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Abstract: Transcript of the Reasons for Sentence

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              R. v. Wanderingspirit, 2013 NWTSC 44    S-1-CR-2011-000150

                IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

                IN THE MATTER OF:







                                 HER MAJESTY THE QUEEN



                                         - v -



                              CHRISTOPHER WANDERINGSPIRIT









              Transcript of the Reasons for Sentence heard before The

              Honourable Justice V. A. Schuler, in Yellowknife, in the

              Northwest Territories, on the 2nd day of July, 2013.







              APPEARANCES:

              Mr. M. Lecorre:          Counsel on behalf of the Crown

              Mr. T. Boyd:             Counsel on behalf of the Accused



                       -------------------------------------

                               Charge under s. 268 C.C.





         1      THE COURT:             Mr. Wanderingspirit pled

         2          guilty today to this charge of aggravated assault

         3          that is before the Court and he has now been

         4          convicted of that offence.

         5               The facts that he admits are that he and Mr.

         6          Camsell went to the home of Wade Kapakatoak.

         7          They went there with Mr. Kapakatoak's sister.

         8          There was a party in progress at the home.  Mr.

         9          Kapakatoak, who was 18 at the time, had been

        10          drinking.  He tried to kick Mr. Wanderingspirit

        11          and Mr. Camsell out of the apartment because they

        12          were both drunk and loud.  Mr. Camsell held Mr.

        13          Kapakatoak by the front, while Mr.

        14          Wanderingspirit put him in a chokehold.  Mr.

        15          Kapakatoak remembers tasting blood when put in

        16          the chokehold.  He was also hit in the face by

        17          the two men and afterwards his jaw felt funny and

        18          he could not eat or drink.  When he went to the

        19          hospital a day or so later, it was discovered

        20          that his lower jaw was detached and broken in two

        21          places.  He needed surgery to wire his jaw shut

        22          and was in the hospital for about four days.

        23               Mr. Camsell was sentenced for his role in

        24          the offence in June of 2012.  The citation for

        25          that decision is 2012 NWTSC 55.  The sentencing

        26          judge indicated that Mr. Camsell's sentence

        27          should be in the range of 18 months in jail and






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         1          gave him credit for 13 months in remand, leaving

         2          five months to be served as at the date of

         3          sentencing.  A period of probation for one year

         4          was also ordered.  Mr. Camsell was in his mid 20s

         5          at the time of the offence and had a criminal

         6          record although mostly not for crimes of

         7          violence.

         8               Turning to Mr. Wanderingspirit, he is now 36

         9          years old.  He is from Fort Providence where

        10          other family members reside.  He is optimistic,

        11          according to his counsel, that he can obtain

        12          employment with the Giant Mine Remediation

        13          Project and if so, he also has family support

        14          here in Yellowknife with a sister.

        15               Mr. Wanderingspirit has a criminal record

        16          going back to 1991 when he was a youth.  As an

        17          adult, he has many convictions for property

        18          offences and failures to comply with court

        19          orders.  He also has two convictions for assault

        20          with a weapon, one in 1999 for which he was

        21          sentenced to 15 months in jail and one in 2005

        22          for which he was sentenced to five months in

        23          jail, with probation for one year.  He also has a

        24          conviction for simple assault in 1999.  Those are

        25          his only convictions for violence.

        26               The aggravating circumstances of this case

        27          are, first, that the victim, who is quite a bit






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         1          younger than Mr. Wanderingspirit, was attacked in

         2          his own home while trying to get Mr.

         3          Wanderingspirit and the other offender to leave.

         4          It is also aggravating that they both attacked

         5          him at once.  The injury to the victim's jaw was

         6          a serious one and required surgery.

         7               The guilty plea is a mitigating factor even

         8          though it comes two years after the offence was

         9          committed and on the eve of the second trial date

        10          set for this matter.  Notwithstanding that it

        11          does come quite late, it did come in time that

        12          the witnesses did not have to appear and testify

        13          at trial and did not have to travel to

        14          Yellowknife, so it has saved them the

        15          inconvenience and the stress of testifying.  It

        16          means that Mr. Wanderingspirit is now taking

        17          responsibility for what he did.  A guilty plea,

        18          even a late one, is always worth some credit.  I

        19          take those factors and also Mr. Wanderingspirit's

        20          past record into account.

        21               I also take into account, as I am obliged to

        22          by law, that systemic factors have caused many

        23          aboriginal people like Mr. Wanderingspirit to

        24          come into conflict with the law, particularly

        25          when excessive alcohol consumption is involved.

        26          Mr. Wanderingspirit's father is, I am told, a

        27          residential school survivor.  Mr. Wanderingspirit






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         1          has, in speaking to the Court, just talked about

         2          the alcohol abuse in his background and all of

         3          this no doubt has had an impact on his life.

         4          These circumstances are relevant to whether I

         5          should consider a sanction other than

         6          imprisonment in this case.

         7               Essentially, both Crown and defence are

         8          saying in this case that imprisonment is the

         9          appropriate sanction but that Mr. Wanderingspirit

        10          has already served an adequate and appropriate

        11          jail sentence through his remand time.  I will

        12          talk about the remand time in a moment, but I

        13          will first note that aboriginal people also have

        14          the right to feel safe in their homes and safe

        15          from violence, and I am assuming from Mr.

        16          Kapakatoak's name that he, too, is aboriginal.

        17          Such a serious act of violence being perpetrated

        18          by someone who already has a criminal record

        19          involving violence normally does result in a jail

        20          term whether the offender is aboriginal or not.

        21               In the Camsell decision, Justice Charbonneau

        22          referred to some sentences in some similar

        23          Northwest Territories cases.  I will not repeat

        24          them here.

        25               Crown and defence counsel have made a joint

        26          submission for a sentence of time served which

        27          they have calculated as 19 months, plus one year






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         1          probation.  Where, as here, there is a joint

         2          submission, the Court is obliged to give it

         3          consideration.  Here, as I understand it, counsel

         4          have based the jail time portion of the proposed

         5          sentence on a calculation as to the remand time

         6          that Mr. Wanderingspirit has accumulated.  On a

         7          one-to-one calculation, that time amounts to just

         8          over 500 days; and on a calculation that would

         9          give a 1.5 credit to part of the remand time, it

        10          amounts to approximately 579 days.

        11               Defence counsel made submissions about the

        12          circumstances under which some of the remand time

        13          was served, for example Mr. Wanderingspirit

        14          having to sleep on the floor of his cell.  I note

        15          in the material that was filed that there is no

        16          confirmation of that from the North Slave

        17          Correctional Centre, but on the other hand Crown

        18          counsel does not take issue with the submission.

        19               In any event, as between crediting the later

        20          remand time at 1 or 1.5, the difference is

        21          between two and three months so it is not

        22          substantial.  Either way, whether the credit to

        23          the later remand time is simply a credit of 1 or

        24          1.5, the resulting sentence would be in the area

        25          of 17 to 19 months if either of those

        26          calculations is used and it is in the range, in

        27          my view, of what would be appropriate considering






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         1          the aggravating and mitigating factors in this

         2          case and the principles of sentencing and parity

         3          with the sentence imposed on Mr. Camsell.  So I

         4          will accept the joint submission and the record

         5          will note the remand time credited at 19 months.

         6               Stand up please, Mr. Wanderingspirit.

         7               Mr. Wanderingspirit, I am sentencing you

         8          then to time served, which will be credited as 19

         9          months.  You will be on probation for a period of

        10          one year, starting today.  The conditions of your

        11          probation are that you are to keep the peace and

        12          be of good behaviour and obey the other statutory

        13          conditions.  For that period of one year while

        14          you are on probation, you are to have no contact

        15          directly or indirectly with Wade Kapakatoak and

        16          no contact directly or indirectly with Jamie

        17          Kapakatoak.

        18               There will be a firearms prohibition order

        19          in the usual terms beginning today and continuing

        20          for ten years, and any firearms or other items

        21          covered by the order are to be surrendered to the

        22          RCMP forthwith.

        23               There will also be a DNA order in usual

        24          terms.

        25               Because you have been in jail for several

        26          months now, the victim surcharge is waived.

        27               Mr. Wanderingspirit, even before I heard you






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         1          speak today, I was going to say that you should

         2          look at this as a fresh start and I think that is

         3          essentially what you said, is that you want a

         4          fresh start, you want to start over.  So you will

         5          be out of jail, you will be on probation.  There

         6          are not a lot of conditions in that probation

         7          order but obviously you have to obey the

         8          conditions that are there.  Apparently you have

         9          the prospect, the possibility of a good job from

        10          what was said here today, so it seems to me this

        11          is a good time to take the opportunity and make a

        12          new life for yourself and to leave behind the bad

        13          habits that are reflected by your criminal

        14          record.  I am encouraged by what you said here

        15          today because it makes me think that that is what

        16          you want to do, too, is to start over again.  So

        17          I do hope that you will do that and that you will

        18          not end up coming back here before the court.

        19          You are 36 years old, it is time to get on with

        20          life and leave all of these troubles and the

        21          things that you have been doing to other people

        22          and in many ways doing to yourself as well.  I

        23          hope that you will take that advice and that you

        24          will think about what you said here today and

        25          take it seriously and change things around.

        26               You may have a seat.

        27               Is there anything further, counsel?






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         1      MR. LECORRE:           Not from the Crown.

         2      MR. BOYD:              Not from defence, Your Honour.

         3      THE COURT:             All right, thank you both very

         4          much and we will close court then.

         5                ..............................

         6

         7                             Certified to be a true and
                                       accurate transcript pursuant
         8                             to Rule 723 and 724 of the
                                       Supreme Court Rules of Court.
         9

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        11                             Annette Wright, RPR, CSR(A)
                                       Court Reporter
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