Pandemic shouldn’t lead to shorter sentences, Nunavut judge rules
Judge stresses Criminal Code amendment on crimes against Indigenous women
Warning: descriptions of sexual assault in this story may upset some readers.
A Kimmirut man who sexually assaulted a sleeping woman last year shouldn’t get a shorter prison sentence because of COVID-19, Justice Paul Bychok said in a written judgment released yesterday.
“There is no lawful authority which permits sentencing judges to lessen appropriate and principled custodial sentences because of the current pandemic,” Bychok said.
At the same time, he said courts should pay attention to an amendment to the Criminal Code that the current Liberal government added in 2019.
That amendment says in crimes against Indigenous female victims, judges must stress denunciation and deterrence—which often means a tougher sentence.
And Bychok also referred to the “L.P.” case in Nunavik, in which the Quebec Court of Appeal recently ruled that Gladue principles should not outweigh the impact of an assault committed against an Indigenous female victim.
For those reasons, Bychok said yes to a submission from Crown prosecutor Gillian Bourke and sent Karpik Kolola, 34, to prison for the next 30 months.
At the same time, he revealed there’s no apparent consensus among Nunavut judges about whether the increased risk of COVID-19 inside the cramped confines of Canada’s prisons should count as a mitigating factor when crafting sentences for Nunavut offenders.
“Three Nunavut judges have now published three different opinions on this subject. This situation does nothing to provide certainty and consistency to the law,” Bychok said.
On the morning of March 10, 2019, Kolola walked into the apartment of a Kimmirut woman who on the previous evening had bought some alcohol from him.
The woman had gone to sleep, fully clothed. But when she woke up she was naked, and Kolola, also naked, was lying on top of her with his penis inside her vagina.
“The victim shoved Mr. [Kolola] off her, he got dressed and left, and she called the police immediately. The victim does not know whether Mr. Karpik wore a condom or if he ejaculated inside her. Mr. Kolola had never been inside the victim’s home before,” Bychok said in his judgment.
The police charged Kolola, who had been drinking that night, with an indictable sexual assault, a crime that carries a maximum prison sentence of 10 years. After a preliminary inquiry held on Sept. 10, 2019, Koloa was committed to trial before a judge sitting alone.
After a vaginal swab taken from the victim revealed the presence of Kolola’s “male genetic material,” he pleaded guilty on March 16, 2020.
Bychok then ordered a pre-sentence report and presided over a sentencing hearing held on Sept. 21, 2020, which was followed by a written judgment released to the public on Nov. 18.
At the September hearing, defence lawyer Eva Tache-Green proposed a sentence of 12 to 18 months, Bychok’s judgment said.
Tache-Green said that after the incident, Kolola stopped drinking, expressed remorse and responsibility, and for the first time in his life got a full-time job in the wage economy. She said Kolola also has a young family and has become more mature than he was during his aimless youth.
And Tache-Green told Bychok that Kolola will experience custody “more harshly” because of COVID-19—and that this should play an important part in his sentencing.
When pandemic-related restrictions are in place, correctional inmates usually lose the ability to receive visits from family members and lawyers, and are at greater risk of infection because of cramped quarters and shared sleeping, dining and toilet facilities.
For that reason, Justice Susan Charlesworth shaved some time off a sentence she imposed on an Iqaluit man last summer for a string of assaults.
Later, Nunavut Chief Justice Neil Sharkey ruled the pandemic does not automatically serve as a get-out-of-jail-free card, but that judges could consider it in some cases for compassionate reasons.
But Bychok rejected the positions of his colleagues.
“With all due respect to the Chief Justice, I do not agree,” Bychok said, saying Parliament has passed no law that says COVID-19 should be a mitigating factor in sentencing.
He also cited the 2019 recent Criminal Code amendment that requires tougher sentencing for those who commit crimes against Indigenous women.
And he quoted from the recent report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, which found that the justice system minimizes the effect of sexual violence on Indigenous women.
“The sentence I impose must seek to repair the perception that our court minimises the nature, impact and severity of sexual violence while holding Mr. Kolola demonstrably responsible for his heinous crime,” Bychok said.
He also listed nine aggravating factors, including a 2013 conviction for assault causing bodily harm, and two convictions in 2015 for assault and aggravated assault. In all of those assaults, Kolola had attacked the same intimate partner.