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Abstract: Transcript of Reasons For Sentence
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R. v. Nadli, 2014 NWTSC 71 S-1-CR-2012-000104 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - and - PATRICK NADLI _________________________________________________________ Transcript of Reasons For Sentence of The Honourable Justice L.A. Charbonneau, delivered orally in Yellowknife, in the Northwest Territories, on the 11th day of July, 2014. _________________________________________________________ APPEARANCES: Ms. S. Boucher: Counsel for the Crown Ms. J. Bond: Counsel for the Crown Mr. P. Harte: Counsel for the Accused ---------------------------------------- Charge under s. 272(1)(C), s. 267(B) Criminal Code of Canada Ban on Publication of Complainant/Witness pursuant to Section 486.4 of the Criminal Code Official Court Reporters 1 THE COURT: I have had the opportunity to 2 consider the submissions that were made on this 3 matter, of course the first part of those 4 submissions, and the part I will talk about 5 today, has to do with what sentence should be 6 imposed on Mr. Nadli for this offence. 7 As part of my decision, I will be indicating 8 my conclusions on the issues that were raised 9 with respect to the remand time and how it should 10 be treated, but I will be filing a written 11 decision on that aspect of the case. 12 Before I begin, I just want to reiterate 13 that there is a publication ban in effect in this 14 case that protects the identity of the 15 complainant and prevents the publication or 16 broadcast of any information that could identify 17 her. If at any point in my decision I refer to 18 her by name, only initials will appear in the 19 transcript. 20 On May 27th, 2014, Patrick Nadli pleaded 21 guilty to a charge of sexual assault causing 22 bodily harm, and today it is my responsibility to 23 decide what his sentence should be for that very 24 serious offence. 25 The legal framework that governs sentencing 26 is set out in the Criminal Code. I am not going 27 to refer to or quote all of those sections in Official Court Reporters 1 1 this decision, but I have reviewed them and I 2 have considered them. 3 I had the benefit of thorough submissions 4 from counsel at this sentencing hearing, both on 5 what I will call the first part of the sentencing 6 hearing which dealt with the circumstances of the 7 offence and the circumstances of Mr. Nadli, and 8 for the second part which related to the legal 9 issues about the remand time. I am grateful for 10 those thorough submissions. 11 The fundamental principle of sentencing is 12 proportionality. That means that a sentence must 13 be proportionate to the seriousness of the 14 offence and to the degree of responsibility of 15 the offender. The Criminal Code sets out more 16 specific sentencing principles, but in the end 17 they are all directed at ensuring that the 18 sentence imposed meets the fundamental 19 requirement of proportionality. 20 To do this and to arrive at a proportional 21 sentence, the Court has to take into account the 22 circumstances of the offence, how serious it was, 23 what consequences it had for the victim, but the 24 Court must also take into account the 25 circumstances of the person who committed that 26 offence. There are a whole host of factors that 27 have a bearing on sentencing. No two cases are Official Court Reporters 2 1 ever alike, and that is why sentencing is a 2 highly individualized process. 3 The facts that Mr. Nadli admitted to were 4 recorded in an Agreed Statement of Facts which 5 was filed as an exhibit at the sentencing 6 hearing. It was read into the record then, and I 7 will not read it again in it's entirety, but I 8 have to refer again to what Mr. Nadli is being 9 sentenced for because that is necessary to put 10 this sentencing decision in context. 11 The victim of this offence met Mr. Nadli 12 during the day on June 27th, 2012, in the town of 13 Hay River. Together they returned to the 14 Hay River reserve where the victim lived. They 15 were together for a period of time with one of 16 the victim's female friends. At one point 17 Mr. Nadli and the victim's friends left the 18 victim's house and went to a neighbour's house to 19 continue drinking. 20 Mr. Nadli later returned to the victim's 21 house. By then she had gone to bed. She awoke 22 to him being in her room. He then sexually 23 assaulted her, trying to put his penis in her 24 anus. He also struck her on the back with a 25 closed fist. 26 She tried to get away, but she was held down 27 by Mr. Nadli. She tried to calm him down by Official Court Reporters 3 1 calling him names such as "love," "sweetheart," 2 and "honey." She also asked him to put a condom 3 on. Eventually he had vaginal intercourse with 4 her. While he was doing this, he struck her with 5 his fists on her face, her chest, and her upper 6 body. 7 The victim told Mr. Nadli she needed to go 8 and care for her dog. She was then able to leave 9 the bedroom. Then she escaped from her house and 10 went to her neighbour's house to call the police. 11 The police received that call at 4 a.m. in 12 the morning on June 28th. They went to the house 13 from which she had called. They saw her there 14 and they made observations of her. In addition 15 to the fact that she was upset, they noted that 16 the left side of her face was starting to swell. 17 Based on what she told them, they went to her 18 house and there they found Mr. Nadli; he was 19 still inside the residence. He was placed under 20 arrest without incident. 21 Photographs of the victim's injuries were 22 filed at the sentencing hearing. They show 23 significant bruising and swelling to the left 24 side of her face. They show bruising on her arm 25 and on one of her breasts as well as on the side 26 of her lower abdomen near her rib cage. 27 The victim prepared a victim impact Official Court Reporters 4 1 statement which was filed as an exhibit and was 2 also read into the record at the sentencing 3 hearing. It describes in simple but compelling 4 terms the effect that this crime was having on 5 her at the time it was written, which was in July 6 2012, about two weeks after the events. 7 She refers to physical effects including 8 bruising, swelling, soreness, headaches. She 9 also describes significant psychological effects. 10 She says since the sexual assault happened she 11 has had nightmares; that friend and family 12 members do not like to sleep at her house because 13 she wakes up screaming; that she feels suicidal; 14 that she feels dirty and is compulsive about 15 taking showers and cleaning her home; that she 16 feels scared and unsafe all the time; that she 17 feels that she will never be able to trust 18 anybody again. 19 I was able to observe the victim of this 20 offence when she testified at the trial that was 21 held in November 2013, almost a year and a half 22 after she wrote that victim impact statement. It 23 was apparent then that she was still very much 24 affected emotionally by these events. This is 25 not surprising as this was a brutal, prolonged 26 assault that occurred while she was in her home. 27 It was a serious, callous, and contemptuous Official Court Reporters 5 1 violation by Mr. Nadli of her personal and sexual 2 integrity. 3 Mr. Nadli's counsel provided the Court with 4 a lot of information about Mr. Nadli's personal 5 circumstances and background. It is a background 6 that speaks of considerable challenges that 7 Mr. Nadli has had to face. 8 Mr. Nadli was born in Fort Providence. His 9 parents abused alcohol. As a young child he was 10 at times afraid to stay at home because of the 11 drinking that went on there. He ran away from 12 home. Eventually social services became involved 13 and he was apprehended because he was found in 14 need of protection. 15 As a child, and this I find quite sad, he 16 felt responsible for having been apprehended, as 17 though it was his fault. Obviously it was not 18 his fault. It was the responsibility of adults 19 who did not provide an environment where he could 20 be safe. It is very sad that so early on in his 21 life Mr. Nadli had to feel the weight of 22 responsibility for something that was not his 23 fault. 24 Feeling responsible for this was not the 25 only consequence for him, unfortunately. He was 26 moved to live in a group home in Fort Simpson and 27 later to a hostel that was attached to the school Official Court Reporters 6 1 there. While he was living there, he was 2 sexually assaulted by a night watch supervisor. 3 Through processes that have been set up and 4 going on for a number of years now whereby 5 persons who were abused at these schools can 6 obtain some financial compensation for the harm 7 done to them, Mr. Nadli received compensation, I 8 am told, in the amount of $100,000. Money cannot 9 repair the emotional and psychological harm that 10 resulted from suffering this kind of abuse of 11 course, but the fact that he received a sizable 12 amount of financial compensation demonstrates the 13 recognition that he did suffer abuse and that 14 this abuse was serious. 15 Not surprisingly, after he was abused, 16 Mr. Nadli began acting out. He spent a few years 17 in Yellowknife, and during that time he had some 18 contact with his family, but it was quite 19 limited. Then he was sent to Bosco Homes in 20 Alberta. He struggled in school because he was 21 placed in grade levels that did not correspond to 22 the level he was actually at. 23 He returned to Fort Providence when he 24 was 14. It is not clear what led him to be sent 25 back to live with his family, but after that 26 point he never returned to school, and at that 27 point, still quite young, he started getting into Official Court Reporters 7 1 trouble with the law. 2 His criminal record which was filed as an 3 exhibit shows a fairly steady pattern of 4 convictions starting at that point, 1990, and 5 continuing over the two following decades. The 6 last entry on his record is from September 2011, 7 less than a year before this offence was 8 committed. 9 Mr. Nadli has worked at various jobs. He 10 has worked in the fishing industry, he has worked 11 as a rock crusher, and as a carpenter's helper. 12 At one point he was employed as a janitor at one 13 of the mines but lost that job when the employer 14 found out about his criminal record. 15 Despite his fairly lengthy criminal record, 16 Mr. Nadli had never in the past spent as much 17 time in custody as he has since his arrest on 18 this matter. 19 I heard that while on remand he has taken 20 advantage of some of the resources that were 21 available to him. He has attended AA meetings 22 regularly since he was taken into custody and now 23 recognizes the negative impact that alcohol abuse 24 has had on his life. He has attended and 25 participated several times in talking circles 26 that take place regularly at the jail. Through 27 this he has been able to start talking about his Official Court Reporters 8 1 own abuse and has been able to begin getting some 2 insights into his behaviour. 3 I heard about these things through 4 Mr. Nadli's counsel, and I also heard about them 5 through Mr. Nadli himself when he had an 6 opportunity to speak to the Court at the 7 conclusion of his sentencing hearing. 8 Documents were filed confirming his 9 attendance at AA and his participation in the 10 talking circles. One of the counsellors at the 11 North Slave Correctional Centre has written a 12 letter which was also filed as an exhibit where 13 he explains what the talking circles are about. 14 In that letter he expresses the view that 15 Mr. Nadli is taking responsibility for his own 16 healing, and he commends him for it. 17 It is very clear from what I have heard that 18 Mr. Nadli has had a very difficult childhood. 19 The struggles that he faced growing up, the abuse 20 that he suffered, and some of the resulting 21 consequences, sadly, are things that many 22 aboriginal offenders who are dealt with by the 23 Courts in this jurisdiction have also faced as 24 children. There is little doubt that they are 25 things that have contributed to Mr. Nadli acting 26 out, developing an unhealthy relationship with 27 alcohol, and feeling a lot of anger and pain that Official Court Reporters 9 1 he has never been able to address in a meaningful 2 way until now. 3 His criminal record, which I have already 4 referred to, includes convictions for a variety 5 of offences: Property offences, crimes of 6 violence, and breaches of various court orders. 7 He has received non-custodial sentences such as 8 terms of probation and fines as well as several 9 jail terms, most of which amounted to a few 10 months. The longest individual sentence he has 11 ever received was 15 months imprisonment for 12 assault causing bodily harm in 2006. He has 13 never been convicted for anything as serious as 14 what he faces sentence for today, and he has 15 never received a sentence anywhere near the range 16 of the sentence he is facing today. 17 The Crown argues that a fit sentence under 18 the circumstances is a sentence in the range of 19 4 to 5 years imprisonment. Defence does not take 20 issue with that range. That is a reasonable 21 concession for the defence to make under the 22 circumstances. 23 Defence asks that the sentence be at the 24 lower end of that range, taking into account the 25 principle of restraint and its particular 26 importance when dealing with aboriginal 27 offenders, and considering Mr. Nadli's specific Official Court Reporters 10 1 circumstances. 2 The law is well established in this 3 jurisdiction that in dealing with serious sexual 4 assaults, and this is certainly such an offence, 5 the paramount sentencing principles are 6 deterrence and denunciation. There are many 7 reasons why this is so, including the prevalence 8 of sexual assaults in this jurisdiction, 9 particularly sexual assaults on women who are 10 assaulted while they are sleeping. 11 Because there are so many of these cases, 12 quite unfortunately this Court has commented 13 numerous times on this issue of prevalence of 14 this type of crime. For the record and because 15 it is a consideration on this matter as it is in 16 so many others, I will repeat here when I said in 17 R v. Lafferty 2011 NWTSC 60, at paragraph 37. 18 "Sexual assault is a crime that is terribly prevalent in 19 the Northwest Territories. This Court sadly has cause to 20 comment on this fact very often because this Court very 21 often has the task of sentencing people for the 22 crime of sexual assault. 23 These cases seem to be happening in almost every 24 community in this jurisdiction. They are 25 committed by young people, middle-aged people, and 26 sometimes older people. In particular, sexual assaults 27 committed against women or young girls who are passed out Official Court Reporters 11 1 or intoxicated to the point of not being able to resist and 2 also sometimes on women or young girls who are quite 3 simply asleep in their own bed are very frequent. 4 I have said in other cases 5 that it boggles the mind how often it happens and why it 6 happens. What makes a person decide to treat another person 7 with such disregard and contempt for their personal 8 integrity? The fact that it happens so frequently does not 9 make it any more understandable, does not make 10 it any less disturbing, and certainly does not make it any 11 less wrong." 12 13 In the paragraph that follows the one I have 14 just quoted in Lafferty, I refer to a series of 15 cases from this jurisdiction where similar 16 comments were made about the prevalence of this 17 type of crime in the Northwest Territories. I am 18 not going to repeat those references here. They 19 are but a small sample of a very long list of 20 sentencing decisions in this jurisdiction dealing 21 with this type of assault. 22 It is a type of offence that comes so 23 frequently before the Court that it has been 24 described as an epidemic. There continues to be 25 a real need for the Court to send a clear message 26 that this conduct is intolerable. The message 27 also has to be sent that in those cases where the Official Court Reporters 12 1 victim is sleeping or intoxicated or highly 2 intoxicated, that fact does not in any way lessen 3 the seriousness of the act. On the contrary; it 4 makes it all the more serious because people in 5 that condition are more vulnerable. This is true 6 whether the victim is actually passed out from 7 drinking or simply intoxicated and therefore not 8 in the best position to defend herself. 9 The starting point for offences of this type 10 is three years imprisonment. From this starting 11 point, the sentence must be adjusted to reflect 12 any aggravating or mitigating factors that might 13 exist. Here there are several aggravating 14 factors. 15 First, the victim was in her own home, the 16 place where she should be able to feel the 17 safest. In fact, she was in her own bed. That 18 sense of safety was taken away from her. That is 19 abundantly clear from her victim impact 20 statement, and it is also consistent with what we 21 hear regularly in cases of this kind. The fact 22 that this happened in her home is an aggravating 23 factor. 24 Second, the violence used against her while 25 she was being sexually assaulted is also a 26 significant aggravating factor. This was 27 ongoing, gratuitous violence. It left her Official Court Reporters 13 1 bruised on several parts of her body. The 2 bruising and swelling to her face is significant. 3 The fact that she had all those bruises elsewhere 4 on her body speaks to the fact that the force 5 used against her was significant. Of course the 6 fact that she was injured is reflected in the 7 fact that Mr. Nadli pleaded guilty to the charge 8 of sexual assault causing bodily harm, not merely 9 a charge of sexual assault. 10 The fact remains that severe bruising or 11 bodily harm could be caused by one single blow. 12 Here Mr. Nadli struck the victim repeatedly 13 despite her attempts to calm him down. I 14 consider it aggravating that this continued for 15 some time, despite her attempts to get him to 16 stop. The fact that she was desperate enough and 17 scared enough to call the very person who was 18 violating her and brutalizing her things like 19 "love" and "sweetheart" speaks volumes. It is 20 also particularly disturbing to imagine how that 21 must have felt for her, and again I was able to 22 observe, when she testified at the November 2013 23 trial, the emotional state that she was in while 24 she was speaking specifically about those facts. 25 Mr. Nadli was on probation at the time this 26 happened. That is somewhat aggravating, although 27 it is not a significant factor in this case. Official Court Reporters 14 1 Mr. Nadli's record is also a factor because it 2 does include convictions for crimes of violence. 3 He has received jail terms for some of them, 4 although as I mentioned most of these jail terms 5 were not very long ones, the longest being a 15 6 month sentence for assault causing bodily harm 7 that I have already referred to. 8 A person should not be sentenced a second 9 time for the convictions that appear on their 10 criminal record because they have already been 11 sentenced for those convictions. It is very 12 important not to overemphasize the existence of a 13 criminal record on sentencing, but it can be a 14 relevant factor. Here it is relevant because it 15 shows a steady pattern of antisocial conduct, 16 including conduct that involves physically 17 harming others, as he did in this case. It is 18 relevant because it speaks to the danger he can 19 present to his fellow community members. 20 I expect most of the convictions are related 21 to offences that occurred when Mr. Nadli was 22 drinking, but he has for over 20 years now known 23 that drinking leads him to act badly. Although I 24 recognize that now that he has started dealing 25 with the issue of alcohol consumption and 26 addiction, and that is an important step for him, 27 the underlying anger and whatever other issues Official Court Reporters 15 1 lead him to harm others when he drinks also need 2 to be dealt with. Because a lot of people drink 3 and get drunk but they do not harm others when 4 they are under the influence of alcohol. 5 There are also mitigating factors to 6 consider, and I need to spend some time on those. 7 The guilty plea must be considered. It is 8 far from a guilty plea entered at an early 9 opportunity. It is not a plea that put a quick 10 end to proceedings, showed unequivocal remorse, 11 and spared the victim from having to testify at 12 all about the event. This matter went through 13 the full process of a criminal proceeding. There 14 was a preliminary hearing, there was a jury 15 trial, and there were verdicts rendered on two of 16 the three counts that Mr. Nadli faced in November 17 of 2013. After the mistrial was declared on the 18 third count, the Crown had to speak to the victim 19 about going through a second trial, and a date 20 was set for that retrial. It is after all of 21 that that Mr. Nadli entered his guilty plea. 22 This is something that I cannot ignore, 23 particularly in light of the submission that I 24 heard on behalf of Mr. Nadli, and things that he 25 said himself, about the fact that the time he has 26 spent in custody has given him access to certain 27 resources and has lead him to gain insight into Official Court Reporters 16 1 his behaviour. 2 The AA attendance sheets, for example, begin 3 with entries in July of 2013, but I have heard 4 from counsel and accept that Mr. Nadli starting 5 attended AA a long time before that but just did 6 not get attendance sheets filled in. As for the 7 talking circle, Mr. Lockhart's letter lists all 8 the dates on which Mr. Nadli participated. He 9 started in May 2012 and he attended as well in 10 August, September, October, November, and 11 December of that year. He also attended numerous 12 times in 2013, a total of 24 times before his 13 jury trial took place in November 2013. 14 The only reason I mention this is because at 15 the jury trial, Mr. Nadli testified and provided 16 an account of events that is completely at odds 17 with what he now admits happened. His account of 18 events at trial was one where, to put it simply, 19 he had done absolutely nothing wrong. So at that 20 point, despite sobriety and despite extensive 21 participation in the talking circle, he had not 22 yet gained enough insight into his conduct to be 23 prepared to take responsibility for it. At that 24 point he was still deflecting all the blame onto 25 the victim. He accused her of having attacked 26 him and said that her injuries were caused when 27 he was defending himself. Official Court Reporters 17 1 Of course he had the right to have a trial 2 and he had a right to testify in his own defence, 3 and I am certainly not going to punish him for 4 that. This is only relevant to the extent that 5 as recently as November 2013, Mr. Nadli was not 6 prepared to take responsibility for his actions 7 and was quite prepared to put the blame on the 8 victim. 9 From what he said at the sentencing hearing 10 and from what his counsel has said, it appears 11 that since that date something has clicked for 12 him and he has had a huge shift happen in terms 13 of taking responsibility for this matter, a shift 14 that is evidenced by his guilty plea. It is very 15 much to his credit that this shift has happened, 16 but I expect for him these are the first steps of 17 what will be a long journey. 18 He has taken responsibility. He has 19 publicly apologized to the victim when he 20 addressed the Court, and I hope that the Crown's 21 office, if that has not already happened, will 22 ensure that she is aware not just that he has 23 pleaded guilty but also he has publically 24 apologized to her in the courtroom at the 25 sentencing hearing. 26 Mr. Nadli's guilty plea is a mitigating 27 factor and it is an indication that he now Official Court Reporters 18 1 accepts responsibility for his actions, but quite 2 apart from what it says about his state of mind 3 and his level of insight, the guilty plea 4 provided this victim with certainty of outcome 5 and has avoided the need for her to testify 6 again. That is very meaningful. Certainty of 7 outcome considering the high standard of proof 8 that applies in criminal cases is very valuable 9 to victims. Sparing this victim from having to 10 testify again is also significant because I say 11 again, I know, for having seen it, how difficult 12 testifying at the November trial was for her. 13 The guilty plea is significantly mitigating, 14 and to me it is clear that had Mr. Nadli been 15 convicted of this offence after trial, he would 16 be facing a much longer jail term than the range 17 that is being suggested here. 18 Another important factor that has a bearing 19 on the sentence to be imposed is that I am 20 required by law to take into account that 21 Mr. Nadli is an aboriginal offender, and I have 22 already referred to the struggles that he has 23 faced and how those facts played a part into his 24 coming in conflict with the law. It is not an 25 excuse for him to commit crimes, but as the 26 Supreme Court of Canada has said, it is something 27 that may reduce his level of blameworthiness, Official Court Reporters 19 1 which in turn is a component that is relevant to 2 proportionality. 3 I have taken the mitigating factors into 4 account, and I have considered carefully the 5 requirement that I exercise restraint. Even 6 making due allowance for those factors though, 7 making allowance for the very sad circumstances 8 that Mr. Nadli faced as he was growing up, the 9 fact still is that the offence that he committed 10 in June 2012 was extremely serious. He was out 11 of control and caused great harm to his victim, 12 and while his level of blameworthiness is reduced 13 to some extent having regard to his own 14 circumstances, it is only so up to a point. 15 His victim is an aboriginal woman with 16 struggles of her own. This offence took place on 17 the Hay River reserve, an aboriginal community. 18 Mr. Nadli's community is an aboriginal community. 19 The principle of restraint is important and it is 20 particularly important when dealing with 21 aboriginal offenders, but Courts must be cautious 22 not to apply that principle in a way that results 23 in the people who live in those aboriginal 24 communities not being adequately protected, or in 25 a way that fails to reflect the seriousness of 26 the harm that is done to them when crimes are 27 committed in their communities. Official Court Reporters 20 1 I have carefully considered the submissions 2 that were presented to me on behalf of Mr. Nadli, 3 but I conclude that a sentence at the higher end 4 of the range proposed by the Crown is what is 5 required here, even giving due effect to the 6 guilty plea and the requirement for restraint. 7 The last factor that must be taken into 8 account here today is the time that Mr. Nadli has 9 spent on remand, and this was the subject of 10 extensive submissions at the sentencing hearing. 11 As I said at the outset, I will soon be filing 12 written reasons which set out in detail my 13 conclusions on the various legal issues that 14 counsel addressed in their submissions. For the 15 purposes of the reasons I am delivering now, I 16 will simply indicate what my bottom-line 17 conclusions are on those issues. 18 First of all, I have concluded that it is 19 not open to me at this sentencing hearing to set 20 aside or disregard the written entry made into 21 the record at the time of Mr. Nadli's bail review 22 in November 2012, to the effect that his 23 detention is being ordered primarily because of 24 his criminal record. I have concluded that I 25 must treat that entry into the record as having 26 been made pursuant to paragraph 515(9.1) of the 27 Criminal Code. By operation of paragraph Official Court Reporters 21 1 719(3.1) of the Criminal Code, therefore, the 2 remand time that accumulated after that bail 3 review date can only be credited on a ratio of 4 1 for 1 unless the relevant provisions are found 5 to infringe the Charter. 6 Having concluded that, I have considered 7 Mr. Nadli's Charter challenge to a portion of 8 paragraph 719(3.1). I have concluded that the 9 provision does infringe the Charter and that it 10 is not saved by section 1. For the purposes of 11 this sentencing I will give that provision no 12 force or effect. I conclude that I do have 13 discretion to grant Mr. Nadli credit on enhanced 14 a ratio to a maximum of 1.5 to 1 for the totality 15 of the time that he has spent on remand. 16 As of today's date, Mr. Nadli has spend 744 17 days on remand. At the maximum credit rate at 18 1.5 for 1, that translates into 1,116 days, which 19 represents 3 years and 21 days. 20 There is no suggestion that there was 21 anything particularly harsh about Mr. Nadli's 22 detention conditions. In fact as I have already 23 referred to, he has had access to some programs 24 while he was on remand, and he has benefited from 25 that. 26 In the case of R v. Summers, 2014 SCC 26, 27 the Supreme Court of Canada provided guidance as Official Court Reporters 22 1 to what circumstances can give rise to enhanced 2 credit for remand time under paragraph 719(3.1). 3 At paragraph 71 of the decision, the Court said: 4 "The loss of early release taken 5 alone will generally be a sufficient basis to award credit at a rate of 6 1.5 to 1, even if the conditions of detention are not particularly 7 harsh, and parole is unlikely. Of course a lower rate may be 8 appropriate when detention was a result of the offender's bad 9 conduct, or the offender is likely to obtain neither early release or 10 parol." 11 12 Then the Court talked about where enhanced 13 credit is not available, but in Summers the 14 constitutional validity of that portion of the 15 provision was not in issue. 16 I understand the Summers decision to mean 17 that the inability to earn remission while on 18 remand is a sufficient basis to grant enhanced 19 credit to the maximum ratio provided by the 20 Criminal Code. But it is always the case that 21 within the parameters set out in the Code, the 22 credit to be given for remand time remains a 23 matter for the sentencing judge's discretion. 24 Having considered all of that, having 25 considered what the maximum credit would be and 26 having considered the submissions I heard that 27 some of Mr. Nadli's conduct or aspects of his Official Court Reporters 23 1 conduct would have disentitled him to the 2 equivalent of 14 days in remission, as his 3 counsel put it, I have decided that for the 4 amount of time he has spent on remand, I will 5 give him credit for a total of 3 years. 6 Stand up, please, Mr. Nadli. 7 Mr. Nadli, for the sexual assault causing 8 bodily harm of Ms. B, I have concluded that a fit 9 sentence is 5 years imprisonment. I am giving 10 you credit for the time that you have spend on 11 remand as close to the maximum as I can. I am 12 giving you credit for three years. The further 13 jail term will be two years imprisonment. You 14 can sit down. 15 I am going to direct that the warrant of 16 committal be endorsed with a recommendation that 17 Mr. Nadli be permitted to serve his sentence in a 18 Northern institution so that he can continue some 19 of the things that he has started doing while at 20 the North Slave Correctional Centre. 21 It is not something I can order and it is 22 not something that I would order because it is 23 possible that there are things that Mr. Nadli 24 could benefit from that are not available in the 25 North, but I am sure the authorities will 26 recognize that he has already spent a long time 27 at the North Slave Correctional Centre. He has Official Court Reporters 24 1 started building the foundation, hopefully, for 2 change and healing, and I trust that those 3 responsible for deciding where he will serve his 4 sentence will take into account the importance of 5 not doing anything that would be 6 counterproductive and do harm to the progress he 7 has already made. 8 The Crown has sought other orders, and they 9 will issue. There will be a DNA order because 10 this is a primary designated offence. There will 11 be an order that Mr. Nadli comply with the Sexual 12 Offender Information Registry Act for a period of 13 20 years. There will be a firearms prohibition 14 order commencing today, expiring 10 years after 15 Mr. Nadli's release. There will be no order for 16 a victim of crime surcharge. The date of this 17 offence is such that I do have discretion to 18 waive the surcharge, and I do so because of the 19 length of time Mr. Nadli has already spent in 20 custody and the sentence that I am imposing 21 today. 22 There will be an order for the return of 23 exhibits seized to their rightful owner, if that 24 is appropriate. Otherwise they are to be 25 destroyed, but only at the expiration of the 26 appeal period. 27 Is there anything I have overlooked from the Official Court Reporters 25 1 Crown's perspective? 2 MS. BOUCHER: I don't think so, Your Honour. 3 THE COURT: Anything from the defence 4 perspective? 5 MR. HARTE: No. Thank you, Your Honour. 6 THE COURT: Before we close Court, I thank 7 counsel again for their submissions on this 8 matter. 9 Mr. Nadli, I know this is a further jail 10 term that is lengthy, but I also heard what you 11 said about what you are trying to do and where 12 you want to go, and I sincerely wish you luck 13 with that, and I hope that you will continue with 14 all your efforts so that you can turn the page 15 and use your many skills to contribute to your 16 community and not ever be in a courtroom again. 17 We will close Court. 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 26 1 2 CERTIFICATE OF TRANSCRIPT 3 4 5 6 Certified to be a true and accurate 7 transcript pursuant to Rule 723 and 8 724 of the Supreme Court Rules of Court. 9 10 11 12 13 14 15 16 17 __________________________ 18 Karissa Irvine 19 Court Reporter 20 21 22 23 24 25 26 27 Official Court Reporters 27
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