Territorial Court

R. v. JONAS BOUVIER                       2007 NWTTC 06
File: T-1-CR-2006001092



IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



IN THE MATTER OF:



HER MAJESTY THE QUEEN


- and -


JONAS BOUVIER




REASONS FOR SENTENCE
of the
HONOURABLE JUDGE B. E. SCHMALTZ




Heard at:    Yellowknife, Northwest Territories
March 30th and April 26, 2007

Reasons:    May 9, 2007

Counsel for the Crown:  J. Walsh

Counsel for the Defendant:  B. Enge


(Charged under sections 266 and 271 x 2 of the Criminal Code)


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES

        IN THE MATTER OF:

HER MAJESTY THE QUEEN

- and -

JONAS BOUVIER


A. BACKGROUND

[1] On March 30, 2007, Jonas Bouvier was found guilty after trial of 1 count of assault, and 2 counts of sexual assault.  Sentencing was adjourned to April 26, in order that a Pre-Sentence Report could be prepared.  After reviewing the Pre-sentence Report, and hearing submissions of counsel on this matter, I reserved my decision until today.

B. FACTS

[2] All three offences arose out of what could be called the continuing harassment of VM, the victim, in her workplace during the second half of April 2006.  VM and Jonas Bouvier both worked at the Colomac Mine site located near Yellowknife.  Colomac is a fly-in mine site, and at the relevant times, both VM and Jonas Bouvier worked on a rotation basis; VM worked two weeks in and two weeks out, and at the time Jonas Bouvier worked a rotation of three weeks in, and one week out.  VM worked in housekeeping in the dormitory of the site, and had worked at Colomac since 1995.

[3] Both VM and Jonas Bouvier grew up in Behchoko; VM has known Jonas Bouvier for approximately 30 years.

[4] Around April 20, 2006, Jonas Bouvier arrived at the mine site; VM was already there.  Shortly after Jonas Bouvier arrived there was some conversation between Jonas Bouvier and VM, during which Jonas Bouvier, speaking Dogrib, called VM a name which translates as “devil’s disciple”.  After this, VM attempted to ignore Jonas Bouvier.

[5] Approximately a week after Jonas Bouvier had arrived, he asked for clean bedding; when VM took some bedding to Jonas Bouvier’s room, Jonas Bouvier attempted to pull her into his room while she stood at the threshold; she told Jonas Bouvier to get away from her; Jonas Bouvier asked her “woman what is wrong with you?”  VM pulled back and was able to free herself from Jonas Bouvier’s grip, but her arm was sore after the altercation.  This incident scared VM.

[6] When Jonas Bouvier would see VM at the site, he would tell her she was working too hard, and to come with him; VM tried to ignore him, she rebuffed him telling him to get lost, but Jonas Bouvier persisted.  VM testified that Jonas Bouvier’s behaviour left her kind of scared, “shaking inside” as she described it.

[7] The second incident occurred one day when VM was cleaning the walls of the hallway in the dormitory building.  She had forgotten her “Fantastic” and went to the storage closet to get it.  While she was at the storage closet, Jonas Bouvier came up behind her; he grabbed her around the torso area from behind, locking his hands in front of her under her breasts, and repeatedly squeezed causing VM’s breasts to move up and down.  VM continually told Jonas Bouvier to get lost, and Jonas Bouvier again asked her what was wrong with her, and would not let go of VM even though she was trying to pry his fingers apart to get him to release her.  VM finally told Jonas Bouvier in a loud voice to “fuck off” and elbowed him as he was behind her.  Jonas Bouvier let her go when she elbowed him.  This incident again left VM scared and shaky.  After this incident she testified that she was continually looking around while she was working in the hallways, being nervous doing her work.  She didn’t know what to do.

[8] The last incident occurred near the end of April.  Again VM was doing her work in the hallways of the dormitory, when Jonas Bouvier came behind her and grabbed her in the torso area, with his hands on her sides, close to her breasts, and using a squeezing/lifting action repeatedly lifted her breasts, and told her to come with him.  VM again resisted, told Jonas Bouvier to get lost, and he let her go.

[9] This incident again left VM scared and nervous; finally she did tell her supervisor and her sister-in-law about what happened, and matters progressed from there.  Jonas Bouvier’s rotation was adjusted so that he was not at the site when VM was working, and consequently the harassment stopped.  Those are the facts that the three convictions are based on.

C. SENTENCING ANALYSIS


 I. Fundamental Purpose & Principles of Sentencing

[10] It is often said that sentencing is perhaps the most difficult task that faces a judge.  Each case is different, each offender is different, and the law permits a wide range of sentences for most offences.  The task for any judge on a sentencing is to weigh all the factors that must be taken into account and come up with an appropriate sentence.

[11] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe community; to protect the public.  To achieve these important goals, a sentence should denounce or condemn unlawful conduct; it should deter or discourage both Jonas Bouvier and other persons from committing offences; if it is necessary, a sentence may separate an offender from the community; a sentence should assist in rehabilitating an offender; if possible, a sentence should provide reparations or amends for harm done to the victim or to the community; and a sentence should attempt to promote a sense of responsibility in an offender, and acknowledgment of the harm done to the victim and to the community.  Any one of these objectives of sentencing may have more or less importance depending on the circumstances of both the offence and of the offender before the court.  But all of those objectives have to be considered.

[12] A sentence has to be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[13] The Crown has suggested a global sentence of 6 months is necessary to achieve the sentencing objectives of denunciation and deterrence.  Counsel on behalf of Jonas Bouvier has recognized that there are several sentencing options available under the Criminal Code, but should I find that a jail sentence is necessary, urges me to impose a conditional sentence.


 II. Aggravating & Mitigating Factors

[14] A sentence should be reduced or increased depending on the mitigating or aggravating factors.

[15] Whereas the circumstances of any one of these offences on their own may not be particularly aggravating, I find when I consider the circumstances of all three of these offences together, there is an aggravating aspect to Jonas Bouvier’s behaviour – that is the repeated, or ongoing nature of Jonas Bouvier’s conduct, his persistence; his advances were rejected from the outset, but he continued, being oblivious to the continuing and increasing harm he was causing, showing a callous disregard for the sexual integrity and the feelings of VM.

[16] I also find that Jonas Bouvier’s criminal record, particularly the assault conviction from 1994 is aggravating in that it is certainly a related conviction; however, I also recognize that this conviction is dated, and since that time there is a significant gap in Jonas Bouvier’s criminal record, so whereas I have considered the criminal record, I have given it little weight as an aggravating factor.

[17] I do not find any mitigating factors to consider in arriving at a fit sentence.


 III. Personal Circumstances

[18] A pre-sentence report was prepared on behalf of Jonas Bouvier.  He is a mature man (48 years old) who is married and has five children.  Mr. Bouvier reports that he is well respected in his community of Behchoko.  Jonas Bouvier is married to Lilly Ann Bouvier.  Ms. Bouvier has some health problems; her medical reports were entered as an exhibit, and I have reviewed those.  As I mentioned before, Mr. Bouvier has a prior criminal record, but he has not been convicted of any criminal offences since 1994.  He has had a variety of jobs and occupations, but does appear to have worked steadily, and is described as a “good, reliable employee” by his current employer, Rick’s Trucking.

[19] In reviewing the Pre-sentence Report, and also listening to the submissions made on Jonas Bouvier’s behalf, I find no explanation for his behaviour.  He appears to have had a good upbringing, has a supportive family, and does not appear to have any unresolved issues in his life.


 IV. Sentencing Objectives in this Case

[20] The most important sentencing objectives in this case are denunciation and deterrence.  In considering denunciation in this case, I cannot help but consider the effect that these crimes have had on VM.  One only has to look at the VISs that have been filed to realize the effect that this kind of behaviour can have on a person – “this sexual assault has left me feeling anxious, depressed and unable to trust others. …  I feel miserable, emotionally drained, humiliated and disgusted by what has happened to me.”  VM goes on further to speak about the effect of these crimes on her relationship with her family.  The effect these crimes have had on her working life – she has left her job due to the stress that these incidents have caused her, which has led to a financial strain on her family.

[21] I have reviewed the case of R. v. Blake, [2001] N.W.T.J. No. 85, a decision of Chief Judge Bruser.  In Blake the accused, who was the victim’s neighbour, entered her apartment through an unlocked door, went into the victim’s bedroom and placed his hand on her vaginal area over her pants; the victim woke up and escorted the accused out of her apartment.  Those were the facts of the sexual assault.  At paragraph 2, Chief Judge Bruser states:

The impact on the victim has been profound.  This is something I take into consideration.  She reports that after this occurred, for the first three nights she “never slept or ate.  I couldn’t even sleep in my own house and I drank every day.”  She felt the need to leave Yellowknife.  She went to another community to be with a friend.  … She writes in the Victim Impact statement of being fearful of men “now and forever”.  She is taking more medication than she normally would.  …  She has needed counseling.  Her alcohol consumption has increased.

[22] The sentence imposed in Blake was 6 months imprisonment.

[23] One can never tell, perhaps even foresee the cumulative effects that a sexual assault can have on a victim, but a person has to realize that such behaviour will have some negative effects on a victim.  And an offender should not be surprised when those effects are severe and long lasting.  One of the reasons that denunciation has to be a prime sentencing objective in sexual assault cases is because of the devastating effects this crime can have on victims.  It is repugnant that Jonas Bouvier has ruined VM’s working environment, has deprived her of what was a productive and lengthy work history all for his own selfish sexual gratification.  He not only has violated her sexual integrity, but in this case his behaviour has had more extensive and long lasting effects on many areas of her life.  And we as a community cannot and should not tolerate this behaviour which has resulted in long lasting negative effects – there is no reason for it, there is no excuse for it – it has to be stopped.  Jonas Bouvier and others like him who may think it is acceptable behaviour to violate the sexual integrity of a fellow employee, and thereby poison the working environment of a person, who may think this type of behaviour is good fun, have to realize this behaviour is criminal and the consequences will be severe.

[24] The objective of rehabilitation is always something that must be kept in mind in any sentencing.  Certainly if Jonas Bouvier is able to recognize that his behaviour, and perhaps his attitudes, are intolerable, and he is able to change, then all of us, everyone is better off.  A person who is rehabilitated, instead of harming the community can contribute positively to the community.   It may well be that this process, his conviction, will likely deter him – but considering the circumstances of this offence, I find it is very likely that some sort of education or counseling is necessary.

[25] I find that a jail sentence is necessary in this case.  It is necessary to express the community’s disapproval, its condemnation, its denunciation of this behaviour, these offences.  A jail sentence is also necessary to recognize the harm done to VM, and to hold Jonas Bouvier accountable for that harm, for his behaviour.

[26] Having decided that a jail sentence is necessary in this case, I have considered whether or not a conditional sentence would be appropriate.

[27] A conditional sentence is a custodial sentence, but it is a custodial sentence that is served in the community under strict conditions, usually amounting to ‘house arrest’.  It is generally a more lenient sentence than a jail term of the same duration.  House arrest does not have the same punitive effect that a jail sentence has.

[28] There are no offences excluded (except minimum prison term offences), and no presumptions in favour of conditional sentences for certain offences, nor against one for certain offences.

[29] The criteria that must be present before a conditional sentence may be imposed are:
1. Must be convicted of an offence that is not punishable by a minimum term of imprisonment;
2. Sentence must be one of less than two years;
3. Safety of the community would not be endangered by offender serving sentence in the community -
4. Conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[30] There is no minimum sentence for the offence of assault or sexual assault, and  whereas the maximum cumulative sentence for these offences, the Crown having proceeded summarily, is 42 months, I would impose a global sentence of less than 2 years in this case.  Therefore the first and second criteria are met.

[31] Would the safety of the community be endangered if Jonas Bouvier were allowed to serve his sentence in the community?  I have to consider the risk posed by the offender, that is the risk that he will re-offend?  And if he did, what is the gravity of the damage that could ensue in the event of re-offence?  A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals.

[32] It is difficult to assess the risk of whether or not Jonas Bouvier will re-offend.   Sexual assault is a serious crime, with serious consequences and often a long-lasting impact on the victim.  I think it is well accepted that treatment and counseling would often be beneficial to an offender.  Jonas Bouvier has not taken any counseling or programs that I am aware of.  At the same time, I also have nothing concrete to suggest that Jonas Bouvier is a significant risk to re-offend.  One can never say for sure, but there is no evidence before me that would suggest that Jonas Bouvier presents a significant risk to re-offend.  If he does re-offend, and especially if he commits the type of offence that he has been convicted of in these proceedings, the gravity of the damage or harm to the victim is significant.  Because I cannot say that the safety of the community would be endangered if Jonas Bouvier were allowed to serve his sentence in the community, I will for the moment, consider that this criterion is also met.

[33] I turn then to the fourth criteria, whether or not a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.  There are some offences, the circumstances of which are such that the need for denunciation or deterrence is so pressing that incarceration is the only suitable way in which to express the community’s condemnation of the offender’s conduct or to deter similar conduct in the future.

[34] As the Supreme Court of Canada said in Proulx (para. 106), there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.  Where the objectives of denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction.  Harsh sentences plausibly provide general deterrence.

[35] All people, all members of our communities should be able to go to work, to pursue their employment, their career objectives without being concerned that they will be harassed, assaulted, fondled, bothered – basically objectified, treated with disrespect, to the point that the treatment amounts to a criminal offence.  Such treatment poisons the work environment, it often, as is the case here, results in the victim having to leave the work place, finding it intolerable.  Of course such decisions and effects of selfish, thoughtless, criminal behaviour are devastating to the victim, and completely inexcusable on the part of the offender, and intolerable to us as a society.

[36] The court’s role is to impose sentences that are meaningful and that will achieve the objectives of sentencing.  The sentence that is imposed by the court must be one that will be seen by members of the community as severe enough that it will discourage not only Jonas Bouvier, but perhaps more importantly, other men, young or old, from abusing or taking advantage of other people, or co-workers, to satisfy their own selfish sexual appetites, and also express the community’s condemnation of this type of behaviour.

[37] The circumstances of both Jonas Bouvier and the community in which the conditional sentence is to be served have to be considered.  I cannot ignore the fact that we are dealing with a sexual assault, and the prevalence of this offence in this jurisdiction.  In the north, the number of crimes of violence in general, and sexual assaults in particular is notorious.  That is a very relevant consideration when considering whether or not a conditional sentence would achieve the objectives of denunciation and deterrence.

[38] I also consider the aggravating circumstances, the circumstances in which this crime was committed, the continuing and harassing nature of Jonas Bouvier’s conduct.  The past criminal record, though I do take into consideration that his criminal record is dated and I do not put much weight on that aggravating factor, but it is not Jonas Bouvier’s first time before the criminal courts.

[39] I also consider the effect that this crime has had on the victim:  VM has set out in detail the significant and far reaching effects Jonas Bouvier’s conduct has had on her as an individual, her family life, her work life.  Sadly, these effects are not unusual.  Hopefully, with the support and love of her family, VM will be able to move on from this and put it behind her, but sexual assaults, sexual abuse, sexual harassment can have devastating effects on the victim.

[40] Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, and as I said earlier, I have to be satisfied that a conditional sentence in this case would be consistent with the fundamental purpose and principles of sentencing.  The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions, or sentences.  A sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.

[41] Other sentencing principles are set out in s. 718.2.  Section 718.2(d) says an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; section 718.1(e) states all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[42] I am also mindful that in circumstances where either a conditional sentence or a sentence of incarceration would be appropriate, a conditional sentence should be imposed.

[43] I recognize that there may be circumstances where conditional sentences may be appropriate for the crime of sexual assault.  But I find in the circumstances of this case, a conditional sentence could not achieve the purposes and principles of sentencing set out in the Criminal Code.

[44] I have considered all the circumstances in this case; the repeated, or ongoing nature of Jonas Bouvier’s conduct, his persistence in continuing with his unwanted advances, and being oblivious to the continuing and increasing harm he was causing, showed a callous disregard for the sexual integrity and the feelings of VM.  I find that in these circumstances the need for general deterrence and denunciation is so pressing, that a conditional sentence could not meet those objectives.  Incarceration is necessary to send a strong message to denounce Jonas Bouvier’s conduct and to deter him and others from engaging in similar conduct.

[45] In the circumstances of this offence, there will be a term of actual imprisonment.  A term of imprisonment, followed by a term of probation for 1 year, would meet the sentencing objectives of deterrence and denunciation, while still taking into account and attempting to assist in Jonas Bouvier’s rehabilitation.

[46] On the first count of sexual assault, there will be a sentence of 2 months in jail; on the second count of sexual assault, there will be a sentence of 3 months, consecutive.  On the count of common assault, there will be a sentence of 15 days, concurrent.

[47] Upon your release from jail, you will be on probation for one year.  The conditions of your probation are:

 Statutory Conditions;
 Report to your probation officer within 4 days of your release from custody, and thereafter as directed by your probation officer;
 Attend, participate in, and complete any counseling or programs recommended by your probation officer;
 To have no contact, directly or indirectly, with VM.

[48] This being a primary designated offence, I am required to make a DNA order unless s. 487.051(2) applies.  Section 487.051 sets out that I am not required to make a DNA Order if I am satisfied that Mr. Bouvier has established that the impact on his privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.  Other than counsel simply stating that making a DNA order would have an impact that would be grossly disproportionate to the public interest, I have no evidence of what the impact would be on Mr. Bouvier.  I am certainly not satisfied that Jonas Bouvier has established that the impact would be grossly disproportionate to the public interest.  A sample of Jonas Bouvier’s DNA will be taken in compliance with the provisions of the Criminal Code.

[49] There will be a victim of crime surcharge of $50.00 on each count, totaling $150.00, statutory default time to be consecutive and consecutive.



________________________________
Bernadette E. Schmaltz
T.C.J.

Dated this 9th day of May, 2007, at
the City of Yellowknife, Northwest Territories




R. v. JONAS BOUVIER           2007 NWTTC 06
File: T-1-CR-2006001092





IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



IN THE MATTER OF


HER MAJESTY THE QUEEN

- and -

JONAS BOUVIER




REASONS FOR SENTENCE
of the
HONOURABLE JUDGE B. E. SCHMALTZ