R v. Akpaliakluk, 2016 NUCJ 24

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R v. Akpaliakluk, 2016 NUCJ 24 Date: 20160920 Docket: 08-15-246 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused Joe Akpaliakluk ________________________________________________________________________ Before: The Honourable Mr. Justice Burrows Counsel (Crown): B. Flight Counsel (Accused): L. Walker Location Heard: Iqaluit, Nunavut Date Heard: July 21, 2016 Matters: Criminal Code of Canada , RSC 1985, c C-46, s. 271 REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

Amended Decision: An amended decision was issued on September 20, 2016; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [ 1 ] Mr. Akpaliakluk pled guilty to this charge: On or about the 26th day of January, A.D. 2015, at or near the City of Iqaluit, in the Territory of Nunavut, did commit a sexual assault on [the complainant] contrary to

section 271 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code]. [ 2 ] At the sentencing hearing on July 21, 2016, Mr. Akpaliakluk acknowledged the accuracy of the Crown’s statement of facts. The essential elements of which are: 1. On January 26, 2015, Mr. Akpaliakluk and his cousin, the complainant, had been drinking with two other people at the complainant’s house. The others left the house, and the complainant and Mr. Akpaliakluk continued to drink into the early morning hours. The complainant went to bed. Mr. Akpaliakluk was still in her house. 2. The complainant woke up and discovered Mr.

Akpaliakluk on top of her with his penis in her vagina. Initially she did not know who was on top of her because it was dark. She realized it was Mr. Akpaliakluk and told him to get off and tried to push him off, but he did not and continued for what felt to the complainant like five minutes. 3. When Mr. Akpaliakluk stopped, he tried to perform oral sex on the complainant, but she told him not to. 4. Mr. Akpaliakluk got dressed and went downstairs. 5. The complainant phoned Mr. Akpaliakluk the next morning and he apologized to her. She has not seen or spoken to Mr. Akpaliakluk since. 6.

The complainant reported the assault to police on March 30, 2015. 7. Mr. Akpaliakluk was cooperative with the police when arrested. He provided a statement in which he maintained that he did not remember what had occurred on the night in question. He did say that he was sorry to the complainant, but did not elaborate further. II. ANALYSIS [ 3 ] I am satisfied that the elements of the offence to which Mr. Akpaliakluk pled guilty are contained in the facts outlined by the Crown and acknowledged by Mr. Akpaliakluk. I find Mr.

Akpaliakluk guilty as charged and direct that a conviction be entered. [ 4 ] The complainant provided a Victim Impact Statement in which she describes the effects Mr. Akpaliakluk’s crime has had on her. It is clear that she has suffered significant emotional distress, that formerly close ties to family members (Mr. Akpaliakluk’s mother and sisters) have been jeopardized, that she is fearful of Mr. Akpaliakluk, and that she is concerned about the consequences for her, Mr. Akpaliakluk, and their extended family of her having reported his crime to the authorities. [ 5 ] A pre-sentence report was prepared.

It indicates that Mr. Akpaliakluk is 37 years old. He was born in Iqaluit, but was raised in another community. He is the third eldest of his parents’ seven children. He and his siblings had a “rough upbringing” as his parents often drank and his father was physically abusive towards his mother and the children. His parents divorced when he was 16 and he

moved to Iqaluit. His siblings remained in the other community. His father continues to reside there. His mother now lives outsideNunavut. He reported that his ties to his siblings continue to be strong. [6] Mr. Akpaliakluk was a victim of sexual abuse as a child. He had not told anyone of the abuse until after he encountered his abuserin a prison in Ontario. The pre-sentence report indicates that the abuse he suffered as a child still causes Mr. Akpaliakluk significantmental anguish for which he has not received counselling or other assistance. [7] Mr.

Akpaliakluk and his partner of nearly 20 years have two adolescent sons. His relationship with his partner has been volatileand has involved domestic violence; in respect of which he has been criminally charged several times in the past. [8] He has a Grade 5 education. He has worked on and off for various employers. He now relies largely on Income Support for food,clothing, and housing. [9] Mr. Akpaliakluk advised the author of the pre-sentence report that he uses marijuana regularly, is a binge drinker, and at timesblacks out from drinking too much alcohol.

He has never attended a treatment facility and has never had long-term counseling. [10] Mr. Akpaliakluk has a lengthy criminal record. As an adult, he has been before the courts on 12 previous occasions since 1999. Inall, but two instances, the “lead offence” was assault including four instances of spousal assault. There is no previous conviction forsexual assault. The sentences imposed have involved incarceration on all, but one occasion. The total of all the sentences imposedamounts to about eight years over the last 16 years.

As I interpret the criminal record statement provided by the Crown, his sentencewould have been served in a federal prison on only two instances. Probation has been imposed on four occasions. A. Crown position [11] The Crown sought a sentence of between three and three and a half years. The Crown submitted that the following features of thecircumstances are particularly relevant to the determination of a fit sentence: • that the complainant was asleep and intoxicated when the sexual assault began; • that the complainant told Mr.

Akpaliakluk to stop, but he did not; • that there was full vaginal penetration; • that the sexual assault lasted between one and five minutes; • that, after the vaginal penetration stopped, Mr. Akpaliakluk attempted oral intercourse; • that the assault occurred in the complainant’s home, in her own bed, where she ought to have been safe; and • that Mr. Akpaliakluk and the complainant are cousins.

He is someone with whom the complainant ought to have been safe. [12] The Crown submitted that an aggravating feature of this sexual assault was that it was “predatory”, comparable, though notidentical, to a case where the accused accosts a stranger in the street, coerces her to go behind a building, pushes her to the ground andsexually assaults her. That was the situation in R v Ipeelee, 2015 NUCA 3 , 2015 NUCA 03, [2015] Nu J No 15 (QL) [Ipeelee],where a sentence of four years was upheld. [13] In my view, the circumstances in Ipeelie and this case are distinguishable.

The blameworthiness associated with accosting astranger in the street late at night and sexually assaulting her is aggravated by the predatory nature of the attack. The blameworthiness ofgetting into bed with and sexually assaulting a drunk and sleeping female relative with whom the accused has spent the evening gettingdrunk is aggravated because it is a betrayal of a familial relationship. In my view, the difference renders Ipeelie of little assistance indetermining a fit sentence in this case. [14] The Crown acknowledged that Mr. Akpaliakluk’s guilty plea is a very significant mitigating factor. B.

Defence position [15] Defence Counsel submitted that a fit sentence is two years less a day plus two years’ probation. [16] Defence Counsel identified the following mitigating factors: • that Mr. Akpaliakluk pled guilty early in the proceedings. There was no preliminary inquiry. The complainant was not required totestify (the delay between the date of the offence and the sentencing does not result from anything Mr. Akpaliakluk did or failed to do); • that Mr. Akpaliakluk apologised to the complainant the next day; • that Mr. Akpaliakluk was cooperative with police and the court throughout; and

• that Mr. Akpaliakluk expressed remorse for his actions at the sentencing hearing. [ 17 ] Defence Counsel referred me to R v AB , 2011 NUCJ 15 , [2011] Nu J No 17 (QL) [AB] , where Cooper J. discussed the particular significance of a guilty plea in a Nunavut sexual assault case at paras 22 to 25 and concluded that in Nunavut a guilty plea “must mitigate sentence in a real and meaningful way” (para. 20). [ 18 ] AB involved four instances of sexual assault of AB’s older sister. In two instances the complainant awoke to discover AB having sexual intercourse with her.

On each occasion both AB and the complainant had been drinking. AB pled guilty. Cooper J. imposed a sentence of two years less a day followed by two years’ probation. [ 19 ] Defence Counsel also cited R v Nookiguak , 2005 NUCJ 16 , [2005] Nu J No14 (QL) , in support of her submission as to a fit sentence in this case. In that case, the accused, who was drunk, sexually assaulted his 16 year old niece who lived in his residence.

Kilpatrick J. observed: Given the frequency of this type of offence in Iqaluit, there is an emphatic need in this case to send a clear and unequivocal message to the community of Iqaluit that sexual offences involving sleeping victims, particularly young people, will result in a serious consequence… [para 25]. [ 20 ] The accused in that case had no criminal record. He was employed and had family obligations. He was sentenced to 18 months in gaol followed by two years’ probation. III. SENTENCE [ 21 ] In my view, a fit sentence for Mr.

Akpaliakluk is two years less a day followed by two years’ probation. [ 22 ] In reaching that conclusion I have: • considered the aggravating effect of the “relational betrayal” in the circumstances of the offence; • considered Mr. Akpaliakluk’s criminal record as minimally aggravating since, though extensive, it does not include a previous conviction for sexual assault; • given substantial mitigating effect to his guilty plea;. • considered as having mitigating effect the previously mentioned features of Mr.

Akpaliakluk’s personal history including: o the paternal abuse and neglect he experienced as a child; o the sexual abuse he suffered as a child and the mental anguish that continues to cause him; and o his unaddressed substance abuse problems • attempted to give particular attention to Mr. Akpaliakluk’s circumstances as an Aboriginal as required by Criminal Code s. 718.2(e); • recognized the heightened need for denunciation and deterrence in cases of sexual assault; • recognized that the sentence must attempt to promote Mr.

Akpaliakluk’s rehabilitation, which in this case includes: o assisting him to overcome his alcohol abuse problem which appears to have been a very significant causal factor in this offence; o assisting him to address the mental anguish resulting from his having been sexually abused as a child; o assisting him to repair the damaged family relationships that his conduct has caused. [ 23 ] I sentence Mr. Akpaliakluk to incarceration for two years less a day followed by two years’ probation. [ 24 ] Mr. Akpalilakluk has been in pre-sentence custody since the date of the sentencing hearing, which was two months ago.

He is entitled to 3 months credit against the two years less a day for that time. He therefor has 21 months of his sentence left to serve. A. Probation order

[ 25 ] The conditions of the probation order shall be that Mr.

Akpaliakluk: 1. keep the peace and be of good behaviour; 2. abstain from communicating, directly or indirectly, or having any contact, with the complainant or her daughter, who shall be named in the probation order, unless the complainant or her daughter give their consent; 3. appear before the court when required to do so by the court; 4. notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; 5. report to a probation officer: a. within two working days after his release from custody, and b. thereafter, when required by the probation officer and in the manner directed by the probation officer; 6. provided he agrees to do so, participate actively in such treatment or counselling as his probation officer may arrange particularly in respect of: a. his alcohol abuse; b. his mental anguish resulting from childhood sexual abuse; and c. the repair of the family relationships he damaged by his crime.

B. Ancillary orders [ 26 ] There will be a firearms prohibition under Criminal Code s. 109 [ s. 109 ] . The Crown submitted that because Mr. Akpaliakluk must have been subject to a firearms prohibition order in respect of a previous conviction for robbery, the duration of the firearms prohibition now being imposed would be for life. As I read s. 109 that is not correct. Section 109(2) provides that in the case of “a first conviction for… the offence to which the order relates” the duration of the prohibition in respect of the weapons referred to in s. 109(2)(

a) is 10 years. This is Mr. Akpaliakluk’s first conviction for sexual assault, the offence to which the present order relates. The prohibition will continue until 10 years after his release from imprisonment as it relates to the weapons referred to in s. 109(2)(a). [ 27 ] Given that Mr.

Akpaliakluk has a history of hunting for food and in future may need to have the resources to resume that activity, and having taken into account the factors listed in Criminal Code s. 113(2), I grant a Criminal Code s. 113 exemption in respect of the firearms prohibition. [ 28 ] I order, pursuant to Criminal Code s. 487.051(1), that Mr. Akpaliakluk provide a DNA sample. [ 29 ] I order, pursuant to Criminal Code s. 490.012(1), that Mr.

Akpaliakluk comply with the Sex Offender Information Regulations for the period specified in Criminal Code s. 490.013(2)(b), 20 years. [ 30 ] I order, pursuant to Criminal Code s. 743.21(1), that, during his incarceration Mr. Akpaliakluk not communicate directly or indirectly with the complainant or her daughter. C. Victim Fine Surcharge [ 31 ] The Crown submitted that I should order Mr. Akpaliakluk to pay a Victim Fine Surcharge as contemplated by Criminal Code s. 737. I decline to do so. [ 32 ] Criminal Code

section 737 [ s. 737 ] is entirely self-administering. Unlike the sections referenced above in relation to the ancillary orders, s. 737 does not contemplate the court making an order. Rather, the

section itself imposes the surcharge, establishes the amount of the surcharge, and the time when the surcharge must be paid. [ 33 ] Section 737(3) contemplates that the court might order that the offender pay a higher amount than the surcharge set by the

section if that is appropriate, but I did not understand the Crown to be asking for such an order in this case. However, if I misunderstood and that is what the Crown was seeking, I decline to make such an order. A greater surcharge is certainly not appropriate in this case. Indeed, in my view, the surcharge imposed by the

section is very significantly greater than is appropriate in this case, but Parliament has seen fit to take away the court’s discretion to reduce or waive the victim fine surcharge in an appropriate case. The court’s only discretion is to increase the surcharge.

[34] Section 737(8) requires the court to cause the offender to be given a written notice setting out the particulars of the victim finesurcharge imposed by the section. In my view, this is entirely an administrative and not a judicial function. I expect the written notice isprepared and given to the offender by the Clerk of the Court in the same manner that, for example, the similarly worded Criminal Codes. 732.1(5), results in the clerk’s office preparing the probation order and providing it to the offender.

Compliance with s. 737(8) does notdepend upon, require, or contemplate an order or any other action by the judge. Dated at the City of Iqaluit this 20th day of September, 2016 ___________________ Justice B.R. Burrows Nunavut Court of Justice _______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Mr.

Justice Burrows _______________________________________________________ In paragraph [12] the pinpoint of R v Ipeelee, has been changed from “R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433” to “R v Ipeelee,2015 NUCA 3 , 2015 NUCA 03, [2015] Nu J No 15 (QL).” Please replace the amended pages in your hard copy of the judgment.