Being startled from sleep to find a stranger with his hands on you “is a woman’s worst nightmare,” Judge Christine Gagnon told a sentencing hearing on Monday.
As she determined the fate of a Fort McPherson man who drunkenly broke into the homes of two women one night in 2019, Gagnon – addressing Territorial Court in Yellowknife – sent a message from the bench to the Beaufort Delta community.
“One thing that I noted when I heard this trial in Fort McPherson … is that there were many similar accusations on the docket that same day,” she said, listing cases of sexual assault, break and enter, assault, and mischief.
“It’s a factor that I find aggravating, the prevalence of these types of offences in the community of Fort McPherson.”
Max Stewart, now 21, was found guilty after trial in early 2020 of two counts of mischief, one each of sexual assault and assault.
On the same evening in early 2019 he entered the homes of two women, touching one on her thigh in “a sexual manner” and the other on her neck, perhaps just to wake her up, said the judge. In each case, he escaped after being confronted by the awakened victims.
Stewart had been charged with two counts of entering a dwelling-house with intent to commit an indictable offence. Gagnon, however, determined he was too intoxicated at the time to formulate intent and convicted him of the lesser counts of mischief.
In a victim impact statement, read aloud in court by Crown prosecutor Levi Karpa, the woman who was sexually assaulted said the attack left her fearful and suicidal.
“I never felt so disgusted … I even felt like suicide was the answer for me,” the statement read. “I get terrified thinking it’s going to happen again. I never slept until he was behind bars.
“I slept with a baseball bat beside me for over a month.”
The woman said she lost sleep, missed work, and was initially afraid to talk to anyone about what happened “because I was so embarrassed.”
However, she’s getting through the ordeal “slowly” with the help of her family, especially her sister.
“I’d feel more comfortable if he was in jail and paying for what he has done to me and the other victim. I will never forgive him or his family.”
Karpa argued for a total term of one year behind bars, followed by one year of supervised probation with conditions.
“The crown’s position is this is a serious sexual assault. While the invasiveness is at the lower end of the spectrum, the context is critical,” Karpa said, addressing the instance of the woman who was sexually assaulted.
“She was asleep … in her bedroom in her home – a place she should have been safe.”
Defence lawyer Katherine Oja argued Stewart’s change of community and vastly improved lifestyle choices since the offence call for a total sentence of time served for the sexual assault, which amounted to a remand credit of 117 days. She asked for a suspended sentence for the assault and mischief charges, followed by probation.
He is legally a first-time offender as he had been charged with an earlier, unrelated offence – but not yet convicted of it – at the time he entered the women’s homes. He is Métis, which calls for the judge to consider the Gladue principle.
The longstanding Gladue principle requires judges to account for the systemic or background factors that may play a part in bringing Indigenous offenders before the courts and sentence them accordingly.
Stewart has moved to Fort Smith and is the sole provider for his girlfriend, who is pregnant, the court heard. He is working in construction and hopes to upgrade his education to become a heavy equipment operator. He has support in Fort Smith from family and his employer.
Oja said her client has no memory of assaulting the women but accepts responsibility and was “shocked” when he heard what happened.
Gagnon, the judge, noted the two victims are Indigenous. She said she had to balance the over-representation of Indigenous men behind bars in Canada and the “over-victimization” of Indigenous women.
“Mr Stewart has made significant changes to his life and lifestyle,” she said, noting he has been sober since January 2020. “A community-based sentence will be appropriate.”
Stewart was sentenced to time served for sexual assault and assault. For the two counts of mischief, he received a conditional sentence – house arrest – of six months each to run concurrently. That will be followed by one year’s supervised probation.
As he is halfway through a conditional sentence handed to him last December for the earlier, unrelated offence, his new term will follow.
The conditional sentence is supervised in Fort Smith and comes with several conditions, including being required to be at home at all times except for work, medical concerns, and education. Stewart will also be allowed to care for his dogs, who don’t reside with him, at suppertime each day.
He can’t drink alcohol or take illegal drugs. He may have no contact in any way with the two women he victimized in the Beaufort Delta.
Stewart must provide a DNA sample for the national databank and be on the sex offender list for 10 years.