R. v. Guimond, 2023 NUCJ 14

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Guimond, 2023 NUCJ 14 Date: 20230508 Docket: 08-21-497 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Maurice Guimond __________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): Counsel (Accused): A. Li E. Warren Location Heard: Date Heard: Iqaluit, Nunavut May 8, 2023 Matters: Sentencing decision in regards to charges under Criminal Code of Canada, RSC 1985, c C-46, ss. 151 REASONS FOR DECISION (Delivered Orally) (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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. INTRODUCTION [ 1 ] The police charged Maurice Guimond with sexual assault, sexual interference, and indecent exposure. [1] The relevant incident happened in Iqaluit on October 9, 2021 (October 9). The Crown elected to proceed summarily. Mr. Guimond entered a not guilty plea and the Court scheduled his trial to be held on December 19, 2022. I presided over the trial on December 19 and 20.

The Crown called the 10-year-old complainant and her mother as witnesses. I note the 10-year-old victim – who appeared via closed circuit television - had a great deal of difficulty testifying about what happened. Mr. Guimond elected to testify, and he denied the allegation. I reserved my

decision, and I convicted Mr. Guimond in January of sexual interference. [2] These are my reasons for sentence. II. THE FACTS [ 2 ] I first outline the facts of the case. [ 3 ] The victim, who was 9-years-old at the time, her mother, and her maternal aunt went to Mr. Guimond’s house on October 9 to visit Mr. Guimond’s common-law partner. They all spent most of the evening in Mr. Guimond’s room. At some point late in the evening, the victim’s mother and her sister went to the kitchen to get some food. When they left the room, the victim was lying on a mattress on the floor asleep. Mr.

Guimond was in the bathroom and his common-law partner was on a queen bed in the same room. Mr. Guimond was sober. [ 4 ] Mr. Guimond went back into the room and positioned himself beside the victim and touched her breasts. He exposed his penis and masturbated while touching his sleeping victim. Mr. Guimond became excited and breathed heavily. The complainant woke up, felt Mr. Guimond touching her breasts, saw his exposed penis, and heard and saw him masturbating. They were very close to each other and the room was lit, albeit dimly. The victim heard Mr.

Guimond say, “I thought you were my babe” or “I thought you were my baby.” The victim got up immediately. She heard Mr. Guimond’s common-law ask her if she was ok and Mr. Guimond “what are you doing?” She heard Mr. Guimond reply that he would never do anything to her and said “right?” to the victim. The victim fled the room to find her mother. She was too scared to describe immediately what had happened; but she told her mother what happened in answer to her mother’s questions. She and her mother left shortly afterward and returned to where they were staying. III. SENTENCING RECOMMENDATIONS BY THE PARTIES A.

The Crown [ 5 ] The Prosecutor recommends that I impose a 12-month jail term followed by probation. B. Victim Impact Statement [ 6 ] 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. [3] The Prosecutor did not tender a Victim Impact Statement, but she noted that the victim had drawn a picture of a girl crying to describe how she felt. C. The Defence [ 7 ] Defence Counsel submitted that Mr. Guimond, having spent 102 days on remand since his conviction, ought to be sentenced to time-served followed by probation. IV.

THE PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING

[ 8 ] I turn now to the purpose, objectives, and principles of sentencing. [ 9 ] 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 [ 10 ] The purpose and objectives of sentencing are found in Criminal Code

section 718 . [ 11 ] 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. [ 12 ] In Mr. Guimond’s case, the sentence I impose must work to achieve several objectives: 1. to condemn his conduct and the harm he inflicted on his victim; 2. to deter him and others from committing crimes; 3. to encourage his rehabilitation; and 4. 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 primacy in this case of denunciation and deterrence [ 13 ] In 2005 and 2019, Parliament added two further sentencing objectives which are directly relevant to this case. Parliament amended the Criminal Code to require judges to give primary emphasis to denunciation and deterrence where the victim is under 18-years-old, [4] and where the victim is Indigenous. [5] Mr. Guimond’s victim was a 9-year-old Inuk girl. C. Rehabilitation [ 14 ] The sentence I impose must also attempt to contribute to Mr. Guimond’s reformation and rehabilitation. D. The principles of sentencing

[ 15 ] Proportionality is the fundamental principle of sentencing. In other words, the sentence I impose must fit the circumstances of the offence and the offender. [6] [ 16 ] Mr. Guimond bears a high moral culpability for his heinous crime and the sentence must reflect that fact. E. The parity principle [ 17 ] The parity principle requires that similar offenders should be sentenced similarly for similar crimes. [7] F.

Aggravating and mitigating factors [ 18 ] Sentences must account for the presence of relevant aggravating and mitigating factors. [8] Aggravating factors work to increase the sentence while mitigating factors to lessen the sentence. G. Aggravating factors [ 19 ] There are several aggravating factors in this case: • Mr. Guimond abused his position of trust towards his victim who was a guest in his home; • Mr. Guimond’s victim was a young child; [9] • Mr. Guimond sexually interfered his victim while she was asleep; • Mr. Guimond masturbated in plain sight of the victim; • Mr.

Guimond’s sexual interference of his 9-year-old victim was a profound violation of her psychological and sexual integrity; [10] • Mr. Guimond’s actions were predatory; • Mr. Guimond’s actions were premeditated. H. Mitigating factors [ 20 ] There are no mitigating factors. I. Restraint

[ 21 ] I must also bear in mind that the sentencing judge must always exercise restraint. [11] J. The prevalence of gendered sexual violence in Nunavut [ 22 ] The Supreme Court of Canada has ruled that the frequency or prevalence of crime in a community is a relevant consideration at sentencing. [12] This is relevant in Nunavut where gendered sexual violence occurs in epidemic proportions. [ 23 ] As I stated recently in another case: [13] 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.” [14] 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. [ 24 ] Pauktuutit has spoken again about this issue recently 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. [15] [ 25 ] In R v Livingstone , this Court 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). [16] [ 26 ] Thus, one of the many factors I consider and balance is the prevalence of gendered sexual violence in Nunavut. K.

R v Friesen [ 27 ] The Supreme Court of Canada released in 2020 a landmark judgment pertaining to child sexual abuse in R v Friesen ( Friesen ). [17] In Friesen , the unanimous court declared that: “the protection of children is one of the most fundamental values of Canadian society.” [18] (The sexual abuse of children is also a profound violation of the principles of Inuit Qaujimajatuqangit.) [ 28 ] Friesen merits close study in the context of Mr. Guimond’s case. [ 29 ] The court highlighted that “sexual violence also has a disproportionate impact on girls and young women,” noting:

In 2012, 81% of child and youth victims of police-reported sexual offences were female and 97% of persons accused of such offences were male ( Police-reported sexual offences against children and youth in Canada, 2012 , at pp. 10 and 14). [19] [ 30 ] This shameful reality is even more pronounced in socio-economically disadvantaged Indigenous communities: Children who belong to groups that are marginalized are at a heightened risk of sexual violence that can perpetuate the disadvantage they already face.

This is particularly true of Indigenous people, who experience childhood sexual violence at a disproportionate level (Statistics Canada, Victimization of Aboriginal people in Canada, 2014 (2016), at p. 10). [20] [ 31 ] At paragraphs 75 and 114, the court emphasised that the proportionality analysis in these cases must account for both the gravity of theses offenses as well as the high degree of moral responsibility borne by offenders.

The court continued: “We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim.” [21] [ 32 ] The Supreme Court of Canada in Friesen was unequivocal. We are determined to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points:

(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and,

(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child. [ 33 ] The Court continued: Implicit in these [pre- Friesen ] decisions is the belief that conduct that is unfortunately referred to as “fondling” or [translation] “caressing” is inherently less harmful than other forms of sexual violence (see Hood , at para. 150; Caron Barrette , at para. 93). This is a myth that must be rejected. [22] V. THE JURISPRUDENCE [ 34 ] There are several reported decisions in Nunavut which are similar, in part, to the fact situation in Mr.

Guimond’s case. [ 35 ] In R v TQ , a 31-year-old Inuk male pleaded guilty to having touched the breasts of his 14-year-old niece. She resisted his move to touch her genital area. The court imposed a 90-day jail term. This case predates Friesen and is no longer a persuasive precedent. [ 36 ] In R v GH , a 42-year-old Inuk male and first time offender pleaded guilty to having touched a 13-year-old girl over her clothing while she slept.

Although the Prosecutor recommended a six-month jail term, the court imposed a four-month jail term noting the “very positive PSR” and “comprehensive and supportive Gladue report.” [23] [ 37 ] In R v CD , a 65-year-old Inuk male and first time offender pleaded guilty to having touched his 14-year-old granddaughter on her

genitals while she slept. A second incident involved the offender touching the same victim’s genitals in a car. The Prosecutor recommended that the Court impose the nine-month jail term which had been arrived at by one of his colleagues. However, the Prosecutor acknowledged that the Crown recommendation was “at the absolute floor of the appropriate range of sentences here.” [24] In imposing the nine-month jail term, I noted “this case will be of little value as a precedent.” [25] [ 38 ] In R v DF , the 28-year-old male Inuk offender pleaded guilty to having touched the bum of his girlfriend’s 9-year-old daughter.

The offender had what was called a minor criminal record. The court imposed the 90-day mandatory minimum jail term which had been recommended by the Prosecutor. Again, post- Friesen , this case holds little value as a precedent. [26] [ 39 ] These cases are distinguishable from Mr. Guimond’s case in two significant ways. First, the previous offenders benefitted from having pleaded guilty. Second, Mr. Guimond masturbated in plain sight of his 9-year-old victim adding to his victim’s distress. The sentence I impose, therefore, must be significantly higher than the cases I have just cited. VI.

THE OFFENDER [ 40 ] I turn to Mr. Guimond’s personal circumstances as noted by his counsel and the Pre-Sentence Report. [27] [ 41 ] Mr. Guimond is a 61-years-old Mi’kmaq male born in New Brunswick. He did not attend a residential school, but he thinks his maternal grandparents may have done so. He is one of seven siblings. He lived with his alcoholic mother after his parents divorced when he was 12-years-old. His mother’s alcoholism had a destabilising impact on his family.

He has three children from a previous relationship; a son in Iqaluit, a daughter in Ontario, and another daughter who died in a murder/suicide. Mr. Guimond is presently in a common-law relationship, and he resides in the house of his partner’s parents. [ 42 ] Mr. Guimond moved to Iqaluit in 1990. He is a high school graduate and has completed some post secondary education. His last employment was with Qulliq Energy Corporation (QEC) where he worked for 15 years. Mr.

Guimond told the Court during his trial that QEC terminated his employment when he contracted “C” difficile, a gastrointestinal disease which put him into hospital. He has remained unemployed since 2022. [ 43 ] Mr. Guimond describes himself as an alcoholic for which he had counselling in the past. He has arthritis. A. Criminal record [ 44 ] Mr. Guimond has eight prior criminal convictions including three for assault which he amassed between 1990 and 2008. This will be Mr. Guimond’s first jail term. B. R. v. Gladue [28] and R. v. Ipeelee [29] [ 45 ] Mr. Guimond is Mi’kmaq so I must consider and apply Criminal Code

section 718.2 (

e) which reads: 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.

[ 46 ] In this context, I must account for the effects of historic and systemic colonialism and intergenerational trauma experienced by Inuit. These are the so-called Gladue factors articulated by the Supreme Court of Canada in R. v. Gladue and later reinforced in R. v. Ipeelee . I have already referred to the Gladue factors which Defence Counsel has placed before the Court. VII. APPLICATION OF THE PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING TO MR. GUIMOND [ 47 ] The sentence I impose on Mr. Guimond must express our community’s revulsion towards sexual abuse against children.

The sentence “must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence.” Taking the harmfulness of these offences into account ensures that the sentence fully reflects the “life-altering consequences” that can and often do flow from the sexual violence against children. [30] [ 48 ] The imposition of a jail term is always a punishment of last resort. But Mr. Guimond sexually interfered with a vulnerable 9-year- old Inuk girl. This Court must follow the direction and guidance of Parliament and the Supreme Court of Canada in Friesen .

The sentence I impose must emphasise deterrence and denunciation, and the sentence must do so in a meaningful and unequivocal way. The sentence must reflect the reality that sexual violence against Inuit girls and women in Nunavut is indeed “a problem of massive proportions.” [ 49 ] However, the sentence must not be so crushing as to discourage Mr. Guimond’s prospects for reformation and rehabilitation. VIII. SENTENCE A.

A Territorial jail term [ 50 ] Although it is at the bottom end of the sentencing range in the circumstances of this case for a conviction imposed after trial, I accept the Crown’s sentence recommendation. It is just adequate to meet the circumstances in the case of this particular 61-year-old Mi’kmaq offender. That said, I would have imposed a higher sentence and, thus, this case must be approached with caution if cited as a precedent. [ 51 ] I sentence Mr. Guimond to 12 months (360) days in jail. [ 52 ] Mr.

Guimond has spent 102 days in jail on remand, so following Nunavut practice, I give him remand credit at the rate of one and a half days to one for a total credit of 153 days. Mr. Guimond has another 207 days to serve on his jail term. B. Probation [ 53 ] I place Mr. Guimond on probation for 12 months with the following conditions. He shall: 1. keep the peace and be of good behaviour; 2. notify the Court in advance of any change to his address, employment status, or name; 3. report to the probation service within two business days of his release from jail and thereafter as directed;

4. have no contact or communication directly or indirectly with his victim or her mother; and 5. take any counselling directed by his probation officer including healthy sexual relationships. C. Victim Fine Surcharge [ 54 ] Mr. Guimond is unemployed. I waive the victim fine surcharge. D. Ancillary orders [ 55 ] I impose the following ancillary, or related, orders: i. DNA [ 56 ] Sexual interference is a primary designated offence for the purpose of forensic DNA analysis. [31] I order Mr. Guimond to provide a sample of his bodily substances to the authorities pursuant to Criminal Code

section 487.051(1) . ii. SOIRA [ 57 ] Sexual interference is also a primary designated offence for the purposes of the national Sex Offender Registry. [32] I order that Mr. Guimond be subject to the Sex Offender Information Registration Act for ten years. [33] iii. Non-communication order [ 58 ] Pursuant to Criminal Code

section 743.21 , Mr. Guimond may not have communication with the victim or her mother either directly or indirectly while he is in jail. iv. Prohibition order [ 59 ] Mr. Guimond shall not attend any public space where persons under the age of 16-years are reasonably expected to be present, nor may he seek employment or volunteer with any organisation where he would be in a position of authority or trust over persons under 16- years-of-age, pursuant to Criminal Code section 161(1) (

a) and (b). The order shall be for a period of 10 years. Dated at the City of Iqaluit this 8th day of May, 2023 ___________________ Justice P. Bychok

Nunavut Court of Justice