Decision Content
R v Eyakfwo, 2019 NWTSC 5 S-1-CR-2018-000025
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
FRANKIE JAMES EYAKFWO
_________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice S.H. Smallwood, sitting in Yellowknife, in the Northwest Territories, on the 18th day of December, 2018.
_________________________________________________________
APPEARANCES:
Mr. M. Fane: Counsel for the Crown
Mr. P. Harte: Counsel for the Accused
(Charges under s. 271 of the Criminal Code)
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
1 THE COURT: Frankie James Eyakfwo pled
2 guilty to a sexual assault contrary to
3 Section 271 of the Criminal Code. He entered his
4 guilty plea on May 7th, 2018, and it is now my
5 task to sentence him for this offence.
6 The facts of the offence arise from
7 October 7th, 2015. The victim in this matter
8 contacted the RCMP in Fort Smith to report that
9 she thought she had been sexually assaulted. The
10 victim had been drinking the night before with
11 people at her residence. She fell asleep and
12 awoke to her pants undone and lowered a bit.
13 When she awoke, she noticed Mr. Eyakfwo was
14 standing in the living room fully clothed. She
15 yelled at him, and he denied knowing what she was
16 talking about. The victim could feel some
17 vaginal pain and went to the health centre where
18 a sexual assault examination was completed. As
19 part of that examination, a vaginal swab and a
20 rectal swab were obtained and were later sent for
21 forensic analysis. In November 2016, the lab
22 results showed an unknown male profile which was
23 identified in February 2017 as belonging to
24 Frankie Eyakfwo. That was subsequently confirmed
25 with a DNA warrant which was obtained from
26 Mr. Eyakfwo's DNA.
27 One of the concerns in sentencing
1 Mr. Eyakfwo for this offence is his history.
2 Mr. Eyakfwo is 29, and he has a criminal record
3 of prior related convictions. He has 12
4 convictions starting in 2003 in youth justice
5 court and continuing through to 2016.
6 Mr. Eyakfwo's first conviction was in 2003 when
7 he was 14 and convicted of sexual interference.
8 At that time, he received a sentence of 18 months
9 in custody and 9 months' community supervision
10 which was varied on appeal to 16 months custody
11 and 8 months' community supervision. This was
12 the maximum sentence available at the time.
13 In 2005, Mr. Eyakfwo was sentenced again in
14 youth justice court for two counts of sexual
15 assault. He received a sentence of eight months'
16 custody and four months' community supervision on
17 each charge followed by 18 months of probation.
18 There are other convictions for offences of
19 violence in 2011 and 2014 as well as convictions
20 for offences against the administration of
21 justice. The most recent convictions on
22 Mr. Eyakfwo's criminal record come from November
23 2016, and they post date this offence. At the
24 time of this offence, Mr. Eyakfwo was on
25 probation from an assault conviction that was
26 entered in September 2014.
27 The Crown's position, as I understand it, is
1 that a custodial sentence needs to be imposed,
2 and the sentence should be one of two years
3 followed by three years of probation, and that
4 would not take into account remand time, or
5 alternately that a three-year sentence be imposed
6 taking into account the remand time leaving a
7 sentence of approximately two years. The defence
8 position is that taking into account the remand
9 time, the sentence should be one of time served.
10 Mr. Eyakfwo has been in custody on this and
11 another charge for over a year. The other charge
12 was ultimately stayed.
13 While he was in custody on these matters,
14 Mr. Eyakfwo attempted with the Crown's consent to
15 attend Poundmaker's Lodge for treatment while he
16 was awaiting dealing with these charges.
17 Ultimately he was unable to be placed there as a
18 result of his cognitive limitations and the
19 requirements for treatment there.
20 Mr. Eyakfwo's time in custody has been since
21 October 16th, 2017, which is 429 days and amounts
22 to 14 months, 3 days. I do not see why
23 Mr. Eyakfwo should not get credit for his remand
24 time. It is specifically addressed in the
25 Criminal Code, and I am required to consider it
26 as well as consideration of remand time is
27 required to be included on the warrant of
1 committal. I have not heard as well any valid
2 reason why Mr. Eyakfwo should not receive credit
3 of one-and-a-half days for every one day in
4 custody which would amount to 21 months and 5
5 days of custody.
6 Counsel have filed a number of reports and
7 materials that provide insight into Mr. Eyakfwo's
8 background and circumstances. A number of
9 reports have been created about Mr. Eyakfwo over
10 the years. When Mr. Eyakfwo was in custody as a
11 young offender for the sexual offences he
12 committed, a number of assessments and reports
13 were completed. There was a Pre-Disposition
14 Report from April 2003; a psychological
15 assessment from August 2003 that was reissued in
16 August 2004, although I am not sure what it means
17 for a report to be reissued; and a Pre-Sentence
18 Report from 2005. As well, I have been provided
19 the Court of Appeal decision from 2003 and a
20 transcript of the sentencing from August 2005 for
21 the sexual assaults. More recently an assessment
22 was completed on December 29, 2017, and a
23 Pre-Sentence Report was completed for this
24 matter.
25 Mr. Eyakfwo is an indigenous offender, so
26 this also requires me to consider
27 Section 718.2(e) of the Criminal Code and the
1 principles that have been discussed by the
2 Supreme Court of Canada in consideration of that
3 section in the cases of Gladue and Ipeelee.
4 It is clear from the materials provided, and
5 I do not intend to review them in detail, that
6 Mr. Eyakfwo has had significant long-term issues,
7 issues that make rehabilitation a challenge and
8 issues that I am not certain can be addressed
9 through the criminal justice system.
10 When Mr. Eyakfwo was 14, the Pre-Disposition
11 Report referred to a number of issues that were
12 greatly concerning. Even at 14, there were
13 issues that had started years earlier, long
14 before Mr. Eyakfwo became involved with the youth
15 justice system.
16 I am somewhat at a loss at how to adequately
17 describe Mr. Eyakfwo's background, but it is a
18 troubling one. In his childhood, there were
19 serious concerns with his use of violence against
20 teachers, his aggression towards other students,
21 and sexual deviance towards other children. His
22 living conditions were less than ideal but
23 perhaps not unusual for a small town in the
24 Northwest Territories, living in a one-room log
25 cabin with no electricity or running water.
26 Those conditions are not unheard of. What is
27 more troublesome is the presence of violence in
1 the household, the presence of alcohol abuse, the
2 sexual abuse inflicted on Mr. Eyakfwo, and the
3 exposure to inappropriate sexual materials and
4 sexual activities.
5 Social Services were involved with the
6 family, and it appears that some efforts were
7 made to place Mr. Eyakfwo in treatment.
8 Arrangements had been made at one point it
9 appears from one of the earlier reports.
10 However, his family did not cooperate, and there
11 were indications that they did not want to have
12 him involved or going to treatment, that they
13 down-played the seriousness of the allegations
14 against him and sometimes denied the allegations.
15 The lack of cooperation appears to have resulted
16 in Social Services not taking any action or not
17 pursuing the efforts to place Mr. Eyakfwo in
18 treatment, and it is not clear why Social
19 Services did not take action at the time, even
20 though the family was not cooperating or
21 agreeing. In hindsight, it definitely seems like
22 a missed opportunity. Mr. Eyakfwo, from what has
23 been described and what I have read, needed help,
24 and other children and members of the community,
25 for their safety, needed Mr. Eyakfwo to receive
26 some form of treatment. Unfortunately, that did
27 not occur.
1 The assessments that were completed then and
2 more recently show that Mr. Eyakfwo has major
3 intellectual deficits. Mr. Eyakfwo suffered
4 brain atrophy as a child as a result of an
5 untreated illness, and Mr. Eyakfwo suffers from
6 some of the same characteristics as individuals
7 diagnosed with fetal alcohol spectrum disorder,
8 and it is not known if that is a result of the
9 brain atrophy that he suffered or from the use of
10 alcohol by his mother during pregnancy or some
11 combination of both.
12 The most recent conclusion by Merril Dean in
13 the December 2017 assessment is that Mr. Eyakfwo
14 falls within the range of a mild to moderate
15 intellectual delay and that he experiences
16 considerable difficulty understanding and using
17 language to express his ideas, feelings, and
18 emotions. His ability for expressive language is
19 at a level of a 6-year-old and of a 7-year-old
20 for receptive language. The author of the report
21 indicates that he requires a very structured and
22 disciplined living environment.
23 The most current Pre-Sentence Report
24 demonstrates that Mr. Eyakfwo continues to lack
25 insight into his offending, and this perhaps is a
26 reflection of his limited cognitive abilities,
27 but it is also concerning when you consider
1 rehabilitation and public safety.
2 The writer of the most recent report has
3 dealt with Mr. Eyakfwo on and off for over a
4 decade, and the report is valuable in the sense
5 of reflecting that long-term involvement with the
6 offender and the insights that come from that
7 experience. The author of the Pre-Sentence
8 Report concludes that it is not clear if
9 Mr. Eyakfwo grasps the severity of the situation
10 he is facing and it is not clear why he keeps
11 getting charges with similar offences and/or how
12 he is going to curtail his behaviour in the
13 future, and that is a concern.
14 One of the issues that arose during
15 sentencing submissions was what programs were
16 available to Mr. Eyakfwo through corrections that
17 could assist in his rehabilitation given his
18 limitations, and the matter was adjourned for
19 additional information to be provided to the
20 Court. I have received that information and have
21 reviewed it.
22 What was provided was a report from the
23 Public Prosecution Office of Canada on
24 Mr. Eyakfwo by Scott Mills, assistant warden at
25 the North Slave Correctional Complex, and
26 detailed the programs that might be available to
27 Mr. Eyakfwo both within NSCC as well as the
1 federal correctional system. It is brief. It
2 does not include a lot of detail with respect to
3 the programs or what they involve but provides a
4 general description. I have read the
5 information, and it appears that there are some
6 programs available at NSCC, but given
7 Mr. Eyakfwo's limitations, it is not clear that
8 any of those programs could realistically offer
9 him any significant benefit in terms of sex
10 offender or violence prevention programming.
11 Many of the programs require a basic level of
12 literacy that Mr. Eyakfwo does not have, and it
13 is not clear based on what I have been provided
14 that Mr. Eyakfwo would actually be effectively
15 case managed if he were at NSCC.
16 There is also a program that was described
17 that might be more appropriate which is offered
18 at the Regional Psychiatric Centre in
19 Saskatchewan. That is a program normally
20 available to federal offenders, but it appears
21 that offenders serving territorial sentences that
22 are sentenced to 15 months or more imprisonment
23 and assessed as high intensity may be transferred
24 to attend the federal programming. It is not
25 clear from the materials how often that occurs or
26 how easy it is for territorial prisoners --
27 someone serving a territorial length of
1 imprisonment, how easy it is for them to access
2 that federal programming. So all I know is that
3 it is potentially available in certain
4 circumstances, and I will not go into the details
5 of the specific programs, but there are options,
6 although they are limited.
7 Ultimately Mr. Eyakfwo must be sentenced on
8 the basis of the applicable sentencing principles
9 and his circumstances. A sentence cannot be
10 imposed simply to make a certain program
11 available to him if it is not an otherwise
12 appropriate sentence.
13 I have struggled with what an appropriate
14 sentence is in this situation. Mr. Eyakfwo is
15 essentially an untreated sex offender who now has
16 14 months of remand time. He has entered a
17 guilty plea. He has significant Gladue factors,
18 and his moral blameworthiness for the offence
19 must be assessed having regard to his cognitive
20 abilities. Mr. Eyakfwo is also a repeat sexual
21 offender. He has been convicted for the fourth
22 time of a sexual offence, and this is a serious
23 sexual offence. This was a sexual assault on a
24 sleeping victim where Mr. Eyakfwo's DNA was
25 located on the vaginal and rectal swabs taken
26 from the sexual assault examination kit conducted
27 on the victim. Mr. Eyakfwo was as well on
1 probation at the time of the offence for an
2 assault.
3 Deterrence and denunciation are sentencing
4 principles that are frequently considered in
5 sentencing for sexual assaults. The protection
6 and safety of the public have to be
7 considerations as well as the rehabilitation of
8 the offender.
9 It has been noted many times that sexual
10 assaults occur far too frequently in this
11 jurisdiction, and assaults on sleeping or
12 unconscious victims also occur far too often.
13 So those are all factors that I have to take
14 into account in considering the sentence for
15 Mr. Eyakfwo and I have considered them.
16 I will deal first with the ancillary orders
17 that have been requested by the Crown, and the
18 defence has not taken any issue with them, and
19 they are all mandatory in any event. First is
20 the firearms prohibition order pursuant to
21 Section 109 of the Criminal Code. That will be
22 imposed, so it will begin today and end ten years
23 following Mr. Eyakfwo's release from
24 imprisonment. This is a primary designated
25 offence, so there will be a DNA order as well,
26 and because this is a sexual offence, the SOIRA
27 order is also mandatory, and because of the prior
1 convictions, it is for a period of life.
2 So I have taken into account the positions
3 that have been advanced both by the Crown and the
4 defence as well as the circumstances of the
5 offence and of Mr. Eyakfwo. I am concerned that
6 the sentence that I am about to impose is not
7 sufficient to permit Mr. Eyakfwo to complete any
8 programs designed to address his offending, at
9 least not to take them in a meaningful way, if
10 that is even possible. I also need to consider
11 the safety of the public as much as the sentence
12 can accomplish that objective.
13 So taking into account the principles
14 enunciated in R. v. Arcand with respect to the
15 classification of major sexual assaults and the
16 appropriate starting point in sentences for those
17 offences as well as I have considered the case of
18 R. v. Ramsay, 2012 ABCA 25, which was filed in
19 the materials which discuss sentencing for
20 offenders with FASD and other cognitive deficits,
21 and I am satisfied that based on a consideration
22 of the Gladue factors and Mr. Eyakfwo's cognitive
23 deficits that Mr. Eyakfwo should receive a
24 reduction from the sentence that I would
25 otherwise impose on an offender in his situation
26 with his history of sexual offending.
27 Mr. Eyakfwo, please stand.
1 Taking all of that into account, for the
2 offence of sexual assault, I am imposing a
3 sentence of 30 months' imprisonment. You will
4 receive a credit of 21 months for your
5 presentence custody leaving a sentence of nine
6 months to serve. You can have a seat.
7 I have also considered whether to impose a
8 probation order, and I have decided to do that as
9 the probation officer may be able to assist
10 Mr. Eyakfwo in accessing programs that will
11 assist him with his rehabilitation and programs
12 that he might not otherwise be able to access on
13 his own. They will be able to take that into
14 consideration and look at programs that might be
15 of benefit to Mr. Eyakfwo. So there will be a
16 probation order for 18 months. It will have the
17 statutory conditions. It will also include
18 additional conditions, so he will report to a
19 probation officer within two days of his release
20 and thereafter as directed; he will have no
21 contact directly or indirectly with the victim of
22 this offence; he will attend counselling as
23 directed, and as long as he consents, he will
24 attend any treatment program that might be
25 arranged for him to attend.
26 The terms of conditions of probation,
27 counsel, are there any other conditions you think
1 that might be of benefit to Mr. Eyakfwo?
2 MR. FANE: Given the nature of the
3 offence, I would request that he not attend at
4 any residence or place of employment of the
5 victim if known to him.
6 THE COURT: Okay. Mr. Harte?
7 MR. HARTE: I have nothing to say in
8 response to that.
9 THE COURT: Okay. I will include that
10 condition as well.
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1 CERTIFICATE OF TRANSCRIPT
2
3 I, the undersigned, hereby certify that the
4 foregoing pages are a complete and accurate
5 transcript of the proceedings taken down by me in
6 shorthand and transcribed from my shorthand notes
7 to the best of my skill and ability.
8 Dated at the City of Edmonton, Province of
9 Alberta, this 8th day of January, 2019.
10
11 Certified Pursuant to Rule 723
12 of the Rules of Court
13
15 __________________________
16 Kim Cloutier
17 Court Reporter
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