Decision Content
R v St. Croix, 2021 NWTSC 12 S-1-CR-2019-000111
AMENDED ORIGINAL
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
TARIQ ST CROIX
ORIGINAL amended as of March 26, 2021 to:
Cover page: Appearances: J. Halliburn Co-Counsel for the Crown
______________________________________________________
Transcript of the Reasons for Sentence of the Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 25th day of February, 2021.
________________________________________________________
APPEARANCES:
B. MacPherson: Counsel for the Crown
& J. Halliburn
K. Oja: Counsel for the Defence
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Charge under s. 348(1)(b) of the Criminal Code
REASONS FOR SENTENCE
THE COURT: Mr. St Croix's sentencing hearing proceeded a few weeks ago on February 11th, and on that date counsel presented me with a joint submission as to what the sentence should be. After much consideration, I have concluded that this is not a situation where I can in law decline to follow that joint submission, and accordingly, I will impose my sentence today in accordance with that joint submission.
But because this is a very serious matter, I do want to give as thorough reasons as I can for my decision. In doing that I am going to repeat some things that have been said in other cases, but I think those things perhaps need to be underscored again and again.
The events that led to this charge happened on December 31st, 2018. At the time, Mr. St Croix and Ms. St Croix were in an on-again off-again relationship. They had one child, who was 18 months old. She was pregnant with another child. She had two other children, K. and C., from a previous relationship. K. was 11 and C. was seven. They both lived with her.
Mr. St Croix was at the time on probation as a result of convictions entered in March 2018 for assault, uttering threats, and a breach of recognizance. Ms. St Croix was the victim in those offences too. He had received a jail term which was to be followed by a probation period, and that probation period included conditions restricting his ability to have contact with her.
It was not an outright no-contact order. Rather, it was a set of conditions that were designed to ensure that contact only took place if she permitted it and to enable her to withdraw that consent if she wanted to.
A few months after that sentencing hearing, Mr. St Croix entered into an undertaking to a justice of the peace in relation to other charges that are not before me today. That undertaking was entered on June 7th, 2018, and it included, among other conditions, a condition that he not attend the residence at 641 Williams Avenue, which is the residence where the assault I have to sentence him for today happened.
On December 31st, 2018, both of these orders were in force and he breached them both.
Shortly after 8:00 p.m. on that New Year's Eve night, Ms. St Croix and two of her children, L. and K., were at the residence on the second floor. They saw Mr. St Croix outside the residence. She opened the door to the balcony and told him to go away. He did not go away.
He ran up to the door of the residence, broke a window beside the door and went inside the house through that window. He armed himself with a steak knife. He went upstairs and he attacked her with the knife in the bedroom. He stabbed her several times in the face, shoulder, chest and stomach, telling her repeatedly "You don't love me." She was holding the 18-month-old child in her arms during this.
She handed the child to K. The child was crying and K. was screaming. At one point, the knife broke and the blade remained lodged in her stomach. She ran outside to the balcony, but he followed her and dragged her back inside. He kicked her in the head. He then finally stopped his attack and left the residence.
The police attended shortly thereafter and brought her to the hospital where her wounds were sutured. Mr. St Croix was located and arrested several hours later. He was taken into custody and has been in custody ever since.
The Crown has filed a book of photographs showing the broken window at the residence, an enormous amount of blood on the floor where the attack took place, and several photographs of Ms. St Croix's multiple stab wounds. They are very disturbing photographs to look at. Hearing in words or reading in words the description of what happened is awful enough, but looking at these photographs brings home the savageness and brutality of this attack.
Mr. St Croix was initially charged with attempted murder, break-and-enter and attempted murder, and two counts of breach of probation, as well as one count of breach of undertaking. He had a number of appearances in territorial court. He changed counsel several times, and his preliminary hearing was eventually scheduled to proceed in October 2019.
On the day it was scheduled to proceed it was waived and he was ordered to stand trial in this court. Mr. St Croix's choice of mode of trial had been judge and jury, but in February 2020 he gave notice that he wanted to have his trial before a judge sitting alone. That trial was scheduled to proceed in December 2020, with a hearing set in August 2020 to determine whether a videotaped statement that K. gave to the police could be used at trial pursuant to section 715.1 of the Criminal Code.
In November 2020, counsel advised the registry of the court that this matter would resolve without a trial. Mr. St Croix appeared before the court on November 16 and pleaded guilty to the lesser and included offence of a break-and-enter and commit aggravated assault.
In any sentencing, the circumstances of the person being sentenced must be taken into account. To assist me in this regard I have the benefit of the submissions of Mr. St Croix's counsel, but also a detailed pre-sentence report.
Mr. St Croix grew up in the Caribbean, in Saint Lucia. The pre-sentence report sets out the very difficult circumstances of that upbringing. He grew up in poverty and in an environment where violence was prevalent, both in his community and in his home. He was bullied outside the home and severely mistreated and neglected in the home.
More specifically, he was subjected to extreme violence and abuse by his mother. This went on for years. The report says that Mr. St Croix has been diagnosed with post-traumatic stress disorder arising from all of this. It is hardly surprising, considering the description of what happened to him when he was young.
It would not do justice to the pre-sentence report to try to summarize it here, but I have taken all of these circumstances into account in considering this matter. Mr. St Croix has now been able to re-establish a positive relationship with his mother, who lives in Ontario. One might say it is almost miraculous that this has happened, given the treatment she inflicted upon him as a child, but perhaps it is an indication that there is always hope in these matters.
Mr. St Croix has a criminal record and most of the convictions on it relate to the same victim. Chronologically, the related convictions are the following:
On the 17th of January, 2017, he was convicted for breaching an Emergency Protection Order. The offence dated back to September of the previous year and he received 15 days in jail and probation for that offence.
On January 27th, 2017, he was convicted of assault causing bodily harm on this victim and received a sentence of four months for that; breach of undertaking related to her, he received one day concurrent for that; an assault on her, for which he received one month consecutive; and he was also placed on probation for 18 months on all these charges.
Then came the convictions on March 1st, 2018. He was convicted of an assault again on the same person, received 90 days imprisonment for that. He was convicted of two counts of uttering threats to her, for which he received 30 days on one count and 150 days consecutive on the other; as well as a breach of recognizance related to her, for which he received 15 days consecutive.
He was again placed on probation. This was the order that was marked as an exhibit in these proceedings, which included the conditions restricting contact with the victim which I have already referred to.
The last page of the criminal record shows two more breaches. The Crown did not have information about them. I thought it was important for the record to be complete if possible, so I did ask the clerk to check the Territorial Court records.
It is not going to make any difference to this decision, but I can see from the Territorial Court records that with respect to the two breaches that appear on the record as convictions entered in March, the breach dated August 16th, 2017, appears to have been for a breach of a failure to report. The breach for August 15th appears to have been for a breach of a curfew.
I am not completely certain about this, but I think there may be a third one, which is a breach of a condition not to be at the residence on September 4th, 2017, which corresponds to count 15 of a 15-count Information in Territorial Court file 2017-002016. But I have asked the Clerk to make copies of all this and give it to counsel so that if there is something missing from the criminal record, steps can be taken to rectify that.
Mr. St Croix is not a Canadian citizen. Counsel have inquired about the consequences of his conviction on his status in Canada. Crown counsel has advised me that Mr. St Croix will likely be "gated" which means that when he is set to be released from the sentence I impose today, he will be taken into custody by immigration officials and deportation proceedings will be launched. In other words, he will remain under the state's control, it is expected, even after his sentence expires.
It is further expected he will be transported outside the territory and then the process will follow its course to determine whether he will be deported. Whether he will be detained during that time or what will be the outcome of all of these proceedings is not something that I know today.
The collateral consequences of a sentence may be taken into account as part of the personal circumstances of an offender. They are neither aggravating nor mitigating. They are just part of the overall circumstances, as explained by the Supreme Court of Canada in R. v. Pham, 2013 SCC 15, paragraphs 11 to 13.
The issues that will be addressed through this different process have nothing to do with this court and I cannot presume what the outcome of these proceedings will be. But I do have to take it into account, in part because it has an impact on how the conditions that are being proposed to be included in the probation order should be crafted.
The fundamental principle of sentencing is proportionality. A sentence must be proportionate to the seriousness of the offence and the degree of moral blameworthiness of the offender. This was an extremely serious offence, aggravated by many factors.
I acknowledge Mr. St Croix's very difficult background and the things that he suffered through from a young age. Courts recognize on sentencing that such backgrounds must be taken into account. They may serve in part to explain why a person turns to violence later in life, why they live a certain level of dysfunction, why they may lack some of the tools to function well in society, to cope with stress and to cope with loss.
The law also recognizes that difficult backgrounds can reduce a person's moral blameworthiness in the commission of offences, but only to a point, and I think and hope that Mr. St Croix understands that his difficult background is not an excuse for the type of behaviour that he is engaged in and he must be held accountable for his actions and the immense harm that he has caused.
Mr. St Croix's moral blameworthiness for this crime is very high, in my view. I have had occasion to say it in other cases; sadly, it is not rare for people who commit serious crimes of violence to themselves have been the victim of abuse as children and sometimes as adults. But it cannot excuse extreme violence and changes nothing to the concerns about the protection of the public that arise from such violence.
In this case, some of the aggravating factors include, first, the fact that this happened in the context of a domestic relationship, even though that relationship had become an on-and-off one by that point.
The second is that Mr. St Croix has several convictions for violence and other offences against the same victim.
Third, as I have already mentioned, he was under two separate court orders, which, combined, put strict parameters on any contact he could have with her and prohibited him from being at that house.
Fourth, he broke his way into the house, the place where she and her children should have felt and been the safest. That type of thing has a long-lasting impact on a person's ability to feel safe anywhere.
Fifth, this was not an incident that erupted as a result of a chance encounter. In contravention of the court orders, he chose to go to that house. There had to be some degree of planning involved.
Sixth, the victim was pregnant. Mr. St Croix's actions, which I note included stabbing her in the abdomen, put not only her life at risk, but also the life of her unborn child.
Seventh, this brutal attack took place in the presence of two children, one infant that was in the victim's arms when this started, and the other who was old enough to understand what was going on.
I watched K.'s videotaped statement in the context of the pre-trial motion. She was remarkably articulate and able to explain what happened. She saw it all. It is very hard to imagine what impact this might have on her over time, but there is no question it had to have been an extremely traumatic event for her, something that she will carry for the rest of her life. I can only hope that she will get the help that she will need to navigate her way to heal from that, if it is possible.
Another factor that I am required to consider is that the victim is an Indigenous woman. The Criminal Code has been amended relatively recently to add a section which I will read so that it is very clear what it says. Section 718.04.
When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances -- including because the person is Aboriginal and female -- the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
That adds one more reason, and there are already many reasons, why denunciation and deterrence have to be at the forefront of the decision that is made today on sentencing.
There are also mitigating factors, primarily the guilty plea. I need to talk a little bit about that. The guilty plea did not come at an early stage in these proceedings. The victim and her children had this hanging over their heads for almost two years. They were not required to testify at the preliminary hearing because it was waived, but a date had been set. And I do not know, but I presume that they may have thought for a time they would have to testify.
The same is true for trial. Subpoenas had been issued. That is apparent on the court tile, and a pre-trial motion did proceed in August.
Another factor that is sometimes taken into account in assessing the mitigating effect of a guilty plea is whether an accused was inescapably caught. Giving up one's right to trial is always giving up an important right, but it is often argued that giving it up when there are obvious problems with the Crown's case is deserving of more credit than when the Crown's case is very strong and a conviction appears almost inevitable.
On paper, this appears to have been a strong case. The matter was reported immediately. The police responded quickly. The assailant was well‑known to the victim and the witness, so this is not a case where identification would have been an issue. K. was an eyewitness, albeit a young witness, and I will say again that her video statement was clear, unequivocal and convincing.
There is, of course, always the possibility that witnesses might become uncooperative or unavailable. That is not unheard of, particularly in cases involving domestic violence, for a whole range of very complex reasons. I understood from the Crown's submissions that this concern played a part in the Crown's decision-making process in arriving at this joint submission.
In assessing the mitigating effect of the guilty plea, I must also take into account, in fairness to Mr. St Croix, that he pleaded guilty to an offence that was less serious than what he was facing trial for.
And finally, probably most importantly, the guilty plea did in the end avoid the need for anyone to testify.
Even with the ruling on the section 715.1 application, which was, in effect, unopposed by defence, that K.'s videotaped statement was admissible and could have been used during the trial, she would still have had to be called as a witness and she would have had to answer questions. Sparing anyone that, but especially sparing a child that, is sparing them a lot.
The guilty plea also avoided the need for Ms. St Croix herself to come to court and have to recount this horrific attack. She is obviously a very courageous person, but even for a courageous person that is not an easy experience to go through. That is why a guilty plea, even one that comes two years into the process, is mitigating.
The impact that this crime had cannot be more eloquently described than how it was described by Ms. St Croix herself in the victim impact statements that she provided and read to the court, both on February 11th and today. They have been marked as exhibits. They are part of the record of these proceedings. The impact of these events on her and her children was profound and probably beyond what any of my words today could describe.
The prevalence of domestic violence in our society and our communities is a terrible tragedy. Many suffer, and many suffer in silence. Those who try to break the cycle often risk their lives in doing so, and some actually lose their lives in doing so.
The cases that were filed at the sentencing hearing represent a small sample of the matters that find their way before the courts, and we know that for every matter that finds its way before the court, many more do not for all sorts of complicated reasons. This Court has made that point in many cases, including some of the ones that counsel filed.
This Court talked about it at length in R. v. Inuktalik, 2014 NWTSC, at pages 14 to 20. I am not going to read these comments here, but I completely agree with them. They talk about the devastating effects of domestic violence.
It bears repeating, family violence is not a private matter. It is not a private problem. It is a societal problem and it should be a concern for every one of us in the community, not just the victims and victim support groups, not just for those who work in the justice system. It should be a concern to all.
The information that is set out in the publication of the Research and Statistics Division of the Department of Justice, which was marked as Exhibit 6 in these proceedings, paints an extremely bleak picture, one that should be a serious concern to politicians, citizens, courts, basically everyone.
Family violence occurs in all sorts of different ways, and as with all things, we see a range of degrees of violence. Mr. St Croix's conduct falls at the very high end of the spectrum of seriousness. Looking at what he did, repeatedly stabbing his victim, looking at her injuries, I think it is a matter of pure luck that Mr. St Croix is not facing sentencing for a homicide today. Again, as I have unfortunately have had occasion to say many times before, I have dealt with a number of homicide cases where a single stab was all that it took for someone to be killed. Often it is a matter of centimetres.
The joint submission I am presented with is for a sentence of five years. Because of the remand time, that is, the time that Mr. St Croix has already spent in custody, this would result in the imposition of a jail term under two years, which opens the door to probation.
Counsel are jointly suggesting that the jail term be followed by probation for three years, which they say should include a condition that is geared towards rehabilitation, that is, that Mr. St Croix take counselling as directed. But mostly, they agree that it should include conditions designed to protect Ms. St Croix. I can certainly understand that from her perspective, the idea that a court order can protect her must ring extremely hollow, given that two different court orders were in force when this crime happened.
Counsel acknowledged that a five-year jail term for this offence is a lenient position. Crown counsel went as far as to say, with his usual candour, that the Crown has arrived at this position with some hesitation. Defence counsel also recognized that the position is lenient, at the low end of the range, but she has also argued that it is a fit sentence and is within the range.
A few words about ranges. In R. v. Morgan, 2008 NWTCA 12, this Court determined that the range of sentence for the offence of aggravated assault when someone introduces a knife in what is otherwise a consensual fight is between 30 months and five years. The Court of Appeal upheld that decision, albeit without specific comment about the range itself. But that same range was applied in subsequent decisions of this Court, including R. v. Hodges, 2015 NWTSC 59.
If that is the correct range for an aggravated assault involving a stabbing that occurs in the context of the escalation of what is otherwise a consent fight and outside the context of a spousal situation, necessarily the range for an aggravated assault that occurs in the context of a spousal relationship and not in the context of a consent fight should be significantly higher.
I was referred to other decisions and I have reviewed them carefully. Comparing individual cases, as counsel recognized, is always a difficult exercise because no two cases are ever alike. I am not going to refer to all of the cases, but I will say that one of the things that they do is provide a window into a very sad reality. As I said, they offer a very small sample of the terrible cases of domestic violence that come before the courts.
R. v. Football, 2006 NWTSC 69, was about a two-day-long beating. R. v. Kuniluisie, 1998 Carswell NWT 129, was about an offender pouring camping fuel on the victim and lighting her on fire. R. v. Inuktalik, 2014 NWTSC 75, was about a violent beating that the court characterized as vicious and horrific and included biting the victim's face to the point that she was left disfigured and required multiple surgeries.
These things are not happening in some far-away place. They are happening in our communities. The prevalence of the problem is clear enough, but using these cases to identify a range for these serious crimes is difficult, because how does one compare horrors? How does a two-day beating compare with lighting someone on fire or with stabbing multiple times a pregnant woman in her own home while she is holding an infant?
One decision I do want to talk about a little bit is my recent decision in R. v. Goulet, 2020 NWTSC 47, where I imposed a sentence of three years in a case that involved a serious stabbing in the spousal context.
There are some similarities between that case and this one. It was a case of multiple stabbings. It occurred in a spousal situation. The victim was an Indigenous woman. The attack resulted in serious injuries. It was another example, and I said it in that decision, of it being basically a miracle that the victim was not actually killed.
But there are also some differences. The accused was quite young, 24 years old, and had virtually no criminal record. She was Indigenous, which engaged the special principles that govern sentencing of Indigenous offenders. There were no children present. There was no element of home invasion. And there had been a physical altercation before the accused armed herself with a knife and stabbed her partner. Mind you, this was an argument that she had initiated. The victim had pushed her back. So there was a fight, not one as escalated as in Morgan or Hodges, but that is a very, very different situation from what happened in the case before me today.
The other important thing about Goulet is that the sentence imposed must be examined in the broader context of the sentencing hearing. The accused in Goulet was being sentenced for the aggravated assault and also for an attempt to obstruct justice and assault of a peace officer. For all of those offences, the Crown sought a global sentence of two‑and-a-half to three years through a combination of consecutive sentences. Defence sought a global sentence that amounted to time served, which would have been the equivalent of roughly two years and two months.
I imposed a global sentence of three years, but I made each sentence concurrent because I was concerned that reducing each of them to take totality into account would result in each sentence not reflecting the seriousness of the offences. I imposed a sentence of three years on the aggravated assault.
The sentence I imposed in Goulet was at the very top end of the range sought by the Crown. Even in the absence of a joint submission, the top end of the range sought by the Crown has to be taken into account by the court in imposing sentence. Appellate courts tell lower courts, such as this court, that they should not “jump” a Crown position, even absent a joint submission, unless there is a very good reason to do that. It is not something that should be done lightly.
I talked about an aspect of this in the Goulet decision and I want to refer to what I said. It was at paragraph 60. After talking about the issue of whether the sentences should be consecutive or concurrent, I said:
If I impose the sentences that I think are called for here and make them consecutive, and even if I adjusted them to reflect totality, I would exceed the range proposed by the Crown. I believe that should be avoided unless the position advanced is not reasonable and I cannot say the position advanced by the Crown is unreasonable. It reflects remarkable restraint and perhaps that is the wise thing to do, dealing with a young Indigenous offender with a minimal record. But I think it will be clear from everything that I said that the facts that I heard about at the sentencing hearing raise serious concerns from a public protection point of view.
So in considering Goulet, there are important nuances to keep in mind in deciding how much weight or precedential value it has.
Now, having said all of that and to put it bluntly, the question that I have to answer today is not whether a five-year sentence is in the range or even whether it is a fit sentence.
Normally at a sentencing hearing my role would be just that. To determine, if possible, whether a general range emerges from the case law and decide within that range what sentence would be a fit one in the specific circumstances of this case. That is a highly individualized exercise and one where the sentencing court's discretion, if no errors are made, is given considerable deference on appeal.
But a joint submission removes most of the discretion that a judge normally has on sentencing. The Supreme Court of Canada, which is the top court in the country and which decisions bind me, has so decided.
In R v Anthony Cook, 2016 SCC 43, the Supreme Court talked about the importance of plea negotiations and resolution of cases without trial. It concluded that they are a crucial element in the functioning of the justice system because if every case went to trial, the system could not cope. That is something that had been recognized for some time by the courts, but was clearly reaffirmed in that case.
The Supreme Court also recognized that when counsel who are familiar with all the details of a case, many of which the judge does not know, come to an agreement about what the sentence should be, that position needs to be very carefully considered by the sentencing judge. Counsel know the case inside out, they know the frailties of the case and all its nuances. And if accused cannot have some confidence that courts will pay close attention to those negotiated settlement of cases, more will choose to take their chances and have a trial.
Those things were recognized well before R. v. Anthony‑Cook was decided. The very specific question that the Court had to decide in that case was just how much deference sentencing judges had to extend to a joint submission. The answer to that question had received different answers in different courts of appeal in the country.
The Supreme Court reviewed the various tests that had been adopted at the appellate level across the country and decided which one should apply. And the one that they decided should apply, and that I must apply today, is known as the public interest test.
The Supreme Court explained what this threshold means. I will quote directly from the decision on this point because I am aware of recent cases where it has been suggested that this test is not being applied properly by appellate courts. For my part, I think this test is well understood by appellate courts and is clear. Rather than paraphrase it, and so everyone is clear on the law that binds me today, I am going to read the three paragraphs of the decision where the Court explains what the public interest test means. This is towards the end of the decision, paragraphs 32 to 34.
Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. But, what does this threshold mean? Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard.
In Druken, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so "markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system". And, as stated by the same court in R. v. B.O.2, 2010 NLCA 19, when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts".
In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold -- and for good reason.
That is the test I have to apply.
Can I say that the sentence proposed here would bring the administration of justice into disrepute? That it would be contrary to the public interest? That it is so markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the justice system? No, I cannot say that, and that ends the matter. I must impose the sentence that counsel have jointly proposed.
As I said during the sentencing hearing, this law means that when counsel engage in plea negotiations with a view of arriving at a joint submission, in effect, the task of deciding what a fit sentence is is transferred from the court to counsel. One of the consequences of this is to place a great weight of responsibility on counsel, one that would otherwise rest with the judge.
I say it puts a great responsibility on counsel because it means that in a way they do get the last word, unless, of course, they come to an agreement which, for whatever reason, is completely unreasonable. I have to say I sincerely hope I will never be faced with that situation because I believe that counsel approach these matters with caution. And rightfully do.
The public needs to be able to trust that the positions taken are carefully weighed and considered in all cases, but especially in a very serious case like this one. And just so that it is crystal clear, I will add that in this case I have absolutely no doubt that counsel have done just that, based on the thorough submissions I heard from them. I am certain that they have given this matter the careful consideration that they are expected to and required to in the discharge of their duties.
It will be clear from what I have said, I hope, that the focus of my analysis on this case had to be whether the joint submission should be accepted in light of the law that I have been talking about. That is all that this decision should be interpreted as meaning.
It should be given no precedential value as to my views or the view of this court about the range for such an offence or how that range compares to the range that was articulated in R. v. Morgan, for example. The sentence I am imposing today is a recognition of the law and of the fact that this joint submission does not meet the threshold that would give me the power to depart from it.
Mr. St Croix has been in custody since his arrest on the night of these events. By my calculation, this adds up as of today to a total of two years and 56 days. He is entitled to credit for this time to a maximum ratio of one-and-a-half days' credit for each day of remand. Both counsel take the position that he should be given that maximum credit.
Again, the Supreme Court of Canada has given direction to trial judges about how to credit people for the time they spent on remand. I have re-read R. v. Summers, 2014 SCC 26. The court said in that case that generally the loss of remission is a justification to give the maximum credit. I do not think it is an automatic thing, but it certainly is what the Supreme Court has directed in general should be the case.
And because both counsel here say that that is what I should do and I have heard nothing to suggest otherwise, I will calculate the credit at that ratio. And again, by my calculation, that represents credit for three years, two months, and three weeks.
Can you stand up, please, Mr. St Croix? For this offence, Mr. St Croix, I sentence you in accordance to the joint submission that was presented to me by the Crown and your counsel to a term of imprisonment of five years.
For the two years and 56 days you have already spent in custody I give you credit, as I have just said, for three years, two months and three weeks, which means the remaining jail term will be one year, nine months and one week. You may sit down.
This will be followed by a probation for three years. Although the sentence is five years, the jurisprudence is clear that if remand time is taken into account and brings down the sentence to one where probation is available, that is an option the court has, and it is absolutely, in my view, appropriate to do so, and it is also part of the joint submission.
Although it may be that Mr. St Croix will be taken into custody by immigration officials before he is actually free, I think it is important that my sentence standing alone be functional and not depend on outside events. That is what I have tried to do in crafting the conditions.
As we have heard, the main objective of the probation order, as I understood the submissions, is to prevent him from being in the NWT. This is how I have chosen to address it. I will hear from counsel if you see anything obviously wrong or unmanageable with the wording I have chosen.
Now, listen carefully, sir. You will get this in writing. You will get a copy of the order. You can make notes if you want, but you will have a record of this. The first condition will be that upon being released from custody you will leave the Northwest Territories. To this end, this is my direction:
a) No later than one month before your release date you will provide Probation Services in Yellowknife and the Yellowknife RCMP detachment proof of purchase of a one-way airplane ticket out of the city of Yellowknife to a destination outside the territory;
b) If that flight is not on the same day as the day of your release, you are to report to Probation Service in person the day you are released and report daily until your flight leaves;
c) You will report by telephone to Probation Services in Yellowknife that you have arrived at your destination and are out of the territory; and
d) You will thereafter report to Probation Services in Yellowknife as directed.
Second condition is you are prohibited from returning to the Northwest Territories for the duration of your probation order.
The next condition is you have no contact directly or indirectly with Ms. St Croix or any of her children.
Next, if you are taken into custody by immigration officials upon your release from custody on this sentence, you are to report by telephone to Probation Services in Yellowknife at the earliest opportunity and advise them of the situation. In that event, the reporting conditions set out in condition 1 will be suspended because it will be unnecessary.
Next, if having been taken into custody by immigration officials you are subsequently released from their custody, you are to report this immediately by telephone to Yellowknife Probation Services and report to them thereafter by telephone as required unless you are advised that your probation has been transferred to another jurisdiction -- that sometimes happens -- in which case your reporting would be to the Ontario Probation Services or wherever you might be.
The last condition will be that you shall take counselling as recommended by your probation officer.
I will also issue the ancillary orders that were sought. They are mandatory and I heard no submissions suggesting they should not be made. A DNA order will issue and a firearms prohibition order will issue pursuant to section 109 commencing today and expiring ten days after release.
I will make an order that exhibits that were seized during this investigation are to be returned to their rightful owner if that is appropriate. Otherwise, they are to be destroyed at the expiration of the appeal period.
Have I missed anything from the Crown's perspective, Mr. MacPherson?
B. MACPHERSON: No, thank you.
THE COURT: Anything from the defence's perspective?
K. OJA: No, Your Honour, but could I just ask you to repeat the remaining quantum of sentence?
THE COURT: Yes. And I think your client is trying to get your attention.
K. OJA: Mr. St Croix is just advising me that the jail has offered to take him to the airport if he is in a situation where he is not remaining in custody after his warrant expiry date, so just to give the Court some --
THE COURT: Okay.
K. OJA: -- confidence.
THE COURT: It does not require any changes?
K. OJA: No.
THE COURT: Okay. So you asked me to repeat my calculations. So five years. Credit for three years, two months and three weeks. And by my calculation that would leave one year, nine months, one week, because that is three plus one and then one. Am I off? Do you want me to try to break it down, Ms. Oja? Tell me if you think I am wrong.
K. OJA: No, you're correct. Thank you. Sorry.
THE COURT: All right. Should we stand down briefly and then address the publication ban/sealing issue?
B. MACPHERSON: Yes, please.
(PROCEEDINGS CONTINUED)
CERTIFICATE OF TRANSCRIPT
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 16th day of March, 2021.
____________________________________
Kim Neeson
Principal