R. v. Laisa, 2015 NUCJ 39

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Laisa, 2015 NUCJ 39 Date: 20151201 Docket: 08-15-131; 08-05-438 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Robert Laisa ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): L. Winters Counsel (Accused): T. Fairchild Location Heard: Iqaluit, Nunavut Date Heard: December 1, 2015 Matters: Criminal Code, s. 129 ; s. 151 REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document has been edited for publication)

Amended Decision: An amended decision was issued on March 10, 2016; the corrections have been made to the text and the amendment is appended to this judgment. 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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. Letters have been assigned at random. I. INTRODUCTION [ 1 ] Mr. Laisa is before the Court for sentence on two offences. He has entered a very prompt guilty plea to the indictable offence of sexual interference.

This offence involved a 12 year-old female complainant. He has also accepted responsibility for obstruction of a peace officer. [Under] the circumstances in which he knew that the authorities were looking for him, he gave false information to the police in order to lead them astray. [ 2 ] The sexual offence is a serious one. It is serious, not only because the complainant was a child and vulnerable by reason not only of her [youth], but her size, [because] this young child was asleep in her own bedroom when the violation occurred. [ 3 ] The offence involves the removal of clothing.

It involves fondling the breasts and genitals of the child. It involves attempted penetration of the child’s vagina with the penis, and the successful digital penetration of the vagina with a finger. [ 4 ] In the course of committing the offence, the young victim was cautioned not to tell anyone. [ 5 ] As I have indicated, Mr. Laisa did the right thing. He accepted responsibility upfront. He did not insist on his strict right to have the Crown prove the offence beyond a reasonable doubt.

He waived the requirement of a preliminary hearing and he has entered a guilty plea, thus sparing the complainant the necessity of having to testify about this. [ 6 ] Guilty pleas in these circumstances are entitled to considerable weight in the mitigation of sentence. It is not easy for a complainant, particularly for a small child, to have to come to a public courtroom and talk about their own victimization. Such an experience in itself is potentially traumatizing to a small child.

There is a lot of a fear associated with the court process. [ 7 ] In this particular case, it seems this young complainant was very troubled at the prospect of having to come to court and Mr. Laisa did the right thing by accepting responsibility and not forcing her into a situation where she had to testify. [ 8 ] Mr. Laisa also cooperated with the investigating authorities. This court has indicated on previous occasions that the act of

cooperation in itself should be taken into consideration with mitigation of sentence. It certainly underscores a submission on the accused’s part that he is remorseful. II. ACCUSED’S BACKGROUND [ 9 ] Mr. Laisa comes before the court with a record. Of particular concern is an earlier entry from 2003 for a related type of offence. This conviction was recorded in Youth Justice Court. There are two unrelated convictions for trafficking or trafficking related offences. [ 10 ] Mr. Laisa is 28 years of age. He has had a disadvantaged background.

The Court has been told that he suffers an addiction to both alcohol and drugs; having heard the circumstances of his earlier years, it is perhaps no wonder. [ 11 ] The Court has been told that at the age of seven, Robert had the unfortunate experience of finding his father hanging in a closet. The family, of course, would have been traumatized by this, as was Mr. Laisa. The family moved from their community of origin to Iqaluit, where the mother unfortunately took to drinking in an effort to dull the pain.

The end result, unfortunately, was the apprehension by the Government of Nunavut Department of Social Services of all the children in the family unit. Mr. Laisa was separated from his siblings and placed in a different foster home. It seems that while in foster care, he himself was sexually victimized by a caregiver. Mr. Laisa now follows the path taken by his mother. He turns to alcohol and drugs in an effort to dull the pain. III. ANALYSIS [ 12 ] The crime itself, for all the reasons outlined by the Crown, is a very serious one. Parliament, in

section 718.01 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code], directs the court to give primary consideration in sentencing offenders for sexual violence against children to the objectives of denunciation and deterrence. [ 13 ] Nunavut sees far too many of these types of crimes. In fact, Nunavut leads the country in its per capita rate of sexual victimization of children. This, in itself, speaks to a specific need in this jurisdiction for deterrent and exemplary sentences.

The moral culpability associated with an adult risking harm to a child to satisfy their own sexual needs is very high. [ 14 ] Robert, unfortunately, was drinking when he committed this offence. That is unfortunate for you, sir. I suspect that if you had remained sober that night, you would not be sitting here today. There is a lesson in that for you, Mr. Laisa. [ 15 ] By far, the majority of the citizens coming before this court are struggling with dysfunctional behavior of many kinds. Many, if not most, suffer from addictions. They turn to alcohol and drugs as a means of coping. Many take their lives.

The reality is that programming at the community level is extremely limited. [ 16 ] The Court is directed by Supreme Court of Canada jurisprudence to consider Mr. Laisa’s Aboriginal background and the dysfunctional behavior as a product of the way he was raised. It does not make the offence any better sir, but it does, according to the Supreme Court of Canada, bear on the issue of overall moral culpability. III. SENTENCING [ 17 ] In the circumstances of this case, Crown and Defence have agreed on a joint submission of some 20 months jail time for these offences.

Had the Criminal Code s. 151 offence gone to trial, you would have been in a penitentiary today, Robert. The guilty plea has to be given considerable weight, as does your cooperation with the authorities. That is what makes the difference. That is why you are not going to a penitentiary today, sir. You have also taken the limited programming that is available through the Baffin Correctional Centre. You have participated in the men’s group and that is good.

You also deserve some credit for having done that. [ 18 ] The Court is required, once again by appellate courts, to give very careful attention to joint submissions. The joint submission in this case follows a plea agreement.

[ 19 ] If everyone in Nunavut wanted to take their matters to trial, the administration of justice would suffer. Appellate jurisprudence recognizes this and recognizes it in the form of ensuring that trial judges do not lightly interfere with joint submissions because it is in the public interest to encourage people to accept responsibility and move on with their lives. The circumstances in which a trial judge can interfere with a joint submission are limited by appellate jurisprudence.

I must be satisfied, in order to interfere, that the proposed sentence would bring the administration of justice into disrepute. [ 20 ] I am satisfied, in the circumstances of this case, given all of the mitigating features of this offence, that is would be appropriate to accept the joint submission that has been offered in this case. I say that, and emphasize in doing so once again, that if this had gone to trial, the end result would have been well into the penitentiary range for this type of offence committed in these circumstances. [ 21 ] So, in the end result, Mr.

Laisa, I am told, has spent some 64 days in pretrial detention. I see no reason not to afford Mr. Laisa credit at the rate of 1:5 to 1, particularly in view of the efforts he has made at programming while in pretrial detention. That amounts to a credit of some 96 days. If one calculates a month at 30 days, then we have a total of 20 months to address, less the pretrial credit, and the way that I do that is, as follows. In relation to the obstruction offence, there will be 30 days of pretrial credit, with 30 days remaining to be served on that offence.

In relation to the Criminal Code s. 151 offence, there is a total of 66 days of pretrial detention credit, and again, the total of those two credits adds up to 96 days. The time remaining to be served on the Criminal Code s. 151 offence, by my calculations, is a consecutive sentence of 474 days. When you add up the 30 days and 474 days, that comes out to 504 days, plus the 96 days pretrial credit, which comes out to 600 days, which is the agreed upon sentence. [ 22 ] There will be 2 years of probation to follow, with the following terms and conditions.

The most important one of all, sir, is to keep the peace and be of good behaviour. You are to report to a probation officer within 7 days of your release from custody, and thereafter as and when directed. You will undergo an alcohol assessment within 6 months of your release from custody. You will take and complete addictions counselling for both drugs and alcohol. [ 23 ] Madam Clerk, I am not saying “as directed by the probation officer.” I choose my words carefully.

This citizen must take and complete some form of addictions counselling, and if the Government of Nunavut is not prepared to follow the court’s order in this respect, the probation office will be tasked to bring it back to court for a review. I am not prepared to leave the provision of addictions treatment to the discretion of the Government of Nunavut. [ 24 ] You will take and successfully complete sex offender counselling and counselling related to your own victimization, full stop. I do not want to see the words “as directed by the probation officer.” It is a requirement to take this form of counselling. V.

CONCLUSION [ 25 ] For years, this court has commented in its decisions about the lack of sex offender counselling available to citizens once they are released from custody through community corrections. This is a critical need in this jurisdiction.

We lead the country in our per capita rate of sexual violence and it is high time that the Government of Nunavut provides the remedial provisions necessary to address what amounts to a significant problem in this jurisdiction. [ 26 ] You are to have no contact, directly or indirectly, with a young person who is under the age of 16 years if you are intoxicated to any degree. You are not to reside in any residence in which a young person under the age of 16 years lives. [ 27 ] I pause here to say that none of these orders are carved in stone. In the event that Mr.

Laisa can get some sex offender counselling, it may be appropriate to bring on a review, but in the meantime the protection of young people is the foremost concern of the court. [ 28 ] Ms. Fairchild: Yes, I guess my concern, Your Honour, is just in Nunavut, with such a housing shortage, it’s not like – I mean, the options for places to live are extremely limited. [ 29 ] The Court: They are certainly more limited, but…

[ 30 ] Ms. Fairchild: It would be hard… [ 31 ] The Court: … I have to put the safety of a small child first, unfortunately. So, if there is a problem, it can be brought back on a review and we will address it, but in the interim, I think the foremost consideration of a sentencing court should be the protection of vulnerable people, including children. [ 32 ] There will be a firearms prohibition order. It is mandatory in this case. It will be for 10 years. I am prepared to grant a Criminal Code

section 113 exemption for subsistence hunting purposes. [ 33 ] This type of offence is a primary designated offence for the purpose of providing a DNA sample. You are, therefore, required to do so, sir. [ 34 ] There is also a primary designated offence for sex offender registration. You are required to submit yourself to the processes of the Sex Offender Registry for a period of 20 years. [ 35 ] Now, I am further prepared to make an order under

section 161 of the Criminal Code . It will be a limited order. I take the position that I am not required to impose all the various conditions outlined because they are unworkable in Nunavut, most of them. However, there will be a condition that he refrain from seeking, obtaining, or continuing any employment, whether or not that employment is remunerated, or becoming a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years. [ 36 ] I am also going to provide that Mr.

Laisa not use the Internet, or any other digital media network, to communicate with a child under the age of 16 years. [ 37 ] There will be an order pursuant to

section 743.2(1) of the Criminal Code providing that Robert have no contact or communication of any kind with the named complainant in the Criminal Code s. 151 matter. [ 38 ] Now, what of the family itself? [ 39 ] Ms. Winters: …I don’t know that there would be any need for contact between her immediate family and himself. [ 40 ] Ms. Fairchild: I think in this territory that presents a hardship… [ 41 ] The Court: No, that is fine. I am going to restrict it to the named complainant.

It may well be… that there will be a need to effect some form of reconciliation down the road and I do not want to interfere with that process. [ 42 ] Those are the conditions I have in mind. Crown, any concerns? [ 43 ] Ms. Winters: I think I just misspoke when I was talking about the Sex Offender Registry period lasting for 20 years. I think, because of the previous conviction and because the Crown went by indictment – sorry, no, because of the previous conviction, it’s actually for life. [ 44 ] The Court: Have you looked at the provisions, Ms. Fairchild? Would you like to assist? [ 45 ] Ms.

Fairchild: No, and I guess I’m concerned, because the first one was a youth offence, how that impacts it. I would have to look at that.

[ 46 ] The Court: I have never looked at the issues, actually, Crown. Do you know of any jurisprudence that references Youth Court entries as being part of that equation? [ 47 ] Ms. Winters: No, I don’t, Your Honour. I have [no] assistance to offer. [ 48 ] The Court: Well, it is quite a difference between a 20 year order and a lifetime order. I am prepared to not sign-off on the warrant of committal until such time as counsel have looked at the issue and are prepared to make submissions on that point. [ 49 ] Ms.

Winters: Your Honour, the Crown – my colleague is senior counsel to me and she just offered a point that I think is very salient. As a youth, he wouldn’t have been subject to the Sex Offender Registry, so this would be his first time being on… [ 50 ] The Court: So, you are withdrawing your earlier comments? [ 51 ] Ms. Winters: So, I withdraw my earlier comments.

The Crown would be content with the 20 year duration. [ 52 ] The Court: All right, back to – any other issues now with respect to the terms of the probation order or any of the ancillary orders? [ 53 ] Madam Clerk, just to be clear, the firearms prohibition is for 10 years, but there also has to be a lifetime prohibition on any restricted or prohibited firearms or ammunition or explosive substance. It is mandatory for life. [ 54 ] Does your client presently have any [such] items in his possession? [ 55 ] Ms. Fairchild: No, I don’t think so.

He has been complying, he advises me, with the firearms prohibitions, so… [ 56 ] The Court: I think I am required to say, then, that any such items that may be in his possession must be immediately surrendered to the nearest detachment of the Royal Canadian Mounted Police. [ 57 ] Now, I am also required to make a victim fine surcharge. By law it is mandatory, it cannot be waived. It would be, what, $200.00 dollars on the indictable offences, $100.00 dollars on the

summary conviction offence, for a total of $300.00 dollars. [ 58 ] Ms. Fairchild: Yes. [ 59 ] The Court: Three years’ time to pay. Any other issues, Ms. Fairchild, that you would like to raise? [ 60 ] Ms. Fairchild: No, that is everything, Your Honour. [ 61 ] The Court: I hope you can get some help, Mr. Laisa. [ 62 ] The Accused: Yup, I’m gonna try to get some help.

[ 63 ] The Court: You are a damaged person – [ 64 ] The Accused: Yup. [ 65 ] The Court: - you need to get some help. [ 66 ] The Accused: Yup. [ 67 ] The Court: Good luck. [ 68 ] The Accused: Yup. [ 69 ] Ms. Fairchild: Thank-you. Dated at the City of Iqaluit this 1st day of December, 2015 ___________________ Justice R. Kilpatrick Nunavut Court of Justice _______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Mr.

Justice Kilpatrick _______________________________________________________ In paragraph [01] the pinpoint of “This involved a 12 year female complainant” has been changed from “This involved a 12 year female” to “This offence involved a 12 year-old female.” In paragraph [01] the pinpoint of “…peace officer.

In the circumstances in…”, has been changed from “In the circumstances” to “[Under] the circumstances.” In paragraph [02] the pinpoint of “It is serious, not only…”, has been changed from “by reason not only of her, but her size, but this young child …” to “by reason not only of her [youth], but her size, [because] this young child …”

In paragraph [08] the pinpoint of “It certainly underscores…”, has been changed from “underscores a submission the accused’s part…” to “underscores a submission on the accused’s part…” In paragraph [14] the pinpoint of “I suspect that if…”, has been changed from “…that night, you not be sitting here today.” to “…that night, you would not be sitting here today.” In paragraph [18] the pinpoint of the second sentence, has been changed from “The join submission…” to “The joint submission…” In paragraph [21] the pinpoint of “In relation to the Criminal Code s. 151 offence…”, has been changed from “…credit, ad again, the total…” to “…credit, and again, the total…” In paragraph [21] the pinpoint of “The time remaining to be served…”, has been changed from “…the Criminal Code s. 151 , by my…” to “…the Criminal Code s. 151 offence, by my…” In paragraph [22] the pinpoint of “You will take and complete…”, has been changed from “counseling” to “counselling.” In paragraph [26] the pinpoint of “You are not to reside in any…”, has been changed from “…which a young person lives under the age of 16 years.” to “…which a young person under the age of 16 years lives.” In paragraph [47] the pinpoint of “Ms.

Winters…”, has been changed from “I have not assistance to offer.” to “I have [no] assistance to offer.” In paragraph [52] the pinpoint of “The Court…”, has been changed from “…probation order of any of the ancillary orders” to “… probation order or any of the ancillary orders” In paragraph [54] the pinpoint of “Does your client…”, has been changed from “Does your client presently have any items in his possession?” to “Does your client presently have any [such] items in his possession?” Please replace the amended pages in your hard copy of the judgment.