Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R. v. C.A., 2015 NUCJ 31

Date:
Docket:
Registry:

20151105
08-14-154
Iqaluit

Crown:

Her Majesty the Queen

-and-

Accused:

C.A.

________________________________________________________________________
Before:

The Honourable Mr. Justice Kilpatrick

Counsel (Crown):
Counsel (Accused):

J. Montgomery; B. McLaren
P. Bruce

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
October 27, 2015
Criminal Code, s. 151

REASONS FOR JUDGMENT

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

DISCLAIMER PAGE
Restriction on Publication:

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could identify the complainant or a witness shall not be
published in any document or broadcast or transmitted in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. Letters
have been assigned at random.

I. INTRODUCTION
[1]

C.A. has entered a guilty plea to a single indictable offence of sexual

interference contrary to section 151 of the Criminal Code of Canada,
RSC 1985, c C-46 [Criminal Code]. He is now to be sentenced.

II. THE FACTS

[2]

In October 2013, C.A. is homeless. He is living in his brother L.A.s

house in Iqaluit. On October 19th, 2013, C.A. is asked to babysit
L.A.s five year old daughter A.B.. He agrees to do so.

[3]

When C.A. is alone with A.B., he takes the child to a bedroom. He

removes the childs clothing. He puts A.B. on a bed. C.A. then
removes his own pants and puts on a condom. He attempts to
penetrate A.B.s vagina, but is unsuccessful in doing so. C.A.
eventually gives up, but not before causing some injury to the childs
genitals.

[4]

When A.B.s mother returns home to discover this injury, the child is
taken to the hospital where she is treated. A.B. tests positive for a
sexually transmitted disease. The child protection authorities become
involved. An investigation by the police soon follows.

[5]

Two months later C.A. is confirmed as having this same sexually

transmitted disease and is treated for this condition.

[6]

C.A. is 20 years of age when he commits this offence. He cooperates

with the Royal Canadian Mounted Police and provides a statement
admitting the offence.

III. ANALYSIS
A. Aggravating offence characteristics
(i). The age and vulnerability of the victim
[7]

This five-year-old childs inability to defend herself, and lack of

sophistication, leaves her very vulnerable to exploitation by adults.
The potential for long term psychological harm to a child victim
elevates this type of offences seriousness in the eyes of the law. This
Court has repeatedly emphasized in its judgments that this type of
offence carries with it a very high degree of moral culpability (See R v
DeJaeger, 2015 NUCJ 02, paras 122 to 129 and paras 130 134;
[2015] NuJ No 6 (QL)). A sentencing court must recognize this
vulnerability by emphasizing the sentencing principles of deterrence
and denunciation. An exemplary sentence should be imposed on
citizens who exploit a childs vulnerability to satisfy their own selfish
sexual needs. This common law sentencing posture has now been
codified in section 718.01 of the Criminal Code. This section 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.

[8]

Section 718.2(a) of the Criminal Code [section 718.2(a)] directs a

sentencing court to increase a sentence where aggravating
circumstances are present. This section goes on to list a number of
aggravating circumstances to be considered in sentencing. Section
718.2(a)(ii.1) specifically references as an aggravating circumstance:
(ii.1) evidence that the offender, in committing the offence, abused a
person under the age of eighteen years;

(ii). The abuse of trust

[9]

A.B. was in C.A.s care when she was victimized. As a babysitter,

C.A. was entrusted by the victims parents to protect his young charge
from anything that would harm her. Where the law imposes a duty of
care to protect the vulnerable, then a breach of this duty becomes
particularly egregious. To violate the sexual integrity of a child where
there is a duty to protect can only be regarded as a profound breach
of a trust that the law regards as sacred. An exemplary and
denunciatory sentence becomes necessary to reinforce and repair the
fundamental social values that have been undermined by this breach
of trust.

[10] This common law sentencing posture has once again been codified in
Canadas Criminal Code. Section 718.2(a)(iii) specifically references a
breach of trust or authority as an aggravating circumstance that merits
an increased penalty.
(iii). The infliction of harm
[11] The absence of any evidence of psychological harm to the child in this
case does not reduce an offenders overall moral culpability for the
offence. It is an offenders willingness to assume the risk of causing
such harm that propels this type of offence to the highest level of
moral culpability.
[12] There is evidence that this victim has sustained physical harm as a
consequence of this offence. Apart from the physical injury sustained
through the attempted penile penetration of a five-year-olds vagina,
there is also evidence that the sexual contact by C.A. resulted in the
child contracting syphilis.
[13] The common law has always regarded the infliction of harm upon a
victim as an aggravating circumstance. This common law sentencing
posture is once again now codified. Section 718.2(a)(iii.1) requires a
sentence to be increased to reflect:
(iii.1) evidence that the offence had a significant impact on the victim,
considering their age and other personal circumstances, including their
health and financial situation.

(iv). The familial relationship

[14] C.A. was a guest in his brothers home when he committed this
offence. C.A. is the child victims uncle. As in any family, the victim,
and certainly the victims parents, expected this uncle to be kind,
caring, and supportive of the little one. In the circumstances
presented here, the familial relationship between the victim and the
offender elevates the familys acute sense of betrayal.
B. Mitigating offence characteristics
[15] There are no mitigating offence characteristics presenting here.
[16] There is no evidence to suggest that C.A. was in any way mistaken
about the nature and quality of the act that he was perpetrating. C.A.
was sober. C.A. knew what he was doing. He had used a condom in
an effort to mitigate the effect of his intended sexual intercourse. C.A.
knew that involving a five year old child in this sexual activity was both
legally wrong and morally reprehensible. This act is as abhorrent to
Inuit culture as it is to mainstream Canadian society. The fundamental
Inuit value requiring respect of others, particularly respect of the very
young and the very old, was violated by this conduct.
C. Mitigating factors related to the offender
[17] C.A. was 20 years of age when he committed this offense. He has no
criminal record.
[18] C.A is a grade 12 graduate. Though unemployed when this offence
was committed, C.A. has a solid history of employment with hotels,
restaurants, construction companies, and gas stations. He has also
been employed as a guard for a local security company.
[19] C.A. has done remarkably well despite a disadvantaged background.
He was custom adopted at birth. At the age of three or four his
parents separated and, as a consequence of abuse by his adoptive
mother, C.A. was put into foster care by the child protection
authorities. He remained in care until he was approximately 10 years
of age.

[20] While in care, he was taken hostage for some hours by a man
wielding a knife inside his foster home. There was a standoff with the
police. When the armed intruder attempted to leave the home with
C.A. as his prisoner, he was shot and killed by the police in front of
C.A.
[21] C.A. was traumatized by this event. He received some form of
rudimentary counselling for post-traumatic stress. His behavior in the
foster home and at school started to deteriorate, however. C.A. began
to display significant anger and acted out both at home and at school.
[22] C.A was eventually returned to his father (by custom adoption) by the
child protection authorities. He was then raised by his Dad and his
fathers new wife.
[23] As a teen, C.A. began to resort to drugs and alcohol. The angry
outbursts intensified. C.A.s stepmother believes that C.A. continues
to suffer from the effects of post-traumatic stress disorder. The family
has attempted to find counselling resources in Nunavut to treat C.A.s
dysfunctional behavior, but have been unsuccessful in doing so.
[24] There is some suspicion by family that C.A. may also suffer from
some degree of Fetal Alcohol Spectrum Disorder. There has never
been any formal assessment done of C.A. for this disorder. Nunavut
lacks the resources to carry out such an assessment.
[25] C.A. is able to speak Inuktitut. He has been taught traditional on-theland skills by his father and remains connected to his culture.
[26] 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.
[27] 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] 1
SCR 688, [1999] 1 SCR 688 (QL), and the provisions of section
718.2(e) of the Criminal Code.
[28] To the extent that C.A.s chaotic and disadvantaged background has
impacted on C.A.s overall moral culpability for committing this
offence, this background must be taken into account in mitigation of
sentence.

D. Mitigating factors arising after the commission of the offence

(i). The guilty plea
[29] The guilty plea to this offence is entitled to considerable 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.
[30] 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] Trials with very young witnesses are fraught with difficulty for the
Crown. The very young child may freeze in court or be otherwise
unable to communicate the evidence. The entry of a guilty plea avoids
a trial. The child victim is relieved of the necessity of testifying. This
serves the overall interests of justice. The benefits accruing to the
administration of justice must be recognized and given weight by
reducing the sentence that would otherwise have been imposed.
(ii). Genuine remorse
[32] The Court finds that the guilty plea in this case is accompanied by
genuine remorse. C.A. is acutely aware that he has not only let
himself down, but has severely damaged his familial relationship with
his brother and his wife and young cousin.

(iii). Detention credit

[33] C.A. has been in pre-trial detention since February 5th, 2015. Both
the Criminal Code and common law jurisprudence require the Court to
consider this period of detention in mitigation of sentence. It is agreed
by counsel that the credit for this period should run at the rate of one
for one. This amounts to a credit in mitigation of sentence of 240
days.
(iv). Involvement in programming while in detention
[34] C.A. is also entitled to consideration for his active involvement in
programming during his stay at the Baffin Correctional Center. His
successful completion of programming for Substance Abuse,
Alternatives to Violence, and Psychological Services are supported by
Certificates of Completion (sentencing exhibits 2, 3, and 4 in this
proceeding).
[35] The rationale for affording a sentencing credit for successful
completion of programming was outlined by this court in R v
Newkingnak, 2015 NUCJ 22, at paras 47 through to 53, 2015
CarswellNun 22, which are reproduced here:
[47] The reality in Nunavut is that many forms of remedial counselling
and treatment are not available in the communities. Specialized
training is needed to address sexual offending, domestic violence,
mental health issues, and drug and alcohol dependencies. Many other
jurisdictions in Canada offer specialized programming for sex
offenders and domestic violence that is community based. Most
jurisdictions have some form of residential treatment available for
serious drug and alcohol dependencies.
[48] Nunavuts Community Corrections [Community Corrections]
does not offer any form of treatment for sex offenders at the
community level, despite a very high per capita incidence of this type
of offending. There are no specialized relapse prevention programs.
Rankin Inlet is the only community in Nunavut that offers a dedicated
treatment program for domestic violence. This program is not run by
Community Corrections.

10
[49] Community Corrections has neither the funding nor the capacity
to deliver these specialized treatment programs at the community
level. In Nunavut, beleaguered social workers and probation officers in
the communities are tasked to take on the additional burden of
providing the counselling and follow up needed to address these
serious issues. Though well intentioned, these community workers are
not positioned to provide the specialized therapy needed to address
these issues. They have neither the time given their large caseloads nor
the expertise needed to be effective.
[50] The high recidivism rate in Nunavut is driven in part by the
absence of viable treatment options available to citizens in the
communities. In the absence of community based treatment options,
probation orders can have little impact on the lives of disadvantaged
and dysfunctional citizens who come before the court needing help.
Where offenders continue to reoffend, gaol becomes the only viable
option open to the court to protect the public.
[51] The funding needed to access specialized treatment programs
outside Nunavut is under the control of a different government
department. The Nunavut Department of Health does not consider
itself bound by court orders for specialized treatment outside the
territory. This is particularly true for orders requiring offenders to take
and successfully complete residential treatment programs for drug and
alcohol dependencies as a condition of probation.
[52] The Criminal Code of Canada, RSC 1985, c C-46 [Criminal
Code], and the Controlled Drugs and Substances Act, SC 1996, c 19,
was amended some years ago to allow a court to adjourn sentencing in
order to facilitate an offenders attendance at government approved
treatment programs. Mandatory gaol sentences for certain types of
offences can then be avoided in circumstances where offenders
complete these approved programs. The Government of Nunavut has
yet to designate or approve any programs in Nunavut, or elsewhere,
under these provisions of the Criminal Code.
[53] The court has had to adjust its sentencing posture to reflect the
stark realities of Nunavut. By ensuring that a sentencing benefit is
afforded to those citizens who take advantage of programming,
programming that is only available to those in custody, the court seeks
to encourage participation in remedial programming by all inmates.
Some programming in custody is better than none at all.

11

(v). Cooperation with the investigating authorities

[36] C.A. waived his legal right to remain silent. He provided a statement
to the authorities admitting his responsibility for the offence. For
sentencing purposes, an offenders willingness to cooperate with the
investigating authorities is a factor to be weighed in his or her favour.
E. Jurisdictional considerations
[37] Nunavut leads the country in the per capita rate of commission of
sexual offences. This is also true of sexual offences committed by
adults on children. This type of crime remains a persistent and
pressing problem in all of Nunavuts communities. Comparative
statistics related to this type of offence and offences against children
generally have been referenced by this Court in a number of recent
decisions and will not be repeated here (See R v DeJaeger, 2015
NUCJ 02, paras 172 through to 178, 2015 CarswellNun 4; and R v
Shappa, 2015 NUCJ 26, at para 7, 2015 CarswellNun 260).
[38] The prevalence of sexual offences against children in Nunavut is
relevant to the need for emphasis on general deterrence as a
sentencing principle.
IV. CONCLUSION
A. Sentence calculation
[39] Had this matter proceeded to trial, a sentence in the range of four to
five years would have been entirely appropriate given the many
aggravating features of this offense. However, the end result must not
only reflect the seriousness of this offence committed by this offender
in this jurisdiction, but must also take into account C.A.s relatively
young age, lack of criminal history, and potential for rehabilitation. The
law ordinarily requires a sentencing court to also take into account
any detention in remand prior to sentence being imposed. In view of
C.A.s disadvantaged background, the principle of restraint as codified
in section 718.2(e) of the Criminal Code must be considered and
applied in these circumstances.
[40] C.A.s commitment to his own rehabilitation while incarcerated tips the
balance in terms of the overall length of sentence. But for the lack of
criminal history and C.A.s involvement in programming, the sentence
would have been longer.

12

[41] In the end result, C.A. is sentenced to 969 days of custody. From this
total must be deducted 240 days of detention in remand. This leaves
a sentence of 729 days remaining to be served (two years less one
day).
[42] C.A. will be on probation for a period of three years following his
release from custody. The conditions of the probation order will be as
follows:
[43] C.A. must:
a. Keep the peace and be of good behaviour;
b. Report to a probation officer within seven days of his
release from custody and thereafter report to and be under
the supervision of the probation officer for the full duration
of the probation order;
c. Take and successfully complete, if directed by his
probation officer, sex offender counselling, anger
management counselling, and trauma counselling related
to his own victimization;
d. Have no contact, directly or indirectly, with the child
victim or her parents (except such contact as is approved
in advance and in writing by the probation officer). Any
such contact must be consented to by the child victim and
her parents and must be supervised by a responsible adult.
This exception is built into this order to facilitate an attempt
at offender/victim reconciliation with the possible
involvement of the probation officer and/or local justice
committee. Once again, both the parents of A.B. and A.B.
must be willing to participate in such a process;
e. Not to go within 50 metres of the child victims residence
or school;
f. Have no unsupervised contact with any child under the
age of 14 years. Any such contact must occur in the
immediate presence of a sober adult;
g. Not live (or over-night) at any house in which a child
under the age of 14 years is resident;

13

h. Attend court in person within 12 months of your release

from custody for the purpose of a probation review. The
time, date, and place of this review is to be set by the
probation officer (The Court sets this review to see what
steps, if any, the Government of Nunavut has taken to
address C.A.s indicated therapeutic needs).
B. Ancillary orders
[44] Pursuant to section 109 of the Criminal Code, C.A. 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.
[45] C.A. is prohibited for life from possessing any prohibited or restricted
firearm, prohibited weapon or device, or prohibited ammunition. Any
such items now in C.A.s possession or under his control must be
surrendered immediately to the nearest police detachment. Any such
items are ordered forfeited to the Attorney General for the purpose of
destruction.
[46] C.A. is a subsistence hunter. He is granted an exemption under
section 113 of the Criminal Code to use a firearm for subsistence
hunting purposes only.
[47] C.A. 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.
[48] C.A. is ordered to submit himself to the processes of the national Sex
Offender Registry as set out in sections 490.11 through to 490.16 of
the Criminal Code. This order is for twenty years.
[49] Pursuant to section 161 of the Criminal Code, C.A. 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 10 years.
[50] The victim fine surcharge is waived for reasons of hardship.

14

C. Orders and recommendations on the warrant of committal

[51] Pursuant to section 743.21 of the Criminal Code, C.A. is prohibited
from having any contact or communication with the victim A.B. or her
parents while serving this sentence of custody.
[52] It is recommended that C.A. receive intensive sex offender
programming while serving this sentence of custody.
[53] It is further recommended that following completion of this
programming, C.A. be considered for placement at the Rankin Inlet
Healing facility.
D. Directions to the clerk
[54] Upon receipt of the court-ordered sex offender risk assessment
previously ordered by this Court, a copy of this assessment is to be
forwarded to the attention of C.A.s case management officer and the
Nunavut Corrections psychologist.

Dated at the City of Iqaluit this 5th day of November, 2015

___________________
Justice R. Kilpatrick
Nunavut Court of Justice