Supreme Court

Decision Information

Decision information:

Transcript of the Reasons for Sentence

Decision Content

R v Bernarde, 2018 NWTSC 22             S-1-CR-2017-000029

 

 

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

IN THE MATTER OF:

 

 

HER MAJESTY THE QUEEN

 

 

- v -

 

 

CAMERON BERNARDE

_________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 26th day of March, 2018.

_________________________________________________________

 

 

APPEARANCES:

 

 

Mr. B. Green:                 Counsel for the Crown

Mr. P.J. Harte:               Counsel for the Accused

 

 

(Charges under s. 344(b), 87, 88,

117.01(1), 351(2), 91(1), 733.1(1), and 85(1)(a)

of the Criminal Code of Canada)


 

1            THE COURT:             Mr. Bernarde has pleaded

2                    guilty to a charge of robbery.  Sentencing is

3                    never easy for a sentencing judge, and in this

4                    case, it is even harder.  I was given a lot of

5                    information about Mr. Bernarde in the medical

6                    reports and other documents that his lawyer gave

7                    me.  Those documents talk about his medical and

8                    psychological condition.  I also had two

9                    Presentence Reports that were filed.  One was

10                   prepared several years ago in 2008.  The other

11                   was prepared in 2017.  And, of course, the

12                   lawyers gave me case law and they made lengthy

13                   submissions at the sentencing hearing.

14                             As I have just told Mr. Bernarde, it is my

15                   responsibility to make sure that I explain my

16                   decision in this case, like it would be in any

17                   case; but because some of the issues that were

18                   raised in this matter were complicated, I want to

19                   make sure that the reasons I give are complete

20                   and for that reason I am going to prepare a

21                   written decision.  Today I will try to explain in

22                   a shorter version why I have decided what I have.

23                             In sentencing Mr. Bernarde, I have to take

24                   into account, as would be the case in any

25                   sentencing, the crime that the person has

26                   committed, the circumstances of the person who

27                   has committed it, and what the law says.


 

1                             So dealing first with the offence, what I

2                    heard is that the night before this crime

3                    happened Mr. Bernarde had been drinking with one

4                    of his friends.  He left the friend's house

5                    apparently intending on going home to bed, but

6                    that is not what he ended up doing.  Instead, he

7                    got a firearm from his home and he went to the

8                    Rooster Gas Bar in Hay River.  When he entered

9                    the Rooster, he was wearing a hoodie and

10                   something covering his face.  By then it was the

11                   early morning hours of November 8th, 2016.

12                             William Delorme was working as the cashier

13                   at the time.  Mr. Bernarde pointed the firearm

14                   directly at him and demanded money from the till

15                   and the nearby automatic teller machine.

16                   Mr. Delorme gave Mr. Bernarde about $200 from the

17                   till.

18                             The police investigated.  They discovered

19                   that Mr. Bernarde was the one who had done this,

20                   and they arrested him.  He gave a statement to

21                   the police, and he admitted that he was the one

22                   who had done this.

23                             Mr. Delorme said afterwards that he was not

24                   afraid when this was happening because

25                   Mr. Bernarde seemed nervous and he did not seem

26                   to be a very good criminal.  Mr. Delorme said

27                   that when Mr. Bernarde pointed the firearm at


 

1                    him, Mr. Delorme saw that the bolt and bullet

2                    chamber were open.  Mr. Delorme thought that the

3                    gun, even if it was loaded, would probably

4                    backfire because it looked too rusty to shoot.

5                    It is important to say that Mr. Delorme was wrong

6                    about this because the firearm was tested and, in

7                    fact, it did fire.

8                             That is the offence that Mr. Bernarde

9                    committed.  That is the crime I have to sentence

10                   him for.

11                             As for his circumstances, I know that he

12                   turned 23 earlier this month.  He is of Mountain

13                   Dene descent.  He was adopted shortly after birth

14                   by his aunt and uncle.  His biological mother was

15                   not able to care for him because of serious

16                   substance abuse issues that she had.  In fact, I

17                   heard that she consumed alcohol throughout her

18                   pregnancy, and sadly this had a significant

19                   impact on Mr. Bernarde.

20                             Mr. Bernarde lives with Fetal Alcohol

21                   Spectrum Disorder.  This makes it more difficult

22                   for him to function within the rules of society.

23                   It makes it harder for him to control his

24                   impulses.  It makes it hard for him to connect

25                   what he does with the consequences of what he

26                   does.

27                             The information I was given is also that he


 

1                    has some intellectual challenges.  That is not

2                    his fault either.  I understand that it must be

3                    hard for him.  For example, it must have been

4                    very frustrating to be in school.  He is very

5                    good at certain things and has difficulties with

6                    others.

7                             I know from one of the Presentence Reports

8                    that he is a very good bush man.  His grandfather

9                    taught him well.  I also know he is good at

10                   fixing things.  He has a harder time with other

11                   things like abstract concepts, planning, and

12                   sometimes with making good decisions.

13                             Mr. Bernarde would have needed a lot of

14                   support and structure growing up.  He will need

15                   supports and structure throughout his life to

16                   function properly in his community.  The need for

17                   these supports was identified clearly when he was

18                   very young.  Unfortunately, he never received

19                   those supports.  Instead, he grew up in a

20                   difficult environment, according to the

21                   Presentence Report that was prepared in 2017.

22                             I want to say here that I know there is very

23                   conflicting information between the 2008 report

24                   and the 2017 report.  The 2008 report says he

25                   grew up in a loving home and was probably loved

26                   more than his siblings.  The report from 2017

27                   says there was alcohol abuse in the home and a


 

1                    lot of violence including serious violence

2                    directed at him.

3                             At the sentencing hearing, Mr. Bernarde's

4                    lawyer said that the information in the 2017

5                    report was the correct information.  I want

6                    Mr. Bernarde to know that I believe what he says

7                    when he says that the 2017 report is the one that

8                    has the correct information.  I have no reason

9                    not to believe that.  And it is also not hard at

10                   all for me to understand why he did not talk

11                   about those things when the 2008 Presentence

12                   Report was prepared.  After all, back then he was

13                   only 13-years-old, and some of the things that

14                   are described in the 2017 report would have been

15                   very difficult to talk about even now but

16                   certainly even more so when he was 13.

17                             Mr. Bernarde has been in trouble with the

18                   law regularly since a young age.  He was not even

19                   13 when he was first sentenced in the Youth

20                   Court.  In the following years, he was in court

21                   many times; for crimes against property and for

22                   not following court orders.  And this continued

23                   after he turned 18.

24                             His last conviction in May 2014 was for a

25                   much more serious offence, though, than the

26                   previous ones.  It was for sexual assault.  For

27                   that crime, he received a fairly long jail term


 

1                    and was placed on probation for three years.  He

2                    was still on probation when he committed the

3                    robbery at the Rooster.

4                             I agree with his lawyer that his criminal

5                    record is as much a symptom as anything else, but

6                    what worries me a lot is that his crimes seem to

7                    be getting more serious.  In the past, he stole

8                    things.  He didn't follow court orders.  Those

9                    are crimes, but sexual assault and robbery with a

10                   firearm are far more serious crimes.

11                             Turning briefly to the law, normally when

12                   deciding what a sentence should be a judge has to

13                   look at how serious the crime is and how much

14                   blame the person who committed the crime should

15                   receive for it.  Normally a judge has a lot of

16                   different choices on sentencing.  Sometimes the

17                   law gives the judge fewer choices.  Sometimes the

18                   law says that there is a minimum punishment for a

19                   crime.  And when that is the case, judges have to

20                   follow the law.

21                             Here the law says that because Mr. Bernarde

22                   used a firearm in this robbery I have to sentence

23                   him to at least four years in jail.

24                   Mr. Bernarde's lawyer says that I do not have to

25                   follow that law because that law is not valid.

26                   The position is that the minimum sentence that

27                   the law says I should give is simply too high to


 

1                    be a valid law.

2                             The Crown agrees that four years would be a

3                    very high sentence for Mr. Bernarde, but the

4                    Crown says it is not high enough to be invalid

5                    law.  So the Crown says I have to follow what the

6                    Criminal Code says.

7                             This has not been an easy decision to make.

8                    It is not Mr. Bernarde's fault that he has an

9                    FASD.  I also know he has not received the

10                   supports and structure that doctors and others

11                   said he should have received when he was younger.

12                   It does not seem fair that doctors, nurses,

13                   psychologists said that he needed certain things

14                   and that he did not get those things.  And that

15                   on top of that, he was left in a very bad home

16                   situation with very little help.

17                             At the same time, robbery is a serious

18                   crime, and even when there is no weapon used, the

19                   sentences for it are usually quite high.  Here a

20                   firearm was used.  That makes the crime more

21                   serious.  In addition, Mr. Bernarde did not just

22                   have the firearm with him, he pointed it directly

23                   at Mr. Delorme.  And that, too, makes the offence

24                   more serious.

25                             He also hid his face which means he thought

26                   about what he was about to do and tried to make

27                   sure he would not be caught.  The fact that he


 

1                    planned and thought about this, even if it was

2                    not a complicated or long plan, also makes the

3                    offence more serious.

4                             The things in Mr. Bernarde's favour are that

5                    he pleaded guilty.  He admits what he did, and I

6                    believe him when he says he is sorry.  Also, I do

7                    have to take into account his circumstances which

8                    I have talked about already and his challenges.

9                    These do not excuse his behaviour.  They do not

10                   give him a defence to this charge, but his level

11                   of responsibility is lower than if he was someone

12                   without the challenges that he has.

13                             But looking at the sentences that are

14                   usually imposed for robberies, looking at the

15                   things that make this one more serious, and even

16                   considering all the things in Mr. Bernarde's

17                   favour, the difference between the four-year

18                   sentence that the law says I must give him and

19                   the sentence that I would give him if that law

20                   was not there is not a big enough difference for

21                   me to say that the law is invalid.

22                             There have been other cases where people

23                   have argued that this law is invalid.  That this

24                   minimum sentence is simply too high for certain

25                   people.  This happened in cases where the person

26                   being sentenced also had special challenges like

27                   a mental illness or addictions or other similar


 

1                    circumstances.  The courts in those cases decided

2                    that the law was valid because of how serious it

3                    is to use a firearm when committing a robbery.

4                    And after careful consideration, I agree with

5                    those other decisions.

6                             So my conclusion is that I do not have the

7                    choice.  I have to follow what the law says.  In

8                    this case, it forces me to impose what I consider

9                    to be a very severe sentence under the

10                   circumstances, but because I have decided that it

11                   is not severe to the point of making the law

12                   invalid, I have to apply it.  I am not going to

13                   impose any more than what the law forces me to

14                   do, however.

15                             Mr. Bernarde has been in custody for a total

16                   of 504 days, which works out to 756 days if I

17                   give him a day and a half of credit for each day

18                   he spent on remand.  So I will give him the

19                   maximum credit for that.

20                             There are a number of orders that the Crown

21                   has asked, and they are all mandatory.

22                             There will be a firearms prohibition order.

23                   Mr. Bernarde is already on one as a result of the

24                   sexual assault conviction, but there has been no

25                   notice filed that forces me to give him a life

26                   prohibition.  I am still going to make the

27                   prohibition a little bit longer than the minimum,


 

1                    because I am very concerned about the manner in

2                    which he chose to use the firearm in this case.

3                    So there will be a firearms prohibition order.

4                    It will begin today and it will expire 15 years

5                    from Mr. Bernarde's release.

6                             There will be a DNA order, because robbery

7                    is a primary designated offence.

8                             There will be a Victim of Crime Surcharge of

9                    $200.  The time to pay and the default time are

10                   set out in the statute.

11                             With the credit that I am going to give

12                   Mr. Bernarde, the jail term I will impose today

13                   works out to two years and one week.  The

14                   sentence that I impose today will be below two

15                   years, and that means that probation can be made

16                   a part of the sentence.

17                             Mr. Bernarde has not done very well with

18                   following court orders in the past, and sometimes

19                   that makes a judge not keen on putting someone on

20                   probation; but in this case I am going to add a

21                   Probation Order to the sentence, not for

22                   punishment purposes but hopefully to help

23                   Mr. Bernarde.

24                             It is very clear that structure and

25                   supervision are things that he needs.  I know he

26                   was on probation when he committed this offence,

27                   but this time when he is released, he will have


 

1                    been in jail for a longer time.  I hope he will

2                    have been able to benefit from some of the

3                    supports and programs available in jail.  And I

4                    hope that he will have been able, with the help

5                    of others, to make a better plan to stay out of

6                    trouble and that being on probation might help

7                    him stick with that plan.

8                             I hope very much that the Probation Services

9                    in Hay River, or wherever Mr. Bernarde will live

10                   when he is released, will provide very close

11                   supervision and guidance to him.  Everyone must

12                   recognize, the jail authorities and the probation

13                   authorities, that Mr. Bernarde is not an ordinary

14                   offender.  He has very special needs, needs that

15                   were identified by people who worked for the

16                   government many years ago in the medical and

17                   Social Services field.  The supports that

18                   everyone said he needed were never given to him,

19                   and I hope that this will change and that perhaps

20                   through the assistance of Probation Services he

21                   will do better when he is released this time.

22                             Mr. Bernarde cannot succeed in this alone.

23                   That is very clear.  I hope that whoever will be

24                   assigned as his probation officer will deal with

25                   him and supervise him in a manner that takes into

26                   account his special needs.  Mr. Bernarde is still

27                   very young.  A lot of what will happen in his


 

1                    future will be up to him, but there is also a

2                    responsibility on others, on the state, to

3                    provide him with the supports that he needs.

4                             As I said, I am very worried about the fact

5                    that his crimes are getting more and more

6                    serious.  If he does not receive the help and

7                    supports that he needs, I am scared that he will

8                    end up hurting someone even more badly than he

9                    already has.  That would be awful for whoever the

10                   next victim is, but it also would be awful for

11                   Mr. Bernarde himself.  So this time the system

12                   has to do its part to try to prevent that from

13                   happening.

14                             Can you stand up, please, Mr. Bernarde.

15                             Mr. Bernarde, as I said, I do not feel I

16                   have a choice here.  If you had not spent time in

17                   custody already, the sentence would have been

18                   four years, and that would have been a

19                   penitentiary sentence.  For the 504 days you have

20                   already spent in custody, I am going to give you

21                   credit for 756 days, and that works out to two

22                   years and three weeks.  And so what that means is

23                   that the balance of the sentence is going to be

24                   23 months and one week, so just short of two

25                   years, and that means that it is going to be

26                   served here in the north.

27            THE ACCUSED:           Okay.


 

1            THE COURT:             You can sit down.

2                             I really hope, Mr. Bernarde, that, while I

3                    do not know if they are going to keep you in the

4                    same place where you have been; but whatever you

5                    have been doing and whatever help you have been

6                    getting there, I hope that continues.  I have

7                    heard that you have skills and I hope that you

8                    can get help focusing on that so that you can do

9                    better the next time you are released.

10            THE ACCUSED:           Yeah.

11            THE COURT:             For the reasons I have given,

12                   I am going to have this followed by probation for

13                   three years.  So you are going to have to report

14                   to Probation within 24 hours.  As soon as you are

15                   released from the custody, you have to report to

16                   them.

17            THE ACCUSED:           (Affirmative, non-verbal

18                   response).

19            THE COURT:             And then report to them as

20                   they direct you to.

21            THE ACCUSED:           Yes.

22            THE COURT:             I am going to direct that you

23                   will live where your probation officer tells you

24                   to live.  This is not going to be written in the

25                   order; but for the benefit of the transcript and

26                   reference for the people who will be making

27                   decisions about you, residency options, in my


 

1                    view, should include possible placement into the

2                    kind of supported living that the last

3                    psychologist who worked with you thought you

4                    needed.  I know the options are limited in Hay

5                    River, but hopefully they can help you find a

6                    place where you will have the support you need.

7            THE ACCUSED:           Yes.

8            THE COURT:             The third condition is going

9                    to be that you take any educational programs that

10                   your probation officer might recommend.  Now I

11                   read in all of these documents I was given that

12                   you are good with your hands.  You are good at

13                   repairing things, and there are a lot of people

14                   who are not good at repairing things and need

15                   people like you to do that work.

16            THE ACCUSED:           Yeah.

17            THE COURT:             So there is work for people

18                   like you who are good at repairing snow machines,

19                   ATVs, and small engines, and I know it is one of

20                   those things that interests you.  So if you keep

21                   that up, perhaps you can have work and that will

22                   help you stay out of trouble.

23            THE ACCUSED:           Yes.

24            THE COURT:             I have not put a condition

25                   that you not drink, because I do not want to set

26                   you up.

27            THE ACCUSED:           Yeah.


 

1            THE COURT:             For just being charged again,

2                    but you have said yourself to the person that

3                    wrote the Presentence Report that you do not

4                    think you should drink.

5            THE ACCUSED:           Yeah.

6            THE COURT:             Bad things happen when you

7                    drink.

8            THE ACCUSED:           That's -- that's true.  I'm

9                    not going to lie about it, Your Honour.  Yeah, I

10                   mean I'm a young father.  I just need to get

11                   my -- straighten out everything.

12            THE COURT:             Exactly.  So I am not making

13                   that a condition, but I hope you choose not to

14                   drink.

15            THE ACCUSED:           All right.

16            THE COURT:             Ever again.

17            THE ACCUSED:           (Affirmative, non-verbal

18                   response).

19            THE COURT:             Have I overlooked anything

20                   from the Crown's perspective?

21            MR. GREEN:             No, Your Honour.  My friend

22                   and I have agreed in principle on a forfeiture

23                   and disposition order.  There were a few exhibits

24                   seized from Mr. Bernarde, and we will be filing

25                   that over the counter.  It will be an order on

26                   consent.

27            THE COURT:             All right.  So that can be


 

1                    brought to my attention, Madam Clerk.

2                             Mr. Harte, anything I have overlooked from

3                    your perspective?

4            MR. HARTE:             No, Your Honour, thank you.

5            THE COURT:             Do you understand things I

6                    have said, Mr. Bernarde?

7            THE ACCUSED:           What's that?

8            THE COURT:             Do you understand what I have

9                    said?

10            THE ACCUSED:           I'll get Peter to explain it

11                   to me a little later.

12            THE COURT:             Okay.  I hope that things work

13                   out for you, Mr. Bernarde.  This was not an easy

14                   decision to make.  I am not enjoying imposing a

15                   further jail term on you, but what you did was

16                   very serious and it could have ended very badly.

17            THE ACCUSED:           Yes.

18            THE COURT:             So the main thing is you need

19                   to stay out of court.

20            THE ACCUSED:           Yeah.

21            THE COURT:             You need to focus on the good

22                   things and on your skills, and I am hoping that

23                   by saying the things I said today and the things

24                   I will write in my written decision that will

25                   also go to the Correctional authorities that they

26                   will do what they can and Probation Services will

27                   do what they can to really help you so that we do


 

1                    not see you back in court again.

2            THE ACCUSED:           Yeah.

3            THE COURT:             Thank you.  We will close

4                    court.

5      -----------------------------------------------------

6

7

8      CERTIFICATE OF TRANSCRIPT

9

10                   I, the undersigned, hereby certify that the

11            foregoing pages are a complete and accurate

12            transcript of the proceedings taken down by me in

13            shorthand and transcribed from my shorthand notes

14            to the best of my skill and ability.

15                   Dated at the City of Edmonton, Province of

16            Alberta, this 28th day of March, 2018.

17

18                             Certified Pursuant to Rule 723

19                             of the Rules of Court

20

21

22                             __________________________

23                                                          Linda Kimball

24                                                          Court Reporter

25

26

27

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.