Decision Content
1 R. v. Antoine Tobac
2 October 31, 2014 - Yellowknife
3 Reasons for Sentence by Charbonneau, J.
4
5
6 THE COURT: Mr. Tobac has pleaded guilty
7 to four charges: an assault on L.K. that
8 happened on February 17th, 2013, in Fort Good
9 Hope; a sexual assault on her that happened on
10 the 22nd of February, 2013, in Fort Good Hope;
11 and also in relation to that same incident on
12 February 22nd, he has pleaded guilty to a count
13 of assault with a weapon, more specifically, a
14 knife and to a charge of having not complied with
15 a condition of an undertaking that required him
16 to abstain from the possession and consumption of
17 alcohol.
18 Today it is my responsibility to decide what
19 Mr. Tobac's sentence should be for those
20 offences.
21 Any time a court imposes a sentence on
22 someone for a crime it has to take into account,
23 first, all the principles of sentencing that are
24 set out in the Criminal Code, the circumstances
25 of the offence or offences that were committed,
26 and the circumstances of the person who committed
27 those offences.
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1 Sentencing is a very fact specific and
2 individualized process; no two cases are ever
3 alike, and there are many different factors that
4 must be taken into account in arriving at a fit
5 sentence. That is why, as it is often said,
6 sentencing is one of the most difficult tasks of
7 a judge, and this case is no exception. This
8 case represents very well the dilemma that courts
9 often face on sentencing.
10 Mr. Tobac is now 22 years old. Relatively
11 speaking, it was not that long ago that he was
12 himself a child, and during that childhood he
13 lived in circumstances that no child should have
14 to live in. I am sentencing a young adult today,
15 but I cannot lose sight of the fact that this
16 young adult was a child who grew up afraid,
17 lonely, and not properly cared for because of his
18 parents' abuse of alcohol. At the same time, the
19 offences that Mr. Tobac has committed were
20 extremely serious and the Court cannot lose sight
21 of that either.
22 People who are in spousal relationships
23 should not have to fear that their partners will
24 subject them to the kind of behaviour that this
25 victim was subjected to. A person's home should
26 be the place where they feel the safest. For
27 this woman her home was one of the most unsafe
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1 places she could be because when Mr. Tobac
2 consumes alcohol he is a very dangerous man.
3 And so there has to be balancing, a
4 balancing between recognizing the very difficult
5 circumstances in which Mr. Tobac grew up and that
6 he was a victim of those circumstances as a
7 child, with the fact that now, as an adult, he
8 must be held accountable for his actions and for
9 the choices that he makes.
10 Because I have to consider the circumstances
11 of the offence on sentencing, I will refer
12 briefly to those circumstances to put the rest of
13 my sentencing reasons in context. They are not
14 nice facts, and I remember very well from my
15 observations of Mr. Tobac when those facts were
16 being read into the record last July that they
17 were not easy facts for him to listen to. But it
18 is what happened. It is what he did. It was not
19 some other person who did these things — it was
20 him, and that is why we are all here today. So
21 although I realize it is difficult for him to
22 hear those facts again, I do think it is
23 important to remember that they are why we are
24 here. They are the reality of what happened.
25 And also, as I said before, knowing what those
26 facts are is important for anyone reviewing my
27 sentencing reasons to understand their proper
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1 context. I am not going to read the whole Agreed
2 Statement of Facts but I you just want to refer
3 to it in general terms.
4 All these events happened in Fort Good Hope.
5 Mr. Tobac and the victim, Ms. K., had been
6 in a relationship for about one and a half years
7 when this happened and they had been living
8 together for about one year.
9 The victim is not originally from Fort Good
10 Hope. She was relatively new to that community
11 which, I note in passing, would have increased
12 her sense of isolation as her relationship with
13 Mr. Tobac became more and more abusive.
14 It is an admitted fact that during that
15 relationship Mr. Tobac had become possessive and
16 jealous, and that during the year preceding the
17 events that take us to court today he had become
18 physically and emotionally abusive towards her on
19 a regular basis. He had assaulted her in front
20 of members of his own family, who had to
21 intervene to stop the assault. The charges
22 before the Court do not relate to those earlier
23 incidents but the context was put before the
24 Court, it is admitted, and it is relevant. It
25 shows that these events that occurred in February
26 2013 were not isolated events.
27 The first incident for which Mr. Tobac must
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1 be sentenced happened on February 17th. He and
2 his spouse had been arguing and she left their
3 residence, hoping that he would calm down. When
4 she returned in the late evening he was
5 intoxicated and drinking with some friends. She
6 asked him to make those friends leave and he
7 complied with her request, leaving the two of
8 them alone in the residence. This was at about
9 11 p.m.
10 At 1:30 in the morning on Sunday, February
11 17th, she went next door to retrieve a cordless
12 phone that a neighbour had borrowed. When she
13 returned home Mr. Tobac was outside their front
14 door waiting for her, and he was angry. He told
15 her to get back in the house, grabbed her by the
16 throat and arm and forced her back into the
17 residence.
18 There happened to be an RCMP officer parked
19 in a vehicle located close to the residence and
20 the officer saw this, so the officers immediately
21 went to the residence. It was the victim who
22 answered the door and she was upset. The officer
23 saw that she had a mark on her throat and
24 redness. Upon seeing that and based on what he
25 had seen before, the officer arrested Mr. Tobac
26 for assault.
27 On the same day he was released on an
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1 undertaking; one of the conditions of that
2 undertaking was that he not possess or consume
3 alcohol.
4 Two days later on February 19th, Mr. Tobac
5 was in possession and under the influence of
6 alcohol. Ms. K. saw him intoxicated inside her
7 residence.
8 Two days later, February 22nd, and this was
9 again in the middle of the night, 3:30 in the
10 morning, Mr. Tobac attended Ms. K.'s home and
11 banged on the door. He was intoxicated and
12 angry. He had arrived at the residence with
13 another person. That person passed out and did
14 not cooperate with police in this investigation.
15 At that point Mr. Tobac no longer had a key to
16 this residence. Ms. K. let him in. So that day
17 again he was in breach of his undertaking.
18 She tried to go back to bed but he became
19 aggressive towards her, and during the next four
20 hours or so he committed a number of offences
21 against her, essentially assaulting her and
22 tormenting her for that period of time. He
23 repeatedly swore at her calling her, among other
24 things, a "fucking slut" and a "fucking bitch",
25 accusing her of cheating on him. He threatened
26 to kill her and to stab her. He threatened to
27 kill himself. He threatened her about calling
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1 the police.
2 He also assaulted her physically — he
3 kicked her, he punched her in the stomach, he
4 slapped her in the face, he twisted her arm, he
5 held her in a head lock. He pushed her on the
6 bed and held her down by her arms with his hands.
7 He choked her, gagged her and suffocated her by
8 sticking his hands and fingers down her throat,
9 by grabbing her throat, by covering her nose and
10 mouth to cut off her air supply. This happened
11 five to ten times, she thinks, during this period
12 of time. At points she panicked because she
13 could barely breathe and she thought she might
14 lose consciousness. And this left her with a
15 sore throat the next day, not surprisingly.
16 He bit her lip while attempting to kiss her
17 and from this she got a bruise on her lip.
18 He held two different knives to her face and
19 throat at two different times while assaulting
20 her, once in the living room and once in the
21 bedroom.
22 And finally, at about seven o'clock in the
23 morning, he pulled down her pajama bottoms,
24 forced his fingers inside her vagina and had
25 forced sexual intercourse with her. And then he
26 forced her to perform fellatio on him. The
27 sexual part of this assault lasted about 50
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1 minutes.
2 She did not want to have sex with Mr. Tobac.
3 She did not resist physically because she was
4 desperate and she thought it was the safest
5 course of action for her under all the
6 circumstances. Based on the rest of the facts,
7 it is not surprising that she came to that
8 conclusion. Throughout she begged and pleaded
9 with him to stop what he was doing to her.
10 After the sexual assault, he threatened her
11 again that if she tried to leave the residence he
12 would "do something". She took this as a threat
13 not surprisingly, so she waited for an
14 opportunity to escape the bedroom. And that did
15 not happen right away. A few times she thought
16 he was asleep and she tried to slip away, but he
17 got up and grabbed a hold of her. Finally at
18 about 8:30 he did fall asleep. She waited
19 another hour to make sure he really was asleep
20 before she snuck out of the residence.
21 She immediately disclosed this to the RCMP.
22 On the 22nd of February, so the same day as
23 this was reported, the police attended the
24 residence and they arrested Mr. Tobac. They
25 seized an open mickey of vodka from him upon his
26 arrest. It is pretty clear from the facts that
27 Mr. Tobac disregarded the order that he was on to
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1 not consume alcohol and he disregarded that order
2 repeatedly after the time it was entered into.
3 Those are the facts that were admitted by
4 Mr. Tobac and that make out the various offences
5 that he has pleaded guilty to.
6 I turn now to his circumstances. To examine
7 his circumstances I do have the benefit of a very
8 detailed and thorough presentence report that was
9 prepared for this sentencing, and I am grateful
10 to the author of this report for its
11 thoroughness.
12 I also had the benefit of very detailed
13 submissions from Mr. Tobac's counsel who did an
14 admirable job of obtaining information not only
15 from Mr. Tobac himself, but also insight and
16 information from several of his family members.
17 All of this information is helpful to better
18 understand Mr. Tobac's circumstances and gain
19 some insight into his behaviour. And so I am
20 very grateful for those detailed submissions as
21 well.
22 All the information that was provided about
23 Mr. Tobac through these various sources is
24 consistent and I do not propose to repeat all
25 that information here. The presentence report is
26 an exhibit and can be reviewed in its entirety by
27 anyone who wishes to fully appreciate those
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1 circumstances. It would be difficult to
2 summarize that report because it contains a lot
3 of information, so what I will say here is simply
4 my attempt at summarizing its main features.
5 It is clear that Mr. Tobac, the youngest
6 child in his family, grew up in a chaotic
7 environment because his parents abused alcohol.
8 There was violence in the home. There were
9 numerous drinking parties in the home. As a
10 child Mr. Tobac sometimes ran away from his own
11 house to take refuge at his grandmother's house,
12 and other places, to get away from what was going
13 on in his house. Mr. Tobac and his siblings
14 often begged their parents to stop drinking but
15 they did not listen.
16 Mr. Tobac's older siblings tried to protect
17 him from the situation, but they were children
18 themselves. They were able to protect him to an
19 extent but they were not able to do so
20 completely, nor should anyone expect that they
21 could.
22 The presentence report is a heartbreaking
23 read, and the submissions of Mr. Tobac's counsel
24 similarly painted a heartbreaking picture. It is
25 the picture of a little boy growing up with
26 parents who simply were not there for him;
27 parents that he was afraid of; of a little boy
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1 who sometimes hid under beds and tables because
2 he was afraid, ran away from his house, as I have
3 said; woke up in the night to strange parties and
4 strange people drinking in his house; the picture
5 of a child who, generally speaking, lived in fear
6 and loneliness because of bad choices made by the
7 adults who were supposed to care for him; and a
8 little boy who saw his father be violent towards
9 his mother and threaten his siblings when he was
10 intoxicated. That same little boy started
11 consuming alcohol by finishing the drinks left on
12 tables at the end of those parties, after
13 everyone had left or passed out.
14 Mr. Tobac's parents stopped drinking several
15 years ago but that was too late for Mr. Tobac's
16 childhood. That time can never be taken back.
17 I do not say this to undermine the
18 importance of his parents' courage and choice in
19 stopping to drink when they did. I do not say
20 this to suggest that there is no point to change,
21 or no hope for the future. On the contrary,
22 positive change and hope for the future is very
23 much what Mr. Tobac's parents' focus should be,
24 and what Mr. Tobac's focus should be. But I make
25 those remarks more thinking of those who today as
26 I speak, have young children and are making
27 choices that are having a negative impact on
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1 those children. I would hope that stories like
2 this one would compel them to make changes now,
3 when it is still time for their own families. I
4 would hope all parents would realize, through sad
5 cases like this one, what they are actually doing
6 to their children when they allow them to grow up
7 in this kind of chaotic environment; and I hope
8 that Mr. Tobac's parents can play a positive role
9 in their community in helping others make the
10 same choices that they have, choices that will be
11 better for them, for their children and for their
12 communities. Because ultimately it is the
13 communities themselves — and not the courts —
14 that hold the real key to change.
15 This case demonstrates, as so many others
16 do, how the pattern and cycle of violence repeats
17 itself from one generation to the next. The same
18 little boy who begged his parents not to drink
19 and saw violence in the home and was terrified by
20 it, is now an alcoholic who cannot control his
21 rage when he is drinking, to the point that he
22 could seriously harm his spouse, someone who, by
23 the sounds of everything I have heard, was trying
24 very hard to help him. Even after being charged
25 with the first assault and being placed on
26 conditions not to drink, he drank again and he
27 used terrible violence once again against someone
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1 he claimed to love, someone he was intimate with
2 and someone who trusted him and should have been
3 able to count on him for protection. Instead,
4 she was terrorized by him. His actions showed a
5 contemptuous disregard for her wellbeing and her
6 personal, physical, and sexual integrity. Those
7 actions were a terrible breach of the trust that
8 should exist between spouses.
9 It is hard to imagine how frightened she
10 must have been. I heard that she has forgiven
11 Mr. Tobac and it is amazing that she has. She
12 must be very strong and have a very good heart.
13 Her forgiveness is a gift that Mr. Tobac is very
14 lucky to be offered.
15 I said at the beginning that I have to apply
16 the sentencing principles set out in the Criminal
17 Code. I am not going to read the various
18 sections of the Criminal Code that apply to
19 sentencing, but I have considered all of these
20 principles.
21 Some of these principles — deterrence and
22 denunciation — must be given priority in cases
23 like this. Deterrence means discouraging Mr.
24 Tobac and others from behaving in this manner.
25 Denunciation means expressing the Court's
26 unequivocal disapproval of this conduct.
27 Sentences imposed in cases like this have to
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1 reflect the fact that society does not tolerate
2 spousal violence, it does not tolerate sexual
3 violence, and it certainly does not tolerate
4 sexual violence in a spousal context. Sentences
5 imposed must reflect society's disapproval of
6 this type of conduct, and this is especially
7 important when dealing with crimes that are
8 prevalent.
9 Sexual assaults are very prevalent in this
10 jurisdiction, and so is family violence. The
11 spousal violence we hear about in the courts is
12 not always as violent as what I heard in this
13 case and it does not always involve sexual
14 violence, but it is a real problem and it causes
15 a lot of harm.
16 Sadly, this case shows exactly the type of
17 harm it causes, beyond the bruises and the broken
18 bones. A big part of the harm it does is to the
19 children who see it. Mr. Tobac saw violence
20 growing up and he was then a helpless child. But
21 he is not a child anymore and now he is repeating
22 that same pattern, that same violence that
23 terrified him when he was little. And we know
24 this happens, we hear about that cycle all the
25 time. But no one should get used to it. No one
26 should accept that this is just the way life is,
27 because every time it happens it is every bit as
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1 wrong and every bit as sad.
2 As I said, the courts cannot through their
3 sentences resolve the complicated problems,
4 issues and dynamics that lead to family violence.
5 Addressing that issue is far more complicated
6 than imposing a jail term on the offenders. If
7 it was that simple the problem would have been
8 solved a long time ago because courts in this
9 jurisdiction have been imposing jail terms for
10 this type of crime for many, many years.
11 Knowing the limits of what it can do, the
12 Court still does have the responsibility of
13 denouncing this violence and reinforcing the
14 message that it is not acceptable. Courts have
15 to impose sentences that respect the fundamental
16 sentencing principle of proportionality, which is
17 that a sentence should be proportionate to the
18 seriousness of the offence and to the degree of
19 blameworthiness of the person who has committed
20 it.
21 Another important sentencing principle is
22 totality. Here, I have to sentence Mr. Tobac for
23 several offences but I do have to take into
24 account their global effect. Three of the four
25 charges come from the same overall incident, and
26 the first incident relates to something that
27 happened fairly close in time to the other one
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1 and, comparatively speaking, was less serious. I
2 have decided the best way to respect the totality
3 principle, while also imposing sentences that
4 reflect the seriousness of these offences, is to
5 impose concurrent sentences, that is, jail terms
6 on every one of these counts but jail terms that
7 will run at the same time.
8 Another important sentencing principle is
9 restraint. Before imposing a jail term all other
10 available sanctions should be considered, with
11 particular attention to the circumstances of
12 aboriginal offenders. And when a jail term has
13 to be imposed, it should never be any longer than
14 it has to be to achieve the principles of
15 sentencing.
16 The Supreme Court of Canada has provided
17 guidance to sentencing courts about what
18 "restraint" means in the context of sentencing
19 aboriginal offenders. The Supreme Court has said
20 that it means that when sentencing aboriginal
21 offenders, courts must take judicial notice of
22 systemic and background factors that have
23 contributed to the overrepresentation of
24 aboriginal people in Canadian jails, as well as
25 the specific factors that affected the offender
26 before the court.
27 What are we talking about when we are
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1 talking about "systemic factors"? Well we are
2 talking about things like the effects of
3 colonization and displacement; of losing one's
4 culture and identity; the impact that residential
5 schools have had on some who were taken there as
6 young people and removed from their communities
7 and families; how it has affected those people's
8 own parenting abilities when they became parents;
9 issues of poverty; issues of overcrowding
10 sometimes in the communities; lack of resources.
11 These are the types of things that lead to social
12 problems of course. It leads some people, not
13 all but some, to unhealthy lifestyles, excessive
14 consumption of alcohol; it leads to anger and it
15 leads to violence.
16 All of this is very relevant to Mr. Tobac,
17 as is abundantly clear from the presentence
18 report and the submissions of his counsel. This
19 does not reduce the seriousness of the offences
20 he has committed, and the fact that he is
21 aboriginal does not mean there should be an
22 automatic reduction in his sentence. But I am
23 required in law to give his personal
24 circumstances and the things that I have talked
25 about special attention. They are relevant to
26 his level of blameworthiness, which is important
27 when considering proportionality.
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1 Crown counsel has properly noted that there
2 are a number of aggravating factors in this case,
3 and also some mitigating factors. I will start
4 by identifying the aggravating factors which I
5 consider to be most relevant.
6 The first I have already talked about is the
7 fact that these assaults took place in the
8 context of a spousal relationship. The Criminal
9 Code now specifically says that that is an
10 aggravating factor but long before it did, the
11 courts in this jurisdiction, and elsewhere,
12 treated that as an aggravating factor, because
13 violence against a spouse constitutes an
14 appalling breach of the trust that should exist
15 between spouses.
16 The second aggravating factor is the use of
17 a weapon in the second incident, in this case, a
18 potentially lethal weapon - a knife - and, as it
19 happens, two of them.
20 The third is that these were not isolated
21 incidents. It is admitted that they occurred in
22 an overall context of an abusive and controlling
23 relationship.
24 With respect to the second incident, it is
25 aggravating that it was prolonged and involved
26 elements of confinement.
27 It is also aggravating that there was
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1 considerable violence in the second incident —
2 threats and choking. Choking, in particular, is
3 extremely aggravating because choking someone is
4 an inherently very dangerous act.
5 And finally, the fact that during the second
6 incident Mr. Tobac was on an undertaking arising
7 from another assault on his spouse is an
8 aggravating factor, quite apart from the fact he
9 did not comply with the no drinking order. It is
10 extremely aggravating that he committed this
11 further and much more serious offence against
12 her.
13 I also must consider the mitigating factors.
14 I will not repeat here what I have just finished
15 saying about Mr. Tobac's personal circumstances
16 and the principle of restraint. Clearly, those
17 are circumstances that must be taken into
18 account, and I have.
19 The second mitigating factor is that Mr.
20 Tobac pleaded guilty a long time ahead of the
21 date that had been set for his trial. He had
22 previous to that waived his preliminary hearing
23 so the victim never had to testify about these
24 horrible events.
25 Having watched many witnesses testify in
26 sexual assault cases, I know that it is always a
27 very difficult experience and, for some, quite a
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1 traumatic one. Sparing someone from that is
2 sparing them a lot. And it is even more so when
3 dealing with spousal violence, because the
4 dynamics of spousal abuse are complex and very
5 often, even in the face of terrible abuse,
6 victims are not particularly willing to testify
7 against their spouses. The nature of this cycle
8 is such that they often blame themselves. In
9 fact I noted from the presentence report that, to
10 an extent, even this victim appears to blame
11 herself. She is reported by the author of the
12 report as having said that she is at fault for
13 not having encouraged Mr. Tobac to seek
14 counselling; that he is being punished for being
15 an alcoholic; and that she never thought he would
16 spend so much time in jail as a result of her
17 calling the police that night.
18 I want to make it clear — I hope it goes
19 without saying — that none of this is her fault.
20 And Mr. Tobac is not being punished for being an
21 alcoholic. Many people are alcoholics and drink
22 too much but they do not harm others. Mr. Tobac
23 has been in custody and is being sentenced today
24 not because he is an alcoholic but because he
25 committed very serious offences including the
26 violent rape of his spouse.
27 I talk about this aspect, that victims of
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1 spousal violence sometimes blame themselves, in
2 the context of the value of a guilty plea in a
3 case like this. A guilty plea shows remorse of
4 course, and there is no doubt in my mind that Mr.
5 Tobac is sincere in his remorse. But a guilty
6 plea also avoids the victim having to testify and
7 relive the events. And it provides certainty of
8 outcome. Those are all very important things,
9 and I give Mr. Tobac significant credit for his
10 guilty plea.
11 Finally, Mr. Tobac has spent eight and a
12 half months in remand. The Crown agrees that
13 this is a case where I have discretion to give
14 him enhanced credit for this remand time, and the
15 Crown fairly concedes that, given the information
16 that has been placed before the Court by Mr.
17 Tobac's counsel, it is appropriate to give Mr.
18 Tobac the maximum credit available for his remand
19 time which is on a ratio of one and a half to
20 one. This is because he would have earned
21 remission had he been a sentenced serving
22 prisoner during those eight and a half months.
23 I am guided by the principles set out by the
24 Supreme Court of Canada in the case of R. v.
25 Summers. That case clarified how the court
26 should approach the question of whether enhanced
27 credit should be given for remand time. My
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1 understanding of that decision is that where, as
2 here, it is established that the offender would
3 have earned remission, and absent other factors,
4 it is generally appropriate for the court to give
5 the maximum credit for the remand, and I will do
6 that in this case.
7 The Crown seeks a jail term in the range of
8 three to four years for this offence and that
9 range, I say at the outset, is amply justified.
10 It is certainly not exaggerated. It is very,
11 very reasonable considering the seriousness of
12 the offence.
13 That range is also supported by the cases
14 that the Crown filed at the sentencing hearing:
15 R. v. C.(P.D.), 2005 NWTSC 69, R. v. M.(C.), 2005
16 NWTSC 100, R. v. Avadluk, 2009 NWTSC 28, which
17 are from this jurisdiction; and R. v. Gibbons,
18 2007 MBPC 33, which is from Manitoba. In
19 addition to the three cases that the Crown has
20 filed, there are many other cases from this
21 jurisdiction involving serious sexual assaults
22 that show that for a serious sexual assault, and
23 without taking into account any aggravating or
24 mitigating factors, the starting point is in the
25 range of three years. So certainly considering
26 the many aggravating factors that I have already
27 talked about here and even taking into account
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1 mitigating ones, the range that is put forward by
2 the Crown is very reasonable; and in fact the
3 defence does not really argue otherwise because
4 what the defence is asking me to do, in effect,
5 is to impose a sentence at the low end of that
6 range so that with the credit given for the
7 remand time, the sentence can be just under two
8 years and be a sentence in the territorial range.
9 Concretely, this is what it means: If I
10 impose a sentence at the lower end of the range
11 sought by the Crown, it allows me to impose a
12 sentence at the high end of the sentences that
13 would be served in a territorial institution.
14 If I impose a sentence at the high end of
15 the range suggested by the Crown, then, giving
16 credit to Mr. Tobac for his remand time, I would
17 have to impose a further jail term of three years
18 which would be a sentence in the penitentiary.
19 The question then becomes: Should I impose
20 a sentence at the higher end of the range sought
21 by the Crown, which, as I say, would be amply
22 justified given the seriousness of this offence,
23 in order to achieve the principles of sentencing,
24 including deterrence and denunciation? Put
25 another way and focusing on the principle of
26 restraint, the question might be framed as: Is
27 it necessary to impose a penitentiary sentence on
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1 Mr. Tobac? Of course I could do that and make a
2 strong recommendation that he be permitted to
3 serve his sentence in a northern institution, but
4 I cannot order that and I have no control over
5 whether that would happen or not. Is it worth
6 the risk that Mr. Tobac might be sent to a
7 penitentiary in southern Canada at 22 years old
8 and with a minimal criminal record? I am not so
9 sure.
10 The other disadvantage of imposing a
11 sentence in the penitentiary range of course is
12 that it would prevent me from including probation
13 as part of his sentence. And that would mean
14 that at the expiration of the jail term there
15 would be no more supervision or controls in place
16 to assist Mr. Tobac in his efforts to reintegrate
17 in his community and assist him in his
18 rehabilitation. For an offender of his age, I
19 think the more support and the longer period of
20 supervision he has, the better.
21 I have decided that exercising the maximum
22 restraint possible is appropriate in this case,
23 for a few reasons:
24 First, it will guarantee that Mr. Tobac will
25 serve his sentence in a northern institution
26 where he will be closer to his support networks
27 and his family. Hopefully he can be kept in the
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1 same facility where he has been for the last
2 several months, where he has begun to take
3 advantage of some of the programs that are
4 offered there, and where he has begun to make the
5 changes he needs to make.
6 The second reason, which I have already
7 alluded to, is that by imposing a shorter jail
8 sentence I can actually increase the overall
9 reach of this sentence in time, and ensure that
10 Mr. Tobac will be under supervision in the
11 community and benefit from that structure and
12 support and, in this case, certain restrictions
13 that can be included in the probation order. It
14 means a much longer time for him to be bound by
15 outside controls, and in that sense it might be a
16 more onerous sentence than a longer jail term
17 that would simply end with no further
18 restrictions on his freedom afterwards. I have
19 concluded that this option will better protect
20 the public. Because the reach of the Court's
21 sentence will last longer, it might be more
22 conducive to Mr. Tobac's rehabilitation and, at
23 his age, that is the only real effective way of
24 protecting the public in the long term.
25 I want to add a few words about one of the
26 conditions that I will include in this probation
27 order, and that is the condition that Mr. Tobac
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1 abstain from the consumption and possession of
2 alcohol. This is not a condition that I often
3 impose in a probation order because I know that
4 alcoholism is a disease, and I know that
5 prohibiting alcoholics from drinking sometimes
6 simply sets them up for breaches and further
7 difficulties. But Mr. Tobac, and I think he
8 realizes this, has a serious, serious issue with
9 alcohol, and it is not just an alcohol problem.
10 An alcohol problem is an inability to resist the
11 temptation to drink. But as I said, there are
12 many people who have that problem and do not
13 commit criminal offences when they are drunk —
14 and they certainly do not hurt other people, they
15 do not beat their wives, they do not beat their
16 kids, they do not get into fights, they do not
17 damage things, they do not hurt others. They
18 just drink too much. But that is not Mr. Tobac.
19 What Mr. Tobac turns into, or is capable of
20 turning into, when he drinks is, simply put,
21 very, very scary. For the public to be safe, for
22 any spouse of his to be safe, he cannot drink.
23 It is that simple. When he regains his freedom
24 some time from now he should not drink ever
25 again.
26 I do not have the power in sentencing him
27 today to prohibit him from drinking alcohol for
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1 life but I will for as long as the law permits me
2 to. And I certainly hope that down the road if
3 Mr. Tobac needs a reminder of why he should not
4 drink, thinking back to what he did to Ms. K. in
5 February 2013 will be a powerful motivation.
6 The Crown has asked for a number of orders
7 that will be granted in this case.
8 First, there will be a DNA order because
9 this is a primary designated offence and a DNA
10 order is mandatory in this case.
11 There will be a firearms prohibition order
12 commencing today and expiring ten years after Mr.
13 Tobac's release. The order will say that the
14 firearms he has presently are to be surrendered
15 forthwith because he is in custody, so I assume
16 he is not currently in possession of any such
17 items.
18 There will be an order that he comply with
19 the Sex Offender Information Registration Act for
20 a period of 20 years.
21 There will be no victim of crime surcharge
22 because I do have the power to waive the
23 surcharge given the date of this offence. And
24 because of the length of the jail term I am
25 imposing, I do not think it is realistic to
26 impose a surcharge.
27 Mr. Tobac, stand up, please.
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1 Mr. Tobac, for the reasons that I have
2 given, although the sentence could be much
3 longer, and I think you understand that, I am
4 going to keep it at the lower end of what the
5 Crown has asked. So I am going to go along with
6 what your lawyer has suggested. He has convinced
7 me that that is the best approach in this case.
8 For the eight and a half months that you spent
9 already in custody, I am going to give you credit
10 for one year. If it had not been for the time
11 you spent on remand, I would have given you a
12 total sentence of three years. But because I am
13 giving you that credit, for these different
14 charges, in total, I am going to sentence you to
15 a further jail term of two years less one day,
16 and it will be broken down this way for the
17 different offences, because they were all quite
18 serious, especially the first three:
19 For the first assault on February 17th, the
20 sentence is nine months' imprisonment.
21 For the sexual assault, the sentence is two
22 years less one day but served together with the
23 other one.
24 For the assault with a weapon, the sentence
25 is also two years less a day, served at the same
26 time again.
27 And for the breach of undertaking, the
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1 sentence is six months, again served all
2 together.
3 You can sit down.
4 After that, you will be on probation for a
5 period of three years. That is the longest I can
6 make it under the law. The conditions will be
7 that you keep the peace and be of good behaviour
8 — just stay out of trouble is all that means.
9 Within 24 hours of your release you will report
10 to the probation officer in Fort Good Hope. If
11 you do not end up going back to Fort Good Hope
12 for whatever reason, within 24 hours of your
13 release I want you to report to Probation
14 Services in whatever community you are in.
15 There will be a condition that you take any
16 treatment or counselling that is recommended by
17 your probation officer. That is to help you.
18 Hopefully, while you are serving your sentence
19 you will have the benefit of some programs. But
20 then when you are free again it is not going to
21 be easy to adjust necessarily so there might be
22 other things you can do, including AA and
23 possibly other things that you can do that could
24 assist you. I am going to leave it general
25 because I want to leave that up to you and your
26 probation officer to discuss.
27 And finally, for that whole three years you
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1 are not to possess or consume any alcohol.
2 As I said, Mr. Tobac, I do not often put
3 that condition in a probation order, and I do not
4 remember ever putting it in a probation order for
5 a full three years.
6 If you find that it is not possible for you
7 to respect that condition, contact your lawyer
8 and you can take steps to make application to the
9 Court to change it. But the condition is in
10 place until myself or another judge changes it.
11 I tell you that because it is true, if you get to
12 the point where you know that you cannot continue
13 to comply, that is something you can do. But I
14 want you to think really, really hard about that.
15 Alcohol does not change who we are. Alcohol can
16 take away our self-control. When you drink you
17 are a dangerous man. If you do not stop drinking
18 completely, I am worried that you might commit
19 further offences, further serious offences and
20 you may be in court again. And for your sake and
21 the sake of those in your life, I do not want
22 that to happen. Not drinking is hard for an
23 alcoholic and it may be very hard for you, but I
24 do not think it is as hard as having to live with
25 what you have done to Ms. K..
26 You really do have your whole life ahead of
27 you, and you are in charge of it. You can have a
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1 family, you can have children, you can raise them
2 properly in a happy, healthy environment. It
3 really is up to you. And I do not know you
4 actually; I know a lot more about you than I did
5 before this case started but I do not know you.
6 But what I have read and been told,
7 including by you, is that alcohol is not part of
8 that picture you want for your family, for a
9 happy, healthy family or a happy, healthy you.
10 That is why I am putting a no alcohol condition
11 for three years. And if I could make it ten
12 years, I would. I can only make it for three
13 years. The rest after that truly will be up to
14 you.
15 Is there anything that I have missed from
16 the Crown's perspective that I forgot to address?
17 MS. ANDREWS: No, Your Honour. I believe
18 that covers everything, thank you.
19 THE COURT: Mr. Bock, is there anything
20 that you think I have forgotten to address?
21 MR. BOCK: No. Thank you for that
22 sentence, Your Honour.
23 THE COURT: Before we close court I do
24 want to thank counsel for their thorough
25 submissions at the sentencing hearing, they were
26 very helpful. And I want to commend Crown,
27 although it was not you, Ms. Andrews, but I want
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1 to commend Crown and defence for working towards
2 resolving this case without the necessity for a
3 trial. I am sure it is better for everyone
4 involved.
5 Mr. Tobac, I wish you a luck for the future.
6 ..............................
7
8 Certified to be a true and
accurate transcript pursuant
9 to Rule 723 and 724 of the
Supreme Court Rules of Court.
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______________________________
12 Annette Wright, RPR, CSR(A)
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R. v. Tobac, 2014 NWTSC 76 S-1-CR-2013-000048
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
ANTOINE TOBAC
Transcript of Proceedings heard before The Honourable
Justice L. A. Charbonneau, in Yellowknife, in the Northwest
Territories, on October 31, 2014.
APPEARANCES:
Ms. J. Andrews: Counsel on behalf of the Crown
Mr. T. Bock: Counsel on behalf of the Accused
-------------------------------------
Charges under ss. 271 C.C., 267(a) C.C., and 266 C.C. x 2
Ban on Publication of Complainant/Witness
pursuant to Section 486.4 of the Criminal Code
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.