R. v. Sakakeep, 2013 ONCJ 507

Citation: R. v. Sakakeep , 2013 ONCJ 507 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DANNY SAKAKEEP PROCEEDINGS AT SENTENCING BEFORE THE HONOURABLE JUSTICE P.T. BISHOP On July 16 th , 2013 at SIOUX LOOKOUT, Ontario

APPEARANCES: M. Mousseau Counsel for the Crown D. Gunn Counsel for Danny Sakakeep TUESDAY, JULY 16, 2013 ... MISS MOUSSEAU: In the afternoon of Wednesday, September 26 th , 2012, J.M., D.M. and M.M. were playing in the vicinity of an abandoned trailer in the area commonly referred to as the old trailer park of Big Trout Lake, Ontario. This was a, an area that was fairly close to where they lived. At approximately 1:00 p.m., Danny Sakakeep contacted Tracy Sainnawap. Danny Sakakeep is the accused before the court. They had broken up the previous day and he contacted her about the status of their relationship.

She had advised them the relationship was over and she had their two children who were an infant and a toddler and advised him that they were going to be living with her mother. Danny Sakakeep indicated that the news was very upsetting to him; he felt lost, depressed and angry. He went to the trailer of Jerry Duncan within the old trailer park area and began consuming homebrew with a group of community members. He then returned to his trailer and went to sleep. When he awoke he was again feeling thoughts of depression and rage and throughout his statement to the police he indicated how very very angry he was.

He had thoughts of suicide and considered ending his life. He attended the outside of his trailer to have a cigarette. The four M. children were playing nearby and he approached them. The four children did not know this man, who was Danny Sakakeep. Danny Sakakeep told them to go to his trailer, which was a short distance away and the group of children followed his direction and went with him to the trailer. He was seen by many community members walking towards the children. D.M. was told to go into the bathroom; he complied and Danny Sakakeep locked the door to the bathroom.

So the one little boy was locked in the bathroom. Danny Sakakeep then told M.M. and R.M.; the eight and six year old girls to go into his bedroom. J.M., the five year old girl remained in the living room and was watching television. M.M. and R.M. entered the bedroom as directed by Danny Sakakeep. M.M. indicated the room was dark and she was scared. Sakakeep followed M.M. into the bedroom, closed the door and proceeded to undress himself and then undress M.M.. M.M. stated that he was looking at pictures of girls in magazines that he kept in a green box.

With D.M. present in the room, Danny Sakakeep pushed M.M. on the bed and proceeded to penetrate her anus with his finger. He then mounted her and penetrated her vagina with his penis. She said that the man’s penis was too big and it hurt her bum. She began crying and Danny Sakakeep; he punched her several times in the face. At one point Danny Sakakeep told M.M. that he’s going to kill someone if she told and she believed he was going to kill her brother, D.M. who was locked in the bathroom. M.M. cried out for help and Danny Sakakeep put his hand over her nose and mouth and she had trouble breathing.

M.M. indicated that she would not, could not leave the residence because Danny Sakakeep would not let her go. Danny Sakakeep then punched R.M. in the face causing her nose and mouth to bleed. R.M. noticed that Danny Sakakeep did not have any clothes on and that, that M.M. seemed to be missing several articles of her clothing. Danny Sakakeep instructed R.M. to remove her clothing. She was taking too long; he became impatient and began to pull of her pants and underwear in one motion. Danny Sakakeep then had R.M. sit on his lap and penetrated her vagina with his penis.

R.M. indicated that she began to cry and that his actions hurt her. During this time, J.M. heard the Sisters crying; she believed the man was bothering her sisters and she went to the bathroom, unlocked the door and released her brother. J.M. indicated that she and her brother snuck away and ran home. At approximately 7:30 p.m., J.M. and D.M. arrived home. They appeared frightened and they told their parents, L.A. and R.M. that the man had taken M.M. into the trailer and closed the door.

Unsure of the severity of the circumstances, R.M. and L.A. drove J.M. and D.M. to the old trailer park, which was a short distance from their house and the area where their children were last seen. He checked several trailers – R.M. did – but did not locate R.M. or M.M.. After some hesitation, J.M. advised L.A. which trailers that the man had taken them and she identified it by identifying a wooden box outside the door. L.A. knocked on the door and the windows of Danny Sakakeep`s trailer. No one answered but you could hear movement inside the door; she could hear the television.

She continued to knock and she also indicated that she could tell someone had looked out of the peephole in that door because it was clear and then it was dark. Eventually she observed two children inside the trailer; she was R.M. and M.M. through a living room window. She spoke with R.M. and advised him her girls were inside. R.M. recognized the trailer as belonging to Danny Sakakeep. While L.A. waited outside, R.M. unlocked the front door and observed a male known to him to be Danny Sakakeep wearing underwear and socks escaping from the residence through an open window.

One of the socks was purple in color and actually belonged to M.M.. R.M. attempted to grab Danny Sakakeep to prevent him from fleeing the trailer, but Danny Sakakeep slid out the open window and got away. R.M. observed his daughter M.M. inside the trailer pulling up her pants; she did not have a shirt on and complained about having a sore vagina. R.M. called out to L.A. that Danny was escaping out the window. L.A. and R.M. then began to chase Danny Sakakeep, who was running outside attempting to flee the scene.

R.M. and L.A. pursued Danny Sakakeep on the, on foot away from the trailer and caught him a short distance later, knocked him to the ground by R.M. kicking him in the chest. Both L.A. and R.M. kicked Danny Sakakeep several times while he was on the ground. L.A. had to physically restrain R.M. and pleaded to him to stop kicking Danny Sakakeep and call the police. R.M. left the scene to contact the police while L.A. remained with Danny Sakakeep. R.M. attended a nearby residence belonging to L.M. and requested to use his phone and they, he did not have one so ultimately they went to P.B.`s and used his cell phone.

R.M. contacted police advising him [sic] that his children had been physically and sexually assaulted by Danny Sakakeep. R.M. was visibly upset and distraught and which attracted several community member’s attention. Ultimately there were a number of people who located

Danny Sakakeep laying on the ground and kept him there until police arrived, while R.M. and L.A. took their children to the Nursing Station. Ultimately the children did provide videotape statements shortly thereafter this incident advising what happened. There were medical reports as well – if I could have just one moment.... ... MISS MOUSSEAU: Actually, just as part of the facts I was going to provide verbally to Your Honour, that when the children were seen at the Nurse's Station, they did have injuries consistent with being punched in the face as they indicated.

M.M. had bruising around her eyes and R.M. had blood coming out her nostrils. The children were taken for additional medical care and examination at the Thunder Bay Regional Health Sciences Centre. The doctors were able to perform a more thorough physical examination. They determined that with respect to R.M., she did have some genital damage. they indicated that the external genitalia in anal examination were normal.

The hymen was, was difficult to view due to discomfort and fear, but they did note a bruise at the six o'clock position and increased arrhythmia and following examination 12 hours later with improved visualization, indicated that there was bruising and, of the hymen at the six o'clock area, mild edema extending partially into the labia majora, minora with – and this was photographed. The doctor advised that they would not expect to see this kind of damage through digital penetration alone; it would be penal penetration that would be significant.

And they did find that these are positive findings indicative of, of blunt force penetrating trauma consistent with the history provided by the child. Similarly, M.M. was also seen at the Centre in Thunder Bay. They determined that she also had difficulty with the original examination, but subsequently they were able to examine her genitals and she had a partial thickness laceration with bruises to the base of her labia minora.

The nurse originally also witnessed a, a tear in the vagina that was bleeding fairly heavily when she was brought into the nursing station as well and her findings were also consistent with the history provided. So there was significant medical findings. There were also DNA samples taken and submitted to the Centre of Forensic Sciences; three DNA reports came back. Blood was found on the wall of the bedroom, of Danny Sakakeep's bedroom and blood was also swabbed from his penis. Both the blood on the wall and the blood from his penis belonged to M.M..

There was blood on his hands and the swabs taken from them; that belonged to M.M.. There was sperm on M.M.'s genitals that belonged to the accused or I should say technically the term is 'could not be eliminated' by something like 481 trillion, thereabout. So, in any event I'm just gonna say it was his sperm. There was blood on M.M.'s panties and semen and saliva and a hair found in her panties. There was also saliva, blood and hair found in R.M.'s panties and the blood in fact matched M.M.'s blood.

The blood in, in R.M.'s panties matched M.M. and the semen – the blood also found matched semen that was found in a condom, which was found to be coming from Danny Sakakeep. As indicated, there was a condom found at the scene, as well with semen located that belonged to Danny Sakakeep. So a fair bit of significant physical, medical and DNA evidence as well. The accused did provide a caution videotape statement to police. It was not fully inculpatory; he indicated that he didn't recall a lot of what happened. Through the course of the statement, he did eventually provide some detail.

He certainly didn't deny any of the allegations put to him by the officers, to what the children had indicated happened. He did indicate throughout that he was in a rage while this was going on and that he wished that someone would come and kill him, but that was somewhat in the face of the fact that he fled out the window when the parents did arrive. So I believe those are essentially the salient facts for Your Honour's consideration. ...

REASONS FOR JUDGMENT Bishop, J. (Orally): All right well your guilty plea – I remember you wanted to plead guilty right out of bail court without the assistance of counsel and the court gave several adjournments for you to get counsel and referred it to Nishnawbe-Aski Legal Services because I would have appointed you counsel if you did not get one on your own. Fortunately Mr. Gunn came forward to represent you. It's important that your views are known and that we have a very complete report, psychological report from Dr. Somers and I will deal with that firstly.

It appears that you see yourself somewhat as a victim; you may or may not have wanted to – because you are so hurt by Tracy Sainnawap, you wanted to go out and do something so horrendous that people would kill you. Well that did not happen. The parents, the police, the community of Big Trout Lake came together; you were eventually arrested and the Rule of Law prevailed and you are here now to face these charges. But I note from a very early stage, you wanted to plead guilty and take full responsibility.

It does not logically explain why you would abduct or kidnap these children and sexually assault them both digitally and penile to affect that purpose. It just is beyond belief that you would do that because in fact you hurt the children. You caused them not only physical harm, but emotional harm. You caused the community emotional harm and hurt and the Chief and Council were canvassed several times in Big Trout Lake whether this charge should go back to Big Trout Lake for sentencing there; they declined.

They were given opportunities on two or three occasions to participate by video, but they declined as well because the hurt is palpable, it's touchable; you can feel it in Big Trout Lake. What you did has really damaged the community, their reputation and their trust in one of their own Band members. I have looked at the Gladue consideration. I thank the Crown for putting together this complete book. You know I have to look at general denunciation and deterrence and I have to look at you as an Aboriginal offender. Officer Gilfix's pre-sentence report is not as complete as some that he has prepared.

You have accepted responsibility, but you declined to give any collateral information because you did not want to hurt your family; you have isolated yourself from your family and I understand that, but it would have been more helpful to the court. So I have to look at you as an Aboriginal offender; you have a good work record, you have a relatively minor criminal record and it is really beyond belief that you would terrorize these young boys and girls the way that you did. It was prolonged, it was difficult for them; it was beyond difficult, it was horrible for them.

You know, one is waiting while you are doing your assaults while the other one is watching. One finally escapes and gets some help and we all know what happened in the end. So I hope that you will be able to take whatever counselling is available to you and I am quite familiar with Big Trout Lake. I have been going there you know, for 12 years as a lawyer and for almost 20 years as a judge. I am quite in tune with the Gladue considerations. I know about the lack of resources, the lack of

counselling, the lack of amenities that many people from Big Trout Lake have, but that does not take away from their morality, that does not take away from the politicality where they, they exercise their rights under the Treaty, under their autonomous right as a Band to make laws and to regulate their people under Band bylaws in Big Trout Lake and you have breached your commitment as a Band member to that community. I reviewed all of these cases that have been here.

Gladue of course talks about general denunciation and deterrence, but it has to be balanced with the Aboriginal aspect of it and I take that into account. You have been relatively unscathed by that; you had a difficult problem with your father. Father was an authoritarian figure, as principal. You got along well with your mother and you quit your school just short of grade 12, but you got an equivalent sort of to defy him.

It shows an independence on your part and you have been employed for a relatively good period of time in Big Trout Lake and elsewhere at both the Community Store, working for Tikinagan and so on. I have read that in the pre-sentence report. You now are here to face the consequence of this and I take into account that it is going to be a severe consequence to you, but that is the way we as a community, as a society punish people who do something so heinous, something so unspeakable to these young children.

The parents are so distraught, they cannot even talk about their feelings or write about their feelings and as a parent yourself, you have to reflect back; what if someone had done that to your children. How would you feel as a parent, particularly these very young children who were innocent, minding their own business playing in a trailer. Your directed them into your trailer and physically and sexually and emotionally assaulted them. In these circumstances I accept the joint submission.

The penalty will be six years in the Penitentiary for the kidnapping or the abduction and three years consecutive on the sexual assault and three years concurrent on the sexual touching. It all happened at the same time. There will be a lifetime SOIRA order; sexual offenders information registry. You know that there is a very strict compliance with a set of rules that you will have to comply with. Hopefully as a way to prevent any future occurrence like this. There will also be a DNA order. I am also going to – how soon can that be done? It looks like he may already have it, but....

COURT OFFICER: It can be done today. THE COURT: All right, by 6:00 p.m. today; a sample of your blood will be taken and put on the registry. You will also be prohibited from owning, possessing or using any firearm, ammunition, explosive device. It is a minimum of 10 years, but because the sentence is punishable by life imprisonment on the abduction, I am going to make it a lifetime prohibition for weapons, either restricted, any weapon for the rest of your life. You cannot own, possess or use any firearm, ammunition, explosive device, prohibited weapon for the rest of your life.

Is there anything further that counsel would request or ask? MISS MOUSSEAU: I would just request that the nine months pre-trial custody, perhaps be attributed as well to the kidnapping, so it's... THE COURT: All right. MISS MOUSSEAU: ...nine years from today with the... THE COURT: Right. MISS MOUSSEAU: ...pre-trial custody... THE COURT: The 10... MISS MOUSSEAU: ...attributed.

THE COURT: ...the 10 months, I have taken that into account; the time you spent in pre-trial detention and the sentence that I imposed is consistent with the caselaw that is presented to me by the Crown Attorney and the defense lawyer and I am mindful of the fact that it is a joint submission. So I give you 10 months pre-trial detention on the kidnapping charge; so it is six years after that, the penalty on that particular charge. Do you have any questions?

I will also make a recommendation that you – it is – I cannot order it, but that you serve a portion of your sentence at the Regional Psychiatric Centre in Saskatoon and particularly engage in some counselling for sexual deviant behaviour or a sexual offenders program. I cannot order that, but you should make sure that your classification officer knows that you are ready, willing and able because it is reported in Dr. Somer's report that you are willing to do that. Your, your explanation defies understanding because it does not fit with your background; it does not fit with what your history has been.

It is so out of touch with what a normal responsible human being would do. So there might be some underlying sexual deviant behaviour or consideration that should be addressed by some healthcare professionals, so I will make that recommendation, but you will have to talk to your classification officer about where you might go. There may be other programs for sexual offenders that you could sign up for and take or be assigned to within the Federal Penitentiary system. All right, any questions? MR. SAKAKEEP: No. THE COURT: All right, well good luck in your rehabilitation.

COURTROOM CLERK: Did you want the DNA on the kidnapping or the sexual assault? THE COURT: Put it on the kidnapping then please. COURTROOM CLERK: And the weapon’s is on.... THE COURT: The kidnapping. COURTROOM CLERK: And the SOIRA's on the other two? THE COURT: Yes. COURTROOM CLERK: (inaudible). THE COURT: It can be on here.

MISS MOUSSEAU: Thank you and the remainder of the charges can be withdrawn please. THE COURT: All right, all other charges will be marked withdrawn at the request of the Crown Attorney. Is there anything further Mr. Gunn? MR. GUNN: No Your Honour, thank you very much. THE COURT: All right. I will give you – the casebook will be exhibit five and this will help. There is, there is going to be a transcript and the clerks or the monitors have a hard time when you say it in, in orally, figuring out what the cases are and the correct citations, so I am going to mark that as exhibit five is it? COURTROOM CLERK: It is.

EXHIBIT NUMBER 5 : Casebook – Produced and marked. THE COURT: All right, thank you. MISS MOUSSEAU: Thank you Your Honour. That is my only matter today. THE COURT: Thank you.