R. v. Livingstone, 2022 NUCJ 31

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Livingstone, 2022 NUCJ 31 Date: 20220805 Docket: 08-19-839 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Neil Livingstone __________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): Counsel (Accused): E. Baasch S.

Siebert Location Heard: Date Heard: Iqaluit, Nunavut March 23, August 4, 2022 Matters: Trial decision and sentencing following a finding of guilt Criminal Code of Canada, RSC 1985, c C-46, ss. 271 REASONS FOR DECISION (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section 486.4 of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. Table of Contents I. INTRODUCTION . 5 II. THE APPLICABLE LAW .. 5 A. The presumption of innocence, proof beyond a reasonable doubt, and the trier of fact 5 i. The presumption of innocence . 5 ii. Proof beyond a reasonable doubt 5 iii. The role of the trier of fact 6 B. Actus reus and mens rea . 6 i. The actus reus . 6 ii. The mens rea . 6 C. Sexual assault 7 i. The essential elements of sexual assault 7

ii. The meaning of consent 7 D. R v S (W.D) 8 III. ISSUES . 8 IV. THE EVIDENCE . 8 V. MR. LIVINGSTONE’S EVIDENCE . 9 A. Examination-in-chief 9 B. Cross examination . 11 C. Analysis of Mr. Livingstone’s evidence . 11 D. Concerning the actus reus . 11 E. Concerning the mens rea . 12 F. Air of reality . 13 VI. THE COMPLAINANT’S EVIDENCE . 14 A. Examination-in-chief 14 B. Cross examination, Defence Counsel’s concerns about her evidence, and my analysis 15 VII. DECISION . 18 SENTENCE . 18 VIII. SENTENCING RECOMMENDATIONS BY THE PARTIES . 18 A. The Crown . 18 B. Victim Impact Statement 18 C. The Defence . 19 IX.

THE PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING .. 19 A. The purpose and objectives of sentencing . 19 B. The increased vulnerability of Mr. Livingstone’s victim .. 20 C. The principles of sentencing . 20 D. The parity principle . 20 E. Aggravating and mitigating factors . 20 i. Aggravating factors . 20 ii. Mitigating factor 21 F. Restraint 21 G. The prevalence of gendered sexual violence in Nunavut 21 X. THE JURISPRUDENCE . 22 A. Sentencing ranges and starting points . 23 B. Nunavut 23 C. Alberta . 24 D. British Columbia . 24 i. R v G.M. 24 E. Nova Scotia . 25 i. R v DeYoung . 25

ii. R v Kotio . 25 F. Ontario . 26 XI. THE OFFENDER . 27 A. Mr. Livingstone’s personal circumstances . 27 XII. APPLICATION OF THE PURPOSE, OBJECTIVE, AND PRINCIPLES OF SENTENCING TO MR. LIVINGSTONE . 27 XIII. SENTENCE . 28 A. A federal penitentiary term .. 28 B. Victim fine surcharge . 29 C. Ancillary orders . 29 I. INTRODUCTION [ 1 ] Neil Livingstone was charged with sexual assault. The relevant incident happened in Iqaluit on July 15, 2018 (July 15). The Crown elected to proceed by Indictment, and Mr. Livingstone elected to be tried by a judge sitting alone without a jury.

The Information [1] does not record Mr. Livingstone having entered a not guilty plea; but on May 31, 2021, the Court set down his trial to be held on March 23, 2022. I heard evidence that day and reserved judgment. I convicted Mr. Livingstone on May 24, and I sentenced him on August 4. These are my reasons for decision and sentence. II. THE APPLICABLE LAW [ 2 ] I first outline the law applicable to the facts of the case. A.

The presumption of innocence, proof beyond a reasonable doubt, and the trier of fact [ 3 ] Two fundamental principles govern a criminal trial: the presumption of innocence and the burden of proof. I shall also discuss the role of the trier of fact. i. The presumption of innocence [ 4 ] We presume a person accused of a criminal offence to be innocent unless, and until, the Crown proves his guilt beyond a reasonable doubt. [2] In other words, I cannot convict Mr. Livingstone of the charge unless I am sure that he is guilty. ii.

Proof beyond a reasonable doubt [ 5 ] The burden of proof, which is proof beyond a reasonable doubt, remains with the Crown throughout the trial. Further, the Crown must prove each essential element, or part of the offence, beyond a reasonable doubt. In my reasons, whenever I say that the Crown must prove or has proven something, or that I am satisfied or I accept, I am saying that the Crown must meet or has met the standard of proof beyond a reasonable doubt.

[ 6 ] An accused person does not have to testify, nor does he have to call evidence. Mr. Livingstone was entitled to put the Crown to the proof of its allegations. In the event, Mr. Livingstone elected to testify, and he was the only Defence witness. iii. The role of the trier of fact [ 7 ] The sexual assault allegation in this case is an indictable offence, and Mr. Livingstone elected to be tried by a judge sitting without a jury. So, I conducted the trial as the judge of both the law and the facts.

In my role as the trier of fact, I may accept everything a witness tells me, part of what that witness tells me, or nothing at all. In order to find something to be a fact, I must be satisfied that the Crown has proven it beyond a reasonable doubt. B. Actus reus and mens rea [ 8 ] All criminal offences have two component parts which must have been present at the same time when the accused person committed the alleged offence. i. The actus reus [ 9 ] The first component is called the actus reus which is the criminal physical act alleged to have been committed by the accused person.

In this case, there is probative and reliable evidence concerning the actus reus . In plain terms, and Mr. Livingstone has admitted, [3] I am satisfied that Mr. Livingstone touched the complainant sexually on July 15. As we shall also see, the complainant denied she had ever consented to anal sex. ii. The mens rea [ 10 ] The second component is called the mens rea which refers to the accused person’s mental intention to commit the criminal act in question. There are two types of criminal intent: general and specific. General intent refers to the accused person’s intention to commit the specific unlawful act.

The Crown need not prove specific intent - that the accused person had any ulterior reason for committing the act. Sexual assault is a crime of general intent. C. Sexual assault [ 11 ] A person commits a sexual assault when they apply force to another person in a sexual context [4] without the latter person’s consent. Sexual assault is codified in

section 271 of the Criminal Code, RSC 1985, c C-46 ( Criminal Code ) . i. The essential elements of sexual assault [ 12 ] Before I may convict Mr. Livingstone, the Crown must prove each one of the following seven essential elements of the offence: 1. that it was Mr. Livingstone who; 2. on July 15;

3. in Iqaluit, Nunavut; 4. touched the complainant; 5. that he touched her intentionally; 6. in a sexual manner; 7. without the complainant’s consent; and 8. that Mr. Livingstone either knew that the complainant had not consented, or that he was wilfully blind whether she had consented or not. [ 13 ] Essential elements numbers 4, 5, 6, and 7 form the actus reus . Essential element 8 is the mens rea . ii. The meaning of consent [ 14 ] In the context of a sexual assault allegation, Parliament defined the meaning of consent in Criminal Code

section 273.1 as “the voluntary agreement of the complainant to engage in the sexual activity in question.” The complainant’s consent must be present “at the time the sexual activity in question takes place.” [5] D. R v S (W.D) [6] [ 15 ] Mr. Livingstone testified, so I must apply a three-part test as I assess the evidence: 1. If I believe Mr. Livingstone, I must find him not guilty; 2. If I do not believe Mr. Livingstone, but his evidence raises a doubt, I must again find him not guilty; and 3. If I do not believe Mr.

Livingstone and his evidence does not raise a doubt, I must look at all the evidence to decide whether the Crown has proven his case against him. III. ISSUES [ 16 ] This case presents two issues for me to decide. 1. Did Mr. Livingstone intentionally touch the complainant’s anus without her agreement at the time it was happening? And 2. Did Mr. Livingstone intentionally touch the complainant’s anus knowing that the complainant had not given her agreement at the time it was happening, or was he wilfully blind to her lack of consent? IV. THE EVIDENCE

[ 17 ] I heard from two witnesses. The complainant testified for the Crown, and Mr. Livingstone elected to testify in his defence. I will say two important things about the evidence before I turn to Mr. Livingstone’s testimony. [ 18 ] First, I accept the evidence of each witness concerning the amount of alcohol they had to drink in the hours leading up to the incident, and the effect it had on them. I am satisfied that the memory of both the complainant and Mr.

Livingstone were not materially affected or hindered by their respective alcohol consumption that night. [ 19 ] This factual finding leads directly to my second observation. Each witness testified that the initial sexual encounter between them was consensual. However, the complainant testified that she did not consent when the accused inserted his penis into her anus. She said that the accused ignored her repeated entreaties to stop and that he carried on. In the process, she said he injured her. Mr.

Livingstone, although inconsistent as to what he actually did with his penis, maintained that he stopped immediately when the complainant told him to stop. I draw the unavoidable inference that one of the parties was untruthful. V. MR. LIVINGSTONE’S EVIDENCE [ 20 ] I first examine the evidence of Mr. Livingstone. A. Examination-in-chief [ 21 ] In examination-in-chief, Mr. Livingstone testified that he is 22 years old and that he lives in Hawkesbury, Ontario. He was living there in 2018 and came to Iqaluit to work that summer at the Young Offenders’ facility. He was staying here with his father.

He had met the complainant the previous summer at “a gathering” in Iqaluit. [7] [ 22 ] On July 15 he met up with two colleagues and some of their friends before heading to the Legion. They arrived at the Legion around 9:30 or 10 p.m. Over the course of the evening, Mr. Livingstone said he drank four or five “normal pop-size” cans of Alexander Keith’s beer. Between visits to the bar to buy beer, he went to the quiet lounge to get a shot. [8] [ 23 ] Mr. Livingstone said he decided to leave around 12:30 a.m.

He had noticed the complainant earlier sitting at another table saying that they – meaning he and the complainant – had “had previous encounters.” He tapped her on the shoulder and asked her if she wanted to go back to his place. She said yes and they took a cab there. [9] At that time, the complainant “didn’t seem too intoxicated. I see – I felt like we were on very similar levels, drunk wise.” [10] I accept his evidence and find that neither party was unduly affected by alcohol. [ 24 ] They both took off their shoes when they entered the apartment then walked towards his bedroom. There was no conversation. Mr.

Livingstone denied choking the complainant at this point. They entered the bedroom, sat on his bed, and started kissing. After several minutes they stopped kissing, got up, and undressed. The complainant undressed at the foot of the bed. Once undressed, Mr. Livingstone said the complainant adopted “like a doggy position … in front of my torso.” He took his penis “and that’s when I proceed to – I touch her – her anus with my penis.” He continued: So immediately when I – when my penis touched her anus, she said no, but I – a split second, [sic] it was like a scream of terror. It pierced my ears.

It scared – it scared the hell out of me. And once she screamed and started to panic, we fell forward. I fell on top of her so my chest falls on top of her back, and I rolled off of her. I rolled to – what was that? I don’t – right – left. Anyway, I roll on to my back off of her. [11] [ 25 ] Asked by his lawyer to clarify, Mr. Livingstone then stated: So, when I – when I – when my penis touched her anus, I went slow. And I was – my head – my head of my penis [sic] touched her anus. And I say – well, my head of my penis [sic] went about halfway in, if not, the – whole head. And that’s when she freaked out.

And she –

can I – she quoted something … she said no and she screamed. And when she screamed, she said get the – I’m going to swear as a quote. She said, get - get the fuck off me. And then that’s when we fell and I rolled off. [12] [ 26 ] Mr. Livingstone also said that he knew the complainant was upset because “she was very angry; like went to zero to a hundred [sic] in a split second.” [13] Mr. Livingstone rolled over on his bed and dozed off as the complainant went to the bathroom. He said he did not see her again that night. [ 27 ] The next day, Mr.

Livingstone sent a text message to the complainant to apologize for his actions. He denied having had either vaginal or oral sex with the complainant that night. B. Cross examination [ 28 ] Prosecution Counsel’s cross examination was extremely short. Asked whether choking his sexual partner aroused him, Mr. Livingstone replied: “Choking? It can be.” [14] He then explained his failure to ask for the complainant’s permission to try anal sex as follows: Why didn’t I? I felt like I was behind her. It was – I’m sure she thought I was going for vaginal.

But, again, like I said, I made that call and I – I – that’s when I touched her butt with my penis. [15] C. Analysis of Mr. Livingstone’s evidence [ 29 ] I turn now to my analysis of Mr. Livingstone’s evidence. [ 30 ] Mr. Livingstone does not claim that he had an honest but mistaken belief that the complainant had consented to having anal sex. I understand his defence to be that he engaged in consensual sex with her and that the moment she withdrew that consent, he stopped immediately. Therefore, Defence Counsel submitted, Mr.

Livingstone is not guilty of sexual assault. [ 31 ] There are two aspects to the Crown’s case against Mr. Livingstone. As I noted earlier, these are called the actus reus and the mens rea . The actus reus requires proof of what Mr. Livingstone did. The mens rea requires proof that Mr. Livingstone knew or was wilfully blind that the complainant had not consented to engaging in anal sex. There are troubling features touching each aspect in Mr. Livingstone’s evidence. I shall examine first his evidence as it pertains to the actus reus . D. Concerning the actus reus [ 32 ] First, Mr.

Livingstone was inconsistent in examination-in-chief on the very point at the heart of the Crown’s case against him: what exactly did he do with his penis? In the space of the very same sentence, as we have seen, Mr. Livingstone said his penis “touched her anus,” then that “well, my [the] head of my penis went about halfway in,” then immediately after he said, “if not, the – whole head.” [ 33 ] This is a serious inconsistency. Either Mr. Livingstone simply touched the complainant’s anus with his penis, or he inserted all or part of its head into her anus. There is no evidence that Mr.

Livingstone suffers from any mental illness or cognitive deficit. He presented in Court as a physically healthy individual. He has some post secondary education. And, I have already found that his mental faculties were not impaired on July 15. Put simply, I do not find Mr. Livingstone’s explanation on this point to be credible, and I reject it.

[ 34 ] Next, I accept Mr. Livingstone’s evidence that he had only tried anal sex once before with a different partner, and that that time he first had asked for permission. I accept his evidence that there was no meaningful conversation between the parties in this case before they both undressed and engaged in vaginal sex. I accept Mr. Livingstone’s evidence that he and the complainant had only engaged in vaginal sex in the past. I accept Mr. Livingstone’s assertion that he was “sure” that the complainant had consented to vaginal sex, but that he “made the call” anyway to move his penis to her anus.

I also accept his evidence that the complainant panicked when he contacted her anus. On all this evidence, I am satisfied that by offering her rear end to Mr. Livingstone, the complainant had not subjectively agreed or consented [16] to any activity other than vaginal sex. My finding on what the complainant had in her mind at all material times – no agreement or consent to anal sex – informs my analysis the Crown’s proof of the actus reus . E. Concerning the mens rea [ 35 ] I turn now to what was in Mr. Livingstone’s mind – the mens rea - as he went to move his penis towards the complainant’s anus.

Defence Counsel asserted that: … we can’t presume that she didn’t consent to anal sex from the very beginning. The Crown has to prove beyond a reasonable doubt the point at which she withdrew her consent … And when was it no? It was when either she felt his penis on her anus or he somehow verbally suggested that she wanted anal sex. That’s when she said no and that’s when she stopped consenting. Everything up until that point was consensual, and as soon as she said no, he stopped. [17] [ 36 ] In my view, Defence Counsel’s submission misses the point. Mr.

Livingstone testified in examination-in-chief that he and the complainant had never previously had anal sex. Significantly, he stated: I’m sure she thought I was going for vaginal. But, again, like I said, I made that call and I – I – that’s when I touched her butt with my penis. [ 37 ] That testimony bears repeating: “I’m sure she thought I was going for vaginal. But, again, like I said, I made that call and I – I – that’s when I touched her butt with my penis.” [ 38 ] There is only one way in which I can interpret and understand this clear and unambiguous statement. Mr.

Livingstone’s admission may have been unwitting, but he admitted that he was sure that the complainant had agreed to, and was expecting to engage in, vaginal sex. In other words, he testified that he knew that their agreement concerned only vaginal sex and he knew this before he moved his penis to her anus. This is a crucial piece of evidence. I accept his evidence on that point, although I do not accept his inconsistent and self-serving evidence that he only “touched her butt” with his penis. On this evidence alone, I would be satisfied that Mr.

Livingstone is guilty of sexual assault even if I had accepted that his touching the complainant’s anus with his penis was either fleeting or less than complete penetration. F. Air of reality [ 39 ] I did not find Mr. Livingstone to be a credible witness respecting the key points of his narrative. Some of Mr. Livingstone’s version of events lacked an air of reality. This was particularly so when he discussed what he said happened after he rolled off the complainant. The complainant, you will recall according to Mr.

Livingstone, had panicked and had just gone from zero to a hundred in a split second, and had let out a scream of terror which pierced his ears and scared the hell out of him. Yet, he claimed his response to this unfolding nightmare was simply to roll over and doze off because he was tired. I reject this evidence. Simply put, I do not believe him. [ 40 ] Nor does Mr. Livingstone’s evidence raise a doubt in my mind. I must now turn to an analysis of the other evidence. VI. THE COMPLAINANT’S EVIDENCE

A. Examination-in-chief [ 41 ] Prosecuting Counsel, through her questions in examination-in-chief, did not elicit much information about the complainant. The complainant is 22 years old and lives in southern Canada where she attends school. Like Mr. Livingstone’s situation, there was no evidence that she suffered from any mental infirmity or other cognitive handicap. I found the complainant to be an articulate and obviously intelligent person. Her evidence was internally consistent, and it made sense. There is no evidence that the complainant had any motive to dissemble or to lie.

I found her testimony to be measured and without any obvious exaggeration or embellishment. I believed her. [ 42 ] The complainant testified that she had consumed alcohol and “had a buzz … like, teetering towards drunk I guess, but I still was able to function well, remember everything.” [18] I accept her evidence of what happened on July 15 wherever it differs from that of Mr. Livingstone. [ 43 ] The complainant testified that she had met Mr. Livingstone at a party during the summer of 2017.

She described their relationship as “very, like, casually seeing each other-ish.” She said: “Neil Livingstone assaulted me in 2018 on July 15 th ”. [19] This is what she described when the Prosecutor asked her what happened: So initially it was consensual vaginal sex, and then he began anally penetrating me after I had said no. And I said no and I kept telling him to stop. And I recall telling him to, like, get out of me. And he continued and he said why? And it ended when he passed out on top of me, and then I pushed – pushed him off of me.

And I ran back to my aunt’s place which was just higher up on the Plateau of a few houses away. [20] [ 44 ] At this point, the Prosecutor essentially began her examination-in chief. The complainant revealed that Mr. Livingstone had aggressively choked her shortly after they had entered the apartment. [ 45 ] The complainant reiterated the details of the assault and said that she told Mr. Livingstone no “multiple times” including “get out of me” but he did not. In the process, Mr. Livingstone injured her.

She suffered anal bleeding for around a week afterward and she contracted a urinary tract infection which lasted for three months. She experienced pain when sitting, walking and when she voided herself. She was only able to receive medical attention when she returned to school in southern Canada where she received antibiotics. [ 46 ] Later, the Prosecutor took her back to the choking incident. The complainant added that it “caught me off guard because it was, like, feel it; but it wasn’t super – like, I don’t believe it was very long and it was kind of just, like, left it at that.” [21] I accept that Mr.

Livingstone choked her. I infer from this testimony that the complainant was surprised by this application of force by Mr. Livingstone, and had not consented to it, but that she had brushed it off as - and this is my characterisation - clumsy foreplay. B. Cross examination, Defence Counsel’s concerns about her evidence, and my analysis [ 47 ] Defence Counsel conducted a rigorous and thorough cross-examination. The complainant agreed that she had not told the police that she had been injured during the incident, or that she contracted a urinary tract infection.

The following exchange between Defence Counsel and the complainant is instructive: Q: I’m going to suggest to you that’s because you had no injuries? A: No, that’s not the case. It’s because he [the Constable who took her statement] didn’t ask. I was also really ashamed at the time, even though now I know, like, the shame wasn’t mine to hold. And it was embarrassing to me because of how the incident happened and that it was to my anus. He didn’t ask me any direct questions as to whether I had any injuries. [22]

[ 48 ] I am not troubled by the fact that the complainant revealed her injuries and urinary tract infection for the first time at trial. The vast majority of civilian witnesses are not legally trained. In my experience, witnesses will answer the questions which are put to them – whether by the police or by counsel in court - but they are not generally adept, aware, or comfortable enough to provide information on their own initiative.

Nor are they generally aware of the legal relevance of the information they possess. [ 49 ] Once Defence Counsel had challenged her credibility on this point, the complainant added: Oh sorry. I just wanted to say that if you wanted to check medical records about the UTI and – that I had done it at [edited] University, feel free because the evidence is there . [23] [ 50 ] There may be several explanations why the Crown did not tender into evidence – as one might have expected - the complainant’s medical records.

Without an explanation why these records were not tendered into evidence, I am not prepared to draw an adverse inference against the credibility of the complainant on that point. [ 51 ] Defence Counsel also challenged the complainant’s evidence that there had been vaginal intercourse that night. Q: Okay. In your statement with – to Constable Polweski, he asked you this question: (As read) Okay. Were you guys having oral sex, vaginal sex? What, was taking place prior to that? Do you remember? A: Vaginal I think. Do you recall being asked that question and giving that answer? A: Yes.

Q: And again, I’m going to suggest to you that your answer was “vaginal I think” because you weren’t clear about whether or not you had vaginal sex that night? A: I was sure that we had vaginal sex. I wasn’t too sure about the oral, but I know we had vaginal sex before the non-consensual anal sex . [24] [ 52 ] Defence Counsel also cross examined the complainant vigorously respecting her body language visible in the video recording during her statement to the police on this point. I have considered all this evidence. I accept as proven that Mr.

Livingstone and the complainant initially had consensual vaginal sex. [ 53 ] As the cross examination continued, Defence Counsel again challenged the complainant, this time on a discrepancy between what she had said to the police and to the Court. The complainant had testified that Mr. Livingstone had said “why” when she told him no to the anal penetration.

Defence Counsel put the discrepancy to her in the following terms: Q: I’m going to suggest to you that in your statement to Constable Polewski, you don’t say that Neil’s answer to that – to you saying that was “why.” You said he said, “how come” – or, sorry – yeah, “how come.” Do you recall saying that to Constable Polewski?

A: If that’s what I said, that’s what I said . [25] [ 54 ] I have considered this inconsistency. Not every inconsistency between versions given by a witness at different times is material. Whether the exact words used by Mr. Livingstone to the complainant’s demand that he stop were “why”? or “how come,”? I accept that Mr. Livingstone communicated to the complainant that he saw no reason why he should stop. The complainant’s inconsistency in expression on this question is a minor one and it is not materially significant. [ 55 ] I have also considered Defence Counsel’s submission that Mr.

Livingstone may have asked the complainant to have anal sex. [26] I am satisfied on all the evidence that Mr. Livingstone never asked the complainant if he could perform anal sex. I am satisfied that the complainant said no immediately when she felt Mr. Livingstone’s penis against her anus, [27] and that she continued to ask him to stop multiple times. I accept Mr. Livingstone’s version that although he knew she was consenting to vaginal sex, nevertheless he “made that call” to move to engage in anal sex. VII. DECISION [ 56 ] The Crown has proven that: • during the early morning hours of July 15, 2018; • Mr.

Livingstone took the complainant back to his father’s apartment in Iqaluit; • he choked her unexpectedly and without her consent before having consensual vaginal sex with her; • he then intentionally penetrated her anus and rectum with his entire penis against her will – knowing she had neither agreed to nor consented to that act; • he continued anal intercourse despite her repeated calls for him to stop; and • he injured her in the process which resulted in anal bleeding, significant discomfort, pain, and continuing emotional distress. [ 57 ] I found Mr. Livingstone guilty of sexual assault. SENTENCE VIII.

SENTENCING RECOMMENDATIONS BY THE PARTIES A. The Crown

[ 58 ] Prosecuting Counsel recommends that I impose a 36-month federal sentence. B. Victim Impact Statement [ 59 ] Victims of crime have the right to file, or read aloud in court at sentencing, a statement describing the impact which the crime has had on them. [28] [ 60 ] Mr. Livingstone’s victim filed a detailed and lengthy victim impact statement. The statement poignantly describes the emotional anguish and suffering which she has suffered, and continues to suffer four years later, because of this heinous crime. [ 61 ] I ordered the victim impact statement to be sealed. C.

The Defence [ 62 ] Defence Counsel submitted that 24 to 30-months is the appropriate range of sentence in Mr. Livingstone’s case. IX. THE PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING [ 63 ] Parliament has codified the sentencing regime in

Part XXIII of the Criminal Code . The sentencing hearing is a highly individualised process because no two crimes and no two offenders are exactly alike. A. The purpose and objectives of sentencing [ 64 ] The purpose and objectives of sentencing are found in Criminal Code

section 718 . [ 65 ] The fundamental purpose of sentencing is to protect, and to promote, a just and safe society while maintaining public confidence in the administration of justice. [ 66 ] In Mr. Livingstone’s case, the sentence I impose must work to achieve several objectives: • to condemn his conduct and the harm he inflicted on his victim; • to deter him and others from committing crimes; • to encourage his rehabilitation; and • to promote in him, and others, a sense of responsibility and an acknowledgement of the harm done both to victims and to the community.

B. The increased vulnerability of Mr. Livingstone’s victim [ 67 ] In 2019, Parliament added a further sentencing objective which is directly relevant to this case. In

section 718.04, Parliament instructed judges to give primary emphasis to denunciation and deterrence where the offender has abused a vulnerable, Aboriginal woman. Mr. Livingstone’s victim was an Inuk woman. C. The principles of sentencing [ 68 ] Proportionality is the fundamental principle of sentencing. In other words, the sentence I impose must fit the circumstances of the offence and the offender. [29] Mr. Livingstone bears a high moral culpability for his crime and the sentence must reflect that fact. D.

The parity principle [ 69 ] The parity principle requires that similar offenders should be sentenced similarly for similar crimes. [30] E. Aggravating and mitigating factors [ 70 ] Sentences must account for the presence of relevant aggravating and mitigating factors. [31] Aggravating factors work to increase the sentence while mitigating factors to lessen the sentence. i. Aggravating factors [ 71 ] There are several aggravating factors in this case: 1. Mr. Livingstone abused his position of trust towards his victim; 2. Mr.

Livingstone sexually assaulted his victim while she was in a vulnerable physical situation; 3. Mr. Livingstone’s sexual assault – forced anal penetration – constituted not only a profound interference with his victim’s body but also a profound violation of her psychological and sexual integrity; [32] 4. Mr. Livingstone’s actions were predatory; 5. Mr. Livingstone’s actions were deliberately aimed at controlling and dominating his victim; 6. Mr. Livingstone continued his sexual assault despite his victim’s repeated entreaties to stop; 7. Mr. Livingstone physically injured his victim during the sexual assault; and

8. Mr. Livingstone’s actions had a devastating and continuing adverse psychological impact on his victim. [33] ii. Mitigating factor [ 72 ] There is one mitigating factor. Mr. Livingstone does not have a prior criminal record. [34] F. Restraint [ 73 ] The sentencing judge must also exercise restraint. [35] As Defence Counsel said, the purpose of sentencing is not a race to impose the highest possible sentence. G.

The prevalence of gendered sexual violence in Nunavut [ 74 ] The Supreme Court of Canada has ruled that the frequency or prevalence of crime in a community is a relevant consideration at sentencing. [36] This is relevant in Nunavut where gendered sexual violence occurs in epidemic proportions. [ 75 ] As I stated recently in another case: [37] In January 2020, Pauktuutit Inuit Women of Canada (Pauktuutit) shone a light on the frequency of the violence in Nunavut which is perpetrated upon Inuit women and girls.

Pauktuutit described the rate of gendered violence against Inuit women and girls as a “problem of massive proportions.” [38] The rate of gendered violence in Nunavut was 13 times greater than the national average. The rate of gendered sexual violence in Nunavut was 12 times greater than the national average. In 2016, Nunavut had the highest rate of police- reported family violence in Canada. [ 76 ] Pauktuutit has spoken again about this issue last month, reminding Nunavummiut: Meeting survivors needs, In our communities and in our homes … Inuit women and girls have the right to be safe. And the right to heal.

The system of courts and policing is failing too many of us. [39] [ 77 ] In her excellent written submissions, Prosecuting Counsel noted: In 2018, the national reported rate of sexual assaults (including aggravated forms) was 78 per 100,000 people. The rate in Nunavut in the same period was 453 per 100,000. In 2020, the national reported rate of sexual assaults (including aggravated forms) was 75 cases per 100,000. In Nunavut in the same period the rate was 600 per 100,000.

See attached extracts from Greg Moreau, “Police-reported crime statistics in Canada, 2018” (Canada: Juristat, 2018); and, Greg Moreau, “Police-reported crime statistics in Canada, 2020” (Canada: Juristat, 2020). [40] [ 78 ] Thus, one of the many factors I consider and balance is the prevalence of gendered sexual violence in Nunavut.

X. THE JURISPRUDENCE [ 79 ] There are hundreds of reported sexual assault sentencing cases reflecting an immense variety of circumstances and offenders. This fact highlights that sentencing is a highly case-specific exercise. Still, reported cases are useful guideposts which assist in crafting a sentence which applies, among other things, the parity and proportionality principles. A.

Sentencing ranges and starting points [ 80 ] The Supreme Court of Canada recently endorsed the use of both sentencing ranges and starting points as appropriate sentencing tools stating: Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence … sentencing is one of the most delicate stages in the criminal justice process. It requires judges to consider and balance a multiplicity of factors and it remains a discretionary exercise. The goal in every case is a fair, fit and principled sanction.

Proportionality is the organizing principle in reaching this goal, and parity and individualization are secondary principles. [41] B. Nunavut [ 81 ] The body of case law in Nunavut is somewhat sparse in this area although it continues to evolve. In R v. Kolola , [42] I reviewed this developing area of the case law and discerned a sentencing range of 36-months to 60-months in cases of penetrative vaginal sexual assault of a sleeping victim.

While imposing the 30-month jail sentence recommended by the Crown in Kolola I stated: … a future offender in similar circumstances who has not made tangible efforts at rehabilitation and has not demonstrated tangible success can likely expect a stronger sentence . [43] [ 82 ] As we shall see, this sentencing range is similar to that in British Columbia. [ 83 ] As there are no reported cases in Nunavut factually similar to Mr. Livingstone’s, I find further guidance in other Canadian jurisdictions. C.

Alberta [ 84 ] In Alberta, the non-binding starting point in cases of major sexual assault following conviction at trial is three years in jail. [44] [ 85 ] In Nunavut, this Alberta approach has met with a mixed reception. [45] However, I note that those Nunavut judges who declined to follow the Alberta Court of Appeal in Arcand did so before the Supreme Court of Canada ruled in Parranto . [ 86 ] In my view, a non-binding sentencing starting point reflects the objective gravity of the offence, and it acknowledges the real psychological harm experienced by victims of violent sexual crime.

[ 87 ] Mr. Livingstone committed a major sexual assault. D. British Columbia [ 88 ] In British Columbia, the sentencing range for sexual assaults similar to the one perpetrated by Mr. Livingstone is between two to six years. [46] i. R v G.M. [ 89 ] The British Columbia Court of Appeal in R v G.M. provides a remarkably similar set of circumstance to Mr. Livingstone’s case. [ 90 ] In G.M. , the offender and victim had pursued a casual sexual relationship. They met by chance in a bar and sometime after closing they got together at the offender’s home.

They had consensual anal intercourse until the victim complained that it had become uncomfortable. The victim closed his eyes and tried to sleep. “Some moments later,” the offender placed his weight on his victim and penetrated him anally and continued while the victim cried and screamed while saying no repeatedly. [47] [ 91 ] The sexual assault “devastated” the victim who isolated himself afterwards resulting in him losing his job and his car.

The offender was a 43-year-old first-time offender who expressed sincere remorse but who “did not acknowledge the circumstances of the offence.” [48] The Crown recommended an 18-month jail term, and the trial judge imposed a 90-day intermittent sentence. The Crown appealed. [ 92 ] The Court of Appeal granted the appeal and imposed the 18-month sentence which had been requested by Prosecuting Counsel. However, in doing so, the unanimous court stated that the 18-month sentence: should not be taken as a sentence within the appropriate or normal range.

The sentence is dictated by the position taken by the Crown at the sentencing hearing . [49] [ 93 ] In the process, the Court of Appeal confirmed that the sentencing range in British Columbia for sexual assault including penile penetration is two to six years. [50] E. Nova Scotia [ 94 ] In her written submissions, Prosecuting Counsel noted that the courts in Nova Scotia do not use starting points or sentencing ranges. She referred to two similar cases which address the parity principle. i.

R v DeYoung [ 95 ] In R v DeYoung , [51] the sleeping victim woke up to find that her guest, the offender, had inserted his penis one centimetre into her anus. She turned and hit him ending the sexual assault. The court sentenced this first-time offender to two years in a penitentiary. ii. R v Kotio

[ 96 ] In R v Kotio , [52] ( Kotio ) the parties initially had consensual oral sex and vaginal intercourse until the victim revoked her consent when the sex became too rough and hurtful. The offender then inserted his penis into her anus against her will and continued despite her protests. He laughed while she cried in pain. When she retreated to the washroom, the offender followed her and forced her against her will to have vaginal intercourse.

The victim suffered pain for a week and a half when using the toilet, and the incident had “a profound emotional effect on her.” [53] [ 97 ] In the decision, the court cited R v A. (W.H.) where the sentencing judge stated: … in the category of sexual assault, previously known as a ‘rape’, it does appear to be the case that, in the absence of exceptional circumstances, an offender with no significant criminal record, who has committed a non-premeditated rape, will receive a sentence around three years in jail . [54] [ 98 ] In Kotio , the court sentenced this 26-year-old university student and first-time offender to three years in a federal penitentiary.

F. Ontario [ 99 ] In R v AJK , [55] the Ontario Court of Appeal confirmed a sentencing range between three to five years, and in some cases higher, in cases of “forced oral, vaginal, or anal penetration”: One need look no further than this court’s decision in R. v. Bradley , 2008 ONCA 179 , 234 O.A.C. 363 , which is often cited as support for a three-to-five-year sentencing range involving non-intimate partners.

This court stated, at para. 18: “We accept the Crown’s submission that, in the circumstances, the appropriate range of sentence was three to five years.” Numerous decisions from this court and others have reinforced a range of three to five years, and in some cases even higher, in the context of sexual assaults of non-intimate partners involving forced oral, vaginal, or anal penetration: see e.g., R. v. U.A. , 2019 ONCA 946 , at para. 11 ; R. v. T.W. , 2019 ONSC 5596 , at paras. 33 , 42; R. v. McCaw , 2019 ONSC 3906 , at para. 59 ; R. v. Johnson , 2018 ONSC 5153 , at para. 34 ; R. v.

Mitrovic , 2017 ONSC 1829 , [2017] O.J. No. 1523 , at para. 38 ; R. v. L. , 2016 ONSC 733 , at paras. 46 , 50; R. v. Nelson, 2014 ONCA 853 , 318 C.C.C. (3d) 476 , at para. 60 ; R. v. S.A. , 2014 ONCA 266 , at para. 1 ; R. v. Rand , 2012 ONCA 731 , 307 O.A.C. 64 , at para. 19 ; R. v. Richards , 2010 ONCA 728 , at para. 6 ; and R. v. Myers , [2000] O.J. No. 1787 (Sup. Ct.) , aff’d (2002), 156 O.A.C.157 . [1] [56] XI. THE OFFENDER [ 100 ] I now turn to Mr. Livingstone. A. Mr. Livingstone’s personal circumstances [ 101 ] Mr. Livingstone was born in Rostov in the Russian Federation and he is 23 years old.

He has no Inuit background. He was adopted at a young age and brought to Iqaluit. Since he was 12, Mr. Livingstone has divided his time between his father in Iqaluit and his mother in Hawkesbury, Ontario. He is an only child. [ 102 ] Mr. Livingstone completed grade 12 in Hawkesbury in 2017. He worked with Caribou Cabs in Iqaluit as a mechanic for eight months starting in January 2021. He currently does not have a full time job.

He has been living with an intimate partner for the past two years, and she is the primary source of his income. [ 103 ] The author of the Pre Sentence Report dated July 28, 2022 reports that Mr. Livingstone says that he is physically healthy and

does not take any medication. [57] The author also says that Mr. Livingstone “was very remorseful” with her during their interview. [58] He does not have a prior criminal record. [ 104 ] Defence Counsel presented a binder containing six letters of support for Mr. Livingstone which I have read. XII. APPLICATION OF THE PURPOSE, OBJECTIVE, AND PRINCIPLES OF SENTENCING TO MR. LIVINGSTONE [ 105 ] Mr. Livingstone is a first-time offender who bears a high degree of moral responsibility for his violent crime.

He sexually assaulted his victim - an Inuk woman - when she was vulnerable physically and all but unable to defend herself. He breached his victim’s trust by knowingly forcing his penis into her anus and rectum without her consent, and he continued despite her repeated entreaties for him to stop. Not only did Mr. Livingstone injure his victim physically, but he also perpetrated against her

an act of emotional cruelty. [ 106 ] The objectives and principles of sentencing require this Court to impose a sentence which gives priority to denunciation and deterrence – both specific and general. [ 107 ] The gravity of the circumstances of this case requires the Court to impose a sentence which emphasises meaningfully our community’s abhorrence of gendered sexual violence. The sentence must also attempt to protect Nunavummiut by deterring both Mr.

Livingstone and others in the future. [ 108 ] The imposition of a jail sentence in this country is a sanction of last resort, particularly when the court is sentencing a first-time offender. [59] However, Mr. Livingstone committed a heinous crime which requires the imposition of a federal penitentiary term. [ 109 ] Mr. Livingstone is a youthful adult who has most of his life still ahead of him. One hopes that he will take full advantage of the programming available to sexual offenders while he is in custody.

It is not too late to hope for his reformation and rehabilitation. [ 110 ] It appears that the range of sentence in these circumstances is a penitentiary term between three and six years. XIII. SENTENCE A. A federal penitentiary term [ 111 ] I do not need to endorse either a non-binding starting point analysis, or the sentencing range, to formulate the appropriate sentence in this case. The objectives and principles of sentencing require me to impose a federal penitentiary term. [ 112 ] I order that Mr. Livingstone serve 1080 days (that is 36 months calculated at 30 days per month) in a federal penitentiary. B.

Victim fine surcharge

[ 113 ] As I sentenced Mr. Livingstone to a penitentiary term, I waive the $200 victim fine surcharge. [60] C. Ancillary orders [ 114 ] I impose the following ancillary, or related, orders: 1. A mandatory DNA order pursuant to Criminal Code

section 487.05 (1) ; 2. A mandatory Sexual Offenders Registry Order for 20 years pursuant to Criminal Code

section 490.013 (1) (b); 3. A mandatory 10 year firearms prohibition pursuant to Criminal Code section 109 (2) (a) (ii); and 4. An order forbidding Mr. Livingstone from having any contact with his victim while he is in custody pursuant to Criminal Code

section 743.2 (1) . Dated at the City of Iqaluit this 5th day of August, 2022 ___________________ Justice Paul Bychok Nunavut Court of Justice