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Decision information:
Abstract: Transcript of the Reasons for Sentence (re Appeal from Sentence)
Decision Content
Abbott v. HMTQ, 2015 NWTSC 8 S-1-CR-2012-000092
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
BETWEEN:
BRIAN ABBOTT
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Transcript of the Reasons for Sentence (re Appeal from
Sentence) delivered by The Honourable Justice K. Shaner,
in Yellowknife, in the Northwest Territories, on August 18,
2014.
APPEARANCES:
The Appellant: Appearing on his own behalf
Ms. J. Scott: Counsel on behalf of the Respondent
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Charges under s. 78 Fisheries Act x 4
1 Brian Abbott and Her Majesty the Queen
2 August 18, 2014 - Yellowknife
3 Reasons for Sentence of Justice K. Shaner
4 re Appeal from Sentence
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7 THE COURT: I have had an opportunity to
8 consider your submissions, both of you. The
9 question that is before me, as I emphasized
10 earlier, is whether to impose the sentence that
11 is proposed by the Crown, which was initially a
12 joint submission, or to uphold the sentence of
13 Judge Schmaltz, or, thirdly, to impose another
14 sentence that I craft myself based on what I have
15 heard.
16 The original joint submission was a global
17 fine for four counts under the Fisheries Act:
18 namely, failing to accurately and completely keep
19 commercial harvest log books; secondly, operating
20 an unregistered fishing vessel used for
21 commercial fishing; thirdly, fishing in areas
22 closed to commercial fishing; and fourth, not
23 having nets properly marked.
24 In addition to the global fine of $3,000, it
25 was also proposed that Mr. Abbott serve a
26 probationary term for six months and that he
27 perform 40 hours of community service work; that
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1 he be required to keep log books with respect to
2 his fishing activities in a certain way; that he
3 report at certain intervals to the fisheries
4 authorities; and finally, that he issue a public
5 apology.
6 During submissions today, and I agree with
7 this, the Crown indicated that the need for a
8 public apology has largely been obviated given
9 the media attention that this case has garnered.
10 The purpose of the apology was to explain to the
11 public and have some sort of public
12 acknowledgement of what had happened, and that
13 has already occurred without the need for a
14 public apology. So I agree with the Crown that
15 certainly that component of the original joint
16 submission should not be imposed.
17 When this appeal was first heard there were,
18 basically, two matters that were brought up on
19 appeal: the first was that Mr. Abbott wanted to
20 withdraw the guilty pleas he had entered; and the
21 second was that he wanted to appeal from
22 sentence. The appeal was dismissed with respect
23 to the withdrawal of the guilty pleas but allowed
24 on a limited basis with respect to the sentence.
25 And when I say "on a limited basis", I invited
26 counsel and Mr. Abbott to provide submissions on
27 those concerns that the sentencing judge had
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1 raised, namely, whether the sentence that was
2 proposed in the joint submission would meet the
3 goals of denunciation and deterrence, whether it
4 met the goal of parity, and the circumstances
5 under which the Crown and the defence lawyer at
6 the time came to that agreement. Those reasons
7 are recorded at 2014 NWTSC 30.
8 I cannot do anything about the convictions.
9 I have ruled on the request to withdraw the
10 guilty pleas, and I have denied that, so I am now
11 what is called functus on that point.
12 With respect to the sentence, however, I
13 agree that what was in the joint submission
14 should largely be restored. This is based on
15 what I heard about what went into the joint
16 submission and the considerations that the Crown
17 had in crafting that sentence and proposing it.
18 Sentencing is, of course, a highly
19 individualized process. No two cases are the
20 same; no two individuals are the same. And so
21 while the Court must pay attention to parity in
22 the sense that similar infractions and crimes
23 should attract similar sentences, it is key that
24 we keep that to similarity and not require that
25 sentences be identical, because if that was the
26 case then we could not meet the need to
27 individualize our sentencing processes.
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1 I also agree that what is proposed by the
2 Crown largely meets the primary goals of
3 deterrence and denunciation in this case,
4 particularly in light of Mr. Abbott's
5 circumstances.
6 Based on what I heard from him in the appeal
7 and the inferences that I have drawn from your
8 submissions today, Mr. Abbott is a very hard
9 working man who is of modest means, who works
10 hard for his money, but who also committed an
11 infraction under the Fisheries Act — in fact,
12 committed four infractions to which he pleaded
13 guilty. So in my view, it is appropriate that
14 there be a fine of $3,000 imposed globally in
15 consideration of all four counts to which Mr.
16 Abbott pled guilty.
17 With respect to the issue of probation, I am
18 not convinced, based on what I have heard, that
19 probation is necessary in order to meet the goals
20 of denunciation and deterrence. In my view, a
21 $3,000 fine is a very large fine. I think it is
22 a significant amount of money for most people. I
23 think it is a significant amount of money for Mr.
24 Abbott. And I think that that, in and of itself,
25 is punitive, and to impose probation on top of it
26 would be unnecessary for either the purposes of
27 driving home the point to Mr. Abbott or driving
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1 home the point to the general public. Mr. Abbott
2 is not a danger to the public. He does not need
3 to be watched. Moreover, the new requirements
4 under the Fisheries Act with respect to the
5 requirement to keep log books and report on those
6 log books every two weeks in my view largely
7 obviates the need for probation.
8 As well, that new requirement obviates the
9 need to have Mr. Abbott do any more reporting.
10 In the event that fisheries officials are not
11 satisfied with what he reports on every two
12 weeks, it is certainly open to Fisheries (and I
13 am certain that they will) to follow up on any
14 shortcomings they perceive in his record-keeping.
15 Finally, for the same reasons that I do not
16 think probation would serve any purpose and would
17 be overly punitive, I do not think that 40 hours
18 of community service is going to serve any
19 purpose either. Mr. Abbott is self-employed and
20 all it will do is take away, essentially, what
21 most of us would consider a work week from him in
22 which he could be earning a living, and,
23 accordingly, I think it would introduce an
24 additional and unnecessary financial penalty to
25 him.
26 Accordingly, the sentence that will be
27 imposed is a fine of $3,000, globally, in respect
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1 to the four counts under the Fisheries Act that I
2 mentioned earlier to which Mr. Abbott pled
3 guilty.
4 Is there anything else?
5 THE ACCUSED: The value of the fish.
6 THE COURT: The value of the fish is
7 something that I factored in. The value of the
8 fish is not something -- That has been factored
9 in already with respect to the amount of the
10 fine.
11 ..............................
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13 Certified to be a true and
accurate transcript pursuant
14 to Rule 723 and 724 of the
Supreme Court Rules of Court.
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17 Annette Wright
Court Reporter, CSR(A)
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