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Abstract: Transcript of the Reasons for Sentence
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R. v. Bessette, 2013 NWTSC 92 S-1-CR-2012-000089 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - KYLE MATTHEW BESSETTE __________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice V.A. Schuler, sitting in Yellowknife, in the Northwest Territories, on the 27th day of November, A.D. 2013. __________________________________________________________ APPEARANCES: Ms. K. Lakusta: Counsel for the Crown Ms. C. Wawzonek: Counsel for the Accused (Charge under s. 5(1) Controlled Drugs and Substances Act) Official Court Reporters 1 MS. LAKUSTA: Good afternoon, Your Honour. 2 MS. WAWZONEK: Good afternoon, Your Honour. 3 THE COURT: Good afternoon. Is there 4 anything that Crown counsel would like to address 5 before I sentence, Mr. Bessette? 6 MS. WAWZONEK: No, Your Honour. Thank you. 7 MS. LAKUSTA: No thank you. 8 THE COURT: All right. 9 Kyle Matthew Bessette has been convicted of 10 trafficking in cocaine, contrary to Section 5(1) 11 of the Controlled Drugs and Substances Act. He 12 has admitted in an Agreed Statement of Facts, 13 filed as Exhibit 1 in these proceedings, that on 14 November 20, 2010, outside the Raven Pub here in 15 Yellowknife, he sold two spitballs or packages of 16 cocaine consisting of 0.7 grams each to an 17 undercover police officer for $200. 18 Mr. Bessette argued that he was entrapped by 19 the police; however, that argument was found to 20 be without merit in a decision I delivered on 21 July 16, 2013. I will not go into all the 22 background that is set out in that decision. 23 It will suffice to say that the 24 circumstances of the sale are that on the night 25 in question, the RCMP, as part of an operation 26 aimed at street-level trafficking in Yellowknife, 27 had undercover officers in the Raven Pub, a bar Official Court Reporters 1 1 known as a place where drug transactions 2 occurred. 3 Although there were a number of individual 4 targets who were the subject of the operation, 5 Mr. Bessette was not one of the targets. The 6 undercover officers were asking various 7 individuals, at random, about drugs, and as 8 Mr. Bessette was walking by the table where the 9 undercover officers were sitting, one of them 10 asked him, "Do you have any party favours? which 11 the undercover officer testified is a term used 12 for drugs here in Yellowknife. Mr. Bessette 13 asked, "What kind?" The undercover officer said, 14 "White," which he testified is a term for 15 cocaine. Mr. Bessette asked, "You want one?" 16 which the undercover officer understood to be one 17 gram, and he replied, "Actually, I want two. One 18 for me and one for my girlfriend." Mr. Bessette 19 then said, "Okay, I'll hook you up," went to the 20 bathroom area of the pub, and, after a while, he 21 and the two undercover officers went outside and 22 he produced the cocaine and received the money. 23 One of the undercover officers testified 24 that Mr. Bessette gave him his telephone number. 25 The other undercover officer said that the first 26 undercover officer asked Mr. Bessette for his 27 telephone number. So there was a conflict in the Official Court Reporters 2 1 evidence about that, but the evidence was that 2 there was some discussion between Mr. Bessette 3 and the undercover officer about later contact by 4 text. 5 The pre-sentence report relates that 6 Mr. Bessette says he was drunk. He used the word 7 "hammered" to the author of the pre-sentence 8 report. So he stated that he was in that 9 condition when he committed the offence and that 10 he did not know what "party favours" meant and, 11 being drunk, he just wanted to help out. But 12 based on the evidence that I have just reviewed, 13 which is the only evidence before me about the 14 conversation, I really cannot accept that 15 Mr. Bessette did not know what "party favours" 16 meant. That simply does not fit at all with the 17 conversation that the police officer testified 18 took place. I can accept that Mr. Bessette was 19 drinking because he was, after all, in a bar, but 20 I am not able to make any finding on the evidence 21 as to the extent of his intoxication. In any 22 event, he was able to obtain cocaine within a 23 very short period of time. 24 In this case, I do have the benefit of a 25 very thorough and a positive pre-sentence report. 26 It indicates that Mr. Bessette is now 25 years 27 old. So he would have been 22 at the time of the Official Court Reporters 3 1 offence. His parents are very supportive of him. 2 He was born in Saskatchewan but has lived in 3 Yellowknife since he was in Grade 3. He now 4 lives in Alberta with his fiancée and her 5 daughter, and the pre-sentence report indicates 6 that it is his intention to stay there. 7 He related to the author of the pre-sentence 8 report that he had a stable upbringing with no 9 alcohol or drug abuse in the home and that his 10 parents were supportive and took an interest in 11 their large family, and I have noted that they 12 have been here in court with him and that they 13 have been supportive during these proceedings. 14 Mr. Bessette has a Grade 11 education. He 15 is interested in vehicles and apparently it is 16 his goal to open his own garage and operate a 17 motor vehicle business or a business as a 18 millwright. He has worked consistently since 19 leaving high school and is currently employed 20 with a company for which he has worked for almost 21 a year. He has been with his fiancée for two 22 years. When interviewed by the probation 23 officer, the fiancée indicated that she has never 24 known Mr. Bessette to use drugs. She also 25 described him as a wonderful father to her 26 daughter and indicates that he has assisted in 27 supporting them both financially and emotionally. Official Court Reporters 4 1 The pre-sentence report also indicates that 2 Mr. Bessette's current supervisor at work speaks 3 very positively of him, and it appears that he 4 will still have a job there despite his 5 conviction for this offence. 6 Mr. Bessette has had some problems. He told 7 the author of the pre-sentence report that he 8 began drinking at the age of 14 and was drinking 9 on a weekend basis throughout high school. It 10 seems, however, that he rarely drinks at present. 11 This is confirmed by information from his mother 12 who indicated to the probation officer that she 13 had concerns at one time about his binge 14 drinking, but she no longer sees him doing that, 15 and it is also confirmed by the information from 16 his fiancée. He has experimented with illegal 17 drugs in the past. 18 It is indicated in the pre-sentence report 19 that his mother left Mr. Bessette's biological 20 father when Mr. Bessette was quite young and that 21 the biological father was abusive to both 22 Mr. Bessette and his mother. 23 Mr. Bessette is of Metis descent. His 24 grandfather attended residential school and there 25 was alcohol and abuse in his home when 26 Mr. Bessette's mother was growing up there, 27 which, according to the information in the Official Court Reporters 5 1 pre-sentence report, led to his mother taking 2 precautions for Mr. Bessette's safety when in the 3 presence of the grandfather when Mr. Bessette was 4 a child. 5 The author of the pre-sentence report notes 6 that Mr. Bessette appears now to be on a positive 7 path and I accept that assessment. Certainly all 8 of the information that has been placed before me 9 indicates that. 10 Mr. Bessette does have a criminal record 11 which consists of convictions in June, 2009, for 12 driving with over 80 milligrams of alcohol in his 13 blood and failing to appear in court and, in 14 November 2009, convictions for driving while 15 disqualified and failing to attend court. He 16 received one day in jail for driving while 17 disqualified and fines for the other offences. 18 There is of course no Victim Impact 19 Statement in this case, but as has been pointed 20 out in other cases, trafficking in cocaine is not 21 a crime without a victim. This community is 22 littered with victims of the drug trade, people 23 who have lost money, lost employment, their homes 24 and sometimes their families because of addiction 25 to cocaine, people who have been beaten or killed 26 because they were involved in the drug trade or 27 because they were seen as a threat to those Official Court Reporters 6 1 involved in the drug trade, and it is only ten 2 years ago that a young man was beaten and his 3 body burned out by Yellowknife River because of 4 his involvement in the drug trade. The list goes 5 on and on and references to the consequences of 6 the drug trade, particularly the trade in 7 cocaine, can be found in innumerable cases 8 decided in this court. 9 We do not hear about the devastating effects 10 of cocaine only in criminal court, we also hear 11 about it in family court. We often hear from one 12 parent that the other parent is hooked on cocaine 13 and, because of it, cannot properly care for the 14 children or is a danger to the children or 15 becomes violent when they are on cocaine. 16 Mr. Bessette heard Crown counsel read a 17 quote from the Turner case, decided by Justice 18 Richard in 2006, in which he said, "Those who are 19 involved in the supply and sale and trafficking 20 of cocaine are like vultures or predators who are 21 preying upon those weak members of the community 22 who are addicted to this drug." And I need not 23 repeat that quote in detail, but I hope that 24 Mr. Bessette was listening. 25 I do have some concern about Mr. Bessette's 26 attitude to what he did. As I said, the 27 pre-sentence report indicates that he says he was Official Court Reporters 7 1 drunk; he did a stupid thing; he was just trying 2 to help out. Yes, it was stupid. It was also 3 criminal. And who was he trying to help out? A 4 drug dealer who does not care whose life is 5 ruined so long as he makes money? The undercover 6 police officer who was posing as a guy looking 7 for drugs, a guy who, for all Mr. Bessette knew 8 at the time, could have been spending his money 9 on cocaine, leaving his kids without enough food. 10 Those are things Mr. Bessette needs to think 11 about, and I am sure did not think about on the 12 night in question. On the other hand, 13 Mr. Bessette is clearly sorry for the 14 consequences that his offence has had for his 15 family. So he recognizes that he is not the only 16 one who is affected by what he did. 17 The law provides that for trafficking in 18 cocaine, the maximum sentence that the Court can 19 impose is life imprisonment. So it is one of the 20 most serious offences in our law and that is 21 reflected in the way that drug trafficking has 22 been dealt with by this court and other courts 23 across Canada when sentencing for it. 24 In the Desjarlais case, 2007 NWTSC 23, at 25 tab 1 of the Crown's authorities filed in this 26 matter, Justice Richard noted that the range for 27 cases of trafficking in cocaine here in the Official Court Reporters 8 1 Northwest Territories is between nine months and 2 three and a half years imprisonment in cases 3 involving low to mid-level trafficking. It 4 always depends, of course, on the circumstances 5 of the offence and the offender. And the other 6 cases that are relied upon by the Crown certainly 7 fall into that category. There are many, many 8 cases from this court going back to at least the 9 1980s that talk about how drug trafficking is a 10 serious problem in this community and that those 11 who traffic in cocaine must expect significant 12 sentences. 13 In 2010, in the Kara Dennill, case, I said 14 that "sentences that have been imposed for drug 15 trafficking do not seem to have discouraged drug 16 trafficking in this community" and that "It may 17 be a reason to start imposing even longer 18 sentences in appropriate cases. At the same 19 time", and again this is something that I said in 20 the Dennill case, "the Court has to bear in mind 21 the principle of parity - that sentences imposed 22 on similar offenders for similar offences should 23 not be so different as to result in a perception 24 that people are not being treated equally or 25 fairly." 26 Defence counsel relied on two authorities 27 for the submission that a non-custodial sentence Official Court Reporters 9 1 should be imposed in this case. The first is the 2 Jaber case, 2007 A.J. No. 1320, a decision of the 3 Alberta Court of Appeal, which says there is no 4 presumption against imposing a conditional 5 sentence for a cocaine trafficker assuming, of 6 course, that all the statutory prerequisites have 7 been met. Nor, the case says, is there a 8 presumption in favour of a conditional sentence. 9 In that case, the Court of Appeal said that 10 having regard to the accused's guilty plea, his 11 positive pre-sentence report, his unrelated 12 record, the minimal level of trafficking (which 13 was the sale of .8 of a gram of crack cocaine to 14 an undercover officer), strong family support, in 15 light of all those factors, a conditional 16 sentence that carries strict conditions was 17 appropriate. And of course the Northwest 18 Territories Court of Appeal is largely made up of 19 members of the Alberta Court of Appeal, so that 20 decision does carry significant weight. It may 21 of course be affected in terms of its adoption by 22 local conditions, but clearly it says that a 23 conditional sentence can be appropriate in some 24 cases. 25 Defence counsel also relied on a 2013 26 decision by -- actually, I think it was 2012, the 27 decision itself, but it is reported at 2013 NWTSC Official Court Reporters 10 1 02, and that is the case of Taggart, and that 2 case involved a joint submission by Crown and 3 defence. I note that Justice Charbonneau 4 expressed some reservations about agreeing with 5 it, but she did, in the end, accept it and 6 sentenced Mr. Taggart to two years less a day to 7 be served in the community on strict conditions. 8 Mr. Taggart was targeted, apparently, in the 9 same operation that was undertaken here. He was 10 targeted because he was involved in selling 11 cocaine in a dial-a-dope operation. On two 12 separate occasions, he sold to an undercover 13 officer, first 200 grams, then 300 grams. He 14 pled guilty to two counts of trafficking in 15 cocaine, he had no criminal record, and he was 19 16 years old when he committed the offences. So in 17 that case there was a guilty plea and a joint 18 submission, which is quite significant. However 19 the circumstances of that offence, in my view, 20 are also more serious than the circumstances of 21 the offence Mr. Bessette committed. 22 Mr. Bessette did not plead guilty in this 23 case, although he did admit that he sold the 24 drugs to the undercover officer. He sought a 25 stay of the conviction on the basis of police 26 entrapment, which, as I have noted, was not a 27 successful argument. I do acknowledge of course Official Court Reporters 11 1 that he is not to be more harshly punished just 2 because he did not plead guilty. Defence counsel 3 submitted that his acknowledgment, his admission, 4 of the offence itself is the equivalent of a 5 guilty plea. I was inclined to think that it is 6 not, but having thought about it some more, I 7 have concluded that in the circumstances of this 8 case, it is very close to a guilty plea because 9 Mr. Bessette did admit the offence. His position 10 was simply that he should not be convicted 11 because of the circumstances in which the police 12 undercover officers approached him; and as I say, 13 in his argument, that amounted to entrapment, 14 although that argument was not accepted. So in 15 the end, on balance, I have concluded that indeed 16 there should be mitigation in his admission of 17 the offence itself. 18 There are really no aggravating factors in 19 this case except that the offence was committed 20 only about a year after Mr. Bessette had been 21 sentenced for the unrelated offences on his 22 record. 23 The principles of sentencing that this court 24 and others have said are of paramount importance 25 in cases of drug trafficking are denunciation, 26 first of all, and that simply means expressing 27 the community's condemnation and rejection of Official Court Reporters 12 1 drug trafficking, and deterrence, meaning that 2 the sentence should be significant enough that it 3 would discourage other people from trafficking in 4 drugs. 5 I also have to bear in mind the principle of 6 proportionality, and that means that a sentence 7 should reflect the seriousness of the offence and 8 the degree of responsibility of the offender. 9 There is no question that trafficking in cocaine 10 is serious. This court has said that many times. 11 As far as Mr. Bessette's degree of 12 responsibility, I am satisfied that he knew what 13 he was doing, however much he had had to drink. 14 Even if he was not otherwise involved in the drug 15 trade, he knew how to get cocaine fairly quickly 16 and he was willing -- or said he was willing to 17 at least arrange a line of communication with the 18 undercover officer by providing his telephone 19 number. The only thing that makes Mr. Bessette's 20 degree of responsibility, or what we sometimes 21 call moral blameworthiness, somewhat less than in 22 other cases is that the police approached him at 23 random and he did not approach them and was not 24 actively engaged in -- he was not engaged in drug 25 trafficking when the police observed him. 26 Since Mr. Bessette is aboriginal, Section 27 718.2(e) of the Criminal Code requires that I Official Court Reporters 13 1 give particular consideration to whether a 2 sanction other than imprisonment would be 3 reasonable in the circumstances. Other than the 4 issues involving his grandfather and his 5 biological father, whom I have already referred 6 to (and his biological father was not present in 7 his life for very long), Mr. Bessette's family 8 background seems to have been free of the 9 difficulties that are often present in aboriginal 10 families, such as alcohol abuse and family 11 violence, and, instead, he has received 12 consistent support from his family and looks back 13 on his upbringing as positive. So the issues 14 that are often at the forefront under Section 15 718.2(e) do not appear to have played a role in 16 Mr. Bessette having committed this offence. 17 It is often said that sentencing is one of 18 the hardest and perhaps the hardest task that a 19 judge has, and this case illustrates that quite 20 well. 21 Mr. Bessette comes before the Court as 22 someone who, from all accounts, has really turned 23 his life around; he has matured; he has taken on 24 family responsibilities, and I accept that in 25 many ways he is no longer the young man that he 26 was in November 2010. So I have to consider that 27 on the one hand. On the other hand, I have to Official Court Reporters 14 1 consider the long-standing practice in this court 2 for the offence that Mr. Bessette committed, for 3 that type of offence, and the reasons for that 4 practice. 5 Crown counsel is seeking a sentence of 12 to 6 15 months in jail to be followed by probation of 7 up to 18 months, and there is no question that 8 that falls within the usual range of sentences 9 for this type of offence. Defence counsel does 10 not take issue with the length of the sentence 11 sought by the Crown or the probation, but says 12 that a conditional sentence - in other words, a 13 sentence to be served in the community - would be 14 appropriate in this case. Since parity - in 15 other words, in order to treat Mr. Bessette on an 16 equal basis with others who have committed a 17 similar offence - makes a sentence of less than 18 two years appropriate in this case, then the next 19 step in terms of considering whether there should 20 be a conditional sentence is to consider whether 21 there would be a danger to the community if 22 Mr. Bessette were to serve his sentence in the 23 community and then whether a conditional sentence 24 would be consistent with the fundamental purpose 25 and principles of sentencing; and the fundamental 26 purpose of sentencing is to contribute to respect 27 for the law and the maintenance of a just, Official Court Reporters 15 1 peaceful, and safe society by imposing just 2 sanctions. So I will deal, first, with danger to 3 the community. 4 Based on the information before me, I am 5 confident that Mr. Bessette does not pose a 6 danger to the community. There is no reason to 7 think that he will reoffend. There are reasons 8 to think that he will not reoffend, because from 9 all reports he has matured, he has taken on new 10 responsibilities and is fulfilling them, as I 11 have said. So there are indications that he has 12 changed his life. So the real issue is whether a 13 conditional sentence would be consistent with the 14 fundamental purpose and principles of sentencing, 15 and of course the principles that are of most 16 concern are denunciation and deterrence. 17 Since we were here in court yesterday, I 18 have done what I think and I hope is a fairly 19 thorough review of cases in this court going back 20 to the 1980s where an offender was sentenced for 21 trafficking in cocaine, and unlike most, if not 22 all, of those other cases, as I have said, 23 Mr. Bessette was not targeted by the police; he 24 was randomly selected. And although, as I have 25 found, the police did nothing wrong, that fact - 26 in other words, that they picked him out; he did 27 not approach them - is a distinguishing factor. Official Court Reporters 16 1 In the other cases that I have reviewed, either 2 the offender was targeted or the case is silent 3 on that point, but the circumstances suggest that 4 the police had prior knowledge or information 5 that the offender was involved in drug activity. 6 So here the evidence is that Mr. Bessette was 7 presented with an opportunity and he took it. 8 He knew the drug lingo, he knew where to get 9 cocaine, but there is no evidence that he was 10 actually involved in drug trafficking prior to 11 this offence, and it is certainly conceivable 12 that he knew about drugs and the language from 13 friends who were drug dealers or from hanging 14 around at the Raven, which, from the evidence of 15 the police officers on the entrapment hearing, 16 certainly at that time had a good share of drug 17 activity going on in it. 18 So as I have said, there is no evidence that 19 Mr. Bessette had any prior involvement in drug 20 dealing. The evidence about providing his 21 telephone number simply amounts to an indication 22 that he was perhaps leaving the door open to 23 considering another transaction with the 24 undercover officer. 25 I will say that I am somewhat puzzled, and I 26 am hoping that is not too strong a word, by the 27 difference in the position taken by the Crown in Official Court Reporters 17 1 this case as compared to the Taggart case. 2 Mr. Taggart was, from my reading of that case, 3 operating a dial-a-dope business as opposed to 4 Mr. Bessette who, in this case, was simply 5 randomly selected. So notwithstanding the 6 various considerations that were presented by the 7 Crown as reported in the Taggart case in support 8 of a conditional sentence, I find the activity in 9 the Taggart case more serious than in this case. 10 Crown counsel submitted that because of his 11 convictions for failing to comply with court 12 process or orders in 2009, the Court should be 13 concerned about whether Mr. Bessette will obey a 14 conditional sentence order, and Crown counsel 15 also pointed to Mr. Taggart's situation and says 16 that he has breached his conditional sentence 17 order since it was imposed. I do not think it 18 would be appropriate for me to take Mr. Taggart's 19 situation and say that necessarily Mr. Bessette 20 would act the same way. I certainly do not know 21 enough about Mr. Taggart's situation. But I am 22 persuaded, based on all the information before 23 me, that Mr. Bessette has changed his ways since 24 2009 and 2010; and I am not persuaded of that 25 simply because he is saying that he has changed 26 or that he wants to change or that he will 27 change, but, in fact, there is evidence that he Official Court Reporters 18 1 has made changes. As I said, he has taken on 2 family responsibilities; he's doing well at his 3 job; he's very involved with his new fiancée and 4 her child. So from all appearances, he has made 5 a break with the Yellowknife bar and drug scene. 6 He was very emotional when he spoke 7 yesterday, and I am satisfied that he takes 8 seriously the impact that his actions in November 9 2010 have had and will yet have on his life and 10 the lives of those he cares for. So, in this 11 case, I do not view the prior convictions on his 12 records as a bar to a conditional sentence order, 13 nor do I view them as an indication that he is 14 not likely to follow conditions. 15 The new life that Mr. Bessette has made for 16 himself is in Alberta. As I understand it from 17 the pre-sentence report, his residence is in 18 Devon, a community of approximately 3,000 people. 19 The pre-sentence report indicates that community 20 has the resources to monitor a conditional 21 sentence order. In that small town, I would 22 expect that it is likely that Mr. Bessette will 23 be more visible, his status as an offender on a 24 conditional sentence order more widely known, and 25 his activities under more scrutiny than even here 26 in Yellowknife; and, in fact, I have to say it 27 seems to me that it would be far better for Official Court Reporters 19 1 Mr. Bessette to be there in Devon doing what he 2 is doing there than here in Yellowknife where 3 there is always a risk of him getting involved 4 with or being influenced by his old associates. 5 So stand up please, Mr. Bessette. I have 6 balanced all the factors that I have to in this 7 case and I have decided, Mr. Bessette, to take a 8 chance on you. I have decided that the 9 principles of denunciation and deterrence can be 10 adequately served in your case and that it would 11 be in accordance with the fundamental principles 12 of sentencing to put you on a conditional 13 sentence. But, and you heard this said 14 yesterday, there has to be a punitive effect. In 15 other words, it is not a get-out-of-jail-free 16 card, so to speak. There are going to be strict 17 conditions. They are going to mean that you 18 simply will not be able to do a lot of the things 19 that you are used to doing, even with your 20 family, and you may even at some point think, 21 well, maybe it would have been easier to go to 22 jail. But I am going to give you a chance 23 because I think you have shown that you can turn 24 things around. So I am going to -- I am 25 imposing a sentence on you of 15 months. It is a 26 jail sentence, but it will be served in the 27 community subject to the conditions of a Official Court Reporters 20 1 conditional sentence order, and they are fairly 2 lengthy, so you can have a seat, but I want you 3 to listen very carefully. 4 THE ACCUSED: Yes, Your Honour. 5 THE COURT: First of all, there will be 6 the mandatory conditions that have to be in every 7 conditional sentence order. So, first, you will 8 keep the peace and be of good behaviour. I am 9 sure you understand what that means. 10 THE ACCUSED: Yes. 11 THE COURT: You do not get into any 12 trouble. You will appear before the Court when 13 required to do so. You will report to a 14 conditional sentence supervisor here in 15 Yellowknife within two working days after the 16 making of this order and thereafter when required 17 by the supervisor and in the manner directed by 18 the supervisor. 19 The next condition is also a mandatory 20 condition, although in light of the fact that 21 Mr. Bessette has been living and working in 22 Alberta, I will address it further on, but for 23 now, the mandatory condition is: You will remain 24 within the jurisdiction of the Court - in other 25 words within the Northwest Territories - unless 26 written permission to go outside the Northwest 27 Territories is obtained from the Court or the Official Court Reporters 21 1 supervisor. Number 5, you will inform the Court 2 or the supervisor in advance of any change of 3 name or address and promptly notify the Court or 4 the supervisor of any change of employment or 5 occupation. 6 So now the optional conditions. In other 7 words, these are the conditions that I have 8 decided to impose. So this is condition number 6 9 in the order. You will perform 160 hours of 10 community service work within one year to the 11 satisfaction of the conditional sentence 12 supervisor and at a rate satisfactory to the 13 supervisor. You will also provide proof of 14 completion of the community service hours at such 15 times and in such form as directed by the 16 supervisor. Number 7, you will participate in 17 any counselling or treatment programs recommended 18 by your supervisor. Number 8, you will reside 19 only where approved by your supervisor. Number 20 9, and this is a house arrest condition, you will 21 remain in your residence or on its grounds at all 22 hours except: when at your place of employment 23 for purposes of work - that is the first 24 exception; for travelling directly to or from 25 work; for performing your community service hours 26 and for travelling directly to and from your 27 residence for that purpose; when authorized by Official Court Reporters 22 1 your supervisor to be absent from your residence; 2 when attending court as required; when attending 3 to medical emergencies involving yourself or your 4 immediate family; when attending for treatment or 5 counselling; and when reporting to your 6 supervisor. A further exception to this house 7 arrest provision is that you may attend a shop 8 for groceries or other necessities of life for a 9 total of no more than three hours each week. 10 Condition number 10, you will provide a copy of 11 your work schedule to your supervisor and notify 12 the supervisor immediately of any changes to that 13 schedule. Number 11, when in your residence, as 14 required by this order, you will facilitate the 15 supervision of your compliance with this order by 16 presenting yourself at the door of your residence 17 when requested to do so and by answering or 18 coming to the telephone when the supervisor 19 calls. Number 12, you will carry on your person 20 at all times when not in your residence a copy of 21 this conditional sentence order. Number 13, you 22 will abstain absolutely from the consumption of 23 alcohol. Number 14, you will abstain absolutely 24 from the consumption of drugs, except in 25 accordance with a medical prescription. 26 Now, the 15th condition that I was going to 27 put in, and I will just say, Counsel -- Is there Official Court Reporters 23 1 anyone here from Social Services? No. All 2 right. I certainly in the past have given a 3 conditional sentence order when the person in 4 question has not been residing in the Northwest 5 Territories, and, as you know, under Section 6 742.5 there is a provision that an order can be 7 transferred to another jurisdiction. Now, I am 8 not sure -- And I should say that I do recall in 9 a case where a conditional sentence order was 10 imposed -- It was not a case similar to this 11 one, but in any event, I recall being presented 12 at one point in time with an order that the 13 conditional sentence essentially be transferred 14 to the Province of Ontario. I am looking at page 15 4 of the pre-sentence report, and the probation 16 officer spoke to a probation officer in Alberta 17 and what she says here is that they would accept 18 this file if Kyle was to receive a 19 community-based sentence. So I do not know 20 whether that is separate and apart from 21 transferring. Are you with Social -- 22 Probation -- 23 PROBATION OFFICER: I'm with Probation Services. 24 Michelle Marshman, Your Honour. No, that would 25 be accepted. Conditional sentence orders are 26 transferable. They might request a 27 jurisdictional transfer, but that's separate. Official Court Reporters 24 1 THE COURT: Oh, that is a whole 2 separate -- 3 PROBATION OFFICER: That's a separate process than 4 what you would have to be dealing with today, 5 Your Honour, and that would come from Alberta. 6 And what we would do is Mr. Bessette would be 7 meeting with me today or tomorrow and then all 8 information, including the order, would be sent 9 down over to the probation officer and 10 conditional sentence supervisor that will be 11 helping him in Alberta, and it's pretty quick and 12 simple that way. 13 THE COURT: All right. So -- 14 PROBATION OFFICER: To answer your question in 15 short, it is considered to be a community-based 16 sentence, yes. 17 THE COURT: So even though the order is 18 made here in the Northwest Territories, they will 19 supervise it in Alberta without an Alberta 20 court -- 21 PROBATION OFFICER: Without an Alberta -- 22 THE COURT: -- adopting it? 23 PROBATION OFFICER: Yes, Your Honour. Sorry to 24 interrupt you. I will need a certified copy 25 eventually, and that is essentially what they 26 will require should he breach. 27 THE COURT: All right. Thank you. Official Court Reporters 25 1 Well, then I think the only thing I need to 2 do in light of the condition that he remain in 3 the jurisdiction is simply add the condition that 4 notwithstanding that clause, he may leave the 5 Northwest Territories to reside in Devon, 6 Alberta, and to work in Alberta. It seems to me 7 that way he is not in breach of the first 8 condition I mentioned about remaining within the 9 jurisdiction of the Court. 10 Now, if either of you has any concern about 11 that, please tell me. I just want to make sure 12 that it is clear he has got permission to go back 13 to Alberta. In fact, I want him to go back to 14 Alberta, but I do not want to run into a problem 15 because of that condition. So it sounds like it 16 will not be a problem from the point of view of 17 supervision of the order, and I suppose as long 18 as there is something in the order that says he 19 can go to Alberta, he is not going to be in a 20 situation where he is in breach because he leaves 21 the Northwest Territories. 22 MS. WAWZONEK: I have no concerns, Your 23 Honour. 24 THE COURT: Any concerns from your point 25 of view? 26 MS. LAKUSTA: (Negative, non-verbal 27 response). Official Court Reporters 26 1 THE COURT: So that's fine. So, 2 Mr. Bessette, do you understand all of those 3 conditions? There are a lot of them. 4 THE ACCUSED: Do I stand up or -- Yes, I 5 understand. 6 THE COURT: All right. I am not going to 7 impose probation in this case. I think that the 8 15 months with all the conditions I mentioned 9 will be sufficient. 10 Now, I just want to make it clear that the 11 conditions that I have referred to remain in 12 place for the entire 15 months; it is just that 13 the community service work has to be completed 14 within 12 month. In other words, a year. 15 Now, in accordance with Section 742.3(3), I 16 do direct that a copy of the conditional sentence 17 order be given to Mr. Bessette. 18 I also have to advise you, Mr. Bessette, 19 that under Section 742.4 of the Criminal Code, 20 your supervisor may, on notice to you and the 21 prosecutor and under certain conditions, may 22 request a change to the optional conditions. In 23 other words, the conditions that I have put in 24 that are not the mandatory ones. If that 25 happens, there are procedures for a hearing about 26 that. 27 Under Section 742.6 of the Criminal Code, Official Court Reporters 27 1 breach of any of the conditions of the order may 2 result in your arrest and you may be ordered to 3 serve the rest of your sentence in jail. Just so 4 you are aware, one thing that I do remember about 5 Mr. Taggart is that he appeared here in court -- 6 I do not know what happened to his breaches, but 7 he certainly spent some time in custody waiting 8 to find out what was going to happen to his 9 breach. To the breach charges, I mean. I want 10 you to be aware that that is a possibility too. 11 So the clerk will explain that further to you and 12 will also explain to you the procedure by which 13 you can apply under Section 742.4 for a change to 14 the optional conditions. In other words, how you 15 can go about making that application. 16 As to the ancillary orders, defence counsel 17 did not take issue with the ancillary orders that 18 are sought by the Crown. This is a secondary 19 designated offence, however. So as far as the 20 DNA order is concerned, I still have to consider 21 whether to make the order. I have considered 22 Mr. Bessette's criminal record. I have 23 considered the seriousness of the offence he 24 committed and the circumstances surrounding its 25 commission, and I have considered the importance 26 of DNA for the police as an investigative tool 27 and the other purposes of maintaining a DNA Official Court Reporters 28 1 database as set out in the Alberta Court of 2 Appeal decision in the North case that was 3 submitted. I take into account that the 4 procedure for the taking of a DNA sample involves 5 minimal intrusion and that no particular or 6 unusual impact on Mr. Bessette's privacy or 7 security of the person has been advanced. And so 8 considering the balancing that the Court said in 9 North should be undertaken, I rule that the 10 balance weighs such that the order will be made. 11 There will also be a firearm prohibition 12 order which is mandatory for this offence. It 13 will commence today and expire ten years from 14 today, and any firearms or other items covered by 15 Section 109 are to be surrendered to the RCMP 16 forthwith. 17 I am not going to waive the victim of crime 18 surcharge. Mr. Bessette is working, so he will 19 have to pay the surcharge. That is a surcharge 20 that is designed to go to a fund to assist 21 victims of crime. 22 I am going to ask that there be a transcript 23 of what I have said today and that it be 24 expedited and a copy provided to the conditional 25 sentence supervisor when it is available. 26 Is there anything else, Counsel, that I have 27 not covered that I should have? Official Court Reporters 29 1 MS. LAKUSTA: No. Thank you. 2 MS. WAWZONEK: No, Your Honour. Thank you. 3 THE COURT: Mr. Bessette, I hope you 4 realize I am giving you a chance here. I realize 5 that. I think that it is warranted in your 6 situation, and I really do not want to see you 7 either misuse it or abuse it. You have done some 8 good things and you need to stay on that path. 9 So if I see you back here, I hope it is only 10 because someone wants a change in one of the 11 conditions of the order and it is not something 12 controversial. All right. 13 So if there is nothing else, then we will 14 close court. Thank you. 15 ................................. 16 17 18 Certified Pursuant to Rule 723 of the Rules of Court 19 20 21 Jane Romanowich, CSR(A) 22 Court Reporter 23 24 25 26 27 Official Court Reporters 30
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