The Northwest Territories newest judge recently faced a challenge N.W.T. judges have been confronting for decades — what to do with offenders with intellectual disabilities who return to small communities where there’s no treatment to reduce their risk of hurting others.
Though he initially balked at it, Judge Donovan Molloy accepted a sentence of 12 months recommended by both the prosecutor and the defence lawyer representing Gilbert Katigakyok, on Wednesday.
It amounted to time Katigakyok had already served and meant he would return to his home community of Tuktoyaktuk, N.W.T., essentially the same man as when he left.
Katigakyok, 25, committed three sexual assaults in less than two years — in June 2017 and in March and April 2018. The crimes followed the same pattern: Katigakyok snuck into unlocked homes and then sexually touched women or girls who had been sleeping.
Molloy sentenced Katigakyok for the second of those assaults — on two children who were sleeping when Katigakyok came in at 5 a.m., and touched them over their clothing.
Katigakyok was arrested and charged for that assault the next day. Despite that, he committed his third sexual assault two weeks later, entering the home of a 28-year-old woman and fondling her.
Lock your doors, urges judge
According to a pre-sentencing report, Katigakyok suffers from fetal alcohol spectrum disorder (FASD). A psychological assessment concluded he has the intellectual capacity of a seven to eight-year-old child.
Molloy said sending Katigakyok back to Tuktoyaktuk would pose a risk to women and girls in the community and set him up to become a dangerous offender.
“If no programs are identified, Mr. Katigakyok will simply continue to live in the same circumstances he was living in when he surreptitiously entered three houses in Tuktoyaktuk and sexually assaulted sleeping female residents,” the judge said in a written decision.
“That option jeopardizes the safety of Tuktoyaktuk’s female residents. It also increases the likelihood that a severely disabled man will be incarcerated indefinitely as a dangerous offender.”
Molloy, nevertheless accepted the sentence of 12 months, saying it was unfair to penalize Katigakyok for a lack of programming in his home community.
“We can only sentence someone to what he deserves,” he said. “We cannot sentence on the basis of what the government hasn’t done.”
The judge urged people in Tuktoyaktuk to lock their doors.
Molloy said Katigakyok’s FASD also makes him less blameworthy for his actions. The judge said he would have sentenced Katigakyok to two years in jail if he did not suffer from an intellectual disability.
Katigakyok will be on probation for three years. His conditions include staying away from the victims and two other girls who were sleeping in the same room, remaining in his home from 10 p.m. to 8 a.m., and taking treatment recommended by his probation officer.
Under the terms of his sentence, probation officials are required to report back to court in two months on treatment they have arranged for Katigakyok.
“Currently there are no options that exist within the N.W.T. specific to sex offender programming,” the regional manager of probation services said in an affidavit for the sentencing, adding programming is only available outside the N.W.T.
Katigakyok did attempt to attend a Poundmaker’s Lodge healing program in Alberta, between the time he was charged and when he was sentenced, but could not complete it because he has the reading ability of a Grade 2 student.
CBC requested an interview with Justice Minister Louis Sebert for this story. He deferred to the department.
“The department recognizes that in order to better address the needs of individuals, particularly those with complex needs and challenges, integration of services before and after they are part of the correctional system is required,” a spokesperson for the department stated in an email.
“This is something that the department continues to advance and one of the reasons the new Corrections Act, expected to be passed imminently, includes a greater emphasis on reintegration.”
The government passed that new act last week.