HIS MAJESTY, THE KING - v. -, 2022 NBPC 5

PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MIRAMICHI Neutral Citation: 2022NBPC05 Court File No.: 158881 Between: HIS MAJESTY, THE KING - and - NIGEL WILLIAM HENDERSON Before: His Honour Scott A. Brittain Hearing Date: August 11 th and September 21 st , 2022 Sentencing Date: October 18 th , 2022 Counsel at Hearing: Jean-Guy Savoie - for His Majesty, The King Simon Wood - for Nigel William Henderson DECISION (DELIVERED ORALLY) BRITTAIN, J.: Introduction 1 . Nigel William Henderson was an inmate at Atlantic Institution in Renous, New Brunswick, on June 29 th , 2021.

On that day, James Albert Riley, also an inmate, was assaulted by Mr. Henderson with a “shank”, which is a sharp handmade implement resembling a knife. Mr. Henderson was accused of aggravated assault on the person of Mr. Riley. 2 . On May 13 th , 2022, Mr. Henderson pleaded guilty to this offence, with such guilty plea having been accepted by this Court following the reading of the facts by the Crown and Mr. Henderson having agreed to such facts. This decision addresses the sentence imposed by this Court upon Mr. Henderson for this aggravated assault. Charge 3 . Mr.

Henderson was charged with aggravated assault in a single-count Information, dated October 18 th , 2021, as follows: Nigel William HENDERSON, on or about the 29 th day of June, 2021, at or near Renous, in the County of Northumberland and Province of New Brunswick, did wound James Albert RILEY, thereby committing an aggravated assault, contrary to and in violation of

Section 268 of the Criminal Code of Canada and amendments thereto. Facts 4 . The facts in relation to the offence to which Mr. Henderson has pleaded guilty were read into the record by the Crown and agreed

to by Mr. Henderson on May 13 th , 2022, prior to the Court’s acceptance of his guilty plea. I adopt those facts for the purpose of this decision and will not repeat them here other than to note a few key details to provide context for this decision. 5 . Mr. Riley was in a particularly vulnerable position on the date of the aggravated assault. A mobile telephone unit had been brought to the exterior of his cell and, when he reached out to use the phone through an opening on his cell door, and without having any line of sight within the range, Mr.

Henderson abruptly approached him brandishing a shank and, with an aggressive stabbing motion, left a 9.5cm gash down the length of Mr. Riley’s right forearm which was far more than superficial, cutting into the muscle. Mr. Riley experienced numbness for some time in three fingers but did not suffer permanent, debilitating long-term damage. In the words of the Crown, this outcome was more a matter of good luck than a testament to Mr. Henderson’s “surgical skills”. The Issue 6 . The single issue this Court must decide is what is a fit and proper sentence for the offence to which Mr. Henderson has pleaded guilty.

The Parties 7 . The Crown and counsel for Mr. Henderson substantially

part company regarding the appropriate sentence and hence, differ in their recommendations to this Court. The Crown seeks a sentence of imprisonment of “four to five years as a starting point” to be served consecutively to the sentence Mr. Henderson is currently serving. Mr. Henderson’s counsel proposes a term of incarceration of 18 months. The Law 8 . The Supreme Court of Canada has recognized that the fitness of a sentence imposed can establish or diminish the “ credibility of the criminal justice system in the eyes of the public”. [1] 9 .

The task is governed by the provisions of the Criminal Code but it involves “ the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.” [2] The purpose and principles of sentence, as set out in the Criminal Code , allow for “sentence individualization" [3] and guide the sentence this Court must impose. The Fundamental Purpose of Sentencing 10 .

Section 718 of the Criminal Code describes the fundamental purpose of sentencing. It reads: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary;

(

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 11 . The imposition of a just sentence requires “ sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender.” [4] 12 . Before considering the circumstances of the offence and the offender, I will briefly address the objectives and principles of sentencing and highlight those that are predominant in this case. The Objectives 13 .

The objectives described in s. 718 may have predominance in a set of circumstances dictated by the offence, the offender or both. In my opinion, where trial judges are required to attribute “to the objectives of denunciation and deterrence their proper predominant influence in the crafting of a just sentence ” for an aggravated assault in a penitentiary like the one in the case at bar, absent exceptional circumstances, a sentence of imprisonment must be imposed. [5] 14 . Deterrence is subdivided into specific and general elements.

Specific deterrence is designed to convince the offender before the Court not to re-offend. The circumstance of the offender and the prospects for rehabilitation must be considered. A court must look at the “individual, his record and attitude, his motivation and his reformation and rehabilitation”. [6] 15 . General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing.

If this is the aim, the sentencing court must consider “the gravity of the offence, the incidence of the crime in the community, the harm caused by it either to the individual or to the community and the public attitude toward it.” [7] 16 . The separation of an offender from society is occasionally necessary. The application of the objective must be read, in concert with s. 718.2(e), which essentially requires that imprisonment be the sentence of last resort. There are circumstances of both offender and offence, however, that require the offender to be imprisoned.

For instance, where an offender commits a serious violent offence and previous efforts to rehabilitate have failed, jail may be necessary. [8] 17 . The maintenance of a just, peaceful and safe society, as is mandated by s. 718, can often best be achieved by the rehabilitation of offenders. As the Supreme Court has held, “Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world.” [9] 18 .

The Criminal Code also holds that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is a codification of the proportionality principle and is found at s. 718.1. 19 . Other principles are important in crafting an appropriate sentence here. First,

section 718.2(

b) of the Criminal Code states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." 20 .

Section 718.2 (

a) of the Criminal Code indicates that a "sentence should be increased or reduced to account for any relevant

aggravating or mitigating circumstances relating to the offence or the offender."

Section 718.2 also dictates that: (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders . (emphasis added) Analysis The Offender - Nigel William Henderson 21 . The Court has gained an understanding of Mr. Henderson’s background with the benefit of a Pre-Sentence Report, dated July 22 nd , 2022. Mr. Henderson is a 31-year-old Mi’kmaq man from the community of Paq’tnkek in Nova Scotia.

He reports fluency in the Mi’kmaq language and has a history of engagement in indigenous community and cultural activities from youth. Mr. Henderson’s mother was adopted by a non-indigenous family as part of what is known as the “60s Scoop” and his grandparents are survivors of the Residential School system. 22 . He experienced a challenging and unstable upbringing, regularly witnessing events of violence at home, including intimate partner violence directed at his mother that required frequent interventions on his part from an early age.

Though stable now, both of his parents were alcoholics in his formative years and Mr. Henderson, himself, has a history of substance abuse. Mr. Henderson identifies substance abuse as a contributing factor in his past criminality, indicating that he has a particular propensity for violence when under the influence. 23 . Mr. Henderson also has a history of mental health issues, including PTSD and depression. He also suffers from ADHD.

He has attempted suicide on multiple occasions in the past and was once admitted to a psychiatric hospital for a period of three months owing to a significant deterioration in his mental health. 24 . During those periods when Mr. Henderson has not been incarcerated, he has found employment in the lobster and crab fisheries. 25 . The victim, Mr. Riley, was invited to provide a Victim Impact Statement respecting this aggravated assault; however, as is usually the case in matters of prisoner-on-prisoner violence, he declined that invitation. 26 . Mr.

Henderson has had long and consistent history of negative engagements with the criminal justice system. At the time of the event currently before the Court, he was serving a four-year sentence at Atlantic Institution for a 2018 aggravated assault conviction, which is notably the very type of offence that is the subject of this decision . A review of his CPIC Response Report, which was admitted on consent and marked as Exhibit C-1 at the Sentencing Hearing, indicates that Mr.

Henderson has been convicted in the recent past for several assaults, a robbery, assault with a weapon and, as already noted, the aggravated assault for which he is currently serving time. 27 . Mr. Henderson’s statutory release date was July 22 nd , 2021 and his warrant of expiry date is November 20 th , 2022. He has been remanded on this charge since November 24 th , 2021. These dates are noted owing to an issue raised at the sentencing hearing respecting “remand credit”. It was the position of counsel for Mr. Henderson that he ought to have such a credit applied to any sentence imposed by this Court.

The Crown was of the contrary view, submitting that there is no remand credit in this instance because Mr. Henderson is incarcerated per his previous conviction for aggravated assault and other offences. In other words, one doesn’t accumulate any remand credit in circumstances where they are incarcerated even if remanded on a new charge. If a remand credit is to apply, there is agreement that Mr. Henderson has been remanded for 329 days inclusive of today’s date and, when that number is subjected to the multiplier of 1.5, the total becomes 493.5 days.

The Court requested a brief from the Crown on this issue, with the understanding based on the submissions of counsel for Mr. Henderson that they would file a responding brief if there was ultimately disagreement with the submissions of the Crown on this point after receipt and review of the Crown’s brief. 28 . The Court received the Crown’s brief on September 16 th , 2021, at which time it was also provided to counsel for Mr. Henderson. No brief was forthcoming from counsel for Mr. Henderson by September 21 st , 2022, which was the date previously set for sentencing on August 11 th , 2022.

On September 21 st , 2022, counsel for Mr. Henderson advised that he had not yet had a chance to digest the contents of the Crown’s brief and required more time. On that date, the passing of sentence was adjourned until October 13 th , 2022 subject to the

clear understanding that counsel for Mr. Henderson had until October 5th, 2022 at 4:30pm to provide a brief to the Court. On October 5th, 2022, counsel for Mr. Henderson attended in Chambers to seek a brief extension, explaining that some recent personal circumstances had precluded him from providing a timely brief relative to the October 5th, 2022 deadline. The extension was granted and the Courtcommunicated to both the Crown and counsel for Mr. Henderson via email the need for the latter’s brief to be filed with the Court by 9:30am on October 11th, 2022.

October 11th, 2022 came and went with no brief being received from counsel for Mr. Henderson. 29. On October 12th, the Court received correspondence from counsel for Mr. Henderson on the “remand issue” and has confirmed thatsuch correspondence is indeed their brief on that issue. The Court has considered this submission alongside that earlier received from theCrown and will address what I refer to as the “remand issue” at the conclusion of this decision. The Offence 30. The offence to which Mr. Henderson has admitted is very serious.

It concerns the aggravated assault of a fellow inmate within thewalls of Atlantic Institution. 31. The prevailing jurisprudence affirms the need for deterrence and denunciation in cases involving assaults of prison guards andinmates.[10] The late Walsh, J. wrote in R. v. Thompson[11] : Mr. Justice Richard for the Court of Appeal in R. v.

Dunn 2011 NBCA 19 wrote “An unprovoked and vicious assault on an unsuspectingvictim, resulting in significant injuries requiring hospitalization is a serious personal injury offence that courts have an obligation todenounce and deter.” In my view, that obligation is intensified when the crime is committed inside prison walls.

If the prison authorities cannot stop themindless violence, then courts must do what they can to exert some type of control through the sentences meted out by way ofdenunciation and deterrence (both specific and general); general in this context meaning directed at other sentence serving prisoners.

Forit can never be that inmates are handed sentences for violent crimes that are interpreted as a 'license' by the specific offender and otherlike-minded inmates; For it can never also be that just because those crimes occur among prisoners that somehow those kinds of acts arenot deserving of society's full denunciation and condemnation. And it can never be forgotten that every citizen, whether free in thecommunity or not, is deserving of protection by the courts. Nor can it be overlooked that when such crimes occur the safety of those whowork inside prisons are put at risk.

They have a right to go home to their families too.[12] 32. Walsh, J. further went on to say in Thompson[13]: As observed a number of years ago by the Alberta Court of Appeal in R. v. Littletent (1985), 1985 ABCA 22 , 59 A.R. 100(Alta. C.A.) in referencing violent crime in prisons: “In affirming these sentences the overriding importance is the maintenance of orderin penal institutions”. Aggravating and Mitigating Circumstances 33. I consider it aggravating that: a. Mr.

Henderson has a criminal record that contains several violent offences, as was earlier canvassed, including currently servingfour years of federal time for an aggravated assault conviction from 2018 at the time he committed the aggravated assault against Mr.Riley; b. Mr. Henderson, for no apparent reason, attacked Mr. Riley at a time when Mr. Riley couldn’t have been more vulnerable situatedand exposed given that he had zero line of sight within the range when he extended his arm out from his cell to use the mobile telephoneunit; c. the assault on Mr. Riley occurred in a maximum-security penitentiary. 34.

I consider it mitigating that: a. Mr. Henderson has pleaded guilty and did so at an early stage in the process;

b. He has expressed empathy towards the victim, even though remorse is not fully apparent; c. He is still a young man, albeit one who has spent much of his adult life in prison. 35 . In

summary, as it relates to the offence and the offender, I find that the offence is serious; that the moral culpability of Mr. Henderson is high; and that the need to denounce the crime and deter him and others is very pressing. Range of Sentence Aggravated Assault on an Inmate 36 . An offence contrary to

section 268 of the Criminal Code carries a maximum sentence of 14 years imprisonment. There is no minimum sentence. 37 . I have previously mentioned the need for denunciation and deterrence in inmate on guard and inmate on inmate violence. In R. v. Daviau [14] Dunnigan, J. wrote: A number of valuable principles emerge from the decisions [referred to by the Crown] instructive to sentencing courts: (

a) assaults committed while incarcerated, whether against fellow inmates or guards, are to be viewed more sternly and should attract longer sentences; and (

b) deterrence of other inmates from engaging in such behaviour is the paramount consideration in assaults on prison guards; and (

c) the over-riding impetus in sentencing is the maintenance of order in penal institutions. [15] 38 . The decision of Justice Riordon in R. v. Derouchie [16] is also noteworthy. In that case, the court observed : […] the sentence that must be imposed must give a message to other prisoners that if they participate in willful, unlawful conduct in the Institution that they can expect to suffer the consequences. I think that the message has to be given not only to Mr. Derouchie but to other inmates of the Institution that such conduct will not be tolerated. [17] 39 .

In New Brunswick, it seems that the effective range of sentence for aggravated assault runs from approximately two to eight years; with higher sentences imposed in certain cases. [18] Sentence 40 . Mr. Henderson’s position is that a fit sentence would be 18 months imprisonment. The Court does not accept that a sentence in that suggested range would be a fit sentence. In my opinion, the imposition of a sentence of such duration in this case would amount to no more than the issuance of a ‘license’ to commit violent offences while in custody.

And further, to quote Walsh, J. in Thompson : “It would neither sufficiently denounce the crime nor deter the accused or others; thereby falling far short of the objective of maintaining order and protecting all those within the prison walls. ” [19] 41 .

In arriving at the Court’s sentence in this case, it is important to note that, in addition to the principles of sentencing already canvassed, that the Court has also considered the guidance and direction of the Supreme Court of Canada as it pertains to the sentencing of indigenous offenders, as articulated in the leading decisions of Gladue and Ipeelee , components of which have been codified in 718.2(e).

42 . Taking into consideration the fundamental purpose and all of the principles of sentencing, including the aggravating and mitigating circumstances stated above as well as the fact that Mr. Henderson is an indigenous man with the attendant guidance for sentencing courts in Gladue and Ipeelee , I find that a fit and proper sentence is as follows: a. Mr. Henderson, I sentence you to 36 months imprisonment consecutive to any other sentence you may be currently serving. 43 . In addition, the following ancillary orders are made: a. Pursuant to

section 109 of the Criminal Code I make an order prohibiting Mr. Henderson from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life; b. The offence under s. 268 of the Criminal Code is a primary designated offence under s. 487.04 . Pursuant to s. 487.051 of the Criminal Code , I make an order in Form 5.03 authorizing the taking from you of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis. 44 . This brings us back to the so-called “remand issue”.

More particularly, the remaining question is whether Mr. Henderson is to receive the benefit of any remand credit given no warrant of expiry has issued as it pertains to the 2018 aggravated assault conviction for which he is currently incarcerated. As was earlier noted, Mr. Henderson’s statutory release date was July 22 nd , 2021 and his warrant of expiry date is November 20th, 2022. He has been remanded since November 24th, 2021 on this charge. 45 . The authority to award “remand credit” to an accused flows from

section 719 of the Criminal Code . This provision allows judges to permit one or one-and-one half days’ credit for time spent on remand. As Chief Justice Drapeau (as he then was) stated in Doiron v. R. , 2005 NBCA 30 at paragraph 22 : …s. 719(3) allows the sentencing court to take pre-sentence custody into account in fashioning an appropriate sentence; it does not obligate the court to give credit for time served. However, such an obligation may arise by implication from other provisions of the Criminal Code (see , for example, LeBlanc v. R. , 2005 NBCA 6 ).

Moreover, even where a credit is not stricto jure mandatory, disallowance cannot be capricious: the court's reasons for sentence must feature a principled justification for its refusal to give credit for pre-sentence custody… 46 . In R. v. Pammet , 2016 ONCA 979 , the Court of Appeal of Ontario addressed the issue of remand credit in the context of a parole violator who was reincarcerated, finding at paragraph 20 that “the difficulty with this argument is that Justice Rosenberg, writing for the majority in R. v. Wilson , 2008 ONCA 510 , 236 C.C.C. (3d) 285 , explicitly rejected it.

He concluded that giving an offender credit for pretrial custody for unrelated charges would permit an accused to ‘bank’ time spent in custody.” 47 . Justice Fitzpatrick further elaborated on this point at paragraph 30 of R. v. Manella 2017 ONSC 2333 , finding: “…if there is no connection between the pre-sentence custody time that an accused has accumulated and the charges upon which an accused is being sentenced, then there is no principled reason to allow any credit for that time. To do otherwise 'would distort the sentencing regime'.” 48 . Similarly, in R. v.

Pelletier , 2019 MBCA 126 the Manitoba Court of Appeal concluded at paragraph 17: “it was not a material error, given the wording of section 719(3) of the Criminal Code , for the judge to grant no credit for PSC (pre-sentence custody) because of the mere fact that the accused was in custody and serving a sentence on an entirely unrelated and serious offence.” 49 . The conclusion of this Court, having considered this authority, is that an accused cannot expect to benefit by way of a remand credit for pre-trial or pre-sentence custody if they are serving out a sentence on an unrelated matter. To allow Mr.

Henderson a remand credit in these circumstances would be akin to sentencing him to concurrent time for an entirely unrelated crime. 50 . The same conclusion was arrived at by my colleague, LeBlanc, PCJ, in R. v. Grégoire-Pien (unreported). In that case, the accused was well past his statutory release date, but hadn’t arrived at his warrant of expiry date while remanded. Accordingly, while on "remand"

he was also serving out his sentence. While not recognizing any right to "remand credit", LeBlanc, PCJ did, however, consider both the totality principle and Gladue factors, in this case, as I have in this decision, and sentenced the accused to three months less than the sentence she would otherwise have imposed. In that case, the accused was over one year on remand, so the credit would have been about 18 months if credited at the usual multiplier applying

section 719 of the Criminal Code . LeBlanc, PCJ carefully specified this was not remand credit. 51 . In conclusion,

Section 719 of the Criminal Code of Canada is clear: remand credit is applied only to the time spent in custody for the charged offence. The Court is mindful that the time Mr. Henderson spent in custody past his regular statutory release date was still time spent expunging his previous sentence. Mr. Henderson clearly cannot claim double credit for time spent while serving out a different sentence and no principle of law stands for the proposition that it would be "just" for an offender to be credited twice (or, in this case, two and a half times) for time spent in custody on totally unrelated matters. Had Mr.

Henderson’s period of remand on this charge extended beyond his warrant of expiry date, which is November 20 th , 2022 , the Court would have applied a remand credit only for that segment of time but nothing preceding it. 52 . I am not imposing a victim fine surcharge given that Mr. Henderson has been in custody for a lengthy period and is without any source of income. ________________________ Scott A. Brittain, PCJ.