Joint submission scrutinized in NWT Supreme Court ruling

In a “highly exceptional” case, an NWT man on house arrest for sexual assault will not face jail time for breaching court-ordered conditions.

The man’s original sentence involved a joint submission, where the Crown and defence jointly present a desired sentence to the judge for consideration, often the result of a plea agreement.

Sometimes, joint submissions test the boundaries of what judges appear willing to accept – but a 2016 Supreme Court of Canada decision is widely interpreted as having made joint submissions difficult for sentencing judges to reject.

In this instance, Nelson Lesage, who lives in Fort Providence, was given a conditional sentence in July 2024 of two years less a day for one charge of sexual assault.

Since then, he has been living under conditions including that he be on house arrest for the first 16 months of his sentence and abstain from alcohol and drugs.

On October 12, 2025, RCMP in Fort Providence received a call that Lesage was passed out at another person’s home in the community. Police found Lesage, who later admitted to drinking alcohol, asleep in a chair in the home and arrested him.

In a written decision issued last week, NWT Supreme Court Justice Louise Charbonneau said while the Crown and defence lawyers’ joint suggestion that Lesage not face jail time for the breach was “extremely lenient,” she ultimately agreed.

“This is a highly exceptional outcome in a situation like this, which was driven by exceptional circumstances,” she wrote, adding that any further breaches would likely lead to Lesage being incarcerated.

Charbonneau said the court’s response to any breach of conditions “must reflect the specific circumstances of each case” and is “a highly individualized and discretionary decision.”

Prosecutor Angie Paquin told Cabin Radio the Crown took the position that the circumstances surrounding Lesage and the breach were “exceptional” – and Charbonneau agreed.

Peter Adourian, the defence lawyer who represented Lesage at the breach hearing, told Cabin Radio he was unable to comment on the case.

Why the judge agreed

According to Charbonneau’s decision, Lesage had learned his mother-in-law, to whom he was close, was terminally ill. He went to the Fort Providence home of some relatives of his mother-in-law to seek comfort and be with family.

Lesage acknowledged he should have contacted his conditional sentence supervisor to get permission to leave his home. He said he turned to alcohol to cope with his emotions.

Lesage’s mother-in-law passed away while he was in custody. Charbonneau said he was unable to be with his mother-in-law and family during her final days and the days following her passing.

“This constitutes punishment in and of itself,” she wrote.

Charbonneau said while “by and large” Lesage has done well on house arrest, this is not the first time he has broken conditions of his sentence. In May 2025, he received a warning and was required to more frequently report to a supervisor after he attended a house party where alcohol was consumed.

Charbonneau said it is “not surprising” there have been some issues as Lesage struggles with alcohol addiction and has a traumatic background, including witnessing the death of his father at the hands of his mother.

The judge said, however, that Lesage was given “a huge break” in being sentenced to house arrest. She said offenders on conditional sentences for serious sexual assault should expect to be incarcerated if they fail to comply with conditions.

“This is especially so where, as here, the person has already been given a chance and a warning following compliance issues,” she said.

She added that meaningful consequences for breaches are “essential to ensure the effectiveness” of conditional sentences as well as public confidence.

Yet Charbonneau acknowledged that requiring Lesage to serve some of the remainder of his sentence in jail would probably prevent him from attending his mother-in-law’s funeral. She concluded that would have been “disproportionate and cruel.”

Earlier, another judge had been skeptical

In her decision, Charbonneau noted a conditional sentence is “rarely appropriate” in cases involving serious sexual assaults and is outside the range of what is normally imposed by the NWT Supreme Court.

She added that sentencing judges “constantly battle” with balancing the tragic backgrounds of offenders and the harm they inflict on others, who have often also been exposed to trauma and hardships.

“This is why, no matter how sympathetic an offender’s background may be, serious sexual offences are met with a stern response by this court,” she wrote.

Lesage had pleaded guilty in March 2024 to sexually assaulting a woman while she was sleeping in a bedroom in his home with her partner.

He had initially accused another person of sexually assaulting the woman but DNA extracted from semen on her clothing matched Lesage.

In a presentencing report, Lesage took full responsibility for his actions and connected them to alcohol addiction and unresolved childhood trauma.

The author of the presentencing report said they believed Lesage could be managed in the community.

Lesage has a lengthy prior criminal record, including a 1995 conviction for break and enter and commit sexual assault.

In June 2024, NWT Supreme Court Justice Shannon Smallwood gave Lesage a conditional sentence of two years less a day followed by two years’ probation for the sexual assault charge.

That sentence had been recommended in a joint submission from Crown lawyer Michael Ellison and defence lawyer Alyssa Peeler – one with which Smallwood appeared to struggle.

While Smallwood said she did not feel the proposed sentence was appropriate for the crime and was on the low end of the range of possible sentences, her discretion to depart from a joint submission was “extremely limited.”

A 2016 Supreme Court of Canada decision, R v Anthony-Cook, requires that judges not depart from joint sentencing submissions “unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.”

Smallwood concluded the proposed sentence in Lesage’s case did not meet that high standard.

Smallwood further ordered Lesage to appear on the national sex offender registry for 20 years and prohibited him from possessing firearms.

The Crown filed an appeal arguing the judge had erred in not imposing a lifetime sex offender registration order, but later abandoned that appeal.

Crown lawyer Paquin told Cabin Radio the prosecution had taken “a reasonable position” on Lesage’s sentence that “considered the overall circumstances.”

“While the sentencing judge may have scrutinized the joint position, she ultimately accepted it,” she said.

Paquin further pointed to a section of the Anthony-Cook decision that states, when properly conducted, plea resolutions “benefit not only the accused, but also victims, witnesses, counsel, and the administration of justice generally”.

“It provides certainty of outcome,” Paquin said.

“It gives an opportunity for the accused to acknowledge their responsibility and apologize to the victim, which often helps in their healing process. It spares the victim the stress of having to testify.”

Peeler and Ellison did not respond to Cabin Radio’s requests for comment.

Judges as ‘rubber stamps’

There have been other cases in the NWT where judges have imposed joint sentencing submissions despite disagreeing with them.

Donovan Molloy, a controversial former territorial court judge who resigned ahead of a misconduct hearing in 2023, was known for being outspoken about his dissatisfaction with joint submissions. (In an email after this article was first published, Molloy said he had retired from the bench due to ill health.)

In 2020, he said he felt a jointly recommended conditional sentence for an arson by negligence conviction was “unfit,” but added he had little discretion to impose a harsher sentence.

In disagreeing with a sentencing recommendation in another case involving intimate partner violence in 2022, which he ultimately imposed, Molloy said decisions of other courts regarding joint submissions had essentially turned sentencing judges “into rubber stamps.”

In 2021, Molloy rejected a joint recommendation on sentencing in another case involving intimate partner violence.