ARCTIC OBITER
March/April 2012 - Law Society of the Northwest Territories March/April 2012 - Law Society of the Northwest Territories
18 | ARCTIC OBITER spontaneous and contemporaneous as can be. Concerns about accuracy and reliability are for the trier of facts. The utterance would also be admissible under the principled approach: It is necessary because the complainant has no memory. It is sufficiently reliable because of the spontaneous nature, because the complainant had no way of knowing her utterance would be heard, and because the photos of the c o m p l a i n a n t ’ s i n j u r i e s w e r e corroborative of the smacking noise heard. CRIMINAL LAW – SENTENCING - ASSAULT R v Courouble 2012 NWTSC 10 (CanLII) | January 13, 2012 Presiding: Justice L. Charbonneau For the Crown: A. Godfrey For the Accused: T. Boyd The offender was found guilty of assault after a jury trial, and sentenced to nine months’ imprisonment and one year probation – This assault was at the high end of seriousness for a common assault. insignificant. The injury caused was not The complainant’s eyes were swollen shut and there was significant bruising on her face. There was nothing mitigating. The offender had criminal record including two prior serious crimes of violence. Because of the seriousness of the assault and the offender’s prior criminal record a conditional sentence would not be consistent with the principles and purposes of sentencing. CRIMINAL PROCEDURE – JUDICIAL INTERIM RELEASE – PRIMARY AND TERTIARY GROUNDS R v Moore 2012 NWTSC 14 | May 19, 2011 Presiding: Justice J.E. Richard For the Crown/Respondent: D. Vaillancourt For the Accused/Applicant: J. Chadi The applicant faced serious charges of possession of cocaine and marijuana for purposes of trafficking. He had no criminal record. He had been detained since his arrest eleven months previously. A preliminary inquiry was held in November 2010, and dates were set for pretrial motions in August. The applicant was represented on this application but did not have legal representation for trial. filed materials for his He had not Charter applications, contrary to the court’s direction. Application granted – The accused’s ties to the jurisdiction are tenuous and there exists a real flight risk concern given the seriousness of the charges. However, primary ground concerns could be addressed by a $30,000 recognizance with a $15,000 cash deposit and a surety. The fact that no trial date has yet been set was due to the actions or inactions of the accused. He is avoiding trial. To authorize his release in these circumstances could erode the public’s confidence in our justice system. However, it is not necessary to detain him. The court can address the concerns by directions or orders requiring the accused to meet deadlines. CRIMINAL LAW – SENTENCING – RULE AGAINST MULTIPLE CONVICTIONS R v Modeste 2012 NWTSC 16 (CanLII) | February 15, 2012 Presiding: Justice L. Charbonneau For the Crown: A. Paquin For the Defence: B. Rattan The 48 year old Aboriginal offender was found guilty after trial of assault causing bodily harm, assault with a weapon and failure to remain at the scene of an accident. The offender, on his snowmobile, ran the victim down, breaking his leg. He then stopped and looked at the victim for a few seconds, News Events Publications Forms www.lawsociety.nt.ca It’s all online.
MARCH/APRIL 2012 | 19 but then drove away. By the time of sentencing, the offender and victim had apologized to each other. The offender had a prior criminal record including three prior assaults and one prior weapons offence. The legal elements of assault causing bodily harm and assault with a weapon are different. Although the factual nexus is clearly present, the legal nexus is not. Therefore convictions entered on both offences. However, separate consecutive sentences were not imposed because the offences arise from the same events. Sentence of 17 months’ imprisonment plus one year driving prohibition imposed – Although the use of a snowmobile is a serious aggravating factor in this case, the sentence must not be so long as to be counterproductive and simply be a blind expression of the Court’s denunciation of the conduct. CRIMINAL LAW – SENTENCING – AGGRAVATED ASSAULT R v Lennie 2012 NWTSC 15 (CanLII) | February 9, 2012 Presiding: Justice L. Charbonneau For the Crown: D. Vaillancourt For the Accused: T. Bock Aboriginal offender convicted of aggravated assault after trial by jury. The offender stabbed the victim in the arm, inside a house during a birthday party. The offender then went outside the house and the victim followed him to confront him, but saw the offender was still holding the knife and ran away. The offender chased the victim and stabbed him in the back and neck as he was trying to get away. Offender sentenced to two years less a day imprisonment plus 18 months’ probation – When it comes to crimes of violence, especially those involving the use of a potentially lethal weapon, deterrence and denunciation are important. Considering the offender’s young age and the fact he does not have a significant criminal record, rehabilitation should not be overlooked. The offender has faced systemic factors unfortunately common to aboriginal people in this jurisdiction, and this contributed to his use of alcohol and his coming into conflict with the law. However, when it comes to serious crimes of violence, there are limits to how taking those factors into account can impact on the ultimate sentencing decision. The importance of having communities that are free from violence exists in aboriginal communities as much as it does in non-aboriginal communities. Consideration was given to six months of pretrial custody served. CRIMINAL LAW – SENTENCING – SEXUAL ASSAULT R v KRM 2012 NWTSC 17 (CanLII) | February 24, 2012 Presiding: Justice L. Charbonneau For the Crown: J. Andrews For the Accused: T. Bock The 17 year old victim was a babysitter and the cousin of the offender’s spouse. After babysitting one night, she spent the night at the offender’s home. She awoke to the offender touching her on the legs, thighs and buttocks. He was intoxicated and asked her if she wanted to smoke marijuana with him. She refused and asked him to leave, which he did. The victim returned to sleep but was awoken again by the offender removing her pants and underwear. He then kissed her genitals and had forced sexual intercourse with her. The offence had severe consequences for the victim. The offender pleaded guilty and expressed remorse. Sentence of two years less a day imprisonment plus 18 months’ probation imposed – The starting point for this type of offence is three years. The age of the victim was an aggravating factor, as was the breach of trust. The third aggravating factor was the fact the victim was asleep. The fourth was the persistence shown by the offender returning after he was told to leave. The guilty plea had considerable mitigating effect, even when entered at the eleventh hour. When dealing with a serious offence, there is less possibility the sentence imposed on an Aboriginal offender will be different than the sentence imposed on a non-Aboriginal offender. The importance of upholding the dignity and personal safety of all members of the community is an important value in both Aboriginal and n o n - A b o r i g i n a l c o m m u n i t i e s . Consideration was given to 230 days pretrial custody served. REAL PROPERTY – REMOVAL OF CAVEAT Engle v Carswell 2012 NWTSC 18 | February 29, 2012 Supplementary reasons: 2012 NWTSC 21 (March 8, 2012), 2012 NWTSC 25 (March 28, 2012) Presiding: Justice S. Smallwood For the Applicant: J. Thorlakson For the Respondent: self-represented The applicant sought removal of a caveat registered by his ex-wife against
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18 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
spontaneous and contemporaneous as<br />
can be. Concerns about accuracy and<br />
reliability are for the trier of facts. The<br />
utterance would also be admissible<br />
under the principled approach:<br />
It is<br />
necessary because the complainant has<br />
no memory.<br />
It is sufficiently reliable<br />
because of the spontaneous nature,<br />
because the complainant had no way of<br />
knowing her utterance would be heard,<br />
and because the photos of the<br />
c o m p l a i n a n t ’ s i n j u r i e s w e r e<br />
corroborative of the smacking noise<br />
heard.<br />
CRIMINAL LAW – SENTENCING -<br />
ASSAULT<br />
R v Courouble<br />
2012 NWTSC 10 (CanLII) | January 13, 2012<br />
Presiding: Justice L. Charbonneau<br />
For the Crown: A. Godfrey<br />
For the Accused: T. Boyd<br />
The offender was found guilty of<br />
assault after a jury trial, and sentenced<br />
to nine months’ imprisonment and one<br />
year probation – This assault was at the<br />
high end of seriousness for a common<br />
assault.<br />
insignificant.<br />
The injury caused was not<br />
The complainant’s eyes<br />
were swollen shut and there was<br />
significant bruising on her face. There<br />
was nothing mitigating. The offender<br />
had criminal record including two prior<br />
serious crimes of violence. Because of<br />
the seriousness of the assault and the<br />
offender’s prior criminal record a<br />
conditional sentence would not be<br />
consistent with the principles and<br />
purposes of sentencing.<br />
CRIMINAL PROCEDURE – JUDICIAL<br />
INTERIM RELEASE – PRIMARY AND<br />
TERTIARY GROUNDS<br />
R v Moore<br />
2012 NWTSC 14 | May 19, 2011<br />
Presiding: Justice J.E. Richard<br />
For the Crown/Respondent: D. Vaillancourt<br />
For the Accused/Applicant: J. Chadi<br />
The applicant faced serious charges of<br />
possession of cocaine and marijuana for<br />
purposes of trafficking.<br />
He had no<br />
criminal record. He had been detained<br />
since his arrest eleven months<br />
previously. A preliminary inquiry was<br />
held in November 2010, and dates were<br />
set for pretrial motions in August. The<br />
applicant was represented on this<br />
application but did not have legal<br />
representation for trial.<br />
filed materials for his<br />
He had not<br />
Charter<br />
applications, contrary to the court’s<br />
direction.<br />
Application granted – The accused’s ties<br />
to the jurisdiction are tenuous and there<br />
exists a real flight risk concern given the<br />
seriousness of the charges.<br />
However,<br />
primary ground concerns could be<br />
addressed by a $30,000 recognizance<br />
with a $15,000 cash deposit and a<br />
surety. The fact that no trial date has<br />
yet been set was due to the actions or<br />
inactions of the accused. He is avoiding<br />
trial. To authorize his release in these<br />
circumstances could erode the public’s<br />
confidence in our justice system.<br />
However, it is not necessary to detain<br />
him.<br />
The court can address the<br />
concerns by directions or orders<br />
requiring the accused to meet deadlines.<br />
CRIMINAL LAW – SENTENCING –<br />
RULE AGAINST MULTIPLE<br />
CONVICTIONS<br />
R v Modeste<br />
2012 NWTSC 16 (CanLII) | February 15, 2012<br />
Presiding: Justice L. Charbonneau<br />
For the Crown: A. Paquin<br />
For the Defence: B. Rattan<br />
The 48 year old Aboriginal offender was<br />
found guilty after trial of assault<br />
causing bodily harm, assault with a<br />
weapon and failure to remain at the<br />
scene of an accident. The offender, on<br />
his snowmobile, ran the victim down,<br />
breaking his leg. He then stopped and<br />
looked at the victim for a few seconds,<br />
News<br />
Events<br />
Publications<br />
Forms<br />
www.lawsociety.nt.ca<br />
It’s all online.
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