R. v. Akpalialuk, 2020 NUCJ 8

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Akpalialuk, 2020 NUCJ 8 Date: 20200124 Docket: 10-19-34 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jessica Akpalialuk ________________________________________________________________________ Before: Madam Justice Doyle Counsel (Crown): P. Plourde Counsel (Accused): K. Selkirk Location Heard: Iqaluit, Nunavut Date Heard: December 17, 2019 Matters: Sentencing for offence under s. 268(2) of the Criminal Code of Canada , RSC 1985, c C-46 REASONS FOR SENTENCE (NOTE: This document may have been edited for publication)

I. OVERVIEW [ 1 ] On August 21, 2019, Jessica Akpalialuk and the co-accused Joshua Evic were convicted of aggravated assault on Billy Qappik committed on March 5, 2019 in the hamlet of Pangnirtung in the territory of Nunavut contrary to s. 268(2) of the Criminal Code . [ 2 ] The details of the offence are that Mr. Qappik was at his friend’s home having drinks when Mr. Evic and Ms. Akpalialuk came over. An argument ensued between Ms. Akpalialuk and Mr. Qappik, and she then started punching Mr. Qappik on his head and his arm. In order to protect himself, Mr. Qappik covered his head with his arms. Mr.

Evic began punching him as well. Both Ms. Akpalialuk and Mr. Evic began kicking him while Mr. Qappik was on the ground covering his head. He was rendered unconscious. Mr. Qappik did not fight back. [ 3 ] Mr. Qappik suffered bruising on the left arm and three serious lacerations to his scalp which required 16 staples to his head from the Health Centre. [ 4 ] On August 21, 2019, Ms. Akpalialuk was also convicted of failing to comply without lawful excuse, while being on release by the order of Justice Harvey dated November 5, 2018 (“Justice Harvey’s Order”).

The order directed her not to consume intoxicating substances, which she did contrary to s.145(3) of the Criminal Code (“August 21, 2019 conviction”). This breach took place at the time of the aggravated assault on Mr. Qappik. [ 5 ] In addition, at the sentencing hearing that took place on December 17, 2019, she pled guilty to two counts of drinking when prohibited from doing so:

i) On January 27, 2018, when bound by an undertaking dated October 4, 2018 given to a peace officer, not to consume intoxicating substances (“January 27, 2018 offence”); and ii) On April 29, 2019, when bound by Justice Harvey’s Order (“April 29, 2019 offence”). II. OFFENDER [ 6 ] Ms. Akpalialuk is 27 years old and is a resident of Pangnirtung. In her pre-sentence report, she described her childhood as a “good one” as she went camping, spent time with her family on the land and lived in the community.

She felt supported by her parents but she reported that there was excessive drinking in the home while she was growing up. [ 7 ] Her mother indicated that she is in a common law marriage and supports her family by working as a janitor at the Pangnirtung Co- op. Her common law husband is a well-known soap stone carver. She reported that there was no abuse in the home but that the offender was bullied at school and that she has had problems with alcohol abuse since she was 20 years old. [ 8 ] The offender has four children (11, nine, six and three years old).

She indicates that it is tough living with a total of 11 people in one home. [ 9 ] She dropped out of school early due to bullying and was pregnant with her first son at the time.

[ 10 ] She has worked as a seasonal worker at the fish plant on an “on and off” basis for the past 8 years. She is concerned about her future due to the community’s unemployment issues and poor economic conditions and “as well as not much to do for the children”. [ 11 ] She has no mental health issues but struggles with alcohol abuse. [ 12 ] Her uncle had passed away as a result of suicide. She stated that she had some suicidal thoughts but has never acted on them. [ 13 ] Ms. Akpalialuk is of Indigenous background. III. VICTIM [ 14 ] The victim, Mr.

Qappik was interviewed by the Community Corrections officer who prepared the Pre-Sentence Report. Mr. Qappik indicated that he feels he is “paranoid” and he feels he has to watch his back in the community. He states that he no longer drinks which has allowed him to spend more time with his family. He has support from his mother. Due to his head injuries, he was sometimes quicker to anger but it is no longer an issue. He indicates that he did not know why he was assaulted. IV.

POSITION OF THE PARTIES [ 15 ] The Criminal Code provides that a person found guilty of the indictable offence of aggravated assault is liable to imprisonment for a term not exceeding fourteen years. [ 16 ] On the conviction of aggravated assault, the Crown seeks a prison sentence of 2 years with a credit of 87 days (1.5 days per day of pre-sentence as of December 17, 2019) plus 3 years’ probation. [ 17 ] For the January 27, 2018 offence, the Crown seeks one day (i.e. time served). [ 18 ] For the April 29, 2019 offence, the Crown seeks 15 days’ consecutive, and for the August 29, 2019 conviction, 30 days’ concurrent. [ 19 ] The Crown relies on R v Sinclair , 2014 MBPC 13 , where the offender received 2 years less a day plus 3 years of probation for a house invasion resulting in an aggravated assault and an assault with a weapon.

The offender was Aboriginal and experienced severe poverty, racism, sexism, and the legacy of residential schooling and displacement. The victim had wounds to her head which required stitches and staples, cuts and bruising to her face and arms, and bruises to her upper back and side. The wounds were caused by a baseball bat. [ 20 ] In R v Brown , 2014 ABPC 236 , the offender pled guilty to assault causing bodily harm on one victim, Mr. Charland, and wounding, maiming, disfiguring or endangering the life of another victim, Ms. Marty. Ms. Marty and the offender had been dating and the offender saw Ms.

Marty have intimate relations with Mr. Charland. All three individuals were intoxicated. The offender assaulted Mr. Charland and then grabbed Ms. Marty by her hair, kicked her in the head repeatedly, stomped her head against the pavement several times, and rendered her unconscious. He continued to kick her while she was unconscious. Mr. Charland tried to stop the offender but he then became the target of the offender’s punches and kicks. Ms. Marty underwent neurosurgery for subdural hematoma. She had a traumatic brain injury.

She was tube fed for several weeks and eventually was able to respond appropriately to questions and whisper and mouth some words. The Court imposed a sentence of 5 years for the aggravated assault. At para 96, the Court stated that . . . brutally kicking the victim repeatedly in the head must be denounced as morally repugnant behavior. The aggravating factor of a

continued attack on a victim who is defenseless, as described in Blackrabbit, supra. is present. Brown continued to attack Ms. Marty asshe was lying helpless on the pavement unconscious. The attack was also directed to her head- the most vulnerable part of the body. [21] The offender before me suggests a sentence of 90 days plus 3 years’ probation. [22] She relies on R v Pulido, 2010 ONSC 3143, which involved an aggravated assault in a pub. The offender struck the victim with abeer bottle cutting the tendons in the victim’s hand, which required surgery.

The Court noted that the circumstances were similar to aprevious conviction ten years earlier when the offender was under the influence of alcohol and was in a bar fight causing serious injury.He had been living a productive life, had admitted responsibility during the trial, and expressed remorse. He had never served jail time.The Court sentenced him to 90 days intermittent. [23] R v Akulukjuk, 2015 NUCJ 18, involved a consensual fight in Iqaluit. The offender took two swings at the victim with a two-by-four, hitting him on the legs and causing him to fall.

When the victim tried to get up, the offender stabbed him three times: once in thehead, once in the back and once in the chest. The Court considered the age of the offender (28 years old), his criminal record dating backto 2009 (three assault convictions and two convictions for uttering threats), and that he had not been before the courts for two years.Justice Cooper referred to the few reported cases in Nunavut at paras 12 to 17, which featured a range of sentences from a nine-monthconditional sentence (R v Evaloardjuk, ) to a six-year sentence for numerous offences (R v JA, 2018 NUCJ 7).

Afterconsidering the unique factors in that matter, she sentenced the offender to 12 months in jail followed by 12 months of probation. [24] In R v Nakamura, 2012 BCSC 327, the offender was convicted of aggravated assault and assault with intention to steal. He was 18years old at the time of the offence. The crime involved a plan to rob the victim of drugs and money. The victim had some life-threatening injuries including a wound to his stomach, loss of a large amount of blood, and lacerations to his small intestine, and he spentone week in the hospital. He was a first offender who expressed remorse.

He received two years’ probation and a suspended sentence forthe two convictions. [25] Defence counsel distinguishes the Sinclair case where there was a break-in, a bat was used, and children were present. The victimwas ten weeks pregnant. Similarly, in Brown there were two victims with one of the victims requiring neurosurgery and one with lastingbrain damage. V. GENERAL LEGAL PRINCIPLES [26] The applicable sentencing principles are set out in s. 718 of the Criminal Code.

The sentence must denounce unlawful conduct,deter the offender and others from committing offences, separate offenders from society if necessary, assist in rehabilitation, providereparation for harm done to victims and the community, promote a sense of responsibility in offenders, and acknowledge of the harmdone to victims or to the community. [27]

Section 718.1 of the Criminal Code states that the fundamental principle of sentencing is that a sentence must be proportionate tothe gravity of the offence and the degree of responsibility of the offender. [28]

Section 718.2 sets out other sentencing principles to consider in determining aggravating or mitigating circumstances. A. Proportionality [29] The proportionality analysis under s. 718.1 considers the gravity of the offence and the degree of responsibility of the offender,including the fault component and any specific aspects of the offender’s conduct or background that affect their responsibility for thecrime. B. Parity

[30] The parity principle requires that the Court consider sentences imposed for similar offences committed in similar circumstances.The cases presented provide a range of sentences and sentencing principles for the Court to consider. The cases indicate that lengthyprison sentences are imposed in cases where the victim has suffered serious head injuries. VI. ANALYSIS A. Aggravating and mitigating circumstances [31] The aggravating circumstances in this case are as follows:

i) The severity of the injuries to the victim; ii) The unprovoked attack on the victim; and iii) The serious criminal record for similar type offences, including an assault on a peace officer in August 2017 (conditionaldischarge and 3 months’ probation); an October 2017 assault and failure to comply with an undertaking (12 months’ probation); and anassault and failure to comply with a condition of an undertaking in November 2017 (1 day custody as time served and 12 months’probation). [32] The mitigating circumstances are as follows:

i) The offender has expressed a desire to change her ways and return to Pangnirtung to upgrade her education and obtain work; ii) She is willing to engage in a rehabilitative process and willing to comply with any court directives; and iii) She has expressed remorse. [33] She had been drinking during this offence, which was contrary to her undertaking of release and Justice Harvey’s court orders.

It isobvious that the offender has a serious issue with alcohol and would be well served by a term of probation to receive some counsellingand focus on her substance abuse. [34] I am also directed by the Supreme Court of Canada in R v Gladue, (SCC), [1999] 1 SCR 688, to consider theunique systemic and background factors that have played a role here. Gladue is part of the proportionality analysis and is fundamental tothe sentencing process. See R v Ipeelee, 2012 SCC 13, at para 87. [35] The Gladue analysis involves a two-level inquiry.

The first level is to recognize the systemic and background factors that bear onthe culpability of the offender.

The second level is to consider the types of sanctions which may be appropriate having regard to theeffectiveness of the sentence. [36] At paras 74 and 75, the Supreme Court stated in Ipeelee: ...The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the samevalues when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternativesanctions may more effectively achieve the objectives of sentencing in a particular community. [75]

Section 718.2(

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy theoverrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required topay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in

any particular case. This has been, and continues to be, the fundamental duty of a sentencing judge. [ 37 ] In cases referring to Gladue and Ipeelee , courts have taken judicial notice of the history of colonialism, displacement and residential schools and the fact that Aboriginal people continue to suffer from lower education, lower incomes, substance abuse, high suicide rates and, at times, higher levels of incarceration. See para 46 of R v Sinclair , 2014 MBPC 13 . [ 38 ] In considering the rehabilitative and restorative sentencing objective, I am taking notice of the willingness of Ms.

Akpalialuk to participate in rehabilitation, the resources available in the Pangnirtung community, the availability of counselling and psychiatric services, and the presence of the community corrections officer who supervises offenders who are on probation and conditional sentences. [ 39 ] The accused’s mother has also stated that she is prepared to support her daughter. B. Fit and proper sentence [ 40 ] Mr. Qappik was seriously injured. There was no pre-planning, but the assault was serious enough that it rendered the victim unconscious.

In addition, he continued to be kicked when he was on the ground covering his head and not fighting back against his assailants. [ 41 ] The Court must consider the sentencing principles of denunciation and deterrence when dealing with such a vicious attack. The attack occurred when she was intoxicated, and alcohol may have fueled these numerous acts of violence. The attack has left the victim feeling insecure and that insecurity can translate to the community. [ 42 ] The accused instigated these acts of violence.

It was not just one act but several acts, and it continued even though the victim was on the ground helpless and not fighting back. [ 43 ] The Court must consider the proportionality and parity of the sentence. The accused also has multiple convictions for breaching conditions of undertakings and court orders. Clearly, the offender has serious alcohol abuse issues that need to be addressed. The Court is mindful of the need for rehabilitation of this offender.

She has four children to support and needs to be a responsible citizen of the community. [ 44 ] The Court has considered the unique systemic and background factors as required in Gladue . The Court considers her circumstances: being surrounded by alcohol, although living in a dry community, and the poverty, homelessness, and suicide in her family. Certainly, the Court is concerned with respect to the rehabilitative component. [ 45 ] Until October 2019, when she was arrested on other charges, this individual was never in jail.

Her previous assault on a peace officer conviction resulted in a conditional discharge. [ 46 ] The offender indicates that she does not wish to drink and wishes to get her life in order. This individual must be given a chance to rehabilitate herself and hence a probationary term is important so that she can obtain counselling and assistance regarding her alcohol issues. [ 47 ] The Court has considered the need to emphasize the denunciation and deterrence aspects of sentencing. This was not a consensual fight as in Akulukjuk or a pub fight as in Pulido . The attack on Mr.

Qappik was unprovoked. [ 48 ] Unlike the Sinclair case, no weapon was used here, and it was not a home invasion. It is also unlike Brown , in which the injuries to one of the victims was very severe, requiring neurosurgery and rehabilitation. [ 49 ] Therefore, Ms. Akpalialuk, please stand up.

[ 50 ] The Court imposes the following sentence:

i) For the aggravated assault, I sentence you to 12 months incarceration minus a credit of 1.5 days to 1-day pre-sentence time served to today’s date; ii) For the January 27, 2018 offence, 1 day (which will be time served); iii) For the April 29, 2019 offence, 15 days’ consecutive; and iv) For the August 21, 2019 offence, 15 days’ concurrent.

v) You shall provide a DNA sample pursuant to s. 487.051(2) of the Criminal Code ; vi) There shall be a prohibition on firearms pursuant to s. 109 of the Criminal Code save and except permission to hunt and fish pursuant to s. 113 for sustenance or employment for 10 years; vii) You shall not contact or communicate in any way directly or indirectly with the victim while you are in custody pursuant to s. 743.21 of the Criminal Code ; viii) There will be no victim surcharge; and ix) You shall be placed on probation for 3 years which shall include the conditions found in s. 732.1(2) of the Criminal Code as well as the following additional conditions made under s. 732.1(3) of the Criminal Code : to report to a probation officer within 5 working days of your release from custody and thereafter when required by the probation officer and in the manner directed by the probation officer; to attend counselling or treatment as recommended by the probation officer, including recommended counselling or treatment for alcohol and substance abuse, and to complete all such counselling or treatment to the satisfaction of your probation officer; to sign any release required to allow your probation officer to monitor your attendance, participation and completion of any assessments, counselling or rehabilitative programs as directed; to abstain from communicating in any way, directly or indirectly, with the victim; and to refrain from going within 500 m of any place where you know the victim to live, work, attend school, frequent or any place you know him to be.

Dated at the City of Iqaluit this 24th day of January, 2020 ___________________ Justice A. Doyle Nunavut Court of Justice