R. v. Kolola, 2020 NUCJ 38

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kolola, 2020 NUCJ 38 Date: 20201117 Docket: 09-19-12 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Karpik Kolola ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): G. Bourke Counsel (Accused): E. Tache-Green Location Heard: Iqaluit, Nunavut Date Heard: September 21, 2020 Matters: Sentencing for offence under Criminal Code of Canada, RSC 1985, c C-46, ss. 271 ; sentencing principles during COVID-19. 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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. Contents I. INTRODUCTION .. 4 II. BACKGROUND .. 4 III. THE FACTS .. 4 IV. SEXUAL ASSAULT . 5 A. Indictable sexual assault 5 V. THE PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING .. 6 A.

The purpose and objectives of sentencing . 6 B. The principles of sentencing . 7 C. Aggravating factors . 7 D. Mitigating factors . 8 VI. THE POSITIONS OF THE PARTIES .. 9 A. The Crown .. 9 B. The Defence . 10 VII. THE OFFENDER .. 11 A. Mr. Kolola’s criminal record . 12 VIII. ANALYSIS .. 13 A. The current pandemic is not an appropriate consideration in sentencing . 13

B. Sentencing in cases of sexual violence against women and girls . 16 C. The proportionality principle must be reconsidered in cases of domestic and sexual violence 17 IX. SENTENCE .. 21 A. A federal penitentiary term .. 21 B. Ancillary orders . 22 I. INTRODUCTION [ 1 ] This is another case about an offender’s sexual assault of a sleeping female victim. II.

BACKGROUND [ 2 ] On March 10, 2019, the police charged the offender, Karpik Kolola, with the indictable sexual assault [1] of X, being in X’s house without lawful excuse, [2] and breach of his bail order to keep the peace and be of good behaviour. [3] The incident had happened earlier that day in Kimmirut. [ 3 ] Mr. Kolola elected to be tried by a judge sitting alone and a preliminary inquiry was held on September 10, 2019. Mr. Kolola was committed to stand trial. Mr. Kolola pleaded guilty to the sexual assault on March 16, 2020, and the Crown discontinued its prosecution of the other two charges.

The Court ordered the preparation of a pre-sentence report which was filed on June 11, 2020. [ 4 ] On September 21, 2020 I heard sentencing submissions from counsel, and I reserved my decision on sentence until today, November 17. These are my reasons pertaining to sentence. III. THE FACTS [ 5 ] The evening before the assault, the victim called Mr. Karpik to ask if he had any alcohol for sale. He did. The victim’s aunt went to Mr. Karpik’s home, purchased the alcohol, and delivered it to the victim. The victim had a few drinks, then left her home around 10:00 pm to go visit a friend.

She drank until 4:00 am and partied with her friends until about 5:00 or 6:00 am. [ 6 ] Crown Counsel explained that the victim sent a text to Mr. Kolola at 5:55 am asking him if he wanted to go to Jay’s, and then she texted NVM – or never mind. Mr. Kolola texted the victim back saying that Jay was going to sleep. Mr. Kolola then texted the victim saying “you wanna drink more” and “yup”.

Defence Counsel stated “I have nothing to add to that … I have no insight into the messages”. [4] The victim was fully clothed when she went to bed in one of the upstairs bedrooms. [ 7 ] Around 7:15 am, the victim woke up to find Mr. Karpik on top of her with his penis inside her vagina. Both she and he were naked. The victim shoved Mr. Karpik off her, he got dressed and left, and she called the police immediately. The victim does not know whether Mr. Karpik wore a condom or if he ejaculated inside her. Mr.

Kolola had never been inside the victim’s home before. [ 8 ] After the preliminary inquiry was held, the Crown requested forensic testing of various exhibits seized by the police in their

investigation. The RCMP Forensic Science and Identification Unit identified the presence of male genetic material in the vaginal swab taken from the victim. [5] This information in turn was forwarded to the National DNA Data Bank of known offenders which identified Mr. Kolola as the source of that male genetic material. [6] IV. SEXUAL ASSAULT [ 9 ] I turn now to the law applicable in this case. A.

Indictable sexual assault [ 10 ] A person commits a sexual assault when they touch a person without their consent in a manner which violates the victim’s sexual integrity. [7] The maximum punishment for the indictable sexual assault of a person over the age of 16 years is a 10-year penitentiary term. There is no minimum punishment. [8] V. THE PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING A.

The purpose and objectives of sentencing [ 11 ] Parliament set of the purpose and objectives of sentencing in the following terms: 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. [9] [ 12 ] In 2019, Parliament added a further sentencing objective in

section 718.04, which is relevant to this case: 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 . [10]

B. The principles of sentencing [ 13 ] I now turn to the principles of sentencing which Parliament has told judges it is their duty to apply. The fundamental principle of sentencing is proportionality. In other words, the sentence I impose must fit the offender and the crime. [11] The sentence I impose must also account for the presence of aggravating and mitigating circumstances. [12] Aggravating factors work to increase the sentence.

Mitigating factors work to lessen the sentence. [ 14 ] In this case of sexual violence, Parliament has decreed the following factor to be aggravating: 718.2 … (a) … … (iii.1) evidence that the offence had a significant impact on the victim, considering their age and personal circumstances, including their health and financial situation. [13] C. Aggravating factors [ 15 ] There are numerous aggravating factors in this case: 1. Mr. Kolola has a serious criminal record, including convictions for serious intimate partner violence; 2.

Parliament has directed that I account for X’s vulnerability as an Indigenous woman; 3. Mr. Kolola’s sexual assault was predatory and premeditated, even if he does not remember it today. He walked for 15 to 20 minutes through the snow in the dark hours of an early March morning and sought out his victim on the second floor of her home in order to perpetrate the sexual assault; 4. Mr. Kolola sexually assaulted X while she was asleep; 5. Mr. Kolola sexually assaulted X while she was in her own home; 6. Mr. Kolola had no right to be inside X’s home; 7. Mr.

Kolola exposed X to significant emotional harm, [14] the possibility of sexually transmitted disease, and pregnancy; 8. Mr. Kolola breached his bail order which required him to keep the peace and be of good behaviour; and 9. Mr. Kolola drank alcohol to the point of extreme intoxication knowing that previously he had assaulted an intimate partner in that condition. [15] D. Mitigating factors [ 16 ] There are three mitigating factors in this case: 1. Mr. Kolola pleaded guilty, albeit only after the preliminary inquiry, thereby taking responsibility for his actions; 2. Mr. Kolola has expressed remorse; and 3. Mr.

Kolola has taken positive steps towards his rehabilitation.

[ 17 ] I must also apply the following principles: • The parity principle, which holds that similar offenders ought to receive similar sentences for similar crimes committed in similar circumstances; • The principle of judicial restraint, which directs that the sentence I impose not be unduly harsh or long; [16] and • The totality principle, which says I must impose the least restrictive sanction which is appropriate in all the circumstances. [17] [ 18 ] I must also apply the following principle which pertains to Mr. Aklok and all Inuit offenders. I am obliged to consider 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. [18] [ 19 ] In this context, I must account for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit.

These are the Gladue factors articulated by the Supreme Court of Canada in R v Gladue and later reinforced in R v Ipeelee . [19] [ 20 ] In Canada, a sentencing judge is required to conduct an individualised sentencing hearing. Every offender, and every case, is unique. Ranges of sentences [20] are valuable to help the sentencing judge satisfy the parity principle; but no two cases are identical, and they must be reconsidered as the law and society’s understanding of the issue change. VI. THE POSITIONS OF THE PARTIES [ 21 ] I will now briefly summarise the positions of the parties. A.

The Crown [ 22 ] The Crown urged the Court to impose a 30-month penitentiary term and various ancillary, or related, orders. [ 23 ] The Crown highlighted various aggravating factors including Mr. Kolola’s criminal record which she said demonstrated “a pattern of violence against women”. She characterised the offence as “predatory” in that Mr. Kolola assaulted the victim while she was in her own home and bed. The assault exposed X to the risk of pregnancy and sexually transmitted disease. It was, she continued, “one of the most serious violations of bodily integrity”.

The Court should infer long-term harm to the victim. [21] [ 24 ] The Crown noted several mitigating features including Mr. Kolola’s guilty plea, the positive pre-sentence report, and Gladue factors. [ 25 ] The Crown submitted that I give primacy to denunciation and deterrence. I should also consider the frequency of violence against sleeping and unconscious women in Nunavut. B. The Defence

[ 26 ] Defence Counsel urged the Court to impose an 18-month territorial jail term followed by probation for 12 to 18 months. [ 27 ] Defence Counsel encouraged the Court to give credit for Mr. Kolola’s guilty plea even though he waited until after the preliminary inquiry. She said that Mr. Kolola instructed her to enter his guilty plea as soon as he learned about the forensic DNA results. [ 28 ] Defence Counsel told the Court that Mr.

Kolola “really and truly has no memory” of the incident. [22] She acknowledged the presence of various aggravating factors, though she noted that “there’s no violence over and above the violence inherent in the act itself”. There were also “very serious triable issues” which may have led “a reasonable doubt about the issue of consent”, even though Mr. Kolola has no memory. [23] Mr. Kolola has “expressed remorse and accepted responsibility”. [24] He has stopped drinking alcohol, and he has not been in trouble with the law during the 18 months since the charge was laid.

He is currently employed and has a young family. [ 29 ] Defence Counsel submitted that the sentence must be proportional and reflect denunciation and deterrence, but … Mr. Kolola is being sentenced today for who he is today for what he did on March 10th, 2019. He is not being sentenced for his past errors nor is the younger, perhaps more directionless man that he once was … He is now in his mid-30s, a family man for the first time, and also for the first time fully employed.

He is sober now, and as he was back to 2007 and up until 2010, but unlike then, he’s also mature now and hopefully mature enough to stick with his sobriety this time. [25] [ 30 ] Defence Counsel referred the Court to Gladue factors which I will discuss in the next section. Defence Counsel also submitted that Mr. Kolola will experience custody “more harshly” due to COVID-19 and that this fact “should be an important part of the sentencing equation”. [26] VII. THE OFFENDER [ 31 ] I will now say a few words about Mr. Kolola. [ 32 ] Mr. Kolola is a 34-year-old Inuk from Kimmirut.

He was raised without a father figure by his adoptive mother, who is a respected elder. He had a “happy childhood”. Mr. Kolola’s mother and brothers taught him traditional land-based knowledge and skills. However, his brothers also exposed him to alcohol around when he turned 14. He dropped out of school then and “spent his teenage years drinking”. [27] [ 33 ] Mr. Kolola was first convicted of a criminal offence when he was 21. He was so intoxicated that he does not remember the circumstances of that offence.

He was able to stay sober for a few years “but everyone in his life” were drinking so he relapsed. [28] Kimmirut “is a pretty hard place to stay sober”. [29] [ 34 ] In 2012, Mr. Kolola entered a serious relationship. Sadly, Mr. Kolola “would lose his temper when he was intoxicated”, and this led to violence and criminal convictions. This intimate partner relationship did not survive his conviction for aggravated assault in 2015. [ 35 ] Defence Counsel noted the positive comments in the pre-sentence report. Mr.

Kolola has been with his current intimate partner since June 2018 and he describes their relationship as “loving and supportive”. His partner describes their relationship as having “ups and downs but that is making them both stronger”. [30] [ 36 ] Mr. Kolola’s mother died a few months before the incident and Mr. Kolola started drinking again. He has no memory of what happened on March 10, 2019. [ 37 ] Defence Counsel then referred the Court to further facts to add to the context of this offence. As these facts provide significant

context to what happened, and to the appropriate sentence, I repeat her comments here: Just sort of in order to understand a little bit about what was sort of the context of this, Mr. Kolola’s house is a 15 to 20 minute walk away from the complainant’s house. It was March so there would have been a lot of snow. His vehicle was broken, so to have gone that distance, he would have had to have walked it. He had never been inside the complainant’s house before.

He didn’t have any romantic interest in the complainant and definitely considered her to be more of an acquaintance than a friend. [31] [ 38 ] Defence Counsel then told me that Mr. Kolola dropped out of school in grade 9. He completed a three-month pre-trades course at Nunavut Arctic College in Kimmirut. He obtained his first job in the wage economy in August 2018 working in maintenance for the Hamlet of Kimmirut. He currently works full-time as a water truck driver in Pangnirtung where he considers an older man to be a mentor.

He wants to make Pangnirtung his home. [32] [ 39 ] I have taken these personal circumstances and Gladue factors into account. A. Mr. Kolola’s criminal record [ 40 ] Criminal records play a significant role in sentencing. Common sense dictates that a first-time offender who commits a less serious offence will be treated more leniently that a repeat offender who has committed a serious indictable sexual assault. [ 41 ] Mr. Kolola has a long and serious criminal record. The details are as follows: 2007 Pointing a firearm No sentencing information 2010 1. Impaired driving 2. Uttering threats 3. Breach of probation 4.

Taking a motor vehicle Count 1 $1,000 fine, probation; Counts 2-4 $1,000 fine, probation 2013 Breach of bail 6 month CSO, [33] probation 2013 Assault causing bodily harm 6 month CSO, probation 2013 Possession of a controlled substance 1 day jail 2015 Aggravated assault Bail breach 170 days in jail consecutive after receiving 190 days remand credit; 30 days jail consecutive 2015 Assault Breach of probation 30 days jail consecutive, probation; 30 days jail consecutive 2018 Assault 10 days in jail after 13 days of remand credit, probation 2018 Bail breach Suspended sentence, probation [ 42 ] Significantly, the 2013 conviction for assault causing bodily harm, the conviction in 2015 for aggravated assault, and the 2015 conviction for assault all involved the same intimate partner.

VIII. ANALYSIS

A. The current pandemic is not an appropriate consideration in sentencing [ 43 ] Defence Counsel has asked this Court to consider the current pandemic as “an important part of the sentencing equation”. Mr. Kolola will, she said, experience custody “more harshly than it would have been had he been sentenced in a pre-pandemic world”.

She urged the Court to find that the “collateral consequences” of a southern penitentiary term would be harder on an Inuk than a southerner. [34] In doing so, she cited the Ontario trial level case R v Hearns [35] and the recent Nunavut case of R v Pangon , a decision of Sharkey CJ. [36] With all due respect to the Chief Justice, I do not agree. [ 44 ] I understand the impetus felt by well-intentioned judges to try to account for the potential and real effects of the pandemic on prisoners.

Parliament has entrusted sentencing to judges, and judges understand that the sentences they impose may profoundly affect the lives of the offenders they sentence. The temptation is great, then, for judges to try to respond to the pandemic in the sentencing process. However, in doing so, judges overstep their responsibility in this area, which is within the sole purview of Parliament. [ 45 ] Canada’s criminal law is codified, and the purpose, objectives, and principles of sentencing have been set by Parliament.

Parliament bears the responsibility to alter the law pertaining to pandemic era sentencing if it deems it advisable and necessary. Nine months into the pandemic, Parliament has chosen not to do so. [ 46 ] Nature abhors a vacuum, and that is no less true in human affairs. Parliament’s inaction on the pandemic sentencing issue has led to judges stepping into the void. The result in Nunavut highlights the dangers inherent in unelected judges making policy decisions best left to Parliamentary debate, study, and legislation. Three Nunavut judges have now published three different opinions on this subject.

This situation does nothing to provide certainty and consistency to the law. [ 47 ] In June, my colleague Charlesworth J deducted 60 days from a 15-month jail term as a special COVID-19 remand credit in R v Campbell . [37] She stated her reason for doing so as follows: As I noted earlier, I have given Mr. Campbell the maximum allowable amount of credit for his pre-sentence custody: 1.5 days for every 1 day per section 719(3.1) of the Criminal Code . In these circumstances, I also feel that it is appropriate to reduce Mr.

Campbell’s sentence going forward by 60 days because of the harsher conditions of his incarceration. [38] The clear implication arising from Campbell was that offenders in Nunavut going forward would qualify for an automatic COVID- related remand credit sentence reduction. [ 48 ] However, Chief Justice Sharkey expressly disagreed in Pangon : Accordingly, in my view—absent a challenge to the constitutionality of the provision itself—judges have no power or jurisdiction to impose any remand credit beyond that set out in section 719(3.1) at the rate of 1.5 to 1. [39] [ 49 ] The Chief Justice then went on to call for a “more robust approach to sentencing”, expressly adopting the reasoning expressed in R v Hearns : In Hearns , Pomerance J addressed the balance which needs to be struck between the potential harmful health impact of the pandemic upon detained persons and the role of the court in maintaining public confidence in the administration of justice: That balance is best informed by our collective approach to these issues.

During these challenging times, people are being asked to call

upon their sense of community, decency, and humanity. That humanity must obviously extend to all individuals, including those incarcerated due to criminal charges or convictions. There will be cases where release from custody is not a viable option. There must be consideration of the safety of the community for a proportionate sentence.

Where, however, a period of time served can address sentencing principles, even imperfectly , our sense of humanity tells us that release from prison is a fit and appropriate response. [40] (at para 24, emphasis in original) [ 50 ] As I understand this reasoning, Sharkey CJ suggests that Nunavut’s judges should be prepared to accept, and to impose, imperfect sentences out of a sense of community, decency, and humanity. [ 51 ] Sentencing is a serious art, not a science. Judges are human and make mistakes like anyone else. I do not believe that the public holds judges to a standard of perfection.

However, I believe the public expects judges to struggle in every case to impose the just and right sentence according to the law they are sworn to uphold. I dissent from the idea that judges ought to be prepared to depart from that fundamental principle. There is no lawful authority which permits sentencing judges to lessen appropriate and principled custodial sentences because of the current pandemic. B.

Sentencing in cases of sexual violence against women and girls [ 52 ] Fifteen years ago a judge of this Court noted that “sexual offences involving sleeping victims are unfortunately a common occurrence in Nunavut”. [41] Fifteen years later, that sad reality has not changed, and I have taken this factor into account. [42] [ 53 ] Fortunately, fifteen years later, our society has moved towards a more enlightened and informed perspective on the extent and impact of sexual violence against women. Still, the reality of sexual violence remains all too real for far too many women.

In 2018, Professor Elaine Craig of Dalhousie University wrote: Imagine a society – one that purports to be a rule of law society – in which one segment of the population regularly engages in harmful acts of sexual violence against another segment of the community with almost complete immunity. Canada is such a society. Less than one percent of the sexual assaults that occur each year in Canada will result in any form of legal sanction for those who perpetrate these violations of another’s sexual integrity. In part, this is because most women do not report sexual assault.

Indeed, over ninety percent of sexual assaults in Canada go unreported. One of the main reasons women do not turn to the law to respond to their experiences of sexual violence is distrust and fear of the criminal justice process.

This is a stunning indictment of our response to sexual harm. [43] [ 54 ] This distrust and fear of the criminal justice system by victims of sexual violence again found expression last year in the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls [44] where the Commissioners noted: The language used in the Canadian justice system, especially the language used in the Criminal Code and in criminal justice proceedings, minimizes the nature and severity of violent offences and serves to minimize the responsibility of the offender and the impact of the crime . [45] (emphasis added) [ 55 ] The sentence I impose must seek to repair the perception that our Court minimises the nature, impact and severity of sexual violence while holding Mr.

Kolola demonstrably responsible for his heinous crime. C. The proportionality principle must be reconsidered in cases of domestic and sexual violence

[ 56 ] While much more needs to be done, Parliament and the courts have responded with welcome changes to the way the criminal justice system deals with the abuse of Indigenous women. [ 57 ] In the words of one leading Canadian authority, “victims are playing an increasingly significant role, both formally and informally, in the sentencing of offenders in Canada”. [46] One aspect of this increasing role is the provision in the Canadian Victims Bill of Rights for victims to file, or read aloud in court, a Victim Impact Statement. [47] [ 58 ] In 2015, Parliament passed Bill C-32 into law, which, among other things, amended Criminal Code

section 718.2 (e). The amended

section now reads: 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. [48] Therefore, I remind myself that I am to impose a sentence consistent with the harm Mr. Kolola did to X. [ 59 ] Then in 2019, as we have already seen, Parliament enacted Criminal Code

section 718.04 , making denunciation and deterrence the primary objectives when dealing with the victimisation of vulnerable Indigenous intimate partners. [ 60 ] In R v Iqalukjuaq , this Court later examined the ambit of this objective, noting the unique vulnerability of all Inuit women: Effective 19 September 2019 sentencing judges are required – in the case of intimate partner violence – to “consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims”.

In effect, Parliament has expanded the application of Gladue principles to a specific class of Indigenous victim. … in my view, this new consideration has a broader application - and immediate relevance - in Nunavut. 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. [49] [ 61 ] The Quebec Court of Appeal recently affirmed this approach in R v L.P. [50] In L.P. , the Quebec Court of Appeal overturned the provincial jail term imposed by the trial judge and imposed a federal penitentiary sentence in a case of intimate partner sexual violence.

In doing so, the court gave meaning to Parliament’s direction that sentencing judges “shall give primary consideration to the objectives of denunciation and deterrence” in these cases. [51] [ 62 ] L.P. is a cogent and compelling reminder that sentencing judges – and the lawyers who make sentencing recommendations – must adjust to the new paradigm established by Parliament.

In many if not most cases of domestic and sexual violence against Indigenous women and girls, this will mean higher sentencing recommendations and higher sentences than were imposed in the past. [ 63 ] Naturally, this conclusion raises the inevitable question: how do the courts depart from previous precedent in a principled manner?

The answer to this question may be found in

part in the recent Supreme Court of Canada case of R v Friesen : Courts can and sometimes need to depart from prior precedents and sentencing ranges in order to impose a proportionate sentence. Sentencing ranges are not “straitjackets” but are instead “historical portraits” ( Lacasse , at para. 57 ). Accordingly, as this court recognized in Lacasse , sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence for an offence and society’s understanding of the severity of the harm arising from that offence increases (paras. 62-64 and 74). [52] [ 64 ] Parliament has not increased sentencing maximums for gendered sexual violence. But Parliament in

section 718.2 called for sentences to be consistent with the harm done to victims. In

section 718.04, Parliament gave expression to our growing understanding of the severity of the impact sexual crime has on vulnerable female Indigenous victims. In doing so, Parliament gave a clear direction to all justice system participants. Going forward, we must reconsider the proportionality principle and endeavour to apply it in a demonstrably meaningful way. [ 65 ] In Mr. Kolola’s case, Defence Counsel submitted a book of case law with sentencing comparators for sexual assaults perpetrated on sleeping or unconscious victims.

These cases all resulted in varying periods of territorial jail. [53] Each of these cases, however, pre- date Friesen and L.P. and they must be reconsidered in that light. [ 66 ] The pre- Friesen and L.P. case law presented by Defence Counsel no longer reflects our current understanding of the severity of the impact that violent crime has on victims, their families, and communities.

Nor does this pre- Friesen and L.P. case law respect the clear direction given by Parliament to give meaningful recognition to the vulnerability of Inuit women who live in our far-flung, isolated, and remote communities. [ 67 ] The Crown submitted two cases from the Nunavut Court of Appeal. In R v Parr , [54] the offender penetrated his sleeping victim’s vagina with his penis after an alcohol-fueled party. The Court imposed a post-trial 44-month penitentiary term. In R v Ipeelie , [55] the offender had attacked a stranger and pulled her into the bushes, where he penetrated her vagina with his penis.

The sentencing judge found that a proper sentence would be in the six to ten year range, but imposed a 48-month federal sentence given the offender’s “significant steps taken toward rehabilitation while on bail”. [56] The Nunavut Court of Appeal affirmed the 48-month sentence. These two recent appellate cases better reflect the purpose, objectives, and principles of sentencing applicable in Nunavut post- Friesen and L.P. [ 68 ] An offender engages a high degree of moral culpability, whether he assaults his victim while she is asleep or unconscious in her own home—as did Mr.

Kolola—or whether the victim is a stranger alone on the street. Both scenarios require this Court to denounce sexual violence against vulnerable Inuit women in the strongest possible terms. After the enactment of

section 718.04, Friesen , and L.P. , courts must place primary and meaningful emphasis on denunciation and deterrence, and I do so here. [ 69 ] The cases I have cited suggest that the proper range of sentences for penetrative vaginal sexual assault of a vulnerable sleeping or unconscious victim which leaves the victim susceptible to disease, emotional harm, and pregnancy is between 36 and 60 months in a penitentiary, depending on the age and criminal record of the offender and the unique circumstances of the case. [ 70 ] The Crown recommended that I impose a 30-month federal penitentiary term.

This recommendation falls well below the range of sentences established by the Court of Appeal in Parr and Ipeelie . However, I note that the parties made their submissions before the Quebec Court of Appeal released L.P. , and the Crown may have been influenced by the earlier case law. [ 71 ] Although this is Mr. Kolola’s first conviction for sexual assault, he carries with him a serious criminal record for violence against an intimate partner. In the present case, Mr. Kolola committed a pre-meditated offence. Mr.

Kolola entered the victim’s home, where he had never been before, and he scouted the victim out to her second-floor bedroom before he undressed and sexually assaulted her in her sleep. Mr. Kolola exposed his victim to emotional harm, and to the possibility of sexually transmitted disease, and pregnancy. The circumstances of this case call for a stronger denunciatory and deterrent sentence than the one recommended by the Crown. [ 72 ] That said, the Crown’s recommendation has merit.

While I do not accept Defence Counsel’s suggestion that I am sentencing a different man than the one who perpetrated this crime (this is not a historical case), the fact is that Mr. Kolola has made significant

effort, and has had some demonstrable success, at rehabilitation. The Crown recommendation generously accounts for Gladue , the guilty plea and mitigating factors. To that extent, it balances adequately—although arguably just barely—the competing sentencing principles and meets the purpose and objectives of sentencing in the unique circumstances of this case. [ 73 ] In other words, 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. IX. SENTENCE A. A federal penitentiary term [ 74 ] Mr.

Kolola. I order that you serve 900 days (that is 30 months calculated at 30 days per month) in a federal penitentiary. I order you to surrender yourself to the local RCMP detachment no later than 4:00 pm today. B. Ancillary orders [ 75 ] I impose the following ancillary, or related, orders: a. A non-communication order with X pursuant to

section 743.21(1); b. A mandatory DNA order pursuant to

section 487.051; c. A mandatory 10-year firearms prohibition pursuant to

section 110; d. A 20-year Sexual Offenders Registry order pursuant to

section 490.012(1); e. A $200 victim surcharge, payable within six calendar months after your release from the penitentiary, pursuant to section 737(2)(b) (ii). Dated at the City of Iqaluit this 17th day of November 2020 ___________________ Justice P. Bychok Nunavut Court of Justice