R v SI, 2014 NUCJ 10

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v SI, 2014 NUCJ 10 Date: 20140328 Docket: 06-11-44 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: S.I. ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Crown): Barry McLaren Counsel (Accused): David Berg Mark Christie Location Heard: Iqaluit, Nunavut Date Heard: March 24, 2014 Matters: Dangerous offender application under s. 753 of the Criminal Code of Canada, RSC 1985, c C-46 Predicate Offences: Charges under s. 151 (x2) of the Criminal Code REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) PUBLICATION BAN ordered under s. 486.4 of the Criminal Code on any information that could identify the complainants.

This ban extends to include an absolute prohibition on the publication or broadcast of any information that could identify prior complainants.

I. INTRODUCTION [ 1 ] S.I. is before the Court for sentence on two charges of sexual touching on November 2, 2011 with respect to A.N. and B.I. The offences occurred in Hall Beach and the guilty pleas were entered in that community on March 14, 2013 on the day of trial. [ 2 ] The Crown applied to have S.I. declared a dangerous offender pursuant to s. 753 of the Criminal Code of Canada, RSC 1985 c C-46 [Criminal Code]. II. FACTS A.

The triggering offences for the dangerous offender application [ 3 ] The facts admitted are as follows: [ 4 ] A.N. was 10 and B.I. was 11 when the offences took place in Hall Beach. [ 5 ] M.N. is the mother of both boys. The accused is M.N.’s biological uncle, although she was raised in S.I.’s family home and thinks of him as her brother. [ 6 ] At the time of the offences, S.I. was visiting M.N.’s home. A.N. lived with his mother, while B.I. had been adopted by his grandparents. [ 7 ] On November 2, 2011, B.I. was visiting A.N.

Both boys were together with a friend in one of the bedrooms situated in M.N.’s home. [ 8 ] The boys were quiet for a period of time so M.N. went into the room to check on them. She found the accused in the bedroom with A.N. on the bed. She noticed that S.I.’s hands appeared to be down the back of A.N.’s underwear. She became upset and the accused immediately left. [ 9 ] Upon further questioning of the boys, A.N. advised that the accused had touched his penis and rubbed it up and down over and underneath his clothes. He went on to say that this had happened to him a number of times prior to that date.

A.N. advised that he touched S.I. once in a similar manner. [ 10 ] B.I. reported that he had also been touched by S.I.. He said that the accused had moved his hand up and down on his penis over top of his clothing. [ 11 ] The accused was sober. He was arrested on November 2, 2011 and held in custody on the date of the offence. B. The dangerous offender proceeding [ 12 ] Defence and Crown agree that S.I. meets the criteria to be declared a dangerous offender under

section 753 of the Criminal Code . [ 13 ] On this point the Court agrees and finds that S.I. has, by his conduct, shown a failure to control his sexual impulses. Further, in the future he is likely to show a similar failure and, if so, is likely to cause injury, pain, or other evil to others he may come into contact with. [ 14 ] The Court, therefore, has no difficulty in declaring S.I. a dangerous offender. [ 15 ] This finding is based in part on S.I.’s criminal record which is significant and compelling.

It includes 20 convictions for sexual offences involving children between the ages of 6 and 13 in his home communities of Hall Beach and Igloolik. [ 16 ] The accused has served penitentiary sentences on two prior occasions. He received 3 years in 1997 and 2 years in 2006. [ 17 ] Many children have been damaged by S.I.’s past conduct. All of the children were either known to him or related to him. Many of the children were in their own homes when they were woken up to find the accused sexually touching or sexually assaulting them.

In all cases the accused was put in a position where he had the opportunity to abuse these children. [ 18 ] S.I. has shown little insight into the consequences that his actions have had on these very vulnerable individuals. [ 19 ] Under section 753(4) of the Criminal Code , once a person is found to be a dangerous offender, there are three options available to the sentencing judge. The first option is to impose detention in a penitentiary for an indeterminate period of time.

The second is to impose a finite sentence for the current charges and order that the offender be subject to a long term supervision order for a period that does not exceed ten years. The final option is to impose a sentence on the current charges only. III.

OVERALL JOINT RECOMMENDATION BY COUNSEL [ 20 ] Crown and Defence have presented a joint recommendation on sentencing to the Court. [ 21 ] Case law on joint submissions and recommendations indicate that they should not be rejected by the Court unless they are contrary to the public interest, unreasonable, unfit, or would bring the administration of justice into disrepute.

[ 22 ] S.I. has spent 876 days in pre-trial custody with respect to his current charges. That is approximately 29 months. [ 23 ] The recommendation is that he serve a further 2 years in custody for the November 2, 2011 offences involving A.N. and B. I. [ 24 ] This is to be followed by the imposition of a long term supervision order in the range of 4 to 6 years with the following conditions: a. That he attend all sexual counselling programs that become available to him; b. That he attend all relapse prevention programs that become available to him; and c.

That he reside only where directed by Corrections Canada. [ 25 ] Counsel was asked to focus their submissions on section 753(4.1) of the Criminal Code which states: The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b)or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 26 ] Sexual offences are, by definition, serious personal injury offences. A. Analysis of the joint recommendation on current offences [ 27 ] The fundamental purpose and principles of sentencing, outlined under

section 718 of the Criminal Code , apply in this case as they would in any other. [ 28 ] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In this case the degree of responsibility on S.I. is extremely high. [ 29 ] Denunciation and deterrence are paramount given the circumstances of this case.

There are many aggravating factors in this case that require the Court to impose a substantial period of custody. [ 30 ] As stated previously, S.I. has a lengthy criminal record, including 20 convictions for sexual offences. [ 31 ] There is evidence that the offender, in committing the offences against A.N. and B.I., abused a position of trust with respect to both victims. [ 32 ] The age and vulnerability of the children are serious aggravating factors. [ 33 ] The victim impact statement written by M.N. talks candidly about the effects S.I.’s actions had on herself and her children.

Research clearly shows that sexual offences against children can cause substantial psychological and emotion damage that lasts a lifetime. [ 34 ] The only mitigating factor is S.I.’s guilty plea on the date of trial. [ 35 ] The Supreme Court of Canada instructs me that in any sentencing, particularly of an aboriginal offender, I must take into account the background and circumstances of the offender. [ 36 ] S.I. is Inuit. He was born in an outpost camp outside of Igloolik.

He was raised by his parents until he was five, and then lived with his grandmother until she passed away when he was 12 years old. [ 37 ] He experienced a traditional childhood, whereby hunting and fishing were very important. [ 38 ] He has eight younger siblings who live in Hall Beach. He is close to his brother Isaac and sees the others occasionally. [ 39 ] At a young age, S.I. was sexually assaulted by one of his teachers in Igloolik. He was subjected to further sexual assaults at the residential school where he lived after he left his grandmother’s home.

He resided at the school in Chesterfield Inlet until he was 15 or 16, when he returned to Hall Beach and began working at odd jobs. He lived on and off with his parents at that time. [ 40 ] When he was 16 and working at the DEW line site in Hall Beach, he was sexually assaulted once again by one of his co-workers. [ 41 ] He married once and is now separated. S.I. shares four sons and one step-daughter with his ex-spouse.

He reports being very involved in the raising of his three oldest sons. [ 42 ] His family continues to reside in Hall Beach, although his mother has now passed away. [ 43 ] The joint submission of what amounts to 4.5 years with respect to the offences involving A.N. and B.I. is not unreasonable, in the circumstances of this offence and this offender, if it is coupled with a lengthy period of strict supervision. B. Analysis of the joint recommendation on dangerous offender proceeding [ 44 ] The Court must ask the following question in analyzing whether or not the joint recommendation by counsel is appropriate:

[ 45 ] Whether the evidence shows that there is a reasonable expectation that a finite penitentiary sentence coupled with a long term supervision order, will adequately protect the public against the commission by the offender of further personal injury offences? [ 46 ] The evidence submitted on the application consists of a number of documents that were filed as exhibits and relied upon by counsel. These documents include the Psychiatric Assessment, undertaken pursuant to

section 752.1 of the Criminal Code authored by Dr. Philip E. Klassen [Dr. Klassen’s Report]. [ 47 ] Defence counsel made it clear on the record that after consultation with their own independent psychiatrist, they were prepared to adopt the findings outlined in Dr. Klassen’s Report, dated June 5, 2013.

Accordingly, he was not called as a witness to these proceedings. [ 48 ] Other documents presented into evidence contain details of S.I.’s previous convictions, transcripts of various past appearances in the Nunavut Court of Justice, prior pre-sentence reports, various intake reports from Corrections Canada, and information from the National Parole Board. [ 49 ] Page 21 of Dr. Klassen’s Report was referred to by both counsel as supporting the joint recommendation.

In particular they point to the following paragraph: If this gentleman is maintained in a supervised southern residence, for example a community correctional centre, and does not have easy access to victims (which may well be the case in the south given that he’s not socially connected there and there is somewhat of a language barrier), then I would submit that while this gentleman presents with a substantial risk, there is psychiatric support for “reasonable possibility of eventual control of risk in the community. [emphasis added].

While I appreciate that a lengthy tenure in an urban, southern, centre would be challenging for this gentleman, particularly given his age, and his relatively modest English language skills, his very significant failure to acknowledge his difficulties or participate meaningfully in risk management, at this juncture, would appear to leave us with no alternative, in terms of community management. [ 50 ] Both counsel agree that S.I.’s crimes are those of opportunity. They all took place in the small, isolated communities where the accused was residing at the time.

This Court feels that it would be important in any long term supervision order to add a term that he is not allowed to return to either Hall Beach or Igloolik. Defence counsel advised the court that he discussed this issue with the accused and although S.I. will find it difficult, he understands and is willing to comply with such a condition. [ 51 ] S.I. is currently 60 years old. Defence and Crown submit that pursuant to Dr. Klassen’s report, most people experience a diminished sex drive as they get older.

This is a factor that must be taken into consideration when assessing the protection of the public from the accused in the future. On this point, at page 21 of Dr. Klassen’s Report, he says: I cannot state with certainty that this gentleman is likely to reoffend, albeit his risk is substantial.

His risk will remain substantial through to approximately age 70, at which point his risk becomes somewhat indeterminate, or at least difficult to articulate numerically, albeit I believe that his risk would remain non-zero. [ 52 ] Evidence presented from Corrections Canada support the finding that S.I. has not been a difficult or non-compliant inmate. Dr.

Klassen’s Report at page 11 states, “this gentleman reportedly had an exemplary record in custody behaviourally, both in terms of territorial and federal incarceration.” [ 53 ] This is supported by the records filed from Corrections Canada and the National Parole Board. [ 54 ] Defence Counsel advised the Court that S.I. entered guilty pleas to the offences involving A.N. and B.I. because he told his counsel at the time that he did not want the boys to have to testify in court again.

In counsel’s opinion this demonstrates that he does not lack empathy. [ 55 ] Although there is no doubt that S.I.’s actions have caused considerable psychological and emotional trauma to the children he has abused, his convictions do not involve overt acts of violence or brutality. Thankfully, no weapons were used and there were no physical injuries sustained. [ 56 ] The overall submission by counsel is that adequate protection of the public and a reasonable possibility of eventual control of risk in the community is possible. [ 57 ] Defence submits that his crimes are situational. Defence counsel notes that Dr.

Klassen did not find S.I. to be a psychopath. Page 20 of Dr. Klassen’s Report states the following: The dynamic or criminogenic variables that appear to most operative in S.I.’s case, presented in roughly hierarchical order, include: * bisexual pedophilia * victim availability (opportunity) * almost a complete failure to take responsibility for his behaviour, including engagement in treatment; * possibly borderline intellectual function

* possibly personality difficulties [ 58 ] Crown and Defence refer to the fact that if the court imposes a lengthy period of long term supervision, by the time he is released S.I.’s sex drive will be sufficiently diminished to provide adequate safety and eventual control in the future. [ 59 ] The accused was invited to speak. He said that he was scared and sad and that he felt like crying. He admitted that he was sexually assaulted at an early age and knew that it was wrong to victimize others.

He said he “yearns to live a normal, healthy life”. [ 60 ] He told the court that he does not want the door to be locked permanently and that he wants a chance of freedom. [ 61 ] He concluded by saying that if he still has a chance to go back to his home community, he wants to teach others that what he did was wrong. [ 62 ] S.I.’s words in court at the conclusion of this hearing give me cautious hope that he is now ready to talk about his past, the offences he has committed, and in fact become a partner in his rehabilitation. [ 63 ] Given S.I.’s advanced age and the submissions made by counsel, which I have summarized above, I find that a finite period of custody followed but a lengthy long term supervision order is not unreasonable in the circumstances.

I am therefore obligated to follow the joint recommendation proposed by counsel. [ 64 ] Although there is and never can be certainty in these types of cases, this court is satisfied that there is a reasonable expectation that the sentence I am about to impose will adequately protect the public against the commission by the offender of further personal injury offences. IV. SENTENCING [ 65 ] The sentence of this Court is as follows. [ 66 ] S.I., you are hereby declared to be a dangerous offender. [ 67 ] I note that you have spent 876 days in pre-trial custody, which amounts to approximately 29 months.

Today I sentence you to a further term of custody in the penitentiary for 2 years with respect to your current charges involving A.N. and B.I. [ 68 ] This term of custody is to be following by a long term supervision order for a period of 6 years with the following terms. [ 69 ] PLEASE LISTEN VERY CAREFULLY S.I.: a. You must attend and participate in all sexual counselling programs that are made available to you including High Intensity Sexual programming. b. You must participate in any other programs that are directed by Corrections Canada. c.

You must attend relapse prevention programs that are made available to you. d. You must reside only where directed and approved by Corrections Canada. e. You cannot return to Hall Beach or Igloolik during the term of this order. A. Ancillary Orders [ 70 ] It is mandatory that I impose a requirement that you must submit a sample of your DNA for the purpose of registration in the national DNA bank. [ 71 ] You must submit to the processes of the Sex Offender Registry. This order is mandatory and I make it for life.

[ 72 ] Pursuant to

section 109 of the Criminal Code , the Court directs that you be subject to a 15 year firearm prohibition order. Any firearms, ammunition, or explosive substances, together with any firearms licences or acquisition certificates must be immediately surrendered to the RCMP. [ 73 ] Crown counsel has agreed to allow an exemption for sustenance hunting under s.113 of the Criminal Code , but it is up to you, S.I., to convince the authorities that this is appropriate. [ 74 ] Due to financial hardship, I will not impose a victim fine surcharge. [ 75 ] Finally, pursuant to

section 161 of the Criminal Code you are prohibited from attending a public park, a public swimming area, a daycare centre, a playground, a school, or community centre where persons under the age of 16 are present, or can reasonably be expected to be present, except when under the supervision of a responsible adult. [ 76 ] You are also prohibited from seeking or obtaining employment or becoming a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16.

This of course means, among other things, that you cannot babysit, even your own children or grandchildren if they are under the age of 16. [ 77 ] This order is for life. [ 78 ] This court directs that Dr. Klassen’s Report be forwarded to Corrections Canada for their consideration. [ 79 ] S.I., I hope you meant what you told this Court last Monday when you said that you want to live a normal, healthy life. The only way to do that sir is to participate fully in all of the programs available to you during your incarceration. [ 80 ] It is not going to be easy!

To be successful, for the next 8 years you must become a strong partner in getting better. You must talk about your past and your offences. You must take every opportunity to participate in whatever programs are presented to you. You need to fully understand what you have done so that you can finally stop hurting young children. You cannot do that alone sir. You need the help of professionals.

I hope that you are finally at a point in your life where you will embrace the help offered so that someday you can return to your family without the urge to hurt anyone. [ 81 ] You know very well that being sexually assaulted at a young age causes serious invisible damage that is often catastrophic. You know it because you are a living example of what these kinds of things can do to a person’s life. I hope that by the time you are released from custody you will fully understand what you have put these children through. You have scarred them for life and robbed them of their childhood. It is time to stop.

It is time to heal. [ 82 ] Be assured, sir, that if you do not change your ways, the door which is now open a crack will indeed be shut and locked and your chance of freedom will be nothing but a dream. [ 83 ] It is all up to you. Good Luck sir. Dated at the City of Iqaluit this 28th day of March, 2014. ____________________ Justice B.Tulloch. Nunavut Court of Justice