Territorial Court
Decision Information
Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
2008 NWTTC 017 T-3-CR-2008-000473
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
RICHARD EPELON
Transcript of the Reasons for Sentence delivered by
The Honourable C/Judge B.A. Bruser, in Yellowknife, in
the Northwest Territories, on December 11, 2008.
APPEARANCES:
Ms. D. Vaillencourt: Counsel on behalf of the Crown
Mr. P. Cashman: Counsel on behalf of the Accused
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Charges under ss. 145(2)(a) C.C., 151 C.C., 271 C.C.
and 733.1(1) C.C.
Ban on Publication of Complainant/Witness
Pursuant to Section 486.4 of the Criminal Code
1 THE COURT: I have had some time overnight
2 to think about this, as I have done, but I could
3 not complete the thought process because defence
4 submissions were still outstanding and the Crown
5 had to complete one aspect of her submissions. I
6 hesitate to reserve to a later date on this.
7 This offender has been in remand now since early
8 August. The time period has been four months and
9 a week. He deserves to know today what the Court
10 is doing about his future.
11 Mr. Epelon is 37 years of age. He has pled
12 guilty to the following charges: On one
13 Information, he committed a sexual assault on the
14 ten-year-old (at the time) complainant. When he
15 did so, he was on a probation order. A statutory
16 term required him to keep the peace and be of
17 good behaviour. The second charge on that
18 three-count Information is that he did not obey
19 the probation order because by reason of the
20 sexual assault he failed to keep the peace and be
21 of good behaviour.
22 The Crown withdrew Count 1 of the
23 three-count Information.
24 The other Information contains one count.
25 It is failing to appear in court. He pled guilty
26 to it some time ago.
27 Mr. Epelon, I am giving you significant
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1 credit for the pleas of guilty, in particular for
2 the sexual assault. A preliminary inquiry was
3 not required, and a trial was not required. I am
4 in agreement with the submissions made by Mr.
5 Cashman on your behalf, that you have spared this
6 young victim the "ordeal" of having to come to
7 court and testify.
8 There is no victim impact statement that I
9 have been provided with. Nevertheless, it is a
10 reasonable inference that for somebody so young
11 it would be an ordeal to have to testify about
12 what you did.
13 What did you do to her? What you did is
14 included in the agreed statement of facts entered
15 as an exhibit. In summary, the young girl was in
16 your care at the time you sexually assaulted her.
17 This is how it came about:
18 On March 10th, five days before the offence,
19 the child, along with her mother and yourself,
20 flew to Inuvik from Fort Good Hope in order for
21 the child to have surgery on her ear. You had
22 been living at the time with the family. The
23 family trusted you. The time period you had been
24 living with them as at March was about a month.
25 Not only had you been living with the family but
26 you were a friend of the father of this child.
27 At Inuvik, a hotel room was taken. The plan
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1 was to remain there for a while until the surgery
2 was cleared up. The surgery had to be postponed
3 for a day, and before it, the mother of this
4 child learned that her sister, that is the
5 mother's sister, was in a hospital in Edmonton
6 suffering from a serious condition. The mother
7 asked you to stay in Inuvik with the child, again
8 placing a huge responsibility and a heavy dose of
9 trust in you. After the surgery was concluded,
10 the mother left Inuvik for Edmonton to see her
11 sister.
12 It was at the hotel where the offence
13 occurred. The two of you were in the same room,
14 and this had been the plan. She went to sleep.
15 She felt something moving on her after she had
16 gone to sleep. She awoke. You were on top of
17 her. You were wearing a pair of pants at the
18 time. She noted the time to be 1:45 a.m. You
19 were touching her breasts with your hands, you
20 touched her buttocks, and her vagina. You used
21 your hands and you did this under her clothing,
22 including under her underwear. She told you to
23 get off her, and you did.
24 Fortunately for you, I am not dealing with
25 the aggravating feature - that is something that
26 makes it worse - of you having persisted after
27 she told you to get off her. This does not make
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1 what you did better, but what I am emphasizing is
2 I do not have an extra aggravating factor.
3 She was obviously - and I can say this
4 without a victim impact statement - fearful,
5 because paragraph 13 of the agreed facts shows
6 that she ran into the bathroom where she stayed
7 out of fear. She waited until you went to sleep
8 and then she went back to her bed.
9 For two days after this, she was with you.
10 One can only begin to imagine her distrust and
11 other fears that she might have had during that
12 period, although I have not been provided with
13 details of them. I cannot sentence you based on
14 imagination, but I think it common sense to
15 remark that it could not have been an easy,
16 trusting, happy, carefree period of her stay in
17 Inuvik.
18 After returning to Fort Good Hope she
19 disclosed the incident to family members. The
20 police were advised. You were then arrested.
21 It is said on your behalf today that you had
22 a relatively small amount of alcohol. This is
23 apparent from paragraph 18 of the agreed facts.
24 You admitted to having consumed a relatively
25 small quantity. It cannot be said that you were
26 heavily intoxicated at the time.
27 Those are the facts of what occurred.
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1 The failure to appear is that on or about
2 May 20th you did not show up in court in Inuvik.
3 Inuvik is the place you had to be in court
4 because that is where the offence occurred. You
5 were free on the sexual assault. You were free
6 apparently on a recognizance. The recognizance
7 allowed you to have your freedom. One of the
8 things you had to do was go to court. You did
9 not show up. Fortunately, I am not dealing with
10 the aggravating factor of a failure to appear on
11 a preliminary hearing date or on a trial date or
12 on a sentencing date. Instead, it was the first
13 date in the Territorial Court for this to be
14 addressed in some way.
15 The probation order which you were bound by
16 and which I have remarked upon, required you to
17 keep the peace and be of good behaviour, took
18 effect after a period of imprisonment.
19 This takes me to some remarks about your
20 record.
21 The record is an exhibit. I make it clear
22 to you, sir, that I am not sentencing you again
23 for what you have done in the past. That is not
24 what this is about. But, the record does show
25 some obvious things. First of all, you cannot
26 claim to be a first-time offender. Second, the
27 record shows something about your attitudes and
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1 your behaviours over the past several years, in
2 fact going back 16 years. The record is entirely
3 an adult record, therefore there is no component
4 to it which is to be treated in a different way
5 had part of it been in the former Youth Court,
6 which is now the Youth Justice Court.
7 Mr. Cashman on your behalf has said that
8 because on the last occasion for having committed
9 a sexual assault you received 15 months'
10 imprisonment, it would be appropriate for there
11 to be a step up, but it should not be too great a
12 step. It should not be a huge jump. It is
13 interesting to note, however, that the 15 months
14 you were given was in July 2004. The previous
15 sexual assault before that was in 1998. At that
16 time you were given 22 months. So the 15 months
17 was a step down from what you had received on a
18 previous occasion. I do not know what the facts
19 of those two offences were. Again, I am not
20 sentencing you for them, but I am using the
21 record to try to assist me in understanding your
22 behaviour, your attitude, and also in
23 appreciating to some extent whatever risk you may
24 pose to the public after you are released,
25 because you will be released at some point in
26 time.
27 The record also permits me to give you a
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1 very clear warning. This is the third time you
2 are being sentenced for a sexual assault. The
3 day may come, Mr. Epelon, when the Crown
4 prosecutor will make application to have you
5 declared to be a long term offender or a
6 dangerous offender. You could find yourself
7 spending much of the rest of your life, if not
8 all of it, in prison.
9 The record also shows the Court that in
10 addition to your previous convictions for sexual
11 assault, there are other crimes of violence.
12 Sexual assault is very much a crime of violence;
13 there are offences in other categories, too.
14 The people at the back of the courtroom are
15 going to have to stop talking, because right
16 behind where the accused is by a few rows, and
17 when I look at him I look at you and I find it
18 rude, distasteful, and terribly distracting for
19 me. If there is any more conversation back there
20 between the two of you, and you know who you are,
21 you will be immediately removed from the
22 courtroom by the sheriff and not welcome to
23 return.
24 The record has the following on it, to get
25 into the specifics of it:
26 1992 - break and enter and theft. Theft is
27 very much a crime of dishonesty.
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1 1996 - there is a different category. It is
2 for a drug offence.
3 1998 - another break-in. And then later on
4 that year, the first of the sexual assaults.
5 Twenty-two months was the sentence for the sexual
6 assault which, as I understand the record, arose
7 in Cambridge Bay. You were sentenced in
8 Yellowknife, but the police file indicates that
9 it was a Cambridge Bay matter.
10 In December 2000, you were given a
11 rehabilitative sentence by way of a suspended
12 sentence for an assault.
13 In 2002, there was another assault along
14 with a fail to obey an undertaking. The failure
15 to obey the undertaking takes you into another
16 category not yet identified; that is, a crime
17 against the administration of justice. The
18 failure to appear today and the failure to obey
19 the probation order both fit the latter category
20 of offence.
21 The following year, 2003, there was a
22 sentence of imprisonment for an assault causing
23 bodily harm. Once again, you were revisiting the
24 category of violence against people.
25 On the same date as the sentence for the
26 assault causing bodily harm, you were imprisoned
27 for three months for failing to obey a probation
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1 order. Of course one of the three offences that
2 I am dealing with is exactly that kind of
3 offence.
4 The following year you were sentenced for
5 the second of the sexual assaults, to 15 months'
6 imprisonment along with a three year probation
7 order. It is that three year probation order
8 which gave rise to the failure to obey the
9 probation order when you committed the sexual
10 assault on March 15th, this year. Along with the
11 sentence for the sexual assault was a sentence
12 for failing to obey a probation order, and you
13 were given three months concurrent for it.
14 This is a nasty record. It does not bode
15 well for your ability or your willingness to
16 behave in lawful ways when you regain your
17 freedom again.
18 It appears from the record that you are at a
19 high risk of re-offending unless the sentence
20 today is not viewed by you as being overly
21 lenient. In other words, the focus today has to
22 be on the need to discourage you. We call this
23 primary deterrence, or specific deterrence to use
24 another term. There has to be a strong message
25 sent out to others. This kind of an offence
26 where people take advantage of other people who
27 are sleeping or otherwise vulnerable is common
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1 throughout this jurisdiction - this is a factor
2 that I have come to identify over decades of
3 experience in this jurisdiction. There has to be
4 a need to reflect denunciation. This means, sir,
5 the disapproval of the public through the Court
6 of what you did. This is not about revenge.
7 This is not what I mean by denunciation. It is
8 disapproval.
9 The Crown prosecutor has asked that there be
10 a sentence of 24 to 30 months, along with a
11 mandatory firearm prohibition order, a mandatory
12 DNA order, and a life registration under the Sex
13 Offender Information Registry. I have already
14 dealt with the last of these; the registration
15 will be for life because of the prior order made
16 in another case.
17 The defence says that there should be a
18 lesser period in the range of 18 months'
19 imprisonment. The defence, as I pointed out
20 earlier, regards this as a step up. I disagree
21 with this submission because it fails to take
22 into account that you received 22 months for a
23 similar crime in 1998. But yes, it is a step up
24 from the more recent of the two sexual assaults.
25 In that context only, Mr. Cashman is correct.
26 There are provisions in the Criminal Code
27 that assists the court in the difficult task of
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1 sentencing. This kind of a case is never an easy
2 one for sentencing. The Criminal Code provisions
3 begin at section 718 and they continue, for my
4 purposes today, to 718.2. I begin with section
5 718.
6 Section 718 sets out the fundamental purpose
7 of sentencing. The fundamental purpose is to
8 contribute to respect for the law. From your
9 record, I conclude that you have little respect
10 for the rights of others, and little respect and
11 little concern for the law and for the
12 maintenance of a just, peaceful, and safe
13 society. These are factors that are of little,
14 perhaps even of no concern to you, but they are
15 of concern to me.
16 It is said that you take full responsibility
17 for what you did. I accept this. I have no
18 reason to believe that you did not take full
19 responsibility back in 1992 or 1996 or 1998 or
20 2000 or 2002 or 2004.
21 The sentence has to be a just one. It must
22 not be overly harsh. There must also be a
23 measure of restraint. I am attempting to be as
24 restrained as possible.
25 The purpose under section 718 considers the
26 following objectives:
27 (a) to denounce unlawful conduct. I have
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1 already commented upon this.
2 (b) to deter the offender and others. I have
3 already commented upon this.
4 (c) to separate offenders from society, where
5 necessary. It is necessary to incarcerate you.
6 You have to be separated from society. You and
7 freedom do not appear to dance in tune.
8 (d) The sentence should assist in rehabilitating
9 you. I have this in mind, but your
10 rehabilitation is not the foremost principle.
11 Deterrence of the two forms and denunciation are,
12 but rehabilitation is a factor.
13 I note, however, that you have done well in
14 prison. You have taken full advantage of what
15 has been available to you. You are improving
16 upon your education. You are working towards
17 your grade equivalency diploma, commonly called
18 the GED, and you are taking occupational training
19 in prison to be a camp cook. You have been
20 addressing your rehabilitation in some ways.
21 If the sentence is of a certain extent, if
22 it is over two years, there cannot be a probation
23 order. A probation order is generally intended
24 for rehabilitative purposes. It can have other
25 purposes but rehabilitation is a key component,
26 as is reintegration.
27 (e) Another section 718 objective is to provide
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1 reparations, that is redress, for the harm done
2 to victims. You are not able to pay this victim
3 by means of a sentencing proceeding any monetary
4 amount. As for reparations, I do not know what
5 can be done.
6 (f) Finally, under section 718 is the need to
7 consider promoting a sense of responsibility in
8 offenders. I have remarked upon the submission
9 made on your behalf that you take full
10 responsibility. Once again, I accept that you
11 do.
12 There is also the objective as a component
13 of the promotion of a sense of responsibility, an
14 acknowledgement of the harm done to victims. I
15 have not heard a great deal about your
16 acknowledgement of the harm apart from the
17 submissions made by Mr. Cashman.
18 This takes me back to the credit I am giving
19 to you for pleading guilty thereby sparing the
20 victim from a very difficult courtroom
21 experience. So in that sense there has been an
22 acknowledgement of the harm done to her and what
23 could happen thereafter.
24 The fundamental principle of sentencing is
25 set out in section 718.1; I am going to go right
26 to that, then return to section 718.01.
27 The fundamental principle is that the
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1 sentence must be proportionate to the gravity of
2 the offence. This was a very serious offence.
3 Defence counsel says it was not a major sexual
4 assault. I am leaving that concept alone because
5 it is fraught with hazard. But what is clear,
6 and which is beyond dispute, is that it was an
7 assault, it was sexual in nature because you
8 violated the sexual integrity of your victim; and
9 because of the breach of trust, the circumstances
10 that I have already referred to, and her young,
11 vulnerable age, there is in my view a
12 characterization of this as a serious sexual
13 assault. It cannot be viewed otherwise. The
14 offence, then, is grave in nature and in its
15 circumstances.
16 The other component of the fundamental
17 principle is the degree of responsibility of the
18 offender. Here, you bore a large degree of
19 responsibility. It cannot be said to be
20 otherwise.
21 As indicated, I am going back now to section
22 718.01.
23 Section 718.01 has to do with offences
24 against children. This sexual assault is in such
25 a category. Section 718.01 provides that when a
26 court imposes a sentence for an offence that
27 involves the abuse of a person under the age of
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1 18 years, it shall give primary consideration to
2 the objectives of denunciation and deterrence of
3 such conduct. This offence squarely fits within
4 section 718.01. This is not a case where I am to
5 consider as a primary consideration denunciation
6 and deterrence, but rather parliament has said I
7 must so consider it. Denunciation and
8 deterrence, therefore, are very much in the
9 driver's seat. Rehabilitation, while in the
10 vehicle, is in the back seat.
11 Section 718.2 has to do with other
12 sentencing principles; I have taken from it what
13 is applicable here. Again, one of the factors is
14 the young age of the victim. Another is an abuse
15 of trust. These are within section 718.2. These
16 "shall be deemed to be aggravating
17 circumstances". It is not a case where they
18 might be viewed that way, but they must be viewed
19 that way. It can be argued that those factors
20 could be rebutted because of the use of the word
21 "deemed", but I do not have to consider this
22 since there is no basis to rebut the breach of
23 trust and the young age of the victim.
24 Also under section 718.2 there is a
25 direction that a sentence should be similar - not
26 must be but should be, which is something less
27 than "must" - to sentences imposed on similar
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1 offenders for similar offences committed in
2 similar circumstances. But therein lies the
3 difficulty, because every offender is unique,
4 every victim is unique, every young child is
5 unique. No two sets of circumstances are
6 identical in every way. Hence the use of the
7 word "similar" because that is as close as one
8 can be expected to go.
9 If I impose consecutive sentences today, Mr.
10 Epelon, that is, one on top of the other of the
11 three, the combination must not be unduly long or
12 harsh. This is what we often call in shorter
13 form, the principle of totality. The total
14 effect must not be unduly long or harsh.
15 I am skipping over another condition because
16 it requires that a person not be deprived of
17 liberty, if less restrictive sanctions may be
18 appropriate. There is nothing less than a
19 lengthy period of incarceration in this case that
20 would be appropriate.
21 Finally under section 718.2 is a provision
22 that all available sanctions other than
23 imprisonment that are reasonable in the
24 circumstances should be considered for all
25 offenders. But because you are aboriginal,
26 particular attention must be paid to your
27 circumstances. This is not a blanket "particular
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1 attention" which applies to every aboriginal
2 offender in every circumstance. Generally
3 speaking, the more serious the case, particularly
4 where violence is involved, aboriginal offenders
5 should be expected to receive a sentence similar
6 to those that non-aboriginal offenders would
7 receive. There also needs to be for that
8 provision to be applicable a connector between
9 your aboriginal status and some systemic factors
10 that point to a disadvantaged situation of some
11 sort.
12 This aspect of sentencing has been referred
13 to in tab 4, R. v. R.K. from our Supreme Court.
14 In paragraph 9 the Court said:
15 I must, of course, take into
16 consideration the fact that the
17 accused is an aboriginal Canadian.
18 While that is a factor to consider,
19 as I am directed to do so by the
20 Criminal Code, there were no
21 particular systemic or background
22 factors brought to my attention
23 which may justify some different
24 type of sentencing approach. There
25 were certainly no particular
26 cultural factors in this case.
27 This was a judgment of Justice Vertes, and
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1 another Supreme Court judge since then has
2 remarked to the same effect.
3 The judges of our Supreme Court are also
4 judges of our Court of Appeal; their judgments,
5 even when they are not sitting in an appellate
6 capacity, are significant for this reason.
7 The Crown filed a book of sentencing
8 authorities to assist the Court. I thank Crown
9 counsel for doing so. By filing a booklet of
10 this sort, it assists the Court in following the
11 similar sentence approach which I have referred
12 to.
13 I now have some remarks to make about the
14 cases. I do not intend to go into them in much
15 detail. I have reviewed the material. It is
16 with the court file. If the matter goes to the
17 Court of Appeal, it will be there for its review.
18 I begin with tab 2. This is the case of
19 V.J.O. from 2006 in our court, the Territorial
20 Court. In that case Judge Schmaltz had some
21 pointed comments to make about the abuse of
22 children. At paragraph 10, she stated:
23 We all have a duty to care for and
24 protect children. A child's safety
25 is the responsibility of every adult
26 in the community. I find the
27 intentional hurting or abuse of a
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1 child a particularly disturbing
2 crime. Besides the abuse of trust
3 involved when the child is related
4 or known to an offender, there is
5 also a breach of the duty we all
6 have to children, there is a breach
7 of the authority that all adults
8 inherently have over small children.
9 A child is a particularly vulnerable
10 victim.
11 At paragraph 11:
12 A young child will usually blindly
13 trust an adult, though this may be
14 changing. Sadly, we can't as a
15 society, as a community, trust as
16 much as perhaps we used to.
17 Nowadays, we have to teach our
18 children to be wary of strangers.
19 Crimes where children are the
20 victims harm us all. These crimes
21 make us all trust each other less.
22 And this is especially so when they
23 are committed by someone who we
24 should have been able to entrust the
25 care of a child to - such as a
26 grandfather.
27 I add "such as a trusted family friend".
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1 At tab 3, there is a 2004 judgment of
2 Kemper. Members of the Alberta Court of Appeal
3 make up much of the Court of Appeal of this
4 jurisdiction, hence their judgments are given
5 considerable attention. The Court of Appeal said
6 in Kemper at paragraph 7:
7 The commission of a serious sexual
8 assault on a child by a person who
9 is in a position of trust typically
10 attracts a starting point sentence
11 of four years incarceration.
12 I have already found as a fact, Mr. Epelon,
13 that what you did amounts to a serious sexual
14 assault. Typically, the starting-point is four
15 years. This does not mean there must be a
16 sentence of four years. It does not mean there
17 must be a sentence of more than four years. This
18 is a guideline to assist the court. They are not
19 saying in every case there must be a
20 starting-point of four years. It is a guideline
21 to help sentencing judges.
22 Crown counsel, in my view, has been very
23 fair in taking the position of a range of 24 to
24 30 months, but I am not bound by that range.
25 I am also not dealing with a joint
26 submission. Were I dealing with a joint
27 submission, I would have to, if I were
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1 considering departing from it, conduct an inquiry
2 to determine the basis upon which the joint
3 submission was arrived at. But, I do not have to
4 conduct such as inquiry in this case because the
5 position taken by both counsel is not one that
6 was jointly arrived at through the plea
7 bargaining process. It may have been arrived at
8 through plea bargaining, but it is not a jointly
9 arrived at position.
10 What you have done in prison speaks a great
11 deal in your favour.
12 I have already spoken of the significant
13 credit for pleading guilty. I need not comment
14 upon it further.
15 I agree with the factual observation
16 submitted by Mr. Cashman that this was "a single
17 incident". But, you know, pulling the trigger on
18 a rifle, pointing it at somebody's head and
19 discharging it is also a single incident.
20 There is the issue of remand credit. The
21 defence has properly addressed, and correctly so,
22 the appropriate law. There generally is enhanced
23 credit of some sort over and above one-for-one
24 credit because of a number of factors. One of
25 these is that a person in remand, as you have
26 been since early August, is not eligible for any
27 form of early release.
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1 Another factor is that remand credit,
2 depending on where the institution is and the
3 circumstances, can be harsher than the time
4 served by a sentencing prisoner. But, that
5 cannot be argued in this case. Indeed, the
6 facility at the North Slave Correctional Centre,
7 which I have toured, is a rather generous
8 facility for everyone, including remand
9 prisoners.
10 The third factor is whether there is
11 evidence of a denial of programs. There is a
12 suggestion that there might be an alcohol issue
13 in this case but that is about it. You have been
14 very busy within the institution improving your
15 education and taking occupational training. I
16 cannot find that there is evidence before me of a
17 denial of programs. There might be other
18 programs outside the institution which you could
19 benefit from, but you have been very busy within
20 the institution taking care of your needs.
21 I also am obligated to consider how it is
22 that you ended up in remand. It was not because
23 of the sexual assault; it was because you did not
24 show up in court on the sexual assault and the
25 accompanying breach of probation. You put
26 yourself into that position by not coming to
27 court.
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1 Offenders should not be entitled to
2 determine a component of the sentencing process
3 by absenting themselves from court, ending up in
4 remand and then doing what used to be called
5 "hard time" so that they can argue for more than
6 one-for-one credit by reason of their unlawful
7 act of failing to appear in court. That would be
8 illogical. Think of how those accused of
9 offences could begin to think: "I better not
10 show up for my court date because if I don't show
11 up I'll get a two-for-one credit, so I'll miss
12 court once or twice and see what happens." That
13 sort of thought process has to be nipped in the
14 bud.
15 I have difficulty appreciating why there
16 should in the circumstances of this case be more
17 than a one-for-one credit. But, the very first
18 factor, the denial of any early release, is
19 present. It is a constant for everybody in this
20 jurisdiction in remand. I am going to afford you
21 1.5:1 credit approximately. This is not a
22 precise mathematical calculation to the exact
23 minute, but I am giving you six months' credit.
24 I am of the view that a fit and proper
25 sentence for this offender for having committed
26 these offences, in particular the sexual assault
27 on this victim, taking into account all the other
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1 analyses that I have done and allowing the
2 significant credit for the guilty plea to the
3 sexual assault, is 36 months' imprisonment. This
4 is higher than what the Crown had recommended.
5 But, as I told you, I am not bound by what the
6 Crown or by what the defence have recommended.
7 From the 36 months - and this will be
8 reflected on the warrant of committal, Madam
9 Clerk - will be deducted six months remand
10 credit. This leaves remaining 30 months or
11 two-and-a-half years. This is for the sexual
12 assault.
13 For the failure to obey the probation order,
14 there will be four months' imprisonment. It will
15 be concurrent. I am not adding it on.
16 For the failure to appear, there will be two
17 months' imprisonment and I am going to make it
18 concurrent because of the totality principle. I
19 see no need to add it to the 30 months in all the
20 circumstances. This latter observation
21 incorporates a measure of restraint which I spoke
22 of earlier.
23 There will be a DNA order to be worded
24 according to law for the sexual assault. It may
25 be that there already is in the DNA national
26 databank a sample of the accused's DNA. There
27 should be by reason of his record, but that does
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1 not affect the obligation that I have to make the
2 order. I make the order. Whether they collect a
3 sample is for somebody else to determine.
4 There will for the sexual assault be the
5 mandatory firearm prohibition order, because
6 sexual assault is a crime of violence. In this
7 case the Crown has gone by indictment. It fits
8 section 109. It will begin today and it will end
9 ten years after the release from imprisonment.
10 There will, because of the traditional lifestyle
11 argument which the Crown did not take issue with,
12 be a section 113 exemption for sustenance
13 purposes.
14 Hardship obviously applies to any victim of
15 crime surcharge, unless the Crown is arguing to
16 the contrary in which case I will hear from
17 counsel.
18 MS. VAILLENCOURT: No, Your Honour.
19 THE COURT: Does the defence make that
20 application?
21 MR. CASHMAN: Yes, we do, sir.
22 THE COURT: Hardship will apply.
23 There cannot be a probation order because of
24 the combined length of the sentences.
25 Does the Crown have anything further?
26 MS. VAILLENCOURT: No, Your Honour. I think
27 you've already mentioned the SOIRA registration
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2 THE COURT: Yes, I mentioned that at least
3 twice, yes.
4 Does the defence have anything further?
5 MR. CASHMAN: No, sir.
6 THE COURT: You can go with the officer
7 now, Mr. Epelon.
8 If you take anything away from this, if
9 there is only one thing you take away from it, if
10 you forget the rest, remember, the Crown
11 prosecutor is probably getting very close to
12 applying to having you declared to be a long term
13 offender or dangerous offender. Clean up your
14 behaviour, clean up your attitudes. If you need
15 help, get it. Good luck.
16 ..............................
17 Certified to be a true and
accurate transcript pursuant
18 to Rule 723 and 724 of the
Supreme Court Rules of Court.
19
______________________________
20 Annette Wright, RPR, CSR(A)
Court Reporter
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