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Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
R. v. Binder, 2014 NWTSC 79 S-1-CR-2014-000006
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- V -
RICHARD BINDER JR
_________________________________________________________
Transcript of the Reasons for Sentence by The Honourable
Justice L. A. Charbonneau, sitting in Yellowknife, in the
Northwest Territories, on the 27th day of November, A.D.,
2014.
_________________________________________________________
APPEARANCES:
Mr. A. Godfrey: Counsel for the Crown
Mr. T. Boyd: Counsel for the Defence
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Charge under s. 268 Criminal Code of Canada
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1 THE COURT: Good morning everyone.
2 MR. GODFREY: Good morning.
3 MR. BOYD: Good morning.
4 THE COURT: Counsel, before we begin
5 I asked the clerk to show you a document
6 that relates to the conviction that Mr. Binder
7 received for the breach of probation. I wanted
8 to see if the Warrant of Committal and the
9 documents on that file might shed some light
10 on some of the matters that were discussed
11 yesterday. I take it you have now seen this
12 document. I am going to ask the clerk to mark
13 it as Exhibit 6 just so that we have a record,
14 because I did review it, and I just want the
15 record to be very clear as to what those
16 documents say. It is the Warrant of Committal,
17 the Information, and another document from the
18 Territorial Court that refers to that conviction.
19 EXHIBIT 6: WARRANT OF COMMITTAL AND OTHER DOCUMENTS.
20 THE COURT: Yesterday Mr. Binder pleaded
21 guilty to a charge of having committed an
22 aggravated assault on Na-Dean Elanik. Crown and
23 defence put forward a joint submission at the
24 sentencing hearing, and as I listened to the
25 submissions I was concerned about whether the
26 sentence they were suggesting for this offence
27 was a fit one in all the circumstances.
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1 A joint submission must be given careful
2 and serious consideration, the law is very
3 clear about that, and that is what I did
4 during the adjournment since yesterday
5 afternoon. I considered the submissions
6 of counsel carefully and I reviewed several
7 cases from this jurisdiction to assist me in
8 my decision. I have decided that I will follow
9 the joint recommendation of counsel. I will say
10 that I do so with enormous reluctance. I think
11 what is being proposed is at the very very low
12 end of the range of what is appropriate in all
13 the circumstances. It is a position that is
14 extremely lenient given the facts and given
15 Mr. Binder's criminal record, and I do hope
16 he understands that.
17 I hope that he understands that with his
18 criminal record, and now with this most recent
19 entry arising from these proceedings, if he
20 finds himself in court again being sentenced
21 for any serious crime of violence it will be
22 very difficult for any Court to show the same
23 level of leniency and restraint as I will today
24 in imposing sentence.
25 To put my sentencing decision in context
26 I will outline the circumstances of the offence,
27 as well as some of the other things that were
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1 mentioned during the submissions yesterday.
2 These events happened on September 13th,
3 2013. At the time Mr. Binder and Ms. Elanik
4 had been on an on-again-off-again relationship
5 for a couple of years. Ms. Elanik was at
6 Mr. Binder's home. They had consumed alcohol.
7 He started questioning her about previous
8 boyfriends, and when she refused to answer
9 he struck her on the side of the head. She
10 ran to the bathroom, but he followed her
11 in there and continued to assault her.
12 She eventually passed out from the pain.
13 There are no details in the agreed facts
14 about the nature of the assault beyond the
15 initial striking of Ms. Elanik. There are no
16 details about how he struck her, how long this
17 beating lasted, how it ended, or anything that
18 was said during it. Despite this lack of detail
19 the end result, and by this I mean the injuries
20 she suffered as a result of the assault, speaks
21 volumes.
22 The day after the assault Mr. Binder took
23 Ms. Elanik to the hospital. She was examined
24 and she was found to have numerous injuries.
25 She had bruising and swelling around her eye
26 and on the side of her face, bruising and
27 swelling on her shoulder, a broken collar bone,
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1 two rib fractures, multiple bruises on her neck,
2 chest, back, arms and legs, she was bleeding
3 from both her ears and was found to have a
4 rupture to one of her ear drums.
5 The only inference that can be drawn
6 from the presence of these injuries is that
7 this was a prolonged and vicious beating.
8 The photographs taken two days later, when
9 Ms. Elanik was discharged from the hospital,
10 show the extent of the injuries and also provide
11 an indication of how violent this assault was.
12 At the time Mr. Binder was on a probation
13 order. This order was made as part of a
14 sentencing hearing in October of 2012 when
15 he was sentenced for an assault causing bodily
16 harm on Ms. Elanik. For that he received a jail
17 term of one year followed by two years probation.
18 One of the conditions of that probation was that
19 he have no contact with her.
20 So clearly he was in breach of that order
21 when these events took place. Mr. Binder's
22 counsel has indicated that this contact occurred
23 as a result of Ms. Elanik pursuing Mr. Binder
24 persistently that evening, phoning him, and
25 eventually actually showing up at his house,
26 and the Crown has not disputed those statements.
27 That may well be so, but the fact remains that
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1 Mr. Binder blatantly breached a court order.
2 His criminal record includes several convictions
3 for breaches of court orders and does not suggest
4 that Mr. Binder pays a lot of attention to court
5 orders.
6 There is no victim impact statement, so
7 beyond the injuries themselves I do not have
8 any information about the effect that this
9 assault had on Ms. Elanik, although again it
10 is easy to infer it must have been terrifying
11 for her. And it is also part of the facts
12 that she passed out from the pain, which is
13 not surprising given the seriousness of her
14 injuries.
15 The joint submission presented by counsel
16 is for a sentence of 27 months imprisonment.
17 That sentence is within the penitentiary range,
18 and Mr. Binder, despite his long criminal record,
19 has never received a sentence as long as that.
20 Still, it is at the lower end of the penitentiary
21 range, and my first reaction to the joint
22 submission, once I heard the facts and saw the
23 criminal record, was one of great concern about
24 whether it is a fit sentence for this offence.
25 So I asked a lot of questions.
26 Counsel made detailed submissions
27 explaining aspects of how they arrived at
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1 this joint position and they both urged me
2 to accept it. Joint submissions can be a very
3 useful tool in dealing with criminal matters.
4 They bring benefits to both Crown and defence.
5 For the person facing sentencing they take away
6 some of the unpredictability of the sentencing
7 process. For the Crown, agreeing to a joint
8 submission is sometimes the only way to resolve
9 matters without trial and obtain a certainty
10 of outcome for all involved in the case.
11 It seems here that certainty of outcome
12 was a very strong consideration for the Crown.
13 I understood Crown Counsel to say that although
14 the witness was not uncooperative with the
15 prosecution, on the whole there were risks
16 of issues with being able to present the
17 case when the time of trial came in February
18 of 2015. And quite apart from any problems
19 specific to this case, in any criminal trial
20 there are no guaranteed outcomes for the Crown,
21 especially considering the onus of proof that
22 the Crown faces.
23 Of course, the desire to resolve cases
24 should not lead the Crown to agree to manifestly
25 unfit sentences. In my respectful view, this
26 joint position comes close to doing that.
27 The ultimate responsibility to impose sentence
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1 remains always that of the sentencing judge.
2 Sentencing judges should not be expected to
3 simply rubber stamp agreements reached by
4 counsel.
5 Ensuring that accused persons who plead
6 guilty are aware of this is required under
7 the Criminal Code, and it is required to ensure
8 that there is no confusion about this in the
9 person's mind as they are pleading guilty.
10 This was done in this case. I specifically
11 asked Mr. Binder if he understood that I was
12 not bound by the submissions that I would hear
13 from counsel or any agreement they had reached
14 about what the sentence should be.
15 But all that having been said, as I have
16 already stated, the law is clear that joint
17 submissions must be given serious consideration
18 by sentencing judges, and this is for a good
19 reason. Counsel know their case and they often
20 know things about them that are not within the
21 knowledge of the Court. As I have said, joint
22 submissions can be a useful tool in resolving
23 difficult cases. They result in sparing victims
24 from having to testify at trial, which we know
25 from seeing witnesses testify in trials is
26 usually a very difficult and sometimes traumatic
27 process. Counsel are most of the time in the
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1 best position to weigh all of these things in
2 arriving at a position and deciding how far
3 they are prepared to go to foster a resolution
4 of the matter without trial.
5 So the question for a Court presented
6 with a joint submission is whether the sentence
7 proposed is within the range of fit sentences for
8 this crime, and if it is, the joint submission
9 should be followed. It is only when the proposed
10 sentence can be said to be unreasonable that a
11 Court should decline to follow it.
12 To decide whether that is the case
13 or not the Court has to examine, as in any
14 sentencing, the governing sentencing principles,
15 the circumstances of the offence and the
16 circumstances of the offender, as well as
17 the range of sentences usually imposed for
18 similar offences. I have already talked
19 about the circumstances of the offence so
20 I will turn to the other factors.
21 I heard yesterday about Mr. Binder's
22 personal circumstances. He is 31 years
23 old and has a young son who is six, who is
24 currently being cared for by Mr. Binder's
25 parents. I heard that Mr. Binder has been
26 a single parent to this child since the child
27 was two and that the child's mother is now
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1 deceased. One would hope that Mr. Binder's
2 responsibility for his son will from now on
3 be an incentive for him to change his ways
4 and take immediate steps to address his
5 issues with alcohol and violence.
6 For the last six years of his son's
7 life it appears to have not been a sufficient
8 incentive. One thing we know about violence
9 is that children who are exposed to it when
10 they are little often reproduce it when they
11 are older, and I am sure Mr. Binder knows
12 this and does not need a lecture from me
13 about that. If he does not want the pattern
14 and cycle repeated in his own son's life he
15 has to do something about making changes and
16 he has to do so now.
17 Mr. Binder has a good work record. Unlike
18 a lot of offenders who come before the courts he
19 has a lot of skills and will most likely be able
20 to find employment when he is released. I accept
21 that based on what I heard about his skills, the
22 various certifications he has, and the documents
23 filed by his counsel. There is no reason he
24 cannot be a productive member of his community
25 and stop just being in and out of jail as he
26 has been since his early 20s.
27 Mr. Binder is aboriginal. In fact, on
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1 one of his parents' side his aboriginal roots
2 extend to Northern Norway I heard. I also heard
3 about some of the issues he faced when he was
4 growing up, including exposure to an environment
5 where there was alcohol abuse, which no doubt
6 contributed to how he behaved once he became
7 a teenager and an adult to what appears to
8 be a very unhealthy relationship with alcohol.
9 No one can change that past and only Mr. Binder
10 can change the course and shape his own future.
11 There are a number of aggravating factors
12 in this case. I want to refer to them and make
13 some additional comments about certain aspects
14 of them. The first is that even without a lot
15 of details about what happened, it is clear from
16 the injuries inflicted that this was a prolonged
17 event. It was not a brief assault, it was not
18 a one-blow incident that happened to cause a
19 serious injury. It was a beating that went
20 on for some time.
21 The second aggravating factor is
22 Mr. Binder's lengthy criminal record, going
23 back to when he was a youth. That record
24 includes numerous convictions for crimes of
25 violence. He has received jail terms several
26 times for this type of offence, quite apart
27 from the sentence he received the last time he
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1 was convicted for beating Ms. Elanik. The Crown
2 has not alleged that any of the prior crimes of
3 violence were on another spouse. As this would
4 be a significant aggravating factor, I have to
5 assume that if any of the earlier assaults were
6 on a former spouse the Crown would have told the
7 Court about it.
8 But even so, there are several convictions
9 for assault. There are convictions for assault
10 with a weapon, one conviction for aggravated
11 assault in 2010 for which Mr. Binder received
12 a sentence of one year. There are convictions
13 for assaulting peace officers, for forcible
14 confinement, and numerous breaches of court
15 orders. This is a very unenviable criminal
16 record, but as I said, despite the number
17 of convictions Mr. Binder has never before
18 received a sentence of imprisonment in the
19 penitentiary range.
20 It should be obvious to Mr. Binder that if
21 he is convicted of any further crime of violence,
22 especially if it involves the infliction of
23 bodily harm, even less serious bodily harm
24 than what he inflicted on Ms. Elanik, he
25 inevitably will be looking at a sentence
26 counted in years and not months.
27 It should also be obvious to him that
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1 whatever personal issues he has they go far
2 beyond a mere alcohol problem, because many
3 people drink, many people drink too much, but
4 not everyone turns into a violent person when
5 they drink. I am sure there are various things
6 about Mr. Binder's background, perhaps things
7 that happened as he was growing up that have,
8 as he put it when he spoke to the Court, made
9 him what he is today, but still, as I said
10 already, he is the only one who has control
11 over what he will become in the future.
12 The third aggravating factor is that
13 Mr. Binder was on probation for another
14 assault on the same person when this one
15 happened. This probation order included
16 a no-contact order.
17 Much was said yesterday about what led
18 to the contact between these two on the day of
19 the incident. I want to go back to that and to
20 some of the other things that were said yesterday
21 because to be blunt, based on what I heard, I am
22 not entirely sure Mr. Binder fully appreciates
23 and accepts that he is solely responsible for
24 what he did to Ms. Elanik that day.
25 The point was made both by his counsel and
26 by Mr. Binder himself, when he spoke to the Court
27 directly, that she was the one who pursued him,
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1 who kept phoning him, who was insistent on seeing
2 him. If I were sentencing him for a breach of
3 probation, for a breach of that no-contact order,
4 those things would be more relevant, and I do
5 appreciate that the dynamics of violence in a
6 relationship can be complex. But fundamentally,
7 it must be remembered that we are not here today
8 because Mr. Binder breached the no-contact order.
9 We are here because when she refused to answer
10 his questions about past boyfriends he spun
11 into an uncontrolled rage and severely beat
12 her. She may have initiated the contact, she
13 may have pursued him, but how they came to be
14 in each other's presence has little to do with
15 what he did to her later. Tying the two together
16 comes dangerously close to indirectly blaming
17 her for ending up getting beaten by him. And
18 that is not the case. She is not responsible
19 for his violence.
20 Mr. Binder has to face the fact that he is
21 capable of extreme violence. That has nothing
22 to do with Ms. Elanik or how she behaves when
23 it comes down to it. He has to come to terms
24 with the rage that leads him to act in this way,
25 otherwise he will end up hurting someone again,
26 perhaps very badly, whether it is Ms. Elanik
27 or someone else. The criminal record proves
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1 that Mr. Binder's violence is not tied into
2 Ms. Elanik.
3 There were other things said in the
4 context of counsel explaining that arriving
5 at a resolution of this matter was a difficult
6 process. That suggests that at some levels
7 Mr. Binder may still be in denial for what he
8 did, that in his own mind, despite now having
9 admitted the facts, part of him still wants
10 to believe somehow Ms. Elanik got injured some
11 other way. Maybe part of him does not want to
12 believe that he did this, and I can certainly
13 understand why it would be difficult to come to
14 terms with the fact that he is capable of such
15 brutality, that looking at those photographs he
16 does not want to believe that he is the one who
17 caused those injuries.
18 But whatever the underlying reasons are,
19 I hope for his sake he comes to terms with the
20 fact that he did do this and that he was violent
21 all the other times he ended up convicted for
22 various types of assaults since he was in his
23 early 20s. He will not be able to effect
24 changes in his life until and unless he fully
25 acknowledges that it is not some other person
26 that does these things, it is him, and that
27 is what he is capable of when he drinks.
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1 The last aggravating factor is one
2 that I have already referred to, the fact
3 that this occurred within the context of a
4 spousal relationship. The breach of trust
5 that this entails has for many years been
6 considered an aggravating factor by this
7 Court, and for some years it has been
8 specifically identified as an aggravating
9 factor under the Criminal Code.
10 There are also mitigating factors, and
11 the main one of course is the guilty plea.
12 It is not a guilty plea at the first opportunity,
13 far from it. There was a preliminary hearing
14 and Ms. Elanik had to testify at that hearing,
15 and a date was set for the jury trial. But
16 I recognize, as the Crown fairly pointed out,
17 that the guilty plea did come several months
18 before that scheduled trial date. It was not
19 a guilty plea that came at the 11th hour.
20 The principles of sentencing that I must
21 follow are set out in the Criminal Code, and
22 I have considered them. Proportionality is the
23 fundamental sentencing principle. The sentence
24 must be proportionate to the seriousness of the
25 offence and the level of responsibility of the
26 offender. Here I find this is a very serious
27 offence and one for which Mr. Binder has a high
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1 degree of blameworthiness.
2 The fact that this assault occurred in a
3 spousal context engages special considerations.
4 Those considerations were outlined years ago in
5 the case of Brown, Highway, Umpherville (1992),
6 73 C.C.C. (3d) 242, 125 A.R. 150 (C.A.). That
7 case talks about the seriousness of the problem
8 of spousal violence and the harm it causes.
9 It underscores the special considerations and
10 dynamics that are at play in those types of
11 cases and it provides guidance to the lower
12 Courts as to how sentencing in those cases
13 should be approached. That case has been
14 referred to countless times by the Courts in
15 this jurisdiction, including by our Court of
16 Appeal in R. v. B.A., [1996] N.W.T.J. No. 7
17 (NWTCA), and R. v. L.R.C., [1996] N.W.T.J.
18 No. 8 (NWTCA).
19 There are complex dynamics that create the
20 often talked about cycle of violence or cycle
21 of abuse in relationships. Courts cannot solve
22 the underlying causes of this social problem,
23 they can only impose sentences that seek to
24 denounce this conduct and reaffirm the message
25 that this is not acceptable in our society.
26 The paramount sentencing principles when
27 dealing with cases involving spousal violence
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1 are denunciation and deterrence. There was
2 a time where it was not even an offence to
3 hit one's spouse; those days are gone. Now
4 not only it is an offence, but as I said, the
5 spousal relationship makes it more serious,
6 and that is because it is a breach of the
7 special relationship of trust that should
8 exist between intimate partners.
9 The case of R. v. Brown, Highway,
10 Umpherville dates back several years, but
11 is as relevant today as it was the day it
12 was released. The problem of spousal violence
13 is as real and present and prevalent now as it
14 was then. The principles outlined in that case
15 continue to be acutely relevant and sound when
16 dealing with these types of offences, and I have
17 considered those principles carefully in deciding
18 whether I would accept the joint submission.
19 In fact, those principles, in addition
20 to the sheer severity of the assault, are
21 the reason I struggled so much with the joint
22 submission presented in this case. I had to
23 ask myself whether the sentence that is being
24 proposed addresses the fundamental principle
25 of proportionality. Does it actually reflect
26 the seriousness of the offence committed against
27 Ms. Elanik? Does it adequately reflect the
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1 moral blameworthiness of Mr. Binder? Does it
2 send the right message about the seriousness
3 of this assault in particular and about the
4 seriousness of the problem of spousal violence
5 in our society in general and its prevalence
6 in this jurisdiction? Might it send the message
7 that somehow the harm done to this victim is
8 less serious, less deserving of a stern response
9 because she was the offender's spouse?
10 But there are other principles to consider,
11 of course. An important one is the principle of
12 restraint. Because Mr. Binder is an aboriginal
13 offender the principle of restraint is engaged in
14 a particular way according to the pronouncements
15 of the Supreme Court of Canada in R. v. Gladue,
16 [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385, and
17 R. v. Ipeelee, 2012 SCC 13. I will not spend
18 much time on that factor because there is
19 little doubt that following the joint submission
20 presented in this case represents the exercise
21 of considerable restraint on the Court's part.
22 Rehabilitation is always a relevant
23 consideration, although in cases like this it
24 takes second place, but it must be remembered
25 that Mr. Binder is still a young man, and if he
26 wants to, there is still much hope that he can
27 address the issues that are at the root of his
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1 behavior, and ultimately that is the best way
2 to protect people and intimate partners that
3 will enter his life in the future.
4 As I have already said, the fact that
5 a joint submission was presented engages
6 very specific legal principles that have
7 been articulated by appellate courts and
8 are binding on me. A joint submission should
9 be followed unless it is clearly unreasonable.
10 Put another way, it has to be followed unless
11 I decide it is clearly outside the range.
12 Assessing what the range is for any given
13 offence is not always a simple task. The offence
14 of aggravated assault can give rise to a wide
15 range of sentences. There is no minimum sentence
16 and the maximum sentence is 14 years in jail,
17 which means that the range is no jail at all,
18 all the way up to a very lengthy term of
19 imprisonment in a penitentiary. In my experience
20 it is rare that sentences at either end of that
21 spectrum are imposed. Most cases fit somewhere
22 in the middle.
23 So to answer the question of whether the
24 proposed sentence here is within an acceptable
25 range I had to turn to case law from this
26 jurisdiction. No two cases are ever alike,
27 of course, but reviewing other cases involving
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1 serious spousal violence helps in determining
2 the proper range for the offence before the
3 Court. So one of the things I have done in
4 considering whether I would accept this joint
5 submission is review a number of sentencing
6 decisions from this jurisdiction involving
7 aggravated assault or assault causing bodily
8 harm committed in a spousal context. I have
9 not looked at all the cases, of course, there
10 was no time to do that.
11 But among others, I have considered
12 R. v. Inuktalik, 2013 NWTSC 75, R. v. Football,
13 2006 NWTSC 69, R. v. S.W., 2013 NWTSC 50, R.
14 v. Tsetta, 2006 NWTSC 14, R. v. Mercredi, 2010
15 NWTSC 5, R. v. Gargan, 2014 NWTSC 62, and R. v.
16 Nitsiza, 2010 NWTSC 22, which are all decisions
17 from this Court, some very recent, some a little
18 bit less recent. Each case is different, as
19 I said, and it is difficult to compare them.
20 The cases of Tsetta, Mercredi, Inuktalik
21 and Football represent cases at the higher end
22 of the range of seriousness. Just to illustrate,
23 in Inuktalik the accused took the complainant
24 outside the City of Yellowknife by car and
25 proceeded to inflict a severe beating on her,
26 which included literally biting off part of
27 her face and leaving her disfigured and require
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1 plastic surgery. He had an extensive criminal
2 record, including numerous convictions for
3 assaults on the same victim. He pleaded guilty
4 and the sentence that was found to be fit, before
5 he received credit for his remand time, was five
6 years imprisonment.
7 An example of a case that is somewhat at
8 the lower end of the scale of seriousness is
9 Gargan. That case involved a charge of assault
10 causing bodily harm, not aggravated assault.
11 It involved a single blow, but that blow was
12 hard enough to break the complainant's jaw.
13 It was a serious offence, but definitely
14 not in the same category of seriousness as
15 Inuktalik or Football, or even this case.
16 Mr. Gargan did have a record with some
17 convictions for crimes of violence, but no
18 prior spousal assaults. In that case a fit
19 sentence was found to be 14 months, again
20 before credit was given for remand time.
21 The S.W. case and Nitsiza are somewhere
22 in the middle. In S.W. the relationship was
23 a volatile one, there had been violence going
24 in both directions, but on one occasion during
25 an argument the accused bit his spouse on her
26 ear, and the resulting injury required ten
27 stitches to close and left scarring. The
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1 offender had a criminal record that included
2 several convictions for assault and it included
3 numerous convictions against a previous spouse.
4 That particular offence was his ninth conviction
5 for an assault on a spouse. In that case a fit
6 sentence was found to be 20 months before credit
7 was given to remand time. All of these cases
8 were cases involving guilty pleas.
9 I am not going to refer to the other cases
10 in any great detail, but I have considered them
11 carefully with a view of deciding whether the
12 joint submission presented in this case was
13 or was not inside the range.
14 This case overall I think is less serious
15 than cases like Inuktalik and Football. It is,
16 in my view, significantly more serious than the
17 assault committed by Mr. Gargan. The assault
18 committed by Mr. Binder to me is also more
19 serious than the one committed by the offender
20 in R. v. S.W. because the assault lasted longer
21 and did result in several injuries all over
22 Ms. Elanik's body. That has to be balanced
23 against the fact that Mr. W.'s criminal record
24 for spousal violence was worse.
25 I am extremely concerned about the pattern
26 of violence revealed by Mr. Binder's record.
27 I am also concerned about the escalation of
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1 the violence that is apparent from his record.
2 As I said yesterday, if the root causes of
3 that rage that becomes unleashed when he drinks
4 are not addressed I fear that one day he may
5 end up hurting someone else very badly or maybe
6 even killing someone.
7 But still, after careful consideration,
8 I cannot say that a sentence of 27 months
9 is outside the range. It is only giving
10 Mr. Binder considerable credit for the guilty
11 plea because of the submissions the Crown has
12 made about its value in this specific case, and
13 by exercising the maximum restraint imaginable
14 that I can arrive at this conclusion. But
15 having arrived at this conclusion it is my
16 duty to follow the joint submission.
17 I have to address the issue of the remand
18 time as well. Mr. Binder has been in custody,
19 I am told, since September 16th, 2013. That is
20 a total of 436 days, which works out to roughly
21 14 and a half months. I heard that during his
22 time on remand he did not have access to some
23 of the same programs that he might have been
24 able to take as a serving prisoner. In addition
25 to that, of course, prisoners on remand do
26 not earn remission, unlike serving prisoners.
27 On that basis, my understanding of the law as
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1 it currently stands is that it is open to me to
2 grant Mr. Binder enhanced credit for his remand
3 time and that I should do so. The maximum ratio
4 that I can do this at is one and a half day of
5 credit for each day spent on remand.
6 Here there is another factor to consider,
7 and that is that while he was on remand
8 Mr. Binder was sentenced to a jail term
9 of 45 days. As I alluded to earlier, at my
10 request the clerk obtained a copy of documents
11 related to that conviction because it was not
12 entirely clear to me during submissions what
13 the situation was, and those documents have
14 now been marked as Exhibit 6. The documents
15 show a sentence of 45 days imprisonment being
16 imposed for a breach of probation, and the
17 offence date on that breach of probation is
18 August 3rd, 2013. So it was for a separate
19 incident, not for the incident that I am
20 sentencing Mr. Binder for today. That sentence
21 was imposed on the 15th of January, 2014.
22 Counsel representing Mr. Binder today
23 was not the counsel who represented him at
24 that sentencing. I am told that Mr. Binder
25 remembers the sentencing judge back in January
26 saying that the 45-day sentence would run
27 "concurrent to the remand time." I do not
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1 have a transcript of the sentencing hearing,
2 but even if I accept that this is what the
3 judge said, and with respect, I do not see
4 how this is something that can, in law, be done.
5 Sentences can be made concurrent or consecutive
6 to other sentences whether they are being imposed
7 on the same day or sentences that the person is
8 in the process of serving. I do not see how a
9 sentence can be made concurrent or consecutive
10 to remand time, they are qualitatively different.
11 Mr. Binder spent part of his time in
12 custody, albeit a short period, serving his
13 sentence for this breach charge. This is
14 something that I can and I think I must take
15 into account in deciding how much credit he
16 can receive for the time he spent in custody
17 awaiting disposition of this matter.
18 I do accept though that none of the
19 pre-trial custody that accumulated before
20 January of 2014 was taken into account
21 when he was sentenced for that breach.
22 The Criminal Code requires Warrants of
23 Committal to be endorsed to clearly reflect
24 when credit is granted for remand time.
25 This Warrant of Committal contains no such
26 notation. So I certainly accept that none
27 of the remand time that accumulated between
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1 September of 2013 and January of 2014 played
2 any part in the January sentencing. But given
3 that a jail sentence was imposed that day I have
4 taken 30 days from the total remand time for
5 Mr. Binder. I am taking out 30 days and not
6 45 because assuming that he had simply been
7 serving that 45-day sentence, and if he had
8 earned remission on that sentence, he would
9 have been likely released at two-thirds of that
10 sentence. For all of those reasons I assess the
11 time to be taken into consideration as remand
12 time on this matter as 13 and a half months.
13 Counsel have suggested that probation
14 be part of this sentence. I am somewhat
15 hesitant to place Mr. Binder on probation
16 again considering that he did not comply with
17 the last order and considering the number of
18 times he has been convicted of breaches of court
19 orders in the past. At the same time, it may
20 be that being on probation after his release
21 could be of benefit to him, to help him access
22 counselling and other resources that might be
23 available to him, and that he may be able to
24 identify with the help of a probation officer.
25 I am mindful that Mr. Binder's track
26 record for complying with court orders is
27 not good at all, but I do not see the harm
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1 in giving him another chance to make use of
2 whatever resources might be out there to assist
3 him with his rehabilitation. I think he needs
4 that help and he will likely need it for a long
5 time, because I have no doubt addressing some
6 of the issues he has will not be a quick or
7 easy thing for him to do. For that reason
8 I have decided that the probation period should
9 be for three years. If there are good reasons
10 to change this along the way an application can
11 be made to the Court to seek to have that order
12 varied.
13 The Crown seeks as part of the probation
14 order a no-contact order in an effort to protect
15 Ms. Elanik. Defence expresses concern about
16 the possibility that this could set Mr. Binder
17 up for a breach if she persists in trying to
18 contact him. Mr. Binder said very clearly
19 yesterday that he does not want to have
20 contact with her.
21 Mr. Binder is already bound by an order
22 that prevents contact as a result of the sentence
23 that was imposed on him in October of 2012. That
24 two-year probation period followed a total term
25 of imprisonment of 14 months according to the
26 criminal record. So that order will continue
27 to be in force for some time in 2015, quite
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1 apart from any further order I make today.
2 So irrespective of what I do today Mr. Binder
3 will be required, upon release, to avoid all
4 contact with Ms. Elanik if in fact she does
5 seek him out.
6 Given the facts of this offence and
7 its seriousness I agree a no-contact order
8 should be made as part of this sentencing
9 as well. A no-contact order cannot on its
10 own protect Ms. Elanik, but it may serve to
11 reduce the risk of contact. It will also
12 interfere with any risk of resumption of this
13 relationship. Although ultimately people make
14 their own choices, preventing the continuation
15 of an abusive relationship and interfering with
16 the possibilities of reconciliation can be a
17 valid objective of sentencing in these types
18 of cases. It does not always work, but it is
19 one of the ways that courts can try to break
20 the cycle of violence. So I will include a
21 no-contact order and will have it be in force
22 for the first 18 months of the probation period.
23 Hopefully that will be sufficient to achieve
24 the intended goal.
25 The Crown has sought a number of ancillary
26 orders and those will issue. There will be
27 a DNA order as this is a primary designated
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1 offence. There will be a firearms prohibition
2 order commencing today and expiring ten years
3 from Mr. Binder's release. There will be a
4 victim of crime surcharge because Mr. Binder
5 has lots of skills and good prospects of
6 employment. For indictable matters that
7 surcharge is $100, that is provided for in
8 the Criminal Code, and given that there will
9 be a further term of imprisonment I will give
10 Mr. Binder nine months to pay it.
11 Mr. Binder, stand up, please. For the
12 reasons I have given, Mr. Binder, I will follow
13 the joint submission. The sentence I would have
14 imposed but for your remand time would have been
15 27 months recommended by the Crown and by your
16 counsel. For the time you have spent on remand,
17 which I assess at 13 and a half months for this
18 matter, I am giving you credit for 20 months.
19 So there will be a further term of imprisonment
20 of seven months. You can sit down.
21 I just want to say a few words about the
22 probation period. There will be a probation
23 order for a period of three years. There will
24 not be many conditions on this order, but I do
25 want you to report to a probation officer within
26 48 hours of your release. I am going to put a
27 condition that you take counselling as directed
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1 by your probation officer. This is not a
2 punishment, this is really an attempt to help
3 you, as I think you need to make some changes,
4 and there may be things, apart from what will
5 be available in the jail, that can help you.
6 For the first 18 months of that order
7 you are to have no contact with Ms. Elanik.
8 I heard what you said yesterday, I know it can
9 be complicated. There are things that you can
10 do, and you can speak to Mr. Boyd about that if
11 you feel that she is contacting you and putting
12 you at risk for doing so. But you are on a
13 no-contact order and you need to respect it.
14 I think you know that nothing good comes out
15 of you not following that condition.
16 Any exhibits seized as part of this
17 investigation will be returned to their
18 rightful owner if that is appropriate; if
19 not, I direct that they be destroyed. All
20 of this, of course, at the expiration of
21 the appeal period.
22 Is there anything that I have overlooked
23 from the Crown's perspective, Mr. Godfrey?
24 MR. GODFREY: Nothing further.
25 THE COURT: Mr. Boyd, is there anything
26 I have overlooked?
27 MR. BOYD: Your Honour, it occurred to
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1 me that teaming a probation order with a federal
2 sentence, unless I'm missing something in terms
3 of amendments, that that's not permissible.
4 THE COURT: I have had to look into this
5 on another matter. My understanding, and I could
6 be wrong, but my understanding of the law is that
7 the further term of imprisonment is the sentence.
8 So because the actual sentence imposed today is
9 seven months it is permissible to add probation
10 to it.
11 MR. BOYD: Yes.
12 THE COURT: That is my understanding.
13 Some of the amendments to the provision that
14 govern remand time, it can get a little --
15 but I have looked into it in another case, and
16 I cannot give you the name of the cases now, but
17 I remember being concerned about that very point
18 and becoming satisfied that it was possible. If
19 I am mistaken I am sure that I will be corrected
20 by another Court.
21 MR. BOYD: Yes, I just wanted to call
22 it to the Court's attention.
23 MR. GODFREY: I can assist the Court with
24 that and my friend. I did look into that issue
25 prior to asking for a probation order yesterday
26 in court, and I did see a number of cases and did
27 case law research on that, and it is permissible
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1 just as Your Honour has pointed out. If my
2 friend wishes I can provide him with those
3 cases so that he can satisfy his client if
4 that is necessary.
5 THE COURT: Yes, I will leave that
6 to counsel.
7 MR. GODFREY: Thank you.
8 THE COURT: So if there is nothing
9 further we will close court. I do thank you
10 for your submissions, counsel. I know I did
11 ask a lot of questions yesterday, and your
12 answers were helpful in what I considered
13 to be a fairly difficult decision to make
14 in this case. So thank you for those
15 submissions. Close court.
16 THE CLERK: Thank you, Your Honour.
17 MR. GODFREY: Thank you.
18 -----------------------------
19
20 Certified to be a true and
accurate transcript, pursuant
21 to Rules 723 and 724 of the
Supreme Court Rules.
22
23
_____________________________
24 Joel Bowker
Court Reporter
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26
27
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