Sexual assault sentence curtailed for Kinngait man
Nunavut Court of Appeal reduces sentence after finding trial judge erred
A Kinngait man convicted of sexually assaulting a 17-year-old girl will receive a considerably shorter prison sentence, following a decision by the Nunavut Court of Appeal.
The decision shaves nearly 17 months off the total sentence for Elee Parr, who was originally sentenced to five years and four months in prison, before credit was given for pre-trial custody.
Parr’s new sentence is 48 months, in line with the sentence proposed by the Crown at trial. With credit given for pre-trial custody, that leaves a remaining sentence of two years and two and a half months.
When Justice Paul Bychok gave his oral sentencing of Parr in December 2018, he highlighted several aggravating factors that he said called for a severe sentence. Parr, 26 at the time, was a repeat offender who had been out on bail for just two days before he was accused of raping his victim at a house party in September 2017.
Bychok concluded that Parr “assaulted a sleeping vulnerable intoxicated victim,” and “overpowered his victim’s resistance and he continued to assault her.”
As well, Bychok noted that the victim was a minor and said that the offence had profoundly traumatized her, particularly because she was “hassled and bullied by the people in this community who had heard about what had happened.”
Bychok said during his sentencing that he would later provide “detailed written reasons” to help explain his rationale for applying a sentence beyond what the Crown had proposed. But in their majority opinion, Justice Frans Slatter and Justice Kevin Feehan say this appears to have never happened.
During his sentencing, Bychok said that the sentencing range proposed by the Crown and defence was well outside the “present-day” range in Nunavut, but he never supported this assertion with any references to specific cases, according to Slatter and Feehan.
And Bychok gave no indication prior to his sentencing that he planned to impose a sentence beyond what the Crown recommended, the Court of Appeal judges said. As a result, the Crown and defence were deprived of an opportunity to respond to Bychok’s plans to give a stricter sentence.
“He never told the parties he was considering ‘jumping’ the position of the Crown, and he in fact led the parties to believe he was sympathetic to imposing a sentence that would keep Mr. Parr in Nunavut for the remainder of his sentence,” the judgment states.
“A trial judge cannot develop a sentencing range based entirely on his or her own personal experience, without any reference to cases, outside the ranges recommended by the Crown and defence, and after saying he was unhappy with the prospect of granting federal time ‘in the south.’ He did not advise counsel that he did not accept the ranges of sentence they proposed, based upon submitted Nunavut sentencing decisions, or that he was contemplating a sentence well over the sentence sought by the Crown. Neither counsel had time to consider that possibility and respond to it. This practice is to be highly discouraged.
“Additionally, by his comments about the injustice and unfairness of sending offenders from Nunavut to serve federal time in the south, he clearly signaled to counsel that he might have been considering fashioning a sentence involving territorial jail time with probation. That was potentially misleading to counsel and unfair.”
Slatter and Feehan also found that Bychok erred by imposing consecutive rather than concurrent sentences for the sexual assault charge and for breaches of recognizance—or committing a crime while out on bail. Because the judge took the breaches of recognizance into account when determining the severity of the sexual assault, the Court of Appeal found he effectively double-counted the breaches of recognizance by also applying consecutive sentences for Parr’s offences.
Reviewing case law, Slatter and Feehan determined that the Crown’s proposed sentence of 48 months is in line with similar Nunavut cases.
Another Court of Appeal judge, however, disagreed. Justice Jolaine Antonio wrote in a dissenting opinion that Bychok had, for the most part, awarded a fit sentence.
She said that Bychok, after reviewing the sentencing submissions from the Crown and defence, was not required during his oral sentencing to cite particular cases to support his decision. “He was not required to repeat all that had just been said. Nor was he required to cite the authorities he had just received.”
Antonio also said that Bychok was not required to stay within the sentencing range of similar cases. “Sentences depend on circumstances of the offence and the offender, and can be heavily influenced by factors other than the offence itself. Even if two offences were identical, the sentences imposed should not be identical if, for example, significant mitigating factors were present in once [one] case but absent in the other.”
And Antonio noted that Bychok explained how he believed a strict sentence was necessary to denounce and deter sexual assault in Nunavut, given the frequency of the crime in the territory
“Too much of this is going on in Nunavut,” Bychok said. “Too many people in our homes and in our communities are being hurt…. Judges have no magic wands, but at least we can stand up and speak for the community and say ‘Stop.’ And if you do this and if you are convicted, serious consequences will follow.
“Domestic violence, family violence, alcohol related sexual violence is a crisis in our society. So judges of the Nunavut Court of Justice had to condemn this violence.”
“I defer to the trial judge’s sense of the frequency of sexual violence in Nunavut, particularly as it finds support in the existing authorities,” wrote Antonio. “His appreciation of need to denounce and deter is to be respected. It is also illustrated by the facts: the offence was committed in a living room during a party, yet the appellant was not deterred by the possibility that others might see him.”
Antonio said that she shared the concerns of her colleagues about Bychok’s use of consecutive sentences and his jumping of the Crown and defence’s sentencing positions without notice.
But she found these errors did not result in an unfit sentence. Accounting for the error made in using breaches of recognizance, she said she would have reduced Parr’s sentence by just four months.
Parr had also appealed his conviction, maintaining that Bychok applied greater scrutiny to the defendant’s testimony than he did to the Crown’s witnesses, and that the judge misstated key facts. The Court of Appeal disagreed and dismissed this part of the appeal.
“We conclude that the trial judge did not apply a more exacting standard of scrutiny to the evidence of Mr. Parr than to the evidence of Crown witnesses,” the judgment states.
“He may have misstated some of the details, but this does not mean that he misapprehended it in the overall context of the evidence such as to amount to a palpable and overriding error or error in principle. He did make firm decisions about credibility and reliability on which he is entitled to deference. For these reasons, we dismiss the appeal on conviction.”