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Abstract: Transcript of the Reasons for Sentence
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R. v. Kaotalok, 2013 NWTSC 36 S-1-CR2011000134 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - BOBBY KAOTALOK ________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice L. A. Charbonneau, at Yellowknife in the Northwest Territories, on April 22nd A.D., 2013. _________________________________________________________ APPEARANCES: Mr. K. Onsykevitch: Counsel for the Crown Mr. T. Boyd: Counsel for the Accused ---------------------------------------- An order has been made banning publication of the identity of the Complainant/Witness pursuant to Section 486.4 of the Criminal Code of Canada or disclosing any information which could reveal the identity of the Complainant/Witness identified in the charge under Section 271 of the Criminal Code Official Court Reporters 1 THE COURT: Before I give my reasons for 2 sentence on this matter, I just want to remind 3 everyone that there is in place an order that 4 is prohibiting the publication or broadcast of 5 any information that could identify either of 6 the complainants in this case. 7 Today it is my responsibility to impose a 8 sentence on Bobby Kaotalok for two charges of 9 aggravated sexual assault. Mr. Kaotalok 10 entered guilty pleas to those charges back on 11 February 4th, 2013, the date on which his 12 trial was scheduled to commence. Sentencing 13 was adjourned to allow time for the 14 preparation of a pre-sentence report. The 15 sentencing hearing proceeded a few weeks ago, 16 on March 27th. That day I heard about the 17 facts underlying the offences, and submissions 18 from Crown and defence as to what sentence 19 should be imposed for these crimes. I decided 20 to adjourn my decision to today's date in 21 order to have sufficient time to review the 22 exhibits and the case law that was filed at 23 the hearing and also to consider the very 24 thorough submissions that were presented by 25 both counsel, as well as the comments that 26 Mr. Kaotalok himself made to the Court when he 27 was given the chance to speak. I have now had Official Court Reporters 1 1 an opportunity to review all of the that, and 2 have come to a decision. 3 As is often said, sentencing is a 4 difficult task, one of the most difficult 5 tasks for Judges, because it requires 6 balancing a number of factors, often competing 7 ones. 8 Sentences are supposed to express 9 society's disapproval of criminal conduct and 10 reflect the harm that that conduct causes to 11 victims and to the community. They are 12 supposed to discourage the offenders and other 13 people from committing crimes. They are also 14 supposed to attempt to foster the 15 rehabilitation of the offender because if that 16 can be achieved, it is probably the best way 17 to protect the public. Not surprisingly, all 18 of these objectives often do not point in the 19 same direction as far as what the sentence 20 should be and that is what makes sentencing 21 such a difficult task. 22 Every time that the Court imposes a 23 sentence, it has to take into account the 24 circumstances of the person who is being 25 sentenced, the circumstances of the offence 26 that this person committed, and the principles 27 of sentencing that are set out in the Criminal Official Court Reporters 2 1 Code. Sentencing involves the exercise of 2 considerable discretion but in exercising that 3 discretion, courts have to follow the legal 4 framework that is provided for in the Criminal 5 Code and how that framework has been 6 interpreted by the higher courts. 7 I will start by summarizing the 8 circumstances of these offences. They are set 9 out in detail in an agreed statement of facts 10 that was filed as an exhibit at the sentencing 11 hearing, and they were read into the record at 12 that time. I am not going to read that 13 document again today in its entirety but I 14 will simply summarize its main points. 15 Mr. Kaotalok is believed to have been 16 infected by the Human Immunodeficency Virus 17 (HIV) when he was born. He was diagnosed when 18 he was seven years old and he has been under 19 medical treatment for this medical condition 20 essentially his whole life. 21 The agreed statement of facts explains in 22 some detail what HIV is, how it is treated, 23 and what factors affect the risk of its 24 transmission to another person. For the 25 purposes of my decision today, I will not go 26 over all of that technical medical information 27 in detail. It is part of the record and it is Official Court Reporters 3 1 available to anyone who may want to refer to 2 it. The things that I want to underscore for 3 my purposes today are the following: 4 The HIV virus is able to establish a 5 lifelong infection in immunologic cells. Once 6 infection is established, these cells are 7 slowly destroyed ultimately making the 8 infected person's immune system weaker and 9 weaker which leaves the person more 10 susceptible to infection. In an advanced 11 stage it is called Acquired Immune Deficiency 12 Syndrome, commonly referred to as AIDS. 13 Mr. Kaotalok's medical condition with 14 respect to his HIV infection varied over the 15 years. There were periods of time where he 16 adhered to his medical treatment and others 17 where he did would not. When he did not 18 adhere to it, his medical condition (the state 19 of advancement of his infection) got worse. 20 This in turn has an impact on the risk of 21 transmission of the disease to others. 22 During the period of time where these 23 offences were committed, Mr. Kaotalok's 24 condition was such that he presented a higher 25 risk for transmission of HIV. 26 The first complainant L.F. was born in May 27 1992. She was 17 when the offence occurred. Official Court Reporters 4 1 She had met Mr. Kaotalok in Yellowknife in 2 2009 and they had become friends. They 3 periodically spent time together, sometimes 4 alone and sometimes with other friends. On 5 one of those occasions, in the fall of 2009 or 6 early winter 2010, they were walking around 7 together in Yellowknife. They were both 8 sober. They decided to go to Mr. Kaotalok's 9 place of residence, which at the time was a 10 room at Bailey House. Bailey House is a 11 transition home for men. There, they had 12 sexual intercourse. Mr. Kaotalok used a 13 condom. L.F. did not know that he was HIV 14 positive and he did not tell her. Had she 15 known that, she would not have consented to 16 the sexual activity. 17 It is admitted that at the time that this 18 happened, there was a realistic possibility of 19 transmission of the HIV virus from him to her. 20 To date, however, she has not been diagnosed 21 with HIV. 22 The second complainant J.E. was born in 23 May 1991. She was 19 at the time she had 24 sexual contact with Mr. Kaotalok. She too had 25 met him in Yellowknife and had become friends 26 with him. They periodically spent time 27 together as part of a larger group of friends Official Court Reporters 5 1 and acquaintances. 2 One night she, Mr. Kaotalok, and other 3 friends, spent an evening drinking at a local 4 bar. J.E. and Mr. Kaotalok both were 5 intoxicated by the time they left the bar at 6 closing time. J.E. went to a friend's 7 apartment and continued drinking there. She 8 then went to a neighbouring apartment to see 9 Mr. Kaotalok. There, they continued drinking 10 together. The agreed facts say that she was 11 significantly intoxicated and experienced 12 blackouts that night. It is admitted that she 13 and Mr. Kaotalok had sexual intercourse at 14 some point that night. Neither of them 15 remembers if a condom was used. 16 I pause here to note that in law, a person 17 who is highly intoxicated may, in some 18 instances, not have the capacity to consent to 19 sexual activity. In those circumstances any 20 so-called consent that is given is not valid. 21 We see a fair number of cases like that in our 22 courts. Given the alleged facts here, at the 23 sentencing hearing, I sought clarification on 24 this point from the Crown and the Crown 25 confirmed that the basis for this prosecution 26 is not that the complainant was too 27 intoxicated to be capable in law to give Official Court Reporters 6 1 consent to sexual activity. The basis for the 2 prosecution is the same as it is on the charge 3 involving the other complainant; that is, J.E. 4 did not know that Mr. Kaotalok was HIV 5 positive, that he did not tell her, and that 6 she would not have consented to sexual 7 activity with him had he disclosed his medical 8 condition to her. 9 Mr. Kaotalok also acknowledges with 10 respect to this count that at the time that he 11 had intercourse with J.E. there was a 12 realistic possibility of transmission of HIV 13 from him to her. To date, she has not been 14 diagnosed with HIV. 15 The Crown confirmed that both complainants 16 were advised of their right to prepare a 17 victim impact statement. No such statement 18 has been filed by either of them. 19 I have to pause here again to note 20 something about the pre-sentence report. It 21 is a very thorough report in most respects but 22 I am concerned about one aspect of it. 23 For many years it has been a standard 24 practice in the preparation of these types of 25 reports in this jurisdiction for the person 26 preparing the report to contact the victims of 27 the crime and see whether they want to make Official Court Reporters 7 1 any contributions to the report. There is 2 even a special heading in the pre-sentence 3 reports we see that is called "interview with 4 victims". It is an important aspect of the 5 pre-sentence report because it is one of the 6 ways whereby the victims' views about the 7 offence and the impact it had on them can be 8 conveyed to the Court. It is not the only 9 way, but it is one of the ways. 10 In this report, under that heading on page 11 9, the author states that because of the 12 publication ban that prevents the publication 13 and broadcast of the identity of the victims 14 in this case, they were not contacted. 15 This shows a lack of understanding of the 16 scope and effect of a publication ban. There 17 are almost always things in court records that 18 identify victims. More often than not the 19 Indictment does. Usually the agreed statement 20 of facts does. If photographs were filed they 21 also do. If medical records are filed they 22 also do. And often the pre-sentence reports 23 do. Preparing and filing documents to be used 24 as part of a sentencing hearing does not 25 offend a publication ban. What is prohibited 26 is for anyone to publish or broadcast 27 information that could identify the victims. Official Court Reporters 8 1 So the existence of a publication ban is not a 2 bar to contacting victims as part of the 3 preparation of the pre-sentence report to see 4 if they want to contribute anything to it. It 5 is not a bar to reporting the victim's views 6 of the offence in the report itself. The 7 victims have no obligation to participate and 8 should never be pressured to do so, but they 9 should always be given an opportunity to do 10 so. Some victims choose not to prepare a 11 victim impact statement but may be prepared to 12 speak with the person preparing a pre-sentence 13 report who takes the step of contacting them. 14 Everyone is different. Sitting down and 15 writing a victim impact statement is different 16 from having a conversation with someone. So I 17 strongly suggest that the Crown raise this 18 issue with responsible officials to clarify if 19 there is a misunderstanding about this. If 20 there is any concern on the part of the 21 government officials on this point, then it 22 should be brought to the attention of the 23 Court when these reports are ordered because 24 it would be easy enough for the Court to make 25 it clear when it orders the preparation of a 26 pre-sentence report to state that it will not 27 be a breach of the publication ban for the Official Court Reporters 9 1 victims to be contacted and for their views to 2 be reflected in the report. 3 That issue aside, the pre-sentence report 4 that was prepared in this case is very helpful 5 in providing information about Mr. Kaotalok's 6 personal circumstances to which I now turn. 7 I also have had the benefit of the 8 submissions of his counsel and of the comments 9 that Mr. Kaotalok himself made at the 10 conclusion of the sentencing hearing. As I 11 have said, when he was given an opportunity to 12 speak he spoke at length about his 13 circumstances, the struggles that he has 14 faced, and how he contemplates the future. 15 I have given careful consideration to 16 everything that I have heard about 17 Mr. Kaotalok's personal circumstances. I will 18 refer to and emphasize some aspects here, but 19 I want to make it clear that I have considered 20 all of the information that was presented 21 whether I refer to a specific detail or not. 22 Mr. Kaotalok is of Inuit descent. He was 23 born in 1985 and is now 27 years old. His 24 family resided at an outpost camp that was 25 located in Nunavut between Bathurst Inlet and 26 Bay Chimo. The family had a house in Bay 27 Chimo but led a traditional lifestyle, Official Court Reporters 10 1 spending a lot of time at the outpost camp, 2 sometimes years at a time. 3 Aspects of his childhood years at the 4 outpost camp were happy but unfortunately also 5 involved a number of sad and tragic things. 6 The first of course is the fact that he was 7 infected with the HIV virus at birth. When he 8 was six, his mother passed away. He explained 9 to the author of the pre-sentence report that 10 he believes that his mother and himself both 11 were infected with the virus when his mother 12 had to have a transfusion when Mr. Kaotalok 13 was born and ultimately, that is what she died 14 from. 15 For the next few years after his mother 16 died, Mr. Kaotalok was raised by his father, 17 still at the outpost camp. But when he was 18 eight, his father drowned following an 19 accident that happened when several family 20 members, including Mr. Kaotalok, had been 21 traveling in a canoe. Mr. Kaotalok almost 22 drowned himself that day but he was saved by 23 his brother. From that point on, Mr. Kaotalok 24 was raised by his grandmother. He was fond of 25 her and she taught him a lot. But she too 26 passed away a few years later. Mr. Kaotalok 27 and his brother were then placed in the care Official Court Reporters 11 1 of an aunt and that did not end up being a 2 good situation for them. The aunt began 3 abusing alcohol and was physically and 4 mentally abusive to both of them, both when 5 she was intoxicated and when she was not. 6 Mr. Kaotalok stayed at the outpost camp 7 until he moved to Cambridge Bay to go to 8 school. After a few years he moved to Hay 9 River to live with an aunt and uncle. At that 10 point he had nowhere to go and the alternative 11 would have been placement in foster care so 12 his aunt and uncle took him in. The move to 13 Hay River meant being reunited with his 14 siblings because his sister had been adopted 15 by the same aunt and uncle and from time to 16 time his brother traveled to Hay River to 17 spend time there as well. 18 Mr. Kaotalok lived in Hay River from 1997 19 to 2005. After moving there, he was required 20 to attend school and there was structure in 21 the home. He was able to secure various jobs 22 in the community but he had behavioural issues 23 and ultimately this led to his aunt and uncle 24 asking him to leave. 25 After that, he stayed with friends and 26 relocated to various communities. By then he 27 had started consuming alcohol and drugs and Official Court Reporters 12 1 his use of alcohol and drugs increased 2 particularly after he moved to Behchokò. 3 In 2005, Mr. Kaotalok had a serious car 4 accident after falling asleep while driving 5 and in that accident he lost an arm. 6 While he was in Behchokò, he developed a 7 romantic relationship with a woman and that 8 relationship appears to have continued over 9 the years despite the fact that Mr. Kaotalok, 10 especially in recent years, has spent a 11 considerable amount of time in jail. This 12 woman is still supportive of him and he spoke 13 about her and this relationship when he spoke 14 to the Court. This seems to have remained a 15 significant relationship for him. 16 Mr. Kaotalok relocated to Yellowknife in 17 2006 on the advice of his doctor who was 18 concerned about the fact that he was not 19 taking his medication. Since his move to 20 Yellowknife, unfortunately he seems to have 21 frequented people who, like him, abuse drugs 22 and alcohol, have no employment, and lead a 23 fairly destructive lifestyle. His consumption 24 of alcohol escalated and he was convicted of 25 numerous property crimes committed to acquire 26 money to sustain his drug and alcohol habits. 27 The author of the report, who has been Official Court Reporters 13 1 Mr. Kaotalok's probation officer since 2006, 2 writes that Mr. Kaotalok "has become embedded 3 in this negative lifestyle and has been since 4 his teenage years". 5 This unfortunate fact is reflected in 6 Mr. Kaotalok's criminal record. As his own 7 counsel put it, his life has been in a 8 downward spiral since 2006. Since that time 9 he has been in and out of jail, and more often 10 in than out. He has accumulated a steady 11 pattern of convictions for various offences 12 and has received jail term after jail term. 13 Since April 2006, the longest period of time 14 that he has spent out of custody was just over 15 four months. That, on its own, says a lot 16 about the pattern that he has been stuck in. 17 According to the pre-sentence report, 18 Mr. Kaotalok has not consistently sought help 19 to deal with his addiction and other issues 20 when he has been out of custody. Anything 21 that he has done in this regard has been 22 sporadic and inconsistent. It seems that 23 while in custody, particularly during this 24 last period of two years he has spent on 25 remand, Mr. Kaotalok has engaged more actively 26 in support services available to him - he has 27 met with the jail psychologist at various Official Court Reporters 14 1 points in time, he has attended AA meetings, 2 he has completed the Healing Drum program 3 "Embracing our Human Nest", he has completed 4 two life skills modules that are done by 5 completing workbooks. 6 Mr. Kaotalok has told the author of the 7 pre-sentence report that for a period of about 8 a year he used crack cocaine and was addicted 9 to it. He also said he stopped using crack on 10 his own because he recognized how destructive 11 it was. The Court often hears about how 12 difficult it is to beat that addiction; if 13 Mr. Kaotalok was addicted to crack cocaine, 14 and if he beat that addiction on his own, it 15 certainly says something about his ability 16 when he sets his mind to doing something. It 17 means that he can show inner strength and 18 personal power. 19 He has expressed to the author of the 20 report that he also recognizes that alcohol 21 and other drugs are destructive for him and he 22 wants to stop using them as well. It is 23 obvious to the Court, and would be to anyone 24 reviewing the materials filed on this case, 25 that unless and until Mr. Kaotalok gets 26 alcohol and other intoxicating substances out 27 of his life, his chances for rehabilitation Official Court Reporters 15 1 are slim to none. And irrespective of the 2 sentence that I impose today, that step will 3 be up to him because one way or another he 4 will eventually be released and he will once 5 again be free to make choices in this regard, 6 as well as many others. 7 As I have already said, when Mr. Kaotalok 8 addressed the Court at the conclusion of his 9 sentencing hearing on March 27th he spoke at 10 length. He was quite articulate. He comes 11 across as a bright person capable of insight. 12 He has at times gone to school and been able 13 to work so it is obvious that he has 14 capabilities and skill. He has shown 15 resilience at some points in his life. It 16 seems to me that there are reasons to think 17 that Mr. Kaotalok does have the capacity and 18 the skills to make the changes that he needs 19 to make but there is no question he is the 20 only one who can do this. This Court cannot 21 make him do it; doctors cannot make him do it; 22 no one else can make him do it. 23 I did note that Mr. Kaotalok told the 24 author of the pre-sentence report that he 25 expects to die from the HIV virus within the 26 next few years and that he is more or less 27 resigned to that fact. Maybe a part of Official Court Reporters 16 1 Mr. Kaotalok's failure to take real steps to 2 make real changes in his life until now has 3 been in part based on that belief and that 4 feeling of being doomed no matter what. The 5 Court obviously has no medical expertise but I 6 will just say this: 7 From what is set out in the agreed 8 statement of facts, it appears that when he 9 strictly followed his medical regimen, his 10 viral load became very low, which is another 11 way to say that the medication did help to 12 control the progression of this disease. It 13 is also clear from the agreed statement of 14 facts, that compliance, strict compliance with 15 the medical treatment that he is under, is 16 crucial to stabilizing his condition and 17 improving his prognosis. So in many ways, and 18 to that extent, his treatment is in his hands. 19 To the extent that the life and 20 circumstances of a person can be summarized in 21 a few minutes, that is my understanding of 22 Mr. Kaotalok's personal circumstances as they 23 were presented at the sentencing hearing and 24 must all be taken into account in deciding 25 what sentence should be imposed today. 26 I now turn to the principles of 27 sentencing. I will deal with the principles Official Court Reporters 17 1 of sentencing in two parts - first, sentencing 2 principles generally; and second, sentencing 3 principles that apply to this particular of 4 offence. 5 The general principles of sentencing are 6 all set out in the Criminal Code. I am not 7 going to read them all, I have considered them 8 all, but I will simply refer to the 9 fundamental purpose of sentencing because it 10 is always a good place to start when examining 11 the question of what is a fit sentence for any 12 given crime. 13 That is set out in Section 718 of the 14 Criminal Code which says, 15 The fundamental purpose of 16 sentencing is to contribute, along 17 with crime prevention initiatives, 18 to respect for the law and a 19 maintenance of a just, peaceful 20 and safe society by imposing just 21 sanctions that have one or more of 22 the following objectives: 23 (a) to denounce unlawful conduct; 24 (b) to deter the offender and 25 other persons from committing 26 offences; 27 (c) to separate offenders from Official Court Reporters 18 1 society, where necessary; 2 (d) to assist in rehabilitating 3 offenders; 4 (e) to provide reparations for 5 harm done to victims or to the 6 community, and 7 (f) to promote a sense of 8 responsibility in offenders, and 9 acknowledgment of the harm done to 10 victims and to the community. 11 So to achieve these objectives, the Code 12 sets out several sentencing principles. 13 The fundamental sentencing principle is 14 proportionality. A sentence should be 15 proportionate to the seriousness of the 16 offence and to the level of responsibility or 17 blameworthiness of the offender. 18 The Criminal Code lists a number of other 19 principles, the most significant ones to this 20 case, the most relevant ones, are, first of 21 all, parity, which means that similar offences 22 committed by similar offenders should result 23 in similar sentences being imposed. That is a 24 matter of simple fairness. 25 Another important principle that is 26 engaged here is totality. Where the Court 27 sentences a person for more than one offence Official Court Reporters 19 1 and imposes consecutive sentences, the Court 2 has to make sure that the global effect of all 3 of the sentences is not unduly harsh. And 4 that is important. 5 Restraint is a very important sentencing 6 principle. It means that when jail can be 7 avoided, it should be. And when jail has to 8 be imposed, it should never be a longer jail 9 term than is necessary to achieve the goals of 10 sentencing. Sentencing is not and should 11 never be about exacting a price for conduct or 12 effecting revenge. 13 The principle of restraint takes on 14 particular significance when dealing with 15 aboriginal offenders because paragraph 16 718.2(e) of the Criminal Code says 17 All available sanctions other than 18 imprisonment that are reasonable 19 in the circumstances should be 20 considered for all offenders, with 21 particular attention to the 22 circumstances of aboriginal 23 offenders. 24 There has been much debate about what this 25 provision meant when it first came into force, 26 and I must now take a moment to explain what 27 the Supreme Court of Canada has said it means, Official Court Reporters 20 1 which is, of course, binding on me as a 2 sentencing Judge. 3 Two decisions from the Supreme Court, 4 R. v. Gladue, [1999] 1 S.C.R. 688 and 5 R. v. Ipeelee, 2012 SCC 13, have explained the 6 special considerations that are engaged when a 7 sentencing Court is determining the sentence 8 to be imposed on an aboriginal offender. I am 9 not going to quote from those cases but I will 10 refer to the main points that emerge from 11 those decisions. 12 First, this provision is a remedial 13 provision that was designed to address the 14 overrepresentation of aboriginal people in 15 Canadian jails. That means that when 16 sentencing an aboriginal offender, Courts are 17 required to take into account the unique 18 systemic and background factors that may have 19 played a part in bringing the offender before 20 the Court; and also, to consider what 21 sentencing procedures and sanctions may be 22 appropriate to the offender in light of his or 23 her aboriginal heritage. Sentencing Courts 24 are directed to take judicial notice of broad 25 systemic factors, background factors, that 26 affect aboriginal people generally. 27 For example, Courts are required to take Official Court Reporters 21 1 judicial notice of the history of colonialism, 2 displacement, residential schools, and how 3 these have often translated in lower 4 educational attainment, lower income, higher 5 unemployment rates, high rates of substance 6 abuse and suicide, and high levels of 7 incarceration for aboriginal people. I have 8 taken judicial notice of these factors which 9 are also things that we commonly hear about in 10 this jurisdiction in the day-to-day work of 11 the Courts. 12 I am also required to take into account, 13 and I have, case-specific information about 14 Mr. Kaotalok as it has been conveyed in the 15 pre-sentence report, the submissions of his 16 counsel, and the comments that he made to the 17 Court himself. 18 It is clear that he was raised initially 19 in a very traditional lifestyle. He lost his 20 parents at a young age. Because he lived for 21 many years at the outpost camp, it is not 22 difficult to imagine it would have been quite 23 a change to relocate to Cambridge Bay to 24 attend school, particularly without family 25 supports in place. He was fortunate to be 26 taken in by his aunt and uncle in Hay River 27 but there is little doubt that the behavioral Official Court Reporters 22 1 issues that he displayed there and the 2 unhealthy relationships that he developed with 3 alcohol and drugs was partly related to the 4 numerous losses that he experienced early in 5 life, the abuse that he suffered when he was 6 under of the care of his other aunt, having to 7 relocate to go to school and live in a place 8 where he had no connections, not to mention 9 having to live basically from the start of his 10 life with the knowledge that he had this very 11 serious disease. Not all of these things are 12 necessarily connected to the fact that he is 13 an aboriginal man but some of them certainly 14 are. 15 What the Supreme Court of Canada 16 jurisprudence says, among other things, is 17 that Courts have to consider to what extent 18 these types of factors have an impact or 19 should have an impact on the sentence to be 20 imposed. One way of understanding it is to 21 say that the question is whether those factors 22 have an impact on the offender's 23 blameworthiness which, in turn, has an impact 24 on the application of the proportionality 25 principle. 26 I have gone to some lengths here to make 27 it clear, I hope, that in considering my Official Court Reporters 23 1 decision in this case I have been mindful of 2 the duty that rests on me to take 3 Mr. Kaotalok's aboriginal heritage into 4 account, both the matters that I am required 5 to take judicial notice of and the 6 case-specific information that has been 7 presented at the sentencing hearing. The 8 question in this case is not whether jail is 9 required, (Mr. Kaotalok's counsel acknowledges 10 that it is), the issue really is how long that 11 jail term should be. In arriving at that 12 decision, I have considered the impact that 13 Mr. Kaotalok's unique circumstances and the 14 circumstances have had on his level of 15 blameworthiness. 16 I turn now to the sentencing principles 17 that apply more specifically to this type of 18 case. 19 Aggravated sexual assault is an 20 objectively very serious criminal offence. 21 That is reflected in the fact that it is 22 punishable by life imprisonment. But it is 23 also an offence that covers a wide wide range 24 of possibilities as far as the behaviour that 25 qualifies under that section. 26 The particular type of aggravated sexual 27 assault charge that I am dealing with here Official Court Reporters 24 1 today, I think it is fair to say, is really in 2 a category of its own. It does not involve a 3 person forcing himself on his victims, 4 overpowering them, overtly causing physical 5 injuries during the commission of the act as a 6 result of violence used during the course of 7 the act. That is the type of scenario that we 8 more naturally think of when we hear about 9 aggravated sexual assaults. This, however, is 10 a very different type of aggravated sexual 11 assault. It involves deceitfully obtaining 12 the consent of another person in being 13 involved in a very personal and intimate 14 activity, one of the most personal and 15 intimate activities that a person can engage 16 in. 17 Mr. Kaotalok knowingly exposed L.F. and 18 J.E. to potentially lethal consequences and 19 took away their right to choose whether they 20 would engage in sexual contact with him, 21 despite that risk, and he did this for his own 22 sexual gratification. I agree with the 23 submission that was made by Crown counsel at 24 the sentencing hearing. He showed callous 25 indifference and ruthless disregard for their 26 well-being. 27 To my knowledge, this is the first time Official Court Reporters 25 1 that a Court in this jurisdiction has had to 2 deal with this type of offence. This does not 3 mean that the Court should make an example of 4 Mr. Kaotalok and impose a sentence on him that 5 would be unduly harsh. But it does mean that 6 the Court has to ensure that the decision that 7 it makes addresses the goals of sentencing and 8 makes it clear to everyone in this 9 jurisdiction what the consequences are for 10 this type of conduct. 11 Courts in other jurisdictions have dealt 12 with this kind of case before and I take much 13 guidance from the principles that have been 14 developed by those Courts. The cases from the 15 other jurisdictions are not binding on me of 16 course, but they are helpful for many reasons. 17 They assist in identifying which sentencing 18 principles have been found to be paramount in 19 these types of cases. They assist in 20 identifying the range of sentences that have 21 been found to be appropriate. And they assist 22 in fleshing out the factors that have been 23 considered to make a matter more serious or 24 less serious bearing in mind that to start 25 with it is serious conduct. 26 I am now going to spend a few minutes 27 talking about the broad principles that I Official Court Reporters 26 1 think emerge from the various cases that have 2 been filed with the Court. I have considered 3 R. v. Cuerrier, [1998] 2 S.C.R. 371; 4 R. v. Thomas, 2012 ONSC 1201; R. v. A.T.R., 5 2011 BCPC 283; R. v. Tippeneskum, 2011 ONCJ 6 219; R. v. Felix, 2010 ONCJ 654; 7 R. v. Nduwayo, 2010 BCSC 1467; 8 R. v. McGregor, 2008 ONCA 831; R. v. J.M.L., 9 2007 BCPC 341; R. v. Smith, [2007] S.J. No. 10 150; R. v. Walkem, [2007] O.J. No. 186; 11 R. v. Williams, 2006 ONCJ 484; R. v. 12 Lamirande, 2006 MCBCA 71; R. v. Smith, 2004 13 BCCA 657; and R. v. Miron, [2000] M.J. No. 500. 14 A useful starting point comes from 15 R. v. Cuerrier, a Supreme Court of Canada 16 decision dealing with this type of offence. 17 It is a reminder of the role the criminal 18 courts have in addressing this issue. I say 19 this because there is an obvious public health 20 dimension to issues surrounding HIV and AIDS 21 but that does not mean that the courts do not 22 have an important role when they are called 23 upon to impose sentences in the context that I 24 am facing today. 25 Cuerrier dates back 1998, but some of the 26 things that the Supreme Court said that in 27 case, I think remain very relevant: Official Court Reporters 27 1 The criminal law does have a role to play both in deterring those 2 infected with HIV from putting the lives of others at risk and in 3 protecting the public from irresponsible individuals who 4 refuse to comply with public health orders to abstain from 5 high-risk activities. Where public health endeavours fail to 6 provide adequate protection to individuals like the complainants, 7 the criminal law can be effective. It provides a needed measure of 8 protection in the form of deterrence and reflects society's 9 abhorrence of the self-centered recklessness and the callous 10 insensitivity of the actions of the respondent and those who have 11 acted in a similar manner. The risk of infection and death of 12 partners of HIV-positive individuals is a cruel and ever 13 present reality. Indeed the potentially fatal consequences are 14 far more invidious and graver than many other actions prohibited by 15 the Criminal Code. The risks of infection are so devastating that 16 there is a real and urgent need to provide a measure of protection 17 for those in the position of the complainants. If ever there was a 18 place for the deterrence provided by criminal sanctions it is 19 present in these circumstances. It may well have the desired 20 effect of ensuring that there is disclosure of the risk and 21 appropriate precautions are taken. R. v. Cuerrier, at paras 141 - 142 22 23 The dominant sentencing objectives in 24 cases like this, not just because of this 25 quote but as it emerges from the various cases 26 that I have reviewed, are the denunciation of 27 the conduct, and general and personal Official Court Reporters 28 1 deterrence. These cases have almost without 2 exception resulted in the imposition of jail 3 terms. The range is very broad. It basically 4 goes from one year to 18 years in just the 5 cases that I have reviewed. This is because 6 there is a wide range of potential factual 7 scenarios that can underlie a charge like this 8 one. 9 I want to refer to R. v. Williams, where 10 the Court talked about the potential for 11 far-reaching and widespread consequences of 12 actions like the actions of Mr. Kaotalok in 13 this case. The Court said: 14 There can be no doubt that the aggravated assault offences are 15 extremely serious. The potential individual consequences - both 16 medical and social - are monumental. They are multiplied 17 by two in the instant case. They are multiplied further by the 18 public health jeopardy arising from the risk of inadvertent 19 transmission by the complainants and any partners with whom they 20 might have sexual relations. R. v. Williams, para 22 21 22 In a simple way, I think that underscores 23 why this is so serious. I agree with those 24 comments and I adopt them for the purposes of 25 this case. 26 As I have said, the range of sentences 27 imposed for aggravated sexual assault charges, Official Court Reporters 29 1 involving offenders who do not disclose their 2 HIV status to a sexual partner, goes from jail 3 terms in the range of one year, 18 months, all 4 the way up to close to 20 years imprisonment. 5 In R. v. Smith, a Saskatchewan provincial 6 court Judge, after having reviewed many cases, 7 stated that he felt that the appropriate range 8 for a single incident involving sexual 9 activity in these kinds of circumstances is 10 between three and four years. I tend to agree 11 with that conclusion. This is a range that 12 addresses, to me, the fundamental principle of 13 proportionality because it addresses the 14 seriousness of the offence and the 15 blameworthiness of the person who acts in this 16 way. I am not saying that is a minimum 17 sentence because, always, the Courts have to 18 take into account aggravating and mitigating 19 factors. But I agree with the conclusion in 20 Smith that that is a useful yardstick. 21 The factors that have been considered to 22 make matters more serious and have led to the 23 imposition of longer sentences include things 24 like high risk behaviour; for example, not 25 using any protection during sexual activity: 26 that factor is not present here. The 27 repetition of conduct with several different Official Court Reporters 30 1 victims: that factor is present here. Another 2 factor is the fact that a victim was actually 3 infected with the HIV virus: that fact is not 4 present here. 5 In Williams, the Court noted this and 6 said: 7 I cannot ignore the fact that neither woman was infected through 8 her sexual involvement with Mr. Williams. This may be a product 9 of good fortune alone, but it materially distinguishes this case 10 from a number of those in which near-draconian sentences have been 11 pronounced. R. v. Williams, at para 22 12 13 So obviously, and this runs through the 14 cases in general, when the complainants are 15 infected that is considered a very significant 16 aggravating factor. 17 Another factor that is aggravating is 18 where the offender is in a position of trust 19 vis-à -vis the victim. And finally, as is 20 always the case, the offender's criminal 21 record can be an aggravating factor. 22 So what does all of this mean for this 23 case? The question, really the ultimate 24 question, is where Mr. Kaotalok's case fits in 25 all of this. 26 He has a substantial criminal record and, 27 as the Crown pointed out, that record includes Official Court Reporters 31 1 many convictions for crimes of dishonesty and 2 deceit. These are property crimes that would 3 normally be considered marginally relevant on 4 a sexual assault sentencing. But, as Crown 5 counsel noted during the submissions, it is 6 not completely irrelevant because there is a 7 deceitful aspect to his conduct in this case, 8 albeit in a much more serious context, and 9 with much more serious potential consequences. 10 There are two victims in this case, one 11 who was still a minor at the time that the 12 offence was committed. I find there is an 13 element of breach of trust in this case 14 although not as significant as it would be 15 with a spouse. But these young women had 16 befriended Mr. Kaotalok. Presumably they 17 trusted him more than they would have trusted 18 a complete stranger and he violated that trust 19 by not disclosing his medical status to them. 20 The assault on the victim J.E., as defence 21 counsel acknowledged, is more of a high risk 22 situation given the level of intoxication of 23 both parties. 24 As I have already said, on the other hand 25 some factors that have been found to be 26 aggravating in other cases are not present 27 here. Official Court Reporters 32 1 Thankfully neither victim, as of today, 2 have been diagnosed as having been infected 3 with HIV. However, as some of the excerpts I 4 have quoted from the case law suggest, they 5 still have to live with the possibility, the 6 anguish, the medical tests, and those 7 consequences are not to be dismissed as 8 insignificant. If a person is actually 9 infected that makes the matter even more 10 serious. But I think it must be remembered 11 and acknowledged that even if they did not 12 actually get sick, there are and will continue 13 to be repercussions for these victims. 14 Mr. Kaotalok has pleaded guilty which is 15 very mitigating. It was not a guilty plea at 16 the first opportunity; in fact, it occurred 17 long after the charges were laid but this too 18 must be placed in context. As defence counsel 19 pointed out, there was an important case 20 pending before the Supreme Court of Canada for 21 some time and that case was expected to, and 22 did, clarify what defences are and are not 23 available in a case like this. 24 R. v. Morbior, 2012 S.C.C. 47 was released 25 on October 5th, 2012. It clarified this area 26 of the law and the issues that were before the 27 Supreme Court of Canada had a direct bearing Official Court Reporters 33 1 on whether Mr. Kaotalok could or could not 2 advance certain defences in this case. It was 3 not unreasonable at all for him to want to 4 know the outcome of that case before giving 5 his final instructions to his counsel. He had 6 the right to choose his course of action and 7 get advice from his counsel in light of what 8 that decision was going to be as far as the 9 law. 10 The other thing about the guilty plea, and 11 I say this in every case where there is one, 12 is that it has spared both complainants from 13 having to come to the Court and testify about 14 very personal intimate things. The Court 15 knows from seeing witnesses testify in court 16 proceedings that it is a process that is often 17 difficult and sometimes very painful for them. 18 Sparing someone from that is always very 19 significant. Mr. Kaotalok is entitled to 20 considerable credit for having pleaded guilty. 21 In addition to what it spared the 22 complainants, it is obvious from the agreed 23 statement of facts that it also saved 24 considerable resources considering the type of 25 medical evidence that would have to have been 26 called by the prosecution had this matter 27 proceeded to trial. Official Court Reporters 34 1 The other aspect of guilty pleas is they 2 are usually considered to be an indication of 3 remorse. There are comments in the 4 pre-sentence report that call into question 5 whether Mr. Kaotalok is truly remorseful. He 6 appears to have expressed conflicting things 7 to the author of the pre-sentence report with 8 respect to his views of the victim and taking 9 responsibility for this. But he has pleaded 10 guilty. He has expressed his remorse to the 11 Court when he was given an opportunity to 12 speak. And while it is clear that his 13 expressions of remorse may not have been the 14 most unequivocal during the process leading up 15 to the sentencing, I am satisfied, based on 16 what he said to the Court, that he does take 17 responsibility for his actions at this point. 18 Whether he is truly fully deeply remorseful 19 and sorry in an absolute sense is something 20 that only he knows and only he will ever know 21 in his heart. I can only hope that he is and 22 that he realizes the ramifications of what he 23 has done. 24 Crown counsel made submissions about 25 Mr. Kaotalok's recklessness, tying it in with 26 the inconsistent attitude in complying with 27 his medical regimen. I do not disagree: It Official Court Reporters 35 1 is obvious that Mr. Kaotalok has not been 2 diligent in complying with his medical 3 regimen, but I also take the point that 4 defence counsel made. The reality is 5 Mr. Kaotalok, for large periods of time while 6 he was in Yellowknife, has been residing at 7 the Salvation Army without a fixed address or 8 any place to really call home. That lack of 9 stability can only have an impact on a 10 person's overall stability, including 11 compliance with medical treatment. It is not 12 an excuse, and obviously it is crucial that 13 Mr. Kaotalok take his medical treatment 14 seriously, but I accept that the lack of 15 stability in his life was an impediment to him 16 adhering strictly with his treatment plan. 17 And this seems to be confirmed that his 18 compliance was better when his living 19 situation was more stable. 20 Another matter that has an important 21 bearing on the sentence to be imposed today is 22 how much credit Mr. Kaotalok is going to 23 receive for the time that he has spent on 24 remand which, in this case, is a substantial 25 period of time. He has been on remand since 26 March 1st, 2011, which is two years and three 27 weeks. The first question is whether I have Official Court Reporters 36 1 discretion to give credit on anything more 2 than a one for one ratio. Or, in other words, 3 whether I have discretion to grant him 4 enhanced credit for his remand time. 5 The Crown argued that I do have discretion 6 for the portion of his remand time up until 7 April 2012 when he had a bail review. But 8 that after that, my discretion is limited 9 because he was detained at that bail review 10 primarily because of his record. The defence 11 says that I have discretion to grant him 12 enhanced credit for the full period of his 13 remand. 14 Whether I have discretion or not depends 15 on the reason why bail was denied. 16 Paragraph 515(9.1) of the Criminal Code 17 imposes a requirement for the Justice who 18 detains an accused primarily because of his 19 record to indicate so clearly on the record. 20 The provision says "the Justice shall state 21 that reason in writing on the record", that 22 reason being that it was primarily because of 23 the criminal record. 24 Mr. Kaotalok had a show cause hearing on 25 March 1st, 2011 and was ordered detained. The 26 warrant of committal issued on that date does 27 not include any note that he was detained Official Court Reporters 37 1 primarily because of his record. Then he had 2 his preliminary hearing and he was committed 3 to stand trial in August 2011. He did not 4 apply for release at the conclusion of the 5 preliminary hearing. He had a number of bail 6 reviews scheduled in this court by operation 7 of the law, which requires there to be a 8 review of detention every 90 days. He waived 9 those reviews in November 2011 and February 10 2012. He did seek release at a bail review on 11 April 30th, 2012 and on September 24th, 2012, 12 and was ordered detained both times. 13 The Crown argues that the transcript of 14 the reasons given by the Judge who ordered his 15 continued detention on April 30th makes it 16 clear that the primary reason for that 17 decision was his criminal record. The Crown 18 says that the transcript can serve as the 19 written entry into the record referred to in 20 paragraph 9.1 of Section 515. I disagree with 21 that submission. 22 The requirement for a written entry into 23 the record as to the primary ground for 24 detention is designed to ensure there is no 25 ambiguity in this area. A transcript of 26 reasons given orally does not constitute a 27 written statement as to the primary reasons Official Court Reporters 38 1 for detention. In my view, Parliament's 2 requirement to have the reasons for detention 3 entered in writing is precisely to ensure that 4 there is not going to be a debate based on a 5 transcript or on clerk's notes about what the 6 reason for detention was. Clarity in this 7 area is very important given the potential 8 implications. In this case the difference is 9 a full year of credit that is either possible 10 to give or not possible to give depending on 11 the answer. 12 So I am not satisfied that the transcript 13 of the April 30th decision is something that 14 can be used or meets the requirements of the 15 Criminal Code. The net result is that I have 16 discretion to give Mr. Kaotalok enhanced 17 credit for the full period of time that he has 18 spent on remand. 19 The fact that I have that discretion does 20 not mean that I should ever use it. Granting 21 enhanced credit for remand time is not 22 automatic - far from it. 23 The relevant portions of Section 719 24 provide that the starting point is that the 25 credit for the remand time is to be given on a 26 ratio of one for one but that if the 27 circumstances justify it, enhanced credit can Official Court Reporters 39 1 be granted up to a ratio of one to one and a 2 half. 3 In a relatively recent case, R. v. Green, 4 2013 NWTSC 20, I discussed some of the issues 5 that have arisen about the interpretation to 6 be given to the words in the provision and the 7 case law that has interpreted it. The 8 principles that emerge from the case law, 9 including appellate jurisprudence, is that 10 while the circumstances that may justify 11 enhanced credit need not be rare or 12 exceptional, they do have to be 13 individualised; that is, they have to relate 14 to the person being sentenced. This 15 case-specific information can be provided 16 through evidence from case managers or, as has 17 been frequently accepted in this jurisdiction, 18 from information provided by counsel as 19 officers of the Court as long as counsel is 20 able to indicate that he or she has obtained 21 that information from a reliable source such 22 as the offender's case manager. This 23 approach has been adopted fairly consistently 24 in various cases such as R. v. Stonefish, 2012 25 MBCA 116; R. v. Carvery (L.A.) 2012 NSCA 107; 26 R. v. Summers, 2013 ONCA 147; R. v. Mannilaq, 27 2012 NWTSC 48; R. v. Desjarlais, 2012 NWTSC 2; Official Court Reporters 40 1 and R. v. Vittrewkwa, 2011 YKTC 64. 2 In this case the information before me is 3 that Mr. Kaotalok's behaviour while on remand 4 was, for the most part, without problems. He 5 had a few incidents with other inmates, 6 apparently arising from him getting taunted by 7 them, but the information that was conveyed to 8 this Court by his counsel is that his case 9 manager advised that if he had been a serving 10 prisoner during this period of time, he would 11 have earned most of his remission for the time 12 that he spent on remand. 13 I also have information that Mr. Kaotalok 14 benefitted from some programs while he was on 15 remand. The lack of availability of programs 16 for remand prisoners and harsh detention 17 conditions are among the factors that 18 historically have been taken into account in 19 the decision to give enhanced credit for 20 remand time. Those factors do not apply here. 21 All in all, I am satisfied that 22 Mr. Kaotalok should be granted credit for his 23 remand time on an enhanced basis but not quite 24 to the maximum ratio of one to one and a half. 25 I do not think that the maximum ratio is 26 appropriate given the overall circumstances of 27 his pre-trial detention, including the fact Official Court Reporters 41 1 that he has had access to some programs. 2 Although it is said that he would have earned 3 most of his remission, this is not a case 4 where his behaviour was without problems. 5 The Crown's position is that I should 6 impose a global sentence of four years in jail 7 for these two charges broken down to two years 8 on each count consecutive. The Crown says 9 that this position takes into account 10 concerns about totality. The Crown says that 11 from this sentence of four years, Mr. Kaotalok 12 should be given credit for the time that he 13 spent on remand. 14 Defence counsel has argued that the 15 sentence could be of a shorter duration, given 16 the guilty plea and the absence of some of the 17 aggravating features found in cases from other 18 jurisdictions. 19 Considering the range is between one year 20 and 18 years in the cases that I have 21 reviewed, I think it is fairly clear that 22 Mr. Kaotalok's case does not belong at the 23 higher end of that spectrum. But I also do 24 not consider that his case falls at the very 25 low end of the spectrum. 26 It is tragic that Mr. Kaotalok was 27 infected with the HIV virus at birth. He was Official Court Reporters 42 1 an innocent victim of very unfortunate 2 circumstances in this regard. But what he has 3 done as an adult through his behaviour is he 4 has passed on that victimization to two other 5 people by exposing them to the risk of 6 infection. He has created a risk for these 7 people to suffer the same fate that he did in 8 a way - to be infected with this virus without 9 having any control or any ability to protect 10 themselves from that risk. 11 I have said it many times already, and I 12 will say it again, it is very fortunate that 13 to date these victims have not been diagnosed 14 with being infected with HIV but they will 15 live with the spectre of that possibility for 16 a long time and with that sense, I am sure, 17 that their trust has been abused by their 18 friend in a terrible way. 19 I certainly agree with the submissions of 20 defence counsel that some of the cases filed 21 involve situations where the offenders showed 22 much more recklessness and even more callous 23 behaviour than what is in question here, but 24 the fact that there are worst cases out there 25 does not make this one any less serious. But 26 for his guilty plea, Mr. Kaotalok would be 27 facing a much more significant sentence today. Official Court Reporters 43 1 Having taken his circumstances into 2 account and the principles of the law that are 3 binding on me, I do conclude that a jail term 4 of some significance is required in this case 5 to address the goals of sentencing, to 6 denounce his conduct, to hopefully deter other 7 people from behaving in this selfish reckless 8 way. There is no doubt in my mind that the 9 global sentence sought by the Crown is within 10 the range of what would be fit for these 11 sentences. I do not even think that it is at 12 the higher end of what could be imposed. 13 Even so, having given this matter a lot of 14 anxious thought, I have decided to exercise as 15 much restraint as I can, taking into account 16 Mr. Kaotalok's overall circumstances, 17 including his circumstances as an aboriginal 18 offender. And so although I think that the 19 position of the Crown was quite reasonable, I 20 will impose a sentence that is slightly shorter 21 than what the Crown has sought, but only 22 slightly. It is not because there is any joy 23 in imposing a jail term to someone, especially 24 knowing some of their difficult circumstances, 25 but it is because in my view I would be 26 shirking from my responsibility if I did not 27 impose a sentence of some significance here. Official Court Reporters 44 1 The Crown has applied for certain 2 ancillary orders and I will deal with those 3 first. The defence is not opposed to any of 4 these requests. 5 There will be a firearms prohibition order 6 that will commence today and expire ten years 7 from Mr. Kaotalok's release. 8 There will be an order that he comply with 9 the requirement of the Sexual Offender 10 Information Registration Act. By operation of 11 the Criminal Code, that order is for life 12 under Section 490.03(ii)(c). It is a lifelong 13 order because of the maximum sentence 14 available for aggravated sexual assault. 15 There will be no victim of crime 16 surcharge. There would be an obvious hardship 17 in imposing one considering the time that 18 Mr. Kaotalok has spent on remand, his lack of 19 means, and the fact that he will spend more 20 time in custody. 21 Mr. Kaotalok, please stand. 22 For these two counts of aggravated sexual 23 assault, Mr. Kaotalok, I have reduced the 24 sentence as much as I feel that I can. I have 25 taken into consideration the global effect of 26 the sentences. I have concluded that a fit 27 sentence for each of these counts is 21 months Official Court Reporters 45 1 in jail, so that means a total of 42 months. 2 For the two years and three weeks that you 3 have spent on remand, I give you credit for 30 4 months, which is more than one for one but not 5 quite one and a half. 6 What that means is on Count 1, there will 7 be a further jail term of six months. And on 8 Count 3, there will be a further jail term of 9 six months consecutive. 10 You can sit down. 11 Mr. Clerk, I can assist you with the 12 warrant of committal if you need me to but it 13 should show 21 months on Count 1, 15 months 14 credit for remand time. And 21 months on 15 Count 2, 15 months credit for remand time on 16 that one as well. 17 I will not make any order with respect to 18 exhibits because there remains the matter of 19 Count 2 which is going to be going to trial. 20 I would ask that counsel ensure that when that 21 matter is concluded, the Court's attention's 22 is drawn to the issue of the exhibits. 23 On the matter, Counts 1 and 3 which were 24 set for sentencing today, I extend again my 25 thanks to the counsel for their submissions. 26 Mr. Kaotalok, I hope that you are able to 27 do some of the things that you talked about Official Court Reporters 46 1 when you spoke to me a few weeks ago and that 2 you will be able to get your life in the 3 direction that you want it to be. It sounds 4 like you have the ability to do that if you 5 choose to. It will really be up to you. 6 THE ACCUSED: Thank you. 7 THE COURT: As far as Count number 2, 8 Mr. Boyd, first of all, have I omitted or 9 forgotten anything on the sentencing matter? 10 MR. ONYSKEVITCH: Your Honour, I apologize as 11 I was not here for the submissions that were 12 made but as I understood it, the Crown also 13 sought an order for the DNA of Mr. Kaotalok 14 pursuant to Section 487. 15 THE COURT: You're correct, and I'm 16 sorry, I meant to say that. Thank you for 17 reminding me of this. 18 This is a primary designated offence and 19 being the order is mandatory, so there will 20 will be one of those as well. Thank you. 21 Anything else that I may have missed? 22 MR. ONYSKEVITCH: Nothing further from the 23 Crown with respect to Counts 1 and 3, Your 24 Honour. 25 MR. BOYD: Nothing from defence, Your 26 Honour. 27 [DISCUSSION WITH COUNSEL REGARDING COUNT 2] Official Court Reporters 47 1 THE COURT: Thank you, counsel. Close 2 court. 3 ------------------------------------------- 4 5 Certified correct to the best of my skill and 6 ability, 7 8 9 10 ____________________________ 11 Lois Hewitt, Court Reporter 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 48
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