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             R v Dick, 2018 NWTSC 15

 

                                                S-1-CR2017000040

 

             IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

 

             IN THE MATTER OF:

 

 

 

 

 

                             HER MAJESTY THE QUEEN

 

 

 

 

 

                                  - vs. -

 

 

 

 

 

                                GARRETT DICK

 

 

 

             _________________________________________________________

 

             Transcript of the Reasons for Sentence by The Honourable

 

             Justice S. H. Smallwood, at Yellowknife in the Northwest

 

             Territories, on February 9th A.D., 2018.

 

             _________________________________________________________

 

             APPEARANCES:

 

             Mr. T. Johnson:                    Counsel for the Crown

 

             Mr. T. Bock:                       Counsel for the Accused

 

                  ----------------------------------------

 

                     Charge under s. 271 Criminal Code

 

               No information shall be published in any document or

             broadcast or transmitted in any way which could identify

             the victim or a witness in these proceedings pursuant to

                  s. 486.4 of the Criminal Code of Canada

 

 

 

      Official Court Reporters


 

 

 

 

 

 

 

         1     THE COURT:            Garrett Dick has pleaded

 

         2         guilty to one count of sexual assault.  The

 

         3         charge arises from an incident which occurred

 

         4         on November 16th, 2013 in Inuvik.  Mr. Dick

 

         5         entered his guilty plea on December 4th, 2017,

 

         6         and the matter was adjourned to February 6th,

 

         7         2018 for sentencing and a pre-sentence report

 

         8         was ordered.  It is now my responsibility to

 

         9         sentence Mr. Dick for this offence.

 

        10             The facts of the offence are as outlined

 

        11         in the Agreed Statement of Facts and, briefly,

 

        12         they are:

 

        13             On November 16th, 2013, Garrett Dick and

 

        14         the victim were at a party at a home in

 

        15         Inuvik, Northwest Territories.  The two did

 

        16         not know each other prior to this.

 

        17             After drinking alcohol, the complainant

 

        18         went to sleep on a mattress in the home.  She

 

        19         was alone on the mattress and fully clothed

 

        20         when she went to sleep.

 

        21             Mr. Dick pulled down the complainant's

 

        22         pants and underwear while she was asleep and

 

        23         had sexual intercourse with her.  When she

 

        24         awoke the next day, the victim's pants were

 

        25         down around her ankles and she had "a funny

 

        26         feeling" in her vagina that made her believe

 

        27         that her vagina had been penetrated.  She got

 

 

 

 

 

       Official Court Reporters       1


 

 

 

 

 

 

 

         1         up out of bed, pulled up her clothes and left

 

         2         the house.  She went home and a shower.

 

         3             The next day on November 18th, the victim

 

         4         went to the hospital in Inuvik and reported

 

         5         the sexual assault.  The RCMP were notified

 

         6         and a sexual assault examination was

 

         7         performed.  Samples obtained during the sexual

 

         8         assault examination, as well as the clothing

 

         9         that had been worn the night by the victim,

 

        10         were sent for forensic testing by the RCMP.

 

        11         DNA analysis determined that the underwear

 

        12         that the victim was wearing had human semen on

 

        13         them which matched the DNA of Mr. Dick.

 

        14             Mr. Dick had vaginal sexual intercourse

 

        15         with the victim while she was asleep and

 

        16         unable to consent.

 

        17             The Crown is seeking a sentence of two

 

        18         years and five months incarceration followed

 

        19         by two years probation.  Mr. Dick has been in

 

        20         custody for 105 days, which amounts to 157 and

 

        21         a half days of credit at the rate of one and a

 

        22         half days for every day spent in pre-sentence

 

        23         custody.  The defence is seeking a sentence of

 

        24         two years less a day after credit for remand

 

        25         credit time and to be followed by two years

 

        26         probation.

 

        27             Mr. Dick has a criminal record.  He has 17

 

 

 

 

 

       Official Court Reporters       2


 

 

 

 

 

 

 

         1         convictions starting in 2000 and continuing up

 

         2         until this year.  There are three property

 

         3         offences, three offences of violence, and 11

 

         4         offences against the administration of justice

 

         5         on his record.  He has a conviction for

 

         6         assault in 2008, another in 2009, and a third

 

         7         in 2011.  He has received sentences for those

 

         8         offences, ranging from a fine and probation to

 

         9         40 days in custody.  His last conviction was

 

        10         entered in January of this year for failing to

 

        11         comply with conditions of his recognizance.

 

        12             Mr. Dick is of Inuvialuit descent and this

 

        13         requires me to consider section 718.2(e) of

 

        14         the Criminal Code which states that all

 

        15         available sanctions, other than imprisonment,

 

        16         that are reasonable in the circumstances

 

        17         should be considered for all offenders, paying

 

        18         particular attention to the circumstances of

 

        19         Aboriginal offenders.

 

        20             I have considered the principles set out

 

        21         by the Supreme Court of Canada in Gladue and

 

        22         Ipeelee and the requirement to consider the

 

        23         unique systemic or background factors which

 

        24         may have played a part in bringing an

 

        25         Aboriginal offender before the courts and the

 

        26         types of sentencing procedures and sanctions

 

        27         which may be appropriate in the circumstances

 

 

 

 

 

       Official Court Reporters       3


 

 

 

 

 

 

 

         1         because of the Aboriginal background.

 

         2             In this case I have the benefit of a

 

         3         pre-sentence report and I have heard from

 

         4         defence counsel about Mr. Dick's background

 

         5         and circumstances.

 

         6             Mr. Dick is 39 years old and has lived in

 

         7         Inuvik for most of his life.  He reportedly

 

         8         had a good childhood that he viewed as mostly

 

         9         positive.  His parents did drink and he noted

 

        10         that there was a lot of drinking that he

 

        11         observed.  They drank until he was seven and

 

        12         then quit and so they have been sober for some

 

        13         31 years.  Mr. Dick recalled seeing a lot of

 

        14         drinking when he was a child.

 

        15             He did not attend residential school but

 

        16         both of his parents did.  Both parents were

 

        17         subjected to various forms of abuse at

 

        18         residential school.

 

        19             While he was a child, he did traditional

 

        20         activities, going to whaling camp and bush

 

        21         camp, learning how to hunt and clean game.  He

 

        22         has not carried on with those activities as an

 

        23         adult for the most part.

 

        24             Mr. Dick was in a common-law relationship

 

        25         for a number of years and has four children.

 

        26         This relationship that he was in recently

 

        27         ended and was not described as a positive one.

 

 

 

 

 

       Official Court Reporters       4


 

 

 

 

 

 

 

         1         It involved substance abuse by both parties

 

         2         and violence by both parties.  Mr. Dick also

 

         3         had to deal with the loss of his daughter in a

 

         4         house fire several years ago which has been

 

         5         very difficult for him to deal with and has

 

         6         resulted in a significant amount of guilt.

 

         7             In the pre-sentence report, Mr. Dick

 

         8         acknowledged that he has a substance abuse

 

         9         problem.  He began drinking alcohol when he

 

        10         was 16.  He smoked marijuana when he was 14

 

        11         and he began using crack cocaine in 2002 and

 

        12         over the years it has since become his drug of

 

        13         choice.  His substance abuse has become a

 

        14         significant problem and he now realizes that

 

        15         he needs to deal with it.

 

        16             A fundamental principle of sentencing is

 

        17         that the sentence must be proportionate to the

 

        18         gravity of the offence and the degree of

 

        19         responsibility of the offender.  The courts

 

        20         have consistently said that in cases of sexual

 

        21         assault, and "major sexual assaults" as

 

        22         defined in Arcand, 2010 ABCA 363, that

 

        23         deterrence and denunciation are to be given

 

        24         considerable weight in sentencing.

 

        25             The principle of denunciation involves

 

        26         denouncing unlawful conduct, sending the

 

        27         message that the sexual abuse of sleeping or

 

 

 

 

 

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         1         unconscious women will not be tolerated by the

 

         2         people of Inuvik or the Northwest Territories.

 

         3         Deterrence involves deterring the offender and

 

         4         other persons from contemplating committing

 

         5         this type of offence, imposing a sentence that

 

         6         will make Mr. Dick and others think twice

 

         7         about committing this type of offence.

 

         8             Sexual assault is an offence that occurs

 

         9         far too often in the Northwest Territories.

 

        10         There are far too many incidents and many that

 

        11         involve the abuse of someone who is sleeping

 

        12         or passed out.  In this case, the victim was

 

        13         sleeping and unable to defend herself from the

 

        14         offender.  A woman should be able to expect to

 

        15         go to sleep alone, fully clothed, and wake up

 

        16         in that same state untouched.

 

        17             Looking at the factors that are applicable

 

        18         in this case, there are mitigating factors and

 

        19         aggravating factors.

 

        20             Mr. Dick has entered a guilty plea.  It is

 

        21         not a guilty plea at the earliest opportunity

 

        22         but Mr. Dick did waive the preliminary inquiry

 

        23         in this matter and entered a guilty plea to

 

        24         this offence.  It spared the victim from

 

        25         having to testify and provided the certainty

 

        26         of a conviction so the guilty plea is

 

        27         deserving of credit.  Mr. Dick, as well, in

 

 

 

 

 

       Official Court Reporters       6


 

 

 

 

 

 

 

         1         the pre-sentence report indicated that he

 

         2         accepted responsibility for what he had done

 

         3         and expressed his remorse in the report and

 

         4         through his counsel.

 

         5             In speaking to the Court on Tuesday, he

 

         6         apologized to the victim.  The comments of the

 

         7         offender in the pre-sentence report

 

         8         demonstrate that he is sorry for what he did

 

         9         and has gained some insight into what occurred

 

        10         and the underlying causes with respect to his

 

        11         behaviour as well as the impact that this

 

        12         offence had on the victim.

 

        13             There are also aggravating factors.

 

        14             Mr. Dick has a prior criminal record so

 

        15         this is not his first offence.  He has a

 

        16         number of convictions, including convictions

 

        17         for offences of violence, albeit none as

 

        18         serious as this offence.

 

        19             It is aggravating that this sexual assault

 

        20         was committed on a sleeping victim.  As noted

 

        21         in Arcand, a sexual assault on a person who is

 

        22         asleep or passed out elevates an offender's

 

        23         degree of responsibility.  The victim is

 

        24         vulnerable sleeping or unconscious and is not

 

        25         able to consent, to defend themselves, or to

 

        26         call for help.

 

        27             This offence happened in November of 2013

 

 

 

 

 

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         1         and the victim has been waiting since then for

 

         2         resolution this matter.  She reported this

 

         3         offence promptly and submitted to a sexual

 

         4         assault examination and then had to wait years

 

         5         for the police to charge Mr. Dick.  The delay

 

         6         was not because of the actions of the victim

 

         7         or of the offender.

 

         8             The offender was a suspect initially and

 

         9         the sexual assault examination kit was sent

 

        10         for analysis.  However, a DNA report was

 

        11         misinterpreted by a police officer and it was

 

        12         felt that there was not sufficient evidence to

 

        13         proceed with charges.  A later review by a

 

        14         supervisor discovered the mistake and charges

 

        15         were laid.

 

        16             That there has been significant delay in

 

        17         this matter is unfortunate.  To the victim I

 

        18         say I am sorry that you have had to wait so

 

        19         long to see a charge laid and a conviction in

 

        20         this matter.  No victim should have had to

 

        21         wait this long.

 

        22             The victim completed a Victim Impact

 

        23         Statement in which she described the effects

 

        24         that this offence has had on her.  Not

 

        25         surprisingly she has been upset and anxious.

 

        26         Shortly after the offence, she left Inuvik and

 

        27         moved elsewhere and she attempted to carry on

 

 

 

 

 

       Official Court Reporters       8


 

 

 

 

 

 

 

         1         with her life.  When the charge was eventually

 

         2         laid against Mr. Dick, she had to deal with

 

         3         the stress of this again - the stress, the

 

         4         anxiety, and the depression that has resulted

 

         5         and has had a significant affect on her work

 

         6         and her home life.

 

         7             Looking now at the ancillary orders that

 

         8         the Crown has requested, I will deal with

 

         9         those first.

 

        10             This is a primary designated offence so

 

        11         there will be a DNA order pursuant to section

 

        12         487.051 of the Criminal Code.

 

        13             It is mandatory, pursuant to section

 

        14         490.012 of the Criminal Code, that the

 

        15         offender comply with the Sex Offender

 

        16         Information Registration Act.  That order will

 

        17         be in place for 20 years.

 

        18             There is a mandatory firearms prohibition

 

        19         order pursuant to section 109 of the Criminal

 

        20         Code.  It will be in place for ten years

 

        21         following Mr. Dick's release from

 

        22         imprisonment.

 

        23             There will also be the victim of crime

 

        24         surcharge of $200 payable in accordance with

 

        25         the regulation.

 

        26             Mr. Dick has been in custody for 105 days

 

        27         which amounts to 157 and a half days credit at

 

 

 

 

 

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         1         the rate of one and a half days credit for

 

         2         every day spent in pre-sentence custody.  That

 

         3         equates to just over five months of remand

 

         4         credit which will be deducted from the

 

         5         sentence that I am about to impose.

 

         6             Please stand, Mr. Dick.

 

         7             Taking into account the circumstances and

 

         8         the applicable sentencing principles, I am

 

         9         satisfied that an appropriate sentence is one

 

        10         of two years and five months imprisonment.

 

        11         Five months will be deducted from that

 

        12         sentence for your remand time, leaving two

 

        13         years left to be served.

 

        14             I have given some consideration as to

 

        15         whether you should be put on probation because

 

        16         you do not have a good history of following

 

        17         court orders.  But I have decided to follow

 

        18         counsel's recommendation and impose probation

 

        19         because I believe that attending counselling

 

        20         will be an important part of your

 

        21         rehabilitation.  If you do not address your

 

        22         substance abuse issues, I expect that you will

 

        23         simply end up before the courts again.

 

        24             There will be a probation order for two

 

        25         years which will commence when you are

 

        26         released from imprisonment, and it will

 

        27         include the statutory conditions and some

 

 

 

 

 

       Official Court Reporters       10


 

 

 

 

 

 

 

         1         additional conditions.

 

         2             The conditions are that you keep the peace

 

         3         and be of good behavior.  You are not to

 

         4         communicate directly or indirectly with the

 

         5         victim.  You are not to attend at the victim's

 

         6         home or place of work.  You are to appear when

 

         7         required to do so by the Court.  You are to

 

         8         notify the Court or the probation officer in

 

         9         advance of any change of name or address and

 

        10         promptly notify the Court or the probation

 

        11         officer of any change in employment or

 

        12         occupation.  You are to report to the

 

        13         probation officer within two days of your

 

        14         release from jail and after that as directed.

 

        15         You are to take any counselling that has been

 

        16         directed by the probation officer.

 

        17             Do you understand those conditions?

 

        18     THE ACCUSED:          Yeah.

 

        19     THE COURT:            You may have a seat.

 

        20             Is there anything else, counsel?

 

        21     MR. JOHNSON:          Not from the Crown, Your

 

        22         Honour.

 

        23     MR. BOCK:             No, Your Honour, thank you.

 

        24     THE COURT:            All right, thank you, and we

 

        25         will adjourn Court.

 

        26             --------------------------------

 

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         2                           Certified to be a true and

                                     accurate transcript pursuant

         3                           to Rules 723 and 724 of the

                                     Supreme Court Rules,

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         8                           ____________________________

 

         9                           Lois Hewitt,

                                     Court Reporter

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