Message of deterrence not reaching NWT sex offenders, says judge

The number of sexual assaults against women in the territories is “staggering” and “outrageous,” a court heard this week.

Supreme Court Justice Andrew Mahar, sentencing a Sahtu man to two and a half years in jail for raping his cousin in 2018, said he had “no faith that what we are going to do here today will have any significant impact.”

Mahar said the territory’s “imperfect system” left him and others with “no alternative but to denounce sexual assaults and do whatever little we can to deter this type of behaviour.”

Crown prosecutor Brendan Green said despite courts imposing “stern sentences for these offences for decades, we still see a depressingly steady flow of these cases through the courts.”

Green told the court sentencing practices alone cannot solve the issue. 

“The courts have a role to play in sending a consistent message and using the tools they do have to continue to express, case after case, that this type of conduct is unacceptable, harmful and will be met with severe consequences,” he said.

Statistics Canada recently published data in which almost two in five northern women reported being sexually assaulted since the age of 15. Women were three times more likely than men to report being sexually assaulted.

Quoting those figures, Green said the Fort Good Hope man who stood accused in the case “can’t bear responsibility for society’s failures.”

The man, in his mid-fifties, can’t be named to protect his victim’s identity.

In September 2018, he raped her in a cabin outside Norman Wells. She then had to walk seven kilometres to a friend’s house, where police were called.

The man was found guilty of sexual assault at a February jury trial in Norman Wells.

At trial, the man testified that he believed the woman had consented to having sex – described as an “honest belief” by Mahar.

“But this was not a consensual event. The victim did resist,” said the judge.

“[The rape] left her seriously scarred. Sexual assaults impact people in the most personal and intimate way. Even though there might not be physical injuries, the psychological injuries can be lifelong.”

At trial, the woman said she had suicidal thoughts and she had lost trust in people. The woman has since left the community and her whereabouts are not known, the court heard.

Paraded barefoot at Grollier Hall

Green asked for a sentence of three years, noting that an offender facing a similar crime – but without Gladue factors playing a role – would be looking at a sentence of up to five years.

Three years is the accepted starting point for sexual assault sentencing of this nature in the NWT when the offender has no criminal record.

The longstanding Gladue principle requires judges to consider the systemic factors under which Indigenous offenders can end up in court, and make sentencing decisions accordingly.

The Crown acknowledged there were significant Gladue factors in this case. The accused endured a “horrific experience,” as noted later by Mahar, at the Grollier Hall residential school in Inuvik. He was paraded barefoot on gravel roads as a child and was the target of rock-filled snowballs thrown by other residents.

The man has a scar on his face to this day from one of those snowballs, the court heard.

In a separate Gladue report prepared at his request and paid for by his lawyer, Peter Harte, the man revealed he was a victim of sexual abuse at the school.

This abuse resulted in a longstanding problem with alcohol. The man said many of his Grollier Hall classmates turned to alcohol as they grew older and several died.

Harte noted his client had used his time in remand taking courses and counselling, stating the man is the best example of someone working to rehabilitate themselves that Harte had seen.

He questioned the need for any further time in jail and called for a sentence of time served, which equals the 497 days’ credit the man has earned. Each day in remand normally earns an accused 1.5 days at sentencing.

“Does going to jail for an extra six months make [a victim] feel better?” asked Harte, noting the national over-incarceration rates for Indigenous people. “Suggesting victims are rendered a disservice if sentences aren’t long enough … suggesting victims are somehow going to feel better with longer sentences, it just isn’t getting us anywhere.”

Harte said the current, tough sentencing guidelines represent doing the same thing over and over while expecting a different result – the definition of insanity.

Prosecutor Green said regardless of the positive steps Harte’s client has taken, “We can’t ever forget what happened to [the victim]” and the man’s personal improvements after the fact “don’t undo what happened in her life.”

Said Justice Mahar: “That’s a very interesting philosophical question.” 

Repression of anger

The man stood in court and read from several handwritten pages.

“I feel like I am rehabilitated and ready to return to society in Fort Good Hope,” said the man.

“I used my time [in jail] to work on my communication skills … to work on my anger. Repressing it only makes it worse. Communication is the only way to handle anger.”

He said he hopes to be able to get out on the land to “get my identity back” and “survive in a colonial world.”

Mahar eventually settled on a 2.5-year sentence. That means the man will have 415 days left to serve.

That will be followed by two years’ probation during which he can’t contact the victim, should continue counselling and must not consume alcohol.

A sentencing recommendation was made to have the man housed at the lower-security Fort Smith Correctional Complex and targeted for early-release work programs.

He will be on the national sex offenders’ registry for 20 years and will be banned from owning a firearm for 10 years, although he can apply for a sustenance exemption.