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Citation: Date: Docket: Registry:
R. v Joamie, 2013 NUCJ 19
20130904 08-10-846; 08-10-81 Iqaluit
Her Majesty the Queen
________________________________________________________________________ Before: Counsel (Crown): Counsel (Accused): Location Heard: Date Heard: Matters: The Honourable Mr. Justice Kilpatrick D. Garson S. Weildon Iqaluit, Nunavut June 25 and August 29, 2013 Criminal Code, RSC 1985, c. C-46, ss. 271
REASONS FOR JUDGMENT
(NOTE: This document may have been edited for publication)
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made under section 486.4 of the Criminal Code, “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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. CIRCUMSTANCES OF THE OFFENCE  On January 16th, 2010, Peter Joamie attended a house party in Iqaluit. Much alcohol was consumed by those adults at the party including Mr. Joamie. The 24 year old complainant K.C. passed out on a couch in the living room. She had had far too much to drink.  Mr. Joamie wanted to have sex. Mr. Joamie decided to take advantage of K.C.’s vulnerability. Mr. Joamie pulled down K.C.’s pants and panties. He then dropped his own pants and put on a condom. Mr. Joamie was getting on top of K.C. when two female adults returned to the living room. As a result of their intervention, Mr. Joamie stopped what he was doing. He pulled up his pants. The police were called.  Mr. Joamie was arrested by the RCMP shortly thereafter. He was intoxicated. Mr. Joamie was cooperative with the RCMP. He later admitted in a statement to the RCMP that he had intended to have sexual intercourse with K.C.  Mr. Joamie has entered a guilty plea to the indictable offense of sexual assault. He is now to be sentenced for this offence. II. OFFENCE CHARACTERISTICS  Mr. Joamie took advantage of an unconscious victim who lacked any means of protecting herself. The moral culpability of those who exploit the vulnerability of a sleeping or unconscious victim for their own selfish sexual gratification is very high. The risk of causing serious psychological harm to a victim by such conduct is real. A victim’s self-respect and their ability to trust and relate to others are all things that are easily damaged. This damage can potentially last a lifetime.  Sexual offences involving unconscious victims are all too common in the City of Iqaluit, and in Nunavut generally.
 Nunavut leads the country in its per capita rate of sexual offences. (See: Nunavut Court of Justice, Ingirranivut Our Journey: A statistical comparative review of crime and court operations in Nunavut 2000-2012, Table 2.4 and the source listed therein, (Iqaluit: Nunavut Court of Justice, 2012)).  An emphasis upon the sentencing principles of denunciation and general and specific deterrence is ordinarily required for offences of this kind committed in these circumstances. In the absence of exceptional circumstances, a custodial disposition will usually flow from a conviction for this type of offense. III. MITIGATING CIRCUMSTANCES A. The Guilty Plea
 There was a guilty plea in this case, but it cannot be said to be an early plea. Mr. Joamie initially elected to have a trial by judge and jury. He also asked to have a preliminary inquiry. There have been no fewer than 18 prior appearances in court over the last three years. This matter has been set to proceed to a preliminary inquiry on three occasions. On two of these occasions Mr. Joamie failed to appear and a warrant was issued for his arrest. There have been no fewer than three warrants issued for Mr. Joamie’s arrest over the history of this proceeding. If there has been delay, much of this delay falls at the feet of the Defendant.  The evidence against Mr. Joamie was substantial. He had been caught in the act by two independent witnesses. He had given a statement to the RCMP admitting the offense. The police had seized a condom at the crime scene. DNA found on the condom matched the accused’s DNA profile.  While it is true that the guilty plea has spared the complainant and others the trauma or embarrassment of having to testify about their experiences, the Crown’s witnesses were required to come to Court on three separate occasions as a result of Mr. Joamie’s insistence upon a preliminary inquiry.
 While Mr. Joamie receives some credit for the guilty plea, the reelection and guilty plea came very late in the day; and not before the Crown and its witnesses were put to considerable time, trouble and inconvenience in preparing for court. This guilty plea does not receive the same credit as that associated with a prompt or early acknowledgment of responsibility.  It is very unfortunate that the early cooperation of Mr. Joamie with the investigating authorities was not matched by an early acceptance of legal responsibility. The drawn out proceedings in Mr. Joamie’s case has substantially diluted any mitigation associated with the guilty plea. B. The “incomplete” act of sexual intercourse
 The accused fully intended to complete an act of sexual intercourse. This is why he put on the condom. Mr. Joamie’s failure to accomplish this purpose was caused by the fortuitous intervention of others and not by reason of any timely abandonment of criminal purpose by him. In these circumstances, the Court finds that the lack of penetration of the victim to be of little weight in mitigation of sentence.  It is true that Mr. Joamie’s use of a condom would have potentially reduced the risk of an unwanted pregnancy and also protected the victim from the risk of potential infection from a sexually transmitted disease. This reduction of health risk to the victim is appropriately considered in mitigation of sentence. C. The Offender’s personal history and Gladue considerations  Mr. Joamie was born into a violent and abusive home. He was born damaged to some degree as a consequence of his biological mother drinking during pregnancy. Mr. Joamie was given up for adoption by his biological parents shortly after his birth (at age one month).
 The accused’s biological father is said to have committed suicide in front of Mr. Joamie when Mr. Joamie was two years of age. Defence counsel suggests that Mr. Joamie may have some repressed memory of this event. This suggestion appears to be speculative.  As a consequence of the adoption, Mr. Joamie was raised from infancy in a good home by a caring and conscientious adoptive mother.  Apart from the suicide of his biological father, there is no suggestion that Mr. Joamie was subject to any form of social dysfunction during his formative years. There is no history of physical or emotional abuse. There has been no exposure to the trauma associated with a residential school.  Mr. Joamie’s adoptive mother indicates that Mr. Joamie was a sickly infant. At the age of four the accused was identified as suffering from Fetal Alcohol Spectrum Disorder (FASD). He has struggled in school. He has what has been described as having a very low learning capacity. Part of Mr. Joamie’s adolescence was spent in the Ranch Ehrlo facility in Saskatchewan to address issues related to his learning and his behavior.  With this special assistance Mr. Joamie was able to ultimately achieve a Grade 10 education.  There is no evidence before the Court to suggest that Mr. Joamie is not connected to his culture or language.  Mr. Joamie has a limited youth record. This record is unrelated to the matter now before the Court. Mr. Joamie’s limited criminal history is undoubtedly the result of the consistency and structure imposed on Mr. Joamie’s home life by Mr. Joamie’s adoptive mother.
 Mr. Joamie’s mother has been a tireless advocate for her son though out this proceeding. While she joins others in being critical of the behaviour that brings her son into conflict with the law, she remains supportive of the person who is her son. There is no attempt on her part to minimize the seriousness of the offense committed by her son or to deflect the blame for this misconduct upon others. This is as it should be.  At age 23 years, Mr. Joamie has no previous employment history.  The Court has given anxious consideration to Mr. Joamie’s circumstances as a young Inuit man who has grown up in a remote northern community. The Court has directed its mind specifically to the criteria identified by the Supreme Court of Canada in the decision of R v Gladue,  1 SCR 688, SCJ No 19 [Gladue], and the provisions of section 718.2(e) of the Criminal Code, RSC 1985 c.C-46 [Criminal Code].  In addition to the usual systemic disadvantages associated with life in a northern community, there are some Gladue factors identified in this case that might influence the application of the proportionality principle of sentencing. Of particular concern is the weight to be associated with the FASD diagnosis attributed to the Defendant in this case. D. Remorse
 The Court accepts that Mr. Joamie genuinely regrets his involvement in the offense. He has been in tears throughout much of the sentencing hearing.
IV. ANALYSIS  FASD is a non-clinical term that refers to a range of cognitive deficits associated with disabilities incurred when a mother consumes alcohol during her pregnancy. These disabilities are permanent. They can result in a wide range of symptoms including poor memory, impulsiveness, and an inability to understand or measure the consequences of one’s actions. The brain abnormalities associated with FASD are different for every person with this disability. There can be marked disparity in IQ and other indicia of cognitive ability among persons diagnosed with FASD.  A Court cannot decide how an offender’s cognitive deficits may have impacted the offender’s degree of responsibility for criminal behavior in the absence of expert medical evidence related to the offender’s specific cognitive condition. No conclusions can be made on the strength of vague generalizations derived from medical and scientific literature alone without any understanding of the offender’s individual cognitive deficits and their severity. V. THE SENTENCING PROCESS AND THE FASD OFFENDER  A fundamental principle of the sentencing process requires all sentences to be proportionate to the gravity of the offence and the degree of responsibility of the offender.1  The Yukon Territorial Court in Harper2 at paragraph 30 and 31 makes the following comments about how the cognitive impairments associated with FASD challenge the basic assumptions of sentencing.
The purpose and principles of sentencing found in the Criminal Code assume that offenders are capable of making choices, understand the consequences of their actions, and when punitive sanctions are applied, are capable of learning from their mistakes so as not to repeat them. General deterrence, meaning that the punishment given to one person for breaking the law will operate to deter other persons, presupposes the ability of those other persons to process and
Criminal Code, RSC 1985, c. C-46, s. 718.1 R v Harper, 2009 YKTC 18, 65 CR (6 th) 373 [Harper].
translate information as well as to remember it. Similarly, rehabilitation, as it is conventionally understood, is largely a cognitive process premised on the ability to understand, to learn, to remember and to make choices. None of these assumptions fit well with what is known about FASD, a permanent form of brain damage that can affect all parts of the brain. The fundamental principle contained in s. 718.1 of the Code also requires that the sentence be proportionate to the "degree of responsibility of the offender". What does this mean for an offender who . . . suffers from an organic brain disorder that affects not only his ability to control his actions, but also his understanding of the consequences that flow from them?
 In order to craft a fit sentence for an offender with FASD related cognitive deficits, the Court must embark upon a two stage analysis.  The Court must first assess the moral blameworthiness of the offender in light of the impact that the cognitive deficits attributable to FASD had upon offender’s behavior. This assessment cannot be done in the abstract. Forensic medical or psychiatric evidence is required to understand how the offender’s cognitive deficits impacted his or her behaviour and so contributed to the commission of the offense before the Court.  The Court must then seek to balance the need to protect the public on the one hand, with the feasibility of reintegrating the offender back in to the community through alternative sanctions. Where specialized community based treatment programs are available for an offender that are sufficient to address the FASD offender’s special needs, the Court must assess whether such programs are likely to mitigate or reduce the offender’s risk of reoffending.  Where the Court concludes that the use of such community based programs for a particular offender may better achieve the long term protection of society, then in keeping with a finding of diminished responsibility, the Court should consider the use of a non-custodial sanction, or reduce the length of the custodial sanction that would otherwise be employed in combination with the use of the community based treatment program.
 Where there is no community based programming appropriate to the offender’s demonstrated needs and level of risk, there may be no practical basis to avoid or otherwise reduce a sentence of custody. This will be so particularly where there is evidence to suggest that the release of an offender with limited impulse control into the community will put the public at risk.  In the circumstances of a particular case, a diagnosis of FASD may impact the application of the principles of denunciation and general and specific deterrence. Once again, the severity of the individual offender’s cognitive deficits has a direct bearing upon the strength of the application of these sentencing principles. The Alberta Court of Appeal in R v Ramsay, 2012 ABCA 257 at paras 23-25,  AWLD 4417, had this to say:
Other courts, and in particular the Yukon Territorial Court, have addressed this issue. In R v Harper3, the court observed that “[t]he role of specific deterrence in sentencing FASD-affected offenders decreases in proportion to the severity of the offender’s cognitive deficits” (at para 43). In R v Quash, 2009 YKTC 54 at para 70,  YJ No 72 the Yukon Territorial Court noted that “[t]he greater the cognitive deficits of the offender, the less role specific deterrence should play”. Where the cognitive deficits experienced by the offender significantly undermine the capacity to restrain urges and impulses, to appreciate that his acts were morally wrong, and to comprehend the causal link between the punishment imposed by the court and the crime for which he has been convicted, the imperative for both general deterrence and denunciation will be greatly mitigated (Quash at para 71; Harper at para 47). We agree with the observation of the court in Quash that: That is not to say that the principles of general deterrence and denunciation have no place in sentencing FASD offenders. In certain cases there may be a role, depending on the nature of the offence and the degree of moral culpability of the offender, based upon the extent of his or her cognitive difficulties” (at para 72). The degree of moral blameworthiness must therefore be commensurate with the magnitude of the cognitive deficits attributable to FASD. The more acute these are shown to be, the greater their importance as mitigating factors and the less weight is to be accorded to deterrence and denunciation, all of which will serve to “push the sentence ... down the scale of appropriate sentences for similar offences” (for the careful application of this sliding scale to an especially severe case of FASD, see R v FC, 2012 YKTC 5 at paras 24-29, 38-43,  2 CNLR 184).
R v Harper, 2009 YKTC 18, 65 CR (6 th) 373 [Harper].
VI. THE EVIDENTIAL REQUIREMENTS FOR THE EXCEPTIONAL FASD SENTENCE  Where the defence wishes to rely upon a FASD diagnosis in mitigation of the sentence that would otherwise be appropriate for a particular offense, there is an evidential burden upon the defense to put before the Court a forensic assessment that outlines the offender’s specific cognitive deficits and their respective severity. This assessment should be performed by a qualified medical or forensic specialist with some expertise in the field and not by a general medical practitioner. The forensic assessment should relate the offender’s specific cognitive deficits to his or her criminal responsibility. The risk associated with recidivism should be considered. The specialized resources needed to reduce this risk should be outlined.  If the defense wishes the Court to be creative in sentencing an FASD offender with diminished responsibility, it is incumbent upon the defense to identify those resources inside or outside the Territory that may employed as part of a sentencing alternative to custody. VII. THE ROLE OF DEFENCE COUNSEL IN THE SENTENCING PROCESS AND PUBLIC INTEREST ADVOCACY  In this proceeding the Court has heard from Nunavut’s Chief Medical Officer that the Nunavut Territory lacks the diagnostic services necessary to make a FASD diagnosis. If the Territory lacks the means to provide the diagnostic services required, the Court has the ability to order out of territory forensic assessments to be performed where necessary. The Court will not hesitate to do so where this is required for sentencing purposes.
 The Department of Health’s failure to provide these diagnostic services within the Territory results in more delay in the provision of this service and greater cost to the taxpayer. In the end result, the expense associated with the out of territory diagnosis is simply transferred from the Department of Health to the Department of Justice. The government of Nunavut and its taxpayers end up footing the bill regardless of which Department is ultimately mandated to cover the expenses associated with the diagnosis.  The Court has heard from the Territorial Manager of Community Wellness that the focus of the Department of Health is entirely upon prevention of FASD and community awareness. There are no programs or services of any kind at the community level to assist those citizens now suffering from FASD. There are no structured living facilities in the Territory to assist those severely damaged citizens who are in need of remedial treatment and support. The Territorial position for an FASD Coordinator was eliminated in 2011.  For the first decade of its existence, the Nunavut Territory has experienced an accelerating rate of violent crime and suicide. Much of this dysfunction has been driven by alcohol abuse. There is no residential treatment facility in Nunavut to address the treatment needs of the alcoholic. There is no detoxification center available in Nunavut to dry out the alcoholic. There is no ability to diagnose, let alone treat, those citizens who are damaged by alcohol abuse during pregnancy.  Month after month, year after year, police drunk tanks grow busier. The special needs assistants and teachers in Nunavut’s schools struggle to deal with damaged children and the behavioral disorders associated with this. The Baffin Correctional Center’s 18 bed Katak Unit is fast becoming a warehouse for the mentally ill, for those suffering from FASD, and for those who are otherwise vulnerable and needing protection. This will continue to be the case unless or until specialized services or programs are created at the community level to provide the structured and supervised living arrangements that these citizens need to thrive.
 As inmate population continues to climb, government is faced with the dismal prospect of having to spend more and more public funds to create larger and more numerous Correctional Centers. For want of any other remedial programs and services at the community level, Nunavut’s gaols have become this Territory’s option of last resort.  In a Territory that lacks remedial resources, the prospect of defence counsel being able to structure an appropriate sentencing plan is daunting. In Nunavut, more can be accomplished for the life of a severely marginalized and disadvantaged citizen by work done in the area of remedial sentencing, than by an emphasis upon issues of liability. If services and programs do not exist that are needed to address the fundamental needs of citizens in Nunavut’s communities, it falls upon defense counsel to take up the challenge.  The remedial services necessary to overcome the disadvantages posed by poverty, disability, lack of education, and social dysfunction are of equal, if not greater importance to citizens accused of crime, their families and the larger community of which they are a part, than the determination of guilt or innocence. All are affected by the absence of essential remedial services necessary to address social dysfunction and crime.  Advocacy in a criminal court room does not end with the determination of liability for a crime. Where remedial services are lacking, it is the criminal advocate’s responsibility in Nunavut, as in the rest of the Commonwealth, to fearlessly and tirelessly advocate for the public programs and services needed to address the basic needs of the disadvantaged, marginalized and under-represented citizens that are daily swept up into the criminal justice system.  It falls upon defense counsel, not the Court, to find a sentencing alternative to custody for citizens of diminished responsibility. It falls upon defense counsel, not the Court, to identify the resources needed to address the offender’s special needs.
 It can take much time and a lot of extra effort to create sentencing alternatives where none exist. For this reason, this Court will rarely oppose an adjournment where needed to create a remedial sentencing plan for a special needs offender.  It falls to the legal profession to lobby government for the funds and resources necessary to make such sentencing alternatives viable in Nunavut. When it comes to remedial services and programs, there is no room for complacency; there is no place for resignation or acceptance in a Territory struggling with substance abuse of epidemic proportions.  The truest measure of social justice is how society addresses the basic needs of its poorest and disadvantaged citizens. If social justice is to be more than a fond hope, or distant mirage, for the poor, the disadvantaged and marginalized citizens of Nunavut, the legal profession as a whole must learn to speak up for those who have no voice. VII. THE DEFENSE POSITION ON SENTENCE  Despite the seriousness of the offence before the court, defence urges the Court to not impose a sentence of custody. Defense argues that the FASD diagnosis warrants an exceptional type of sentence. Defence counsel urges the Court to impose a community based sentence involving basic probation and community service work. There is no plan beyond this to address Mr. Joamie’s special needs.  This Court adjourned the sentencing hearing to afford the defense time to acquire the forensic evidence necessary to perfect the request for an exceptional disposition.  No forensic evidence has been presented to identify Mr. Joamie’s specific cognitive deficits or their severity. The Court does not know who made the initial diagnosis of FASD. The Court does not know on what basis this diagnosis was made. The Court does not know what cognitive deficits were identified in this diagnosis, or how severe these deficits are. The Court
does not know whether any of these deficits can be said to have contributed to the commission of the offense before the Court.  The Defendant’s use of a condom in preparation for the sexual act suggests that despite his intoxication and cognitive deficits, Mr. Joamie was alive to the medical consequences associated with unprotected sexual contact. This suggests that Mr. Joamie is capable of a fairly high level of cognitive functioning.  There is insufficient evidence in this case to warrant the exceptional disposition urged upon the Court by defense. The Court must act upon evidence, not intuition or guesswork. Given the state of the evidence, this Court must apply the sentencing principles of denunciation and deterrence that are appropriate to this type of offense being committed in these circumstances. Sentencing jurisprudence does not allow this Court to grant a sentencing discount for serious crimes in the absence of forensic evidence bearing upon the issue of criminal responsibility.  Even if forensic evidence related to Mr. Joamie’s cognitive deficits had been made available to the Court in this case, the Court is unable to find that the community based sentence of the type proposed in this case would adequately address Mr. Joamie’s needs while addressing the purpose and principles of sentencing.  The Court’s ability to structure a fit sentence is limited to those sentencing tools and sentencing resources provided by government. The Court cannot work miracles. It is the Government of Nunavut that has the legislative and constitutional mandate to determine funding priorities and allocate scarce public resources.
VIII. CONCLUSION  The Crown has urged this Court to impose a sentence of twelve to thirteen months custody for this offender and this offense. The Crown is being very generous. Crown arrived at this position without seeing any forensic evidence outlining the severity of the Defendant’s condition. This is the first case in Nunavut to formally address the sentencing principles associated with the FASD offender. In the unique circumstances of this case, the Court will not exceed the range recommended by the Crown.  In the result, Mr. Joamie is sentenced to custody for a period of 12 months. It is recommended that he be placed in the Katak Unit at the Baffin Correctional Center. Following his release from custody, Mr. Joamie is placed on probation for a term of 12 months with the following conditions:  Mr. Joamie must: 1. keep the peace and be of good behavior; 2. reside with his adoptive mother; 3. obey all the lawful directions of his adoptive mother; 4. have no contact or communication with the victim K.C.. IX. ANCILLARY ORDERS  There will be a DNA order. Mr. Joamie has been convicted of an indictable offence that is a primary designated offense under the Criminal Code. Such an order is mandatory by law.  There will also be an order requiring Mr. Joamie to submit to the processes of the Sex Offender Registry for 20 years. Such an order is also mandatory for this type of offense.
 There will be a firearms prohibition order for 10 years following Mr. Joamie’s release from custody. This indictable offense falls under s.109 of the Criminal Code. It is also mandatory. Mr. Joamie has 30 days from today to voluntarily dispose of any firearms, ammunition or explosives presently in his possession. Any such items not disposed of are to be forfeited to the Attorney General of Canada for destruction. Any firearms certificate or firearms license must also be immediately surrendered to the RCMP.  Mr. Joamie is prohibited from possessing or using any restricted or prohibited firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosives for life. Any such items now in his possession must be immediately surrendered to the RCMP and are forfeited to the Attorney General for destruction.  At the request of the Defendant, the Court is prepared to grant Mr. Joamie an exemption under s.113 of the Criminal Code to use a firearm for subsistence hunting purposes. The Crown does not oppose this request.  The Court waives the Victim fine surcharge for reasons of hardship.
Dated at the City of Iqaluit this 4th day of September, 2013.
___________________ Justice R. Kilpatrick Nunavut Court of Justice