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Abstract: Transcript of the Reasons for Sentence
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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 Official Court Reporters 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 Official Court Reporters 1 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. Official Court Reporters 2 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 Official Court Reporters 3 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 Official Court Reporters 4 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 Official Court Reporters 5 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 Official Court Reporters 6 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. Official Court Reporters 7 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 Official Court Reporters 8 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 Official Court Reporters 9 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 Official Court Reporters 10 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 Official Court Reporters 11 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 Official Court Reporters 12 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 Official Court Reporters 13 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 Official Court Reporters 14 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 Official Court Reporters 15 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 Official Court Reporters 16 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 Official Court Reporters 17 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 Official Court Reporters 18 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 Official Court Reporters 19 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 Official Court Reporters 20 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. Official Court Reporters 21 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 Official Court Reporters 22 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 Official Court Reporters 23 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 Official Court Reporters 24 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 Official Court Reporters 25 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 Official Court Reporters 26 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 Official Court Reporters 27 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 Official Court Reporters 28 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 Official Court Reporters 29 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 Official Court Reporters 30 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? Official Court Reporters 31 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 Official Court Reporters 32 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 Official Court Reporters 33 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 Official Court Reporters 34 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 Official Court Reporters 35 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 Official Court Reporters 36 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 Official Court Reporters 37 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 Official Court Reporters 38 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) 21 ------------------------------------ 22 23 24 25 26 27 Official Court Reporters 39 1 Certified to be a true and accurate transcript pursuant 2 to Rules 723 and 724 of the Supreme Court Rules, 3 4 5 6 7 ____________________________ 8 Lois Hewitt, Court Reporter 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 40
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