R. v. D.F., 2021 NUCJ 39

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. D.F., 2021 NUCJ 39 Date: 20210819 Docket: 22-20-22 22-20-30 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: D.F. __________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): B. Flight Counsel (Accused): P. Falvo M. Mannochio Location Heard: Iqaluit, Nunavut Date Heard: August 19, 2021 Matters: Sentencing in regards to sections 151 , 173(2) , 271 , and 163.1(4) of the Criminal Code of Canada REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” 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 ] D.F. has pleaded guilty to two charges of sexual interference, one charge of indecent exposure, one charge of sexual assault, and one charge of possession of child pornography.

He is before the court to be sentenced. II. FACTS [ 2 ] The facts are as follows: A. September, 2018 (s.151, sexual interference): [ 3 ] In September of 2018 the offender was 28 years old and was in a relationship. He touched the bum of his girlfriend’s 9-year-old daughter when she was sleeping with her brother in the grandmother’s room.

B. November, 2019 (s.151, sexual interference): [ 4 ] In November of 2019 the RCMP received a complaint from a 10-year-old victim that the offender had touched her on two occasions. On the first occasion she was touched on the vaginal area, on top of her clothing. On the second occasion she was sleeping at her grandmother’s house when the offender touched her on the bum. There was skin to skin contact. C. May 2, 2020 (s.173(2), indecent exposure): [ 5 ] The 10-year-old victim was at the home of the offender’s girlfriend. The victim was in a bedroom, playing.

The offender exposed himself to her by pulling down his pants and holding on to his penis. D. June 11, 2020 (s.271, sexual assault): [ 6 ] The cousin of the offender awoke in the early morning hours to find her cousin, the offender, touching her. He had touched her vagina while she was sleeping. She had felt his hand go inside her and he was attempting to take her pants off. While he was doing this the button on his own pants was open. When the offender realized the victim had woken up he stopped and left the room.

E. (s. 163.1(4), possession of child pornography) [ 7 ] The common-law partner of the accused spoke with the police after he had been arrested on the above-noted charges. She told police that she had found pictures on a laptop computer that was used by the accused, herself, and their children, ages 10 - 12 years. She had first seen the images on the computer 2 years before speaking with the police. [ 8 ] The police executed a search warrant and seized a laptop that contained 192 pornographic images of children.

The images ranged from naked young girls posing by themselves to young girls engaged in activities with adult men that involving penetration. Some of the images were obtained from the internet while others were generated in Nunavut. The images generated in Nunavut are 15 images of an erect male penis near the hands or face of young children. One of the children is also a victim of one of the sexual interference charges for which the accused is being sentenced. III. LEGISLATION [ 9 ] The two charges pursuant to s.151 of the Criminal Code are subject to a mandatory minimum penalty of 90 days in custody.

The charge pursuant to s.173(2) of the Criminal Code is subject to a mandatory minimum penalty of 30 days imprisonment.

The charge pursuant to s.163.1(4) is subject to a mandatory minimum penalty of 12 months. [ 10 ] Pursuant to s.718.3(7) the sentences imposed for each offence must be served consecutively. [ 11 ] There is seemingly conflicting case law from this jurisdiction regarding the constitutionality of the mandatory minimum sentence for a conviction under s.151 of the Criminal Code . [ 12 ] While it is clear that a judge of concurrent jurisdiction (in this instance, the Nunavut Court of Justice) is not bound by a declaration of unconstitutionality made by a colleague, the binding effect, if any, and the process for re-litigating the issue is unclear.

[13] In this jurisdiction, the practice has been that a different case, engaging the same legislative provision, requires a further challengebe brought to the legislative provision in each subsequent case (see: R. v. Ookowt, 2017 NUCJ 22; R. v. Itturiligaq, 2018 NUCJ 31, bothoverturned on appeal on unrelated issues). This has the potential to lead to conflicting jurisprudence from the same court on theconstitutionality of legislative provisions. [14] The Ontario Court of Appeal recently addressed the issue in R. v.

Sullivan, 2020 ONCA 333, stating at paragraph 38: Other superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlierdeclaration is plainly the result of a wrong decision: R. v. Scarlett, 2013 ONSC 562, at para. 43; Re Hansard Spruce Mils Ltd., (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. It is obvious that a superior court judge cannot determine that there iscogent reason to conclude that the earlier decision is plainly wrong without the benefit of argument, facilitated by fair notice to theparties.

Therefore, where a party seeks to rely on a statutory provision that has been declared to be unconstitutional by a superiorcourt judge, a subsequent trial judge should apply that earlier declaration of invalidity and treat the statutory provision ashaving no force or effect, unless the underlying constitutional issue has been raised by the Crown before them throughsubmissions that the earlier decision is plainly wrong.

In this way, the principles of stare decisis can operate, while recognizing thatthe effect of a s. 52(1) declaration is not confined to the litigation in which the declaration is made. (emphasis added) [15] Sullivan suggests that a declaration of constitutional invalidity by one judge is binding on judges of concurrent jurisdiction, unlessthe Crown raises the issue for consideration in subsequent cases and given a full hearing. [16] In R. v. G.

H. 2020 NUCJ 33, Sharkey C.J. held that the mandatory minimum sentence provided for in s.151 is unconstitutionalwhile finding that, in the circumstances of the matter before him, a sentence that exceeded the mandatory minimum sentence wasappropriate. In G.H. the Defence had brought an application to strike down the mandatory minimum sentence so the matter was properlybefore the court for consideration. [17] In the subsequent case of R. v.

C.D., 2021 NUCJ 20, the court found that the mandatory minimum sentence in s.151 isconstitutional, stating “Until such time as the Nunavut Court of Appeal or the Supreme Court of Canada rules otherwise, the mandatoryminimum regime is in full force and effect.” The intended impact of this pronouncement is difficult to assess.

To the extent that itpurports to overrule the decision in G.H. or to bind other judges of this court, it is incorrect. [18] The court in C.D. was not called upon to consider the constitutionality of the mandatory minimum sentence, as Defence Counselhad not brought an application to strike down the

section nor, if one follows Sullivan, had the Crown sought to revisit the decision inG.H. [19] In a subsequent application for bail pending appeal in C.D. the Court of Appeal stated: “The written reasons for decision containconsiderable obiter discussion of the constitutionality of the mandatory minimum sentence for these offences.” (R v C.D., 2021 NUCA10, at para. 14) [20] Blacks Law Dictionary, 6th edition, defines obiter dictum as follows: Words of an opinion entirely unnecessary for the decision of the case.

A remark made, or opinion expressed, by a judge, in his decisionupon a cause, “by the way”, that is, incidentally or collaterally, and not directly upon the question before him, or upon a point notnecessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument. Such are not bindingas precedent. [21] It is generally discouraged to engage in making obiter comments in a judgment as it is not binding legal precedent and may suggestthat the judge has predetermined an issue which he might yet be called upon to adjudicate.

[ 22 ] There is also the concept of comity to consider. Simply put, 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 earlier ruling. A comprehensive discussion of the principle can be found in R. v. Chan , 2019 ONSC 783 . [ 23 ] An issue of procedural fairness also arises.

Both the current practice of this court and the procedure set out in Sullivan require a hearing on the issue, with notice to various parties and an opportunity to be heard. [ 24 ] As both G.H. and C.D. are currently before the Court of Appeal, it may be that we will receive guidance on the impact of a declaration of constitutional invalidity and the procedure to be followed when the constitutionality of the provision is an issue in subsequent cases. [ 25 ] The Ontario Court of Appeal decision in Sullivan is not binding on this court however, it is persuasive.

The effect of the practice as set out in Sullivan is tempting from a practical perspective, as it does not require the constant re-litigation of an issue and has the potential to provide some certainty for litigants, while still providing an opportunity for an issue to be re-litigated. [ 26 ] Given the Crown’s position, which was that it was following and accepting the Ontario Court of Appeal decision in Sullivan , I accept that the declaration of constitutional invalidity in G.H . is valid for the purposes of this matter. IV. POSITIONS OF THE PARTIES A.

Crown [ 27 ] While the Crown adopts the Ontario Court of Appeal decision in Sullivan and concedes that the declaration of constitutional invalidity in G.H. should apply, nonetheless, the Crown submits that the 30-day mandatory minimum is a fit sentence on the s.151 convictions. [ 28 ] The global sentence sought by the Crown is 845 days, broken down as follows: - sexual interference - 90 days - sexual interference - 90 days consecutive - indecent exposure - 30 days consecutive - sexual assault - 180 days consecutive - possession of child pornography - 15 months (455 days, joint submission) B.

Defence [ 29 ] The accused did not have the same Defence Counsel throughout the sentencing hearing. He was represented by one lawyer on all of the charges except the child pornography charge. A second lawyer took over conduct of the files and the child pornography charge proceeded through to a guilty plea and a sentencing hearing. [ 30 ] Defence Counsel in relation to all of the charges, except the child pornography charge, did not suggest a range of sentence.

[ 31 ] On the child pornography charge counsel have presented a joint submission of 15 months. V. THE VICTIMS [ 32 ] With the exception of one, the children in the pornographic images originating in Nunavut could not be identified. The victims were offered the opportunity to provide a Victim Impact Statement but most declined. The court has been provided with a statement from the victim of the sexual assault. She is clearly traumatized and experiences ongoing fear as a consequence of the offence. VI. THE OFFENDER [ 33 ] D.F. is 31 years old.

He has a minor criminal record which is not relevant to the matters before me. He is a grade 12 graduate. His experience in the wage economy includes working for a mining company as a driller’s helper and working on DEW line site clean-up. He has expressed a desire to continue his education and attend college. [ 34 ] He has been in a relationship for approximately 5 years.

I expect that this relationship is over given the victimization of the son of his common law partner. [ 35 ] D.F. has a 16-year-old daughter from a previous relationship who lives with her grandmother, although he and his daughter have a good relationship. [ 36 ] In addition to the Gladue factors that are common to all Inuit, D.F. has recently disclosed that he was sexually abused as a young person.

The circumstances of this abuse might provide some insight into D.F.’s offending. [ 37 ] I am advised that starting at the age of seven, D.F. was sexual abused by an older female, who in later years became his common law partner. I have not been advised of the age difference between the two; whether it a couple of years and the activity was between children or whether it was with an adult and the activity was criminal. I do not have any information about the nature of the sexual activity that constituted the abuse, its frequency or duration.

It may be that this sexual activity at such a young age impacted on D.F.’s perception of what is normal for young children and what constitutes an appropriate relationship, but I am unable to make that link without further information. [ 38 ] D.F. has been in custody on these matters for over a year. This is his first time in custody. He has had access to programming. Nonetheless, his time in jail has been difficult for him. He was recently assaulted and was medevac’d as a result. VII. ANALYSIS [ 39 ] The sentencing principles are set out in s.718 of the Criminal Code .

They are: - to denounce unlawful conduct; - to deter the offender and others; - to separate the offender from society, when necessary; - to assist in rehabilitating offenders; - to provide reparations for harm done; and - to promote a sense of responsibility in offenders and to acknowledge the harm done. [ 40 ] The fundamental principle of sentencing is parity; the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 41 ]

Section 718.01 of the Criminal Code states that where the offence involves the abuse of a person under the age of 18 the primary sentencing principle must be denunciation and deterrence. [ 42 ] With the exception of the sexual assault offence, all of D.F.’s offences involved the abuse of children. The Supreme Court of

Canada in R. v. Friesen , 2020 SCC 9 , recently discussed the sentencing principles to be considered when sentencing for sexual offences against children. [ 43 ] Friesen states that when Parliament amends the Criminal Code to provide a greater maximum penalty for an offence, the direction being given to sentencing judges is that the sentencing regime for that offence has changed and more severe penalties are required.

Friesen also states that sentences for sexual violence against children must reflect society’s deeper understanding of the harm done by such offences. [ 44 ] A sentence for sexual violence against a child must give effect to: - the inherent harmfulness of sexual violence against children - the potential harm from sexual violence against children, some of which may manifest during childhood and some may not become apparent until adulthood - actual harm present at the time of sentencing, and - the harm the offender intended or paid no heed to. [ 45 ] The facts in Friesen , and perhaps to some extent in the matter before me, demonstrate the cycle of sexual violence.

Both offenders were victims of sexual violence as children, and both went on to commit acts of sexual violence against children. VIII. AGGRAVATING FACTORS [ 46 ] There are a number of aggravating factors in the offences before me. The fact that the victims of the offences were children, in and of itself, is not an aggravating factor, as it is an essential element of each of the offences except the sexual assault. The aggravating factor of a child victim is accounted for in the direction that the paramount sentencing principle must be denunciation and deterrence.

However, depending where the victim falls on the spectrum of ages that might be caught by such offences, the age of the victim may be an aggravating factor. [ 47 ] The offender in this case breached trust relationships in committing some of the offences. He stood in loco parentis to one of the victims and another victim is his cousin. [ 48 ] I must consider the risk of the offender reoffending, but I have no information regarding this.

The number of offences, the period of time over which they occurred, and the nature of the various offences support the conclusion that the offender has a long-standing proclivity for children. These offences were not isolated incidents. [ 49 ] In mitigation, the offender has entered guilty pleas. This court has stated on several occasions that a guilty plea for these types of offences is a significant mitigating factor. IX. CONCLUSION [ 50 ] The sentence is as follows: a.

On each of the sexual interference charges: 90 days, consecutive b. indecent exposure: 30 days, consecutive c. sexual assault: 180 days, consecutive

d. possession of child pornography: 455 days, consecutive [ 51 ] TOTAL: 845 days X. PRETRIAL CUSTODY [ 52 ] The offender has been in custody since June 11, 2020, a total of 434 days. [ 53 ] He is entitled to enhanced credit at the rate of 1:1.5, for credit of 651 days pretrial custody. The sentence remaining to be served is 194 days. [ 54 ] While in custody he will not have any contact with any of the victims. [ 55 ] The jail term will be followed by a period of probation of one year.

The terms of the probation order are: 1. keep the peace and be of good behaviour; 2. appear before the court when required; 3. notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation; 4. report to a probation officer within 5 days of your release from custody and thereafter as directed; 5. take such counselling as directed; 6. no contact directly or indirectly with any of the victims. XI. ANCILLARY ORDERS [ 56 ] There will be the following ancillary orders: 1. DNA 2.

SOIRA: life 3. s.161 Order for a period of 10 years, commencing on the day of release from jail, with the following conditions: - not to be in the presence of anyone under 16 unless in the presence of a sober, responsible adult; - not to use the internet except for work purposes or under the supervision of a sober, responsible adult.

4. Victim of Crime Surcharge: waived for reasons of hardship Dated at the City of Iqaluit this 19th day of August, 2021. ___________________ Justice S. Cooper Nunavut Court of Justice