R. v. LP, 2011 NUCJ 08

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. LP, 2011 NUCJ 08 Date: 20110504 Docket: 08-11-54 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: LP ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): A. Porteous Counsel (Accused): G. Magee Location Heard: Iqaluit, Nunavut Date Heard: March 9, 10, 2011 Matters: Criminal Code , ss. 271 REASONS FOR JUDGMENT (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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. THE FACTS [ 1 ] Seventeen year old AB was sleeping soundly. She was in her own bed. She was in her own bedroom. The door was shut. AB was safe, or so she thought. [ 2 ] AB did not hear or see the bedroom door open. In the dead of night, LP slipped quietly into the bedroom. He pulled back the bedcovers to expose AB’s legs. AB became restless. She readjusted the bedcovers to cover herself, and fell back to sleep.

She awoke some time later to find her legs again exposed. She once again adjusted the covers. As AB began to drift off, she became conscious of something slowly moving up her leg inside her pyjamas. It moved to her upper thigh. AB woke up with a start. [ 3 ] LP quickly withdrew his hand from inside AB’s pyjamas. He ducked down behind the bed in an effort to avoid detection, but it was too late. AB recognized LP. AB was angry. She had every reason to be upset.

LP immediately left the room when confronted. [ 4 ] LP may have had far too much to drink that night, but he was sufficiently sober to acknowledge that what he had done to AB was very wrong. Shortly after leaving AB’s bedroom, LP returned to the bedroom and apologized to AB through the bedroom door. He provided a second apology to AB the following day by telephone. II. THE CHARGE [ 5 ] LP has entered a prompt guilty plea to a charge of sexual assault. The Crown seeks a custodial sentence of 90 days in the form of a conditional sentence.

The Defence urges the Court to suspend the passing of sentence and impose a structured term of 9 months to a year of probation. The Defence also asks the Court to exempt LP from the requirement to register on the Sex Offender Information Registry. It is said that the mandatory reporting regime required of those registered as sex offenders would have a grossly disproportionate impact on LP’s privacy and liberty interests. A. Mitigating sentencing considerations [ 6 ] LP is twenty-four years of age. He has no criminal record. He is a full time student with career ambitions.

LP hopes to secure employment as a Fisheries Officer, a Wildlife Officer or possibly even a Park Ranger. He has a commendable record of nine years volunteer service as an athletic coach. He is an accomplished athlete himself. [ 7 ] LP was cooperative with the investigating authorities. He is entitled to substantial credit for his early guilty plea. LP has remorse. The claim of remorse is consistent with an early guilty plea.

The offence appears to be out of character for LP. [ 8 ] Rehabilitation and the principle of restraint are important sentencing considerations in this case given LP’s exemplary background and youthfulness. B. Victim impact – the potential for harm [ 9 ] There is growing recognition at all levels of contemporary society that the sexual offence can cause significant psychological and emotional harm to its victims. The impact caused by lesser forms of sexual abuse can also be severe and long lasting, particularly in the case of a youthful victim; in this case, a teenager.

The psychological harm sustained by a youth is not necessarily proportional to the

type, or degree of force used to commit the sexual offence. It cannot be assumed that a less intrusive form of sexual contact, contact other than penetration, will always result in minimal victim impact. This is a myth. [ 10 ] For a youthful victim, the potential range of impacts can be as broad as they can be severe. A youth’s understanding of their sexual identity, their ability to trust and bond with members of the opposite sex, their sense of self-respect, are all things that are readily damaged by lesser forms of sexual offending. This damage can potentially last a lifetime.

It can manifest itself through social dysfunction of varying kinds and degrees of severity. Depression and anxiety, anger and fear, mistrust, confusion and self-blame, may all be the sad and enduring legacies of an unwanted sexual experience. [ 11 ] The moral culpability of an adult who takes sexual advantage of a sleeping victim is elevated. Where a child or youth’s vulnerability is exploited by an adult for their own selfish sexual gratification, moral culpability is substantially elevated. The risk of causing serious psychological harm to an impressionable teen by a sexual offence is very real.

The sentencing position of the Court should reflect this. Parliament has specifically directed the Courts to address sentencing with this in mind (see

Section 718.2 (a) (ii.1) of the Criminal Code ). [ 12 ] There is no specific victim impact information tendered by the Crown in this case. Mr. LP is not to be sentenced on the basis of harm that is not in evidence. He is to be sentenced on the basis of his willful assumption of the risk of harm posed by his conduct. AB was vulnerable by reason of her age. AB was vulnerable because she was sleeping. The sentence must reflect these aggravating factors. C.

Sexual offences in Nunavut [ 13 ] Sexual offences involving sleeping victims are unfortunately a common occurrence in Nunavut and particularly in the community of Iqaluit. These offences tend to be alcohol related. Alcohol is readily available in the community of Iqaluit. The therapeutic intervention necessary to properly address the harm caused by sexual offences is not readily available in Nunavut. [ 14 ] In July 2009, Statistics Canada published a report entitled “Police Reported Crime Statistics in Canada.” For the year 2008, Canada as a whole averaged 64.5 reported sexual assaults per 100,000 citizens.

Nunavut reported a rate of 667.8 sexual assaults per 100,000 citizens. This is approximately ten times the national average. The sad reality is that both children and youth are also victims of violent crime at much higher rates in Nunavut than in the rest of Canada. [ 15 ] The Court must firmly address the sexual abuse of the young through a denunciatory sentence. [ 16 ] AB was related to Mr. LP’s girlfriend. AB had lived with LP’s girlfriend in this home for some time.

It was LP’s relationship with AB’s aunt that resulted in LP having full access to this home at all hours of the day and night. [ 17 ] While the physical intrusiveness of the touching in this case may be said to fall at the low end of the scale, the Court notes that the sexual assault was interrupted by the sudden waking of the victim.

This is not a case where LP decided to discontinue his criminal behaviour on his own. [ 18 ] The touching in this case was accompanied by the opening of a door, an unlawful entry into a bedroom at night, and the surreptitious movement of bedcovers in preparation for a sexual assault. Stealth was used to gain entry. When discovered, there was an attempt to hide in an effort to avoid identification. The touching was under clothing. LP’s offence cannot be characterized as a random or opportunistic “impulse of the moment.” Nor can it be characterized as a “stolen kiss” or a clumsy fondling over top of clothes. III.

THE SENTENCE [ 19 ] In arriving at the sentence, the Court has given anxious consideration to the purpose and principles of sentencing set out in

section 718 through 718.2 of the Criminal Code .

[ 20 ] Normally the Court seeks to avoid custody when dealing with a young adult for the first time. This is particularly so where the young adult has an unblemished record with a solid record of community service. [ 21 ] However, given the aggravating features of this offence, the Court finds that probationary measures alone would not adequately denounce the behaviour at issue. Probationary measures alone would send the wrong message to others. Probationary measures alone would send the wrong message to LP. The Court`s denunciation must be tangible.

It must have real impact to be effective. [ 22 ] The Crown urges this Court to impose a lengthy conditional sentence. The Court accepts that it does have the ability to impose this form of sentence on a sexual assault where the Crown proceeds summarily. This is so despite the unfortunate wording of

section 742.1 of the Criminal Code . [ 23 ] The Court is not convinced that a three month conditional sentence would be appropriate in LP`s circumstances, however. The stringent conditions of house arrest normally associated with a conditional sentence would be difficult to apply without significant damage to LP’s education and coaching activities. Society has everything to gain by ensuring that LP stays on track to graduate. The Court must look to other sentencing measures to achieve palpable deterrence and denunciation. It must attempt to blend these sentencing imperatives with the principle of restraint found in

section 718.2 (

d) and (

e) of the Criminal Code . [ 24 ] The Court is confident that for a person of LP’s standing in the community the shock of a cell door clanging shut will be a traumatic experience. A few hours of real custody will mean as much, if not more, to LP than many more days of house arrest in the comfort of his own home. [ 25 ] LP is sentenced to one day of real custody. He will serve this sentence as a guest of the RCMP. The sentence today would have been longer but for LP’s exemplary background. The Court has applied the principle of restraint in arriving at the duration of this custodial sentence.

The rehabilitation of LP must be balanced with the need to deter and denounce this type of behaviour. [ 26 ] The sentence of custody will be followed by 16 months of probation with the following terms and conditions: 1. You will keep the peace and be of good behaviour; 2. You will report to a probation officer within 72 hours of today. You will report thereafter to the probation officer as and when directed to do so; 3. You will remain under the supervision of the probation officer for the next 16 months; 4. You will report any change of address or occupation to the probation officer; 5.

You will perform 140 hours of community work service as and when directed by the probation officer and to the satisfaction of the probation officer. You may be afforded credit for any volunteer activities that you undertake as long as this is approved in advance by the probation officer; 6. You must not attend within 50 meters of the complainant’s residence; 7. You must have no contact or communication with the complainant. [ 27 ] The heavy term of community work service is a reflection of the Court`s view of the gravity of the offence.

The heavy community service order approximates three and a half weeks of work. This too, serves to denounce and deter, while ensuring that LP’s future prospects are not irreparably damaged. The best long term protection for society is achieved by LP’s ultimate rehabilitation.

A. The national Sex Offender Information Registry (S.O.I.R.) and the request for an exemption [ 28 ] Upon application by the Crown, the Criminal Code requires that a citizen convicted of a sexual assault be subject to the registration and reporting regime of the national sex offender registry. For a

summary conviction offence, the reporting requirement binds an offender for 10 years.

The Court may grant an exemption from registration but only where an offender can demonstrate that the impact on his privacy and liberty interests is “grossly disproportionate” to the public interest in protecting society through the effective investigation of crimes of a sexual nature. [ 29 ] LP resists the requirement that he be registered in the national sex offender registry and be subject to the reporting requirements associated with this. [ 30 ] The applicant argues that the reporting regime and the stigma associated with registration as a sex offender might cause him to lose both athletic and employment opportunities that would otherwise be available to a person of his abilities and background.

This would interfere with his rehabilitation. It is said that the public interest in having LP registered to facilitate the investigation of sexual offences is marginal given LP’s exemplary background, the lack of a criminal record, and the circumstances of the sexual offence for which he has been convicted. [ 31 ] LP says under oath that he needs to travel occasionally out of the country to visit a member of his extended family who is resident in the Dominican Republic. LP also travels outside Nunavut every year to attend competitions in his capacity as athlete and/or coach.

It is said that his registration as a sex offender will interfere with his legitimate travel needs to visit family out of the country and to participate in national sporting events in southern Canada. [ 32 ] If LP is successful in pursuing his educational objectives, he hopes to secure employment that will require frequent travel to remote areas of Nunavut. It is argued that these important career opportunities may be lost if he cannot travel due to stringent reporting requirements. B.

The Sex Offender Information Registry in Nunavut [ 33 ] All citizens subject to registration in Nunavut are required to report in person to a registration center to provide information relating to their physical identification and appearance, their current residence and contact information. This must be done within 15 days of the order being made, or their release from custody. They must report thereafter: a. Within 15 days after changing their main residence or secondary residence; b. Within 15 days after they change their given name or surname; c.

At any time between 11 months and one year after they last reported to a registration center; They must further report: a. Their departure and return dates and the locations in which they stay or intend to stay, if they travel within Canada but are absent from their main and secondary residences for more than 15 days; b. Their departure and actual return dates, if they are leaving Canada for more than 15 days.

[ 34 ] All RCMP detachments in Nunavut have been designated as registration centers for these purposes. [ 35 ] In Nunavut, the applicable Regulations permit citizens to report a change of name or address by telephone. For the purpose of reporting travel, these same regulations provide for notification by telephone or registered mail with confirmation of the actual return date to follow within 15 days of the citizen’s return from travel. C.

The legal test for exemption [ 36 ] The Court must first assess the impact of registration upon the applicant’s privacy and liberty interests. [ 37 ] This analysis must focus on the present and future effect of registration upon LP. The Court must consider all types of impact on the applicant’s privacy and liberty interests including the stigma attached to registration, the potential for loss of future employment arising from the reporting requirement, and the impact, if any, that this would have on the applicant’s rehabilitation.

The circumstances of the offence are irrelevant to this analysis. [ 38 ] The Court must then assess what effect, if any, that an exemption from registration would have on the public interest.

In making this analysis, the Court must consider the risk, if any, of re-offence, the nature of the crime likely to be committed, and the effect that an exemption from registration might have on the authorities’ ability to effectively investigate crime. [ 39 ] Finally, the Court must balance the evidence of impact on the applicant with the public interest and determine whether the resulting “imbalance” is grossly disproportionate to qualify for an exemption. The mandatory reporting that is consequent upon registration will undoubtedly be inconvenient to every citizen who is subject to it.

There is also a social stigma associated with this. Much more is required if an exemption is to be granted, however. [ 40 ] The burden of establishing “gross disproportionality” is upon the applicant. D. The impact of registration and reporting upon the applicant [ 41 ] The regulations applicable to Nunavut are designed for maximum flexibility in recognition of the unique problems associated with reporting from remote communities. Reporting can be done either by phone or letter with minimal disruption to the applicant.

There may be some inconvenience associated with having to telephone a local RCMP detachment to advise of travel plans but this cannot reasonably be characterized as a gross interference with LP’s life or lifestyle. [ 42 ] For annual athletic or coaching events requiring travel out of the jurisdiction, LP’s intended destination will be known well in advance. These events require a significant amount of advance planning. Billets or hotel accommodations must be arranged and funding secured to facilitate the athletic event.

A requirement that LP advise the authorities of his intended destination and anticipated date of return is not a particularly onerous obligation under these circumstances. [ 43 ] Given the privacy associated with the means of reporting under the regulations, it is difficult to anticipate any additional stigma being visited upon LP by the reporting requirement. Reporting by phone or letter can be done in relative privacy. The regulations do not require personal attendance.

No one needs to know about LP’s obligation to report except the police authorities. [ 44 ] No one is entitled to access the sexual offender database except the police authorities. The release of information from the database is strictly controlled by law to minimize the impact upon the registrant’s privacy and to facilitate an offender’s reintegration into the community. [ 45 ] It cannot be said that LP’s occasional travel out of the country to visit family is hindered by a reporting requirement. International

travel brings inconvenience to all citizens. There is invariably a requirement to report to Customs and Immigration upon entering aforeign country and immediately upon return to this country. Passports must be secured in advance, and in some cases visas obtained.Nunavut’s regulations allow for notification within 15 days of a citizen’s actual return to the country. Once again, all that is required is atelephone call.

The fact that LP has been formally convicted of a sexual offence may prove to be a much greater hindrance tointernational travel than the reporting required by registration. [46] There is nothing in evidence to suggest what effect, if any, a criminal conviction for a sexual offence might have on LP’s futureemployment prospects as a Park Ranger, Fisheries Officer or Wildlife Officer.

There is similarly nothing in evidence to suggest that areporting requirement would effectively preclude his employment in these areas. [47] The requirement to report a destination if away from a primary or secondary residence for more than 15 days can be met in Nunavutby indicating the area where the hunter or government officer is intending to operate, together with an anticipated date of return. Theneed for the authorities to know a precise destination under the Regulations is reduced where a citizen travels into a remote andunpopulated area.

The need for certainty of residence becomes imperative where travel takes place in populated areas where sexualoffences are likely to occur. [48] Nunavut’s regulations once again provide for notification by telephone or registered mail before a trip starts or up to 15 days afterdeparture with confirmation of the actual return date to follow within 15 days of the citizens return to their primary residence. [49] A prudent hunter or government officer travelling into remote regions of Nunavut for any extended period should be reporting theirplanned route “on the land” to the local RCMP detachment in any event.

This information will greatly narrow the scope of a search andrescue operation if one later becomes necessary. [50] It is probable that a government officer on extended duty travel into the remote regions of Nunavut would be equipped with both areliable G.P.S. unit as well as a satellite telephone. Both technologies are usually necessary for reasons related to their employment as apublic officer as well as for the officer’s personal safety. [51] The applicant relies on the case of R v W (GE), 2006 ABQB 317 396 AR 149 [WGE], to support his application for anexemption. The facts in WGE were markedly different.

The Court in WGE found that the uncertainties and demands associated with theapplicant’s employment goal as a long distance trucker would effectively preclude him from complying with the reporting regimerequired by Alberta’s regulations. The Court found that in WGE’s circumstances, the applicant’s registration as a sex offender wouldhave a substantial economic impact by forcing the applicant to give up his long held desire to become a long haul trucker. [52] The applicant in WGE was also recently married.

The Court found that the reporting requirement would place a significant strain onthe applicant’s new marriage and might potentially undo recent progress made by the applicant to maintain sobriety. In these unusualcircumstances, the Court determined that registration and reporting would likely have a significant and lasting impact upon theapplicant’s rehabilitation. [53] The evidence of real or potential impact before the Court in Mr.

LP’s case falls well below that established in WGE. [54] On the basis of the limited evidence now before the Court, it does not seem that either registration or mandatory reporting wouldhave any significant impact upon the applicant’s ability to either pursue his career ambitions or his travel to sports competitions. E. The impact of exemption upon the authorities’ ability to effectively investigate sexual offences [55] The case of WGE is again distinguishable. WGE involved sexual assaults committed by the applicant upon his former common lawspouse.

These offences arose within the context of a specific domestic relationship. Identification of the perpetrator is rarely an issue incases involving domestic assault. The victim knows the perpetrator. In these circumstances, the police have no real need to access apublic registry to identify an offender. The Court in WGE therefore concluded that the investigation of sexual offences committed within

a domestic relationship would not be significantly impaired by the granting of an exemption. [ 56 ] The offence profile at issue in LP’s case is very different. This case involves an unlawful and secretive intrusion into a bedroom at night by a non-family member. There is an attempt to avoid detection or identification. [ 57 ] The use of information collected by the Sex Offender Information Registry may be of significant assistance in cases where the identity of a perpetrator becomes an issue.

Under the circumstances presented here, the Court concludes that the investigation of sexual offences having these offence characteristics may be substantially impaired by the granting of an exemption. F.

Gross Disproportionality [ 58 ] In the circumstances of this case, the Court is not persuaded by the applicant that there exists a gross imbalance or disproportionality between the applicant’s liberty and privacy interests and the public interest in protecting society by the effective investigation of sexual crimes through the collection of information on the Sex Offender Registry. [ 59 ] Taken at its best, the evidence of the applicant suggests that registration and reporting may prove inconvenient.

Given the offence profile at issue in this case, the public interest in collecting information that relates to the identification of an offence perpetrator is substantial. The resulting imbalance, if any, falls on the side of registration, not exemption. [ 60 ] For all of the reasons advanced earlier, the Court cannot characterize the offence now before the Court as a minor one. A low risk of recidivism in LP’s case is only one of many factors to consider on the issue of disproportionality. The offence profile in this case involves a vulnerable victim – a young person.

There is a significant potential for harm to young victims from this type of offence. Some of LP’s out of jurisdiction travel relates to activities involving other youth when he will be acting in a supervisory position as a coach. [ 61 ] The evidence marshalled by the applicant falls well below the threshold required by law for the granting of an exemption under

section 490.012 (4) of the Criminal Code . The order for registration will therefore go as requested by the Crown. The Defence request for an exemption is denied. LP is entitled by law to apply for a termination order with respect to his registration after five years of good behaviour. IV. OTHER ANCILLARY ORDERS CONSEQUENT UPON CONVICTION [ 62 ] This Court also orders that LP also provide a sample of his DNA for registration in the national DNA database. This order is mandatory, sexual assault being a primary designated offence for the purpose of

section 487.051 of the Criminal Code . [ 63 ] The victim fine surcharge is waived for reasons of hardship. Dated at the City of Iqaluit this 4th day of May, 2011

___________________ Justice R. Kilpatrick Nunavut Court of Justice