Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Summary Conviction Appeal Decision
Decision Content
R. v. Sanderson, 2010 NWTSC 59
S-1-CR2009000109
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
BRIAN SANDERSON
Appellant
- vs. -
HER MAJESTY THE QUEEN
Respondent
_________________________________________________________
Transcript of the Summary Conviction Appeal Decision of
The Honourable Justice D. M. Cooper, at Yellowknife in the
Northwest Territories, on July 2nd A.D., 2010.
_________________________________________________________
APPEARANCES:
Mr. H. Latimer: Counsel for the Appellant
Ms. D. Vaillancourt: Counsel for the Respondent
Official Court Reporters
1 THE COURT: We are here in the matter of
2 R. v. Sanderson and these are my reasons on
3 sentence.
4 At the outset, since I am delivering this
5 judgment orally, I will reserve the right to
6 amend the transcript for the purpose of inserting
7 case citations and correcting minor unintended
8 errors in grammar, syntax, or other clerical
9 slips.
10 The appellant appeals from sentences imposed
11 on him in Territorial Court. After a trial on
12 August 6th, 2009, he was found guilty on October
13 22nd, 2009, and sentenced on the charge of common
14 assault under Section 266 of the Criminal Code,
15 and a charge of unlawful confinement under
16 Section 279(2) of the Code to five and eight
17 months in jail respectively, with the sentences
18 to run consecutively.
19 He also pleaded guilty on October 22nd to a
20 charge of breach of recognizance on October 21st
21 and was sentenced to two months in jail
22 consecutive. That sentence is not under appeal.
23 The appellant argues that the sentencing
24 Judge erred in imposing consecutive sentences in
25 circumstances where he says that the offences
26 arose out of the same transaction and were
27 basically similar in nature; to wit, an invasion
Official Court Reporters 1
1 of the person of the victim. He also suggests
2 that in not imposing the sentences concurrently,
3 the result is that the totality of the sentence
4 is excessive particularly given that the
5 sentencing Judge presumed psychological harm in
6 the absence of any evidence of it. He adds that
7 the sentence, in totality, offends the principles
8 set out in 718.1; namely, that a sentence must be
9 proportionate to the gravity of the offence.
10 The standard of review to be applied by the
11 appellate court is one based on deference and
12 absent an error in principle, failure to consider
13 a relevant factor or an overemphasis of an
14 appropriate factor, the decision of the
15 sentencing Judge should only be interfered with
16 if the sentence is "demonstrably unfit".
17 See R. v. L. M., [2008] 2 S.C.R. 163. See also
18 R. v. Shropshire, [1995] 4 S.C.R. 277. And see
19 R. v. M.(C.A.), [1996] 1. S.C.R. 500.
20 On August 6th, 2009, T. L. (the victim) was
21 at her residence with the appellant. The two
22 were in a spousal relationship. An argument
23 ensued. The appellant was intoxicated and
24 holding their 18 month old child. During the
25 argument, the victim's mother arrived and took
26 the child from the appellant who then got angry
27 at the victim and pinned her to the corner of the
Official Court Reporters 2
1 wall in the kitchen with his shoulder. She ran
2 from the house and got into the box of a truck.
3 The trial Judge found the controlling behaviour
4 of the appellant in the house to have been an
5 assault.
6 The appellant ran out to the truck, pulled
7 the victim onto the ground, dragged her into the
8 house and locked the door. The police arrived to
9 find the accused on top of the victim, holding
10 her down, and observed that she was crying softly
11 and was upset. For these actions, the trial
12 Judge found the accused guilty of unlawful
13 confinement.
14 The appellant was on probation for having
15 previously assaulted the victim at the time these
16 offences occurred. The breach of his
17 recognizance conviction resulted from his having
18 had contact with the victim in her home the day
19 before the continuation of his trial in Lutsel K'e
20 at which the Territorial Court was to deliver its
21 verdict and impose sentence. As stated above,
22 the appellant was sentenced on this charge to two
23 months consecutive.
24 The Crown sought a global sentence of 12 to
25 14 months custody. The defence asked the Court
26 to "consider" imposing concurrent sentences while
27 submitting "the counts are intertwined" but
Official Court Reporters 3
1 stated "I leave that up to Your Honour".
2 It is to be noted that the victim testified
3 at trial in support of the appellant, however,
4 her evidence was rejected.
5 The issues are:
6 Did the sentencing Judge commit an error in
7 principle by imposing consecutive sentences on
8 the charges of assault and unlawful confinement
9 in the circumstances of the case?
10 If not, did the sentencing Judge err in
11 imposing a global sentence that was excessive in
12 the circumstances of the case.
13 The appellant argues strenuously that the
14 sentencing Judge erred in failing to apply the
15 "principle" laid down in R. v. Haines, [1975]
16 O.J. No. 251, a decision of the Ontario High
17 Court, to the effect that where offences are
18 seemingly part of the same transaction, are
19 similar in nature and where the same person is
20 the victim in the offences, the sentences should
21 be served concurrently.
22 The Crown argues that a correct statement of
23 the law is set out in R. v. Crocker, [1991] N.J.
24 No. 33, where the Newfoundland Court of Appeal
25 stated:
26 "The decision of the Ontario Court of
27 Appeal" - and I had previously mentioned the
Official Court Reporters 4
1 Ontario High Court, I correct myself, it was the
2 Ontario Court of Appeal -
3 in R. v. Haines (1975), 29 C.R.N.S.
4 239 suggests that multiple
5 convictions may be grouped and
6 concurrent sentences imposed for
7 each group. In that case, the
8 accused had committed 17 offences
9 which could fall into five groups.
10 The decision of the Court of Appeal
11 appears not to have stated any
12 principle but rather to have been
13 designed to achieve a proper
14 totality.
15 The principle of totality is
16 not one that is expressly recognized
17 by the Criminal Code but is
18 nevertheless well established by the
19 principles of sentencing. A person
20 should generally receive separate
21 and consecutive sentences for
22 separate offences. The sentence for
23 each offence should be appropriate
24 for that offence as if no other
25 offence were involved. While this
26 may not be a constant principle, it
27 is nevertheless a practical
Official Court Reporters 5
1 consideration. The imposition of a
2 heavy sentence for one offence and a
3 lighter than usual sentence for
4 another offence to achieve proper
5 totality may be counterproductive if
6 subsequently the conviction
7 supporting the heavier offence is
8 set aside or the sentence with
9 respect to it substantially reduced.
10 The imposition of fit sentences
11 for each of several offences may
12 result in a total term of
13 imprisonment so lengthy as to be
14 unrealistic or disproportionate to
15 the conduct of the accused. Where
16 there are multiple convictions and
17 sentences, the sentences must be
18 added together to see whether they
19 are, in totality, excessive. If
20 they are, it becomes necessary to
21 determine what term of imprisonment
22 is not excessive and to make some of
23 the sentences imposed concurrent to
24 each other, but only for the purpose
25 of achieving a proper totality.
26 In summary, consecutive
27 sentences should be imposed unless
Official Court Reporters 6
1 there is a valid reason not to do
2 so. Each sentence should be an
3 appropriate one for the offence.
4 Concurrent sentences may, but are
5 not required to be, imposed where
6 multiple convictions arise out of
7 several offences which constitute a
8 single criminal adventure, and may
9 be impose to achieve proper totality
10 for multiple convictions.
11 In R. v. McDonnell, [1997] 1 S.C.R. 948,
12 Mr. Justice Sopinka, writing for the majority,
13 stated at paragraph 46:
14 In my opinion, the decision to order
15 concurrent or consecutive sentences
16 should be treated with the same
17 deference owed by appellate Courts
18 to sentencing Judges concerning the
19 length of sentences ordered. The
20 rationale for deference with respect
21 to the length of sentence, clearly
22 stated in both Shropshire
23 and M.(C.A.), applies equally to the
24 decision to order concurrent or
25 consecutive sentences. In both
26 setting duration and the type of
27 sentence, the sentencing Judge
Official Court Reporters 7
1 exercises his or her discretion
2 based on his or her first-hand
3 knowledge of the case; it is not for
4 an appellate court to intervene
5 absent an error in principle, unless
6 the sentencing Judge ignored factors
7 or imposed a sentence which,
8 considered in its entirety, is
9 demonstrably unfit.
10 Finally, in the case of R. v. A.T.S. [2004]
11 N.J. No.1, the Newfoundland and Labrador Court of
12 Appeal adopted, with approval, the following
13 statement of Professor Allan Manson in The Law of
14 Sentencing at paragraph 28 of the judgment as
15 follows:
16 There has been some controversy over
17 how to calculate individual
18 sentences when the totality
19 principle operates to cap the global
20 sentence. One method would be to
21 artificially reduce the duration of
22 the component sentences so that when
23 grouped together consecutively they
24 add up to the appropriate global
25 sentence. This has been rejected by
26 most courts which prefer to impose
27 appropriate individual sentences and
Official Court Reporters 8
1 then order that some, or all of
2 them, be served concurrently to
3 reach the right global sentence.
4 The latter method is preferable
5 because it ensures frankness that
6 each conviction will generate an
7 appropriate sentence, whether served
8 concurrently or consecutively.
9 Moreover, the impact of individual
10 sentences will be preserved even if
11 an appeal intervenes to eliminate
12 some of the elements of the merged
13 sentence.
14 To synthesize the decisions in Crocker,
15 McDonnell and A.T.S. that the sentencing Judge
16 has a discretion to sentence consecutively or
17 concurrently; that sentences should be imposed
18 consecutively unless the "global" sentence is
19 excessive and thus unfit; and that the
20 methodology of grouping certain offences together
21 where there are multiple infractions and then
22 sentencing concurrently is not a legal principle
23 but is a tool or a rational way in which to
24 achieve appropriate totality of sentence.
25 The defence referred the Court to
26 R. v. Desmarest, (1986) 2 Q.A.C. 151, where it
27 was held that "as a general rule" where an
Official Court Reporters 9
1 accused is convicted before the same Court of a
2 number of offences arising from the same
3 transaction the Court will impose sentences
4 concurrently. I do not read the judgment as
5 setting out a legal principle that must be
6 followed in all cases but rather as a guideline
7 to Judges. The case predates Crocker, McDonnell
8 and A. T. S. and, if I am wrong in my
9 interpretation of what the Court is saying, I am
10 of the view that the reasoning in the case has
11 subsequently been rejected. Finally, counsel
12 have not cited any authorities from the Northwest
13 Territories where the "concurrent versus
14 consecutive" issue has been directly examined and
15 I am not aware of any. To the extent that the
16 ratio in Desmarest is still good law in the
17 province of Quebec, I would respectfully decline
18 to adopt the reasoning in that case in this
19 jurisdiction but prefer the approach in the triad
20 of cases cited.
21 The only issue, then, is whether the global
22 sentence of 13 months is excessive and therefore
23 unfit. Whether the sentencing Judge arrived at
24 the totality of sentence by imposing concurrent
25 or consecutive sentences is largely irrelevant.
26 In most cases, an appellate Court will, as in
27 Haines, group multiple offences (there were 17 in
Official Court Reporters 10
1 total) into categories and impose sentences
2 within those discrete categories concurrently
3 since the result of sentencing on each offence
4 consecutively would otherwise be an excessive
5 (and unfit) penalty. However, there are cases
6 where sentencing concurrently could also result
7 in an unfit sentence - one that is too lenient
8 and fails to reflect the seriousness of the
9 offences. It occurs to me that this might well
10 be a case in point. See R. v. Munilla, [1986]
11 M.J. No. 27.
12 In any event, I find that the sentencing
13 Judge did not err in imposing sentences
14 consecutively in this case and reject this ground
15 of appeal.
16 When examining the issue of totality, as I
17 have said I am to defer to the decision of the
18 sentencing Judge unless I am persuaded that there
19 was an error that resulted in the imposition of
20 an unfit sentence.
21 Fundamental to the question is an
22 examination of the record of the appellant, which
23 I am attaching as Appendix A to this judgment.
24 A cursory review of this record discloses
25 that the appellant is an intractable and
26 remorseless recidivist with 37 previous
27 convictions dating from 1988. He has
Official Court Reporters 11
1 demonstrated no regard whatsoever for court
2 orders, starting with his breach of probation in
3 1993. More importantly, he has four previous
4 spousal assaults (three on the same victim) and
5 two of these were assaults that caused bodily
6 harm. The appellant has been treated leniently
7 by the courts given his deplorable record and
8 obvious proclivity to control, threaten, and
9 batter his common-law spouse. At the time of
10 these offences, he was on probation for having
11 assaulted the victim in late 2008.
12 The sentencing Judge referred to
13 Section 718.2(a)(ii) in noting that abuse of the
14 offender's spouse is an aggravating factor in
15 sentencing.
16 The appellant argues that incorporating
17 Section 718.2(a)(ii) into a sentence as an
18 aggravating factor is to doubly penalize an
19 accused and is, ergo, unconstitutional - a breach
20 of Section 15 of the Charter of Rights and
21 Freedoms. I am not sure that I have entirely
22 captured the logic of this argument but to the
23 extent that I do, I reject it. It is open to
24 Parliament to enact statutory provisions
25 respecting the public's denunciation of some
26 kinds of criminal activity. The section also
27 directs courts to consider circumstances that are
Official Court Reporters 12
1 mitigating. In any event, the appellant has not
2 mounted a Charter challenge and I need give no
3 further consideration to this line of argument.
4 Further, the appellant argues that the
5 sentencing Judge presumed psychological harm to
6 the victim and the child when there was no
7 evidence before the Court to that effect. And
8 following McDonnell, supra, she was not entitled
9 to make that presumption and made a fundamental
10 error in doing so.
11 Paragraph 37 of the McDonnell judgment reads
12 as follows:
13 To the extent that the Court of
14 Appeal held that the Crown need not
15 prove psychological harm in some
16 instances, but rather such harm may
17 be presumed, it was an error. As
18 stated above, if the Crown wishes to
19 rely upon the existence of
20 psychological harm, in my view the
21 Crown should charge under the
22 section set out in the Code that
23 contemplates harm, Section 272(c),
24 and prove the offence.
25 Accepting that harm may be an
26 aggravating factor under
27 Section 271, R. v. Gardiner, [1982]
Official Court Reporters 13
1 2 S.C.R. 368, held that each
2 aggravating factor in a sentencing
3 hearing must be proved beyond a
4 reasonable doubt. Such an approach
5 is confirmed by Parliament in the
6 new Section 724(3)(e) of the
7 Criminal Code. If psychological
8 harm may be presumed, the burden of
9 proving harm as an aggravating
10 factor is improperly lifted from the
11 Crown and shifted to the accused to
12 disprove harm.
13 McDonnell was decided in 1996 and can hardly
14 be described as "dated". And yet, the reasoning
15 that psychological harm cannot be presumed in
16 cases of sexual assault, and by inference
17 domestic violence, runs contrary to the
18 mainstream notions of Canadian society which are
19 that by their very nature, these offences will
20 almost always result in emotional damage and
21 psychological trauma to the victims and their
22 families. In the case of domestic violence,
23 evidence that it is an extremely serious societal
24 problem and recognized as such across Canada is
25 to be found in the fact that most, if not all,
26 provinces and Territories have now passed
27 emergency protection legislation specifically
Official Court Reporters 14
1 dealing with spousal and child abuse.
2 There is now a considerable body of
3 literature on the effects of domestic violence on
4 victims, children, and society. That the
5 sentencing Judge was sensitive to this issue is
6 amply demonstrated when she read an unattributed
7 passage from a body of research to the appellant
8 at sentencing as follows:
9 With great respect, Mr.
10 Latimer, to say that this is not so
11 bad because there was no physical
12 injuries -- if there were physical
13 injuries, first, it would be a
14 different charge; it would be an
15 assault causing. This is an
16 assault.
17 I hope, Mr. Sanderson, you do
18 not think for a minute that you did
19 not cause any harm or have any
20 harmful effects on Tainchay
21 Lockhart, the mother of your child.
22 The bruises and the black eyes and
23 cuts, blood, may go away. But you
24 beat a woman and drag her around and
25 tell me that your relationship is
26 based on love - Mr. Sanderson, that
27 is a relationship based on fear.
Official Court Reporters 15
1 Mr. Sanderson, you think about
2 Jonas. I want to read to you. This
3 is a small part of something that I
4 read probably a couple of years ago
5 now, but on the effects of domestic
6 violence, and these are the effects
7 on children:
8 "Recent research studies have
9 confirmed what has been intuitively
10 known for some time: witnessing
11 domestic violence endangers the
12 emotional well being and development
13 of children. The immediate trauma
14 of witnessing abuse includes
15 self-blame, fear for their parents'
16 safety and, ultimately, fear for
17 self. The range of resulting
18 problems are varied and include
19 psychosomatic disorders such as
20 stuttering, anxiety, fear, sleep,
21 sleep disruption, and school
22 problems. Older children have a
23 tendency to identify with the
24 aggressor and lose respect for the
25 victim, usually their mother. As
26 many as 75 percent of boys who
27 witness the abuse of a parent have
Official Court Reporters 16
1 demonstrable behavioural problems,
2 are much more likely to be arrested
3 by police and to engage in
4 delinquent behaviour".
5 So Mr. Sanderson, I hope that
6 you do not think, first off, that
7 you are not causing any harm to your
8 partner by treating her this way,
9 and, Mr. Sanderson, I hope you
10 realize the harm you are causing to
11 your son.
12 There is also a section of the
13 Criminal Code, Section 718.2(a)(ii),
14 which says that if the victim of
15 a -- or if a crime is committed and
16 it is either against your spouse or
17 your common-law partner or your
18 child, that is aggravating. That
19 always has been, Mr. Sanderson, but
20 now the Criminal Code says that
21 right in there. That is because we
22 as a community have decided we are
23 not going to put up with it. Family
24 violence has to stop, partly because
25 of the harm it causes, the sheer
26 physical harm, the emotional harm,
27 and the cycle it causes. Children
Official Court Reporters 17
1 do what they see. You think about
2 what you are teaching your son.
3 This Court has sympathy with the remarks of
4 the sentencing Judge and largely identifies with
5 those remarks.
6 Courts across the country, including the
7 Northwest Territories, in the Northwest
8 Territories, have often commented on the
9 prevalence of spousal assault, as did the
10 sentencing Judge here.
11 In R. v. Attig, [1992] N.W.T.J. No. 107 at
12 page 109, Vertes J. of this Court stated:
13 Canadian society has now started to
14 recognize the extent of the problem
15 of domestic violence. I see no
16 distinction between acts of violence
17 occurring during a relationship or
18 after the relationship has ended. I
19 do not see why acts that are only
20 threatened, as opposed to being
21 actually carried out, should also
22 not be regarded as acts of violence.
23 Threats such as these, in these
24 circumstances, obviously instill
25 terror and fear in the victim. It
26 may not be overt physical violence,
27 but it is certainly psychological
Official Court Reporters 18
1 violence. It is really, in essence,
2 just another way that this man tried
3 to control this woman. The assault
4 as well, while relatively minor, is
5 an example of the accused's lack of
6 appreciation for anything but his
7 own desires.
8 There was evidence of harm in that case but
9 I identify with the observations of Justice
10 Vertes. While there is no evidence here that the
11 victim suffered physical harm, it is common sense
12 that the threat of it would have been present
13 given the record of the appellant.
14 The sentencing Judge rightly treated these
15 offences seriously and felt the need to emphasize
16 the principles of deterrence and denunciation and
17 to send a message to the appellant who has been
18 demonstrably incapable of refraining from abusing
19 his spouse. That she did impose a rather lengthy
20 period of incarceration was entirely proper in
21 the circumstances.
22 I must however, consider the so-called "jump
23 principle" [see Sentencing, Clayton C. Ruby,
24 Lexis Nexis, 7th ed. at Chapter 13.28)
25 particularly in light of the appellant's argument
26 concerning the presumption of psychological harm.
27 Although I am of the view that a sharp increase
Official Court Reporters 19
1 in jail time was warranted, the question is
2 whether it was excessive in this case.
3 What is somewhat unusual here is that there
4 was no evidence whatsoever of physical or
5 psychological harm. In the normal course, a
6 complainant would testify at trial and relate the
7 fear she (he) had at the time of the offence and
8 speak to the emotional and lasting psychological
9 harm that she continues to experience. The trial
10 Judge can evaluate the evidence and the
11 credibility of the complainant and conclude that
12 the element of harm has been proved beyond
13 reasonable doubt. In the case of a guilty plea,
14 often a victim's impact statement can constitute
15 proof of psychological trauma. On occasion, a
16 Court may hear expert evidence. In other cases,
17 where the Court, after a guilty plea, only hears
18 submissions from the Crown alleging psychological
19 harm, the defence may not challenge that
20 assertion. But here, the victim, in testifying,
21 actually attempted to exonerate the appellant by
22 claiming that she voluntarily accompanied him
23 back into the house from the truck. Her evidence
24 was not impeached by the Crown but the trial
25 Judge nevertheless completely rejected it,
26 finding it totally lacking in credibility.
27 However, at the end of the trial there was no
Official Court Reporters 20
1 evidence of harm from the victim or from any
2 other witnesses.
3 As mentioned, while Courts can comment on
4 the prevalence and dangers to society of certain
5 kinds of crime and further take into account that
6 an aspect of a crime, as here, is by statute to
7 be considered as aggravating on sentence, quaere
8 whether a Court can presume harm when there is no
9 evidence of it before the Court and treat that as
10 an additional and not insubstantial aggravating
11 factor.
12 Having carefully reviewed the remarks of the
13 sentencing Judge, I am satisfied that she did, in
14 fact, presume psychological harm and consider
15 this an important factor which aggravated this
16 offence over and above the record of the
17 appellant and the aggravation prescribed
18 by Section 718.2(a)(ii).
19 As noted, the accused's record is lamentable
20 and even contemptible considering his record of
21 convictions for spousal assault. However, the
22 longest period for which he has been incarcerated
23 for spousal assault was five months (in 2002) and
24 his last such conviction for common assault in
25 December of 2008 resulted in a sentence of 90
26 days in jail. I appreciate that, in addition to
27 assault, here the appellant was convicted of
Official Court Reporters 21
1 unlawful confinement. But having regard to the
2 facts, it was in the nature of an ongoing or
3 extended common assault, albeit of a somewhat
4 more serious one.
5 Had there been evidence before the
6 sentencing Court of any physical or psychological
7 harm, I would have dismissed this appeal. In the
8 circumstances, however, I find that in factoring
9 the element of psychological harm, without any
10 evidence of such harm, the sentencing Judge was
11 in error. Having referred to the "jump
12 principle", it is my view that the resulting
13 sentence was excessive although not to a large
14 degree. A sentence that doubles any previous
15 period of incarceration for spousal assault
16 would, in my view, satisfy the various principles
17 of sentencing, including the principles of
18 totality.
19 Accordingly I would grant the appeal and
20 substitute a sentence of five months for the
21 sentence of eight months for the offence of
22 unlawful confinement to be served consecutive to
23 the five month sentence for common assault which
24 remains undisturbed.
25 Is there anything else, counsel?
26 MS. VAILLANCOURT: No.
27 THE COURT: Thank you, counsel.
Official Court Reporters 22
1 MR. LATIMER: Thank you, Your Honour.
2 THE COURT: I am going to retire for ten
3 minutes, and I will deliver the reasons in the
4 case of R. v. Stuart.
5 (ADJOURNMENT)
6
7
8 -------------------------------------
9
10
11 Certified to be a true and
accurate transcript pursuant
12 to Rules 723 and 724 of the
Supreme Court Rules,
13
14
15
16 ____________________________
17 Lois Hewitt, CSR(A), RPR, CRR
Court Reporter
18
19
20
21
22
23
24
25
26
27
Official Court Reporters 23
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.