R. v. Jararuse, 2020 NLSC 161

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Jararuse , 2020 NLSC 161 Date : December 18, 2020 Docket : 201808G0152 Her Majesty The Queen v. Thomas Jararuse Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Frances J. Knickle Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: September 17, 2020

Summary: The aboriginal offender was convicted of having committed multiple violent offences against the victim in the course of a standoff with the police. The offender, now 68 years of age, had a criminal history dating back over 40 years, which included offences of violence, as well as sexual offences. Almost all of his criminal behavior was related to his consumption of alcohol. The Crown sought to have the offender declared a dangerous offender and sentenced to a determinate period of imprisonment of 10 years and a supervision order of 10 years.

The offender conceded that he met the criteria under the Criminal Code to be declared a dangerous offender, but disputed the period of imprisonment sought by the Crown; seeking instead a period of imprisonment of 6 years. The parties were in agreement on all other aspects of sentencing. The offender was declared a dangerous offender and sentenced to a period of imprisonment of 8 years, coupled with a long term

supervision order of 10 years. Appearances: Jennifer E. Standen Appearing on behalf of the Crown Derek J. Hogan Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729; R. v. Dow, 1999 BCCA 117; R. v. Lacasse,2015 SCC 64; R. v. Jararuse, 2019 NLSC 207; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Friesen, 2020 SCC 9;R. v. Ipeelee, 2012 SCC 13; R. v. Ipeelee, 2001 NWTC 33; R. v. Ladue, BCPC 410; R. v. O’Keefe, 2018 NLCA 11; R. v. Squires, 2012NLCA 20; R. v. Obed, 2006 NLTD 155; R. v. Blackplume, 2019 ABPC 273; R. v. Bowman, 2018 MBQB 167; R. v.

G.M.F., 2016 MBQB208; R. v. Saccary (1995), (NS SC), 141 N.S.R. (2d) 177, 403 A.P.R. 177 (N.S.S.C.); R. v. Crowe, 2014 NSSC 210;R. v. Hutchings, 2012 NLCA 2; R. v. Crocker (1991), (NL CA), 14 W.C.B. (2d) 502, 93 Nfld. & P.E.I.R. 222 (Nfld.C.A.). STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Sex Offender Information Registry Act, S.C. 2004, c. 10. REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Thomas Jararuse was convicted after a judge alone trial of several offences under the Criminal Code of Canada, R.S.C. 1985,c. C-46 (the “Criminal Code”). These offences included: 1.

Sexual assault with a weapon under

section 272(a); 2. Assault with a weapon under

section 267(a); 3. Uttering threats to cause death or bodily harm under

section 246.1(1)(a); 4. Forcible confinement under section 279(2); 5. Possession of a weapon for a purpose dangerous to the public peace under section 88(2); and, 6. Two breaches of a recognizance arising from the offences by failing to keep the peace and be of good behavior and consumingalcohol contrary to section 145(3). [2] The section 88(2) offence was stayed under the principle in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729. [3] Upon the finding of guilt, the Crown advised of their intention to seek to have Mr. Jararuse assessed to determine whether ornot an application would be filed to have him declared a dangerous offender under

PART XXIV of the Criminal Code. The appropriateapplication in writing for the assessment under,

section 752.1, was filed, and consented to by counsel for Mr. Jararuse. The Order forremand for assessment was granted. Upon receipt of the report as required from Dr. Gill, a qualified forensic psychiatrist, the Crownfiled their application to have Mr. Jararuse declared a dangerous offender and the matter was set down for a hearing. [4] The hearing was conducted on September 17, 2020. The evidence in support of the Crown’s application was filed by consentand consists of four volumes of materials including the following:

• Report of Dr.

Jasbir Gill, dated May 29, 2020 • History of criminal convictions from Newfoundland and Labrador Provincial Court, from 1977-2019; 30 pages • Transcripts of facts and sentencings for December 4, 2009, December 2, 2010, November 8, 2011, October 18, 2012, October 3, 2013, December 4, 2014, September 16, 2015, April 18, 2017 and March 4, 2019 • Provincial correctional records: “Offender Unit Notes” • Federal Correctional Records 1974–2017 • Current detailed programming descriptions for Federal Corrections; particularly for aboriginal offenders [ 5 ] The federal correctional records included several psychological and risk assessments of Mr.

Jararuse, as well as progress reports and recommendations while Mr. Jararuse was incarcerated, or under supervision, by the federal correctional authorities. [ 6 ] The parties advised the Court that they were in agreement that Mr. Jararuse should be declared a dangerous offender. They also agreed that Mr. Jararuse did not need to be sentenced to an indeterminate period of imprisonment, as is the presumptive sentence upon being found a dangerous offender. Instead, as permitted by the Criminal Code , Mr.

Jararuse should be sentenced to a determinate period of imprisonment coupled with a long term supervision order (LTSO). [ 7 ] The only disagreement between the parties is the duration of the determinate sentence. ISSUES [ 8 ] The issues to be decided are: 1. Should Mr. Jararuse be declared a Dangerous Offender? 2. If the answer to the first issue is yes, should the sentence that is imposed be indeterminate or a determinate sentence with a period of long term supervision? 3. If the sentence to be imposed is a determinate period of incarceration, what is the fit sentence in these circumstances?

ISSUE 1: Should Thomas Jararuse be declared a dangerous offender? [ 9 ] The provisions governing an application to have an offender declared a dangerous offender are set out under

PART XXIV of the Criminal Code . Where an offender is convicted of a “serious personal injury offence”, as defined under

section 752 (not at issue in these circumstances), before the court can declare an individual to be a dangerous offender, the court must be satisfied of the criteria under subsection 753(1). [ 10 ] Section 753(1) states: 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [ 11 ]

Section 753 establishes four routes to finding that an offender is “dangerous”. Under subsection (a), in determining whether the offender “constitutes a threat to the life, safety or physical or mental well being of other persons” the court must be satisfied of one of

the three (3) criteria under subsections, (i), (ii), or (iii). Or, the court may be satisfied the offender meets the criteria under subsection (b), that “by his or her conduct in any sexual matter”, which includes the offence for which the offender has been convicted, if it is a sexual offence, “has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons” in the future, through that failure.

The Court can rely on any of the four routes and need not limit the determination to solely one criterion. [ 12 ] In these circumstances, I am satisfied that Mr. Jararuse meets the criteria under either sections 753(1)(a)(i), (ii), or subsection (b). [ 13 ] With respect to section 753(1)(a)(i), I am satisfied the evidence establishes that Mr.

Jararuse has engaged in a “pattern of repetitive behavior”, including the offences for which he has been convicted, in particular the assault with a weapon and sexual assault with a weapon, and has shown a failure on his part to restrain his behavior and shows a likelihood of causing death or injury to other persons. [ 14 ] I am also satisfied that the evidence establishes, under section 753(1)(a)(ii), that Mr.

Jararuse has shown a “pattern of persistent aggressive behavior”, which includes the offences for which he has been convicted, including the forcible confinement, the uttering threats, the assault with a weapon, and the sexual assault with a weapon, and shows a substantial indifference on his part respecting the “reasonably foreseeable consequences” to other persons of his behavior. [ 15 ] Finally, I am also satisfied under section 753(1)(

b) that Mr. Jararuse, by his conduct, including the offence of sexual assault with a weapon for which he has been convicted, has shown a “failure to control his sexual impulses” and a likelihood of causing injury, pain or other evil to other persons. [ 16 ] There is no dispute there is a “pattern of behavior” not only of the kinds of offences which he commits, which are violent, but that they are committed against the same class of victims, and almost always while under the influence of alcohol. Mr. Jararuse possesses a violent criminal history that dates from the early 1970’s, a period of almost forty years.

His victims are typically his intimate partner, or other family members or persons close to him, whether his daughter, or his sons when they were young, or as was the case here, his current partner, R.M.F. [ 17 ] As Dr. Gill observed in her detailed review of Mr. Jararuse’s criminal history at pages 17 to 19 of her report, Mr. Jararuse possesses approximately 35 convictions for varying types of assaults, as well as 5 convictions for sexual assaults. At page 16 of her report, Dr. Gill stated: Mr. Jararuse has a lengthy criminal record spanning from 1974 until 2018. His record does not depict versatile criminality.

The majority of his charges occurred in the context of alcohol use and were related to domestic violence (sexual and non sexual) with intimate partners, his children, or individuals outside the family who were known to him. [ 18 ] At page 25 of her report, Dr. Gill again summarized the pattern: Mr. Jararuse has a lengthy criminal record for violent acts towards others. There is a history of severe violence. There is also a lengthy history of serious supervision failures. There is a long history of conflict in his intimate relationships. [ 19 ] The history of Mr.

Jararuse’s repetitive violent behavior was also aptly described by Crown counsel in her written submissions at paragraph 18: Almost without exception the entirety of the Respondent’s substantive criminal record is related to his use of alcohol which in turn acts as a catalyst for acts of sexual and non-sexual violence against those closest to him – his intimate partners, family, and friends. [ 20 ] The federal correctional authorities described Mr. Jararuse’s circumstances this way in 1993 (Criminal Profile Report, Nov 3, 1993, Consent Book of Documents Volume 2): Mr.

Jararuse’s pattern of family violence has remained the same over the years. The family situation appears to do well when he is busy and his idle time is occupied with work or religious activities. When he is not busy, he resorts to using alcohol and when intoxicated assaults his wife and family members. Mr. Jararuse has established a cycle of offending that seems to be triggered by his idleness and alcohol use. [ 21 ] Dr. Gill’s observations of Mr. Jararuse’s circumstances and inability to control his use of alcohol, also show why there is likelihood that he will fail to restrain his behavior in the future. Dr.

Gill continued at page 25: He suffers from chronic and serious alcohol use disorder. There is a history of early childhood maladjustment including sexual abuse and physical violence in his home environment, alcoholism in his family, and multiple important losses in terms of deaths of loved ones. As well, Mr. Jararuse suffered the effects of relocation, which brought with it feelings of displacement, isolation, and an inability to fit in. Although he does respond well to therapeutic interventions during intensive programming, he has not yet effectively maintained those skills in the community.

I feel that his plans, as he stated them to me, lack feasibility and there is a high probability that he will not succeed. A large part of his plan to maintain his sobriety is based in relying on his church and spirituality. This is something he has utilized many times in the past, but has not maintained his sobriety. In his community there is a high probability he will be exposed to destabilizers, namely alcohol, stress and individuals and situations that will easily challenge his resolve to abstain. [ 22 ] Dr. Gill concluded, at page 25, that Mr.

Jararuse was at a high risk to re-offend: …based on the static and dynamic variables that impact Mr. Jararuse’s risk of recidivism, I would view Mr. Jararuse as being at high risk for sexual and non-sexual violent recidivism from a clinical psychiatric perspective. [ 23 ] I have reviewed the circumstances of the violent offences committed by Mr. Jararuse, as documented in the material filed in

support of the application, and I am more than satisfied and agree with the parties that, while not precise in their similarity, there is abundant similarity in the offences committed by Mr. Jararuse that demonstrate, as stated by Crown counsel in her written brief: “a pattern of repetitive behavior for sexual and non sexual violent offending” (see for example, R . v . Dow , 1999 BCCA 117 ). [ 24 ] With respect to having satisfied section 753(1)(a)(ii), I am satisfied that the circumstances underlying Mr.

Jararuse’s previous criminal offences, as well as the predicate offences, demonstrate a pattern of persistent and aggressive behavior, and a substantial indifference on his part. As stated by Dr. Gill at page 26 to 27 of her report: Although Mr. Jararuse does not express indifference or lack of concern for his actions and their impact on others, his indifference is apparent in that despite being keenly aware that his alcohol use leads him to offend violently and hurt others, and despite knowing that while sober he is very unlikely to perpetrate such violence, Mr.

Jararuse has repeatedly succumb to using alcohol. [ 25 ] Finally, with respect to section 753(1)(b), as his criminal history shows, Mr. Jararuse has been convicted of five previous sexual assaults. Dr. Gill placed Mr. Jararuse at a high risk to re-offend sexually (page 25 of her report); particularly if he continues to use alcohol. This is so, notwithstanding that with respect to the sexual offences committed against his daughter, Mr. Jararuse was not under the influence of alcohol. I am also satisfied this risk will likely cause injury.

The circumstances of the present sexual assault are compelling in this regard. Mr. Jararuse confined the victim at knifepoint, and assaulted her with the knife in trying to force her to perform oral sex on him. This was a traumatic ordeal for the victim, and she feared for her life. Mr. Jararuse threatened to kill her. [ 26 ] Upon review of all the material, including Dr. Gill’s thorough report, the correctional assessments, and the circumstances of the previous and predicate offences, I am satisfied that Mr. Jararuse meets the criteria under section 753 (1)(a)(i), (ii) and subsection (

b) as discussed above and declare that Mr. Jararuse is a dangerous offender. ISSUE 2: If the answer to the first issue is yes, should the sentence that is imposed be indeterminate or a determinate sentence with a period of long term supervision? [ 27 ] The relevant sections for the determination of the sentence to be imposed for a dangerous offender are sections 753(4)-(4.1), which read as follows:

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 28 ] The above sections require an indeterminate sentence, unless I am satisfied that the evidence supports a “reasonable expectation that a lesser measure”, as described in paragraphs 4(

b) or (

c) of

section 753, will adequately protect the public. [ 29 ] I am satisfied that the circumstances here do not require an indeterminate sentence. I am satisfied that a determinate sentence, coupled with a long term supervision order, will adequately protect the public. [ 30 ] As recognized by Dr. Gill, and throughout the plethora of assessments of Mr. Jararuse by the federal correctional authorities over the years, Mr. Jararuse’s risk to re-offend is most often related to his use of alcohol. When not consuming alcohol, Mr. Jararuse’s risk to offend is minimal. As stated by Dr.

Gill at page 25 of her report: He does not suffer from a major mental illness or personality disorder, including psychopathy and anti-social personality disorder. He is not, by nature, criminally minded. His offences have been largely confined to the context of his alcohol use and intimate familial relationships. Mr. Jararuse does have insight into his difficulties, but so far has not been able to translate that into a change in his behaviors when in the community. Mr. Jararuse, when not drinking, has been widely regarded as a nice person. He has demonstrated empathy and concern for others when sober.

He regrets his actions, he has shown a positive attitude towards engaging in most programming, and appears to benefit from intensive programming at least while incarcerated… [ 31 ] A review of the correctional records filed in support of the application bears out the observations of Dr. Gill. There is a constant theme that until, or unless, Mr. Jararuse learns to manage his use of alcohol, he will continue to engage in criminal behavior. But, when incarcerated, and without access to alcohol, and bound by other formal structures, Mr. Jararuse has done well. As stated by Dr.

Gill at page 27 of her report: Overall, the prognosis for Mr. Jararuse is guarded. However, when sober, and while incarcerated and engaged in intensive programming, Mr. Jararuse does display a number of personal strengths that almost defy the to which he has been unable to restrain his alcohol, and thus his violent tendencies. There might be a possibility of eventually controlling Mr. Jararuse’s risk in the community only if the following structure and conditions are implemented and Mr.

Jararuse is a willing an consistent participant in his own risk management, and given the very serious consequences of breaching conditions of a long term supervision order. Ideally, management of Mr. Jararuse’s risk in the community would consist of a three pronged approach, psychological interventions, biological interventions and social interventions.

[ 32 ] Dr. Gill then outlines a number of proposed structural interventions for Mr. Jararuse which may be of assistance to those charged with the management of his sentence. Dr. Gill’s report will be available to the correctional authorities to consider as they develop both programming and a reintegration plan for Mr. Jararuse. [ 33 ] Given the opinion of Dr. Gill, and the evidence that Mr. Jararuse has done well when under a formal supervised environment, I am satisfied that notwithstanding the risk he poses, this risk can be managed with a lesser measure than an indeterminate sentence.

I am satisfied, as recommended by counsel, who are both experienced in criminal matters, that a determinate sentence coupled with a period of long term supervision is appropriate in these circumstances. ISSUE 3: If the sentence to be imposed is a determinate period of incarceration, what is the fit sentence in these circumstances? [ 34 ] In being satisfied that an indeterminate sentence is not required in these circumstances, the issue then, is to determine the fit sentence. This determination follows the usual application of the principles of sentencing and considerations.

THE PRINCIPLES OF SENTENCING [ 35 ] The principles of sentencing are codified under the Criminal Code at sections 718 to 718.2 . Although Mr. Jararuse is now declared a dangerous offender, the principles still apply to the determination of the fit sentence. [ 36 ] Under

section 718.1, a sentence must be commensurate with the gravity of the offence and the degree of responsibility of the offender, sometimes referred to as the level of “moral blameworthiness” or the “proportionality principle”. Wagner, C. J. in R. v. Lacasse , 2015 SCC 64 explained the relationship between the proportionality principle to its subset the “parity principle” in sentencing, at paragraph 12: 12. In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender.

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. … [ 37 ] Under

section 718.2(a), a sentence should be increased or decreased according to any aggravating or mitigating factors. [ 38 ] As a dangerous offender, protection of the public is paramount in sentencing Mr. Jararuse in these circumstances. The circumstances of the offences [ 39 ] The evidence at trial was reviewed in detail in the decision on verdict in R. v. Jararuse , 2019 NLSC 207 . The facts will be reviewed here only to the extent necessary to explain the sentence that is to be imposed. [ 40 ] In these circumstances, the extent of the sexual assault was that Mr.

Jararuse tried to force R.M.F. at knifepoint to perform oral sex. In terms of the forcible confinement, he held her at knifepoint and barred in his bedroom for hours. He threatened to kill her repeatedly, and also physically assaulted her with the knife. He caused some minor injury to her hands and her neck in the course of the sexual assault. This ordeal only stopped when the police were able to intervene. The event was degrading to R.M.F. I take a serious view of the circumstances and have taken the seriousness into account, in fashioning the sentence imposed.

The impact on victim [ 41 ] The victim provided no victim impact statement to the Court. The lack of a victim impact statement does not mean there was no impact upon her for what happened. I accept that as a serious and violent offence, this was a traumatic experience and there will have been impact. This trauma was evident in her testimony. The degree of position of trust between the offender and the victim [ 42 ] The offender was not in a position of trust or authority towards the victim. She was not dependent on him. But she was his girlfriend.

R.M.F. was entitled to expect from him that she would not be sexually assaulted or confined at knifepoint. Public abhorrence of the offence [ 43 ] The public abhors sexual violence. While the extent of the assault and the degree of violence used were not the “worst” circumstances imaginable, any time that someone engages in sexual violence against their partner with a weapon is to be denounced in strong terms. All persons, including R.M.F., are entitled to have their sexual integrity respected by others. THE CIRCUMSTANCES OF THE OFFENDER [ 44 ] The personal circumstances of Mr.

Jararuse have been discussed in the determination to find that he is a dangerous offender and documented in the material filed with the Court. Mr. Jararuse has suffered many personal tragedies in his life, but has also had positive periods in his life where he has worked, has refrained from alcohol use and has been a good father. I take these considerations into account in determining the extent to which the sentence requires a lengthy period of incarceration. Attitude towards the offence [ 45 ] Although Mr.

Jararuse pleaded not guilty at trial, since being incarcerated he has expressed remorse and I accept that he takes responsibility for what happened. Now that he is and has been sober for almost two years, having been remanded in custody, Mr. Jararuse, as he has done often in the past, recognizes the wrongfulness of his behavior, how it hurts those close to him, and how alcohol plays a significant role in his committing criminal offences. I am taking this into account in fashioning the fit sentence.

The considerations under

section 718.2(

e) of the Criminal Code [46] Mr. Jararuse is aboriginal. Dr. Gill reviewed Mr. Jararuse’s family history in detail at pages 5 to 7 of her report. He is Inuit,and born in Hebron, Labrador, a former Moravian settlement which was eventually re-settled. He has spent his entire life in Labrador. He has also lived in several communities in Labrador. He has also experienced personal tragedies with the loss of family members.

Hisfather committed suicide when he was only six years old, and when his mother developed a relationship with his uncle, and re-married,his uncle was abusive physically to not only him, but his mother. Mr. Jararuse witnessed physical violence by his stepfather on hismother. [47] Mr. Jararuse has been in several relationships with other members of his aboriginal community. Most of the violencecommitted by him is in relation to these people (see pages 8 to 11 of Dr. Gill’s report). [48] Mr. Jararuse began consuming alcohol at a young age and witnessed alcohol abuse in his family and the community. AlthoughMr.

Jararuse had several siblings, two are now deceased. Dr. Gill observed that the several losses in his life have caused him to feelabandoned and this sense of abandonment has played a role in how he has responded with violence to his intimate partners. [49] His circumstances as an aboriginal, both specifically to him but also as someone who has been affected by the adverse systemiceffects of being aboriginal, are relevant to determining the fit sentence as per

section 718.2(

e) of the Criminal Code.

Section 718.2(e)states: 718.2 . . . (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [50] The background and circumstances of an aboriginal accused can play a role in how that particular accused comes to be beforethe court, and it is appropriate and necessary to acknowledge such circumstances as mitigating (R. v. Gladue, (SCC),[1999] 1 S.C.R. 688).

As stated in Gladue (at paragraph 80): As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For thisoffence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code?What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and hisor her community? What combination of systemic or background factors contributed to this particular offender coming before the courtsfor this particular offence?

How has the offender who is being sentenced been affected by, for example, substance abuse in thecommunity, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denouncecrime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved throughhealing? What sentencing options present themselves in these circumstances? [51] Mr. Jararuse’s personal circumstances are tragic, and reflect many of the background and systemic issues facing aboriginalpersons who find themselves before the court.

I reviewed this history, and find that his personal circumstances as an aboriginal personare mitigating. THE POSITIONS OF THE PARTIES [52] As stated earlier, the parties are largely in agreement on the appropriate resolution. They disagree solely as to the appropriatelength of the determinate period of incarceration. The Crown requests a total period of incarceration of 10 years; counsel for Mr. Jararuseseeks a total period of imprisonment of 6 years. Both parties agree that Mr.

Jararuse should be given the usual credit on a 1 to 1.5 basisfor the time he has spent in custody pending the resolution of this matter. [53] Counsel have filed a number of authorities in support of their respective proposed ranges. The decisions are discussed below.Upon review of the precedents provided by counsel and the principles of sentencing, both proposals are supportable and within range. THE RANGE OF SENTENCE [54] Because of the serious nature of the current offences and the particular circumstances of both the offences and Mr. Jararuse,there is no dispute that Mr.

Jararuse is facing a lengthy period of incarceration. [55] For the offence of sexual assault with a weapon, in this case a knife, Mr. Jararuse is liable to a maximum penalty of 14 yearsimprisonment. For both the assault with a weapon, and forcible confinement, Mr. Jararuse is liable to a maximum period of 10 yearsimprisonment. For uttering threats, a maximum of 5 years imprisonment is available.

The available maximum punishment for breachinghis recognizance is 2 years imprisonment. [56] A review of the precedents below, provided by counsel, illustrate the kinds of sentences that have been imposed for similartypes of offences and offenders in similar circumstances. Consideration of precedents and ranges of sentence are necessary and helpfulin fashioning the fit sentence, as it assists the Court in achieving the proper parity in sentence. However, as stated in Lacasse, I keep inmind that the sentencing ranges as illustrated in other precedents are not “straightjackets”. The Supreme Court in R. v.

Friesen, 2020SCC 9 reaffirmed that sentencing ranges are “guideposts”, not a firm set of rules. At paragraph 37, the court stated: This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules (R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v. Nasogaluak, 2010SCC 6, [2010] 1 S.C.R. 206, at para. 44; Lacasse, at para. 60). Appellate courts cannot treat the departure from or failure to refer to arange of sentence or starting point as an error in principle.

Nor can they intervene simply because the sentence is different from thesentence that would have been reached had the range of sentence or starting point been applied (McDonnell, at para. 42). Ranges of

sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard ofreview to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273.

As this Court heldin Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences (paras. 60-61; see also McDonnell, atparas. 33-34). [57] As pointed out further in Friesen, sentencing courts, particularly appellate courts, in establishing ranges of sentence must becareful to refrain from creating ranges solely based on specific sexual activity. At paragraph 141, the court stated: We would not go so far in this case as to hold that defining a range or starting point according to the type of physical acts that it capturesnecessarily amounts to an error of law.

However, we would strongly caution provincial appellate courts about the dangers of defining asentencing range based on penetration or the specific type of sexual activity at issue. [58] Counsel for Mr. Jararuse provided R. v. Ipeelee, 2012 SCC 13, not only for its important guidance on the application of theprinciples of

section 718.2(

e) but as an example of the range of sentence. The offence that was at issue on the sentence appeal that madeits way to the Supreme Court of Canada was the breach of an LTSO. Mr. Ipeelee had been declared a long term offender, and sentencedto a period of incarceration of 6 years, with an accompanying supervision order of 10 years (Ipeelee at paragraph10 referencing R. v.Ipeelee, 2001 NWTC 33). [59] The circumstances in Ipeelee have similarities to the circumstances here. The predicate offence for which he was convictedwas a violent sexual assault. Mr.

Ipeelee was aboriginal, and had a long history of alcohol abuse that was related to his level ofrecidivism. He had a significant history of violent offences, including sexual offences. Unlike Mr. Jararuse, Mr. Ipeelee was alsodiagnosed with anti-personality disorder which played a role in him being designated a long term offender. He was also much youngerthan Mr. Jararuse, being 39 years old at the time of the hearing of his appeal of sentence for breaching the supervision order. [60] The circumstances of the appellant in the companion appeal with Ipeelee, R. v. Ladue, BCPC 410, also is helpful. Mr.

Laduehad a history of violent offending while under the influence of alcohol. The predicate offence for him having been declared a long termoffender was also sexual assault. He was also aboriginal, and experienced many of the same systemic factors experienced by Mr. Ipeeleeand Mr. Jararuse as aboriginal. Unlike Mr. Jararuse, but similar to Mr. Ipeelee, Mr. Ladue was diagnosed with antisocial personalitydisorder. He was also diagnosed with sexual sadism. In declaring him to be a long term offender, Mr.

Ladue was sentenced to 3 yearsimprisonment (taking into account 14 months spent in remand) and a 7 year supervision order. Mr. Ladue was much younger than Mr.Jararuse at the time he was declared a long term offender. [61] Counsel for Mr. Jararuse also provided the decision from the Newfoundland and Labrador Court of Appeal, R. v. O’Keefe,2018 NLCA 11. The decision does not deal with the appropriate determinate period of incarceration for either a dangerous or long termoffender, but does provide helpful guidance in sentencing offenders who are of advanced age.

This is a relevant consideration in thesecircumstances as Mr. Jararuse is now 68 years old. In O’Keefe, the offender was convicted of multiple historical sexual assaults and was70 years old at the time of sentencing. At paragraphs 36 to 37, Hoegg, J.A., speaking for a unanimous court stated: 36 The case law in this jurisdiction respecting offenders of advanced age appears to relate to the state of the offender's health and itsrelationship to life expectancy and thus would not be a reason to reduce the sentence in Mr. O'Keefe's case because there is no evidenceof declining health (R. v.

O. (J.N.) (1993), (NL CA), 103 Nfld. & P.E.I.R. 256, 326 A.P.R. 256 (Nfld. C.A.) at para.13). More recently, however, the Supreme Court of Canada has acknowledged advanced age to be a legitimate sentencing consideration,as stated by Lamer C.J. in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 (S.C.C.) at para. 74: However, in the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should bemindful of the age of the offender in applying the relevant principles of sentencing.

After a certain point, the utilitarian and normativegoals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimationof the offender's remaining natural life span. Accordingly, in exercising his or her specialized discretion under the Code, a sentencingjudge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender's expected remaining life spanthat the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value.

But withthat consideration in mind, the governing principle remains the same: Canadian courts enjoy a broad discretion in imposing numericalsentences for single or multiple offences, subject only to the broad statutory parameters of the Code and the fundamental principle of ourcriminal law that global sentences be "just and appropriate". 37 Accordingly, advanced age can be a legitimate factor for consideration on sentencing an offender on the logical basis that his orher sentence could surpass any reasonable expectation of his or her natural life span. [62] In these circumstances, I find that notwithstanding that the offences for which Mr.

Jararuse is to be sentenced are serious, andthat there must be a significant emphasis on the protection of the public, as stated by Hoegg, J.A., the sentence I impose must not surpass“any reasonable expectation of his or her reasonable lifespan”. As Mr. Jararuse is almost seventy years old, apart from the period ofincarceration to be imposed, he will be supervised until he is well over eighty. This is effectively for the rest of his life. I have taken intoaccount Mr. Jararuse’s advanced age in fashioning the fit period of imprisonment. [63] Counsel also provided R. v.

Squires, 2012 NLCA 20, again not for an example of the range of sentence that might be imposed,but to remind the Court that in considering the fit sentence to consider what is known as the “jump” principle in sentencing. That is tosay, while a repeat offender can expect increased levels of punishment, including increased periods of incarceration for subsequentoffences, sentences should, generally, increase gradually (see Squires at paragraphs 35 to 37); particularly if the increase will interferewith prospects for rehabilitation and re-integration. I appreciate that the longest sentence Mr.

Jararuse has served has been 4 years.Counsel for Mr. Jararuse argues given this, the Court should consider whether a period of incarceration of 10 years is too significant anincrease and offends the jump principle. [64] The extent to which a sentence is increased may attract scrutiny for taking too great an increase, is not solely an assessment of

the amount of an increase that might occur, but is also governed by the principles of proportionality and its subset parity in sentencing.That is to say, while a sentencing court might be inclined to avoid an increase that results in too much of a “jump” in severity from theprevious sentence imposed, the court must impose a sentence that is proportionate to the level of moral responsibility of the offender andthe circumstances. In doing this, the court must also keep in mind the principle of parity.

A court cannot avoid an increase in sentencesolely because the gap between the previous sentence and the sentence to be imposed is significant.

As stated in Squires, at paragraph 40(midway through): … The question is whether, in the circumstances, having regard to the nature of the offence and applying appropriate sentencingprinciples, a significant or substantial increase in punishment cannot be supported because it results in an error in principle or ademonstrably unfit sentence. (citations omitted) [65] What the Court must impose is a sentence that is fit given these circumstances, and for this offender (see also Lacasse). WhileMr. Jararuse has never served a period of incarceration surpassing four years, this is also the first time Mr.

Jararuse has been convicted ofboth sexual assault with a weapon and forcible confinement as part of the same event. He is also now declared a dangerous offender.

Without losing sight of rehabilitation and reintegration to the extent that it is appropriate given that I am satisfied to impose a determinateperiod of imprisonment and supervision order, in fashioning the fit sentence, the protection of the public is paramount in thesecircumstances. [66] For this reason, while I take into consideration that the period of incarceration imposed should not be increased as a matter ofcourse, the application of principles of proportionality and parity and all the sentencing principles, these circumstances result in asignificant sentence greater in duration than periods of incarceration of which Mr.

Jararuse has previously served. The sentencing precedents provided by the Crown [67] The Crown provided a number of precedents also illustrating range of sentences imposed in similar circumstances. [68] In R. v. Obed, 2006 NLTD 155, a 34 year old aboriginal offender with fetal alcohol syndrome (FASD), was sentenced to 10years for sexual assault by forcing sexual intercourse with the victim. He was also sentenced to 3 years concurrent for the assault, and 1year imprisonment for breach of probation. The offender also kicked and punched the victim.

He possessed a lengthy and violentcriminal history including seven prior sexual assaults. [69] In R. v. Blackplume, 2019 ABPC 273, also an aboriginal offender, and a transgendered female, was designated a dangerousoffender after being convicted of sexual assault with a weapon against one person and assault causing bodily harm against a person whointervened to assist the victim. The offender was sentenced to 10 years imprisonment for the determinate part of the sentence to befollowed by a 10 year supervision order. The offender was 29 years of age. [70] In R. v.

Bowman, 2018 MBQB 167, the offender was convicted of two counts of sexual assault with a weapon and two countsof uttering threats. Mr. Bowman conceded the Crown’s request to have him declared a dangerous offender and receive a determinatesentence. The offender possessed four previous convictions for sexual assault. He was sentenced to 6 years on the first sexual assaultand 10 years consecutive on the second. The length of the supervision order was 10 years. Mr. Bowman was not aboriginal. [71] In R. v.

G.M.F., 2016 MBQB 208, a 31 year old aboriginal offender was convicted of sexual assault with a weapon, forcibleconfinement, uttering threats and breach of probation. The sexual assault on the victim, with whom he was romantically involved, wasvicious. The offender had possessed a previous criminal history for violence and had poor prospects for rehabilitation.

Taking intoaccount the adverse systemic factors that impacted the offender as aboriginal, the court imposed a period of incarceration of 9 years forthe sexual assault with a weapon, 1 year concurrent for the forcible confinement, 8 months for uttering threats, and 1 year for the breachof probation. [72] In R. v. Saccary (1995), (NS SC), 141 N.S.R. (2d) 177, 403 A.P.R. 177 (N.S.S.C.), the offender’s sentenceof 9 years incarceration for sexual assault with a weapon was upheld on appeal. The offender confined the victim for hours, repeatedlysexually assaulting her at knifepoint.

The offender was an acquaintance of the victim. The two had been drinking. The offenderpossessed a limited criminal history. In upholding the 9 year sentence imposed by the trial judge, the Nova Scotia Court of Appeal statedat paragraph 36: It is difficult to imagine the terror which the victim must have felt, as she feared for her life, while the appellant – wielding a knife –degraded, abused and violated her. [73] The above applies to the situation in which R.M.F. found herself in being confined and threatened by Mr. Jararuse at knifepointand sexually assaulted.

While the circumstances of the assault may be more aggravating than in the present circumstances in that thesexual assault also involved intercourse, the circumstances of the confinement are similar. Mr. Saccary was also much younger than Mr.Jararuse, and possessed a less serious criminal history. I find the circumstances here are helpful in determining the fit sentence inrelation to Mr. Jararuse. [74] In R. v. Crowe, 2014 NSSC 210, the offender was sentenced to 10 years imprisonment for sexual assault causing bodily harm,forcible confinement, and breaches of two separate court orders.

The attack involving forced vaginal and anal intercourse was stoppedonly because of a passerby. The offender was designated a long term offender as a result of the convictions and was sentenced to 10years imprisonment to be followed by a 10 year long term supervision order. [75] The above precedents support that significant periods of incarceration have been imposed for offences such as those committedby Mr. Jararuse.

The most severe sentence was a total sentence of 16 years imposed in Blackplume for two separate sexual assaultsinvolving the use of a weapon; and it is not unusual to see a period of incarceration exceeding 8 years. I note that in those circumstanceswhere 10 years was imposed, the circumstances of the assaults were arguably more serious than the circumstances here. [76] I am satisfied that the above precedents support that the fit sentence in these circumstances is at the midpoint of the range

suggested by counsel of 6 and 10 years. The Aggravating Factors [77] The aggravating features in the present circumstances are the level of violence in committing the sexual assault and assaults, inphysically harming the victim, and subjecting her to several hours of torment in which she feared for her own life. Although R.M.F.provided no formal victim impact statement, her testimony during the trial revealed the profound impact upon her. Further aggravatingis the lengthy and related criminal history of Mr. Jararuse which supports that protection of the public is paramount in thesecircumstances. When Mr.

Jararuse is consuming alcohol he is dangerous to those closest to him. The sentence I impose must adequatelyaddress the need to protect the public until such time as he can be safely reintegrated back into his community. The Mitigating Factors [78] In mitigation, I accept that Mr. Jararuse is genuinely remorseful for his conduct and intends to try and take steps to address hisalcohol abuse, which is at the heart of his inclination towards recidivism. Dr. Gill’s opinion, which I accept, and is uncontradicted, isthat with the adequate support structure in place there is a reasonable prospect for Mr.

Jararuse’s reintegration into the community. Ialso accept that Mr. Jararuse’s circumstances as aboriginal are mitigating; and that the circumstances here are a classic illustration of thesystemic factors that influence aboriginal persons being overrepresented in the criminal justice system. I also accept as mitigating hisadvanced age as discussed in O’Keefe.

THE FIT SENTENCE [79] In balancing the aggravating and mitigating factors in these circumstances, and when considered with the circumstances andsentences imposed in other decisions, the fit sentence is a total period of incarceration of 8 years, less time spent in pre-trial custody,coupled with a long term supervision order of 10 years. In my view, this duration of sentence not only adequately reflects the seriousnessof the circumstances, and Mr.

Jararuse’s personal circumstances, but will ensure he is able to have sufficient time to avail of the intenseprogramming that the federal correctional system has to offer. He has done well when involved in such programming in the past, and it ismy hope that he can achieve success with his reintegration into the community with the intensive programming that is tailored for him,both as a recidivist and as an aboriginal. [80] In fashioning this sentence, I am mindful that I am dealing with a number of offences. Below, I have indicated what thesentence is for each of the offences.

In the interest of totality, and given the circumstances, and keeping in mind the principles in R. v.Hutchings, 2012 NLCA 2 and R. v. Crocker (1991), (NL CA), 14 W.C.B. (2d) 502, 93 Nfld. & P.E.I.R. 222 (Nfld.C.A.), I am making all of the sentences concurrent. While there were distinct acts constituting each offence, as the offences were all partof an ongoing incident, the sentences should run concurrent. [81] I am also making the sentence in relation to the 2 breaches of the court order concurrent.

Ordinarily, for the consequence ofbreaching the court order to have meaning, this sentence would run consecutive to the other offences. However, given the severity of thesentence imposed in these circumstances, the principle of totality warrants that this period of imprisonment imposed for this sentencealso be concurrent. Credit for time spent in custody awaiting resolution of these matters [82] My understanding from counsel is that they are in agreement that Mr. Jararuse be given credit for his time spent in custody,based on a 1 to 1.5 ratio. Mr.

Jararuse has been in custody since his arrest on February 22, 2018. That is a period of two years or 730days, and 301 days for 2020, including today’s date, for a total of 1031 days. At a ratio of 1 to 1.5, he is to be given credit of 1546.5 daysof which I will round to 1547 days credit.

This is to be deducted from the 8 year sentence imposed (2920 days) which results in the timeremaining to be served of 1373 days, a little under 4 years. [83] A further 4 years (approximately) in custody will not only protect the public but will provide the necessary time for Mr.Jararuse to engage in appropriate programming, and allow those charged with the management of his sentence to be satisfied that he isready for release into the community. ANCILLARY ORDERS Order Authorizing the Taking of Bodily Substances for Forensic DNA Analysis [84]

Section 272(

a) of the Criminal Code is a primary designated offence under

section 487.04(a)(xii), as is

section 267(

a) undersection 487.04(a)(ix). As primary designated offences, an order that Thomas Jararuse provide a suitable sample of his DNA ismandatory under

section 487.051(1). [85] It is ordered pursuant to

section 487.051 that a peace officer be authorized to take or cause to be taken from Thomas Jararusethe number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking thesamples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection487.06(1) of the Criminal Code; and that, if the person taking the samples is not a peace officer, they take them under the direction of apeace officer.

Firearms’ Prohibition [86] Section 109(1) of the Criminal Code requires a mandatory prohibition from possessing any firearms and other related weaponsor ammunition for an offender convicted of an offence for which he is liable to a period of imprisonment of ten years or more whereviolence had been used in the commission of the offence.

[ 87 ] I order that an order under section 109(3) be imposed in this case. Thomas Jararuse is prohibited from possessing any firearm, other than a prohibited firearm or a restricted firearm (for which another prohibition is made therein), and any crossbow, restricted weapon, ammunition and explosive substance, for life after his release from imprisonment. Order to Comply with Sex Offender Information Registration Act (SOIRA) [ 88 ]

Section 272(

a) is a designated offence under subsections 490.011(1)(a)(xvii) of the Criminal Code . Given this,

section 490.012(1) of the Criminal Code requires an offender to be subject to the Sex Offender Information Registry Act , S.C. 2004, c. 10 ( SOIRA ). I order that Thomas Jararuse be subject to such an order under

section 490.012 for life, as per sections 490.012(3) and 490.013(5). Prohibition of contact while incarcerated [ 89 ] It is further ordered, pursuant to

section 743.21, that Thomas Jararuse shall not communicate either directly or indirectly with the victim, R.M.F., during the custodial period of his sentence. CONCLUSION [ 90 ] Pursuant to

section 753, Thomas Jararuse is declared a dangerous offender.

Pursuant to section 753(4.1), I am satisfied that the sentence imposed should be determinate. [ 91 ] For the offence of sexual assault with a weapon, Thomas Jararuse is sentenced to 8 years incarceration. [ 92 ] For the offence of assault with a weapon, Thomas Jararuse is sentenced to 2 years incarceration, concurrent to the sentence of sexual assault with a weapon. [ 93 ] For the forcible confinement, Thomas Jararuse is sentenced to 2 years incarceration to run concurrently to the sexual assault with a weapon sentence. [ 94 ] For the offence of uttering threats, Thomas Jararuse is sentenced to 2 years incarceration to run concurrently with the other sentences. [ 95 ] For the two breaches of recognizance Mr.

Jararuse is sentenced to 1 year imprisonment on each and to run concurrently with the other offences. [ 96 ] The total period of imprisonment is 8 years or 2920 days, less credit of 1547 days, for a period of imprisonment of 1373 days, a little under 4 years. [ 97 ] Following his release from custody, Thomas Jararuse is subject to a period of long term supervision of 10 years. [ 98 ] Thomas Jararuse is also subject to the above-described ancillary orders in paragraphs [85] to [90]. [ 99 ] Judgment accordingly. _____________________________ Frances J. Knickle Justice