Supreme Court
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Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
R. v. Vital 2009 NWTSC 29
S-1-CR2008000042
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- vs. -
CHRISTOPHER JAMES VITAL
_________________________________________________________
Transcript of the Reasons for Sentence by The Honourable
Justice D. M. Cooper, at Yellowknife in the Northwest
Territories, on April 30th A.D., 2009.
_________________________________________________________
APPEARANCES:
Ms. J. Walsh: Counsel for the Crown
Ms. K. Payne: Counsel for the Accused
----------------------------------------
Charge under s. 271 Criminal Code of Canada
An order has been made banning publication of the
Complainant/Witness Pursuant to
Section 486.4 of the Criminal Code of Canada
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1 THE COURT: Christopher Vital stands
2 convicted by a jury on April 2nd, 2009, of the
3 charge of having sexually assaulted a 12-year-old
4 girl on or between December 9th, 2005 and
5 September 26th, 2007 at Behchoko in the Northwest
6 Territories. For this, the penalty can be a
7 maximum of ten years in jail.
8 The Crown is seeking a sentence of a period
9 of incarceration in the range of four years,
10 arguing the accused was in a position of trust
11 and the victim was 12 years old when the first
12 sexual assault occurred. Crown counsel also
13 points to the frequency of the assaults, the
14 criminal record of the accused, and says there
15 are no mitigating circumstances.
16 The Crown has filed a book of authorities
17 which the Court has found to be helpful.
18 The defence argues that a lesser period of
19 incarceration of two years would be appropriate
20 given there was no evidence of intercourse,
21 digital penetration, or even fondling of the
22 genital area under clothing. She cites the case
23 of R. v. Beaulieu, 2007 NWTSC 18 where the
24 accused had assaulted a 13-year-old girl on two
25 occasions, one of which intercourse was simulated
26 without penetration and on the other where there
27 was fondling of the genital area but no digital
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1 penetration. The accused was not in a position
2 of trust with the victim. He was sentenced to
3 two years in jail on one count and one year
4 consecutive on the second count. The defence
5 also relies on the case of R. v. Casaway, 2004
6 NWTSC 61, where the accused was sentenced to two
7 years in jail for having sexually assaulted an
8 11-year-old girl on one occasion by putting his
9 finger in her vagina. He had two previous,
10 albeit dated, convictions for sexual assaults of
11 a less serious nature. He did not live in the
12 same house as the victim but was a guest from
13 time to time.
14 In any sentencing, the Court has to take
15 into account the sentencing principles that are
16 set out in the Criminal Code, the circumstances
17 of the person who is being sentenced, the impact
18 upon the victim, and the circumstances of the
19 offence committed. Sentencing is a very
20 individualized process, many things must be taken
21 into account and balanced. It is not an easy
22 thing to do because in every case there are many
23 things to consider and many competing factors.
24 I will speak first about the sentencing
25 principles that are set out in the Criminal Code.
26 I am not going to read all of the applicable
27 sections of the Code, but it is important to cite
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1 some of them as they provide the legal framework
2 for the decision this Court has to make.
3 The purpose of sentencing is set out in
4 Section 718 of the Code. It reads as follows:
5 The fundamental purposes of sentencing is to
6 contribute, along with crime prevention
7 initiatives, to respect for the law and the
8 maintenance of a just, peaceful and safe society
9 by imposing just sanctions that have one or more
10 of the following objectives:
11 (a) to denounce unlawful conduct;
12 (b) to deter the offender and others from
13 committing offences;
14 (c) to separate offenders from society where
15 necessary;
16 (d) to assist in rehabilitating offenders,
17 (e) to provide reparations for harm done to
18 victims or to the community; and
19 (f) to promote a sense of responsibility in
20 offenders, and an acknowledgment of harm
21 done to the victims and the community.
22 Another fundamental principle is set out at
23 Section 718.1. It says:
24 A sentence must be proportionate to
25 the gravity of the offence and the
26 degree of responsibility of the
27 offender.
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1 Section 718.01 states:
2 When a Court imposes a sentence for
3 an offence that involves the abuse
4 of a person under the age of
5 eighteen years, it shall give
6 primary consideration to the
7 objectives of denunciation and
8 deterrence of such conduct.
9 Section 718.2 sets out a number of principles.
10 They do not all apply in this case but ones that
11 should be considered are:
12 (a) a sentence should be increased or
13 reduced to account for any relevant or
14 aggravating or mitigating circumstances;
15 and
16 (b) a sentence should be similar to sentences
17 imposed on similar offenders for similar
18 offences committed in similar
19 circumstances.
20 Section 718.2(a)(ii.1) states:
21 Evidence that the offender, in
22 committing the offence, abused a
23 person under the age of eighteen
24 years...shall be deemed to be
25 aggravating circumstances.
26 Another important principle is that,
27 (e) all available sanctions other than
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1 imprisonment that are reasonable in the
2 circumstances should be considered for all
3 offenders, with particular attention to the
4 circumstances of aboriginal offenders.
5 I will have to more to say about that
6 principle in a moment. These are the principles
7 and the legal framework under which I must
8 operate today in attempting to decide what a fit
9 sentence is for this offender for this crime.
10 The accused stands before the Court as a
11 31-year-old man who was born and raised in
12 Behchoko and who has a Grade 9 education. He
13 does not not speak or write English or Tlicho
14 with a degree of fluency that one would expect
15 from a Grade 9 graduate, and that has hampered
16 his ability to make his way in life. He comes
17 from a family of four brothers and one sister.
18 His father died of cancer when he was eight years
19 old. Prior to this period, the Court is told
20 that the home was a troubled one where both
21 parents struggled with problems related to
22 alcohol consumption. The accused himself has had
23 difficulties with alcohol although I note there
24 is no evidence that alcohol played a role in any
25 of the incidents that transpired in this case.
26 The accused's work record is what counsel
27 described as "spotty". He has worked driving a
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1 water truck in Behchoko, spent a brief period at
2 Snap Lake as a carpenter's helper, and also
3 worked for a construction company as labourer.
4 He has a relatively long record of
5 convictions but until 2008 these were mainly for
6 break and enter or mischief. In April of 2008,
7 the accused was convicted of assault and being
8 unlawfully in a dwelling house and was given a
9 conditional sentence of six months. Later in
10 2008, the accused was arrested on a charge of
11 sexual assault which occurred subsequent to the
12 time of his arrest in this case. In October of
13 2008, the accused was remanded into custody and
14 despite some confusion with the Court on time
15 spent serving sentences and time spent on remand,
16 it is common ground between counsel that the
17 accused has spent six months on remand. On March
18 10th, 2009, the accused was convicted on an
19 unrelated charge of sexual assault and sentenced
20 to nine months in jail and probation. The
21 circumstances were that the accused had grabbed
22 the buttocks of a woman who was on the walking
23 trail surrounding Frame Lake in Yellowknife. On
24 April 23rd, 2009, he was convicted on charges of
25 resisting arrest and failing to comply with his
26 recognizance.
27 While not the worst record the Court has
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1 seen, it is nevertheless not an enviable one. It
2 is noted that the sexual assault for which he was
3 convicted on March 10th, 2009 occurred after the
4 accused was charged with the offence before the
5 Court. While the Court cannot perhaps treat this
6 as a prior conviction in the usual manner, I
7 cannot ignore the fact of the conviction and must
8 attribute some weight to it.
9 I now turn to the facts in this case. To
10 have found Mr. Vital guilty, the jury had to
11 accept the evidence of the victim, and in my view
12 that was a sound conclusion. I do not think that
13 the jury's verdict, nor the evidence, leave much
14 room for ambiguity but out of an abundance of
15 caution I do find that the events unfolded in the
16 manner described by the complainant with one
17 exception. Regardless of how relentless a
18 predator Mr. Vital was, and that is how I would
19 characterize him, I find it difficult to accept
20 that these assaults occurred seven days a week or
21 virtually every day during a period that could
22 have been as long as 21 months as related by the
23 complainant. I have no doubt, however, that in
24 reflecting on what happened to her, it seemed to
25 her as if these assaults did occur every day. I
26 do accept that they did happen, to use her words
27 "more than [she could] remember" and that there
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1 was a recurring and persistent pattern of sexual
2 assault.
3 The key aspects of the evidence were that on
4 the night of December 9th, 2005, the victim, who
5 was born December 13th, 1992, was babysitting her
6 two young nephews. She lived in the home of her
7 parents along with her sister and her sister's
8 common-law husband Christopher Vital. On this
9 night, the parents and the sister were away and
10 Mr. Vital entered the house at approximately 7:30
11 p.m. The victim was watching television and
12 laying on a mattress in the livingroom of the
13 two-bedroom house which was also the place where
14 she slept at night.
15 Mr. Vital approached her and held her wrists
16 with his arms as she was laying on her stomach.
17 He then proceeded to push against her with his
18 body while moving in a simulated act of sex or
19 what was described at trial as "humping". From
20 the complainant's evidence, the jury had to find
21 that there were countless other incidents which
22 routinely occurred after the sister and the
23 parents had gone to bed. Mr. Vital would leave
24 the bedroom where he slept with the sister during
25 the night and assault the complainant in the
26 manner described. As well, the complainant
27 testified that often Mr. Vital would touch her
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1 with his hands and fingers over and under her
2 clothing in the area of the shoulders, arms,
3 stomach, legs, knees, thighs, and chest.
4 The victim did not tell her sister or her
5 parents what was going on for a long time because
6 she did not want to have to deal with the police
7 and go to court. She was afraid for her sister's
8 happiness and she felt her family was going
9 through enough. She finally did advise her
10 sister of what Mr. Vital was doing but her
11 sister, though seemingly troubled by the
12 revelation, made her promise not to tell the
13 parents. The sister either did not intervene
14 with the accused or her inquiries of him were
15 brushed off, nothing changed, and the assaults
16 continued. This matter finally came to the
17 attention of authorities on September 26th, 2007
18 after the victim had given a note to her teacher
19 indicating that she was being abused.
20 I have reviewed the victim's impact
21 statements filed with the Court. The victim has
22 indicated she does not wish to have her
23 statements read in open court. It is abundantly
24 clear that the sexual assaults visited upon this
25 young girl have had a profound and traumatic
26 psychological impact.
27 In reading the statements, one is left with
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1 the unmistakable impression that the memories of
2 these assaults have been consuming her very
3 existence and have left her bitter, severly
4 depressed, and desperately unhappy. As she said
5 in her statement, her life was a "living hell".
6 She is extremely scarred emotionally from this
7 experience and the Court can only hope that she
8 will be able to cope with and overcome the
9 nightmare of her ordeal now that this case has
10 been concluded.
11 I want to now return to one of the sentencing
12 principles that I referred to earlier which is
13 engaged because Mr. Vital is an aboriginal
14 person.
15 The provision in question, which is paragraph
16 (e) of Section 718.2 of the Code, was interpreted
17 and analyzed by the Supreme Court of Canada and
18 that interpretation is binding on all Courts in
19 this country. It was interpreted to be a
20 remedial provision, a recognition by Parliament
21 that aboriginal people are overrepresented in
22 Canadian jails. The Supreme Court found that
23 this section directs all courts to recognize that
24 many aboriginal people have faced the systemic
25 problems that have contributed to their
26 overrepresentation in jails and that the
27 provision creates a duty for sentencing courts in
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1 all cases. This duty is to approach sentencing
2 differently when dealing with an aboriginal
3 offender, an approach that takes into account
4 some of the systemic factors that have placed
5 many aboriginal people in difficult conditions
6 and have contributed to them coming into conflict
7 with the law. It also requires the Court to
8 examine the types of procedures or sanctions that
9 might be most appropriate in light of a person's
10 aboriginal heritage and in some cases it may mean
11 a more restorative approach to sentencing.
12 This is a different analysis that must be
13 undertaken both to decide the type of sentence
14 that will be imposed, that is, a jail term or not
15 a jail term, and if jail is imposed it can also
16 have an impact on how long the sentence will be.
17 The Supreme Court of Canada has also recognized
18 what the section does not mean. It does not mean
19 that the fact that an offender is of aboriginal
20 descent is a mitigating factor. It does not mean
21 that sentences imposed on aboriginal persons will
22 necessarily be more lenient or different than the
23 sentence that would be imposed on a
24 non-aboriginal person for the same crime. In
25 fact, the Supreme Court of Canada has
26 specifically said that the more serious or
27 violent an offence, the less likely it is that
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1 the ultimate result is going to be different.
2 I have not heard evidence or submissions
3 about any systemic challenge that Mr. Vital has
4 faced as an aboriginal person. But I did hear
5 that he lost his father when he was eight years
6 old, that he functions at an educational level
7 well below the ninth grade which he apparently
8 achieved, and that he has struggled with alcohol
9 abuse. As well, I have read the three letters of
10 character that have been provided by his mother,
11 an aunt, and a niece. They show that these
12 relatives trust Mr. Vital and think that he has
13 been and is a good person. Mr. Vital is
14 fortunate to have the loyalty and support of his
15 mother and his relatives.
16 There is nothing before the Court by way of
17 evidence or submissions to assist in
18 understanding why Mr. Vital committed this
19 offence or the sexual assault referred to
20 earlier. I find this disturbing and very
21 troubling and trust that Mr. Vital will receive
22 counselling upon his incarceration but it will be
23 up to him as to whether or not he will avail
24 himself of counselling and other programming.
25 The offence of sexual assault is, as I have
26 said, punishable by up to ten years in jail. Few
27 cases call for the maximum sentence to be imposed
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1 and this is not one of them.
2 In law, sexual assault can cover a wide range
3 of behaviour from simple touching to sexual
4 intercourse. The duty of the Court is, among
5 other things, to impose a sentence that is
6 reflective of the gravity of the crime.
7 While there is no hard rule for minimal
8 sentence per se, the general rule is that in
9 serious cases of sexual assault a significant
10 term of imprisonment, usually in excess of two
11 years, is appropriate. Courts then look to the
12 facts in the case to identify any aggravating or
13 mitigating factors in order to arrive at a fit
14 sentence.
15 There is no evidence that intercourse
16 occurred in this case or even digital
17 penetration. In cases where the victim is an
18 adult, a Court could be persuaded that one
19 incident in the nature of the assaults that
20 occurred here would fall short of being
21 characterized as a sexual assault on the more
22 serious end of the scale.
23 But in this case, I find there are three
24 aggravating factors.
25 First, the complainant was 12 years old when
26 the assaults started and they continued for 21
27 months. Sexual assault is a serious offence
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1 regardless of age but it is extremely serious
2 when the victim is a child and very vulnerable.
3 Adults will have developed some coping mechanisms
4 which they can draw upon to try to get through
5 traumatic events. A child has no such coping
6 skills. And, as here, stands to have her
7 childhood robbed from her and turned into a
8 nightmare from which she may never fully recover.
9 So this factor alone elevates the offence into
10 the very serious category.
11 Further, it must be said that the
12 repetitiveness of the assaults here is a highly
13 aggravating factor. Had the behaviour ceased
14 after the first or a few occasions, it may not
15 have had the same nightmarish impact it has had
16 on the victim. The accused was indifferent to
17 the effect that his self-indulgence and sexual
18 gratification were having on the victim. He had
19 no sobering second thoughts and continued his
20 conduct until arrested by the police.
21 Finally, Mr. Vital was in a position of trust
22 with the victim. He may not have stood in loco
23 parentis to her but he was an adult living in the
24 same home with her while living in a common-law
25 relationship with her sister. At trial he said
26 that he thought of her like he thought of his
27 little sister in Yellowknife and that the
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1 relationship was if the victim was a little
2 sister. Mr. Vital should have been her guardian
3 in these circumstances and not her persecutor.
4 I can find no mitigating factors in this
5 case. The accused had a right to have the charge
6 against him proved in a court of law. As courts
7 have made clear, the exercise of the accused's
8 right to have a trial is not an aggravating
9 factor but the accused does not derive the
10 benefit of mitigation of sentence he may have had
11 if he had entered an early guilty plea. Further,
12 I find no evidence that the accused has shown any
13 remorse for the crime that he committed.
14 Many Judges before me have commented on the
15 prevalence of this type of crime in the Northwest
16 Territories. It could be characterized as
17 epidemic given the frequency of these offences.
18 Courts in the Northwest Territories have almost
19 invariably said that the principles of sentencing
20 that require emphasis in these cases are
21 denunciation, deterrence, and protection of the
22 public. Sentences involving significant periods
23 of incarceration have been meted out to offenders
24 consistently for many years, and yet these
25 offences continue. Something more is required to
26 alter or affect this kind of behaviour.
27 Community leaders must discuss this openly with
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1 constituents and residents and condemn this
2 conduct which violates and invades the bodily
3 integrity of women, young and old. It is only
4 when the community as a whole is prepared to send
5 the message that anyone who commits a sexual
6 assault will have lost all respect and earn the
7 community's censure that the prevalence of this
8 kind of offence might decrease.
9 The accused has spent six months on remand
10 for having breached his recognizance. The Crown
11 suggests that this time be credited on a
12 one-to-one basis because the accused was not held
13 in custody on the charge before the Court but
14 rather because he was in breach of his
15 recognizance. The defence argues that the remand
16 time should be credited on a two-to-one basis as
17 consistent with the law.
18 The Supreme Court of Canada in R. v. Wust,
19 [200] 1 S.C.R. 455, said that while two months
20 credit for every month spent in pre-sentence
21 custody is appropriate to reflect the harshness
22 of pre-trial custody, a different rationale can
23 be applied depending on the circumstances of the
24 detention and that the issue of credit for time
25 served is to be left to the discretion of the
26 sentencing Judge.
27 The Crown submits that remanded prisoners in
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1 institutions in the Northwest Territories live in
2 the same conditions as sentenced inmates and have
3 all the program entitlements available to the
4 general population save those programs that are
5 offered outside the institution and those which
6 would require the remanded inmate to discuss the
7 circumstances of the offence for which he is
8 charged and potentially admit his or her guilt.
9 This state of affairs has been recognized by our
10 courts in recent years [see R. v. Epelon, [2008]
11 NWTTC No. 97] So, remand time in the Northwest
12 Territories is neither harsh nor "hard time". It
13 may be appropriate in a case in the future for
14 evidence to be given by a senior official with
15 the Corrections Division of the Department of the
16 Justice (Northwest Territories) and to have this
17 evidence placed on the public record of precisely
18 what the conditions are for remand prisoners in
19 the Northwest Territories.
20 Following the logic expressed by Bruser J. in
21 the Epelon case, I agree that it would make no
22 sense to credit an accused with remand time on a
23 two-for-one basis where the accused is
24 incarcerated for having breached his
25 recognizance. To do so would invite those who
26 are at large but facing a lengthy period of
27 incarceration to breach their recognizances in
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1 order to shorten their sentences. In the result,
2 and to reflect the fact that there is no
3 remission on time served on remand, I will credit
4 Mr. Vital with eight months of incarceration.
5 Counsel have provided the Court with a number
6 of authorities. I have reviewed the Beaulieu and
7 Casaway cases submitted by defence counsel. In
8 Beaulieu, there were two discrete sexual
9 assaults. The accused had no previous
10 convictions for sexual offences, and there was no
11 victim's impact statement before the Court. In
12 Casaway, there was one incident, and the
13 accused's previous record of sexual assaults was
14 17 years old and the accused had received
15 sentences of seven days intermittent on each
16 charge consecutive which led the Court to infer
17 that these offences were at the less serious end
18 of the scale of these kinds of offences. As
19 well, again, there was no victim's impact
20 statement for the Court to consider.
21 I have balanced all of the factors I have
22 referred to in an attempt to arrive at a sentence
23 that is appropriate in all of the circumstances,
24 including time spent on remand.
25 Please stand, Mr. Vital.
26 For the offence of sexual assault in this
27 case, I consider a sentence of 44 months would be
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1 appropriate but, taking into account time served
2 on remand, will impose a sentence of three years
3 of imprisonment.
4 You may sit down.
5 Counsel for the defence has asked that the
6 Court recommend the offender be able to serve his
7 sentence in the Northwest Territories so that he
8 can be close to his family. I accept this
9 submission and will make that recommendation and
10 ask the clerk to endorse the warrant accordingly.
11 In the circumstances, the victim surcharge
12 will be waived.
13 There will be a DNA order in the usual terms
14 and a firearms prohibition order commencing today
15 and expiring ten years from Mr. Vital's release
16 from custody. As well, I make an order under the
17 Sex Offender Information Registration Act
18 requiring Mr. Vital to register and obligating
19 him to report for a period of 20 years.
20 Is there anything, counsel, that I may have
21 missed and you would like to address?
22 MS. PAYNE: No, sir, thank you.
23 MS. WALSH: Not from the Crown's
24 perspective, sir, thank you.
25 THE COURT: I would like to thank both of
26 you for your competent and professional conduct
27 throughout the course of this matter, very
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1 helpful. And I would also like to thank the
2 court staff for the work that you have done as
3 well. Thank you, we will close court.
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7 Certified to be a true and
accurate transcript pursuant
8 to Rules 723 and 724 of the
Supreme Court Rules,
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13 Lois Hewitt, CSR(A), RPR, CRR
Court Reporter
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