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Abstract: Transcript of the Reasons for Sentence
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1 THE COURT: We heard submissions on 2 sentence for Mr. T. last week on November 3 15th. And today it is my job to impose a 4 sentence on Mr. T. who has pleaded guilty to, 5 and been convicted of, sexual assault. This 6 is, as many judges have said before me, one of 7 the most difficult jobs that a judge has. 8 The circumstances of this offence have 9 been laid out in a Statement of Agreed Facts. 10 This was read into the record on November 11 15th, 2012 and marked as an exhibit so I will 12 not repeat the facts here in their entirety. 13 I will, however, summarize them for the 14 purpose of providing context for these 15 reasons. 16 On December 17th, 2012, the victim, who 17 was 16, was staying at her sister's home in 18 Inuvik. Others in the home that night were 19 Mr. T., who is the victim 's father; the 20 sister; the sister's boyfriend P.F.; and their 21 son. 22 That night the victim consumed enough 23 alcohol to become highly intoxicated. She 24 passed out on a couch in the livingroom. Also 25 in that room was a bed upon which Mr. F. and 26 the victim's sister, along with their son, 27 were sleeping. The bed was about four feet Official Court Reporters 1 1 from the couch. 2 Mr. T. was in the livingroom watching 3 television. He, too, had been drinking 4 alcohol that night. 5 Shortly after going to sleep, Mr. F. was 6 awakened by the sound of someone moving around 7 in the room. He opened his eyes and observed 8 Mr. T. sitting on the couch beside the victim 9 who was on her back and unconscious. Mr. T. 10 had one of his hands inside the victim's pants 11 at the front in her crotch area. Mr. F. 12 coughed and began to move around. Mr. T. then 13 removed his hand and turned his attention back 14 to the television. Subsequently Mr. F. heard 15 more movement and opened his eyes to see Mr. 16 T. with one of his hands under the victim's 17 shirt, fondling her breasts. Mr. F. coughed 18 again and Mr. T. removed his hand then looked 19 at Mr. F. and grinned. Mr. F. closed his eyes 20 for a few seconds but then opened them again 21 to see Mr. T. this time with one of hands 22 under the victim's shirt feeling her breasts. 23 At this point, Mr. F. woke the victim's 24 sister. She coughed and began to move around. 25 Mr. T. then removed his hand from the victim's 26 shirt. A couple of minutes later, Mr. F. 27 again awoke the victim's sister. She saw Mr. Official Court Reporters 2 1 T. beginning to slide his hand into the 2 victim's pants. She yelled at him (Mr. T. 3 that is) that they were trying to sleep and to 4 go upstairs. Mr. T. removed his hand from the 5 victim's pants and went upstairs. 6 It was approximately 15 minutes from the 7 time of the first touching until Mr. T. left 8 the room. The victim was unconscious 9 throughout and she has no recollection of 10 this. She suffered no physical injuries. 11 Mr. T. was arrested on March 23rd, 2012 12 and has remained detained in custody since 13 that time - for seven months and 28 days as of 14 today. 15 Defence counsel provided information to 16 the Court about Mr. T's background and 17 circumstances. 18 Mr. T. is 48 years old and has a Grade 9 19 education. He is aboriginal. He has not 20 worked since 1982. He spent four years in 21 residential school at Grolier Hall. He was 22 abused there. In 1982, he attempted suicide 23 with a gun. He survived the suicide attempt 24 but tragically, he shattered his leg bone and 25 ultimately lost his leg. 26 Mr. T's parents both attended residential 27 school as well and he grew up in a home where Official Court Reporters 3 1 alcohol use was rampant. According to his 2 lawyer, Mr. T. is himself an alcoholic. He 3 has never taken treatment for this, nor has he 4 taken any treatment for his experience at 5 residential school. He realizes now, however, 6 that he must deal with this. 7 The Crown tendered Mr. T's criminal 8 record. The defence took no issue with its 9 accuracy. The criminal record is a lengthy 10 one and dates back to 1982. It includes at 11 least seven convictions for violent offences. 12 Of particular relevance are a 2002 conviction 13 for sexual interference and two convictions 14 for sexual assault and sexual exploitation in 15 2006. 16 The 2002 conviction involved another one 17 of Mr. T's daughters who was 12 at the time. 18 He touched her breasts and he was drunk at the 19 time. Mr. T. was sentenced to five months 20 incarceration for this. 21 The 2006 convictions involved the same 22 daughter who was the victim in the 2002 case, 23 as well as another daughter (not the victim 24 here). They were then aged 16 and 14 25 respectively. Mr. T. was sentenced to ten 26 months incarceration for the sexual assault 27 and six months incarceration for the sexual Official Court Reporters 4 1 exploitation charge. These were served 2 concurrently. 3 The Criminal Code sets out principles and 4 objectives of sentencing that provide a 5 framework to guide judges in imposing sentence 6 in a manner that is just and appropriate. The 7 objectives of sentencing are listed in 8 Section 718. They are: 9 Denunciation of unlawful conduct, which is 10 an expression of society's abhorrence of 11 particular conduct; 12 Deterrence aimed both at the offender 13 individually and the public at large;. 14 Separating offenders from society where 15 that is necessary; 16 Rehabilitation, reparation, and promoting 17 a sense of responsibility in offenders, an 18 acknowledgment of the harm done to victims and 19 to the community. 20 The emphasis that is placed on each of 21 these objectives very much depends on what the 22 offence is, the circumstances under which it 23 was committed, and the circumstances of the 24 offender. Where the offence involves the 25 abuse of a person under 18 years of age, as is 26 the case here, the Criminal Code requires the 27 sentencing Judge to give primary consideration Official Court Reporters 5 1 to the objectives of denunciation and 2 deterrence. 3 In seeking to achieve these objectives and 4 in placing the right emphasis on each of them 5 in any given case so as to come up with a just 6 and appropriate sentence, judges are guided by 7 a number of principles. These, too, are set 8 out in the Criminal Code. 9 The most important principle in sentencing 10 is proportionality. This is articulated in 11 the Criminal Code as follows: 12 A sentence must be proportionate 13 to the gravity of the offence and 14 the degree of responsibility of 15 the offender. 16 This means, quite simply, that the 17 sentence must be just - the punishment must 18 fit the crime. 19 Another principle is that Judges must 20 consider aggravating and mitigating factors 21 and increase or reduce a sentence accordingly. 22 As pointed out by Crown counsel, 23 Mr. Praught, in Section 718.2 the Code deems a 24 number of factors to be aggravating, although 25 this is not an exhaustive list. These include 26 evidence that the offender abused a person 27 under 18 years of age, as is the case here, Official Court Reporters 6 1 and that the offender was in a position of 2 trust in relation to the victim. That too is 3 a factor here. 4 In determining what is a fit sentence, 5 Judges are also guided by the principles of 6 restraint and similarity of sentence. 7 Similarity of sentence means simply that 8 there should be similar treatment for like 9 offences and offenders. 10 The principle of restraint means that 11 imprisonment should be a measure of last 12 resort. This requires consideration of all 13 available sanctions other than imprisonment 14 that are reasonable in the circumstances with 15 particular attention to the circumstances of 16 aboriginal offenders. 17 The importance of this principle was 18 recently reaffirmed by the Supreme Court in 19 R. v. Ipeelee. Mr. T. is aboriginal, and 20 therefore I will take this into consideration. 21 There are a number of aggravating factors 22 that arise out of the circumstances of this 23 particular case. 24 The victim was passed out when the sexual 25 assault occurred and she remained unconscious 26 throughout. She was completely vulnerable. 27 Mr. T. is the victim's father and when this Official Court Reporters 7 1 occurred she had just turned 16. It is 2 aggravating that Mr. T. touched the victim 3 four separate times, each time interrupted by 4 either Mr. F. or the victim's sister, at first 5 discretely by coughing and moving around, and 6 then finally expressly when the older daughter 7 told Mr. T. to go upstairs. Moreover, it 8 seems that each time Mr. T. was interrupted, 9 he stopped but then resumed the sexual 10 touching when it appeared that once again 11 everyone was asleep. Clearly, Mr. T. knew 12 what he was doing was wrong. Yet, he 13 persisted. 14 Mr. T's criminal record is aggravating 15 too. This is especially so in light of the 16 previous convictions for sexual crimes against 17 his other daughters. Despite serving prison 18 sentences of some significance for these 19 crimes, he has yet again perpetuated a sexual 20 crime against one of his children. 21 I find there is very little in the way of 22 mitigation. 23 It is true that Mr. T. entered a guilty 24 plea and thus he spared the victim and the 25 other witnesses the requirement of attending a 26 trial and testifying. And I do take that into 27 account. The value of this is diminished, Official Court Reporters 8 1 however, because the guilty plea came only 2 after a preliminary inquiry. 3 Mr. T. asked his lawyer to read in a 4 letter on his behalf during sentencing 5 submissions. In it he said he is physically 6 and mentally handicapped from his experiences 7 at residential school. He expressed remorse 8 and said that he knows that he has to deal 9 with his past. I have taken his expression of 10 remorse into account in determining sentence 11 and I am encouraged by his acknowledgment that 12 he must deal with his problems. I believe 13 that he is sincere. 14 The Crown seeks a custodial sentence of 30 15 to 36 months less credit for time spent in 16 pre-trial custody on a one to one basis. It 17 is the Crown's position that a custodial 18 sentence in this range is necessary to achieve 19 the objectives of sentencing, particularly 20 denunciation and deterrence, which, as I noted 21 earlier, must be given primary consideration 22 because of the circumstances of this case and 23 the requirements of the Criminal Code. 24 The defence submits that the sentence that 25 I impose should be crafted to permit Mr. T. to 26 attend some form of counselling and that the 27 custodial part should be no longer than 18 Official Court Reporters 9 1 months followed by a period of probation. 2 The circumstances of this case cry out for 3 a significant custodial sentence and, in my 4 view, three years is an appropriate length of 5 time. 6 Sexual assault, in many forms, is all too 7 common in the Northwest Territories and sexual 8 crimes against children are particularly 9 serious even if, as here, there is no physical 10 injury to the child. 11 The consequences of sexual assault for 12 victims are profound. 13 In the 1992 case of the Queen v. W.S.B., 14 the Queen v. Powderface [1992] A.J. No. 60, 15 Justice MacDonald of the Alberta Court of 16 Appeal considered the effects of sexual abuse 17 crime against children. He stated, 18 When a man has assaulted a child 19 for his sexual gratification, then 20 even if no long lasting physical 21 trauma is suffered by the child, 22 it is reasonable to assume that 23 the child may have suffered 24 emotional trauma, the effects of 25 which may survive longer than 26 bruises or broken bones and may 27 even be permanent. Official Court Reporters 10 1 Later he went on to say, 2 From this information, it is 3 abundantly clear that there is one 4 salient fact which must govern the 5 approach to be taken by the Courts 6 in sentencing in cases of sexual 7 abuse of children. That in every 8 case of sexual abuse of a child, 9 there is a very real risk of very 10 real harm to the child. This 11 cardinal fact can be relied upon 12 even when there is no expert or 13 nonexpert evidence called in the 14 particular case to establish that 15 the particular child, who is the 16 victim, has suffered some specific 17 traumatic effect or effects. 18 Mr. T. bears a high degree of moral 19 blameworthiness in this case. 20 It has been said before that children are 21 entitled to rely on their parents to love and 22 to protect them. They are entitled to trust 23 their parents and, in particular, to trust 24 that their parents will not harm them or take 25 advantage of their vulnerabilities. Mr. T. 26 violated this trust in spades. He sexually 27 assaulted his 16-year-old daughter while she Official Court Reporters 11 1 was passed out and at her most vulnerable. He 2 did so blatantly and repeatedly in the 3 presence of others. The victim was not even 4 able to try and get help. 5 In her victim impact statement, which she 6 requested be read in open court, she said, 7 "I was hurt in a few ways. First 8 I cannot believe he can do that to 9 me. Second, I got no dad anymore. 10 It makes me feel lost. It makes 11 me feel like I am the bad person 12 but I am not. I can't bear to 13 look at him as a father like I 14 seen when I was young". 15 Defence counsel made a number of 16 submissions in support of a more lenient 17 sentence. It was indicated that there was no 18 penetration, it was just fondling. It was 19 also suggested that because Mr. T. molested 20 his own daughters he is in a different 21 category than individuals who prey on legal 22 strangers. 23 In my view this does not make the crime 24 any less serious, nor does it make Mr. T. any 25 less dangerous. The fact that he is related 26 to his victims does not make them any less 27 entitled to the full protection of the law. Official Court Reporters 12 1 It was also suggested and pointed out that 2 the victim did not suffer physical injuries 3 and that she had no recollection of the event. 4 These are not, in my view, mitigating. The 5 fact that there was no physical injury is, at 6 best, neutral. The fact that she had no 7 recollection of the events because she was 8 passed out is, on the contrary, aggravating. 9 Crown counsel submitted three cases, all 10 of which address the appropriate length of 11 sentence as well as sentencing principles and 12 objectives in sexual assaults involving child 13 victims. These are the Queen v. Epelon, the 14 Queen v. K.D.B., and the Queen v. J.L.C. I 15 have read and considered each of these. 16 The Epelon case, which is a decision of 17 former Chief Judge Bruser of the Territorial 18 Court of the Northwest Territories, bears many 19 similarities to this case. 20 There, the offender entered a guilty plea. 21 The sexual assault took the form of touching 22 the victim's breasts, buttocks, and vagina. 23 The offender had a criminal record with 24 previous convictions for sexual assault. 25 Unlike the case here, however, the victim was 26 conscious and able to tell the offender to 27 stop, which he did. Chief Judge Bruser Official Court Reporters 13 1 imposed a sentence of 30 months imprisonment. 2 The Queen v. J.L.C., which is a case out 3 of British Columbia, involved sexual 4 interference against two children. The 5 offender was sentenced to a prison term of 36 6 months. The circumstances, again, were 7 similar in that offender, a stepparent, was in 8 a position of trust in relation to the 9 children. The interference took the form of 10 touching. 11 Finally, in the Queen v. K.D.B., which is 12 a decision of the Saskatchewan Provincial 13 Court, the offender received a sentence of 18 14 months imprisonment. There were several 15 incidents of touching including digital 16 penetration. Unlike the case here, however, 17 there were a number of mitigating factors. 18 There was also no criminal record and there 19 was a low risk of further offences. 20 I have considered Mr. T's aboriginal 21 status and his history. I am convinced that 22 his life has been affected profoundly by his 23 experience at residential school, as well as 24 that of his parents. As I indicated earlier, 25 I also believe he is sincere in wanting to get 26 help for what he considers to be the drivers 27 behind these offences, and this one in Official Court Reporters 14 1 particular. 2 Unfortunately in the circumstances, there 3 are no reasonable alternatives to a longer 4 period of incarceration. 5 Mr. T. did express a willingness and a 6 desire to attend counselling through his 7 lawyer but he has no plan, so I fail to see 8 how his rehabilitation could be promoted 9 effectively with a probationary order. 10 Moreover, a sentence with a shorter period of 11 incarceration followed by probation would not, 12 in my view, achieve the important and 13 mandatory objective of denunciation and 14 deterrence. 15 Defence counsel also argued that Mr. T. 16 should get time and a half credit for the time 17 that he spent in custody so far. 18 The Criminal Code provides, in 19 Section 719(3), that credit for time spent in 20 custody awaiting trial is limited to a maximum 21 of one day for each day spent in custody. 22 However 719(3.1) allows the Court to grant 23 credit at the rate of one and a half days for 24 each day spent in pre-trial custody if the 25 circumstances justify it. 26 The circumstances do not need to be 27 exceptional in order to justify granting more Official Court Reporters 15 1 generous credit. Chief Judge Gorin reached 2 this conclusion in the Queen v. Desjarlais. 3 Nevertheless, there must be evidence presented 4 to the Court, whether through affidavit, 5 testimony or counsel's sentencing submissions, 6 that will allow the Court to reach the 7 conclusion that the circumstances justify 8 additional credit. 9 The basis for the argument that Mr. T. 10 should get time and a half credit as opposed 11 to straight time credit for pre-trial custody 12 is simply that he waived his right to a bail 13 hearing and consented to remand. In my view, 14 this is insufficient to give rise to a finding 15 that there are circumstances justifying the 16 increased credit and therefore, any credit 17 will be limited to one day of credit for each 18 day spent awaiting trial. 19 The Crown has asked that I impose a 20 firearms prohibition order under Section 109 21 of the Criminal Code. That section provides 22 for a mandatory prohibition where a person is 23 convicted of an indictable offence in the 24 commission of which the violence against a 25 person was used, threatened, or attempted, and 26 for which the person may be sentenced for ten 27 years or more. The Crown's argument is that Official Court Reporters 16 1 sexual assault is inherently violent and thus 2 I must impose a prohibition under Section 109. 3 I questioned this during submissions and 4 subsequently Mr. Praught kindly provided case 5 law demonstrating that this is an area where 6 the law is in fact not consistent. The two 7 cases that he submitted are Bossé v. The 8 Queen, a 2005 decision from the New Brunswick 9 Court of Appeal; and the Queen v. Lonegren, a 10 2009 decision from the British Columbia 11 Supreme Court. The latter decision was 12 appealed on the conviction; however, there was 13 no appeal taken with respect to the finding on 14 the interpretation of Section 109. 15 In Bossé, the Court adopted the 16 interpretation of Section 109 set out by the 17 Provincial Court of Newfoundland and Labrador 18 in the Queen v. L.H. There, the Court held 19 that a sexual assault upon a child will always 20 involve violence in the form of a likelihood 21 of material harm, whether physical or 22 psychological, and that therefore it falls 23 within Section 109. 24 The Court reached a different conclusion 25 in Lonegren however. Mr. Justice Barrow there 26 considered sexual interference, not sexual 27 assault, however the circumstances of the Official Court Reporters 17 1 offence were very similar to the case at bar. 2 Justice Barrow concluded that the wording of 3 Section 109, as well as the authorities, 4 support the proposition that it would be 5 possible to commit sexual interference without 6 violence, as that term is used in Section 109. 7 At paragraph 42 of that decision he states the 8 following: 9 There are several reasons why I 10 consider this to be an appropriate 11 interpretation of the section. 12 First, it respects the distinction 13 between force, which is an 14 essential element of assault, and 15 violence, which is not. Second, 16 it is preferable to determining 17 the issue on the basis of the 18 impact of the offence on the 19 victim, as is suggested by some of 20 the authorities and the dictionary 21 references to which I earlier 22 alluded. To approach the matter 23 in that way could result in one 24 offender being subject to a 25 prohibition while another 26 offender, guilty of the same very 27 acts, would not if, by Official Court Reporters 18 1 happenstance, the victim in the 2 former situation responded to the 3 offence adversely and the victim 4 in the latter did not. Next, it 5 advances the purpose of the 6 section, 7 [And by that I think he meant Section 109,] 8 in that the risk of future misuse 9 of firearms must bear some 10 relationship to the degree to 11 which the conduct under 12 consideration derogates from that 13 which the law and society in 14 general expects. Conduct that 15 involves a violation of a child's 16 bodily integrity in the manner 17 posited is a significant 18 derogation from those standards 19 and thus a person who commits such 20 acts may be considered 21 sufficiently at risk to misuse 22 firearms to warrant to warrant the 23 imposition of the prohibition. 24 Finally, this approach is, in my 25 view, practical. 26 I believe that Lonegren is the correct 27 interpretation of the term "violence" in Official Court Reporters 19 1 Section 109. In this case, there was no 2 actual or threatened violence as that term is 3 used in Section 109 with respect to the 4 victim. Accordingly, I find that there is no 5 basis for the mandatory firearms prohibition. 6 In saying this, I emphasize that sexual 7 assault is always very serious and it has 8 profound effects on its victims regardless of 9 the circumstances. I think that I have made 10 this very clear early on in my decision. 11 It is also important to note that a 12 finding of violence for the purpose of 13 Section 109 will be fact-specific and the 14 absence of physical injury certainly will not 15 always be determinative. However, in this 16 case there was no violence, as that term is 17 understood, that accompanied the touching. 18 Mr. T., please stand. 19 Upon being convicted of sexual assault and 20 upon consideration of the circumstances and 21 the nature of the offence, as well as your own 22 personal circumstances, I sentence you to a 23 term of 36 months in prison. 24 This term will be reduced by the amount of 25 time that you have spent in custody awaiting 26 the disposition of your case on a one for one 27 basis which, as of today, is seven months and Official Court Reporters 20 1 28 days. 2 Mr. T., you have expressed a desire and a 3 willingness to address your personal problems 4 that you see as being the root cause of your 5 legal problems. You will no doubt be offered 6 many opportunities in prison to take 7 programming to help you in dealing with 8 alcohol abuse and the trauma that you 9 suffered. Please take advantage of these. 10 You are in charge of yourself, and it is you 11 who must decide to change and to do what you 12 need to do to make your life better. People 13 who are convicted of crimes can and do turn 14 their lives around. You have told me that you 15 know you need to do that, and I hope that you 16 do. It's up to you now. 17 You can sit down. 18 There will also be an order for samples of 19 bodily fluids to be taken from Mr. T. for DNA 20 analysis, and an order that he comply with the 21 Sex Offender Information Registration Act 22 pursuant to Section 490.012 of the Criminal 23 Code. The duration of that order will be for 24 20 years. 25 Finally, I will make the recommendation 26 that Mr. T. be permitted to serve his sentence 27 in the Northwest Territories which I would Official Court Reporters 21 1 hope would enable him to take advantage of 2 programs that are more relevant to his 3 cultural heritage. 4 Is there anything else, counsel? 5 MR. FUGLSANG: No, Your Honour. 6 MR. ONYSKEVITCH: Nothing from the Crown, Your 7 Honour. 8 THE COURT: Thank you, for your 9 submissions, Mr. Fuglsang, and please carry my 10 gratitude back to Mr. Praught for his very 11 helpful submissions. We are adjourned. 12 ------------------------------------------- 13 Certified to be a true and accurate transcript pursuant 14 to Rules 723 and 724 of the Supreme Court Rules, 15 16 17 18 ____________________________ 19 Lois Hewitt, Court Reporter 20 21 22 23 24 25 26 27 Official Court Reporters 22 R. v. T.(P.S.) 2012 NWTSC 86 S-1-CR2012000048 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - T. (P.S.) _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice K. Shaner, at Yellowknife in the Northwest Territories, on November 19th A.D., 2012. _________________________________________________________ APPEARANCES: Mr. K. Onyskevitch: Counsel for the Crown Mr. P. Fuglsang: 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 Upon Direction of Presiding Justice, this transcript has been modified to identify Complainant/Witness by initials Official Court Reporters
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