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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut

Citation: R. v. T.Q., 2019 NUCJ 05


Date: 20190403
Docket: 08-18-85
Registry: Iqaluit

Crown: Her Majesty the Queen


-and-

Accused: T.Q.

________________________________________________________________________

Before: Chief Justice Neil Sharkey

Counsel (Crown): B. McLaren


Counsel (Accused): A. Landry

Location Heard: Iqaluit, Nunavut


Date Heard: January 10, 2019
Matters: Application of Kienapple rule. Convicted pursuant to
Criminal Code, RSC 1985, c C-46, section 151. Charge
under section 271 stayed.

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 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not be published in any document or broadcast or transmitted in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 Disclaimer:

This judgment has been anonymized to comply with legislative


requirements or at the discretion of the authoring Justice to
protect vulnerable parties. Letters have been assigned at
random.
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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,

- Count # 1 – Sexual Interference with a minor under the age of 16


contrary to s. 151 of the Criminal Code, RSC 1985, c C-46 [Criminal
Code], and

- Count # 2 – Sexual Assault contrary to s. 271 of the Criminal Code.

[3] The issue before me is whether I should enter a conviction on the


sexual interference charge, or the charge of sexual assault.

[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

[5] On 19 March 2019, I sentenced the defendant, T.Q., to 90 days


imprisonment (and one year of probation) for touching a person under
16 years of age – a minor, in a sexual manner, contrary to s. 151 of
the Criminal Code. This offence is often referred to as ‘sexual
interference’ with a minor.

[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.

[7] On 21 November 2018, in Iqaluit, T.Q. pleaded guilty to the charge.

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.

IV. OFFENDER’S CIRCUMSTANCES

[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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V. FILE HISTORY AND DOUBLE JEOPARDY

[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.

[16] An accused person cannot be convicted of more than one offence


when the elements of those offences are essentially the same. There
are some exceptions to this general rule, but those exceptions have
nothing to do with this case.

[17] Accordingly, after T.Q. pleaded guilty to both sexual interference as


well as sexual assault, it was necessary for me to reserve final
decision about what penalty he should receive until I sorted out which
offence to sentence him for.

[18] Eventually, after examining the rules respecting double jeopardy, I


sentenced T.Q. to serve 90 days imprisonment followed by one year
probation for the offence of sexual interference, and I entered a stay
of proceedings on the charge of sexual assault.

[19] What follows is my examination of those rules.

VI. THE RULE IN R. v. KIENAPPLE

[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.

[25] However, by summary conviction (in less serious cases) sexual


interference (s. 151) and sexual assault (s. 271) have different
penalties. They both have a maximum penalty of two years less one
day imprisonment. However, they have different mandatory minimum
penalties; sexual interference is punishable by a mandatory minimum
penalty of 90 days imprisonment, while sexual assault is punishable
by a mandatory minimum penalty of 180 days 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.

[27] If the question of severity is gauged only by reference to the penalty


sections, then 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.

[29] In my view, to simply defer in a slavish fashion to numbers – and to


accept that the higher minimum mandatory penalty is the sole and
only determining factor – would be to suggest that Parliament has
taken different (and perhaps unprincipled) views over the past several
years as to which of these two crimes (sexual assault or sexual
interference) is more, or less, serious.

[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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and independent as well from the perspective lens of a jurist who


might struggle to resolve a Kienapple paradigm years down the road.

A. The First Era: 2005 to 2012

[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.

B. The Second Era: 2012 to 2014

[35] The second regime spanned the era between 2012 and the end of
2014.

[36] By Indictment, both sexual assault and sexual interference were


punishable by not more than 10 years imprisonment. And sexual
interference kept or maintained its mandatory minimum of 45 days
imprisonment. However – and for the first time – sexual assault added
a new mandatory minimum of one year imprisonment, but only where
the victim was under 16 years of age.

[37] By summary conviction, both sexual assault and sexual interference


were punishable by 18 months imprisonment, but only in the case of
sexual assault where the victim was under 16 years of age. Sexual
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interference maintained its historical 14 days mandatory minimum


penalty. However, sexual assault added a new mandatory minimum
of 90 days imprisonment, again only where the victim was under 16
years of age.

[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.”

C. The Third Era: 2015 to Present

[39] Finally, there is today’s regime, spanning from 2015 to present.

[40] Both sexual assault and sexual interference are punishable by


Indictment. Each has a maximum penalty of 14 years imprisonment
(only, however, in the case of sexual assault where the victim is under
16 years of age). And both have a minimum mandatory penalty of one
year imprisonment (only, however, in the case of sexual assault,
where the victim is under 16 years of age).

[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).

[43] However, sexual interference has a new mandatory minimum of 90


days imprisonment, and sexual assault has a new mandatory
minimum penalty of six months imprisonment (only, however, where
the victim is under the age of 16 years).

X. ANALYSIS: DIFFERENTATING BETWEEN SECTIONS 151 AND 271

[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)

And, again, today there is a hybrid situation because:

 By Indictment neither offence is more serious than


the other

 But by summary conviction, sexual assault is


more serious.

[48] In my view, the Kienapple rule must be applied on a more principled


basis: a basis which takes into account the specificity and insidious
nature of the crimes involved, as well as the impact of a conviction
upon the individual offender.

[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.

[50] R v Innerebner, 2010 ABQB 188, 39 Alta LR (5th) 131 (CanLII)


[Innerebner], is from the first era (2005 until 2012) when sexual
interference carried a mandatory minimum penalty and sexual assault
did not. The Court concluded that because of the mandatory minimum
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penalty, Parliament intended that the more serious of the two charges
was sexual interference.

[51] However, the Court also concluded that, independently of the


minimum sentence, sexual interference was the more serious of the
two offences because it was essentially sexually assault of a minor.
Read J, stated at para 36:

Even if I am wrong, however, and Parliament did not intend to


indicate merely by imposing a mandatory minimum sentence that the
more serious charge is that of sexual interference, to my mind, sexual
interference, which presupposes a sexual act on a child by an adult,
cannot be said to be less serious than sexual assault. Furthermore …
sexual interference … more accurately describes the offence
perpetrated by this offender…

[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.

[55] And in Hussein, Code J, decided to follow the “well reasoned”


judgment of LeMay J, in the case of R v L(F), 2016 ONSC 1215,
where he (LeMay J) stated at paras 21-25:

…In my view, the sexual interference charge is a more precise and


complete explanation of the crime that was committed in this case. It
includes a recognition that the crime was committed against a victim
who was a child. This is, in my view, a key element of this case.

[56] I am persuaded that the principled approach in Hussein is the correct


one when applying the Kienapple rule in serious or high-end fact
scenarios where an accused is charged with both sexual interference
and sexual assault.
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[57] And today, in such serious cases, it is clear the appropriate conviction
is one for sexual interference.

[58] Accordingly, it seems odd to abandon such a principled approach


entirely in less serious fact scenarios – where the Crown has
proceeded summarily – simply because the mandatory minimum
penalties for the two offences are not the same

[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.

[60] In my view, the offence of sexual interference best captures the


nature of what a defendant has done, and is a more precise
description of the crime they have committed. Indeed, a conviction for
the more generic offence of sexual assault tells the public nothing
about the age of the victim – or even the fact the offender has
committed a crime against a child.

[61] Similarly, in terms of the long-term impact on an offender, having a


criminal record for sexual interference carries a much greater societal
stigma than does having a record for sexual assault.

[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.

XI. OTHER SIMILARITIES BETWEEN SECTIONS 151 AND 271

[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.

[64] Today as well the Sex Offender Information Registration Act, SC


2004, c 10 [SOIRA] creates distinct reporting obligations for persons
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convicted of offences against a person under the age of 18 – albeit


that these obligations are essentially the same for both sexual
interference and sexual assault.

[65] Also, persons convicted of either sexual interference or sexual assault


can be declared Dangerous Offenders or Long Term Offenders
pursuant to Criminal Code part XXIV (with only slightly nuanced
different procedural pathways to such status).

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.

Dated at the City of Iqaluit this 3rd day of April, 2019

___________________
Justice N. Sharkey
Nunavut Court of Justice