Decision Content
R v Hache, 2019 NWTSC 33 S-1-CR-2018-000006
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
-v-
DANIEL HACHE
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Transcript of the Sentencing by the Honourable Chief Justice L. A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 30th day of July, 2019
________________________________________________________
APPEARANCES:
M. Fane: Counsel for the Crown
T. Boyd: Counsel for the Defence
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Charge(s) under s. 267(b) of the Criminal Code of Canada
I N D E X
PAGE
DECISION BY THE COURT 3
DECISION BY THE COURT:
THE COURT: It is often said that sentencing is one of the most difficult and daunting responsibilities of a judge. Deciding the punishment another person will receive is never easy. Imposing punishment is never pleasant.
But some cases are more difficult than others, and this case is one of those extremely difficult ones. Today, it is my responsibility to sentence Daniel Hache. In making my decision, I have to take into account what happened. I have to take into account the personal circumstance of Mr. Hache, and I have to apply the legal principles that govern sentencing.
At the outset, I want to thank counsel for their thorough submissions. They have said everything that could be said about all the things I need to consider and balance in making this decision.
I must sentence Mr. Hache on the basis of the facts as they were presented by the Crown and admitted by him at the sentencing hearing.
I mention this because in some of the victim impact statement materials filed, included at Exhibit S-3, there are comments that suggest that the victim of this offence, and some of his family members, may have a view or understanding of what happened that is different from the facts that are set out in the agreed statement of facts, and that they believe that the events may have unfolded differently than what the agreed facts say.
I, of course, have to make my decision based on the facts that were presented by the Crown, and admitted by Mr. Hache, and are outlined in the two agreed statement of facts that have been marked as exhibits. I will summarize those facts now.
On June 20th, 2017, Mr. Hache, Mr. Zemnicky, Mr. Zemnicky's partner Julia Carpenter, and their two children, were all on an island on Prelude Lake, outside of Yellowknife. They were there to build a cabin for Mr. Hache's father, and his father's partner, Mrs. Chenard. After a day's work at the site, the adults started consuming alcohol with dinner, and continued drinking throughout the evening.
Mr. Zemnicky went to sleep. Mr. Hache and Ms. Carpenter stayed up. Shortly after midnight, Ms. Chenard called Mr. Hache and asked him to come pick her up at the dock near the Prelude Lake campground. Mr. Hache agreed to do so, and left the island on the Sea-Doo. En route, the Sea-Doo partially sank. Mr. Hache held onto it and called out for Ms. Carpenter to come get him. It took her some time to do so, and during that time Mr. Hache was in the water, hanging on to the partially sunk See-Doo.
Once they were back on the island, Mr. Hache yelled at Ms. Carpenter about how long it had taken her to come get him. She yelled back at him. Mr. Zemnicky awoke to this. He physically confronted Ms. Carpenter about her yelling. Mr. Hache told him to stop. Mr. Hache saw him strike Ms. Carpenter multiple times, including once with his fist striking towards her mouth. Mr. Hache continued to yell at Mr. Zemnicky to leave Ms. Carpenter alone.
At the end of the confrontation with Ms. Carpenter, Mr. Zemnicky had her in what is described in the agreed facts as a "hugging-type" hold. He let her go, turned towards Mr. Hache and raised his arms. He approached Mr. Hache and attempted to place him in the same type of "hugging-type" hold. A brief physical confrontation then took place between Mr. Hache and Mr. Zemnicky. At this point, they were near the fire pit of the campsite.
Mr. Hache grabbed an object referred to in the agreed facts as a "cast iron pie iron." In other materials, this object is referred to as a "hobo pie stick." I understand it to be a cast iron object with a long handle used to cook over a campfire. Mr. Hache hit Mr. Zemnicky once on the left side of the head with this object. Mr. Zemnicky fell and hit his head either on the fireplace or on the campfire, or the rock next to it.
It is admitted that when he struck Mr. Zemnicky, Mr. Hache did so for the purpose of defending himself, but that what he did was not a reasonable and proportional response to what was happening. In other words, Mr. Hache acknowledges that he cannot, in law, benefit from the defence of self-defence.
If the defence applied, he would not be guilty of a crime. Because our law recognizes that it is permissible to use force to defend one's self. But the force used cannot be disproportionate. Here, Mr. Hache acknowledges the force he used was not proportionate.
Mr. Hache quickly realized that Mr. Zemnicky was hurt. He tried to assist him by bandaging his wound and trying to stop him from removing the bandage. He called the operational communications centre of the Yellowknife RCMP to ask for help.
There were several calls. I think it's fair to say that Mr. Hache sounds panicked and desperate in some of those calls, repeatedly asking the operator to send help. He also told the operator how Mr. Zemnicky got injured.
Police officers and paramedics arrived on the island at about 3:30 in the morning. Paramedics attended to Mr. Zemnicky and transported him back to Yellowknife so he could receive medical care. When the police officers arrived on the island, Mr. Hache told them what happened. He showed them where it happened near the fire pit, and the object he used. Mr. Hache was arrested and kept in custody. The next day, he gave a formal statement to police, in which he confirmed his admissions of the previous night.
Mr. Zemnicky suffered extremely serious injuries. Exhibit S-6 sets out the details of those injuries, and aspects of how his recovery has progressed. The injuries included a depressed skull fracture, an orbital fracture and a facial fracture. He suffered a serious brain injury. As a result of this brain injury Mr. Zemnicky has numbness to the right side of his body. He had to relearn how to speak, and the tone of his voice is altered. He has frequent headaches. He has ringing in his ears. He has had chronic seizures, some significant, including one that required him to be taken to emergency. The frequency and intensity of those seizures has diminished somewhat, but he still has them.
He has had a number of surgeries already, and is on a waiting list now to have another one, which will consist of having a titanium mesh implanted in the hole to his skull. There is a moderate chance of this reducing the frequency of his seizures. Mr. Zemnicky is a carpenter. He has been unable to work since these events. He cannot lift anything heavy, as this could trigger seizures. His prospects for being able to work in the future are uncertain.
Aside from the physical impact that this has had on Mr. Zemnicky, these events have had serious financial impact and immeasurable emotional impact on him and his family. These are described in the materials included in Exhibit S-3. The victim impact statements that he has prepared, as well as those prepared by his sister, his spouse and other family members, are heartbreaking. Trying to summarize or paraphrase these documents would not do them justice. But as I have already said, the consequences have been catastrophic, life-changing and permanent for this family.
These proceedings and the sentence I impose, no matter what it is, cannot repair the harm done. Nothing can repair this harm.
I turn now to the circumstances of Mr. Hache himself, which I must also take into account in making my decision. He was 21 years old at the time of these events and is now 23. He is of Metis descent. He has no criminal record. I have the benefit of the pre-sentence report to assist me in understanding Mr. Hache's background and family circumstances. I will not repeat here all the information that is in the report, but I have considered it all. It is a thorough report and it is very helpful.
Mr. Hache's father and mother separated when he was still a baby. He was raised by his father and paternal grandparents. When he was nine, his father began a relationship with a woman, and Mr. Hache lived with them. Mr. Hache says he was bullied emotionally and physically at school. He completed grade 11, but dropped out after that.
His plans are to go back and complete high school, and eventually go to college to work as a mechanic, or in the area of autobody repair. He says, though, that he needs to be financially stable before he goes back to school, to maximize his chances of success.
In the report, he described his childhood as both happy and hard. He says his stepmother was physically abusive to him when he was between 10 and 11, but he also has fond memories of going fishing with his father and uncles, and spending time with his grandfather, who he was very close to. He describes feeling extremely loved by his paternal grandparents. His grandfather passed away when he was eight, but he remained close to his grandmother. Their relationship has been strained since what happened in June 2017.
When he was 15 years old, Mr. Hache travelled to Alberta with his father, and met his biological mother and siblings. This was a significant event for him. At 17, he moved to Calgary to live with her. Things were not going well in high school in Yellowknife at that point, and he wanted a fresh start. A few years later, he moved back to Yellowknife though, because he missed his friends and family.
At the time the report was prepared, Mr. Hache lived with his grandmother. At the time of sentencing submissions, he was living with his stepsister, who he is close to. As I understood counsel's submissions, he was doing chores for her in exchange for staying there.
Mr. Hache's employment history is limited, although there is mention in the report that for the periods he did work, he was considered a good employee. He is unemployed at this time. His counsel said he had been looking for work, but without success.
The report says that Mr. Hache suffers from depression, anxiety and insomnia, as a result of the events that led to this charge. This may explain why he has had some difficulty finding work.
Although Mr. Hache was drinking on the night of these events, there is no suggestion that he was highly intoxicated, or that he has an alcohol problem. There is no indication that he is a violent person. The author of the report wrote that he presented as a shy, respectful and soft-spoken young man, and that he answered questions openly, honestly and without hesitation.
Mr. Hache was originally charged with aggravated assault. That is an indictable offence that is punishable by a maximum of 14 years' imprisonment. When he first appeared in court on this charge, he elected to have his trial proceed before a jury, and to have a preliminary hearing. The preliminary hearing proceeded. Mr. Zemnicky and Ms. Carpenter testified at that hearing. A date was eventually set for the jury trial.
A date was also set for a hearing into the admissibility of what Mr. Hache said to the telephone operator who took his calls that night, and of his admissions to police officers. I concluded that the things he said on those occasions were admissible and could be presented at his trial.
Sometime after I communicated that decision to the parties, but before the trial started, Mr. Hache with the consent of the Crown, entered a plea of not guilty to aggravated assault, but guilty to the lesser charge of assault causing bodily harm, proceeded summarily. The law requires the court to show deference to the manner in which the Crown exercises its discretion, when it consents to pleas to lesser charges. The reason for that deference is that the Crown knows its case, its strengths and its frailties, and is in the best position to assess what course of action is best in the public interest.
As a result, the charge Mr. Hache is to be sentenced on is assault causing bodily harm, proceeded summarily. That charge is punishable by a maximum of 18 months’ imprisonment, and there is no minimum punishment.
The Crown says that I should impose the maximum sentence, 18 months' imprisonment. The Crown acknowledges that there are mitigating factors and extenuating circumstances in this case, but argues that those are already accounted for in the Crown's acceptance of the plea to the lesser offence.
The Crown points out that absent the mitigating factors of this case, a person who causes this type of injury could expect to be sentenced on an aggravated assault charge to a jail term in the penitentiary range.
The Crown also seeks a restitution order in the amount of $7,884.79 pursuant to s. 739.1 of the Criminal Code. That provision allows the court to make such an order to compensate a victim of crime for financial losses that are the result of the offence, if those amounts are readily ascertainable.
Defence counsel acknowledges that a jail term must be imposed, but asks that it be imposed as a conditional sentence, meaning that Mr. Hache would be permitted to serve it in the community under strict conditions, including house arrest. Defence counsel emphasizes his youth, his lack of record, and the fact that although he admits he used excessive and disproportionate force, he was not the aggressor, and did what he did trying to defend himself.
As for the restitution order, the defence does not dispute that it is open to me to make such an order, and that the materials filed at the sentencing hearing make the amount sought readily ascertainable. But defence asks me to refrain from making such an order, given that Mr. Hache has no employment at this time, and does not have any means to make immediate restitution.
The main issue I have to decide today is whether a conditional sentence ought to be imposed. In law, a conditional sentence is available when three conditions are met. First, the sentence has to be less than two years. That condition is met here, because the maximum sentence I could impose is 18 months.
Second, I must be satisfied that allowing Mr. Hache to serve his sentence in the community would not endanger the safety of the public. In this case, on the evidence before me, that condition is met as well. The Crown is not suggesting that Mr. Hache presents a threat to the safety of the public.
The third condition is the critical one in this case. To impose a conditional sentence, I have to be satisfied that allowing Mr. Hache to serve his sentence in the community would be consistent with the fundamental principles and purposes of sentencing. To answer that question, those principles and purposes must be examined. They are set out in the Criminal Code. The objectives of sentencing are outlined in s. 718, and they are:
(a) To denounce unlawful conduct and the harm done to victims, or to the community that is caused by unlawful conduct.
(b) To deter the offender and other persons from committing offences.
(c) To separate offenders from society when necessary.
(d) To assist in rehabilitating offenders.
(e) To provide reparations for harm done to victims, or to the community, and;
(f) To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
The sentencing principles are also set out in the Criminal Code in several different sections. The fundamental principle is proportionality. A sentence should be proportionate to the seriousness of the offence, and to the degree of responsibility of the person who committed it.
The other sentencing principles are all aimed at helping the court balance the various factors, and arrive at a sentence that is proportionate. One of those principles is restraint. It means that a sentence should never be harsher than what is required to achieve the objectives of sentencing. It means incarceration should be the last resort, and it means that when incarceration is imposed, it should never be for longer than what is required to achieve the sentencing objectives.
Mr. Hache is of Metis descent, and because of this, the principles that govern the sentencing of indigenous offenders apply in this case. These principles, explained and articulated in the Supreme Court of Canada cases of R. v. Gladue and R. v. Ipeelee and others, apply in a large number of sentencing hearings in this jurisdiction, since a large part of our population is indigenous.
I am required to take judicial notice of background, and systemic factors that have had an impact on indigenous people in this country, and contributed to their overrepresentation in Canadian jails. And I have done so.
I am also required to take into account specific things from Mr. Hache's background, as an indigenous man, that have had an impact on him and have a bearing on his level of blameworthiness. The principles that govern the sentencing of indigenous offenders are rooted in the recognition of the disadvantages they have been subjected to historically, the consequences that this has had on people, and how it has resulted in indigenous people being overrepresented in Canadian jails. The underlying objectives of these principles is to address the issue of that overrepresentation.
The law is clear that these principles apply to all offences, even the most serious ones. Depending on the circumstances though, they may have less of an impact on sentencing for more serious offences, than they do on sentencing for less serious offences. It depends, and the analysis has to be done on a case-by-case basis. As I alluded to already, this ties back into the principle of proportionality, and more specifically the assessment of the offender's level of responsibility.
When assessing the degree of blameworthiness of an indigenous offender, courts must take into account that systemic and individual factors that I have talked about may have had an impact on their level of blameworthiness.
I have taken all of this into account in my deliberations. I recognize that Mr. Hache has faced some struggles in his upbringing. However, fortunately for him, he was not subject to the level of abuse and dysfunction that we often hear about at sentencing hearings. I do not find that in this case, his blameworthiness in the commission of this offence is significantly reduced by his circumstances, or by the systemic and background factors that I have taken judicial notice of.
That being said, Mr. Hache is a young man and a first offender. This makes rehabilitation an important sentencing objective.
The law is also clear, however, that the principles of deterrence and denunciation take on particular importance when dealing with crimes of violence. The court must ensure that its sentences underscore and demonstrate society's condemnation of violence.
There are mitigating factors to consider. Mr. Zemnicky's conduct during the events must be taken into account.
In assessing Mr. Hache's level of blameworthiness, I cannot overlook the fact that, even though he used disproportionate force, it is admitted that the force he used was with the intention of defending himself, and after having witnessed Ms. Carpenter being assaulted. The victim's role in the incident is a mitigating factor, as was noted in R. v. Whiteley 2017, ONCA 804 at Paragraph 15.
In addition, Mr. Hache has pleaded guilty. This plea was not entered at an early stage of these proceedings. The victim and his partner had to testify at the preliminary hearing into this matter. The voir dire into the admissibility of Mr. Hache's statement proceeded. But the timing of the plea has to be weighed against the fact that the Crown accepted the plea to a charge that carries significantly less jeopardy than the charge Mr. Hache was facing up until then.
As I already said, aggravated assault carries with it a maximum sentence of 14 years. It is not an offence for which a conditional sentence can be imposed. The charge he has pleaded guilty to carries a maximum sentence of 18 months in jail, and is one that leaves open the possibility of a conditional sentence. Given this change in jeopardy, and given the Crown's acknowledgement that there would have been triable issues had this matter gone to trial, I am satisfied that Mr. Hache is entitled to credit for his guilty plea, even though it was not entered at early stages in these proceedings.
A guilty plea avoids a trial. It also signals that an accused accepts responsibility for his actions. Often, it is considered a sign of remorse. Mr. Hache chose not to speak when he had an opportunity to do so, at the conclusion of sentencing submissions. And that was his right. As a result, the only information I have about his views about what happened is what is included in the pre-sentence report. The author of the pre-sentence report writes that Mr. Hache feels badly about what happened, but does not want to apologize, because he feels an apology would be insincere.
This suggests to me that at some level, Mr. Hache still feels a sense of justification in what he did, that he had no choice, even though through his plea he has accepted that in law, he did not have an actual self-defence defence to this charge. Evidently, Mr. Hache was honest with the author of the report, and that is to his credit. But I must say, I find his way of looking at things, even now, a bit troubling.
I accept he was trying to help someone else, and defend himself, but there is no way around the fact that the force he used was completely disproportionate. I hope that irrespective of the sentence I impose today, Mr. Hache will continue to reflect about what happened, and his responsibility in it. But that is not something that can be forced on him, he will have to come to this on his own.
I have talked about the mitigating factors. Those must be balanced against the seriousness of this offence. The devastating consequences that this assault had must not be allowed to completely overtake the analysis. That point was made in R. v. Blackrabbit, 2011 ABSC 211 where the court, citing an Alberta Court of Appeal case Mellstrom (1975) 22 CCC (2d) 472 said,
While the enormity of the tragic consequences of an offence is a factor to be taken into consideration, it must not be permitted unduly to distort the consideration of the court, as to the appropriate sentence for the offence committed.
The same point was also made by the Alberta Court of Appeal in R. v. Child’s 1991 ABCA 300.
Still, the consequences of the crime are relevant in assessing its seriousness.
There are situations where the same behaviour can bring very different consequences. For example, courts see countless cases that involve a single punch where the victim ends up with a bruise, a black eye or a small cut, or some other relatively minor injury. In another case, the same single punch might result in a broken nose or a broken jaw. And every once in a while, tragically, that single punch causes the victim to fall, hit his head and die. In these different situations, the punch is the same, but the consequences vary dramatically, and the sentences imposed in each of these scenarios, inevitably, would reflect that.
In my examples, the actual charge the person would face would probably be different. But I am just trying to illustrate that the same blameworthy act may bring about very different consequences, and that variation in consequence will inevitably have a bearing on the sentence imposed.
That is especially so when the blameworthy act itself is very serious. Beyond the consequences of the act, that is what is key, the nature of the act itself. There is a multitude of different ways an assault can be committed, some much more blameworthy than others. In my example of the single punch, I think it is fair to say the possibility that it might result in serious harm or death is quite remote. It is not a consequence that would normally be expected to flow from that act.
Here, Mr. Hache picked up a cast iron object and struck Mr. Zemnicky on the head with it. This is an extremely serious act, both from the point of view of the weapon used, and the part of the victim's body that was struck. The catastrophic consequences that followed were entirely foreseeable. An act like this will inevitably result in very serious injuries. It could have easily resulted in death.
This is a highly dangerous, highly blameworthy act. It was as predictable that serious harm would result as it would have been if Mr. Hache had picked up a knife or an axe, and struck Mr. Zemnicky with it. I am not overlooking that this happened in the context of an altercation initiated by Mr. Zemnicky, but the introduction of a weapon in a physical fight escalates things, and elevates the risk that serious injury will occur. This happened in this case, and is also illustrated in many of the cases filed by the Crown at the sentencing hearing.
The need to deter and denounce that type of conduct is extremely important. And while courts have recognized that a conditional sentence can have a deterrent and denunciatory impact, actual incarceration is what sends the most powerful denunciatory message that a court can send. As I said, the fundamental question in deciding whether a conditional sentence can be imposed is whether, in all the circumstances, allowing Mr. Hache to serve his sentence in the community would be consistent with the fundamental purpose and principles of sentencing.
I have given this issue anxious consideration over the past few weeks, and I have concluded that it would not adequately reflect the high level of blameworthiness and inherent dangerousness of what he did. This court has a duty to send a strong denunciatory message about behaviour that is dangerous, and that causes that level of harm. I am not satisfied that this message can be adequately conveyed through the imposition of a conditional sentence, even if it were to include house arrest and other conditions.
It would send the wrong message to others who might be tempted to introduce this kind of weapon in an altercation, and use it in this manner. It would not send the right message about the importance of not using disproportionate, potentially lethal force in this kind of situation.
This is not about revenge or retribution. It is about ensuring that the sentence adequately reflects the seriousness of what happened, and the harm done. It is about sending a clear message about the use of all forms of weapons that can cause this much damage.
I have not overlooked the mitigating factors, and the unusual circumstances of this case, including the situation Mr. Hache was in, his efforts to assist Mr. Zemnicky in getting help to the island after this happened, and his admissions about his involvement the night of these events.
I am also very mindful of the importance of restraint. This is Mr. Hache's first conviction. The fact of actual incarceration, in and of itself, will send a powerful message not just to him but to others.
To be very clear, an 18-month jail term could very well be imposed in this case, and an even longer sentence could have been imposed, had this proceeded as an aggravated assault charge. If Mr. Hache had been convicted of aggravated assault after trial, he easily could have been looking at a sentence of imprisonment of several years.
However, in trying to balance the need for a denunciatory sentence with restraint, as much as possible, I will impose a shorter sentence than what the Crown was seeking. The other reason I have decided to reduce the jail term imposed is that I have decided, having considered the principles set out in R. v. Castro, 2010 ONCA 718. to grant a restitution order in this case. I have so decided for the following reasons.
First, the amount sought is far less than the actual financial loss to Mr. Zemnicky. Second, one of the sentencing objectives is the reparation of harm done to victims. It is of course beyond this court's power to restore Mr. Zemnicky to the position he was in before this happened. But to the extent that a restitution order will facilitate in possibly recovering some of his losses, that is a form of partial reparation.
I have taken into account Mr. Hache's limited means at this time, as well as the fact that he will be incarcerated for a period of time. But I have taken into account as well that he is a young man. He is or should be able to obtain employment, and it is in his interest to do that when he is released, and move ahead with his life. It is not unrealistic to think that at some point in the future, he will be able to satisfy this restitution order.
Mr. Hache, can you stand please? Mr. Hache, having considered this matter very carefully, I have decided that for the charge of assault causing bodily harm, the sentence will be of one-year imprisonment. You can sit down.
I also make a restitution order pursuant to s. 739.1 of the Criminal Code in the amount of $7,884.79 for the benefit of Mr. Zemnicky. I trust that Crown counsel has explained to him the scope of such an order, and will ensure that he is informed of the steps you need to take to eventually enforce it.
I have every expectation that the sentence that I have imposed today will be viewed as overly harsh by some, and not harsh enough by others. But no matter how the people involved in these tragic events view the sentence imposed, it is my hope that the conclusion of these proceedings will mark one more step in the recovery and healing process, and assist with providing some closure to everyone who was involved and affected by these events. Is there anything I've overlooked, Mr. Fane?
M. FANE: Just with respect to, Your Honour, to the ancillary orders.
THE COURT: Remind me what they were. You were --
M. FANE: That DNA is primary --
THE COURT: Sorry?
M. FANE: It's -- it's a DNA primary designated offence.
THE COURT: All right.
M. FANE: And as well, Your Honour...
THE COURT: I don't recall you seeking a firearms prohibition.
M. FANE: I wanted to make sure that I haven't done so, and no, I did not.
THE COURT: It is not mandatory on a charge like this, and I would not impose one. Mr. Hache is still very young, and I really hope that this will close a chapter for you, Mr. Hache, and that you can move on with your other plans and have a productive life. Because there's no reason why you shouldn't be able to have one. Anything I've overlooked from defence's perspective?
T. BOYD: Not from defence, Your Honour.
THE COURT: Thank you. Close court.
THE CLERK: All rise. I declare the Supreme Court closed.
(PROCEEDINGS CONCLUDED)
Neesons, the undersigned, hereby certify that the foregoing pages are a complete and accurate transcript of the proceedings transcribed from the audio recording to the best of our skill and ability. Judicial amendments have been applied to this transcript.
Dated at the City of Toronto, in the Province of Ontario, this 4th day of September, 2019.
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Kim Neeson
Principal