) ) HER MAJESTY THE QUEEN – v. –, 2012 ONSC 5917

CITATION : R. v. W.J.N., 2012 ONSC 5917 COURT FILE NO.: 7186 DATE: 2012-10-19 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – W.J.N. Defendant ) ) ) ) ) ) ) ) Mary Pascuzzi, for the Crown Catherine Beamish, for the Defendant ) ) HEARD: February 21, 2012 REASONS FOR SENTENCE JUSTICE I.S.

MCMILLAN: SUBJECT MATTER: [ 1 ] On February 21, 2012 the accused entered pleas of guilt to the following: Count 1 – that he indecently assaulted C.N. in or about 1975 contrary to Section 149(1) of the Criminal Code of Canada ; Count 3 – that he indecently assaulted S.L.N. in or about 1978 contrary to Section 149(1) of the Criminal Code of Canada ; and Count 4 – that he indecently assaulted L.N. in or about 1980 contrary to Section 149(1) of the Criminal Code of Canada . [ 2 ] Facts sufficient to justify conviction were read into the record by the prosecutor and convictions were entered against the offender, W.J.N..

Police investigations were undertaken in 1979 and 2009 and the charges ensued following the latter investigation.

The remaining counts are to be endorsed withdrawn at the conclusion of today’s sentencing. [ 3 ] Sentencing submissions were received on June 11, 2012 with considerable reliance by defence counsel on the Pre-Sentence Report, dated June 1, 2012; a Sentencing Book, Exhibit S-2 containing six character references, a Psychological Assessment Report, dated August 18, 2003, regarding the Impact of Residential School, Indian Residential Schools Adjudication Secretariat’s Short Form Decision, dated July 27, 2010 and a Chronicle “W.J.N. Life As An Aboriginal Person”, dated February 13, 2012.

Both crown and defence counsel filed sentencing-related case books. POSITIONS OF COUNSEL: [ 4 ] Crown counsel submits that an appropriate sentence for this offender in all of the circumstances would be a conventional sentence of imprisonment in the range of 3 to 4 years in a federal penitentiary. [ 5 ] Defence counsel contends that a conditional sentence of imprisonment could meet the principles of sentencing and alternatively, a reformatory sentence of incarceration would suffice. FACTS RELATED TO OFFENCES: [ 6 ] The offender is a 64 year old male of aboriginal descent.

He is an uncle of the three sibling complainants/victims and all

resided on the local G[…] Reserve at the time the offences were committed. The offender’s then spouse, M.N., was a sister of the mother of the three young girls. The offences occurred at either the residence of the offender or the victims in G[…] Reserve during a period when they lived across the street from each other’s houses. [ 7 ] With respect to count 1 and C.N., the offender acknowledged having sexually fondled her and attempted intercourse when C.N. would have been approximately 9 to 12 years old.

As to count 3 and S.L.N., he acknowledged having placed her hand on his penis and digitally penetrating her genitals at about age 7. On count 4, the offender admits to having raised her nightgown and fondling her upper right thigh at the groin level when she would have been 9 or 10 years of age. [ 8 ] During this period in his life, namely the late 1970’s and 1980, the offender and his family had recently returned to G[…] Reserve from Western Canada following the death of his mother-in-law, M.N.’s mother. The offender was drinking heavily. On the occasions of these offences, he was severely abusing alcohol.

EFFECT ON VICTIMS: [ 9 ] C.N., S.L.N. and L.N. each submitted written Victim Impact Statements upon the offender’s pleas of guilt to the dated indecent assaults upon them. They are entered as Exhibits S-4, S-5 and S-6 and set out, in varying degrees, their misfortunes and hardships in life and which they attribute to the loss of their childhood innocence at the hands of the offender. Suffice it to say that nothing is forgiven and certainly W.J.N. is not forgiven.

ABORIGINAL OFFENDER’S BACKGROUND: [ 10 ] The offender was born in the remote tiny community of B[…] and out of wedlock to a B[...] Nation mother and a Caucasian father who was a circuiting agent for Indian Affairs. He was virtually abandoned shortly after birth and rejected by the native community. He was raised by his maternal grandparents to age five. His mother developed a spousal relationship with another man and had children, but those siblings did not have any relationship with W.J.N..

The grandparents lived primarily in the wilderness and followed a traditional culture of living off the land. [ 11 ] From his earliest recollection, the offender was ridiculed and bullied due to his lighter skin tone, curly hair and the common community knowledge of his mixed racial parentage. Aside from being ostracized, he experienced the trauma of his very first sexual assault by age five or six. [ 12 ] In the late summer of 1954, at the age of six years, the offender was taken from his grandparents and sent off to the Pelican Lake Residential School, situate near Sioux Lookout, a vast distance from B[…].

He did not speak any English. He did not have any understanding of this terribly unsettling transposition or why he was being subjected to this transplantation to a non-reserve setting. As he couldn’t communicate in English, he was compelled to rely on his native languages of Cree, Ojicree or Ojibway, and would be subjected to corporal punishment for speaking in his native language. Corporal punishment was foreign to First Nations culture in terms of disciplining children. [ 13 ] The offender remained at the Pelican Lake Residential School until 1960. His tenure there was disturbing.

The mixed gender students ranged in age from six years to sixteen or seventeen. Boys and girls were segregated. By age seven, he had been anally raped by an older male student. The harassment, emotional and physical abuse associated with his lighter complexion continued. His refusal to identify his abusers to authority figures only led to punishment by them, including physical, and in the result he was victimized by both his bullying peers and the punishing authorities. His only recourse was to remain silent and vigilant to not finding himself alone with older students.

The dormitory accommodation led to disrupted sleep patterns and asthmatic complications. [ 14 ] Aside from the racism and significant recurring emotional and physical abuse, the offender had lost his way in two very noteable ways: he lost his native language and he lost all contact with his family. The other students at the school were all returned to their homes and villages by aircraft for the summer months. He was not. Once again, the offender was at a loss at his very young age to understand why he was singled out and being treated differently than the others.

The situation continued for the entire six years he resided at the Pelican Lake Residential School. Two adoption overtures never materialized. [ 15 ] At age 13, the offender was sent to the Shingwauk Indian Residential School in Sault Ste. Marie for grades 7 and 8 situate approximately 1,000 kilometers from B[…] and to where he would never return until age 35. W.J.N.’s negative school experiences did not abate at Shingwauk. There he experienced sexual overtures and sexual assaults by male persons in authority, including clergy.

Again, he was not returned to his birth community for the summer months, but rather was placed with “host families” during summer vacation and never the same host family from summer to summer. By the end of high school, he had developed a partying lifestyle and was abusing substances, predominately alcohol. [ 16 ] Upon completion of Grade 12, the offender worked in Sault Ste. Marie at two jobs. He impregnated a woman whom he married in 1969 at age 21.

He enrolled in a civil engineering technician program at the local community college and managed to work as a draftsman on weekends to help support his wife and daughter. On graduation, he obtained full-time employment with the same firm. Unfortunately, his marriage failed in his last year of college (1971) due to alcohol abuse, infidelity and domestic volatility. The acrimony obstructed the development of any relationship with his daughter. [ 17 ] The offender was again married in 1972 to M.N. whom he had impregnated. The couple had three children, two daughters

and a son during an 18-year relationship. They separated in 1989 due to effects of the offender’s employment, infidelities and ongoing alcohol abuse. While the family remained in Toronto, he returned to Sault Ste. Marie and later Sioux Lookout. [ 18 ] He met his third partner in 1993 and their relationship continued for some 17 years until the charges currently before the court were presented.

His personal substance abuse continued during the initial six or seven years of that relationship and notwithstanding treatment intervention in 1994, he continued to struggle with alcohol over the next several years until 2000 when he ceased drinking completely at age 52. He has maintained sobriety to date. During the current year, he has developed a new relationship which is proving favourable.

He enjoys a close relationship with his son and grandchildren in Thunder Bay and remains in contact with his two daughters who live in the Toronto area. [ 19 ] The offender’s background in terms of employment and related accomplishments, particularly in view of his upbringing, is rather stellar.

Since his graduation from Sault College, he has continually maintained employment over a 36-year career up until the time these charges were laid and which abruptly concluded his career. [ 20 ] W.J.N. relied on his civil engineering to coordinate the development of a microwave tower network that enabled telephone service to the far north. He has over the years held executive positions with I[…], and as Deputy Chief of G[…], (serving 49 […] in Northern Ontario).

In conjunction with his employment and commitment to First Nations, he was instrumental in the creation and establishment of many agencies including the T[…] Child and Family Services, the Northern Native Education […], the N[…] Development Fund and the N[…] Police Services. [ 21 ] Given his early childhood experience, perhaps the most noteworthy accomplishment of W.J.N. was his motivation and perseverance respecting the establishment and operation by First Nations of the Pelican Lake First Nations High School situate on the very site of the former Pelican Lake Residential School that he attended.

As the […] of that project, he influenced the creation of a high school that is based on positive and healing First Nations values serving 28 […] in Northwestern Ontario. This achievement is reflective of his capabilities to work within high profile and sensitive areas of governance for First Nations people. AGGRAVATING FACTORS: [ 22 ] The offender stands convicted of three counts of indecent assault involving the sexual touching of children by an adult uncle. [ 23 ] The aggravating factors thereof are: (

a) the offences involved three victims; (

b) the victims were very young; (

c) the offender was a relative and was in a position of trust; (

d) the victims were vulnerable as they slept in either their own bedroom or with cousins at the uncle’s residence. He was opportunistic; (

e) the emotional and psychological harm caused to the victims and their respective families, as disclosed in their Victim Impact Statements; (

f) the offences are serious personal injury offences. MITIGATING FACTORS: [ 24 ] There are also mitigating factors which the court must consider in attempting to arrive at an appropriate sentence for this offender: (

a) W.J.N. is a first offender. He does not have a criminal record; (

b) albeit not at the earliest opportunity, he has entered pleas of guilt to the three counts upon which he is to be sentenced today and thereby confirms his responsibility for his actions; (

c) he is truly and genuinely remorseful for his actions; has been sorry for a long time; he wishes to communicate it to the victims; and he is relieved and content that he has now accepted responsibility; (

d) at the time of the offences, he was significantly abusing alcohol which was a factor in the commission of these offences. His sobriety over the last 12 years demonstrates his self-rehabilitation; (

e) as a young child, he was forcibly removed from his family, community and culture and suffered the effects thereof in his psycho-social development as identified by Dr. Nina Josefowitz and Dr. Rosemary Barnes in their Psychological Assessment Report dated August 18, 2003; (

f) his chronicled varied forms of abuse were validated by an adjudicator at a hearing pursuant to the Independent Assessment Process under the Indian Residential Schools Settlement Agreement (S-2); (

g) one of the resulting behaviours associated with childhood sexual abuse is a phenomenon or pattern of the abused becoming the abuser;

(

h) the revelation of these offences has effectively concluded his career and impoverished the offender; (

i) the numerous character reference letters contained in Exhibit S-2 are a testament to his impressive accomplishments on behalf of the First Nations people and the support of his community; (

j) no evidence of having re-offended in the intervening 32 years. THE RELEVANT STATUTORY PROVISIONS: [ 25 ]

i) The Criminal Code R.S.C. 1970 c. C-34: Indecent Assault on Female – Consent by false representations. 149.

(1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years.

(2) An accused who is charged with an offence under subsection (1) may be convicted if the evidence establishes that the accused did anything to the female person with her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent representations as to the nature and quality of the act. 1953-54, c. 51, s. 141; 1972, c. 13, s. 70. ii) 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances;

(

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. 1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95(c) ; 2001, c. 41, s. 20; 2005, c. 32, s. 25 . 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in s. 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under

section 742.3. 1995, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1 . 742.3

(1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following: (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court; (

c) report to a supervisor (

i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and (ii) thereafter, when required by the supervisor and in the manner directed by the supervisor; (

d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and (

e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

(2) The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following: (

a) abstain from (

i) the consumption of alcohol or other intoxicating substances, or (ii) the consumption of drugs except in accordance with a medical prescription; (

b) abstain from owning, possessing or carrying a weapon; (

c) provide for the support or care of dependants; (

d) perform up to 240 hours of community service over a period not exceeding eighteen months; (

e) attend a treatment program approved by the province; and (

f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

(3) A court that makes an order under this

section shall (

a) cause a copy of the order to be given to the offender; (

b) explain the substance of subsection (1) and sections 742.4 and 742.6 to the offender; (

c) cause an explanation to be given to the offender of the procedure for applying under

section 742.4 for a change to the optionalconditions; and (

d) take reasonable measures to ensure that the offender understands the order and the explanations.

(4) For greater certainty, a failure to comply with subsection (3) does not affect the validity of the order. 1995, c. 22, s. 6; 2008, c. 18, s.40. ANALYSIS: [26] Let me begin by adopting a principle espoused in R. v. S.G.N. 1999 BCCA 738 , 1999 B.C.C.A. 738 by Mr. JusticeBraidwood of that court wherein he stated at paragraph 19 thereof: “19 Sexual abuse in aboriginal communities is no less a problem than in mainstream Canada.

Children and young women should beentitled to no less protection from predators among them.” [27] Secondly, the three victim nieces of the offender, according to their Victim Impact Statements and in varying degrees, haveand continue to suffer profound psychological and emotional trauma attributable to the indecent assaults visited upon them at very youngages. It is noted that the families of the victims have also been impacted by the effects thereof upon C.N., S.L.N., and L.N..

It has beenlong recognized that childhood sexual abuse can have a pervasive negative influence on the child’s overall functioning and development. [28] The facts giving rise to these three convictions involve three singular events. In one case, the offender was sexually touchingthe victim while she was in bed asleep. In another, the offender caused the victim, who was in her bed to touch his penis and he insertedhis fingers in her vagina. In the third, the offender made a failed attempt at sexual intercourse. Two of the offences occurred withinproximity of each other.

The victims were very young: 9 or 10, 7, and between 7 and 12 years of age. There is not any evidence of apattern or continuum of such assaults nor is there any evidence of gratuitous physical violence or threat in the commission of thesepersonal injury offences by the offender. [29] The offences for which the offender is being sentenced are serious and involve sexual exploitation of children. Probationwould most certainly be inappropriate. The prosecution seeks a penitentiary term in the range of 3 to 4 years.

The jurisprudence wouldsuggest that such a range is reserved for offences bearing more grave facts such as sexual intercourse, a continuum of abuse and aperpetrator standing in loco parentis. [30] In this case, the court is dealing with a 64 year old first offender with a horrific systemic upbringing and who has successfullyaddressed his acute alcoholism, accepted responsibility for his criminal conduct, pleaded guilty and is amenable to terms and conditionsof community supervision, if ordered, including rehabilitative programs directed at sexual offending.

His commitment to improving thesocial fabric of First Nations is evidenced by his accomplishments over his 40-plus-year career which are quite impressive. I consider hiscircumstances to warrant a departure from a penitentiary term of imprisonment.

These considerations also go to the issue of whether ornot a conditional sentence of imprisonment is appropriate. [31] If the offences had occurred subsequent to 2007, the offender could not be considered for a conditional sentence pursuant to s.742.1 because persons convicted of a “serious personal injury offence”, which would include sexual assault, are excluded fromconsideration.

I am satisfied that he qualifies for consideration given that: there is not a minimum term of imprisonment applicable tothe offences; a sentence of less than 2 years would be appropriate for this offender; and the safety of the community would not beimperilled were he to serve his sentence in the community. With regard to the latter factor, I do not have any basis to conclude that hewould re-offend. The offender has not exhibited traits of violent behaviour or breach of financial trust or dishonesty that could put thesafety of the community at economic risk.

The references submitted on his behalf positively address his character traits. [32] A conditional sentence would not, in my view, offend the fundamental purpose and principles and objectives set out in s. 718to 718.2 of the Criminal Code. The conditional sentence of imprisonment comprises an alternative to conventional jailing for lessserious and non-dangerous offenders and expands the rise of restorative justice principles in sentencing. [33] I recognize that the appellate courts have cautioned against the imposition of conditional sentences in cases involving sexualabuse of children. [34] In R. v.

D.D. (ON CA), [2002] O.J. No. 1061, (O.C.A.) Justice Moldaver, writing for the court atparagraph 34 stated (emphasis mine): “34 The overall message, however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk tosatisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances,the objectives of sentencing proclaimed by Parliament in s. 718(a), (

b) and (

c) of the Criminal Code, commonly referred to asdenunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the otherrecognized objectives of sentencing.” [35] In R. v. D.R. (ON CA), [2003] O.J. No. 561 (O.C.A.) the court reasoned at paragraph 8 (emphasis mine): “8 While sentences imposed by sentencing judges attract considerable deference from this court, on the facts of this case, we concludethat the governing principles of denunciation and deterrence, both specific and general, cannot be satisfied by a conditional sentence.

This court has repeatedly indicated that a conditional sentence should rarely be imposed in cases involving the sexual touching ofchildren by adults, particularly where, as here, the sexual violation is of a vulnerable victim by a person in a position of trust. In addition,circumstances that involve multiple sexual acts over an extended period of time and escalating in intrusiveness generally warrant a severesentence. See R. v. Cromien (2002), (ON CA), 155 O.A.C. 128 (C.A.); R. v. Bedard (2001), (ONCA), 158 C.C.C. (3d) 216 (Ont. C.A.); R. v. Stuckless (1998), (ON CA), 127 C.C.C. (3de) 225 (Ont.

C.A.); and R. v.G.O. (1997), (ON CA), 99 O.A.C. 234 (C.A.). See also R. v. L.F.W., [2001] 1 S.C.R. 132. The trial judge, withrespect, failed in this case to give adequate or any consideration to those controlling principles. Moreover, the trial judge’s error inimposing a conditional sentence was exacerbated by his further error of failing to impose a house arrest term as part of that conditionalsentence.

In all of those circumstances, the sentence imposed is manifestly inadequate.” [36] The Gladue paradigm requires the court to explore the interplay between the restorative objectives of rehabilitation,reparations and responsibility in the offender, which are more conducive to a conditional sentence and the statutory requirement of s.718.2(e), whereunder a custodial sentence is to be imposed only when no other reasonable sanction is appropriate. The last criteria goeson to distinguish aboriginal offenders in terms of their unique systemic background factors compared with non-aboriginal offenders.

Those factors may have a mitigating influence as there are not categories of offences that presumptively exclude the imposition of a non-custodial sentence.

The court must always be vigilant to the gravity of the offence and the offender’s degree of responsibility. [37] While deterrence and denunciation are the paramount sentencing objectives for offences of this nature, “society’scondemnation” can be addressed by a conditional sentence provided that it is reasonable in the circumstances having regard to the natureand extent of the conditions imposed and its duration recognizing always that: “Aboriginal status does not guarantee a conditionalsentence.” as stated by Watt, J.A. writing for the Ontario Court of Appeal in R. v.

Jacko, 2010 ONCA 452 , 2010 O.N.C.A 452at paragraph [73] and further at paragraph [80], (emphasis mine): “[80] Second, the trial judge appears to have excluded the availability of a conditional sentence of imprisonment on the basis that theparamount sentencing objectives were deterrence and denunciation.

It is well-settled that the prominence of these sentencing objectivesdoes not, on its own, foreclose a conditional sentence order as a sentencing alternative, since a properly crafted conditional sentence cangive full voice to both objectives.” The facts of that case did not involve sexual assault on a child, but rather significant gratuitous violence to and robbery of a homeownerin conjunction with a home invasion scenario. [38] The language of s. 718.2(

e) affirms that “circumstances” do matter. The probability respecting this offender is that therestorative objectives of rehabilitation, reparation and responsibility can be achieved. A conditional sentence is indicated. A sentence inthe upper reformatory range in view of all the circumstances would address the principal sentencing objectives of denunciation,deterrence and restorative justice that are applicable in this case.

Such a sentence should not be interpreted in any way as minimizing theseriousness of the offences or the extent of their impact upon the three victims and their families. [39] Counsel were of assistance to the court through the compilation and filing of casebooks containing reported decisions that,arguably, could have application to this matter. Some are helpful. Some are not. [40] The reasoning of McMurtry, C.J.O., writing for the court in R. v.

D.A.H., Docket C38614 is compelling and resonates with mewhile attempting to craft a sentence that speaks to all of the statutory purpose, principles and objectives of sentencing, includingproportionality. In his Reasons, the then Chief Justice, references and adopts at paragraphs [41] and [42] the following passages from R.v. Gladue: [41] In Gladue, supra, the court described the impact of these kind of systemic and background factors, at para. 68: 68 It is true that systemic and background factors explain in part the incidence of crime and recidivism for non-aboriginaloffenders as well.

However, it must be recognized that the circumstances of aboriginal offenders differ from those of the majoritybecause many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many aresubstantially affected by poor social and economic conditions.

Moreover, as has been emphasized repeatedly in studies and commissionreports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarcerationand less likely to be “rehabilitated” thereby, because the internment milieu is often culturally inappropriate and regrettably discriminationtowards them is so often rampant in penal institutions. [42] Gladue also instructs the sentencing court as to how to use the evidence of these systemic and background factors, at para. 69: 69 In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors inevaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to thecommunity of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevanceprecisely because the prevention of crime as well as individual and social healing cannot occur through other means. [41] In my view, the sanction of imprisonment of W.J.N. would not be reasonable in the circumstances that I have already alludedto. He was institutionalized as a very young child and sustained direct and immediate personal abuses (physical, emotional, sexual andbullying) not to mention the continuing effects of disrupted attachment, loss of language and culture, racism and systemic devaluation.

At age 64 and given his devotion and dedication to First Nations people, it would be unjust, in my view, to cause him to be once againinstitutionalized and, in all probability, causing him to again endure more of that trauma which would likely await him if housed in theinternment milieu and environment, whether reformatory of penitentiary. Further, according to the letter submitted by David Fletcher,Ex.

S-2, Tab 6, the Executive Director of N[…] Nation, the offender would have employment available if not incarcerated as Mr.Fletcher writes that he “would hire him notwithstanding this case.” CONCLUSION: [42] In all of the circumstances referenced herein, an appropriate sentence for W.J.N. is a global sentence of imprisonment of two

years less one day to be served in the community. [ 43 ] W.J.N., please stand, on count 4 of the indictment, I sentence you to a conditional sentence of imprisonment for two years less one day, to be served in the community on the terms and conditions set out below. You can have a seat. TERMS AND CONDITIONS: [ 44 ] Compulsory Conditions : You will be required to do all of the following: (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court; (

c) report to a supervisor (

i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and (ii) thereafter, when required by the supervisor and in the manner directed by the supervisor; (

d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and (

e) notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation. [ 45 ] Additional Conditions : (

f) abstain absolutely from the possession, purchase and consumption of alcohol, controlled substances as defined in the Controlled Drugs and Substances Act and other intoxicating substances of any kind; (

g) not associate, contact or communicate directly or indirectly by any means with C.N., S.L.N. or L.N. and, in particular, not molest, harass or intimidate them or any of them in any way; (

h) perform 240 hours of community service over the first 18 months of your sentence in an activity approved by your supervisor, with emphasis on public speaking to First Nations youth respecting cultural issues and heritage; (

i) attend and complete rehabilitative programs to address grief and trauma issues as recommended by your supervisor; (

j) attend, participate in and complete the rehabilitative programs for sexual behaviours, including the Northwest Sexual Behaviours Program or similar program approved by your supervisor; (

k) for the first 18 months of your sentence, you will be required to remain in your residence under house arrest, 24 hours a day, 7 days a week, except for the purposes of education, employment, medical or dental appointments or emergencies for you or your immediate family members or for performance of community service or attendance at any treatment, counselling or other programs or meeting with your supervisor in accordance with this order or pre-authorized attendance to visit grandchildren or attending at business establishments to obtain necessities on Saturdays between 9:00 a.m. and 1:00 p.m.; (

l) for the remaining six months less one day of this sentence, you will remain in your residence from 10:00 p.m. until 6:00 a.m. the following day except for the same purposes described in the foregoing paragraph (

k) of this order; and (

m) actively pursue educational endeavours and/or employment to the best of your ability and provide proof of your progress to your supervisor on each reporting. (

n) lastly, you are to have on your person, a copy of this conditional sentence order, whenever you are away from your residence. [ 46 ] On counts 1 and 3, I sentence you to the same conditional two year less one day sentence to be served in the community, on each of those counts and which are to both be served concurrent to your sentence on count 4. Counts 2 and 5 are withdrawn at the request of the prosecutor. [ 47 ] The prosecutor has sought a discretionary weapons prohibition order pursuant to s. 110 of the Criminal Code of Canada .

There is not anything referenced in the Gladue -based pre-sentence report or elsewhere respecting this offender that is suggestive of any risk to public safety in the future in that regard. His counsel submits that in addition thereto, his aboriginal heritage and culture embodies the traditions of hunting and fishing and therefore opposes such an order. For both these reasons, I decline to grant the discretionary order. [ 48 ]

Section 487.051(1) of the Criminal Code requires that the court issue an order in Form 5.03 for forensic D.N.A. sampling or analysis upon one’s conviction of a primary designated offence.

Section 149, indecent assault on a female, is a primary designated

offence and the mandatory order will therefore issue authorizing the taking of requisite D.N.A. samples from W.J.N.. [ 49 ] In addition, pursuant to Sections 490.012(1) and 490.013(2) (

b) of the Criminal Code , an order will issue in Form 52 that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for 10 years.

You have been convicted of a sexual assault which is a designated offence under s. 490.011(1)(a)(xvi) and, in my view, given the nature of the Registry, this order will not have a grossly disproportionate impact on your privacy or liberty interests. [ 50 ] Lastly, the prosecutor seeks an order of prohibition pursuant to s. 161(1) of the Criminal Code distancing the offender from persons under the age of 16 years and I am required to consider making such an order.

The offences of which he has been convicted, indecent assault on a female, and involving persons under the age of 16 at the time fulfill the criteria that necessitates such a consideration.

Considering: that these offences occurred over 30 years ago; that he has grandchildren with whom he interacts and who enjoy his relationship with them; that there is not any evidence of his having re-offended; and that there is not any clinical evidence classifying him as a deviant or pedophile, I am not prepared to grant that order in whole or in part. [ 51 ] Now, the Clerk of the Court is ordered to comply with the provisions of s. 742.3(3) of the Criminal Code and explain the terms of the order; explain how the order can be amended by the supervisor on application, by the crown and/or by the offender on application.

And further, the consequences of breaching any condition of this order, which conceivably could involve a judge who might hear that issue rescinding the conditional sentence order and directing that you serve the balance of the time to which you are sentenced in a reformatory. So, these are important factors and I am sure your counsel will also impress upon you, W.J.N., the significance to you of a breach of any of these conditions. Justice I.S. McMillan Released: October 19, 2012 CITATION : R. v. W.J.N., 2012 ONSC 5917 COURT FILE NO.: 7186 DATE: 2012-10-19

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – W.J.N. Defendant REASONS FOR SENTENCE Justice I.S. McMillan Released: October 19, 2012