R. v. Nahdee, 2014 ONCJ 178

Information No. 12-2514 Citation: R. v. Nahdee , 2014 ONCJ 178 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. PAUL VINCENT NAHDEE R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE P. KOWALYSHYN On March 14, 2014, at CHATHAM, Ontario APPEARANCES : F. Creed Counsel for the Crown D. Henderson Counsel for Jeffrey Newham ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S REASONS FOR SENTENCE 1

Transcript Ordered: March 14, 2014 Transcript Completed: March 23, 2014 Ordering Party Notified: March 25, 2014 FRIDAY, MARCH 14, 2014 THE COURT: Mr. Nahdee, I am going to get you to stand please sir. And this is your opportunity to address the court, if you decide that you want to address the court. So is there anything that you wish to say before I impose sentence? PAUL NAHDEE: I would just like to say that it’s been a really tough time for me, I guess, losing a good friend of mine and I just kinda want to get it over with and get my sentence done so I can carry on with my life.

Now that I think back how my life went I know that I could be a good role model for a lot of other aboriginal people or even such organizations as Mother’s Against Drunk Driving. Just to be able to share my story of, I guess breaking the rules of Ontario law and just maybe I can help somebody make a better decision than I made and I still like to thank all the people that support me right now in the courtroom and just – just the fact that I would like to just get it over with and start living my life again and trying to hopefully do good for other people in my community and maybe even across the Province.

Thank you. THE COURT: Okay, well thank you for those words. And if you just give me a couple of moments, I just want to again review the victim impact statement here and give it proper reference in my decision. Okay, and so for my benefit, I am interested, are any members of Stephen Smith’s family present today? No, it does not appear to be the case, okay. Thank you. So what I am going to do is I am going to give you my Reasons for Sentence and at the appropriate juncture, Mr. Nahdee, I am going to ask you to stand at the time that I actually sentence you.

So these are my Reasons for Sentence and I have some subcategories which I will refer to. I will also be making references to the case law that counsel have provided, in addition to some other case law. R E A S O N S F O R S E N T E N C E KOWALYSHYN, J. (Orally): The Facts – Circumstances of the Offence: Paul Vincent Nahdee has entered a guilty plea to the offence of impaired operation of a motor vehicle causing death, contrary to Section 255(3) of the Criminal Code . Mr.

Nahdee was involved in a single car automobile accident on September 15, 2012 on Highway 40 at Dufferin Avenue in the Municipality of Chatham-Kent. The area was under construction at the time for resurfacing. Mr. Nahdee was driving his 1988 Ford Mustang southbound on Highway 40 and failed to make a stop for a well-marked stop sign at Dufferin Avenue. The time was approximately 4:40 a.m. Mr. Nahdee’s vehicle travelled south through the intersection and broke through a steel guardrail, coming to rest about 30 meters south of the guardrail in a soybean field.

The car sustained damage to the front and roof line as a result of the impact. In addition to Mr. Nahdee, the occupants were his two friends, Stephen Smith, seated in the rear seat of the car and Jeffrey Schuylar, seated in the front passenger seat, After the collision, Mr. Schuylar exited the car and attended at the driver door to assist in opening it. Mr. Nahdee and Mr. Schuylar then attended at the passenger side and removed Mr. Smith from the vehicle and laid him on the ground. They then began to administer first aid and CPR to Mr. Smith.

There was significant evidence of alcohol being consumed in the vehicle prior to the accident including open and closed bottles of beer as well as a strong odour of beer in the vehicle. Mr. Smith suffered severe head injuries. He, along with Mr. Nahdee was transported to Chatham-Kent Health Alliance by ambulance.

Mr. Smith succumbed to his injuries and was pronounced dead at 5:20 a.m. Breath samples were taken from Mr. Nahdee at the hospital. They registered 129 and 134 millilitres of alcohol per 100 millilitres ofblood. Position of the Parties: Counsel agree that generally speaking, the low end, or bottom of the range of sentence for a person convicted of impaired drivingcausing death is imprisonment of two years less a day. This is the length of custody being suggested by the Crown, unless I find that sufficient mitigating or exceptional circumstances exist soas to warrant bringing the sentence down to one of 18 months.

Defence counsel has submitted that sufficient mitigating circumstances exist to warrant the imposition of an 18 month jail sentence The Crown acknowledges that sufficient mitigating circumstances do in fact exist and if the court agrees, then the Crown supports thedefence position of an 18 month custodial sentence. Have I encapsulated that correctly Mr. Creed or not necessary? MR. CREED: I think maybe it’s a nuance more than anything else. I think our position was that it be the lower end of the sentenceunless there were exceptional circumstances you were aware.

I didn’t comment on this, I think I had argument both pro and con as far asthe exceptional circumstances. As I said, it may be more of a nuance than anything else. THE COURT: So really there was an acknowledgment by the Crown that exceptional circumstances may exist? MR. CREED: Yes, I would think that would be fair. THE COURT: Thank you. So I will just restate that last paragraph or that last sentence. The Crown acknowledges that sufficientmitigating circumstances may exist and if the Court agrees then the Crown supports the defence position of an 18 month custodialsentence. MR. CREED: I can accept that sir.

THE COURT: Thank you. Both Crown and defence support the making of a probation order to follow the period of custody. A two year driving prohibition was previously imposed on October 25, 2013, the date that a finding of guilt was made. Notwithstanding the aforenoted positions on the appropriate minimum range of sentence, defence counsel has also acknowledged that inOntario the case law reflects an upward trend in sentencing for cases of impaired driving resulting in death. In that regard, the Court was referred to R. v. Kresko 2013 ONSC 1631 , [2013] O.J. No. 1213 (S.C.J.).

At paragraph 45 of thatdecision, Justice Himel referenced this upward trend in the Ontario Court of Appeal decision of R. v. Junkert, 2010 ONCA 549, where itsaid: The reasons for this trend can be attributed to society’s abhorrence for the often tragic circumstances that result when individualschoose to drink and drive, thereby putting the lives and safety of others at risk. That having been said, a sentencing court is not limited or restricted to fixing a sentence within a defined range of sentence. The Ontario Court of Appeal in R. v.

Junkert, supra, at paragraph 40 said: I begin by noting that courts should be cautious in rigidly applying ‘a range’ of sentences in cases such as this, involving impaireddriving causing death… In R v. L. (J.) (ON CA), [2000], 147 C.C.C. (3d) 299 (Ont. C.A.)], this Court alsorecognized that cases involving drinking and driving did not demonstrate a particular range of sentencing but rather that the sentenceswere driven by the almost “infinite variety of circumstances in which this offence can be committed. See also: R. v. Bush 2012 ONCA 743 , [2012] O.J. No. 5192 (Ont. C.A.) at paragraph 9.

With that said, the starting point for the sentencing of any individual is found in

Section 718 of the Criminal Code. It is within thissection that the statutory purposes and principles of sentencing are found. It reads: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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; (

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 and to the community. I agree with Justice Thibodeau of this court who said in paragraph 47 of R. v. Martin [2013] O.J. No. 2469 (OCJ), that although 6 statedobjectives are set out, it is not required that all of them be considered equally for any sentence. He said: Depending on the circumstances of the offence, its severity, its frequency in the community, the harm done by the conduct, communityperception of the severity of the conduct, one or more of the stated objectives will have prominence. The fundamental principle of sentencing is found in

section 718.1 of the Code. Other sentencing principles are found in s. 718.2. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (c )(Not applicable) (

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 should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. Counsel acknowledge that due to changes made by Parliament, a conditional sentence is not available. The only option therefore is oneof custody. Counsel concede that they are not aware of a single case where a non-custodial disposition has been imposed in a drinking and drivingdeath case: see: R. v. Smith, [2013] B.C.J. No. 745 (B.C.C.A.) at paragraph 58.

It is up to this court therefore to determine a fit and appropriate sentence and to consider the position put forward by defence and Crowncounsel. Helpful assistance can be found in two decisions of the Supreme Court of Canada. In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, 171 D.L.R. (4th) 385 at paragraph 80, the Court referred to theindividualized nature of sentencing, describing the salient question as follows: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the CriminalCode?

What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offenderand his or her community? What combination of systemic or background factors contributed to this particular offender coming beforethe courts for this particular offence? [Emphasis in the original.]

The Court went on to say at paragraph 81: The analysis for sentencing … must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that ajudge can apply in order to determine the sentence. The sentencing judge is required to take into account all of the surroundingcircumstances regarding the offence, the offender, the victims, and the community … . In R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, 182 D.L.R. (4th) 1, Chief Justice Lamer stated at paragraph 82: This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerablediscretion in fashioning a fit sentence. The rationale behind this approach stems from the principle of proportionality, the fundamentalprinciple of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibilityof the offender.

Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the“punishment fits the crime”. As a by-product of such an individualized approach, there will be inevitable variation in sentences imposedfor particular crimes.

In M. (C.A.), supra, I stated, at paragraph 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. …Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree acrossvarious communities and regions in this country, as the ‘just and appropriate’ mix of accepted sentencing goals will depend on the needsand current conditions of and in the particular community where the crime occurred. That is not to say that there are no boundaries or limits to the discretion of the sentencing judge. In the Supreme Court of Canada decision of R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, Justice Lebel said atparagraph 44: The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in somecircumstances general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. I conclude from these references that judges are not “range bound” when sentencing an individual. Ranges are merely guidelines. Judgeshave the discretion to depart from the customary range of sentence in unique circumstances so long as the sentence is in accordance withthe principles and objectives of sentencing. Furthermore, sentencing is a highly individualized, fact specific, contextual exercise.

Uniquecircumstances are required in order for a judge to impose a sentence outside of the general range. Circumstances of the offender – Gladue Report: Mr. Nahdee is 35 years of age. He was 24 – I just want to confirm your age. MR. HENDERSON: He’s 35. THE COURT: That’s right. He was 34 at the time of the offence. He does not have a criminal record. He has a grade 11 education. Mr. Nahdee attempted to earn his G.E.D. through the Adult Learning Centre on Walpole Island but was unsuccessful. He attended St.

Clair College in Windsor in order to train to become an electrical engineering technician but only lasted one term. Mr. Nahdee is an Aboriginal person and is a registered member of the Walpole Island First Nation. He comes from a broken familywhere he witnessed alcohol abuse and physical violence. His father left his mother when he was six or seven years old. His mother then left Mr. Nahdee and his sister after a few months. Theywere placed with an aunt and uncle. Both his father and the mother ultimately came back into his life.

He lived with his father for aperiod of time when he was 12 and moved in with his mother at age 14. Mr. Nahdee started drinking alcohol at age 14. He also began smoking marijuana. Both were easily and readily available to him.

At age 19, Mr. Nahdee moved with his girlfriend to Windsor and continued to drink alcohol to excess. He married in 2005 at age 27. He stopped drinking in 2006 after experiencing problems in his marriage and attended AA as well as treatment for alcohol addiction. He remained sober for two years but began drinking again, believing that he had his life under control. This return to drinking alcohol ended his marriage. Three months after his marriage ended he began a relationship with another woman and for the first six months, there was regular drinking and partying.

For the next two and a half years he remained sober but he then separated from this woman. He returned to drinking alcohol to excess, including drinking in his car. He explains that he would stash bottles of alcohol in his 1988 Ford Mustang in case he “ran out” when he was out somewhere. He continued to consume alcohol up until the accident on September 15, 2012 which claimed the life of his best friend, his childhood friend, Stephen Smith. There is no doubt that Mr. Nahdee’s significant problems with alcohol arose in large part out of the community he grew up in and the social circumstances he found himself in.

A number of accepted Gladue factors have had an impact on his life. That having being said and as the Crown has properly pointed out, this does not automatically entitle Mr. Nahdee to a reduced or discounted sentence given that his crime is an extremely serious one. Mr. Nahdee recalls the events leading up to the actual accident but only up to a certain point. Then his recollection is incomplete. This is not surprising considering his extensive consumption of intoxicants and the injuries he sustained. Mr. Nahdee recalls hitting an uneven bump in the road where the construction was being completed.

He recalls hitting his head off the windshield. The next thing he recalls is his friend Jeff Schuylar opening the door and pulling him out of the driver’s seat. It was at this point that he and his friend realized that their friend Stephen Smith was unconscious, having suffered serious head injuries. They pulled Mr. Smith out of the back seat and Mr. Nahdee immediately began performing chest compressions and CPR on his dying friend. He recalls that when he breathed into Mr. Smith’s mouth that blood came out. His friend Jeff Schuylar was in shock. Mr.

Nahdee recalls that the paramedics informed him that he had kept Mr. Smith alive pending their arrival. Regrettably, this preservation of life was only temporary. Mr. Smith’s pulse was weak. He was taken to Chatham-Kent Health Alliance where he soon succumbed to his extensive injuries. Mr. Nahdee was also taken to the same hospital where he was examined for head and neck injuries. He recalls that Mr. Smith’s mother came to see him at the hospital, gave him a big hug, and told him that everything would be okay. This remarkable demonstration of support by Mr. Smith’s family for Mr. Nahdee continues to this day.

Since the accident, Mr. Nahdee has attended residential treatment for alcohol related issues at Rainbow Lodge on Manitoulin Island. He did this in July of 2013. He also attended for trauma and grief counselling with Cindy Shrigley. Whereas he admits that he never really believed in personal counselling previously, after having attended with Ms. Shrigley, he now does. I accept his comments in this regard to be sincere. Mr. Nahdee has performed numerous jobs and tasks for Stephen Smith’s parents, doing things that he believes Stephen Smith would have done if he was still alive.

While he cannot replace his friend, he has done what he can to assist Mr. Smith’s family. He has taken the death of his very close friend quite hard, as he should. He feels a great deal of remorse. Mr. Nahdee expresses a desire to go back to school and receive training to become an addictions counsellor. He would like to assist the M.A.D.D. organization (Mothers Against Drunk Driving). In his words, he wants to do this “to tell what happened to stop someone else. I don’t want his memory to go in vain”.

The immediate family of Mr. Smith and the Walpole Island community have offered up a great deal of support for Mr. Nahdee. This is significant because these persons represent the immediate community of both the deceased and the individual whose actions caused Mr. Smith’s untimely death. Mr. Creed noted that when discussing the imposition of a custodial sentence with Mr. Smith’s family that “they wanted no part of it and they made that very clear”. In other words, the family of the deceased was not in support of Mr. Nahdee receiving a jail sentence.

The Crown was actually “somewhat taken aback” by what he characterized as their “very reasonable and forgiving position”. In the letter from the Smith family, they confirm that they would like to see a house arrest type of sentence but realize that this disposition is not available to the court. As they put it, “we are hoping for a reasonable sentencing for this matter we can all live with.” The other letters filed in support of Mr. Nahdee come from his cousin and from a friend. They describe Mr.

Nahdee as otherwise being a person of good character; a person who is willing to help others and who has remained sober since this tragic incident occurred. The Appropriate Sentence: Mr. Nahdee made a conscious decision on the evening of September 14, 2012, to consume alcohol and party with his friends. His consumption of alcohol continued to the point where in the early morning hours of September 15th, he continued to drink beer and smoke marijuana with his friends as they made that fateful drive along Highway 40 which resulted in the death of his close childhood friend. Although encouraged by others, it was Mr.

Nahdee’s decision to drive. He alone is forever responsible for the consequences of that decision. Mr. Nahdee registered a blood alcohol level of 129 and 134 millilitres of alcohol per 100 millilitres of blood. He was impaired. He was not speeding, but he did not pay attention to the change in the roadway or the stop sign at the end of the roadway. His actions resulted in the death of his childhood friend. From a sentencing perspective, this is the single “aggravating” circumstance – driving while impaired and causing the death of another person. It is a significant aggravating factor. It is also the only one.

Defence counsel has referred the court to the Yukon trial court decision of R. v. Lommerse , [2013] Y.J.N. 44 (Yukon Territorial Court). In that case and at paragraph 77, the court outlined a number of mitigating factors which were present in that case, one of impaired driving causing bodily harm. Those factors were:

a) The accused’s youth (he was 21);

b) His lack of a prior criminal history;

c) His guilty plea;

d) His remorse and acceptance of responsibility;

e) His low level of problems related to alcohol and drug use;

f) His low risk of re-offending;

g) His post-offence steps to take counselling through Alcohol and Drug Services. Defence counsel submits that a number of mitigating factors are present in this case. The Crown agrees. I accept this submission. Mr. Nahdee is neither young nor old, so I do not necessarily see this as being a mitigating factor. At most, his age can be categorized as a “neutral” factor as far as sentencing is concerned. Mr. Nahdee has no criminal record. Mr. Nahdee entered a guilty plea. This case was never set for trial or intended to proceed to trial. It was always intended that this matter would resolve by way of a guilty plea.

It has been the subject of numerous pre-trial discussions. One of the most significant mitigating factors in this case is Mr. Nahdee’s extreme demonstration of remorse. Mr. Nahdee began demonstrating this remorse immediately after the accident when he began to administer aid to his dying friend until the time that the medical personnel arrived at the scene.

Unfortunately, as defence counsel has pointed out, it didn’t save Mr. Smith from the consequences of Mr. Nahdee’s driving. Mr. Nahdee has continued to demonstrate his remorse up until this very day, as evidenced by the facts read in to the record, the contentsof the Gladue report, and the letters of family and friends. I have also made my own personal observations of Mr. Nahdee on each and every court attendance before me leading up to andincluding this day. He has always presented as remorseful. I have also heard his words today.

I have no reason to believe that Mr.Nahdee is anything but genuinely remorseful for his actions. He has fully and without qualification accepted responsibility for hisactions. Based on the submissions of counsel but primarily on the contents of the Gladue report, I am of the belief that Mr. Nahdee is at low riskof re-offending. That is not to say that his problems with alcohol are over – because they are not – but I believe that Mr. Nahdee hasbeen greatly impacted by the events of September 15, 2012 and is not likely to repeat them.

He genuinely appears to have beendevastated by his irresponsible actions which resulted in the death of his close friend. He has not consumed alcohol or drugs since theaccident. There are no reports of any prior drinking and driving occurrences. He has attended for residential treatment for alcohol and realizes he needs more help in that regard. He has also attended for personalcounselling in relation to issues arising out of the accident. I therefore find that he has taken the type of post-offence steps outlined in the R. v. Lommerse decision.

Lastly, defence counsel has submitted that another factor which brings Mr. Nahdee’s case into the “exceptional” catagory, is theresponse from the “local community”. In R. v. Martin, [2013] O.J. No. 2469 (O.C.J.), a case of multiple counts of impaired driving causing death and causing bodily harm,Justice Thibideau of this court cited the Ontario Court of Appeal decision in R. v. Bush, 2012 ONCA 743, approving R. v. L. (ON CA).

He said at paragraph 42: The even more specific community is the area of Southwestern Ontario comprising Brantford, the County of Brant, the Six NationsTerritory, and the New Credit lands, along with the adjoining jurisdictions like Simcoe and Haldimand. In this particular case the peopleinvolved were native persons and part of the native community. All of the offences took place on the Six Nations Territory. The peoplemost affected by what has occurred are the family and friends, and the Six Nations community.

Focus on such a restricted community bygeographical area and community is encouraged by the courts in order to take note of the protection needs and the uniqueness of thelocal community. Having said this it is acknowledged that with respect to drinking and driving offences sentences should be driven bythe almost infinite variety of circumstances in which these offences can be committed. That is why the sentencing judge represents andspeaks for the community that suffers the consequences of the crime in a way that the Court of Appeal does not, being removed fromthat community.

The persons involved in this case are all native persons. In this case, Mr. Nahdee’s community has been very vocal. Those who havebeen affected most in that community are the family of Stephen Smith. They have suffered the greatest loss and they will continue tosuffer this loss each day for the rest of their lives. A letter from the family dated January 9, 2014 was submitted to the court for consideration on January 10, 2014, the day of thesentencing submissions. I believe that it is important that I now read this letter into the record. It reads: “From the family of Stephen K. Smith. To whom it may concern.

My name is Ellery K. Smith, father of the late Stephen Smith. We are asked for a brief written letter in response to Mr. Paul Nahdee’ssentencing. We are not a Judgemental people. We had a meeting with the Crown to discuss the actions of Mr. Paul Nahdee. We did not see eye to eye with the Crown. Our suggestion was for Mr. Nahdee to be in a house arrest situation, but have been told a Law

has been broken and Time is mandatory. My wife Karen and children have known Paul Nahdee as Stephen’s close friend. We are hoping for a reasonable sentencing for this matter we can all live with. Our son Stephen is deeply missed by his family, friends and community. Dated this day of January 9 th , 2014. Ellery Smith & Family.” A Victim Impact Statement dated March 24, 2013 from Mr. Smith’s family was also filed today with the court. It is similar in nature and content to the January 9, 2014 letter.

These documents are significant because they reflect the views of the most immediate community, the family of the deceased. These persons are the ones who have been most impacted by the actions of Mr. Nahdee. Their wishes are clear. Their wishes deserve to be both considered and to the extent in law possible, respected. I find the strong personal wishes of Mr. Smith’s family to be a further mitigating factor for the court to consider in determining an appropriate sentence. It is also something to be considered when assessing the “uniqueness” of this case. As I have previously pointed out, Mr.

Creed himself acknowledged in his submissions that he was somewhat taken aback by the supportive and very reasonable and forgiving position of the family. The other two letters of support which are also from Mr. Nahdee’s community (a cousin and a friend) also reflect a supportive tone. The same can be said of the contents of the Gladue report. I therefore cannot ignore the significance of the position of the local community. And, as previously referenced in the excerpt from R. v.

Martin , supra, I as the sentencing judge am expected to represent and speak for the community that has been left to shoulder the consequences of the actions of Mr. Nahdee. In

summary and in conclusion, I do not find the proposed sentence to be unfit or unreasonable or contrary to the public interest. Mr. Nahdee, I am going to get you to stand please sir. For the foregoing reasons and based on the facts in this case, the circumstances of you, the individual and all of the factors set out in

Section 718 of the Criminal Code , I am of the view that the primary objectives of denunciation and deterrence can be satisfied by imposing the sentence suggested by defence counsel, and not necessarily opposed by the Crown. I find this to be the “unique” type of case which enables the Court to impose a sentence which falls outside the “ordinary range”.

Furthermore, given the Crown’s concession or rather acknowledgment that there exists the basis for the court to find certain extenuating or special circumstances, and my finding of the same, this sentencing has to some extent proceeded as what might be characterized as a “joint submission” although it is not a joint submission per se. Mr. Nahdee, your actions have had a devastating and permanent impact on the family of Stephen Smith. Your actions have not only impacted them, but also yourself as well as your community and all the people who knew Stephen Smith. All of your lives have been forever changed.

For your actions, you must be separated from society. You are hereby sentenced to a period of custody of 18 months. I strongly encourage you to take advantage of the rehabilitation programs available to you while serving your time in jail. The victim fine surcharge is waived. Following your period of custody, you will be placed on probation for a period of three years. The terms are: (

i) Keep the peace and be of good behaviour. (ii) Appear before the court when required to do so by the court. (iii) Notify the court or probation officer in advance of any change of name or address. (iv) Promptly notify the court or the probation officer of any change of employment or occupation and in addition: (

a) Report upon your release from custody in person to a probation officer as directed and thereafter, and be under the supervision of a

probation officer or a person authorized by the probation officer to assist in your supervision, and report at such times and places as that person may require. (

b) Remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the probation officer. (

c) Attend for assessment and actively participate in and complete such counselling, or rehabilitative program as recommended by your probation officer which may include counselling for alcohol abuse and substance abuse. (

d) Maintain a curfew as set in writing for the first twelve months of your probation by your probation officer and present yourself in person to any peace officer, probation officer or designate, who may attend the residence to verify compliance with this condition. (

e) Reside where directed by your probation officer and not change that address without the prior written permission of your probation officer or further order of this court. (

f) You will execute any consents to the release of information requested by your probation officer. (

g) Re-attend Rainbow Lodge or another similar residential treatment facility for alcohol and substance abuse related issues as directed by your probation officer. (

h) Re-attend for personal counselling with Cindy Shrigley. (

i) Attend for counselling through Addictive Services on Walpole Island for alcohol and substance abuse. (

j) Attend A.A. meetings offered on Walpole Island or in Wallaceburg, Ontario. (

k) Participate in the Red Path Program offered on Walpole Island. (

l) Volunteer to speak at schools about the dangers of drinking and driving if and as directed by your probation officer. (

m) Lastly, you are not to be found in the driver’s seat of any motor vehicle. The issue of a driving prohibition was previously addressed on October 25, 2013 when a finding of guilt was made. The length of the prohibition imposed was two years. Mr. Nahdee, good luck to you in your efforts to maintain your sobriety. To the family of Stephen Smith I can only express the court’s profound sorrow for your loss. I want to thank them for their active participation in this most difficult matter. I lastly want to thank counsel for their helpful submissions and especially Mr.

Henderson for the case law briefs which were submitted in support thereof. MR. HENDERSON: Your Honour, I would ask that you make a recommendation that he take treatment while he’s in custody at a facility that provides aboriginal components to the treatment. At this point in time I’m not sure whether there is one that’s close at hand, but I have been told that Windsor may be able to have that available in the near future. So the closer the better to the home so that his family and his support can still be continued throughout his period of incarceration.

THE COURT: So you’re looking for the court to make a recommendation that he serve his time in an institution which offers counselling for alcohol and substance abuse issues specifically to aboriginal persons. MR. HENDERSON: Yes, and there are programs that are farther north that deal specifically only with aboriginals, but he would like, if possible, to stay closer to home. Right now I’m not aware of any that are directly in this community. But that’s my request, that it be as close to home as possible.

THE COURT: Okay, so I just made my earlier comments that that endorsement will be made and the request also is that if at all possible that he attend at an institution that is closer to home that would allow for him to attend and follow through with those services. MR. HENDERSON: Thank you. THE COURT: Okay, anything further counsel? MR. CREED: No sir, well DNA, was that originally, I don’t think we dealt with the first day. THE COURT: I don’t believe that there was any discussion. Mr. Henderson? MR. HENDERSON: There was none. MR. CREED: I believe this is a primary offence. MR. HENDERSON: I believe it is too.

THE COURT: Would expect that it would be. MR. HENDERSON: Can my client have a seat now Your Honour? THE COURT: Actually, on my list I do not see that it is. Just give me a moment. MR. HENDERSON: It wasn’t, Your Honour, but I thought there were amendments that were made with the Conservative Bill. THE COURT: Well, I am just looking at the grid. What I see right now is there is a

Section 109, mandatory firearms order and that this may actually be a secondary designated offence. Now I stand to be corrected by counsel, but I think that we should determine that. Mr. Creed, do counsel have their Codes? MR. CREED: Unfortunately, sir, I don’t think either one of us have today. THE COURT: I am looking at the 2014 Martins. MR. HENDERSON: Well, if it is a secondary offence I did speak to my client about this and there was an anticipation, I can only put it that way, that there would be an order. THE COURT: Okay. Well this is a secondary offence for the purposes of the DNA legislation so you will be required to provide a sample of your DNA. Also, there will be a

Section 109 mandatory firearms order in place for a period of 10 years. MR. CREED: Thank you sir. ********** form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I, Annette Duquette , (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. v. P. Nahdee in the Ontario Court of Justice (Name of Case) (Name of Court) held at Chatham, Ontario (Court Address) taken from Recording 1611_CR101_20140314_093825__6_KOWALYP.dcr , which has been certified in Form 1. March 25, 2014 “Annette Duquette” (Date) (Signature of Authorized Person(s))