Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R. v. J.Q., 2015 NUCJ 09

Date:
Docket:
Registry:

20150325
10-13-I-44
Iqaluit

Crown:

Her Majesty the Queen

-and-

Accused:

J.Q.

________________________________________________________________________
Before:

The Honourable Mr. Justice Burrows

Counsel (Crown):
Counsel (Accused):

Jenna Montgomery
Tamara Fairchild

Location Heard:
Date Heard:
Matters:

Pangnirtung, Nunavut
February 12, 2015
Criminal Code, s. 151; s. 271

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

DISCLAIMER PAGE
Restriction on Publication:

By court order made under section 486.4 of the Criminal

Code, any information that could identify the
complainant or a witness shall not be published in any
document or broadcast or transmitted in any way.

Anonymized Judgment:

This judgment has been anonymized to protect

vulnerable parties. Letters have been assigned at
random to indicate a community.

Table of Contents
REASONS FOR JUDGMENT ................................................................................... 1
I. INTRODUCTION........................................................................................................... 4
II. EVIDENCE .................................................................................................................... 5
A. Complainant testimony ........................................................................................... 5
B. Accused testimony .................................................................................................. 5
III. ANALYSIS ................................................................................................................... 6
IV. POSITIONS OF COUNSEL ...................................................................................... 9
A. Crown ....................................................................................................................... 9
B. Defence.................................................................................................................... 9
V. CASE LAW ................................................................................................................. 10
A. R v Arcand .............................................................................................................. 10
B. Nunavut case law .................................................................................................. 12
VI. AGGRAVATING AND MITIGATING FACTORS ................................................. 14
VII. CONCLUSION ......................................................................................................... 17
A. Probation conditions ............................................................................................. 17
B. Ancillary Orders ..................................................................................................... 18

I. INTRODUCTION
[1]

J.Q. pled guilty to one count of sexual assault (Canadian Criminal

Code, RSC 1985, c C-46 [Criminal Code] s. 271) and one count of
sexual interference (Criminal Code s. 151).

[2]

He admitted that on April 19, 2013, he had sexual intercourse with the
then 15 year old sister of his common-law wife when they were both
extremely intoxicated. There was no suggestion that he believed the
complainant to be over 16 years of age. By Criminal Code s. 150.1(1),
because she was under the age of 16, it would not have been a
defence if the complainant had consented to the sexual activity which
Mr. J.Q. admitted took place.

[3]

On the basis of these admissions, and having found that the

requirements of Criminal Code s. 606 had been satisfied, I found Mr.
J.Q. guilty of the offences to which he had pled guilty. However,
applying the Kienapple principle (Kienapple v R, [1975] 1 SCR 729,
15 CCC (2d) 524), I directed that a conviction be entered only in
respect of the offence of sexual assault (Criminal Code s. 271). On
the Crowns application, a conditional stay was entered in respect of
the offence of sexual interference (Criminal Code s. 151).

[4]

After Mr. J.Q. pled guilty, the Crown sought to prove, as an

aggravating factor for sentencing purposes, that he had forced himself
on the complainant that she had not consented to the sexual
intercourse in fact. In particular, the Crown alleged that Mr. J.Q. had
taken the complainant to the bedroom against her will, removed her
clothes despite her objections, ignored her verbal request that he
stop, and held her hands behind her back while the sexual intercourse
occurred.

[5]

The accused denied these particulars.

II. EVIDENCE
A. Complainant testimony
[6]

The Crown called the complainant to give evidence to prove the

alleged aggravating factor. On the Crown's application pursuant to
Criminal Code s. 486, I ordered that the public be excluded from the
courtroom while the complainant testified. When I announced that
order, community members who were in the community hall where
court was being held, a significant number of people, left the room.
The complainant testified in camera.

[7]

The complainant testified to a version of events consistent with the

description given above. She also testified that her relationships with
her sister and other members of her family, in particular her
grandmother and her aunts, were severely damaged following their
learning that the sexual intercourse had taken place. On the date of
the sentencing hearing, February 12, 2015, some 22 months after the
event, the complainant and her sister were still estranged. I
understand the complainant's relations with other relatives have also
not been rehabilitated. The complainant testified that she would like to
have the same relationships with her family members as she had
before.

[8]

The complainant's sister has forgiven Mr. J.Q. Their family unit
consisting of Mr. J.Q., the complainant's sister, and their three
children, is intact.

B. Accused testimony
[9]

Prior to Mr. J.Q. testifying as to his version of events, I interrupted the

proceedings, on the record, to observe that I had concerns about the
utility of the evidentiary proceeding which the Crown had chosen to
initiate. I suggested that the proceeding itself was capable of doing
further damage to the complainant's family relations, especially given
that the complainant, at the Crown's initiative, had testified in camera,
but Mr. J.Q. would testify in public. As a result, members of the
community attending court would only hear one side of the story.

[10] To my mind, there was a serious concern that the judgments of

community members made after hearing only one side of the story
could cause further damage to the complainant's family relations and
the prospect of their being restored. This, I thought, would significantly
outweigh the significance the aggravating factor, if proved, could
possibly have in the determination of a fit sentence. I made these
observations after the complainant had been cross-examined and
when reason to question her credibility, which I discuss further below,
had been exposed. Crown Counsel elected, however, to proceed.
[11] Mr. J.Q. testified. He denied that the particulars of the sexual
encounter which resulted in the charges included the force or violence
to which the complainant testified. He testified to a version of events
that involved no uninvited physical contact.

III. ANALYSIS
[12] At the conclusion of the evidence, I found that the Crown had failed to
prove the alleged aggravating feature beyond a reasonable doubt.
Notwithstanding Counsels' expectations to the contrary, I did not
make any specific findings of fact beyond the finding that the alleged
aggravating factor had not been proved beyond a reasonable doubt. I
concluded that no good, but rather potentially significant harm could
result from doing so.
[13] I held that the alleged aggravating factor had not been established
because I found the complainants testimony not sufficiently credible
to prove it beyond a reasonable doubt. My reasons included these
points:
The complainant testified that as a result of her and her
sister drinking together she became very intoxicated, yet,
she testified that she remembered well everything that
happened while she was intoxicated;
The complainant went to her own home after the sexual
intercourse. In direct examination, she testified that she
told her mother what had happened. In cross-examination,
she acknowledged that she did not say anything to her
mother until after her sister had telephoned her mother and
expressed anger at what had happened;

The complainant testified that when the police came the

next day, her mother, who did not like Mr. J.Q. even before
these events, told her, out of the hearing of the police, We
have to win over [J.Q.];
The complainant testified at the preliminary inquiry that the
day after the encounter with Mr. J.Q., she was afraid that
she would be in trouble for having consumed alcohol while
under age. She did not tell the police that she had been
drinking. She tried to make the police think that only Mr.
J.Q. and her sister had been drinking;
The complainant testified in chief that when she was
intoxicated she passed out on the floor because she was
tired. In her police statement, she said that she had passed
out on the couch where her sister had also passed out. In
cross examination, she testified that she did not recall
saying that in her police statement. The Crown
acknowledged that the police statement accurately
recorded what she said to the police;
Similarly, the complainants evidence at trial and her police
statement were not consistent as to how she got to the
bedroom where the sexual intercourse occurred and as to
the position of her hands during the intercourse.
[14] It may be that the complainant was testifying truthfully. It may also be
that Mr. J.Q. was testifying truthfully. However, an aggravating factor
alleged by the Crown must be proved beyond a reasonable doubt. I
was not satisfied beyond a reasonable doubt.
[15] In my view, as I expressed during the submissions of counsel, it was
not necessary for me to make any finding as to which of the two
versions of events was fact and which was not. The Crown was
unable to meet the onus of proof for the aggravating factor it alleged.
Mr. J.Q. admitted that sexual intercourse occurred. The complainant
was incapable of giving legally valid consent to the sexual intercourse.
It would not constitute a mitigating factor if she had given de facto
consent (R v Pritchard (2005), 371 AR 27 (Alta CA), 2005 ABCA 240,
at para 7; R v Revet (2010), SKCA 71, 256 CCC (3d) 159, at para
12).

[16] In these circumstances, I concluded that no purpose would be served

by a finding as to whether or not the complainant had in fact (though
not in law) consented to the sexual activity. The concerns I expressed
prior to Mr. J.Q.s testimony, in my view, gave me reason not to
engage in any further unnecessary discussion of the circumstances.
In my view, the bottom line was sufficient - the alleged aggravating
factor was not proved beyond a reasonable doubt.
[17] Accordingly, in my view, the circumstances of the offence which need
to be considered in determining a fit sentence are as follows. Mr. J.Q.
had sexual intercourse with the 15 year old complainant when they
were both heavily intoxicated. This occurred in Mr. J.Q.'s home while
his common-law wife, the complainant's sister who was also heavily
intoxicated, was asleep in another room. The complainant had
become intoxicated through drinking hard liquor provided to her by
her sister, before Mr. J.Q. arrived in the home. Mr. J.Q. had become
intoxicated while visiting a friend. The evidence of the complainant
and of Mr. J.Q. was consistent on these points.
[18] As to the circumstances of the offender, Mr. J.Q. is presently 31 years
old. As mentioned he has a common-law spouse. They have been
together 13 years. They have four children, three of whom are in their
care. He was raised in Community X by his grandparents because his
parents were unable to care for him. He has grade 11. He is currently
unemployed, though he has had employment in the past and he
works on the land, hunting and fishing. He has a criminal record.
There is no prior sexual offence on his record, but there are
convictions for offences involving violence against women. Prior
sentences have included incarceration. He acknowledges he has had
a significant problem with alcohol which began more than 20 years
ago when he was a child. He associates its commencement with the
death of his grandfather.

IV. POSITIONS OF COUNSEL

A. Crown
[19] Ms. Montgomery, for the Crown, submitted that a fit sentence would
be 3.5 to 4.5 years. She submitted that the three year sexual assault
starting point discussed and applied by the Alberta Court of Appeal in
R v Arcand, 2010 ABCA 363, 264 CCC 3d 134 (Alta CA) [Arcand],
should apply in Mr. J.Q.s case. She submitted the sentence should
be increased from the starting point because the complainant was
under 18, a statutory aggravating factor pursuant to Criminal Code s.
718.2(a)(ii.1). She submitted that it was also aggravating that the
offence occurred in family circumstances. In reply submissions, she
further suggested that it was aggravating that, according to the
complainant, Mr. J.Q. had been involved in providing the complainant
with some of the alcohol she consumed. Ms. Montgomery
acknowledged that Mr. J.Q.s guilty plea should have some mitigating
effect.
[20] Ms. Montgomery declined my invitation to advise the Court how her
submission differed from the submission she would have made had
the aggravating circumstance, which she had sought to prove through
the testimony of the complainant, been proven beyond a reasonable
doubt.
B. Defence
[21] Ms. Fairchild, for Mr. J.Q., submitted that a fit sentence was 18
months incarceration. My memory as I draft these reasons is that she
also submitted that the period of incarceration should be followed by a
period of probation, but my notes made during the submissions do not
match my memory.

10

[22] In reply to the Crowns reliance on Arcand, Ms. Fairchild submitted

that the strong criticism of the majority decision by the minority in the
same case, and the even stronger criticism of the Arcand majority by
the majority in another Alberta Court of Appeal case (R v Lee, 2012
ABCA 17, 524 AR 22 [Lee]), and in academic commentary, justified
not following it. In particular, she observed that the majority in Arcand
did not address the Criminal Code s. 718.2(e) imperative concerning
consideration of the circumstances of Aboriginal offenders. She
submitted that a sentence of 18 months incarceration for a Nunavut
offender in Mr. J.Q.s circumstances was consistent with the decisions
of judges of the Nunavut Court of Justice. In particular, she cited R v
Nookiquak, 2005 NUCJ 16, 2005 CarswellNun 14 [Nookiquak].

V. CASE LAW
A. R v Arcand
[23] In R v Arcand (as cited above), the 18 year old Aboriginal accused
was convicted of sexual assault after trial. The complainant, who was
distantly related to the accused, was a few years older than him. The
complainant passed out while the two were sitting on a bed watching
television and drinking. The complainant woke up to find the accused
on top of her with his penis in her vagina. She had done nothing to
encourage the accused to have sex with her. The Alberta Court of
Appeal set aside a sentence of 90 days intermittent imprisonment and
three years probation for sexual assault and substituted a sentence of
two years less a day and two years probation.
[24] A majority consisting of three of the five judge panel of the court which
heard the appeal, observed that the starting point for a major sexual
assault, which the accused had committed, was three years. It was a
reviewable error for the trial judge to ignore the authority, binding on
him, setting that starting point. The court said:
The corollary of a court of appeals authority to set properly defined
staring points is that sentencing judges will give due consideration to
those starting points and the process that starting point sentencing
entails. (para. 273)

11

[25] In Arcand, the majority (at para. 274) observed that denunciation and
deterrence must be given considerable weight in sentencing for
major sexual assault. Whether or not that label should be applied to
Mr. J.Q.s offence, I accept that denunciation and deterrence are of
fundamental importance in the determination of a fit sentence for his
crime.
[26] In Arcand, the majority (at para. 280) mentioned the importance of the
principle of parity in the determination of a fit sentence. As appears
below, my consideration of the principle of parity, parity with
sentences imposed in Nunavut in similar circumstances, contributes
to my conclusion that the 3.5 to 4.5 year sentence proposed by the
Crown is not fit.
[27] In Arcand, the majority identified aggravating and mitigating factors
influencing adjustments from the starting point. With regard to the fact
that the accused was Aboriginal, the majority observed only this:
The particular attention to be given to the circumstances of the
offender as an Aboriginal person under s. 718.2(e) of the Code does
not adjust the situation greatly here. If those circumstances were to be
replicated for a non-Aboriginal young person, the effect would be
much the same. Serious sexual assaults on women, including
Aboriginal women, continue to be a clear and pressing problem in this
country. (para. 294)

[28] Two members of the court in Arcand dissented from many of the
conclusions stated by the majority, though not from the conclusion
that a fit sentence for Mr. Arcand was two years less a day and two
years probation.
[29] Ms. Fairchild observed that in Lee, the two judge majority rejected the
majority judgment in Arcand as having been decided per incuriam.

12

[30] In that case [Lee], Berger J.A. emphasized the importance of

proportionality as the governing principle of sentencing under Part
XXIII of the Criminal Code. He said:
A just sentence is one that is proportionate to the gravity of the
offence and the degree of responsibility of the offender. It is one that
is commensurate with the moral blameworthiness of the offender
and one that accords with the purposes and objectives of sentencing set
out by Parliament in ss. 718.1, 718.2 and 718.3 of the Criminal Code.
The appropriate sentence will also depend on the circumstances of the
community in which the offence took place: R v. M. (C.A.) [1996] 1
S.C.R. 500 and R v. Gladue, [1999] 1 S.C.R. 688. (emphasis added)
(para. 8)

[31] Berger J.A. also referenced academic criticism of the failure of the
majority in Arcand to do more than make passing reference to R v
Gladue, [1999] SCJ No 19, [1999] 1 SCR 688 (QL) [Gladue]. In
particular, he cited Jonathan Rudins article in the volume 48 issue of
the Alberta Law Review1.
[32] Though, before me, Ms. Montgomery submitted that the three year
starting point discussed in Arcand should be applied in this case, she
did not cite any authority from the Nunavut Court of Appeal defining
major sexual assault or setting a starting point for such an offence,
and I have found none myself.
B. Nunavut case law
[33] In R v Christensen, 2004 NUCA 4, [2000] Nu J No 14 (QL), the
Nunavut Court of Appeal (in a decision written by Fraser C.J. who, 10
years later, as Chief Justice of the Alberta Court of Appeal, was in the
majority in Arcand), imposed a sentence of two years less a day on a
22 year old offender who plead guilty to the sexual assault of an adult
complainant. The court made no mention of the starting point
approach to sentencing, by then well established in Alberta, except to
observe that the sentence imposed should not be taken as a starting
point.

Jonathan Rudin, Eyes Wide Shut: The Alberta Court of Appeals Decision in R. v. Arcand and
Aboriginal Offenders (2011) 48:4 Alberta Law Review at 987.

13

[34] In R v BT, 2007 NUCA 3, [2007] Nu J No 16 (QL) [B.T.], the Nunavut

Court of Appeal upheld a sentence of 20 months incarceration and
probation imposed by Browne J., a resident Nunavut Court of Justice
judge, on a 19 year old offender who threatened the complainant who
refused to have sex with him and then sexually assaulted her. The
accused had pled guilty. Though the appeal judges thought the
sentence was less severe than they might have imposed, they
deferred to the judgment of the resident judge. Conrad J.A. wrote:
The Supreme Court of Canada in R. v. C.A.M., Lamer, C.J.C. discusses
the concept of protecting the community as part of the sentencing
process as follows at para. 91:
Perhaps most importantly, the sentencing judge will normally
preside near or within the community which has suffered the
consequences of the offenders crime. As such, the sentencing
judge will have a strong sense of the particular blend of sentencing
goals that will be just and appropriate for the protection of that
community.
We are satisfied that this is just such a case. The sentencing judge was
familiar with the community and its needs. . . .
Familiar with the community, the sentencing judge was concerned
about this young accused returning to the community without proper
treatment and control upon his return. She crafted a judgment to meet
those concerns. . . . (paras. 13, 14 and 15)

[35] In B.T., the Nunavut Court of Appeal did not mention the starting point
approach to sentencing, though it appears that the Crowns position
as to a fit sentence, which the court rejected, had the Alberta starting
point in mind. The Crown had submitted that a fit sentence was three
years incarceration.

14

[36] In Nookiquak, Kilpatrick J., a resident judge of this Court, expressly

declined to adopt the starting point approach first adopted by the
Alberta Court of Appeal in R v Sandercock, [1985] AJ No 817, (1986)
22 CCC (3d) 79, and reaffirmed in Arcand, in the sentencing of an
Aboriginal accused convicted of the sexual assault of a 16 year old
complainant. The circumstances of the offence were perhaps more
serious than the circumstances admitted or proven in this case. The
complainant, a guest in the accuseds home, had gone to sleep and
awoke to find the accused having unprotected sexual intercourse with
her. Like Mr. J.Q., Mr. Nookiquak pled guilty. Unlike Mr. J.Q., Mr.
Nookiquak had no criminal record. The circumstances before the
Court included that the offense had profound negative impact on the
complainant. There is no such evidence before me, except in relation
to the profoundly negative consequences to the complainants family
relationships. Kilpatrick J. determined that a fit sentence in all the
circumstances was 18 months incarceration.
[37] In R v JG, 2008 NUCJ 12, [2008] Nu J 12 (QL), the accused pled
guilty to four counts of sexual assault. His victims had been young
girls who, on separate occasions, were sleep-over guests of his
daughter. The sexual assaults consisted of touching the children in
the area of their genitals while they slept. In one case, the child was a
relative and had been abused about 12 times over two years.
Kilpatrick J. imposed a sentence of 14 months in respect of one of the
offences and one month consecutive in respect of each of the other
three, for a total sentence of 17 months.
[38] Like Kilpatrick J. in Nookiquak, I reject the Crowns submission that
the sentencing of Mr. J.Q. should be approached using a starting
point of three years and then adjusting for aggravating and mitigating
circumstances.

VI. AGGRAVATING AND MITIGATING FACTORS

[39] In my view, the only significant aggravating factor is Mr. J.Q.s
criminal record which, as mentioned, includes crimes involving
violence against women, but does not include any previous sexual
offence.

15

[40] I do not accept the Crowns submission that the fact that the offence
happened within family circumstances is aggravating. The negative
consequences to the complainants family relations appear to me to
have resulted from the responses of family members to what they
have concluded was her conduct more than from what Mr. J.Q. did.
[41] The suggested aggravating circumstance that Mr. J.Q. supplied some
of the alcohol which the underage complainant consumed is also
rejected. It was not proven beyond a reasonable doubt that Mr. J.Q.
supplied any alcohol to the complainant. It was proven that her sister
provided the alcohol and that the complainant had become intoxicated
by that alcohol prior to Mr. J.Q. arriving at the residence.
[42] Criminal Code s. 718.2(a)(ii.1) deems it to be aggravating that the
offence involved the abuse of a person under 18 years of age.
However, in my view the aggravating effect in the case of sexual
assault of a 15 year old where consent is legally impossible and no
force or violence other than the sex act itself was proven must be
considerably less than in other circumstances.
[43] Mr. J.Q.s guilty plea should be recognized as a significant mitigating
factor. In R v A.B., 2011 NUCJ 15, [2011] Nu J No 17 (QL), Cooper J.,
a resident judge of the Nunavut Court of Justice, sentenced a 24 year
old Aboriginal male who pled guilty to sexually assaulting his older
sister on three occasions over four years to incarceration for two
years less a day and two years probation. In her reasons for decision,
she discussed the mitigating effect, indeed the rehabilitative effect, of
a guilty plea in the unique Nunavut context (beginning at para. 20):
[20] Courts frequently cite guilty pleas as mitigating factors on sentence.
This court has stated several times that guilty pleas are significant
mitigating factors, particularly in certain types of offences, and that a
guilty plea must mitigate sentence in a real and meaningful way.
[21] This is so for several reasons. A guilty plea saves the court the time
and expense of a preliminary hearing and trial. This is significant in a
jurisdiction that is struggling with a high rate of serious violent crime and
a shortage of judicial resources.

16
[22] Most importantly, however, a guilty plea spares the victim from
having to come to court and testify. The Court acknowledges how
difficult it would have been for the victim to have come to court to testify
against her brother. It is not unusual in this jurisdiction for witnesses in
such cases to simply not come to court or, if they do come, to refuse to
relate what occurred.
[23] Nunavut has a small population. Even our largest communities are
small. When an offender is released from jail they most often return to
their home community the place where the offence occurred. Unlike big
cities in the South, anonymity is not an option. Cultural ties, family
bonds, and personal circumstances make moving to the South an
unrealistic option for many. There is a tremendous shortage of housing so
when offences are perpetrated by one family member on another, and the
two of them share a home, the offender and the victim frequently continue
to reside in the same home upon the offenders release from jail.
[24] The court in Nunavut has sometimes been criticized for arriving in a
community, dealing with cases, and then simply leaving without having to
deal with the aftermath of disharmony in the community and the family.
[25] Restoring harmony in the community and the family is of the
upmost importance and the court must do what it can to facilitate that
process. A guilty plea, as it is an acknowledgement of wrongdoing and an
acceptance of responsibility, is a first step in that process. This case is a
prime example of the rehabilitative impact of a guilty plea.
[26] A preliminary inquiry and trial, pitting sister and brother against
each other, might well have torn this small family apart permanently. The
victims acceptance of ABs apology and his acknowledgment of
wrongdoing and acceptance of responsibility at the earliest opportunity
means that reunification of the family is possible.

[44] In my view, the prospect of this type of positive effect flowing from Mr.
J.Q.s guilty plea in this case has been severely jeopardized by the
Crowns, in my view, ill-advised attempt to prove the alleged
aggravating factor. However, this makes no difference to the
significance of the guilty plea as a mitigating factor in the
determination of a fit sentence in this case.

17

VII. CONCLUSION
[45] Responding to the Criminal Code s. 718.2(e) imperative, as
interpreted by the Supreme Court of Canada in Gladue, and R v
Ipeelee, [2012] SCJ No 13, [2012] 1 SCR 433 (QL), to give particular
attention to the circumstances of Aboriginal offenders when
determining the extent to which sanctions other than imprisonment
are reasonable in the circumstances, I note the aspects of Mr. J.Q.s
background, identified above, which may have played a part in
bringing him before the Court. I give particular regard to the just
quoted observations of Cooper, J. about the importance of
rehabilitation of the accused as a member of the community in which
he is practically obliged to live following his release from custody. In
my view a term of probation following incarceration is the best tool the
Court has to affect that end.
[46] These considerations have led me to the conclusion that a fit
sentence in this case is the sentence proposed by Ms. Fairchild. A fit
sentence in this case, subject to credit for pre-sentence custody,
would be 18 months followed by one year probation.
[47] As of today, Mr. J.Q. has been in custody for 42 days since I reserved
my decision after the sentencing hearing of February 12, 2015. In my
view, because he has served those 42 days in facilities notorious for
their poor condition and because there will be no statutory remission
for the days he has served, he should be entitled to credit of one and
one-half days for each of those 42 days. That is 63 days, or two
months, credit. The term of imprisonment, which pursuant to Criminal
Code s. 719(1) commences today, is therefore 16 months.
[48] As required by Criminal Code s. 719(3.3) I state for the record that Mr.
J.Q. has spent 42 days in custody. The term of imprisonment that
would have been imposed before any credit is 18 months. The
amount of time credited is 2 months. The sentence imposed therefore
is 16 months.
A. Probation conditions
[49] The conditions of the probation, in addition to those prescribed by
Criminal Code s. 732.1(2), shall be that Mr. J.Q.:
a. Must report to a probation officer within 7 days of his release
from custody and thereafter when required by the probation
officer and in the manner prescribed by the probation officer;

18

b. Must participate in any counselling or treatment, particularly

in relation to alcohol abuse, that the probation officer may
arrange for him.
B. Ancillary Orders
[50] The Crown sought several ancillary orders, as follows:
1.

Non-communication order: I order pursuant to Criminal

Code s. 743.21(1), that Mr. J.Q. not communicate with
the complainant directly or indirectly while he is serving
the custodial period of his sentence.

2.

Sex Offender Information Registration Order: I order,

pursuant to Criminal Code s. 490.012(1), that Mr. J.Q.
comply with the Sex Offender Information Registration
Act, SC 2004, c 10, for a period, pursuant to Criminal
Code s. 490.013(2)(b), of 20 years.

3.

Order of Prohibition: I decline to make an order of

prohibition pursuant to Criminal Code s. 161. In my view,
nothing in the proven circumstances justifies such an
order.

4.

Firearms Prohibition: I decline to make a firearms

prohibition order pursuant to Criminal Code s. 109. Such
an order is mandatory when the court is sentencing for an
indictable offence in the commission of which violence
against a person was used, threatened or attempted and
for which the person may be sentenced to imprisonment
for ten years or more. Applying the reasoning of Shaner
J., in R v P.S.T., 2012 NWTSC 86, [2012] NWTJ No 103
(QL), at paras. 58 to 63, I conclude that the situation
covered by s. 109 does not exist in this case.

5.

DNA Sample: I order pursuant to Criminal Code s.

487.051(1), the taking of DNA samples from Mr. J.Q.

[51] In Criminal Code s. 737, Parliament has imposed a further penalty on

Mr. J.Q. a victim surcharge which, pursuant to Criminal Code s.
737(2)(b)(ii) [s.737], is $200. Parliament has given the Court no
discretion on any aspect of the victim surcharge. It is mandatory.

19

[52] This case was before me during the Courts sitting in Pangnirtung. In
the course of that sitting, several accused asked me to grant them
time to pay the surcharge which Parliament had imposed on them in
s. 737. It appears, however, that s. 737 gives the Court no discretion
even to do that.
[53] Criminal Code Section 737(4), provides that where, as here, no fine is
imposed, the surcharge is payable within the time established by the
lieutenant governor in council of the province in which the surcharge
is imposed for payment of any such surcharge. Counsel, both Crown
and Defence, appearing at the Pangnirtung sitting were not aware of
the Nunavut equivalent of the lieutenant governor in counsel of the
province having made any provision in response to s. 737(4). They
invited me, however, for the sake of practicality, to make an order
granting time to pay to the offenders upon whom liability for
Parliaments surcharge fell.
[54] In the absence of any other practical way to deal with this detail
(which it appears Parliament has imperfectly dealt with) I assumed an
inherent jurisdiction to do what is reasonable and just and granted the
offenders 6 months to pay.
[55] Accordingly, I order that Mr. J.Q. have 6 months from the date of his
release from custody to pay the $200 surcharge.

Dated at the City of Iqaluit this 25th day of March, 2015

___________________
Justice B.R. Burrows
Nunavut Court of Justice