The force used in defending yourself must be proportionate to the threat faced, a Yellowknife judge said in sentencing a man to a year’s jail time over an altercation on Prelude Lake.
Daniel Hache admitted he had gone too far in cracking open a man’s head with a cast-iron cooking utensil, pleading guilty to assault causing bodily harm.
The 23-year-old received a 12-month sentence and an order to pay $7,884 in restitution for various bills incurred by Michael Zemnicky – the man he struck, who has permanent brain damage as a result.
“This sentence will be viewed as unusually harsh by some and not harsh enough by others,” NWT Supreme Court Chief Justice Louise Charbonneau said in delivering her “extremely difficult” decision on Tuesday morning.
“This was an extremely serious act, both the type of weapon used and the part of the body it struck … as serious as if he picked up a knife or an axe,” the judge continued.
“In law, you can defend yourself … the force used [was] not proportionate.”
Zemnicky’s life will never be the same after the incident, which took place on a Prelude Lake island on June 20, 2017.
Asleep after an evening of drinking, Zemnicky was woken by the sound of his female partner yelling at Hache, the court heard.
He grabbed her roughly, struck her at least once, and told her to be quiet.
Hache then yelled at Zemnicky to stop being physical with the woman.
Zemnicky confronted Hache, engaging in a “brief physical confrontation.” Hache grabbed a heavy, metal pie iron near the firepit and struck Zemnicky in the head, causing the man to fall, striking his head on a rock, the court heard.
Court records show Hache called Yellowknife RCMP and frantically pleaded for help. He spoke with an operator several times while trying to bandage Zemnicky’s head injury.
Zemnicky, a 38-year-old father of two, now lives with family in Ontario. He has a hole in his skull as he awaits surgery to place a titanium mesh over his exposed brain.
His speech is impaired, he has numbness to the right side of his body, ringing in his ears, and he suffers seizures that have damaged his heart, the court heard.
“His prospects for being able to work in the future are uncertain,” said Charbonneau, describing the impact on Zemnicky and his family as “catastrophic, life-changing, and permanent.”
Hache had originally been charged with aggravated assault but agreed to a lesser charge after a preliminary hearing.
At a sentencing hearing on July 5, Crown prosecutor Morgan Fane called for a sentence of 18 months in jail with a restitution order. Defence lawyer Thomas Boyd, noting his client is a first-time offender, called for a conditional sentence – also known as house arrest – as Hache poses no threat to the public and wants to start working and eventually return to school.
On Tuesday, Charbonneau decided a conditional sentence wasn’t appropriate in Hache’s case, in part as she needed to send a strong message denouncing the use of disproportionate force.
She also noted while Hache had sounded distressed when calling police – and that there is no suggestion he is a violent person – he chose not to say anything when asked at the sentencing hearing earlier this month.
“While that is his right … I find it troubling,” she said, noting his pre-sentence report also indicated he “didn’t want to apologize, because he is afraid it would be insincere.”
Outside court, prosecutor Fane told reporters when it comes to self-defence, “it ultimately comes down to, ‘Are you using reasonable force in the circumstances?’ You have to consider what it is that a reasonable person would do.”