ARCTIC OBITER
March/April 2012 - Law Society of the Northwest Territories
March/April 2012 - Law Society of the Northwest Territories
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MARCH/APRIL 2012 | 19<br />
but then drove away. By the time of<br />
sentencing, the offender and victim had<br />
apologized to each other. The offender<br />
had a prior criminal record including<br />
three prior assaults and one prior<br />
weapons offence.<br />
The legal elements of assault causing<br />
bodily harm and assault with a weapon<br />
are different.<br />
Although the factual<br />
nexus is clearly present, the legal nexus<br />
is not. Therefore convictions entered on<br />
both offences.<br />
However, separate<br />
consecutive sentences were not imposed<br />
because the offences arise from the<br />
same events.<br />
Sentence of 17 months’ imprisonment<br />
plus one year driving prohibition<br />
imposed – Although the use of a<br />
snowmobile is a serious aggravating<br />
factor in this case, the sentence must not<br />
be so long as to be counterproductive<br />
and simply be a blind expression of the<br />
Court’s denunciation of the conduct.<br />
CRIMINAL LAW – SENTENCING –<br />
AGGRAVATED ASSAULT<br />
R v Lennie<br />
2012 NWTSC 15 (CanLII) | February 9, 2012<br />
Presiding: Justice L. Charbonneau<br />
For the Crown: D. Vaillancourt<br />
For the Accused: T. Bock<br />
Aboriginal offender convicted of<br />
aggravated assault after trial by jury.<br />
The offender stabbed the victim in the<br />
arm, inside a house during a birthday<br />
party. The offender then went outside<br />
the house and the victim followed him<br />
to confront him, but saw the offender<br />
was still holding the knife and ran<br />
away. The offender chased the victim<br />
and stabbed him in the back and neck as<br />
he was trying to get away.<br />
Offender sentenced to two years less a<br />
day imprisonment plus 18 months’<br />
probation – When it comes to crimes of<br />
violence, especially those involving the<br />
use of a potentially lethal weapon,<br />
deterrence and denunciation are<br />
important. Considering the offender’s<br />
young age and the fact he does not have<br />
a significant criminal record,<br />
rehabilitation should not be overlooked.<br />
The offender has faced systemic factors<br />
unfortunately common to aboriginal<br />
people in this jurisdiction, and this<br />
contributed to his use of alcohol and his<br />
coming into conflict with the law.<br />
However, when it comes to serious<br />
crimes of violence, there are limits to<br />
how taking those factors into account<br />
can impact on the ultimate sentencing<br />
decision.<br />
The importance of having<br />
communities that are free from violence<br />
exists in aboriginal communities as<br />
much as it does in non-aboriginal<br />
communities. Consideration was given<br />
to six months of pretrial custody served.<br />
CRIMINAL LAW – SENTENCING –<br />
SEXUAL ASSAULT<br />
R v KRM<br />
2012 NWTSC 17 (CanLII) | February 24, 2012<br />
Presiding: Justice L. Charbonneau<br />
For the Crown: J. Andrews<br />
For the Accused: T. Bock<br />
The 17 year old victim was a babysitter<br />
and the cousin of the offender’s spouse.<br />
After babysitting one night, she spent<br />
the night at the offender’s home. She<br />
awoke to the offender touching her on<br />
the legs, thighs and buttocks. He was<br />
intoxicated and asked her if she wanted<br />
to smoke marijuana with him. She<br />
refused and asked him to leave, which<br />
he did. The victim returned to sleep but<br />
was awoken again by the offender<br />
removing her pants and underwear. He<br />
then kissed her genitals and had forced<br />
sexual intercourse with her. The offence<br />
had severe consequences for the victim.<br />
The offender pleaded guilty and<br />
expressed remorse.<br />
Sentence of two years less a day<br />
imprisonment plus 18 months’<br />
probation imposed – The starting point<br />
for this type of offence is three years.<br />
The age of the victim was an<br />
aggravating factor, as was the breach of<br />
trust. The third aggravating factor was<br />
the fact the victim was asleep.<br />
The<br />
fourth was the persistence shown by the<br />
offender returning after he was told to<br />
leave. The guilty plea had considerable<br />
mitigating effect, even when entered at<br />
the eleventh hour. When dealing with a<br />
serious offence, there is less possibility<br />
the sentence imposed on an Aboriginal<br />
offender will be different than the<br />
sentence imposed on a non-Aboriginal<br />
offender. The importance of upholding<br />
the dignity and personal safety of all<br />
members of the community is an<br />
important value in both Aboriginal and<br />
n o n - A b o r i g i n a l c o m m u n i t i e s .<br />
Consideration was given to 230 days<br />
pretrial custody served.<br />
REAL PROPERTY – REMOVAL OF<br />
CAVEAT<br />
Engle v Carswell<br />
2012 NWTSC 18 | February 29, 2012<br />
Supplementary reasons: 2012 NWTSC 21 (March<br />
8, 2012), 2012 NWTSC 25 (March 28, 2012)<br />
Presiding: Justice S. Smallwood<br />
For the Applicant: J. Thorlakson<br />
For the Respondent: self-represented<br />
The applicant sought removal of a<br />
caveat registered by his ex-wife against