ARCTIC OBITER

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maximum credit of 1.5 to 1 for time served in pretrial custody. The circumstances do not need to be exceptional to justify granting the more generous credit. In this case, the need to wait for the presentence report was not within the offender’s control. Unfortunately, however, it meant that during the time he was in custody awaiting that report he was not earning remission. Therefore, the offender should get enhanced credit. The offender is Aboriginal, but there was nothing presented to indicate there are systemic factors related to his Aboriginal heritage that have contributed to his being in court and which could justify a reduction in the three-year starting point. ~ CRIMINAL LAW – SENTENCING – AGGRAVATED ASSAULT – CONSIDERATION OF ABORIGINAL HERITAGE – ENHANCED CREDIT FOR PRE- TRIAL CUSTODY – COMPENSATION R v Green 2013 NWTSC 20 (March 20, 2013) Presiding: Justice L.A. Charbonneau For the Crown: A. Godfrey For the Accused: B. Rattan The 30-year-old Aboriginal offender was sentenced to two years less a day plus three years’ probation, after 2 ½ years credit for pre-trial custody, following his guilty plea to two counts of aggravated assault. While at a drinking party, the offender became angry and violently attacked a woman and her husband. The husband suffered very serious injuries. Almost 2 ½ years later he has not fully recovered, and it is questionable whether or not he will ever fully recover. As a result of his injuries, the family moved to be closer to required medical care. Also as a result of his injuries, the husband can no longer work, is on social assistance, and may never again be able to work as he used to. He has not fully recovered his mental faculties. Sentencing is not about revenge, but the impact this crime had on the victims demonstrates how serious these offences were. The offender had an appalling criminal record. He had a 2007 conviction for aggravated assault f o r s t a b b i n g s o m e o n e , unprovoked, at a drinking party. The offender said he was sorry for what he did. The problem is that being sorry after the fact does not help his victims, does not protect the community, and does not address the root causes of his behaviour. Given the offender’s criminal record, the paramount consideration has to be protection of the public. The offender appears to be a ‘time bomb’. The Crown suggested the net sentence be kept under two years. A period of probation was worthwhile for the purpose of prohibiting contact with the victims. Section 718.2(e) is a remedial provision intended to address the problem of overrepresentation of Aboriginal people in Canadian jails. But for the factors related to the offender’s Aboriginal heritage, a fit sentence for this crime would be longer than 4 ½ years. The circumstances that justify enhanced credit for pre-trial custody do not have to be exceptional or rare. They do have to be applicable to the specific accused before the court. The onus to show that there should be enhanced credit rests on the accused. In this case, he has not discharged that onus. The Crown sought an order to compensate the victim for loss of income. Compensation orders are not intended to be substitutes for civil proceedings but can help achieve the objective of reparation of harm done to victims. In this case the loss is not easily quantifiable. The offender’s ability to pay was also relevant. This was not a case where a compensation 26 ■ MARCH/APRIL 2013 ARCTIC OBITER
order was appropriate. ~ CRIMINAL LAW – SENTENCING – SEXUAL ASSAULT R v Clillie 2013 NWTSC 21 (March 27, 2013) Presiding: Justice L.A. Charbonneau For the Crown: J. Bond For the Accused: T. Boyd The 32-year-old Aboriginal offender was sentenced to one day imprisonment and three years’ probation, after credit of one year for pre-sentence custody, following his guilty plea to sexual assault. The offender pulled the victim into an empty bedroom, pushed the bed against the door, pinned the victim on the bed, and grabbed at her breasts and crotch over her clothing as she screamed for help. A friend of the victim tried to help but could not get the door open. The police were called and when they were able to get the door open they found the offender holding the victim on the bed. This case is very different from a ‘groping’ case. This was not an intoxicated person ‘groping’ a clothed woman, but an intoxicated man determined to force his will on a woman and completely ignore her views of the matter and to use force to confine her and subdue her to his will. The offender had a long criminal record, including a prior sexual assault charge. This decision should not be considered as a precedent showing the usual range of sentence that would normally be imposed with these kinds of facts and this kind of criminal record. ~ TERRITORIAL COURT CIVIL PROCEDURE – COSTS OF COUNSEL Wind Dancer Contracting v 851791 NWT Ltd 2013 NWTTC 03 (February 11, 2013) Presiding: Judge C. Gagnon For the Plaintiff: self-represented For the Defendant: D. McNiven The plaintiff was partially successful on his claim, but did not recover more than the sum paid into court. applied. Rule 29(5) therefore The defendant sought costs, including costs for travel and a c c o m m o d a t i o n s f o r t h e defendant’s legal counsel. The rules of the Territorial Court are less formal than the rules of the Supreme Court of the NWT, for example, by not requiring that corporations appear through counsel. Given that it was the defendant’s decision to retain counsel, the defendant should bear some of this expense. ~ CRIMINAL LAW – EVIDENCE – ADMISSIBILITY OF AUDIO RECORDINGS R v Giroux 2013 NWTTC 04 (February 27, 2013) Presiding: Judge G. Malakoe For the Crown: J. Bond For the Accused: M. Martin The accused was charged with attempt to obstruct justice by contacting a witness by telephone from North Slave Correctional Centre. The Crown sought to introduce a DVD containing an audio recording of the telephone conversation as evidence. The preliminary inquiry judge denied the application to introduce the DVD under section 540(7) of the Criminal Code. The Crown then sought to have the DVD admitted as “demonstrative evidence”. The evidence was excluded – Physical evidence of an offence is often referred to as real evidence. Demonstrative evidence is secondary evidence admissible to assist the trier of fact to interpret, understand or analyze testimonial, documentary or real evidence. Audiotapes are real evidence. The court can take judicial notice of the existence of technology to record a voice conversation as a digital file. ARCTIC OBITER MARCH/APRIL 2013 ■ 27
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Page 3 and 4: CBA-NT BAR NOTES ’d like to begin
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Page 7 and 8: MAKING A SPLASH FOR CHARITY Yellowk
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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 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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ARCTIC OBITER

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