R v Kolola, 2021 NUCA 11

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Kolola, 2021 NUCA 11 Date: 20210726 Docket: 09-20-018-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Karpik Kolola Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ The Court: The Honourable Justice Shannon Smallwood The Honourable Justice Jolaine Antonio The Honourable Justice Kevin Feehan _______________________________________________________

Memorandum of Judgment Appeal from the Sentence by The Honourable Justice P. Bychok Dated the 17th day of November, 2020 ( Docket: 09-19-12) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Overview [ 1 ] Karpik Kolola pleaded guilty to sexual assault, contrary to

section 271 of the Criminal Code , RSC 1985, c C-46 , which he committed on March 10, 2019 in the community of Kimmirut, Nunavut. Mr Kolola was sentenced to 30 months’ imprisonment on November 17, 2020. He appealed that sentence. [ 2 ] For the reasons below, the sentence appeal is dismissed. II. Facts [ 3 ] On March 9, 2019, the complainant contacted Mr Kolola and arranged to purchase alcohol from him. She drank at a friend’s house before returning to her house between 5:00 and 6:00 am the next morning.

Before she went home, she checked her phone and saw that Mr Kolola had texted her asking if she wanted to drink. She replied no. [ 4 ] At her house, the complainant went to sleep fully dressed in an upstairs bedroom. She woke up around 7:15 am naked with Mr Kolola on top of her. He was also naked and had his penis inside her vagina. She shoved Mr Kolola off of her and he started to get dressed. Mr Kolola left the room and the complainant called the police immediately. [ 5 ] The complainant did not know whether Mr Kolola wore a condom or if he ejaculated.

His DNA was later located on the vaginal swab taken from the complainant during the sexual assault examination. III. Sentencing Hearing [ 6 ] The Crown sought a 30 month term of imprisonment for Mr Kolola as well as ancillary orders. Defence Counsel sought a sentence of 12 to 18 months of imprisonment followed by a period of probation of 12 to 18 months. [ 7 ] The sentencing judge imposed a 30 month term of imprisonment and ancillary orders. IV.

Fresh Evidence Application [ 8 ] Counsel for Mr Kolola is seeking the admission of a report entitled “Third COVID-19 Status Update” by the Office of the Correctional Investigator dated February 23, 2021 as fresh evidence. Mr Kolola argues that the Report was not available at the time of sentence, is material to an issue on sentence, and when taken into consideration with the other evidence adduced at the sentencing

hearing, could have affected the sentence. [9] The Crown objected to the admission of the Report arguing that it could not reasonably be expected to have affected theresult. [10] The test for the admission of fresh evidence on a sentence appeal is well known: Palmer v The Queen, (SCC),[1980] 1 SCR 759; R v Lévesque, 2000 SCC 47 at paras 1, 14-22. The Palmer test sets out four criteria for admissibility which relate todue diligence, relevance, credibility, and whether the evidence could be expected to impact the result.

Only the fourth criteria is in issueas the Crown conceded the first three had been met. [11] The Report is a general report on the impact of the COVID-19 pandemic on federal correctional institutions and inmates. Itconcludes that federal prisons, as congregate living settings, are more susceptible to widespread transmission of COVID-19 than in thegeneral public.

It also details the challenges that federal inmates have experienced during the pandemic such as restrictions on visitors;reductions in available programs, education, and exercise; and limited access to medical services and other facilities in the institutions. [12] The conclusions of the Report are general and some of the features of the Report were known at the time of the sentencinghearing.

Counsel for Mr Kolola at the sentencing hearing referred to the increased risk that he could contract COVID-19 in a southerninstitution and the possibility that added safety precautions at the institutions could have the effect of making the sentence imposed onMr Kolola harsher than it would be normally. [13] The proposed fresh evidence does not address issues such as Mr Kolola’s unique medical condition or vulnerabilities whichcould be impacted by contracting COVID-19, specific information about the institution where Mr Kolola is incarcerated or anyinformation which might demonstrate that Mr Kolola’s situation would be comparatively different were he sentenced to a territorialsentence. [14] The proposed fresh evidence, being general in nature and not specific to Mr Kolola’s circumstances, could not reasonably beexpected to affect the result.

As well, the effects of COVID-19 were generally known to the sentencing judge at the sentencing hearing.The application to adduce fresh evidence is denied. V. Grounds of Appeal [15] Mr Kolola says the sentencing judge erred: (

a) by failing to consider the collateral consequences caused by COVID-19; (

b) by misapplying s 718.2(

e) to the sentencing analysis; (

c) in determining that a purpose of sentencing was to repair the perception that the Court minimizes sexualviolence; and (

d) by not properly considering relevant case law necessary to address parity due to misapplying s 718.04 andguidance from R v Friesen, 2020 SCC 9. VI. Standard of Review [16] Sentencing decisions are generally treated with deference on appeal. An appellate court may only intervene to vary a sentencewhere the sentence is demonstrably unfit or where the sentencing judge committed an error in principle such as an error of law, a failureto consider a relevant factor or erroneous consideration of an aggravating or mitigating factor where the error had an impact on thesentence imposed: R v Lacasse, 2015 SCC 64 at para 11; Friesen at para 26. VII. Analysis (

a) Collateral consequences of COVID-19 [17] Mr Kolola says the sentencing judge failed to consider the collateral consequences caused by COVID-19. The COVID-19pandemic has had a significant impact on Canadians generally as well as those who are incarcerated. Mr Kolola has not pointed to aspecific collateral consequence which has significantly impacted upon his incarceration. [18] The COVID-19 pandemic may be considered a consequence which might have a more significant impact on an offenderbecause of his unique and individual circumstances.

It is within a judge’s discretion to consider the impact of the COVID-19 pandemicon an offender as part of the sentencing process. Consideration of a collateral consequence may result in a more lenient sentence;however, it cannot be used to reduce a sentence to the point that it becomes disproportionate to the gravity of the offence or the moralblameworthiness of the offender: R v Suter, 2018 SCC 34 at paras 48, 56. [19] It was within the sentencing judge’s discretion to consider the current pandemic as part of the sentencing process.

To theextent the sentencing judge considered that he was unable to do so, he was in error. However, that error did not have an impact onsentence. The sentence ultimately imposed by the sentencing judge was one he viewed as being lenient and “below the range ofacceptable sentences.”

(

b) The application of s 718.2(

e) to the sentencing process [ 20 ] Mr Kolola says the sentencing judge misapplied s 718.2(

e) of the Criminal Code in the sentencing process by failing to apply a two step consideration process mandated by R v Ipeelee, 2012 SCC 13 , incorporating s 718.2(

e) into the proportionality analysis, and then conflating the objectives of s 718.2(

e) with denunciation and deterrence. [ 21 ]

Section 718.2(

e) requires sentencing judges to consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community… for all offenders, with particular attention to the circumstances of Aboriginal offenders.” [ 22 ] In applying s 718.2(e), a sentencing judge is required to assess the moral blameworthiness of the offender considering all of the circumstances of the offender, including their unique circumstances as an Indigenous offender, and to consider their moral blameworthiness along with the gravity of the offence to arrive at a proportionate sentence: R v Ookowt, 2020 NUCA 5 at paras 67-68 . [ 23 ] Ipeelee requires sentencing judges to consider both the unique systemic and background factors which may have played a

part in bringing the Indigenous offender before the courts and the types of sentencing procedures and sanctions which may be appropriate for the individual Indigenous offender. The objective is to pay particular attention to the circumstances of an Indigenous offender in an attempt to achieve a “truly fit and proper sentence”: Ipeelee at paras 72-75 . [ 24 ] The sentencing judge was aware of Mr Kolola’s circumstances from a Pre-Sentence Report and having heard from defence counsel about Mr Kolola’s upbringing, family history, education and employment history, and current relationship.

The sentencing judge was aware of the challenges that Mr Kolola had faced including his criminal history, history of substance abuse, and intimate partner violence. [ 25 ] The sentencing judge referred to many of these considerations in his decision and cited the relevant sentencing principles. The sentencing judge’s reasons do not disclose an error and he considered the relevant sentencing principles as required by s 718.2(e). (

c) The perception that the court minimizes sexual violence [ 26 ] Mr Kolola says the sentencing judge erred by stating that a purpose of sentencing was to repair the public’s perception that the Nunavut Court of Justice minimizes the nature, severity, and impact of sexual violence. [ 27 ] In the course of examining the prevalence and gravity of sexual violence against women and girls, the sentencing judge wrote: “The sentence I impose must seek to repair the perception that our Court minimises the nature, severity and impact of sexual violence while holding Mr Kolola demonstrably responsible for his heinous crime”: R v Kolola, 2020 NUCJ 38 at para 55 . [ 28 ] The prevalence of sexual violence against women in Nunavut has been known for many years and trial judges are in the best position to assess and observe the magnitude of the problem in their jurisdiction: Lacasse at para 95 .

Similarly, it falls within the sentencing judge’s role to assess the gravity of an offence with a contemporary and informed understanding of the harm experienced by victims: Friesen at paras 76-94 . [ 29 ] The sentencing judge did not err by seeking to emphasize the nature, severity, and impact of sexual violence on women in Nunavut in the sentencing process.

These are pressing societal challenges in Canada and in Nunavut, and it is an ongoing challenge to address and remedy the failings within the criminal justice system in this area: R v Barton, 2019 SCC 33 at para 1 . [ 30 ] Denunciation has long been a primary principle in sentencing for offences of sexual violence. The objective of denunciation is to communicate society’s condemnation of an offender’s conduct and is a means of expressing society’s values: R v CAM, 1996 SCC 230 at para 81. The sentencing judge’s reasoning, while not best phrased in terms of repairing a public perception, was not erroneous.

It was open to him to consider whether the sentence would appropriately communicate the courts’ view of the gravity of sexual violence. (

d) The application of s 718.04 to the sentencing process [ 31 ] Mr Kolola says that the sentencing judge erred by using s 718.04 of the Criminal Code and R v Friesen to justify departing from sentencing precedent in this area. [ 32 ]

Section 718.04 requires a sentencing judge to give primary consideration to the objectives of deterrence and denunciation when sentencing an offender for an offence that “involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female.” [ 33 ]

Section 718.04 came into force on September 19, 2019, after Mr Kolola had committed the offence. The Crown concedes that the sentencing judge erred by considering that he was statutorily compelled by this

section to give primary consideration to denunciation and deterrence. However, the Crown submits this was a minor error that did not affect the sentence. [ 34 ] The sentencing judge was required to give primary consideration to denunciation and deterrence in sentencing Mr. Kolola based on common law sentencing principles.

Section 718.04 codified the long standing and well-established common law principle where Courts have considered denunciation and deterrence the primary sentencing considerations in cases involving the abuse of a victim who is vulnerable because of their personal circumstances.

The sentencing judge erred in referring to a statutory provision not in force on the offence date, but his reliance on the principle was appropriate. [ 35 ] Mr Kolola also says that the sentencing judge erred by determining the precedents provided by defence counsel were no longer relevant in determining a fit sentence based upon s 718.04 and the decision in Friesen . [ 36 ] Friesen cautioned courts about relying on dated precedents that may fail to reflect “society’s current awareness of the impact of sexual abuse on children.” While Friesen dealt with sexual abuse of children, the caution about relying on dated precedents in cases of

sexual abuse of adult victims is equally applicable. Our understanding of the gravity and harmfulness of sexual offences has evolved and courts must recognize that dated precedents may constrain a sentencing judge’s ability to impose a proportionate sentence in these cases: Friesen at paras 110-112 . [ 37 ] The precedents provided by defence counsel at the sentencing hearing were either distinguishable on the facts or dated precedents using the reasoning in Friesen . The imposition of a 30 month sentence as suggested by the Crown was a fit and reasonable sentence in the circumstances.

We do not find it necessary to consider or to comment on the sentencing judge’s attempt to define a sentencing range for offences of this kind. VIII. Conclusion [ 38 ] In conclusion, where the sentencing judge erred, those errors were minor and did not impact upon the sentence imposed. The sentencing judge imposed a fit and reasonable sentence in the circumstances for this offence of sexual assault. [ 39 ] The appeal is dismissed. Appeal heard on May 11, 2021 Memorandum filed at Iqaluit, Nunavut this 26th day of July, 2021 Smallwood J.A. Authorized to sign for: Antonio J.A. Feehan J.A. Appearances: L.

Lane for the Respondent C.J. Hogg S. Paddock for the Appellant