R. v. T.Q., 2016 NUCJ 04

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. T.Q., 2016 NUCJ 04 Date: 20160226 Docket: 11-13-151; 11-13-145 Registry: Iqaluit Crown: Her Majesty the Queen and- Accused: T.Q. ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): B. McLaren Counsel (Accused): S. O’Conner Location Heard: Pond Inlet, Nunavut Date Heard: October 5-7, 2015 Matters: Criminal Code, s. 145(3) ; s. 348(1) (a); s. 348(1) (b); 733.1(1)x2 REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] The offender has pleaded guilty to: a. One count of breaking and entering to a dwelling with intent to commit an indictable offence, occurring between August 30 and September 2nd, 2013; b. One count of breaking and entering to a dwelling and commit theft occurring between September 1 and 7th, 2013; c.

Two counts of failing to comply with a probation order for failing to keep the peace and be of good behaviour; and d. One count of failing to comply with an undertaking for failing to stay away from a house he was on conditions to stay away from. II. BACKGROUND [ 2 ] The circumstances of the break and enters are concerning. [ 3 ] The first break enter was discovered by the home owner when she awoke and went out to the porch of the residence to have a cigarette. At that time she noticed some underwear underneath the stairs leading to the house.

The house had been left unlocked when the residents went to bed the previous evening. During the night the offender had entered the home, took some underwear belonging to a nine year old girl along with some underwear belonging to the girl’s mother and masturbated with it. This was the underwear that was found underneath the stairs of the house. Also found inside the house were women’s underwear that did not belong to the complainant or her daughter. [ 4 ] Some days later, the offender entered another home during the night through an unlocked door. A resident of the home awoke to find the accused in her bedroom.

When she asked the offender what he was doing in the house he asked if he could use the telephone. The use of the phone was offered to him and he appeared to try and use the phone, but left without making a call. The guilty plea to break and enter with the intent of committing an indictable offence is an admission by the accused that he was not in the residence for an innocent purpose. [ 5 ] Following the break and enters, the offender was placed on an undertaking with conditions that required he remain at least 10 metres from these houses.

About a month after breaking into the first home and stealing the underwear, the offender was found to be outside the same residence, asking to use the telephone. [ 6 ] At the time of all of these incidents the offender was on probation flowing from a conviction for sexual assault. III. POSITIONS OF THE PARTIES [ 7 ] The Crown submits that protection of the public requires a custodial term and seeks a sentence of at least 12 months. [ 8 ] The Defence submits that the charges are dated, that there has not been any offending behaviour since and, for that reason, concerns

regarding public safety are not as pressing as the Crown suggests. The Defence seeks a lengthy period of probation. IV. ANALYSIS A. Circumstances of the offender [ 9 ] Mr. Q is 22 years old and lives in a small northern community with his mother and his three siblings. He reports having had a good childhood, however, other family members report dysfunction within the family, including domestic violence. The reports by the family are borne out by other information regarding Mr.

Q’s history and circumstances. [ 10 ] When he was 9 years old his parents separated following an incident of domestic violence where his mother stabbed his father. His father moved to another community and Mr. Q’s contact with him since that time has been minimal. [ 11 ] Although Mr. Q spoke positively of his step-father, who has been in his life since shortly after his biological father left, the step- father is not residing in the home at this time due to pending charges in relation to family members. Family members report that the home is better without the step-father there. [ 12 ] Mr.

Q seems to have had some struggles in school as he failed several times, but he persevered and graduated grade 12. He was active in sports while in school and is generally well liked and popular. [ 13 ] He has a good work history and at one point, while working construction, he was financially supporting his entire family. It seems that work is a positive activity in his life; he simply does better when he is working. [ 14 ] Mr. Q has had a close relationship with his grandparents. When he was growing up he spent time with them on the land. [ 15 ] I am advised that Mr.

Q is willing to take counselling and treatment. Despite the criminal history and the behaviour which brings him before the court again, Mr. Q is generally pro-social. This, in conjunction with his willingness to take treatment, bodes well for treatment. [ 16 ] Mr. Q has been on a restrictive undertaking since September 24, 2013. It includes a strict curfew from 5 pm to 9 am unless he is working at Northmart, in which case his curfew is extended to 9 pm to accommodate his work schedule. There have not been any breaches of this undertaking. B. Criminal history [ 17 ] Mr. Q has one prior conviction.

In July of 2012, he was convicted of sexual assault and sentenced to a 9 month Conditional Sentence Order and 6 months’ probation. The victim in that matter was his younger sister. C. Assessment [ 18 ] The Court ordered a psychological assessment to assist in determining a fit sentence. The psychological assessment was to consider many things, including: a. the risk Mr. Q poses for reoffending; b. the prognosis for effective rehabilitation;

c. recommendations for remedial treatment; d. conditions that could be imposed to reduce risk; and e. the resources available to meet Mr. Q’s needs. [ 19 ] The assessment determined that Mr. Q does not suffer from a mental illness, nor is he cognitively impaired. There is a concern that he has one or more paraphilia disorders. [ 20 ] Various tests were carried out to assist in diagnosis and to assist in providing an opinion on the risk Mr. Q poses for reoffending. [ 21 ] The Psychopathy Checklist - Revised [PC-R] measures the risk of criminal recidivism without reference specifically to sexual offence recidivism.

Mr.

Q scored low on this test (9.5 out of 40), indicating that he is at low risk of criminal recidivism. [ 22 ] Two tests were administered to assist in determining his risk of sexual offence recidivism. [ 23 ] The STATIC-99R placed him at a 42-46% likelihood of sexual offence recidivism within 10 years. [ 24 ] The Sexual Offender Risk Appraisal Guide [SORAG] assessed him at a higher likelihood of sexual offence recidivism, 76% over 10 years, although it is acknowledged that there are concerns with the SORAG base data which may result in predicted recidivism rates being inflated. [ 25 ] The conclusion in the assessment is that Mr.

Q is at a moderately high risk of sexual recidivism. [ 26 ] The assessment recommends the offender undergo Phallometric Testing so his paraphilic disorder or disorders can be better understood and an appropriate treatment plan developed. It is recommended that he receive sex offender treatment. Although it is difficult to assess the success of treatment, his generally pro-social disposition and his low score on the testing for general criminal recidivism are suggestive of a positive treatment outcome. D. History of the file [ 27 ] These incidents arise from August and September of 2013.

Charges were laid on September 24, 2013. Mr. Q entered guilty pleas on March 24, 2014, and on the same date the psychological assessment was ordered. [ 28 ] The assessment was filed with the court on January 26, 2015. [ 29 ] The matter was in court on October 7, 2015, for facts and sentencing. At that time, the Court had the benefit of an affidavit filed by Julie Bedford [the Bedford Affidavit] which addressed the steps taken by Defence counsel to follow up on the recommendations in the assessment and obtain sexual offender treatment for Mr. Q.

The Bedford Affidavit is attached as Appendix A to these reasons for judgment. [ 30 ] Let me start by saying that Defence counsel are to be commended for the efforts made on behalf of the client. [ 31 ] While I will not review in detail the contacts made in an effort to access treatment for Mr. Q as they are set out in detail in the Bedford Affidavit, contacts were made at all levels of the health system, including out of territory contacts and community contacts.

[ 32 ] The psychiatrist who completed the assessment was contacted to see if he could provide treatment, but he was not able to do so. He made inquiries at the Centre for Addictions and Mental Health [CAMH] in Toronto, but was unable to find someone able to provide the treatment. Psychiatrists in the south were canvassed to see if they could provide treatment via tele-health, but none were able to. Inquiries were made at the community level to see what resources were available. General counselling was available, but sexual behaviour counselling was not.

Also, there were concerns about providing counselling via tele-health. [ 33 ] Ultimately, the advice received was that there is no treatment available for Mr. Q. [ 34 ] Given the information provided in the Bedford Affidavit, the Court felt it important to provide the Government of Nunavut [the Government] with an opportunity to respond.

On January 26, 2016, the Deputy Ministers of both the Department of Health and the Department of Justice were provided with the Bedford Affidavit and an Order of the Court which invited representatives from the Government to either file affidavit evidence or to appear to give evidence in response to the Bedford Affidavit. [ 35 ] On February 5, 2016, the Government replied by declining the opportunity to respond. [ 36 ] I am now required to impose a fit and proper sentence on a youthful offender whose prospects for rehabilitation are good provided the appropriate interventions take place at this early stage.

Under such circumstances the sentencing decision should emphasize rehabilitation as that is in the best long term interests of both the offender and the community. [ 37 ] However, I am advised that there is no treatment available. Essentially, what we have accomplished through the court process is to simply diagnosis and label a problem, but nothing further.

The situation is similar to having a medical doctor diagnose a broken leg, recommend a cast, and then not have the resources available to put on a cast. [ 38 ] Significant resources and money were expended at the assessment stage of the process, all of which is futile if there cannot be follow-up and treatment. [ 39 ] The consequences of this are significant for both Mr. Q and for society. Mr. Q wants treatment and wants to stop the offending behaviour. Left untreated, he is at moderately high risk to reoffend.

There may be more victims, who will have their own trauma to deal with and may or may not be able to access counselling. If Mr. Q reoffends, the assessment he underwent will be used not to provide him with appropriate treatment, but to argue that he is a diagnosed, untreated sex offender who, because he is untreated, poses a significant threat to the public. [ 40 ] When one considers that Mr. Q’s circumstances are not unique, the long term consequences to our society are dispiriting. V.

CONCLUSION [ 41 ] At the end of the day I must attempt to craft an appropriate sentence with the tools available to me. [ 42 ] The Defence argues that Mr. Q has been on strict conditions for 2.5 years and that there have been no breaches and, in particular, no offending sexual behaviour. She submits that the assessment attempts to predict future behaviour, but that the Court has the benefit of 2.5 years of actual behaviour, which is a more compelling predictor of future behaviour.

There is some merit to this submission. [ 43 ] I am unable to impose a rehabilitative sentence because of the lack of treatment options as discussed. [ 44 ] I must consider the aggravating features of the break and enters and the fact that they were a significant invasion into the sanctity of the victims’ homes under circumstances that must have been frightening.

[ 45 ] In mitigation, there has been a guilty plea to the offences. In addition to sparing the victims from having to testify, a guilty plea is also an indication that Mr. Q accepts responsibility for his conduct and is remorseful. [ 46 ] The sentencing options available to me are somewhat restricted. One option is to impose a period of custody. Another option is to impose a period of probation. The option of imposing a jail term to be served in the community, which would give Mr.

Q the opportunity to further demonstrate his ability to not engage in criminal behaviour, is not available to me. [ 47 ] The sentence is as follows: a. On each of the break and enters, 90 days custody, to be served concurrently; b. On the breach of undertaking, 30 days custody to be served consecutively; c.

On each of the breaches of probation, 15 days, to be served concurrently. [ 48 ] The total jail sentence is 120 days. [ 49 ] This is to be followed by 18 months of probation with the statutory conditions and the following additional conditions: a. to report to the probation officer within 5 days of release from custody and thereafter as directed; b. to take such counselling as directed by the probation officer including sex offender treatment; c. to have no contact directly or indirectly with the victims of the break and enters and not to attend at those residences. [ 50 ] The victim of crime surcharge of $800.00 is mandatory.

There will be 12 months to pay. [ 51 ] The break and enters are primary designated offences so there will be a DNA order. Dated at the City of Iqaluit this 26th day of February, 2016 ___________________ Justice S. Cooper Nunavut Court of Justice Appendix A (Please see .PDF version for the Appendix document)