Supreme Court
Decision Information
Decision information:
Abstract: Transcript of Reasons For Sentence
Decision Content
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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,
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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.
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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
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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
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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
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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
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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
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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.
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2 CERTIFICATE OF TRANSCRIPT
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17 __________________________
18 Karissa Irvine
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