The following story contains details of sexual assault. Rapid access counselling is available in the Yukon at 867-456-3838. Mental health support is available 24/7 at the Wellness Together Canada hotline at 1-866-585-0445.
The Yukon Supreme Court overturned a territorial court sentence levied against a man who sexually interfered with young girls on two separate occasions on appeal.
The man, identified only by his initials in court documents to preserve the identity of the victims, will serve an 18-month conditional sentence confined to a home except for work and other approved appointments. This replaces the 18 months behind bars and three years of probation that the lower court imposed in March of this year. The original sentence was overturned Sept. 26.
The events that led the man to be convicted of two counts of sexual interference following early guilty pleas took place in the spring and summer of 2018. The victims were seven- and 10-years-old. Court documents state the perpetrator was intoxicated during both incidents. Both offences took place at a home where the offender was welcomed as a family friend.
Through legal counsel the guilty man challenged the constitutional validity of the minimum sentencing provisions associated with the section of the criminal code he was charged under. The legal questions considered were whether the judge adequately considered the Gladue report, filed because the offender is First Nations, as well as other mitigating factors such as the offender’s age, 20 at the time of the offences, absence of a criminal record and early guilty plea.
The decision on the appeal states that the trial judge heard a lot from the Gladue report but didn’t specifically refer to the accused’s family history, which featured drinking and violence in the family home. The perpetrator had also been placed in foster care and molested by members of his extended family in the past.
The appeal finding notes that the trial judge found a conditional sentence would be impractical given the guilty man’s living situation but did not elaborate on why. The appeal also found that there was no evidence in the judge’s reasons that he considered the effects that the childhood abuse and other Gladue factors might have had on the man’s moral culpability for his actions.
Also noted in the appeal judgement is that the convicted man voluntarily took counselling and almost completely abstained from alcohol after he was charged.
“Given this high level of compliance with strict conditions, evidence of motivation to seek and complete treatment, his lack of criminal record, and his sincere remorse, serving his sentence in the community would not endanger the safety of the community in my view. He appears to be at low risk to reoffend,” the appeal judgement reads.
The appeal makes the 18-month sentence conditional and reduces the probation period to two years.
The revised sentence comes with a range of conditions. The man will have to keep the peace and maintain good behaviour and show up for necessary court appearances and visits to his probation supervisor. He will also have to remain in the Yukon, not communicate with designated people or come within 50 metres of their residence, school or any other place they could reasonably be expected to be. He must also avoid contact with anyone under 16 years of age unless authorized by his parole supervisor. He will have to live at a given address in his home community under supervision of a person living there.
For the first year of the sentence he will have to remain in the residence at all times except for work or travelling directly too and from work. For the last six months of the sentence he will be subject to a curfew. The curfew and the house arrest are both subject to checks.
The convicted man is also required to attend counselling and abstain from alcohol. The man will still have to register as a sex offender for the next 10 years.
Contact Jim Elliot at firstname.lastname@example.org