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Accused: T.Q.
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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not be published in any document or broadcast or transmitted in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.”
I. INTRODUCTION
[1] This case involves the application of the rule against multiple or
double jeopardy as enunciated by the Supreme Court of Canada in R
v Kienapple, [1975] 1 SCR 729, 1974 CanLII 14 (SCC) [Kienapple].
[2] The defendant T.Q. has pleaded guilty to two offences punishable by
summary conviction: namely,
[4] The parties (Crown and Defence) agree that the Kienapple rule
applies and that I may enter a conviction on only one of the two
charges, and that the remaining charge would be stayed.
II. BACKGROUND
[6] T.Q. is a 31 year-old Inuk man who lives with his family in a north
Baffin community. The incident which gave rise to the charge took
place in Iqaluit in January of 2018.
III. FACTS
[8] T.Q. and his wife were travelling to their home from Ottawa through
Iqaluit, and overnighted in Iqaluit. T.Q.’s wife has a sister who lives in
Iqaluit, so they went to her place for the night. They continued their
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journey home the next day. T.Q.’s wife was permitted to get on the
plane, but T.Q. was denied boarding because he was intoxicated, so
he went back to stay at his sister-in-law’s place.
[9] The victim also lives in this house. At the time of the offence, she was
14 years old, and is still T.Q.’s niece . At some point during the day
the victim’s mother went out, leaving the victim to care for a one year-
old child, but with T.Q. still in the house.
[10] T.Q. had been drinking again, and was fairly intoxicated. The victim
was sitting in her upstairs bedroom. T.Q. came into the room and
placed his hand under her shirt and felt her breasts; he then moved
his hand down towards her genital area. The victim resisted this, got
up, and went downstairs to attend to the one year old. T.Q., however,
persisted and followed her downstairs. He then repeated the precise
behaviour, doing the very same thing he had done upstairs.
[11] The victim would have none of this. Later in the day, she texted T.Q.’s
wife to the effect that “this morning T.Q. was touching me, he told me
not to tell you, but he’s married and I should tell.” T.Q.’s wife and her
sister (the victim’s mother) then discussed the matter and contacted
the police, as a result of which T.Q. was charged.
[12] During the sentencing hearing, I was told that T.Q. has been steadily
employed, with the same employer, for the past 12 years. This is not,
however, T.Q.’s first involvement in Court; in 2014 he was given a
period of probation for assaulting his wife.
[13] I was told T.Q. has a hazy memory of exactly how he touched the
victim because of his state of intoxication, but is prepared to accept
that whatever she (the victim) says happened is the truth. I am also
told that T.Q.’s behaviour towards his young niece is something for
which he is ashamed, but also that it is a one-off occurrence, which is
otherwise out of character for him.
[14] I was told as well that in January of last year, T.Q. was going through
a rough time. A few days or so before he committed the offence he
was told that his father, who had been ill since late 2017, was being
sent home to die. I am told that this is what prompted T.Q. to turn to
the bottle and to start consuming alcohol to excess.
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[15] The reason, however, I did not complete T.Q.’s case last November –
when he pleaded guilty – was because in addition to the charge of
sexual interference with a minor, he was also charged with the more
generic (or general) offence of sexual assault. And he pleaded guilty
to both charges – sexual interference and sexual assault.
[20] The Kienapple rule says that I must enter the conviction on the most
serious of the two charges.
[21] In Canada, there are two ways the Crown may choose to prosecute
most Criminal Code offences: summarily (by summary conviction) in
less serious cases; or by Indictment in more serious cases.
[22] In turn, depending upon this prosecutorial choice made by the Crown,
the penalties for the offences are different. Obviously, if the Crown
chooses to proceed by Indictment, then the prospective penalties are
higher than if the Crown had chosen to proceed by summary
conviction.
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[23] The Crown must make this choice (or election) before the accused is
called upon to enter any plea, because the accused must know the
prospective case scenario in terms of the penalties he may face
before entering a plea.
[24] By Indictment, both sexual interference (s. 151) and sexual assault (s.
271) have the same penalties where the victim is under the age of 16.
They are each punishable by a maximum penalty of not more than 14
years imprisonment, and a mandatory minimum penalty of not less
than one year imprisonment.
[26] The question is therefore whether – for the purposes of the Kienapple
rule – the offence of sexual assault is the more serious of the two
offences.
[28] If, however, the length of the sentence is not the only or even primary
factor to be taken into account in a determination of what constitutes
severity, then the answer is less clear, and more grey and nuanced.
[30] I suggest Parliament has not taken alternating views of the severity of
these two crimes, but rather, that from 2005 until today, Parliament
has simply taken a measured and evolving position as to how best to
categorize and punish these two crimes. And that Parliament has
done so completely independent of their relationship to one another,
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[31] The first (relevant) regime for these two offences spanned the era
from 2005 until roughly 2012.
[32] During this first era, by Indictment, both sexual interference and
sexual assault were punishable by not more than 10 years
imprisonment, but only sexual interference had a minimum mandatory
penalty (of 45 days). By summary conviction, both sexual interference
and sexual assault were punishable by 18 months imprisonment. But
only sexual interference had a mandatory minimum penalty (of 14
days).
[33] During this first era, sexual assault had no mandatory minimum
penalty (either by Indictment or summary). Sexual assault also had no
age component specified; while sexual interference necessarily had
an age component since it was an offence specific to underage
victims.
[34] Accordingly, during the first era if “numbers only” was the measuring
stick of severity, then clearly sexual interference was the ‘more
serious’ offence.
[35] The second regime spanned the era between 2012 and the end of
2014.
[38] Accordingly, during this second era if “numbers only” was the
measuring stick of severity, then clearly, the tide had been reversed,
and sexual assault (both by Indictment and summary conviction) had
become “the most serious offence.”
[41] The point is that for the very first time since 2005 – when proceeded
by Indictment – both sexual assault and sexual interference have
identical penalties where the victim is under 16 years of age.
[42] It is only by summary conviction that the penalties for these two
offences differ. Both are punishable now by two years less one day
imprisonment (only, however, in the case of sexual assault where the
victim is under 16 years of age).
[44] Thus, today we have the anomalous situation where if the Crown
proceeds by Indictment then neither offence is more serious than the
other, but by summary conviction sexual assault is more serious than
sexual interference.
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[45] The question is then “how can this be?” And the answer is, it cannot
be.
[46] In my view, the severity of the penalty (the highest sentence provided
for in the statute) is not necessarily the measure of which offence is
most serious.
[47] The application of the rule against double or multiple jeopardy should
not be determined by a “floating opera” of changing penalties. To
illustrate (where the victim is under 16 years of age):
Between 2005 and 2011: the most serious offence would have been
sexual interference (both by summary conviction as well as
indictment)
Between 2012 and 2015: the most serious offence would have been
sexual assault (both by summary conviction as well as Indictment)
[49] I find support for this approach in both case authority and Hansard.
Interestingly, the cases which deal with Kienapple in relation to ss.
151 and 271 involve more serious or high end fact scenarios where
the Crown had proceeded by Indictment, rather than less serious fact
scenarios where the Crown had proceeded summarily.
penalty, Parliament intended that the more serious of the two charges
was sexual interference.
[52] R v Hussein, 2017 ONSC 4202, 141 WCB (2d) 231 (CanLII)
[Hussein], is a case from today’s legislative era wherein the penalties
for sexual interference and sexual assault are – when the Crown
proceeds by Indictment – identical, both with respect to the maximum
penalty as well as the mandatory penalty.
[53] Thus, within the Kienapple paradigm, ‘numbers’ alone were no use in
Hussein to determine which of the offences is the most severe or
serious – and for which a conviction should be registered.
[54] In Hussein, it was actually the Crown position, which the Defence did
not dispute, that sexual interference best captured the nature of what
the offender had done.
[57] And today, in such serious cases, it is clear the appropriate conviction
is one for sexual interference.
[59] Such a default positon would reflect nothing more than a slavish
adherence to ‘numbers’ as the only or sole valid determining factor of
the severity of the crime.
[62] And this, in my view, is not changed by the fact a defendant may
actually choose or want to have a conviction registered for sexual
interference – as indeed, the defendant in this case has done. For
many first-time offenders, the very fact of a jail sentence is daunting.
And so they might accept the longer term stigma on their record, if it
meant serving even one day less in jail.
[63] There is ample support in the parliamentary record for the notion that
sexual interference should be regarded as one of the most serious
transgressions in our society. For example, in 2015 the then Minister
of Justice for Canada stressed the importance of protecting
vulnerable children when proposing amendments to the Criminal
Code such as the High Risk Child Sex Offender Data Base Act, which
is currently not in force.
XII. DISPOSITION
[66] In this case, I apply the principled approach found in Hussein, and
adopt the reasoning of LeMay J, above. I find that sexual interference
is the most appropriate offence for which a conviction should be
registered. And I enter a stay respecting the offence of sexual assault.
___________________
Justice N. Sharkey
Nunavut Court of Justice