R. v. Kownirk, 2022 NUCJ 29

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kownirk, 2022 NUCJ 29 Date: 20220712 Docket: 08-20-195 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Newkinga Kownirk __________________________________________________________________ Before: Mr. Justice Mulligan Counsel (Crown): Counsel (Accused): E. Baasch M.

Manocchio Location Heard: Date Heard: Iqaluit, Nunavut July 12, 2022 Matters: Sentencing decision following a finding of guilt of sexual assault contrary to Criminal Code of Canada, RSC 1985, c C-46 , ss 271 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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. Letters have been assigned at random. I. INTRODUCTION [ 1 ] This matter proceeded by way of a one-day judge alone trial.

Mr Kownirk was found guilty on three counts: Sexual assault contrary to Criminal Code ( Code ) s.271 , failing to comply with a probation order s.733.1(1) , and failing to comply with a release order s.145(5) . The Crown requested a stay with respect to count 3 failing to comply with a release order. II. CIRCUMSTANCES OF THE OFFENCES [ 2 ] Mr. Kownirk met the victim AK for the first time at the Northmart parking lot in Iqaluit. By a hand signal from a vehicle he was in he invited her over to his place for some drinking. She accepted the invitation and arrived as requested. His mother was home.

They began drinking several beers. After about an hour his mother went out. While AK was in the bathroom he approached her from behind. She felt that she had blacked out from alcohol consumption. Mr. Kownirk testified that she was not that drunk. Unprotected sexual intercourse both vaginal and anal took place. She left, then reported the matter to the RCMP and attended the hospital.

III. CIRCUMSTANCES OF THE OFFENDER [ 3 ] Mr. Kownirk is a 41-year-old resident of Pangnirtung. As an Inuk this Court must consider Gladue [1] and Ipeelee [2] principles when crafting a fit sentence for him. [ 4 ] He has an extensive criminal record spanning 20 years and was subject to a probation order and a release order at the time of this offence. [ 5 ] The Crown filed his Criminal Record as an Exhibit. • His record indicates convictions for B and E, theft under, assault and mischief. Most significantly he was convicted of sexual assault in 2003, the very offence now before the Court.

He has several convictions for failure to comply with probation and failure to comply with recognizances. • He has received many reformatory jail sentences over this period. He has never served a penitentiary term. [ 6 ] He was born in Iqaluit and was adopted to a woman in Pangnirtung. [ 7 ] His father died when he was 13.

Over the years he has spent time at his biological mother’s house in Iqaluit, in fact this is where the sexual assault took place. [ 8 ] His biological mother has her own medical issues and he is not close to her at this time. [ 9 ] He does not have much of a work record and had spent a lot of time living at a men’s shelter. [ 10 ] He has completed some programs including one at Nunavut Arctic College but was unable to pay the fee to get a certificate. [ 11 ] Defence Counsel submitted that alcohol has been an issue in his life but he has had some lengthy periods of sobriety. IV.

VICTIM IMPACT [ 12 ] The victim did not participate in the sentencing hearing but at the time of the trial AK was 30 years of age. She was visiting Iqaluit from her home community elsewhere in Nunavut and had never met the offender before. She was clearly upset during her testimony when recalling the events of May 1, 2020. She testified that she didn’t think he would do that to her. She is Inuk so the Court must consider Code s. 718.04 which deals with offences against vulnerable persons when crafting a fit sentence for Mr. Kownirk. V.

POSITION OF THE CROWN [ 13 ] The Crown submits that a fit sentence for this offender is 3 to 4 years in custody, before pretrial detention credit is applied. Both Crown and Defence submit that Mr. Kownirk has spent 363 non-continuous days in pretrial custody to the date of June 13, 2022 and a credit based on 1.5 days equals 18 months. To that I would add 30 days from then to today yielding a further credit of 1.5 months for a total pretrial credit of 19.5 months.

[ 14 ] The Crown submits that probation should follow if a reformatory term is ordered. [ 15 ] The Crown submits that ancillary orders ought to be imposed. VI. POSITION OF THE DEFENCE [ 16 ] The Defence submits that a fit sentence is 30 months before pretrial credit is applied, which would yield a sentence of 10.5 months still to be served, followed by a period of probation. The Defence takes no issue with the ancillary orders sought. VII. MITIGATING FACTORS [ 17 ] Mr. Kownirk expressed remorse at the sentencing hearing, although late in the process. VIII. AGGRAVATING FACTORS [ 18 ] Mr.

Kownirk has an extensive criminal record which I have already commented upon. [ 19 ] That record indicates 5 breaches of probation orders over the years beginning in 2003 until 2019. [ 20 ] He has a prior record for sexual assault, although dated. [ 21 ] The offence itself was a violent sexual assault on a vulnerable Inuk woman. IX. PRINCIPLES OF SENTENCING [ 22 ] Parliament has codified the principles of sentencing in Code s.718 . 718.

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders;

(

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 23 ] Because the offender is Inuk I must also consider Code s. 718.2 [ 24 ] S.718.2 (

e) provides: 718.2 … … (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 25 ] Because the victim is female and Inuk I must also consider Code s. 718.04 which further provides: 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 26 ] The Crown filed a Casebook of Authorities including two recent cases from the Nunavut Court of Appeal.

Defence counsel also made reference to the principles set out in the cases filed. [ 27 ] In R. v. Kolola 2021 NUCA 11 the Nunavut Court of Appeal upheld a sentencing judge’s decision to impose a 30-month sentence, as requested by the Crown, on an offender who was Inuk and convicted of sexual assault on a sleeping woman. The offender entered a plea of guilty, a sign of remorse.

The victim was considered a vulnerable person and the court considered common law provisions and new Code s.718.04 , which was not in force at the time of the offence. [ 28 ] The sentencing judge gave a careful analysis of the vulnerability of Inuit women and stated in R. v. Kolola, 2020 NUCJ 38 , at para 60 : … The inter-generational effects of colonialism have not only contributed to the staggeringly high rates of Indigenous offending. This was the problem sought to be addressed by Criminal Code

section 718.2 (

e) and Gladue . The impact of colonialism also gave rise to the very same inter-generational effects which have left all Inuit women – and not just intimate partners – in a particularly vulnerable position in society.

In my view, this reality ought to inform the deliberations of a Nunavut sentencing judge when sentencing an offender who has victimized an Inuk woman. [citation omitted] [ 29 ] In Kolola the Court of Appeal acknowledged the problem of violence against women in Nunavut and stated at paras. 28 and 29: The prevalence of sexual violence against women in Nunavut has been known for many years and trial judges are in the best position to access and observe the magnitude of the problem in their jurisdiction….The sentencing judge did not err by seeking to emphasize the nature, severity, and impact of sexual violence on women in Nunavut in the sentencing process.

[30] In Kolola the Court of Appeal made refence to the Supreme Court of Canada’s decision in R v. Freisen, 2020 SCC 9. [31] In Freisen the Supreme Court touched on two fundamental sentencing principles at paras 30 and 31: All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibilityof the offender. The principle of proportionality has long been central to Canadian sentencing and is now codified as the “fundamentalprinciple” of sentencing in S.718.2(

b) of the Criminal Code. Sentencing judges must also consider the principle of parity: similar offenders in similar circumstances should receive similar sentences. [32] In Freisen the Court also provided guidance on prior sentencing ranges, stating at para. 108: Courts can and sometimes do need to depart from prior precedents and sentencing ranges in order to impose a proportionate sentence.Sentencing ranges are not “straightjackets” but are instead “historical portraits”. [33] In R. v.

Parr, 2020 NUCA 2 the majority of the Court of Appeal discussed sentencing ranges in a case where the sentencing judgesentenced an Indigenous offender to 5 years in custody following a jury trial for sexual assault on an Indigenous woman who wassleeping. The offender had a serious criminal record. [34] The sentencing judge reviewed the relevant sentencing principles and imposed a sentence of 5 years, in effect jumping the Crown’srecommendation of a 4-year sentence.

The Court of Appeal found that the sentencing judge fell into error by not alerting counsel that hewas considering sentencing in excess of the recommendations, and the majority overturned the sentence on that basis. [35] The majority reviewed the ranges for similar sentences and substituted a sentence of 48 months as the Crown had recommended.But the Court added this note of caution at para 59: We do not intend for this sentence in this case to act as a cap or establish a range for sentences of this sort. [36] In R. v.

A.(J.), 2009 NUCJ 3 , 2009 NUCJ 03 the sentencing judge imposed a 4-year sentence on an offender for sexualassault on a former spouse. The offender had a record for a pattern of abuse. The court emphasized the need for deterrence anddenunciation and applied the totality principle. [37] In R. v. Delorme, 2011 NWTSC 14 the sentencing judge imposed a 4-year sentence on an aboriginal offender for sexual assault ona victim who was sleeping. The offender had a lengthy record, an aggravating factor with no mitigating factors. [38] In R. v.

Idlout, 2021 NUCJ 50 the sentencing judge imposed a 30-month sentence after a trial for sexual assault and breaking andentering. The Indigenous offender had a record but was facing his first custodial sentence. The sentencing judge noted that the offenderwas subject to significant pretrial custody and had done well in custody and the court considered rehabilitation prospects. Crown counselnow advises that the conviction and sentence in Idlout is under appeal. [39] In another recent decision of the Nunavut Court of Appeal, R. v.

Pauloosie 2022 NUCA 3, the Court upheld the sentencing judge’sdecision to impose a sentence of two years less a day followed by probation on a 20-year-old offender. The Crown sought a sentence offour years following convictions on four counts of sexual interference on a young person under 16 years of age. The sentencing judgedeclined to order a penitentiary term on a young Inuk man with no prior criminal record, strong community support, and prospects forrehabilitation. X.

GLADUE AND IPEELEE CONSIDERATIONS [40] Parliament has signalled that sentencing judge ought to use a different method of analysis to determine a fit sentence for Aboriginaloffenders. That issue was canvassed in Gladue and also in a subsequent case, R. v. Ipeelee.

[ 41 ] In Gladue , the Supreme Court of Canada reviewed the over-representation of Aboriginal people in the Canadian criminal justice system and Parliament’s intent with respect to that

section of the Code at para. 64. [ 42 ] Subsequently, in Ipeelee , the Supreme Court of Canada reinforced and expanded upon the principles set out in Gladue . [ 43 ] In Ipeelee , the Court signalled that the Court could take judicial notice of systematic and background factors affecting Aboriginal people in Canadian society. [ 44 ] In Ipeelee at para. 59 , the Supreme Court of Canada made it clear that Gladue principles must be applied even to the most serious of offences. XI.

PENETENTIARY SENTENCES FOR INDIGENOUS OFFENDERS [ 45 ] I note that Parliament has addressed penitentiary sentences for Indigenous offenders in the Corrections and Conditional Release Act , SC 1992, c.20 . Sections 79.1 and 80 provide as follows: 79.1

(1) In making decisions under this Act affecting an Indigenous offender, the Service shall take the following into consideration: (

a) systemic and background factors affecting Indigenous peoples of Canada; (

b) systemic and background factors that have contributed to the overrepresentation of Indigenous persons in the criminal justice system and that may have contributed to the offender’s involvement in the criminal justice system; and (

c) the Indigenous culture and identity of the offender, including his or her family and adoption history. 80 Without limiting the generality of

section 76, the Service shall provide programs designed particularly to address the needs of Indigenous offenders. XII. CONCLUSION [ 46 ] Mr. Kownirk is now 41 years of age. He has never served a penitentiary term but has an extensive criminal record spanning over 20 years and as a result has been incarcerated numerous times. He has had the benefit of probation orders but has breached many such orders so releases back into the community have not had much impact on this offender. He has a prior conviction for sexual assault from 2003, although dated.

He has had many convictions for other offences including assaults, over this span. [ 47 ] These are certainly aggravating factors. [ 48 ] Denunciation and deterrence are paramount sentencing considerations given the sexual assault that occurred here. [ 49 ] There is no doubt that a penitentiary term is a harsh sentence for a resident of Nunavut because it involves being incarcerated outside of the territory and a great distance away from any family or community support. But given the nature of this sexual assault, Mr.

Kownirk’s extensive criminal record, and his poor history of probation compliance, a penitentiary term is warranted. A. Sentence on Count One

[ 50 ] I sentence you to four years in custody. After giving you credit for 19.5 months of pretrial custody that leaves 28.5 months (855 days) to serve. B. Sentence on Count Two [ 51 ] I sentence you to two months concurrent to the sentence on Count One. C. Ancillary Orders 1. There will be a no contact order with respect to the victim AK pursuant to Code s.743.21(1) . 2. I impose a mandatory DNA order pursuant to s. 487.051 of the Code . 3. His name will be registered pursuant to the Sexual Offenders Information Registration Act for 20 years. 4. There will be a firearms prohibition order for 10 years.

Dated at the City of Iqaluit this 12th day of July, 2022 ___________________ Justice G. Mulligan Nunavut Court of Justice