o ' ' ' '• • - & It IiN TH2 TERRITORIAL COURT OF THa NORTHWEST TERRITORIES
3 4 IN THE MATTER BST-,'/EEN 5 6 HER FAJESTY THE QUEEN, upon the inform.ation of R.L. Julyan, Peace Officer, sworn the 1st day 7 of September, 1970, the Informant, 8 Respondent 9 10 - and -11 12 RONNIE WAYNE KISSER, Defendant, 13 Appellant 14 15 16 17 18 A transcript of.the Reasons for Judgmient of His Lordship The Ill ' 19 Honourable Mr. Justice W.G. Morrow given at Yellowknife, N.W.T*. on 20 the 18th day of January A.D. 1971. 21 ZZ 23 Appearancest 24 Orval J.T. Troy, Esq., Q.C., appeared on behalf of the Respondent. 25 David H. Searle, Esq., appeared on behalf of the 26 Appellant. 27 •:/s:.
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i 1 The Court J I want to first thank both Counsel and the Probation 2 DGpartment for their asaiDtanco in thio case. Thic iu a 3 most unusual case in that it is an appeal from His Worship 4 Chief r.'.agistrate Peter B. Parker against a sentence imposed 5 by him for a second offence under the Narcotics Act, for 6 the possession of marihuana. In a very carefully v/orded oral judgement the learned Chief Magistrate reviews the facts and the principles to be followed in sentencing, and 9 concluded by sentencing the Appellant accused to tv;o 10 months jail and a tv/o hundred dollar fine or a further 11 month, and probation for one year. I want to say at once 12 that I am in complete agreement with the learned f.'agistrate i 13 in his remarks and observations, and I particularly endorse 14 his statem^ents with respect to indigenous people who are 15 projected into our way of life, som.etimes called our culture, 16 although I have some doubt as to the use of the word, and 17 also to his rem.arks relating to school children. 13 If I was sitting as a member of the Court of .Appeal 19 I would feel obligated to say I can see no reason for 20 upsetting the learned Chief Magistrate, as he has not 21 followed any im.proper principle of law, even though ZZ personally I might think a lesser penalty more appropriate. 23 However, in this case I am sitting in appeal as a de novo 24 matter which as I understand it means I go on what is 25 before me, and sentence as if the accused has coma.bofore 26 me in an original sentencing. In other words, what I xhink » 27 should be done, on my application of tho v/ell-knov;r. principles' •-§̂ :̂ ^^
i 1 to sentencing to the present facts is what I must do. 2 On August the 13th 1970 in the unreported decision 5 of the Queen vs. Rosenblatt et al. I quote from, the 4 Crown attorney of British Columbia when he was addressing 5 the Court of Appeal of British Columbia on a narcotics 6 appeal, and I am going to read his statement. 7 "My Lord, there has been quite a tendency in the trial courts to treat possession 8 of marijuana som.ewhat less seriouoly than it was treated perhaps a year or so ago 9 because of the recent amendments to the Narcotic Control Act, i.n v/hich Parliament 10 saw fit' to make possession of marijuana by first offence punishable on summ.ary 11 conviction. For that reason it may v/ell be the'trial courts have considered the 12 punishment for possession of marijuana, and in fact heroin, less seriously than 13 they have been heretofor, presum.ably in keeping with the decision of the House 14 of Commons to treat it in that regard." 15 Then he goes on to say: 16 "There has not however been any easing with respect to trafficking." 17
18 I have also drav/n to the attention of Counsel the 19 recent decision of the Alberta Court of Appeal in 20 Regina v. Doyle et al (1971) 1 W.W.R. page 71, that 21 is a report that has just come out last week, which 22 court in its role as the Appeal Court of the Northwest 23 Territories, must of course, be considered carefully 24 by me. I want to quote a few portions of their 25 judgment, which includes quotations from other courts. 26 I am quoting from Chief Justice Smith, v;ho is the Chief 27 Justice of tho Northwest Territories. •™-'»**N '^&^
i.nmnwiraiMTinnTiB 11:' i 1 "In some of the cases now before us it was urged that changes in legislation 2 might oocur in the future, and that "these possible changes should be taken 3 into account in fixing sentences in order to ameliorate the position of defendants. 4 We do not accede to this argument. The law applicable is not "moulded by the
5 judges". . 6 Then in quoting from Chief Justice Gale, in an 7 Ontario case, the court says: 8 "It was argued, too, that the lav; v;ith respect to marijuana r.ay soon be modified. 9 However, we do not know that and cannot give effect to such a suggestion. We 10 have a duty to administer the law as it exists today and to properly punish those
11 who violate it." 12 Then in quoting from another case on page ?2 13 of the report the Chief Justice quotes the following 14 and these by the v/ay, are from a previous Alberta case 15 " 'The governing principle of deterrence is, within reason and common sense, that 16 "the emotion of fear should be brought into play so that the offender may be m.ade 17 afraid to offend again and also so that others who m.ay have contem,plated offending 18 will be restrained by the same controlling emotion. Society must be reasonably 19 assured that the punishment meted out to one will not encourage others, and v/hen 20 some form of crim.e has becom.e widespread the element of deterrence must look more 21 to the restraining of others than to the actual offender before the Court.'" 22 23 And further on he is quoting from Mr. Justice Allen 24 who says: 25 "Where the offence involves trafficking in or distribution of narcotics, enabling 26 or encouraging people to become addicts of a narcotic drug*at personal profit to fi7 the accused, most severe sentences are -"• ^ i i ^ - '
•f^ji^il ir i 1 justified. While the gravity of the offence is reduced v/hen the charge is 2 of possession or use by the accused for his own purposes only, it is 3 nevertheless a serious offence and should be dealt with accordingly." 4 5 In the present case I would have considered that a 6 jail term of some two months to four months to be about 7 right on the facts before me. In this I think I 8 would be coming within the guidelines of the Court of 9 Appeal in the Doyle case. 10 However,' the present case is unique almost in 11 that even the Crown is saying it would not be adverse to 12 a fine instead of imprisonment. To imprison a man in 13 view of this situation and this attitude on behalf of I 14 a prosecuting attorney, and where apparently it would 15 put a man out of work and would be contrary to all the 16 recommendations which are expressed, including the 17 probation report, v/ould in my opinion be too severe. 18 While I think perhaps, on an ordinary case involving 19 possession and v/here it was a second occasion, I v/ould 20 be inclined to im.pose a shorter term, in the present 21 case I should resort to a fine. 22 Vill you stand up Mr. Kisser. The appeal is 23 allowed accordingly. You are sentenced to a seven 24 hundred dollar fine or three months on default of payment, 25 and twelve months probation on the same terms as laid dovim I 26 by the Chief Magistrate. Now what time do you need to S7 fay \hh fine? '-^5?^
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