Decision Content
R v King, 2018 NWTSC 44 S-1-CR-2016-000111
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
TRAVIS KING
_________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice K.M. Shaner, sitting in Yellowknife, in the Northwest Territories, on the 18th day of June, 2018.
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APPEARANCES:
Mr. B. Green and Ms. M. Chertkow:
Counsel for the Crown
Mr. P. Harte: Counsel for the Accused
(Charges under s.5(2) of the Controlled Drugs and Substances Act)
1 THE COURT: On May 27th, 2016, Travis King
2 was arrested for obstruction of justice. He was
3 taken to the Hay River detachment where he was
4 strip searched. The legality of that search was
5 challenged and determined through a voir dire to
6 be legal. The search revealed that Mr. King was
7 in possession of approximately 111 grams of
8 cocaine.
9 On May 10th, 2018, sometime following the
10 voir dire, Mr. King pled guilty to possession of
11 cocaine for the purpose of trafficking and a
12 conviction was entered.
13 I am going to start the substantive
14 discussion with Mr. King's circumstances.
15 Information about him and his background was
16 provided through a presentence report and also by
17 his counsel.
18 Mr. King comes to this Court from tragic and
19 difficult circumstances. This is something that
20 we hear frequently and frankly, it never gets any
21 easier to hear; it never gets any less
22 concerning; and it never gets any less
23 heartbreaking.
24 Mr. King is 21 years old. He is Indigenous
25 of Chipewyan ancestry. He is one of seven
26 children. His father and mother separated when
27 he was born, and Mr. King had no relationship
1 with his father. His mother was responsible for
2 raising him. According to Mr. King and based on
3 what he told the author of the presentence
4 report, his mother has struggled with alcohol
5 addiction for a very long time. His upbringing
6 was unstable and his home life with his mother
7 chaotic. He was apprehended by social services
8 numerous times starting at age 1.
9 At age 4 he was apprehended again and placed
10 in a group home for six months, something which
11 he says was an unpleasant experience. At age 5
12 he went to live with his grandmother and one of
13 his brothers. She died when he was 11. At that
14 time, Mr. King went to live with an uncle who he
15 says abused him emotionally. He went back to
16 live with his mother about nine months later and
17 while it is not clear exactly when, at some point
18 after he moved back in with her she lost her
19 housing because of alcohol use. So the family,
20 including Mr. King, became homeless.
21 For the next two years Mr. King survived by
22 sleeping on friends' couches, in stairwells and
23 outside. He relied on friends for food. He quit
24 school. He completed Grade 9 before leaving
25 school. When he was 16, Mr. King went to live
26 with an aunt in Lutselk'e. He then returned to
27 Yellowknife at 17 and moved in with a friend.
1 And at 18 he went to live with his cousin in
2 Saskatoon. He returned to Yellowknife again
3 briefly, and then he went back to Saskatoon and
4 that is where he started selling cocaine, when he
5 was 20 and living in Saskatoon. He made about
6 $600 a week doing this and he told the author of
7 the presentence report that he did this so that
8 he could make ends meet.
9 Mr. King has almost no legitimate work
10 experience. He worked briefly for a construction
11 company. He has no assets, and he has about
12 $7,000 in debt. He says he plans to use whatever
13 period of incarceration is imposed on him to
14 improve himself and among other things, he wants
15 to finish high school.
16 Turning to the relevant sentencing
17 objectives and principles, it is well-established
18 that the primary sentencing objectives for
19 trafficking in cocaine are deterrence and
20 denunciation. The deterrence is both specific
21 and general. That is, the sentence is to be
22 designed to deter the specific offender from
23 repeating the behaviour, and it must also deter
24 others who might be tempted to traffic in drugs.
25 My colleague Justice Charbonneau noted in R
26 v Mohammed, 2015 NWTJ 51 at paragraph 9 that the
27 starting point for sentencing in cocaine
1 trafficking cases in the Northwest Territories is
2 three years. She explained that this flows from
3 the Alberta Court of Appeal's decision in R v
4 Maskill, 1981 ABCA 50. In that case, the Court
5 set out a three-year starting point. She
6 indicated that there is no reason to treat the
7 Northwest Territories any differently than
8 Alberta. Justice Charbonneau then expressed the
9 rationale for applying the three-year starting
10 point here, and her remarks, which were recently
11 adopted by the Northwest Territories Court of
12 Appeal in the R v Joe 2018 NWTCA 1 at paragraph
13 21 bear repeating. She said:
14 The North is a very tempting market for drug traffickers, and judging by
15 the number of drug cases that have been heard by the Territorial Court
16 and this court over the last few decades, it is apparent that there
17 continues to be a need to impose sentences that denounce this conduct
18 and send a clear message that when people do get caught, they will face
19 stern sentences no matter how young they are or no matter how good their
20 background might otherwise be. Sadly, there are quite a few young
21 people in the Northwest Territories who have learned that lesson the hard
22 way.
23
24 The reason why courts have to be firm in their sentencing practices is very
25 simple and was referred to this morning. Cocaine causes ravages and
26 devastation in our communities. Yellowknife has seen its fair share
27 of the collateral damage that crack cocaine has caused. The people who
1 become addicted to this drug harm themselves of course. They sometimes
2 lose everything to it, their families, their work, and their
3 health, but they also often harm others. Houses get broken into,
4 people commit robberies, sometimes on the street in broad daylight or in
5 small convenience stores or gas stations to get money to buy more
6 drugs, or they break into homes and steal property. And they steal, in
7 addition to property, the occupants’ sense of safety in their own home,
8 sometimes for a very long time. Some addicts get to the point of being so
9 dysfunctional that they neglect their own children.
10
We do not just hear about cocaine in
11 the Criminal Code. We hear about cocaine in family court frequently,
12 and the Territorial Court hears about it in child welfare court frequently.
13
14 In this case, the Crown seeks a sentence of
15 the starting point which is three years
16 incarceration. Crown Counsel, Mr. Green, stated
17 in his submissions that in arriving at this
18 position. He took into account that there are no
19 aggravating factors. He accounted for the fact
20 that Mr. King is young and has strong prospects
21 for rehabilitation and that Mr. King entered a
22 guilty plea, which, although, not at the earliest
23 opportunity, nevertheless, avoided the necessity
24 of a very long and expensive trial.
25 Defence counsel argued that a sentence of
26 18 months followed by a period of probation is
27 what is appropriate. As part of his argument,
1 defence counsel submitted information from the
2 Canadian Institute for Health Information on
3 Alcohol Harm in Canada. He stated that alcohol
4 causes significant harm, possibly more than
5 cocaine and other drugs, and questioned why drug
6 offences should be treated so much more seriously
7 than alcohol offences.
8 Defence counsel also submitted an article
9 published by the Centre For Criminology and Socio
10 Legal Studies at the University of Toronto
11 entitled "Issues Related to Harsh Sentences and
12 Mandatory Minimum Sentences General Deterrence
13 and incapacitation." The premise of it is that
14 harsher sentences do not result in deterrence.
15 Respectfully, and without making any
16 judgment on the merits of these arguments in the
17 broader sense, they simply are not relevant in
18 this forum. This is a trial court and a
19 sentencing court. It cannot make or change
20 policies or legislation. It cannot solve social
21 problems, undo the past, or compensate for
22 inadequacies or failings of social policies and
23 infrastructure or for holes in the social safety
24 net. As a trial court judge, it is incumbent
25 upon me to determine the facts and apply the law
26 as it has been written by Parliament or
27 pronounced by the higher courts. And as a
1 sentencing judge, the tools I have to work with
2 are probation or prison or a combination of the
3 two.
4 Defence counsel also submitted statistics
5 regarding the over-representation of Indigenous
6 men in Canada's prisons as part of his argument
7 on how the systemic factors identified in Gladue
8 and more recently in Ipeelee must be considered
9 in determining a fit and proper sentence for
10 Mr. King. Those are highly relevant here. As
11 defence counsel quite properly pointed out, the
12 most important principle in sentencing is
13 proportionality. That is, that the punishment
14 must be proportional to the offender's degree of
15 moral culpability. Among the many things that
16 Ipeelee and Gladue tell us is that the systemic
17 adversity in an Indigenous offender's background
18 must be considered in determining the question of
19 how much that offender is to blame.
20 As noted at paragraph 73 in Ipeelee:
21 Canadian criminal law is based on the premise that criminal liability only
22 follows from voluntary conduct. Many Aboriginal offenders find themselves
23 in situations of social and economic deprivation with a lack of
24 opportunities and limited options for positive development. While this
25 rarely — if ever — attains a level where one could properly say that
26 their actions were not voluntary and therefore not deserving of criminal
27 sanction, the reality is that their constrained circumstances may
1 diminish their moral culpability.
2
3 It would not have taken a great leap in logic to
4 have predicted that Travis King would wind up in
5 the justice system for one reason or another.
6 Quite frankly, I am surprised that this is your
7 first stop, Mr. King.
8 Based on his background, it was just a
9 matter of time. This is not the case of a young
10 person just going off the rails. Mr. King has
11 had no parental support and little adult guidance
12 in his relatively short life. There was no one
13 to ensure that he got to school, ensure that he
14 was fed, or that he did his homework, and there
15 was no one there to show him how to apply for or
16 find a job and how to get up and go to work in
17 the morning.
18 He did not have a reliable and stable home.
19 He lived in chaos. He became a homeless
20 teenager. He could not get to school because he
21 was busy surviving. Theoretically, I suppose, he
22 could have reached out to social services or
23 another agency for help, but, realistically, that
24 is a lot to ask of a teenager.
25 While I do not think that Mr. King is
26 entirely blameless in this situation, I am
27 confident in saying that he is not before this
1 Court simply because he made bad and deliberate
2 choices. Realistically, he really did not have
3 many choices.
4 What, then, is an appropriate sentence? As
5 set out so well in my sister, Justice
6 Charbonneau's comments that I just noted, this is
7 a serious offence. Cocaine wreaks havoc in our
8 communities, and the Courts have to send a
9 message that those who sell it will face serious
10 penalties. The community must be confident that
11 the Court will do what it can to protect members
12 of the public from the impact of this highly
13 addictive substance by imposing serious penal
14 consequences.
15 Given the amount of cocaine involved and the
16 seriousness with which this Court treats cocaine
17 trafficking, it is my view that the 18 months of
18 custody and following probation would not send
19 the right message to either Mr. King nor to the
20 community. At the same time, sentencing is an
21 individualized process which must take into
22 account the circumstances of the offence and of
23 the offender. Deterrence and denunciation are
24 the primary sentencing objectives, but that does
25 not mean other objectives do not come into play.
26 In this case, Mr. King, an Indigenous offender,
27 comes to court with a background that is full of
1 adverse circumstances. These reduce his moral
2 blameworthiness and have to be taken into
3 account. He is also very young with no criminal
4 record, and the potential for rehabilitation must
5 be considered. The sentence imposed must reflect
6 this.
7 In my view, an appropriate sentence in this
8 case is one that combines a period of custody
9 longer than what is proposed by defence counsel
10 with a period of probation. The former takes
11 away Mr. King's freedoms, something which all
12 members of our society treasure and hold dear.
13 It sends a message of denunciation and serves as
14 a deterrent for Mr. King and others from selling
15 illegal drugs. The latter, the probation, serves
16 the objective of rehabilitation and what I view
17 as much-needed structure and guidance which
18 Mr. King has, to this point, lacked in his life.
19 I am hopeful that Probation Services will be able
20 to offer supports to Mr. King upon his release so
21 that he can reintegrate into society and become a
22 productive member of it.
23 Mr. King, please stand up. Travis King,
24 this Court sentences you to a period of 30 months
25 in prison, and this is going to be followed by
26 two months probation. You can sit down.
27 From your incarceration, there will be
1 deducted six and a half months which represents
2 the credit for presentence custody at the rate of
3 1.5 day for each day served. So you will serve
4 just under two years in prison.
5 The terms of your probation are going to be
6 these: That you will keep the peace and be of
7 good behaviour; that you will appear before this
8 Court as you are required to; you will report to
9 a probation officer within two working days of
10 your release and thereafter as your probation
11 officer directs; you will advise your probation
12 officer in advance of any change of name or
13 address or place of employment; and you will
14 remain within the jurisdiction of the Northwest
15 Territories unless you obtain prior written
16 permission from your probation officer or you are
17 required to leave for emergency medical purposes
18 in which case you will inform your probation
19 officer as soon as you can. And your probation
20 will last for two years as well.
21 The Crown has asked, as well, for ancillary
22 orders which I will rely on Mr. Harte to explain
23 to you, Mr. King, but those are, first, a s.109
24 firearms prohibition which I will grant, and I
25 will also grant the order requiring you to
26 provide a DNA sample.
27 Counsel, before I go on, is there anything
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else? |
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Mr. Green? |
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MR. |
GREEN: May I just have a moment to |
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confer with my friend, Your Honour? |
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THE |
COURT: Certainly. |
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MR. |
GREEN: Thank you for that indulgence, |
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Your Honour. Nothing further from the Crown. |
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THE |
COURT: All right. |
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Now, Mr. King, you have heard me talk about |
10 you today in the third person. That is something
11 that we do in court, more for the record, and by
12 talking about you in the third person, I do not
13 want you to get the impression that I was not
14 thinking about you personally when I was coming
15 to this decision.
16 So what I need you to do now is also listen
17 very carefully because I have something to say
18 directly to you. And that is that I hope that
19 the combination of jail and probation that I have
20 imposed on you today is going to serve not only
21 as a deterrent but as an opportunity for you to
22 rehabilitate yourself and to get assistance in
23 reintegrating and settling into mainstream
24 society.
25 Your life has been very difficult, and your
26 circumstances have, without doubt, played a large
27 part in you being in front of me today.
1 Neither of us can change the past, but you
2 can change the direction of your future. You are
3 very young, and you can choose a better path.
4 The choices that you make from this day forward
5 are going to determine if you succeed or fail.
6 So choose wisely. Upgrade your education, take
7 advantage of counselling opportunities and
8 programs, deal with your past, and take
9 responsibility for your life, connect with the
10 resources that are going to be available to you
11 in the correctional system, and get housing, get
12 training, get a job. Stay away from criminal
13 activity. And that may mean that you need to cut
14 ties with your associates from the past, because
15 if you get involved in criminal activity, it is
16 going to become a revolving door, and it is never
17 going to stop. So you need to change your
18 conduct, you need to change your path, and you
19 need to do that now while you still have time.
20 THE ACCUSED: Yes, Your Honour.
21 THE COURT: Thank you.
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1 CERTIFICATE OF TRANSCRIPT
2
3 I, the undersigned, hereby certify that the
4 foregoing pages are a complete and accurate
5 transcript of the proceedings taken down by me in
6 shorthand and transcribed from my shorthand notes
7 to the best of my skill and ability.
8 Dated at the City of Edmonton, Province of
9 Alberta, this 20th day of September, 2018.
10
11 Certified Pursuant to Rule 723
12 of the Rules of Court
13
14
15 __________________________
16 Karilee Mankow
17 Court Reporter
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