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Abstract: Transcript of the Oral Reasons for Sentence
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R. v. McLeod, 2012 NWTSC 26 S-1-CR-2011-000003 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - V - BRIAN JAMES MCLEOD _________________________________________________________ Transcript of the Oral Reasons for Sentence by The Honourable Justice V. A. Schuler, sitting in Yellowknife, in the Northwest Territories, on the 28th day of March, A.D., 2012. _________________________________________________________ APPEARANCES: Mr. G. Boyd: Counsel for the Crown Mr. T. Bock: Counsel for the Defence ------------------------------------------ Charges under s. 271 x 2 Criminal Code of Canada S. 486.4 PUBLICATION BAN Official Court Reporters 1 THE COURT: Brian James McLeod has pled 2 guilty to and is now convicted of sexual assault 3 on two young girls, and I now have the duty to 4 sentence him for those crimes. The two young 5 victims are twins and they are cousins of 6 Mr. McLeod. At the time in question, in 2009, 7 they were a few months shy of 10 years old; 8 Mr. McLeod was 20. 9 He was invited to their home to drink 10 alcohol by the person who was looking after 11 the victims. He drank and then began to play 12 with the victim whom I will refer to as A., 13 during which he held her and put his hand down 14 the front of her pajamas and touched her vagina. 15 He stopped and left the room when called away 16 by the caregiver. The victim then went to bed. 17 Mr. McLeod came into the bedroom and tried to 18 wake her, but she pretended to be asleep. He got 19 onto the bed and pulled down her pajama pants, 20 got on top of her, and had anal intercourse with 21 her. During this she pretended to be asleep. 22 When Mr. McLeod left the room she locked herself 23 in the washroom and remained there until the 24 morning. 25 During the same time period, in 2009, but 26 on a different evening, Mr. McLeod was again 27 at the victims' home visiting the individual Official Court Reporters 1 1 looking after them. He was drinking with that 2 individual. The victim M. went to bed that 3 night and awoke early in the morning to find 4 that her pants had been pulled down and her 5 panties removed. It is admitted that Mr. McLeod 6 had done this. The victim found him sleeping 7 beside her. She put her pants and panties 8 back on, turned on the TV, and got back in bed. 9 Mr. McLeod woke up and pulled her pants down, 10 she pulled them back up. He fell off the bed 11 and left the room. The victims' mother was not 12 at home at the time of the incidents referred to 13 and they were in the care of the boarder in the 14 home. 15 In September, 2009, staff at the victims' 16 school noticed that the victims were having 17 problems, and as a result of an interview with 18 them the victims disclosed what Mr. McLeod had 19 done to them. A police investigation was then 20 started. 21 Both victims provided victim impact 22 statements in which they speak of feeling 23 afraid of Mr. McLeod since these incidents 24 and feeling that they cannot trust their 25 relatives and other people. A. speaks of 26 having nightmares about what happened and 27 M. speaks of feeling dirty as a result of what Official Court Reporters 2 1 happened. Sadly, it appears that other children 2 know about what happened and they make cruel 3 comments to the victims about it, which is 4 understandably very upsetting to the victims. 5 I have to say that it is very disturbing, that 6 with the prevalence of sexual abuse of children 7 in our society and the publicity about it, 8 that other children would be so uncaring and 9 heartless, and I suspect perhaps simply unaware 10 of the psychological harm that actions like those 11 of Mr. McLeod invariably cause. 12 The Court has been provided with two 13 pre-sentence reports. Counsel for Mr. McLeod 14 had asked that the pre-sentence report that was 15 originally received be redone to address some 16 things in it that he felt did not necessarily 17 reflect his client's background and reaction 18 to the offences. With the consent of counsel 19 I have reviewed both the original and the second 20 pre-sentence report. 21 Those reports and the additional information 22 provided by Mr. McLeod's counsel indicate that 23 Mr. McLeod is a 23-year-old aboriginal man 24 who grew up and has lived in the small Delta 25 community of Tsiigehtchic. His father left the 26 family when Mr. McLeod was seven years old, and 27 although his father lives in Fort McPherson they Official Court Reporters 3 1 do not have a close relationship. Mr. McLeod 2 and his five siblings were raised by their mother 3 alone with little or no financial help from the 4 father. 5 It appears from the pre-sentence report 6 that Mr. McLeod considered his godfather like 7 a father and spent a great deal of time with him. 8 His godfather passed away in 2006. Mr. McLeod 9 dropped out of school in grade 7, and although 10 he made some attempts to get his grade 10 he was 11 ultimately expelled from school. He has worked 12 as a surveyor's assistant in the summers since 13 about 2007, as well as doing odd jobs in the 14 summers for the Band office in Tsiigehtchic. 15 Apart from that he is supported by his mother. 16 Mr. McLeod's counsel was able to provide 17 more information about the family after talking 18 to Mr. McLeod's mother, who is currently in 19 the hospital in Edmonton awaiting a kidney 20 transplant. That information is that the 21 mother's parents are both residential school 22 survivors, and the mother herself attended a 23 residential school for nine years. Mr. McLeod's 24 father also attended. The mother has said that 25 she has anger issues, which have affected the 26 family, and that there was violence in the home 27 when the children were growing up. She was Official Court Reporters 4 1 assaulted and threatened by the father, who 2 spent time in jail for his actions. Some of 3 this was witnessed by Mr. McLeod. 4 Apparently his mother was sufficiently 5 concerned about the affect on her children, 6 that after leaving the father she took the 7 children for counselling, but that was not 8 very successful in that the children were 9 reluctant to speak about these issues. She 10 reported that she feels that Brian McLeod 11 never understood why his father was not 12 present and that he was angry about that. 13 He was in counselling for anger management, 14 but it is not clear exactly when that was or 15 for how long. 16 Mr. McLeod's mother reported that he was 17 active in sports and has good marks at school, 18 although that seems to be contradicted by the 19 information in the pre-sentence report, unless 20 she is referring to his very early years in 21 school. She also reported a change in Mr. McLeod 22 after he returned from being away at school in 23 Inuvik. He would not listen to her, he got into 24 drugs and alcohol, was full of anger and did not 25 seem to care. He became quiet and reserved after 26 the death of his godfather. 27 The difficulty that Mr. McLeod has had in Official Court Reporters 5 1 dealing with his godfather's death was confirmed 2 by a brother and a long-time friend, who also 3 spoke to counsel for Mr. McLeod. It is also 4 confirmed by the observations of the author 5 of the pre-sentence report, who witnessed 6 Mr. McLeod's emotional reaction when he spoke 7 about the influence and presence of his godfather 8 in his life. 9 As I have said, the second pre-sentence 10 report was ordered at the request of counsel 11 for Mr. McLeod, and that was in part because 12 the first report was quite negative in that 13 it related that Mr. McLeod did not express 14 remorse for the victims and was not forthcoming 15 or cooperative. The second report describes him 16 as "hostile, argumentative and uncooperative." 17 Although it does relate that he said he was 18 sorry and that he was upset. It also relates 19 that Mr. McLeod feels that the sexual assaults 20 would not have happened if he had not blacked 21 out from drinking and smoking dope. 22 It is clear from the pre-sentence report 23 that Mr. McLeod was not willing to talk about 24 his thoughts or feelings or the effect of his 25 actions on the victims. Why that is I cannot 26 say, I am not a psychologist. But I have no 27 doubt that for Mr. McLeod to ensure that he does Official Court Reporters 6 1 not get drunk and commit more crimes, especially 2 more sexual assaults, he will have to come to 3 grips with what he has done and with what his 4 own problems are, that he has to be willing to 5 get help for that, and that usually means that 6 an offender has to be willing to talk to people 7 who can help him. So Mr. McLeod needs to change 8 the attitude that is reported in the pre-sentence 9 report, which is that he feels he does not need 10 programs or treatment. 11 Mr. McLeod has a record, although it 12 consists entirely of offences of failing to 13 comply with court process. He has five such 14 convictions, ranging from 2008 to 2009. Counsel 15 advised that the last two are in relation to the 16 sexual assault charges. The record indicates 17 a failure to abide by promises he has made to 18 the Court. He has, however, no prior record 19 of sexual or violent offences. 20 The mitigating factors in this case are 21 primarily the guilty pleas. They were not, 22 however, entered at an early date. A jury 23 trial had been scheduled in May, 2011, to 24 take place in November, 2011, and it was only 25 two weeks prior to the trial that the Court was 26 advised that Mr. McLeod would re-elect and plead 27 guilty. However, the two weeks notice did mean Official Court Reporters 7 1 that the Court did not have to travel to Inuvik 2 for this matter. Also, the preliminary inquiry 3 had been waived by Mr. McLeod, and since there 4 was no trial that meant the victims did not 5 have to testify at all. This Court is well 6 aware, and has seen in court, that testifying 7 about the experience of a sexual assault is a 8 traumatic experience for victims, and I have 9 no doubt that in this case it would have been 10 even more traumatic considering how young these 11 victims are. So I do give Mr. McLeod substantial 12 credit for the guilty pleas. 13 Mr. McLeod's age is also a somewhat 14 mitigating factor, as he is still relatively 15 young. I also take into account in mitigation 16 that Mr. McLeod did acknowledge to the police 17 that he had committed these crimes. Even if he 18 was not able or willing to discuss what happened 19 with the author of the pre-sentence report, 20 the fact that he acknowledged his guilt to the 21 police and that he has pled guilty does indicate 22 to me that he is taking responsibility for what 23 he did, which in itself is a form of remorse. 24 Finally, interviews conducted by the author of 25 the pre-sentence report with people who know 26 Mr. McLeod suggest that these crimes are out 27 of character for him. Official Court Reporters 8 1 I must also consider the aggravating 2 factors. The main aggravating factor is the 3 young age of the victims. They were and still 4 are children, and they are entitled to enjoy 5 their childhood before having to deal with the 6 troubles and anxieties that come with being a 7 teenager and an adult. Mr. McLeod has taken 8 that away from them and has changed their lives 9 forever. 10 It is also aggravating that in each 11 instance Mr. McLeod did not stop at one act 12 of sexual assault, but continued the assaults. 13 He persisted in assaulting the victims. Once 14 he got away with it with victim A. he tried 15 again with M., although there is no evidence 16 that the assault on her was as invasive as 17 the one on A; indeed no evidence that he did 18 anything other than take off M.'s pants and 19 panties. 20 It is also aggravating that the victims 21 were not just vulnerable because of their age 22 but because they were in their own bed asleep 23 during most of the assaults. This is not a 24 classic breach of trust situation, but I agree 25 with Crown Counsel that there is an element of 26 breach of trust involved. Mr. McLeod was invited 27 into the home of the victims, his young cousins, Official Court Reporters 9 1 and while there he took advantage of his status 2 as a guest to abuse them. They should have 3 been able to trust him as their older cousin, 4 but instead, as I said, he abused them. 5 The boarder, who was supposed to have been 6 looking after the victims, clearly should have 7 made Mr. McLeod leave the home after he had 8 been drinking instead of putting the children 9 entrusted to her care at risk, and I say that 10 simply as an observation. It was not something 11 that was pointed out on Mr. McLeod's behalf 12 or something that he is trying to rely on in 13 any way. But in the end the fault, the real 14 responsibility for what happened, lies at the 15 feet of Mr. McLeod. 16 The Criminal Code of Canada in Section 718 17 makes it clear that the fundamental purpose of 18 sentencing people who commit crimes, the reason 19 that we sentence people, is to ensure that people 20 respect the law, to make it clear what conduct 21 is against the law, to stop people from breaking 22 the law, to keep people away from the rest of 23 the community when that is necessary, to assist 24 in rehabilitating people who commit crimes, 25 to provide reparation to victims of crime 26 or the community, and to promote a sense of 27 responsibility in offenders and an acknowledgment Official Court Reporters 10 1 of the harm done to victims and to the community. 2 The Criminal Code also requires that a 3 sentence be proportionate to the gravity or 4 seriousness of the offence and the degree 5 of responsibility or blameworthiness of the 6 offender. In this case the offences are very 7 serious, especially the anal intercourse with 8 the one victim. Mr. McLeod bears a high degree 9 of responsibility. He went to the victims' home, 10 he got drunk to an extent that he says he blacked 11 out, he did not control himself, and he committed 12 horrible crimes against his little cousins. The 13 alcohol is not to blame, and that is something 14 that Mr. McLeod needs to understand. Alcohol 15 is not something that owes responsibility to 16 anyone. People owe responsibility to other 17 people, including members of their own family. 18 Mr. McLeod is to blame for drinking the alcohol, 19 for drinking too much of it, and for doing things 20 he likely would not have done in his normal state 21 of mind. 22 It has been said many many times by this 23 Court and others that the main objectives in 24 sentencing for sexual assault are denunciation 25 and deterrence, denunciation being society's 26 rejection of this conduct, and deterrence 27 meaning to stop both Mr. McLeod and others Official Court Reporters 11 1 from committing sexual assault. Although 2 Mr. McLeod has not committed this type of 3 offence before and although there is no reason 4 to think that he will commit this type of offence 5 in the future, sexual assault, whether it be 6 on children, adults or teenagers, is a huge and 7 seemingly unsolvable problem in the Northwest 8 Territories. I say that because over and over 9 again we see young men like Mr. McLeod who get 10 drunk and then sexually attack others. For a 11 few minutes of selfish gratification they change 12 their own and the victims' lives forever. So 13 because of the need to send a strong message 14 to serve both denunciation and deterrence the 15 sentence for this type of conduct is usually 16 one of jail for a number of years. 17 In Mr. McLeod's case the Crown takes the 18 position that the range reflected in the case 19 law for offences of this nature is four to six 20 years. Defence did not challenge that, and 21 I agree that that is the usual range. The 22 Crown seeks a sentence at the high end of that 23 range, that is five and a half to six years, 24 less credit for the approximately 12 months 25 Mr. McLeod has been in remand. Defence 26 says that a sentence of four years would 27 be appropriate less the remand time. Official Court Reporters 12 1 Clearly the sexual assault on A., in other 2 words the one involving anal intercourse, is the 3 most serious of the assaults, and in isolation 4 would warrant a more serious sentence. As I am 5 sentencing Mr. McLeod for his actions against 6 both victims I must bear in mind totality and 7 ensure that the total sentence is not too long. 8 In considering an appropriate sentence 9 I must also take into account that Mr. McLeod 10 is aboriginal, Gwich'in. Section 718.2(e) of 11 the Criminal Code directs that: 12 13 All available sanctions other 14 than imprisonment that are 15 reasonable in the circumstances 16 should be considered for all 17 offenders, with particular attention 18 to the circumstances of aboriginal 19 offenders. 20 21 In the Gladue case the Supreme Court of 22 Canada said that Section 718.2(e) must have 23 been intended by Parliament to redress in part 24 the documented overrepresentation of aboriginal 25 people in jails in Canada. Section 718.2(e) 26 was said by the Supreme Court of Canada to be 27 a direction to judges to inquire into the causes Official Court Reporters 13 1 of the problem and to endeavour to remedy it 2 to the extent that a remedy is possible through 3 the sentencing process by using a restorative 4 approach. 5 Gladue was decided in 1999. I think that 6 it is fair to say that sentencing judges have 7 not always found it easy to determine appropriate 8 ways of complying with Gladue. Once the sad 9 history and circumstances of aboriginal people 10 are acknowledged, how is a judge to translate 11 that into a different sentence than he or she 12 might otherwise impose? 13 The Supreme Court of Canada has addressed 14 this issue again in a decision released last 15 week in R. v. Ipeelee [2012] S.C.C. 13. The 16 Supreme Court of Canada has told us that: 17 18 In every sentencing case involving 19 an aboriginal offender, including 20 cases involving serious offences, 21 a judge must consider 22 (a) the unique systemic or 23 background factors which 24 may have played a part in 25 bringing the particular 26 aboriginal offender before 27 the court; and Official Court Reporters 14 1 (b) the types of sentencing 2 procedures and sanctions 3 which may be appropriate 4 in the circumstances for 5 the offender because of 6 his or her particular 7 aboriginal heritage or 8 connection. 9 10 That is at paragraph 59 of the case, and at 11 paragraph 60 the Court goes on to clarify that: 12 13 Judges must take judicial notice 14 of such matters as the history 15 of colonialism, displacement and 16 residential schools, and how that 17 history continues to translate 18 into lower educational attainment, 19 lower incomes, higher unemployment, 20 higher rates of substance abuse 21 and suicide, and higher levels 22 of incarceration for aboriginal 23 people. 24 25 In this case I am satisfied that with 26 the two pre-sentence reports and the extra 27 information provided by defence counsel, the Official Court Reporters 15 1 requirements in the Ipeelee case for extensive 2 information about the aboriginal offender before 3 the Court and the background factors that I have 4 referred to have been satisfied. In this case, 5 although I can, according to what the Supreme 6 Court of Canada has said in Ipeelee simply take 7 judicial notice of systemic factors such as the 8 residential school experience, I also have actual 9 information provided by defence counsel about 10 some of those factors. 11 So as I have already noted there is 12 information that the residential school 13 experience lived by Mr. McLeod's grandparents 14 and parents has had a negative impact on his 15 upbringing. There is information that leads 16 me to conclude that the residential school 17 experience and the other factors referred to 18 by the Supreme Court of Canada have translated 19 for Mr. McLeod into a family life marred by 20 alcohol and violence and neglect in the sense 21 of what I would describe as an abandonment by 22 Mr. McLeod's father. I can infer that these 23 factors have played a significant part in 24 Mr. McLeod's own drinking habits and no doubt 25 his outlook on the world. 26 In Ipeelee the Supreme Court of Canada 27 said also that systemic factors provide Official Court Reporters 16 1 the necessary context to enable a judge 2 to determine an appropriate sentence, 3 and it added: 4 5 This is not to say that those 6 factors need not be tied in 7 some way to the particular 8 offender and offence. Unless 9 the unique circumstances of 10 the particular offender bear 11 on his or her culpability for 12 the offence or indicate which 13 sentencing objectives can and 14 should be actualized they will 15 not influence the ultimate 16 sentence. 17 18 Although I do not consider that the 19 family background and the systemic factors 20 make Mr. McLeod less responsible for his 21 actions, they may explain to some degree 22 his apparent lack of insight into those 23 actions and his insistence to the author 24 of the pre-sentence report that alcohol 25 is the real problem. If alcohol abuse is 26 a significant factor in an individual's 27 childhood, and in combination with violence Official Court Reporters 17 1 seems like a normal way to live, then I would 2 expect that drinking until you black out and 3 then just living with whatever the consequences 4 are seems to Mr. McLeod like a normal way to 5 live and to see the world. 6 The more difficult question is whether or 7 how this should impact the sentence I impose. 8 The Supreme Court of Canada says that I must 9 consider sentencing options and sanctions that 10 are appropriate to Mr. McLeod because of his 11 aboriginal heritage. But realistically and 12 perhaps surprisingly, in light of the large 13 aboriginal population in the Northwest 14 Territories, there are very few such options 15 in the Northwest Territories. Essentially 16 there is jail, no jail, or jail and probation. 17 No one suggests that no jail would be 18 appropriate in this very serious case. Probation 19 means abiding by conditions, and Mr. McLeod has 20 shown in the past that he is not very good at 21 that. No particular programs that would be 22 available to him while on probation have been 23 identified, nor as far as I am aware is there 24 any intensive residential alcohol treatment 25 program available in any community in the 26 Northwest Territories, apart from the 28-day 27 program in Hay River. Sadly, from information Official Court Reporters 18 1 provided again and again in sentencing cases, 2 it seems like there is more access to remedial 3 programs in jail than anywhere else. 4 I conclude that there is no option, apart 5 from jail in this case, and the only issue 6 is the length of the jail sentence. I also 7 conclude that despite Mr. McLeod's difficulty 8 in expressing himself to and cooperating with 9 the author of the pre-sentence report he 10 has, by his actions, shown that he is taking 11 responsibility for what he has done. 12 As I have said, Mr. McLeod is young, 23 13 years old. To my eyes he looks even younger. 14 From his reactions to being interviewed as 15 related by the author of the pre-sentence 16 report I conclude that he is somewhat immature. 17 If he is sent to a penitentiary I have no doubt 18 that it will be a very frightening experience 19 and very difficult for him, and it is not an 20 exaggeration to say that he may end up a victim 21 of sexual assault himself. Because of his 22 youth and his lack of any related record 23 rehabilitation has to be a consideration in 24 sentencing Mr. McLeod. It is to be hoped 25 that he will come to understand how wrong 26 his actions were and that he has to ensure 27 that he never does anything like this again. Official Court Reporters 19 1 Another factor I have to consider is 2 Mr. McLeod's remand time. He has been in 3 remand since March 2nd, 2011. Although 4 I was not told why he was taken into custody 5 at that time, and the court record is not 6 altogether clear about that, I infer that 7 it was the result of the failure to appear 8 in February, 2011, that is listed on his 9 criminal record. 10 As this matter pre-dates the Truth in 11 Sentencing Act I have discretion in the amount 12 of credit to be given to the remand time. Crown 13 Counsel argued that because Mr. McLeod failed to 14 appear twice in the course of this matter credit 15 should be restricted to one-for-one. Defence 16 counsel did not suggest any other credit. I note 17 from the criminal record that on April 5th, 2011, 18 Mr. McLeod received a total of 30 days in custody 19 for the two convictions for failing to appear. 20 Therefore, as at the end of April or early May 21 he would have finished serving that sentence, 22 and for the next 10 months his time in remand was 23 solely related to the offences that I must now 24 sentence him for. 25 In R. v. Sabourin, 2009 NWTCA 6, the 26 Northwest Territories Court of Appeal cautioned 27 against reducing the pre-trial custody credit Official Court Reporters 20 1 by reason of conduct which is capable of being 2 prosecuted separately. Care must be taken 3 that duplication of punishment does not occur. 4 I conclude from that that I should not reduce 5 Mr. McLeod's pre-trial custody credit simply 6 because of the failures to appear. The reason 7 I should not do that is that he was prosecuted 8 separately for those failures to appear and he 9 was sentenced for them. So for the 10 months 10 remand I am going to credit him 18 months. 11 Stand please, Mr. McLeod. 12 In my view, Mr. McLeod, particularly in 13 light of your guilty pleas, the appropriate 14 sentences in this case are three and a half 15 years for the assault on A., that is Count 2 16 in the indictment, that is the assault that 17 involved anal intercourse; and one year 18 consecutive, in other words in addition, 19 for the assault on M., and that is Count 1 20 in the indictment. So that is a total of four 21 and a half years. With the credit for remand 22 time applied that leaves three years as the 23 sentence that you will start serving today. 24 You may sit down. 25 There will be a DNA order. There will 26 be an order that Mr. McLeod register under 27 the Sexual Offender Information Registration Official Court Reporters 21 1 Act and that he report pursuant to that Act 2 for a period of 20 years. There will also 3 be a firearm prohibition order in the usual 4 terms for 10 years. The victim surcharge 5 will be waived because of the jail sentence. 6 Now, Mr. McLeod, I am sure that you will 7 be offered help in jail. You will be offered 8 programs, you will be offered counselling. You 9 are looking like you are sneering there. You 10 better take the help that you are offered, you 11 better do something. I am not suggesting it is 12 going to be easy, I am not suggesting it is going 13 to be comfortable for you. It will probably be 14 very uncomfortable because you obviously do not 15 talk easily to other people. But you are going 16 to have to do something, because if your problems 17 and your background have contributed to the 18 situation that you are in, the only person 19 who can deal with those and make sure that 20 they do not overwhelm the rest of your life 21 is you. Other people have been in similar 22 situations, other people have been able to 23 do it. There is no reason why you cannot 24 do it, but you have to try. So I am going 25 to wish you good luck with that because you 26 are too young to look at spending the rest 27 of your life in jail. Official Court Reporters 22 1 I am going to have the clerk endorse the 2 warrant with a recommendation that Mr. McLeod 3 be permitted to serve his time in the Northwest 4 Territories. I take it there would be no 5 objection to that. 6 MR. BOCK: No, Your Honour. 7 THE COURT: That is fine. Is there 8 anything further then that I should deal with? 9 MR. BOYD: Not from the Crown, Your 10 Honour. 11 THE COURT: I want to thank counsel for 12 your work in this case. We will close court. 13 ----------------------------- 14 15 Certified to be a true and accurate transcript, pursuant 16 to Rules 723 and 724 of the Supreme Court Rules. 17 18 _____________________________ 19 Joel Bowker Court Reporter 20 21 22 23 24 25 26 27 Official Court Reporters 23
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