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Abstract: Transcript of the Reasons for Sentence

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             R. v. Kaotalok, 2013 NWTSC 36



                                                S-1-CR2011000134

             IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES



             IN THE MATTER OF:





                             HER MAJESTY THE QUEEN





                                  - vs. -





                                 BOBBY KAOTALOK

             ________________________________________________________

             Transcript of the Reasons for Sentence by The Honourable

             Justice L. A. Charbonneau, at Yellowknife in the Northwest

             Territories, on April 22nd A.D., 2013.

             _________________________________________________________

             APPEARANCES:

             Mr. K. Onsykevitch:                Counsel for the Crown

             Mr. T. Boyd:                       Counsel for the Accused

                     ----------------------------------------
                 An order has been made banning publication of the
              identity of the Complainant/Witness pursuant to Section
              486.4 of the Criminal Code of Canada or disclosing any
                information which could reveal the identity of the
                Complainant/Witness identified in the charge under
                               Section 271 of the Criminal Code




      Official Court Reporters








         1     THE COURT:            Before I give my reasons for

         2         sentence on this matter, I just want to remind

         3         everyone that there is in place an order that

         4         is prohibiting the publication or broadcast of

         5         any information that could identify either of

         6         the complainants in this case.

         7             Today it is my responsibility to impose a

         8         sentence on Bobby Kaotalok for two charges of

         9         aggravated sexual assault.  Mr. Kaotalok

        10         entered guilty pleas to those charges back on

        11         February 4th, 2013, the date on which his

        12         trial was scheduled to commence.  Sentencing

        13         was adjourned to allow time for the

        14         preparation of a pre-sentence report.  The

        15         sentencing hearing proceeded a few weeks ago,

        16         on March 27th.  That day I heard about the

        17         facts underlying the offences, and submissions

        18         from Crown and defence as to what sentence

        19         should be imposed for these crimes.  I decided

        20         to adjourn my decision to today's date in

        21         order to have sufficient time to review the

        22         exhibits and the case law that was filed at

        23         the hearing and also to consider the very

        24         thorough submissions that were presented by

        25         both counsel, as well as the comments that

        26         Mr. Kaotalok himself made to the Court when he

        27         was given the chance to speak.  I have now had





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         1         an opportunity to review all of the that, and

         2         have come to a decision.

         3             As is often said, sentencing is a

         4         difficult task, one of the most difficult

         5         tasks for Judges, because it requires

         6         balancing a number of factors, often competing

         7         ones.

         8             Sentences are supposed to express

         9         society's disapproval of criminal conduct and

        10         reflect the harm that that conduct causes to

        11         victims and to the community.  They are

        12         supposed to discourage the offenders and other

        13         people from committing crimes.  They are also

        14         supposed to attempt to foster the

        15         rehabilitation of the offender because if that

        16         can be achieved, it is probably the best way

        17         to protect the public.  Not surprisingly, all

        18         of these objectives often do not point in the

        19         same direction as far as what the sentence

        20         should be and that is what makes sentencing

        21         such a difficult task.

        22             Every time that the Court imposes a

        23         sentence, it has to take into account the

        24         circumstances of the person who is being

        25         sentenced, the circumstances of the offence

        26         that this person committed, and the principles

        27         of sentencing that are set out in the Criminal





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         1         Code.  Sentencing involves the exercise of

         2         considerable discretion but in exercising that

         3         discretion, courts have to follow the legal

         4         framework that is provided for in the Criminal

         5         Code and how that framework has been

         6         interpreted by the higher courts.

         7             I will start by summarizing the

         8         circumstances of these offences.  They are set

         9         out in detail in an agreed statement of facts

        10         that was filed as an exhibit at the sentencing

        11         hearing, and they were read into the record at

        12         that time.  I am not going to read that

        13         document again today in its entirety but I

        14         will simply summarize its main points.

        15             Mr. Kaotalok is believed to have been

        16         infected by the Human Immunodeficency Virus

        17         (HIV) when he was born.  He was diagnosed when

        18         he was seven years old and he has been under

        19         medical treatment for this medical condition

        20         essentially his whole life.

        21             The agreed statement of facts explains in

        22         some detail what HIV is, how it is treated,

        23         and what factors affect the risk of its

        24         transmission to another person.  For the

        25         purposes of my decision today, I will not go

        26         over all of that technical medical information

        27         in detail.  It is part of the record and it is





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         1         available to anyone who may want to refer to

         2         it.  The things that I want to underscore for

         3         my purposes today are the following:

         4             The HIV virus is able to establish a

         5         lifelong infection in immunologic cells.  Once

         6         infection is established, these cells are

         7         slowly destroyed ultimately making the

         8         infected person's immune system weaker and

         9         weaker which leaves the person more

        10         susceptible to infection.  In an advanced

        11         stage it is called Acquired Immune Deficiency

        12         Syndrome, commonly referred to as AIDS.

        13             Mr. Kaotalok's medical condition with

        14         respect to his HIV infection varied over the

        15         years.  There were periods of time where he

        16         adhered to his medical treatment and others

        17         where he did would not.  When he did not

        18         adhere to it, his medical condition (the state

        19         of advancement of his infection) got worse.

        20         This in turn has an impact on the risk of

        21         transmission of the disease to others.

        22             During the period of time where these

        23         offences were committed, Mr. Kaotalok's

        24         condition was such that he presented a higher

        25         risk for transmission of HIV.

        26             The first complainant L.F. was born in May

        27         1992.  She was 17 when the offence occurred.





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         1         She had met Mr. Kaotalok in Yellowknife in

         2         2009 and they had become friends.  They

         3         periodically spent time together, sometimes

         4         alone and sometimes with other friends.  On

         5         one of those occasions, in the fall of 2009 or

         6         early winter 2010, they were walking around

         7         together in Yellowknife.  They were both

         8         sober.  They decided to go to Mr. Kaotalok's

         9         place of residence, which at the time was a

        10         room at Bailey House.  Bailey House is a

        11         transition home for men.  There, they had

        12         sexual intercourse.  Mr. Kaotalok used a

        13         condom. L.F. did not know that he was HIV

        14         positive and he did not tell her.  Had she

        15         known that, she would not have consented to

        16         the sexual activity.

        17             It is admitted that at the time that this

        18         happened, there was a realistic possibility of

        19         transmission of the HIV virus from him to her.

        20         To date, however, she has not been diagnosed

        21         with HIV.

        22             The second complainant J.E. was born in

        23         May 1991.  She was 19 at the time she had

        24         sexual contact with Mr. Kaotalok.  She too had

        25         met him in Yellowknife and had become friends

        26         with him.  They periodically spent time

        27         together as part of a larger group of friends





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         1         and acquaintances.

         2             One night she, Mr. Kaotalok, and other

         3         friends, spent an evening drinking at a local

         4         bar.  J.E. and Mr. Kaotalok both were

         5         intoxicated by the time they left the bar at

         6         closing time.  J.E. went to a friend's

         7         apartment and continued drinking there.  She

         8         then went to a neighbouring apartment to see

         9         Mr. Kaotalok.  There, they continued drinking

        10         together.  The agreed facts say that she was

        11         significantly intoxicated and experienced

        12         blackouts that night.  It is admitted that she

        13         and Mr. Kaotalok had sexual intercourse at

        14         some point that night.  Neither of them

        15         remembers if a condom was used.

        16             I pause here to note that in law, a person

        17         who is highly intoxicated may, in some

        18         instances, not have the capacity to consent to

        19         sexual activity.  In those circumstances any

        20         so-called consent that is given is not valid.

        21         We see a fair number of cases like that in our

        22         courts.  Given the alleged facts here, at the

        23         sentencing hearing, I sought clarification on

        24         this point from the Crown and the Crown

        25         confirmed that the basis for this prosecution

        26         is not that the complainant was too

        27         intoxicated to be capable in law to give





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         1         consent to sexual activity.  The basis for the

         2         prosecution is the same as it is on the charge

         3         involving the other complainant; that is, J.E.

         4         did not know that Mr. Kaotalok was HIV

         5         positive, that he did not tell her, and that

         6         she would not have consented to sexual

         7         activity with him had he disclosed his medical

         8         condition to her.

         9             Mr. Kaotalok also acknowledges with

        10         respect to this count that at the time that he

        11         had intercourse with J.E. there was a

        12         realistic possibility of transmission of HIV

        13         from him to her.  To date, she has not been

        14         diagnosed with HIV.

        15             The Crown confirmed that both complainants

        16         were advised of their right to prepare a

        17         victim impact statement.  No such statement

        18         has been filed by either of them.

        19             I have to pause here again to note

        20         something about the pre-sentence report.  It

        21         is a very thorough report in most respects but

        22         I am concerned about one aspect of it.

        23             For many years it has been a standard

        24         practice in the preparation of these types of

        25         reports in this jurisdiction for the person

        26         preparing the report to contact the victims of

        27         the crime and see whether they want to make





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         1         any contributions to the report.  There is

         2         even a special heading in the pre-sentence

         3         reports we see that is called "interview with

         4         victims".  It is an important aspect of the

         5         pre-sentence report because it is one of the

         6         ways whereby the victims' views about the

         7         offence and the impact it had on them can be

         8         conveyed to the Court.  It is not the only

         9         way, but it is one of the ways.

        10             In this report, under that heading on page

        11         9, the author states that because of the

        12         publication ban that prevents the publication

        13         and broadcast of the identity of the victims

        14         in this case, they were not contacted.

        15             This shows a lack of understanding of the

        16         scope and effect of a publication ban.  There

        17         are almost always things in court records that

        18         identify victims.  More often than not the

        19         Indictment does.  Usually the agreed statement

        20         of facts does.  If photographs were filed they

        21         also do.  If medical records are filed they

        22         also do.  And often the pre-sentence reports

        23         do.  Preparing and filing documents to be used

        24         as part of a sentencing hearing does not

        25         offend a publication ban.  What is prohibited

        26         is for anyone to publish or broadcast

        27         information that could identify the victims.





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         1         So the existence of a publication ban is not a

         2         bar to contacting victims as part of the

         3         preparation of the pre-sentence report to see

         4         if they want to contribute anything to it.  It

         5         is not a bar to reporting the victim's views

         6         of the offence in the report itself.  The

         7         victims have no obligation to participate and

         8         should never be pressured to do so, but they

         9         should always be given an opportunity to do

        10         so.  Some victims choose not to prepare a

        11         victim impact statement but may be prepared to

        12         speak with the person preparing a pre-sentence

        13         report who takes the step of contacting them.

        14         Everyone is different.  Sitting down and

        15         writing a victim impact statement is different

        16         from having a conversation with someone.  So I

        17         strongly suggest that the Crown raise this

        18         issue with responsible officials to clarify if

        19         there is a misunderstanding about this.  If

        20         there is any concern on the part of the

        21         government officials on this point, then it

        22         should be brought to the attention of the

        23         Court when these reports are ordered because

        24         it would be easy enough for the Court to make

        25         it clear when it orders the preparation of a

        26         pre-sentence report to state that it will not

        27         be a breach of the publication ban for the





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         1         victims to be contacted and for their views to

         2         be reflected in the report.

         3             That issue aside, the pre-sentence report

         4         that was prepared in this case is very helpful

         5         in providing information about Mr. Kaotalok's

         6         personal circumstances to which I now turn.

         7             I also have had the benefit of the

         8         submissions of his counsel and of the comments

         9         that Mr. Kaotalok himself made at the

        10         conclusion of the sentencing hearing.  As I

        11         have said, when he was given an opportunity to

        12         speak he spoke at length about his

        13         circumstances, the struggles that he has

        14         faced, and how he contemplates the future.

        15             I have given careful consideration to

        16         everything that I have heard about

        17         Mr. Kaotalok's personal circumstances.  I will

        18         refer to and emphasize some aspects here, but

        19         I want to make it clear that I have considered

        20         all of the information that was presented

        21         whether I refer to a specific detail or not.

        22             Mr. Kaotalok is of Inuit descent.  He was

        23         born in 1985 and is now 27 years old.  His

        24         family resided at an outpost camp that was

        25         located in Nunavut between Bathurst Inlet and

        26         Bay Chimo.  The family had a house in Bay

        27         Chimo but led a traditional lifestyle,





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         1         spending a lot of time at the outpost camp,

         2         sometimes years at a time.

         3             Aspects of his childhood years at the

         4         outpost camp were happy but unfortunately also

         5         involved a number of sad and tragic things.

         6         The first of course is the fact that he was

         7         infected with the HIV virus at birth.  When he

         8         was six, his mother passed away.  He explained

         9         to the author of the pre-sentence report that

        10         he believes that his mother and himself both

        11         were infected with the virus when his mother

        12         had to have a transfusion when Mr. Kaotalok

        13         was born and ultimately, that is what she died

        14         from.

        15             For the next few years after his mother

        16         died, Mr. Kaotalok was raised by his father,

        17         still at the outpost camp.  But when he was

        18         eight, his father drowned following an

        19         accident that happened when several family

        20         members, including Mr. Kaotalok, had been

        21         traveling in a canoe.  Mr. Kaotalok almost

        22         drowned himself that day but he was saved by

        23         his brother.  From that point on, Mr. Kaotalok

        24         was raised by his grandmother.  He was fond of

        25         her and she taught him a lot.  But she too

        26         passed away a few years later.  Mr. Kaotalok

        27         and his brother were then placed in the care





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         1         of an aunt and that did not end up being a

         2         good situation for them.  The aunt began

         3         abusing alcohol and was physically and

         4         mentally abusive to both of them, both when

         5         she was intoxicated and when she was not.

         6             Mr. Kaotalok stayed at the outpost camp

         7         until he moved to Cambridge Bay to go to

         8         school.  After a few years he moved to Hay

         9         River to live with an aunt and uncle.  At that

        10         point he had nowhere to go and the alternative

        11         would have been placement in foster care so

        12         his aunt and uncle took him in.  The move to

        13         Hay River meant being reunited with his

        14         siblings because his sister had been adopted

        15         by the same aunt and uncle and from time to

        16         time his brother traveled to Hay River to

        17         spend time there as well.

        18             Mr. Kaotalok lived in Hay River from 1997

        19         to 2005.  After moving there, he was required

        20         to attend school and there was structure in

        21         the home.  He was able to secure various jobs

        22         in the community but he had behavioural issues

        23         and ultimately this led to his aunt and uncle

        24         asking him to leave.

        25             After that, he stayed with friends and

        26         relocated to various communities.  By then he

        27         had started consuming alcohol and drugs and





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         1         his use of alcohol and drugs increased

         2         particularly after he moved to Behchokò.

         3             In 2005, Mr. Kaotalok had a serious car

         4         accident after falling asleep while driving

         5         and in that accident he lost an arm.

         6             While he was in Behchokò, he developed a

         7         romantic relationship with a woman and that

         8         relationship appears to have continued over

         9         the years despite the fact that Mr. Kaotalok,

        10         especially in recent years, has spent a

        11         considerable amount of time in jail.  This

        12         woman is still supportive of him and he spoke

        13         about her and this relationship when he spoke

        14         to the Court.  This seems to have remained a

        15         significant relationship for him.

        16             Mr. Kaotalok relocated to Yellowknife in

        17         2006 on the advice of his doctor who was

        18         concerned about the fact that he was not

        19         taking his medication.  Since his move to

        20         Yellowknife, unfortunately he seems to have

        21         frequented people who, like him, abuse drugs

        22         and alcohol, have no employment, and lead a

        23         fairly destructive lifestyle.  His consumption

        24         of alcohol escalated and he was convicted of

        25         numerous property crimes committed to acquire

        26         money to sustain his drug and alcohol habits.

        27         The author of the report, who has been





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         1         Mr. Kaotalok's probation officer since 2006,

         2         writes that Mr. Kaotalok "has become embedded

         3         in this negative lifestyle and has been since

         4         his teenage years".

         5             This unfortunate fact is reflected in

         6         Mr. Kaotalok's criminal record.  As his own

         7         counsel put it, his life has been in a

         8         downward spiral since 2006.  Since that time

         9         he has been in and out of jail, and more often

        10         in than out.  He has accumulated a steady

        11         pattern of convictions for various offences

        12         and has received jail term after jail term.

        13         Since April 2006, the longest period of time

        14         that he has spent out of custody was just over

        15         four months.  That, on its own, says a lot

        16         about the pattern that he has been stuck in.

        17             According to the pre-sentence report,

        18         Mr. Kaotalok has not consistently sought help

        19         to deal with his addiction and other issues

        20         when he has been out of custody.  Anything

        21         that he has done in this regard has been

        22         sporadic and inconsistent.  It seems that

        23         while in custody, particularly during this

        24         last period of two years he has spent on

        25         remand, Mr. Kaotalok has engaged more actively

        26         in support services available to him - he has

        27         met with the jail psychologist at various





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         1         points in time, he has attended AA meetings,

         2         he has completed the Healing Drum program

         3         "Embracing our Human Nest", he has completed

         4         two life skills modules that are done by

         5         completing workbooks.

         6             Mr. Kaotalok has told the author of the

         7         pre-sentence report that for a period of about

         8         a year he used crack cocaine and was addicted

         9         to it.  He also said he stopped using crack on

        10         his own because he recognized how destructive

        11         it was.  The Court often hears about how

        12         difficult it is to beat that addiction; if

        13         Mr. Kaotalok was addicted to crack cocaine,

        14         and if he beat that addiction on his own, it

        15         certainly says something about his ability

        16         when he sets his mind to doing something.  It

        17         means that he can show inner strength and

        18         personal power.

        19             He has expressed to the author of the

        20         report that he also recognizes that alcohol

        21         and other drugs are destructive for him and he

        22         wants to stop using them as well.  It is

        23         obvious to the Court, and would be to anyone

        24         reviewing the materials filed on this case,

        25         that unless and until Mr. Kaotalok gets

        26         alcohol and other intoxicating substances out

        27         of his life, his chances for rehabilitation





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         1         are slim to none.  And irrespective of the

         2         sentence that I impose today, that step will

         3         be up to him because one way or another he

         4         will eventually be released and he will once

         5         again be free to make choices in this regard,

         6         as well as many others.

         7             As I have already said, when Mr. Kaotalok

         8         addressed the Court at the conclusion of his

         9         sentencing hearing on March 27th he spoke at

        10         length.  He was quite articulate.  He comes

        11         across as a bright person capable of insight.

        12         He has at times gone to school and been able

        13         to work so it is obvious that he has

        14         capabilities and skill.  He has shown

        15         resilience at some points in his life.  It

        16         seems to me that there are reasons to think

        17         that Mr. Kaotalok does have the capacity and

        18         the skills to make the changes that he needs

        19         to make but there is no question he is the

        20         only one who can do this.  This Court cannot

        21         make him do it; doctors cannot make him do it;

        22         no one else can make him do it.

        23             I did note that Mr. Kaotalok told the

        24         author of the pre-sentence report that he

        25         expects to die from the HIV virus within the

        26         next few years and that he is more or less

        27         resigned to that fact.  Maybe a part of





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         1         Mr. Kaotalok's failure to take real steps to

         2         make real changes in his life until now has

         3         been in part based on that belief and that

         4         feeling of being doomed no matter what.  The

         5         Court obviously has no medical expertise but I

         6         will just say this:

         7             From what is set out in the agreed

         8         statement of facts, it appears that when he

         9         strictly followed his medical regimen, his

        10         viral load became very low, which is another

        11         way to say that the medication did help to

        12         control the progression of this disease.  It

        13         is also clear from the agreed statement of

        14         facts, that compliance, strict compliance with

        15         the medical treatment that he is under, is

        16         crucial to stabilizing his condition and

        17         improving his prognosis.  So in many ways, and

        18         to that extent, his treatment is in his hands.

        19             To the extent that the life and

        20         circumstances of a person can be summarized in

        21         a few minutes, that is my understanding of

        22         Mr. Kaotalok's personal circumstances as they

        23         were presented at the sentencing hearing and

        24         must all be taken into account in deciding

        25         what sentence should be imposed today.

        26             I now turn to the principles of

        27         sentencing.  I will deal with the principles





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         1         of sentencing in two parts - first, sentencing

         2         principles generally; and second, sentencing

         3         principles that apply to this particular of

         4         offence.

         5             The general principles of sentencing are

         6         all set out in the Criminal Code.  I am not

         7         going to read them all, I have considered them

         8         all, but I will simply refer to the

         9         fundamental purpose of sentencing because it

        10         is always a good place to start when examining

        11         the question of what is a fit sentence for any

        12         given crime.

        13             That is set out in Section 718 of the

        14         Criminal Code which says,

        15             The fundamental purpose of

        16             sentencing is to contribute, along

        17             with crime prevention initiatives,

        18             to respect for the law and a

        19             maintenance of a just, peaceful

        20             and safe society by imposing just

        21             sanctions that have one or more of

        22             the following objectives:

        23             (a) to denounce unlawful conduct;

        24             (b) to deter the offender and

        25             other persons from committing

        26             offences;

        27             (c) to separate offenders from





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         1             society, where necessary;

         2             (d) to assist in rehabilitating

         3             offenders;

         4             (e) to provide reparations for

         5             harm done to victims or to the

         6             community, and

         7             (f) to promote a sense of

         8             responsibility in offenders, and

         9             acknowledgment of the harm done to

        10             victims and to the community.

        11             So to achieve these objectives, the Code

        12         sets out several sentencing principles.

        13             The fundamental sentencing principle is

        14         proportionality.  A sentence should be

        15         proportionate to the seriousness of the

        16         offence and to the level of responsibility or

        17         blameworthiness of the offender.

        18             The Criminal Code lists a number of other

        19         principles, the most significant ones to this

        20         case, the most relevant ones, are, first of

        21         all, parity, which means that similar offences

        22         committed by similar offenders should result

        23         in similar sentences being imposed.  That is a

        24         matter of simple fairness.

        25             Another important principle that is

        26         engaged here is totality.  Where the Court

        27         sentences a person for more than one offence





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         1         and imposes consecutive sentences, the Court

         2         has to make sure that the global effect of all

         3         of the sentences is not unduly harsh.  And

         4         that is important.

         5             Restraint is a very important sentencing

         6         principle.  It means that when jail can be

         7         avoided, it should be.  And when jail has to

         8         be imposed, it should never be a longer jail

         9         term than is necessary to achieve the goals of

        10         sentencing.  Sentencing is not and should

        11         never be about exacting a price for conduct or

        12         effecting revenge.

        13             The principle of restraint takes on

        14         particular significance when dealing with

        15         aboriginal offenders because paragraph

        16         718.2(e) of the Criminal Code says

        17             All available sanctions other than

        18             imprisonment that are reasonable

        19             in the circumstances should be

        20             considered for all offenders, with

        21             particular attention to the

        22             circumstances of aboriginal

        23             offenders.

        24             There has been much debate about what this

        25         provision meant when it first came into force,

        26         and I must now take a moment to explain what

        27         the Supreme Court of Canada has said it means,





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         1         which is, of course, binding on me as a

         2         sentencing Judge.

         3             Two decisions from the Supreme Court,

         4         R. v. Gladue, [1999] 1 S.C.R. 688 and

         5         R. v. Ipeelee, 2012 SCC 13, have explained the

         6         special considerations that are engaged when a

         7         sentencing Court is determining the sentence

         8         to be imposed on an aboriginal offender.  I am

         9         not going to quote from those cases but I will

        10         refer to the main points that emerge from

        11         those decisions.

        12             First, this provision is a remedial

        13         provision that was designed to address the

        14         overrepresentation of aboriginal people in

        15         Canadian jails.  That means that when

        16         sentencing an aboriginal offender, Courts are

        17         required to take into account the unique

        18         systemic and background factors that may have

        19         played a part in bringing the offender before

        20         the Court; and also, to consider what

        21         sentencing procedures and sanctions may be

        22         appropriate to the offender in light of his or

        23         her aboriginal heritage.  Sentencing Courts

        24         are directed to take judicial notice of broad

        25         systemic factors, background factors, that

        26         affect aboriginal people generally.

        27             For example, Courts are required to take





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         1         judicial notice of the history of colonialism,

         2         displacement, residential schools, and how

         3         these have often translated in lower

         4         educational attainment, lower income, higher

         5         unemployment rates, high rates of substance

         6         abuse and suicide, and high levels of

         7         incarceration for aboriginal people.  I have

         8         taken judicial notice of these factors which

         9         are also things that we commonly hear about in

        10         this jurisdiction in the day-to-day work of

        11         the Courts.

        12             I am also required to take into account,

        13         and I have, case-specific information about

        14         Mr. Kaotalok as it has been conveyed in the

        15         pre-sentence report, the submissions of his

        16         counsel, and the comments that he made to the

        17         Court himself.

        18             It is clear that he was raised initially

        19         in a very traditional lifestyle.  He lost his

        20         parents at a young age.  Because he lived for

        21         many years at the outpost camp, it is not

        22         difficult to imagine it would have been quite

        23         a change to relocate to Cambridge Bay to

        24         attend school, particularly without family

        25         supports in place.  He was fortunate to be

        26         taken in by his aunt and uncle in Hay River

        27         but there is little doubt that the behavioral





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         1         issues that he displayed there and the

         2         unhealthy relationships that he developed with

         3         alcohol and drugs was partly related to the

         4         numerous losses that he experienced early in

         5         life, the abuse that he suffered when he was

         6         under of the care of his other aunt, having to

         7         relocate to go to school and live in a place

         8         where he had no connections, not to mention

         9         having to live basically from the start of his

        10         life with the knowledge that he had this very

        11         serious disease.  Not all of these things are

        12         necessarily connected to the fact that he is

        13         an aboriginal man but some of them certainly

        14         are.

        15             What the Supreme Court of Canada

        16         jurisprudence says, among other things, is

        17         that Courts have to consider to what extent

        18         these types of factors have an impact or

        19         should have an impact on the sentence to be

        20         imposed.  One way of understanding it is to

        21         say that the question is whether those factors

        22         have an impact on the offender's

        23         blameworthiness which, in turn, has an impact

        24         on the application of the proportionality

        25         principle.

        26             I have gone to some lengths here to make

        27         it clear, I hope, that in considering my





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         1         decision in this case I have been mindful of

         2         the duty that rests on me to take

         3         Mr. Kaotalok's aboriginal heritage into

         4         account, both the matters that I am required

         5         to take judicial notice of and the

         6         case-specific information that has been

         7         presented at the sentencing hearing.  The

         8         question in this case is not whether jail is

         9         required, (Mr. Kaotalok's counsel acknowledges

        10         that it is), the issue really is how long that

        11         jail term should be.  In arriving at that

        12         decision, I have considered the impact that

        13         Mr. Kaotalok's unique circumstances and the

        14         circumstances have had on his level of

        15         blameworthiness.

        16             I turn now to the sentencing principles

        17         that apply more specifically to this type of

        18         case.

        19             Aggravated sexual assault is an

        20         objectively very serious criminal offence.

        21         That is reflected in the fact that it is

        22         punishable by life imprisonment.  But it is

        23         also an offence that covers a wide wide range

        24         of possibilities as far as the behaviour that

        25         qualifies under that section.

        26             The particular type of aggravated sexual

        27         assault charge that I am dealing with here





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         1         today, I think it is fair to say, is really in

         2         a category of its own.  It does not involve a

         3         person forcing himself on his victims,

         4         overpowering them, overtly causing physical

         5         injuries during the commission of the act as a

         6         result of violence used during the course of

         7         the act.  That is the type of scenario that we

         8         more naturally think of when we hear about

         9         aggravated sexual assaults.  This, however, is

        10         a very different type of aggravated sexual

        11         assault.  It involves deceitfully obtaining

        12         the consent of another person in being

        13         involved in a very personal and intimate

        14         activity, one of the most personal and

        15         intimate activities that a person can engage

        16         in.

        17             Mr. Kaotalok knowingly exposed L.F. and

        18         J.E. to potentially lethal consequences and

        19         took away their right to choose whether they

        20         would engage in sexual contact with him,

        21         despite that risk, and he did this for his own

        22         sexual gratification.  I agree with the

        23         submission that was made by Crown counsel at

        24         the sentencing hearing.  He showed callous

        25         indifference and ruthless disregard for their

        26         well-being.

        27             To my knowledge, this is the first time





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         1         that a Court in this jurisdiction has had to

         2         deal with this type of offence.  This does not

         3         mean that the Court should make an example of

         4         Mr. Kaotalok and impose a sentence on him that

         5         would be unduly harsh.  But it does mean that

         6         the Court has to ensure that the decision that

         7         it makes addresses the goals of sentencing and

         8         makes it clear to everyone in this

         9         jurisdiction what the consequences are for

        10         this type of conduct.

        11             Courts in other jurisdictions have dealt

        12         with this kind of case before and I take much

        13         guidance from the principles that have been

        14         developed by those Courts.  The cases from the

        15         other jurisdictions are not binding on me of

        16         course, but they are helpful for many reasons.

        17         They assist in identifying which sentencing

        18         principles have been found to be paramount in

        19         these types of cases.  They assist in

        20         identifying the range of sentences that have

        21         been found to be appropriate.  And they assist

        22         in fleshing out the factors that have been

        23         considered to make a matter more serious or

        24         less serious bearing in mind that to start

        25         with it is serious conduct.

        26             I am now going to spend a few minutes

        27         talking about the broad principles that I





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         1         think emerge from the various cases that have

         2         been filed with the Court.  I have considered

         3         R. v. Cuerrier, [1998] 2 S.C.R. 371;

         4         R. v. Thomas, 2012 ONSC 1201; R. v. A.T.R.,

         5         2011 BCPC 283; R. v. Tippeneskum, 2011 ONCJ

         6         219; R. v. Felix, 2010 ONCJ 654;

         7         R. v. Nduwayo,  2010 BCSC 1467;

         8         R. v. McGregor, 2008 ONCA 831; R. v. J.M.L.,

         9         2007 BCPC 341; R. v. Smith, [2007] S.J. No.

        10         150; R. v. Walkem, [2007] O.J. No. 186;

        11         R. v. Williams, 2006 ONCJ 484; R. v.

        12         Lamirande, 2006 MCBCA 71; R. v. Smith, 2004

        13         BCCA 657; and R. v. Miron, [2000] M.J. No. 500.

        14             A useful starting point comes from

        15         R. v. Cuerrier, a Supreme Court of Canada

        16         decision dealing with this type of offence.

        17         It is a reminder of the role the criminal

        18         courts have in addressing this issue.  I say

        19         this because there is an obvious public health

        20         dimension to issues surrounding HIV and AIDS

        21         but that does not mean that the courts do not

        22         have an important role when they are called

        23         upon to impose sentences in the context that I

        24         am facing today.

        25             Cuerrier dates back 1998, but some of the

        26         things that the Supreme Court said that in

        27         case, I think remain very relevant:





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         1             The criminal law does have a role
                       to play both in deterring those
         2             infected with HIV from putting the
                       lives of others at risk and in
         3             protecting the public from
                       irresponsible individuals who
         4             refuse to comply with public
                       health orders to abstain from
         5             high-risk activities.  Where
                       public health endeavours fail to
         6             provide adequate protection to
                       individuals like the complainants,
         7             the criminal law can be effective.
                       It provides a needed measure of
         8             protection in the form of
                       deterrence and reflects society's
         9             abhorrence of the self-centered
                       recklessness and the callous
        10             insensitivity of the actions of
                       the respondent and those who have
        11             acted in a similar manner.  The
                       risk of infection and death of
        12             partners of HIV-positive
                       individuals is a cruel and ever
        13             present reality.  Indeed the
                       potentially fatal consequences are
        14             far more invidious and graver than
                       many other actions prohibited by
        15             the Criminal Code.  The risks of
                       infection are so devastating that
        16             there is a real and urgent need to
                       provide a measure of protection
        17             for those in the position of the
                       complainants.  If ever there was a
        18             place for the deterrence provided
                       by criminal sanctions it is
        19             present in these circumstances.
                       It may well have the desired
        20             effect of ensuring that there is
                       disclosure of the risk and
        21             appropriate precautions are taken.
                       R. v. Cuerrier, at paras 141 - 142
        22

        23              The dominant sentencing objectives in

        24         cases like this, not just because of this

        25         quote but as it emerges from the various cases

        26         that I have reviewed, are the denunciation of

        27         the conduct, and general and personal





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         1         deterrence.  These cases have almost without

         2         exception resulted in the imposition of jail

         3         terms.  The range is very broad.  It basically

         4         goes from one year to 18 years in just the

         5         cases that I have reviewed.  This is because

         6         there is a wide range of potential factual

         7         scenarios that can underlie a charge like this

         8         one.

         9             I want to refer to R. v. Williams, where

        10         the Court talked about the potential for

        11         far-reaching and widespread consequences of

        12         actions like the actions of Mr. Kaotalok in

        13         this case.  The Court said:

        14             There can be no doubt that the
                       aggravated assault offences are
        15             extremely serious.  The potential
                       individual consequences - both
        16             medical and social - are
                       monumental.  They are multiplied
        17             by two in the instant case.  They
                       are multiplied further by the
        18             public health jeopardy arising
                       from the risk of inadvertent
        19             transmission by the complainants
                       and any partners with whom they
        20             might have sexual relations.
                       R. v. Williams, para 22
        21

        22             In a simple way, I think that underscores

        23         why this is so serious.  I agree with those

        24         comments and I adopt them for the purposes of

        25         this case.

        26             As I have said, the range of sentences

        27         imposed for aggravated sexual assault charges,





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         1         involving offenders who do not disclose their

         2         HIV status to a sexual partner, goes from jail

         3         terms in the range of one year, 18 months, all

         4         the way up to close to 20 years imprisonment.

         5             In R. v. Smith, a Saskatchewan provincial

         6         court Judge, after having reviewed many cases,

         7         stated that he felt that the appropriate range

         8         for a single incident involving sexual

         9         activity in these kinds of circumstances is

        10         between three and four years.  I tend to agree

        11         with that conclusion.  This is a range that

        12         addresses, to me, the fundamental principle of

        13         proportionality because it addresses the

        14         seriousness of the offence and the

        15         blameworthiness of the person who acts in this

        16         way.  I am not saying that is a minimum

        17         sentence because, always, the Courts have to

        18         take into account aggravating and mitigating

        19         factors.  But I agree with the conclusion in

        20         Smith that that is a useful yardstick.

        21             The factors that have been considered to

        22         make matters more serious and have led to the

        23         imposition of longer sentences include things

        24         like high risk behaviour; for example, not

        25         using any protection during sexual activity:

        26         that factor is not present here.  The

        27         repetition of conduct with several different





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         1         victims: that factor is present here.  Another

         2         factor is the fact that a victim was actually

         3         infected with the HIV virus: that fact is not

         4         present here.

         5             In Williams, the Court noted this and

         6         said:

         7             I cannot ignore the fact that
                       neither woman was infected through
         8             her sexual involvement with Mr.
                       Williams.  This may be a product
         9             of good fortune alone, but it
                       materially distinguishes this case
        10             from a number of those in which
                       near-draconian sentences have been
        11             pronounced.
                       R. v. Williams, at para 22
        12

        13             So obviously, and this runs through the

        14         cases in general, when the complainants are

        15         infected that is considered a very significant

        16         aggravating factor.

        17             Another factor that is aggravating is

        18         where the offender is in a position of trust

        19         vis-à-vis the victim.  And finally, as is

        20         always the case, the offender's criminal

        21         record can be an aggravating factor.

        22             So what does all of this mean for this

        23         case?  The question, really the ultimate

        24         question, is where Mr. Kaotalok's case fits in

        25         all of this.

        26             He has a substantial criminal record and,

        27         as the Crown pointed out, that record includes





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         1         many convictions for crimes of dishonesty and

         2         deceit.  These are property crimes that would

         3         normally be considered marginally relevant on

         4         a sexual assault sentencing.  But, as Crown

         5         counsel noted during the submissions, it is

         6         not completely irrelevant because there is a

         7         deceitful aspect to his conduct in this case,

         8         albeit in a much more serious context, and

         9         with much more serious potential consequences.

        10             There are two victims in this case, one

        11         who was still a minor at the time that the

        12         offence was committed.  I find there is an

        13         element of breach of trust in this case

        14         although not as significant as it would be

        15         with a spouse.  But these young women had

        16         befriended Mr. Kaotalok.  Presumably they

        17         trusted him more than they would have trusted

        18         a complete stranger and he violated that trust

        19         by not disclosing his medical status to them.

        20         The assault on the victim J.E., as defence

        21         counsel acknowledged, is more of a high risk

        22         situation given the level of intoxication of

        23         both parties.

        24             As I have already said, on the other hand

        25         some factors that have been found to be

        26         aggravating in other cases are not present

        27         here.





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         1             Thankfully neither victim, as of today,

         2         have been diagnosed as having been infected

         3         with HIV.  However, as some of the excerpts I

         4         have quoted from the case law suggest, they

         5         still have to live with the possibility, the

         6         anguish, the medical tests, and those

         7         consequences are not to be dismissed as

         8         insignificant.  If a person is actually

         9         infected that makes the matter even more

        10         serious.  But I think it must be remembered

        11         and acknowledged that even if they did not

        12         actually get sick, there are and will continue

        13         to be repercussions for these victims.

        14             Mr. Kaotalok has pleaded guilty which is

        15         very mitigating.  It was not a guilty plea at

        16         the first opportunity; in fact, it occurred

        17         long after the charges were laid but this too

        18         must be placed in context.  As defence counsel

        19         pointed out, there was an important case

        20         pending before the Supreme Court of Canada for

        21         some time and that case was expected to, and

        22         did, clarify what defences are and are not

        23         available in a case like this.

        24             R. v. Morbior, 2012 S.C.C. 47 was released

        25         on October 5th, 2012.  It clarified this area

        26         of the law and the issues that were before the

        27         Supreme Court of Canada had a direct bearing





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         1         on whether Mr. Kaotalok could or could not

         2         advance certain defences in this case.  It was

         3         not unreasonable at all for him to want to

         4         know the outcome of that case before giving

         5         his final instructions to his counsel.  He had

         6         the right to choose his course of action and

         7         get advice from his counsel in light of what

         8         that decision was going to be as far as the

         9         law.

        10             The other thing about the guilty plea, and

        11         I say this in every case where there is one,

        12         is that it has spared both complainants from

        13         having to come to the Court and testify about

        14         very personal intimate things.  The Court

        15         knows from seeing witnesses testify in court

        16         proceedings that it is a process that is often

        17         difficult and sometimes very painful for them.

        18         Sparing someone from that is always very

        19         significant.  Mr. Kaotalok is entitled to

        20         considerable credit for having pleaded guilty.

        21             In addition to what it spared the

        22         complainants, it is obvious from the agreed

        23         statement of facts that it also saved

        24         considerable resources considering the type of

        25         medical evidence that would have to have been

        26         called by the prosecution had this matter

        27         proceeded to trial.





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         1             The other aspect of guilty pleas is they

         2         are usually considered to be an indication of

         3         remorse.  There are comments in the

         4         pre-sentence report that call into question

         5         whether Mr. Kaotalok is truly remorseful.  He

         6         appears to have expressed conflicting things

         7         to the author of the pre-sentence report with

         8         respect to his views of the victim and taking

         9         responsibility for this.  But he has pleaded

        10         guilty.  He has expressed his remorse to the

        11         Court when he was given an opportunity to

        12         speak.  And while it is clear that his

        13         expressions of remorse may not have been the

        14         most unequivocal during the process leading up

        15         to the sentencing, I am satisfied, based on

        16         what he said to the Court, that he does take

        17         responsibility for his actions at this point.

        18         Whether he is truly fully deeply remorseful

        19         and sorry in an absolute sense is something

        20         that only he knows and only he will ever know

        21         in his heart.  I can only hope that he is and

        22         that he realizes the ramifications of what he

        23         has done.

        24             Crown counsel made submissions about

        25         Mr. Kaotalok's recklessness, tying it in with

        26         the inconsistent attitude in complying with

        27         his medical regimen.  I do not disagree:  It





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         1         is obvious that Mr. Kaotalok has not been

         2         diligent in complying with his medical

         3         regimen, but I also take the point that

         4         defence counsel made.  The reality is

         5         Mr. Kaotalok, for large periods of time while

         6         he was in Yellowknife, has been residing at

         7         the Salvation Army without a fixed address or

         8         any place to really call home.  That lack of

         9         stability can only have an impact on a

        10         person's overall stability, including

        11         compliance with medical treatment.  It is not

        12         an excuse, and obviously it is crucial that

        13         Mr. Kaotalok take his medical treatment

        14         seriously, but I accept that the lack of

        15         stability in his life was an impediment to him

        16         adhering strictly with his treatment plan.

        17         And this seems to be confirmed that his

        18         compliance was better when his living

        19         situation was more stable.

        20             Another matter that has an important

        21         bearing on the sentence to be imposed today is

        22         how much credit Mr. Kaotalok is going to

        23         receive for the time that he has spent on

        24         remand which, in this case, is a substantial

        25         period of time.  He has been on remand since

        26         March 1st, 2011, which is two years and three

        27         weeks.  The first question is whether I have





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         1         discretion to give credit on anything more

         2         than a one for one ratio.  Or, in other words,

         3         whether I have discretion to grant him

         4         enhanced credit for his remand time.

         5             The Crown argued that I do have discretion

         6         for the portion of his remand time up until

         7         April 2012 when he had a bail review.  But

         8         that after that, my discretion is limited

         9         because he was detained at that bail review

        10         primarily because of his record.  The defence

        11         says that I have discretion to grant him

        12         enhanced credit for the full period of his

        13         remand.

        14             Whether I have discretion or not depends

        15         on the reason why bail was denied.

        16             Paragraph 515(9.1) of the Criminal Code

        17         imposes a requirement for the Justice who

        18         detains an accused primarily because of his

        19         record to indicate so clearly on the record.

        20         The provision says "the Justice shall state

        21         that reason in writing on the record", that

        22         reason being that it was primarily because of

        23         the criminal record.

        24             Mr. Kaotalok had a show cause hearing on

        25         March 1st, 2011 and was ordered detained.  The

        26         warrant of committal issued on that date does

        27         not include any note that he was detained





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         1         primarily because of his record.  Then he had

         2         his preliminary hearing and he was committed

         3         to stand trial in August 2011.  He did not

         4         apply for release at the conclusion of the

         5         preliminary hearing.  He had a number of bail

         6         reviews scheduled in this court by operation

         7         of the law, which requires there to be a

         8         review of detention every 90 days.  He waived

         9         those reviews in November 2011 and February

        10         2012.  He did seek release at a bail review on

        11         April 30th, 2012 and on September 24th, 2012,

        12         and was ordered detained both times.

        13             The Crown argues that the transcript of

        14         the reasons given by the Judge who ordered his

        15         continued detention on April 30th makes it

        16         clear that the primary reason for that

        17         decision was his criminal record.  The Crown

        18         says that the transcript can serve as the

        19         written entry into the record referred to in

        20         paragraph 9.1 of Section 515.  I disagree with

        21         that submission.

        22             The requirement for a written entry into

        23         the record as to the primary ground for

        24         detention is designed to ensure there is no

        25         ambiguity in this area.  A transcript of

        26         reasons given orally does not constitute a

        27         written statement as to the primary reasons





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         1         for detention.  In my view, Parliament's

         2         requirement to have the reasons for detention

         3         entered in writing is precisely to ensure that

         4         there is not going to be a debate based on a

         5         transcript or on clerk's notes about what the

         6         reason for detention was.  Clarity in this

         7         area is very important given the potential

         8         implications.  In this case the difference is

         9         a full year of credit that is either possible

        10         to give or not possible to give depending on

        11         the answer.

        12             So I am not satisfied that the transcript

        13         of the April 30th decision is something that

        14         can be used or meets the requirements of the

        15         Criminal Code.  The net result is that I have

        16         discretion to give Mr. Kaotalok enhanced

        17         credit for the full period of time that he has

        18         spent on remand.

        19             The fact that I have that discretion does

        20         not mean that I should ever use it. Granting

        21         enhanced credit for remand time is not

        22         automatic - far from it.

        23             The relevant portions of Section 719

        24         provide that the starting point is that the

        25         credit for the remand time is to be given on a

        26         ratio of one for one but that if the

        27         circumstances justify it, enhanced credit can





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         1         be granted up to a ratio of one to one and a

         2         half.

         3             In a relatively recent case, R. v. Green,

         4         2013 NWTSC 20, I discussed some of the issues

         5         that have arisen about the interpretation to

         6         be given to the words in the provision and the

         7         case law that has interpreted it.  The

         8         principles that emerge from the case law,

         9         including appellate jurisprudence, is that

        10         while the circumstances that may justify

        11         enhanced credit need not be rare or

        12         exceptional, they do have to be

        13         individualised; that is, they have to relate

        14         to the person being sentenced.  This

        15         case-specific information can be provided

        16         through evidence from case managers or, as has

        17         been frequently accepted in this jurisdiction,

        18         from information provided by counsel as

        19         officers of the Court as long as counsel is

        20         able to indicate that he or she has obtained

        21         that information from a reliable source such

        22         as the offender's case manager.   This

        23         approach has been adopted fairly consistently

        24         in various cases such as R. v. Stonefish, 2012

        25         MBCA 116; R. v. Carvery (L.A.) 2012 NSCA 107;

        26         R. v. Summers, 2013 ONCA 147; R. v. Mannilaq,

        27         2012 NWTSC 48; R. v. Desjarlais, 2012 NWTSC 2;





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         1         and R. v. Vittrewkwa, 2011 YKTC 64.

         2             In this case the information before me is

         3         that Mr. Kaotalok's behaviour while on remand

         4         was, for the most part, without problems.  He

         5         had a few incidents with other inmates,

         6         apparently arising from him getting taunted by

         7         them, but the information that was conveyed to

         8         this Court by his counsel is that his case

         9         manager advised that if he had been a serving

        10         prisoner during this period of time, he would

        11         have earned most of his remission for the time

        12         that he spent on remand.

        13             I also have information that Mr. Kaotalok

        14         benefitted from some programs while he was on

        15         remand.  The lack of availability of programs

        16         for remand prisoners and harsh detention

        17         conditions are among the factors that

        18         historically have been taken into account in

        19         the decision to give enhanced credit for

        20         remand time.  Those factors do not apply here.

        21             All in all, I am satisfied that

        22         Mr. Kaotalok should be granted credit for his

        23         remand time on an enhanced basis but not quite

        24         to the maximum ratio of one to one and a half.

        25         I do not think that the maximum ratio is

        26         appropriate given the overall circumstances of

        27         his pre-trial detention, including the fact





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         1         that he has had access to some programs.

         2         Although it is said that he would have earned

         3         most of his remission, this is not a case

         4         where his behaviour was without problems.

         5             The Crown's position is that I should

         6         impose a global sentence of four years in jail

         7         for these two charges broken down to two years

         8         on each count consecutive.  The Crown says

         9         that this position takes into account

        10         concerns about totality.  The Crown says that

        11         from this sentence of four years, Mr. Kaotalok

        12         should be given credit for the time that he

        13         spent on remand.

        14             Defence counsel has argued that the

        15         sentence could be of a shorter duration, given

        16         the guilty plea and the absence of some of the

        17         aggravating features found in cases from other

        18         jurisdictions.

        19             Considering the range is between one year

        20         and 18 years in the cases that I have

        21         reviewed, I think it is fairly clear that

        22         Mr. Kaotalok's case does not belong at the

        23         higher end of that spectrum.  But I also do

        24         not consider that his case falls at the very

        25         low end of the spectrum.

        26             It is tragic that Mr. Kaotalok was

        27         infected with the HIV virus at birth.  He was





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         1         an innocent victim of very unfortunate

         2         circumstances in this regard.  But what he has

         3         done as an adult through his behaviour is he

         4         has passed on that victimization to two other

         5         people by exposing them to the risk of

         6         infection.  He has created a risk for these

         7         people to suffer the same fate that he did in

         8         a way - to be infected with this virus without

         9         having any control or any ability to protect

        10         themselves from that risk.

        11             I have said it many times already, and I

        12         will say it again, it is very fortunate that

        13         to date these victims have not been diagnosed

        14         with being infected with HIV but they will

        15         live with the spectre of that possibility for

        16         a long time and with that sense, I am sure,

        17         that their trust has been abused by their

        18         friend in a terrible way.

        19             I certainly agree with the submissions of

        20         defence counsel that some of the cases filed

        21         involve situations where the offenders showed

        22         much more recklessness and even more callous

        23         behaviour than what is in question here, but

        24         the fact that there are worst cases out there

        25         does not make this one any less serious. But

        26         for his guilty plea, Mr. Kaotalok would be

        27         facing a much more significant sentence today.





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         1             Having taken his circumstances into

         2         account and the principles of the law that are

         3         binding on me, I do conclude that a jail term

         4         of some significance is required in this case

         5         to address the goals of sentencing, to

         6         denounce his conduct, to hopefully deter other

         7         people from behaving in this selfish reckless

         8         way.  There is no doubt in my mind that the

         9         global sentence sought by the Crown is within

        10         the range of what would be fit for these

        11         sentences.  I do not even think that it is at

        12         the higher end of what could be imposed.

        13             Even so, having given this matter a lot of

        14         anxious thought, I have decided to exercise as

        15         much restraint as I can, taking into account

        16         Mr. Kaotalok's overall circumstances,

        17         including his circumstances as an aboriginal

        18         offender.  And so although I think that the

        19         position of the Crown was quite reasonable,  I

        20         will impose a sentence that is slightly shorter

        21         than what the Crown has sought, but only

        22         slightly.  It is not because there is any joy

        23         in imposing a jail term to someone, especially

        24         knowing some of their difficult circumstances,

        25         but it is because in my view I would be

        26         shirking from my responsibility if I did not

        27         impose a sentence of some significance here.





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         1             The Crown has applied for certain

         2         ancillary orders and I will deal with those

         3         first.  The defence is not opposed to any of

         4         these requests.

         5             There will be a firearms prohibition order

         6         that will commence today and expire ten years

         7         from Mr. Kaotalok's release.

         8             There will be an order that he comply with

         9         the requirement of the Sexual Offender

        10         Information Registration Act.  By operation of

        11         the Criminal Code, that order is for life

        12         under Section 490.03(ii)(c).  It is a lifelong

        13         order because of the maximum sentence

        14         available for aggravated sexual assault.

        15             There will be no victim of crime

        16         surcharge.  There would be an obvious hardship

        17         in imposing one considering the time that

        18         Mr. Kaotalok has spent on remand, his lack of

        19         means, and the fact that he will spend more

        20         time in custody.

        21             Mr. Kaotalok, please stand.

        22             For these two counts of aggravated sexual

        23         assault, Mr. Kaotalok, I have reduced the

        24         sentence as much as I feel that I can.  I have

        25         taken into consideration the global effect of

        26         the sentences.  I have concluded that a fit

        27         sentence for each of these counts is 21 months





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         1         in jail, so that means a total of 42 months.

         2         For the two years and three weeks that you

         3         have spent on remand, I give you credit for 30

         4         months, which is more than one for one but not

         5         quite one and a half.

         6             What that means is on Count 1, there will

         7         be a further jail term of six months.  And on

         8         Count 3, there will be a further jail term of

         9         six months consecutive.

        10             You can sit down.

        11             Mr. Clerk, I can assist you with the

        12         warrant of committal if you need me to but it

        13         should show 21 months on Count 1, 15 months

        14         credit for remand time.  And 21 months on

        15         Count 2, 15 months credit for remand time on

        16         that one as well.

        17             I will not make any order with respect to

        18         exhibits because there remains the matter of

        19         Count 2 which is going to be going to trial.

        20         I would ask that counsel ensure that when that

        21         matter is concluded, the Court's attention's

        22         is drawn to the issue of the exhibits.

        23             On the matter, Counts 1 and 3 which were

        24         set for sentencing today, I extend again my

        25         thanks to the counsel for their submissions.

        26             Mr. Kaotalok, I hope that you are able to

        27         do some of the things that you talked about





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         1         when you spoke to me a few weeks ago and that

         2         you will be able to get your life in the

         3         direction that you want it to be.  It sounds

         4         like you have the ability to do that if you

         5         choose to.  It will really be up to you.

         6     THE ACCUSED:          Thank you.

         7     THE COURT:            As far as Count number 2,

         8         Mr. Boyd, first of all, have I omitted or

         9         forgotten anything on the sentencing matter?

        10     MR. ONYSKEVITCH:      Your Honour, I apologize as

        11         I was not here for the submissions that were

        12         made but as I understood it, the Crown also

        13         sought an order for the DNA of Mr. Kaotalok

        14         pursuant to Section 487.

        15     THE COURT:            You're correct, and I'm

        16         sorry, I meant to say that.  Thank you for

        17         reminding me of this.

        18             This is a primary designated offence and

        19         being the order is mandatory, so there will

        20         will be one of those as well.  Thank you.

        21             Anything else that I may have missed?

        22     MR. ONYSKEVITCH:      Nothing further from the

        23         Crown with respect to Counts 1 and 3, Your

        24         Honour.

        25     MR. BOYD:             Nothing from defence, Your

        26         Honour.

        27     [DISCUSSION WITH COUNSEL REGARDING COUNT 2]





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         1     THE COURT:            Thank you, counsel. Close

         2         court.

         3         -------------------------------------------

         4

         5                          Certified correct to the
                                     best of my skill and
         6                           ability,

         7

         8

         9

        10                           ____________________________

        11                           Lois Hewitt,
                                     Court Reporter
        12

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        27





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