Decision Content
R v SMITH, 2018 NWTSC 52 S-1-CR-2018-000018
AMENDED ORIGINAL
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
FRANKIE JAMES SMITH
ORIGINAL amended as of October 29, 2018, to: Title page "R v Smith, 2018 NWTSC 52"
Transcript of the Sentencing Hearing before the Honourable Justice A.M. Mahar, sitting in Yellowknife, in the Northwest Territories, on the 7th day of August 2018.
APPEARANCES:
Mr. J. Potter Mr. J.K. Bran
Counsel for the Crown Counsel for the Accused
[Charges under s. 86(1) of the
Criminal Code of Canada]
Dicta Court Reporting Inc.
1 THE COURT: Have a seat beside your
2 lawyer, sir. Thank you.
3 Sorry. I should have asked you first.
4 Have a seat.
5 THE ACCUSED: Sit?
6 THE COURT: Yeah.
7 MR. BRAN: Your Honour, just to make sure
8 that we are in a position to proceed, my friend
9 reminds me that we may need to address the real
10 action that -- at this point; if it hasn't
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already been addressed, we are prepared to -- to |
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do that at this point. |
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THE |
COURT: All right. Mr. Clerk, please |
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read the re-election. |
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THE |
COURT CLERK: Mr. Potter, just to confirm, |
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it's just going to be on Count 1? |
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MR. |
POTTER: (Affirmative, non-verbal |
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response) |
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THE |
COURT CLERK: Okay. |
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Frankie James Smith, you have given notice |
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stating that you wish to re-elect to be charged |
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by a judge without the jury. You have been |
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committed to stand trial on the following charge: |
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(as read) |
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Count 1. On or about the 10th day of October 2017, at or near the town of Inuvik, in the Northwest Territories, |
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did, without lawful excuse, use a firearm, to wit a rifle, in a |
1 Section 86(1) of the Criminal Code.
2 You have given notice of your wish to re-elect
3 the mode of your trial. You now have the option
4 to do so.
5 How do you wish to re-elect?
6 MR. BRAN: The re-election is to judge
7 alone.
8 THE COURT CLERK: Having re-elected to be tried
9 by a judge without a jury, how do you plead to
10 the charge? Guilty or not guilty?
11 MR. BRAN: The plea is -- is guilty.
12 Is that correct, sir?
13 THE ACCUSED: Yes.
14 THE COURT: Just to be clear, this is
15 guilty to Count 1 of the indictment; correct?
16 MR. BRAN: That's correct.
17 THE COURT: I'll leave it to you,
18 Mr. Potter, to deal with the other charges after.
19 MR. POTTER: Certainly, Your Honour. I
20 expect they'll be disposed of.
21 There is an agreed statement of facts in
22 this matter, Your Honour. I'm going to file a
23 copy with the Court and then read the contents
24 into the record. I'm just going to show my
25 friend.
26 THE COURT: Do you want to take a moment,
27 Mr. Bran?
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MR. |
BRAN: Do we need to take a moment? |
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THE |
ACCUSED: No. |
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MR. |
BRAN: No. We're good. |
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THE |
COURT: Thank you. |
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MR. |
POTTER: When the Court's ready, I'll |
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go ahead and read in the -- |
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THE |
COURT: Just take a moment. |
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Go ahead, Mr. Potter. |
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MR. |
POTTER: Thank you, Your Honour. |
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The facts are the following: (as read) |
11 On the evening of October 10th, 2017, the accused, Mr. Frankie James Smith,
12 and his common-law partner,
Ms. Cheryl Greenland, drove out to
13 their cabin. Nobody else was present at the cabin. The cabin is located
14 in a remote, rural area along the riverbed approximately 50 to 60 metres
15 away from the Dempster Highway near Inuvik, in the Northwest Territories.
16 That evening, Mr. Smith was drinking alcohol and was intoxicated.
17 He and Ms. Greenland got into a verbal argument. During the verbal
18 argument, Mr. Smith picked up a rifle which belonged to Ms. Greenland,
19 loaded it, and fired a shot outside the front window of the cabin facing
20 towards the highway. He then sat down at the kitchen table with a
21 loaded gun where Ms. Greenland was seated.
22 Ms. Greenland was frightened by the shot having been fired and told
23 Mr. Smith that they don't mess around with guns when they're drinking. She
24 took her dog and a box of rifle shells and left the cabin.
25 As Ms. Greenland was walking down the trail leading from the cabin
26 to the highway, Mr. Smith fired a
second shot from the rifle. Ms. Greenland
27 heard the noise from that shot which
1 the shot or what direction it was fired in. Ms. Greenland reached her
2 vehicle and drove a short distance up a nearby hill.
3 A few minutes later, Ms. Greenland, concerned for Mr. Smith's well-being,
4 drove back to the vicinity of the cabin and parked on the highway. She
5 opened her vehicle's window and had a cigarette. At the time, she heard
6 Mr. Smith fire a third shot. She did not see this shot or what direction
7 it was fired in. Following the third shot, Ms. Greenland drove to where
8 there was cellular phone reception and called her daughter, who, in
9 turn, called the Inuvik RCMP. The call to the RCMP dispatch occurred at
10 approximately 9:50 PM.
Constables Leduc and Woodcock of
11 the Inuvik attachment spoke to
Ms. Greenland on the highway and then
12 proceeded to the area of the cabin. They arrived at approximately
13 midnight. They were joined there by Corporal Forwell, Constable Main, and
14 Constable McGuffin. The RCMP members set up a perimeter near the cabin,
15 and, using night-vision goggles, Corporal Forwell was able to
16 determine that a generator was running and the light could be seen
17 at the cabin.
Shortly after midnight, now on
18 October 11th, 2017, Constable McGuffin used the hailer/public
19 address system available in his police vehicle to repeatedly call out
20 to Mr. Smith, telling him that he was under arrest and that he should come
21 out and surrender. Sirens and lights were also deployed to attempt to
22 attract Mr. Smith's attention. There was no direct response. Though,
23 using the night-vision goggles, Corporal Forwell was able to detect
24 movement from the cabin, and the generator and lights were turned off.
25 At approximately 3:15 AM, the RCMP made a second series of
26 attempts, using the public address system, sirens, and lights to direct
27 Mr. Smith to surrender. These were
1 At approximately 7:15 AM, Constables Glemser, Sanderson, and
2 Moore arrived on scene to relieve Constables Leduc and Woodcock.
3 Arrangements were also being made to deploy the RCMP's emergency response
4 team, though they were ultimately not required.
5 At 9:30 AM, a third set of attempts were made to call out to
6 Mr. Smith. On this occasion,
Mr. Smith exited the cabin, holding a
7 beer. He complied with police directions and was peacefully
8 arrested without incident. After the arrest, Corporal Forwell, Constable
9 Main, and Constable Sanderson entered the cabin, secured the scene, and
10 ensured nobody else was present. Constable Main observed that a
11 rifle was in plain view in a corner near the door to the cabin. Upon
12 seizing the rifle, Constable Main observed that the bolt of the rifle
13 was in the locked-back position, with one round in the chamber and four
14 rounds in the magazine. The safety was in the "off" position. Several
15 rounds of ammunition were located in a plastic container that was sitting
16 on the window sill. This ammunition was also seized.
17 Constable Main also observed a hole in the screen of the cabin's
18 window which faced towards the Dempster Highway. A photo of the
19 window screen was taken by Constable Main on October 11, 2017. [And
20 that's attached as an appendix to the agreed statement of facts.]
21 The rifle used by Mr. Smith during the incident and that was
22 seized by Constable Main is a Fabbrica Italiana .30/30 rifle with a
23 serial number of 18943. It meets the definition of a firearm under
24 Section 2 of the Criminal Code. It is not a restricted or prohibited
25 weapon. Photos of this rifle and the ammunition described above that
26 were taken by Constable Main on October 11, 2017, were also attached
27 as photos to this exhibit.
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THE |
COURT: Thank you. |
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MR. |
POTTER: Those are the facts. |
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THE |
COURT: Mr. Bran, I note that the |
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agreed facts have already been signed off on. If |
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I could just have your client agree that those |
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are the facts you agreed to, sir. |
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THE |
ACCUSED: Yes. |
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MR. |
BRAN: Yes, and those are our -- our |
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signatures. |
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THE |
COURT: There will be a finding of |
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guilt, then, on Count 1, careless use of a |
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firearm. |
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MR. |
POTTER: We're prepared to address |
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sentencing, Your Honour. |
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THE |
COURT: Thank you. |
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MR. |
POTTER: The Crown's position is one |
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year's -- a jail sentence of one years (sic) of |
18 jail, with a probation order of three years
19 following that, and ancillary orders including a
20 DNA order, which is secondary in this case, as
21 well as a Section 110 order for a period of ten
22 years. The Crown is also seeking, pursuant to
23 Section 491(2) of the Code, that the firearm and
24 ammunition that were seized be returned to their
25 lawful owner, who is Cheryl Greenland.
26 In terms of presentence -- presentence
27 credit, I'll address it in more detail at the end
1 of my submissions, but the Crown's estimation is
2 that, in total, he is entitled to 280.5 days of
3 credit, which is a little over nine months, and
4 that should be deducted from the sentence the
5 Court imposes.
6 The conditions the Crown is seeking with
7 respect to the probation order are that he -- in
8 addition to the statutory conditions, that
9 Mr. Smith report within 72 hours of his release
10 and thereafter as directed; that he take any
11 counselling, programming, or treatment as
12 directed by probation; and that he not have
13 contact with Cheryl Greenland except with her
14 consent while he is sober, and if Ms. Greenland
15 or a member of the RCMP asks him to, he must stay
16 away from her for a period of 24 hours.
17 In -- in forming the Crown's position in
18 this matter, it's important to note that careless
19 use of a firearm is -- when prosecuted by
20 indictment for a first conviction, as it is here,
21 is one that can attract a broad range of -- of --
22 of sentences.
23 I'm also, to inform the Court's
24 consideration, going to be filing the criminal
25 record of Mr. Smith as well, and I'm going to
26 note that there are two entries that are not
27 addressed on the -- the written record, but my
1 friend is aware of them, and I'll -- I'll be
2 reading them in afterwards.
3 MR. BRAN: The record in this format is
4 consented to. It's -- as well as the -- the
5 additional convictions that my friend will speak
6 to.
7 THE COURT: Exhibit 1 -- actually, it will
8 be Exhibit 2. The agreed facts are Exhibit 1.
9 THE COURT CLERK: Yes, Sir.
10 THE COURT: Thank you.
11 EXHIBIT S1 - STATEMENT OF AGREED FACTS
12 EXHIBIT S2 - FRANKIE JAMES SMITH'S CRIMINAL RECORD
13 THE COURT: Thank you.
14 MR. POTTER: And the two additional
15 convictions I have mentioned, Sir, was on
16 March 9th of this year, Mr. Smith pled guilty to
17 two counts of bridging a release, contrary to
18 Section 145(e) of the Criminal Code. Those
19 offences dated from January 1st and January 31st
20 of this year respectively.
21 In relation to those matters, both were
22 alcohol breaches. So he breached a no-alcohol
23 condition upon his release on both occasions, and
24 he was sentenced to 10 days on the first breach
25 and 15 days on the second, for a total of 25
26 days. And that was given at a rate of 1.5-to-1
27 credit in recognition of 17 real days. And
1 that -- those 17 days should be deducted from the
2 credit he's otherwise accumulated in connection
3 with this offence, and I -- I will address that.
4 THE COURT: You've already taken that into
5 account in terms of coming to the 280 days?
6 MR. POTTER: Yeah, exactly.
7 So as I was saying, Your Honour, obviously
8 careless use is an offence that -- that has a
9 broad range, and that's because, of course,
10 there's a high degree of variance in terms of
11 both the -- the gravity of this offence and how
12 it can be committed, and the blameworthiness of
13 the person who commits it. And, of course,
14 sentences for this offence range from even a
15 discharge or a small fine up to two years in jail
16 for a first offence, which is the maximum
17 applicable in this case.
18 Here, the Crown is seeking a sentence of one
19 year in jail, which is towards the higher end of
20 what is -- is frequently given for this offence,
21 but that higher position is informed by what the
22 Crown sees as several aggravating factors in
23 regards to this matter. The first is, of course,
24 is that the careless use occurred, at least
25 initially, because Mr. Smith picked up that
26 firearm during an argument with his domestic
27 partner. And that's aggravating because it's not
1 just a context of someone who is using a firearm
2 for an otherwise legitimate purpose, but -- you
3 know, fails to comply with regulations or acts
4 too recklessly or too carelessly; it's someone
5 who took a tool that's designed to be used for
6 hunting and for protection in small -- in small
7 isolated areas like a cabin, and, instead, he
8 used it in a manner that was -- was during an
9 argument. That's, obviously, very inappropriate,
10 and it coordinates to denounce that specific kind
11 of use of firearms, which is all too prevalent in
12 the north. More generally, it -- this was also,
13 obviously, quite a frightening incident for
14 Ms. Greenland.
15 The accused, secondly, was also intoxicated
16 at the time when he picked up the firearm, and
17 any use of a firearm that occurs when a person is
18 intoxicated and when their judgment is
19 necessarily impaired is also of concern because
20 it, just by its nature, increases the risk of a
21 catastrophe occurring. And luckily nobody was
22 harmed during this incident at all, but certainly
23 there was a risk there.
24 In addressing that risk, it's important to
25 note, and to be fair to Mr. Smith, the firearm
26 was never pointed at anybody, and we are in a
27 remote area, but, nonetheless, the firearm was
1 discharged three times, and at least one of those
2 discharges, the first one, was fired in the
3 direction of the Dempster Highway. And the cabin
4 is only about 50 or 60 metres away from the
5 highway. Now, again, it's -- you know, this
6 isn't the 401; it's not the most high-traffic
7 zone in the country by any means, but it is a
8 road that is used, and it is a risk that he
9 engendered by discharging that first shot in the
10 direction that -- that he did.
11 We don't know, of course, where the two
12 other shots went or what direction they were
13 fired in. Still, the -- the Crown would submit
14 the fact that there were multiple discharges of
15 the firearm is something that's aggravating here.
16 And, of course, last, in regards to the
17 circumstances of the offence, we have the
18 subsequent conduct of Mr. Smith, including this
19 standoff that took place overnight with the
20 members of the RCMP. As I read in the agreed
21 statement of facts, when several members --
22 several members were, in fact, involved in this
23 incident. It diverted them away from other
24 duties. People had to be called out, and there
25 was a -- a real possibility that they were going
26 to be calling out members from outside the
27 jurisdiction as well. And that didn't happen,
1 which is fortunate, but these are -- these are
2 situations which utilize a large number of police
3 resources, and they also, more importantly, pose
4 a real risk to members. And we're very fortunate
5 this incident was resolved completely peacefully,
6 and Mr. Smith ultimately cooperated with the
7 investigators, but that was -- from the
8 investigators' point of view, during the incident
9 as it was unfolding, that was, of course, by no
10 means certain.
11 Finally, we -- we do have to acknowledge, in
12 aggravation, Mr. Smith's criminal record which
13 the Court has had the benefit of reviewing just
14 now. By my count, there are slightly over 30
15 convictions, and some of these convictions,
16 while -- while dated, are quite related to what
17 happened in this matter.
18 In 1997, Mr. Smith was convicted of
19 possessing a weapon for a dangerous purpose, as
20 well as, in a separate entry, carrying a
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concealed weapon. |
He also has a conviction in |
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1999 for robbery. |
And in 2000, he has a |
23 conviction -- he has convictions for assault with
24 a weapon and attempted murder, for which he
25 received a four-year prison term.
26 So, obviously, while those offences are
27 quite dated, you know, going back 20 years now,
1 they are serious, and it shows that, at least in
2 the past, Mr. Smith was capable of being quite a
3 dangerous person. And while it -- it seems that,
4 with the exception of a driving offence from 2016
5 and these more recent breaches, he's relatively
6 stayed out of trouble since about 2009. This
7 offence should hopefully be an occasion where the
8 sentence the Court imposes reminds him that
9 should he not use this opportunity to sort of
10 re-establish himself and get his life back on
11 track, the leniency that he can expect from the
12 criminal justice system will be quite limited.
13 Of course, in mitigation, we have the fact
14 that this is a guilty plea. It is a guilty plea
15 that's quite -- I would still submit, despite the
16 fact we're in this court, it is fairly early in
17 the process. A preliminary inquiry had been
18 scheduled in this matter; however, the defence
19 waived -- waived it on the -- on the days it was
20 to be held after the Crown had sought some
21 adjournments, and so the victim never had to
22 testify in this -- in this matter, and, of
23 course, that's of great significance as well to
24 his benefit.
25 When we talk about the pretrial custody in
26 this matter, as I -- as I mentioned, by the
27 Crown's reckoning, and I'm sure my friend will
1 correct me if I'm wrong, Mr. Smith has served a
2 total of 204 real days, and those were split.
3 Between October 11th and October 17th, he served
4 7 days. He was then released. He was arrested
5 again on one of the breaches I've addressed on
6 January 1st, and then he was released on
7 January 8th. So that gives him 8 additional
8 days. And then he's been in custody since
9 January 31st, which is a further 189 days to
10 today's date.
11 Now, from those 204 real days, as I've
12 mentioned, he has used 17 of them in respect of
13 the two breach offences to which he pled guilty
14 to earlier this year, and so by the Crown's
15 count, that leaves him with 187 real days that
16 are available to him for credit, and at the rate
17 of 1 and a half-to-1, which the Crown would
18 submit he -- he is entitled to, that gives him
19 280.5 days, which is a bit over 9 months. So
20 were the -- the Court to go along with the
21 Crown's recommendation on sentence, he would
22 have, by my reckoning, about 85 days left to
23 serve.
24 So apart -- those are, essentially, the
25 Crown's submissions in respect of this matter,
26 subject to any questions the Court might have.
27 THE COURT: Thank you.
1 Mr. Bran.
2 MR. BRAN: I'll -- I'll start off my
3 submissions with my ultimate request on sentence
4 is going to be that the time that has been served
5 should be deemed as time served. Mr. Smith
6 received a one-year period of custody. At
7 territorial time, he would be eligible for
8 release after two-thirds, and that's -- that's
9 more than -- or his -- his remand credit exceeds
10 that. So my -- my position is going to be that
11 his ultimate sentence today, the custodial
12 portion, be -- be deemed as being served.
13 My friend speaks of some of the -- the
14 mitigating factors and mentions briefly the
15 preliminary inquiry being waived. My friend says
16 that this allowed or it -- it saved the -- the
17 complainant from having to testify. I think
18 that's a little inaccurate. The complainant
19 never showed up for any of the prelims that were
20 scheduled. The Crown's adjournments were because
21 they didn't have a complainant.
22 When I eventually took over carriage of this
23 file in March, this matter, I believe, was now
24 set for the -- I believe it was, now, the third
25 date for prelim. Once again, the complainant
26 didn't show up. We were able to -- to get a very
27 brief adjournment from the beginning of that week
1 to the end of the week so that the Crown could
2 actually try to convince her, if they found her,
3 to come to Court. On Friday of that week, she
4 didn't show up, and the Crown wanted to proceed
5 by Section 540(7). Now, they were going to be
6 entitled to do that, but that left me with no
7 complainant to cross-examine. It was only at
8 that point did we waive the prelim, consent to
9 committal, and then address the two breaches.
10 So to stand before the Court and say that
11 waiving the prelim saved the complainant from
12 having to testify is not accurate. I'm going to
13 simply leave my comments at that. This
14 complainant never wanted to -- to show up. She
15 never wanted to testify. She had ample
16 opportunity to.
17 THE COURT: The way to frame that,
18 Mr. Bran, is that your client should get
19 significant credit for the guilty plea being --
20 given the difficulties that were facing the Crown
21 at trial?
22 MR. BRAN: Absolutely.
23 THE COURT: Thank you.
24 MR. BRAN: My client comes before the
25 Court with a lengthy record. It's a serious
26 record. There are some very serious convictions
27 on that record. But, in fairness, my friend does
1 point out these are very dated as well. From
2 2010 until 2018, there's only a couple of -- of
3 convictions, and those are -- are not convictions
4 of violence; those are not -- and there are large
5 gaps between those convictions. I would ask the
6 Court to look at that as more reflective of
7 Mr. Smith's involvement in the community and his
8 behaviour.
9 Certainly if we want to look back at his --
10 at his behaviour in that -- his involvement with
11 the criminal justice system 20 years ago, that,
12 in my respectful submission, is not, perhaps, the
13 most proper way to look at his record because his
14 record reflects somebody who apparently is
15 maturing, is now able to stay out of the criminal
16 justice system, and when he does get back
17 involved in the criminal justice system, they're
18 for much more minor matters in relation to what
19 he earlier was involved in.
20 THE COURT: How old is he now?
21 MR. BRAN: 46 years of age Mr. Smith
22 comes before the Court. His birthday is
23 June 26th, 1972. Mr. Smith was born in Inuvik,
24 but his family was from the McPherson area, and
25 that's the community that he grew up in; is of
26 Gwich'in heritage. His family consists now of
27 one sister who lives in the Yukon. He does -- he
1 did have two brothers, one younger, one older.
2 And when he grew up, he grew up with his mother
3 and father in the household.
4 He was in a relationship with the
5 complainant. The status of that relationship is
6 unknown because we're not sure what's going to
7 happen with that relationship. I think the hope
8 is that these two will reconcile and continue on
9 hopefully in a positive manner. It seems that
10 they did have a very strong relationship. And my
11 understanding is that, perhaps, more out of
12 concern and care for Mr. Smith, that is why the
13 RCMP were -- were involved.
14 Mr. Smith has a strong history of
15 employment. It's seasonal by nature. He, for
16 many years, has worked as a seasonal firefighter,
17 travelling throughout the Northwest Territories
18 and in other jurisdictions when needed. When
19 he's not working for forestry, he hunts and
20 traps. He has a trapline that extends from the
21 cabin that is part of these allegations. He's
22 also an artist and has done carving in the past.
23 He doesn't have a steady, regular source of
24 income, and he tells me that he likes to make his
25 money in an honest way. And I -- I'm slightly
26 familiar with the work associated with summer
27 firefighting, and I -- I can't think I can think
1 of a more honest way and a harder way to earn
2 a -- a living. It's incredibly difficult work,
3 and once a person becomes skilled in that area, I
4 think those are extremely valuable people to have
5 in a jurisdiction. And my understanding from
6 Mr. Smith and a few people that I've spoken to,
7 he's very good at what he does, and he's hopeful
8 that he may be able to catch onto the end of the
9 season once released this -- after these matters
10 are done.
11 In regard to his past, growing up, he tells
12 me that he was not only the witness to a lot of
13 violence in his home and in his community, but he
14 was also the victim of a lot of violence. He
15 tells me that his mother passed away when he was
16 9, and his father took a downward spiral at that
17 time, had a very difficult time adjusting to his
18 mother's passing, became a very heavy drinker,
19 and the household that he was growing up in
20 became sort of a party house.
21 Mr. Smith, at the time, had a younger
22 brother and, in attempts to try to protect that
23 environment from these parties, would try to
24 clear the house, and this would only result in
25 him and, at times -- I'm led to understand that
26 even his brother, at times, would then be beat
27 or -- or subject to violence for trying to kick
1 out older adults when they tried to -- to come
2 and party.
3 This went on for many years until his
4 brother was then able to move out of the house
5 and live with their older sister in a different
6 community. Mr. Smith, at that point, as I
7 understand it, no longer having to protect his
8 younger brother, decided to abandon even trying
9 to keep the house clear from these parties and
10 then took every opportunity he could to get out
11 to the family cabin, to get out with other elders
12 and -- and other groups that were spending time
13 on the land.
14 He tells me there were many times where he
15 would be out on the land, hunting, fishing, only
16 to return with that individual, that elder, or
17 that group, see another group just getting ready
18 to head out, and he would simply just jump into
19 their boat 'cause he didn't want to stay in the
20 community; he didn't want to go back to the
21 constant partying and drinking and violence in
22 the house.
23 He said he enjoyed these -- these trips and
24 spending time with elders, learning about his
25 culture, learning how to hunt and trap. He tells
26 me that his older brother, whose name is Bobby,
27 died when Mr. Smith was only 12 years of age. I
1 understand that this was a suicide. This left
2 Mr. Frankie Smith having a very difficult time
3 dealing with that as well as other matters that
4 he was also dealing with in his life.
5 His younger brother, Kevin, died when Kevin
6 was 19. Kevin was five years younger than
7 Mr. Smith. I understand that he died due to
8 complications after getting meningitis.
9 I asked Mr. Smith about his involvement
10 with alcohol, and he tells me that the first time
11 he recalls trying alcohol was when he was about
12 12 years of age. He said he and other friends
13 and relatives would take alcohol from, usually,
14 his father's house when there was a party. He
15 said there was so much booze there, nobody ever
16 seemed to -- to miss the bottle or the --
17 whatever it is that they were able to simply grab
18 and -- and leave with. He tells me that it
19 became a problem from -- right from the very
20 get-go, as far as he can recall. When we
21 reviewed his record, he says that his record is,
22 for the best of his recollection, almost all
23 alcohol-related.
24 As I mentioned, his mother passed away when
25 Mr. Smith was 9. His father passed away
26 approximately five years ago. And he says that
27 not only his father but the rest of the family
1 had a very difficult time when his mother passed
2 away.
3 He tells me that on this most recent period
4 of custody, he's been able to only attend one
5 program. There was a substance abuse program
6 that he was able to take. It -- it was three
7 sessions a week, and it lasted for four weeks.
8 It's not -- it's not something that -- that is
9 uncommon at all, hearing from remanded clients
10 that there's just simply a lack of programs. So
11 to -- to hear that he was able to secure a spot
12 in this program is -- was -- was good news to
13 hear.
14 We spoke about Mr. Smith's plans for the
15 future. He's -- he's very much looking forward
16 to getting back into the community. He -- he and
17 I talked a lot about his plans with the cabin
18 that you heard a little bit about. He's been
19 talking to or had talked to some people in the
20 community who are looking for space to hold
21 on-the-land programs and to -- to try to develop
22 new programs that are on the land. And he tells
23 me the location of his cabin -- kind of in the
24 middle of Inuvik, Tsiigehtchic, and Aklavik --
25 and -- readily accessible because it's very close
26 to the highway, a little bit further than my
27 friend suggests it is, but not much, perhaps
1 about 100 metres from the highway, so very easily
2 accessible, but once you're there, very isolated.
3 THE COURT: This brings up an issue,
4 Mr. Bran. I'll just address it while you're
5 speaking about it, because then I can ask
6 Mr. Potter what he thinks. I'm likely going to
7 go along with the request for the Section 110
8 order for a period of ten years.
9 Mr. Potter, do you have any objection to a
10 113 exemption providing that Mr. Smith is able to
11 satisfy the provisional firearms office?
12 MR. POTTER: No, I don't object.
13 THE COURT: Thank you. A cabin is a
14 dangerous place to be without a firearm out
15 there.
16 MR. BRAN: It -- it -- it is. And
17 Mr. Smith and -- and his -- his -- his partner
18 are also well aware of that; one of the reasons
19 why they have a firearm in close proximity to the
20 shells. They've also installed motion-detector
21 lights outside of the residence because they're
22 frequently visited by wildlife, whether that's
23 large game or whether it's wolves and foxes. So
24 they're well aware of the dangers.
25 THE COURT: I'm sure he is. I just didn't
26 want to put him in the position where he was out
27 there without any protection.
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MR. |
BRAN: And while we're on that topic, |
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I am making that request that there be a |
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Section 113 exemption. |
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So he's very much looking forward to getting |
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back to his cabin. He wants to and has plans to |
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build an extension so that it would be hopefully |
7 a bit more ideal to some of the people in the
8 communities looking for a space to hold programs.
9 He's also planning on extending his trapline to
10 be about 40 miles in length, as this is, again,
11 part of his -- his work or his employment as --
12 is trapping.
13 My -- my friend and I, I think, are on
14 the -- the same page as far as remand time. I
15 have the same calculations as my friend as far as
16 the remand time that is still available to
17 Mr. Smith. Given the -- the -- the circumstances
18 of the offence, given the -- the guilty plea and
19 Mr. Frankie Smith's more recent gaps in his
20 record, the fact that he is an Aboriginal
21 offender coming before the Court, I'm going to
22 ask the -- the Court to -- to consider the time
23 that he has remaining in his remand time deemed
24 as sufficient to deal with any custody that the
25 Court feels is necessary.
26 As far as a probation order to follow, the
27 one -- the one issue that -- that I do have is
1 the no-contact. Mr. Smith -- and I can't speak
2 for Ms. Greenland, but Mr. Smith is hopeful that
3 he does have the opportunity to --
4 THE COURT: Well, it says except with her
5 consent; so ...
6 MR. BRAN: Yes. If there is going to be
7 a no-contact, I would ask that the -- the
8 with-consent to be allowed.
9 THE COURT: I'm not going to have any
10 difficulty with that.
11 MR. BRAN: Thank you.
12 Pending any -- any questions that
13 Your Honour may have, those would be my
14 submissions. I've asked for the Section 113
15 exemption. I think Mr. Smith may wish also to
16 address the Court when that opportunity arises so
17 he may cover anything that I may have missed, but
18 those are my submissions in request on sentence.
19 THE COURT: Before I turn to Mr. Smith, is
20 there anything, Mr. Potter?
21 MR. POTTER: No.
22 THE COURT: Mr. Smith, anything you want
23 to say?
24 THE ACCUSED: Since I've been in custody, I
25 stay up late thinking everything about this
26 moment that -- all I have to say, and I practice,
27 and it never, ever comes out the way you think
1 it's going to come out.
2 My camp, my job, my Cheryl -- my job is
3 fighting fire. I should be in BC right now or in
4 Ontario. All of us firefighters, there's no two
5 ways; there's either you love it or you hate it.
6 It's just to say the kind of people we are. I'm
7 a good person.
8 These days, more and more -- you get youth
9 more and more interested in on-the-land, live --
10 making a living off the land and these kind of
11 things.
12 One thing I want to say is being
13 disrespectful to firearms is not who I'm about.
14 I'm very afraid I'm going to go back to jail --
15 you're going to put me back in jail. I just
16 found out the porcupine caribou herd is back in
17 our territory. It's a three-year migration
18 period, and they're -- they're back now. And
19 there's things -- you know, it's our caribou.
20 It's in our DNA.
21 You mention probation condition of maybe
22 programming. May of 2017, I was, on my own
23 initiative, dealing with my grief, my mother's
24 loss, my brother's loss, and we had -- I was on
25 the waiting list for a treatment program in BC.
26 I was only interested, and I -- I want to get
27 back on that track. I want to deal with my grief
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my -- so with the probation and treatment, |
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that |
-- that sounds good, if -- if they could |
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help |
me out. |
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I just want to go home and get back to my |
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life |
and ... |
6 THE COURT: Okay. Thank you.
7 I'm ordering a transcript of today's
8 proceedings. I will ask that the transcript
9 include the entire proceedings. I don't see any
10 reason to go back and read through the agreed
11 statement of facts again and simply cover all of
12 the territory that the two of you have covered so
13 completely here today. So the entire transcript
14 will be in the decision. I also don't see any
15 reason to keep Mr. Smith waiting while I craft
16 the decision.
17 This is a very serious incident. Mr. Smith
18 is fortunate that it didn't go further than it
19 did, and he's fortunate that the Crown attorney
20 has taken the position that they did in terms of
21 what they're willing to accept a plea to. I give
22 him full credit for his early guilty plea and for
23 his remorse. I give him credit to the plans that
24 he has to get back on with his life. I also give
25 him credit for, despite having a very difficult
26 beginning to his life, doing the best he could
27 over the last decade or so to stay out of
1 trouble, and I've noticed that.
2 Counsel are not very far apart in terms of
3 their recommendation to the Court. It's really a
4 question of how I am able to process the remand
5 time. I'm limited in that by the Criminal Code.
6 I don't think I'm quite at the point of
7 saying simply "time served". I think what
8 happens from today forward is more important than
9 the actual number that attaches to the charge
10 because we're talking about the difference
11 between nine months and twelve months. I think
12 it's important that Mr. Smith get back to his
13 life sooner rather than later and that he's able
14 to do so before winter comes. Again, we're
15 talking about fine-tuning this otherwise very
16 similar recommendation from counsel.
17 He's got the equivalent of 280 days already
18 in terms of his remand time. Crown is asking for
19 a total of 365 days which would leave him with
20 85 days remaining. It's difficult when we're
21 dealing with days as opposed to months. It
22 sounds awkward. For Corrections purposes, I
23 propose to make the sentence in days, not months.
24 My intention is to impose a sentence that is
25 somewhat less than 11 months, 325 days. That
26 leaves exactly 45 days remaining. I make a
27 recommendation he be considered for early
1 release.
2 In any event, you'll serve no more than
3 30 days. Statutory release is one month from
4 today.
5 I think it's important, Mr. Smith, given
6 your criminal history, given how badly things
7 have gone for you in the past, and given how
8 frightening this situation was, that you take a
9 bit of time. I think that if you truly intend
10 to, you can never be back here again. But I
11 think taking that four weeks to just take a deep
12 breath and think about your future is important,
13 more important than walking out of here today.
14 That will be followed by three years of
15 probation. You're to report within 72 hours of
16 your release and after that as directed. Take
17 whatever counselling or treatment is recommended
18 for you by your probation officer and complete
19 that treatment to their satisfaction.
20 Do you want to go away for in-house
21 treatment if they find it for you, like, say, a
22 30-day program or something like that with
23 respect to grief and loss?
24 THE ACCUSED: The -- that program I was on
25 the waiting list for is five weeks.
26 THE COURT: So if I make the
27 recommendation, it might help Probation Services
1 find it for you.
2 THE ACCUSED: Yeah. The Gwich'in tribal
3 council, they were going to fund me.
4 THE COURT: Okay. I'll make a
5 recommendation, then, with respect to the
6 counselling and treatment that that should
7 include in-house treatment, providing the --
8 providing that you, Mr. Smith, agree to it. It
9 could conflict with your working schedule, and I
10 don't want to bind you like that. I just want to
11 make it a possibility.
12 You are to have no direct or indirect
13 contact with Ms. Greenland unless she initiates
14 it. Otherwise, after she initiates it with her
15 consent, you're only to have contact with her
16 while you're sober. And if either she or the
17 RCMP asks you to stay away from her, you're to do
18 so and stay away from her for 24 hours. One day.
19 It's a cooling-off period.
20 There will be a victim of crime surcharge in
21 the amount of $200. I'll give you two years to
22 pay that.
23 Is there anything I've forgotten,
24 Mr. Potter?
25 MR. POTTER: Just the ancillary orders.
26 THE COURT: Thank you.
27 There will be a DNA order; a Section 110
1 firearms order for a period of ten years; there
2 will be a Section 113 exemption allowing you to
3 apply for a limited subsistence permit or for
4 employment purposes to the regional firearms
5 office; and, as well, there will be a
6 Section 491(2) order allowing for the return of
7 the firearm to its lawful owner, who is your
8 girlfriend, Ms. Greenland.
9 Anything else?
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MR. |
POTTER: Just to clarify, |
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that includes the ammunition as well? |
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THE |
COURT: Yes, ammunition as well. |
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MR. |
POTTER: Thank you. |
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THE |
COURT: Thank you. |
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Mr. Smith, as I said before, I really do |
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hope this is the last time we see you here. Good |
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luck. |
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Close court. |
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PROCEEDINGS ADJOURNED |
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1 CERTIFICATE OF TRANSCRIPT:
2
3
I, Angela
Porco, certify that the foregoing
4 pages are a complete and accurate transcript of
5 the proceedings, taken down by me in shorthand
6 and transcribed from my shorthand notes to the
7 best of my skill and ability.
8 Dated at the City of Calgary, Province of
9 Alberta, this 26th day of September 2018.
10
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12
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14 Certified Pursuant to Rule 723
15 of the Rules of Court
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19
20
Angela
Porco, CSR(A)
21 Court Reporter
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