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Abstract: Transcript of the Reasons for Sentence
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R. v. Klondike, 2012 NWTSC 28 S-1-CR-2011-000085 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - ROY KLONDIKE __________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice K. Shaner, sitting in Yellowknife, in the Northwest Territories, on the 30th day of March, A.D. 2012. __________________________________________________________ APPEARANCES: Mr. B. MacPherson and Ms. W. Miller: Counsel for the Crown Mr. S. Fix: Counsel for the Accused (Charge under s. 268 of the Criminal Code of Canada) Official Court Reporters 1 THE COURT: Good afternoon. Good 2 afternoon, Counsel. Mr. Klondike. 3 I am ready to give you reasons for sentence 4 on this matter following the verdict of guilty 5 that was returned by the jury yesterday and 6 following submissions by Crown and defence this 7 morning, which were extremely helpful. Thank you 8 very much. 9 I find it useful in giving reasons for 10 sentence to set out the facts in a very summary 11 form just so there is some context to the 12 reasons, so I am going to do that. 13 Sometime late on December 25th, 2010, in the 14 community of Nahanni Butte, Stephen Vital was 15 visiting the home of Joan Ekotla. Roy Klondike 16 and Ms. Ekotla were in a relationship at the time 17 and Mr. Klondike was living there. Ms. Klondike 18 and Ms. Ekotla were arguing at some point. She 19 was angry with him because he had gone out. All 20 three of Mr. Ekotla, Mr. Vital, and Mr. Klondike 21 had been drinking alcohol at various times 22 throughout the day, although the times and 23 amounts and the extent the inebriation of those 24 three varied. Shortly after Mr. Vital arrived at 25 her home, Ms. Ekotla took him into her daughter's 26 bedroom to drink and listen to music, and at some 27 point she locked Mr. Klondike out of the room. Official Court Reporters 1 1 Soon after, Mr. Klondike entered the room and 2 stabbed Mr. Vital in the back with a steak knife. 3 As set out in the Agreed Statement of Facts, 4 the wound was a serious one. Mr. Vital suffered 5 a collapsed lung, among other things, and he 6 spent a number of days in the hospital in 7 Yellowknife recovering. 8 Mr. Klondike has now been convicted of the 9 offence of aggravated assault by wounding, 10 contrary to Section 268 of the Criminal Code, and 11 that offence carries with it a maximum penalty of 12 14 years. It falls into the definition of a 13 serious personal injury offence and, thus, as the 14 Crown and defence both pointed out, a conditional 15 sentence order is not something that is available 16 for consideration. The only options are 17 incarceration, probation, or a combination of 18 those two. 19 The Criminal Code itself sets out principles 20 of sentencing with which I am sure Crown and 21 defence are very familiar, however, it is useful 22 to repeat them because they provide a framework 23 to guide the Court in imposing an appropriate 24 sentence. 25 Section 718 sets out the fundamental purpose 26 of sentencing, which is to contribute, along with 27 crime prevention initiatives, to respect for the Official Court Reporters 2 1 law and the maintenance of a just, peaceful safe 2 society by imposing just sanctions that have one 3 or more of the following objectives: to denounce 4 unlawful conduct; to deter the offender and other 5 persons from committing offences; to separate 6 offenders from society, where necessary; to 7 assist in rehabilitating offenders; to provide 8 reparations for harm done to victims or to the 9 community; and to promote a sense of 10 responsibility in offenders, and acknowledgment 11 of the harm done to victims and to the community. 12 Section 718.1 talks about the 13 proportionality principle in sentencing, which is 14 that "A sentence must be proportionate to the 15 gravity of the offence and the degree of 16 responsibility of the offender." Then Section 17 718.2 sets out other principles, two of which are 18 very germane to this case. Subsection (b) says 19 "a sentence should be similar to sentences 20 imposed on similar offenders for similar offences 21 committed in similar circumstances". And 22 subsection (e) says "all available sanctions 23 other than imprisonment that are reasonable in 24 the circumstances should be considered for all 25 offenders, with particular attention to the 26 circumstances of aboriginal offenders." Those 27 are the principles that I have to apply today. Official Court Reporters 3 1 As I stated earlier and as has been noted by 2 both counsel, aggravated assault is very serious. 3 Stabbing a person in the back with a knife, even 4 if it is done in a highly charged emotional 5 situation, is at the strong end of the continuum 6 of moral culpability and blameworthiness. 7 Mr. Klondike may well have been angry at 8 being lock out of the room, but the evidence was 9 that there had been no previous altercation or 10 arguments between Mr. Vital and Mr. Klondike that 11 evening, and it is fair to say that the attack 12 was, at the very least, completely unexpected by 13 the victim. This, as well as the extent of the 14 injury, are particularly aggravating 15 circumstances. 16 Mr. Klondike's personal circumstances and, 17 in particular, his aboriginal heritage are very 18 important considerations in this case as the 19 Supreme Court has stated in the Gladue case and, 20 more recently last week, in the Ipeelee case. 21 The law recognizes that there are systemic and 22 historical factors that have put aboriginal 23 people in Canada into circumstances that have 24 greatly increased the possibility of some of them 25 coming into conflict with the law and, as well, 26 contributed to there being a significant 27 over-representation of aboriginal people in our Official Court Reporters 4 1 correctional facilities. 2 This morning I heard submissions on 3 Mr. Klondike's personal circumstances, including 4 his upbringing. He has not had the benefit of 5 much education. His early family life was no 6 doubt very difficult with both of his parents 7 drinking heavily. From the representations of 8 counsel, it appears that he started supporting 9 himself working at a very young age, around 14 or 10 15. He, too, has struggled with alcohol 11 addiction, and I have absolutely no doubt that 12 many of these difficult circumstances and 13 challenges that had been faced by Mr. Klondike 14 have shaped his life and are directly related to 15 the legacy of residential schools and the impact 16 of poverty, alcohol, and isolation in so many of 17 our aboriginal communities. 18 That said, there are also some very positive 19 things about Mr. Klondike that we heard today. 20 Although Mr. Klondike has a criminal record, it 21 is very old. The last conviction was in 1993. 22 It was for sexual assault, which is also serious. 23 But the fact that that criminal record is so old 24 and there has been nothing since then suggests to 25 me that Mr. Klondike is well and very capable of 26 learning from his mistakes. We also heard that 27 Mr. Klondike struggled with alcohol but that he Official Court Reporters 5 1 maintained sobriety for 15 to 18 years. He is 2 now dealing with his addiction once again and has 3 made strides to do so during the time that he has 4 been on recognizance. 5 Unfortunately, this is not a crime for which 6 sanctions other than imprisonment are 7 realistically available notwithstanding what I 8 said earlier about probation. As I indicated 9 earlier, it is a serious offence and the 10 circumstances of this particular offence are very 11 serious. 12 The Crown is seeking a term of three to 13 three and a half years of imprisonment. Defence 14 counsel says that a term of six to nine months' 15 imprisonment followed by a lengthy period of 16 probation is more appropriate. 17 Ms. Miller, for the Crown, submitted two 18 cases to me this morning - the Morgan case and 19 the Gonzales case. In the Morgan case, Justice 20 Charbonneau noted that a sentence of thirty 21 months to five years is the range of sentence 22 typically given for this type of offence. 23 Now, while I agree with the Crown that 24 typically that is the case, I think that in this 25 case, including all of the personal circumstances 26 of Mr. Klondike, that there are more effective 27 ways than a three to three-and-a-half-year Official Court Reporters 6 1 sentence in jail to achieve the objectives, all 2 of the objectives, of the Criminal Code in 3 sentencing and, in particular, rehabilitation. 4 Mr. Klondike, can you please stand. 5 Mr. Klondike, I am sentencing you to a term of 6 imprisonment of 18 months. This will be net of 7 any one-to-one credit that you receive for time 8 spent in remand, and this sentence will be 9 followed by a term of probation of two years. 10 The terms of the probation order will 11 include those mandated by the Criminal Code as 12 mandatory conditions and, as well, it will 13 include the following conditions: That you will 14 report to a probation officer within seven days 15 of being released from jail and, thereafter, 16 report as directed by the probation officer; you 17 will remain in the Northwest Territories unless 18 you have written permission to go outside of the 19 Northwest Territories from the probation officer; 20 you will abstain completely from the consumption 21 of alcohol or other intoxicating substances; you 22 will abstain from the consumption of drugs except 23 in accordance with the directions of a licenced 24 medical practitioner. In addition, there will be 25 an order as required under the Criminal Code for 26 a DNA sample to be taken in accordance with 27 Section 487.051 and a firearms prohibition under Official Court Reporters 7 1 Section 109. Do you understand, Mr. Klondike? 2 THE ACCUSED: Yes. 3 THE COURT: There will also be an order 4 that following the expiration of the appeal 5 period, Exhibits 3 and 4, which I understand, if 6 I am -- just for clarity, are the T-shirt and the 7 knife, will be returned to the RCMP for 8 destruction at the end of the appeal period. You 9 can sit down, Mr. Klondike. 10 Is there anything else? 11 THE COURT CLERK: The length of the firearms 12 prohibition? 13 THE COURT: The length of the firearms 14 prohibition is ten years. 15 THE COURT CLERK: Thank you. 16 MR. FIX: Your Honour, I'm sorry, I 17 forgot to address that and I don't know if 18 there's anything that can be done, but obviously 19 a significant part of his subsistence is hunting 20 and trapping. If there's nothing that can be 21 done, then there is nothing that can be done. 22 But I don't know if there's -- and I apologize, I 23 didn't look into this. I didn't think of it 24 until this morning and I didn't address it in my 25 submissions. But given his income from 26 employment, he doesn't hunt or trap for sport, 27 Your Honour. Perhaps my friends can assist. Official Court Reporters 8 1 MS. MILLER: Your Honour, I'm not sure if 2 Mr. Fix is making application for the exemption 3 pursuant to Section -- I apologize, Your Honour, 4 I don't have my Code with me, but there is an 5 exemption -- 6 THE COURT: Yes. 7 MS. MILLER: -- section on the firearms for 8 those who hunt for subsistence purposes and that 9 application can be made. The Crown's not taking 10 a position on it. 11 MR. FIX: Thank you. I thank my friend. 12 I would make that application, and I've just been 13 given a tip from the officer that she thinks it's 14 Section 113. 15 THE COURT: Well, given the -- I 16 understand what you are saying, Mr. Fix, but I do 17 not think that there is -- and I do not 18 disbelieve your client, but I do think there has 19 to be some -- or your submission, but I think 20 there has to be some evidentiary basis for making 21 that exemption. And I do note that the 22 provisions of the Criminal Code are that a 23 "competent authority may, not withstanding that a 24 person is or will be subject to a prohibition 25 order, make an order authorizing the chief 26 firearms officer or the Registrar to issue ... an 27 authorization licence or registration Official Court Reporters 9 1 certificate." So -- 2 MR. FIX: It doesn't have to be done 3 today. 4 THE COURT: It does not have to be done 5 today. So I will make the firearms prohibition, 6 and if you wish to bring an application to have 7 that lifted, then do so at the appropriate time. 8 MR. FIX: Thank you, Your Honour. 9 THE COURT: Is there anything else? 10 MS. MILLER: Not from the Crown, Your 11 Honour. 12 MR. FIX: Technically, I think the Court 13 may need to address the victim of crime 14 surcharge, but I would ask, given the 15 circumstances, that it be waived for hardship. 16 THE COURT: I think, given your 17 representations about Mr. Klondike's financial 18 circumstances, that I am inclined to waive the 19 victim of crime surcharge. So there will not be 20 one in this case. 21 MR. FIX: Thank you, Your Honour. 22 MS. MILLER: Thank you, Your Honour. 23 THE COURT: Thank you. 24 ................................. 25 26 27 Official Court Reporters 10 1 2 3 Certified Pursuant to Rule 723 of the Rules of Court 4 5 6 Jane Romanowich, CSR(A) 7 Court Reporter 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 11
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