R. v. R.W., 2021 NUCJ 29

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. R.W., 2021 NUCJ 29 Date: 20210615 Docket: 11-20-102 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: R.W. ________________________________________________________________________ Before: Chief Justice Sharkey Counsel (Crown): S. Stakiw Counsel (Accused): M. Manocchio Location Heard: Iqaluit, Nunavut Date Heard: June 15, 2021 Matters: Sentencing 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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. I. OVERVIEW [ 1 ] RW is a 24-year-old single Inuk male. He has no prior criminal record. He pleaded guilty to having sexual intercourse with an underage female, a 14-year-old girl.

He has a history of mental health issues. [ 2 ] The Crown Attorney requested a jail term of two (2) years less one (1) day which would allow RW to serve his time in Nunavut. Defence Counsel requested a sentence of 15 months jail. [ 3 ] I sentenced RW to 15 months imprisonment, to be followed by one (1) year probation. He will also be required to take mental health counselling which is available in his community. II. PROCEDURAL BACKGROUND [ 4 ] RW has pleaded guilty to one (1) count of sexual interference with a person under the age of 16 years, contrary to

section 151 of the Criminal Code . [ 5 ] The offence occurred on 08 September 2020 in RW’s home community. RW has been on remand at Baffin Correctional Center (BCC) and Makigiarvik since that time.

[ 6 ] Recently, in late May 2021, RW contracted COVID-19 while in custody and was placed in an isolation unit for 14 days. He has since recovered. [ 7 ] RW has a troubled mental health history, and his case was delayed last fall so that he could be examined to determine if he was fit to stand trial. Eventually, he was found fit and the case continued. [ 8 ] RW was represented by several lawyers before February 2021 when his current counsel took over.

RW entered his guilty plea on 15 March 2021 and a Pre-Sentence Report (PSR) was ordered. [ 9 ] Last week, on 04 June 2021, an Agreed Statement of Facts and Victim Impact Statement were filed, and I heard submissions of both Crown and Defence. I then adjourned the passing of sentence until today, 15 June 2021. [ 10 ] In addition to the PSR, I have been provided with RW’s most recent psychiatric assessments, as well as mental health assessment notes from RW’s case worker at BCC. III. THE OFFENCE [ 11 ] The offender, RW, is 24 years old. He was 23 last year when the incident took place.

The victim, LA, was 14 years old at the time. RW lives with JW, his 17-year-old stepbrother. LA is JW’s girlfriend. [ 12 ] On the morning of 08 September 2020 RW and JW were at home, along with LA, who was visiting JW. LA went to sleep in a bedroom. Shortly thereafter her boyfriend JW left the house to get a coffee. [ 13 ] While JW was away RW entered the bedroom where LA was sleeping and woke her up. He then proceeded to remove her pants and underwear and had sexual intercourse with her.

LA later told the police she felt scared and violated. [ 14 ] When JW returned he found RW having sexual intercourse with LA: he got angry and kicked RW out of the house. RW then flagged down a passing RCMP vehicle and told the officer he had done something wrong and needed to be arrested. [ 15 ] The officer told RW to wait back at his house and police would attend. When police got to the house RW told them he had ‘raped a girl’ and invited them to go into the house and ask his stepbrother, JW, what had happened. By this time, the victim, LA, had left. [ 16 ] Police investigated.

RW was taken into custody, and LA was required to attend at the Health Center for examination. The next day RW was questioned further and gave a statement admitting what he had done. The police also arranged for the attendance of a mental health nurse. RW was then remanded into custody, where he has been since. [ 17 ] There is nothing in the stipulated facts provided by counsel which tells me whether this was a case of unprotected sex or whether RW used a condom. IV. THE VICTIM IMPACT STATEMENT (VIS)

[18] LA’s mother provided a victim impact statement on her daughter’s behalf. The mother described how LA was severely traumatizedand withdrawn from family activity in the weeks following the incident. LA and the offender’s stepbrother, JW, now have a babytogether, and LA’s mother says that this has allowed LA to ‘turn her life around’ for the good. [19] The law recognizes, as do I, that LA’s psyche will be impacted for the rest of her life because of what RW did. V. THE OFFENDER [20] RW is a 24-year-old single Inuk male. He has no previous criminal record.

He lives with his stepbrother JW, and sometimes withhis other brothers. He was adopted out as a child. RW’s adoptive father moved to Ottawa many years ago. His adoptive mother wasmurdered in 2017. [21] RW was bullied in school and quit after grade 10. He intentionally shot himself in the hand with a .22 calibre rifle when he was 16,but he says this was the only time that he resorted to any form of self-harm. [22] RW has a complicated mental health profile. The psychiatric reports show symptoms of schizophrenia and other psychosis whichare exacerbated by his frequent use of cannabis.

He has been prescribed medication but has been reluctant to stay on a medication plan. [23] He is not, however, cognitively impaired, and generally gets along well with the doctors and other mental health professionals whohave cared for him. The reports indicate that he does not pose any serious risk of harming himself. And I am told as well that he has beentaking medication on a regular basis while in custody. [24] Despite these mental health troubles RW has been able to lead a productive life.

He has had two (2) relationships with youngwomen his own age, and since leaving school has worked at a mine and a gas station. [25] At the time of his arrest RW had been working for the past two (2) to three (3) years as a dishwasher in a hotel. He is confident hecan resume this employment after release. [26] RW is also active on the land; he has access to his aunt’s snow machine and goes out hunting with others as often as he can. [27] RW uses cannabis almost daily but does not drink alcohol. VI. THE POSITION OF THE PARTIES A.

Crown [28] The Crown recommends a sentence of two (2) years less one (1) day to be served in a Nunavut territorial facility. [29] The Crown relies on the recent case of R. v. Kolola, 2020 NUCJ 38 , for the proposition that the appropriate range ofsentence for a case such as this is between 36 to 60 months of imprisonment. However, the Crown says it has considered RW’s previoushistory of mental health challenges in suggesting a sentence of 2 years less one (1) day. [30] The Crown says that such a sentence accords with recent direction from our Supreme Court in the case of R. v.

Friesen, 2020 SCC9 calling for an increase in sentences for sexual offences against children. In this regard the Crown points out the prevalence of sexualoffences against children in Nunavut which are ten (10) times the national average.

[ 31 ] The Crown notes that it is an aggravating factor that this case involves full sexual intercourse and thus the impact on the victim as well as on her family will be long lasting. [ 32 ] The Crown also notes that the age of the victim in this case is a statutory aggravating factor pursuant to

section 718.2 (a) (ii.1) of the Criminal Code . [ 33 ] Further, the Crown directs me to sections 718.01 and 718.04 which require that I give primary consideration to the sentencing objectives of denunciation and deterrence because of the victim’s age and because she is particularly vulnerable as an Indigenous female. [ 34 ] The Crown also suggests that a period of probation between 12 and 18 months should follow the jail term. B.

Defence [ 35 ] The Defence agrees that probation should follow any jail term and that RW could benefit from mental health counselling which is available in his community. [ 36 ] The Defence, however, suggests that a sentence of 15 months incarceration is an appropriate penalty. [ 37 ] In mitigation of sentence Defence Counsel notes her client’s guilty plea, his mental health struggles, and the fact he reported his own crime and co-operated with the police in their investigation. [ 38 ] Defence Counsel acknowledges the violence inherent in the act of penetrative sex but notes that this case did not involve any additional or gratuitous violence on her client’s part. [ 39 ] I note that both Crown and Defence agree that enhanced remand credit at the ration of 1.5 -to- 1 days in custody is appropriate. [ 40 ] Defence Counsel also suggests the fact that RW contracted COVID-19 while in custody should be considered in assessing the length of the jail term separate and apart from any remand credit. [ 41 ] Defence Counsel also notes specific Gladue factors which present in this case - namely, the fact that RW left school because he was bullied; that he lost his mother to murder; and that he harmed himself as a teenager.

VII. ANALYSIS [ 42 ] I must impose a sentence which holds RW accountable for his crime and which serves to denounce the crime he has committed. I must also impose a sentence which will deter RW as well as others from deciding that they can simply have their way with children. [ 43 ] The principle of restraint requires that I impose only as much jail as is necessary, particularly since RW has no criminal past. [ 44 ] RW’s moral culpability in committing this offence – in violating the sexual integrity of a child – is high. I agree with Defence Counsel that RW’s offence was opportunistic.

However, the overriding principle which must be emphasized in cases like this is that any sexual abuse of a child is inherently predatory – full stop. [ 45 ] The fact that RW reported the crime to police himself and spared the victim the stress and anticipation of testifying by pleading

guilty speaks positively in terms of prospects for rehabilitation. [46] I am of the view as well that since RW has never previously spent any time in jail, that his experience in custody awaiting trial is asignificant deterrent to ever repeating this type of behavior. This deterrence was undoubtably magnified when he contracted COVID-19while incarcerated awaiting his sentence. [47] I have said on many occasions that the sentencing objectives of denunciation and deterrence and rehabilitation may seem at oddswith each other.

However, they both have the same objective – namely, to allow the judge to craft a sentence which best promotes a safeNunavut. [48] I am required in this case to give primary consideration to denunciation and deterrence in assessing the appropriate penalty.Similarly, I have been given direction by our Supreme Court that sexual offences involving children must attract sentences which aremore reflective of society’s disgust for these types of crimes. [49] In this case I am of the view that a sentence of more than the one (1) year mandatory minimum penalty will satisfy theserequirements. [50] I must also in this case consider

section 718.2 (

e) of the Criminal Code and I must apply both the letter and spirit of these remedialprovisions as directed by the Supreme Court in R. v. Gladue, (SCC), [1999] 1 SCR 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433. [51] I must incorporate Gladue principles into my determination of the ultimate sentence. This does not mean that RW is somehowentitled to a sentencing discount.

Rather, it means that I must take an individualized approach in assessing the appropriate sentence – inthis case, the amount of jail time. [52] I must address the principle of parity, that the sentence imposed for this offence, be similar to other sentences imposed on similaroffenders under similar circumstances.

In this regard, both counsel provided me with precedents from other cases of a comparable nature.These cases, while ultimately distinguishable on a few factors, provided some useful guidance in fixing the appropriate sentence in thiscase. [53] Parity is unquestionably important: however, it does not stand alone in the sentencing analysis. It must fit into a nuancedassessment which focuses on the individual before the Court. This is particularly the case where, as here, the prospects for the offender’srehabilitation are good. (See R. v. Nookiguak, 2005 NUCJ 16 ; See also, R. v.

Menicoche, 2016 YKCA 7 ) [54] The sentences imposed in other cases are an abstract. They are often useful in understanding the fit and proper sentence that awaitsa defendant on sentencing. However, I have only this offender, RW, before me to be sentenced. [55] I do not share the Crown’s reliance on R v. Kolola supra that an appropriate range of sentence for this case is a federal penitentiaryterm of between 36 and 60 months. In particular, and because RW has no criminal history, I prefer to rely upon R v. Nookiguak, supra insupport of a territorial sentence.

The Crown’s submission for a sentence of two years less a day is both fair and firm. However, in myview the Defence submission hits the profile of this offender on the mark precisely. [56] Accordingly, I sentence RW to 15 months imprisonment. This will be followed by a period of probation for one (1) year with acondition that RW take mental health counselling as directed, and refrain from initiating any contact with the victim LA.

There will alsobe a requirement that RW provide a DNA sample and register with the sex offenders program. [57] In terms of the time remaining to be served, I make the following calculation: the 15 month sentence represents 450 days ofimprisonment; this amount is reduced by the time which RW has spent on remand since last September: this actual time served is 280days, which at a credit ratio of 1.5 to 1 for each day served leaves a remand credit of 420 days; this 420 days is deducted form the 450day sentence imposed; thus, the net sentence moving forward which RW will serve is 30 days imprisonment.

Dated at the City of Iqaluit this 15th day of June 2021 ___________________ Chief Justice N. Sharkey Nunavut Court of Justice