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Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
R. v. Hunter, 2013 NWTSC 90 S-1-CR-2012-000047
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
EAGLE QUILL HUNTER
__________________________________________________________
Transcript of the Reasons for Sentence delivered by The
Honourable Justice K. Shaner, sitting in Yellowknife, in
the Northwest Territories, on the 28th day of October,
A.D. 2013.
__________________________________________________________
APPEARANCES:
Mr. B. MacPherson: Counsel for the Crown
Mr. P. Falvo: Counsel for the Accused
(Charges under s. 268 of the Criminal Code of Canada)
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1 THE COURT: Counsel, I did have an
2 opportunity to review your submissions and
3 consider them. So I am in a position to give my
4 reasons for sentence and to impose sentence on
5 Mr. Hunter.
6 As we know, on October 11th, 2013, Mr.
7 Hunter was found guilty on one charge of
8 aggravated assault by a jury here in Yellowknife.
9 The victim is Harry Joe Sabourin, and Mr.
10 Sabourin testified at the trial and gave an
11 account of the assault. Mr. Hunter testified as
12 well and he gave a different version of what
13 happened. He claimed that he was defending
14 himself. Given that the jury returned a verdict
15 of guilt on this count on the Indictment, it is
16 clear that they did not accept Mr. Hunter's claim
17 of self-defence. However, as the Crown pointed
18 out, it is impossible to tell on what basis that
19 was rejected.
20 There were several versions through the
21 witnesses of what happened. In other words,
22 there were a lot of unknowns, and, in large part,
23 I think this is due to the fact that there was a
24 great deal of alcohol consumed at the party,
25 which no doubt interfered with the memories of
26 many witnesses and their ability to recall the
27 details of the events. The events were also
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1 viewed from different vantage points by different
2 witnesses in the room where the incident took
3 place and that might account for many of the
4 differences as well.
5 What is clear, however, is that during the
6 afternoon and the evening of June 25th, 2011,
7 there was a party at an apartment in Yellowknife
8 and Mr. Sabourin and Mr. Hunter, previously
9 unknown to each other, were both there.
10 Subsequently, Mr. Hunter and Mr. Sabourin were
11 involved in a fight that started in the living
12 room of the apartment and Mr. Hunter introduced a
13 weapon into that fight, in particular a broken
14 liquor bottle. Mr. Sabourin suffered significant
15 injury. He had cuts to his head and his arms and
16 he required surgery to fix a lacerated artery.
17 Someone called an ambulance for him and the
18 police also attended at the scene.
19 Mr. Falvo, as defence counsel, provided
20 information to the Court about Mr. Hunter's
21 background and circumstances. Mr. Hunter is a
22 29-year-old man. He is aboriginal. He was born
23 in Hay River, but he was adopted by his
24 biological uncle as an infant and he grew up in
25 Alberta. He graduated from high school in
26 Edmonton in 2004. He has worked consistently
27 since he finished high school at various jobs,
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1 mostly in the food service industry. He
2 volunteered his time to charity. He was employed
3 for two years with Aurora Village as evidenced by
4 the letter provided by Mr. Morin and marked as
5 Exhibit S2. He is also the father of three
6 children, a ten-year old and six-year-old twins,
7 and the mother of his twins also provided a
8 letter of support in which she described
9 Mr. Hunter as a caring and supportive father.
10 Mr. Hunter has a lengthy criminal record and
11 it dates back to 2000 when he was a youth. It
12 includes convictions from both Alberta and the
13 Northwest Territories. There are four
14 convictions for crimes against the person, and he
15 is currently in custody for three convictions for
16 arson. His lawyer advises that those convictions
17 arose because he set fire to vehicles. He has
18 several convictions stemming from non-compliance
19 with court orders and failure to attend court.
20 The principles and objectives of sentencing
21 are set out in the Criminal Code and they are
22 briefly: Denunciation; (specific and general)
23 deterrence; separating offenders from society
24 where that is necessary; rehabilitation;
25 reparation; and promoting a sense of
26 responsibility in offenders and an acknowledgment
27 of the harm done to victims and to the community.
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1 There are certain principles that were
2 described by the Crown that guide the Court in
3 applying those objectives and the Criminal Code
4 sets out those principles. The most important
5 one is that a sentence must reflect moral
6 blameworthiness of the offender in relation to
7 the gravity of the criminal act.
8 Judges also have to consider aggravating and
9 mitigating circumstances, and they have to
10 increase or reduce sentences accordingly.
11 Restraint is another very important
12 principle. It means that judges have to consider
13 all of the sentencing options available that are
14 reasonable besides incarceration, and this is a
15 specific requirement in considering sentences for
16 aboriginal offenders.
17 Finally, there is the principle of parity
18 and, basically, that means that there should be
19 similar treatment for similar offenders in like
20 offences.
21 The most aggravating factor in this case, in
22 my view, is the introduction of the weapon, in
23 the form of a broken bottle, into a fistfight,
24 and I do not agree with defence counsel that it
25 is less aggravating than if Mr. Hunter had come
26 with a knife. This was a weapon that he created,
27 and it is just as dangerous as a knife and it did
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1 as much or perhaps more damage than one might
2 sustain from a knife.
3 Mr. Hunter's criminal record is another
4 aggravating factor. He has had the benefit of
5 sentencing designed for rehabilitation more than
6 punishment, but the message is not getting
7 through. The longest he has gone between
8 convictions has been three years. That is a
9 terrible track record.
10 I do not find the fact that the accused
11 started the fight with or invited Mr. Grandjambe
12 to fight to be aggravating. As Mr. Falvo pointed
13 out, Mr. Grandjambe was a willing participant
14 once Mr. Hunter asked him to fight, and
15 Mr. Hunter was not charged in relation to that
16 fight.
17 There are some mitigating factors.
18 Mr. Hunter did not enter a guilty plea, nor was
19 he expected to do so. All that means is that
20 there is one less mitigating factor that I can
21 consider, but it is certainly not aggravating.
22 Mr. Hunter apologized today and he acknowledged
23 that he is to blame for this. It comes very late
24 but, nevertheless, I find it mitigating. I also
25 find it mitigating that he has some recognition
26 of the fact that he gets into trouble when he
27 drinks and that he needs to do something about
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1 that.
2 The Crown is seeking a custodial sentence of
3 three to four years, and the defence submits that
4 the sentence should be in the range of twenty-two
5 months. The range of sentence for an aggravated
6 assault in similar circumstances in this
7 jurisdiction is, as put by Justice Charbonneau in
8 the Morgan case, about thirty months to five
9 years.
10 In my view, Mr. Hunter bares a high degree
11 of moral blameworthiness in that case. He is the
12 one who introduced the weapon and he is the one
13 who caused the injury. He needed to walk away
14 and he did not. As the Crown pointed out, the
15 law treats aggravated assault very seriously.
16 The maximum punishment is 14 years and that is a
17 very long time. It has to be that way, however.
18 The potential for serious, life-long harm to come
19 from acts of violence cannot be underestimated.
20 There were three cases from the Northwest
21 Territories that were submitted by the Crown,
22 namely R. v. Morgan, R. v. Pascal, and R. v.
23 Sarasin. These are all decisions of the Supreme
24 Court. There are some similarities between this
25 case and the three cases submitted by the Crown.
26 There are also a number of differences, which is
27 not surprising given that no two cases are ever
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1 alike.
2 There are a number of similarities between
3 this case and Pascal in particular. In that
4 case, as here, the parties were drinking in a
5 party situation. The party was happening in a
6 shed and the accused, who was heavily
7 intoxicated, became angry with the victim.
8 Moments later he swung a knife at the victim and
9 stabbed him once in the chest. The victim tried
10 to evade Mr. Pascal and escape the shed, but it
11 was locked and it was only through the assistance
12 of a third party that the victim in that case was
13 able to escape and seek help for his injuries.
14 Mr. Pascal was sentenced to 20 months in prison,
15 which was net of time spent in remand, and, in
16 addition, that was followed by two years of
17 probation. Unlike this case, however, Mr. Pascal
18 had the benefit of the mitigating effect of the
19 guilty plea and he had a very dated criminal
20 record.
21 Sarasin also involved a guilty plea. This
22 was a case where the victim and accused had a
23 chance encounter. They got into a fight and
24 Mr. Sarasin stabbed the victim in the abdomen
25 with a box cutter. There was only one stab wound
26 but it was very, very serious. The accused was
27 on probation when the altercation occurred and he
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1 received a sentence of 30 months' incarceration.
2 In Morgan the accused was convicted of
3 aggravated assault following a trial. There was
4 no guilty plea. He and the victim engaged in a
5 fight. The victim was stabbed. He was sentenced
6 to three-and-a-half years' incarceration. That
7 case involved some serious wounds, particularly
8 to the head, and the accused was on a
9 recognizance at the time of the incident.
10 Defence counsel submitted R. v. Theriault,
11 which I also considered. In that case, the
12 accused entered a guilty plea to a charge of
13 aggravated assault. Again, it was wounding with
14 a knife. He was sentenced to 22 months'
15 incarceration and a year of probation. Justice
16 Vertes noted that the accused had a very dated
17 criminal record and that he had in the past
18 appeared to have benefitted from the probation in
19 staying out of trouble for a long period of time.
20 I accept that what the Crown is seeking in
21 terms of sentence is well within the range of
22 sentences imposed in similar cases of aggravated
23 assault in the Northwest Territories, thus
24 satisfying the principle of similarity.
25 Crimes like this one and in these kinds of
26 circumstances are all too common in the Northwest
27 Territories. There is a party, people are
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1 drinking (and usually the sole purpose of
2 drinking is to get really drunk), inhibitions and
3 judgment are parked at the door, and suddenly
4 there is an altercation and someone suffers a
5 traumatic injury. It happens in a moment and the
6 impact can last a lifetime.
7 Like the circumstances in Pascal, Sarasin,
8 and Morgan, the wounds in this case could have
9 resulted in something far worse. You are not on
10 trial for what could have happened, Mr. Hunter,
11 but it is important that you know what could have
12 happened could have been much worse. For that
13 reason, the seriousness of aggravated assault,
14 the sentence has to send a clear message of
15 denunciation and deterrence. It has to be clear
16 that conduct that harms others is never
17 acceptable.
18 I have considered very carefully whether a
19 shorter period of incarceration than is in the
20 range proposed by the Crown, followed by a period
21 of probation, would be appropriate, and combined
22 with this, I considered Mr. Hunter's aboriginal
23 status. For a number of reasons, I do not think
24 it would be appropriate. First, it would not
25 recognize the seriousness of the offence and the
26 injuries sustained by Mr. Sabourin. Second, it
27 would not send an appropriately strong message of
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1 denunciation. Third, as the Crown pointed out,
2 probationary sentences in the past have
3 apparently failed to have a rehabilitative effect
4 on Mr. Hunter, which suggests it is not the best
5 sentencing tool in these circumstances; and,
6 fourth, its value might be lost, in any event,
7 given that Mr. Hunter faces a probationary period
8 of a sentence that he is already serving upon his
9 release.
10 I pause to note that prisons, while
11 punitive, also offer many opportunities for
12 rehabilitation, and if Mr. Hunter is serious
13 about changing his life, as he indicated through
14 his counsel that he is, including getting
15 treatment for alcohol addiction, there is no
16 reason that he could not start working towards
17 that in prison.
18 With respect to Mr. Hunter's aboriginal
19 status, that is all I have. There is no evidence
20 of a difficult childhood or one riddled with
21 abuse and neglect of the kind we see so often in
22 our courts. On the contrary, it appears that
23 Mr. Hunter was adopted and raised by a loving
24 uncle and had the support and care of a loving
25 home.
26 Mr. Hunter, can you please stand up.
27 Mr. Hunter, upon being convicted of aggravated
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1 assault by wounding and upon consideration of the
2 circumstances and the nature of the offence as
3 well as your personal circumstances, I sentence
4 you to a term of three years in prison. You can
5 sit down.
6 There will also be an order for bodily fluid
7 to be taken from you for DNA analysis, and an
8 order prohibiting you from possessing a firearm
9 or other weapons listed in Section 109 of the
10 Criminal Code which will be in effect for ten
11 years from the date of your release. Do you
12 understand? Can you answer, please.
13 THE ACCUSED: Yes.
14 THE COURT: Thank you. Mr. Hunter let me
15 say that through your counsel, you have expressed
16 a willingness to change your life, and you really
17 need to do that. If you do not, you are going to
18 wind up in this position or even a worse one
19 again. You are a young man and you have three
20 children who depend on you and who need you to be
21 there for them. So please take advantage of the
22 programming that is going to be available to you
23 when you go to prison to assist you in
24 identifying what leads you to make such poor
25 choices that lead you consequently to be in
26 conflict with the law. Work to develop skills
27 that you can use so that you make the right
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1 choices in the future. And when you get out, and
2 even before you are released, advocate for
3 yourself so that there is some kind of plan in
4 place to help you, seriously help you,
5 reintegrate you into society and keep you making
6 the right choices so that you are not in this
7 court or another court again. I do wish you the
8 best.
9 Is there anything else, Counsel?
10 MR. MACPHERSON: No thank you, Your Honour.
11 THE COURT: Mr. Falvo?
12 MR. FALVO: No, Your Honour.
13 THE COURT: All right. There is one other
14 thing I will state. Given Mr. Hunter's current
15 incarceration and proposed incarceration that I
16 have just imposed, I do not foresee that he will
17 have the means to pay a victims of crime
18 surcharge. I am cognizant of the recent
19 amendments to the Criminal Code; however, this
20 charge arose prior to those amendments. So in
21 the circumstances, the victims of crime surcharge
22 is waived.
23 MR. FALVO: Your Honour, I'm sorry, there
24 was one thing I should have mentioned a moment
25 ago and that is Mr. Hunter would like to stay in
26 the Northwest Territories. I'm aware that that
27 is not a decision made by the courts, although
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1 the Court could consider a recommendation or an
2 endorsement on that because of his family and
3 because of the programming available here.
4 THE COURT: Well, I am -- other than --
5 He has got relatives in Hay River? Is that where
6 you say he has got relatives?
7 MR. FALVO: Yes, Your Honour.
8 THE COURT: Well, in that case, I will
9 make that recommendation that he be permitted to
10 serve his sentence in the Northwest Territories.
11 But as you have indicated, that is not binding on
12 the Director of Corrections. So that will
13 ultimately be a decision for Correction Services.
14 MR. FALVO: Thank you, Your Honour.
15 THE COURT: Is there anything else?
16 MR. MACPHERSON: No, Your Honour.
17 THE COURT: Mr. Falvo?
18 MR. FALVO: No, Your Honour.
19 THE COURT: Thank you. Good luck to you,
20 Mr. Hunter. Work hard.
21 .................................
22 Certified Pursuant to Rule 723
of the Rules of Court
23
24
25 Jane Romanowich, CSR(A)
Court Reporter
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27
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