Warning: This report contains details of a sexual assault case, as heard in court, that readers may find disturbing.
For the second time in a week, a Territorial Court judge disputed a joint sentencing recommendation in a sexual assault case in Tuktoyaktuk – this time questioning the federal government's approach.
The cases involved two separate offenders whose personal situations differed dramatically, though their crimes were similar and both live in the same place.
Hearing the case of Jordan Paul Adam on Friday, Judge Donovan Molloy said he was concerned the sentence being put before him by the Crown and defence lawyers would not protect the public in the small, Beaufort Delta community.
“I’m really struggling here,” Molloy said as he interrupted Crown Prosecutor Jay Potter.
The prosecutor was detailing the sentencing recommendation for Adam, who pleaded guilty to sexually assaulting a woman in the fall of 2018 while she slept in her home.
Potter and defence lawyer Tracy Bock had proposed a four-month sentence – which would amount to the time-served credit earned in pre-trial custody – for Adam's sexual assault.
That would include no actual time for breaching a no-contact order while on bail, nor for an unrelated vandalism rampage on buildings in Tuktoyaktuk.
“You’re a representative of the state. I’m not picking on you in particular, you are a competent counsel, but you are here on behalf of the Public Prosecution Service of Canada," said Molloy to Potter, the prosecutor.
“It comes down to peace, order, and public safety. Mr Bock’s job is to advocate on behalf of his client.”
On November 30 last year, 25-year-old Adam had been drinking with a female friend in her mid-forties who passed out on a couch.
The court heard Adam then pulled down her pants and underwear and sat across from her, masturbating. She woke up to find her friend masturbating and police were called.
Officers arrived and found Adam outside the house with the woman looking out of the front window.
The woman told officers she woke up and “felt bothered [and] was sore in the groin area,” Potter said.
A sexual assault test was completed at the hamlet’s health centre and, while male DNA was found, the sample did not definitively belong to Adam, said Potter.
Having been released on bail with strict conditions, Adam was then found drunk past his curfew after trying to get into woman's house, despite being ordered to have no contact with her.
Also while on bail for the original sex assault, after being involved in an argument with his mother, Adam used an axe to break several windows of government buildings and the Northern Store in Tuktoyaktuk. He also struck a gas pump outside the store. Total damages were less than $5,000, said Potter.
The joint recommendation would, in addition to four months for the sexual assault, proposed one day concurrent for the breaches of court orders and a suspended sentence for the mischief.
Several lesser charges would be dropped in the plea deal.
Adam would be under supervised probation for two years with the no-contact order regarding the woman continuing. He would take counselling, perform 60 hours of community service – in part to address the mischief charge – and abstain from alcohol and illegal drugs.
In a victim impact statement the woman said she was traumatized by the assault, felt violated, and experienced a loss of trust.
“In this case, [the intent] is to craft a more rehabilitative sentence to try to address the over-representation of Indigenous offenders in the system,” said prosecutor Potter, noting Adam was 10 years old when his residential school-surviving father committed suicide.
“[The victim stated that Adam] is not a predator. He does stupid things when he is under the influence of alcohol. That said, she doesn’t want anything more to do with him.”
Molloy was prompted to question if federal sentencing guidelines for Indigenous male offenders made “second-class victims” out of Indigenous women, echoing an argument made by some legal scholars and victim’s advocacy groups.
The longstanding Gladue principle, named after Cree woman Jamie Tanis Gladue, requires judges to take into consideration circumstances facing Indigenous peoples in order to arrive at an appropriate sentence.
The principle was aimed at addressing the over-representation of Indigenous people behind bars, as they could have arrived at their position in life due to the cumulative effects of colonialism and its ongoing legacy.
“What about the difficulties [the victim] has experienced [in her life]?” asked Molloy, noting Adam’s childhood history wasn’t as “compelling” as others he had heard.
The court heard Adam had enough credits to graduate high school and was selected in 2007 to travel with Northern Youth Abroad to Africa.
“[This is not the same] as earlier this week, when we were dealing with someone with severe emotional deficits," said Molloy. "[Adam] is no dummy.”
Molloy was referring to a Wednesday hearing at which he said Tuktoyaktuk residents “should consider locking their doors at night” until officials can suitably treat a man who assaulted women and children as they slept in their homes.
Gilbert Katigakyok, 25, was sentenced on Wednesday to time served for his third such sexual assault.
With terms that strayed slightly from the joint recommendation of different Crown and defence lawyers, Molloy placed Katigakyok on strict probation.
The judge expressed dismay at the territory's absence of “viable treatment options” for offenders like Katigakyok who have severe symptoms of a fetal alcohol spectrum disorder, or FASD.
A psychiatric assessment showed Katigakyok functions intellectually at the level of a child aged seven or eight.
In Adam’s case, Molloy adjourned the sentencing hearing until September 5.
He ordered Potter and Bock to prepare cases that better defend their joint submission, adding he would otherwise impose his own sentence.
Molloy said defence lawyer Bock could also determine if Adam might want to withdraw his guilty pleas and go to trial, if the joint submission doesn’t proceed.