2015 nucj 22 r v newkingnak

8/20/2019 2015 NUCJ 22 R v Newkingnak

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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICECour de justice du Nunavut

Citation: R. v. Newk ingnak , 2015 NUCJ 22

Date: 20150806

Docket: 12-10-9; 02-10-11Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: James Joanasie Newkingnak

________________________________________________________________________

Before: The Honourable Mr. Justice Kilpatrick

Counsel (Crown): B. McLaren; M. Girard

Counsel (Accused): S. Kert; J. Bedford

Location Heard: Iqaluit, Nunavut

Date Heard: July 24, 2015Matters: Criminal Code, s. 145(3); s. 271; s. 348(1)

REASONS FOR JUDGMENT

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


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DISCLAIMER PAGE

Restriction on Publication:

By court order made under section 486.4 of theCriminal Code

, “anyinformation that could identify the complainant or a witness shall notbe published in any document or broadcast or transmitted in anyway.”

Anonymized Judgment Disclaimer :

This judgment has been anonymized to comply with legislativerequirements to protect vulnerable parties. Letters have beenassigned at random to indicate a community.


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Table of Contents

REASONS FOR JUDGMENT ................................................................................... 1

I. INTRODUCTION........................................................................................................... 4

II. THE FACTS .................................................................................................................. 4

A. The sexual offences ................................................................................................ 4

B. The break and enter and commit aggravated assault and breach ofundertaking .................................................................................................................... 4

III. ANALYSIS .................................................................................................................. 6

A. Aggravating offence characteristics .................................................................... 6

B. Mitigating offence characteristics ...................................................................... 10

C. Mitigating factors related to the offender .......................................................... 10

D. Mitigating factors arising after the commission of the offences .................... 12

E. Jurisdictional considerations............................................................................... 15 VI. CONCLUSION .......................................................................................................... 17

A. Sentence calculation ............................................................................................. 17

B. Ancillary orders ..................................................................................................... 22


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I. INTRODUCTION

[1] Mr. Newkingnak has entered guilty pleas to two indictable sexualassaults, one count of break enter and commit aggravated assault,and one count of breaching his undertaking. He is now to be

sentenced for these offences.

II. THE FACTS

A. The sexual offences

[2] On April 30, 2010, two ten year old female children, AB and CD, areplaying inside a house in Community X . Mr. Newkingnak is staying atthis house with his parents. AB and CD enter Mr. Newkingnak’sbedroom. The children want to play videogames. AB is related to Mr.

Newkingnak. AB is Mr. Newkingnak’s cousin.

[3] Mr. Newkingnak, then twenty three years of age, starts to fondle AB’sbuttocks and vagina over top of her clothing. He attempts to take off

AB’s pants. AB resists and shouts for help from another adult who isknown to be in the house. No help comes. The other adult is asleep.

AB runs out of the bedroom leaving CD alone with Mr. Newkingnak.

[4] Mr. Newkingnak then turns his attention to CD. He starts to fondleCD’s vagina and buttocks over top of her clothing. After some time he

removes CD’s pants and briefly penetrates the child’s vagina or anuswith his penis. There is some bleeding.

[5] Mr. Newkingnak is sober when these events occur.

[6] Following his arrest on these allegations in May 2010, Mr.Newkingnak authors and signs an apology letter to the child victims.This letter says: “I’m sorry about what I did. I apologize. I will never dothis again and I will prevent it. I shouldn’t have done that and pleaseforgive me. God bless you all.”

B. The break and enter and commit aggravated assault and breach ofundertaking

[7] Subsequent to his release on an undertaking (Court Exhibit S-8) inrelation to the two sexual assault complaints, Mr. Newkingnak againcomes to the attention of the authorities.


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[8] In the morning of May 23, 2010, Mr. Newkingnak is berated by hismother. The verbal harangue triggers in Mr. Newkingnak some distantmemories of being bullied by Jeremy Newkingnak. Jeremy is relatedto Mr. Newkingnak. He too is a cousin. There have been two physicalaltercations between Mr. Newkingnak and Jeremy in the year

immediately preceding the commission of this offence. Jeremy is 25years of age.

[9] Mr. Newkingnak leaves the house in a rage. He picks up an axe fromhis father’s shed and heads for Jeremy’s house. Mr. Newkingnakwants to kill his former tormentor.

[10] The door to Jeremy’s house is locked. Mr. Newkingnak kicks it in. Heenters the house. He finds Jeremy asleep on a bed in one of thebedrooms. There is a brief verbal confrontation. Mr. Newkingnak

starts swinging the axe. Jeremy tries to defend himself with littlesuccess. Jeremy sustains a defensive wound to his hand. Two moreblows follow in quick succession. Jeremy is struck twice in the headwith the axe. There is much blood loss. Mr. Newkingnak’s ragedissipates quickly after the third blow is delivered. He decides thatwounding his cousin is sufficient revenge. He breaks off his attackand leaves the residence.

[11] Jeremy’s grandmother is in the house when this attack occurs. Shesees Mr. Newkingnak inside. She hears a disturbance. She hears

Jeremy cry out. Seconds later she hears her grandson crying. Onentering the bedroom she finds Jeremy in a very distressed condition.The head injuries are grave.

[12] Jeremy is medically evacuated from Community X to Iqaluit. FromIqaluit he is evacuated to Ottawa where he undergoes emergencybrain surgery to correct a large depressed skull fracture. A piece ofskull is removed to allow removal of dead brain matter and to relievepressure on the brain caused by swelling. Jeremy remains in hospitalfor approximately two weeks.


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[13] Exhibits filed in this proceeding (Court Exhibit S-3) includephotographs of the injuries sustained by Jeremy together with post-operative medical reports. To this day, Jeremy continues to sufferfrom the physical and psychological injuries sustained in the attack.His personality has changed. His quality of life has been affected.

This is reflected by a victim impact statement authored by Jeremy andby follow up neurology/medical reports and reports from a consultingpsychologist.

[14] Mr. Newkingnak turns himself in to the RCMP. He cooperates with theinvestigating authorities and assists in the recovery of the axe.

[15] When this latest offence is committed, Mr. Newkingnak is bound byan undertaking (Court Exhibit S-8) that had been imposed a monthearlier in relation to the two sexual assaults. A fundamental condition

of this release process was a condition requiring Mr. Newkingnak tokeep the peace and be of good behavior. In committing the break andenter offence Mr. Newkingnak is in willful breach of this releaseprocess.

III. ANALYSIS

A. Aggravating offence characteristics

(i) The sexual offences

[16] This Court reiterates what it said in the case of R v DeJaeger , 2015NUCJ 02, 2015 CarswellNun 4 [DeJaeger] , at paragraphs 122 to 129:

[122] A child’s immaturity and lack of sophistication leaves the childvery vulnerable to exploitation by others, particularly adults. The

limited strength, size, and physical endurance of the child limits the

child’s ability to defend against sexual abuse. The child is easy tooverwhelm physically. The child is easy to overwhelm emotionally.

The younger and smaller the child, the more vulnerable he or she

becomes. The moral culpability of an adult who exploits this

vulnerability for reasons of personal sexual gratification is extremelyhigh.


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[123] Adolescents are emotionally fragile. For a child victim of sexual

abuse, the potential range of impacts can be as broad as they can be

severe. The child’s sense of self respect, their ability to trust and bondwith others, and their sexual identity are all things that are easily

damaged. As the sexual violence increases in severity, or where sexual

victimization is prolonged or repeated, the psychological damageassociated with this form of violence is likely to be enhanced. Sexualviolence to an adolescent can be expected to leave a trail of damage

and destruction in its wake. This damage can last a lifetime.

[124] This psychological harm may manifest itself in depression and

self-destructive behaviour later in life. It may fuel substance abuse and

addiction as the child turns to alcohol and drugs in an effort to dull the

pain. This damage may generate intense anger and interpersonalconflict with others. With loss of self-respect, there is an enhanced risk

of suicide and self-harm.

[125] Mistrust of others is usually an enduring legacy of child sexual

abuse. Once lost, a child’s trust in adults will be difficult to recover.

This mistrust may cause the child to withdraw socially from those

around them, particularly other adults. The victim’s ability to formmeaningful intimate relationships with others later in life may be

compromised. A close relationship may become much more difficult

to achieve….

[127] The child’s limited communication skills and comprehension

may limit the therapeutic intervention that is available to undo the

harm caused by sexual abuse. Psychotherapy and other forms ofcounselling will become increasingly less effective as the age and

sophistication of the victim decreases. The very young may not be

positioned to participate in this process due to their limitedcomprehension and communication skills.

[128] Remedial processes to assist victims are further complicated forunilingual Inuk children who must participate in the process through

an interpreter. The expertise necessary to address sexual victimization

of very young Inuit is not available in Inuktitut.

[129] Many of Nunavut’s remote arctic communities lack the

therapeutic expertise needed to address the special needs of the child

victim of sexual abuse. Effective therapeutic intervention will likely

require removal of the child to a distant centre at prodigious publicexpense. The victim’s life and the life of the victim’s immediate

family will be disrupted by this. The remedial processes may

themselves become may themselves become a source of stress andadditional trauma for the young.


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[17] For all the reasons outlined above, the deliberate removal of clothingand subsequent penile penetration of the child CD by Mr. Newkingnakpropel this particular offence to the highest level of moral culpability.The Court can do no better than to repeat again what it said inDeJaeger at paragraphs 130 to 134:

[130] Growing recognition of the tragic human consequences

associated with this type of crime has caused a shift in sentencing jurisprudence over the last two decades. This jurisprudence now

requires the Court to put special emphasis upon the sentencing

principles of denunciation and deterrence when addressing sexualoffences against children. This approach was established in common

law jurisprudence long before Parliament chose to codify this principle

by enacting section 718.01 of the Canadian Criminal Code, RSC 1985,

c C-46 [Criminal Code], in 2005.

[131] While rehabilitation remains an important goal of sentencing inthis case, as in any other, deterrence and denunciation must remain the

primary or paramount consideration of the sentencing court. This isnecessary to properly reflect both the vulnerability of this class of

victim and the very real potential for such offences to cause significant

psychological harm to the young.

[132] The high moral blameworthiness associated with this type of

offence lies in an offender’s willful assumption of the risk of causing

such harm. This moral culpability does not turn on whether harm isactually caused or not. Where actual harm is established, it is a

seriously aggravating feature. The absence of harm cannot reduce theoffender’s moral blameworthiness because the risk of causing harm toa child by these offences is always present.

[133] Denunciation is necessary to preserve and protect thefundamental social values that are infringed by this type of criminal

behaviour….

[134] Children need the law’s protection. The child or adolescent lacks both the physical means and the sophistication needed to adequately

protect themselves from predatory adults. A deterrent sentence

becomes necessary to protect a vulnerable class of victims from thosewho are prepared to risk harming others in order to satiate their ownselfish sexual desires. This protection is to be achieved, at least in part,

through the imposition of exemplary sentences that deter other like-

minded individuals from pursuing this same course of action.


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[18] The victim impact statements filed by AB (Court Exhibit S-4), CD(Court Exhibit S-5), and CD’s mother (Court Exhibit S-6) suggest thatthese children’s lives have been, and continue to be, affected by theirmemory of these unfortunate events.

[19] There is no real evidence to suggest that Mr. Newkingnak held aposition of trust in relation to these children. There is nothing tosuggest that, at any time, he exercised any parental or supervisoryauthority over the children in this home. There is no suggestion thatany threats were made by Mr. Newkingnak to ensure that the childvictims remained silent.

[20] The child victims were staying in a residence shared by Mr.Newkingnak and his parents. There is no evidence to suggest that Mr.Newkingnak had any role in luring the children into his bedroom. Nor

is there any evidence to suggest that Mr. Newkingnak groomed thechildren in preparation for these attacks.

[21] The two sexual offences before the court appear to be spontaneousand opportunistic, not planned or premeditated.

(ii) The break and enter and commit aggravated assault

[22] This was a home invasion. The forced entry into a residence by Mr.Newkingnak was done with the express intention of harming anoccupant of the home who was expected to be found inside. The

attack that followed Mr. Newkingnak’s entry into the home was thuspremeditated. A weapon was first obtained for the purpose of eitherkilling or inflicting grievous bodily harm on Jeremy. The weapon ofchoice was capable of achieving either objective. Mr. Newkingnak hadsome time for his anger to cool as he walked towards Jeremy’sresidence. He had time to think better of what he intended to do, yethe persisted.

[23] Jeremy’s grandmother can also be counted as a victim of this offence.She was exposed to the sounds of her grandson being attacked. In

the aftermath of the violence, this Elder was exposed to hergrandson’s trauma. She was undoubtedly traumatized by what shesaw and heard.


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[24] This was not a fair fight. The victim was vulnerable. He had noweapon. He was attacked while lying in his bed. There is no evidenceto suggest that Jeremy had any opportunity to block the blows of theaxe with anything other than his hand before being struck in the head.

[25] The result of this violence was catastrophic. The victim has suffered,and will likely continue to suffer, from the physical and emotionaltrauma associated with his injuries for years to come. His life willnever be the same. This is demonstrated in part by Jeremy’s victimimpact statement (Court Exhibit S-7) and the various reportscontained in Court Exhibit S-3.

B. Mitigating offence characteristics

(i) The sexual offences

[26] The Court is unable to identify any mitigating offence characteristics.

[27] There is no evidence to suggest that Mr. Newkingnak was in any waymistaken about the nature and quality of the acts that he hadperpetrated. He was sober. He knew what he was doing. He knewthat involving children in sexual activities was both legally wrong andmorally reprehensible. His letter of apology reflects this.

(ii) The break and enter and commit aggravated assault

[28] This offence falls at the very high end of moral culpability. There areno mitigating factors associated with this offence.

[29] Mr. Newkingnak was sober. There is no suggestion that Jeremy inany way provoked this offence. There can be no claim that this wasan act taken in self-defence.

C. Mitigating factors related to the offender

[30] Mr. Newkingnak is now 28 years of age. He was 23 years of agewhen these offences were committed. He has no criminal record.

[31] Mr. Newkingnak suffers from a number of cognitive deficits. Testingdone by the Nunavut Corrections [Corrections] psychologist, DoctorPodmoroff, suggests that while Mr. Newkingnak has non-verbalperformance skills that are average, his language skills fall into thementally deficient range. He has very limited command of English. Mr.Newkingnak is functionally illiterate.


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[32] While Mr. Newkingnak has achieved a Grade 9 education, hisacademic abilities fall well below this grade level. Mr. Newkingnakreads at a Grade one level. For sentence comprehension, Mr.Newkingnak scores at a level associated with kindergarten. Forspelling he is rated at a level associated with Grade 2. Dr. Podmoroff

indicates that this type of finding is not uncommon in Nunavut. Mr.Newkingnak is the product of an education system that until recentlywas driven by social promotion and not academic performance.

[33] The overall spread of scores achieved through the testingadministered by Dr. Podmoroff is nonetheless described as beingunusual, and possibly indicative of underlying neurological problems.Such a finding has not been confirmed, however. This requires furthermedical testing to diagnose. This testing is beyond the expertise ofthe Corrections psychologist.

[34] At a young age, Mr. Newkingnak was the victim of a sexual assault.The Court has been given few details of the intrusiveness of thisassault or its impact upon Mr. Newkingnak.

[35] Mr. Newkingnak is of Inuit descent. The Court is required to factor intoits analysis systemic factors that have led Aboriginal citizens in thiscountry to become marginalized, disadvantaged, and overrepresented in the criminal justice system’s prisons. The Court hasdone so.

[36] Mr. Newkingnak’s primary language is Inuktitut. He knows littleEnglish. He has acquired the on-the-land skills long-practiced andrevered by the Inuit. These skills are central to the Inuit’s sense ofcultural identity. Mr. Newkingnak has grown up in a very isolated andremote arctic community where wage employment is very limited.Opportunities for advancement, given the quality and extent of hiseducation, are few. Mr. Newkingnak has taken advantage of what fewemployment opportunities have become available to him inCommunity X .

[37] Mr. Newkingnak has the full support of his family. His mother is theChair of the local justice committee. The Justice Committee isprepared to work with Mr. Newkingnak when he is released fromcustody and assist with his reintegration into the community.


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D. Mitigating factors arising after the commission of the offences

[38] The guilty pleas to these various offences are entitled to significantweight in mitigation of sentence. There are two reasons for this. Sucha position encourages offenders to accept responsibility for their

misdeeds. This also recognizes the great benefits associated withrelieving complainants of their obligation to testify.

[39] The trial process requires witnesses to relive their experiences in apublic setting. Witnesses are subjected to close examination bylawyers. The reliability or credibility of their evidence is oftenchallenged. Raw emotions are exposed by this. There is greatanxiety, humiliation, and anger generated by this truth findingprocess. Testifying in a trial environment can exacerbate old traumaand create new trauma. This is particularly true of children who are

required to testify and relive traumatic events that they haveexperienced. It is also true of many adult witnesses who may strugglewith post-traumatic stress long after a frightening or violentexperience has passed.

[40] The guilty pleas in this case are accompanied by genuine remorse.The letter of apology written by Mr. Newkingnak to his young victimsspeaks to this.

[41] Mr. Newkingnak has acquired credit for pre-trial detention that must

be applied in mitigation of sentence.

[42] Mr. Newkingnak has experienced significant delay as a result ofrepeated turn-overs in the lawyers representing him. His first lawyerwithdrew from the file as a result of Mr. Newkingnak asking to berepresented by Mr. A. Mahar. Mr. Mahar was later appointed to thebench necessitating the appointment of another lawyer. Mr. P. Hartethen took over, only to leave the territory and the file months later.Only then did Mr. Newkingnak’s present counsel assume carriage ofthe file. Further delay was caused by a decision to seek the expertopinion of forensic psychiatrists in relation to Mr. Newkingnak’s stateof mind during the commission of the break and enter.


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[43] As of August 6, 2015, Mr. Newkingnak will have been in pre-trialdetention for a period of 1,902 days. This amounts to 5.21 years ofactual custody. Crown and Defence urge the Court to apply credit forthis time at the rate of 1.5 days for each day of actual serving time.Most of Mr. Newkingnak’s pre-trial detention has been served at the

Baffin Correctional Center [BCC] . Conditions at this facility aredeplorable. An enhanced rate of credit is warranted to compensate forthese conditions.

[44] Using this formula, the total time to be credited to Mr. Newkingnak forpre-trial detention as of the date of this judgment stands at 2,853days.

[45] Mr. Newkingnak is also entitled to substantial consideration for hisactive involvement in programming during his stay in pre-trial

detention. He has participated in all programs made available to himwhile in BCC. He has completed a low intensity 10 week program insexual offending offered by Dr. Podmoroff. He has completed aprogram of anger-management. He has been engaged in educationalupgrading. He has received counselling from elders.

[46] Mr. Newkingnak’s demonstrated motivation for treatment ultimatelyresulted in his transfer to the Rankin Inlet Healing Facility where hecontinued to participate in remedial programming to address his manyissues.

[47] The reality in Nunavut is that many forms of remedial counselling andtreatment are not available in the communities. Specialized training isneeded to address sexual offending, domestic violence, mental healthissues, and drug and alcohol dependencies. Many other jurisdictionsin Canada offer specialized programming for sex offenders anddomestic violence that is community based. Most jurisdictions havesome form of residential treatment available for serious drug andalcohol dependencies.

[48] Nunavut’s Community Corrections [Community Corrections] does notoffer any form of treatment for sex offenders at the community level,despite a very high per capita incidence of this type of offending.There are no specialized relapse prevention programs. Rankin Inlet isthe only community in Nunavut that offers a dedicated treatmentprogram for domestic violence. This program is not run by CommunityCorrections.


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[49] Community Corrections has neither the funding nor the capacity todeliver these specialized treatment programs at the community level.In Nunavut, beleaguered social workers and probation officers in thecommunities are tasked to take on the additional burden of providingthe counselling and follow up needed to address these serious issues.

Though well intentioned, these community workers are not positionedto provide the specialized therapy needed to address these issues.They have neither the time given their large caseloads nor theexpertise needed to be effective.

[50] The high recidivism rate in Nunavut is driven in part by the absence ofviable treatment options available to citizens in the communities. Inthe absence of community based treatment options, probation orderscan have little impact on the lives of disadvantaged and dysfunctionalcitizens who come before the court needing help. Where offenders

continue to reoffend, gaol becomes the only viable option open to thecourt to protect the public.

[51] The funding needed to access specialized treatment programsoutside Nunavut is under the control of a different governmentdepartment. The Nunavut Department of Health does not consideritself bound by court orders for specialized treatment outside theterritory. This is particularly true for orders requiring offenders to takeand successfully complete residential treatment programs for drugand alcohol dependencies as a condition of probation.

[52] The Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code], and the Controlled Drugs and Substances Act, SC 1996, c 19, wasamended some years ago to allow a court to adjourn sentencing inorder to facilitate an offender’s attendance at government approvedtreatment programs. Mandatory gaol sentences for certain types ofoffences can then be avoided in circumstances where offenderscomplete these approved programs. The Government of Nunavut hasyet to designate or approve any programs in Nunavut, or elsewhere,under these provisions of the Criminal Code.

[53] The court has had to adjust its sentencing posture to reflect the starkrealities of Nunavut. By ensuring that a sentencing benefit is affordedto those citizens who take advantage of programming, programmingthat is only available to those in custody, the court seeks toencourage participation in remedial programming by all inmates.Some programming in custody is better than none at all.


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E. Jurisdictional considerations

(i) The sexual offence

[54] The prevalence of a particular type of crime is relevant to the need for

emphasis on general deterrence as a sentencing principle.

[55] Nunavut leads the country in the per capita rate of commission ofsexual offences. This is also true of sexual offences committed byadults on children. This type of crime remains a persistent andpressing problem in all of Nunavut’s communities. The informationpresented below is based on a review of the comparative informationcollected by Statistics Canada in their Incident-Based crime statistics.

As in DeJaeger :

[173] Produced below are graphs that starkly demonstrate the alarming

incidence of sexual violence generally and sexual violence against

children in Nunavut that compare Nunavut's crime rates to the rest ofthe country and the northern territories.

[…]

[176] Children are victimized in Nunavut at a much greater per capita

rate in comparison to Canada as a whole.


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[56] The high incidence of sexual offences generally and crimes againstchildren in particular requires a firm response by a sentencing court inNunavut. The need to emphasize general deterrence through anexemplary sentence is enhanced under these circumstances.

(ii) The aggravated assault and home invasion

[57] Nunavut also leads the country in its per capita rate of serious violentcrime1 generally2.

1 For a breakdown of the crimes covered by the Violent Crime Severity Index , please see Appendix A at the end of this judgment.2 Statistics Canada, Crime Severity Index, by province and territory, 2014 (Ottawa: Statistics Canada, 22July 2015), online: .

http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/legal51a-eng.htmhttp://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/legal51a-eng.htmhttp://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/legal51a-eng.htmhttp://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/legal51a-eng.htm


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Summary Chart of the 2014 Crime Severity Index Table

[58] Serious violent crimes in Nunavut also merit a firm response from thecourt. The sentencing principle of proportionality demands this.Denunciation and deterrence must be stressed in a jurisdiction wherethis type of violence is becoming commonplace.

VI. CONCLUSION

A. Sentence calculation

[59] Without adjusting for totality, and taking into account both the guiltyplea and Mr. Newkingnak’s remorse, a sentence of 4 years gaol would be appropriate for the rape of the 10 year old child CD. Aconsecutive sentence of 6 months would be appropriate for thefondling of AB, taking into the account the lower level of severity ofthis offence.

[60] The home invasion and aggravated assault would ordinarily merit aconsecutive sentence of 8 years custody, with a further consecutiveterm of two months for the associated breach of undertaking.

0

50

100

150

200

250

300

350

400

450

Crime Severity Index (2006=100)

Violent Crime Severity Index

(2006=100)


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[61] If this sentence of 12 years and 8 months (4,620 days) exceeds theoverall moral culpability of this offender and his antecedents then itmust be reduced in accordance with the sentencing principle oftotality. The end result must not only reflect the seriousness of theseoffences committed by this offender in this jurisdiction, but must also

take into account Mr. Newkingnak’s relatively young age and lack ofcriminal history. All the evidence suggests that Mr. Newkingnak hassignificant potential for rehabilitation. The principle of restraint ascodified in section 718.2(e) of the Criminal Code must be consideredand applied in these circumstances.

[62] Mr. Newkingnak’s ongoing commitment to his rehabilitation whileincarcerated tips the scale in terms of the overall length of sentence.But for the lack of criminal history and Mr. Newkingnak’s continuousinvolvement in programming, the sentence would have been longer.

[63] Had Mr. Newkingnak been convicted of the offence of attemptedmurder, the sentence would likely have fallen well into the doubledigits.

[64] The Court notes that while much progress has been already beenmade by Mr. Newkingnak in programming, there is still much work tobe done. Dr. Podmoroff testified that Mr. Newkingnak lacks realinsight into his own sexual offending. This must be addressed prior torelease. Mr. Newkingnak also needs to address his own history of

victimization and the trauma flowing from this. Unless or until theseissues are addressed, Mr. Newkingnak is said to be at moderate riskof reoffending.

[65] The sex offender programming taken by Mr. Newkingnak at BCC wasdescribed as being low intensity. This was programming gearedtowards prevention. It was not programming designed to address thespecific therapeutic needs of the individual offender. High intensitysex offender programming is not available until an offender issentenced. Therapists could not address Mr. Newkingnak’s ownsexual demons until his guilt was formally acknowledged in court.Now that this has been done, the real therapy can begin. The Courtrecommends that Mr. Newkingnak be given intensive sex offendertherapy prior to his release.


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[66] Dr. Podmoroff testified that Mr. Newkingnak would benefit from thetrauma therapy provided through the Mamisarvik residential programin Ottawa. The Court therefore recommends that Mr. Newkingnak beconsidered for early release to attend this program. In making thisrecommendation, the Court acknowledges that it is powerless to

ensure that the Government of Nunavut follows through with therecommendation of its own Correctional psychologist.

[67] In the end result, after applying the totality principle, Mr. Newkingnakis sentenced as follows:

a. For the sexual assault of AB: 116 days custody;

b. For the sexual assault of CD: 1,095 days custody

consecutive;

c. For the home invasion and aggravated assault ofJeremy: 2,370 days custody consecutive;

d. For the breach of undertaking: 1 day custodyconsecutive; and,

e. From this sentence of 3,582 days gaol (9.81 years) acredit of 2,853 days must be applied for Mr.

Newkingnak’s extensive pre-trial detention. Thisleaves a balance of 729 days (two years less oneday) gaol remaining to be served. This sentence willbe served in a territorial custodial institution.

[68] This sentence is broken down as follows:

a. Sexual assault of AB - 28 days remaining to beserved with a credit of 88 days for a total sentence of116 days of custody;

b. Sexual assault of CD - 200 days remaining to beserved with a credit of 895 days for a total sentenceof 1,095 days of custody;


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c. Home invasion and aggravated assault of Jeremy – 500 days remaining to be served with a credit of1,870 days for a total sentence of 2,370 days ofcustody; and,

d. Breach of undertaking – 1 day remaining to beserved.

[69] By the time Mr. Newkingnak is released from prison he will havespent almost a quarter of his natural life in custody.

[70] The Court recommends that this sentence of imprisonment be servedby Mr. Newkingnak at the Rankin Inlet Healing Facility . This will allowMr. Newkingnak to continue his healing journey. Programming at thisfacility can be provided in Mr. Newkingnak’s primary language of

Inuktitut.

[71] Pursuant to section 743.21 of the Criminal Code, Mr. Newkingnak isprohibited from having any contact with the three named victims whileserving this sentence of custody.

[72] Following his release from custody, Mr. Newkingnak will be subject toa probation order for a period of three years. The conditions of theprobation order will be as follows: Mr. Newkingnak must:

a. Keep the peace and be of good behavior;

b. Report to a probation officer within 7 days of his release fromcustody and thereafter report to and be under the supervisionof the probation officer for the full duration of the probationorder;

c. Take, and successfully complete, if directed by his probationofficer, sex offender counselling, anger managementcounselling, and trauma counselling related to his ownvictimization;


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d. Have no contact directly or indirectly with any of the victims(except such contact as is approved in advance by theprobation officer in writing); Any such contact must beconsented to by the victims and must be supervised by aresponsible adult (Some of the victims are related to Mr.

Newkingnak. The exceptions built into this condition wouldallow for an attempt at offender/victim reconciliation with thepossible involvement of the local Justice Committee);

e. Not go within 50 metres of the victim’s residences;

f. Have no unsupervised contact with any child under the age of14 years. Any contact with a child under the age of 14 yearsmust occur in the immediate presence of a sober adult;

g. Not live (or over-night) at any house in which a child under theage of 14 years is resident;

h. Report to the Justice Committee of Community X as and whendirected by his probation officer if resident in this community;

i. Take such traditional counselling from elders as directed bythe probation officer;

j. Follow all the reasonable directions of the Justice Committee;

and,

k. Attend court in person within 12 months of his release fromcustody for the purpose of a probation review. The time, date,and place of this review is to be set by the probation officer(The Court sets this probation review in an effort to determinewhat steps, if any, the Government of Nunavut has taken toaddr ess Mr. Newkingnak’s indicated therapeutic needs).

[73] The Court is under no illusion. The treatment needed to address Mr.Newkingnak’s risk of reoffending is not available in Community X .This community does not presently have its own resident probationofficer. Supervision of citizens on probation is currently being done bytelephone by Pangnirtung’s probation officer. The Court expectsCommunity Corrections to make every effort to arrange for some formof community supervision for this offender on the ground inCommunity X .


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B. Ancillary orders

[74] Pursuant to section 109 of the Criminal Code, Mr. Newkingnak isprohibited from possessing or using any firearms, ammunition, orexplosives for a period of 10 years from the date of this order. Any

such items now in his possession or under his control must be lawfullydisposed of within 30 days of this order.

[75] Mr. Newkingnak is prohibited for life from possessing any prohibitedor restricted firearm, prohibited weapon or device, or prohibitedammunition. Any such items now in Mr. Newkingnak’s possession orunder his control must be surrendered immediately to the nearestpolice detachment. Any such items are ordered forfeited to the

Attorney General for the purpose of destruction.

[76] Mr. Newkingnak is a subsistence hunter. He is granted an exemptionunder section 113 of the Criminal Code to use a firearm forsubsistence hunting purposes only.

[77] Mr. Newkingnak is ordered to submit a sample of his DNA forregistration in the national DNA databank. This order is mandatory forprimary designated offences as defined by section 487.04 of theCriminal Code.

[78] Mr. Newkingnak is ordered to submit himself to the processes of the

national Sex Offender Registry as set out in sections 490.11 throughto 490.16 of the Criminal Code. This order is for life.

[79] Mr. Newkingnak is ordered to pay a victim fine surcharge of $400.00for the four indictable offences. This is to be paid within four years ofthe date of this order.


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[80] Pursuant to section 161 of the Criminal Code, Mr. Newkingnak isprohibited from seeking or obtaining any employment, whetherremunerated or not, or becoming a volunteer in any capacity thatinvolves being in a position of trust or authority to any person underthe age of 16 years. This order is for 15 years.

Dated at the City of Iqaluit this 6th day of August, 2015

___________________Justice R. Kilpatrick

Nunavut Court of Justice


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Appendix A

Source: Nunavut Court of Justice, Ingirranivut Our Journey: A Statistical andComparative Review of Crime and Court Operations in Nunavut 2000-2012, (Iqaluit:

Nunavut Courts, 2012), at 9, online .

The following crimes are considered violent crimes for the purposes of

the Violent Crime Severity Index:

Murder - 1st and 2nd degree

Manslaughter

Infanticide

Criminal negligence causing death

Other related violations causing death

Attempted murder

Conspire to commit murder

All sexual assaultsSexual interference

Invitation to sexual touching

Sexual exploitation

Incest

Anal intercourse

Bestiality - commit or compel or incite

Corrupting morals of a child

Luring a person under 18 via computer

Voyeurism

All assaultsUnlawfully causing bodily harm

Trap, likely to or causing bodily harm

Discharge firearm with intent

Using firearm or imitation in commission of offence

Pointing a firearm

Assault against peace or public officer

Criminal negligence causing bodily harm

Forcible confinement or kidnapping

Hostage-taking

Trafficking in persons

Abduction under 14, not parent or guardian

Abduction under 16

Removal of children from Canada

Abduction under 14, contravening custody order

Abduction under 14, by parent or guardian

Robbery

Robbery of firearms

http://www.nunavutcourts.ca/annualreportshttp://www.nunavutcourts.ca/annualreportshttp://www.nunavutcourts.ca/annualreportshttp://www.nunavutcourts.ca/annualreports


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Extortion

All intimidation offences (to justice system participant, journalist or other)

Criminal harassment

Harassing phone calls

Uttering threat to person

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