Gary Nikota

The Crown brought a dangerous offender application against the offender following his guilty plea to Internet luring and breach of probation.

The offender had previously been convicted in 2009 of distributing child pornography, Internet luring, and counselling an indictable offence.

The court found that while the offender presented a substantial risk of reoffending, the Crown had not established that the predicate offence constituted a serious personal injury offence as required for a dangerous offender designation.

The court declined to designate the offender as dangerous but found him to be a long-term offender and imposed a sentence of two years and three months plus ten years of long-term supervision with conditions including sex reduction medication, treatment, and restrictions on Internet access and contact with minors.

The appellant appealed a summary conviction for assault under s. 266 of the Criminal Code arising from a domestic dispute in which he grabbed a tape recorder from the complainant’s hand.

The trial judge had concluded that the act of grabbing the object constituted a non-consensual touching and therefore an assault.

On appeal, the court considered whether taking an object from another person’s hand necessarily constitutes the application of force required for assault and also addressed allegations of judicial bias arising from comments made by the trial judge during the proceedings.

The court held that although the trial judge’s comments were unnecessary, they did not meet the high threshold for a finding of reasonable apprehension of bias.

However, the court found that the trial judge erred in law by concluding that grabbing the recorder constituted an assault in the absence of evidence of force applied to the complainant.

The conviction was quashed and a new trial ordered.

The accused pleaded guilty to distributing child pornography and luring a child by means of a computer system.

The Crown proceeded by indictment.

The accused made contact with what he believed was a fifteen-year-old girl over the internet on two occasions, counselling her on masturbation.

He subsequently sent explicit videos depicting young children engaged in sexual acts.

A search of his residence revealed 1,071 photographs and eleven videos of child pornography depicting children as young as three to five years old.

The court imposed a sentence of 15 months imprisonment, balancing the serious nature of the offences against mitigating factors including the accused's Aboriginal status, early guilty plea, genuine remorse, and support from family and community.

The accused pleaded guilty to distributing child pornography and luring a child by means of a computer system.

The court considered whether to order a full Gladue report to assist in sentencing an Aboriginal offender.

The court held that while a full Gladue report is not absolutely required, the sentencing judge must have sufficient materials before it to meet the requirement of special attention to the circumstances of Aboriginal offenders under s. 718.2(e) of the Criminal Code.

The court found that the pre-sentence report with Gladue content, combined with evidence from probation services and anticipated submissions from community elders and family, provided sufficient information to proceed to sentencing.