R. v. J.N., 2015 NUCJ 22

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. J.N. , 2015 NUCJ 22 Date: 20150806 Docket: 12-10-9; 02-10-11 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: J.J.N. ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): B. McLaren; M. Girard Counsel (Accused): S. Kert; J. Bedford Location Heard: Iqaluit, Nunavut Date Heard: July 24, 2015 Matters: Criminal Code, s. 145(3) ; s. 271 ; s. 348(1) 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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 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. THE FACTS 4 A. The sexual offences 4 B. The break and enter and commit aggravated assault and breach of undertaking 4 III. ANALYSIS 6 A.

Aggravating offence characteristics 6 B. Mitigating offence characteristics 10 C. Mitigating factors related to the offender 10 D. Mitigating factors arising after the commission of the offences 12 E. Jurisdictional considerations 15 VI. CONCLUSION 17 A. Sentence calculation 17 B. Ancillary orders 22 I. INTRODUCTION [ 1 ] Mr. J.N. has entered guilty pleas to two indictable sexual assaults, one count of break enter and commit aggravated assault, and one count of breaching his undertaking. He is now to be sentenced for these offences.

II. THE FACTS A. The sexual offences [ 2 ] On April 30, 2010, two ten year old female children, AB and CD, are playing inside a house in Community X. Mr. J.N. is staying at this house with his parents. AB and CD enter Mr. J.N.’s bedroom. The children want to play videogames. AB is related to Mr. J.N.. AB is Mr. J.N.’s cousin. [ 3 ] Mr. J.N., then twenty three years of age, starts to fondle AB’s buttocks and vagina over top of her clothing. He attempts to take off AB’s pants. AB resists and shouts for help from another adult who is known to be in the house. No help comes. The other adult is asleep.

AB runs out of the bedroom leaving CD alone with Mr. J.N.. [ 4 ] Mr. J.N. then turns his attention to CD. He starts to fondle CD’s vagina and buttocks over top of her clothing. After some time he removes CD’s pants and briefly penetrates the child’s vagina or anus with his penis. There is some bleeding. [ 5 ] Mr. J.N. is sober when these events occur. [ 6 ] Following his arrest on these allegations in May 2010, Mr. J.N. authors and signs an apology letter to the child victims. This letter says: “I’m sorry about what I did. I apologize. I will never do this again and I will prevent it.

I shouldn’t have done that and please forgive me. God bless you all.” B. The break and enter and commit aggravated assault and breach of undertaking [ 7 ] Subsequent to his release on an undertaking (Court Exhibit S-8) in relation to the two sexual assault complaints, Mr. J.N. again comes to the attention of the authorities. [ 8 ] In the morning of May 23, 2010, Mr. J.N. is berated by his mother. The verbal harangue triggers in Mr. J.N. some distant memories of being bullied by J.N.. J.N. is related to Mr. J.N.. He too is a cousin. There have been two physical altercations between Mr.

J.N. and J.N. in the year immediately preceding the commission of this offence. J.N. is 25 years of age. [ 9 ] Mr. J.N. leaves the house in a rage. He picks up an axe from his father’s shed and heads for J.N.’s house. Mr. J.N. wants to kill his former tormentor. [ 10 ] The door to J.N.’s house is locked. Mr. J.N. kicks it in. He enters the house. He finds J.N. asleep on a bed in one of the bedrooms. There is a brief verbal confrontation. Mr. J.N. starts swinging the axe. J.N. tries to defend himself with little success. J.N. sustains a defensive wound to his hand. Two more blows follow in quick succession.

J.N. is struck twice in the head with the axe. There is much blood loss. Mr. J.N.’s rage dissipates quickly after the third blow is delivered. He decides that wounding his cousin is sufficient revenge. He breaks off his attack and leaves the residence. [ 11 ] J.N.’s grandmother is in the house when this attack occurs. She sees Mr. J.N. inside. She hears a disturbance. She hears J.N. cry out. Seconds later she hears her grandson crying. On entering the bedroom she finds J.N. in a very distressed condition. The head injuries are grave. [ 12 ] J.N. is medically evacuated from Community X to Iqaluit.

From Iqaluit he is evacuated to Ottawa where he undergoes emergency brain surgery to correct a large depressed skull fracture. A piece of skull is removed to allow removal of dead brain matter and to relieve pressure on the brain caused by swelling. J.N. remains in hospital for approximately two weeks.

[13] Exhibits filed in this proceeding (Court Exhibit S-3) include photographs of the injuries sustained by J.N. together with post-operative medical reports. To this day, J.N. continues to suffer from the physical and psychological injuries sustained in the attack. Hispersonality has changed. His quality of life has been affected. This is reflected by a victim impact statement authored by J.N. and byfollow up neurology/medical reports and reports from a consulting psychologist. [14] Mr. J.N. turns himself in to the RCMP.

He cooperates with the investigating authorities and assists in the recovery of the axe. [15] When this latest offence is committed, Mr. J.N. is bound by an undertaking (Court Exhibit S-8) that had been imposed a monthearlier in relation to the two sexual assaults. A fundamental condition of this release process was a condition requiring Mr. J.N. to keepthe peace and be of good behavior. In committing the break and enter offence Mr. J.N. is in willful breach of this release process. III. ANALYSIS A. Aggravating offence characteristics (

i) The sexual offences [16] This Court reiterates what it said in the case of R v DeJaeger, 2015 NUCJ 2 , 2015 NUCJ 02, 2015 CarswellNun 4[DeJaeger], at paragraphs 122 to 129: [122] A child’s immaturity and lack of sophistication leaves the child very vulnerable to exploitation by others, particularly adults. Thelimited strength, size, and physical endurance of the child limits the child’s ability to defend against sexual abuse. The child is easy tooverwhelm physically. The child is easy to overwhelm emotionally. The younger and smaller the child, the more vulnerable he or shebecomes.

The moral culpability of an adult who exploits this vulnerability for reasons of personal sexual gratification is extremely high. [123] Adolescents are emotionally fragile. For a child victim of sexual abuse, the potential range of impacts can be as broad as they canbe severe. The child’s sense of self respect, their ability to trust and bond with others, and their sexual identity are all things that areeasily damaged. As the sexual violence increases in severity, or where sexual victimization is prolonged or repeated, the psychologicaldamage associated with this form of violence is likely to be enhanced.

Sexual violence to an adolescent can be expected to leave a trail ofdamage and destruction in its wake. This damage can last a lifetime. [124] This psychological harm may manifest itself in depression and self-destructive behaviour later in life. It may fuel substance abuseand addiction as the child turns to alcohol and drugs in an effort to dull the pain. This damage may generate intense anger andinterpersonal conflict with others. With loss of self-respect, there is an enhanced risk of suicide and self-harm. [125] Mistrust of others is usually an enduring legacy of child sexual abuse.

Once lost, a child’s trust in adults will be difficult to recover.This mistrust may cause the child to withdraw socially from those around them, particularly other adults. The victim’s ability to formmeaningful intimate relationships with others later in life may be compromised. A close relationship may become much more difficult toachieve…. [127] The child’s limited communication skills and comprehension may limit the therapeutic intervention that is available to undo theharm caused by sexual abuse.

Psychotherapy and other forms of counselling will become increasingly less effective as the age andsophistication of the victim decreases. The very young may not be positioned to participate in this process due to their limitedcomprehension and communication skills. [128] Remedial processes to assist victims are further complicated for unilingual Inuk children who must participate in the processthrough an interpreter.

The expertise necessary to address sexual victimization of very young Inuit is not available in Inuktitut. [129] Many of Nunavut’s remote arctic communities lack the therapeutic expertise needed to address the special needs of the child

victim of sexual abuse. Effective therapeutic intervention will likely require removal of the child to a distant centre at prodigious public expense. The victim’s life and the life of the victim’s immediate family will be disrupted by this. The remedial processes may themselves become may themselves become a source of stress and additional trauma for the young. [ 17 ] For all the reasons outlined above, the deliberate removal of clothing and subsequent penile penetration of the child CD by Mr. J.N. propel this particular offence to the highest level of moral culpability.

The Court can do no better than to repeat again what it said in DeJaeger at paragraphs 130 to 134 : [130] Growing recognition of the tragic human consequences associated with this type of crime has caused a shift in sentencing jurisprudence over the last two decades. This jurisprudence now requires the Court to put special emphasis upon the sentencing principles of denunciation and deterrence when addressing sexual offences against children. This approach was established in common law jurisprudence long before Parliament chose to codify this principle by enacting

section 718.01 of the Canadian Criminal Code, RSC 1985, c C-46 [ Criminal Code ], in 2005. [131] While rehabilitation remains an important goal of sentencing in this case, as in any other, deterrence and denunciation must remain the primary or paramount consideration of the sentencing court.

This is necessary to properly reflect both the vulnerability of this class of victim and the very real potential for such offences to cause significant psychological harm to the young. [132] The high moral blameworthiness associated with this type of offence lies in an offender’s willful assumption of the risk of causing such harm. This moral culpability does not turn on whether harm is actually caused or not. Where actual harm is established, it is a seriously aggravating feature.

The absence of harm cannot reduce the offender’s moral blameworthiness because the risk of causing harm to a child by these offences is always present. [133] Denunciation is necessary to preserve and protect the fundamental social values that are infringed by this type of criminal behaviour…. [134] Children need the law’s protection. The child or adolescent lacks both the physical means and the sophistication needed to adequately protect themselves from predatory adults.

A deterrent sentence becomes necessary to protect a vulnerable class of victims from those who are prepared to risk harming others in order to satiate their own selfish sexual desires.

This protection is to be achieved, at least in part, through the imposition of exemplary sentences that deter other like-minded individuals from pursuing this same course of action. [ 18 ] The victim impact statements filed by AB (Court Exhibit S-4), CD (Court Exhibit S-5), and CD’s mother (Court Exhibit S-6) suggest that these children’s lives have been, and continue to be, affected by their memory of these unfortunate events. [ 19 ] There is no real evidence to suggest that Mr. J.N. held a position of trust in relation to these children.

There is nothing to suggest that, at any time, he exercised any parental or supervisory authority over the children in this home. There is no suggestion that any threats were made by Mr. J.N. to ensure that the child victims remained silent. [ 20 ] The child victims were staying in a residence shared by Mr. J.N. and his parents. There is no evidence to suggest that Mr. J.N. had any role in luring the children into his bedroom. Nor is there any evidence to suggest that Mr.

J.N. groomed the children in preparation for these attacks. [ 21 ] The two sexual offences before the court appear to be spontaneous and opportunistic, not planned or premeditated. (ii) The break and enter and commit aggravated assault [ 22 ] This was a home invasion. The forced entry into a residence by Mr. J.N. was done with the express intention of harming an occupant of the home who was expected to be found inside. The attack that followed Mr. J.N.’s entry into the home was thus

premeditated. A weapon was first obtained for the purpose of either killing or inflicting grievous bodily harm on J.N.. The weapon of choice was capable of achieving either objective. Mr. J.N. had some time for his anger to cool as he walked towards J.N.’s residence. He had time to think better of what he intended to do, yet he persisted. [ 23 ] J.N.’s grandmother can also be counted as a victim of this offence. She was exposed to the sounds of her grandson being attacked. In the aftermath of the violence, this Elder was exposed to her grandson’s trauma.

She was undoubtedly traumatized by what she saw and heard. [ 24 ] This was not a fair fight. The victim was vulnerable. He had no weapon. He was attacked while lying in his bed. There is no evidence to suggest that J.N. had any opportunity to block the blows of the axe with anything other than his hand before being struck in the head. [ 25 ] The result of this violence was catastrophic. The victim has suffered, and will likely continue to suffer, from the physical and emotional trauma associated with his injuries for years to come. His life will never be the same.

This is demonstrated in part by J.N.’s victim impact statement (Court Exhibit S-7) and the various reports contained in Court Exhibit S-3. B. Mitigating offence characteristics (

i) The sexual offences [ 26 ] The Court is unable to identify any mitigating offence characteristics. [ 27 ] There is no evidence to suggest that Mr. J.N. was in any way mistaken about the nature and quality of the acts that he had perpetrated. He was sober. He knew what he was doing. He knew that involving children in sexual activities was both legally wrong and morally reprehensible. His letter of apology reflects this. (ii) The break and enter and commit aggravated assault [ 28 ] This offence falls at the very high end of moral culpability.

There are no mitigating factors associated with this offence. [ 29 ] Mr. J.N. was sober. There is no suggestion that J.N. in any way provoked this offence. There can be no claim that this was

an act taken in self-defence. C. Mitigating factors related to the offender [ 30 ] Mr. J.N. is now 28 years of age. He was 23 years of age when these offences were committed. He has no criminal record. [ 31 ] Mr. J.N. suffers from a number of cognitive deficits. Testing done by the Nunavut Corrections [Corrections] psychologist, Doctor Podmoroff, suggests that while Mr. J.N. has non-verbal performance skills that are average, his language skills fall into the mentally deficient range. He has very limited command of English. Mr. J.N. is functionally illiterate. [ 32 ] While Mr.

J.N. has achieved a Grade 9 education, his academic abilities fall well below this grade level. Mr. J.N. reads at a Grade one level. For sentence comprehension, Mr. J.N. scores at a level associated with kindergarten. For spelling he is rated at a level associated with Grade 2. Dr. Podmoroff indicates that this type of finding is not uncommon in Nunavut. Mr. J.N. is the product of an education system that until recently was driven by social promotion and not academic performance.

[ 33 ] The overall spread of scores achieved through the testing administered by Dr. Podmoroff is nonetheless described as being unusual, and possibly indicative of underlying neurological problems. Such a finding has not been confirmed, however. This requires further medical testing to diagnose. This testing is beyond the expertise of the Corrections psychologist. [ 34 ] At a young age, Mr. J.N. was the victim of a sexual assault. The Court has been given few details of the intrusiveness of this assault or its impact upon Mr. J.N.. [ 35 ] Mr. J.N. is of Inuit descent.

The Court is required to factor into its analysis systemic factors that have led Aboriginal citizens in this country to become marginalized, disadvantaged, and over represented in the criminal justice system’s prisons. The Court has done so. [ 36 ] Mr. J.N.’s primary language is Inuktitut. He knows little English. He has acquired the on-the-land skills long-practiced and revered by the Inuit. These skills are central to the Inuit’s sense of cultural identity. Mr. J.N. has grown up in a very isolated and remote arctic community where wage employment is very limited.

Opportunities for advancement, given the quality and extent of his education, are few. Mr. J.N. has taken advantage of what few employment opportunities have become available to him in Community X. [ 37 ] Mr. J.N. has the full support of his family. His mother is the Chair of the local justice committee. The Justice Committee is prepared to work with Mr. J.N. when he is released from custody and assist with his reintegration into the community. D.

Mitigating factors arising after the commission of the offences [ 38 ] The guilty pleas to these various offences are entitled to significant weight in mitigation of sentence. There are two reasons for this. Such a position encourages offenders to accept responsibility for their misdeeds. This also recognizes the great benefits associated with relieving complainants of their obligation to testify. [ 39 ] The trial process requires witnesses to relive their experiences in a public setting. Witnesses are subjected to close examination by lawyers. The reliability or credibility of their evidence is often challenged.

Raw emotions are exposed by this. There is great anxiety, humiliation, and anger generated by this truth finding process. Testifying in a trial environment can exacerbate old trauma and create new trauma. This is particularly true of children who are required to testify and relive traumatic events that they have experienced. It is also true of many adult witnesses who may struggle with post-traumatic stress long after a frightening or violent experience has passed. [ 40 ] The guilty pleas in this case are accompanied by genuine remorse. The letter of apology written by Mr.

J.N. to his young victims speaks to this. [ 41 ] Mr. J.N. has acquired credit for pre-trial detention that must be applied in mitigation of sentence. [ 42 ] Mr. J.N. has experienced significant delay as a result of repeated turn-overs in the lawyers representing him. His first lawyer withdrew from the file as a result of Mr. J.N. asking to be represented by Mr. A. Mahar. Mr. Mahar was later appointed to the bench necessitating the appointment of another lawyer. Mr. P. Harte then took over, only to leave the territory and the file months later. Only then did Mr. J.N.’s present counsel assume carriage of the file.

Further delay was caused by a decision to seek the expert opinion of forensic psychiatrists in relation to Mr. J.N.’s state of mind during the commission of the break and enter. [ 43 ] As of August 6, 2015, Mr. J.N. will have been in pre-trial detention for a period of 1,902 days. This amounts to 5.21 years of actual custody. Crown and Defence urge the Court to apply credit for this time at the rate of 1.5 days for each day of actual serving time. Most of Mr. J.N.’s pre-trial detention has been served at the Baffin Correctional Center [BCC]. Conditions at this facility are deplorable.

An enhanced rate of credit is warranted to compensate for these conditions. [ 44 ] Using this formula, the total time to be credited to Mr. J.N. for pre-trial detention as of the date of this judgment stands at 2,853

days. [ 45 ] Mr. J.N. is also entitled to substantial consideration for his active involvement in programming during his stay in pre-trial detention. He has participated in all programs made available to him while in BCC. He has completed a low intensity 10 week program in sexual offending offered by Dr. Podmoroff. He has completed a program of anger-management. He has been engaged in educational upgrading. He has received counselling from elders. [ 46 ] Mr.

J.N.’s demonstrated motivation for treatment ultimately resulted in his transfer to the Rankin Inlet Healing Facility where he continued to participate in remedial programming to address his many issues. [ 47 ] The reality in Nunavut is that many forms of remedial counselling and treatment are not available in the communities. Specialized training is needed to address sexual offending, domestic violence, mental health issues, and drug and alcohol dependencies. Many other jurisdictions in Canada offer specialized programming for sex offenders and domestic violence that is community based.

Most jurisdictions have some form of residential treatment available for serious drug and alcohol dependencies. [ 48 ] Nunavut’s Community Corrections [Community Corrections] does not offer any form of treatment for sex offenders at the community level, despite a very high per capita incidence of this type of offending. There are no specialized relapse prevention programs. Rankin Inlet is the only community in Nunavut that offers a dedicated treatment program for domestic violence.

This program is not run by Community Corrections. [ 49 ] Community Corrections has neither the funding nor the capacity to deliver these specialized treatment programs at the community level. In Nunavut, beleaguered social workers and probation officers in the communities are tasked to take on the additional burden of providing the counselling and follow up needed to address these serious issues. Though well intentioned, these community workers are not positioned to provide the specialized therapy needed to address these issues.

They have neither the time given their large caseloads nor the expertise needed to be effective. [ 50 ] The high recidivism rate in Nunavut is driven in part by the absence of viable treatment options available to citizens in the communities. In the absence of community based treatment options, probation orders can have little impact on the lives of disadvantaged and dysfunctional citizens who come before the court needing help.

Where offenders continue to reoffend, gaol becomes the only viable option open to the court to protect the public. [ 51 ] The funding needed to access specialized treatment programs outside Nunavut is under the control of a different government department. The Nunavut Department of Health does not consider itself bound by court orders for specialized treatment outside the territory.

This is particularly true for orders requiring offenders to take and successfully complete residential treatment programs for drug and alcohol dependencies as a condition of probation. [ 52 ] The Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code], and the Controlled Drugs and Substances Act, SC 1996, c 19 , was amended some years ago to allow a court to adjourn sentencing in order to facilitate an offender’s attendance at government approved treatment programs. Mandatory gaol sentences for certain types of offences can then be avoided in circumstances where offenders complete these approved programs.

The Government of Nunavut has yet to designate or approve any programs in Nunavut, or elsewhere, under these provisions of the Criminal Code. [ 53 ] The court has had to adjust its sentencing posture to reflect the stark realities of Nunavut. By ensuring that a sentencing benefit is afforded to those citizens who take advantage of programming, programming that is only available to those in custody, the court seeks to encourage participation in remedial programming by all inmates. Some programming in custody is better than none at all. E. Jurisdictional considerations (

i) The sexual offence [ 54 ] The prevalence of a particular type of crime is relevant to the need for emphasis on general deterrence as a sentencing principle.

[ 55 ] Nunavut leads the country in the per capita rate of commission of sexual offences. This is also true of sexual offences committed by adults on children. This type of crime remains a persistent and pressing problem in all of Nunavut’s communities. The information presented below is based on a review of the comparative information collected by Statistics Canada in their Incident-Based crime statistics.

As in DeJaeger : [173] Produced below are graphs that starkly demonstrate the alarming incidence of sexual violence generally and sexual violence against children in Nunavut that compare Nunavut's crime rates to the rest of the country and the northern territories. […] [176] Children are victimized in Nunavut at a much greater per capita rate in comparison to Canada as a whole. [ 56 ] The high incidence of sexual offences generally and crimes against children in particular requires a firm response by a sentencing court in Nunavut.

The need to emphasize general deterrence through an exemplary sentence is enhanced under these circumstances. (ii) The aggravated assault and home invasion [ 57 ] Nunavut also leads the country in its per capita rate of serious violent crime generally .

Summary Chart of the 2014 Crime Severity Index Table [ 58 ] Serious violent crimes in Nunavut also merit a firm response from the court. The sentencing principle of proportionality demands this. Denunciation and deterrence must be stressed in a jurisdiction where this type of violence is becoming commonplace. VI. CONCLUSION A. Sentence calculation [ 59 ] Without adjusting for totality, and taking into account both the guilty plea and Mr. J.N.’s remorse, a sentence of 4 years gaol would be appropriate for the rape of the 10 year old child CD.

A consecutive sentence of 6 months would be appropriate for the fondling of AB, taking into the account the lower level of severity of this offence. [ 60 ] The home invasion and aggravated assault would ordinarily merit a consecutive sentence of 8 years custody, with a further consecutive term of two months for the associated breach of undertaking. [ 61 ] If this sentence of 12 years and 8 months (4,620 days) exceeds the overall moral culpability of this offender and his antecedents

then it must be reduced in accordance with the sentencing principle of totality. The end result must not only reflect the seriousness of these offences committed by this offender in this jurisdiction, but must also take into account Mr. J.N.’s relatively young age and lack of criminal history. All the evidence suggests that Mr. J.N. has significant potential for rehabilitation. The principle of restraint as codified in

section 718.2 (

e) of the Criminal Code must be considered and applied in these circumstances. [ 62 ] Mr. J.N.’s ongoing commitment to his rehabilitation while incarcerated tips the scale in terms of the overall length of sentence. But for the lack of criminal history and Mr. J.N.’s continuous involvement in programming, the sentence would have been longer. [ 63 ] Had Mr. J.N. been convicted of the offence of attempted murder, the sentence would likely have fallen well into the double digits. [ 64 ] The Court notes that while much progress has been already been made by Mr.

J.N. in programming, there is still much work to be done. Dr. Podmoroff testified that Mr. J.N. lacks real insight into his own sexual offending. This must be addressed prior to release. Mr. J.N. also needs to address his own history of victimization and the trauma flowing from this. Unless or until these issues are addressed, Mr. J.N. is said to be at moderate risk of reoffending. [ 65 ] The sex offender programming taken by Mr. J.N. at BCC was described as being low intensity. This was programming geared towards prevention.

It was not programming designed to address the specific therapeutic needs of the individual offender. High intensity sex offender programming is not available until an offender is sentenced. Therapists could not address Mr. J.N.’s own sexual demons until his guilt was formally acknowledged in court. Now that this has been done, the real therapy can begin. The Court recommends that Mr. J.N. be given intensive sex offender therapy prior to his release. [ 66 ] Dr. Podmoroff testified that Mr. J.N. would benefit from the trauma therapy provided through the Mamisarvik residential program in Ottawa.

The Court therefore recommends that Mr. J.N. be considered for early release to attend this program. In making this recommendation, the Court acknowledges that it is powerless to ensure that the Government of Nunavut follows through with the recommendation of its own Correctional psychologist. [ 67 ] In the end result, after applying the totality principle, Mr. J.N. is sentenced as follows: a. For the sexual assault of AB: 116 days custody; b. For the sexual assault of CD: 1,095 days custody consecutive; c. For the home invasion and aggravated assault of J.N.: 2,370 days custody consecutive; d.

For the breach of undertaking: 1 day custody consecutive; and, e. From this sentence of 3,582 days gaol (9.81 years) a credit of 2,853 days must be applied for Mr. J.N.’s extensive pre-trial detention. This leaves a balance of 729 days (two years less one day) gaol remaining to be served. This sentence will be served in a territorial custodial institution. [ 68 ] This sentence is broken down as follows: a. Sexual assault of AB - 28 days remaining to be served with a credit of 88 days for a total sentence of 116 days of custody;

b. Sexual assault of CD - 200 days remaining to be served with a credit of 895 days for a total sentence of 1,095 days of custody; c. Home invasion and aggravated assault of J.N. – 500 days remaining to be served with a credit of 1,870 days for a total sentence of 2,370 days of custody; and, d. Breach of undertaking – 1 day remaining to be served. [ 69 ] By the time Mr. J.N. is released from prison he will have spent almost a quarter of his natural life in custody. [ 70 ] The Court recommends that this sentence of imprisonment be served by Mr. J.N. at the Rankin Inlet Healing Facility. This will allow Mr.

J.N. to continue his healing journey. Programming at this facility can be provided in Mr. J.N.’s primary language of Inuktitut. [ 71 ] Pursuant to

section 743.21 of the Criminal Code , Mr. J.N. is prohibited from having any contact with the three named victims while serving this sentence of custody. [ 72 ] Following his release from custody, Mr. J.N. will be subject to a probation order for a period of three years. The conditions of the probation order will be as follows: Mr. J.N. must: a. Keep the peace and be of good behavior; b. Report to a probation officer within 7 days of his release from custody and thereafter report to and be under the supervision of the probation officer for the full duration of the probation order; c.

Take, and successfully complete, if directed by his probation officer, sex offender counselling, anger management counselling, and trauma counselling related to his own victimization; d. Have no contact directly or indirectly with any of the victims (except such contact as is approved in advance by the probation officer in writing); Any such contact must be consented to by the victims and must be supervised by a responsible adult (Some of the victims are related to Mr. J.N..

The exceptions built into this condition would allow for an attempt at offender/victim reconciliation with the possible involvement of the local Justice Committee); e. Not go within 50 metres of the victim’s residences; f. Have no unsupervised contact with any child under the age of 14 years. Any contact with a child under the age of 14 years must occur in the immediate presence of a sober adult; g. Not live (or over-night) at any house in which a child under the age of 14 years is resident; h.

Report to the Justice Committee of Community X as and when directed by his probation officer if resident in this community; i. Take such traditional counselling from elders as directed by the probation officer;

j. Follow all the reasonable directions of the Justice Committee; and, k. Attend court in person within 12 months of his release from custody for the purpose of a probation review. The time, date, and place of this review is to be set by the probation officer (The Court sets this probation review in an effort to determine what steps, if any, the Government of Nunavut has taken to address Mr. J.N.’s indicated therapeutic needs). [ 73 ] The Court is under no illusion. The treatment needed to address Mr. J.N.’s risk of reoffending is not available in Community X.

This community does not presently have its own resident probation officer. Supervision of citizens on probation is currently being done by telephone by Pangnirtung’s probation officer. The Court expects Community Corrections to make every effort to arrange for some form of community supervision for this offender on the ground in Community X. B. Ancillary orders [ 74 ] Pursuant to

section 109 of the Criminal Code , Mr. J.N. is prohibited from possessing or using any firearms, ammunition, or explosives for a period of 10 years from the date of this order. Any such items now in his possession or under his control must be lawfully disposed of within 30 days of this order. [ 75 ] Mr. J.N. is prohibited for life from possessing any prohibited or restricted firearm, prohibited weapon or device, or prohibited ammunition. Any such items now in Mr. J.N.’s possession or under his control must be surrendered immediately to the nearest police detachment.

Any such items are ordered forfeited to the Attorney General for the purpose of destruction. [ 76 ] Mr. J.N. is a subsistence hunter. He is granted an exemption under

section 113 of the Criminal Code to use a firearm for subsistence hunting purposes only. [ 77 ] Mr. J.N. is ordered to submit a sample of his DNA for registration in the national DNA databank. This order is mandatory for primary designated offences as defined by

section 487.04 of the Criminal Code . [ 78 ] Mr. J.N. is ordered to submit himself to the processes of the national Sex Offender Registry as set out in sections 490.11 through to 490.16 of the Criminal Code . This order is for life. [ 79 ] Mr. J.N. is ordered to pay a victim fine surcharge of $400.00 for the four indictable offences. This is to be paid within four years of the date of this order. [ 80 ] Pursuant to

section 161 of the Criminal Code , Mr. J.N. is prohibited from seeking or obtaining any employment, whether remunerated or not, or becoming a volunteer in any capacity that involves being in a position of trust or authority to any person under the age of 16 years. This order is for 15 years. Dated at the City of Iqaluit this 6th day of August, 2015

___________________ Justice R. Kilpatrick Nunavut Court of Justice Appendix A Source: Nunavut Court of Justice, Ingirranivut Our Journey: A Statistical and Comparative Review of Crime and Court Operations in Nunavut 2000-2012, (Iqaluit: Nunavut Courts, 2012), at 9, online < http://www.nunavutcourts.ca/annualreports >.

The following crimes are considered violent crimes for the purposes of the Violent Crime Severity Index: • Murder - 1st and 2nd degree • Manslaughter • Infanticide • Criminal negligence causing death • Other related violations causing death • Attempted murder • Conspire to commit murder • All sexual assaults • Sexual interference • Invitation to sexual touching • Sexual exploitation • Incest • Anal intercourse • Bestiality - commit or compel or incite • Corrupting morals of a child • Luring a person under 18 via computer • Voyeurism • All assaults • Unlawfully causing bodily harm • Trap, likely to or causing bodily harm • Discharge firearm with intent • Using firearm or imitation in commission of offence • Pointing a firearm • Assault against peace or public officer • Criminal negligence causing bodily harm • Forcible confinement or kidnapping • Hostage-taking

• Trafficking in persons • Abduction under 14, not parent or guardian • Abduction under 16 • Removal of children from Canada • Abduction under 14, contravening custody order • Abduction under 14, by parent or guardian • Robbery • Robbery of firearms • Extortion • All intimidation offences (to justice system participant, journalist or other) • Criminal harassment • Harassing phone calls • Uttering threat to person