Nunavut will need more jails if sex offenders aren’t treated, judge warns

This graph shows the per capita sexual assault rate in Nunavut, compared with Canada and all other provinces and territories. Justice Robert Kilpatrick used it to illustrate a recent sentencing judgment on a Nunavut sex offender. (IMAGE SUPPLIED BY NUNAVUT COURT OF JUSTICE)

A Nunavut judge warned Nov. 28 that if the Government of Nunavut does not offer better treatment to sex offenders, the GN will be forced to build more jails to protect the public.

”If the Division of Corrections does not allocate sufficient human and financial resources to provide for the assessment and treatment of sex offenders, then even more public funds will have to be found to finance the larger correctional institutions necessary to protect the public from the growing numbers of untreated sex offenders,” Justice Robert Kilpatrick said in a recent sentencing judgment.

“The court will not hesitate to use gaol where necessary to protect the public from harm,” he said.

Kilpatrick supported this with a graph comparing Nunavut’s 2010 per capita sexual assault rate with all other Canadian jurisdictions.

Nunavut’s per capita sexual assault rates each year usually soar 10 to 12 times higher than Canada’s, far above those in all other provinces and territories.

“The Community Corrections section has no dedicated treatment program for sex offenders. In the absence of any structured residential treatment program and the trained professionals needed to run it, the rate of reoffending by untreated sexual offenders will continue to increase,” Kilpatrick said.

Kilpatrick’s judgment, given after a sentencing hearing held this past Nov. 19 and Nov. 22, concerns a 25-year-old Nunavut man identified only as “O.P.,” from a hamlet identified only as “Community X.”

Kilpatrick sentenced O.P Nov. 28 to five and a half years in jail, following a plea bargain between lawyers that saw the man plead guilty to four indictable counts of sexual assault, four indictable counts of breach of probation and two break and enter charges.

In the judgment, Kilpatrick cited earlier sentences imposed on O.P. for sexual assaults he committed in 2008 and in 2005 or 2006.

In the earliest incident, for which O.P. wasn’t convicted until November 2010, he raped his 12-year-old cousin between December 2005 and January 2006, threatening her with violence if she told anyone about it.

At the time, Kilpatrick sentenced O.P. to two years less a day in jail and imposed an 18-month probation term that required him to take sex offender counselling or therapy after his release from jail.

But Kilpatrick said that never happened — because the community corrections division of the GN’s justice department couldn’t find anyone able to do it.

“The court has been told that the decision to not provide further sex offender counselling or treatment was made for reasons related to “a lack of resources,” Kilpatrick said in his judgment.

And because the man’s community did not have a resident probation officer, the corrections division had to rely on a social worker.

But the social worker, after talking to her supervisor, instead referred O.P to a community mental health worker.

“It is unrealistic to expect a mental health worker to have the expertise or specialized training necessary to properly assess and treat a sex offender. This is a highly specialized field that straddles the domains of forensic psychiatry and psychology,” Kilpatrick said.

Kilpatrick pointed out that a probation officer is an officer of the court. That means the probation officer has a legal duty to carry out the orders of the court, he said.

And the GN’s community corrections division is legally obligated to come back to the court for a probation review if they can’t comply with a probation order.

“This was not done,” Kilpatrick said.

The judge also cited a sex offender risk assessment done by a psychologist in 2011 after O.P.’s first prison sentence.

That report found the man at “low risk” of committing more sexual violence.

But while still on probation in May 2012, O.P. sexually assaulted his sister, who was then 18.

“He was naked from the waist down. O.P. climbed on his sister’s bed and simulated sexual intercourse with his sister while lying on top of his victim and outside the blankets,” Kilpatrick said.

On that charge, O.P. was released this past July 3 on an undertaking.

Only two weeks later, on July 17, he used a ladder in the middle of the night to climb through the window of a single woman’s residence. O.P. fled after the woman woke up.

On Aug. 20, O.P kicked in the door of a vacant residence.

And this past Aug. 29, O.P attacked a woman known as CD by jumping on her from behind and pinning her to the ground.

“When CD did not cooperate, O.P. simulated sexual intercourse on top of CD’s clothing. O.P. indicated that he would not stop until he ejaculated. O.P. ultimately engaged in masturbation and ejaculated on the ground,” Kilpatrick said.

Also on Nov. 28, Kilpatrick sentenced O.P. for two earlier attacks dating to 2008, inflicted on the two victims he sexually assaulted this past summer.

In one attack, in the summer of 2008, he sexually assaulted his sister for the first time, when she was only 14 and he was 22.

“He entered the bedroom at night and fondled the complainant’s breasts, genitals and buttocks over her clothes. He tried to remove the young victim’s pants. His intention was clear. He was naked from the waist down,” Kilpatrick said.

In that incident, O.P. stopped after his sister threatened to call the police.

The other earlier attack occurred in the winter of 2008, when O.P. attacked CD for the first time.

Carrying a rifle, he approached CD on a snowmobile while she was walking on a hill near the community.

“He demanded that CD remove her pants. CD feared for her life and did so. CD was then raped. O.P. kept the rifle strapped to his back while he engaged in sexual intercourse,” Kilpatrick said.

O.P was sober when he attacked his victims and because he appears to have no impulse control, is at a high-risk of re-offending, Kilpatrick said. Because of the attacks on his sister, O.P.’s family has banished him from their home.

In deciding on his sentence, the judge appeared to accept the lawyer’s plea bargain with reluctance: 63 months in jail, plus three months of time already served, for a total of five and a half years.

“The end result should not be considered as setting a sentencing precedent. The end result does not reflect the free exercise of the Court’s discretion on the sentence to be imposed in this case,” Kilpatrick said.

That’s because case law prevents judges from changing plea-bargained sentences unless the proposed sentence “brings the administration of justice into disrepute.”

But in this case, Kilpatrick said the sentence proposed by lawyers was not low enough to permit him to change it.

That also meant that he had to impose concurrent, rather than consecutive sentences for the indictable probation breaches.

“The court was constrained by the joint submission in this case to limit the total sentence to 63 months,” he said.

O.P. also faces a 20-year firearms prohibition, a lifetime listing on the national sex offender registry, and a 20-year order prohibiting him from working in a position of trust or authority with person under the age of 16.

He is also prohibited from going near a playground, park or daycare unless accompanied by a sober adult.

And Kilpatrick recommended that O.P serve his time at a federal prison that offers specialized treatment for sex offenders.

“These resources do not appear to be available to offenders in Nunavut,” Kilpatrick said.