R v Suwarak, 2011 NUCJ 18

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v Suwarak, 2011 NUCJ 18 Date: 20110719 Docket: 15-10-108 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Bobby Sullaiya Suwarak ________________________________________________________________________ Before: The Honourable Madam Justice S. Cooper Counsel (Crown): J. Solski Counsel (Accused): M. Sammurtok Location Heard: Iqaluit, Nunavut Date Heard: March 21, 2010 Matters: Criminal Code, ss. 182 (

b) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) Restriction on publication: By court order made under

section 486.4 of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way.

I. FACTS [ 1 ] This case is both shocking and tragic. [ 2 ] Mr. Suwarak has plead guilty to indecently interfering with human remains. On June 4 a respected elder passed away. By all accounts her life had been devoted to family and community. She was much loved and respected by her large extended family who, although they would grieve her passing, could be comforted by reflecting upon the love, support and wisdom they had shared with her for her many years.

The deceased was at least 96 at the time of her passing, perhaps older. [ 3 ] The family paid their respects and buried the deceased the day following her death. The day following the burial, some of the family members went to visit the grave. They noticed that it had been disturbed. Rocks which had been placed upon the coffin had been removed. Screws and metal bands which held the coffin shut had been removed. They were concerned that the deceased had been tampered with and they notified the RCMP. [ 4 ] The coffin was opened with the consent of the family.

It was confirmed that the clothing of the deceased had been tampered with. In particular, the panties of the deceased appeared to have been moved. The panties were seized and samples, including vaginal swabs, were taken from the body. [ 5 ] The bodily samples were forwarded to the forensics lab for analysis. Prior to receiving the results from the analysis, the RCMP received information that Mr. Suwarak had told a friend that he had opened a coffin at the graveyard and had “fondled” the body. [ 6 ] In September, the RCMP received the results of the forensic analysis.

It matched DNA taken from the deceased with DNA on the National DNA data bank from Mr. Suwarak, thereby confirming that Mr. Suwarak had interfered with the body. [ 7 ] Mr. Suwarak was arrested and brought into custody. He provided a statement in which he said he was at the graveyard to visit his mother's grave and he saw someone carrying a crowbar hurrying away from a grave. He said that the coffin was open and he admitted to having sexual intercourse with the deceased for approximately ten minutes. [ 8 ] Mr.

Suwarak has plead guilty to a charge of improperly or indecently interfering with or offering an indignity to human remains pursuant to

section 182 (

b) of the Criminal Code . II. PENALTY PROVIDED FOR AND SOUGHT [ 9 ] The Criminal Code provides for a maximum penalty of five years imprisonment for this offence. There is no minimum punishment. [ 10 ] The Crown is asking for three years imprisonment. The Defence is asking for time served, which would amount to a jail term of six to nine months. III. CASE LAW [ 11 ] There are few cases dealing with this particular offence and even fewer that deal with similar factual situations.

Generally speaking, these offences tend to fall into one of two categories: those cases where the offender disposes of a body in order to evade detection for another offence, frequently homicide; and those offences where persons entrusted with the duty to prepare remains for burial or cremation do not carry out their duties properly. There is normally a profit motive associated with this category of offences.

[12] The range of sentences vary from a period of probation or short, sharp periods of incarceration to jail terms of three years. [13] In my view this case does not fall into either category. It is in a category of its own. [14] Counsel have been able to provide only one case which appears similar on its facts, that being the case of R v Ladue, (YK CA), [1965] 4 CCC 264, 51 WWR 175, a decision in the Yukon court in 1964. The only facts that are available are that theaccused was intoxicated and had sexual intercourse with a corpse. He was sentenced to a jail term of two years. IV. SENTENCING PRINCIPLES [15]

Section 718 of the Criminal Code, RSC 1985, c C-46, sets out the sentencing principles that I must be guided by. It states that: The fundamental purpose of sentencing is to contribute [...] to respect for the law and the maintenance of a just, peaceful and safe societyby imposing sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and [others] from committing [crimes]; (

c) to separate [the offender] from society, [when] necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community. [...] 718.1 The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility, or moral culpability, ofthe offender. [16] Respect for and maintenance of the dignity of those who have passed on are values shared by all cultures. [17] In this case, Mr. Suwarak's conduct violated social norms and taboos in the most outrageous manner.

The fact that there arevirtually no cases which speak to similar violations is indicative of how widely accepted this social value is. The Court must denouncethis conduct in the strongest of terms. The affirmation of social norms and values is a paramount consideration in determining theappropriate sentence. V. AGGRAVATING FEATURES [18] Regardless of the circumstances of the grave when Mr. Suwarak came upon it, whether open or not, there was some element of

thought that went into the offence. [ 19 ] By his own admission, the sexual act continued for approximately 10 minutes, until he had achieved sexual gratification. [ 20 ] The general nature of the offence committed and the suffering it was causing the family was well known in the community and must have been known to Mr. Suwarak. The identity of the perpetrator was not discovered for three months.

During this time, community members were going about their lives knowing that someone capable of great depravity was amongst them. [ 21 ] The family has not been able grieve properly and will always be haunted by thoughts of what happened to the matriarch of the family. [ 22 ] The victim impact statements that have been provided speak eloquently to the suffering of the family. VI. MITIGATING FEATURES [ 23 ] It is a mitigating factor on sentencing that Mr. Suwarak has plead guilty to the charge, although it must be noted that, given the compelling nature of the DNA evidence, the Crown had a very strong case. VII.

PERSONAL CIRCUMSTANCES OF ACCUSED [ 24 ] Mr. Suwarak has had a difficult life. He was one of five children. When he was seven years old he was sent south for surgery. The surgery resulted in total hearing loss. He returned home and continued in school and, while I am told he has a grade nine education, it is apparent that he is functioning at a significantly lower grade level. He is able to write only his name, the name of his home community, and the words “I”, “you,” and “hi”. I am advised that he is essentially unable to read. [ 25 ] Mr.

Suwarak and his immediate family developed some gestures which allowed them to communicate within the home. His mother died in the 1980s and his father died in the mid 1990s, after which his siblings left the community, leaving Mr. Suwarak very alone as he no longer had anyone around him he could communicate with. It is noteworthy that his first criminal conviction was in 1999, a few years after his father died. Mr. Suwarak would have been 30 years of age at the time that conviction was entered.

Perhaps ironically, it is as a result of his contact with the criminal justice system that he was able to learn a rudimentary form of sign language, as the Court needed to be able to communicate with him a few years ago so it directed that he be provided with some sign language training. [ 26 ] There can be no doubt that Mr. Suwarak's life is a lonely one. [ 27 ] The assessment which was prepared for the Court indicates that Mr. Suwarak's intellect is well below average.

He has a long standing cognitive impairment that affects his ability to connect actions and consequences and his ability to suppress unacceptable social behaviour. [ 28 ] Unfortunately, given the nature of the assessment requested, no information has been provided to indicate if there are treatment options that might address these difficulties or reduce the risk of future similar behaviour. Indeed, the assessment predicts ongoing problematic behaviour. VIII. CRIMINAL RECORD [ 29 ] Mr. Suwarak has a criminal record.

Of particular concern are a 1999 conviction for sexual assault for which he was sentenced to three years probation and a 2001 conviction for sexual assault for which he was sentenced to two years less a day and two years probation. To his credit, there have been no criminal convictions for approximately nine and half years.

IX. CREDIT FOR REMAND TIME [ 30 ] Mr. Suwarak has been in custody since September 12, 2010, a period of almost 6.5 months. He did not have a show cause hearing. The Court has the discretion to grant up to 1.5 times credit for the time spent in remand. [ 31 ] The Court has been advised that Mr. Suwarak has spent all of his remand time in isolation. On one hand, Mr. Suwarak's counsel has advised the Court that other inmates, when the opportunity presents itself, have made threatening gestures to him.

On the other hand, the institution reports that he gets along well with other inmates and has adjusted to his living situation. He has not been able to participate in the programming he might otherwise be able to participate in, even in remand, due to his disability. He has been participating in basic math education and in recent months has had perfect attendance. X. DECISION [ 32 ] The primary sentencing consideration must be denunciation. Specific deterrence is a also a significant sentencing consideration, particularly in view of the related offences on Mr.

Suwarak's criminal record. [ 33 ] General deterrence may well be a significant factor in sentencing when the Court is dealing with matters that involve an indignity to a dead body for the purposes of concealing the commission of another offence or for profit motives, but that is not the case here. The conduct in this matter is so far beyond the norms of acceptable behaviour and there are such strong taboos against such conduct, that few are inclined to commit such offences, regardless of the sentences imposed.

The lack of sentencing precedents speaks to the rarity of such offences. [ 34 ] In my view there is some benefit in ensuring Mr. Suwarak is under supervision for an extended period. This might best be done through a combination of incarceration and probation. This would allow correction services to monitor his behaviour in the community following his release from custody. It would also allow them to provide him with appropriate programming that, if successful, might lessen the risk he poses. [ 35 ] The appropriate sentence, but for the remand time, would be 30 months. Mr.

Suwarak is given credit for six months pre-trial custody.

The sentence to be served is two years less a day. [ 36 ] The period of incarceration will be followed by three years of probation, with the following conditions: i. keep the peace and be of good behaviour; ii. appear before court when required to do so; iii. notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer or any change of employment or occupation; iv. report to the probation officer within seven days of your release from custody; v. for the first year of the probation order, report to the probation officer a minimum of twice a month, at dates and times specified by the probation officer; vi. following the first year of the probation order, report to the probation officer as directed by the probation officer;

vii. live at a residence approved by the probation officer; viii. take such counselling as directed by the probation officer; and ix. do not attend within 50 meters of a graveyard. XI. ANCILLARY ORDERS [ 37 ] The Crown is asking for a DNA order. The offence for which Mr. Suwarak has been convicted is a secondary designated offence so the issuance of such an order is discretionary. [ 38 ] Mr. Suwarak's criminal record, the anonymous, sexual nature of the offence before the Court, and the use of prior DNA samples in the investigation all support the issuance of such an order. Accordingly, there will be a DNA order.

Dated at the City of Iqaluit this 19th day of July, 2011 ___________________ Justice S. Cooper Nunavut Court of Justice