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Abstract: Transcript of the Reasons for Sentence
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R. v. Doll, 2014 NWTSC 8 S-1-CR-2012-000097
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
RUSSELL DEAN DOLL
_________________________________________________________
Transcript of the Reasons for Sentence held before
The Honourable Justice K. Shaner, in Yellowknife, in the
Northwest Territories, on the 13th day of December, 2013
_________________________________________________________
APPEARANCES:
M. Lecorre, Esq.: Counsel on behalf of the Crown
T. Bock, Esq.: Counsel on behalf of the Accused
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Charges under S. 151 Criminal Code of Canada
BAN ON PUBLICATION OF THE COMPLAINANT PURSUANT TO
SECTION 486.4 OF THE CRIMINAL CODE
1 THE COURT: Before I begin to give my
2 reasons for sentence and my decision, I will just
3 reaffirm that there is a publication ban in place
4 respecting publication of any information that
5 would identify the victim in this case. And for
6 that reason, when I am going through my reasons,
7 I will not be referring to her by name. I will
8 be calling her "the victim".
9 Following a trial by judge alone, Russell
10 Doll was convicted of sexual interference
11 contrary to Section 151 of the Criminal Code, and
12 that conviction was entered on
13 November 13th, 2013.
14 The events took place in Yellowknife between
15 February 1st and May 31st, 2005. The victim
16 lived in a three-bedroom apartment in Yellowknife
17 with her father and her older brother. The
18 victim's father and Mr. Doll were acquainted
19 through mutual friends.
20 Mr. Doll had been living in a cabin on the
21 highway, which was heated only by wood. It was
22 cold and he needed a place to stay. The victim's
23 father took him in. The victim, her brother, and
24 Mr. Doll all had their own bedrooms in the
25 apartment, and the victim's father slept in the
26 living room. The victim, who is now 14, was 5 or
27 6 years old at the time that this occurred.
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1 From the evidence, it is clear that life in
2 the apartment was not geared towards children.
3 Mr. Doll and the victim's father, we heard, drank
4 alcohol and used drugs frequently. Neither was
5 working, although Mr. Doll was earning some
6 income through carving. They did not pay any
7 rent, and eventually the victim's family was
8 evicted from the apartment.
9 Mr. Doll was alone with the victim from time
10 to time and provided care for her. He described
11 her as a defiant child, and he said she was a
12 normal kid, but that he found that she was easily
13 triggered. If she could not get her way, she
14 would throw temper tantrums.
15 On two occasions, once while her father was
16 in the apartment and once when he was alone with
17 her, Mr. Doll touched the victim's vagina. On
18 another occasion, again when he was alone with
19 her, he attempted to take her clothes off, but he
20 was interrupted by her father.
21 The first incident happened in the bedroom
22 and started while the victim was asleep, and
23 while her father was sleeping in the living room.
24 She had been sleeping in a Halloween costume, and
25 she awoke to find Mr. Doll unzipping it. She
26 tried to keep him from undoing it by stiffening
27 her body, but she was not successful. He then
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1 proceeded to touch her vagina under her clothes.
2 The victim managed to get out of the room,
3 and she went to get her father who was sleeping
4 in the living room. Mr. Doll followed her out
5 and entered the kitchen which was open to the
6 living room. He told her that her father was
7 asleep and that she should not wake him. She
8 obeyed and went back to her room and went to
9 sleep.
10 The second time, Mr. Doll entered the
11 victim's bedroom and tried to unzip her clothing.
12 This time her father was out of the apartment.
13 However, before Mr. Doll could get her clothing
14 undone, her father came home and Mr. Doll quickly
15 exited her room.
16 The third incident happened again in the
17 victim's bedroom and again while she was alone
18 with Mr. Doll. He was babysitting her. She was
19 wearing a nightgown. Mr. Doll removed her
20 underwear and touched her vagina.
21 The victim told her father what happened
22 some years later when she was 9 years old.
23 The Court heard today about Mr. Doll's
24 circumstances. He is 53 years old, and he is an
25 accomplished carver. He was born and raised in
26 Drayton Valley, Alberta, and he is Métis. His
27 lawyer described a very difficult childhood,
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1 where Mr. Doll witnessed domestic violence
2 between his parents and alcohol abuse, where he
3 himself was the victim of abuse while living at
4 an orphanage between the ages of 1 and 3 years.
5 Following his parents' separation, Mr. Doll
6 and his brothers were raised by their father, and
7 he grew up in poverty with very little oversight
8 or supervision. He left home and began using
9 drugs at a very young age. His problems with the
10 law began at a very young age as well, and he
11 attributes this to the lack of guidance and
12 supervision that I just noted. Nevertheless,
13 Mr. Doll managed to hold down jobs, and with his
14 partners raised three children. As well, as I
15 noted earlier, he has enjoyed a measure of
16 success as a carver.
17 The Criminal Code sets out the principles
18 and objectives of sentencing that provide a
19 framework to guide judges in imposing a sentence
20 that is just and appropriate. It is a highly
21 individualized process. The objectives are set
22 out in Section 718 of the Criminal Code, and I am
23 not going to go through each one of them. I will
24 say, however, that the emphasis placed on each of
25 theses objectives very much depends on what the
26 offence is, the circumstances under which it was
27 committed, and the circumstances of the offender.
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1 Where the offence involves the abuse of a
2 person under the age of 18, as is the case here,
3 primary consideration is to be given to the
4 objectives of denunciation, which is an
5 expression of society's abhorrence of particular
6 conduct, and deterrence, both for the offender
7 and for the public at large.
8 There are a number of principles that guide
9 judges in giving effect to these objectives, and
10 these too are included in the Criminal Code. The
11 most important principle is proportionality,
12 which means that a sentence must reflect the
13 gravity of the offence and the degree of
14 responsibility of the offender.
15 Judges must consider aggravating and
16 mitigating factors and increase or reduce
17 sentences accordingly.
18 The Criminal Code deems a number of factors
19 to be aggravating, although this is not an
20 exclusive list. The factors included in the
21 Criminal Code are evidence that an offender
22 abused a person under the age of 18, and that the
23 offender was in a position of trust vis-a-vis the
24 victim.
25 The Court is also guided by the principles
26 of restraint and parity. The latter means that
27 sentences should be similar for like offences and
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1 circumstances. In applying the principle of
2 restraint, the Court must give consideration to
3 all available sanctions other than imprisonment
4 that are reasonable in the circumstances, with
5 particular attention to the circumstances of
6 Aboriginal offenders. The importance of that
7 principle was recently reaffirmed by the Supreme
8 Court of Canada in R. v. Ipeelee. As I have
9 noted earlier, Mr. Doll is Métis.
10 There are a number of aggravating
11 circumstances in this case. The victim, who was
12 a child of no more than 6, was highly vulnerable.
13 Mr. Doll was entrusted with her care. The events
14 occurred when she was asleep or about to go to
15 asleep. They occurred when she was alone. On
16 one occasion, however, Mr. Doll was so bold as to
17 touch the victim's vagina while her father slept
18 in the living room. And when the victim went to
19 her father for help, Mr. Doll, an adult, told
20 this child to leave her father alone.
21 It is aggravating that there was not just
22 one, but three instances of sexual touching over
23 a relatively short period of time. I consider
24 the incident where Mr. Doll attempted to remove
25 the victim's clothing but was interrupted by her
26 father to be an incident of sexual touching.
27 Touching genitalia is not necessary.
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1 Mr. Doll has an extensive criminal record,
2 and it, too, is aggravating. It dates back to
3 1978, with convictions sustained almost every
4 year since that time. It contains 32
5 convictions, including six convictions for
6 assault.
7 There is, by contrast, very little in the
8 way of mitigation. There was no guilty plea, and
9 I do pause to emphasize that that is not an
10 aggravating factor. However, it means that there
11 is the absence of that as a mitigating factor.
12 Mr. Lecorre for the Crown seeks a custodial
13 sentence of four years as well as a number of
14 ancillary orders. It is the Crown's position
15 that this is necessary to achieve the objectives
16 of sentencing, particularly denunciation and
17 deterrence, and as I noted earlier those must be
18 given primary consideration.
19 In support of its position, the Crown relies
20 upon the decision of my colleague Justice
21 Charbonneau in R. v. Griffin [2013] N.W.T.J. No.
22 98, and the 1992 decision of the Alberta Court of
23 Appeal in R. v. W.B.S., R. v. Powderface [1992]
24 A.J. No. 601; 127 A.R. 65. These are, in my
25 view, reflective of the law that is to be applied
26 in sentencing in this case.
27 The defence submits that a sentence of two
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1 years less a day in custody followed by three
2 years of probation would be more appropriate, and
3 defence counsel made a number of submissions in
4 support of this. However, Mr. Doll bears a very
5 high degree of moral blameworthiness in this
6 case, and in my view the objectives of
7 denunciation and deterrence will be achieved only
8 if there is a significant custodial sentence.
9 Sex crimes against children occur all too
10 often, and the consequences are nothing short of
11 profound. A victim's self-perception, their
12 self-esteem, his or her very life is changed in
13 an instant. Even in the absence of physical
14 wounds, the emotional harm takes many years to
15 heal, if it does at all. Adults who commit these
16 crimes violate children's trust and take
17 advantage of their weaker position and their
18 tendency to comply with adult direction.
19 Mr. Doll's actions were both predatory and
20 opportunistic.
21 In her victim impact statement, the victim
22 described her life and what has happened as a
23 result of Mr. Doll's actions. She has trouble
24 sleeping. She has tried to kill herself. She
25 started drinking and using drugs and getting into
26 fights with people. She has flashbacks. She
27 gets scared if she sees anyone who looks like
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1 Mr. Doll.
2 The last sentence of her statement reads:
3
4 But after a while I didn't
5 want to be around anyone, and
6 I would just stay at home and
7 try and sleep, which usually
8 never worked so I'd just lay
9 there and think of what my
10 childhood would have been like
11 if Russell hadn't ruined it.
12
13 I have considered Mr. Doll's Aboriginal
14 status and history. His childhood was, to say
15 the very least, difficult, but there is no link
16 that has been demonstrated between this difficult
17 childhood and his being Métis.
18 Unfortunately, in the circumstances, there
19 are no reasonable alternatives to a long period
20 of incarceration. A sentence with a shorter
21 period of incarceration followed by probation
22 would not, in this case, achieve the important
23 objectives of denunciation and deterrence. As
24 well, Mr. Doll's record clearly shows that he has
25 not benefitted from any attempts at
26 rehabilitation to date.
27 Finally, given the predatory and
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1 opportunistic nature of this crime and the
2 profound impact that it has had on the victim's
3 life, it is important that Mr. Doll is separated
4 from society and that society is protected from
5 him.
6 Mr. Doll stand up.
7 Upon é convicted of sexual interference and
8 upon considerations of the circumstances and the
9 nature of the offence as well as your personal
10 circumstances, I sentence you to a term of four
11 years' imprisonment. That term will be reduced
12 by the amount of time you have spent in custody
13 awaiting the disposition of your case since
14 conviction on a one-to-one basis, which is as of
15 today 29 days. Do you understand?
16 THE ACCUSED: Yeah.
17 THE COURT: You can be seated.
18 I now turn to ancillary orders that were
19 requested by the Crown. The Crown requested an
20 order pursuant to Section 161(a) and 161(b) of
21 the Criminal Code. The circumstances here, while
22 they are very serious in my view, do not justify
23 imposing restriction under Section 161(a), which
24 would prohibit Mr. Doll from attending at certain
25 public areas where children are likely to be
26 present.
27 However, given the opportunistic nature of
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1 the crime, an order under 161(b) is justified.
2 And, accordingly, Mr. Doll will be prohibited
3 from obtaining employment, whether remunerated or
4 not, or becoming a volunteer in a capacity that
5 involves é in a position of trust or authority
6 towards any person under the age of 16 years, and
7 this will be in effect for life.
8 The Crown also asks that I impose a firearms
9 prohibition under Section 109 of the Criminal
10 Code. That section provides for a mandatory
11 prohibition where a person is convicted of an
12 indictable offence in the commission of which
13 violence against a person was used, threatened,
14 or attempted, and for which the person may be
15 sentenced to a term of ten years or more.
16 I sought further submissions from the Crown
17 and defence counsel on whether the actions
18 perpetrated against the victim in this case were
19 violent in the sense that that term is used in
20 Section 109 of the Criminal Code. In saying
21 this, I emphasize again that I do not suggest in
22 any way that there is not a degree of inherent
23 violence in all sexual crimes. The question I
24 raised was whether here that violence was such
25 that Section 109 becomes engaged, and I accept
26 the Crown's submissions that it is. Force was
27 used against the victim to remove or attempt to
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1 remove her clothing and to touch her genitals.
2 On the first occasion, it will be recalled that
3 the victim stiffened her body so that Mr. Doll
4 could not take her clothing off. She tried to
5 resist the touching, but she could not.
6 Accordingly, there will be an order for a
7 firearms prohibition under Section 109 of the
8 Criminal Code for a period of ten years.
9 There will also be an order for bodily
10 fluids to be taken from Mr. Doll for DNA
11 analysis, and an order requiring him to comply
12 with the Sex Offender Information Registration
13 Act pursuant to Section 490.012 of the Criminal
14 Code. That will be in effect for 20 years.
15 Mr. Doll, you have expressed through your
16 lawyer your views that the circumstances of your
17 childhood have led you to having so much conflict
18 with the law and led you here today. The fact
19 is, however, that you alone are responsible for
20 your actions. You will in prison no doubt be
21 offered many opportunities to take programming
22 that will assist you in dealing with the trauma
23 you suffered through the events and circumstances
24 of your childhood. You should take advantage of
25 these. You are in charge of yourself, and it is
26 up to you to change.
27 Counsel, is there anything else?
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1 MR. LECORRE: Just the surcharge, Your
2 Honour, the victims of crime surcharge. This is
3 a case that -- it's before the new amendment, so
4 it is discretionary, and -- well, considering
5 Mr. Doll is going to be in jail for a fairly long
6 time, the Crown has no objection to Your Honour
7 waiving the surcharge in the circumstances.
8 THE COURT: There will be no victims of
9 crime surcharge.
10 Is there anything further?
11 MR. LECORRE: Not from the Crown, Your
12 Honour.
13 THE COURT: All right. Thank you.
14 This is concluded then.
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16 PROCEEDINGS CONCLUDED
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24 CERTIFICATE OF TRANSCRIPT
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1 I, the undersigned, hereby certify
2 that the foregoing pages are a complete and
3 accurate transcript of the proceedings taken down
4 by me in shorthand and transcribed from my
5 shorthand notes to the best of my skill and
6 ability.
7 Dated at the City of Edmonton,
8 Province of Alberta, this 13th day of
9 January, 2014.
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15 Christine Bos, CSR(A)
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