A Territorial Court judge blasted a Crown prosecutor and defence lawyer as he begrudgingly accepted a “demonstrably unfit” joint sentence recommendation for a man with a lengthy record of violence against women.
Judge Donovan Molloy said judges have a lack of freedom to reject joint submissions, in which the Crown and accused agree on a sentence – often involving a plea deal that negates the need for a trial.
Molloy cited what he considers a restrictive precedent set by the Supreme Court of Canada in 2016, in a case called R v Anthony-Cook.
“This legal threshold to depart from a joint submission is sufficiently high that I conclude that I must accept the joint submission made here by Crown and defence,” Molloy said in court on Friday.
“I therefore must impose a sentence … that is demonstrably unfit and fails to recognize the danger [the defendant] poses to his current or prospective intimate partners. The sentence is also inadequate in effecting general deterrence.”
Molloy said the Anthony-Cook case “mandates that judges not interfere with a joint submission unless it is so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of the relevant circumstances … to believe that the proper functioning of the justice system has broken down.”
Molloy made his comments while sentencing Daniel Eddy Lucas, 50, for one count of assault on an “intimate partner” in January, one count of assault causing bodily harm on another intimate partner in February, and one count of assault causing bodily harm in March on the same woman he assaulted two months earlier.
The court heard he had assaulted one woman on nine separate occasions over the years.
Lucas has a lengthy criminal record – 66 entries with 17 convictions of violence. Those include two convictions for assaulting a peace officer.
The joint submission recommended a total of 181 days in jail, less a remand credit of 100 days – granting a 1.5-to-one credit for his 67 days in pre-trial custody – with a period of probation to follow.
Lucas already has a firearms prohibition until 2027.
Woman describes night terrors
This section of the report contains descriptions of physical assaults that some readers may find disturbing.
The court heard that on January 4, Lucas assaulted his intimate partner when “he became upset with her while they were consuming alcohol and proceeded to grab her by the face and forcefully squeeze her face.”
On February 29, Lucas committed an assault causing bodily harm on an intimate partner when “he became upset with her while they were consuming alcohol and threw her to the ground upon which he punched her in the head and her eye, causing significant soreness and bruising.”
On March 3, Lucas committed assault causing bodily harm on the same woman from January, when “he became upset with her while they were consuming alcohol because she wanted to go to sleep.”
Lucas punched the woman in the head “and tore a significant chunk of hair from her scalp.”
At the time of the March assault, Lucas was under a court order prohibiting him from any contact or communication with the woman.
In her victim impact statement, the woman – who has children with Lucas, some now in foster care – stated the continued violence has left her with night terrors and other fears.
‘Repeated omissions’ regarding Indigeneity
Molloy noted the Crown could not say whether either of the women were Indigenous.
This is important information for a judge to have, said Molloy, as the Criminal Code mandates courts give particular attention to the circumstances of Indigenous offenders under what are called Gladue factors. Since last September, courts are also mandated to give particular attention to the circumstances of Indigenous women who experience intimate partner violence.
“Intimate partner violence is a scourge across Canada and in particular in the Northwest Territories,” said Molloy.
“In this jurisdiction, sentencing for these offences is more complicated when both offender and victim are Indigenous persons.
“Besides the legal issues, as a matter of practicality, repeated omissions by the Crown to speak to whether a victim of intimate partner violence is Indigenous, and its frequent unpreparedness to advise if prior convictions for violence involved intimate partners, significantly detract from the ability of this court to impose sentences that give effect to Parliament’s intentions as reflected in the recent amendments to the Criminal Code.
“These omissions are of concern given that they have been raised [on the Court record] numerous times in the recent past with respect to the Crown’s sentencing submissions in cases involving violence against intimate partners.”
Molloy said “it would strain credulity” to believe the Crown considered these sections of the Criminal Code when it formulated its sentencing position as it had no information regarding the ancestry of the women.
Molloy noted the Crown or defence failed to provide case law or other sentencing authorities to support their joint submission.
“It is not as if no relevant authorities exist,” said Molloy.
“A cursory search yielded three authorities from the Supreme Court of the Northwest Territories that support the conclusion that the joint submission is demonstrably unfit.”
The court heard both of Lucas’ parents were victimized by Canada’s residential school system. Lucas’ childhood involved substantial exposure to alcohol abuse in his home and he frequently witnessing the abuse of his mother by his father.
Lucas suffers from alcoholism and wants to get treatment.
Molloy sentenced Lucas as follows:
- For the January assault: one day of imprisonment (to be served consecutively).
- For the February assault causing bodily harm: 60 days’ imprisonment (to be served consecutively).
- For the March assault causing bodily harm: 120 days’ imprisonment (to be served consecutively).
- For breaching the court’s no-contact order: 30 days’ imprisonment (to be served concurrently).
When he is released, Lucas will be on an 18-month probation order. As the joint recommendation did not detail any requirements for the probation period, Molloy exercised some “judicial discretion.”
In addition to the normal requirements, including to take addiction counselling, Lucas will have to:
- abstain from being under the influence of alcohol to any degree in the presence of his minor children or any current or former spouse, common-law partner, or dating partner;
- notify his probation officer prior to entering any new relationship with any intimate partner or resuming a relationship with any prior intimate partner;
- have no contact or communication with the mother of his children, except with permission from his probation officer to visit children; and
- have no contact or communication with the second woman.
Lucas must also perform 100 hours of community service.