Territorial Court
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Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
R. v. Bourke, T-2-CR-2012-000880
T-2-CR-2013-000212
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- V -
MELISSA BOURKE
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Transcript of the Reasons for Sentence by The Honourable
Chief Judge R. D. Gorin, sitting in Fort Smith, in the
Northwest Territories, on the 3rd day of April, A.D.,
2013.
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APPEARANCES:
Ms. J. Wynne-Edwards: Counsel for the Crown
Mr. M. Hansen: Counsel for the Defence
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Charges under s. 270(1)(a) & 145(3) Criminal Code
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1 THE COURT: I certainly give the
2 accused credit for the guilty pleas that have
3 been entered in this case. One of the guilty
4 pleas was not particularly early, but still,
5 the guilty plea for the assault on Officer
6 Norris does I think mitigate in this case.
7 It is an expression of her remorse and it
8 has saved the Crown the resources which would
9 otherwise have been required in prosecuting
10 this matter. It has saved court time, and
11 as I have indicated it is an admission of
12 responsibility, and if somebody is going to
13 change their behavior they have to admit to
14 making a mistake.
15 It was a very serious mistake. She had
16 called the police due to an altercation that
17 was ongoing at that particular moment. When
18 her husband was arrested she took offence.
19 The police were only doing their job. There
20 was a search conducted by Officer Norris to
21 determine whether or not children were present.
22 He determined they were not present, and then
23 he felt it necessary to advise Ms. Bourke that
24 he would be reporting the incident to Social
25 Services. She was intoxicated. She reacted.
26 She reacted by punching him in the shoulder.
27 I think any assault against a peace officer
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1 where one strikes that police officer on
2 his body is a serious assault. I think all
3 assaults against police officers are serious.
4 However, she comes before the Court
5 with no record whatsoever. She has had a
6 very difficult background. Mr. Hansen argues
7 that the principles enunciated by the Supreme
8 Court of Canada in the case of Ipeelee ought
9 to apply in this case and result in a conditional
10 discharge. The Crown is requesting a suspended
11 sentence but is leaving sentencing, as it puts
12 it, in the hands of the Court.
13 Both of these suggested sentences would
14 involve a probation order; a probation order
15 would be necessary to both of them. The
16 question I have to ask myself is whether or
17 not the prerequisites set out in the Criminal
18 Code are made out in this case. The assault
19 in question was certainly not a trivial assault
20 for the reasons that I have already articulated.
21 There is also the fact that I am dealing with a
22 second offence as well, a breach of a condition
23 that required that she not consume alcohol.
24 I take into account all of the facts, including
25 the fact that she was not supposed to be having
26 contact with her husband at the time. However,
27 she has not been convicted of that here today.
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1 That particular count has been dispensed with by
2 the Crown, and I am really only dealing with a
3 conviction for her breaching the undertaking she
4 was on by consuming alcohol.
5 As indicated she comes from a very difficult
6 background. I have already addressed some of
7 the issues that will lead to the sentence that
8 I am going to impose during my discussions with
9 Mr. Hansen. Section 718.2(e) specifically deals
10 with the requirement that the Court not impose
11 imprisonment unless imprisonment is necessary
12 and that the Court should pay particular
13 attention to this principle when imposing
14 sentence on an aboriginal person. The Supreme
15 Court of Canada has squarely addressed this
16 principle twice in its decisions in Gladue and
17 Ipeelee. Ipeelee was a recent decision of the
18 Court, and what that decision noted was that
19 the overrepresentation of aboriginal people in
20 Canada, rather than getting better, has actually
21 gotten significantly worse since Gladue was
22 decided over ten years ago.
23 It notes that it is the historical factors
24 that resulted from the European colonization
25 of North America and the marginalization
26 of aboriginal people that has led to the
27 case-specific factors that too often occur -
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1 experiencing family violence of different
2 sorts, problems with alcohol abuse in the
3 home. These case-specific factors often in
4 turn lead to increased difficulties with the
5 criminal justice system and in turn lead to
6 overrepresentation of aboriginal people in
7 the prison system.
8 In this case 718.2(e) does not apply
9 directly in the sense that I am not being
10 asked to consider imprisonment. But still,
11 the Supreme Court of Canada has said that
12 where there are case-specific factors
13 having to do with the aboriginal offender's
14 background, such as those that are present
15 in the case before the Court - which in
16 this case I will not specifically articulate
17 publicly - this is a factor that can lessen
18 the moral blameworthiness of the offender.
19 It is often far more difficult for people
20 who come from such a background to stay out
21 of trouble with the law all of their lives.
22 When one comes from a background like that of
23 Ms. Bourke the likelihood of criminal behavior
24 increases.
25 Ms. Bourke comes before the Court at 32
26 years of age and she has not previously been
27 convicted of anything, or at least the Crown
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1 is not alleging that she has. Counsel are both
2 suggesting that a probation order is appropriate,
3 and the question is whether it should be part of
4 a suspended sentence or a conditional discharge
5 in the case of both offences.
6 Ipeelee also requires that the Court,
7 when dealing with aboriginal offenders like
8 Ms. Bourke, take a restorative approach where
9 such an approach is feasible. I think that
10 a more restorative approach would be an
11 approach which does not leave her with a
12 criminal record, that could interfere
13 with her rehabilitation and integration
14 into society in the future. It is often
15 quite difficult for people who have criminal
16 records to get into certain educational
17 programs, and get certain jobs.
18 There will be a conditional discharge in
19 the case of both offences. In both cases there
20 will be a probation order, the probation order
21 will be for a period of 15 months. There will
22 of course be the statutory conditions. She will
23 have to keep the peace and be of good behavior.
24 Appear before the Court when required to do so
25 by the Court. Notify her probation officer in
26 advance of any change of name or address and
27 promptly notify the probation officer of any
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1 change of employment or occupation. She will
2 remain in the Northwest Territories unless she
3 has written permission from her probation officer
4 or the Court to leave the Territories. Is that
5 going to present any difficulty?
6 THE ACCUSED: No.
7 THE COURT: It means you do not go
8 across the border. You will have to report
9 to your probation officer forthwith, that means
10 immediately, and thereafter as directed and in
11 the manner as directed by your probation officer.
12 You are to take such alcohol and drug assessment,
13 counselling and programming as directed by your
14 probation officer. Does she have any difficulty
15 with treatment?
16 THE ACCUSED: No.
17 MR. HANSEN: She's indicating no, Sir.
18 THE COURT: Then you are also to
19 participate in any and all alcohol treatment
20 directed by your probation officer, and that
21 will include residential treatment if your
22 probation officer deems it appropriate.
23 You will also take such other assessment,
24 counselling and programming as directed by
25 your probation officer.
26 I think that there has to be some
27 consequence to you as a result of your
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1 behavior, so I am going to require that you
2 perform a total of 50 hours of community service
3 work. Once again, that will be at the direction
4 of your probation officer and to the satisfaction
5 of your probation officer, and that is to be
6 performed at a rate of no less than ten hours per
7 calendar month beginning today. So the first ten
8 hours has to be done by the end of this month,
9 the next ten hours by the end of the next month,
10 and so on until it all gets done. Any reason
11 why you cannot do that?
12 THE ACCUSED: No.
13 THE COURT: Good. You will provide your
14 probation officer with a consent to release of
15 information with regard to your participation
16 in any programming, counselling or treatment
17 that you are directed to take part in by your
18 probation officer. Is there any difficulty
19 with that, Mr. Hansen?
20 MR. HANSEN: No, Sir.
21 THE COURT: Good. I believe that
22 that deals with the probation order. If you
23 successfully complete the probation order then
24 the discharge that I have ordered here today
25 will become absolute and you will have no
26 criminal record. If you do not, if you breach
27 and if you get charged and convicted, jail would
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1 be a real possibility, the discharge will not
2 become absolute and it will remain on your
3 record, and you could be re-sentenced on it
4 and you could be re-sentenced on the offences
5 that I am dealing with here today. Do you
6 understand that?
7 THE ACCUSED: Yeah.
8 THE COURT: I have to impose a victims
9 of crime surcharge, I have to consider imposing
10 a firearms prohibition order and a DNA
11 authorization.
12 MS. WYNNE-EDWARDS: Not requesting those, Your
13 Honour.
14 THE COURT: You are not requesting any
15 of those?
16 MS. WYNNE-EDWARDS: No, Your Honour.
17 THE COURT: I will not impose a
18 firearms prohibition order. I have considered
19 the propriety of imposing one under the
20 circumstances. Given the absence of a record,
21 given the assault that occurred, clearly it is
22 not required. A DNA authorization, the Crown
23 is not requesting it and therefore I cannot
24 impose it. The victims of crime surcharge would
25 be $50.
26 MR. HANSEN: Sir, we're asking that that
27 be waived. She is unemployed and a stay-at-home
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1 mother. She will also have the community service
2 work to perform in the meantime as well.
3 THE COURT: I believe you had indicated
4 that you are content with that.
5 MS. WYNNE-EDWARDS: Yes, Your Honour.
6 THE COURT: The victims of crime surcharge
7 will be waived. You will have to remain in the
8 courtroom for the time being. A probation order
9 will be prepared, it will be reviewed with you.
10 You should also be aware that it takes effect
11 immediately, so you might as well speak with
12 Ms. Walterhouse right now.
13 MR. HANSEN: Thank you, Sir.
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16 Certified to be a true and
accurate transcript, pursuant
17 to Rules 723 and 724 of the
Supreme Court Rules.
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20 Joel Bowker
Court Reporter
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