R v AL and IL, 2011 NUCJ 23

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v AL and IL, 2011 NUCJ 23 Date: 20110825 Docket: 08-10-781; 08-10-823; 08-11-175; 08-10-110; 08-10-761; 08-10-780; 08-10-824 Registry: Iqaluit Crown: Her Majesty the Queen -and- Defendants: AL and IL ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Crown): M. Baldwin Counsel (Defendants): A.

Mahar Location Heard: Iqaluit, Nunavut Date Heard: August 15-16, 2011 Matters: Criminal Code, ss. 145 (5.1) (x3), 271 (x2), 348.1(b) (x7) Controlled Drugs and Substances Act, ss. 5(2) Youth Criminal Justice Act , ss. 137 (x2) Legislation Judicially considered: Youth Criminal Justice Act , ss. 39(1) (a), 39(1) (

d) REASONS FOR JUDGEMENT

(Delivered Orally) (NOTE: This document may have been edited for publication) Restriction on Publication: As ordered under s.110(1) 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." I.

FACTS [ 1 ] Today I am sentencing AL, who is 17, and IL, who is 16, for a number of offences they committed together in the City of Iqaluit between September 30, 2010, and March 30, 2011, and others that involved only AL. [ 2 ] On October 19, 2010, both broke and entered the Water’s Edge restaurant and stole some beer and food. On October 20, AL was questioned by the police about the break and enter at the Water’s Edge and admitted his involvement. During the questioning the police learned that both AL and IL had broken into a house on October 13.

The police were investigating a break and enter of that residence where the complainant was the victim of a major sexual assault. The police learned from AL and IL that their cousin, SL, was the leader of the group and that he had committed the sexual assault on the complainant. He is the subject of separate proceedings in this court that are in progress. [ 3 ] The police learned that, in the early morning hours of October 13, AL and IL were accompanied by their cousin, SL, when they broke into and entered the residence where the complainant was sleeping with her son.

SL used an approximately 12-inch long knife, that I would describe as a machete, to forcibly open the front door. Although AL entered the residence, he quickly retreated to the front door and remained outside as a lookout. SL entered the bedroom where the complainant was sleeping. She woke up with him holding the machete to her neck and demanding that she have sex with him. [ 4 ] The complainant was concerned that her son would be woken up and suggested they move to the bathroom. They walked to the bathroom with SL holding the machete to the complainant’s neck.

The complainant told SL that she would co-operate in having sex, but suggested that SL should put down the machete. SL put down the machete and the complainant performed oral sex on him that was followed by full sexual intercourse to ejaculation. IL was a bystander while the sexual activity was occurring and took no

part in it. The complainant suggested that they leave the residence and, as they were leaving, IL touched her vagina over her panties. [ 5 ] AL entered a guilty plea to breaking and entering with intent to commit theft and IL entered guilty pleas to breaking and entering and committing a sexual assault. AL also entered a guilty plea to a charge of breach of undertaking by failing to comply with a curfew and to failing to comply with

section 137 of the Youth Criminal Justice Act, SC 2002, c 1 [ YCJA ]. Both entered guilty pleas to a break and enter at the Iqaluit liquor warehouse on September 30, 2010, where they stole a significant amount of liquor. Most of the liquor was recovered and returned. [ 6 ] AL also entered guilty pleas to assault on February 11, 2011, and shoplifting at the Northmart on March 23, 2011. While investigating those offences, the police found 18 bags of marijuana and some money. AL entered a guilty plea to possession of marijuana for the purpose of trafficking. II.

ARGUMENTS [ 7 ] Because of the seriousness of the sexual assault of the complainant, the Crown is seeking a sentence of one year custody and supervision for AL, taking into account that he has served five months of pre-trial custody, and three years custody and supervision for IL, taking into account that he has already served 10.5 months. Defence counsel argues that time served and probation would be an appropriate sentence for AL while time served and a deferred custody order would be appropriate for IL.

He noted that, although AL has prior convictions for property and drug offences, he had no involvement in the sex assaults on the complainant. While IL committed a

minor sexual assault, he has no prior convictions. Defence counsel argues that the circumstances do not qualify for the maximum andthere is no credit for the guilty plea. [8] I heard arguments about the

interpretation of

section 39 of the YCJA and reserved judgment until today so I could read the casessubmitted by the Crown and consider the arguments. [9] Both counsel acknowledge that in order to impose a jail sentence I must find that subsection 39(1) of the YCJA has been satisfied.That subsection states: 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless (

a) the young person has committed a violent offence; (

b) the young person has failed to comply with non-custodial sentences; (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more thantwo years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act,

chapter Y-1 of theRevised Statutes of Canada, 1985; or (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence aresuch that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. [10] The Crown argues that the facts satisfy paragraphs (

a) and (

d) for both accused. In support of the “violent offence” requirement ofparagraph (a), the Crown argues that the emotional reaction of the victim, as painfully revealed in the victim impact statement, issufficient to meet the bodily harm requirement set out by the Supreme Court of Canada in R v CD; R v CDK, 2005 SCC 78, [2005] 3SCR 668.

The Crown also noted that in R v McGaw, (SCC), [1991] 3 SCR 72, 66 CCC (3d) 517, the Supreme Court ofCanada held that bodily harm may be made out through psychological injury or hurt. [11] The Crown argues that both of the accused participated in a home invasion, a fact that satisfies the violent offence requirement eventhough they were not the main participants. They both knew that SL had the machete when they entered the house and both knew it wasoccupied when they entered, even if they did not know he was going to commit the sexual assault. [12] Defence counsel acknowledges that paragraph (

a) has been met with respect to IL, but not with respect to AL. However, Defencecounsel argues that the exceptional circumstances required by paragraph (

d) have not been satisfied for either accused given the lack ofparticipation by either in the major sexual assault carried out by SL. III. ANALYSIS AND APPLICATION [13] These sections of the YCJA were recently discussed by Chief Judge Gorin of the Territorial Court of the Northwest Territories in Rv JK, 2011 NWTTC 11, [2011] NWTJ No 27 [JK], and I accept his

summary of the legal principles at paragraph 8 where he stated: In order for custody to be imposed under s. 39(1)(

a) the offence must be a “violent offence”. The term “violent offence” is not defined inthe YCJA. However, the Supreme Court of Canada has held that in order for an offence to be a “violent offence” within the meaning ofs. 39(1)(a), it must be an offence in which bodily harm was caused, threatened, or attempted: R. v. C.D.; R. v. C.D.K., (supra). “BodilyHarm” is defined at

section 2 of the Criminal Code as meaning “any hurt or injury to a person that interferes with the health or comfortof the person and that is more than merely transient or trifling in nature”.

[14] As noted by Chief Judge Gorin at paragraph 11, the Supreme Court of Canada in R v McDonnell (SCC), [1997] 1SCR 948, 114 CCC (3d) 436, held that the Crown is required to prove the aggravating factor of psychological trauma beyond areasonable doubt. In JK, the Crown relied on the victim impact statement to prove the psychological harm. However, Chief Judge Gorinfound the statement was deficient in meeting the standard of proof.

He concluded that the Crown had not satisfied paragraph 39(1)(a). [15] The victim impact statement in this case is detailed and compelling, unlike the statement in JK, and I am satisfied that it meets thereasonable doubt standard. However, it is directed at the actions of SL rather than those of AL and IL. She states: “I tried to convince SLthat I was inclined to welcome him and his desperate manhood.” [16] The bulk of the harm was caused by the major sexual assault on the complainant by SL. However, the minor sexual assault by ILwas no doubt a contributing factor in the trauma experienced by the complainant.

Defence counsel wisely conceded that paragraph39(1)(

a) was satisfied for him. [17] The Crown sought to bring AL within paragraph 39(1)(

a) by describing the incident as a home invasion emphasizing the overallimpact of the presence of three people in the house. To find this was an aggravating factor, the Crown must satisfy

section 348.1 of theCriminal Code, which states: 348.1 If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to adwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. [18] While it appears AL knew the residence was occupied, there is no evidence that he used any violence or made any threats to thecomplainant. As a result, this aggravating factor is not applicable to him. [19] As noted in JK at paragraph 26, the Ontario Court of Appeal in R v W (RE) (2006), (ON CA), 79 OR (3d) 1,205 CCC (3d) 183, considered the requirements of paragraph 39(1)(

d) and held that it is the nature of the offence itself that must beconsidered when determining whether the subsection is applicable. The offender’s background and circumstances should not be takeninto account. “Exceptional cases” are cases where any sentence other than custody would undermine the purposes and principles ofsentencing set out in

section 38 of the YCJA or where applying the general rule against custody would undermine the purpose of the Act.“Exceptional cases” must be limited to the clearest of cases where custody is obviously the only justifiable disposition. One such instancewould be where the circumstances are so shocking as to threaten widely shared societal views. [20] At paragraph 30 of JK, Chief Judge Gorin lists a number of cases that found exceptional circumstances for the purposes ofparagraph 39(1)(d).

These include R v S(KG), 2009 NUCJ 9 , 2009 NUCJ 09, 82 WCB (2d) 797, where Justice Kilpatrickfound exceptional circumstances when a young offender was convicted of 17 break and enter offences, 15 of which were for entry intoresidences. [21] The facts for AL are a routine break and enter and the Crown would not be arguing the application of subsection 39(1)(

d) if it werenot for the association of AL with the other accused who committed more serious offences. His association with them in entering theresidence does not satisfy the aggravating circumstances of

section 348.1 of the Criminal Code and I am satisfied that paragraph 39(1)(d)of the YCJA is not applicable. [22] As a result, custody is not applicable for AL. I am satisfied that the sentence proposed by Defence counsel is appropriate andsentence him two years probation, taking into account the time served.

[ 23 ] I am satisfied that the minor sexual assault IL committed during the break and enter satisfies the violent offence requirement of paragraph 39(1) (

a) of the YCJA and that I may impose a period of custody, including a deferred custody order. However, before imposing deferred custody, I have to determine whether the sexual assault was a “serious violent offence” within the meaning of

section 2 and subsection 42(9) of the YCJA . If I make this finding I am precluded by subsection 42(5) from making a deferred custody order. [ 24 ] I adopt the words of Chief Judge Gorin at paragraph 18 of JK on the test for a serious violent offence. He states: Consequently the requirements of a “serious violent offence” as defined by the YCJA and “violent offence” defined by the Supreme Court of Canada for the purposes of s. 39(1) (

a) are similar but not identical. A “serious violent offence” requires bodily harm that is caused or attempted and which interferes in a substantial way with the victim’s physical or psychological integrity, health or well being. In addition to cases where bodily harm is caused or attempted, a “violent offence” will also be made out in cases where bodily harm is threatened. As well, the bodily harm required for an offence to be a “violent offence” need not be “substantial”. It need only interfere with the health or comfort of the person and be more than transient or trifling in nature.

Stating the obvious, if an offence does not fit the definition of a “violent offence” it cannot meet the criteria of a “serious violent offence”. [ 25 ] As noted earlier, I am satisfied that IL’s minor sexual assault contributed to the traumatic effects described by the complainant in the victim impact statement. He touched her briefly as they were leaving the house, but never threatened her in any way. However, I am not satisfied that his actions contributed in a substantial way to the psychological trauma described by the complainant.

The bulk of the complainant’s symptoms are the result of the terrifying experience of having been raped in her own house by SL at knifepoint. I therefore conclude that the sexual assault IL committed was not a serious violent offence. [ 26 ] IL is before this Court for the first time and has made good progress at the young offenders’ center as indicated in the institutional report filed. The report notes that ML is prepared to take him in Town A as soon as he is released from jail.

IL and his family look forward to a fresh start in Town A and ML appears to be ready to put in place the structure and discipline that is required. He has spent 10.5 months in custody and I must apply the sentencing principles set out in

section 38 of the YCJA . The purpose of sentencing a youth is set out in subsection 38(1) , which states: 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 the public. Paragraph (

e) states: (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. [ 27 ] I am satisfied that a six months deferred custody order will satisfy those principles in the circumstances of this case.

In addition to the statutory conditions set out in subsection 105(2) of the YCJA , IL will travel as soon as possible to Town A and will reside with ML. He will return to school and will report back to court at the next circuit in Town A in 2011. He will be on a curfew from 10 p.m. to 8 a.m. [ 28 ] I also grant the DNA order requested for both Defendants and a ten-year SOIRA order for IL.

Dated at the City of Iqaluit this 25th day of August, 2011 ___________________ Justice E. Johnson Nunavut Court of Justice