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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 Official Court Reporters 1 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 Official Court Reporters 2 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 Official Court Reporters 3 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 Official Court Reporters 4 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 Official Court Reporters 5 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 Official Court Reporters 6 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? Official Court Reporters 7 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 10 ______________________________ 11 Annette Wright, RPR, CSR(A) Court Reporter 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 8
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