An NWT defence lawyer says sentencing her client to a lengthy period of supervision would be “casting too wide a net” in determining who counts as a long-term offender.
In NWT Supreme Court on Tuesday, Katherine Oja argued the Crown had not proven beyond a reasonable doubt that her client Johnny Simon qualified as a long-term offender by posing a substantial risk of committing further sexual assaults.
Oja said it’s important not to “paint Mr Simon with an overly broad brush.”
Simon faces being designated a long-term offender – which carries important consequences for how he is sentenced – after being convicted of one count of sexual assault against a woman in Inuvik in 2017. This is his third sexual assault conviction.
On Monday, prosecutor Robert Morgan Fane argued Simon should be sentenced to two and a half years in prison for the sexual assault followed by eight years’ supervision. Fane cited Simon’s criminal record and an assessment by a forensic psychologist that found Simon is at risk of reoffending.
Oja, however, argued for a sentence of two years and said Simon’s crimes aren’t serious enough to warrant long-term supervision. She said the court should have a high threshold when it comes to what qualifies as substantial risk, given that long-term supervision infringes on an offender’s freedom of movement and liberty.
Requirements for long-term supervision
Long-term offenders can be supervised for up to 10 years by Corrections Canada after they are released from prison. While under supervision, they are restricted in terms of where they can live and can be reincarcerated if they breach court conditions.
The designation aims to protect the public from those at risk of reoffending violently, while reintegrating offenders into the community.
There are three requirements under the criminal code for an offender to be designated a long-term offender.
First, they have to be convicted of one of a number of sexual offences. Second, that offence has to be part of a pattern of repetitive behaviour that shows a likelihood of the offender causing injury, death, or severe psychological damage to another person. Finally, an offender’s conduct in the commission of that offence must show a likelihood they will cause “injury, pain, or other evil” to other people through future, similar offences.
Oja argued that while Simon has a lengthy criminal record – including 11 violent offences – his three sexual offences aren’t enough to prove a pattern. She noted they were committed over a 19-year period with significant gaps in between each offence.
Simon’s other violent convictions, Oja said, involved pushing, punching, kicking, chasing someone with an axe, and holding up a knife. She argued that doesn’t meet the level of violence required for a long-term offender designation.
Oja did concede that Simon’s most serious convictions, those against his grandfather, showed he is capable of extreme violence.
Simon was convicted of aggravated assault after beating his grandfather unconscious at his home in Fort McPherson in late 2008. The elderly man died in hospital in early 2009. While Simon was considered medically responsible for the death, he was not considered legally responsible.
Oja said Simon has never exhibited that type of violence against anyone else, however, and argued that case was exceptional due to the “very horrific,” “unique,” and “troubled” relationship between Simon and his grandfather.
Simon has claimed he was both physically and sexually abused by his grandfather. He has also blamed his grandfather for his mother’s murder and questioned whether his grandfather could be his father.
Corrections Canada ‘not effective’
Oja said if Justice Louise Charbonneau does find that Simon meets the requirements for a long-term offender, she should use her discretion not to issue the order due to Simon’s Gladue rights.
These rights are based on a Supreme Court of Canada decision which says judges must consider the unique circumstances of Indigenous offenders and rehabilitation in sentencing. It aims to reduce the over-incarceration of Indigenous people in Canada’s criminal justice system.
Oja said Simon is not entirely responsible for his behaviour as his crimes are related to the trauma he has experienced. He has been impacted by the legacy of residential schools and the 60s Scoop, and at a young age became addicted to alcohol and inhalants.
While a long-term supervision order may be effective in monitoring and reincarcerating Simon, Oja said it will not help with his rehabilitation. Instead, she argued, it will set him up for failure as Simon is likely to breach conditions related to alcohol.
Oja referenced a 2010 report that found federal corrections programming had not reduced recidivism rates for Indigenous offenders.
“The reality is CSC [Correctional Services Canada] is not effective in rehabilitating Indigenous offenders,” she said.
If Charbonneau does decide to issue a long-term supervision order, Oja said it should be for five years, rather than the eight years the Crown has requested.
A forensic psychologist testified that after eight years, when Simon will be 50 years old, his risk of re-offending will be “small or quite low.” Oja said, however, the standard should be when Simon is not at substantial risk of reoffending, which will happen several years before then.
Addressing Justice Charbonneau, Simon himself said the long-term offender application has scared him and he wants to quit drinking both for his own good and that of his children.
He said while he has dwelt on the past, he has been studying the Bible and is working on forgiving his grandfather. He apologized for all of his actions.
Charbonneau told Simon that while he may be anxious for his court proceedings to be over, his is a challenging case and it will take time to consider the evidence.
She is scheduled to give her decision on the matter on the morning of October 23.