Supreme Court

Decision Information

Decision information:

Transcript of the Reasons for Sentence

Decision Content

 

 

 

 

 

             R. v. Shatilla, 2017 NWTSC 25           S-1-CR-2015-000014

 

 

 

             IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

 

             IN THE MATTER OF:

 

 

 

                               HER MAJESTY THE QUEEN

 

 

 

 

 

                                       - V -

 

 

 

 

 

                                  DENNIS SHATILLA

 

             _________________________________________________________

 

             Transcript of the Reasons for Sentence by The Honourable

 

             Justice K. M. Shaner, sitting in Hay River, in the

 

             Northwest Territories, on the 10th day of April, 2017.

 

             _________________________________________________________

 

 

 

             APPEARANCES:

 

 

 

             Mr. B. MacPherson:         Counsel for the Crown

 

             Mr. M. Hansen:             Counsel for the Defence

 

                    ---------------------------------------

 

                  Charge under s. 271 Criminal Code of Canada

 

               No information shall be published in any document or

             broadcast or transmitted in any way which could identify

             the victim or a witness in these proceedings pursuant to

                      s. 486.4 of the Criminal Code of Canada

 

 

 

      Official Court Reporters

 

 

 

 

 

 

 

 

 

 

         1      THE COURT:             I am going to preface my

 

         2          remarks with this:  Sentencing is the worst

 

         3          aspect of my job.  It often means that I have

 

         4          to send somebody to jail, significantly disrupt

 

         5          their life and the lives of their loved ones,

 

         6          and I say this because it is important for you

 

         7          to know, Mr. Shatilla, that I have put a lot

 

         8          of thought into this.  I have given a great

 

         9          deal of consideration to the circumstances

 

        10          of the case, the submissions of your lawyer,

 

        11          and the submissions of Mr. MacPherson.

 

        12               Mr. Shatilla was found guilty of sexual

 

        13          assault following a jury trial, which was held

 

        14          here in Hay River January 30th until February

 

        15          1st, 2017.  There is a publication ban respecting

 

        16          information that could identify the victim in

 

        17          this case, and accordingly I will refer to her

 

        18          as the victim in these reasons and not by her

 

        19          name.

 

        20               The circumstances of the offence came out

 

        21          primarily through the evidence of the victim,

 

        22          and the circumstances are these:

 

        23               During the evening in the early part of

 

        24          2014 Mr. Shatilla was visiting the home of the

 

        25          victim's father.  The victim was there.  The

 

        26          two men were friends.  As well, Mr. Shatilla

 

        27          was and continues to be the spouse of the

 

 

 

 

 

 

       Official Court Reporters

                                        1


 

 

 

 

         1          victim's cousin.  The victim was 13 at the

 

         2          time and Mr. Shatilla was 19.

 

         3               The victim did not live at her father's

 

         4          home all the time; sometimes she lived with

 

         5          her grandmother.  She said in her evidence

 

         6          that she went back and forth between the

 

         7          two houses and she did have a bedroom at her

 

         8          father's home.  The victim also said that her

 

         9          father was drinking a lot during that period

 

        10          of time, and that evening the two men, her

 

        11          father and Mr. Shatilla, were drinking beer

 

        12          in the living room.  The victim was in the

 

        13          living room with them.  She was sitting in

 

        14          a chair playing a videogame.

 

        15               At some point her father fell asleep in

 

        16          the living room, although when he testified

 

        17          he said he had no recollection of any of the

 

        18          events of that evening.  After the father fell

 

        19          asleep, Mr. Shatilla picked up the victim from

 

        20          the chair in which she was sitting and he carried

 

        21          her, as she described it, "like a groom carries a

 

        22          bride", into her bedroom.  She said this made her

 

        23          feel nervous and scared and that she was afraid

 

        24          to call out to her father.

 

        25               Mr. Shatilla placed her on the bed in her

 

        26          bedroom and asked her if she wanted to do it.

 

        27          At first she said she did not answer, but then

 

 

 

 

 

 

       Official Court Reporters

                                        2


 

 

 

 

         1          she told him no.  When he initially tried to

 

         2          pull her pants off she pushed his hands away

 

         3          and she pushed him to try and get him off of

 

         4          her.  He pinned her to the bed with his weight,

 

         5          however, and proceeded to take her pants and her

 

         6          underwear off.  He placed his hand over her mouth

 

         7          and he had sexual intercourse with her.

 

         8               The victim heard her father stir and she

 

         9          managed to push Mr. Shatilla off of her this

 

        10          time.  Mr. Shatilla told her not to tell anyone

 

        11          what had happened.  He got dressed and went back

 

        12          into the living room.  The victim got dressed,

 

        13          and she left the home and went to her cousin's

 

        14          house.

 

        15               Much of the information that is before

 

        16          me about Mr. Shatilla comes from a pre-sentence

 

        17          report which was prepared by Probation Services

 

        18          following the trial.  Mr. Shatilla is a young

 

        19          man, he is currently 22 years of age.  He is

 

        20          indigenous and he grew up in Buffalo Narrows,

 

        21          in Saskatchewan.  According to the pre-sentence

 

        22          report the only other place he has lived is Hay

 

        23          River, where his wife and her family are from.

 

        24               He was raised in what he describes in the

 

        25          report as a stable family.  He got along well

 

        26          with his parents, who he indicated did not abuse

 

        27          alcohol and did not abuse or neglect Mr. Shatilla

 

 

 

 

 

 

       Official Court Reporters

                                        3


 

 

 

 

         1          and his siblings.  Mr. Shatilla was diagnosed

 

         2          with attention deficit disorder and attention

 

         3          deficit hyperactivity disorder by the time he was

 

         4          eight years old.  He struggled greatly in school,

 

         5          and it appears he did not progress beyond grade

 

         6          7.  He told the author of the pre-sentence report

 

         7          that his learning difficulties led him to feel

 

         8          dumb and to have low self-esteem.  Ultimately

 

         9          as a result he began to rebel.  He received

 

        10          numerous suspensions and his parents finally

 

        11          took him out of school when he was 13 or 14.

 

        12               Mr. Shatilla has not sustained long-term,

 

        13          permanent employment.  He worked for a year

 

        14          at a store in Buffalo Narrows when he was 15.

 

        15          He then worked for his parents who ran an RV

 

        16          park there.  He started working in Hay River

 

        17          as a labourer on and off for businesses here

 

        18          when he was 18.  He indicated to the report's

 

        19          author that he wishes to upgrade his education

 

        20          and skills and hopefully obtain his GED.

 

        21               It appears from the report Mr. Shatilla

 

        22          is a social drinker, and up to the point of

 

        23          his recent incarceration, he used cannabis on

 

        24          a daily basis.  He had planned to curb his use

 

        25          in any event because it was a source of friction

 

        26          between him and his spouse.  Mr. Shatilla and

 

        27          his spouse have two young children and another

 

 

 

 

 

 

       Official Court Reporters

                                        4


 

 

 

 

         1          child is due this month.  They recently secured

 

         2          housing in Buffalo Narrows, Saskatchewan.  His

 

         3          wife's family is here in Hay River.

 

         4               The Criminal Code sets out the principles

 

         5          and objectives of sentencing that provide

 

         6          a framework to guide judges in imposing

 

         7          a sentence that is just and appropriate.

 

         8          The objectives are these:  Denunciation

 

         9          of unlawful conduct; deterrence, aimed both

 

        10          at the offender and at the public at large;

 

        11          separating offenders from society where it

 

        12          is necessary; rehabilitation; reparation;

 

        13          and promoting a sense of responsibility in

 

        14          offenders and acknowledgment of the harm

 

        15          done to victims and to the community.

 

        16               The emphasis that is placed on each of

 

        17          these objectives very much depends on what

 

        18          the offence is, the circumstances under which

 

        19          it was committed, and the circumstances of the

 

        20          offender.  Where the offence involves the abuse

 

        21          of a person under 18 years of age, as is the

 

        22          case here, the Criminal Code requires the

 

        23          sentencing judge to give primary consideration

 

        24          to the objectives of denunciation and deterrence.

 

        25               The Criminal Code also sets out a number

 

        26          of principles to be applied in determining

 

        27          what is an appropriate sentence.  The most

 

 

 

 

 

 

       Official Court Reporters

                                        5


 

 

 

 

         1          important principle in sentencing is that

 

         2          of proportionality.  That is, a sentence must

 

         3          be proportionate to the gravity of the offence

 

         4          and the degree of responsibility of the offender.

 

         5               In determining what is a fit sentence judges

 

         6          are also guided by the principles of restraint

 

         7          and parity.  The principle of restraint requires

 

         8          consideration of all available sanctions, other

 

         9          than imprisonment, that are reasonable in the

 

        10          circumstances, with particular attention to

 

        11          the circumstances of indigenous offenders.

 

        12          Parity of sentence means that there should

 

        13          be similar treatment for like offences and

 

        14          offenders, bearing in mind that it does not

 

        15          call for identical sentences to be imposed

 

        16          for the same crime.  That is because no two

 

        17          cases are identical, no two offenders are

 

        18          identical.

 

        19               For many years this Court has followed

 

        20          the principles articulated by the Alberta Court

 

        21          of Appeal in R. v. S.(W.B.), which was filed by

 

        22          the Crown, (1992) 73 CCC (3d) 530; 1992 CanLII

 

        23          2761; R. v. Sandercock, [1986] 1 WWR 291; 1985

 

        24          ABCA 218 (CanLII); and more recently the case

 

        25          of R. v. Arcand, [2011] 7 WWR 209; 2010 ABCA

 

        26          363 (CanLII).

 

        27               The S.(W.B.) case, among other things,

 

 

 

 

 

 

       Official Court Reporters

                                        6


 

 

 

 

         1          sets out a four-year jail term as the starting

 

         2          point for a serious sexual assault on a child

 

         3          by a person in a position of trust or authority.

 

         4          It is also cited often as an articulation of the

 

         5          sad consequences of sexual assault on children.

 

         6          Sandercock stands for the proposition that for

 

         7          a serious sexual assault the starting point is

 

         8          three years jail, assuming a mature accused with

 

         9          no previous criminal record.  Arcand confirms

 

        10          this, as well as articulating more thoroughly

 

        11          what constitutes a serious sexual assault.  These

 

        12          are not, to be clear, minimum sentences.  Judges

 

        13          must consider aggravating and mitigating factors

 

        14          and increase or reduce the sentence accordingly.

 

        15               Section 718.2 of the Criminal Code deems

 

        16          a number of factors to be aggravating, although

 

        17          it is not an exhaustive list.  These include

 

        18          evidence that the offender abused a person

 

        19          under 18 years of age and that the offender

 

        20          was in a position of trust in relation to

 

        21          the victim.

 

        22               Now, with respect to whether or not

 

        23          Mr. Shatilla was in a position of trust in

 

        24          relation to the victim the Crown and defence

 

        25          disagree.

 

        26               In the case of R. v. G.L., 2011 NWTSC 36,

 

        27          Justice Vertes considered whether an offender,

 

 

 

 

 

 

       Official Court Reporters

                                        7


 

 

 

 

         1          who was a family friend and who had assaulted

 

         2          the victims in their home, was in a position of

 

         3          trust, thus elevating the starting point to the

 

         4          four years contemplated in S.(W.B.).  He found

 

         5          the offender was not in a position of trust,

 

         6          stating:

 

         7

 

         8               For there to be a position of

 

         9               trust there must be some ongoing

 

        10               relationship, some status between

 

        11               the offender and the child, that

 

        12               is more than merely occasional

 

        13               or transitory.

 

        14

 

        15               In the circumstances here I am unable to

 

        16          conclude that Mr. Shatilla was in a position

 

        17          of trust as that term is contemplated in

 

        18          S.(W.B.), and therefore, it is the three-year

 

        19          starting point which should apply.  That is not

 

        20          to say, however, that his status as a friend and

 

        21          relative and his being a frequent visitor to the

 

        22          home are not aggravating factors.

 

        23               There are a number of aggravating factors

 

        24          that arise out of the circumstances of this

 

        25          particular case.  Mr. Shatilla is the husband

 

        26          of the victim's cousin, and at the time a

 

        27          friend, no doubt a trusted one.  He was a

 

 

 

 

 

 

       Official Court Reporters

                                        8


 

 

 

 

         1          frequent visitor to the house.  The victim

 

         2          was 13, the offender was 19 with a child and

 

         3          a wife and another child on the way at the

 

         4          time of the offence.

 

         5               I cannot be certain that the offence was

 

         6          premeditated, but it was certainly predatory

 

         7          and opportunistic.  Mr. Shatilla seized on the

 

         8          opportunity to sexually assault the victim once

 

         9          her father fell asleep.  He took advantage of

 

        10          her youth, her fear and her trust in adults.

 

        11          He pinned her down with his weight, held his

 

        12          hand over her mouth, and he raped her, and

 

        13          then he told her not to tell anyone.  Clearly

 

        14          he knew what he was doing was wrong.

 

        15               In contrast, there is very little by way

 

        16          of mitigation.  There is no evidence of remorse

 

        17          and there was no guilty plea.  That Mr. Shatilla

 

        18          exercised his right to a trial is certainly not

 

        19          aggravating, but the mitigative effect of sparing

 

        20          the victim the need to testify is not available

 

        21          to him.

 

        22               The Crown is seeking a custodial sentence

 

        23          of four and a half to five years.  It is the

 

        24          Crown's position that a sentence in this

 

        25          range is necessary to attain the objectives

 

        26          of sentencing, particularly denunciation

 

        27          and specific and general deterrence which,

 

 

 

 

 

 

       Official Court Reporters

                                        9


 

 

 

 

         1          as I noted earlier, must be given primary

 

         2          consideration.  The defence submits that

 

         3          the sentence should be in the range of

 

         4          three to three and a half years.

 

         5               This is clearly and definitively a very

 

         6          serious sexual assault, and in my view the

 

         7          ends of justice cannot be achieved unless

 

         8          a significant custodial sentence is imposed.

 

         9          Sexual assault is all too common in the

 

        10          Northwest Territories, and sexual crimes

 

        11          against children are particularly disturbing

 

        12          and harmful, not only to the victims, but

 

        13          to our society generally.  The consequences

 

        14          of sexual assault for victims are profound.

 

        15               In R. v. S.(W.B.), Supra Justice MacDonald

 

        16          of the Court of Appeal of Alberta considered

 

        17          the effects of sexual abuse crimes against

 

        18          children.  He stated:

 

        19

 

        20               When a man has assaulted a child

 

        21               for his sexual gratification, then

 

        22               even if no long-lasting physical

 

        23               trauma is suffered by the child it

 

        24               is reasonable to assume that the

 

        25               child may have suffered emotional

 

        26               trauma, the effects of which may

 

        27               survive longer than bruises or

 

 

 

 

 

 

       Official Court Reporters

                                        10


 

 

 

 

         1               broken bones and may even be

 

         2               permanent.

 

         3

 

         4               He goes on to say:

 

         5

 

         6               From this information it is

 

         7               abundantly clear that there is

 

         8               one salient fact which must govern

 

         9               the approach to be taken by the

 

        10               Court in sentencing in cases of

 

        11               sexual abuse of children: that in

 

        12               every case of the sexual abuse of

 

        13               a child there is a very real risk

 

        14               of very real harm to the child.

 

        15               This cardinal fact can be relied

 

        16               upon even when there is no expert

 

        17               or non-expert evidence called in

 

        18               the particular case to establish

 

        19               that the particular child, who

 

        20               was the victim, has suffered

 

        21               some specific traumatic effect

 

        22               or effects.

 

        23

 

        24               Mr. Shatilla bears significant moral

 

        25          blameworthiness in this offence.  Children

 

        26          are so vulnerable.  They are in a weak position

 

        27          in relation to adults.  Adults hold all of

 

 

 

 

 

 

       Official Court Reporters

                                        11


 

 

 

 

         1          the cards.  Adults are supposed to protect

 

         2          children, not harm them.  They are supposed

 

         3          to be responsible.  Children should be able

 

         4          to trust them, particularly in that child's

 

         5          own home.

 

         6               In her victim impact statement the victim

 

         7          said she had to take counselling, she has taken

 

         8          antidepressants and, most disturbingly, she was

 

         9          hospitalized following a suicide attempt, which

 

        10          she relates to this event, and she is afraid to

 

        11          be alone.

 

        12               I have considered Mr. Shatilla's young

 

        13          age.  He is a very young adult, and when this

 

        14          happened he was even younger, although as the

 

        15          Crown pointed out he was a mature young adult

 

        16          with a family.  I believe he was mature enough

 

        17          to know that what he was doing was wrong.  Being

 

        18          young, however, he has significant potential for

 

        19          rehabilitation and this militates in favour of

 

        20          a somewhat reduced period of incarceration and

 

        21          must be taken into account.

 

        22               I have considered Mr. Shatilla's indigenous

 

        23          status.  Defence counsel agreed with the Crown

 

        24          that there are no systemic Gladue factors which

 

        25          have been identified.  Mr. Shatilla, as I said,

 

        26          had a stable upbringing and a good home.

 

        27          However, his lawyer argued that Mr. Shatilla's

 

 

 

 

 

 

       Official Court Reporters

                                        12


 

 

 

 

         1          status should nevertheless be factored in and

 

         2          considered because he is still a member of

 

         3          a demographic group which has generally been

 

         4          subject to significant systemic challenges

 

         5          in this country.

 

         6               It may well be that there are cases where

 

         7          the fact that a person is indigenous may in

 

         8          and of itself serve to diminish his or her

 

         9          moral blameworthiness or otherwise lead a

 

        10          Court to impose a more lenient sentence.

 

        11          This is not one of those cases.  This was

 

        12          a serious crime with substantial and prolonged

 

        13          consequences for the victim.  The sentence

 

        14          must send a strong and unequivocal message

 

        15          to Mr. Shatilla, the victim and this community,

 

        16          that sexual assaults will not be tolerated

 

        17          and that those that commit these offences

 

        18          will be subject to serious consequences.

 

        19               Mr. Shatilla, can you please stand up.

 

        20          Dennis Shatilla, upon being convicted of

 

        21          sexual assault and upon consideration of

 

        22          the circumstances and nature of this offence,

 

        23          as well as your personal circumstances, your

 

        24          indigenous heritage and your age, I sentence

 

        25          you to a term of four years imprisonment.  This

 

        26          term will be reduced by the amount of time you

 

        27          have spent in custody awaiting the disposition

 

 

 

 

 

 

       Official Court Reporters

                                        13


 

 

 

 

         1          of your case which, including the day of your

 

         2          arrest, is 70 days.  On the basis of credit at

 

         3          a rate of 1.5 days for each day of pre-sentence

 

         4          custody that works out to 104 days that will

 

         5          be deducted from the four years you will serve.

 

         6          You can sit down.

 

         7               There were a number of ancillary orders

 

         8          that the Crown sought.  I will impose the

 

         9          firearms prohibition under Section 109 of the

 

        10          Criminal Code, and you were seeking ten years,

 

        11          Mr. MacPherson?

 

        12      MR. MACPHERSON:        Yes.

 

        13      THE COURT:             That section provides for

 

        14          a mandatory prohibition on firearms where a

 

        15          person is convicted of an indictable offence

 

        16          in the commission of which violence against

 

        17          a person was used, threatened or attempted,

 

        18          and for which the person may be sentenced

 

        19          for ten years or more.  In the event that you

 

        20          wish to seek relief, partial relief from this

 

        21          prohibition for the purpose of subsistence

 

        22          hunting, Mr. Shatilla can certainly make

 

        23          the appropriate application to the firearms

 

        24          authorities for that purpose.

 

        25               There will be an order for bodily fluids

 

        26          to be taken from Mr. Shatilla for DNA analysis,

 

        27          and an order requiring him to comply with the

 

 

 

 

 

 

       Official Court Reporters

                                        14


 

 

 

 

         1          Sex Offender Information Registration Act

 

         2          pursuant to Section 490.012 of the Criminal

 

         3          Code.  Mr. MacPherson, the Crown is seeking

 

         4          that for 20 years?

 

         5      MR. MACPHERSON:        Yes, Your Honour.

 

         6      THE COURT:             That will be in effect for

 

         7          20 years.  Were there any other ancillary orders?

 

         8      MR. MACPHERSON:        No, thank you.

 

         9      MR. HANSEN:            If I may, I just wish to be

 

        10          clear.  The ancillary order, in answering that

 

        11          question, it seems to be inferred, but not stated

 

        12          explicitly, that a Section 113 exemption under

 

        13          the firearms is permitted?

 

        14      THE COURT:             He has to make the

 

        15          application, it is not up to me to make

 

        16          the exemption.

 

        17      MR. HANSEN:            As I understand it, it

 

        18          is an operation of law that there must be

 

        19          a statement that he can make an application

 

        20          under 113.

 

        21      THE COURT:             Yes, he can make the

 

        22          application.

 

        23      MR. HANSEN:            Yes, thank you.

 

        24      THE COURT:             All I am saying is that

 

        25          I cannot guarantee the outcome of that

 

        26          application or direct it.

 

        27      MR. HANSEN:            No, of course.

 

 

 

 

 

 

       Official Court Reporters

                                        15


 

 

 

 

         1      THE COURT:             Finally, I will make a

 

         2          recommendation and ask that it be endorsed

 

         3          on the Warrant for Committal that Mr. Shatilla

 

         4          be permitted to serve his sentence at SMCC.

 

         5          That was what you were seeking?

 

         6      MR. HANSEN:            Yes, Ma'am.

 

         7      THE COURT:             However, that will be up

 

         8          to the Corrections authorities to make that

 

         9          determination.  Is there anything else?

 

        10      MR. MACPHERSON:        No, thank you.

 

        11      MR. HANSEN:            No, thank you.

 

        12      THE COURT:             Thank you.

 

        13      THE CLERK:             Your Honour, is there a

 

        14          victim surcharge, a victim of crime surcharge?

 

        15      THE COURT:             There is a victim of crime

 

        16          surcharge by operation of law, yes.  Thank you.

 

        17          We will adjourn.

 

        18                           -----------------------------

 

        19

 

        20                           Certified to be a true and

                                     accurate transcript, pursuant

        21                           to Rules 723 and 724 of the

                                     Supreme Court Rules.

        22

 

        23

                                     _____________________________

        24                           Joel Bowker

                                     Court Reporter

        25

 

        26

 

        27

 

 

 

 

 

 

       Official Court Reporters

                                        16

 

 

 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.