Nunavut man won’t be banished as part of probation: Appeal Court
Sentencing judge had said it would stop “the temptation to continue forcing himself upon the complainant”
A Nunavut man will not be banished from his home community, three judges with the Nunavut Court of Appeal determined on Monday, Oct. 7, at the Nunavut Court of Justice in Iqaluit.
The man is called N. in the seven-page court judgment issued on Tuesday, Oct. 8.
Last September, Justice J. Edward Scalon imposed a sentence of 15 months on N. for charges including break and enter and sexual assault.
N. also received a sentence of an additional three months to be served consecutively for the breach of probation.
Of that sentence, N. had already served about 214 days, with 315 days remaining at that point.
Prior to his arrest, N. was in a domestic relationship with a woman, only referred to as the complainant in the judgment.
They resided in a small Nunavut community with a population of fewer than 1,000 people, the judgment said.
Together, N. and the complainant had five children.
On Sept. 20, 2018, N. was to proceed to preliminary inquiry in court on five charges stemming from his breaking into the complainant’s home and sexually assaulting her, before being interrupted by two of their children.
N. entered pleas of guilty to breaking and entering and committing a sexual assault upon the complainant, as well as breach of a term of his probation to have no contact with her.
The judgment noted that N. has a criminal record for violence, including a five-year penitentiary sentence for aggravated sexual assault in 2013.
After returning to his home community in 2017, he had assaulted the complainant on three different occasions, including the offence that came before the court last year, the judgment said.
Bearing in mind the complainant’s victim impact statement that she felt unsafe in her own home and would leave the community with her children if N. was to go free, Scanlon imposed a term of two years’ probation, the Appeal Court said.
One term of this probation said that, upon his release from jail, N. would be banished from his home community.
Scanlon reasoned that banishment, “though a last resort,” would serve the objective of rehabilitation, since it would remove N. “from the temptation to continue forcing himself upon the complainant,” the judgment said.
But the Appeal Court did not agree.
The Appeal Court judges said that the lawyers for the Crown and defence, as well as the sentencing judge, had not raised “the spectre of banishment” from N.’s home community as a term of his probation.
They rejected a suggestion from lawyers for the Crown that banishment might at the appeal stage be considered.
“To accede to the Crown’s submission to consider banishment submission on appeal l… would only serve to deepen the procedural unfairness that has provoked this appeal in the first place,” they said.
“The term of the probation order imposing banishment upon Mr. N. for a period of two years will be deleted from the probation order,” said Justices Karan M. Shaner, Frederica Schutz and Sheila Greckol.