ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ

Nunavunmi Apiqhuidjutainut Uuktuffaarutit

Date: 20210726
Docket: 09-20-018-CAP
Registry: Iqaluit

Between:

Her Majesty the Queen

Respondent

- and -

Karpik Kolola

Appellant

Restriction on Publication
Identification Ban – See the Criminal Code, section 486.4.
By Court Order, information that may identify the complainant must not be
published, broadcast, or transmitted in any way.
NOTE: This judgment is intended to comply with the identification ban.

_______________________________________________________

The Court:
The Honourable Justice Shannon Smallwood
The Honourable Justice Jolaine Antonio
The Honourable Justice Kevin Feehan
_______________________________________________________
 Memorandum of Judgment

Appeal from the Sentence by

Memorandum of Judgment
_______________________________________________________

The Court:

I. Overview

[1] Karpik Kolola pleaded guilty to sexual assault, contrary to section 271 of the Criminal
Code, RSC 1985, c C-46, which he committed on March 10, 2019 in the community of Kimmirut,
Nunavut. Mr Kolola was sentenced to 30 months’ imprisonment on November 17, 2020. He
appealed that sentence.

[2] For the reasons below, the sentence appeal is dismissed.

II. Facts

[3] On March 9, 2019, the complainant contacted Mr Kolola and arranged to purchase alcohol
from him. She drank at a friend’s house before returning to her house between 5:00 and 6:00 am
the next morning. Before she went home, she checked her phone and saw that Mr Kolola had
texted her asking if she wanted to drink. She replied no.

[4] At her house, the complainant went to sleep fully dressed in an upstairs bedroom. She woke
up around 7:15 am naked with Mr Kolola on top of her. He was also naked and had his penis inside
her vagina. She shoved Mr Kolola off of her and he started to get dressed. Mr Kolola left the room
and the complainant called the police immediately.

[5] The complainant did not know whether Mr Kolola wore a condom or if he ejaculated. His
DNA was later located on the vaginal swab taken from the complainant during the sexual assault
examination.

III. Sentencing Hearing

[6] The Crown sought a 30 month term of imprisonment for Mr Kolola as well as ancillary
orders. Defence Counsel sought a sentence of 12 to 18 months of imprisonment followed by a
period of probation of 12 to 18 months.

[7] The sentencing judge imposed a 30 month term of imprisonment and ancillary orders.

IV. Fresh Evidence Application

[8] Counsel for Mr Kolola is seeking the admission of a report entitled “Third COVID-19
Status Update” by the Office of the Correctional Investigator dated February 23, 2021 as fresh
evidence. Mr Kolola argues that the Report was not available at the time of sentence, is material
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to an issue on sentence, and when taken into consideration with the other evidence adduced at the
sentencing hearing, could have affected the sentence.

[9] The Crown objected to the admission of the Report arguing that it could not reasonably be
expected to have affected the result.

[10] The test for the admission of fresh evidence on a sentence appeal is well known: Palmer v
The Queen, [1980] 1 SCR 759; R v Lévesque, 2000 SCC 47 at paras 1, 14-22. The Palmer test sets
out four criteria for admissibility which relate to due diligence, relevance, credibility, and whether
the evidence could be expected to impact the result. Only the fourth criteria is in issue as the Crown
conceded the first three had been met.

[11] The Report is a general report on the impact of the COVID-19 pandemic on federal
correctional institutions and inmates. It concludes that federal prisons, as congregate living
settings, are more susceptible to widespread transmission of COVID-19 than in the general public.
It also details the challenges that federal inmates have experienced during the pandemic such as
restrictions on visitors; reductions in available programs, education, and exercise; and limited
access to medical services and other facilities in the institutions.

[12] The conclusions of the Report are general and some of the features of the Report were
known at the time of the sentencing hearing. Counsel for Mr Kolola at the sentencing hearing
referred to the increased risk that he could contract COVID-19 in a southern institution and the
possibility that added safety precautions at the institutions could have the effect of making the
sentence imposed on Mr Kolola harsher than it would be normally.

[13] The proposed fresh evidence does not address issues such as Mr Kolola’s unique medical
condition or vulnerabilities which could be impacted by contracting COVID-19, specific
information about the institution where Mr Kolola is incarcerated or any information which might
demonstrate that Mr Kolola’s situation would be comparatively different were he sentenced to a
territorial sentence.

[14] The proposed fresh evidence, being general in nature and not specific to Mr Kolola’s
circumstances, could not reasonably be expected to affect the result. As well, the effects of
COVID-19 were generally known to the sentencing judge at the sentencing hearing. The
application to adduce fresh evidence is denied.

V. Grounds of Appeal

[15] Mr Kolola says the sentencing judge erred:

(a) by failing to consider the collateral consequences caused by COVID-19;

(b) by misapplying s 718.2(e) to the sentencing analysis;

(c) in determining that a purpose of sentencing was to repair the perception that the
Court minimizes sexual violence; and

(d) by not properly considering relevant case law necessary to address parity due to
misapplying s 718.04 and guidance from R v Friesen, 2020 SCC 9.

VI. Standard of Review

[16] Sentencing decisions are generally treated with deference on appeal. An appellate court
may only intervene to vary a sentence where the sentence is demonstrably unfit or where the
sentencing judge committed an error in principle such as an error of law, a failure to consider a
relevant factor or erroneous consideration of an aggravating or mitigating factor where the error
had an impact on the sentence imposed: R v Lacasse, 2015 SCC 64 at para 11; Friesen at para 26.

VII. Analysis

(a) Collateral consequences of COVID-19

[17] Mr Kolola says the sentencing judge failed to consider the collateral consequences caused
by COVID-19. The COVID-19 pandemic has had a significant impact on Canadians generally as
well as those who are incarcerated. Mr Kolola has not pointed to a specific collateral consequence
which has significantly impacted upon his incarceration.

[18] The COVID-19 pandemic may be considered a consequence which might have a more
significant impact on an offender because of his unique and individual circumstances. It is within
a judge’s discretion to consider the impact of the COVID-19 pandemic on an offender as part of
the sentencing process. Consideration of a collateral consequence may result in a more lenient
sentence; however, it cannot be used to reduce a sentence to the point that it becomes
disproportionate to the gravity of the offence or the moral blameworthiness of the offender: R v
Suter, 2018 SCC 34 at paras 48, 56.

[19] It was within the sentencing judge’s discretion to consider the current pandemic as part of
the sentencing process. To the extent the sentencing judge considered that he was unable to do so,
he was in error. However, that error did not have an impact on sentence. The sentence ultimately
imposed by the sentencing judge was one he viewed as being lenient and “below the range of
acceptable sentences.”

(b) The application of s 718.2(e) to the sentencing process

[20] Mr Kolola says the sentencing judge misapplied s 718.2(e) of the Criminal Code in the
sentencing process by failing to apply a two step consideration process mandated by R v Ipeelee,
2012 SCC 13, incorporating s 718.2(e) into the proportionality analysis, and then conflating the
objectives of s 718.2(e) with denunciation and deterrence.
 Page: 4

[21] Section 718.2(e) requires sentencing judges to consider “all available sanctions, other than
imprisonment, that are reasonable in the circumstances and consistent with the harm done to
victims or to the community… for all offenders, with particular attention to the circumstances of
Aboriginal offenders.”

[22] In applying s 718.2(e), a sentencing judge is required to assess the moral blameworthiness
of the offender considering all of the circumstances of the offender, including their unique
circumstances as an Indigenous offender, and to consider their moral blameworthiness along with
the gravity of the offence to arrive at a proportionate sentence: R v Ookowt, 2020 NUCA 5 at
paras 67-68.

[23] Ipeelee requires sentencing judges to consider both the unique systemic and background
factors which may have played a part in bringing the Indigenous offender before the courts and
the types of sentencing procedures and sanctions which may be appropriate for the individual
Indigenous offender. The objective is to pay particular attention to the circumstances of an
Indigenous offender in an attempt to achieve a “truly fit and proper sentence”: Ipeelee at paras 72-
75.

[24] The sentencing judge was aware of Mr Kolola’s circumstances from a Pre-Sentence Report
and having heard from defence counsel about Mr Kolola’s upbringing, family history, education
and employment history, and current relationship. The sentencing judge was aware of the
challenges that Mr Kolola had faced including his criminal history, history of substance abuse, and
intimate partner violence.

[25] The sentencing judge referred to many of these considerations in his decision and cited the
relevant sentencing principles. The sentencing judge’s reasons do not disclose an error and he
considered the relevant sentencing principles as required by s 718.2(e).

(c) The perception that the court minimizes sexual violence

[26] Mr Kolola says the sentencing judge erred by stating that a purpose of sentencing was to
repair the public’s perception that the Nunavut Court of Justice minimizes the nature, severity, and
impact of sexual violence.

[27] In the course of examining the prevalence and gravity of sexual violence against women
and girls, the sentencing judge wrote: “The sentence I impose must seek to repair the perception
that our Court minimises the nature, severity and impact of sexual violence while holding Mr
Kolola demonstrably responsible for his heinous crime”: R v Kolola, 2020 NUCJ 38 at para 55.

[28] The prevalence of sexual violence against women in Nunavut has been known for many
years and trial judges are in the best position to assess and observe the magnitude of the problem
in their jurisdiction: Lacasse at para 95. Similarly, it falls within the sentencing judge’s role to
 Page: 5

assess the gravity of an offence with a contemporary and informed understanding of the harm
experienced by victims: Friesen at paras 76-94.

[29] The sentencing judge did not err by seeking to emphasize the nature, severity, and impact
of sexual violence on women in Nunavut in the sentencing process. These are pressing societal
challenges in Canada and in Nunavut, and it is an ongoing challenge to address and remedy the
failings within the criminal justice system in this area: R v Barton, 2019 SCC 33 at para 1.

[30] Denunciation has long been a primary principle in sentencing for offences of sexual
violence. The objective of denunciation is to communicate society’s condemnation of an
offender’s conduct and is a means of expressing society’s values: R v CAM, 1996 SCC 230 at
para 81. The sentencing judge’s reasoning, while not best phrased in terms of repairing a public
perception, was not erroneous. It was open to him to consider whether the sentence would
appropriately communicate the courts’ view of the gravity of sexual violence.

(d) The application of s 718.04 to the sentencing process

[31] Mr Kolola says that the sentencing judge erred by using s 718.04 of the Criminal Code and
R v Friesen to justify departing from sentencing precedent in this area.

[32] Section 718.04 requires a sentencing judge to give primary consideration to the objectives
of deterrence and denunciation when sentencing an offender for an offence that “involved the
abuse of a person who is vulnerable because of personal circumstances – including because the
person is Aboriginal and female.”

[33] Section 718.04 came into force on September 19, 2019, after Mr Kolola had committed the
offence. The Crown concedes that the sentencing judge erred by considering that he was statutorily
compelled by this section to give primary consideration to denunciation and deterrence. However,
the Crown submits this was a minor error that did not affect the sentence.

[34] The sentencing judge was required to give primary consideration to denunciation and
deterrence in sentencing Mr. Kolola based on common law sentencing principles. Section 718.04
codified the long standing and well-established common law principle where Courts have
considered denunciation and deterrence the primary sentencing considerations in cases involving
the abuse of a victim who is vulnerable because of their personal circumstances. The sentencing
judge erred in referring to a statutory provision not in force on the offence date, but his reliance on
the principle was appropriate.

[35] Mr Kolola also says that the sentencing judge erred by determining the precedents provided
by defence counsel were no longer relevant in determining a fit sentence based upon s 718.04 and
the decision in Friesen.
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[36] Friesen cautioned courts about relying on dated precedents that may fail to reflect
“society’s current awareness of the impact of sexual abuse on children.” While Friesen dealt with
sexual abuse of children, the caution about relying on dated precedents in cases of sexual abuse of
adult victims is equally applicable. Our understanding of the gravity and harmfulness of sexual
offences has evolved and courts must recognize that dated precedents may constrain a sentencing
judge’s ability to impose a proportionate sentence in these cases: Friesen at paras 110-112.

[37] The precedents provided by defence counsel at the sentencing hearing were either
distinguishable on the facts or dated precedents using the reasoning in Friesen. The imposition of
a 30 month sentence as suggested by the Crown was a fit and reasonable sentence in the
circumstances. We do not find it necessary to consider or to comment on the sentencing judge’s
attempt to define a sentencing range for offences of this kind.

VIII. Conclusion

[38] In conclusion, where the sentencing judge erred, those errors were minor and did not
impact upon the sentence imposed. The sentencing judge imposed a fit and reasonable sentence in
the circumstances for this offence of sexual assault.

[39] The appeal is dismissed.

Appeal heard on May 11, 2021

Memorandum filed at Iqaluit, Nunavut

Smallwood J.A.

Authorized to sign for: Antonio J.A.

Feehan J.A.
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Appearances:

L. Lane
for the Respondent

C.J. Hogg
S. Paddock
for the Appellant