Court File No. 15-4920
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
CHRISTINA NOUDGA
R E A S O N S F O R
S E N T E N C E
BEFORE THE HONOURABLE JUSTICE A. SKARICA
on November 22, 2016, at HAMILTON, Ontario
APPEARANCES:
C. Fraser and B. Moodie Counsel for the Crown
B. Greenspan and N. Lutes Counsel for Christina Noudga
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES
Exam.
in-Ch.
Cr-
exam.
Re-
exam.
Reasons for Sentence 1
EXHIBITS
Exhibit Number Entered on Page
Legend
[sic] indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) indicates preceding word has been spelled phonetically
All spellings of names are transcribed as set out in the reporter's notes unless noted with a (ph)
Transcript Ordered....................... November 22, 2016
Transcript Completed..................... December 15, 2016
Ordering Party Notified..................
TUESDAY, NOVEMBER 22, 2016
R E A S O N S F O R S E N T E N C E
SKARICA, J. (Orally):
The accused has pleaded guilty to one count of obstruct justice by destroying evidence of a crime. There is a joint submission before me tendered by very senior and highly skilled counsel on behalf of both the Crown and the defence. In addition, I am considering that the Bosma family fully supports this resolution as they wish to end this terrible tragedy that they have been dealing with for many years.
In addition to the joint submission, I have considered the principles of sentencing as outlined in Section 718 and 718.1. Section 718.2 of the Criminal Code requires me to consider aggravating and mitigating factors.
Obstructing justice is always a serious offence. A significant mitigating factor here is the guilty plea entered by the accused, particularly since it has prevented the Bosma family, as I understood the trial was going to last several weeks, from having to relive this terrible tragedy once again.
As well, on the facts before me, as agreed to by the accused and as tendered by the Crown, I would
find, independently, that there would be insufficient evidence that would prove beyond a reasonable doubt, that would establish that the accused knew about the murder that had just occurred.
The accused has no record. Mitigating as well, are the prior limitations on the accused's freedom, which I understand, are in two categories:
She has served four months of pretrial custody and given the law, that would be equivalent to a six-month jail sentence.
She has spent 2.3 years, by my calculation, on house arrest with approximately 10 months wearing an ankle bracelet.
The Ontario Court of Appeal in R. v. Downes 2006 3957 (ON CA), [2006] O.J. No. 555, at paragraph 29 has indicated that, "House arrest is a form of punishment, albeit of a different character then actual incarceration."
The Court of Appeal at paragraph 33 indicates "That house arrest must be taken into account as a relevant mitigating circumstance."
In the Downes case, 18 months was spent by the accused, on bail, under house arrest, and the Court of Appeal allowed for a credit of five months. The Court of Appeal indicated in Downes that there was no rigid formula in arriving at the
conclusion that five months was an appropriate amount of credit for the 18 months of house arrest.
In this case the accused spent approximately 2.3 years in house arrest with 10 months wearing an electronic monitor. Based on the Downes case, I believe that a minimum fair credit will be a credit for six months.
Accordingly, under the law, the accused has already spent one year in custody and I would give her a one-year credit, given the pretrial custody and house arrest.
In those circumstances, I believe an appropriate range of sentence would be a one-day sentence and that one-day sentence is well within the range of sentences, given the facts and the prior limitations on her freedom.
The sentence will be one-day after giving credit for one-year pretrial custody and house arrest credits. There will be an order for DNA pursuant to Section 487.051(3). This is a secondary designated offence. In my opinion, it is in the best interest in the administration of justice to make that order.
Ms. Noudga, the lesson for you, I believe, and for all young people, is you learn in life that when you keep company with bad people, and these people
were beyond bad, they were evil, that when you keep company with people like that, bad things happen to you. The corollary is that, if you keep company with good people, good things happen to you and I hope you conduct your future life in that way.
The sentence is one-day. You can go into custody briefly and then go out.
Ms. Noudga, you will have to stay just to get the DNA taken, that will be done today. All right, Ms. Noudga, you can just then go out of custody and then you will have to stay with the police to take the DNA, that will be done in this courthouse today. You will then be free to go on with your life and, hopefully, we will not see you again.
I would like to thank counsel for their excellent submissions and as indicated, I know all of you from prior experiences and you are most competent and skilled and this is a fair resolution, I understand, for everyone.
MR. GREENSPAN: Thank you.
MR. FRASER: Thank you, Your Honour.
There is a prior indictment, I am assuming the Crown's withdrawing that charge?
MR. FRASER: Yes, we are, Your Honour. I can endorse that, if necessary.
THE COURT: I can do it, to save time.
MR. FRASER: Thank you.
MR. GREENSPAN: Thank you.
MR. FRASER: Better you.
THE COURT: If you can just give me the indictment, I can do it. I have endorsed the indictment as follows:
Upon arraignment, the accused is found guilty as charged. The accused is sentenced to one-day incarceration (credit given for one-year pretrial custody and house arrest). Order given for a DNA sample pursuant to Section 487.051(3), secondary designated offence, to be provided by the accused forthwith in this courthouse.
MR. GREENSPAN: Thank you.
THE COURT: Anything else?
MR. FRASER: Nothing, Your Honour, thank you.
THE COURT: Thank you very much.