R v Pauloosie, 2022 NUCA 3

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Pauloosie, 2022 NUCA 3 Date: 20220503 Docket: 25-21-014-CAP Registry: Iqaluit Between: Her Majesty the Queen Appellant - and - Darren Pauloosie Respondent Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ The Court: The Honourable Justice Jo'Anne Strekaf The Honourable Justice L. Bernette Ho The Honourable Justice Anne Kirker

_______________________________________________________ Memorandum of Judgment Appeal from the Sentence by The Honourable Justice S. Charlesworth Dated the 15 th of January 2021 Filed the 12 th day of February 2021 (R v Pauloosie, 2021 NUCJ 9 , Docket: 25-19-25) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: Introduction [ 1 ] The respondent was convicted of four counts of sexual interference involving a person under the age of 16 years, contrary to s. 151 of the Criminal Code , RSC 1985, c C-46 .

He was sentenced to two years less a day on each count, to be served concurrently, followed by two years’ probation. The Crown appeals and asks this Court to vary the respondent’s sentence to four to five years imprisonment. [ 2 ] We dismiss the appeal for the following reasons. Background [ 3 ] On four occasions in January and February of 2017, the respondent invited the complainant to his house over social media. On each occasion, the respondent had been drinking. The complainant went to the respondent’s house late at night and they had sexual intercourse. The respondent was 20 years old.

The complainant was 12. [ 4 ] In 2019, the respondent was charged with four counts of sexual interference contrary to s. 151 of the Criminal Code , which states: Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days. [ 5 ] The Crown proceeded by indictment. The respondent pleaded not guilty, and his trial took place in January of 2021. [ 6 ] The respondent admitted to having sex with the complainant. The only issue at trial was whether the respondent had an honest but mistaken belief that the complainant was at least 16 years old when the sexual intercourse took place.

Section 150.1(4) of the Criminal Code states that it is not a defence to a charge under s. 151 “that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.”

[ 7 ] The trial judge was not satisfied there was an air of reality to the s. 150.1(4) defence and found that the respondent was reckless as to the complainant’s underage status. The respondent was convicted of all four counts of sexual interference. Sentencing Proceedings Pre-Sentence Report [ 8 ] A pre-sentence report was prepared on March 26, 2021. It noted that the respondent is an Inuk individual with strong family support and no criminal record. He has a three-year old daughter, whom his mother adopted, and he lives with his mother, his siblings, and a niece and nephew in the Hamlet of Taloyoak, Nunavut.

There was substance abuse in the respondent’s home when he was growing up, and he was impacted by poverty around age 13, when, according to the report, “there was hardly any food for him.” The respondent began to drink alcohol and use marijuana in his late teens after he finished grade nine and started to work. This was the first time he had money. The respondent was employed with First Air for three years before becoming unemployed in 2019. He expressed remorse for the offences and was willing to engage in the rehabilitative process.

A mental health consultant for the Government of Nunavut who knows the respondent’s mother well and has known the respondent since he was a small child said she was willing to provide support for him if he chose to attend counselling and to facilitate a residential referral if addiction treatment was required. Position of the Parties [ 9 ] The Crown submitted that an appropriate sentence for the respondent’s offences was in the range of four to seven years.

However, after considering the mitigating and aggravating factors in the respondent’s case, the Crown proposed a sentence of four to five years imprisonment for each count, to be served concurrently.

The Crown argued that the following factors were aggravating: the complainant was a child; the eight-year age difference between the respondent and the complainant; the nature of the sexual interference (penile penetration); there were four separate incidents of sexual intercourse in a little over a month; the respondent used social media to invite the complainant to his residence; and the harm caused to the child victim.

The Crown also recognized there were several mitigating factors, including that the respondent did not have a criminal record at the time of the offences, he was a young adult, and the Gladue factors outlined in the pre-sentence report. [ 10 ] The respondent’s counsel acknowledged that the multiplicity of counts and the degree of sexual interference were aggravating. For mitigating factors, she submitted that the respondent had no prior criminal record at the time of the offences, he was youthful, and his prospects of rehabilitation were good.

He had also expressed remorse, stating: “I’m really sorry for what I did to you, I’m sorry to your whole family. I feel really bad for what I did to you. I’m really sorry to your grandparents and to your parents for putting everyone through this. I hope you can forgive me.” Counsel advised the sentencing judge that the respondent wanted to take responsibility for his actions and did not want to blame anyone else for what he had done. He was willing to go through whatever the court required of him. Counsel stressed that s. 718.2 (

e) of the Criminal Code required restraint in sentencing, particularly given that the respondent was an Aboriginal offender. [ 11 ] The respondent’s counsel also clarified and elaborated on the individual circumstances of the respondent set out in the pre- sentence report. She advised the sentencing judge that the respondent’s parents had attended residential schools and that the respondent experienced and witnessed significant violence in his home and community. With respect to traditional activities, the respondent enjoyed hunting and being able to share his food.

He liked to be out on the land when he was able to afford supplies and transportation. He hoped to engage further in his culture to maintain sobriety and lead a healthy life. Counsel also advised the sentencing judge that she had spoken to Corrections in Nunavut and was advised that they had programs that were available nationwide, elders available as counselors for people serving custodial time, and work available in communities.

Counsel argued that these factors were relevant in crafting a meaningful sentence for the respondent and for the community of Taloyoak to which the respondent would be returning. [ 12 ] Taking all the relevant factors into account, the respondent’s counsel submitted that an appropriate sentence was two years less a day imprisonment, followed by a period of probation.

Sentencing Decision [ 13 ] The sentencing judge began by noting that since the Crown proceeded by indictment, the minimum sentence she could impose was one year imprisonment: Criminal Code , s. 151 (a). [ 14 ] The sentencing judge referred to R v Friesen , 2020 SCC 9 at para 116 , in which the Supreme Court of Canada held that sexual offences against children merit more severe punishment than sexual offences against adults: While sexual violence against either a child or an adult is serious, Parliament has determined that sexual violence against children should be punished more severely.

First, Parliament has prioritized deterrence and denunciation for offences that involve the abuse of children ( Criminal Code , s. 718.01 ). Second, Parliament has identified the abuse of persons under the age of 18 as a statutory aggravating factor ( Criminal Code , s. 718.2 (a)(ii.1)). Third, Parliament has identified the abuse of a position of trust or authority as an aggravating factor; this is more common in sexual offences against children than in sexual offences against adults ( Criminal Code , s. 718.2 (a)(iii); L.V. , at para. 66).

Fourth, Parliament has used maximum sentences to signal that sexual violence against persons under the age of 16 should be punished more severely than sexual violence against adults. The maximum sentence for both sexual interference and sexual assault of a victim under the age of 16 is 14 years when prosecuted by indictment and is 2 years less a day when prosecuted summarily. In contrast, the maximum sentence for sexual assault of a person who is 16 years or older is 10 years when prosecuted by indictment and 18 months when prosecuted summarily (see Criminal Code , ss. 151 (

a) and (b), and 271 (

a) and (b)). This is a clear indication in the Criminal Code that Parliament views sexual violence against children as deserving of more serious punishment. These four legislative signals reflect Parliament’s recognition of the inherent vulnerability of children and the wrongfulness of exploiting that vulnerability. [ 15 ] The sentencing judge noted that pursuant to s. 718.1 of the Criminal Code , the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

She also recognized that under s. 718.01 , denunciation and deterrence were primary considerations given the age of the complainant. She referred to several other sentencing principles under s. 718.2 , including that:

(

a) abuse of a person under 18 years is aggravating and that she must assume that the offences had a significant impact on thecomplainant given her age (citing Friesen at para 86); (

b) the sentence should be similar to sentences imposed on similar offenders for similar offences; (

c) the offender should not be deprived of liberty if less restrictive sanctions are appropriate; and, (

d) all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm doneto victims and to the community should be considered, particularly because the respondent was an Aboriginal offender. [16] The sentencing judge stated that counsel had provided her with cases showing sentences other courts had given to offenders insimilar circumstances. She made specific reference to R v RW, 2021 NUCJ 29. In that case, the offender was 23 years old at the time ofthe offence.

He was an Inuk male with no criminal record and a “complicated mental health profile”: RW at para 22. He lived with hisstepbrother and sometimes his other brothers. His adoptive father had moved away from the territory years earlier and his adoptivemother was murdered in 2017. Despite his difficulties, the offender had been able to lead a productive life. He was active on the land. Heself-reported his offence (after being caught by his stepbrother) and pleaded guilty to having sexual intercourse with a 14-year-old whileshe was sleeping.

The sentencing judge found that this spoke positively to the offender’s prospects of rehabilitation. He was sentenced to15 months incarceration and 1 year probation. [17] The sentencing judge in the respondent’s case observed that the sentence imposed in RW “was a step up from pre-Friesencases”. She also noted that the guilty plea in RW was a mitigating factor that could not be weighed in the respondent’s favour. [18] In determining a fit sentence for the respondent, the sentencing judge concluded: Mr. Pauloosie is not currently working, but he was employed steadily for three years with First Air.

According to the [pre-sentencereport], he was impacted by abuse in his home growing up and by poverty in his early teens. The mental health consultant in Taloyoakknows Mr. Pauloosie and is “willing to provide support for him if he chooses to attend counselling”. Probation, which can provide aperiod of supervision of Mr. Pauloosie in the community and provides consequences for breach, is not available if I impose apenitentiary sentence.

In all of the circumstances and considering the factors in this case, I do not believe it is appropriate to sentence this young man to apenitentiary for his first custodial sentence despite the seriousness of these offences. Even if the penitentiary does have better programming, of which I am not convinced – I would need some evidence – I would besurprised if Mr. Pauloosie would be able to benefit from such programming in such a different environment for him. Mr.

Pauloosie hasgood prospects for rehabilitation with more local Correctional assistance which in the end would offer the best result for his community. [19] The respondent was sentenced to two years less a day imprisonment on each count, to be served concurrently, followed bytwo years’ probation.

The conditions of the probation order included, among other things, no contact with the complainant, attendance atcounselling as directed by the probation officer and keeping the peace and good behaviour. [20] Although the respondent’s counsel argued that an order pursuant to s. 109 of the Criminal Code was not required because therespondent’s offences were not “violent”, the sentencing judge imposed a s. 109 order prohibiting the respondent “from possessing anyfirearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosivesubstance for ten years.” This order is subject to an exemption “if a competent authority agrees that [the respondent] should get [anexemption] for sustenance or employment purposes.” In imposing the s. 109 order, the sentencing judge noted para 5 of Friesen, wherethe Supreme Court of Canada said that “sexual offences against children are violent crimes that wrongfully exploit children’svulnerability and cause profound harm to children, families, and communities.” Grounds of Appeal [21] The Crown asks this Court to vary the respondent’s sentence to four to five years imprisonment.

The Crown submits that thesentencing judge erred in principle in failing to give primary consideration to denunciation and deterrence, and that she imposed ademonstrably unfit sentence.

Standard of Review [22] This Court does not have unfettered discretion to interfere with a sentencing decision. “On the contrary, a trial judge’ssentence is entitled to such deference that an appellate court may interfere only if the sentence is demonstrably unfit or where thesentencing judge made an error in principle that actually impacted the sentence”: R v Cabrera, 2021 ABCA 291 at para 24, citing R vLacasse, 2015 SCC 64 at para 11 and Friesen at para 26.

As the Supreme Court of Canada explained at para 26 of Friesen: Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating ormitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by notgiving enough weight to another, the trial judge exercises his or discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para 35, cited in Lacasse, at para 49). See also R v Parr, 2020 NUCA 2 at para 44.

Discussion Did the Sentencing Judge Fail to Give Priority to Deterrence and Denunciation? [23] As noted in Friesen at para 116, s. 718.01 of the Criminal Code prioritizes denunciation and deterrence for offences involving

the abuse of children. The Crown argues that while the sentencing judge recognized this, she failed to assess or adequately explain how the respondent’s sentence achieved these objectives.

In doing so, the Crown submits that the sentencing judge elevated the objective of rehabilitation over denunciation and deterrence, and unreasonably concluded that it was appropriate to impose a territorial sentence followed by a period of probation because the respondent had “good prospects for rehabilitation” in the community. [ 24 ] We respectfully disagree. [ 25 ] In assessing the sufficiency of reasons, an appellate court must ask “whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial,” reveal the basis for the decision: R v REM , 2008 SCC 51 at para 55 .

If reasons, read in this context, disclose an intelligible basis for the decision and permit meaningful appellate review, then no error of law has been committed: R v Sheppard , 2002 SCC 26 at paras 28 , 55. See also R v Spotted Eagle , 2021 ABCA 26 at para 19 and R v Parranto , 2021 SCC 46 at para 39 . [ 26 ] Both the Crown and the respondent’s counsel agreed that a custodial sentence was necessary to meet the primary objectives of denunciation and deterrence.

In this sense, the submissions on both sides were consistent with the Supreme Court of Canada’s observation in Lacasse at para 6 that “in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society.” The parties differed on what period of incarceration was required to give proper weight to these objectives in the circumstances of the respondent’s case. [ 27 ] The sentencing judge accepted that a custodial sentence of two years less a day for each count followed by a two-year period of probation with “consequences for breach” would serve the objectives of denunciation and deterrence and additionally allow for a period of supervision in the community consistent with the respondent’s positive prospects for rehabilitation.

In this regard, we note that the Crown did not argue the respondent was likely to re-offend; only that the risk was uncertain because “[he] has not gone away. He has not got any help for any of his issues since being convicted.” The respondent’s counsel pointed out that in the four years since the offences, no similar conduct had occurred. She also reported that the respondent’s alcohol use had slowed down and pretty much stopped once he lost his job and that he had talked to the counsellor referred to in the pre-sentence report about his alcohol use.

We can discern that the sentencing judge accepted there was a low risk the respondent would re-offend and that this was a factor in her determination that the respondent’s prospects for rehabilitation were good with local correctional assistance, which, she found, would offer the best long-term result for the community. [ 28 ] The sentencing judge’s conclusion that the respondent had good prospects for rehabilitation in the community was reasonable on this record and consistent with the Supreme Court of Canada’s statements in Friesen at para 124 that “[c]ourts should encourage efforts toward rehabilitation because it offers long-term protection ( Gladue , at para. 56)” and that depending on the offender’s risk to reoffend, “[r]ehabilitation may also weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favourable to rehabilitation than prison (see Proulx , at paras. 16 and 22).” [ 29 ] It is also evident from the sentencing judge’s consideration of parity, and her remark that the sentence in RW was “a step up from pre- Friesen cases” in Nunavut, that she did not prioritize rehabilitation at the expense of denunciation and deterrence as the Crown contends.

Again, her reasons must be read in the context of the submissions made by counsel.

i) The Crown’s submissions at the sentencing hearing [ 30 ] The Crown cautioned the sentencing judge “not to put too much weight on cases that were reported prior to Friesen .” The Crown also noted that reported decisions within the territory were difficult to find. Counsel referred the sentencing judge to R v Ipeelie , 2015 NUCA 3 and Parr . These two cases involved sexual offences against victims over 16 years of age by offenders who were older than the respondent, had troubling criminal records, and were on probation when their sexual offences were committed.

Pointing to para 116 of Friesen and the Supreme Court of Canada’s guidance that “sexual violence against persons under the age of 16 should be punished more severely than sexual violence against adults”, the Crown argued that these cases provided some indication of the range of sentences that should be imposed for major sexual interference with a child. [ 31 ] In Ipeelie , the offender approached a virtual stranger in the early morning hours as she walked home from work in Iqaluit, Nunavut.

He “coerced her to go behind a house, where he pushed her to the ground and proceeded to have unprotected and non- consensual sexual intercourse with her. She actively resisted him to no effect”: Ipeelie at para 2 . The offender pleaded guilty, which spared the victim from having to testify. However, at the time of sentencing, the offender had eight prior convictions for impaired driving, three assaults against his former girlfriend, and breach of bail conditions. At the time of the sexual offence in issue, he was bound by two probation orders.

He had been out of prison for only a couple of months and during that time he had been charged with impaired driving. [ 32 ] This Court noted at paras 7 to 9 that: The Crown sought a sentence in the range of four years, which would have to be served outside of Nunavut given the lack of penitentiary facilities within the territory. Mr. Ipeelie’s counsel sought a sentence of the maximum possible territorial jail time, two years less a day, to be followed by the maximum period of probation permitted, three years. The sentencing judge found Mr.

Ipeelie’s moral culpability for the offence to be high; he was a man with a clear predilection for crime and violence when drinking, yet he continued to drink. His crime was purposeful, and he ignored the victim’s pleas for help and for him to stop. The judge noted his obligation to consider the remedial provisions of s 718.2 of the Criminal Code of Canada, RSC 1985, c C-46 [ Criminal Code ], given that Mr. Ipeelie is an aboriginal, while noting that his victim was also aboriginal.

After observing that Nunavut endured the highest rate of sexual assault in the nation, and the egregious nature of the circumstances in which this offence took place, the sentencing judge concluded that a proper sentence would be in the range of six to 10 years imprisonment, depending on the record of the offender. He then expressly considered the effect of the mitigating factors of a relatively

prompt guilty plea and Mr. Ipeelie’s significant steps taken toward rehabilitation while on bail in reducing the sentence to one of fouryears imprisonment. [33] This Court concluded that the four-year sentence imposed by the sentencing judge was demonstrably fit. [34] In Parr, the offender took advantage of a sleeping, intoxicated, 17-year-old victim. She woke up to find him on top of her withhis penis in her vagina. The offender was on probation and had been released on bail only two days before the offence occurred.

Theoffender had a criminal record which included several convictions for violence, as well as threats, firearms, unlawful confinement, andsexual interference.

The trial judge also noted that the victim had been hassled and bullied by members in the community as though shewere at fault. [35] The issues addressed by this Court in Parr were whether the sentencing judge had erred in principle by: failing to alert counselthat he was considering a sentence in excess of their recommendations; failing to provide adequate reasons to explain what he describedas the higher “present day range of sentencing”; and, treating breaches of recognizance – for which consecutive sentences were imposed– as aggravating in the sexual assault sentence.

A majority of this Court determined that the sentencing judge’s “compounded errors” didconstitute an error in principle and that those errors had an impact on the sentence imposed. The majority went on to determine a fitsentence pursuant to s. 687 of the Criminal Code, stating at paras 58-59: … We acknowledge the Crown’s position that four years would not be an unfit sentence.

We acknowledge that the Nunavut decisions Rv LT, 2000 NFCA 7 , 2000 NUCJ 11, [2000] NuJ No 8, 2000 CarswellNun 10, 48 months, and R v AS, (NLSC), 1999 NUCJ 5, [1999] NuJ No 8, 1999 CarswellNun 6, 30 months, are indicative of the range of sentences imposed in Nunavut forlike offences and in like circumstances. Both sentences were imposed after jury trials for offenders with a prior criminal record, andinvolved penetration. LT involved an historical incident where the accused forced intercourse on his 12-year-old niece three times, andthe complainant was significantly traumatized.

In AS, the accused was sentenced for several offences including abduction and forcedintercourse. He showed no remorse and the complainant was clearly traumatized. While the sentence was a total of 41 months, 30months was allocated to the sexual assault conviction. We conclude that a fit and reasonable sentence for Mr. Parr, in the context of all of the evidence, is 48 months for the sexual assault ofthe complainant and 45 days each for the two breaches of recognizance, as recommended by trial Crown and not resiled from byappellate Crown counsel, all to be served concurrently.

We do not intend for this sentence in this case to act as a cap or establish a rangefor sentences of this sort. We find the maximum sentence proposed by the trial Crown to be a fit sentence on these facts. [36] Additionally, the Crown referred the sentencing judge to R v Kolola, 2020 NUCJ 38, aff’d 2021 NUCA 11, where at para 67the court stated that Ipeelie and Parr “better reflect the purpose, objectives, and principles of sentencing applicable in Nunavutpost-Friesen and L.P.” Mr. Kolola had sexually assaulted an adult sleeping victim in her own home.

He was 34 years old and had a“serious criminal record, including convictions for serious intimate partner violence”: at para 15. Mr. Kolola pleaded guilty after thepreliminary inquiry and had “made significant effort, and [had] had some demonstrable success, at rehabilitation”: at para 72.

He wassentenced to 30 months (calculated at 30 days per month) in a federal penitentiary. [37] The Crown also brought to the sentencing judge’s attention three cases involving sexual interference/assault of children underthe age of 16: R v Hajar, 2016 ABCA 222; R v Lafferty, 2019 NWTSC 38; and R v MacLean, 2021 NLCA 24. [38] In Hajar, the 20-year-old offender met the 14-year-old victim online. The offender convinced the victim to send him a toplesspicture of herself and discussed the sex acts he wished to engage in with her. Through their online communications, they arranged fourmeetings.

At the fourth meeting, the offender drove the victim to an empty church parking lot where he had her perform fellatio on him.The offender pleaded guilty to one count of sexual interference and one count of online sexual luring. The sentencing judge identified thefollowing aggravating factors: the offender expressed that the victim bore some responsibility and that she lacked proper parentalsupervision; he used the internet to lure the victim; and he encouraged the victim to make and share pornography with him.

The guiltyplea was mitigating, as were the facts that the offender was a community volunteer and had tremendous support from family and friends.The sentencing judge in Hajar sentenced the offender to 15 months imprisonment for the charge of sexual interference and three monthsimprisonment for the charge of online sexual luring, to be served consecutively, followed by three years of probation. The Court ofAppeal of Alberta determined that a fit sentence was two and a half years imprisonment for the sexual interference charge and one yearimprisonment, consecutive, for the luring charge.

However, the court ultimately dismissed the appeal and did not vary the sentences dueto a lengthy process delay. [39] The Court of Appeal of Alberta in Hajar also confirmed a starting point in that jurisdiction of three years imprisonment for“major sexual interference”.

Although this appeal does not raise the issue of starting points discussed in Hajar, we note that in Friesen atpara 106, the Supreme Court of Canada declined to create a national starting point or sentencing range for sexual offences againstchildren and Parranto has recently offered further guidance to appellate courts on the starting-point approach to sentencing. [40] In Lafferty, the offender was 25 years old. His victims were 14 years old. Mr. Lafferty ran into his first victim in thecommunity one evening. He offered her alcohol. They drank two mickeys of vodka and later had sexual intercourse at Mr.

Lafferty’shouse. With the second victim, the sexual activity, including sexual intercourse, occurred many times over several months. On oneoccasion, Mr. Lafferty “threw her to the ground, got on top of her, and choked her”: at 1. The court adopted the starting point in Hajar, as“a yardstick that reflects the inherent seriousness of a certain type of offence, and where the sentencing court’s analysis should begin inits proportionality analysis”: at 11. The aggravating factors included: the age difference between Mr. Lafferty and his victims; the factthat Mr.

Lafferty provided alcohol to them which made them more vulnerable; the number of incidents; the fact that Mr. Lafferty did notalways use a condom and on one occasion used violence; and his failure to comply with a no-contact order. Weighing these aggravatingfactors with the mitigating effects of a guilty plea and Gladue considerations, Mr.

Lafferty was sentenced to one and a half years and twoyears imprisonment, respectively, for each offence to be served consecutively. [41] In MacLean, the offender was convicted of one count of sexual assault after accepting a Snapchat friend request from the 12-year-old complainant and, following the exchange of occasional messages, meeting her one night to have sexual intercourse. Mr.

MacLean was in the autumn semester of his final year of university at the time of sentencing, and anticipated graduating with a Bachelor of Engineering degree the following spring. The trial judge imposed a 90-day intermittent sentence, followed by two years’ probation. The Court of Appeal of Newfoundland and Labrador determined at para 57: The intermittent sentence was crafted to avoid any interruption of that final year of studies. Mr. MacLean’s work term, his weekday routine, and his planned university graduation date were not impacted by the sentence. ...

The trial judge acknowledged the intermittent service of a sentence was only available if the sentence was 90 days or less, and that an intermittent sentence served on weekends was the only way that Mr. MacLean would be able to continue his work and studies, and still graduate on schedule. [ 42 ] The Court of Appeal of Newfoundland and Labrador held that the trial judge erred in principle in failing to give priority to the sentencing objectives of deterrence and denunciation and instead giving primacy to rehabilitation. It imposed a sentence of three years, noting at para 75: There was no guilty plea by Mr.

MacLean in the current matter, but several of the other factors ... including, single sexual encounter, not in a position of trust, no previous criminal record, good prospects for rehabilitation, low risk of re-offending, and positive pre-sentence report, favour a sentence at the low end of the range [of three to five years] that was set out in… [ R v RB , 2019 NLCA 22 ]. ii) The respondent’s submissions at the sentencing hearing [ 43 ] The respondent’s counsel urged the sentencing judge to find all the cases upon which the Crown relied distinguishable.

She argued that three unreported Nunavut sentencing decisions involving youthful offenders and victims under 16 years of age were more helpful as a check on parity: The first is a 2020 decision in October, and this is the decision of R v. Hala , Jayden Hala, H-A-L-A... Of significant here is that this is a decision that was given post Friesen . It was a decision of Justice Bychok. It was not a joint submission with respect to sentence. Defence was proposing 12 months and Crown 18 months. The offender was given a sentence of 18 months. There was a single count of

Section 151 , but it covered two incidents of sexual intercourse. The victim was 13 years old and 14 years old respectively, the two different [times]. The offender was 19 years old. The second unreported decision is out of Taloyoak. It’s the decision of R v. Paniloo , first name Nick... It was a 2018 decision given by Justice Scanlan. I’ve been advised it was also a contested sentencing. It was a 13-year-old victim. The first time intercourse happened was when the victim was 12 years old. There was more than one intercourse event. Despite that the charges (sic) of a single count,

Section 151 , the offender was 20 years old. There was a pregnancy that resulted, and the sentence given to the offender was 14 months, 18 months of probation. The final unreported decision is that of R v. Daniel Atatahak … This involved a 23-year-old offender with a 15-year-old victim. Again, a single count of

Section 151 , but multiple intercourse events. It was a decision of Justice Lyons. I don’t have information of whether it was a joint position on sentencing or not. The sentence given was 14 months custody, 12 months probation. [ 44 ] The respondent’s counsel also referred the sentencing judge to the post- Friesen reported decision in RW where Chief Justice Sharkey specifically rejected the sentencing range of 36 to 60 months imprisonment referred to in Kolola as being applicable in RW ’s case: see para 55.

As noted by the sentencing judge in her reasons, Chief Justice Sharkey imposed a sentence of 15 months incarceration followed by 1 year probation in RW . [ 45 ] The sentencing judge was additionally provided with several pre- Friesen decisions from both inside and outside the Nunavut territory involving offences and offenders in somewhat similar circumstances to the respondent (some of these cases involved guilty pleas and/or offenders with a criminal record).

Sentences ranged from a 12-month conditional sentence order (“CSO”) to 18 months in prison followed by a period of probation: R v Pye , 2019 YKTC 21 (12-month CSO); R v Alfred , 2019 BCSC 1452 , aff’d 2021 BCCA 71 (9 months imprisonment and 2 years probation); R v Menicoche , 2016 YKCA 7 (17 months imprisonment and 2 years probation); and R v JQ , 2015 NUCJ 9 (18 months imprisonment, reduced to 16 months after enhanced credit for pre-sentence custody, and 1 year probation). [ 46 ] Against this backdrop of counsel’s submissions, it is evident that the sentencing judge fairly noted that the sentence in RW was a step up from pre- Friesen cases in Nunavut.

We can also discern that she found that the cases referred to by the Crown involved offenders with different individual circumstances and that she was not persuaded they were helpful in reconciling individualization and parity of sentences to determine a proportionate sentence for the respondent: see Lacasse at para 53 and Parranto at paras 11-12 . [ 47 ] While the sentencing judge referred only to RW in her reasons (it was the only comparable, reported, post- Friesen decision to which she was referred), we can see that she gave priority to the sentencing objectives of denunciation and deterrence by imposing a more severe sentence upon the respondent than the sentences imposed in RW and the other, comparable, post- Friesen Nunavut decision she was referred to ( Hala ).

She recognized that a guilty plea was not a mitigating factor in the respondent’s case and the aggravating factor of multiple offences was not present in RW . [ 48 ] We are satisfied that the sentencing judge weighed denunciation and deterrence as primary sentencing objectives as she was required to do by s. 718.01 of the Criminal Code , and that she adequately explained how she did so. Is the Sentence Demonstrably Unfit? [ 49 ] As stated by the Supreme Court of Canada at para 52 of Lacasse : It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it.

As Laskin J.A. mentioned, writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is “demonstrably unfit”: “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked

departure” (R v Rezaie (1996), (ON CA), 31 OR (3d) 713 (CA) at p. 720).

All these expressions reflect the very highthreshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence. [50] The Crown argues that apart from inadequately expressing the objectives of denunciation and deterrence, the respondent’ssentence of two years less a day followed by two years’ probation for four counts of sexual interference is demonstrably unfit because itfalls short of the expectation expressed by the Supreme Court of Canada in Friesen. [51] At paragraph 114 of Friesen, the Supreme Court of Canada said: … It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed.Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D. (D.),“judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the offender who is beforethem (at para. 33).

Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). Thatmessage is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantialsentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward,and L.M.

In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the “abstract case of the worstcrime committed in the worst circumstances” (para. 22).

Instead, a maximum sentence should be imposed whenever the circumstanceswarrant it (para. 20). [52] While this message about mid-single digit penitentiary terms was sent to courts across the country, the Supreme Court ofCanada took care to highlight that sentencing judges maintain responsibility for the delicate task of balancing all primary and secondarysentencing objectives and principles to craft a fit sentence for the individual offender before them: see Friesen at para 38. [53] Appellate courts generally defer to the sentencing judge’s decision because the sentencing judge “sees and hears all theevidence and the submissions in person” and has “regular front-line experience and … experience with the particular circumstances andneeds of the community where the crime was committed”: Friesen at para 25, citing Lacasse at para 48, R v Shropshire, [1995] 4 SCR227 at para 46, (SCC), and R v M (CA), [1996] 1 SCR 500 at para 91, (SCC); see also Parranto at para13. [54] Furthermore, Supreme Court of Canada jurisprudence recognizes that balancing “societal goals of sentencing against themoral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and currentconditions of and in the community”, can lead to some variation in different communities or regions of the country: Lacasse at para 89,quoting Chief Justice Lamer (as he then was) in M (CA) at para 91. [55] To do justice in the respondent’s case, the sentencing judge gave significant weight to denunciation and deterrence asprimary sentencing objectives and then, having regard to the fundamental principle of proportionality, she balanced those primaryobjectives with recognition of other sentencing objectives and principles applicable in the circumstances.

The sentencing judge wasclearly of the view that a penitentiary term custodial sentence in the respondent’s unique circumstances would have a more significantimpact on him than such a sentence might have on other “like” offenders, and that his removal from Nunavut would diminish hisprospects for rehabilitation and undermine the long-term safety of the community. [56] These factors will not weigh in favour of a territorial length sentence in all Nunavut cases but on the facts of this case, wecannot say that the sentencing judge exercised her discretion unreasonably or arrived at a demonstrably unfit result.

Disposition [57] We dismiss the appeal. Appeal heard on February 15, 2022 Memorandum filed at Iqaluit, Nunavut this 3rd day of May, 2022 Strekaf J.A. Ho J.A.

Kirker J.A. Appearances: G. Wool for the Appellant S. Paddock for the Respondent