Supreme Court

R. v. Jacobson, 2014 NWTSC 33	S-1-CR-2012-000118



IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF:


HER MAJESTY THE QUEEN






- v -






GILBERT WILSON JACOBSON

_________________________________________________________ Transcript of the Reasons for Sentence delivered by the Honourable Justice L. A. Charbonneau, in Tuktoyaktuk, in the Northwest Territories, on the 14th day of March, 2014
_________________________________________________________



APPEARANCES:

Ms. A. Piche:	Counsel on behalf of the Crown

Mr. T. Boyd:	Counsel on behalf of the Accused





--------------------------------------------------------- Charge under s. 271 Criminal Code of Canada










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1	THE COURT:	I am ready to give my decision

2	on this case.	I thank counsel for their

3	submissions this morning.	Obviously, at the

4	conclusion of the proceedings yesterday and last

5	night, I did spend some time thinking about this

6	case as I was aware of at least the evidence, and

7	I am also aware of the principles of law that

8	apply in a case like this.	So I had some time to

9	think about this matter since we received the

10	verdict yesterday, and this morning I have had

11	additional time to consider the submissions that

12	were presented by counsel.

13	Before I give my reasons for my decision

14	this morning, I just want to remind everyone that

15	there is a publication ban in place which

16	prohibits the publication of any information that

17	could identify the victim in this matter.	I am

18	going to be referring to her by name in my

19	decision, but I want the court reporter to use

20	initials only in the transcript.	If I refer to

21	either of the young girls who were involved in

22	this matter by name in my reasons, I also want

23	initials used in the transcript.

24	Yesterday a jury from this community found

25	Mr. Jacobson guilty of sexual assault for an

26	incident that happened back in December of 2009,

27	and today it is my responsibility to decide what

1	his sentence should be for this crime.	Both

2	lawyers have talked about the evidence and the

3	factual basis for the sentencing this morning,

4	and I think it is important to be clear as to

5	what that is.

6	The jury's verdict does not leave any

7	ambiguity as to the findings they made.	To find

8	Mr. Jacobson guilty, they had to have rejected

9	his version of events, that the sexual activity

10	that occurred that night was at D.L.P.'s

11	suggestion and with her consent in exchange for

12	alcohol and drugs.	The jury had to have

13	concluded instead that Mr. Jacobson had sexual

14	intercourse with her either when she was

15	unconscious or when she was so highly intoxicated

16	that she could not consent validly to the

17	activity; in other words, that she was either

18	passed out or completely incapacitated by

19	alcohol, although she may not have been actually

20	passed out.

21	We know from the two other young women who

22	testified at his trial that they were at the

23	house drinking with D.L.P. and Mr. Jacobson.	We

24	know that a lot of alcohol was consumed that

25	night, and we know that at one point the police

26	showed up at the door and were banging on the

27	door.	How and why the police came to be at

1	Mr. Jacobson's house, why these two other young

2	girls were so concerned about being found by the

3	police is not something that is explained in the

4	evidence, but what they were both clear about was

5	that they ran out the back door to evade the

6	police and that when they left, Ms. P. was still

7	at the house and so was Mr. Jacobson.

8	We also know that at 7:00 in the morning

9	D.L.P. walked into her brother's house half

10	naked, very cold, and extremely intoxicated to

11	the point that she fell down as she was getting

12	in the door.	Based on this, the only conclusion

13	is that at some point between the time the two

14	friends left and the time that D.L. arrived at

15	her brother's house, Mr. Jacobson took advantage

16	of the fact that she was in a highly intoxicated

17	state and had sexual intercourse with her.

18	D.L.P. talked about an incident that she

19	says happened several months later last spring.

20	She alleged that she and Mr. Jacobson came upon

21	one another on the street and that he threatened

22	her.	The threat was not an element of the

23	offence of sexual assault, so the conviction does

24	not mean that the jury accepted her evidence on

25	that point, and it does not that mean that they

26	were convinced beyond a reasonable doubt that

27	that threat was made.	It is not something that

1	flows inevitably from the verdict or necessarily

2	from the verdict.	It is I, as the trial judge,

3	who has to decide whether that fact has been

4	proven beyond a reasonable doubt.	If so, it

5	would be a significantly aggravating factor.	I

6	am unable to attach any weight to Mr. Jacobson's

7	denial of that threat because the jury concluded

8	that he was not truthful about the sexual

9	activity, which taints his entire evidence.	That

10	leaves Ms. P.'s evidence on the point, and I have

11	considered it carefully.	On the whole, I cannot

12	say that I am sure that this threat was made.

13	Maybe it was; maybe it was not.	But I have to

14	give the benefit of that doubt to Mr. Jacobson,

15	so I am not taking it into account in my decision

16	today.

17	In a sentencing, one of the things I have to

18	consider are the circumstances of Mr. Jacobson.

19	His counsel, this morning, outlined those

20	circumstances in a lot of detail.	I will not

21	repeat now everything that has been said except

22	to say that Mr. Jacobson is an aboriginal man and

23	he grew up in this region.	He did show, in his

24	life, initiative, and an ability to get training

25	and get an education, something that not everyone

26	in this jurisdiction is able or willing to do.	I

27	heard he has training and has worked as a heavy

1	equipment operator.	He has also travelled out of

2	the jurisdiction to acquire a certificate in

3	environmental science.	He has been employed and

4	he has a good work record.	It is also to his

5	credit that he has raised three of his children

6	as a single parent with the assistance of his own

7	mother from the point in time when he separated

8	from his spouse in 1997.	I have taken what I

9	have heard about him and in particular the

10	positive aspects of his background into

11	consideration.

12	I have taken into account that he is an

13	aboriginal offender, and I have kept in mind the

14	principles that the Supreme Court of Canada has

15	outlined with respect to the approach that courts

16	must take when sentencing aboriginal offenders.

17	In any sentencing, in addition to

18	considering the facts of the offence and

19	circumstances of the offender, the Court has to

20	apply the sentencing principles that are set out

21	in the Criminal Code, and the fundamental

22	sentencing principle is proportionality.	That

23	means a sentence has to be proportionate to the

24	seriousness of the offence and to the degree of

25	blameworthiness of the offender.	Every other

26	sentencing principle flows from that fundamental

27	one.

1	Sadly, very sadly, this scenario, a man

2	sexually assaulting a woman who is passed out or

3	very intoxicated, is very common in the Northwest

4	Territories.	It is a crime that seems to happen

5	to women of all ages.	It is a crime that seems

6	to be committed by men of all ages.	There are so

7	many cases that involve this type of sexual

8	assault that this Court has gone as far as to

9	call it an epidemic.	There is a long list of

10	victims just like D.L.P. who have to spend the

11	rest of their lives living with the consequence

12	of having been violated in this way, and there is

13	a long list of offenders like Mr. Jacobson who

14	have been sent to jail for a long time for

15	committing this type of crime.	There are many

16	families of victims and many families of

17	offenders who have suffered greatly as a result

18	of this type of crime, and unfortunately this

19	case now adds itself to that list.

20	The Court does not know what it will take to

21	stop these types of crimes from being committed

22	in our communities.	The Court does not have

23	those answers.	If anyone can change things, it

24	is the people who live in the communities, and

25	there is very little the Court can do except

26	repeat the same message that this is wrong, that

27	it causes harm.	The harm that it causes is

1	obvious from the victim impact statements that

2	were filed in this case.

3	Because of the seriousness of this type of

4	crime, which is a serious violation of the

5	victim's personal and sexual integrity, the

6	Courts in this jurisdiction have long held that

7	the most important sentencing principles when

8	sentencing someone for committing this crime are

9	denunciation and deterrence.	Sentences imposed

10	need to show clearly that this conduct is

11	completely unacceptable.	That is what

12	denunciation is.	They also need, to the extent

13	possible, to discourage other people from

14	committing similar offences.

15	I realize that a person who is highly

16	intoxicated and about to sexually assault someone

17	else is not going to be thinking about the

18	sentences that are imposed by this Court for

19	these types of crimes.	But hopefully, maybe

20	deterrence can operate before the drinking

21	starts.	Hopefully it can operate to the people

22	who have unhealthy relationships with alcohol and

23	other issues to do something about it so they do

24	not end up drunk with no self-control, committing

25	these serious offences, hurting their fellow

26	community members.

27	All this to say deterrence and denunciation

1	are the dominant sentencing principles in a case

2	like this one.	Other principles such as

3	rehabilitation must be kept in mind, but they do

4	take second place.

5	Restraint is always an important sentencing

6	principle, one that applies even more so when

7	sentencing aboriginal offenders.	As I have said,

8	I have taken into account that aspect of

9	Mr. Jacobson's circumstances, including the fact

10	that he attended residential school and including

11	the fact that his generation is one that saw a

12	great change happening in this region.	I think

13	the fact that his parents were fluent in

14	Inuvialuktun and that Mr. Jacobson does not speak

15	that language is a very good illustration of some

16	of the changes that occurred within the span of

17	that generation.

18	The starting point on sentencing for

19	offences of this kind is three years'

20	imprisonment, as was noted by the Court of Appeal

21	in R. v. A.J.P.J. and a host of other decisions

22	of this Court as well as other appellate

23	decisions.	That is not a minimum sentence, and

24	it is not a mandatory sentence.	It is simply a

25	starting point that reflects the seriousness of

26	this type of conduct and the devastating impact

27	it has on its victims.

1	On this specific offence, I have to say I

2	find Mr. Jacobson's blameworthiness is quite

3	high.	The circumstances revealed by the evidence

4	are deeply disturbing.

5	There are aggravating and mitigating factors

6	that must be considered in the time the Court

7	imposes sentences.	Here, there are aggravating

8	factors, significant ones.	The first is the age

9	of the victim.	She was only 17 at the time.

10	This is now an aggravating factor specifically

11	set out in the Criminal Code, but this Court has

12	always treated that factor as an aggravating

13	factor.

14	The second aggravating factor is that she

15	was sexually assaulted when she was in a

16	particularly vulnerable position by virtue of her

17	high state of intoxication.	The fact that D.L.P.

18	should not have been drinking underage, the fact

19	that she was not behaving in a particularly good

20	way that evening is one thing, and it is part of

21	these circumstances.	She and her friends were,

22	one could say, out of control with their partying

23	that evening considering what I heard about how

24	much they had to drink.	But that changes nothing

25	to the fact that ultimately she was in a very

26	vulnerable position when Mr. Jacobson assaulted her.

27	I also find it aggravating that Mr. Jacobson

1	supplied some of the liquor that was consumed.

2	In itself, supplying liquor to a minor is a

3	crime, but to do so in these types of

4	circumstances is particularly blameworthy.

5	I have also taken into account

6	Mr. Jacobson's criminal record.	It does not

7	include offences of a sexual nature, but it does

8	include crimes against people.	By this, I mean

9	assault; there is a break and enter and assault

10	for which he received a not insignificant jail

11	term, although it was in the territorial range.

12	I agree with the Crown that the criminal record

13	is not particularly significant, but it is a

14	factor.	I am also mindful that a person should

15	not be punished over and over again for the

16	convictions that appear on their criminal record.

17	I have considered whether there are

18	mitigating factors here, and I find it difficult

19	to find any.	There certainly is no evidence of

20	any kind of remorse here.	Mr. Jacobson's version

21	of events, which the jury must have concluded was

22	fabricated, was highly contemptuous to D.L.P.	He

23	claimed that she prostituted herself for alcohol

24	and drugs, that she fabricated this allegation to

25	get herself out of a difficult situation after

26	she arrived in the state she did at her brother's

27	house.	He claimed that she extorted more alcohol

1	from him by telling him she would not charge him

2	if he gave her more alcohol.	And during his

3	evidence he volunteered information about her

4	sexual activity with another person when it was

5	certainly not in response to a question that

6	related to that topic.

7	He cannot be treated more severely for

8	having exercised his right to have a trial, of

9	course.	I am simply noting that his evidence was

10	contemptuous and demeaning to the complainant and

11	confirms his absolute lack of remorse or any

12	insight into his behaviour.	The Court hopes that

13	someday he will come to be in a different place.

14	As I have said, there are aspects of the

15	evidence we have heard in this trial that are

16	very, very disturbing and that I think the

17	community should be concerned about.

18	It was clear on the evidence that these

19	girls had been at Mr. Jacobson's house many times

20	before.	It is clear that they saw his house as a

21	place they could go sit around and drink alcohol.

22	I find it disturbing that a man of Mr. Jacobson's

23	age, who has children himself, would welcome

24	teenagers in his house for drinking parties,

25	sharing and doing drugs with them, be prepared to

26	supply more liquor to them.

27	As I said, these particular teenagers were

1	not behaving in an ideal way that night, far from

2	it.	But sometimes that is how teenagers act.

3	Sometimes that is how adults act.	But certainly

4	when young people act in this way, one would

5	expect that adults would try to stop them.	If

6	they were not able to stop them, one would hope

7	that at least they would not enable them, that

8	they would not help them continue drinking more

9	and smoking more drugs.	You would expect that

10	adults would try to protect and guide younger

11	people, not contribute to getting them completely

12	intoxicated and then take advantage of them.

13	The harm that this type of offence causes,

14	as I have said, is very real, and it is

15	eloquently shown in the three victim impact

16	statements that were filed in this case.

17	In addition, I found D.L.P.'s hurt very

18	obvious during her testimony.	At times she came

19	across as somewhat hostile, but she did break

20	down when she started talking about her blackout.

21	Her hurt was obvious to me.	Her brother

22	testified as well.	He talked about being in

23	shock that morning when he saw her walk in.	He

24	repeats that in his victim impact statement.	His

25	hurt showed very differently from hers, but he

26	too was evidently, to me at least, very upset

27	during his evidence.	As for D.L.'s father, he

1	was, as he was required to be, very stoic when he

2	sat with her during her evidence as a support

3	person.	He also was when he read out his victim

4	impact statement in court this morning.	But

5	still, it is obvious to me that he is very hurt

6	and upset and has suffered harm as a result of this.

7	I also had occasion during the week to see

8	some of the people who were here to support

9	Mr. Jacobson, which I assume are members of his

10	family or are friends.	I am sure they are

11	devastated about what has happened here, and I am

12	sure they are hurt and devastated about the fact

13	that he will be taken away from this community

14	for some time.	That is what is so sad about

15	these types of cases.	They cause harm to a great

16	number of people.

17	The Crown's position is that the term of

18	imprisonment I should impose in this case is four

19	years, which is the same sentence that was

20	imposed in the case of R. v. A.J.P.J. in the

21	Court of Appeal for facts that are not dissimilar

22	to the facts here.

23	The defence acknowledges that a jail term

24	has to be imposed but asks me to limit it to

25	two-and-a-half years.	Defence argues that this

26	would be sufficient to achieve the goals of

27	sentencing.	I am unable to agree that there is

1	any basis here for imposing a sentence in that

2	range.	To do so would not reflect the

3	significant aggravating factors that I have

4	talked about, and it would not reflect the

5	blameworthiness of this offender for committing

6	this particular crime.

7	There is nothing joyful about sentencing

8	someone to a long jail term.	There is really

9	nothing that feels pleasant about it.	The Court

10	has compassion for the consequences that this

11	decision will have on Mr. Jacobson and on his

12	family, but those are the consequences of his own

13	actions.	The Court's response to this type of

14	crime has to be proportionate to its seriousness,

15	and it has to take into account the aggravating

16	factors.

17	The Crown has asked for a number of

18	ancillary orders, and I will make those orders.

19	There will be a DNA order because this is a

20	primary designated offence.	There will be an

21	order that Mr. Jacobson comply with the Sex

22	Offender Information Registry Act for a period of

23	20 years.	There will be a firearms prohibition

24	order that will commence today and expire

25	10 years after his release from imprisonment.

26	The law now forces the Court to impose a victim

27	of crime surcharge, but these incidents arose

1	before that amendment.	So I have discretion to

2	waive it, and I will for obvious reasons.	I am

3	also going to make an order that any exhibits

4	seized in this matter be returned to their

5	rightful owners if that is appropriate;

6	otherwise, they are to be destroyed at the

7	expiration of the appeal period.

8	Mr. Jacobson, stand up, please.	For the

9	sexual assault that you committed against D.L.P.,

10	I sentence you to a term of imprisonment of

11	four years.	You can sit down.

12	THE ACCUSED:	How long?

13	THE COURT:	You can sit down.	Four years.

14	Now, I will, Madam Clerk, ask you to endorse

15	on the warrant of committal the Court's strong

16	recommendation that Mr. Jacobson be permitted to

17	serve his term of imprisonment in the North to

18	facilitate his family's ability to have access to

19	him so that he can continue to benefit from their

20	support, which he obviously has.

21	Before we close court, I want to thank both

22	counsel for their work on this case and the court

23	staff for their hard work as well.

24	We will now close court.

25	-----------------------------------------------------

26	PROCEEDINGS ADJOURNED ACCORDINGLY

27	-----------------------------------------------------

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1	CERTIFICATE OF TRANSCRIPT

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3

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5	I, the undersigned, hereby certify that

6	the foregoing pages are a complete and accurate

7	transcript of the proceedings taken down by me in

8	shorthand and transcribed from my shorthand notes to

9	the best of my skill and ability.

10	Dated at the Hamlet of Tuktoyaktuk, in

11	the Northwest Territories, this 14th day of March,

12	2014.

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18	Tiffany Low

19	Court Reporter

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