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Abstract: Transcript of the Reasons for Sentence
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R. v. Bernhardt, 2013 NWTSC 54 S-1-CR2011000098 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - SHAOMEK BERNHARDT _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice V. A. Schuler, at Inuvik in the Northwest Territories, on July 11th A.D., 2013. _________________________________________________________ APPEARANCES: Ms. S. Aitken: Counsel for the Crown Mr. Shaomek Bernhardt: Appeared on his own behalf ---------------------------------------- Charge under s. 434 Criminal Code of Canada Official Court Reporters 1 THE COURT: Mr. Bernhardt, who 2 represented himself at the trial of this 3 matter and has represented himself on 4 sentencing, was convicted after trial on 5 Count 1 in the Indictment, that he did, on or 6 about March 12th, 2011, here in Inuvik, cause 7 damage by fire to a motor vehicle belonging to 8 Archibald Frank Sittichinli who, in his 9 testimony, indicated that he is commonly known 10 as Frank Edwards. That offence is contrary to 11 Section 434 of the Criminal Code. 12 The evidence at the trial was that on the 13 morning of March 12th, 2011, Mr. Bernhardt 14 said to Rene Edwards that he was looking for a 15 jerry can to burn her car. The car that she 16 drove at that time actually belonged to her 17 father, Frank Edwards. It was parked outside 18 Mr. Edwards's home. 19 At about 11:30 a.m. on the date in 20 question, Mr. Edwards was looking out his 21 window and saw Mr. Bernhardt behind the 22 vehicle with a jerry can and about five 23 seconds later, as Mr. Edwards had walked over 24 to look out another window, he saw flames 25 coming out the back of the vehicle and Mr. 26 Bernhardt walking away. Mr. Edwards and his 27 son Tommy Edwards, who also saw Mr. Bernhardt Official Court Reporters 1 1 dump the contents of the jerry can on the back 2 of the vehicle and use a lighter to set it on 3 fire, used fire extinguishers on the flames. 4 The local fire department and the police 5 received calls at about 11:40 a.m. but the 6 fire was out when they arrived on the scene. 7 Mr. Edwards' son estimated that it took about 8 seven minutes to put out the fire. 9 Rene Edward testified that the night 10 before, Mr. Bernhardt had made some advances 11 to her but unsuccessfully. And as I indicated 12 in my reasons at the trial, I think it is a 13 reasonable inference that Mr. Bernhardt was 14 angry and that may have been the motive for 15 the offence. 16 Mr. Bernhardt did not testify at trial. 17 He maintained his innocence to the probation 18 officer who prepared the pre-sentence report, 19 so there is no evidence about what Mr. 20 Bernard's motive was other than what was 21 before the Court at the trial. 22 Mr. Edwards, the owner of the car, did not 23 complete a victim impact statement but he did 24 tell the probation officer, as is set out in 25 the pre-sentence report, that he feared for 26 his life and the life of those living nearby. 27 The majority of whom are elders. Official Court Reporters 2 1 Since Mr. Edwards did not have enough 2 money to have the vehicle repaired, he has 3 done without a vehicle so he has been put to 4 inconvenience because of that. 5 As I have just indicated, the Court does 6 have the benefit of a pre-sentence report. It 7 is a very thorough report and I want to thank 8 the probation officer for that. 9 Mr. Bernhardt is 35 years old. He is of 10 Inuvialuit descent. He is a single parent to 11 an 11-year-old son of whom he has had custody 12 since the child was four years old. 13 Mr. Bernhardt does have a criminal record, 14 albeit a limited one. He has a conviction for 15 uttering threats in 2008. He was given a 16 suspended sentence for that but according to 17 the pre-sentence report did not do very well 18 because he did not obey the non-contact 19 requirement in the probation order. Crown 20 counsel has advised, however, that there is no 21 record that Mr. Bernhardt was convicted of any 22 breaches. There is also a conviction for 23 failing to appear in court that was entered 24 after the arson offence, in May of 2012, and 25 for which Mr. Bernhardt received a fine. 26 The pre-sentence report discloses that Mr. 27 Bernhardt has a close relationship with Official Court Reporters 3 1 members of his family and that they are 2 supportive of him. His parents are separated 3 and his mother is not well and requires 4 constant care. Mr. Bernhardt resides with her 5 and helps her when he is at home, and it is 6 said by family members that he respects her 7 and will not go to the family home when he is 8 under the influence of alcohol. He 9 contributes to her support. 10 Mr. Bernhardt has a Grade 10 education. 11 He works in his father's welding business here 12 in Inuvik and operates a variety of heavy 13 machinery and equipment. He has worked with 14 his father since age 16. His father reports 15 that he is a hard worker and gets along well 16 with his co-workers other than one stepbrother 17 who also works in the business. 18 Mr. Bernhardt began to drink at the age of 19 13 and his alcohol consumption is said to have 20 been a problem in the past, however in recent 21 years he has cut down. He has been on 22 conditions to abstain from the consumption of 23 alcohol since the offence and he and family 24 members report that he has abstained. He also 25 used drugs at one time but he has not done so 26 for the past three years. 27 Turning to the offence itself, Section 434 Official Court Reporters 4 1 of the Criminal Code provides that it is one 2 for which an offender may be sentenced to a 3 maximum of 14 years in jail. There is no 4 minimum sentence prescribed in the Criminal 5 Code. 6 As is noted in some of the cases filed by 7 counsel for the Crown, arson is viewed as a 8 very serious offence because of the terrible 9 consequences that can result from it. Fire is 10 unpredictable and no matter what the person 11 setting the fire may actually intend, fire can 12 easily get out of control and lead to terrible 13 consequences that were not foreseen or 14 intended. Setting a fire, especially in an 15 area where people live close by, or to a piece 16 of property that could explode, puts the lives 17 of people at risk. It puts the lives of 18 firefighters and others who attempt to 19 extinguish the fire at risk, and obviously in 20 this case Frank and Tommy Edwards fall into 21 that category. So that is why the offence is 22 treated so seriously. 23 As a mature individual, Mr. Bernhardt is 24 well aware of the potential risks of what he 25 did and must have been aware at the time that 26 he did it. I do note that in this case one 27 factor that is different than some of the Official Court Reporters 5 1 cases submitted by the Crown is the time of 2 day when the fire was set. In some of the 3 cases there was even more potential for harm 4 to people because the fires were set at a time 5 of night or early morning when most people 6 would be asleep in bed. In this case, 7 according to the evidence, the fire was set at 8 around 11:30 a.m., at a time when most people 9 would be up and alert, although there is no 10 question that harm could have still resulted 11 to those in the area, especially elders who 12 might not be able to escape quickly. 13 There is no evidence that it was anything 14 more than good luck that Frank Edwards was 15 looking out the window and saw the fire and 16 that he and his son were able to deal with it 17 so quickly. In other words, that cannot be 18 attributed to Mr. Bernhardt who simply left 19 the scene after setting the fire. 20 Some of the cases also involve accused or 21 offenders who were intoxicated. I have 22 reviewed the evidence that was heard at the 23 trial. By the time the police located Mr. 24 Bernhardt, according to their testimony he had 25 been drinking. They observed signs of that. 26 But that was at approximately 2 o'clock in the 27 afternoon. So the evidence really is unclear Official Court Reporters 6 1 as to what his condition was at the time that 2 he set the fire. 3 As with any sentencing, mitigating and 4 aggravating factors must be taken into 5 account. 6 Mr. Bernhardt exercised his right to a 7 trial. He was entitled to do that, and he is 8 not to be punished more harshly for having 9 exercised that right. It does mean, however, 10 that he does not get the mitigation; in other 11 words, the benefit, of a guilty plea. 12 Nor has there been any expression of 13 remorse, although Mr. Bernhardt did say 14 yesterday that he would pay the damage claim 15 he was presented with. So I take that as an 16 acknowledgment of some responsibility or at 17 least recognition of the Court's verdict. If 18 there had been a guilty plea, if there had 19 been a clear expression of remorse, these 20 would be mitigating factors. But since they 21 are absent in this case, they do not help Mr. 22 Bernhardt. 23 I find that there is some mitigation in 24 Mr. Bernhardt's background although, as I have 25 said, he has a limited criminal record. He 26 appears to have been a hard working person, 27 helpful to his family, and taking Official Court Reporters 7 1 responsibility for his son. He has also taken 2 steps to ensure that alcohol does not dominate 3 his life. So all of that is to Mr. 4 Bernhardt's credit. He was also able to abide 5 by conditions of release for approximately two 6 years save for the incident of failing to 7 appear. 8 As for aggravating factors, it is 9 aggravating that the vehicle was set on fire 10 when it was in close proximity to residences 11 and also another vehicle. It is also an 12 aggravating factor that Mr. Bernhardt simply 13 left the scene, leaving the vehicle to burn. 14 There is also an element of premeditation in 15 this case because Mr. Bernhardt told Rene 16 Edwards that he was going to burn the vehicle. 17 He looked for, and he obviously obtained, a 18 jerry can of gas and he then went to Frank 19 Edwards' house and set the vehicle on fire. 20 So this was something that he did give some 21 thought to. 22 Some of the cases that were filed by the 23 Crown refer to there being different types of 24 arsonists - different categories of people who 25 set fires. There are people who are mentally 26 disturbed. There are people who do it for no 27 special reason or because they have a grudge. Official Court Reporters 8 1 There are people who do it simply as 2 vandalism. And there are people who do it for 3 financial gain; for example, for insurance 4 money. That last example is considered 5 generally to be the most blameworthy form of 6 arson. 7 In this case, as I have noted, on the 8 evidence the only reason or the possible 9 reason for Mr. Bernhardt's actions that arises 10 is that he was angry at Ms. Edwards. There is 11 certainly no indication in the pre-sentence 12 report that he is mentally disturbed. This 13 does not appear to be a case of simple 14 vandalism, in other words just going out to 15 wreck property no matter whose it is, nor is 16 there any question of financial gain. So in 17 this case, Mr. Bernhardt does not fall into 18 the most blameworthy category which, as I 19 said, is usually said to be when the arson is 20 committed for financial gain. 21 Mr. Bernhardt is of Inuvialuit heritage 22 and that means that the Court has a 23 responsibility under Section 718.2(e) of the 24 Criminal Code to consider all available 25 sanctions other than imprisonment that are 26 reasonable in the circumstances. 27 The cases of Gladue and Ipeelee decided in Official Court Reporters 9 1 the Supreme Court of Canada have interpreted 2 this as meaning that the Court has a 3 responsibility to approach sentencing of 4 aboriginal offenders in a way that recognizes 5 the disadvantages that aboriginal people have 6 historically suffered and the systemic factors 7 that, in many cases, contribute to their 8 coming into conflict with the law. The 9 Supreme Court of Canada has said that Courts 10 should try to craft a sentence that is best 11 suited to an aboriginal offender considering 12 those background factors. 13 As is noted in one of the cases filed by 14 Crown counsel, the Cootes case, 2011 BCCA 398, 15 Section 718.2(e) was intended, in part, to 16 recognize systemic problems in a criminal 17 justice system, where aboriginal offenders 18 make up a disproportionate percentage of the 19 inmates in jail, by encouraging sentences 20 other than imprisonment whenever appropriate. 21 It is not a direction that aboriginal 22 offenders be given more lenient sentences, but 23 a recognition that other forms of sentence can 24 sometimes achieve the goals and principles of 25 sentencing equally if not more than 26 imprisonment. 27 In Mr. Bernhardt's case, the pre-sentence Official Court Reporters 10 1 report indicates that although alcohol has 2 played a role in his life, as it has in the 3 lives of so many aboriginal people, it has not 4 led to the devastating consequences that are 5 often seen. His family life and upbringing 6 appear to have been steady and supportive. 7 There were some issues in the family with 8 alcohol abuse by the parents; however, they 9 still seem to have been able to provide a 10 supportive homelife for their children. Mr. 11 Bernhardt is involved in the family business 12 which also provides employment for other 13 family members. He has been able to make a 14 good income. Although his parents went to 15 residential school, that does not appear to 16 have had the pronounced negative effect on 17 family life that sometimes results from that 18 experience. And Mr. Bernhardt himself has 19 taken his parental responsibilities seriously 20 from what is in the report. So from all of 21 this, it does not appear to me that Mr. 22 Bernhardt has come into conflict with the law 23 due to systemic factors. 24 The law is also clear that while Mr. 25 Bernhardt's aboriginal heritage is a 26 consideration, other principles of sentencing 27 must also play a role, especially in a case Official Court Reporters 11 1 where public safety has been put at risk. 2 The fundamental principle of sentencing is 3 that the sentence must be proportionate to the 4 gravity of the offence and the degree of 5 responsibility of the offender. 6 For the reasons that I have already 7 explained, the offence in this case is 8 serious. Based on what he said to Ms. Edwards 9 before setting the vehicle on fire, Mr. 10 Bernhardt obviously thought about it. As I 11 said, he got the gas, he went to the residence 12 where the vehicle was parked, so there was 13 some premeditation. He also left it to burn 14 and created a situation that could have had 15 tragic consequences to members of the public. 16 And in fact, and I hope Mr. Bernhardt will 17 think about this, if that fire had got out of 18 control, he could be here on much more serious 19 charges, including charges for causing the 20 death of someone. Fortunately that didn't 21 happen; fortunately nobody was actually hurt 22 in the fire. 23 Denunciation and deterrence are also 24 important principles of sentencing and the 25 sentence that I impose must signal to both Mr. 26 Bernhardt and others that this behaviour will 27 have a serious consequences; that society, the Official Court Reporters 12 1 community, rejects and condemns this 2 behaviour. And again, obviously, that is 3 because it can have such devastating 4 consequences. 5 So all of those principles have to be 6 balanced in order to come to an appropriate 7 sentence. 8 I have reviewed the cases that were 9 submitted by Crown counsel. All cases and all 10 offenders are different. There are never any 11 two that are exactly the same. What is clear 12 is that Courts generally have imposed a jail 13 term for the offence of arson. Mr. Bernhardt's 14 aboriginal status does not mean in this case 15 that the Court should approach this case 16 differently. In other words, it doesn't mean 17 the Court should automatically approach the 18 case differently. His status may have an 19 affect on the length of the sentence that is 20 imposed. And so, again, that is where it may 21 be relevant. 22 Crown counsel has submitted that a jail 23 term of nine months would be appropriate in 24 this case and that does appear to be within 25 the range of the sentences imposed in the 26 cases for this type of offence. Those cases 27 indicated a range from nine months up to three Official Court Reporters 13 1 years. 2 Any sentence of less than two years can be 3 made conditional. In this case Crown counsel 4 opposes a conditional sentence, and I have to 5 note obviously as well that the pre-sentence 6 report indicates that Mr. Bernhardt's family 7 would be supportive of him if a conditional 8 sentence was made. However, it also indicates 9 that Mr. Bernhardt told the probation officer 10 that he feels he would not do well on a 11 conditional sentence order or probation order 12 and that he would prefer custody and that he 13 has in fact made arrangements for his son's 14 care anticipating that the sentence would be 15 one of custody. 16 Here in court yesterday, when I asked Mr. 17 Bernhardt about that, he said that he does not 18 like to be stuck at home, he does not like to 19 have to be in town, he feels he cannot keep 20 appointments because of the work he does which 21 requires him to be out of town on short 22 notice. 23 A conditional sentence generally does 24 include quite restrictive terms, often things 25 like house arrest, a curfew, reporting 26 conditions. It is very clear that a 27 conditional sentence is not the same as Official Court Reporters 14 1 probation. It is meant to be a more severe 2 type of sentence. It is a jail sentence but 3 it is served in the community. 4 So I have given consideration to whether a 5 conditional sentence could or should be 6 imposed in this case. But in light of Mr. 7 Bernhardt's remarks, I have come to the 8 conclusion that a conditional sentence would 9 not be appropriate and, in fact, it might just 10 be setting Mr. Bernhardt up for failure 11 because any conditional sentence, in the 12 circumstances of this case, would have to 13 include quite strict conditions. 14 I want to be clear that I am not saying 15 that a conditional sentence would be 16 appropriate for this offence if it were not 17 for Mr. Bernhardt's comments. But because of 18 Mr. Bernhardt's attitude towards it, I have 19 decided that I need not go on to consider it 20 any further, that it would not be appropriate 21 because of his attitude and reaction to it. 22 So as I have said, Crown counsel is 23 seeking a sentence of nine months imprisonment 24 plus probation. Mr. Bernhardt did not make 25 any submissions as to the length of an 26 appropriate sentence. 27 I want to deal with the ancillary orders Official Court Reporters 15 1 first. First of all, the Crown is requesting 2 an order for the taking of a sample from Mr. 3 Bernhardt for purposes of DNA analysis. 4 Arson is a secondary designated offence 5 for purposes of Section 487.0511 of the 6 Criminal Code and so I have a discretion 7 whether to make that order. To decide whether 8 to make it, I must consider Mr. Bernhardt's 9 criminal record, the nature of the offence, 10 the circumstances surrounding its commission, 11 and the impact on Mr. Bernhardt's privacy and 12 security. 13 Mr. Bernhardt indicated that he does not 14 oppose a DNA order but he pointed out that no 15 DNA was found at the scene of this offence. I 16 do not believe that there was any discussion 17 about whether DNA was sought or could have 18 been present in this particular case, however, 19 DNA is generally a useful investigative tool 20 for the police. For example, in a case where 21 there are no witnesses, items such as Kleenex 22 or a cigarette may be discarded and that may 23 provide DNA. So I take that into account. 24 I take into account that this is a serious 25 offence for the reasons that I have said. 26 Although Mr. Bernhardt's record is dated, the 27 seriousness of the offence, its potential for Official Court Reporters 16 1 harm to people, in my view is a significant 2 consideration. 3 The taking of DNA has been referred to by 4 courts, for example in the case of R. v. Briggs, 5 2001 O.J. No. 339 from the Ontario Court of 6 Appeal, as not involving an undue incursion on 7 an individual's privacy and security. 8 In weighing all of those factors, 9 considering that Mr. Bernhardt indicated that 10 he was not opposed, I am satisfied that it is 11 in the best interests of the administration of 12 justice to make that order and I do so. 13 The Crown also seeks a firearms 14 prohibition order under Section 110(1)(b) of 15 the Criminal Code as this was an offence 16 involving an explosive substance, being 17 gasoline. Again, this is a situation where 18 the Court may make such an order. It is not 19 required to. 20 Although what Mr. Bernhardt did created a 21 risk to the public, there is no evidence that 22 he actually intended to harm any person. Nor 23 is there any indication that Mr. Bernhardt is 24 likely to repeat this behaviour. At his age, 25 and without any indication that he has done 26 this before, there is no evidence that this is 27 anything other than an isolated incident. Official Court Reporters 17 1 The substance used was gasoline. It is a 2 substance that is commonly used for legitimate 3 purposes, and it would be of use to someone 4 going out in the bush or being on the water. 5 And so since those are fairly significant 6 aspects of Mr. Bernhardt's life, since he does 7 not have any record for this offence and he 8 does not have any record for actual violence 9 against a person, I have considered but have 10 decided that I will not impose a Section 110 11 firearm prohibition order. 12 In connection with that, I do note that in 13 two of the cases that were submitted by Crown 14 counsel where a firearm prohibition order was 15 made, for example Dervishaj, 2009 BCPC 0094, 16 the motive for arson was financial, which is 17 considered to be the most blameworthy example 18 of the offence, and the order was made in that 19 case. In the Montgomery, 2002 ABPC 36, where 20 the order was also made, the accused had a 21 substantial criminal record with multiple 22 related convictions, including assault. So 23 those are elements in those cases that are not 24 present in this particular case. 25 There was also reference to the victim 26 surcharge. Mr. Bernhardt earns a good income. 27 The pre-sentence report indicates that he Official Court Reporters 18 1 earned $80,000 in 2012. So as a result of 2 that, I am not going to waive the victim 3 surcharge. 4 Stand up, please, Mr. Bernhardt. 5 As to the sentence itself, the nine months 6 that is being sought by the Crown I note is 7 the sentence that was imposed in Makinaw case, 8 2002 ABPC 193. In that case, the fire was set 9 in a hotel so there was a greater proximity of 10 people to where it was and in fact a large 11 number of people, greater than in this case. 12 Similar to this case, the fire was quickly 13 extinguished. Similar to this case, the 14 damage was not extensive in the way that is 15 seen in some of the other cases, although 16 there serious damage in this case. In the 17 Makinaw case there was a guilty plea which is 18 not present in this case. But in Makinaw, the 19 offender was found to be at a substantial risk 20 to reoffend. So there is some differences, 21 some similarities, but having given it a lot 22 of thought, in my view that is an appropriate 23 sentence in this case. So Mr. Bernhardt, I am 24 sentencing you to nine months. It will not be 25 a conditional sentence. 26 I am also going to place you on probation 27 for a period of one year after your sentence. Official Court Reporters 19 1 I am doing that in large part because there 2 are some conditions that I think should be 3 imposed, and I can only do that by way of a 4 probation order. 5 The probation will be for one year. There 6 will be the statutory conditions that you keep 7 the peace and be of good behavior, in other 8 words don't get into trouble. You will appear 9 before the Court when required to do so by the 10 Court. And you will notify the court or the 11 probation officer in advance of any change of 12 name or address and you will promptly notify 13 the Court or the probation officer officer of 14 any change of employment or occupation. You 15 are to, during that one year, have no contact 16 directly or indirectly with Frank Sittichinli, 17 in other words Frank Edwards, Tommy Edwards 18 and Rene Edwards. You are to pay restitution 19 to the clerk of the court. It will be payable 20 to Frank Sittichinli but through the clerk of 21 the court in the amount of $1,702.89. And 22 that is to be paid within the year of your 23 probation, in other words before the probation 24 expires. The reason that I have decided on 25 that figure is because there is no evidence 26 before me of the $3000 figure that was 27 referred to. But because the documentation Official Court Reporters 20 1 was presented to you for the $1702 figure, I 2 have decided that that is the appropriate 3 amount of restitution. 4 I am not going to require, Mr. Bernhardt, 5 that you report to a probation officer. I am 6 not ordering that you take any sort of 7 counselling. 8 I have thought about that. You are a 9 mature man. From having seen you, observed 10 you, and in what I have seen of you before the 11 court, what I read in the pre-sentence report, 12 I think that you are probably quite stubborn, 13 quite independent. You have shown in the last 14 two years that you can abstain from drinking, 15 and I am going to take that as meaning that 16 you have shown that you can learn from your 17 mistakes. I think that this is a case where 18 focusing on your employment, focusing on your 19 son, and focusing on your family support are 20 really the things that are going to be best 21 for you. I have some concerns that if I were 22 to order counselling, there are just going to 23 be problems with you not being able to make 24 the appointments. So instead, as I say, I am 25 going to rely on the fact that you have shown 26 that you can deal with your issues -- over the 27 past two years, and I am going to rely on you Official Court Reporters 21 1 to continue dealing with your issues. 2 Obviously you need to work on your temper and 3 not letting it get out of control and not 4 letting it lead you to do things that are 5 against the law. So I am hoping that things 6 will work out for you and that we will not in 7 fact see you back before the court again. 8 You may sit down. 9 Is there anything further? 10 MS. AITKEN: No, Your Honour. 11 THE COURT: All right, thank you, then 12 for your submissions. Thank you, Mr. 13 Bernhardt, for the way that you dealt with the 14 case. I think that you were quite reasonable 15 in terms of the way that you dealt with the 16 trial and we will close court then. 17 18 ------------------------------------- 19 20 Certified to be a true and accurate transcript pursuant 21 to Rules 723 and 724 of the Supreme Court Rules, 22 23 24 25 26 ____________________________ 27 Lois Hewitt, Court Reporter Official Court Reporters 22
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