R v AB, 2011 NUCJ 15

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v AB, 2011 NUCJ 15 Date: 20110714 Docket: 08-11-48 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: AB ________________________________________________________________________ Before: The Honourable Madam Justice S. Cooper Counsel (Crown): D. Garson, C. Punter Counsel (Accused): C. Lyons Location Heard: Iqaluit, Nunavut Date Heard: July 12, 2011 Matters: Criminal Code, s. 271 REASONS FOR JUDGMENT (Orally delivered) (NOTE: This document may have been edited for publication) Restriction on publication: By court order made under

section 486.4 of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. I. FACTS

[ 1 ] AB has plead guilty to a charge of sexual assault. The victim is his sister, who is two years older than him. AB admits that: i. On one occasion in 2007 the victim was in bed in her pyjamas. She awoke to him dressed and on top of her, simulating intercourse. ii. On one occasion in 2008 the victim was fully clothed and sleeping. She awoke to him on top of her, simulating intercourse. iii. On two occasions, once in 2010 and once in January of 2011, the victim awoke to AB having sexual intercourse with her. She pushed him off and he left. After the incident in 2010 she told her mother what had occurred.

Following the incident in 2011 she notified the police. [ 2 ] On each occasion AB had been drinking. It appears that the victim might have also been drinking. II. POSITIONS OF THE PARTIES A. Crown [ 3 ] The Crown asks for a period of incarceration in a federal penitentiary. They rely upon the decision of the Alberta Court of Appeal in R v Arcand, 2010 ABCA 363 , 264 CCC (3d) 134, and submit that, as this matter involves what is described as a major sexual assault, the starting point for sentencing is three years. B. Defence [ 4 ] The Defence submits that the appropriate sentence is one in the range of 18 months.

III. PERSONAL CIRCUMSTANCES [ 5 ] AB is 24 years of age. He is single and does not have any children. He shares a home with his mother and sister, the victim in this matter. I am advised that he had a difficult childhood – that both of his parents abused alcohol and that his father was violent towards his mother and sister. Although not specifically stated, I infer from counsel's submissions that his father has passed away. [ 6 ] Despite difficulties in his childhood, AB graduated high school.

He is currently employed full-time at a local retailer, a position he has held for three years. [ 7 ] Counsel have spoken with the victim. She says that in many respects AB is a good brother. She says that he has apologized and she has accepted his apology. She has advised that the guilty plea has greatly assisted her in dealing with this matter and putting it behind her. I am advised that AB has quit drinking since being charged, which is in accordance with the terms of the undertaking he was released on. [ 8 ] AB does not have a criminal record. This is his first time before the court. IV.

PRINCIPLES OF SENTENCING

[ 9 ] Deterrence and denunciation are primary sentencing objectives in this matter. AB and other like-minded individuals must understand that a sleeping woman is not there to be used for their sexual gratification.

Although the victim did not suffer physical injury, there is no doubt that there is a high likelihood that she suffered psychological harm, having been violated multiple times by her brother, a person who she would expect to protect her, in her own bed, a place where she would expect to feel safe. [ 10 ] Other sentencing principles, while not to be disregarded, must be applied having in mind the principles of deterrence and denunciation. [ 11 ] In determining the appropriate sentence, the Court must consider the aggravating and mitigating features of the offence. [ 12 ] Parity in sentencing is also important and the Nunavut Court of Justice is in the unique position of being able to ensure that throughout the Territory there is consistency in approach as to the weight to be given to the aggravating and mitigating factors. [ 13 ] Nunavut has the only single-level court in the country.

Resident judges of Nunavut hear all trial matters in all of the 26 communities of the Territory. They also sit on the Court of Appeal. The resident judges of our court come from years of living in and practicing law in the North. They are thus well equipped to assess the significance and relative weight of aggravating and mitigating features of an offence and to ensure that there is consistency in the approach throughout the Territory. V.

AGGRAVATING FACTORS [ 14 ] It is an aggravating feature of this offence that there are multiple incidents, which escalated in seriousness. [ 15 ] It is also aggravating that the victim was asleep in her own bedroom on each occasion, placing her in a more vulnerable state than she might otherwise be and removing any ambiguity regarding consent. [ 16 ] AB was intoxicated on each occasion. While intoxication is a neutral factor, in many cases intoxication may support an inference of spontaneity or lack of forethought.

While such an inference might have been reasonable if there was a single incident, the inference becomes less reasonable with multiple incidents. At some point, AB had to have realized what he was capable of when intoxicated and it was incumbent on him to address his drinking, if that was indeed a factor leading to the commission of the sexual assaults. [ 17 ] Clearly the familial relationship is of concern; however, this is not a trust relationship in the sense that there is a relationship of dependency between the offender and the victim. VI.

MITIGATING FACTORS [ 18 ] It is significant that AB does not have a criminal record. It is also significant that he is a high school graduate and has been employed full-time for three years. Perhaps these factors would not be significant in other jurisdictions, but Nunavut is struggling with an extremely low graduation rate and a very high rate of unemployment. The fact that AB has graduated from high school and has maintained the same job for three years indicates that he is generally responsible and able to function well. [ 19 ] It is a significant mitigating factor that AB has plead guilty to this charge.

He has done so at the earliest opportunity. [ 20 ] Courts frequently cite guilty pleas as mitigating factors on sentence. This court has stated several times that guilty pleas are significant mitigating factors, particularly in certain types of offences, and that a guilty plea must mitigate sentence in a real and meaningful way. [ 21 ] This is so for several reasons. A guilty plea saves the court the time and expense of a preliminary hearing and trial. This is

significant in a jurisdiction that is struggling with a high rate of serious violent crime and a shortage of judicial resources. [ 22 ] Most importantly, however, a guilty plea spares the victim from having to come to court and testify. The Court acknowledges how difficult it would have been for the victim to have come to court to testify against her brother. It is not unusual in this jurisdiction for witnesses in such cases to simply not come to court or, if they do come, to refuse to relate what occurred. [ 23 ] Nunavut has a small population. Even our largest communities are small.

When an offender is released from jail they most often return to their home community – the place where the offence occurred. Unlike big cities in the South, anonymity is not an option. Cultural ties, family bonds, and personal circumstances make moving to the South an unrealistic option for many.

There is a tremendous shortage of housing so when offences are perpetrated by one family member on another, and the two of them share a home, the offender and the victim frequently continue to reside in the same home upon the offender's release from jail. [ 24 ] The court in Nunavut has sometimes been criticized for arriving in a community, dealing with cases, and then simply leaving without having to deal with the aftermath of disharmony in the community and the family. [ 25 ] Restoring harmony in the community and the family is of the upmost importance and the court must do what it can to facilitate that process.

A guilty plea, as it is an acknowledgement of wrongdoing and an acceptance of responsibility, is a first step in that process. This case is a prime example of the rehabilitative impact of a guilty plea. [ 26 ] A preliminary hearing and trial, pitting sister and brother against each other, might well have torn this small family apart permanently. The victim's acceptance of AB's apology and his acknowledgment of wrongdoing and acceptance of responsibility at the earliest opportunity means that reunification of the family is possible. VII. CONCLUSION [ 27 ] There is no doubt that the sentence must be one of jail.

The question is really one of whether AB should be in the Territory or in a federal penitentiary. A sentence in a federal penitentiary would see AB removed from Nunavut. No family would be able to visit him, making it difficult for the family to deal with this. The Court would not have the option of placing him on probation to maintain some supervision over him after his release. [ 28 ] A sentence in the Territory means that family would be able to have regular visits and the process of reunification can begin.

A sentence at the high end of territorial time is a significant sentence, which would be visible in the community. VIII. SENTENCE [ 29 ] AB is sentenced to a period of incarceration of two years less a day. This is to be followed by two years of probation. The probation order, in addition to the statutory terms, will include the terms that you not drink and that you report to a probation officer within five days of your release from custody and thereafter as directed. You shall take such counselling as directed by the probation officer.

You are not to reside in the same house as the victim unless she provides her written, revocable consent to your probation officer. If the victim or a member of the RCMP asks you to leave the presence of the victim, you must do so immediately and you must stay away for 24 hours. [ 30 ] There will be a DNA order, an order under the Sexual Offenders Information Registration Act, and a 10-year firearms prohibition. Dated at the City of Iqaluit this 14th day of July, 2011

___________________ Justice S. Cooper Nunavut Court of Justice