Whitehorse Daily Star

You crossed the line, judge tells offender

A local man will spend more than three years of his life under court orders following a sentencing by Yukon Supreme Court Justice Leigh Gower on Wednesday.

By Whitehorse Star on July 18, 2007

A local man will spend more than three years of his life under court orders following a sentencing by Yukon Supreme Court Justice Leigh Gower on Wednesday.

Gary Smarch was sentenced to eight months in jail for forcible confinement and another six-month conditional term (where the jail time is served in the community under a number of conditions) for assault.

That will be followed by a two-year probation term for both offences.

Smarch entered guilty pleas earlier to the two charges which date back to November 2005, when he kept a teenaged girl in his house for about 16 hours.

The next-door neighbour, who thought of Smarch as a friend, had gone over to his home after a fight with her boyfriend.

When she went into Smarch's room to get cigarette papers, he grabbed her and told her she was beautiful, Gower said in reviewing the facts.

He became violent when she told him to stop, throwing her on the bed.

While nothing sexual in nature happened over the course of the next 16 hours, he kept her in the house until about 4 p.m. the following day, the judge stated.

At various times, he forced her to sleep in the same bed as him, told her he had killed before and talked about going on a trip down South with her.

At one point, she managed to get away, but he caught up to her and threw her against his truck, threatening her.

She called for help a number of times, but to no avail.

Finally, the following afternoon, she was able to convince Smarch to drive her to the Shoppers Drug Mart store on Main Street, where she escaped through the left side entrance and was able to connect with friends, Gower said.

Police found her backpack in Smarch's home later after she contacted the RCMP about the incident.

Gower acknowledged Smarch's explanation that he was trying to do an intervention and scare the girl 'straight' because he believed her to be addicted to crack cocaine. However, the judge also noted Smarch crossed the line into criminal behaviour and made the teenager fear for her life.

Gower noted Smarch's actions in telling her he had killed before would be consistent with him trying to show her the impact addictions have had on his life.

Similarly, Smarch may have been referring to taking her to a residential treatment program when he spoke of their going down South, the judge suggested.

While Gower said he was satisfied Smarch has shown genuine remorse for his actions, he remained clear that he doesn't condone what was done.

Gower also reviewed Smarch's past before handing down the sentence.

Smarch, 53, was raised in Teslin, but attended the Lower Post, B.C. residential school until he was about 14 and his family moved to Whitehorse.

Currently dealing with his experiences at residential school, Gower said the experience in Smarch's younger years likely contributed to his alcohol problem and criminal history.

The second-oldest of 13 children, Smarch has had a stable relationship with his family.

While he left school in Grade 9, he has also taken other courses though didn't complete his GED and was unable to finish a diploma course at Yukon College because of his manslaughter conviction in 1979.

He's had six serious relationships with women. His manslaughter conviction stems from the death of his first common-law spouse in 1979 . She was killed in a drunken fight, Gower said.

His last serious relationship lasted from 1993 to 2003. During that time, he turned his life around, rediscovering his cultural roots and taking life skills and counselling.

By the time his relationship ended, he was helping others in their own healing, the judge said.

He worked as both a volunteer and then paid staff with the Kwanlin Dun First Nation justice program.

He regressed into a depression at the end of that relationship. That occured around the same time he learned he couldn't finish the practicum portion of his course at Yukon College because of his criminal record.

It led him to drink again. That's been the only relapse he's had since he stopped drinking in the early 1990s, Gower noted.

While Smarch has had an alcohol problem, he was not intoxicated at the time he confined the young woman.

Smarch has an extensive criminal record dating back to 1972, including the 1979 manslaughter conviction.

There are significant gaps in the record between 1992 and 2000, and then again from 2000 to 2005, Gower said.

During the sentencing hearing earlier, Smarch told the court of his desire to get his life back on track.

Looking at case law and the sentences proposed by the Crown and defence lawyers, Gower said a blended sentence would help fulfill the need of deterrence, denunciation of the crime and allow for Smarch's rehabilitation.

Following his release from jail in eight months, Smarch's conditional sentence order includes terms that he identify an elder or sponsor who can assist him, that he abstain from alcohol, take life skills and/or upgrading courses as directed, have no contact with his victim, not have weapons and remain under house arrest for the first four months.

The house arrest order provides for certain times or written permission to allow him to go shopping, attend court, medical treatment, Alcoholics Anonymous and other situations. He must also get one hour of exercise per evening.

There are also the usual reporting requirements, abstaining from intoxicants and counselling orders that accompany such sentences.

During the last two months of his conditional sentence, Smarch will be under a curfew of 10 p.m. to 7 a.m. unless he has written permission by his conditional sentence supervisor to be out.

The curfew will be extended from 11 p.m. until 6 a.m. for his probation order, which includes a number of similar conditions as his conditional sentence.

Smarch is also under a mandatory firearms prohibition for 10 years as well as a DNA order.

A stay of proceedings was ordered on further charges of uttering threats and failing to attend court.

Gower turned down a request by Smarch's lawyer, Nils Clarke, that the sentencing be adjourned until early September so Smarch could assist his family with getting the winter's supply of meat through hunting and fishing.

As Gower noted, the case had gone on too long with the hunting issue being a foreseeable matter that could have been brought up earlier.

As the sentencing ended, the judge wished Smarch good luck in putting the matter behind him and becoming a constructive community member again.

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