R. v. S.N., 2015 NUCJ 25

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. S.N., 2015 NUCJ 25 Date: 20150825 Docket: 08-14-206 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: S.N. ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): A. Porteous Counsel (Accused): J. Thompson Location Heard: Iqaluit, Nunavut Date Heard: August 11, 2015 Matters: Criminal Code, s. 151 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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. I. INTRODUCTION [ 1 ] S.N. has pled guilty to a single indictable offence of sexual interference. He is now to be sentenced for this offence. II.

THE FACTS [ 2 ] On the night of this offence, S.N. is not getting along with his common-law spouse of 12 years. C.D., S.N.’s spouse, is not doing the dishes as frequently as S.N. desires. They have a heated argument. This quickly deteriorates into name calling and verbal abuse. C.D. accuses S.N. of being sexually involved with his 15-year-old step-daughter (A.B.). C.D. refuses to have any further sexual relations with S.N. until he is tested for a sexually transmitted disease. Nothing is resolved by this exchange of insults and accusations.

The spouses soon go their separate ways. [ 3 ] For some time, S.N. broods over the false accusation. His anger grows. S.N. decides to do what he has been accused of doing. This would be his revenge. [ 4 ] Later that same night, S.N. quietly slips into the children’s bedroom. There are three children asleep on a bed. The victim, A.B., is there. She lies on the outside of the bed and is easily accessible. S.N. pulls down A.B.’s panties, exposing her genitals and buttocks. He fondles A.B.’s vagina. He then attempts to penetrate A.B. from behind. He is not successful, however.

A.B. flees the bed, the bedroom, and the house. [ 5 ] The next day, A.B. tells her aunt what S.N. has done. A.B. is then taken to the police station. When C.D. finds out, she is furious. The relationship with S.N. ends abruptly. C.D. eventually moves back to her home community. The family disintegrates. The child protection authorities get involved.

[ 6 ] The victim A.B. now lives in a group home. The children are all separated. Some are in care. A.B.’s younger sister now lives in a distant community with her step-mother. [ 7 ] A.B. blames herself for the breakup of her family. She blames herself for the breakdown of her parents’ relationship. She misses those of her siblings who are now inaccessible to her. Her life will never be the same. She is devastated by these events. III. ANALYSIS A. Aggravating offence characteristics (i). The age of the victim [ 8 ]

Section 718.2 (a)(ii.1) of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code], deems any abuse of a person under the age of 18 years to be an aggravating circumstance. This represents a codification of common law jurisprudence that is of ancient origin. (ii). The breach of trust [ 9 ]

Section 718.2(a)(iii) of the Criminal Code deems any abuse of trust or authority to be an aggravating circumstance. This

section of the Criminal Code merely codifies common law jurisprudence that extends back in time for at least two centuries. This too is simply a proposition of common sense. [ 10 ] Raising a child as a parent or step-parent gives rise to significant legal responsibilities. Together, the parents share responsibility for the child’s wellbeing. The child cannot support itself so there is a parental duty to provide the necessities of life. The child is vulnerable so there is a parental duty to protect. A family is there to provide comfort and safety to those within it.

It is there to be a safe haven or refuge from the storms of life. It cannot become a place of fear or torment. [ 11 ] Love, respect, trust, and duty - these are the four pillars upon which the institution of the family is built and maintained. These values define who we are and what we want to be, as a family, as a society, and as a people. It is the unconditional application of these parental responsibilities that make a parent a parent, and a family a family.

Parental responsibilities are integral to any parent-child relationship. [ 12 ] The trust relationship between parent and child underlies important social values that the law seeks to protect. These are social values that are worth protecting. Any type of violence, particularly sexual violence, that is committed by a parent against a child damages the core social values that are the underpinnings of the family unit. Sexual violence destroys the trust that is integral to a nurturing relationship. It is a denial of everything that a parent-child relationship is there to provide.

This is not only a breach of duty, it is

an act of betrayal. The emotional harm caused by such a breach of trust cuts deep. [ 13 ] Inuit traditional values are centered on respect for others. This type of offence, and the breach of trust underlying it, is as abhorrent to the Inuit as it is to mainstream Canadian society. [ 14 ] A.B. had lived with her biological father for some time before this offence. She had returned to S.N.’s home approximately a year before the offence occurred as a result of being sexually abused by another male in that home.

As a result of this earlier victimization, A.B. was as emotionally fragile as she was vulnerable. [ 15 ] A.B. had been raised since about the age of four by both S.N. and C.D. A.B. had every right, and every expectation, to be safe in her family home. She had every right, and every expectation, to be protected by her step-dad, not violated by him.

(iii). The presence of planning or premeditation [16] This was not just a senseless “crime of opportunity” that can be passed off to some form of intoxication and a “spur of the moment”loss of inhibition. S.N. was completely sober when he committed this offence. He knew that what he was doing was morallyreprehensible and legally wrong. There was some thought involved in S.N.’s surreptitious entry into A.B.’s bedroom. S.N. deliberatelycommitted this offence to pay his spouse back for her earlier accusation. (iv). Victim impact [17] Evidence that an offence has had a significant adverse impact on a victim is deemed by

section 718.2(a)(iii.1) of the Criminal Codeto be an aggravating circumstance. [18] The moral culpability of an adult who is prepared to risk harming a vulnerable teen for the sake of his own sexual gratification isvery high. The Court once again reiterates what it said in the case of R v DeJaeger, 2015 NUCJ 2 , 2015 NUCJ 02, 2015CarswellNun 4 [DeJaeger], at paragraphs 123 to 125: [123] Adolescents are emotionally fragile. For a child victim of sexual abuse, the potential range of impacts can be as broad as they canbe severe.

The child’s sense of self respect, their ability to trust and bond with others, and their sexual identity are all things that areeasily damaged. As the sexual violence increases in severity, or where sexual victimization is prolonged or repeated, the psychologicaldamage associated with this form of violence is likely to be enhanced. Sexual violence to an adolescent can be expected to leave a trail ofdamage and destruction in its wake. This damage can last a lifetime. [124] This psychological harm can manifest itself in depression and self-destructive behaviour later in life.

It can fuel substance abuseand addiction as the child turns to alcohol and drugs in an effort to dull the pain. This damage may generate intense anger andinterpersonal conflict with others. With loss of self-respect, there is an enhanced risk of suicide and self-harm. [125] Mistrust of others is usually an enduring legacy of child sexual abuse. Once lost, a child’s trust in adults will be difficult to recover.This mistrust may cause the child to withdraw socially from those around them, particularly other adults.

The victim’s ability to formmeaningful intimate relationships with others later in life may be compromised. A close relationship may become much more difficult toachieve. [19] The Victim Impact Statement filed in this proceeding (Court Exhibit S-1 [Exhibit]) indicates that A.B. now blames herself for whathas happened to her family. This adolescent needs help if she is to avoid sliding into depression and self-destructive behavior.

The Courtauthorizes a copy of this Exhibit, and this judgment, to be immediately released to the Nunavut Director of Child and Family Services. [20] The Court urges the Nunavut Department of Child and Family Services [the Department] to move quickly, if it has not already doneso, to provide intensive therapeutic counselling to A.B. in order to address this issue. This is needed to rebuild A.B.’s battered self-image.If qualified therapeutic help is not available in Nunavut, then it should be.

The Court urges the Department to consider a referral to anoutside agency if necessary to ensure that the needs of this adolescent victim are adequately addressed in a timely manner. [21] Given the many aggravating circumstances of this offence, emphasis upon the sentencing principle of denunciation and deterrencebecomes necessary to properly reflect the seriousness of this type of offence committed in these circumstances. [22] The focus on these particular sentencing principles is also mandated by

section 718.01 of the Criminal Code, which 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.

B. Mitigating offence characteristics [23] There are no mitigating offence characteristics. This is not a case where the offender laboured under some misapprehension ormistake of law. C. Aggravating factors related to the offender [24] There are no identified aggravating factors. The Crown does not allege a criminal record. D. Mitigating factors related to the offender [25] S.N. is 32 years of age. He has not previously been convicted of a criminal offence.

S.N. had the good fortune to be custom adoptedat an early age by his grandmother, who had become very concerned about his biological mother’s constant drinking. [26] S.N. was raised in a good home by loving adoptive parents. He had a happy childhood and has no memories of physical or sexualabuse. His grandmother’s partner was a good teacher of “on-the-land skills”. [27] S.N. is fluent in both Inuktitut and English. While he has only achieved a Grade 10 education, he has a solid work historycommensurate with this. He was a good provider to his former family.

He maintains good relations with his siblings and with othermembers of his extended family. [28] 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. [29] 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] SCJ No 19, [1999] 1 SCR 688 (QL) [Gladue], and the provisions of

section 718.2(

e) of the CriminalCode. Apart from the usual systemic disadvantages associated with life in a remote northern community, there are no specific Gladuefactors identified in this case that might influence the application of the proportionality principle of sentencing. E. Mitigating factors arising after the commission of the offence [30] S.N. has accepted responsibility for this offence. He has remorse. His guilty plea is consistent with this remorse. S.N. is entitled toreceive credit in mitigation of sentence for entering a guilty plea.

The policy reasons for providing this credit in mitigation of sentencewere outlined in the recent case of R v JN, 2015 NUCJ 22, 2015 NUCJ 22 : [38] The guilty pleas to these various offences are entitled to significant weight in mitigation of sentence. There are two reasons for this.Such a position encourages offenders to accept responsibility for their misdeeds. This also recognizes the great benefits associated withrelieving complainants of their obligation to testify. [39] 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 ] The guilty plea in this case, however, was not offered at the earliest opportunity. The young victim, A.B., was still required to testify at a preliminary hearing for this offence. Subsequent credit for a guilty plea is not entitled to the same weight as that accorded a guilty plea entered before a victim is required to testify. [ 32 ] S.N. cooperated with the investigating authorities. He provided a warned statement admitting the offence to the Royal Canadian Mounted Police.

Those who waive their legal right to remain silent, and who cooperate with the investigating authorities, are entitled to some additional consideration in mitigation of sentence for doing so. [ 33 ] S.N. has been at large in the community for many months on court process. There are no allegations that he has breached any of the conditions of his release. The absence of any criminal record or other history related to alleged breaches of court process leads to an inference that S.N. has good potential for rehabilitation. F.

Jurisdictional considerations [ 34 ] As outlined by this Court in DeJaeger , at paragraphs 173 and 174 , Nunavut leads the country in its per capita rate of sexual offences committed against children. This high incidence of sexual crimes against children – in all of Nunavut’s communities – requires a firm response by the territory’s sentencing court. The need to emphasize denunciation and general deterrence through an exemplary sentence is enhanced under these circumstances. The Court’s sentencing posture in Nunavut must reflect what has become a pressing systemic problem in all of Nunavut’s communities. IV.

CONCLUSION A. Sentence calculation [ 35 ] Parliament has set a minimum mandatory sentence for this type of offence. When prosecuted by indictment, a sentencing court must impose no less than one year of gaol. The maximum sentence for this offence stands at 10 years. [ 36 ] On these facts, the Crown recommends a gaol term of eighteen to twenty months, followed by a period of supervised probation.

Defence urges a lower sentence that approaches the statutory minimum period prescribed by the Criminal Code . [ 37 ] A minimum mandatory sentence does not displace the application of other sentencing principles set out in sections 718 through 718.2 of the Criminal Code . It underscores Parliament’s view of the seriousness of the offending behavior that is caught by a particular charging provision. The minimum mandatory sentence creates an “inflationary floor”.

This shifts the range within which an appropriate sentence must be crafted when using the sentencing principles set out in the Criminal Code ( See R v Guha, 2012 BCCA 423 , [2012] BCJ No 2204 (QL) ; and R v Lyta, 2013 NUCA 10 , 2013 CarswellNun 31 ). [ 38 ] In the circumstances of this particular offence and this offender, the imposition of the mandatory statutory minimum sentence, as advocated by the Defence, would not adequately address the significant aggravating circumstances associated with the breach of trust.

Where all other factors are similar, an offence committed by an offender who does not breach a trust relationship should not receive the same sentence as an offender who does. [ 39 ] In arriving at the duration of sentence for this offence, the Court has given anxious consideration to the purpose and principles of sentencing set out in sections 718 through 718.2 of the Criminal Code .

The Court has considered both the offender’s personal circumstances as an Aboriginal citizen and the impact that systematic factors have had on his life and lifestyle, as is required by the Supreme Court of Canada’s contextual analysis in the cases of Gladue and R v Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433 .

[ 40 ] While the sentencing goal of rehabilitation is usually given primacy in cases involving a first offender, rehabilitation must yield to denunciation and deterrence in circumstances involving serious crimes of violence against children. This is particularly the case in circumstances where the violence committed against a child is sexual in nature and is accompanied by a breach of trust. While the Court makes every effort to avoid lengthy sentences of incarceration for first offenders by applying the policy of restraint, there is an exception to this general rule for serious violent crime.

It is an exception well-embedded in Canada’s appellate jurisprudence. The case before the Court is an example of one such an exception. [ 41 ] S.N. is sentenced to 78 weeks of incarceration (18 months). But for the guilty plea and accompanying remorse, the sentence would likely have fallen well within the range required for the federal penitentiary. [ 42 ] The Court directs that the warrant for committal be endorsed with two recommendations: 1. That S.N. be provided with intensive sex offender programming prior to his release; and, 2.

That S.N. be considered for placement at the Rankin Inlet Healing Facility, if deemed suitable for the programming available at this facility. Such a placement can only further enhance S.N.’s potential for rehabilitation. [ 43 ] Pursuant to

section 742.21 of the Criminal Code , S.N. is prohibited from having any contact or communication with A.B. while serving this sentence of custody. [ 44 ] Following his release from custody, S.N. is bound by a Probation Order for two years, containing the following conditions: 1. S.N. must keep the peace and be of good behavior; 2. S.N. must report to a probation officer within 7 days of his release from custody. He must thereafter report to, and be under the supervision of, the probation officer, as directed by the probation officer; 3.

S.N. must have no direct or indirect contact with A.B., except such contact as may be authorized in advance and in writing by the probation officer. Any such contact must be consented to by A.B. and must be supervised by either a child protection worker, a counsellor, or a probation officer. Contact for the purpose of victim/offender reconciliation is contemplated by these contact provisions; 4. S.N. must take, and successfully complete, such counselling as may be directed by the probation officer. This includes sex offender counselling and anger management counselling; 5.

S.N. must not reside in any home that is occupied by a child under the age of 16 years without the authorization of his probation officer; and, 6. S.N.’s probation officer must approve his proposed residence in advance and in writing. B. Ancillary orders [ 45 ] The ancillary orders are as follows: 1. Pursuant to

section 109 of the Criminal Code , S.N. 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; 2. S.N. is prohibited for life from possessing any prohibited or restricted firearm, prohibited weapon or device, or prohibited ammunition. Any such items now in S.N.’s possession or under his control must be immediately surrendered to the nearest police detachment.

Any such items are ordered forfeited to the Attorney General for the purpose of destruction; 3. S.N. 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 ; 4. S.N. is ordered to submit himself to the processes of the national Sex Offender Registry, as set out in sections 490.011 through to

490.016 of the Criminal Code . This order is for 20 years; 5. S.N. is ordered to pay a victim fine surcharge of $200.00 for this indictable offence. This is to be paid within one year from the date he is released from custody; and, 6. Pursuant to

section 161 of the Criminal Code , S.N. 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 15 years. Dated at the City of Iqaluit this 25th day of August, 2015 ___________________ Justice R. Kilpatrick Nunavut Court of Justice