Decision Content
R v Niditchie, 2020 NWTSC 43 S-1-CR-2018-000037
S-1-CR-2020-000089
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
TRINTON NIDITCHIE
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Transcript of the Reasons for Sentence by the Honourable Chief Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, delivered orally on the 6th day of October, 2020.
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APPEARANCES:
B. Green: Counsel for the Crown
J. Bran: Counsel for the Defence
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Charge under s. 271 Criminal Code of Canada
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.
I N D E X
PAGE
RULINGS, REASONS
Reasons for Sentence 2
THE COURT: I am ready to give my reasons for sentence on this matter. I am ordering a transcript which is to be sent to me for review and may be edited. I want to remind everyone that there is a publication ban in effect pursuant to section 486.4 of the Criminal Code which prohibits the publication or broadcast of any information that could identify the complainant.
I will refer to her by name in my decision, but I direct that the initial A. be used in the transcript anytime I refer to her by either her first name, her surname, or her full name. I also direct that the publication ban be noted on the front page of the transcript.
And finally, I will refer to some cases in my decision. I will not read out the case references, but I direct that the references be included in the transcript. I will ask the Clerk to send the contractor a list of those cases, the list of authorities, and the Crown's book of authorities and a few others that I will refer to in my reasons.
REASONS
THE COURT: Today I must impose sentence on Trinton Niditchie for a sexual assault that he committed against his cousin, A. I also have to sentence him for an assault causing bodily harm he committed more recently on his brother. Obviously, the sexual assault is by far the most serious of the two offences and the focus of my comments today will be on that offence.
Just for the record, I will refer to the facts of the assault causing bodily harm charge. They are quite straightforward. On January 24th, 2020, shortly after 1:00 a.m., there was an argument between Mr. Niditchie and his brother, Leon Cardinal. Mr. Cardinal was highly intoxicated. Mr. Niditchie was intoxicated as well, but less so.
Mr. Cardinal said something to Mr. Niditchie and Mr. Niditchie punched him several times. This was observed by their mother. She was not sure how many times Mr. Cardinal was punched. His injuries were swelling to his face and a nosebleed. The Crown filed photographs at the sentencing hearing yesterday that show injuries to Mr. Cardinal's face and a fair bit of blood on his pants from the nosebleed.
When this happened, Mr. Niditchie was awaiting trial on the sexual assault charge. He had just been released a few weeks earlier on that charge because he had failed to appear for his jury trial in the fall and a warrant had issued for his arrest. One might have expected him to be on his best behaviour, considering all of that, but evidently that was not the case.
With respect to the sexual assault, the facts that are admitted in support of the conviction were some, but not all, the events described by the victim during her trial testimony. I will only mention today those facts that form the basis for the guilty plea.
A. was at her home that day in Tsiigehtchic, looking after her two-year-old brother. Her mother and another sibling had gone to spend the evening at their camp. She and Mr. Niditchie knew each other for a very long time because they are cousins, but they were not particularly close. She is roughly six months older than him.
Mr. Niditchie came to the house as she was doing the dishes. He sat on the couch and asked her for something to drink. She gave him orange juice. Once she was done doing the dishes she sat on the couch as well. Mr. Niditchie started to tickle her and she tickled him back. This was something that they used to do when they were younger.
In her testimony she explained that Mr. Niditchie then got on her. His legs were tangled in hers such that she could not move her legs. He was facing her. He put his hand down her pants under her underwear. He touched her both on the outside of her genital area and inside her vagina. She was trying to push him off by pushing his shoulders. She was also moving her head from side to side because he was trying to kiss her and she was moving her head to stop it from happening. She felt like she could not breathe.
She tried to get him to stop by telling him she had a boyfriend, even though that was not true. She told him she did not want to do this. She used the words "Stop", "I don't want to do this", "Please". He did not respond. In her evidence she said that he looked like he did not even care.
This went on for about ten minutes. Eventually she was able to push him hard and get him off her. A. disclosed what happened to her soon thereafter, after her mother returned from the camp.
Mr. Niditchie was eventually charged in October 2017. He was ordered to stand trial in April 2018. He had chosen to have his trial before a judge and a jury and that trial was scheduled to proceed in Inuvik in September 2019.
I pause to note that the time gap between the charge and the trial is fairly long for an uncomplicated trial, even a jury trial in this jurisdiction. The endorsements on the Territorial Court file show that the preliminary hearing had originally been scheduled to proceed in January 2018 but was adjourned to April. The April date was peremptory on defence, which suggests that the adjournment was a defence request.
It took awhile after the matter was transferred to this court before the trial date could get set. There were several pre-trial conferences on this matter throughout the summer and fall of 2018. For several months there was no progress at all on this file because defence counsel had lost contact with Mr. Niditchie.
Eventually in December 2018 the instructions that he wanted a jury trial were confirmed and the trial was set to proceed in September 2018, that being the earliest date counsel were both available. At the time, Mr. Niditchie had a different lawyer and his availabilities were very limited.
On that date scheduled for the trial in Inuvik, Mr. Niditchie failed to appear and a warrant issued for his arrest. The warrant was executed sometime later and in December 2019 the Crown consented to Mr. Niditchie's release on conditions that he reside with his mother in Fort Good Hope. As I already noted, it was a few weeks later that he assaulted his brother.
Having failed to appear for his jury trial, Mr. Niditchie was presumed to have given up his right to a jury trial and he did not attempt to convince the Court that he should still have one. Because the matter was proceeding as a judge alone trial, this was one of the first cases that the court was able to schedule once it became possible to once again hold in-person hearings following the shutdown prompted by the COVID-19 crisis.
The trial proceeded and in the middle of it, after the Crown closed its case, Mr. Niditchie changed his plea to guilty.
The reason I refer to all of this is that through this whole delay, A. had to live with this hanging over her head, knowing she would have to testify, not knowing how and when matters would conclude, and I have no doubt that this contributed significantly to the very negative impact that this has had on her life.
Mr. Niditchie is now 21 years old. He was 18 when he sexually assaulted his cousin. These are his first convictions. He is Gwich'in and his Indigenous heritage must be taken into account in deciding his sentence. I have taken judicial notice of systemic and background factors that have had an impact on Indigenous persons in Canada and contributed to their overrepresentation in Canadian jails, as I am required by law to do.
I also have the benefit of a thorough pre‑sentence report that assists me in understanding Mr. Niditchie's specific history and background. The report does speak to both some positive aspects of Mr. Niditchie's upbringing and some struggles that he has faced.
Counsel have referred to some of the factors specific to Mr. Niditchie in their submissions and I do not think it is necessary for me to go over all of that again in great detail, especially having heard from Mr. Niditchie's counsel that Mr. Niditchie finds it difficult to hear those things discussed.
I do want to make some comments about the report, though. There are some positive things that emerge from it. Mr. Niditchie was raised in a traditional household and was introduced to many traditional activities, which he enjoyed. I heard he hopes to pursue once again after he is released.
He has good friends who apparently seem to live a pro-social life. He has a supportive family network and he also reports that he felt loved growing up. Sadly, that is more than many offenders who come before this Court can say.
On the other hand, the report refers to certain negative aspects. His father was violent towards his mother, and while the report says that most of that violence did not occur in the presence of the children, it can still be expected, I think, to have had an impact on them. Ultimately, it led to the end of his parents' relationship. He formed a close bond with his mother's new partner and was affected significantly by that man's death in 2014. Mr. Niditchie would have been around 15 at the time.
The report also says that both his parents attended residential school, although it does not include any details about the experience that they had there. That is not infrequent, as many people are reluctant to discuss some of the things that happened in residential schools. Not everyone's experience was the same, obviously, but courts, including the Supreme Court of Canada, have recognized that overall, the residential school experience was destructive for many and has led to considerable intergenerational trauma.
The report refers to Mr. Niditchie being bullied as a child. His mother believes that this may have been because theirs was, in her words, "One of the few families that was together in the community." There was an instance of bullying when he was 14 years old when he was not in his community that he had a rather extreme response to.
Mr. Niditchie would, I am sure, benefit from professional help and an opportunity to explore these issues, as this may be something that would assist him staying out of trouble in the future and also something that is important for his own well-being.
One aspect of the report that is of concern is Mr. Niditchie's apparent contradictory answers to some questions, and also in some cases, the answers themselves. For example, and I think this is the most striking example, one would think that the answer to the question "Do you think the victim deserved what happened to her?" would be a relatively straightforward thing to answer if someone truly acknowledges wrongdoing.
To this, Mr. Niditchie answered something along the lines of "No comments." I find that a bit disturbing. That said, it is difficult to know what to make of these comments. Mr. Niditchie's counsel offered an explanation, based on his own experience interacting with his client, which is rooted in Mr. Niditchie's thought process and how he processes questions, and that may well be part of it.
The contradictions in some of his answers may also reflect a certain lingering ambivalence on Mr. Niditchie's part about facing up to what he has done. I say that because Mr. Niditchie, by action and by omission, has delayed facing up to this matter for quite some time. Ultimately, he took responsibility for it only after the Crown had called its case, and I will say, for having heard the evidence, a compelling case for him to answer. So it was a very long road for him before he was able to acknowledge his wrongdoing.
That being said, he did plead guilty. He told the author of the report that he would like to apologize if he did not have a no-contact condition in place. And yesterday, when he was given a chance to speak in court, he did apologize. I also was able to observe when we were in Inuvik a very visible emotional reaction from him at the time his plea was entered.
And after this week's proceedings, having heard these victim impact statements read into the record, I sincerely hope that Mr. Niditchie truly understands the magnitude of the harm he has caused and I believe that he is sorry for it.
The fundamental principle of sentencing is proportionality. A sentence must be proportionate to the seriousness of the offence and the level of moral blameworthiness of the offender. Sentencing requires balancing a lot of principles and weighing how much impact each should have on the ultimate decision. This is not a simple exercise.
The range of sentence available for a sexual assault proceeded by indictment is very broad. It goes from no jail at all to ten years' imprisonment. Here the Crown says a sentence of imprisonment of 18 months, followed by three years probation, is required, the probation period being there primarily to ensure that there is a lengthy no-contact period to offer further protection to the victim.
Defence argues that a jail term between 12 and 14 months would be enough to achieve the goals of sentencing, given Mr. Niditchie's youth, his lack of record and his overall circumstances.
In my view, it is very clear that the sexual assault falls in the category of major sexual assault, as described in R. v. Arcand, 2010 ABCA 363, and several other cases before it. Arcand was adopted in this jurisdiction by our Court of Appeal in R. v. A.J.P.J., 2011 NWTCA 2.
As was noted in one of the cases quoted by this Court in R. v. Lepine, 2013 NWTSC 19, referred to by the Crown, there was a time where it was believed that there was a significant difference in seriousness between a case involving intercourse and a case involving digital penetration. With respect, in my view, that approach was seriously misguided. Both acts constitute a serious violation of the victim's physical, personal, and sexual integrity.
I entirely agree in this regard with the Court's conclusion in Lepine and I consider it to be a well-settled point in law, at least in this jurisdiction, a sexual assault that involves digital penetration is a major sexual assault within the meaning of Arcand and A.J.P.J. And while the more prolonged any assault, the more serious it is, the fact that a sexual assault is not prolonged does not take it outside that category.
As a result, the starting point in sentencing is three years imprisonment. It bears repeating, so I repeat again, this is not a minimum sentence. It simply is a starting point that reflects the objective seriousness of this type of conduct. From this starting point, a Court will determine a fit sentence by adjusting the sentence to reflect aggravating factors and mitigating factors that are present.
Here there are aggravating factors. First, Mr. Niditchie was quite persistent in his assault. The victim tried to resist him, pleaded with him, tried to get him off her, and yet he persisted in assaulting her, using some force to overpower her attempts to resist. Second, it is aggravating that she was a family member. This is now specified in the Criminal Code, but it would have been an aggravating factor in any event. I agree that the evidence does not show that Mr. Niditchie was in the legal position of trust towards her, as they were roughly the same age and they were not particularly close. But he was a family member, someone she had known for a long time, probably her whole life, someone she should have been able to trust to let in her house without worrying that he may harm her. This was not a stranger she let into her house. It was someone who was well known to her and should have had no reason to fear.
Third, the impact that this crime had on the victim is also an aggravating factor. That too is set out in the Criminal Code. Here there is ample evidence of that impact. The two victim impact statements that were read yesterday are sad and eloquent.
This event crushed A. It has taken her sense of safety away. It has made her depressed. It has made her fearful and disengaged socially. It has made her give up her plans to go to school, and it has turned her into a hermit. She describes this in a gripping way in her victim impact statement, and her mother describes it too.
The victim impact statements are eloquent enough, but I could also see this impact when she testified. All this time later, the very real and very raw pain that she still experiences as a result of this were very, very obvious to me.
Her mother testified briefly at the trial as well and one could see all the weight of the sadness on her too. She feels powerless, does not know how to help her daughter. She has seen her go from an outgoing, happy young woman to someone who is depressed, totally isolates herself and is basically in survival mode to get through each day, and unfortunately there appears to be very few resources in the community for this mother to try to help her child.
The Court can only hope that with the end of this case, A. will get closure and will be able to slowly hope to get back to her normal self. But this case is a very good illustration of the harm that sexual assault causes.
And I will add, because I must, that I find it especially sad that some family members have ostracized A. This was not her fault. She was the victim in all of this. The fact that family members, instead of trying to support her through this difficult time, would shun her and pressure her to drop the charges, is profoundly disturbing and shameful.
It is not something that should be held against Mr. Niditchie, of course, but I feel it has to be said. I can only hope that now that Mr. Niditchie has owned up to what he has done, others will follow suit and stop making A. pay the price for his wrongdoing. All this to say the impact on her was significant and that is an aggravating factor.
There are also mitigating factors in this case. The guilty plea is mitigating, although less so than it would have been if it had been offered at an earlier point. The reason why guilty pleas are mitigating is that they save time and resources and, most importantly, they spare victims from having to testify. This guilty plea did not achieve any of those things.
The criminal justice process followed its full course. The victim had to testify at the preliminary hearing. The Court traveled to Inuvik and she got ready to testify for the jury trial, which did not proceed. And ultimately, when the trial did proceed, the Crown called its full case. These witnesses, and the victim in particular, were not spared anything. A. was not spared from recounting what happened to her, and as I already said, it was obvious that it was a very hard thing for her to do.
But I do agree with what counsel said. The guilty plea has achieved something that even a conviction after trial would not have. Through it, Mr. Niditchie told the community, his family, the public in general, and anyone who thought this was a false complaint, that it was not a false complaint. As I said, I sure hope that those who did not believe A. or somehow blamed her for this will rethink their positions. And Mr. Niditchie himself acknowledging his wrongdoing was possibly the only thing that hopefully could achieve that.
In submissions, Crown counsel mentioned the lack of record as a mitigating factor, but with respect, that is not accurate. A criminal record, when there is one, is aggravating. When there is no criminal record, that merely shows the absence of what would otherwise be an aggravating factor. That point was made by our Court of Appeal in A.J.P.J. at paragraph 13. In that case, the Court of Appeal found that the sentencing judge erred in principle in treating the fact that the accused had a clean record for 20 years as a mitigating factor.
That said, the fact that Mr. Niditchie is young, has no criminal history, has a lot of positive things in his background and has a supportive network is relevant to his rehabilitation prospects, so it is relevant to what constitutes a fit sentence.
Finally, Mr. Niditchie's circumstances as an Indigenous offender are relevant to his moral blameworthiness and give the principle of restraint even more importance than would otherwise be the case. But as I said, I do not find that the impact of those factors is as significant in this case as it sometimes is, because there are, thankfully, many positive aspects to Mr. Niditchie's circumstances. I think there actually are very good prospects for his rehabilitation.
In the final analysis, it is clear that deterrence and denunciation are the paramount sentencing principles in a case like this. Apart from any statutory requirements that may be engaged in this regard, based on the vulnerability of the victim, the law has long been that those are the paramount sentencing principles in cases of major sexual assault. In addition, as this Court has said countless times, the sheer prevalence of serious sexual assaults in this jurisdiction requires that Courts impose denunciatory sentences.
Courts have very few tools in their hands to respond to crime. The long-term solutions to these problems are education, prevention, and addressing the social issues that underlie this conduct. This Court and others have imposed stern sentences for these offences for decades and we still see a depressing steady flow of these cases in our courts. This demonstrates that sentencing practices alone cannot solve these issues.
But the Courts have a role to play in continuing to send the same consistent message and a duty to use the tools that they do have to continue express, case after case, that this type of conduct is unacceptable, harmful, and will be met with severe consequences.
When I consider the starting point and the aggravating factors and even when I consider the mitigating factors and the importance of attempting to support Mr. Niditchie's ultimate rehabilitation and reintegration, I cannot see how a sentence lower than what the Crown seeks could be imposed. In my view, that is the absolute minimum sentence that can be imposed to adequately address the sentencing principles and objectives.
Credit for the remand time has to be addressed. I heard that Mr. Niditchie has spent a total of 83 days on remand and if credited at the maximum ratio of one-and-a-half day credit for each day of remand, that would add up to a credit of 124 days and a half.
The Crown has sought a number of ancillary orders. The DNA order is mandatory, as this is a primary designated offence, and one will issue.
An order that Mr. Niditchie comply with the requirements of the Sex Offender Information Registration Act for 20 years is also mandatory. A firearms prohibition order is mandatory. Its minimum duration is that it should commence today and expire ten years from his release. Based on what I heard about Mr. Niditchie's activities on the land and the fact that this is certainly a positive thing that he can do when he is released, I will include the exemption, pursuant to section 113 of the Criminal Code, that he will be permitted to be in possession of a firearm for sustenance and employment purposes on conditions to be set out in due course by the Chief Firearms Officer.
Mr. Niditchie, can you stand up, please? Mr. Niditchie, for the sexual assault of A., the sentence of this Court if you did not have any remand time would be 18 months imprisonment. For the 83 days you have already spent in custody, I will give you credit for four months, so the further jail term will be 14 months imprisonment. You can sit down.
I will endorse the warrant of committal to include a no-contact condition with A., pursuant to section 743.21 during the custodial portion of the sentence.
This will be followed by probation for three years, Mr. Niditchie, and there will not be a lot of conditions. The first is that within two days of your release, 48 hours, you are to report to a probation officer in whatever community you end up going to. The second is that you take counselling as directed. This is not to punish you. This is to help you out. I think there are issues from your past that you could use some help with and I am sure there are a lot of things that could be achieved if you learn how to talk about some of these things and try to understand why you react the way you react sometimes. So it is to help you. That is really the objective.
The next condition is that you are to have no contact with A. I think you understand why. She is very upset still by all of this. There may come a time where she is able to receive an apology from you, but that is going to have to be on her time and on her terms. So for now you are to have no contact with her in custody, and for the duration of your probation period you are not to have any contact with her either. After that I cannot control it, but I would strongly suggest that unless she reaches out, you should really respect the space that she needs.
There will also be a condition that you are to stay 50 metres away from her residence or from her place of employment. And I am also going to add another condition, that should you find yourself in any place where she is, you are required to leave. I think it should be you that leaves, not her who has to avoid you.
Now, this probation order is also going to apply to the assault causing bodily harm charge, so there will be a condition that you do not have any contact with Leon Cardinal unless he agrees to it. I do not know what the situation is between the two of you or what it will be when you are released. You are brothers. If you live in the same house or if it is thought that you might live in the same house, this condition may become a bit of an issue. Your lawyer can explain to you that if there are good reasons to change that order, an application can be made and it is a condition that could be removed if everybody agrees, so that is something that when the time comes you can perhaps bring up.
On the assault causing bodily harm charge, I have taken into account your early guilty plea, the fact that it was a short assault, the fact that you do not have a criminal record, and the importance of restraint, so I agree with the Crown's suggestion, and I do not think your lawyer was in disagreement, that the sentence will simply be one day in jail, consecutive, and the probation order will apply to it as well, with the no‑contact order.
There will be no victim of crime surcharge on the sexual assault. The timing of this offence was that the legislation that governed surcharges had either been struck down or was struck down after, but I do not intend on imposing a surcharge on that one. I am not sure if by the time the assault causing bodily harm occurred the new legislation was enforced. Do you know offhand, Mr. Green?
B. GREEN: I'm afraid not, Your Honour.
THE COURT: Do you know, Mr. Bran?
J. BRAN: Not off the top of my head.
THE COURT: I did look into this relatively recently. I think the new legislation that gives discretion may have been in place and I would waive the surcharge in this case in any event. If I have jurisdiction to waive it, I waive it, and if I do not have jurisdiction to waive it, then the law was invalid, and there will not be one either way.
I will make an order that exhibits be returned to their rightful owner if that is appropriate, and otherwise they are to be destroyed at the expiration of the appeal period.
Mr. Green, you were not counsel yesterday, but can you think of anything that I may have overlooked?
B. GREEN: No, Your Honour, that's everything that had been noted by Ms. Halliburn.
THE COURT: Mr. Bran, have I overlooked anything that you had raised and I neglected to address?
J. BRAN: No, but I do have one question and I may have missed it. On the no-contact with Mr. Cardinal, was that for the entirely of the probation order, or was that specified as a shorter period of time?
THE COURT: I intended it to be only for the first year, and so if I did not say that, thank you for reminding me. Mr. Clerk, that was intended to be for the first year.
THE CLERK: Yes, Your Honour.
J. BRAN: Thank you.
THE COURT: And as I say, I do not know what the situation will be when Mr. Niditchie is released, but I certainly would encourage an application to be brought forward if this condition becomes an obstacle to his reintegration instead of what I think the Crown intended it to be.
J. BRAN: I'll put that in next year's calendar and look into it and if it needs to be addressed we'll take appropriate steps.
THE COURT: And finally, I would add that if it were to be something that is agreed to, it could easily be done by way of a written application, I think.
J. BRAN: Thank you.
THE COURT: All right. Good luck, Mr. Niditchie. There are a lot of good things going for you, so I hope that you can put this behind you now and you have a long life ahead of you and I am sure you can contribute to your community. You might be able to help others that are struggling with some issues and I hope that things work out for you. Thank you for your work, counsel.
(PROCEEDINGS CONCLUDED)
CERTIFICATE OF TRANSCRIPT
Neesons, the undersigned, hereby certify that the foregoing pages are a complete and accurate transcript of the proceedings transcribed from the audio recording to the best of our skill and ability. Further judicial amendments have been applied to this transcript.
Dated at the City of Toronto, in the Province of Ontario, this 26th day of October, 2020.
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Kim Neeson
Principal