R. v. T.Q., 2019 NUCJ 5

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. T.Q., 2019 NUCJ 05 Date: 20190403 Docket: 08-18-85 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: T.Q. ________________________________________________________________________ Before: Chief Justice Neil Sharkey Counsel (Crown): B. McLaren Counsel (Accused): A. Landry Location Heard: Iqaluit, Nunavut Date Heard: January 10, 2019 Matters: Application of Kienapple rule . Convicted pursuant to Criminal Code , RSC 1985, c C-46,

section 151 . Charge under

section 271 stayed. 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, “anyinformation that could identify the complainant or a witness shall not bepublished in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer: This judgment has been anonymized to comply with legislative requirements orat the discretion of the authoring Justice to protect vulnerable parties. Lettershave been assigned at random. I. INTRODUCTION [1] This case involves the application of the rule against multiple or double jeopardy as enunciated by the Supreme Court of Canada inR v Kienapple, [1975] 1 SCR 729, (SCC) [Kienapple]. [2] The defendant T.Q. has pleaded guilty to two offences punishable by

summary conviction: namely, - Count # 1 – Sexual Interference with a minor under the age of 16 contrary to s. 151 of the Criminal Code, RSC 1985, c C-46[Criminal Code], and - Count # 2 – Sexual Assault contrary to s. 271 of the Criminal Code. [3] The issue before me is whether I should enter a conviction on the sexual interference charge, or the charge of sexual assault. [4] The parties (Crown and Defence) agree that the Kienapple rule applies and that I may enter a conviction on only one of the twocharges, and that the remaining charge would be stayed.

II. BACKGROUND [ 5 ] On 19 March 2019, I sentenced the defendant, T.Q., to 90 days imprisonment (and one year of probation) for touching a person under 16 years of age – a minor, in a sexual manner, contrary to s. 151 of the Criminal Code . This offence is often referred to as ‘sexual interference’ with a minor. [ 6 ] T.Q. is a 31 year-old Inuk man who lives with his family in a north Baffin community. The incident which gave rise to the charge took place in Iqaluit in January of 2018. [ 7 ] On 21 November 2018, in Iqaluit, T.Q. pleaded guilty to the charge. III.

FACTS [ 8 ] T.Q. and his wife were travelling to their home from Ottawa through Iqaluit, and overnighted in Iqaluit. T.Q.’s wife has a sister who lives in Iqaluit, so they went to her place for the night. They continued their journey home the next day. T.Q.’s wife was permitted to get on the plane, but T.Q. was denied boarding because he was intoxicated, so he went back to stay at his sister-in-law’s place. [ 9 ] The victim also lives in this house. At the time of the offence, she was 14 years old, and is still T.Q.’s niece .

At some point during the day the victim’s mother went out, leaving the victim to care for a one year-old child, but with T.Q. still in the house. [ 10 ] T.Q. had been drinking again, and was fairly intoxicated. The victim was sitting in her upstairs bedroom. T.Q. came into the room and placed his hand under her shirt and felt her breasts; he then moved his hand down towards her genital area. The victim resisted this, got up, and went downstairs to attend to the one year old. T.Q., however, persisted and followed her downstairs.

He then repeated the precise behaviour, doing the very same thing he had done upstairs. [ 11 ] The victim would have none of this. Later in the day, she texted T.Q.’s wife to the effect that “this morning T.Q. was touching me, he told me not to tell you, but he’s married and I should tell.” T.Q.’s wife and her sister (the victim’s mother) then discussed the matter and contacted the police, as a result of which T.Q. was charged. IV. OFFENDER’S CIRCUMSTANCES [ 12 ] During the sentencing hearing, I was told that T.Q. has been steadily employed, with the same employer, for the past 12 years.

This is not, however, T.Q.’s first involvement in Court; in 2014 he was given a period of probation for assaulting his wife. [ 13 ] I was told T.Q. has a hazy memory of exactly how he touched the victim because of his state of intoxication, but is prepared to accept that whatever she (the victim) says happened is the truth. I am also told that T.Q.’s behaviour towards his young niece is something for which he is ashamed, but also that it is a one-off occurrence, which is otherwise out of character for him. [ 14 ] I was told as well that in January of last year, T.Q. was going through a rough time.

A few days or so before he committed the offence he was told that his father, who had been ill since late 2017, was being sent home to die. I am told that this is what prompted T.Q. to turn to the bottle and to start consuming alcohol to excess. V. FILE HISTORY AND DOUBLE JEOPARDY [ 15 ] The reason, however, I did not complete T.Q.’s case last November – when he pleaded guilty – was because in addition to the

charge of sexual interference with a minor, he was also charged with the more generic (or general) offence of sexual assault. And he pleaded guilty to both charges – sexual interference and sexual assault. [ 16 ] An accused person cannot be convicted of more than one offence when the elements of those offences are essentially the same.

There are some exceptions to this general rule, but those exceptions have nothing to do with this case. [ 17 ] Accordingly, after T.Q. pleaded guilty to both sexual interference as well as sexual assault, it was necessary for me to reserve final decision about what penalty he should receive until I sorted out which offence to sentence him for. [ 18 ] Eventually, after examining the rules respecting double jeopardy, I sentenced T.Q. to serve 90 days imprisonment followed by one year probation for the offence of sexual interference, and I entered a stay of proceedings on the charge of sexual assault. [ 19 ] What follows is my examination of those rules.

VI. THE RULE IN R. v. KIENAPPLE [ 20 ] The Kienapple rule says that I must enter the conviction on the most serious of the two charges. [ 21 ] In Canada, there are two ways the Crown may choose to prosecute most Criminal Code offences: summarily (by

summary conviction) in less serious cases; or by Indictment in more serious cases. [ 22 ] In turn, depending upon this prosecutorial choice made by the Crown, the penalties for the offences are different. Obviously, if the Crown chooses to proceed by Indictment, then the prospective penalties are higher than if the Crown had chosen to proceed by

summary conviction. [ 23 ] The Crown must make this choice (or election) before the accused is called upon to enter any plea, because the accused must know the prospective case scenario in terms of the penalties he may face before entering a plea. [ 24 ] By Indictment, both sexual interference ( s. 151 ) and sexual assault ( s. 271 ) have the same penalties where the victim is under the age of 16. They are each punishable by a maximum penalty of not more than 14 years imprisonment, and a mandatory minimum penalty of not less than one year imprisonment. [ 25 ] However, by

summary conviction (in less serious cases) sexual interference ( s. 151 ) and sexual assault ( s. 271 ) have different penalties. They both have a maximum penalty of two years less one day imprisonment.

However, they have different mandatory minimum penalties; sexual interference is punishable by a mandatory minimum penalty of 90 days imprisonment, while sexual assault is punishable by a mandatory minimum penalty of 180 days imprisonment. [ 26 ] The question is therefore whether – for the purposes of the Kienapple rule – the offence of sexual assault is the more serious of the two offences. [ 27 ] If the question of severity is gauged only by reference to the penalty sections, then sexual assault is the more serious of the two offences. [ 28 ] If, however, the length of the sentence is not the only or even primary factor to be taken into account in a determination of what constitutes severity, then the answer is less clear, and more grey and nuanced.

[ 29 ] In my view, to simply defer in a slavish fashion to numbers – and to accept that the higher minimum mandatory penalty is the sole and only determining factor – would be to suggest that Parliament has taken different (and perhaps unprincipled) views over the past several years as to which of these two crimes (sexual assault or sexual interference) is more, or less, serious. [ 30 ] I suggest Parliament has not taken alternating views of the severity of these two crimes, but rather, that from 2005 until today, Parliament has simply taken a measured and evolving position as to how best to categorize and punish these two crimes.

And that Parliament has done so completely independent of their relationship to one another, and independent as well from the perspective lens of a jurist who might struggle to resolve a Kienapple paradigm years down the road. A. The First Era: 2005 to 2012 [ 31 ] The first (relevant) regime for these two offences spanned the era from 2005 until roughly 2012. [ 32 ] During this first era, by Indictment, both sexual interference and sexual assault were punishable by not more than 10 years imprisonment, but only sexual interference had a minimum mandatory penalty (of 45 days). By

summary conviction, both sexual interference and sexual assault were punishable by 18 months imprisonment. But only sexual interference had a mandatory minimum penalty (of 14 days). [ 33 ] During this first era, sexual assault had no mandatory minimum penalty (either by Indictment or

summary). Sexual assault also had no age component specified; while sexual interference necessarily had an age component since it was an offence specific to underage victims. [ 34 ] Accordingly, during the first era if “numbers only” was the measuring stick of severity, then clearly sexual interference was the ‘more serious’ offence. B. The Second Era: 2012 to 2014 [ 35 ] The second regime spanned the era between 2012 and the end of 2014. [ 36 ] By Indictment, both sexual assault and sexual interference were punishable by not more than 10 years imprisonment.

And sexual interference kept or maintained its mandatory minimum of 45 days imprisonment. However – and for the first time – sexual assault added a new mandatory minimum of one year imprisonment, but only where the victim was under 16 years of age. [ 37 ] By

summary conviction, both sexual assault and sexual interference were punishable by 18 months imprisonment, but only in the case of sexual assault where the victim was under 16 years of age. Sexual interference maintained its historical 14 days mandatory minimum penalty. However, sexual assault added a new mandatory minimum of 90 days imprisonment, again only where the victim was under 16 years of age. [ 38 ] Accordingly, during this second era if “numbers only” was the measuring stick of severity, then clearly, the tide had been reversed, and sexual assault (both by Indictment and

summary conviction) had become “the most serious offence.” C. The Third Era: 2015 to Present [ 39 ] Finally, there is today’s regime, spanning from 2015 to present.

[ 40 ] Both sexual assault and sexual interference are punishable by Indictment. Each has a maximum penalty of 14 years imprisonment (only, however, in the case of sexual assault where the victim is under 16 years of age). And both have a minimum mandatory penalty of one year imprisonment (only, however, in the case of sexual assault, where the victim is under 16 years of age). [ 41 ] The point is that for the very first time since 2005 – when proceeded by Indictment – both sexual assault and sexual interference have identical penalties where the victim is under 16 years of age. [ 42 ] It is only by

summary conviction that the penalties for these two offences differ. Both are punishable now by two years less one day imprisonment (only, however, in the case of sexual assault where the victim is under 16 years of age). [ 43 ] However, sexual interference has a new mandatory minimum of 90 days imprisonment, and sexual assault has a new mandatory minimum penalty of six months imprisonment (only, however, where the victim is under the age of 16 years). X. ANALYSIS: DIFFERENTATING BETWEEN SECTIONS 151 AND 271 [ 44 ] Thus, today we have the anomalous situation where if the Crown proceeds by Indictment then neither offence is more serious than the other, but by

summary conviction sexual assault is more serious than sexual interference. [ 45 ] The question is then “how can this be?” And the answer is, it cannot be. [ 46 ] In my view, the severity of the penalty (the highest sentence provided for in the statute) is not necessarily the measure of which offence is most serious. [ 47 ] The application of the rule against double or multiple jeopardy should not be determined by a “floating opera” of changing penalties. To illustrate (where the victim is under 16 years of age): Between 2005 and 2011: the most serious offence would have been sexual interference (both by

summary conviction as well as indictment) Between 2012 and 2015: the most serious offence would have been sexual assault (both by

summary conviction as well as Indictment) And, again, today there is a hybrid situation because: • By Indictment neither offence is more serious than the other • But by

summary conviction, sexual assault is more serious. [ 48 ] In my view, the Kienapple rule must be applied on a more principled basis: a basis which takes into account the specificity and insidious nature of the crimes involved, as well as the impact of a conviction upon the individual offender. [ 49 ] I find support for this approach in both case authority and Hansard . Interestingly, the cases which deal with Kienapple in relation to ss. 151 and 271 involve more serious or high end fact scenarios where the Crown had proceeded by Indictment, rather than less serious

fact scenarios where the Crown had proceeded summarily. [50] R v Innerebner, 2010 ABQB 188, 39 Alta LR (5th) 131 [Innerebner], is from the first era (2005 until 2012) when sexualinterference carried a mandatory minimum penalty and sexual assault did not. The Court concluded that because of the mandatoryminimum penalty, Parliament intended that the more serious of the two charges was sexual interference. [51] However, the Court also concluded that, independently of the minimum sentence, sexual interference was the more serious of thetwo offences because it was essentially sexually assault of a minor.

Read J, stated at para 36: Even if I am wrong, however, and Parliament did not intend to indicate merely by imposing a mandatory minimum sentence that themore serious charge is that of sexual interference, to my mind, sexual interference, which presupposes a sexual act on a child by an adult,cannot be said to be less serious than sexual assault.

Furthermore … sexual interference … more accurately describes the offenceperpetrated by this offender… [52] R v Hussein, 2017 ONSC 4202, 141 WCB (2d) 231 [Hussein], is a case from today’s legislative era wherein the penaltiesfor sexual interference and sexual assault are – when the Crown proceeds by Indictment – identical, both with respect to the maximumpenalty as well as the mandatory penalty. [53] Thus, within the Kienapple paradigm, ‘numbers’ alone were no use in Hussein to determine which of the offences is the mostsevere or serious – and for which a conviction should be registered. [54] In Hussein, it was actually the Crown position, which the Defence did not dispute, that sexual interference best captured the natureof what the offender had done. [55] And in Hussein, Code J, decided to follow the “well reasoned” judgment of LeMay J, in the case of R v L(F), 2016 ONSC 1215,where he (LeMay

J) stated at paras 21-25: …In my view, the sexual interference charge is a more precise and complete explanation of the crime that was committed in this case. Itincludes a recognition that the crime was committed against a victim who was a child.

This is, in my view, a key element of this case. [56] I am persuaded that the principled approach in Hussein is the correct one when applying the Kienapple rule in serious or high-endfact scenarios where an accused is charged with both sexual interference and sexual assault. [57] And today, in such serious cases, it is clear the appropriate conviction is one for sexual interference. [58] Accordingly, it seems odd to abandon such a principled approach entirely in less serious fact scenarios – where the Crown hasproceeded summarily – simply because the mandatory minimum penalties for the two offences are not the same [59] Such a default positon would reflect nothing more than a slavish adherence to ‘numbers’ as the only or sole valid determiningfactor of the severity of the crime. [60] In my view, the offence of sexual interference best captures the nature of what a defendant has done, and is a more precisedescription of the crime they have committed.

Indeed, a conviction for the more generic offence of sexual assault tells the public nothingabout the age of the victim – or even the fact the offender has committed a crime against a child. [61] Similarly, in terms of the long-term impact on an offender, having a criminal record for sexual interference carries a much greatersocietal stigma than does having a record for sexual assault.

[ 62 ] And this, in my view, is not changed by the fact a defendant may actually choose or want to have a conviction registered for sexual interference – as indeed, the defendant in this case has done. For many first-time offenders, the very fact of a jail sentence is daunting. And so they might accept the longer term stigma on their record, if it meant serving even one day less in jail. XI. OTHER SIMILARITIES BETWEEN SECTIONS 151 AND 271 [ 63 ] There is ample support in the parliamentary record for the notion that sexual interference should be regarded as one of the most serious transgressions in our society.

For example, in 2015 the then Minister of Justice for Canada stressed the importance of protecting vulnerable children when proposing amendments to the Criminal Code such as the High Risk Child Sex Offender Data Base Act , which is currently not in force. [ 64 ] Today as well the Sex Offender Information Registration Act , SC 2004, c 10 [ SOIRA ] creates distinct reporting obligations for persons convicted of offences against a person under the age of 18 – albeit that these obligations are essentially the same for both sexual interference and sexual assault. [ 65 ] Also, persons convicted of either sexual interference or sexual assault can be declared Dangerous Offenders or Long Term Offenders pursuant to Criminal Code

part XXIV (with only slightly nuanced different procedural pathways to such status). XII. DISPOSITION [ 66 ] In this case, I apply the principled approach found in Hussein , and adopt the reasoning of LeMay J, above. I find that sexual interference is the most appropriate offence for which a conviction should be registered. And I enter a stay respecting the offence of sexual assault. Dated at the City of Iqaluit this 3rd day of April, 2019 ___________________ Justice N. Sharkey Nunavut Court of Justice