R. v. J.Q., 2021 NUCJ 37

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. J.Q., 2021 NUCJ 37 Date: 20210831 Docket: 01-20-06 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: J.Q. __________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): P. Plourde Counsel (Accused): M. Blanchard Location Heard: Iqaluit, Nunavut Date Heard: August 5, 2021 Matters: Sentencing for sexual assault pursuant to the Youth Criminal Justice Act REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under sections 110 of the Youth Criminal Justice Act , “no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.” By court order made under sections 111 of the Youth Criminal Justice Act , “no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties.

Letters have been assigned at random. I. INTRODUCTION [ 1 ] The police charged the then 17-year-old youth, J. Q [1] . with unlawful entry and sexual assault following an incident on May 14, 2020. The Crown proceeded summarily, and the youth pled not guilty on October 19, 2020. I conducted his trial on January 11 and 12, 2021 finding him guilty of unlawful entry and sexual assault. Defence Counsel properly requested a pre-sentence report, one was prepared, and I heard oral sentencing submissions from counsel during the next court circuit to the community on June 9.

I then received further, written submissions from counsel on August 24. I thank counsel for their preparation and efforts. These are my reasons for sentence. II. CIRCUMSTANCES OF THE OFFENCE [ 2 ] In my decision, I shall refer to the victim as X. X was 17-years-old and lived with her three brothers none of whom were home during the incident. X had come home earlier that morning around 02:30 and had gone to bed closing the bedroom door behind her. The youth was sober on May 14, 2020, when he went over to X’s home.

I rejected most of the youth’s testimony because he was evasive, contradictory, and non-responsive even to his own lawyer’s repeated questions in direct examination. Importantly, I rejected the youth’s evidence that he had gone to X’s home merely to buy cigarettes from one of X’s brothers. I found as a fact that he arrived at X’s home sometime around 9 a.m. He had never been there before. X was asleep when the youth entered her house uninvited.

[ 3 ] X woke up to find that the youth was on top of her on her bed with his hands on either side of her shoulders. He was in the process of trying to kiss her when she awoke. X did not feel the youth make physical contact with her. X made a face at him while making a conscious effort to look scared. The youth got up and left moments later. III. CIRCUMSTANCES OF THE YOUTH [ 4 ] The pre-sentence report was helpful in outlining the youth’s circumstances. The youth was born and raised and has spent most of his life in the community.

He has six siblings, and he reported having had a happy childhood although his parents did drink alcohol. His parents were and continue to be supportive of him. He was strongly affected by the death of his grandparents with whom he was very close. He reported enjoying good health and said he does not have a history of mental illness. He reported that he does not attend any mental health counselling. He does not drink alcohol, but he smokes marijuana every four days. He is unemployed and reported he is on call with the Hamlet as a grave digger and with the HTO as a meat cutter.

He seldom interacts in the community, and he does not have many friends. He prefers to go onto the land to hunt all year long. He lives with his 16-year-old-girlfriend and her family along with the couple’s one-and-a half-year-old daughter. In fact, he quit school in grade 11 to look after his daughter. He has not attempted to upgrade his education or qualifications. [ 5 ] Significantly, neither the pre-sentence report nor Defence Counsel could provide any insight into the youth’s repeated criminal behaviour.

Nor did either counsel provide any information whether the offender participated in any counselling as required of him by an earlier probation order. Consequently, for this and other reasons, I invited counsel to provide me with further written submissions which I received on August 24, 2021. Regrettably, the written submissions do not provide any further insight to the youth’s state of mind, or whether he participated in counselling after his 2017 conviction for sexual assault. [ 6 ] I have taken the youth’s personal circumstances and Gladue factors into account. A.

Previous findings of guilt in youth court [ 7 ] Whether a youth has been found guilty previously of a criminal offence is relevant to the sentencing process. [2] As I have just noted, this youth has a troubling prior youth court finding of guilt for sexual assault. As a 14-year-old, he was sentenced (on June 15, 2017) to a six-month deferred custody and supervision order followed by probation for 18-months.

He committed that sexual assault, the prosecutor told me, when he was 13-years-old in what were “strikingly similar” circumstances on a different victim. [3] I note, however, that in that case, he had removed his sleeping victim’s pants before she woke up. She struggled and the youth covered her face with a pillow before she was able to free herself and he fled. IV. THE PURPOSE AND PRINCIPLES OF SENTENCING IN YOUTH COURT [ 8 ] The purpose and principles of sentencing in youth court are markedly different from the adult regime codified in the Criminal Code . [4] Parliament has codified youth sentencing in

Part 4 of the Act. As the circumstances of each offence and each youth are unique, sentencing is an entirely individualised process. To underscore that point, Parliament has decreed that general deterrence is not applicable in youth court. With that in mind, I turn to the purpose and principles of youth court sentencing. A. The purpose of sentencing [ 9 ] The purpose of sentencing in youth court is stated in section 38(1):

The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of society. B. The principles of sentencing [ 10 ] I turn now to the principles of sentencing which are codified in section 38(2). They may be summarised as follows: a. A youth sentence may not be greater than an adult sentence for an offence committed in similar circumstances; b.

A youth must receive a similar sentence to other youth sentences for the same offence in Nunavut in similar circumstances; c. A youth sentence must be proportionate to the seriousness of the offence and the degree of the youth’s responsibility; d. Custody is a sentence of last resort, and all reasonable non-custodial options must first be considered especially respecting aboriginal youth; [5] e. (

i) The youth sentence must be the least restrictive one available which satisfies the purpose of sentencing; (ii) The youth sentence must be the one which is most likely to achieve the youth’s rehabilitation and reintegration; (iii) The youth sentence must promote a sense of responsibility along with an acknowledgement of the harm done by the youth to his victim and the community. C.

A youth sentence may seek to achieve two objectives [ 11 ] In appropriate cases, such as this one, a youth sentence may also seek, subject to section 38(2)(c), to denounce unlawful conduct and to deter the youth being sentenced from committing further offences. [6] D. Further youth court sentencing considerations [ 12 ] The sentencing judge must also account for a. The youth’s degree of participation in the commission of the offence; b. The harm done by the youth to his victim and whether that harm was either intentional or reasonably foreseeable; c.

Any restitution made by the young person to his victim or community; d. Any time spent by the youth in detention; e. Any previous findings of guilt; and f. Any aggravating or mitigating circumstances. [7] [ 13 ]

Section 39 of the Act also directs the sentencing judge not to sentence a youth to custody unless one of four specific factors is satisfied. By including this section, Parliament reinforced its direction that custody is a sentence of last resort. To open the pathway to custody, the sentencing judge must find that: a. The youth committed a violent offence; [8] b. The youth has failed in the past to comply with a non-custodial sentence;

c. The youth has committed an indictable offence which would result in an adult penitentiary sentence and has demonstrated a patternoffending; or d. Exceptionally, the youth has committed an indictable offence where the aggravating circumstances mean that a non-custodialsentence would be inconsistent with the purpose and principles of sentencing. [14] Any custody I impose must be part of a custody and supervision order divided as follows: two-thirds custody followed by one-third supervision.[9] [15] I shall return to these numerous considerations in my analysis. E. R. v.

Friesen[10] [16] In 2020, a unanimous Supreme Court of Canada called on all justice system participants to recognise the real harm inflicted onchild victims of sexual assault: [46] Because protecting children is so important, we are very concerned by the prevalence of sexual violence againstchildren.

This “pervasive tragedy that has damaged the lives of tens of thousands of Canadian children and youths” continues to harmthousands more children and youth each year (Canada, Committee on Sexual Offences Against Children and Youths, Sexual OffencesAgainst Children: Report of the Committee on Sexual Offences Against Children and Youths (1984), vol. 1, at p. 29 (“BadgleyCommittee”)). [17] The Court went on to state: [77] As this Court recognized in L.M., violence is always inherent in the act of applying force of a sexual nature to a child(para. 26).

Far from removing the violence, the sexual dimension instead aggravates the wrongfulness of the violence by addinginterference with the child’s sexual integrity to the interference with the child’s bodily integrity. Physical contact of a sexual nature witha child always means that the offender has interfered with both the child’s “security of the person from any non-consensual contact orthreats of force” and the child’s bodily integrity, which “lies at the core of human dignity and autonomy” (R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 28; see also McCraw, at p. 83).

Such physical sexual contact is also a form of psychologicalviolence precisely because bodily and psychological integrity are closely linked (see Ewanchuk, at para. 28; L.M., at para. 26). Thedegree of physical interference and the intensity of physical and psychological violence vary depending on the facts of individual cases.However, any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violenceeven if it is not accompanied by additional physical violence and does not result in physical or psychological injury.

Courts must alwaysgive effect to this inherent violence since it forms an integral component of the normative character of the offender’s conduct (M. (C.A.), at para. 80).[11] [Emphasis added] [18] In Friesen, the perpetrator was an adult. And I repeat that general deterrence does not play a role in youth court sentencing.Nevertheless, in my view, the Friesen call to protect our children from sexual violence resonates within the framework established by theAct. Nunavut’s court dockets are dominated by crimes of physical and sexual violence against girls and women.

Cases involving sexualviolence against sleeping or incapacitated girls and women come before this Court with alarming frequency. This reality must factor intothe youth court judge’s consideration of both the seriousness of the offence, the degree of responsibility of the repeat sexual offender,and the harm done to his victim. V. THE POSITIONS OF THE PARTIES

[ 19 ] I will now outline the parties’ respective positions. A. The Crown [ 20 ] The Prosecutor said that “this was actually a very difficult assessment to make … in terms of what is an appropriate position here”. [12] The circumstances of the offence place it in the category of a violent offence pursuant to section 39(1)(a). He continued that a non-custodial term would not satisfy the sentencing considerations in YCJA

section 42 . He recommended that I impose a 90-day custody and supervision order followed by 18-months probation. This sentence would have the offender serve 60 days in custody followed by 30 days of supervision before the start of the probation order. [ 21 ] As YCJA

section 39(

e) mandates the least restrictive sanction suitable to obtain the purpose of sentencing, he continued, the principles of rehabilitation and reintegration must be “first sentencing principles”. [13] He stated that he had initially contemplated a longer sentence but was persuaded by the pre-sentence report that the offender is a good candidate for rehabilitation. B. The Defence [ 22 ] Defence Counsel fairly conceded that sexual assault opens the pathway to custody. He asked me to impose a six-month deferred custody order – to be served in its entirety as house arrest - followed by probation.

That said, he acknowledged Ultimately the availability of deferred custody is – it requires an absence of a finding of serious bodily harm. If there would be a finding of serious bodily harm, which also includes serious psychological harm, that would be foreclosed.

So, it’s a question for yourself, Your Honour, on a finding of fact, and I’m cognizant of the fact that it would – there’s a possibility that it would be foreclosed in these circumstances. [14] [ 23 ] In addition to the points made by the Prosecutor, Defence Counsel emphasised that the birth of the youth’s daughter has helped the youth emerge from his period of grief over the deaths of his grandparents.

The offender’s situation is “unique”, he continued, in that he has not only taken to his role and understood the obligations of it but has really embraced his role as a father as an 18-year-old which I think is quite rare for someone his age. [15] [ 24 ] He concluded saying that a deferred custody order would “give the most full voice to [his] rehabilitation”. VI. CIRCUMSTANCES OF THE VICTIM [ 25 ] X declined to provide a victim impact statement, but she shared her experience with the author of the pre-sentence report.

The incident upset her to the point that she sought refuge in frequent marijuana use to cope with the anxiety and stress she was experiencing. She experienced this anxiety and stress even when she was at home with her supportive parents. Fortunately, she has sought out and received counselling from a mental health professional which has helped her. She continues to feel the psychological effects of the incident. I agree with the Prosecutor, and I am satisfied beyond a reasonable doubt, that the youth inflicted significant bodily harm in the form of psychological harm on X. VII. ANALYSIS

[ 26 ] I am imposing a sentence on an 18-year-old Inuk who offended as a 17-year-old young person subject to the Act. Thus, the sentence I impose must give primary emphasis on his rehabilitation and reintegration into the community. [ 27 ] I convicted the youth after trial, and I am not dealing with a sentencing joint submission from counsel following the entry of a guilty plea. [16] In my view, the sentencing recommendations made by counsel do not address adequately the purpose and principles of sentencing in the Act.

Specifically, I reject counsels’ recommendations in part because I do not share their optimism – in the absence of any evidence from counsellors or other professionals - that the youth has fundamentally changed simply because he has become a father. [ 28 ] The youth committed an extremely serious offence – unlawful entry into the home of his victim and sexual assault – which he committed while his victim was asleep in her bed. He was sober and his actions were predatory and premeditated. He is a repeat sexual offender who has not demonstrated any insight as to why he acted the way he did.

In my view, the sentences proposed by counsel are neither proportionate to the seriousness of the offence, nor to this youth’s high degree of moral responsibility. This is an appropriate youth court case to factor in denunciation and specific deterrence. [17] [ 29 ] Given the youth’s lack of any demonstrable insight, I am seriously concerned about the real possibility that he will reoffend - thereby harming another victim.

I do not view a 90-day custody and supervision order followed by probation in these circumstances to hold him properly accountable, to provide the best way to assist with his rehabilitation and reintegration, or to impose a meaningful consequence on this repeat sexual offender. [ 30 ] As I noted above, I am required by the Act in my sentencing analysis to consider both aggravating and mitigating factors. A. Aggravating factors [ 31 ] Aggravating factors work to increase the sentence. There are serious aggravating factors in this case: a. The youth entered the victim’s house unlawfully before assaulting her. b.

He committed a predatory and premeditated crime. c. He assaulted his victim while she was asleep in the safety of her own bedroom. d. He victimised a vulnerable girl who was under 18-years-of age. e. He exposed his victim to significant emotional harm. f. He is a repeat sexual offender. B. Mitigating factors [ 32 ] Mitigating factors serve to lessen the sentence. In my view, the fact that the youth has assumed responsibility for his common-law spouse and child is a mitigating factor in this case and I have taken that into consideration.

C. A meaningful custody and supervision order is required [ 33 ] In my view, the serious aggravating factors in this case of unlawful entry and sexual assault require that I impose – in the hope that the youth will heal - a meaningful period of custody followed by supervision and probation; there are no reasonable or realistic alternatives given his history in the youth criminal justice system. [18] VIII. SENTENCE A. Custody and supervision order [ 34 ] For the sexual assault, I sentence J.

Q. to a 270-day custody and supervision order which shall be comprised of 180 days in custody followed by 90 days of supervision. The supervision order shall include the following conditions mandated by the Act. He shall: a. Keep the peace and be of good behaviour; b. Report to the territorial director and thereafter as required; c. Inform the territorial director immediately on being arrested or questioned by the police; d. Report to the police, or any named person, as instructed by the territorial director; e.

Provide his address to the territorial director and advise the territorial director of any change to his address, employment status, training, or volunteer work, in his or his family’s financial status; and f. Abstain from the ownership, control or possession of any weapon, ammunition, prohibited device or explosive substance, except as may be authorised by the territorial director for the purpose of the youth participating in a program specified by the territorial director. [ 35 ] The supervision order will also contain the following conditions specific to this case. The youth shall: a.

Take counselling as directed by his supervisor which shall include counselling pertaining specifically to healthy relationships and healthy sexuality; b. Have absolutely no contact whatsoever with his victim X, and he shall stay away from her residence at all times; c.

Stay away from any public place where children may reasonably be expected to be present. [ 36 ] I stress that I am satisfied this 270-day custody and supervision order is the least restrictive available sentence for this Inuk youth, one which is more likely than a 90-day order to achieve the primary considerations of this youth’s rehabilitation and reintegration safely into his community. B. Probation order [ 37 ] The custody and supervision order shall be followed by a rehabilitative period of probation for 12 months. The youth shall: a. Keep the peace and be of good behaviour; b.

Report to the probation office within two business days of the expiry of his custody and supervision order and thereafter as directed;

c. Take counselling as directed by his supervisor which shall include healthy relationships and healthy sexuality; d. Have absolutely no contact whatsoever with his victim X, and he shall stay away from her residence at all times; e. Stay away from any public place where children may reasonably be expected to be present; f. Inform his probation officer immediately of any change to his name, employment, or residence; and g.

Report back to the Court in the community on October 17, 2022 (I direct the territorial director to submit a written report to the Court in advance of that hearing). [ 38 ] For the unlawful entry, as I have considered it to be an aggravating factor in the sexual assault, I impose a concurrent 90-day custody and supervision order. C. Ancillary orders [ 39 ] I impose the mandatory DNA order. [ 40 ] I order that the youth have no contact or communication whatsoever with X while he is in custody.

Dated at the City of Iqaluit this 31st day of August, 2021 ___________________ Justice Paul Bychok Nunavut Court of Justice [5] I note here that this provision echoes Criminal Code

section 718.2 (

e) which states that the sentencing judge must impose a non- custodial sanction if that sanction is reasonable and consistent with the harm done to the victim or community “with particular attention to the circumstances of Aboriginal offenders”. This

section was the inspiration for the Gladue factors articulated by the Supreme Court of Canada in R v Gladue [5] and reinforced in R v Ipeelee [5] . Gladue requires the sentencing judge to consider the ongoing and intergenerational effects of colonialism on Inuit. The vast majority of the people we serve our Inuit, and we deal daily with Gladue factors in the Nunavut Court of Justice.