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Abstract: Transcript of the Reasons for Sentence

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             R. v. Bernhardt, 2013 NWTSC 01           S-1-CR-2012-000124



                IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES



                IN THE MATTER OF:





                                HER MAJESTY THE QUEEN



                                        - v -



                                TONY ROBERT BERNHARDT





             __________________________________________________________

             Transcript of the Reasons for Sentence delivered by The

             Honourable Justice S. H. Smallwood, sitting in Yellowknife,

             in the Northwest Territories, on the 17th day of December,

             A.D. 2012.

             __________________________________________________________



             APPEARANCES:

             Ms. W. Miller:                 Counsel for the Crown

             Mr. M. Hansen:                 Counsel for the Accused



               (Charges under s. 253(1)(a), 259(4) and 355(a) of the
                               Criminal Code of Canada)







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         1      THE COURT:             This morning, Mr. Bernhardt

         2          re-elected to judge alone, pled guilty to counts

         3          1 and 3 on the Indictment; that is operating a

         4          motor vehicle while his ability to drive was

         5          impaired by alcohol and having possession of a

         6          van knowing that it was stolen.  I must now

         7          sentence him for these offences.

         8               The events that led to those charges date

         9          back to March 3rd of this year.  At approximately

        10          1:55 p.m., the RCMP in Aklavik received a report

        11          of a suspected impaired driver.  The complaints

        12          that were received was that someone had driven

        13          the ambulance into the ditch.  The RCMP responded

        14          and observed the ambulance in the ditch.  The

        15          pictures in Exhibit S3 depict what the officers

        16          saw.  The ambulance was stuck in the snow, the

        17          right rear tire was stuck in the soft shoulder,

        18          and the accused was in the driver's seat.  The

        19          accused showed signs of impairment:  slurred,

        20          slow speech; a strong odour of alcohol on his

        21          breath; slow motor skills; wobbly when standing;

        22          and staggering while walking.  He was placed

        23          under arrest.  Subsequent investigation showed

        24          that the accused had taken the ambulance, without

        25          permission, in Inuvik.  He had driven to Aklavik,

        26          which is an approximately one-and-a-half-hour

        27          drive and stopped at the Northern Store in






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         1          Aklavik to buy cigarettes, and when he left, got

         2          the vehicle stuck in the ditch in the snow.

         3               The accused was initially released on these

         4          charges but failed to appear on his court date of

         5          June 6th, 2012.  He was arrested on a warrant

         6          that same day.  Mr. Bernhardt subsequently

         7          consented to his remand, reserving his right to

         8          show cause.  He has been in custody since then

         9          some 195 days.

        10               Impaired driving pursuant to Section

        11          253(1)(a) of the Criminal Code is punishable when

        12          the Crown proceeds by indictment by a maximum of

        13          five years' imprisonment.  Possession of property

        14          obtained by crime pursuant to Section 355 when

        15          the value exceeds $5,000 is punishable by up to

        16          ten years' imprisonment.  There is also a

        17          mandatory driving prohibition.

        18               In this case, there is a joint submission of

        19          three years' imprisonment less credit for remand

        20          time and a lifetime driving prohibition.

        21               Mr. Bernhardt is 48 years old and he has a

        22          significant record of driving while under the

        23          influence of alcohol.  This record goes back

        24          almost 30 years to 1983 where he was convicted of

        25          driving while impaired and received an $800 fine.

        26          He was also convicted of dangerous driving at the

        27          same time.  Since then, he has accumulated eight






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         1          more drinking and driving convictions.  In 1991,

         2          he was convicted of driving with more than 80

         3          milligrams of alcohol in his blood and received

         4          60 days of jail intermittent.  In 1991, he was

         5          again convicted of the same offence.  He received

         6          a fine this time.  1991 again, he received

         7          another conviction and received 21 days in

         8          custody.

         9               The next entry on his criminal record for

        10          drinking and driving is in 1993.  At that time,

        11          he received five months' imprisonment.  In 1996,

        12          he received a sentence of a year.  In 1999, he

        13          received a sentence of a year.  In 2001, he

        14          received a sentence of 18 months.  In 2010, he

        15          received a sentence of two years less six months'

        16          credit.  All along with this, he has been

        17          receiving driving prohibitions which have

        18          gradually increased so that he is now currently

        19          on a ten-year driving prohibition.

        20               In addition to these convictions, he also

        21          has nine convictions for driving while

        22          disqualified, and, as well, there are numerous

        23          convictions for other offences against the

        24          administration of justice.  He has a prior

        25          conviction for taking a motor vehicle without

        26          consent and, also, for theft.

        27               As noted in his criminal record with respect






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         1          to the drinking and driving convictions, he has

         2          receive sentences of increasing terms of

         3          imprisonment, culminating in his most recent

         4          conviction in November 2010, which I have

         5          referred to.

         6               Mr. Bernhardt's extensive, related criminal

         7          record is the most aggravating feature of this

         8          case.  It is also aggravating that Mr. Bernhardt

         9          was under a ten-year driving prohibition at the

        10          time of this offence, and it is aggravating that

        11          this offence occurred approximately four months

        12          after his release from his last conviction which

        13          was for the same offence.

        14               The Supreme Court of Canada, in the cases of

        15          Gladue and Ipeelee, require courts to consider

        16          the circumstances of aboriginal persons in

        17          passing sentence.  I take judicial notice, as I

        18          am required to, of systemic factors that have

        19          unfortunately caused many aboriginal people to

        20          become involved with the criminal justice system.

        21          Mr. Bernhardt's counsel advises that he is of

        22          Inuvialuit descent, that he attended residential

        23          school, and was both a witness to and a victim of

        24          abuse at residential school and at home.  I am

        25          well aware of the devastating impact that

        26          residential schools have on aboriginal people,

        27          their families and their lives.  The impact is a






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         1          long-lasting one and can take years to deal with.

         2               This is not a situation where either counsel

         3          is suggesting that sanctions other than

         4          imprisonment could adequately achieve the

         5          objectives of sentencing.  So having regard to

         6          these considerations, I have not been presented

         7          with any other options besides imprisonment.

         8          Certainly, given Mr. Bernhardt's record,

         9          sanctions other than imprisonment would not give

        10          proper effect to the other sentencing principles.

        11               Turning to those other sentencing

        12          principles, protection of the public must be the

        13          primary consideration in this situation.

        14          Mr. Bernhardt, I do not know that I can say

        15          anything that has not been said to you before.

        16          You have heard what I am about to say before and

        17          likely many times.  It does not seem to have an

        18          impact.  You continue to drive while impaired,

        19          putting the safety of the public at risk.  The

        20          people of Aklavik, Inuvik, Yellowknife, all the

        21          places where you have consumed alcohol and then

        22          got behind the wheel of a vehicle, the people of

        23          those communities -- of all the communities in

        24          the North, really, they need to have protection

        25          from you and people like you.  You put their

        26          lives at risk every time you do this, and you

        27          probably say, "Yeah, yeah, I know.  I won't do it






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         1          again," but you continue to do it.  The reality

         2          is that drinking and driving places innocent

         3          people at risk and every year there continue to

         4          be accidents, injuries, and deaths across Canada

         5          because of actions of people like yourself who

         6          drink and drive.

         7               Another sentencing principle that I need to

         8          consider is deterrence, deterrence of

         9          Mr. Bernhardt and others like him who drive when

        10          they have been drinking.

        11               Now, Mr. Bernhardt, I do not know when or if

        12          the message will get through to you that you

        13          should not be doing this, but I do know that the

        14          sentences will continue to get longer and longer

        15          until you make a change to your behaviour.  You

        16          are 48 years old.  It is time for you to start

        17          making that change.

        18               Denunciation is another important principle;

        19          that is, expressing society's condemnation of an

        20          unlawful conduct and of drinking and driving in

        21          particular.

        22               Proportionality is another principle that I

        23          must consider.  The sentence must be

        24          proportionate to the gravity of the offence and

        25          to Mr. Bernhardt's degree of responsibility.  The

        26          ongoing pattern of driving over almost 30 years

        27          demonstrates the seriousness of the offence.






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         1          Mr. Bernhardt has been told repeatedly about the

         2          risks of this behaviour.  He has received

         3          increasing sentences, but these have had no

         4          effect.  He continues to persist in this type of

         5          behaviour.  So his level of responsibility is

         6          high.

         7               Mr. Bernhardt has recently begun to address

         8          his issues with alcohol and, while this is a

         9          recent effort, he is to be commended for that.

        10          You should continue to pursue alcohol treatment.

        11          So far it has not been successful, as evidenced

        12          by your latest conviction, and that is

        13          unfortunate, but right now that is not my primary

        14          concern.  Alcoholism is a disease, and you may be

        15          unable to stop drinking right now, but driving

        16          while drunk is not, and you have the ability

        17          within you to change that behaviour.

        18               Other aggravating factors are the

        19          circumstances of the offence.  The accused was

        20          driving on a Saturday, in the afternoon, on the

        21          highway from Inuvik to Aklavik, which is a

        22          somewhat a lengthy drive, through Aklavik to the

        23          Northern Store, finally getting stuck in the

        24          ditch in full view of nearby houses.  As I

        25          mentioned earlier, the potential for tragedy is

        26          heightened every minute you were behind the wheel

        27          of that vehicle.






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         1               There are also mitigating factors.  The most

         2          significant one is that Mr. Bernhardt has taken

         3          responsibility and pled guilty.  You waived your

         4          preliminary inquiry and made arrangements to

         5          re-elect and plead guilty today.  You have

         6          avoided the time and expense associated with a

         7          jury trial.  So far in this case, no witnesses

         8          have had to testify either at a preliminary

         9          inquiry or at a trial.  So Mr. Bernhardt should

        10          get full credit for his guilty plea.

        11               In all the circumstances, it is necessary

        12          that a substantial period of incarceration be

        13          imposed as well as a lengthy driving prohibition.

        14          The joint submission is for three years'

        15          imprisonment and a lifetime driving prohibition.

        16          In the circumstances, taking into account

        17          Mr. Bernhardt's criminal record, his prior

        18          convictions for related offences, and the offence

        19          that is before the Court, I think that this is a

        20          reasonable sentence.

        21               With respect to credit for pre-trial

        22          custody, the accused has been in custody for 195

        23          days or six months and a little over a week.

        24          Mr. Bernhardt seeks enhanced credit of one and a

        25          half to one on the basis that he has been unable

        26          to take programs and was a well-behaved prisoner.

        27          The Crown takes no position on the credit for






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         1          remand time.  This is not a situation where the

         2          accused has been detained because of his record.

         3          He has been on consent remand since being

         4          arrested on the warrant of June 6, 2012.

         5               The information provided by Mr. Hansen, on

         6          behalf of Mr. Bernhardt, indicates that he spoke

         7          to a Mr. Baisi who works at the North Slave

         8          Correctional Centre and is familiar with the

         9          accused.  Mr. Baisi reports that Mr. Bernhardt

        10          had been unable to take any programs while on

        11          remand because priority had been given to serving

        12          prisoners and there was no room available for him

        13          on the programs.  He also reports that

        14          Mr. Bernhardt has been well behaved and a good

        15          prisoner and there is no record of any management

        16          problems with respect to Mr. Bernhardt.  From

        17          this, I can conclude that he would have earned

        18          remission if he had been a served prisoner.  The

        19          Crown does not dispute the information provided

        20          by Mr. Hansen.  In the circumstances, I am

        21          satisfied Mr. Bernhardt should receive credit in

        22          excess of the one-to-one mandated in Section

        23          719(3) of the Code.  Therefore, Mr. Bernhardt

        24          will receive credit of nine months for his

        25          pre-trial custody.

        26               Mr. Bernhardt, if you could please stand.

        27          On the charge of impaired driving, contrary to






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         1          Section 253(1)(a), it is the sentence of this

         2          court that you be imprisoned for a period of

         3          three years.  I give you credit of nine months'

         4          imprisonment for your time in remand; therefore,

         5          your remaining sentence is two years and three

         6          months.  For the offence of possession of

         7          property obtained by crime, pursuant to Section

         8          355, the sentence is also three years'

         9          imprisonment to be served concurrently.  Again, I

        10          give you credit of nine months for the time spent

        11          in remand.  Your remaining sentence is two years,

        12          three months.  Again, concurrent.  For the

        13          impaired driving, there will also be a driving

        14          prohibition.  It will be a lifetime prohibition.

        15          Given your history, I do not think it would ever

        16          be safe for you to operate a motor vehicle.  The

        17          risk to the public is simply too high.  You may

        18          sit down, Mr. Bernhardt.

        19               Given the sentence I have imposed, I am

        20          waiving the victim of crime surcharge.

        21               Is there anything else that I need to

        22          address, Counsel?

        23      MS. MILLER:            No thank you, Your Honour.

        24      MR. HANSEN:            Nothing that occurs to me.

        25      THE COURT:             All right.  Thank you for your

        26          submissions, Counsel, and good luck to you,

        27          Mr. Bernhardt.






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