R. v. J.Q., 2015 NUCJ 09

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. J.Q., 2015 NUCJ 09 Date: 20150325 Docket: 10-13-I-44 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: J.Q. ________________________________________________________________________ Before: The Honourable Mr. Justice Burrows Counsel (Crown): Jenna Montgomery Counsel (Accused): Tamara Fairchild Location Heard: Pangnirtung, Nunavut Date Heard: February 12, 2015 Matters: Criminal Code, s. 151 ; s. 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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: This judgment has been anonymized to protect vulnerable parties. Letters have been assigned at random to indicate a community. Table of Contents REASONS FOR JUDGMENT 1 I. INTRODUCTION 4 II. EVIDENCE 5 A. Complainant testimony 5 B. Accused testimony 5 III. ANALYSIS 6 IV. POSITIONS OF COUNSEL 9 A. Crown 9 B. Defence 9 V. CASE LAW 10 A. R v Arcand 10 B. Nunavut case law 12 VI.

AGGRAVATING AND MITIGATING FACTORS 14 VII. CONCLUSION 17 A. Probation conditions 17 B. Ancillary Orders 18 I. INTRODUCTION [ 1 ] J.Q. pled guilty to one count of sexual assault (Canadian Criminal Code, RSC 1985, c C-46 [ Criminal Code ] s. 271 ) and one count of sexual interference ( Criminal Code s. 151 ). [ 2 ] He admitted that on April 19, 2013, he had sexual intercourse with the then 15½ year old sister of his common-law wife when they were both extremely intoxicated. There was no suggestion that he believed the complainant to be over 16 years of age.

By Criminal Code s. 150.1(1), because she was under the age of 16, it would not have been a defence if the complainant had consented to the sexual activity which Mr. J.Q. admitted took place.

[3] On the basis of these admissions, and having found that the requirements of Criminal Code s. 606 had been satisfied, I found Mr.J.Q. guilty of the offences to which he had pled guilty. However, applying the Kienapple principle (Kienapple v R, (SCC), [1975] 1 SCR 729, 15 CCC (2d) 524), I directed that a conviction be entered only in respect of the offence of sexual assault(Criminal Code s. 271). On the Crown’s application, a conditional stay was entered in respect of the offence of sexual interference(Criminal Code s. 151). [4] After Mr.

J.Q. pled guilty, the Crown sought to prove, as an aggravating factor for sentencing purposes, that he had forced himselfon the complainant – that she had not consented to the sexual intercourse in fact. In particular, the Crown alleged that Mr. J.Q. had takenthe complainant to the bedroom against her will, removed her clothes despite her objections, ignored her verbal request that he stop, andheld her hands behind her back while the sexual intercourse occurred. [5] The accused denied these particulars. II. EVIDENCE A.

Complainant testimony [6] The Crown called the complainant to give evidence to prove the alleged aggravating factor. On the Crown's application pursuant toCriminal Code s. 486, I ordered that the public be excluded from the courtroom while the complainant testified. When I announced thatorder, community members who were in the community hall where court was being held, a significant number of people, left the room. The complainant testified in camera. [7] The complainant testified to a version of events consistent with the description given above.

She also testified that her relationshipswith her sister and other members of her family, in particular her grandmother and her aunts, were severely damaged following theirlearning that the sexual intercourse had taken place. On the date of the sentencing hearing, February 12, 2015, some 22 months after theevent, the complainant and her sister were still estranged. I understand the complainant's relations with other relatives have also not beenrehabilitated.

The complainant testified that she would like to have the same relationships with her family members as she had before. [8] The complainant's sister has forgiven Mr. J.Q. Their family unit consisting of Mr. J.Q., the complainant's sister, and their threechildren, is intact. B. Accused testimony [9] Prior to Mr. J.Q. testifying as to his version of events, I interrupted the proceedings, on the record, to observe that I had concernsabout the utility of the evidentiary proceeding which the Crown had chosen to initiate.

I suggested that the proceeding itself was capableof doing further damage to the complainant's family relations, especially given that the complainant, at the Crown's initiative, hadtestified in camera, but Mr. J.Q. would testify in public. As a result, members of the community attending court would only hear one sideof the story. [10] To my mind, there was a serious concern that the judgments of community members made after hearing only one side of the storycould cause further damage to the complainant's family relations and the prospect of their being restored.

This, I thought, wouldsignificantly outweigh the significance the aggravating factor, if proved, could possibly have in the determination of a fit sentence. Imade these observations after the complainant had been cross-examined and when reason to question her credibility, which I discussfurther below, had been exposed. Crown Counsel elected, however, to proceed. [11] Mr. J.Q. testified. He denied that the particulars of the sexual encounter which resulted in the charges included the force or violenceto which the complainant testified.

He testified to a version of events that involved no uninvited physical contact. III. ANALYSIS [12] At the conclusion of the evidence, I found that the Crown had failed to prove the alleged aggravating feature beyond a reasonable

doubt. Notwithstanding Counsels' expectations to the contrary, I did not make any specific findings of fact beyond the finding that thealleged aggravating factor had not been proved beyond a reasonable doubt. I concluded that no good, but rather potentially significantharm could result from doing so. [13] I held that the alleged aggravating factor had not been established because I found the complainant’s testimony not sufficientlycredible to prove it beyond a reasonable doubt.

My reasons included these points: • The complainant testified that as a result of her and her sister drinking together she became very intoxicated, yet, she testified thatshe remembered well everything that happened while she was intoxicated; • The complainant went to her own home after the sexual intercourse. In direct examination, she testified that she told her motherwhat had happened.

In cross-examination, she acknowledged that she did not say anything to her mother until after her sister hadtelephoned her mother and expressed anger at what had happened; • The complainant testified that when the police came the next day, her mother, who did not like Mr. J.Q. even before these events,told her, out of the hearing of the police, “We have to win over [J.Q.]”; • The complainant testified at the preliminary inquiry that the day after the encounter with Mr. J.Q., she was afraid that she wouldbe in trouble for having consumed alcohol while under age.

She did not tell the police that she had been drinking. She tried to make thepolice think that only Mr. J.Q. and her sister had been drinking; • The complainant testified in chief that when she was intoxicated she passed out on the floor because she was tired. In her policestatement, she said that she had passed out on the couch where her sister had also passed out. In cross examination, she testified that shedid not recall saying that in her police statement.

The Crown acknowledged that the police statement accurately recorded what she said tothe police; • Similarly, the complainant’s evidence at trial and her police statement were not consistent as to how she got to the bedroomwhere the sexual intercourse occurred and as to the position of her hands during the intercourse. [14] It may be that the complainant was testifying truthfully. It may also be that Mr. J.Q. was testifying truthfully. However, anaggravating factor alleged by the Crown must be proved beyond a reasonable doubt.

I was not satisfied beyond a reasonable doubt. [15] In my view, as I expressed during the submissions of counsel, it was not necessary for me to make any finding as to which of thetwo versions of events was fact and which was not. The Crown was unable to meet the onus of proof for the aggravating factor italleged. Mr. J.Q. admitted that sexual intercourse occurred. The complainant was incapable of giving legally valid consent to the sexualintercourse.

It would not constitute a mitigating factor if she had given de facto consent (R v Pritchard (2005), 371 AR 27 (Alta CA),2005 ABCA 240, at para 7; R v Revet (2010), SKCA 71, 2010 SKCA 71 , 256 CCC (3d) 159, at para 12). [16] In these circumstances, I concluded that no purpose would be served by a finding as to whether or not the complainant had in fact(though not in law) consented to the sexual activity. The concerns I expressed prior to Mr. J.Q.’s testimony, in my view, gave me reasonnot to engage in any further unnecessary discussion of the circumstances.

In my view, the bottom line was sufficient - the allegedaggravating factor was not proved beyond a reasonable doubt. [17] Accordingly, in my view, the circumstances of the offence which need to be considered in determining a fit sentence are as follows.Mr. J.Q. had sexual intercourse with the 15½ year old complainant when they were both heavily intoxicated. This occurred in Mr. J.Q.'shome while his common-law wife, the complainant's sister who was also heavily intoxicated, was asleep in another room. Thecomplainant had become intoxicated through drinking hard liquor provided to her by her sister, before Mr.

J.Q. arrived in the home. Mr.J.Q. had become intoxicated while visiting a friend. The evidence of the complainant and of Mr. J.Q. was consistent on these points. [18] As to the circumstances of the offender, Mr. J.Q. is presently 31 years old. As mentioned he has a common-law spouse. They havebeen together 13 years. They have four children, three of whom are in their care. He was raised in Community X by his grandparents

because his parents were unable to care for him. He has grade 11. He is currently unemployed, though he has had employment in the past and he works on the land, hunting and fishing. He has a criminal record. There is no prior sexual offence on his record, but there are convictions for offences involving violence against women. Prior sentences have included incarceration. He acknowledges he has had a significant problem with alcohol which began more than 20 years ago when he was a child. He associates its commencement with the death of his grandfather. IV. POSITIONS OF COUNSEL A. Crown [ 19 ] Ms.

Montgomery, for the Crown, submitted that a fit sentence would be 3.5 to 4.5 years. She submitted that the three year sexual assault starting point discussed and applied by the Alberta Court of Appeal in R v Arcand, 2010 ABCA 363 , 264 CCC 3d 134 (Alta CA) [Arcand] , should apply in Mr. J.Q.’s case. She submitted the sentence should be increased from the starting point because the complainant was under 18, a statutory aggravating factor pursuant to Criminal Code s. 718.2 (a)(ii.1). She submitted that it was also aggravating that the offence occurred in family circumstances.

In reply submissions, she further suggested that it was aggravating that, according to the complainant, Mr. J.Q. had been involved in providing the complainant with some of the alcohol she consumed. Ms. Montgomery acknowledged that Mr. J.Q.’s guilty plea should have some mitigating effect. [ 20 ] Ms. Montgomery declined my invitation to advise the Court how her submission differed from the submission she would have made had the aggravating circumstance, which she had sought to prove through the testimony of the complainant, been proven beyond a reasonable doubt. B. Defence [ 21 ] Ms. Fairchild, for Mr.

J.Q., submitted that a fit sentence was 18 months incarceration. My memory as I draft these reasons is that she also submitted that the period of incarceration should be followed by a period of probation, but my notes made during the submissions do not match my memory. [ 22 ] In reply to the Crown’s reliance on Arcand, Ms.

Fairchild submitted that the strong criticism of the majority decision by the minority in the same case, and the even stronger criticism of the Arcand majority by the majority in another Alberta Court of Appeal case (R v Lee, 2012 ABCA 17 , 524 AR 22 [Lee] ), and in academic commentary, justified not following it. In particular, she observed that the majority in Arcand did not address the Criminal Code s. 718.2 (

e) imperative concerning consideration of the circumstances of Aboriginal offenders. She submitted that a sentence of 18 months incarceration for a Nunavut offender in Mr. J.Q.’s circumstances was consistent with the decisions of judges of the Nunavut Court of Justice. In particular, she cited R v Nookiquak, 2005 NUCJ 16 , 2005 CarswellNun 14 [Nookiquak] . V. CASE LAW A. R v Arcand [ 23 ] In R v Arcand (as cited above), the 18 year old Aboriginal accused was convicted of sexual assault after trial. The complainant, who was distantly related to the accused, was a few years older than him.

The complainant passed out while the two were sitting on a bed watching television and drinking. The complainant woke up to find the accused on top of her with his penis in her vagina. She had done nothing to encourage the accused to have sex with her.

The Alberta Court of Appeal set aside a sentence of 90 days intermittent imprisonment and three years probation for sexual assault and substituted a sentence of two years less a day and two years probation. [ 24 ] A majority consisting of three of the five judge panel of the court which heard the appeal, observed that the starting point for a major sexual assault, which the accused had committed, was three years. It was a reviewable error for the trial judge to ignore the authority, binding on him, setting that starting point.

The court said: The corollary of a court of appeal’s authority to set properly defined staring points is that sentencing judges will give due consideration to those starting points and the process that starting point sentencing entails. (para. 273) [ 25 ] In Arcand , the majority (at para. 274 ) observed that denunciation and deterrence must be given considerable weight in sentencing for “major sexual assault.” Whether or not that label should be applied to Mr. J.Q.’s offence, I accept that denunciation and deterrence

are of fundamental importance in the determination of a fit sentence for his crime. [26] In Arcand, the majority (at para. 280) mentioned the importance of the principle of parity in the determination of a fit sentence. Asappears below, my consideration of the principle of parity, parity with sentences imposed in Nunavut in similar circumstances,contributes to my conclusion that the 3.5 to 4.5 year sentence proposed by the Crown is not fit. [27] In Arcand, the majority identified aggravating and mitigating factors influencing adjustments from the starting point.

With regard tothe fact that the accused was Aboriginal, the majority observed only this: The particular attention to be given to the circumstances of the offender as an Aboriginal person under s. 718.2(

e) of the Code does notadjust the situation greatly here. If those circumstances were to be replicated for a non-Aboriginal young person, the effect would bemuch the same. Serious sexual assaults on women, including Aboriginal women, continue to be a clear and pressing problem in thiscountry. (para. 294) [28] Two members of the court in Arcand dissented from many of the conclusions stated by the majority, though not from theconclusion that a fit sentence for Mr. Arcand was two years less a day and two years probation. [29] Ms.

Fairchild observed that in Lee, the two judge majority rejected the majority judgment in Arcand as having been decided perincuriam. [30] In that case [Lee], Berger J.A. emphasized the importance of proportionality as the governing principle of sentencing under PartXXIII of the Criminal Code. He said: A just sentence is one that is “proportionate to the gravity of the offence and the degree of responsibility of the offender”.

It is one thatis commensurate with the “moral blameworthiness of the offender” and one that accords with the purposes and objectives of sentencingset out by Parliament in ss. 718.1, 718.2 and 718.3 of the Criminal Code. The appropriate sentence will also depend on thecircumstances of the community in which the offence took place: R v.

M. (C.A.) (SCC), [1996] 1 S.C.R. 500 and R v.Gladue, (SCC), [1999] 1 S.C.R. 688. (emphasis added) (para. 8) [31] Berger J.A. also referenced academic criticism of the failure of the majority in Arcand to do more than make passing reference to Rv Gladue, (SCC), [1999] SCJ No 19, [1999] 1 SCR 688 (QL) [Gladue]. In particular, he cited Jonathan Rudin’s articlein the volume 48 issue of the Alberta Law Review . [32] Though, before me, Ms.

Montgomery submitted that the three year starting point discussed in Arcand should be applied in thiscase, she did not cite any authority from the Nunavut Court of Appeal defining major sexual assault or setting a starting point for such anoffence, and I have found none myself. B.

Nunavut case law [33] In R v Christensen, 2004 NUCA 4, [2000] Nu J No 14 (QL), the Nunavut Court of Appeal (in a decision written by Fraser C.J.who, 10 years later, as Chief Justice of the Alberta Court of Appeal, was in the majority in Arcand), imposed a sentence of two years lessa day on a 22 year old offender who plead guilty to the sexual assault of an adult complainant.

The court made no mention of the startingpoint approach to sentencing, by then well established in Alberta, except to observe that the sentence imposed should not be taken as astarting point. [34] In R v BT, 2007 NUCA 3, [2007] Nu J No 16 (QL) [B.T.], the Nunavut Court of Appeal upheld a sentence of 20 monthsincarceration and probation imposed by Browne J., a resident Nunavut Court of Justice judge, on a 19 year old offender who threatenedthe complainant who refused to have sex with him and then sexually assaulted her. The accused had pled guilty.

Though the appealjudges thought the sentence was less severe than they might have imposed, they deferred to the judgment of the resident judge. ConradJ.A. wrote: The Supreme Court of Canada in R. v. C.A.M., Lamer, C.J.C. discusses the concept of protecting the community as part of thesentencing process as follows at para. 91:

“Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered theconsequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goalsthat will be “just and appropriate” for the protection of that community.” We are satisfied that this is just such a case. The sentencing judge was familiar with the community and its needs. . . .

Familiar with the community, the sentencing judge was concerned about this young accused returning to the community without propertreatment and control upon his return. She crafted a judgment to meet those concerns. . . . (paras. 13, 14 and 15) [35] In B.T., the Nunavut Court of Appeal did not mention the starting point approach to sentencing, though it appears that the Crown’sposition as to a fit sentence, which the court rejected, had the Alberta starting point in mind.

The Crown had submitted that a fit sentencewas three years’ incarceration. [36] In Nookiquak, Kilpatrick J., a resident judge of this Court, expressly declined to adopt the “starting point” approach first adopted bythe Alberta Court of Appeal in R v Sandercock, 1985 ABCA 218 , [1985] AJ No 817, (1986) 22 CCC (3d) 79, and reaffirmed inArcand, in the sentencing of an Aboriginal accused convicted of the sexual assault of a 16 year old complainant. The circumstances ofthe offence were perhaps more serious than the circumstances admitted or proven in this case.

The complainant, a guest in the accused’shome, had gone to sleep and awoke to find the accused having unprotected sexual intercourse with her. Like Mr. J.Q., Mr. Nookiquakpled guilty. Unlike Mr. J.Q., Mr. Nookiquak had no criminal record. The circumstances before the Court included that the offense hadprofound negative impact on the complainant. There is no such evidence before me, except in relation to the profoundly negativeconsequences to the complainant’s family relationships.

Kilpatrick J. determined that a fit sentence in all the circumstances was 18months incarceration. [37] In R v JG, 2008 NUCJ 12, [2008] Nu J 12 (QL), the accused pled guilty to four counts of sexual assault. His victims had beenyoung girls who, on separate occasions, were sleep-over guests of his daughter. The sexual assaults consisted of touching the children inthe area of their genitals while they slept.

In one case, the child was a relative and had been abused about 12 times over two years.Kilpatrick J. imposed a sentence of 14 months in respect of one of the offences and one month consecutive in respect of each of the otherthree, for a total sentence of 17 months. [38] Like Kilpatrick J. in Nookiquak, I reject the Crown’s submission that the sentencing of Mr. J.Q. should be approached using astarting point of three years and then adjusting for aggravating and mitigating circumstances. VI. AGGRAVATING AND MITIGATING FACTORS [39] In my view, the only significant aggravating factor is Mr.

J.Q.’s criminal record which, as mentioned, includes crimes involvingviolence against women, but does not include any previous sexual offence. [40] I do not accept the Crown’s submission that the fact that the offence happened “within family circumstances” is aggravating. Thenegative consequences to the complainant’s family relations appear to me to have resulted from the responses of family members to whatthey have concluded was her conduct more than from what Mr. J.Q. did. [41] The suggested aggravating circumstance that Mr.

J.Q. supplied some of the alcohol which the underage complainant consumed isalso rejected. It was not proven beyond a reasonable doubt that Mr. J.Q. supplied any alcohol to the complainant. It was proven that hersister provided the alcohol and that the complainant had become intoxicated by that alcohol prior to Mr.

J.Q. arriving at the residence. [42] Criminal Code s. 718.2(a)(ii.1) deems it to be aggravating that the offence involved the abuse of a person under 18 years of age.However, in my view the aggravating effect in the case of sexual assault of a 15½ year old where consent is legally impossible and noforce or violence other than the sex act itself was proven must be considerably less than in other circumstances. [43] Mr. J.Q.’s guilty plea should be recognized as a significant mitigating factor.

In R v A.B., 2011 NUCJ 15, [2011] Nu J No 17 (QL),Cooper J., a resident judge of the Nunavut Court of Justice, sentenced a 24 year old Aboriginal male who pled guilty to sexuallyassaulting his older sister on three occasions over four years to incarceration for two years less a day and two years’ probation. In herreasons for decision, she discussed the mitigating effect, indeed the rehabilitative effect, of a guilty plea in the unique Nunavut context(beginning at para. 20):

[20] Courts frequently cite guilty pleas as mitigating factors on sentence. This court has stated several times that guilty pleas aresignificant mitigating factors, particularly in certain types of offences, and that a guilty plea must mitigate sentence in a real andmeaningful way. [21] This is so for several reasons. A guilty plea saves the court the time and expense of a preliminary hearing and trial.

This issignificant in a jurisdiction that is struggling with a high rate of serious violent crime and a shortage of judicial resources. [22] Most importantly, however, a guilty plea spares the victim from having to come to court and testify. The Court acknowledgeshow difficult it would have been for the victim to have come to court to testify against her brother. It is not unusual in this jurisdictionfor witnesses in such cases to simply not come to court or, if they do come, to refuse to relate what occurred. [23] Nunavut has a small population. Even our largest communities are small.

When an offender is released from jail they mostoften return to their home community – the place where the offence occurred. Unlike big cities in the South, anonymity is not an option. Cultural ties, family bonds, and personal circumstances make moving to the South an unrealistic option for many.

There is a tremendousshortage of housing so when offences are perpetrated by one family member on another, and the two of them share a home, the offenderand the victim frequently continue to reside in the same home upon the offender’s release from jail. [24] The court in Nunavut has sometimes been criticized for arriving in a community, dealing with cases, and then simply leavingwithout having to deal with the aftermath of disharmony in the community and the family. [25] Restoring harmony in the community and the family is of the upmost importance and the court must do what it can to facilitatethat process.

A guilty plea, as it is an acknowledgement of wrongdoing and an acceptance of responsibility, is a first step in that process. This case is a prime example of the rehabilitative impact of a guilty plea. [26] A preliminary inquiry and trial, pitting sister and brother against each other, might well have torn this small family apartpermanently. The victim’s acceptance of AB’s apology and his acknowledgment of wrongdoing and acceptance of responsibility at theearliest opportunity means that reunification of the family is possible. [44] In my view, the prospect of this type of positive effect flowing from Mr.

J.Q.’s guilty plea in this case has been severely jeopardizedby the Crown’s, in my view, ill-advised attempt to prove the alleged aggravating factor. However, this makes no difference to thesignificance of the guilty plea as a mitigating factor in the determination of a fit sentence in this case. VII. CONCLUSION [45] Responding to the Criminal Code s. 718.2(

e) imperative, as interpreted by the Supreme Court of Canada in Gladue, and R v Ipeelee,2012 SCC 13 , [2012] SCJ No 13, [2012] 1 SCR 433 (QL), to give particular attention to the circumstances of Aboriginaloffenders when determining the extent to which sanctions other than imprisonment are reasonable in the circumstances, I note theaspects of Mr. J.Q.’s background, identified above, which may have played a

part in bringing him before the Court. I give particularregard to the just quoted observations of Cooper, J. about the importance of rehabilitation of the accused as a member of the communityin which he is practically obliged to live following his release from custody. In my view a term of probation following incarceration is thebest tool the Court has to affect that end. [46] These considerations have led me to the conclusion that a fit sentence in this case is the sentence proposed by Ms. Fairchild.

A fitsentence in this case, subject to credit for pre-sentence custody, would be 18 months followed by one year probation. [47] As of today, Mr. J.Q. has been in custody for 42 days since I reserved my decision after the sentencing hearing of February 12,2015. In my view, because he has served those 42 days in facilities notorious for their poor condition and because there will be nostatutory remission for the days he has served, he should be entitled to credit of one and one-half days for each of those 42 days. That is63 days, or two months, credit.

The term of imprisonment, which pursuant to Criminal Code s. 719(1) commences today, is therefore 16months. [48] As required by Criminal Code s. 719(3.3) I state for the record that Mr. J.Q. has spent 42 days in custody. The term ofimprisonment that would have been imposed before any credit is 18 months. The amount of time credited is 2 months. The sentenceimposed therefore is 16 months. A. Probation conditions

[ 49 ] The conditions of the probation, in addition to those prescribed by Criminal Code s. 732.1(2) , shall be that Mr. J.Q.: a. Must report to a probation officer within 7 days of his release from custody and thereafter when required by the probation officer and in the manner prescribed by the probation officer; b. Must participate in any counselling or treatment, particularly in relation to alcohol abuse, that the probation officer may arrange for him. B. Ancillary Orders [ 50 ] The Crown sought several ancillary orders, as follows: 1.

Non-communication order: I order pursuant to Criminal Code s. 743.21(1) , that Mr. J.Q. not communicate with the complainant directly or indirectly while he is serving the custodial period of his sentence. 2. Sex Offender Information Registration Order: I order, pursuant to Criminal Code s. 490.012(1) , that Mr. J.Q. comply with the Sex Offender Information Registration Act, SC 2004, c 10 , for a period, pursuant to Criminal Code s. 490.013(2) (b), of 20 years. 3. Order of Prohibition: I decline to make an order of prohibition pursuant to Criminal Code s. 161 .

In my view, nothing in the proven circumstances justifies such an order. 4. Firearms Prohibition: I decline to make a firearm’s prohibition order pursuant to Criminal Code s. 109 .

Such an order is mandatory when the court is sentencing for an indictable offence “in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment for ten years or more.” Applying the reasoning of Shaner J., in R v P.S.T., 2012 NWTSC 86 , [2012] NWTJ No 103 (QL) , at paras. 58 to 63 , I conclude that the situation covered by s. 109 does not exist in this case. 5. DNA Sample: I order pursuant to Criminal Code s. 487.051(1) , the taking of DNA samples from Mr.

J.Q. [ 51 ] In Criminal Code s. 737, Parliament has imposed a further penalty on Mr. J.Q. – a “victim surcharge” – which, pursuant to Criminal Code s. 737(2) (b)(ii) [ s.737 ], is $200. Parliament has given the Court no discretion on any aspect of the “victim surcharge”. It is mandatory. [ 52 ] This case was before me during the Court’s sitting in Pangnirtung. In the course of that sitting, several accused asked me to grant them time to pay the surcharge which Parliament had imposed on them in s. 737.

It appears, however, that s. 737 gives the Court no discretion even to do that. [ 53 ] Criminal Code Section 737(4), provides that where, as here, no fine is imposed, the surcharge is payable “within the time established by the lieutenant governor in council of the province in which the surcharge is imposed for payment of any such surcharge.” Counsel, both Crown and Defence, appearing at the Pangnirtung sitting were not aware of the Nunavut equivalent of the “lieutenant governor in counsel of the province” having made any provision in response to s. 737(4).

They invited me, however, for the sake of practicality, to make an order granting time to pay to the offenders upon whom liability for Parliament’s surcharge fell. [ 54 ] In the absence of any other practical way to deal with this detail (which it appears Parliament has imperfectly dealt with) I assumed an inherent jurisdiction to do what is reasonable and just and granted the offenders 6 months to pay. [ 55 ] Accordingly, I order that Mr. J.Q. have 6 months from the date of his release from custody to pay the $200 surcharge.

Dated at the City of Iqaluit this 25th day of March, 2015 ___________________ Justice B.R. Burrows Nunavut Court of Justice