Supreme Court

^^ ^ T? c?54

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES )

BETWEEN: HER MAJESTY THE QUEEN -and-.ROMEO KUSSITUK NAUKATSIK Counsel: B, Fontaine, for the Crown B, VJillis for the defendant

ORAL REASONS FOR JUDGMENT OF THE HONOURABLE, MR. JUSTICE C F, TALLIS

UPON COMMENCING AT 11:15 A,M, iTHE COURT: I will give my reasons for judgment. In this particular matter I am prepared to deal with the issue of sentencing at this time, At the outset I would like to thank both *Mr'. Fontaine and Mr, Willis for the submissions that they have made on the question of sentence in this particular case, This is a very difficult case from the Standpoint of a sentencing trial judge and, accordingly, I would like to express my appreciation to Mr. Willis for arranging to have Dr, MacKay examine the accused and submit a report which is available at this time.

- 2 -f« ( I have carefully considered Dr, MacKay's report •

along with the submissions and evidence of the accused that was adduced in the witness box under oath,

Frora listening to the accused I am satisfied that, to the best of his ability, he told us the truth, I am inclined to .agree with Dr, MacKay that this is a genuine case of him not remembering what happened at the relevant time on the early morning in question.

In this particular case, the accused, Romeo Naukatsik, has pleaded guilty before me. Initially, the trial was scheduled to go by way of a jury trial with a Not Guilty • plea, The Clerk of the Court v/as advised in plenty of time ( that the plea would be changed to one of guilty and accordingly, the Sheriff was able to arrange to have prospective members of the Jury Panel notified so that they would not have to attend. In this particular case I am satisfied that the Plea of Guilty was raotivated by a genuine regret on the part of the accused for what he did on the night in question. Under the circumstances I am prepared to take that into account r in this particular case. •' I do not always feel that a Plea of Guilty is I rendered with that in mind, as far as being inspired by a / i genuine fee l ing of reraorse or r eg re t .

- 3 -I think also, that I would be remiss if I did r not commend Mr. Willis for taking advantage of and getting opinion of independent counsel, namely Mr. Bayly before embarking upon this course of action.

This of course means that the accused was given the füll benefit of the independent advice of two separate counsel experienced in criminal matters, and it may be appropriate, perhaps, for the court to mention that in this day and age where v/e have legal aid, you often hear the Suggestion that cases are unduly prolonged or that a certain course of action is embarked upon because of the availability of Legal Aid.

This case of course demonstrates that those vv comments are not warranted, and you accordingly have a Situation where the accused has entered a Plea of Guilty after receiving the advice of two independent counsel. I cannot close my eyes to the fact that entering a Plea of Guilty under these circumstances, which stems from a genuine feeling of remorse, indicates that there is absolutely no attempt on the part of the accused or his counsel to in any way abuse the provisions of Legal Aid. On the contrary, it demonstrates a most responsible attitude, and ought not to go unnoticed in this case or in any other case where such comments are merited. i The victim, Miss Etunga, is a young lady who

- 4 ­r comes from the same ethnic background as the accused. She grew up in Spence Bay, and he grew up initially in Rankin Inlet and then moved dovm to Frobisher Bay, At the time in question, they were both living in Fort Smith and they were attending school here. r I think that I should say from what I have observed of Miss Etunga in the court room, she certainly has not displayed any signs of being a vindictive lady but at the same time, all counsel and the court recognize that she is entitled to that measure of respect that a lady is entitled to. Unfortunately, for the accused, he did not accord her that measure of respect on the night in question. His Plea 1 of Guilty in this case is a very frank acknowledgment that his conduct feil far short of the type of conduct that is expected of a young man regardless of whether he is living in Spence Bay, Rankin Inlet, Frobisher Bay, Yellowknife, Fort Smith or any other place in Canada.

I emphasize that because this young man has had the opportunity to travel widely in Canada, and is to be commended for the progress that he has made in athletics and education. It is unfortunate that he did not carry on with his education, and that is why I was very anxious to know v/hether or not the victim, Miss Etunga, has been able to carry

- 5 ­f i . r [1 • on with her education in Fort Smith after this traumatic ' experience. I am very happy to hear that she has continued with her studies, and I am even happier to hear that she is doing well with her sutJjects at school. The crime of rape is recognized under our Criminal Code as a serious crime. The maxiraum sentence that may be imposed is life imprisonment. I make reference to the maximum that may be imposed because it reflects society's view of the serious nature of this offence. It indicates to all of US the sentence that can be imposed where the circumstances are extreme and Warrant a severe sentence, I think this fact is often overlooked by people who give way to their sexual passions, whether under the influence of liquor or whether v_̂ under the influence of other substances which may have a similar effect. On the other hand, I recognize that the law has given the Court a wide discretion on the issue of sentence because Parliament, in its wisdom, has seen fit to impose no minimum sentence. As I observed during submissions of counsel this places a great responsibility on the Shoulders of the Trial c Judge, because within that ränge I raust endeavour to impose a sentence in this case which properly takes into account the various factors and principles that r\ust be dealt with in imposing sentence. ^

- 6 ­f • f I c As I see it, this means that I am charged with the responsibility of imposing a sentence that will vindicate the law, but yet, at the same time, does not crush or destroy the hope of rehabilitation that we have, particularly when you are dealing with a youthful offender. In this particular case we have a Situation which, once again, demonstrates the type of trouble that people can get into when they use liquor excessively. The excessive use of liquor is not an excuse. The law does not look upon it as an excuse, although in some cases it may be taken into account in mitigation of sentence. ( ̂ In many instances people have grown up with a sordid background of drinking in the home, and I can under­stand the effect it has on youngsters who are exposed to that type of conduct on the part of their parents. On the other hand, young men and women, when they reach the age of 18 and 19 years of age who have had even a minimum of education know the difference between right and wrong. The accused, himself, is of course quite candid ' in realizing that what he did on the night in question was I wrong. Society disapproves of that type of conduct. Young ^ women, such as Miss Etunga do not accept it as something that .̂ thev have to put up with. Female persons of all age groups. ^ ^

7 -If r regardless of their sexual experience, are entitled to that measure of respect that common decency requires,

Young girls are entitled to the protection of the law which is extended to all Citizens. In this case, the complainant is a relatively young woman. She is striving to advance herseif at school and this is the type of conduct on the part of a young man that cannot be condoned.

I think that everyone appreciates that a Trial Judge has a very difficult task in trying to impose a proper sentence when the people involved are relatively young.

From their able submissions I know that both I counsel are thoroughly familar with the principles applicable

in sentencing. The authorities have been carefully canvassed, and in view of the fact that this is a rape case and even though it may be somev/hat repetitious, I refer to the principles enunciated by Chief Justice Culliton in R. v. Morrissette et al, 12 C.R.N.S. 392, particularly at 393 where the learned Chief Justice states as follows: "There is no problem which causes both the trial Judge and members of this Court more anxious consideration than the determination of an appropriate and proper sentence for a criminal offence. Both trial and appellate judges must be ever mindful of the fact that the principal purpose of the criminal , process, of which sentencing is an important Clement, is the protection of society.

- 8 ­r From time to time , courts have reviewed the principles to be considered in the determination of proper sentences, This Court recently did so in Regina v. Kissick (1969), 70 W.W.R. 365. As has been stated many times, the factors to be considered are: (1) punishment; (2) deterrence; (3) protection of the public; and (4) the

reformation and rehabilitation of the offender.

The real problem arises in deciding the factor to be emphasized in a particular case. Of necessity, the circumstances surrounding the commission of an offence differ in each case so that even for the sarae offence sentences may justifiably show a wide Variation."

I would pause here to point out that the term "deterrence" as used in that particular judgment refers not only to the deterring of the accused from further conduct ^ of this nature, but also deterring other people who may be / like-minded to pursue a similar course of conduct.

I should add that in considering this matter I have carefully considered the principles of sentencing that have been enunciated in quite a number of other cases that were cited to me in argument. I carefully considered the judgment of the Alberta Supreme Court, Appellate Division in Regina v. Beacon and Modney, 31 C.C.C. (2d) 56. This case quite deals with youthful offenders who are before the court. It points out that where possible, ? the court should avoid giving lengthy custodial sentences to youthful offenders. f It is generally accepted in courts in Canada.

- 9 ­r r that you must exercise some caution in applying that principle when you are dealing with the Crime of rape.

I mention that, because, in the Morrissette case, several of the accused had no previous convictions and • were relatively young offenders.

Notwithstanding the factual Situation in that connection, some sentence had to be imposed,

I must say that on reviewing the authorities, I feel that courts have now approached the question of sentencing in cases of this kind somewhat more humanely, f' If you reviev/ some of the older cases where gang rapes occur and so on, a sentence of 10 and 12 years was often imposed. It was not uncommon for a sentence of 5 or 6 years to be imposed, I mention this because I want the accused to understand that as time has gone by the tendency has been to treat these cases less severely. But by the sarae token, I do not want him to get the idea that society in any \\/ay approves this type of conduct. In this particular case I am, of course, hopeful that this young man has learned his lesson and will not become involved in this type of crime again, I will go one step further and express the hope that he will not become involved in crime at all because I feel, having regard to his physical and mental abilities, there are really much better things in Store for him if ho puts his raind to it and decidos to pursue

- 10 -] a useful career. I have carefully reviewed the factual background and particularly the circumstances leading up to this sexual assault.

I have carefully considered, as I said earlier, the Contents of Dr, MacKay's report, It has quite properly been sincerely and strenuously urged that I should take into account the welfare and rehabilitation of the accused, I agree that this is an important factor, and I am certainly giving very great v/eight to it, The other factors, however, also merit consideration of this court. My problem, is as I said earlier, to strike a reasonable balance between the ^ various factors. In this particular case I think it is recognized that sorae term of imprisonment must be imposed. This is not a case which calls for a penitentiary term, having regards to what has been said. On reflection, I feel that Counsel for the Crown, who has had the opportunity to go into the background, not only of the accused but also the complete background of the case, put the issues very fairly when he indicated to the court that in this particular case he had in ? mind, from the Crown's Standpoint, a sentence of from 10 to 12 months imorisonment as being fair and reasonable.

- 11 -f-y In this particular case I have already indicated that I think the prosecution was being abundantly fair in making this Suggestion. It is seldora that a prosecutor does put forward a Suggestion of that nature but where it is a helpful Suggestion from the Standpoint of the accused I see no reason why it should not be carefully considered and weighed by the court.

Rape is, as I have already said, a serious offence and is so recognized by Parliament, the Courts and the community. A Short sentence or a suspended sentence in a case of this nature would quite properly be construed by the public and members of the coimnunity as an indication that the court does not take a serious view of the offence of rape. That is not so. Under the circumstances, and after carefully considering this matter I feel that an appropriate sentence in this particular case would be a term of one (1) years imprisonraent in the Yellowknife Correctional Centre. In addition thereto, I feel that the accused will benefit frora a Probation Order and I accordingly direct that the accused coraply with the conditions prescribed in a Probation Order, which is to run for a period of one (1) year from the expiration of the sentence im.posed. In addition to the usual terms, or as they are ^̂ ometiraes called, statutory terms, contained in Section 666 sub-section 3 of the Criminal Code, I direct that the following conditions be included m tho P.robation Order: ^

- 12 -r\ C ] (1) That the accused shall report to the Probation Officer at Yellowknife or in such other Centre as he may reside as required.

(2) That he will seek and maintain suitable employment and/or attend educational upgrading. (3) That he v/ill obtain such alcohol counselling as may be directed by his Probation Officer.

(4) That he will notify the Probation Officer of any change in address and/or employment.

Having imposed that sentence on you, Mr, Naukatsik, I want you to understand that it gives me no pleasure to sentence a young man like you, but on the other hand, I realize from hearing you in the witness box that you do have /""̂ a genuine feeling of remorse over this incident and your Plea of Guilty indicates that, I think that the young lady involved is much happier not to have to go through the torture of being examined in chief and cross-examined in front of a jury in this court room. I do hope for your sake, your family's sake, and you do still have an attachment to your family in spite of the liquor problem, that you will go on and co-operate with the people at the Yellowknife Correctional Centre. There are opportunities there for you to advance yourself and you V can talk to the people about it, I think that you are the L ^

- 13 ­type of young man who can do it if you put your mind to it, r I also point out to you tha^ in imposing a sentence on you I know that if you behave yourself and do well you will not be serving a füll sentence of one (1) year. There are very appropriate provisions in our laws to recognize certain factors when an accused person in prison has demonstrated he is entitled to a measure of trust in society. At the Correctional Centre in Yellowknife you probably have better facilities in this connection than most prisons in Canada..

I hope you will put your mind to this and do the very best you can when you are released from prison, There is a Probation Order and the purpose of the Probation Order is that it will really help you in the sense that the probation officer and the Department of Social Development will be there to give you a hand. I have addressed those latter remarks to you, Mr, Naukatsik, because I want you to understand that I think that everyone involved in this case, whether the police, the prosecutor or your o\-m lawyer have done everything they can to help you and hopefully, you will not let them down, I do not want to see you back in this court again because there are so many better things for you to do than to be involved in court cases. I do not want to see such a thing as this happen *v̂. ^

- 14 ­r to you again, because you do have the ability, both physically and mentally, to learn frora this Situation; if I may say so, you have the ability to pull yourself up by your boot straps and go on to bigger and better things.

Now, does that conclude this matter or are there any directions that you require with respect to exhibits?

MR. FONTAINE: Yes. The Exhibits seized both from .Mr. Naukatsik and Miss Etunga I would ask that they be returned. There was also a lighter. THE COURT; What was recovered? MR, FONTAINE: A lighter, THE COURT I'm sure that can be taken care of, It is not a major item.

The exhibits are to be returned to their lawful owner upon expiration of the appeal, unless Counsel for the Defence consents in writing to their earlier release. How is that? MR. FONTAINE: That is fine, My Lord, WHEREUPON HEARING CONCLUDED AT 12:05 P.M.

C F . Tallis, J.S.C Yellowknife, N.W.T. December 2 0th, 1977 ^.-/ Certi'fied Correct ^ hl' ly-'^i L y c • ' - > • • • - ^ i' / /'