R. v. C.A., 2015 NUCJ 31

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. C.A., 2015 NUCJ 31 Date: 20151105 Docket: 08-14-154 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: C.A. ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): J. Montgomery; B. McLaren Counsel (Accused): P. Bruce Location Heard: Iqaluit, Nunavut Date Heard: October 27, 2015 Matters: Criminal Code, s. 151 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” 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. INTRODUCTION [ 1 ] C.A. has entered a guilty plea to a single indictable offence of sexual interference contrary to

section 151 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code]. He is now to be sentenced. II. THE FACTS [ 2 ] In October 2013, C.A. is homeless. He is living in his brother L.A.’s house in Iqaluit. On October 19th, 2013, C.A. is asked to babysit L.A.’s five year old daughter A.B.. He agrees to do so. [ 3 ] When C.A. is alone with A.B., he takes the child to a bedroom. He removes the child’s clothing. He puts A.B. on a bed. C.A. then removes his own pants and puts on a condom. He attempts to penetrate A.B.’s vagina, but is unsuccessful in doing so.

C.A. eventually gives up, but not before causing some injury to the child’s genitals. [ 4 ] When A.B.’s mother returns home to discover this injury, the child is taken to the hospital where she is treated. A.B. tests positive for a sexually transmitted disease. The child protection authorities become involved. An investigation by the police soon follows. [ 5 ] Two months later C.A. is confirmed as having this same sexually transmitted disease and is treated for this condition. [ 6 ] C.A. is 20 years of age when he commits this offence.

He cooperates with the Royal Canadian Mounted Police and provides a statement admitting the offence. III. ANALYSIS

A. Aggravating offence characteristics (i). The age and vulnerability of the victim [7] This five-year-old child’s inability to defend herself, and lack of sophistication, leaves her very vulnerable to exploitation by adults.The potential for long term psychological harm to a child victim elevates this type of offence’s seriousness in the eyes of the law. ThisCourt has repeatedly emphasized in its judgments that this type of offence carries with it a very high degree of moral culpability (See R vDeJaeger, 2015 NUCJ 2 , 2015 NUCJ 02, paras 122 to 129 and paras 130 – 134; [2015] NuJ No 6 (QL)).

A sentencing courtmust recognize this vulnerability by emphasizing the sentencing principles of deterrence and denunciation. An exemplary sentenceshould be imposed on citizens who exploit a child’s vulnerability to satisfy their own selfish sexual needs. This common law sentencingposture has now been codified in

section 718.01 of the Criminal Code. This

section provides: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primaryconsideration to the objectives of denunciation and deterrence of such conduct. [8]

Section 718.2(

a) of the Criminal Code [section 718.2(a)] directs a sentencing court to increase a sentence where aggravatingcircumstances are present. This

section goes on to list a number of aggravating circumstances to be considered in sentencing. Section718.2(a)(ii.1) specifically references as an aggravating circumstance: (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years; (ii). The abuse of trust [9] A.B. was in C.A.’s care when she was victimized. As a babysitter, C.A. was entrusted by the victim’s parents to protect his youngcharge from anything that would harm her. Where the law imposes a duty of care to protect the vulnerable, then a breach of this dutybecomes particularly egregious.

To violate the sexual integrity of a child where there is a duty to protect can only be regarded as aprofound breach of a trust that the law regards as sacred. An exemplary and denunciatory sentence becomes necessary to reinforce andrepair the fundamental social values that have been undermined by this breach of trust. [10] This common law sentencing posture has once again been codified in Canada’s Criminal Code.

Section 718.2(a)(iii) specificallyreferences a breach of trust or authority as an aggravating circumstance that merits an increased penalty. (iii). The infliction of harm [11] The absence of any evidence of psychological harm to the child in this case does not reduce an offender’s overall moral culpabilityfor the offence. It is an offender’s willingness to assume the risk of causing such harm that propels this type of offence to the highestlevel of moral culpability. [12] There is evidence that this victim has sustained physical harm as a consequence of this offence.

Apart from the physical injurysustained through the attempted penile penetration of a five-year-old’s vagina, there is also evidence that the sexual contact by C.A.resulted in the child contracting syphilis. [13] The common law has always regarded the infliction of harm upon a victim as an aggravating circumstance. This common lawsentencing posture is once again now codified.

Section 718.2(a)(iii.1) requires a sentence to be increased to reflect: (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation.

(iv). The familial relationship [ 14 ] C.A. was a guest in his brother’s home when he committed this offence. C.A. is the child victim’s uncle. As in any family, the victim, and certainly the victim’s parents, expected this uncle to be kind, caring, and supportive of the little one. In the circumstances presented here, the familial relationship between the victim and the offender elevates the family’s acute sense of betrayal. B.

Mitigating offence characteristics [ 15 ] There are no mitigating offence characteristics presenting here. [ 16 ] There is no evidence to suggest that C.A. was in any way mistaken about the nature and quality of the act that he was perpetrating. C.A. was sober. C.A. knew what he was doing. He had used a condom in an effort to mitigate the effect of his intended sexual intercourse. C.A. knew that involving a five year old child in this sexual activity was both legally wrong and morally reprehensible. This act is as abhorrent to Inuit culture as it is to mainstream Canadian society.

The fundamental Inuit value requiring respect of others, particularly respect of the very young and the very old, was violated by this conduct. C. Mitigating factors related to the offender [ 17 ] C.A. was 20 years of age when he committed this offense. He has no criminal record. [ 18 ] C.A is a grade 12 graduate. Though unemployed when this offence was committed, C.A. has a solid history of employment with hotels, restaurants, construction companies, and gas stations. He has also been employed as a guard for a local security company. [ 19 ] C.A. has done remarkably well despite a disadvantaged background.

He was custom adopted at birth. At the age of three or four his parents separated and, as a consequence of abuse by his adoptive mother, C.A. was put into foster care by the child protection authorities. He remained in care until he was approximately 10 years of age. [ 20 ] While in care, he was taken hostage for some hours by a man wielding a knife inside his foster home. There was a standoff with the police. When the armed intruder attempted to leave the home with C.A. as his prisoner, he was shot and killed by the police in front of C.A. [ 21 ] C.A. was traumatized by this event.

He received some form of rudimentary counselling for post-traumatic stress. His behavior in the foster home and at school started to deteriorate, however. C.A. began to display significant anger and acted out both at home and at school. [ 22 ] C.A was eventually returned to his father (by custom adoption) by the child protection authorities. He was then raised by his Dad and his father’s new wife. [ 23 ] As a teen, C.A. began to resort to drugs and alcohol. The angry outbursts intensified. C.A.’s stepmother believes that C.A. continues to suffer from the effects of post-traumatic stress disorder.

The family has attempted to find counselling resources in Nunavut to treat C.A.’s dysfunctional behavior, but have been unsuccessful in doing so. [ 24 ] There is some suspicion by family that C.A. may also suffer from some degree of Fetal Alcohol Spectrum Disorder. There has never been any formal assessment done of C.A. for this disorder. Nunavut lacks the resources to carry out such an assessment. [ 25 ] C.A. is able to speak Inuktitut. He has been taught traditional on-the-land skills by his father and remains connected to his culture.

[26] The Court is required to factor into its analysis systemic factors that have led Aboriginal citizens in this country to becomemarginalized, disadvantaged, and overrepresented in the criminal justice system’s prisons. The Court has done so. [27] The Court has directed its mind specifically to the criteria identified by the Supreme Court of Canada in the decision of R v Gladue, (SCC), [1999] 1 SCR 688, [1999] 1 SCR 688 (QL), and the provisions of

section 718.2(

e) of the Criminal Code. [28] To the extent that C.A.’s chaotic and disadvantaged background has impacted on C.A.’s overall moral culpability for committingthis offence, this background must be taken into account in mitigation of sentence. D. Mitigating factors arising after the commission of the offence (i). The guilty plea [29] The guilty plea to this offence is entitled to considerable weight in mitigation of sentence. There are two reasons for this. Such aposition encourages offenders to accept responsibility for their misdeeds.

This also recognizes the great benefits associated with relievingcomplainants of their obligation to testify. [30] The trial process requires witnesses to relive their experiences in a public setting. Witnesses are subjected to close examination bylawyers. The reliability or credibility of their evidence is often challenged. Raw emotions are exposed by this. There is great anxiety,humiliation, and anger generated by this truth finding process. Testifying in a trial environment can exacerbate old trauma and create newtrauma.

This is particularly true of children who are required to testify and relive traumatic events that they have experienced. It is alsotrue of many adult witnesses who may struggle with post-traumatic stress long after a frightening or violent experience has passed. [31] Trials with very young witnesses are fraught with difficulty for the Crown. The very young child may freeze in court or beotherwise unable to communicate the evidence. The entry of a guilty plea avoids a trial. The child victim is relieved of the necessity oftestifying. This serves the overall interests of justice.

The benefits accruing to the administration of justice must be recognized and givenweight by reducing the sentence that would otherwise have been imposed. (ii). Genuine remorse [32] The Court finds that the guilty plea in this case is accompanied by genuine remorse. C.A. is acutely aware that he has not only lethimself down, but has severely damaged his familial relationship with his brother and his wife and young cousin. (iii). Detention credit [33] C.A. has been in pre-trial detention since February 5th, 2015.

Both the Criminal Code and common law jurisprudence require theCourt to consider this period of detention in mitigation of sentence. It is agreed by counsel that the credit for this period should run at therate of one for one. This amounts to a credit in mitigation of sentence of 240 days. (iv).

Involvement in programming while in detention [34] C.A. is also entitled to consideration for his active involvement in programming during his stay at the Baffin Correctional Center.His successful completion of programming for Substance Abuse, Alternatives to Violence, and Psychological Services are supported byCertificates of Completion (sentencing exhibits 2, 3, and 4 in this proceeding).

[35] The rationale for affording a sentencing credit for successful completion of programming was outlined by this court in R vNewkingnak, 2015 NUCJ 22, at paras 47 through to 53, 2015 CarswellNun 22, which are reproduced here: [47] The reality in Nunavut is that many forms of remedial counselling and treatment are not available in the communities. Specializedtraining is needed to address sexual offending, domestic violence, mental health issues, and drug and alcohol dependencies. Many otherjurisdictions in Canada offer specialized programming for sex offenders and domestic violence that is community based.

Mostjurisdictions have some form of residential treatment available for serious drug and alcohol dependencies. [48] Nunavut’s Community Corrections [Community Corrections] does not offer any form of treatment for sex offenders at thecommunity level, despite a very high per capita incidence of this type of offending. There are no specialized relapse prevention programs.Rankin Inlet is the only community in Nunavut that offers a dedicated treatment program for domestic violence.

This program is not runby Community Corrections. [49] Community Corrections has neither the funding nor the capacity to deliver these specialized treatment programs at the communitylevel. In Nunavut, beleaguered social workers and probation officers in the communities are tasked to take on the additional burden ofproviding the counselling and follow up needed to address these serious issues. Though well intentioned, these community workers arenot positioned to provide the specialized therapy needed to address these issues.

They have neither the time given their large caseloadsnor the expertise needed to be effective. [50] The high recidivism rate in Nunavut is driven in part by the absence of viable treatment options available to citizens in thecommunities. In the absence of community based treatment options, probation orders can have little impact on the lives of disadvantagedand dysfunctional citizens who come before the court needing help.

Where offenders continue to reoffend, gaol becomes the only viableoption open to the court to protect the public. [51] The funding needed to access specialized treatment programs outside Nunavut is under the control of a different governmentdepartment. The Nunavut Department of Health does not consider itself bound by court orders for specialized treatment outside theterritory.

This is particularly true for orders requiring offenders to take and successfully complete residential treatment programs for drugand alcohol dependencies as a condition of probation. [52] The Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code], and the Controlled Drugs and Substances Act, SC 1996, c 19,was amended some years ago to allow a court to adjourn sentencing in order to facilitate an offender’s attendance at governmentapproved treatment programs. Mandatory gaol sentences for certain types of offences can then be avoided in circumstances whereoffenders complete these approved programs.

The Government of Nunavut has yet to designate or approve any programs in Nunavut, orelsewhere, under these provisions of the Criminal Code. [53] The court has had to adjust its sentencing posture to reflect the stark realities of Nunavut. By ensuring that a sentencing benefit isafforded to those citizens who take advantage of programming, programming that is only available to those in custody, the court seeks toencourage participation in remedial programming by all inmates. Some programming in custody is better than none at all. (v).

Cooperation with the investigating authorities [36] C.A. waived his legal right to remain silent. He provided a statement to the authorities admitting his responsibility for the offence.For sentencing purposes, an offender’s willingness to cooperate with the investigating authorities is a factor to be weighed in his or herfavour. E. Jurisdictional considerations [37] Nunavut leads the country in the per capita rate of commission of sexual offences. This is also true of sexual offences committed byadults on children. This type of crime remains a persistent and pressing problem in all of Nunavut’s communities.

Comparative statisticsrelated to this type of offence and offences against children generally have been referenced by this Court in a number of recent decisionsand will not be repeated here (See R v DeJaeger, 2015 NUCJ 2 , 2015 NUCJ 02, paras 172 through to 178, 2015 CarswellNun 4;and R v Shappa, 2015 NUCJ 26, at para 7, 2015 CarswellNun 260).

[ 38 ] The prevalence of sexual offences against children in Nunavut is relevant to the need for emphasis on general deterrence as a sentencing principle. IV. CONCLUSION A. Sentence calculation [ 39 ] Had this matter proceeded to trial, a sentence in the range of four to five years would have been entirely appropriate given the many aggravating features of this offense. However, the end result must not only reflect the seriousness of this offence committed by this offender in this jurisdiction, but must also take into account C.A.’s relatively young age, lack of criminal history, and potential for rehabilitation.

The law ordinarily requires a sentencing court to also take into account any detention in remand prior to sentence being imposed. In view of C.A.’s disadvantaged background, the principle of restraint as codified in

section 718.2 (

e) of the Criminal Code must be considered and applied in these circumstances. [ 40 ] C.A.’s commitment to his own rehabilitation while incarcerated tips the balance in terms of the overall length of sentence. But for the lack of criminal history and C.A.’s involvement in programming, the sentence would have been longer. [ 41 ] In the end result, C.A. is sentenced to 969 days of custody. From this total must be deducted 240 days of detention in remand.

This leaves a sentence of 729 days remaining to be served (two years less one day). [ 42 ] C.A. will be on probation for a period of three years following his release from custody. The conditions of the probation order will be as follows: [ 43 ] C.A. must: a. Keep the peace and be of good behaviour; b. Report to a probation officer within seven days of his release from custody and thereafter report to and be under the supervision of the probation officer for the full duration of the probation order; c.

Take and successfully complete, if directed by his probation officer, sex offender counselling, anger management counselling, and trauma counselling related to his own victimization; d. Have no contact, directly or indirectly, with the child victim or her parents (except such contact as is approved in advance and in writing by the probation officer). Any such contact must be consented to by the child victim and her parents and must be supervised by a responsible adult.

This exception is built into this order to facilitate an attempt at offender/victim reconciliation with the possible involvement of the probation officer and/or local justice committee. Once again, both the parents of A.B. and A.B. must be willing to participate in such a process; e. Not to go within 50 metres of the child victim’s residence or school; f. Have no unsupervised contact with any child under the age of 14 years. Any such contact must occur in the immediate presence of a sober adult; g. Not live (or over-night) at any house in which a child under the age of 14 years is resident;

h. Attend court in person within 12 months of your release from custody for the purpose of a probation review. The time, date, and place of this review is to be set by the probation officer (The Court sets this review to see what steps, if any, the Government of Nunavut has taken to address C.A.’s indicated therapeutic needs). B. Ancillary orders [ 44 ] Pursuant to

section 109 of the Criminal Code , C.A. is prohibited from possessing or using any firearms, ammunition, or explosives for a period of 10 years from the date of this order. Any such items now in his possession or under his control must be lawfully disposed of within 30 days of this order. [ 45 ] C.A. is prohibited for life from possessing any prohibited or restricted firearm, prohibited weapon or device, or prohibited ammunition. Any such items now in C.A.’s possession or under his control must be surrendered immediately to the nearest police detachment.

Any such items are ordered forfeited to the Attorney General for the purpose of destruction. [ 46 ] C.A. is a subsistence hunter. He is granted an exemption under

section 113 of the Criminal Code to use a firearm for subsistence hunting purposes only. [ 47 ] C.A. is ordered to submit a sample of his DNA for registration in the national DNA databank. This order is mandatory for primary designated offences as defined by

section 487.04 of the Criminal Code . [ 48 ] C.A. is ordered to submit himself to the processes of the national Sex Offender Registry as set out in sections 490.11 through to 490.16 of the Criminal Code . This order is for twenty years. [ 49 ] Pursuant to

section 161 of the Criminal Code , C.A. is prohibited from seeking or obtaining any employment, whether remunerated or not, or becoming a volunteer in any capacity that involves being in a position of trust or authority to any person under the age of 16 years. This order is for 10 years. [ 50 ] The victim fine surcharge is waived for reasons of hardship. C. Orders and recommendations on the warrant of committal [ 51 ] Pursuant to

section 743.21 of the Criminal Code , C.A. is prohibited from having any contact or communication with the victim A.B. or her parents while serving this sentence of custody. [ 52 ] It is recommended that C.A. receive intensive sex offender programming while serving this sentence of custody. [ 53 ] It is further recommended that following completion of this programming, C.A. be considered for placement at the Rankin Inlet Healing facility. D.

Directions to the clerk [ 54 ] Upon receipt of the court-ordered sex offender risk assessment previously ordered by this Court, a copy of this assessment is to be forwarded to the attention of C.A.’s case management officer and the Nunavut Corrections psychologist.

Dated at the City of Iqaluit this 5th day of November, 2015 ___________________ Justice R. Kilpatrick Nunavut Court of Justice