Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R. v. S.N., 2015 NUCJ 25

Date:
Docket:
Registry:

20150825
08-14-206
Iqaluit

Crown:

Her Majesty the Queen

-and-

Accused:

S.N.

________________________________________________________________________
Before:

The Honourable Mr. Justice Kilpatrick

Counsel (Crown):
Counsel (Accused):

A. Porteous
J. Thompson

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
August 11, 2015
Criminal Code, s. 151

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

DISCLAIMER PAGE
Restriction on Publication:
By court order made under section 486.4 of the Criminal
Code, any information that could identify the complainant
or a witness shall not be published in any document or
broadcast or transmitted in any way.

Anonymized Judgment Disclaimer:

This judgment has been anonymized to comply with
legislative requirements or at the discretion of the authoring
Justice to protect vulnerable parties.

I. INTRODUCTION
[1]

S.N. has pled guilty to a single indictable offence of sexual

interference. He is now to be sentenced for this offence.

II. THE FACTS

[2]

On the night of this offence, S.N. is not getting along with his
common-law spouse of 12 years. C.D., S.N.s spouse, is not doing the
dishes as frequently as S.N. desires. They have a heated argument.
This quickly deteriorates into name calling and verbal abuse. C.D.
accuses S.N. of being sexually involved with his 15-year-old stepdaughter (A.B.). C.D. refuses to have any further sexual relations with
S.N. until he is tested for a sexually transmitted disease. Nothing is
resolved by this exchange of insults and accusations. The spouses
soon go their separate ways.

[3]

For some time, S.N. broods over the false accusation. His anger
grows. S.N. decides to do what he has been accused of doing. This
would be his revenge.

[4]

Later that same night, S.N. quietly slips into the childrens bedroom.
There are three children asleep on a bed. The victim, A.B., is there.
She lies on the outside of the bed and is easily accessible. S.N. pulls
down A.B.s panties, exposing her genitals and buttocks. He fondles
A.B.s vagina. He then attempts to penetrate A.B. from behind. He is
not successful, however. A.B. flees the bed, the bedroom, and the
house.

[5]

The next day, A.B. tells her aunt what S.N. has done. A.B. is then
taken to the police station. When C.D. finds out, she is furious. The
relationship with S.N. ends abruptly. C.D. eventually moves back to
her home community. The family disintegrates. The child protection
authorities get involved.

[6]

The victim A.B. now lives in a group home. The children are all
separated. Some are in care. A.B.s younger sister now lives in a
distant community with her step-mother.

[7]

A.B. blames herself for the breakup of her family. She blames herself
for the breakdown of her parents relationship. She misses those of
her siblings who are now inaccessible to her. Her life will never be the
same. She is devastated by these events.

III. ANALYSIS
A. Aggravating offence characteristics
(i). The age of the victim
[8]

Section 718.2(a)(ii.1) of the Criminal Code of Canada, RSC 1985, c

C-46 [Criminal Code], deems any abuse of a person under the age of
18 years to be an aggravating circumstance. This represents a
codification of common law jurisprudence that is of ancient origin.

(ii). The breach of trust

[9]

Section 718.2(a)(iii) of the Criminal Code deems any abuse of trust or

authority to be an aggravating circumstance. This section of the
Criminal Code merely codifies common law jurisprudence that
extends back in time for at least two centuries. This too is simply a
proposition of common sense.

[10] Raising a child as a parent or step-parent gives rise to significant legal

responsibilities. Together, the parents share responsibility for the
childs wellbeing. The child cannot support itself so there is a parental
duty to provide the necessities of life. The child is vulnerable so there
is a parental duty to protect. A family is there to provide comfort and
safety to those within it. It is there to be a safe haven or refuge from
the storms of life. It cannot become a place of fear or torment.
[11] Love, respect, trust, and duty - these are the four pillars upon which
the institution of the family is built and maintained. These values
define who we are and what we want to be, as a family, as a society,
and as a people. It is the unconditional application of these parental
responsibilities that make a parent a parent, and a family a family.
Parental responsibilities are integral to any parent-child relationship.
[12] The trust relationship between parent and child underlies important
social values that the law seeks to protect. These are social values
that are worth protecting. Any type of violence, particularly sexual
violence, that is committed by a parent against a child damages the
core social values that are the underpinnings of the family unit. Sexual
violence destroys the trust that is integral to a nurturing relationship. It
is a denial of everything that a parent-child relationship is there to
provide. This is not only a breach of duty, it is an act of betrayal. The
emotional harm caused by such a breach of trust cuts deep.

[13] Inuit traditional values are centered on respect for others. This type of
offence, and the breach of trust underlying it, is as abhorrent to the
Inuit as it is to mainstream Canadian society.
[14] A.B. had lived with her biological father for some time before this
offence. She had returned to S.N.s home approximately a year
before the offence occurred as a result of being sexually abused by
another male in that home. As a result of this earlier victimization,
A.B. was as emotionally fragile as she was vulnerable.
[15] A.B. had been raised since about the age of four by both S.N. and
C.D. A.B. had every right, and every expectation, to be safe in her
family home. She had every right, and every expectation, to be
protected by her step-dad, not violated by him.
(iii). The presence of planning or premeditation
[16] This was not just a senseless crime of opportunity that can be
passed off to some form of intoxication and a spur of the moment
loss of inhibition. S.N. was completely sober when he committed this
offence. He knew that what he was doing was morally reprehensible
and legally wrong. There was some thought involved in S.N.s
surreptitious entry into A.B.s bedroom. S.N. deliberately committed
this offence to pay his spouse back for her earlier accusation.
(iv). Victim impact
[17] Evidence that an offence has had a significant adverse impact on a
victim is deemed by section 718.2(a)(iii.1) of the Criminal Code to be
an aggravating circumstance.

[18] The moral culpability of an adult who is prepared to risk harming a

vulnerable teen for the sake of his own sexual gratification is very
high. The Court once again reiterates what it said in the case of R v
DeJaeger, 2015 NUCJ 02, 2015 CarswellNun 4 [DeJaeger], at
paragraphs 123 to 125:
[123] Adolescents are emotionally fragile. For a child victim of sexual
abuse, the potential range of impacts can be as broad as they can be
severe. The childs sense of self respect, their ability to trust and bond
with others, and their sexual identity are all things that are easily
damaged. As the sexual violence increases in severity, or where sexual
victimization is prolonged or repeated, the psychological damage
associated with this form of violence is likely to be enhanced. Sexual
violence to an adolescent can be expected to leave a trail of damage
and destruction in its wake. This damage can last a lifetime.
[124] This psychological harm can manifest itself in depression and
self-destructive behaviour later in life. It can fuel substance abuse and
addiction as the child turns to alcohol and drugs in an effort to dull the
pain. This damage may generate intense anger and interpersonal
conflict with others. With loss of self-respect, there is an enhanced risk
of suicide and self-harm.
[125] Mistrust of others is usually an enduring legacy of child sexual
abuse. Once lost, a childs trust in adults will be difficult to recover.
This mistrust may cause the child to withdraw socially from those
around them, particularly other adults. The victims ability to form
meaningful intimate relationships with others later in life may be
compromised. A close relationship may become much more difficult
to achieve.

[19] The Victim Impact Statement filed in this proceeding (Court Exhibit S1 [Exhibit]) indicates that A.B. now blames herself for what has
happened to her family. This adolescent needs help if she is to avoid
sliding into depression and self-destructive behavior. The Court
authorizes a copy of this Exhibit, and this judgment, to be immediately
released to the Nunavut Director of Child and Family Services.

[20] The Court urges the Nunavut Department of Child and Family
Services [the Department] to move quickly, if it has not already done
so, to provide intensive therapeutic counselling to A.B. in order to
address this issue. This is needed to rebuild A.B.s battered selfimage. If qualified therapeutic help is not available in Nunavut, then it
should be. The Court urges the Department to consider a referral to
an outside agency if necessary to ensure that the needs of this
adolescent victim are adequately addressed in a timely manner.
[21] Given the many aggravating circumstances of this offence, emphasis
upon the sentencing principle of denunciation and deterrence
becomes necessary to properly reflect the seriousness of this type of
offence committed in these circumstances.
[22] The focus on these particular sentencing principles is also mandated
by section 718.01 of the Criminal Code, which provides:
When a court imposes a sentence for an offence that involved the
abuse of a person under the age of eighteen years, it shall give primary
consideration to the objectives of denunciation and deterrence of such
conduct.

B. Mitigating offence characteristics

[23] There are no mitigating offence characteristics. This is not a case
where the offender laboured under some misapprehension or mistake
of law.
C. Aggravating factors related to the offender
[24] There are no identified aggravating factors. The Crown does not
allege a criminal record.
D. Mitigating factors related to the offender
[25] S.N. is 32 years of age. He has not previously been convicted of a
criminal offence. S.N. had the good fortune to be custom adopted at
an early age by his grandmother, who had become very concerned
about his biological mothers constant drinking.

[26] S.N. was raised in a good home by loving adoptive parents. He had a
happy childhood and has no memories of physical or sexual abuse.
His grandmothers partner was a good teacher of on-the-land skills.
[27] S.N. is fluent in both Inuktitut and English. While he has only achieved
a Grade 10 education, he has a solid work history commensurate with
this. He was a good provider to his former family. He maintains good
relations with his siblings and with other members of his extended
family.
[28] The Court is required to factor into its analysis systemic factors that
have led Aboriginal citizens in this country to become marginalized,
disadvantaged, and overrepresented in the criminal justice systems
prisons. The Court has done so.
[29] The Court has directed its mind specifically to the criteria identified by
the Supreme Court of Canada in the decision of R v Gladue, [1999]
SCJ No 19, [1999] 1 SCR 688 (QL) [Gladue], and the provisions of
section 718.2(e) of the Criminal Code. Apart from the usual systemic
disadvantages associated with life in a remote northern community,
there are no specific Gladue factors identified in this case that might
influence the application of the proportionality principle of sentencing.
E. Mitigating factors arising after the commission of the offence
[30] S.N. has accepted responsibility for this offence. He has remorse. His
guilty plea is consistent with this remorse. S.N. is entitled to receive
credit in mitigation of sentence for entering a guilty plea. The policy
reasons for providing this credit in mitigation of sentence were
outlined in the recent case of R v JN, 2015 NUCJ 22, 2015 NUCJ 22
(CanLII):
[38] The guilty pleas to these various offences are entitled to
significant weight in mitigation of sentence. There are two reasons for
this. Such a position encourages offenders to accept responsibility for
their misdeeds. This also recognizes the great benefits associated with
relieving complainants of their obligation to testify.

9
[39] The trial process requires witnesses to relive their experiences in a
public setting. Witnesses are subjected to close examination by
lawyers. The reliability or credibility of their evidence is often
challenged. Raw emotions are exposed by this. There is great anxiety,
humiliation, and anger generated by this truth finding process.
Testifying in a trial environment can exacerbate old trauma and create
new trauma. This is particularly true of children who are required to
testify and relive traumatic events that they have experienced. It is also
true of many adult witnesses who may struggle with post-traumatic
stress long after a frightening or violent experience has passed.

[31] The guilty plea in this case, however, was not offered at the earliest
opportunity. The young victim, A.B., was still required to testify at a
preliminary hearing for this offence. Subsequent credit for a guilty plea
is not entitled to the same weight as that accorded a guilty plea
entered before a victim is required to testify.
[32] S.N. cooperated with the investigating authorities. He provided a
warned statement admitting the offence to the Royal Canadian
Mounted Police. Those who waive their legal right to remain silent,
and who cooperate with the investigating authorities, are entitled to
some additional consideration in mitigation of sentence for doing so.
[33] S.N. has been at large in the community for many months on court
process. There are no allegations that he has breached any of the
conditions of his release. The absence of any criminal record or other
history related to alleged breaches of court process leads to an
inference that S.N. has good potential for rehabilitation.
F. Jurisdictional considerations
[34] As outlined by this Court in DeJaeger, at paragraphs 173 and 174,
Nunavut leads the country in its per capita rate of sexual offences
committed against children. This high incidence of sexual crimes
against children in all of Nunavuts communities requires a firm
response by the territorys sentencing court. The need to emphasize
denunciation and general deterrence through an exemplary sentence
is enhanced under these circumstances. The Courts sentencing
posture in Nunavut must reflect what has become a pressing systemic
problem in all of Nunavuts communities.

10

IV. CONCLUSION
A. Sentence calculation
[35] Parliament has set a minimum mandatory sentence for this type of
offence. When prosecuted by indictment, a sentencing court must
impose no less than one year of gaol. The maximum sentence for this
offence stands at 10 years.
[36] On these facts, the Crown recommends a gaol term of eighteen to
twenty months, followed by a period of supervised probation. Defence
urges a lower sentence that approaches the statutory minimum period
prescribed by the Criminal Code.
[37] A minimum mandatory sentence does not displace the application of
other sentencing principles set out in sections 718 through 718.2 of
the Criminal Code. It underscores Parliaments view of the
seriousness of the offending behavior that is caught by a particular
charging provision. The minimum mandatory sentence creates an
inflationary floor. This shifts the range within which an appropriate
sentence must be crafted when using the sentencing principles set
out in the Criminal Code (See R v Guha, 2012 BCCA 423, [2012] BCJ
No 2204 (QL); and R v Lyta, 2013 NUCA 10, 2013 CarswellNun 31).
[38] In the circumstances of this particular offence and this offender, the
imposition of the mandatory statutory minimum sentence, as
advocated by the Defence, would not adequately address the
significant aggravating circumstances associated with the breach of
trust. Where all other factors are similar, an offence committed by an
offender who does not breach a trust relationship should not receive
the same sentence as an offender who does.
[39] In arriving at the duration of sentence for this offence, the Court has
given anxious consideration to the purpose and principles of
sentencing set out in sections 718 through 718.2 of the Criminal
Code. The Court has considered both the offenders personal
circumstances as an Aboriginal citizen and the impact that systematic
factors have had on his life and lifestyle, as is required by the
Supreme Court of Canadas contextual analysis in the cases of
Gladue and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433.

11

[40] While the sentencing goal of rehabilitation is usually given primacy in

cases involving a first offender, rehabilitation must yield to
denunciation and deterrence in circumstances involving serious
crimes of violence against children. This is particularly the case in
circumstances where the violence committed against a child is sexual
in nature and is accompanied by a breach of trust. While the Court
makes every effort to avoid lengthy sentences of incarceration for first
offenders by applying the policy of restraint, there is an exception to
this general rule for serious violent crime. It is an exception wellembedded in Canadas appellate jurisprudence. The case before the
Court is an example of one such an exception.
[41] S.N. is sentenced to 78 weeks of incarceration (18 months). But for
the guilty plea and accompanying remorse, the sentence would likely
have fallen well within the range required for the federal penitentiary.
[42] The Court directs that the warrant for committal be endorsed with two
recommendations:
1.
2.

That S.N. be provided with intensive sex offender

programming prior to his release; and,
That S.N. be considered for placement at the Rankin
Inlet Healing Facility, if deemed suitable for the
programming available at this facility. Such a
placement can only further enhance S.N.s potential
for rehabilitation.

[43] Pursuant to section 742.21 of the Criminal Code, S.N. is prohibited

from having any contact or communication with A.B. while serving this
sentence of custody.
[44] Following his release from custody, S.N. is bound by a Probation
Order for two years, containing the following conditions:
1.
2.

S.N. must keep the peace and be of good behavior;

S.N. must report to a probation officer within 7 days
of his release from custody. He must thereafter
report to, and be under the supervision of, the
probation officer, as directed by the probation officer;

12

3.

4.

5.

6.

S.N. must have no direct or indirect contact with

A.B., except such contact as may be authorized in
advance and in writing by the probation officer. Any
such contact must be consented to by A.B. and must
be supervised by either a child protection worker, a
counsellor, or a probation officer. Contact for the
purpose of victim/offender reconciliation is
contemplated by these contact provisions;
S.N. must take, and successfully complete, such
counselling as may be directed by the probation
officer. This includes sex offender counselling and
anger management counselling;
S.N. must not reside in any home that is occupied by
a child under the age of 16 years without the
authorization of his probation officer; and,
S.N.s probation officer must approve his proposed
residence in advance and in writing.

B. Ancillary orders
[45] The ancillary orders are as follows:
1.

2.

3.

4.

Pursuant to section 109 of the Criminal Code, S.N. is

prohibited from possessing or using any firearms,
ammunition, or explosives for a period of 10 years
from the date of this order. Any such items now in his
possession or under his control must be lawfully
disposed of within 30 days of this order;
S.N. is prohibited for life from possessing any
prohibited or restricted firearm, prohibited weapon or
device, or prohibited ammunition. Any such items
now in S.N.s possession or under his control must
be immediately surrendered to the nearest police
detachment. Any such items are ordered forfeited to
the Attorney General for the purpose of destruction;
S.N. is ordered to submit a sample of his DNA for
registration in the national DNA databank. This order
is mandatory for primary designated offences as
defined by section 487.04 of the Criminal Code;
S.N. is ordered to submit himself to the processes of
the national Sex Offender Registry, as set out in
sections 490.011 through to 490.016 of the Criminal
Code. This order is for 20 years;

13

5.

6.

S.N. is ordered to pay a victim fine surcharge of

$200.00 for this indictable offence. This is to be paid
within one year from the date he is released from
custody; and,
Pursuant to section 161 of the Criminal Code, S.N. is
prohibited from seeking or obtaining any
employment, whether remunerated or not, or
becoming a volunteer in any capacity that involves
being in a position of trust or authority to any person
under the age of 16 years. This order is for 15 years.

Dated at the City of Iqaluit this 25th day of August, 2015

___________________
Justice R. Kilpatrick
Nunavut Court of Justice