Man sentenced to 3 years in prison for sexual assault
Defendant’s claim he fell on woman after her ‘scream of terror’ lacked ‘air of reality,’ judge says
This article includes graphic descriptions of a sexual assault that some readers might find disturbing.
A 22-year-old Ontario man has been sentenced to three years in prison for forcing a 22-year-old woman from Iqaluit to have anal sex against her will in 2018.
Neil Livingstone’s testimony lacked “an air of reality,” judge Paul Bychok said as he delivered his sentence, after having convicted Livingstone in March at the end of a one-day trial. The Nunavut Court of Justice provided a written copy of his ruling to media on Aug. 5.
Livingstone was “inconsistent as to what he actually did with his penis,” the judge said.
In 2018, Livingstone was living in Hawkesbury, Ont., about an hour east of Ottawa, when he came to Iqaluit to work for a summer at the young offenders facility. He split his time between his father’s home in Iqaluit and his mother’s in Ontario.
On July 15 that year, he went to the Royal Canadian Legion with some friends at 9:30 p.m. and drank as many as five cans of beer and a shot of liquor.
When Livingstone went to leave at 12:30 a.m., he noticed a woman with whom he had “previous encounters.” They had met the previous summer, according the Bychok’s ruling.
A court order prevents the publication of the woman’s name. The judge described her as “an articulate and obviously intelligent person.”
Livingstone tapped her on the shoulder, invited her back to his place and they left in a cab.
He testified the woman “didn’t seem too intoxicated” and they were “on very similar levels” of intoxication. Neither was “unduly affected” by alcohol, the judge concluded.
They took off their shoes and headed to the bedroom.
“There was no conversation,” Bychok wrote, summarizing the evidence he heard.
They sat on his bed, kissed for a few minutes, then got undressed. The woman adopted what Livingstone called a “doggy position” in front of him.
“That’s when I proceed to — I touch her — her anus with my penis,” Livingstone testified.
She said no, Livingstone testified, then she let out what he called “a scream of terror.”
The scream caused him to panic, he said, and they fell forward so his torso was on top of her back, then he rolled off of her.
The woman testified that their encounter started out as consensual vaginal sex, but Livingstone began anally penetrating her after she said no.
“I kept telling him to stop,” she said, according to the judge’s summary of the trial evidence, but he continued.
“It ended when he passed out on top of me, and then I pushed — pushed him off of me.”
Then she ran back to her aunt’s home a few houses away. She suffered anal bleeding for a week afterward and only received medical attention when she went back to school in the south.
The woman also testified Livingstone “aggressively choked” her after they entered his apartment, something he denied. The judge said he believed her and that she had not consented to the choking but she dismissed it as what he characterized as “clumsy foreplay.”
In sentencing Livingstone, Bychok noted the woman’s “emotional anguish and suffering” — which continues four years later — as a result of what he called a “heinous crime.”
He also pointed out the woman is Inuk, victimized at a time when she was “vulnerable physically and all but unable to defend herself.”
The Crown asked for a 36-month sentence while Livingstone’s defence asked for 24 to 30 months.
Bychok noted Livingstone did not have a criminal record, but cited a Criminal Code section Parliament added in 2019 instructing judges to emphasize denunciation and deterrence in cases where a victim is a vulnerable, Indigenous woman.
“The gravity of the circumstances of this case requires the court to impose a sentence which emphasizes meaningfully our community’s abhorrence of gendered sexual violence,” said Bychok.
“The sentence must also attempt to protect Nunavummiut by deterring both Mr. Livingstone and others in the future.”