ARCTIC OBITER

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sentence of 14 months less 83 days in jail and one year probation for the following offences: assault, causing a disturbance, breaching an undertaking, being unlawfully in a dwelling house, resisting arrest, and breach of recognizance. The assault involved the offender spitting on his niece and another woman who intervened in an argument between the offender and his spouse. The 33-year-old offender had a lengthy, related criminal record. The Crown submissions suggested a global 10- month sentence that included three months for the assault. Defence counsel did not take issue with three months for the assault but suggested an eight-month global sentence. The sentencing judge imposed a sentence that included six months’ jail plus a year of probation for the assault. Appeal dismissed – The sentencing judge erred by not fulfilling his duty to alert counsel to his concerns about the range of sentence proposed, to advise them that he was inclined to sentence outside that range, and to give them an opportunity to make additional submissions. Just because the trial judge chose to give the guilty plea little weight does not mean he failed to take it into account. Six months is the maximum sentence on a summary conviction assault. However the “worst offender, worst offence” principle no longer operates as a constraint on a maximum sentence being imposed. In this case, the six -month sentence was not outside the usual range for spitting offences. The six-month sentence should not be considered in isolation from the global sentence or from the other offences for which the appellant was sentenced at the same time. The global sentence was not unfit in the circumstances. ~ LANDLORD/TENANT LAW – STANDARD OF REVIEW Jeske v Yellowknife Housing Authority 2013 NWTSC 17 (March 25, 2013) Presiding: Justice L.A. Charbonneau For the Appellant: N. Smith (w/ leave of the Court) For the Respondent: E. Gulberg The respondent sought and obtained from the Rental Officer a termination of the tenant’s lease and an eviction order on the basis of the tenant’s failure to pay her electricity bill. The tenant appealed. The purpose of the Residential Tenancies Act is to provide an a c c e s s i b l e , i n f o r m a l a n d expeditious process to deal with disputes between landlords and tenants. The applicable standard of review, where the Rental Officer acts within the scope of his jurisdiction, is reasonableness. The Rental Officer viewed the tenant’s failure to pay her electricity bill as a serious breach and explained why. His conclusion was not unreasonable. The question on appeal is not whether the Renal Office could have made another decision, or whether the court would have made a different decision. Given the standard of review, the court is unable to grant the relief sought by the appellant. ~ FAMILY LAW – INTERIM SPOUSAL SUPPORT - QUANTUM Michelin v McLean 2013 NWTSC 18 (March 27, 2013) Presiding: Justice V.A. Schuler For the Applicant: J. Walsh For the Respondent: K. Allison The parties were in a common-law relationship from 1986 to 2012. The respondent did not dispute the applicant’s entitlement to interim support. The only issue was quantum. The respondent had an annual income of $80,000. The court considered the applicant to have no income, as she was receiving social assistance which would be reduced by any spousal support. $2,400/month spousal support 24 ■ MARCH/APRIL 2013 ARCTIC OBITER
ordered – The objectives of a support order on the breakdown of the spousal relationship are: the eco no mi c advantage s and disadvantages arising from the relationship should be equitably shared between the spouses; economic self-sufficiency should be encouraged and economic hardship should be relieved. The ultimate goal of a spousal support order is to equitably alleviate the adverse consequences of a marriage breakdown. On an interim application where there is a triable issue as to entitlement to permanent support, the inquiry the court must make is focused on the needs of the applicant and the means of the payor. The applicant should not have to use her RRSP for short-term support. The calculations under the Spousal Support Advisory Guidelines are not law and not binding, but are in line with this applicant’s needs. This is a case where support for the applicant should be given priority over debt payments. ~ CRIMINAL LAW – SENTENCING – SEXUAL ASSAULT – ENHANCED CREDIT FOR PRE- TRIAL CUSTODY – CONSIDERATION OF ABORIGINAL HERITAGE R v Lepine 2013 NWTSC 19 (February 27, 2013) Presiding: Justice K. Shaner For the Crown: D. Vaillancourt For the Accused: P. Harte The 44-year-old offender was sentenced to three years’ imprisonment following a jury trial for sexual assault. The offender put his finger in the unconscious victim’s vagina and stopped as soon as she woke up. Penile and digital penetration are equally serious and equally harmful violations of a victim’s sexual integrity. This was a major sexual assault. The starting point of three years’ imprisonment therefore applies. Aggravating factors were: the fact the victim was asleep; the offender’s substantial criminal record; and the fact the offender was not deterred by the fact the victim’s friend was sleeping beside her. There were no mitigating factors. A sentence of three years’ incarceration is required to achieve the important objectives of denunciation and deterrence, and to recognize the offender’s moral blameworthiness. The offender was granted the ARCTIC OBITER MARCH/APRIL 2013 ■ 25
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Page 7 and 8: MAKING A SPLASH FOR CHARITY Yellowk
Page 9 and 10: WILLS SEMINAR DRAWS A CROWD Yellowk
Page 11 and 12: THANK YOU! The CBA-NT Young Lawyers
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Page 15 and 16: ON TOPIC THE CBA ON THE FUTURE OF T
Page 17 and 18: PUBLIC INTEREST HOME BUYING AFTER A
Page 19 and 20: suggestions. However, the former wa
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Page 27 and 28: order was appropriate. ~ CRIMINAL L
Page 29 and 30: causing bodily harm. The accused te
Page 31 and 32: S.C.C. UPDATE HERE IS A SUMMARY OF
Page 33 and 34: NWT LEGISLATIVE UPDATE Kelly McLaug
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