R. v. O.P., 2012 NUCJ 23

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. O.P., 2012 NUCJ 23 Date: 20121128 Docket: 09-12-18; 09-12-24; 09-12-25 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: O.P. ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): L. Lane Counsel (Accused): M. Kempt Location Heard: Iqaluit, Nunavut Date Heard: November 19, 2012; November 22, 2012 Matters: Criminal Code, s. 271 (x4); s. 7333.1 (x4); s. 348 (1) (a) (x2) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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 ] O.P. is before the Court for sentence on four indictable sexual offences, two break and enters of residences, and four indictable counts of breaching the terms of a probation order. He has pled guilty to these offences. II. THE FACTS [ 2 ] During the summer of 2008, O.P. sexually assaulted his sister AB who was then 14 years of age. The victim was asleep in her own bed and in her own bedroom.

O.P. took advantage of his sister’s vulnerability. He entered the bedroom at night and fondled the complainant’s breasts, genitals and buttocks over her clothes. He tried to remove the young victim’s pants. His intention was clear. He was naked from the waist down. The victim told him to stop. She said she would call the police. O.P. then left the bedroom. He was then approximately 22 years of age. [ 3 ] In the winter of 2008, O.P. attacked a second victim. CD was 35 years of age. It was broad daylight. CD was walking on a hill on the outskirts of Community X.O.P. approached on a skidoo.

He had been out hunting and was carrying a rifle. He demanded that CD remove her pants. CD feared for her life and did so.CD was then raped. O.P. kept the rifle strapped to his back while he engaged in sexual intercourse. [ 4 ] In May of 2012, O.P. again sexually assaulted his sister AB. AB was by this time 18 years of age. O.P. was 25. O.P. once again entered his sister’s bedroom at night while AB was sleeping. He was naked from the waist down. O.P. climbed on his sister’s bed and simulated sexual intercourse with his sister while lying on top of his victim and outside the blankets.

The incident only stopped when the victim threatened to involve the police. [ 5 ] O.P. was subject to a probation order for a related sexual offense when he committed this offense. This probation order required him to keep the peace. In committing this sexual assault, he has failed to keep the peace and has breached this probation order. [ 6 ] O.P. was formally charged by the authorities with the sexual assault of his sister in July 2012. He was released on an undertaking on July 3rd. Two weeks later, on July 17, 2012, O.P. broke into a single woman’s residence in the middle of the night.

O.P. entered the residence by climbing through a window. A ladder was used to gain access to this window. The victim heard some noise associated with O.P.’s entry, and rose from her bed to investigate. O.P. fled the residence by the same window used to gain entry. O.P. was bound by a probation order when he committed this offense. [ 7 ] On August 20th, O.P. kicked in the door of a vacant residence. The forced entry caused approximately $600.00 damage. Nothing was taken. O.P. was bound by a probation order when he committed this offense. [ 8 ] On August 29, 2012, O.P. attacked the victim CD once again.

CD was walking home at night from her boyfriend’s house. She was near the airport garage. There were no houses nearby. O.P. walked past CD going in the opposite direction. After passing CD, O.P. suddenly jumped her from behind and threw CD to the ground. He then jumped on top of CD pinning her. He attempted to remove her pants, but CD resisted. CD’s screams for help were unanswered. O.P. removed his penis from his pants. He told CD what he wanted. When CD did not cooperate, O.P. simulated sexual intercourse on top of CD’s clothing. O.P. indicated that he would not stop until he ejaculated.

O.P. ultimately engaged in masturbation and ejaculated on the ground. The incident then ended. [ 9 ] O.P. was subject to a probation order for a related sexual offense when he committed this offence. In doing so, he clearly breached the terms of this probation order. [ 10 ] O.P. was sober when he committed these various crimes.

A. O.P.’s antecedents [ 11 ] On January 17, 2008, O.P. pled guilty to a single count of sexual assault on a 15 year old female. This offense had occurred on April 14, 2007. O.P. had surreptitiously entered the victim’s bedroom at night and had fondled his victim’s genitals over her clothing. At the point of sentence, O.P. did not have a criminal record. He had entered an early guilty plea. The act appeared to be out of character. Notwithstanding the guilty plea and the absence of a record, this Judge imposed a sentence of 90 days of custody.

O.P. was permitted to serve this sentence of custody in the community under close house arrest. [ 12 ] On November 4, 2010, O.P. again appeared before this Judge. He pled guilty to a violent indictable sexual assault that had occurred between January 2005 and December 2006. O.P. had been approximately 18 when this offence was committed. O.P. and another young adult had entered a home to find a 12 year old female alone. She was forced to take off her clothes. O.P. then raped his cousin.

The young victim was threatened with violence if she disclosed what happened to others. [ 13 ] The Court was presented with a joint submission on sentence. O.P. was sentenced to a gaol term of two years less a day. This represented the longest sentence of custody that could be served in a territorial, as opposed to federal facility. The 2005 offence preceded, in time, the commission of the offence for which the offender had been sentenced in 2007.

It marked this offender’s first entry into the criminal justice system. [ 14 ] In addition to the sentence of custody, this Judge ordered O.P. to be bound by a term of 18 months of probation to follow O.P.’s release. With a history of two sexual offences involving adolescent females, and a substantial escalation in the severity of the sexual offending, the Court was concerned about this offender’s apparent lack of impulse control and potential risk for reoffending.

The Court ordered that the offender undergo a sex offender risk assessment within 90 days of his release from his sentence of imprisonment to determine the level of risk that he presented to the community. The Court ordered that O.P. take, and successfully complete, any sex offender counselling or treatment set for him by the GN Corrections Division. [ 15 ] O.P. received treatment for his sexual offending while in custody at the Baffin Correctional Institution. There was a sex offender risk assessment done by the Government of Nunavut Corrections division at the conclusion of this treatment regime.

This post-treatment assessment entitled a “SVR-20 Coding Sheet” determined that there was no evidence that the offending behavior caused physical harm to the victims and no apparent escalation in the severity or frequency of OP’s sexual offending. The conclusion reached by the assessor was that O.P. presented as being at low risk of committing further acts of sexual violence. [ 16 ] Following O.P.’s release from custody, there was no referral to a dedicated sex offender treatment program in Nunavut or elsewhere for follow-up.

There was no sex offender counselling or therapy provided to O.P. in O.P.’s home community or elsewhere as required by the terms of the probation order. O.P. has claimed, through counsel, that he has always been ready to take advantage of sex offender treatment following his release, but this was never made available to him. [ 17 ] After serving his sentence of custody, O.P. was released to his home community. Community Corrections did not have a dedicated probation officer in community X.

Community Corrections was forced to rely on a community social worker for supervision of citizens serving community based sentences. After consulting with her supervisor, the local social worker/probation officer decided to refer O.P. to a local community mental health worker for counselling. The Court has been told that the decision to not provide further sex offender counseling or treatment was made for reasons related to “a lack of resources”.

It is not clear whether the problem was related to inadequate financial resources, human resources, or both. [ 18 ] In Nunavut, much is expected of local community health workers. The mental health worker does much good work on a wide range of issues involving general counselling. It is unrealistic to expect a mental health worker to have the expertise or specialized training necessary to properly assess and treat a sex offender. This is a highly specialized field that straddles the domains of forensic psychiatry and psychology. [ 19 ] The Community Corrections

section did not initiate a review of the Court’s probation order to address any concerns about its ability to carry out the Court’s order. The probation officer is an officer of the Court. The probation officer has a legal duty to carry out the Court’s orders. If the Community Corrections

section experiences difficulty complying with the directions of the Court, it is legally obligated to bring the matter back to the Court’s attention by way of a probation review. This was not done.

B. The Nunavut Territory and sexual offences [ 20 ] The Nunavut Territory has one of the highest per capita rates of sexual offences in Canada. Referenced below is a graph from Statistics Canada depicting the per capita rates for this offense by province and Territory in 2010. Rate of Sexual Assault 1-3 (2010) [ 21 ] The Community Corrections

section has no dedicated treatment program for sex offenders. In the absence of any structured residential treatment program and the trained professionals needed to run it, the rate of reoffending by untreated sexual offenders will continue to increase. [ 22 ] If the Division of Corrections does not allocate sufficient human and financial resources to provide for the assessment and treatment of sex offenders, then even more public funds will have to be found to finance the larger correctional institutions necessary to protect the public from the growing numbers of untreated sex offenders.

The Court will not hesitate to use gaol where necessary to protect the public from harm. III. ANALYSIS [ 23 ] Community Correction’s failure to carry out the Court’s probation order in this case does not absolve O.P. of responsibility for committing these crimes. During the sentencing hearing of November 2010, this Judge took great pains to outline how sexual offences impact their victims. Having received this lecture from the Court on the last occasion, the Court is not inclined to repeat itself.

O.P. cannot claim to be unaware of how his actions are affecting others. [ 24 ] O.P. continues to offend, and he does so when he is sober. The Court infers from both the pattern of the offences and the circumstances under which they have been committed that this offender has no impulse control. The Court infers that O.P.’s potential for reoffending is high. [ 25 ] The number of crimes and their seriousness demand a deterrent sentence. O.P. has now graduated to a penitentiary term.

This sentence has been well earned by O.P.’s persistent and predatory sexual offending. [ 26 ] The Court takes into account the mitigating effect of both the guilty pleas and the period of pre-trial detention in arriving at the form and duration of the sentence that follows. O.P. has served three months of pre-trial detention. He will receive credit for this time at a rate of one for one. [ 27 ] The Court is required, by law, to consider O.P.’s disadvantaged life circumstances growing up as an aboriginal youth in a remote and isolated arctic community. It has done so.

The Court has also taken into consideration the totality principle of sentencing when arriving at the total duration of the sentence of custody to be imposed on these many charges. [ 28 ] Deterrence, denunciation, and protection of the public must be the Court’s foremost considerations on the sentence to be imposed on this offender for these offences. Without the mitigating effect of the guilty pleas, the sentence today would have been longer.

Rehabilitation is not unimportant, but the seriousness, number, and circumstances of these offences demand that rehabilitation now take a back seat to other sentencing considerations. [ 29 ] The Court has once again been presented with a joint submission on sentence. This joint submission was the product of plea negotiations that resulted in guilty pleas being entered. The joint submission limits the Court in its exercise of discretion on sentence.

Appellate jurisprudence provides that the Court can only depart from the terms of a joint submission in circumstances where the proposed sentence brings the administration of justice into disrepute. A survey of Canadian jurisprudence for sentences involving multiple sexual assaults suggests that while the proposed sentence in this case is low, it is not so low as to permit the Court to interfere with the terms of this negotiated settlement.

[ 30 ] The end result should not be considered as setting a sentencing precedent. The end result does not reflect the free exercise of the Court’s discretion on the sentence to be imposed in this case. IV. CONCLUSION A.

The sentence [ 31 ] With respect to Court file #09-12-18 Count 1 – the sexual assault on AB from the summer of 2008, there will be a sentence of custody of 6 months. [ 32 ] With respect to court file #09-12-24 Count 3 – the sexual assault on CD from the winter of 2008, there will be a sentence of 36 months (consecutive to any other sentence of custody to be served). [ 33 ] With respect to Court file #09-12-18 Count 2 – the sexual assault on AB from May of 2012, there will be a sentence of 9 months consecutive to any other sentence of custody.

For breaching the probation order on a related charge of sexual assault, there will be a sentence of 9 months custody concurrent to all other sentences. [ 34 ] With respect to Court file #09-12-24 Count 1 – the sexual assault on CD on August 29, 2012, there will be a sentence of custody of 12 months consecutive to any other sentence of custody with a further 12 months of custody concurrent imposed for the breach of the probation order made on a related charge of sexual assault. [ 35 ] With respect to Court file#09-12-25 Count 3 – break in to house 207A from July 17, 2012, there will be a sentence of 30 days custody to be served concurrently with the other sentences of custody.

For the accompanying breach of probation Count 3 – there will be a concurrent sentence of 30 days custody. For Count 2 – the break and enter of house 209B on the 20th August 2012, there will be a concurrent sentence of 15 days and for count 4, and for the accompanying breach of probation, there will be a concurrent sentence of custody of 15 days. [ 36 ] In the end result, O.P. is sentenced to a total term of imprisonment of 63 months in a federal penitentiary. These 63 months of custody is in addition to the three months of pre-trial detention.

This is the legal equivalent of a sentence of five and a half years of custody. B. Consecutive vs. concurrent sentences of custody [ 37 ] Breaches of probation should ordinarily attract a separate consequence. Concurrent sentences for breaches amount to no additional punishment at all, and dilute the deterrent effect of the sentencing process for what amounts to a contempt of a court order.

If the probation order is to have any meaning for citizens serving a community based sentence, the probation order should ordinarily be enforced by a separate palpable consequence for those deliberately breaching its terms. [ 38 ] The Court was constrained by the joint submission in this case to limit the total sentence to 63 months. It did not want to minimize the seriousness of the sexual offences by having to give consecutive sentences for the accompanying breaches of probation.

To do so would have resulted in lower sentences for the sexual offences if the Court was to stay within the 63 month sentence proposed by counsel. [ 39 ] The same can be said for the separate break and enter charges and their accompanying breaches of probation. C. Ancillary orders consequent upon conviction

[ 40 ] The Court orders O.P. to provide a DNA sample for entry into the national data bank. The sexual assaults are primary designated offences. The provision of DNA is mandatory upon conviction for the indictable sexual offences. [ 41 ] There will be a firearms prohibition order. It is mandatory in relation to the indictable sexual offences. This order will be for 20 years. The offender was armed with a rifle when he committed one of the sexual assaults. There will also be a lifetime prohibition of O.P. possessing any restricted firearm or cross-bow.

Any firearms, ammunition or explosives, restricted firearms or cross-bows, must be immediately surrendered to the RCMP together with any firearms licenses and Firearms Acquisition Certificate. Any such items are ordered forfeited to the Attorney General. [ 42 ] There will be an order under s.743.21 of the Criminal Code prohibiting any contact by O.P. with AB or CD while serving this sentence of custody.

The Court understands that O.P. was banished by the family from the family home some time ago as a result of his repeated victimization of his younger sister. [ 43 ] There will be an order compelling O.P. to comply with the registration and reporting provisions of the national sex offender registry. This order will be for life.

O.P. is already subject to a 20 year order as a consequence of his 2010 conviction. [ 44 ] The Court directs the Clerk of the Court to endorse the warrant of committal with the Court’s recommendation that O.P. be placed at an institution having specialized treatment resources for sex offenders. These resources do not appear to be available to offenders in Nunavut. [ 45 ] The Court orders O.P. to be bound by an order under

section 161of the Criminal Code . This order will be for 20 years. O.P. is hereby prohibited from seeking, obtaining, or continuing with any employment, whether or not that employment is remunerated, or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years. O.P.is further prohibited from using any computer system within the meaning of

section 342.1(2) of the Criminal Code for the purpose of communicating with a person under the age of 16 years. Finally, O.P. is prohibited from attending a public park, playground, or daycare where persons under the age of 16 years can reasonably be expected to be present except when he is in the immediate presence of a sober adult. Dated at the City of Iqaluit this 28th day of November, 2012 ___________________ Justice R. Kilpatrick Nunavut Court of Justice Appendix A