R. v. C.D., 2021 NUCJ 20

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. C.D., 2021 NUCJ 20 Date: 20210423 Docket: 02-18-09 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: C.D. ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): S. Hayward Counsel (Accused): A.

Landry Location Heard: Circuit Court, Nunavut Date Heard: March 3, 2021 Matters: Sentencing for two charges under Criminal Code of Canada, RSC 1985, c C-46, s. 151 ; discussion of mandatory minimum penalties for sexual offences against children REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” 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. BACKGROUND [ 1 ] The offender, CD, pleaded guilty on March 19, 2019 to two charges of touching his female grandchild, Y, for a sexual purpose, contrary to Criminal Code

section 151 . [1] The two incidents happened between October 1, 2016 and September 30, 2017. After various delays, I sentenced CD during the March 2021 court circuit in the community, but I advised counsel I would later supplement my reasons for sentence. These are my written supplementary reasons. II. THE FACTS [ 2 ] I will start with the facts as alleged by the prosecution and admitted by CD. [ 3 ] The first incident happened at CD’s cabin while his 14-year-old victim was asleep on the couch. CD was on the floor next to her. Y woke up to discover CD rubbing her genitals over her clothing.

Y’s grandmother, boyfriend, and a cousin were in the cabin at the time. CD’s actions scared Y, and she did not move. Ultimately, Y fell back asleep. The prosecutor could not tell me whether CD had stopped touching Y before she fell back asleep. [ 4 ] The second incident happened in CD’s car while Y was sitting in the rear behind the front passenger seat. At one point CD stopped the vehicle and reached back to rub her genitals underneath her underpants. Y tried to remove CD’s hand “so he could drive.

He pulled his hand out and told me not to tell anyone”. [2] CD also admitted that Y told the police that: I don’t know how many times he’s wanted me to go to his vehicle. I’ve said no. I’ve told him I don’t want that because I was scared. Finally when I say no, he stops. [3]

III. THE LAW PERTAINING TO SEXUAL OFFENCES AGAINST CHILDREN [ 5 ] Parliament codified sexual offences against children in

Part V of the Criminal Code . [4] CD pleaded guilty to two counts of touching a child for a sexual purpose. A. Criminal Code

section 151 , sexual interference [ 6 ] The

section 151 offence is hybrid, meaning that the Crown may elect to proceed by indictment or summarily. The Crown proceeded summarily in CD’s case. [ 7 ]

Section 151 provides as follows: 151 Every person who, for a sexual purpose, touches directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year ; or

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days . (emphasis added) [ 8 ] The minimum punishments prescribed by Parliament are commonly referred to as the “mandatory minimums”. IV. SENTENCING GUIDELINES FOR SEXUAL INTERFERENCE A.

R v Friesen [ 9 ] In a landmark decision last year, the Supreme Court of Canada in R v Friesen issued a “strong message” for sentencing judges in cases of sexual interference with children. … we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [5] [ 10 ] Noting that that Indigenous girls and women are disproportionately victimised, [6] the court held unanimously that earlier sentencing ranges are no longer appropriate. [7] Indeed, with Parliament’s 2005 enactment of

section 718.01, courts are obliged to give primary emphasis to denunciation and deterrence. This, the court concluded, “confirms the need for courts to impose more severe sanctions for sexual offences against children”. [8] B. R v GH and the

section 151 mandatory minimums [ 11 ] Late last year, in R v GH , Sharkey CJ, sitting as a trial judge, ruled that the mandatory minimum 90-day jail term in

section 151(

b) violated

section 12 of the Canadian Charter of Rights and Freedoms [9] (the Charter ) and is, therefore, “constitutionally of no force or

effect”. [10] As the Crown raised GH in this case and another case on this circuit, I shall address why in my view the mandatory minimum punishment of 90 days in jail is constitutional and in full force and effect. C. Charter

section 12 [ 12 ]

Section 12 of the Charter reads as follows: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [ 13 ] As Sharkey CJ correctly noted, the cruel and unusual standard means treatment or punishment “so excessive as to outrage standards of decency”. [11] My disagreement with the Chief Justice lies in the application of this standard. D. R v Nur [ 14 ] In reaching his decision in GH , the Chief Justice applied R v Nur . [12] In Nur , the Supreme Court of Canada established the framework within which judges must conduct their Charter compliance analysis.

Writing for the majority, McLachlin CJC (as she then was) described the framework as follows: To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code . Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence which is grossly disproportionate to the fit and proper sentence.

If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter . [13] [ 15 ] As central to this analysis, the judge … may look not only at the offender’s situation, but at other reasonably foreseeable situations where the impugned law may apply. [14] [ 16 ] These other reasonably foreseeable situations are post- Nur known as “reasonable hypotheticals”. [ 17 ] In applying Nur , I find that a proportionate punishment for CD given the objectives and principles of sentencing would be territorial jail in excess of the mandatory minimum.

That would end the Nur analysis but for GH. [ 18 ] My disagreement with the Chief Justice hinges on his application of the cruel and unusual test to the two hypotheticals he cited.

Sharkey CJ wrote: I would use two simple examples which could give rise to a conviction and which are within the context of judicial experience and common sense: the offender whose moral culpability is compromised because of a clinically diagnosed cognitive disability and who inappropriately touches a young victim in public while saying something uncharacteristically lewd; and a 19 year old who kisses a 13 year old on the lips at a house party while making (sic) sexually suggestive remark.

In my view, in either of these two situations, an MMP of 90 days would be grossly disproportionate. [15] [ 19 ] I will address these two examples momentarily as hypotheticals one and two. [ 20 ] The mandatory minimum regime, while not well received in many courts, [16] continues to be politically popular. Parliament, regardless of the Party in power, has demonstrated no desire to rescind mandatory minimums as they relate to sex offences. This reality is

illuminated by the recent history of the provision. In 2005, Parliament amended the Criminal Code to include a 14-day mandatory minimum for

summary sexual interference. [17] In 2012, Parliament increased that mandatory minimum to 90 days. [18] Nine years later, Parliament is considering Bill C-22, which would abolish mandatory minimum punishments for certain drug and firearm offences. However, Bill C-22, if adopted, will leave intact mandatory minimum punishments for predators who sexually abuse children. Respectfully, the GH analysis fails, in my view, to account for this reality. [ 21 ] Hypothetical one in GH leaves too many variables unknown.

As a result, it suggests the “most innocent and sympathetic case imaginable” and, as such, is too remote to ground a finding of gross disproportionality. [19] [ 22 ] Hypothetical two, correctly understood, posits a predatory sexual assault by an adult on a child. This is precisely the type of predatory behaviour targeted by Parliament. That Parliament intended there to be severe consequences for such

an act can be inferred from our sexual consent laws which have stood the test of time. Parliament’s intention within the general context of this offence was also recognised and deferred to by the Supreme Court of Canada in Friesen . [20] In my view, it cannot be said that imposition of the mandatory minimum punishment in hypothetical two would be an outrage to the standards of moral decency in 21st century Canada. [ 23 ] Until such time as the Nunavut Court of Appeal or the Supreme Court of Canada rules otherwise, the mandatory minimum regime is in full force and effect. V.

THE PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING [ 24 ] The sentencing hearing is a highly individualised process. No two cases or offenders are exactly alike. A. The purpose and objectives of sentencing [ 25 ] I first shall briefly outline the purpose and objectives of sentencing as legislated by Parliament. 718 The fundamental purpose of sentencing is to protect society and to contribute along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims of the community. [21] B. Denunciation and deterrence [ 26 ] In 2005 and 2019, Parliament added two further sentencing objectives which are directly relevant to this case: 718.01 Where a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [22] …

718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female – the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [23] [ 27 ] Parliament’s direction as reinforced by the Supreme Court of Canada could not be clearer.

The sentence I imposed on CD was required to send a strong message—putting primary emphasis on denunciation and deterrence—that this Court will, going forward, impose more severe sanctions for sexual offences against children. C. Rehabilitation [ 28 ] The sentence I imposed was also required to promote CD’s reformation. D. The principles of sentencing [ 29 ] I now turn to the principles of sentencing codified by Parliament and how they applied to this case. I will refer to the principles in the same order as they appear in the Criminal Code . i.

The proportionality principle [ 30 ] First and foremost, the punishment I imposed in this case was required to fit the offender and the crime. This is called the proportionality principle, which is enshrined as sentencing’s “fundamental principle”: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [24] [ 31 ] CD bore a high level of moral blameworthiness for this odious crime. ii.

Aggravating and mitigating factors [ 32 ] The sentence I imposed had to account for the presence of relevant aggravating or mitigating circumstances. [25] Aggravating factors operate to increase the sentence. Mitigating factors operate to lessen the sentence. [ 33 ] There were several aggravating factors present in this case: 1. CD’s actions were premeditated; 2. CD’s actions were predatory and formed part of a pattern of criminal conduct; and 3.

CD committed a serious breach of trust against his 14-year-old granddaughter. [26] [ 34 ] In cases of this type, Parliament has also decreed the following factors to be aggravating as well: evidence that the offender, in committing the offence, abused a person under the age of eighteen years; [27] and evidence that the offence had a significant impact on the victim, considering their age and personal circumstances, including their health and financial situation. [28] [ 35 ] As the Supreme Court of Canada emphasised in Friesen , we now recognise that sexual assault always has a significant impact on

its victims. [ 36 ] There were two mitigating factors: 1. CD entered an early guilty plea; and 2. It appears CD expressed remorse. iii. The parity principle [ 37 ] I was required to apply the parity principle which holds that similar offenders ought to receive similar sentences for similar crimes committed in similar circumstances. [29] The only reported Nunavut decision involving sexual interference is the pre- Friesen case R v Meeko , [30] which I have considered for general guidance. iv. Criminal Code

section 718.2 (

e) and R v Gladue [ 38 ] I also was required to apply the following principle which pertained to CD and all Inuit offenders. I was obliged to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [31] [ 39 ] In this context, I was required to account for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit.

These are the now well-known Gladue factors articulated by the Supreme Court of Canada in R v Gladue [32] and later reinforced by the Court in R v Ipeelee . [33] [ 40 ] The vast majority of Nunavummiut who come before the Nunavut Court of Justice are Inuit, and we deal daily with

section 718.2 (e) / Gladue factors and the realities of the impact of colonialism on Inuit society.

Section 718.2 (e) / Gladue constitutes the lens through which we view all cases involving Inuit. VI. THE POSITIONS OF THE PARTIES [ 41 ] Each lawyer spoke briefly. I shall outline the gist of each party’s position in turn. A. The Crown [ 42 ] The prosecutor referred to last year’s decision by the Supreme Court of Canada in R v Friesen , [34] noting that denunciation and deterrence were the primary sentencing considerations. The prosecutor then referred to R v GH , [35] where Sharkey CJ struck down the mandatory minimum.

The prosecutor noted, however, that the Chief Justice observed in GH “that the case law is trending upwards with respect to sentences” for these offences. [36] In mitigation, the prosecutor referred to the Pre-Sentence Report which painted CD’s circumstances as “a very sad case” with “extremely significant Gladue factors”. [37] Significantly, he continued, the young victim … had less than a supportive family in bringing this matter to justice, and that was an obstacle that the Crown needed to deal with as well. [38]

[ 43 ] The prosecutor urged the Court to impose a nine-month territorial jail term followed by 12 months’ probation which, he stated, “is at the absolute floor of the appropriate range of sentences here”. [39] B. The Defence [ 44 ] Defence Counsel urged the Court to impose the mandatory minimum 90-day territorial jail term. He noted that CD had pleaded guilty at the first opportunity because CD did not “want to make her [his victim] look bad or me look good”. CD should receive “considerable credit” for this early guilty plea.

CD and his victim, he continued, are part of a “tight knit family”, and the case “has rendered their family tragically”. [40] Defence Counsel then highlighted Gladue factors which I shall discuss next. VII. THE OFFENDER [ 45 ] CD is a 65-year-old first offender who lived on the land until he was nine years old. The authorities relocated his family to the community and took away their sled dogs. This experience led to hard times. CD was taken away from his parents by the RCMP and sent to residential school where he stayed for a short time.

He is still married. [ 46 ] CD is said to be “well known … and well liked in the community”. [41] He has significant health issues including open heart surgery in 2018. His recovery from that surgery has not gone smoothly, and he requires ongoing follow up care in Iqaluit. CD is a hunter, but his health impedes his ability to hunt. [42] He remains at high risk of suffering a heart attack. He gave up alcohol and marijuana four to five years ago. He reported having had suicidal thoughts, but he has never acted on them. [43] VIII. ANALYSIS [ 47 ] The

section 718.2 / Gladue analysis required me to consider the impact of colonialism on CD along with his personal circumstances. As Defence Counsel noted, CD has been greatly affected by the ongoing intergenerational impacts of colonialism.

Nevertheless, a non-custodial or light jail sentence would have run directly afoul of our modernised post- Friesen sentencing guidelines for child sexual abuse. [44] I agree with the prosecutor that a nine-month territorial jail term is at the very bottom of the appropriate sentencing range for CD in the circumstances of this case. [ 48 ] In my view, this sentence—in the unique circumstances of this case—balanced properly the objectives and principles of sentencing and precedent with

section 718.2 (e) / Gladue factors. The nine-month sentence gave CD full credit for his guilty plea. More importantly, I gave CD credit in a meaningful way for sparing his granddaughter any further anxiety caused by the lack of family support. But for these factors, CD could have expected to receive a harsher sentence. To that extent, this case will be of limited value as a precedent. IX. SENTENCE [ 49 ] I imposed nine months jail on each charge to be served concurrently with each other followed by probation for 12 months with conditions. Dated at the City of Iqaluit this 23rd day of April, 2021 ___________________ Justice P. Bychok Nunavut Court of Justice