearly unreasonable. I do not need to say
23 much about this principle because in this
24 particular case I agree with this joint
25 submission and in fact I can say that I would
26 likely have imposed the same sentence even if
27 it had not been presented as a joint
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1 submission. So to me the fact that counsel
2 have jointly arrived at it shows that they
3 were both realistic and fair in their approach
4 to this case.
5 The only caveat or hesitation that I have
6 about the joint submission is something that I
7 raised yesterday and it has to do with whether
8 it would be beneficial to add a term of
9 probation to this jail sentence. But this is
10 where, having heard from counsel on this, I am
11 extending to their joint submission the
12 deference that the law requires me to and
13 since they are both agreed that it should not
14 be part of the sentence, I will follow the
15 joint submission completely and I will not
16 impose any probation order.
17 The Crown has sought some ancillary orders
18 and I will deal with those first.
19 There will be a DNA order as sexual
20 assault is a primary designated offence.
21 There will also be an order that Mr.
22 Mannilaq comply with the terms of the Sexual
23 Offender Information Registration Act for a
24 period of 20 years.
25 There will be a firearms prohibition
26 pursuant to Section 109 of the Criminal Code
27 which will start today and expire ten years
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1 from his release from imprisonment.
2 Given the length of the jail sentence that
3 I will impose and having regard to Mr.
4 Mannilaq's personal circumstances, I am not
5 going to order that he pay a victim of crime
6 surcharge as I am satisfied that this would
7 result in hardship.
8 Mr. MacPherson, I just thought of
9 something. With respect to the Sexual
10 Offender Information Registry Act, is it when
11 an order has already been made that a
12 subsequent order has to be for life? It
13 doesn't have to do with prior convictions?
14 MR. MacPHERSON: I believe it has to do with
15 prior convictions but perhaps we can look at
16 that.
17 THE COURT: Yes, we should. It just
18 occurred to me that because of the prior
19 sexual assault convictions on the record I
20 wonder if some other -- what is the section,
21 do you know? Do you have the form,
22 Mr. Clerk? The form probably gives the
23 section.
24 490.011. I don't feel so bad now not
25 remembering section numbers that have six
26 digits.
27 Do you have a Code with you, Mr. Petitpas?
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1 MR. PETITPAS: I didn't bring mine, I'm
2 sorry.
3 THE COURT: Mr. MacPherson, I am looking
4 at 490.013, paragraph (2.1).
5 MR. MacPHERSON: Yes.
6 THE COURT: An order made under
7 subsection 490.011 applies for life if the
8 person is convicted of more than one offence.
9 Which would seem to suggest that if there is a
10 prior sexual assault conviction it might
11 trigger a longer...
12 MR. MacPHERSON: Your Honour, that would be
13 Section 490.013?
14 THE COURT: Paragraph (2.1).
15 MR. MacPHERSON: Yes, Your Honour, I believe
16 this matter has come up before, and it would
17 be the Crown's position that the term of the
18 SOIRA order should be for life.
19 THE COURT: It is not like a, not a
20 driving, I am thinking of the firearms
21 prohibition where if it is a subsequent one it
22 is longer but then the Crown has to give
23 notice of intention, I think, to seek the
24 higher one. Are you saying that this has been
25 raised and decided on before or?
26 MR. MacPHERSON: Your Honour, it did not
27 occur to me that we were dealing with this
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1 issue in this particular case but I do recall
2 in a different case that this particular issue
3 came out. And that at the end of the day,
4 because the person had a criminal record with
5 prior convictions of a similar nature, that
6 the term was for life. Now, you raise the
7 issue of a notice. I don't know if that
8 applies here, notice to...
9 THE COURT: There is this whole area of
10 the law where some of these orders are not
11 considered to be part of the punishment.
12 There is a section in the Criminal Code that
13 says that if the Crown wants to rely on prior
14 convictions to seek a higher punishment, there
15 has to be notice. And that's why in the
16 drinking and driving cases, if you are going
17 to engage the minimum penalties you have to
18 serve notice. But I think that things like
19 DNA orders, SOIRA orders, are not considered
20 to be part of the punishment.
21 MR. MacPHERSON: Yes.
22 THE COURT: I think that's the way that
23 I remember it. Mr. Petitpas, I see that you
24 now have a Code?
25 MR. PETITPAS: I do, Your Honour. I don't
26 believe there is a notice requirement. I am
27 reading the synopsis at page 955 of the 2012
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1 Martin's Criminal Code and it does mention,
2 and I quote,
3 The Attorney General or minister
4 of Justice, as the case may be,
5 may serve notice to comply with
6 the registration requirements in
7 accordance with Section 490.02
8 where on the day this Act came
9 into force...the person was still
10 serving sentence for or had not
11 received an absolute discharge
12 under Part XX.1.
13 I don't believe that notice is required.
14 THE COURT: To trigger the higher --
15 MR. PETITPAS: -- to trigger...
16 THE COURT: You don't take the issue
17 that the order should be for life?
18 MR. PETITPAS: I don't take issue with
19 that, I don't believe it is a requirement.
20 MR. MacPHERSON: Your Honour, looking at
21 Section 727 which deals with previous
22 convictions.
23 THE COURT: Yes.
24 MR. MacPHERSON: In the annotation in the
25 Martin's Code, at page 1459, "when notice
26 required", and there are two cases there, one
27 dealing with firearms and another one dealing
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1 with driving prohibition. But those would,
2 would be different. There is a substantive
3 effect on the offender which isn't the case
4 here.
5 THE COURT: No, I think that you are
6 right. Now, given Mr. Petitpas's position, I
7 think that the wording of the section suggests
8 that the SOIRA order should be for life which,
9 in the circumstances of this case, actually
10 makes some sense given the prior convictions.
11 So unless anyone has anything further to say,
12 that will be the order of the Court. You are
13 content that that is the proper
14 interpretation, Mr. Petitpas?
15 MR. PETITPAS: It is, Your Honour.
16 THE COURT: Thank you. So that takes
17 care of the ancillary orders.
18 Now Mr. Mannilaq, if you could stand,
19 please.
20 As far as the jail term that I will impose
21 on you today for this offence, if it wasn't
22 for the time that you spent in pre-trial
23 custody, I would have imposed a sentence of 35
24 months in jail. I am giving you credit for 11
25 months and a day credit for the time that you
26 have spent in pre-trial custody because of
27 what I heard yesterday. So the sentence that
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1 I will impose today is a further jail term of
2 two years less one day, which is a jail
3 sentence that will be served here in the NWT
4 and more likely than not at the North Slave
5 Correctional Centre which is where you have
6 been on remand.
7 THE ACCUSED: That's right.
8 THE COURT: All right, you can sit down.
9 There is just something else that I want
10 to tell you, Mr. Mannilaq.
11 You heard my exchange yesterday with the
12 lawyers and you heard what I said today about
13 the question of whether a probation order
14 should be included in the sentence. And as
15 you have heard, I decided not to do that. I
16 decided to follow the suggestions of the
17 lawyers which was a joint submission which I
18 am required to give the most weight possible
19 to, and I can't say that it is unreasonable
20 for them to not have asked for probation as
21 part of this sentence.
22 But I guess what I want to say to you, my
23 last words to you, is that it struck me, that
24 what I have heard about how you were behaving
25 on remand, that you were a model prisoner,
26 that you follow the structure, that you were
27 respectful of people, that you did the work
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1 that you were supposed to, that you
2 volunteered to do anything that you were being
3 asked to do. You were not drinking alcohol
4 while in the jail. So I am sure that you can
5 make that connection between not drinking
6 alcohol and being able to function and follow
7 rules and be respectful and generally behave
8 in a good way. And so to be honest my concern
9 is that when you are released and you are not
10 on any kind of conditions and you don't have
11 to report to anyone and there is no structure
12 anymore, I am concerned that it might be
13 difficult for you to stick with that good
14 behaviour that you are able to display for the
15 last several months. That's why I was
16 wondering about the probation order. It
17 wasn't with the view of giving you more
18 punishment, it was with the view of helping
19 you. That's why I thought long and hard about
20 it but I decided in the end not to because of
21 what the lawyers said.
22 I heard that you have got the ability to
23 work, you have got some skills, you have got a
24 medical condition but it sounds like it can be
25 controlled with medication. You have told me
26 that you write journals, that you have been
27 doing that for a long time, and I have also
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1 heard that you have artistic abilities. So it
2 sounds like there are a lot of things that you
3 can do that are much more constructive than
4 drinking and hurting other people. So I
5 really hope, and I am not ordering you to do
6 this, I am just telling you, I really hope
7 that when you are released you will go
8 regularly to AA meetings, that you will take
9 the steps to get counselling to help you deal
10 with those underlying issues that have got you
11 in trouble with the past. Because you know
12 this better than me - it will not be easy to
13 stay out of trouble. It will not be easy not
14 to drink. But I encourage you, I urge you,
15 before you are released to talk to your case
16 manager and try to have a plan, get her help
17 to get you a plan for the kinds of services
18 that you might be able to access once you are
19 no longer in custody. Because you will be
20 going from complete structure to no structure.
21 So it may be that your case manager, with the
22 time that you have, can help you take some
23 programs while you are in jail and maybe she
24 can help you form a plan for when you are
25 released. Because I really hope that you will
26 be able to stay out of trouble and I would
27 really like not to see you again in court in
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1 these circumstances.
2 As I say, I am not ordering you to do any
3 of this. It is just what I hope for you, I
4 guess is the best way to put it. It is what I
5 hope for you and what I hope for the public,
6 because the best way to protect the public is
7 for you not to behave like this again in the
8 future.
9 Is there anything that I have overlooked,
10 counsel?
11 MR. PETIPAS: Nothing further, Your
12 Honour.
13 MR. MacPHERSON: Nothing further, Your
14 Honour, thank you.
15 THE COURT: All right, we will close
16 court.
17 Counsel, once again, I thank you for you
18 your submissions on this case. They were very
19 helpful.
20 (ADJOURNED)
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