Nunavut man gets 90 days for sexual interference
Judge opts for more lenient sentence in double jeopardy quandary
A 31-year-old man from a north Baffin community has been sentenced to 90 days in jail and a year on probation for sexually interfering with his 14-year-old niece.
The man had also pleaded guilty to sexual assault in relation to the same incident. But, according to the legal principle of double jeopardy, an offender can’t be punished twice for the same crime, so when Justice Neil Sharkey issued his sentence in March, he needed to stay one of the charges.
The law usually calls for the most serious of the two potential punishments to be applied in situations like this.
But in this case, Sharkey found in a written judgment released on April 5, the question of how to proceed had no clear-cut answer.
That’s because the penalties for both offences have shifted over the years, as different minimum sentencing rules have been introduced.
In the end, Sharkey actually stuck with the crime that carried the lesser penalty. If the man had been summarily convicted of sexual assault, he would have faced a stiffer minimum sentence of six months in jail.
But Sharkey rejected what he called “a slavish adherence to ‘numbers’ as the only or sole valid determining factor of the severity of the crime.”
“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,” Sharkey wrote.
“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.
“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.”
Sharkey said his views weren’t swayed by the fact that the offender preferred to receive a sexual interference conviction, if it meant less time in jail.
“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.”
The offence took place in Iqaluit in January 2018. The offender, who is named T.Q. in the judgment, had been travelling home from Ottawa with his wife and spent the night in Iqaluit, where they stayed with the sister of T.Q.’s wife.
The following day, T.Q.’s wife boarded the plane home, but he was denied entry because he was intoxicated, so he went back to stay with his sister-in-law. Later that day she went out, leaving her 14-year-old daughter to care for a one-year-old child, with T.Q. still in the house.
He had been drinking again and was fairly intoxicated. He entered the 14-year-old niece’s upstairs bedroom and put his hand under her shirt to feel her breasts, then moved his hand toward her crotch.
The niece resisted, got up and went downstairs to attend to the one-year-old. T.Q. persisted, following her downstairs and groping her in the same way he had earlier.
“The victim would have none of this,” the judgment states. “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.”
During the sentencing hearing, the judge heard that T.Q. had held down a steady job with the same employer for 12 years.
“This is not, however, T.Q.’s first involvement in court,” Sharkey wrote: in 2014, he was given a
period of probation for assaulting his wife.
“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,” Sharkey wrote.
“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.”
Around the time of the offence, Sharkey said he was told 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.”