R. v. Simailak, 2022 NUCJ 39

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Simailak, 2022 NUCJ 39 Date: 20221107 Docket: 15-19-53 Registry: Iqaluit Crown: His Majesty the King -and- Accused: David Simailak __________________________________________________________________ Before: Mr. Justice Martin Counsel (Crown): Counsel (Accused): C. D’Souza J. Langevin Location Heard: Date Heard: Iqaluit, Nunavut October 14, 2022 Matters: Sentencing decision in regards to a finding of guilt contrary to Criminal Code of Canada , R.S.C. 1970, c C-34, ss. 143(

a) 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. INTRODUCTION [ 1 ] In the early evening of a day late in 1973, Mr. Simailak, who was 21-years-old, had sexual intercourse with a 14-year-old girl on the floor of the radio station in Baker Lake, Nunavut. She did not consent.

[ 2 ] Approximately 46 years later, the victim made a complaint to police. Mr. Simailak was charged with rape, as it was then termed in the Criminal Code of Canada , R.S.C., 1970, c. C-34 (the 1973 Code ). [ 3 ] In April 2022, a jury in Baker Lake convicted Mr. Simailak of one count of rape. [ 4 ] Mr. Simailak is now a 70-year-old accused, who previously had no criminal record. This decision deals with the thorny issue of what is a fit and appropriate sentence for this historical rape. The Crown seeks a three-year sentence of incarceration. Mr.

Simailak seeks a suspended sentence. [ 5 ] As a brief outline, I will first comment on some historical notes respecting the charge, and then I will outline the facts, Mr. Simailak’s background, and sentencing considerations, followed by my analysis and conclusion. I will refer to the present-day Criminal Code of Canada , R.S.C., 1985, c.C-46 , as “the current Code ”. II. HISTORICAL NOTE [ 6 ] The law respecting sexual offenses has advanced greatly since 1973. At that time, sexual assault by intercourse was termed “rape”.

Section 143(

a) of the 1973 Code set out: 143. A male person commits rape when he has sexual intercourse with a female person who is not his wife, (

a) without her consent, or (

b) n/a The age at which a female could legally consent to sexual intercourse was 14-years-old. [ 7 ] Almost all of the common procedural protections in modern sexual assault trials were not prescribed in law in 1973, such as publication bans so a victim would not be identified, testimonial aids such as screens or support persons, and limits on cross-examination, especially respecting stereotypical myths.

Moreover, in certain circumstances, jurors were to be instructed it was not safe to find an accused guilty in the absence of corroboration, but they were entitled to find guilt if satisfied beyond a reasonable doubt that the victim’s evidence was true (s. 142, the 1973 Code ). [ 8 ] While an accused is always to be charged and tried according to the offense established by the Criminal Code at the time the offense took place, the procedural aspects of trial are those in play at the time the trial takes place. [ 9 ] Hence, in this situation: the victim was accompanied by a support person when she testified; a ban on publication, of matters that could disclose her identify, was imposed; modern limits on cross-examination, including those set out in s. 276 and s. 278 of the current Code , particularly respecting sexual myths or stereotypes impacting women, were applied; and the jury was not instructed on antiquated law, such as s. 142 of the 1973 Code . [ 10 ] As to the sentence on conviction for rape in 1973, there was no minimum sentence, while the maximum was imprisonment for life.

Whipping was also an available punishment but was repealed around the time of this offense. However, if the punishment for an offense changed between the time of the commission of the offense and sentencing, an accused is entitled to the benefit of the lesser punishment ( s. 11(

i) Canadian Charter of Rights and Freedoms ). [ 11 ] The offense of rape was abolished years ago and replaced with the offense of sexual assault. Except for certain circumstances that do not apply here, the age of consent has changed from 14 to 16-years of age. The maximum penalty for sexual assault is 10 years’ incarceration, where the victim is 16 or older. As a matter of equivalency, given the change in the legal age for consent, the maximum penalty available here, despite the victim being 14 years-old, is a maximum 10 years in prison. For these same reasons, the mandatory minimum sentence of one-year does not apply.

[ 12 ] In the end, Mr. Simailak was tried according to the 1973 definition of rape, including the age of consent, but otherwise all modern aspects of a sexual assault trial were utilized. The possible sentence ranges from a suspended sentence to a maximum of 10 years in jail. III. FACTS [ 13 ] In about 1973, Baker Lake was a small hamlet estimated to have “maybe 1,100” people. It is about 320 kms west from Hudson’s Bay, or, 1,600 kms north of Winnipeg. It is Nunavut’s sole inland community and remains accessible only by air, snowmobile or dogsled. Baker Lake is home to 11 distinct Inuit groups.

Recent statistics demonstrate life expectancy for Nunavut men to be about 71- years of age, about a decade younger than Canadian men generally. Features of traditional Inuit culture remain in place, including dependence on the land for food. [ 14 ] As I explained in R. v. Simailak , 2022 NUCJ 27 , there were two distinct paths available to the jury to have found Mr. Simailak guilty of rape: on the victim’s version or on Mr. Simailak’s version.

In such situations, it is for the judge to consider the evidence the jury heard and determine the facts upon which sentencing will proceed (s. 724(2) of the current Code ). [ 15 ] Due to the passage of almost 50 years, the year and season the incident happened, and the age of the victim and Mr. Simailak at the time, were not agreed or precisely established by testimony. [ 16 ] Nevertheless, I found that the offence happened in 1973, after the radio station first opened, when the victim was 14-years of age and Mr. Simailak was 21-years of age. Both were residents of Baker Lake.

The victim moved there with her parents when her father, an Anglican minister, accepted a posting to Baker Lake. Mr. Simailak was a lifelong resident of Baker Lake. Both the victim and Mr. Simailak are Inuit. They did not know each other. [ 17 ] As part of a school program, the victim was at the local radio station to broadcast a show for the community. Mr. Simailak was the manager of the station. Early in the evening, after the show, only the victim and Mr. Simailak remained at the station. The victim was in a broadcast room. [ 18 ] Mr.

Simailak testified he went to her after the station closed and sex “just happened.” It started by him touching her, but not in the “privates”. They then laid on the floor side-by-side, but with her more on her back. She did not resist, oppose, or push back. They had a short kiss. He said he pulled out his penis and penetrated her. He does not remember how her pants came off because it was “50 years ago”. He said they might have held each other. He did not ask her if she wanted to have sex, kiss, or touch. In fact, nothing was said.

He testified that he assumed from the way it happened - she did not resist - she was consenting. Afterward, they just both got up and left. Finally, as the victim clearly testified, she did not consent. [ 19 ] Shortly after, the victim told her mother, and her father also found out. Independently, Mr. Simailak confessed to his wife, who quickly called a meeting of the victim’s parents, the victim and another local minister. Mr. Simailak’s wife, who I find both credible and reliable, said the meeting took place at their home the next day.

She explained there was discussion about the incident; people were upset, crying and praying. The meeting lasted about an hour. The victim’s father was upset with her for what happened and forbade her from going to the radio station again. With that, the incident seemingly ended. The victim has no memory of this meeting. IV. MR. SIMAILAK’S BACKGROUND [ 20 ] Mr. Simailak was born and raised in Baker Lake. He is the eldest of 11 children, six of whom were “custom adopted” by his parents. His upbringing was good, he was not exposed to violence in the home or poverty.

He was raised in Inuit culture and language. [ 21 ] Starting at age 12, until he was 17-years old, Mr. Simailak was taken to residential school in Churchill, Manitoba. He went home for the summers. The pre-sentence report says he was in residential school for seven years, followed by stints in Brockville and Ottawa

schools. [ 22 ] Residential school changed his relationship with his parents, “as they had a hard time getting to know each other again and never really got as close as they were, due to the loss of time.” As noted in the pre-sentence report: Residential school affected him by the loss of his parents; he was no longer being raised by them from a very young age. Residential school affected his relationship with his siblings as they became strangers to each other; he felt like he lost them. In the Inuit tradition, he should’ve been living with them on a full-time basis.

He was affected by racism for most of his life. Mr. Simailak describes his residential school experience as extremely hard on him and his parents. His capacity in Inuktitut language faded. He is traumatized by an event in his supervisor’s room, when he was 14-years old, which he has blocked out of his mind. He says he does not want to know what happened in the room, yet, when he hears about residential schools on the news, he may still break down and cry. He told this to the Truth and Reconciliation Commission. [ 23 ] When he finished schooling, Mr. Simailak returned to Baker Lake to resume his life.

Within a short time, in December 1972, he married his wife and they will soon celebrate their 50 th anniversary. They have three boys, two of whom are adults while the youngest, a custom adopted grandson, is a teenager. [ 24 ] Mr. Simailak and his wife have a solid relationship. She described him as a “spoiled brat” when they met, but that he matured over the years. He has always been employed, never allowed the family to experience poverty and violence is foreign to their home. She says he is a good father, supporter and advisor to his children.

As they advance in age, particularly given the isolation, harshness and social service factors in Baker Lake, Mr. and Mrs. Simailak are more dependent on each other day-to-day. Mrs. Simailak is 79-years old with some health issues. Mr. Simailak is 70-years old and generally healthy, except for a heart problem for which he takes medication. [ 25 ] Mr. Simailak has been an outstanding contributor to the community. He has held various employment and volunteer positions throughout the community and at the territorial level for various agencies and departments.

He opened the radio station in Baker Lake and was in broadcasting for some time, he was Mayor of Baker Lake for two years, a Member of the Legislative Assembly for four years, and a Minister of the Government for three years. He has started businesses and remained actively involved in the mining industry. [ 26 ] He has also continuously been a community volunteer on numerous boards and committees, and offered guidance and counseling to many people. [ 27 ] Mr. Simailak has had suicidal ideation related to the stress and effect of the charge. He has been stripped of community positions and suffered financially.

Particularly biting to him was his suspension as an ordained deacon of the Anglican Church in 2019. On conviction, he was banned from all other volunteer church roles he had been performing for over 30 years. He has lost corporate board and business roles, and other volunteer roles. For example, for seven years until his conviction, he served as chair of the Baker Lake District Education Authority. The reputational impact upon him, in the hamlet and territory, has been significant.

He is no longer seen as a community pillar. [ 28 ] While the pre-sentence report notes that he maintains his innocence, I take this to mean in respect of the victim’s version of events that are different from his. He is remorseful about what happened, noting that if he was the same man then, as the one he became after, the offence would not have happened. [ 29 ] Mr. Simailak has no prior criminal record at all. [ 30 ] Finally, Mr. Simailak had various letters of support attesting to his outstanding character.

One minister wrote, “I have come to know David as a man of integrity, high moral standards and a generous, caring, compassionate heart.” V. SENTENCING CONSIDERATIONS

[ 31 ] I have earlier commented on the range of sentence available for this offence. [ 32 ] The 1973 Code did not express sentencing principles and purposes akin to those set out in s. 718 of the current Code . Nevertheless, those provisions inform this sentencing. [ 33 ] Thus, a sentence imposed by a judge on an accused for a serious crime should be tailor-made in the sense that, mindful of principles of sentencing, it responds appropriately to the circumstances of the offence and the particulars of the offender.

The current Code articulates that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a safe, peaceful society through just sanctions that denounce unlawful conduct; deter persons from committing offences; separate offenders from society where necessary; assist in rehabilitation; provide reparation; and promote a sense of responsibility in offenders. [ 34 ] Further, the current Code mandates that a judge consider a number of principles, including sections: • 718.1: that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; • 718.2(a): that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; • 718.2(b): the parity principle where a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and • 718.2(e): the restraint principle.

In other words, jail should be used sparingly, with particular attention to the circumstances of Aboriginal, or Inuit, offenders. [ 35 ] A number of other statutory considerations are arguably inapplicable in that they notionally impose stricter sentencing factors than were in place in 1973 such as: s. 718.01, offenses against persons under the age of 18-years; s. 718.04, offenses against vulnerable persons, including Aboriginal females; and deemed aggravating circumstances set out in s. 718.2(ii .1) abuse of a person under 18, ss. (iii) position of trust in relation to the victim and, ss. (ii.1) significant impact on the victim.

Having said that, they are all common sense and, for the most part, have a basis in common law and jurisprudence such that the concepts should be recognized and considered for this historical crime. [ 36 ] Crown Counsel referred to numerous precedents. I do not intend to review them all. As usual, some were more instructive than others were. [ 37 ] For sexual assault convictions, especially where the victim is a child, a significant custodial sentence is most often required if only to express the community’s denunciation and to emphasize general deterrence, let alone to recognize the harm done to the victim.

Further, the mere fact of a long period between the offense and conviction is not per se a mitigating factor that would detract from a jail sentence; other complexities need be present and assessed. Finally, most courts of appeal have endorsed custodial starting points for a major sexual assault, or rape, often at the three-year mark, and higher for child victims.

Having said that, the law is clear that sentencing is a difficult exercise with considerable discretion due the sentencing judge to balance all relevant factors in determining a fit and appropriate sentence for a particular offender and a particular set of circumstances. [ 38 ] As to the Crown’s specific sentence precedents, most were clearly distinguishable. For example: • in R. v. Holman , 2014 NWTSC 13 , the accused received a four and a half year sentence, concurrent on three historical charges, the oldest of which was 40 years before.

The first was a rape of an 11-year-old, the second was an attempted rape of a 13-year-old about a

decade later, and the final one, a year later, involved repeated sexual interference with a seven-year-old. All the children had lived in hishouse when the offences occurred; • in R. v. Fertig, 2014 ABCA 317, the court upheld a five year sentence for 10 to 15 incidents of sexual intercourse (rape) from1975-77, when the victim was between 12 and 15-years of age. At the time, the accused was a 37-year-old teacher. The victim was astudent at his school and babysat the accused’s children; • in R. v. Sark, 2003 NBQB 35, 25 years passed between the “brutal and violent” rape of a younger cousin andconviction/sentencing.

There was also another simple assault conviction. Over time, the accused changed considerably; he had become “a good person”, a police officer and municipal politician. The court noted however, “It is easier to grant a restorativerehabilitative sentence or sentence that emphasize those factors when there is some admission of responsibility and apology. But there isnone of that here…” Mr. Sark received a two and a half year concurrent sentence; • in R. v.

H.S., 2014 ONCA 323, the Ontario Court of Appeal imposed a three-year sentence on an accused for “3-4 separateoccasions” of sexual intercourse with a very vulnerable foster child who was barely 15-years-old, and became pregnant. The accused was 24-years-old at the time of the offense, and 35 years had passed since the offense. The Court noted the sentencing judge erred in considering the accused’s health issues as amitigating factor; as there was no evidence he could not be properly treated in jail.

Second, the judge erred in finding stigma as amitigating circumstance, as it was not beyond what one would expect for any person facing criminal proceedings of this nature (paras. 38and 39). As to the lengthy passage of time from offence to sentencing, the Court reiterated the Alberta Court of Appeal’s statement in R. v. S.S, 1992 ABCA 352 , (1992), 78 C.C.C. (3d) 451 (R. v.

Spence) that: [10] The lapse of time does not in any way render inapplicable the principles of general deterrence and denunciation. … … [14] … In the case of a sexual offence against a child, when on occasion the child does not report the offence to the police or any otherauthority until many years after the event, should the sentence be less than what it would have been if the prosecution had occurred notlong after the commission of the offence?

If the accused, during the intervening years, has led an exemplary life in all respects, includingnon-repetition of sexual offences, and upon the matter ultimately being reported to the authorities and during the resulting investigationand prosecution he is remorseful, then the principles of individual deterrence and rehabilitation may arguably, by themselves, not justifya stern sentence of the kind which would have been obligatory many years earlier. … [39] Defence counsel relied on one precedent: R. v. Lariviere, 2021 ABQB 432, which they say is very close to Mr. Simailak’ssituation. Mr.

Lariviere was convicted, 44 years later, of a 1977 rape that occurred while the victim was asleep or passed out. At the time, he was 32-years old and the victim was 18-years old. She became pregnant, but he did not know that. At sentencing, Mr. Lariviere was a 77-year-old Indigenous man who was seen as an advisor, mentor, role model and elder in his community. Gladue principles, along with theoutcome of a restorative justice process where the participants, including the victim, recommended against jail, were importantconsiderations.

In the end, balancing all of the factors, including denunciation and deterrence, a suspended sentence was imposed. [40] Finally, I note two passages from Clayton C. Ruby et al., Sentencing, 10th ed. (Toronto: LexisNexis Canada Inc., 2020): § 5.180 The age of an offender, particularly past 70 years, may be a factor to be considered in mitigation, especially where it iscombined with evidence of good character. § 5.240 Very often the publicity attached to the mere laying of the charges, and even more so to the fact of trial and conviction, canbe devastating.

It is especially devastating for a person of previous good character who had a position of responsibility in thecommunity. … When this occurs, the punishment that needs to be imposed is considerably less, on the basis that adverse publicity canbe a mitigating factor when it fulfils a denunciatory function that has an inordinate impact on the offender.

VI. ANALYSIS [ 41 ] Any sentencing requires an appropriate balancing of many factors to arrive at a just, fit and appropriate sentence for the offender and the offense in question. The fundamental principle that a sentence must be proportionate to the gravity of the offense, and the degree of responsibility of the offender, is critical.

This is informed in part by aggravating and mitigating circumstances relating to the offense or the offender. [ 42 ] As to aggravating circumstances in this situation, they are mostly demonstrated in the offense itself, being sexual intercourse without consent of a vulnerable, 14-year-old Inuit girl. Further, the accused was 21-years old and took advantage of being alone with the victim in the radio station at the end of the show. I disagree with Crown counsel that this situation amounted to a breach of trust.

There was no relationship between the victim and the accused, and nothing to indicate that he exerted any control, trust or influence over the victim’s life circumstances such that he could take advantage of his position. [ 43 ] Mitigating circumstances are also relatively obvious. Notably, Mr. Simailak was a youthful first offender. While not an excuse in any way, it is clear that his view respecting consent was that of a 1970s inexperienced, immature young man - a “spoiled brat” as described by his wife.

I accept his testimony that he did not think he was committing a criminal act, albeit he took no steps to confirm consent. It was a self-centered act with no regard for the victim, her feelings or her lack of consent. Moving on, I commented earlier about Mr. Simailak’s personal development and life journey over the last 50 or so years. He has demonstrated commitment to a law-abiding lifestyle and to community service. As noted, he became a pillar in his community. [ 44 ] Despite the absence of a guilty plea, I accept that Mr. Simailak is truly remorseful.

The nature of the allegations, contrasted to his version of the incident, mandated a trial to sort out the facts and culpability. [ 45 ] Also important is the fact that on Mr. Simailak’s wife’s initiative, the incident was directly dealt with shortly after with the meeting at their home. While the victim has no memory of the meeting, it was an important airing out of the incident with her, her parents and other clergy. Clearly, there was no attempt by Mr. Simailak to hide what happened; responsible adults were informed.

The meeting had elements of a restorative justice process, or of a traditional Inuit way of dealing with wrongdoing, although it was not helpful for the victim. [ 46 ] The impact of this event on the victim was and is significant; it was a major emotional and psychological trauma. She had difficulty grasping the impact until she was 25-years of age and she sought counselling. She felt shame, grief, depression, anxiety and embarrassment. Over the years, in angry moments, she even called Mr. Simailak or his wife to confront them.

Over a long time she gained the wherewithal to report it to the RCMP and take “the hardest trip” back to Baker Lake for the trial, almost 50 years after she left. She no longer feels the assault defines her future. [ 47 ] I will not detail all the aspects of the Gladue considerations. Again, it must be obvious that Gladue factors are in play. As a 12- year-old Inuit boy, Mr. Simailak was removed from his home, his comfort zone, placed far away in residential school for years, and sent even further away for other schooling. It had negative effects on him, his family and the relationship between him and his family.

He also suffered some form of trauma while there. It is not clear exactly when he returned to Baker Lake, but it would have been within a few years before this incident occurred, around the age of adulthood. It is difficult to imagine that he returned as an emotionally astute, wholesome and well-adjusted young man. To the contrary, he returned scarred and disconnected. Reintegrating with this family was difficult, as was relearning his language. This experience informed who he was, and the decisions he made, around the time of this crime. [ 48 ] Ultimately, all of these factors play a role in weighing of Mr.

Simailak’s moral culpability, or blameworthiness, and an appropriate sentence for this crime. [ 49 ] All in, denunciation and general deterrence remain significant sentencing objectives even after 50 years. Specific deterrence is not an objective, nor is rehabilitation. Reparation and instilling a sense of responsibility for this crime are objectives that have been achieved. Looking at Mr. Simailak as the young, immature man he was at the time, freshly scarred and negatively affected by his school experience, diminishes his blameworthiness. The crime was very serious and the harm to the victim great. Mr.

Simailak is now a 70- year-old remorseful man, whose place in the community, earned though a lifetime of contributions, has been sternly rebuked through loss of reputation and position in the community, respecting both business and volunteer activities. While having many relatives in Baker Lake, he and his wife are dependent upon each other for their well-being and independence, as they approach statistical life

expectancy for Inuit people. [ 50 ] In the end, the utility and normative goals of sentencing upon which deterrence and denunciation are premised, are so diminished for this offender and this offense at this time, so as to work further injury, albeit to Mr. Simailak and his family if he were to be jailed. Doing so, would in effect bookend his life between confinement to residential school starting at age 12, and confinement to jail at age 70, despite all he has overcome and contributed. He would again be isolated far from home, this time likely at the Baffin Correctional Centre in Iqaluit, some 1,300 kms away.

Properly balanced with all sentencing factors, the valid notion of retribution, reflecting Mr. Simailak’s blameworthiness, in conjunction with denunciation and deterrence, does not demand a jail sentence in this unique situation. It would be unduly harsh. VII. CONCLUSION [ 51 ] This case involves a crime that no sentence can heal. Mr. Simailak’s conviction by a jury from his small community, for this historical offence, is a testament to the resilience of the victim and vigour of the justice system. [ 52 ] Pursuant to s. 731(1)(

a) and s. 732.1(2) of the current Code , I impose a suspended sentence with three years’ probation, including the statutory conditions and 240 hours of community work to be performed within 18 months. [ 53 ] Finally, two ancillary orders must be addressed. [ 54 ] One, a person convicted of sexual assault of this type is required to comply with the Sex Offender Information Registration Act for 20 years (s. 490.012 & 490.013(2)(

b) of the current Code ). However, on October 28, 2022, in R. v. Ndhlovu , 2022 SCC 38 , the Supreme Court of Canada declared s. 490.012 unconstitutional, but suspended the declaration for one year to allow Parliament to remedy the legislation. In doing so, they allowed an exemption granted to Mr. Ndhlovu to stand (para 143). [ 55 ] Mr. Simailak raised this issue in the last few days, saying he should not be ordered to register and comply with the Sex Offender Information Registration Act. The Crown does not agree, but understanding the pragmatic aspect of these circumstances, “leaves it to the court”. [ 56 ] Mr. Simailak’s crime is almost 50 years old.

Section 490.012 did not exist at the time. He poses virtually no risk of reoffending. The utility of the provisions in this situation is negligible. He has not commenced a formal application for an exemption, and the criteria are strict. However, most of the concerns the Supreme Court articulated in setting aside s. 490.012 seem to apply to Mr. Simailak. Given the uniqueness of the circumstances, I exempt him from complying with s. 490.012 of the current Code . [ 57 ] Two, Mr. Simailak must provide a sample of his DNA (s. 487.051(1) of the current Code ) within 14 days to the local RCMP detachment.

Dated at the City of Iqaluit this 7th day of November, 2022 ___________________ Justice C. Martin Nunavut Court of Justice