Turtle Talk

In R. v. Andersen, the Newfoundland and Labador Supreme Court upheld the sexual assault conviction of William Andersen III, former President of the Nunatsiavut Government in Labrador.   He was convicted on January 25, 2010.  He appealed the conviction and the Crown cross-appealed the (unconditional discharge) sentence.

Andersen represented the Torngat Mountains district in the house of assembly between 1993 and 1996 and later became president of the Nunatsiavut government. He stepped down from that position in November 2007, while the charge was being investigated.

At his appeal hearing, Andersen indicated that he shouldn’t be given any special consideration because he is an aboriginal offender, by way of s. 718.2(e) of Canada’s Criminal Code.   While an aboriginal offender may waive the application of that section, because Andersen was unrepresented at the appeal hearing, the judge still considered his status as an Inuk male.

Mr. Andersen is not one of the many aboriginal offenders coming before the courts of Canada whose disadvantaged personal and societal circumstances result in them overpopulating our correctional facilities. Rather, he fits into the general category of advantaged people who, socially lubricated by alcohol, slide into criminal activity through poor judgment, a defect in character, or some combination of both. If Mr. Andersen is to avoid imprisonment it will be because of factors other than his aboriginal status.

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The accused attempted to use his well known position of authority in the community to intimidate the complainant in an attempt to deter her from reporting the incident. For him to contrast his lofty position with her “being nothing” is an abuse of power in an attempt to avoid accountability for a criminal act and constitutes an aggravating factor in the circumstances of this case. This is further aggravated because he claimed to “own the police” and his tactic was almost successful insofar as the complainant delayed reporting the matter to the police for five days.

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If a conditional discharge was based upon the misapplication of the principles of sentencing and is unfit, what is an appropriate sentence? Because sexual offenders and sexual assaults run the gamut of individuals and behaviours, the “range” of sentences for sexual assaults runs from a suspended sentence through to a long period of incarceration. Here, while a custodial sentence is required, it need neither be long nor served in an institution. Consequently, I substitute a conditional sentence of three months on the following conditions:

Mr. Andersen is to:

1) keep the peace and be of good behaviour;

2) appear before the court when required to do so by the court;

3) notify the probation officer in advance of any change of name or address, and promptly notify the probation officer of any change of employment or occupation;

4) report to a probation officer within 5 working days and thereafter when required and in the manner directed by the probation officer;

5) have no contact or communication in any manner with the victim, directly or indirectly, and remain away from her residence, place of employment or place of schooling, which condition is not intended to disallow him from being in a public place at the same time she is in that place; and

6) attend and participate actively in such awareness or educational or assessment programs or counseling sessions to which he might be referred by the probation officer, and in particular any relating to:

a) alcohol, drug, or substance abuse or addiction; and

b) sexual offender recidivism minimization.

56          Normally, for a case such as this I would impose a condition akin to house arrest, i.e., some restriction on the liberty of the offender. Because this offence occurred at the end of October, 2007, I will not make such an order here.

57          Additionally, in these circumstances I would also normally place the offender on probation for 12 to 24 months following the expiry of his conditional sentence. Given that the offender has abided by his terms of release for almost 3 ¹/₂ years, however, there is no requirement to impose conditions upon him beyond those contained in the conditional sentence. Consequently, no probation order is made.