R. v. E.F., 2020 NUCJ 20

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. E.F., 2020 NUCJ 20 Date: 20200605 Docket: 18-181-173 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: E. F. ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): S. Arngna’naaq Counsel (Accused): S. Hayward Location Heard: Rankin Inlet and Iqaluit, Nunavut Date Heard: March 12, April 7, and June 1 2020 Matters: Sentencing for offence under Criminal Code of Canada, RSC 1985, c C-46, ss. 272(1) (

c) REASONS FOR SENTENCE (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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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 ] E.F. has pled guilty to a charge of sexual assault causing bodily harm. He is before the court to be sentenced. II. FACTS [ 2 ] On September 15, 2018, E.F. was intoxicated.

By being intoxicated he was in breach of a court order that he not drink. He went to the home of the victim. He was angry with the victim and accused her of being unfaithful to him. He locked the front door of the residence and broke the phone. He told the victim's six year old son to go upstairs to his bedroom. He then began to verbally abuse and physically assault the victim. The physical assault consisted of punches to the victim's stomach, face, chest, and arms.

In the course of the assault he partially undressed the victim, digitally penetrated her, and punched her in the vagina several times. [ 3 ] After about an hour and a half, E.F. started to calm down and the victim was able to put on a dress. She started to clean the house. She was able to flee the residence when E.F. went to look out a window. [ 4 ] The victim fled the house without a coat or shoes, leaving her young son in the house.

She was offered a ride and was taken to the health centre. [ 5 ] The victim had bruising and swelling to her forehead, bruising on her face, a laceration under her right eye, bruising on her hands, arms, and legs, and a laceration on her left wrist. One of the lacerations required six sutures to close. Her labia were swollen.

[ 6 ] The description of the injuries does not truly reflect the extent and nature of the injuries. The photograph of the victim's injuries, filed as an exhibit in the sentencing proceedings, gives a greater appreciation of the nature of the injuries. III. POSITIONS ON SENTENCE & PROCEDURAL HISTORY [ 7 ] E.F. had elected to be tried by a judge sitting with a jury. The matter was set for a jury trial in February of 2020, however counsel reached an agreement that resolved the matter and the jury trial was cancelled.

The matter was put over for sentencing in March. [ 8 ] At the sentencing hearing Crown and Defence submitted a joint position on sentence of two years less a day to be followed by three years probation. They agree upon a lifetime firearms prohibition, a DNA order, and registration as a sexual offender for 20 years under the Sexual Offender Information Registration Act (SOIRA). [ 9 ] I expressed concern regarding the joint submission and invited counsel to provide further submissions. Those submissions were provided in writing and I thank counsel for them. IV. CIRCUMSTANCES OF E.F. [ 10 ] E.F. is 36 years old.

He is Inuk. His childhood home was violent but there was no alcohol or substance abuse. E.F. himself started drinking when he was 18. He advises that his criminal record is all alcohol related. [ 11 ] He and the complainant have known each other for approximately 14 years and have had three children together; two live with them and a third was adopted out. [ 12 ] E.F. has been in custody since the date of this offence, that being September 15, 2018. At the time of his arrest he had an outstanding charge of aggravated assault, for which he was sentenced on November 8, 2018.

Consequently, most of his time in custody since this offence has been serving a sentence. He has been on remand in relation to this offence since February 10, 2020. [ 13 ] I am advised that E.F. has made good use of his time in custody, having completed several programs and having participated in the land program. [ 14 ] E.F. has a related and recent criminal record, which is concerning.

It consists of the following convictions: Date of conviction Offence Sentence 1998 (youth) Sexual assault 2009-11-19 2 convictions for simple assault 1 conviction for assault causing bodily harm Global sentence of 6 months, 1 year probation 2012-06-28 Assault and uttering threats 4 months CSO, 1 year probation 2013-11-07 Uttering threats, assault causing bodily harm 10 months 2018-11-08 Aggravated assault 690 days (23 months) 10 year firearms prohibition V. CONSIDERATION ON A JOINT SUBMISSION

[ 15 ] The analysis through which a sentencing judge considers a joint submission is different than the analysis which is brought to determining a sentence in a matter where there is not a joint submission. [ 16 ] In determining whether or not to accede to the joint submission on sentence I must apply the test set out by the Supreme Court of Canada in the case of R. v. Anthony-Cook , 2016 SCC 43 .

I must not depart from a joint submission on sentence “unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest” (at para 32). [ 17 ] A joint submission will bring the administration of justice into disrepute if it is “so markedly out of line with the expectation of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system” (at para 33). [ 18 ] A joint submission on sentence must be viewed in the context of the role joint submissions and resolutions between counsel play in the criminal justice system. [ 19 ] This context was discussed at length by the Supreme Court of Canada in Anthony-Cook and it is worthwhile to review it. [ 20 ] Resolution of issues by counsel, which includes joint submissions on sentence, are integral to the criminal justice system.

Such resolutions promote the efficient use of court resources and provide benefits to all parties involved. [ 21 ] I wish to dispel any notion that a joint submission on sentence is of benefit only to the offender. Victims of crime often benefit from a joint submission on sentence. It spares the victim and other witnesses from having to testify in court, a process which is often very difficult for them.

The guilty plea that accompanies joint submissions is an acknowledgment of responsibility on the part of the offender which, in turn, may be the beginning of healing for the victim. [ 22 ] From the perspective of the Crown, in those cases where there are triable issues and a conviction is far from assured, a joint submission on sentence ensures a conviction.

In some instances, the offender may have information in relation to the matter at hand or in relation to other matters which is only available to the authorities in the context of an agreement. [ 23 ] From the perspective of the offender, a joint submission brings finality to a stressful and often times prolonged and costly situation.

For the offender who wishes to make amends and access rehabilitative programming, concluding outstanding criminal matters is a necessary first step. [ 24 ] For all parties, a joint submission brings certainty of outcome to the process. [ 25 ] It is clear that if the benefits that joint submissions bring to all aspects of the justice system are to be realized, all parties must be reasonably certain that a joint submission will be accepted by the court. Anything that undermines the parties’ confidence that a joint submission will be accepted also undermines the benefits that joint submissions bring to the process.

It is this broader, systemic view that the sentencing judge must bring to the process. [ 26 ] I wish to be clear that this does not mean that the court is abdicating to counsel its responsibilities to ensure that the sentence imposed addresses the necessary sentencing principles. The court is the gatekeeper. The court cannot be bound by an agreement between counsel nor should it accept such agreements without question.

But the court must respect and acknowledge the role and responsibility of every participant in the judicial system. [ 27 ] Crown counsel have a responsibility to protect the community’s interests and Defence counsel to protect the interests of the accused. Their respective roles, taken together, protect the broader public interest. Both counsel make important decisions throughout the progress of a criminal matter through the court. Absent compelling reasons, their decisions made at this stage of the process, should not

be undermined. As stated by the Supreme Court of Canada in Anthony-Cook , counsel “are entirely capable of arriving at resolutions that are fair and consistent with the public interest (Martin Committee Report, at p. 287)” (at para 44). [ 28 ] I wish to comment on counsel’s obligation to put before the court “the full circumstances of the offence, the offender, and the joint submission” ( Anthony-Cook at para 54 ).

Ensuring that there is sufficient information before the court to assist both the court and the public in understanding the reasons why a joint position was put forward is necessary for the court to discharge its responsibilities and to ensure that the criminal justice system is accountable to the public it serves. In my view however, this does not mean that the court should become involved in analyzing the minutiae of the case. Indeed, such an undertaking may undermine the reasons for and benefits of a joint submission.

For example, there may be circumstances that are particularly sensitive for the victim but which would necessarily be disclosed in the course of a trial. In such a case, Crown counsel is in the best position to determine and weigh the importance of a resolution that ensures the victim does not have to testify.

Another example might be a case where the integrity of ongoing investigations or police investigative techniques would be compromised if the matter proceeded to trial. [ 29 ] Clearly, in such examples, if the Crown is required to disclose all of this information to the court then the benefit of the joint submission is lost. Counsel are presumed to be acting within the ethical constraints of the profession. VI.

THE JOINT SUBMISSION IN THIS CASE [ 30 ] As stated, the joint submission in this matter is a jail term of two years less a day to be followed by three years probation. [ 31 ] The agreement on the joint position was reached after considerable discussion between counsel and between Crown counsel and the victim and Defence counsel and his client. [ 32 ] In their submissions counsel have acknowledged the aggravating features of the offence; including the fact that the victim was the intimate partner of the offender and that the offender has prior related convictions, including some on the same victim. [ 33 ] Counsel submit that the joint submission acknowledges the fact that E.F. and the victim will have to continue to co-parent their young children.

E.F. has been in custody at the Rankin Inlet Healing Facility and has been able to have visits with his children. This continued contact, along with some of the programming he has taken and hopefully will continue to take, will enhance the likelihood of a positive parent-child relationship more so than if E.F. were sent to a southern institution for an extended period of time.

Further, the lengthy period of probation which would follow, permits continued supervision to ensure public safety and continued programming and counselling to facilitate rehabilitation. [ 34 ] Counsel have also indicated that there are additional facts that would likely have come out at a trial that may have made it even more difficult for the victim to testify. The joint submission alleviates this pressure. This factor also demonstrates one of the concerns about a judiciary which is overly interventionist on joint submissions. Counsel know the file better than the court does.

They have spent considerable time with it and with the parties who are affected by the proceedings. VII. CONCLUSION [ 35 ] The sentence for sexual assault causing bodily harm is 729 days. E.F. has spent 112 days in remand for this charge. He is entitled to enhanced credit at a rate of 1:1.5, for 167 days credit. [ 36 ] Upon his release from custody he will be on probation for a period of 3 years. The terms of the probation order are: a. Keep the peace and be of good behaviour; b. Appear in court as required;

c. Notify the court or the probation officer of any change of name or address and any change or employment or occupation; d. Report to the probation officer within 7 days of your release from custody and thereafter as directed; e. Take such counselling as directed; f. No contact directly or indirectly with the victim; g. Child care shall be arranged through an independent third party; and h. For the first 18 months of the probation order, abstain from the possession or consumption of alcohol. [ 37 ] Ancillary Orders: a. DNA, mandatory pursuant to s. 487.04; b. Lifetime firearms prohibition, s. 109; c.

Register pursuant to the Sexual Offenders Identification Registry Act for 20 years; and d. No contact with the victim while in custody, pursuant to s. 743.21. Dated at the City of Iqaluit this 5th day of June, 2020 ___________________ Justice S. Cooper Nunavut Court of Justice