R v M.N., 2020 NWTSC 21 S-1-CR-2018-000138
AMENDED ORIGINAL
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
-v-
M.N.
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Transcript of the Reasons for Sentence of the Honourable Chief Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 4th day of March, 2020.
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APPEARANCES:
M. Fane: Counsel for the Crown
T. Bock: Counsel for the Defence
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Charge under s. 271 of the Criminal Code
There is a ban on the publication, broadcast or transmission of any information that could identify the complainant pursuant to s. 486.4 of the Criminal Code.
ORIGINAL amended as of May 29th, 2020:
Cover page changed from B. MacPherson to M. Fane as Counsel for Crown
I N D E X
PAGE
RULINGS, REASONS
Reasons for sentence 1
MONDAY, MARCH 4, 2020
THE COURT: This morning, it is my responsibility to sentence M.N. for having sexually assaulted C.O. back in January 2018. Earlier this week, M.N.'s lawyer said a few times during his submissions that this was a very difficult case and that is very true.
Sentencing is never an easy thing. It is never pleasant for a judge to impose a sentence, especially a long jail term. It feels like a waste and yet sometimes it cannot be avoided.
In cases like this, and like so many others that come before this court, unfortunately, it cannot be avoided. But it is especially difficult and especially sad when, as here, a relatively young man with no past criminal history, a good background, with a family and much going his way, has to be sentenced for such a serious crime.
M.N. was engaged with C.O.'s sister when this happened. This sister was like a second mother to the complainant. At the time, they all lived together. She trusted M.N. and considered him like a big brother.
I understand that they both work at the same place and that on the night of these events there had been an office party. Both of them had consumed alcohol. C.O. went home, went to bed in her room and fell asleep. She woke up to someone having sexual intercourse with her. It was M.N..
When she realized what was happening, she pushed him off. She confronted him and he left the house. He sent her a series of Facebook messages that night shortly after the events and again the following afternoon. He said various things in these messages, including that he was very drunk, that he did not remember, and he also asked her not to tell her sister, his fiancé.
C.O. did not tell anyone about this initially. She simply packed her bags and left the house. It was only a few months later in April when her mother suggested that she move back in that she told her what happened, and this was also when she reported this to police. M.N. was arrested. He gave a statement claiming not to have a memory of the events, but he did admit that he sent the Facebook messages.
This assault had a profound impact on C.O. I hope M.N. fully realizes that. He probably cannot fully understand what she has gone through and is still going through. Her Victim Impact Statement is very compelling. It explains better than any judge could the effect that this type of crime, which is sadly so prevalent in the Northwest Territories, has on victims. This is important. It is important that people understand the impact that these crimes have. For that reason, I will refer to that Victim Impact Statement this morning.
C.O. says these events put a strain on her own relationship and ultimately caused its end due to emotional instability. She feels alone. She does not trust anyone. Because she and M.N. worked together, these events have affected her work schedule.
She does not feel safe at work. She felt disgusted with herself because she felt it was her fault. She does not feel safe going out anymore. She is afraid of running into him. When she found he pleaded not guilty in earlier stages of these proceedings, she struggled with panic attacks about court. She talks about what she lost. She writes:
I have lost my safe place. I had to move out. My dad thought I left him. I left so much more than my dad. I left my sister who was like a second mom. I left my nephews and niece. I left my shelter, my appetite, my peace and my sanity after what you did. A year-and-a-half later, I am still trying to gain those back.
This Victim Impact Statement was filed last July. One can only hope that as time continues to pass C.O. will be able to recover emotionally from all of this.
Unfortunately, these things C.O. is going through are consequences we hear about very often in sexual assault cases. M.N. has taken a lot away from her when he made this drunken and selfish choice to use her for his own sexual gratification. It was a terrible breach of the trust that existed between them. She should have been able to count on him for protection.
M.N. does not have a criminal record. What he did that night appears to have been completely out of character for him. As his counsel has said, this is probably someone we will not see back in the courtroom, and I certainly hope we will not.
I have the benefit of a Presentence Report. I have reviewed it and it is a very thorough report. I will not try to summarize it. That would not do it justice. It is a largely positive report.
M.N. is more fortunate than most people that I have had to sentence. He has faced some struggles but, according to this report, he grew up feeling loved in a safe environment. He learned important traditional land skills. He has a lot of skills himself, a good work record, a supportive family, lots of friends.
He has a wife who has continued to support him despite what has happened. That speaks to her strength of character. He has children. He has had some struggles and suffered some losses, and I do not mean to minimize those, but he does have a lot going for him and this bodes very well for his rehabilitation.
I must say that when I read the Presentence Report the first time, some of the things in it caused me some concern. There were things in there that made me wonder whether M.N. was truly taking full responsibility for his actions.
For example, on page 3 of the report, the author writes that M.N. did not seem to have any insight into the impact that this had on C.O. He said that C.O. is not a bad person but that she makes poor choices. The author further states that M.N. said he feels bad and sorry about what happened and would like to apologize, but also he said no one person is responsible for the assault and that he considered himself pretty un-responsible, given the amount of alcohol he had consumed.
Maybe some of those comments come from the fact that I imagine there is a part of M.N. that finds it hard to accept he could have done this. Maybe it is natural to look elsewhere to share the responsibility or put the blame on alcohol. And to be fair, there are also many other references in the report to things that suggest that M.N. is very sorry, that he exhibited remorse, that he was visibly upset when the police dealt with him, that he said he is ashamed and that he is sorry, and I heard similar things from his lawyer during submissions, and I heard similar things from M.N. himself when he had the opportunity to address me directly.
On the whole, I do accept that M.N. is sorry and that he now takes full responsibility for what happened. And he should, and it is worth repeating it here today: the responsibility for what happened was M.N.'s and M.N.'s alone. No one deserves to be treated the way C.O. was. Sober or drunk or even passed out, it does not matter. A person, sleeping or awake, sober or intoxicated, has the right to have their physical and sexual integrity respected.
This is a very basic thing. It is not difficult to understand. There is no excuse for behaving this way. Alcohol is no excuse. A lot of people get intoxicated, very drunk sometimes, and do not go around sexually assaulting others.
This type of crime happens often, far too often, in this jurisdiction, but the fact that it is so prevalent does not make it any less serious or any more normal. People should continue to be shocked that this happens and should continue to be shocked that it happens as often as it does.
The law is clear that for a sexual assault of this type, a significant jail term must be imposed. This is simply because the case is not just about M.N.. In imposing sentence, I cannot think only about what would be best for him and his family. I have to think about the message that my sentence sends to the public, to society.
A sentence has to strike the right balance between the various sentencing objectives and principles. Between the need to support M.N. in his rehabilitation and reintegration so he can continue after his sentence to work, support his family, raise his children, and be a productive member of society, and the need for courts to continue to send a clear message about the seriousness of a crime that is so depressingly prevalent in our communities.
As a sentencing judge, I am bound by the directions of the Court of Appeal, and that direction is that the starting point for an offence like this one is three years imprisonment. That is not a minimum sentence. It simply signals where the court should start from in its analysis. The court must then adjust the sentence to reflect the aggravating and mitigating factors of each case to arrive at a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender.
In this case, the aggravating factors are the breach of trust and the fact that C.O. was particularly vulnerable because she was sleeping in her own bed in her own home. Our home is the place where we should all feel and be the safest.
There are also mitigating factors. The guilty plea is the most significant one. This plea did not come early in these proceedings and, because of that, C.O. experienced considerable anxiety.
She struggled with panic attacks after she learned M.N. was pleading not guilty. She expected to testify at a preliminary hearing that, in the end, was waived at the eleventh hour. She spent months expecting to have to testify at a jury trial and learned only a short time before that trial that this would not be needed.
So she went through a lot more anxiety and this dragged on a lot longer than it would have, had the guilty plea been entered earlier on. However, in the end, she did not have to testify in a public courtroom and describe what happened to her, and for having seen a lot of witnesses testify in cases like this, I know that sparing someone that is sparing them a lot.
So I agree with counsel that the guilty plea is a significant mitigating factor. If he had been convicted after trial, M.N. would be facing a much longer sentence.
M.N. is still relatively young. He has a good background, a supportive family, and a lot going for him. He is an indigenous person which engages the well-known principles articulated by the Supreme Court of Canada about how his sentencing must be approached and the particular importance of the principle of restraint.
The Crown seeks a jail term of two years less a day followed by three years probation to give C.O. the added protection of a no contact order for that period. The defence recognizes that a jail term has to be imposed, but asks me to make it shorter, in the range of 15 to 18 months. I commend counsel for their submissions and for the positions they have taken.
The positions are different, but they are both reasonable and defensible positions. The Crown's position reflects restraint. The defence's position reflects what I would call realism in that the defence does recognize that a jail term of some significance cannot be avoided on a case like this, no matter how many positive things can be said about M.N..
This is a difficult decision because, as I say, it gives me no joy to send anyone to jail, and even less so someone like M.N. who can contribute to his community. His family I know will be punished by his absence, even though they have no responsibility in all of this. That is very sad and very unfair, and I imagine for M.N. knowing the impact that this has had and will have on his family is painful and may be the most painful part of his sentence.
As the Crown correctly noted, the sentence I impose could easily be over two years, but that would prevent including a period of probation as part of it, and I am quite convinced that overall it is preferable to have probation be part of this sentence, not just to have the no contact order to give C.O. some added protection and the distance she needs for the time being, but also because I think it would be helpful for M.N. to access services and counselling to try to perhaps explore his relationship with alcohol, maybe try to better understand what happened to him that night to make him act in such a callous, profoundly disrespectful and appalling way.
Considering everything else I have read about him, it is very surprising that he would act this way, but it was not some other person who did this; it was him. So I think for his own good it would worthwhile trying to understand what happened better.
The Crown has sought a number of ancillary orders, and I will deal with those first. First, there will be a DNA order, as this is a primary designated offence. Second, there will be an order that M.N. comply with the requirements of the Sex Offender Registration Act for a period of 20 years. That order is also mandatory.
There will be a firearms prohibition. The order will commence today and expire ten years after M.N.'s release. I will include the exemption referred to in section 113 of the Criminal Code which will allow M.N. to apply to have the order lifted for employment or sustenance purposes and hopefully allow him to continue some of the traditional activities that he has been engaged in during his life.
I will also make an order that exhibits are to be returned to their rightful owner if appropriate or otherwise are to be destroyed at the expiration of the appeal period if no appeal is filed.
Stand up, please, M.N.
M.N., for the sexual assault of C.O., I sentence you to a term of imprisonment of 20 months. That will be followed by three years probation with only a few conditions.
It will be supervised probation. So you will report to a probation officer within 48 hours of your release and then as directed. You will take counselling as recommended by your probation officer. This is to assist you. It is not to punish you. And you will have no contact with C.O. for that period of time. Maybe in time she will be able to accept your apology, but it has to be on her terms and when she is ready.
(PROCEEDINGS CONCLUDED)
Dated at the City of Toronto, in the Province of Ontario, this 24th day of May, 2020.
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Kim Neeson
Principal