R. v. S.S., 2023 NUCJ 15

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. S.S., 2023 NUCJ 15 Date: 20230612 Docket: 15-21-61 Registry: Iqaluit Crown: His Majesty the King -and- Accused: S.S. __________________________________________________________________ Before: Mr. Justice Lyons Counsel (Crown): Counsel (Accused): C. D’Souza M. Eaton-Kent Location Heard: Date Heard: Iqaluit, Nunavut June 12, 2023 Matters: Sentencing decision in regards to charges under Criminal Code of Canada, RSC 1985, c C-46, ss. 152 REASONS FOR DECISION (Delivered Orally) (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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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. INTRODUCTION [ 1 ] SS was charged with two counts of “Invitation to Sexual Touching” contrary to s. 152 (

b) of the Criminal Code , RSC 1985, c C-46 ( Criminal Code ) . The two counts were in relation to two young teenage girls. [ 2 ] The Crown proceeded summarily on the charges, and SS entered a guilty plea to one count of s.152 (b), amended to include both girls, and is before the court to be sentenced. [ 3 ] There is a mandatory minimum penalty (MMP) of 90 days jail for a s.152 (

b) conviction. [ 4 ] Defence counsel has filed an application challenging the MMP as constituting cruel and unusual punishment contrary to

section 12 of the Canadian Charter of Rights and Freedoms , Being

Part 1 of the Constitution Act, 1982 (the “ Charter ”). [ 5 ] Defence seeks to have the MMP deemed of no force and effect and asks the court to impose a 90 day conditional sentence order,

which is a jail sentence served in the community under strict restrictions. [ 6 ] The Crown opposes the application and seeks a jail sentence of 120-180 days to be served in a Territorial jail, with 12 months of probation to follow. II. THE OFFENCE FACTS [ 7 ] In a small Nunavut community, in the early morning of July 21, 2021, 27-year-old SS was drinking with a couple in their home and was intoxicated. At some point SS entered a bedroom in the home where the couple’s 13-year-old daughter and her 14-year-old female friend were.

He asked the girls to have sex with him, and offered them alcohol and cigarettes, but they refused multiple times. He offered the girls thirty-five dollars each to remove their pants, which was captured on cellphone video. This request was also refused. SS then ceased. III. VICTIM IMPACT [ 8 ] A pre-sentence report was prepared to assist the court in crafting the appropriate sentence. The writer of the report interviewed one of the victims. [ 9 ] She reported feeling anxious after the incident and having trouble concentrating.

Her attendance at school dropped and she reported feeling afraid to go out in public where she might see SS. IV. PERSONAL CIRCUMSTANCES OF SS [ 10 ] SS has lived in the same small Nunavut community all his life, and currently lives with his parents and common-law spouse of three years in his parent’s 3-bedroom public housing unit. [ 11 ] He had a good upbringing with a supportive family.

Growing up, his parents and grandparents regularly took him on camping trips where he learned to hunt and survive on the land. [ 12 ] His primary language is English, and although he did not go far in school, dropping out after grade 9, he is able to read and write in English. He also understands and speaks some Inuktitut. During his schooling he was not disruptive in class and got along with others.

He also participated in organized sports, such as soccer and basketball, and participated in tournaments, including the Arctic Winter Games. [ 13 ] He has a four-year-old son from a previous relationship who lives with the child’s mother in a different community. Although he does not actively parent his son, he does have occasional communication with him. [ 14 ] He has a good employment history and provides financial support for his family.

For the last 6 years he has worked at a mine site outside the community, initially as a truck driver, and now as a heavy equipment operator on a rotating two weeks on, two weeks off schedule. [ 15 ] He continues to hunt and fish to provide food for his family, as well as other community members, and his family goes on the land camping in the spring and summer. [ 16 ] He is involved in his community and assists with the community Search and Rescue.

[ 17 ] He has had issues with his mental health. Three years ago while grieving for a family member that died by suicide, he considered suicide, and was sent out of Nunavut to a psychiatric institute. [ 18 ] He has been on a condition not to drink alcohol since being charged and reportedly has respected this condition and been living a healthier lifestyle. V. THE LAW A. Determining Whether an MMP is Cruel and Unusual [ 19 ]

Section 12 of the Charter establishes that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” [ 20 ] As laid out by the Supreme Court of Canada (SCC) in R. v. Nur, 2015 SCC 15 , to determine if an MMP is unconstitutional, courts must assess if the imposition of such a sentence would be grossly disproportionate in the case of the accused; and if not, if it would be grossly disproportionate in any reasonably foreseeable case.

If the answer is “yes” in either case, the MMP violates s.12 of the Charter and is unconstitutional and of no force and effect. [ 21 ] The SCC in R. v. Lloyd , 2016 SCC 13 , at para 24 , and R. v. Morrisey 2000 SCC 39 , para 26 , further explains that the threshold for gross disproportionality under s.12 presents a high bar. It must be so excessive as to outrage standards of decency, such that Canadians would find the punishment abhorrent or intolerable. VI. ANALYSIS A.

Is the MMP Grossly Disproportionate in this Case? [ 22 ] A 90 day jail sentence is not grossly disproportionate in SS’s case. [ 23 ] To reiterate, in the early morning hours, an intoxicated 27 year old male entered a bedroom in a home where he had been welcomed to socialize in, and asked a 13 and 14 year old girl to have sex with him.

The girls refused, but he persisted, offering them money to take off their pants, and cigarettes and alcohol, to persuade them to have sex with him. [ 24 ] This is serious criminal conduct. [ 25 ] The actual and potential consequences of an adult male pressuring and offering inducements to a 13 and 14 year old girl to have sex are obvious. As laid out by the SCC in R. v. Friesen 2020 SCC 9 at para 44 , invitation to sexual touching results in potential and actual harm to child victims.

The Court in that case noted two categories of potential harm: that which manifests itself during childhood, and long-term harm that only becomes evident during adulthood. [ 26 ] The input of one of the victims in this case points to the present harm done to her; the long-term impact of SS’s crime on her and the other victim remains to be seen. [ 27 ] The scenario that played out in this case is just the type that the MMP was directed at.

There is an inherent power imbalance between children and adults, and children can be coerced into doing things that are terribly harmful to them, especially when offered things they may want, such as money, alcohol, and cigarettes. What if the girls had acquiesced to SS’s request for sex? How might this have affected them?

[ 28 ] Given these considerations, a 90 day jail sentence for SS cannot be said to be so excessive as to outrage standards of decency, or be seen as abhorrent, intolerable, or grossly disproportionate. B. Is the MMP grossly disproportionate in reasonably foreseeable cases? [ 29 ] To assist the court in answering this question, counsel presented a number of hypothetical cases, as follows: A person with a cognitive disability asks someone under the age of 16 to touch them sexually while saying something lewd.

A 19 year old asks a 14 year old to kiss them on the lips, or alternatively, to touch their private parts, at a house party while making a sexually suggestive remark. [ 30 ] Reference was also made to the hypothetical case relied on by Justice Gorin in the Northwest Territories case R. v. R.A ., 2019 NWTTC 10 . A 20 year old indigenous offender with no criminal antecedents who has been a victim of sexual abuse invites a person age 15, whom she believes to be over 16 but fails to take reasonable steps to confirm her belief, to kiss and/or caress her.

She is remorseful and pleads guilty. [ 31 ] The Crown maintains that these hypotheticals are far-fetched, remote, and not reasonably foreseeable. [ 32 ] I disagree. [ 33 ] These are real-life scenarios that occur in Nunavut where s.152 (

b) and it’s MMP would apply. The

section applies to all people, male and female, over the age of 18, including persons with cognitive impairment, psychological disorders, and extensive Gladue background factors, which are characteristics shared by a significant percentage of Nunavut’s population. [ 34 ] Regarding the close-in-age hypotheticals, it is easy to imagine scenarios in Nunavut where a 20 year old invites a 15 year old to relatively minor sexual touching, or similarly, a 19 year old invites a 14 year old, or an 18 year old invites a 13 year old. [ 35 ] Although it is true that the reported s.152 (

b) cases have not included fact situations as sympathetic as those presented in these hypotheticals, the plain language of the

section makes it clear that the

section applies to such conduct. Furthermore, reported cases do not provide a straight-jacket for the court when assessing what a reasonable hypothetical might be. [ 36 ] The recent SCC case R. v. Hills , 2023, SCC 2 , bears this out. In that case, the MMP for the crime of intentionally discharging a firearm at a place, knowing that or being reckless as to whether another person is present in the place, contrary to s. 244.2(1) (

a) of the Criminal Code , was struck down. The reasonable hypothetical used by the Court to justify the decision was that of a youthful first time offender shooting a BB gun, or paint ball gun, at the side of a house with no windows, with neither projectile having the ability to perforate the wall, as part of a game, to pass time, or for a bit of mischief. [ 37 ] Despite there being no reported

section 244.2(1) (

a) cases where the firearm used was a paint ball or BB gun, the Court found a hypothetical case involving such weapons fell within the scope of the offence and provided the basis for a reasonable hypothetical that rendered the MMP unconstitutional. [ 38 ] The Crown in this case contends that s.152 (

b) and it’s MMP is geared toward predatory behaviour, and not those in the proposed

hypotheticals. Although that may be the case, there is nothing in the wording of the

section that suggests that s.152(

b) only applies topredatory behaviour. [39] It could be said similarly that s. 244.2(1)(

a) of the Criminal Code and its MMP were geared towards the use of firearms that firereal bullets, such as rifles or pistols, and not paint ball and BB guns. That did not prevent the SCC from finding the

section applied insuch situations, and that the MMP was unconstitutional as a result. [40] The Crown also contends that the hypotheticals in this case are not reasonable because the police would exercise discretion in suchsituations to not lay charges, and that if they did, the Crown would use their discretion to not prosecute the charges. While it may be truethat the suggested hypothetical cases would likely not lead to charges or prosecution, this alone cannot be relied on to find such scenariosto be unreasonable.

As pointed out by defence counsel, zero tolerance policies or other considerations could cause police and Crowns notto exercise their discretion and decide to charge and prosecute cases similar to the hypotheticals. [41] Moreover, at paragraphs 87 and 88 of the majority opinion in R. v. Nur, 2015 SCC 15 , [2015] 1 SCR 773, C.J. McLachlin(as she then was) explained why it cannot be left to the discretion of the state not to prosecute to save an MMP as constitutional: [87] Sentencing is inherently a judicial function.

It is the courts that are directed by Parliament to impose a mandatory minimum term ofimprisonment, and it is the duty of the courts to scrutinize the constitutionality of the provision. The Crown’s submission is in effect aninvitation to delegate the courts’ constitutional obligation to the prosecutors employed by the state, leaving the threat of a grosslydisproportionate sentence hanging over an accused’s head. [88] Lamer J., for the majority of the Court, firmly rejected this argument in Smith, at p. 1078: In my view the

section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, inthe opinion of the prosecution, its application would be a violation of the Charter. To do so would be to disregard totally s. 52 ofthe Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent ofthe inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to theprosecution or to anyone else for that matter. [42] Relevant to the determination of whether the MMP for s.152(

b) is constitutional, is Chief Justice Sharkey’s ruling in the case of R.v. G.H., 2020 NUCJ 33. In that case, the 90 day jail MMP for

summary sexual interference, or touching someone under age 16 for asexual purpose, contrary to s. 151(b), was found to be unconstitutional. [43] Although that decision related to a different crime than the crime in this case, the decision, in my view, brings considerations ofjudicial comity into play. [44] The principle of comity provides that judges of concurrent jurisdiction (in this instance, judges of the Nunavut Court of Justice)should follow the decisions of their colleagues on points of law unless there are compelling reasons that justify not following an earlierruling.

Judicial comity, and the consistency of legal rulings it produces, allows litigants and counsel to come to court aware of the law atissue and how it has previously been interpreted by the court. While I am not bound to follow the Chief Justice’s decision in R. v. G.H,like I would be had that decision come from a higher level appellate court, judicial comity suggests that I do so, unless there would be acompelling reason not to. [45] Although inviting someone under age 16 to sexual touching, and actually sexually touching a victim are different crimes, they areobviously related, and share the same 90 day jail MMP.

Indeed, actual sexual touching can be seen as a more serious crime than invitingsexual touching. As stated by Justice Gorin in R.A. at para 59 “inviting someone under age of 16 years to sexual touching is distinct fromactually touching them. That said, it is difficult to imagine circumstances where, all other things being equal, the invitation would beworse than the touching itself.” [46] Chief Justice Sharkey’s finding that the MMP for s. 151(

b) is unconstitutional is persuasive, and I take it into account whenassessing the constitutionality of the MMP for invitation to sexual touching. [47] In my view the hypotheticals proposed in this case are reasonable, and the appropriate sentences in such cases, or similar caseswhere a first time youthful indigenous offender invites sexual touching of a minor nature, would generally be either a conditionaldischarge, or a suspended sentence.

[48] Imposing a mandatory 90 jail sentence in such cases is inconsistent with s.718.2(

e) of the Criminal Code. This

section states that“all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders”. The direction given to courts by the SCC in the cases R. v.Gladue (SCC), [1999]1 S.C.R. 688, and R. v. Ipeelee [2012] S.C.C. 13 when interpreting 718.2(e), is clear. Trialjudges must consider the unique systemic or background factors which may have played a

part in bringing an offender before the courts,as well as the type of sentence that may be appropriate because of an offender’s indigenous background. [49] As Justice Martin writing for the SCC majority in Hills expressed at paragraph 144, “a mandatory minimum sentence will beconstitutionally suspect and require careful scrutiny when it provides no discretion to impose a sentence other than imprisonment incircumstances where there should not be imprisonment, given the gravity of the offence and the offender’s culpability.” [50] The reasonable hypothetical cases under s.152(

b) present just such a circumstance for this Court. Imposing a mandatory, carceralsentence of 90 days for this charge in certain cases would do nothing more than ensure the continued pattern of unnecessarilyincarcerating indigenous offenders when there are more appropriate sanctions available to deal with the criminal conduct that has beencommitted. [51] For these reasons, I conclude that in certain reasonable hypothetical cases, a 90 day jail term for a

summary s. 152(

b) offencewould outrage standards of decency to the extent that reasonable members of the public would find the punishment abhorrent orintolerable. [52] The MMP therefore violates

section 12 of the Charter. C. Is the MMP a reasonable limit to a Charter right that is demonstrably justifiablein a free and democratic society? [53] Having found the MMP violates

Section 12 of the Charter I must now determine whether the MMP can be saved by

Section 1 ofthe Charter which states: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. [54] The SCC in R. v. Oakes (1986) (SCC), 1 S.C.R. 103 set out a test to be applied in determining whether a law is areasonable limit to a Charter right demonstrably justifiable in a free and democratic society. The Oakes test is as follows:

(1) First, the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding aconstitutionally protected right or freedom

(2) Second, Are the measures chosen to serve that objective proportional to it, that is: (

a) Are the measures rationally connected to the objective? (

b) Do the measures impair as little as possible the right and freedom in question? And, (

c) Are the effects of the measures proportional to the objective identified above? [55] In the case at bar, the Crown has conceded that should I find the MMP to be unconstitutional, as I have, it would be unable to besaved by

Section 1. I agree. While the measure of mandating a minimal period of incarceration may be rationally connected todenouncing and deterring criminal behaviour, it cannot be argued that that the violation is proportional to the legislative objective or thatit minimally impairs the

Section 12 right. As the SCC stated in Nur at para 111: It will be difficult to show that a mandatory minimumsentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects ofthe law under s. 1.

[ 56 ] I therefore find that the MMP for

summary s. 152 (

b) offences is not saved by

Section 1, and that it is of no force and effect. D. What is The Appropriate Sentence for SS? [ 57 ] I turn now to a determination of the appropriate sentence for SS. [ 58 ] When determining an appropriate sentence, the aggravating and mitigating factors must be weighed. [ 59 ] It is an aggravating factor that the victims in this case were indigenous females who were under the age of 18.

Three sections of the Criminal Code make this clear: ss.718.04 directs that courts must consider the heightened risks of violence to indigenous females as they are members of a vulnerable group; s.718.2 (a)(ii.1) deems any abuse of a person under the age of 18 to be aggravating at sentencing; and s.718.01 requires that primary consideration be given to the sentencing objectives of denunciation and deterrence in crimes involving abuse of someone under 18 years of age. [ 60 ] It is also an aggravating factor that the victims in this case were offered cigarettes, alcohol, and money to engage in sex.

This demonstrated a concerted effort by SS to leverage whatever means he could to persuade the girls to have sex with him. [ 61 ] Turning to the mitigating factors, it is mitigating that the offender has no criminal record. It is also mitigating that he pled guilty to the offence. A guilty plea is a sign of remorse and an acceptance of responsibility that spares the victims from having to testify in court. As this court has said repeatedly, guilty pleas in Nunavut mean something, and must be shown to mean something. [ 62 ] It is also mitigating that the pre-sentence report is a positive one.

SS has a good job and supports his family. He hunts and fishes and provides food for his family and others in his community, and also helps with the community search and rescue. He also appears to have made better life choices since being charged, including quitting drinking. [ 63 ] SS is an Inuk man, which requires me to consider all available sanctions other than imprisonment that are reasonable in the circumstances. I also consider the unique systemic or background factors which may have played a

part in bringing SS before the courts, as well as the type of sentence that may be appropriate because of his indigenous background. [ 64 ] SS had a good upbringing and has a supportive family. Neither he nor his parents attended residential school. That does not mean to say that there are no Gladue factors applicable, however. He, like so many others in Nunavut, has experienced the death of a family member by suicide, and was himself suicidal three years ago. Also, his crime was alcohol related in a territory where alcohol abuse is rampant.

Both of these can be seen as systemic or background factors that played a role in his offence, which I take into account. [ 65 ] When assessing an appropriate sentence for SS I employ the fundamental principle of proportionality and look at the seriousness of the offence and SS’s moral blameworthiness in committing it. [ 66 ] As stated previously, the offence is serious. Furthermore, the moral culpability of SS is high. His intent was clear. He wanted to have sexual intercourse with underage girls who were 13 and 14 years old.

He offered them inducements of money, alcohol, and cigarettes, so they would go along with it. That his inhibitions were reduced by being intoxicated may help explain why he did what he did, but it in no way reduces his moral culpability. [ 67 ] Sexual offences, including those against children, occur in Nunavut at up to 10 times the rate they occur nationally. As Chief Justice Sharkey writes in R v.

G.H. at para 4 , “too many children in Nunavut, especially girls, deal with drunken and aroused adults coming into their bedrooms in the middle of the night.” [ 68 ] The prevalence of these kinds of offences is relevant respecting the need, from a local perspective, for an appropriately denunciatory sentence.

A clear message needs to be sent that there will be real and significant consequences for people who drunkenly invite children to have sexual intercourse, especially when they offer inducements such as money, alcohol, or cigarettes, to get them to take up the invitation. [ 69 ] Defence asks that I impose a conditional sentence, which is a jail sentence served in the community. A conditional sentence order can satisfy the sentencing objectives of denunciation and deterrence, as SS would be under house arrest and other significant restrictions.

Furthermore, it appears that a conditional sentence is a viable option in this case as SS has no prior criminal history, has respected his bail conditions, and has not gotten into any further trouble since being charged almost two years ago. Such a sentence would also allow him to maintain his employment and continue supporting his family.

SS has a good job for a man with a grade 9 education, in a territory where such jobs are few and far between. [ 70 ] Taking into account the aggravating and mitigating factors, including the guilty plea, the positive pre-sentence report, and Gladue factors, the appropriate sentence in this case is a conditional sentence of imprisonment of 120 days, and I impose sentence accordingly. [ 71 ] The conditions of the order are as follows: 1. Keep the peace and be of good behaviour; 2. Appear before the court when required to do so; 3.

Report to your conditional sentence supervisor within 2 days and thereafter as directed; 4. Remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from your supervisor. 5. Report any change of name, address, or employment to your supervisor; 6. Take any counselling as directed by your supervisor; 7. Abstain from the consumption of any intoxicating substances, including alcohol and marijuana, or any other drug except in accordance with a medical prescription. 8. You must live at your residence, or otherwise as directed by your supervisor. 9.

You must be inside your residence 24 hours a day, 7 days a week with the following exceptions: You may be outside your home for medical emergencies; to attend counselling sessions; to go directly to, be at, and return directly from work; every Friday between 1-3 pm; and otherwise with the written permission of your supervisor. 10. You must notify your supervisor and the RCMP of your work schedule. 11. You will answer the door if the RCMP knock on the door to see if you are complying with this order. 12.

You shall have no contact, direct or indirect with the two victims of your crime. [ 72 ] There will also be 12 months-probation to follow the conditional sentence, with the following conditions: 1. Keep the peace and be of good behaviour; 2. Report within 2 days of the completion of your conditional sentence to your probation officer and thereafter as directed; 3. Report any change of name, address, or employment to your probation officer;

4. Have no contact direct or indirect with the two victims of your crime; 5. Take counselling as directed by your probation officer; [ 73 ] There is also a mandatory DNA order. [ 74 ] I also impose a victim fine surcharge of $100 to be paid within 60 days. [ 75 ] There is the issue of whether or not I should impose an order that SS comply with the Sex Offender Information Registration Act . [ 76 ]

Section 490.012 provides that a person convicted of a

summary s.152(

b) offence is required to comply with the Sex Offender Information Registration Act for 10 years (ss.490.012 & 490.013(2)(

b) of the current Criminal Code ). [ 77 ] However, the Supreme Court of Canada released a decision R. v Ndhlovu, 2022 SCC 38 , on Oct. 28, 2022 finding this

section to be unconstitutional and of no force or effect. The declaration of invalidity, however, was suspended for one year, to give the government time to draft constitutional legislation. This means that the mandatory registering remains in force until Oct. 28, 2023. It is suggested that the appropriate change required to make the

section constitutional would involve giving judge’s discretion not to impose a SOIRA order in certain circumstances. [ 78 ] As stated by the Court in Ndhlovu at paragraphs 11 and 55 , the registry’s constraints on liberty are “insidious and pervasive” and the Crown offered “no evidence that demonstrates how these provisions are effective in helping police prevent and investigate sex crimes. Indeed, the sparse information in the record points in the opposite direction.” [ 79 ] Even though the Supreme Court suspended the declaration of invalidity for the mandatory enrolment, they granted Mr. Ndhlovu an exemption to

section 490.012 pending its declaration of invalidity, which means he did not have to register. [ 80 ] Whether or not an exemption is appropriate hinges on the perceived risk of re-offence – which is often rather difficult to determine.

However, it does appear that the risk of re-offence is low in SS’s case given his lack of prior criminal history and how he has conducted himself since being charged. [ 81 ] Further because SS travels for work, registry under SOIRA would impose a significant burden to him to regularly report his change of resident, with significant potential consequences including high fines and jail time for failing to comply. [ 82 ] Given this factor, the lack of evidence that SOIRA actually helps the police investigate sexual offences, and that SS is likely a low risk to re-offend, I have decided not to order him to comply with the Sex Offender Registry.

Dated at the City of Iqaluit this 12th day of June, 2023 ___________________ Justice C. Lyons Nunavut Court of Justice