Whitehorse Daily Star

Man forced girl to stay in his house

A local man who had turned his life around in the early 1990s has told Yukon Supreme Court Justice Leigh Gower he wants to get back to the path he was on.

By Whitehorse Star on June 14, 2007

A local man who had turned his life around in the early 1990s has told Yukon Supreme Court Justice Leigh Gower he wants to get back to the path he was on.

Gary Smarch pleaded guilty Thursday morning to assault. This followed an earlier guilty plea to a forcible confinement charge stemming from the same matter.

In a lengthy apology to his victim, Smarch told the court he hadn't wanted the girl he had confined to his home to take the same route he had taken earlier in his life when he used drugs and alcohol.

'I don't want people to go down the same path,' he said.

The charges date back to November 2005 when a teenaged neighbour came over to his house around midnight after she had fought with her boyfriend, the court heard in the agreed statement of facts presented by Crown prosecutor David McWhinnie.

Not long after she arrived at the house, she went into Smarch's room looking for cigarette papers.

There, she told police in her statement, Smarch grabbed her, saying she was beautiful.

'She immediately told him to stop,' McWhinnie said.

Smarch was angry and though he desisted, he became physically violent, throwing her to the bed and holding her there by her neck.

She was held at the home against her will until 4 p.m. the following day.

Over the approximately 16-hour period, he told her he had killed someone, asking her if she wanted to end up in the river or the mountains, the court heard.

At one point, when she had to use the washroom, he initially wouldn't let her go. Eventually he relented but went with her. She persuaded him to leave, but he stood in the living room and she couldn't get out.

The teenager was able to leave at one point when Smarch was in the bathroom, but only got as far as his truck when he grabbed her and threw her against the vehicle before taking her back in and warning her not to try it again or it could be worse next time, McWhinnie said.

Over the course of the night, she slept in the same bed as Smarch with Smarch holding onto her.

She was finally able to convince him to take her downtown to pick up some items at Shoppers. He remained in the vehicle while she went into the Main Street store, but told her that if she tried to run he would find her and it would be worse, McWhinnie said.

The girl was able to take a side door out of the shop and run to the Elijah Smith Building across the street. She ran through there and over to the Blue Feather Youth Centre and spent the next day or two with friends before she decided to report her experience to the RCMP.

When police executed a search warrant on his place, they found her backpack there that she said she had taken over.

Bruising and injuries noted by police were also consistent with the altercations she described, McWhinnie said.

While Smarch's lawyer, Nils Clarke, acknowledged the facts were admitted to the court, he noted that his client did not go after the victim after she got away and has had no contact with her since.

Smarch also was trying to scare the girl 'straight' as she and her boyfriend were both addicted to crack cocaine.

'Obviously, it went completely off the rails,' Clarke later noted.

While both the Crown and defence supported a sentence of jail time, followed by a conditional sentence period and finally a probation term, McWhinnie proposed it be a lengthier sentence than Clarke did.

McWhinnie suggested 10 to 12 months in custody, another 10 to 12 months to be served as a conditional sentence and finally two years' probation.

'Denunciation and deterrence are key elements that have to be considered in these cases,' McWhinnie said in pointing to case law.

While the teenager doesn't have ongoing medical problems from the incident, according to staff at the Blue Feather, she has relapsed into more drug and alcohol use following the incident, McWhinnie said.

The pre-sentence report points to Smarch's life since the 1990s when he turned his life around from crime.

Since then, he has been involved with the Kwanlin Dun First Nation justice organization and has been held up as an example of someone who made positive changes in his life, McWhinnie said.

The Crown prosecutor argued though that a particularly aggravating factor was Smarch's comment that he had killed someone before, knowing that he had been convicted of manslaughter. The teenager didn't know he had been convicted of that, McWhinnie said.

Clarke suggested a sentence that would see Smarch serve six months in jail, six months as a conditional sentence and 18 months' probation. He also pointed to previous cases.

He also noted Smarch's turn-around in the early 1990s and said his client entered a guilty plea, accepting responsibility for his actions.

His client, he noted, is also a former student of the Lower Post, B.C. residential school, a fact his mother, Sophie, one of a number of supporters who went to Smarch's hearing, stressed as she addressed the court following Smarch's address.

'The boarding school didn't help anything,' she said, recalling that to the family, never having had an opportunity to get an education, the school seemed like a blessing when it came along.

It was unknown what was happening behind closed doors, she said.

'That really put a bad mark on our family,' she said, adding her children don't know their culture that was taken from them and don't seem interested in learning about it.

Her son has helped people from all walks of life and is trying hard to lead a good life, she said in asking Gower not to deliver a harsh sentence.

A number of education certificates and documents for Smarch were also presented to the court.

The Supreme Court judge will deliver his sentence on July 18.

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