Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
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
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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.
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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
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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
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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
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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,
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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
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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,
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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13 Certified to be a true and
accurate transcript pursuant
14 to Rules 723 and 724 of the
Supreme Court Rules,
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19 Lois Hewitt,
Court Reporter
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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
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.