R. v. Iqalukjuaq, 2020 NUCJ 15

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Iqalukjuaq, 2020 NUCJ 15 Date: 20200615 Docket: 08-18-584 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Roonie I qalukjuaq ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): J. Marshall Counsel (Accused): S. Siebert Location Heard: Iqaluit, Nunavut Date Heard: January 7, 2020 Matters: Sentencing for offence under section 272(1) (

c) of the Criminal Code of Canada, RSC 1985, c C-46 , pursuant to ss. 718.2 (

e) and 718.201 . REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer : This judgment has been p artially anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. I. BACKGROUND [ 1 ] The offender, Mr. Iqalukjuaq was charged with several Criminal Code offences including aggravated sexual assault. The incident happened in Iqaluit on 28 June 2018 in a shack behind the old courthouse. Mr.

Iqalukjuaq was remanded into custody pending his trial. On 21 February 2019 Mr. Iqalukjuaq was ordered to stand trial in August 2019. On 22 August, Justice Earl Johnson declared a mistrial. The case was subsequently rescheduled for trial on 6 January 2020. [ 2 ] On 7 January 2020 Mr. Iqalukjuaq pleaded guilty to sexual assault causing bodily harm. The parties presented an Agreed Statement of Facts to the Court. I heard sentencing submissions from counsel, and I reserved my decision concerning the appropriate sentence until today, 27 February 2020. II.

FACTS [ 3 ] I will first briefly outline the relevant facts. [ 4 ] The female victim, who I shall call X, knew the offender. They were not involved in an intimate partner relationship. At around 9 p.m. on 27 June 2018 X dropped by the offender’s shack for a visit. The offender was drinking wine when she arrived, and she accepted his offer to join him. Both the offender and X became intoxicated over the next few hours. [ 5 ] X later told police that the offender suddenly became angry “out of nowhere”. The offender began “to beat her up” to force her to

have sex with him. He punched X repeatedly on her face, both sides of her head as well as the back of her head. He then slapped her around before throwing her down onto the floor. The offender was threatening to kill her if she said anything. X told the police that “I thought he was really going to kill me”. [ 6 ] At some point, the offender picked something up and he hit her with it, cutting her. The offender ordered her onto his bed, and he threatened to kill her again if she tried to leave. The offender poured water all over her.

Then, he sexually assaulted her. [ 7 ] The police later found and seized as evidence a used condom in a small garbage pail in the shack, and a blood stained pillowcase. Each item was examined at the forensic laboratory. X’s DNA was found on the outside of the condom. The condom contained the offender’s sperm. The blood on the pillowcase came from X. [ 8 ] The offender left X with bruises on her face, swollen eyes and a cut to her left eye lid which required multiple stitches to close. X also suffered a bump to the back of her head as well as pain and soreness on her hips, ribs, and shoulders.

In fact, X was concerned that the offender had broken some of her ribs, but this was ruled out after she received x-rays. III. THE PARTIES’ POSITIONS [ 9 ] I will now outline briefly counsel’s positions on sentence. A. The Crown [ 10 ] The prosecutor highlighted the violence, fear, threats, degradation and humiliation which the offender inflicted on X.

The prosecutor then referred the Court to the recent publication “Addressing Gendered Violence against Inuit Women: A review of police and practices in Inuit Nunangat”. [1] That quote bears repetition here: Gendered violence against Inuit women is a problem of massive proportions. Women in Nunavut are the victims of violent crime at a rate more than 13 times higher than the rate for women in Canada as a whole. The risk of a woman being sexually assaulted in Nunavut is 12 times greater than the provincial/territorial average.

In 2016, Nunavut had the highest rate of female victims of police-reported family violence in Canada, the Northwest Territories had the second highest rate, and Yukon had the third highest. [2] [ 11 ] The prosecutor stated that the Court ought to give primacy to denunciation, deterrence and the frequency of these violent crimes in Nunavut. The prosecutor suggested that the sentencing range for sexual assault causing bodily harm across Canada is in the three to 12 year range. In his view, the offender ought to receive six years in a federal penitentiary for this “major sexual assault”. B.

The Defence [ 12 ] Defence Counsel stated that the parties were “not far apart” in their recommended sentences. She stated that the offender should be given credit for his guilty plea and his acceptance of responsibility. She referred the Court to various Gladue factors; I will return to these factors momentarily. She suggested that the usual sentencing range for these offences in Nunavut is two to four years. She called the prosecution’s six-year recommendation “crushing”. Instead, she asked the Court to impose a five-year penitentiary sentence. IV.

SENTENCING PRINCIPLES [ 13 ] I will now say a few words about the sentencing principles which I must apply. These principles are found in

Part XXIII of the Criminal Code . [3] [ 14 ] First and foremost, the punishment must fit the crime. [4] In this case, the sentence I impose must denounce emphatically gendered

crimes of sexual violence and, hopefully, deter this offender and others from committing them. [5] This is a case where the offender must be separated from society. [6] [ 15 ] I must account for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit. [7] And, I must consider that Mr. Iqalukjuaq’s actions were a serious violation of the principles of Inuit Qaujimajatuqangit. [ 16 ] The Criminal Code also requires judges to consider aggravating and mitigating factors. [8] Aggravating factors work to increase the sentence.

Mitigating factors tend to lessen the sentence. [ 17 ] There are several aggravating factors in this case. 1. Mr. Iqalukjuaq is a repeat violent offender. 2. Mr. Iqalukjuaq voluntarily assumed a position of trust towards X when he invited her into his home – a trust which he then violated. 3. X was especially vulnerable because she was isolated with Mr. Iqalukjuaq in his home. 4. Mr. Iqalukjuaq threatened to kill X if she tried to escape. [ 18 ] There is one mitigating factor in this case. [ 19 ] Mr.

Iqalukjuaq pleaded guilty thereby accepting responsibility for his actions – albeit only on the first day of his second trial. V. THE OFFENDER [ 20 ] I will now say a few words about the offender. [ 21 ] Mr. Iqalukjuaq is a single 44-year-old with no dependants. His counsel placed several Gladue factors before the Court. I was told Mr. Iqalukjuaq suffered violence at home as a child. His parents abused alcohol. His lawyer said this experience caused him “deep and significant trauma … which affects his ability to control his impulses”. He was fostered as a teenager after his grandmother died.

He has experienced homelessness at various times. He lives in a shack on Iqaluit’s downtown beach. He is said to be “unhappy with his life”. His lawyer said that Mr. Iqalukjuaq functions at a low level and “knows he needs help”. [ 22 ] The offender has a long and troubling criminal record dating back to 1994.

Among his convictions include assault (2004, 2010), assault causing bodily harm (2002, 2010), assault with a weapon (2004), aggravated assault (2004), sexual assault (2004), assaulting a peace officer (2010), criminal harassment (2014), and uttering threats (1997, 1998, 1998, 1999, 2004 x 2, 2010). [ 23 ] I am therefore sentencing an Indigenous adult repeat offender who has a troubling history of committing serious violent crime. VI. CANADIAN VICTIMS BILL OF RIGHTS [ 24 ] I now turn to Bill C-32 which received Royal Assent in 2015. Among other things, the Bill provided for a new Victims Bill of Rights .

Victims of crime have the right to be heard in court. [9] They may read out loud, or file, a “victim impact statement”. These statements help ensure victims are not ignored during the sentencing process.

[ 25 ] Mr. Iqalukjuaq’s victim declined to provide a victim impact statement. VII. ANALYSIS [ 26 ] The prosecutor has asked the Court to consider the frequency of reported sexual violence in Nunavut. I shall do so now. [ 27 ] I am sentencing Mr. Iqalukjuaq for his violent sexual assault on X. However, Mr. Iqalukjuaq did not commit his crime in a societal vacuum. Physical and sexual violence against women – young and old - in Nunavut is of epidemic proportions. Tragically, these cases continually dominate our court dockets throughout the Territory. [ 28 ] What Mr. Iqalukjuaq did to X was every woman’s nightmare.

As the recent Pauktuutit report reminds us, Inuit women in particular are among this country’s most vulnerable. How does the Nunavut sentencing judge account fairly for that reality? Ought that consideration play a role in sentencing? In my view, recent developments in the law suggest strongly that the unique vulnerability of Inuit women is an important consideration at sentencing. [ 29 ] In 1995, Parliament codified the sentencing regime.

In the process, Parliament amended the Criminal Code to oblige sentencing judges to account for the unique circumstances which confront Indigenous offenders. [10] In the later Gladue and Ipeelee cases, the Supreme Court of Canada gave legal substance to this requirement. [11] There is now a growing body of case law across Canada which discusses how these Gladue principles ought fairly to be applied. [12] Tragically, over 20 years later, Indigenous offenders continue to be incarcerated at rates vastly higher than other Canadians. [13] [ 30 ] From this offender-focused analysis, the criminal law has developed in a more holistic direction.

As one commentator has noted: “Victims are playing an increasingly significant role, both formally and informally, in the sentencing of offenders in Canada”. [14] This is as it should be. One cannot judge a crime fairly without understanding how its victim was hurt. And, this is particularly relevant when one considers the impact of crime on vulnerable Inuit women. [ 31 ] As we have seen, the rights of victims of crime received broader recognition in 2015 with the coming into force of Bill C-32. Bill C-32 did more, though, than simply provide for the Victims Bill of Rights .

Just as importantly, the Bill amended Criminal Code

section 718.2 (e). The

section now reads as follows with the 2015 amendment underlined: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [emphasis added] [ 32 ] The 2015 amendment requiring that a just sentence must be “consistent with the harm done to victims or to the community” has particular resonance for Nunavummiut.

In Nunavut, this amendment ought to be considered and applied in light of the unique vulnerability of Inuit women living in our far flung and isolated communities. [ 33 ] Late last year, Parliament turned its attention to the unique position of some Indigenous victims.

Effective 19 September 2019 sentencing judges are required – in the case of intimate partner violence – to “consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims”. [15] In effect, Parliament has expanded the application of Gladue principles to a specific class of Indigenous victim. [ 34 ] This consideration is appropriate, and it is a welcome development in the law; particularly here as the Nunavut Court of Justice is a Gladue court.

However, in my view, this new consideration has a broader application – and immediate relevance – in Nunavut. [ 35 ] The inter-generational effects of colonialism have not only contributed to the staggeringly high rates of Indigenous offending. This was the problem sought to be addressed by Criminal Code

section 718.2 (

e) and Gladue . The impact of colonialism also gave rise to the very same inter-generational effects which have left all Inuit women – and not just intimate partners - in a particularly vulnerable position

in society. In my view, this reality ought to inform the deliberations of a Nunavut sentencing judge when sentencing an offender who has victimized an Inuk woman. [ 36 ] In a broader context, there is persuasive legal authority that the frequency or prevalence of crime in a community is not an aggravating factor in sentencing.

However, the sentencing judge is entitled to consider that fact—one factor among others—when imposing a sentence on an offender. [16] A sentencing judge is entitled to consider the broader societal context as he balances the various relevant sentencing principles. [ 37 ] On this basis, I agree with the prosecutor that I ought to consider the prevalence of reported gendered sexual violence in Nunavut as I apply the principles and seek the objectives of sentencing. [ 38 ] Mr. Iqalukjuaq subjected X to a prolonged and serious assault before he viciously sexually assaulted her.

The facts of the case, and the personal circumstances of this repeat Indigenous violent offender, require me to emphasize denunciation and deterrence in this case. [ 39 ] This prison sentence is consistent with traditional norms of Inuit justice. When a person threatened the traditional group’s safety and security, that person could be, and sometimes was, banished. In other words, he was separated from the community. Many were welcomed later back into the group. Forgiveness, reconciliation, reintegration and restitution were, and still remain, key concepts of Inuit societal relations. Similarly, Mr.

Iqalukjuaq now must be separated from the community. He will be released, and he will return home. We all hope he will work to regain his community's trust. VIII. SENTENCE [ 40 ] Mr. Iqalukjuaq, on the sexual assault causing bodily harm of X, I sentence you to six years (2,190 days) in a federal penitentiary. On the uttering death threats to X, I sentence you to 180 days concurrent. [ 41 ] In my view, this penitentiary sentence is “consistent with the harm” you did to X. The effects of serious crimes of violence also have effects which ripple through our small remote communities.

This penitentiary sentence is also consistent with the harm you have done to your community. A. Credit for remand custody [ 42 ] I now turn to the remand credit available to Mr. Iqalukjuaq. [ 43 ] Mr. Iqalukjuaq has been in custody since late in the evening of 28 June 2018. He has been on remand for 610 days. [ 44 ] Normally, Mr. Iqalukjuaq would be entitled to credit at the rate of one and a half to one for each one of those days. However, Mr. Iqalukjuaq refused to attend court on 8 January 2019. The presiding judge that day ordered a bench arrest warrant for Mr. Iqalukjuaq . [17] The judge also stated that Mr.

Iqalukjuaq would not receive extra remand credit for the time between his refusal to attend court on 8 January and his next court appearance on 20 February. [ 45 ] I take judicial notice of the fact that prisoners refusing to attend court in 2019 created real delays in numerous cases. In my view, the judge presiding on 8 January 2019 was right to defend the court’s integrity and process by denying extra remand credit as a consequence of Mr. Iqalukjuaq’s refusal to attend court. I will not give Mr. Iqalukjuaq enhanced, or extra, credit for the 42 days between 8 January and 20 February 2019.

I give him credit during that time at the rate of one to one. [ 46 ] According to law, I give him enhanced remand credit at the rate of one and a half to one except for the 42 day period I have just discussed. Stated another way, I give Mr. Iqalukjuaq enhanced credit based on 568 days – 610 less 42. At one and a half to one, Mr.

Iqalukjuaq’s remand credit, then, totals 852 days. I now add straight credit for the 42 days: this totals 894 days of remand credit. I subtract this 894 days credit from his six year (2,190 days) sentence. Mr. Iqalukjuaq, you will serve the remaining 1296 days in a federal penitentiary. B. Ancillary orders [ 47 ] I now impose three ancillary, or related, Criminal Code orders. I impose: 1. A mandatory lifetime firearm prohibition pursuant to

section 109; 2. A mandatory lifetime sex offender registry order pursuant to

section 490.013(2.1); and 3. A non-communication order forbidding Mr. Iqalukjuaq from contacting X while he is in the penitentiary pursuant to

section 743.21. Dated at the City of Iqaluit this 15th day of June, 2020 ___________________ Justice P. Bychok Nunavut Court of Justice