Decision Content
R v Gordon, 2021 NWTSC 25 S-1-CR-2019-000027
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
-v-
EDWIN FLOYD DOUGLAS GORDON
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Transcript of the Reasons for Judgment delivered by the Honourable Justice S.H. Smallwood, sitting in Yellowknife, in the Northwest Territories, on the 18th day of January, 2021.
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APPEARANCES:
A. Lewis: Counsel for the Crown
K. Oja: Counsel for the Defence
(Via teleconference)
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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.
I N D E X
PAGE
RULINGS, REASONS
Reasons for sentence 1
JANUARY 18, 2021
THE COURT: So on the date scheduled for his trial, Edwin Floyd Douglas Gordon pled guilty to a sexual assault, and now after some delay it is my task to sentence him for that offence.
The facts that Mr. Gordon has pled guilty to are that in August 2018, Mr. Gordon was at the home of the complainant in Aklavik. The victim, who was 17 years old, was asleep in her bedroom on the second floor. Mr. Gordon was drinking with Philip Elanik at the residence.
At around 3:00 a.m., Mr. Gordon went to the second floor to use the washroom. After Mr. Gordon left the washroom, he entered the victim's bedroom where she was asleep. In the bedroom, Mr. Gordon began licking the victim's vagina while she was asleep. Philip Elanik became suspicious when he heard Mr. Gordon finish in the bathroom and he did not come downstairs as expected. He went upstairs, entered the victim's bedroom, and saw Mr. Gordon with his head between the victim's legs, licking her vagina.
Mr. Elanik turned the light on in the bedroom and Mr. Gordon stopped and got up. Mr. Elanik physically removed Mr. Gordon from the residence. Mr. Gordon punched Mr. Elanik in the face during this process.
The position of the parties: The Crown is seeking a sentence of 18 months' imprisonment followed by two years of probation. The defence is seeking a sentence of 12 months of imprisonment followed by two to three years probation.
Victim Impact Statement: The victim completed a Victim Impact Statement. A portion of the Victim Impact Statement refers to a Facebook post made by the victim. Not all of what is contained in that post is appropriate for a Victim Impact Statement for this offender and this offence. It refers to another offence as well.
I have considered that portion of the Victim Impact Statement in the context of how this offence has impacted on the victim. Like many victims of sexual assault, this offence has not surprisingly had a profound effect on the victim. It has led to her dropping out of school, feeling ashamed, embarrassed, guilty and depressed.
When she has seen Mr. Gordon in the community, she has felt fear, ashamed, guilt, numb, shaky, hurt and afraid that it will happen again. The offence has led her to distance herself from others including family and friends. Mr. Gordon's actions have had a permanent effect on the victim.
At the same time, she seems determined to overcome what has happened to her. I hope that she is able to and that this sentencing process being completed today will help in this process and allow her to move to the next phase of overcoming what has been done to her. Nothing can take away what has happened to the victim and no sentence can change that, but I hope that after today she can take the necessary steps for her healing and not focus on what is happening in court in this case.
Presentence Report: I have the benefit of a Presentence Report which was prepared for this sentencing. It was completed in June 2020, so several months have passed since the preparation of the report. There has been some delay since Mr. Gordon entered his guilty plea to this offence. Part of that is due to the ongoing COVID pandemic and the delays which have resulted in that, but we have now reached the sentencing date.
The Presentence Report details Mr. Gordon's childhood and his upbringing. He was raised by his parents in a home with other siblings. Mr. Gordon described his childhood as abusive and traumatic, although other members of the family did not witness this or relate the same experiences.
There was domestic violence that occurred in the home but apparently not witnessed by Mr. Gordon. Despite this, Mr. Gordon felt loved and accepted by his parents and had a close relationship with them. Mr. Gordon's father recently passed away, which has been a significant source of grief for him. Mr. Gordon's father attended residential school and also abused alcohol for many years before quitting several years ago.
As for Mr. Gordon, he began consuming alcohol at age 13, and by 15 or 16 was getting blackout drunk every weekend. His alcohol abuse escalated to the point that he was consuming alcohol on a daily basis. He has also used cocaine and marijuana.
Mr. Gordon has abstained from alcohol since November 2019. He met his wife in 2018 and they moved in together in September 2019 and married in January 2020. His wife has been very supportive of him and has been instrumental in helping Mr. Gordon stop drinking. Their relationship is healthy and supportive.
Mr. Gordon now attends church and Bible study groups and he is engaged in counselling. Mr. Gordon has now been sober for 14 months, he attends A.A., he has continued with his counselling and he and his wife now have a new child.
His counsellor provided a letter outlining Mr. Gordon's counselling. His counsellor is optimistic that if Mr. Gordon remains clean and sober and continues with his counselling that he will not reoffend. A number of other letters were filed from his wife, his son, his pastor and other members of the community. They were all supportive and they attest to how well Mr. Gordon has done in making positive changes to his life and they also attest to his value as a member of the community and how supportive he has been.
I also believe that if Mr. Gordon is able to remain sober and if he continues with his counselling that he will not be before this court or another court again, that he will not reoffend. This will require more hard work on Mr. Gordon's behalf to continue with maintaining sobriety and counselling. It is a choice that you make every single day, and some days that choice will be harder than others, but I think that with the support of your wife and your family that you can contribute to making those good choices and continue to make those good choices.
Gladue factors: In sentencing Mr. Gordon, I am required to take into account the circumstances of an Aboriginal offender, including systemic and background factors that have impacted the lives of Aboriginal people and the specific factors that have affected Mr. Gordon and may have contributed to his criminal offending. I have taken judicial notice of the systemic factors impacting Aboriginal people in the Northwest Territories, as well as the specific things in Mr. Gordon's life that I have heard and read about.
There are things that have occurred in Mr. Gordon's life that have contributed to his being before the courts today. His abuse of alcohol and drugs stems from those issues and his abuse of alcohol is a significant contributing factor to why he is here today. But it is to his credit that he has begun to address those issues and has maintained sobriety for over a year now and has taken steps as well to help others.
Sentencing principles: There are many purposes to sentencing; to denounce unlawful conduct, to deter the offender and other persons from committing offences, to separate offenders from society where necessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community, and to promote a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community.
Sentencing is an individualized process, taking into account the circumstances of the offence and the offender. For each offence, there are sentencing principles which must be considered and some are considered paramount. The sentencing principles that are paramount in offences of sexual assault in cases involving the sexual assault of a person under the age of 18, in cases involving a sexual assault on a sleeping or unconscious victim, are deterrence and denunciation.
Denunciation means expressing society's disapproval of the conduct engaged in by the offender. When denunciation is paramount, it means that society's denunciation of that conduct must be made clear. Deterrence means deterring the offender specifically or others generally from engaging in this type of conduct in the future.
In this jurisdiction, sexual assaults occur far too frequently, and sadly, what occurred in this case is not uncommon. Many young women in the Northwest Territories have been sexually abused in places where they should feel safe and in situations where they are vulnerable to sexual abuse. Through no fault of their own, they are victimized, often by men who are under the influence of alcohol.
The courts in this jurisdiction over the years have repeatedly emphasized deterrence and denunciation in sentencing for these offences. While Mr. Gordon has engaged in significant efforts at rehabilitation and specific deterrence so long as he abstains from alcohol is not a concern, general deterrence and denunciation are still paramount sentencing considerations.
The importance of those sentencing principles cannot be forgotten in an individual case. It is also statutorily required that denunciation and deterrence be given primary consideration in cases where the victim is vulnerable because of personal circumstances, including because they are Aboriginal and female. That provision is applicable here.
Counsel agree that this was a major sexual assault as contemplated in R. v. Arcand and that engages a starting point sentence of three years. The starting point is not a maximum sentence or a minimum sentence, but a sentence which is adjusted to take into account the personal circumstances of the offender, the circumstances of the offence and the aggravating and mitigating factors. Those are all considered and then a final sentence is arrived at.
The sentencing range for sexual assault offences is very broad. In this case, there is no doubt that this was a significant violation of the victim's sexual integrity.
There are a number of aggravating and mitigating factors to consider in this case. It is aggravating in this case that the victim was 17 and was asleep in her own bedroom when the sexual assault occurred. She was vulnerable because she was asleep and unable to prevent or stop the sexual assault from occurring. She was at the mercy of Mr. Gordon who was an invited guest into the home.
It is statutorily aggravating that the victim of the offence was under the age of 18 and that the offence had a significant impact on the victim. The victim was 17 years old and, as I have mentioned, her Victim Impact Statement makes clear that this offence has had a significant impact on her.
Mr. Gordon has a criminal record with one conviction in 2017 for an assault. It is related because it is an offence of violence, but there are no convictions for sexual offences on Mr. Gordon's record. He received a 60-day conditional sentence for the assault, which suggests to me that it was not a significant assault. So there is a criminal record, but I do not consider it significant.
Mr. Gordon entered a guilty plea to this offence. It is a late guilty plea because it occurred at the commencement of his trial. It also appears that the Crown had a strong case. However, it is deserving of credit, as the guilty plea provided certainty of result and saved the victim for having to testify at the trial.
It also removes any doubt about what occurred and that Mr. Gordon was the one at fault. As well, Mr. Gordon also waived the preliminary inquiry, so the victim has not had to testify during these proceedings. Sexual assault victims often have to testify in court about very personal details of a sexual assault, which is a traumatic event, and the process itself can be traumatizing. Sparing the victim from having to do this enhances the value of the guilty plea.
Mr. Gordon, when he spoke on Friday, apologized to the victim. His remorse for the offence is also referred to in the Presentence Report. I accept that Mr. Gordon is genuinely remorseful for what he did and is committed to his rehabilitation.
I have already referred to Mr. Gordon's efforts at rehabilitation and the community support that he has from a number of members of his community. His efforts are to be commended and I hope that he will continue along this path. I also hope that while he is in custody that he can continue to engage with his counsellor and that he will continue to have the support of his family and his community.
There is no issue that a jail term must be imposed for this offence. General deterrence and denunciation as the paramount sentencing principles require this. The Crown and defence have each suggested a jail sentence. As well, it is clear that a period of probation following imprisonment would be beneficial to Mr. Gordon's rehabilitation.
Starting first with the ancillary orders, the Crown is seeking a DNA order, a SOIRA order and a firearms prohibition order. This offence is a primary designated offence, so there will be a DNA order, collecting Mr. Gordon's DNA for inclusion in the DNA databank. The Sex Offender Information Registry Act order is also mandatory and will be for a period of 20 years. The firearms prohibition order pursuant to section 109 of the Criminal Code is also mandatory and will be for a period ending ten years after Mr. Gordon's release from imprisonment.
Please stand, Mr. Gordon. So taking into account the circumstances of the offence and your personal circumstances, the applicable sentencing principles and factors, I impose a sentence of 14 months' imprisonment for the sexual assault. I have not heard any reference to remand time, so there is no pretrial custody to deduct.
This will be followed by a period of 30 months of probation. You will be required to follow the statutory conditions and the following conditions. Within three days of your release, you are to report to a probation officer and thereafter you will report as required.
You are to take counselling as directed by your probation officer. I hope that when you are released, you are still engaged in counselling so that this will not be a difficult condition for you to follow.
You will have no contact with the victim. It appears from the Victim Impact Statement that the victim is still quite angry with you, so you can understand that she likely does not want contact with you. Some day, you may be able to apologize to her in person, but that will have to wait until she is prepared to speak to you.
You are also not to attend the residence or place of employment or school of the victim. If you find yourself in a place where the victim is, then you are required to leave immediately. So if you go to visit someone's house or if you go to the store and she is there, then you have to leave. You can go back later when she is gone.
You are also going to have to abstain from the consumption of alcohol and non-prescription drugs. I sometimes hesitate to make orders of this nature because when someone has an alcohol problem, this type of condition can set them up for failure, but you have been sober for 14 months now, and I think that is a very good start, and I think that this is a condition that you can follow and I think it will be helpful for your rehabilitation. You may have a seat.
I am also going to have endorsed on the Warrant of Committal that there will be a judicial recommendation to the correctional authorities that they give strong consideration to permitting Raymond Pidzamecky to continue counselling with Mr. Gordon while he is incarcerated. Mr. Gordon, I can only make the recommendation. I cannot force the correctional authorities to allow this, but I hope that in making the recommendation that they will give this recommendation the consideration that I have requested and that they will allow this to occur so that you can continue with the same counsellor as you have been.
(PROCEEDINGS CONCLUDED)
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. Judicial amendments have been applied to this transcript.
Dated at the City of Toronto, in the Province of Ontario, this 21st day of July, 2021.
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Kim Neeson
Principal