R. v. Idlout, 2021 NUCJ 50

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Idlout, 2021 NUCJ 50 Date: 20211220 Docket: 12-19-17 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Solomon Idlout __________________________________________________________________ Before: Mr. Justice Alan P. Ingram Counsel (Crown): E. Baasch Counsel (Accused): M. Manocchio Location Heard: Iqaluit, Nunavut Date Heard: December 13, 2021 Matters: Sentencing for a charge of breaking and entering to commit sexual assault, contrary to s.347 (

d) of the Criminal Code of Canada REASONS FOR DECISION (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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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 anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] Following trial, Solomon Idlout has been found guilty of breaking and entering a dwelling house on May 14, 2019, and committing an indictable offence, namely a sexual assault, on the victim R.I. contrary to section 348(1) (

d) of the Criminal Code . [ 2 ] The trial took place on October 21, 2021, in Resolute Bay. The submissions were presented orally on December 13, 2021. The sentence was given on December 20, 2021. [ 3 ] The Crown seeks a penitentiary term of four to five years, before any pre-trial custody is calculated. The Defence submits that a fit sentence is time served in pre-sentence custody of 375 days, which after given enhanced credit, results in a sentence of approximately eighteen months. II. FACTS [ 4 ] Mr. Idlout and the victim are distantly related and have known each other since childhood.

Both are in their mid-thirties. They now consider themselves drinking buddies. The victim attends at Mr. Idlout’s residence and drinks with he and his partner. [ 5 ] It came to the attention of Mr. Idlout and his partner that R.I. had stolen some of their liquor, R.I suggesting it was a 60 oz. bottle of Smirnoff. They decided that R.I. must be punished, by either Mr. Idlout’s partner beating up R.I. or by Mr. Idlout raping R.I. [ 6 ] On the night in question, Mr. Idlout entered R.I.’s residence, uninvited, between 1:30-2:00 a.m. Mr. Idlout had been drinking with his partner and his father.

He found R.I. asleep on the couch. Two of her children were also in the house. Mr. Idlout woke up the victim. He told her that she owed him something for stealing the bottle and that she would either get beaten up by his partner or raped by him. It was a conversation. R.I. told him that she did not want either.

[ 7 ] They continued their conversation outside while having a smoke, with no agreement as to the penalty. When Mr. Idlout started to leave to tell his partner to come to R.I.’s residence, R.I. said she would sleep with him, but he had to wear a condom. They had sexual intercourse and he did wear a condom. The sexual intercourse took place to avoid being beaten up. There is no consent where the victim submits by reason of threats or fear of the application of force ( s. 265 (3) (

b) Criminal Code ). III. CIRCUMSTANCES OF THE OFFENDER [ 8 ] The Gladue issues have been adequately covered by experienced counsel. [ 9 ] Mr. Idlout is now age 36. He resides with his partner and their five children, ranging in ages from 8 months to 12 years, in Resolute Bay in the home of his partner’s father who has acted as a surety for Mr. Idlout. [ 10 ] Mr. Idlout was adopted as a baby and raised within one of the last families in Nunavut to live in an Outpost Camp, residing on Somerset Island until he was age 7.

At that time the family moved into Resolute Bay due to health issues experienced by his father. [ 11 ] There were twelve children in the family. One sibling has been murdered. Two other siblings were killed in an accident. Eight of the children were placed in residential schools. While Mr.

Idlout was not one of the children sent to a residential school, the residential school experience affects all members of the family. [ 12 ] He does have a criminal record, break enter and theft in 2003, impaired driving in 2012, possession of a weapon for dangerous purpose in 2017, and possession of a weapon and assault in 2018.

None of the sentences for these offences resulted in him being removed from the community to a territorial or federal institution. [ 13 ] His pre-trial custody has been spent primarily at Makigiarvik Correctional Centre in Iqaluit, designed for the lowest risk inmates who will be given access to programming both within and outside of the facility. It appears that he has not wasted his time in pre-trial custody, having completed two programs, the first ‘Inside Out’ seeking to work on personal issues, the second ‘Alternatives to Violence’.

In working on his mechanic’s training he was given daily passes to complete work placements in this field. He was also allowed daily passes to work on a Town Crew for municipal projects. He became involved with some training through Frontier College. IV.

PRINCIPLES OF SENTENCING [ 14 ] The purposes of sentencing are set out in s. 718 of the Criminal Code . 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and

(

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [15] The primary consideration in a sentence for this offence is denunciation and deterrence. General deterrence is directed to thecommunity to demonstrate the negative consequences that arise following a crime of this nature. From the content of the victim impactstatement, this appears to be of particular importance to this victim.

Specific deterrence is directed to this offender to deter him fromcommitting further offences. [16] The principles of denunciation and deterrence have been emphasized in s. 718.04 of the Criminal Code when the victim isvulnerable, including being Indigenous and female. As this offence occurred prior to the enactment of this section, the

section is notapplicable to this sentencing, however this principle may nevertheless be applied (R. v. Kolola 2021 NUCA 11 at para. 34). [17]

Section 718.04 codified the long standing and well-established common law principle where courts have considered denunciationand deterrence the primary sentencing considerations in cases involving the abuse of a victim who is vulnerable because of their personalcircumstances.

The appellate court in Kolala found that the sentencing judge erred in referring to a statutory provision not in force on theoffence date, however the principle of considering vulnerable victims has been considered by courts prior to the enactment of thissection. [18] The court must consider all available sanctions, other than imprisonment that are reasonable in the circumstances (s. 718.2Criminal Code). This codifies the principles set out in R. v.

Gladue (SCC), [1999] 1 S.C.R. 688 directing the court toconsider the unique systemic factors that may have played a role in bringing the offender before the court and the types of sanctions thatmay be appropriate because of his indigenous heritage. [19] As set out in R. v.

Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433, para 60, the unique systemic factors include: The history of colonialism, displacement, and residential schools and how that history continues to translate into lower educationalattainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and of course higher levels of incarcerationfor aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, theyprovide the necessary context for understanding and evaluating the case-specific information presented by counsel. [20] In Mr.

Idlout’s case he spent his early years in an Outpost Camp. He has been exposed to residential schools through siblings. Hehas been raised in a displacement community. Three of his siblings have met untimely deaths. [21] It is not only the indigenous status of the offender that is to be considered. The court must also consider the victim’s indigenousstatus. In R. v.

Barton, [2019] S.C.R 579, Moldaver J. states at para. 195, our criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, andstereotypes against Indigenous persons — and in particular Indigenous women and sex workers — head-on. Turning a blind eye to thesebiases, prejudices, and stereotypes is not an answer.

Accordingly, as an additional safeguard going forward, in sexual assault cases wherethe complainant is an Indigenous woman or girl, trial judges would be well advised to provide an express instruction aimed at counteringprejudice against Indigenous women and girls. [22] In her victim impact statement, R.I. indicates that her lifestyle has not changed much because of the offence, however she is angryabout the incident and the lack of respect shown by men towards her. Whether real or not she sometimes worries that the offender andhis partner, while out in a vehicle, may try to harm her. V.

MITIGATING AND AGGRAVATING FACTORS [23] The Criminal Code in s. 718 also requires judges to consider aggravating and mitigating factors. Aggravating factors work toincrease the sentence. Mitigating factors tend to lessen the sentence. A. Mitigating Factors

[ 24 ] There are no mitigating factors in the commission of the offence. [ 25 ] This will be the first time that Mr. Idlout has been removed from his residence following sentencing. It appears that he has done well both in custody and in the de facto house arrest since the incident. He has been under court-imposed restrictions for the past 2 ½ years since this incident. B. Aggravating Factors [ 26 ] It is aggravating that this offence was pre-meditated, Mr. Idlout having discussed the scenario with his partner. It is aggravating that Mr.

Idlout entered a private residence, uninvited, and committed the sexual assault in the victim’s residence, a place that she should expect to be safe and secure. It is aggravating that two of her children were in the residence at the time. VI. PROPORTIONALITY AND PARITY [ 27 ] As set out in s. 718.1 of the Criminal Code , the sentence must be proportionate to the gravity of the offence and to the degree of moral responsibility of the offender.

Sexual assaults are most serious offences that plague communities throughout Canada. [ 28 ] Like offenders convicted of like offences should not be subjected to widely disparate sentences. This is called parity, another fundamental principle in sentencing. This would encompass the facts of the case, the circumstances of the offender and the impact upon the victim. That being said, no two cases are alike. [ 29 ] Counsel have referred the Court to several decisions with some similar issues to this case. [ 30 ] In R. v.

Kolola , 2021 NUCA 11 , the accused, who knew the victim, entered her residence while the victim was asleep. She woke up to find him on top of her with his penis in her vagina. There is some similarity in the facts of that case and with Mr Idlout’s case. Mr. Kolola’s record was lengthier than that of Mr. Idlout and it was not his first time of being sentenced to jail.

Following a guilty plea, a sign of remorse and avoiding the necessity of making the victim testify, the offender was sentenced to 30 months, although the trial judge indicated that the offence deserved a more severe punishment but that the Crown had only asked for 30 months. [ 31 ] In R. v. Betsidea , 2018 NWTSC 8 , the accused, who knew the victim, entered her residence while the victim was asleep. She awoke to find him tugging at her pants. She was able to push him away. He too had a lengthier record than Mr.

Idlout, and was given a total sentence of two years less a day for the break and enter and the sexual assault. There was no penetration. [ 32 ] In R. v. G.N. 2019 NUCA 5 , the accused pled guilty to entering the victim’s home and sexually assaulting her. He had an extensive record. The facts are not provided in the appellate decision. The Crown sought a period of 15-18 months in jail, the Defence 15 months and 15 months was imposed. [ 33 ] In R. v. Parr, 2020 NUCA 2 , the accused sexually assaulted the 17-year-old victim while she was asleep and intoxicated.

He had just been released on bail and had an extensive record. He received a sentence of 48 months. [ 34 ] Mr. Idlout is receiving his first custodial sentence to be served in a correctional facility. While considering each of the factors enumerated above, the period of incarceration should not be so great as to be a barrier to his rehabilitation. He has shown some positive effort while in custody. He has five children and a spouse awaiting his return home. VII. DISPOSITION 1. Mr. Idlout will receive a sentence of 30 months; 900 days will be imposed. Mr. Idlout has been in pre-sentence custody for 382 days.

With an enhanced credit by a factor of 1.5, he will be given credit for 573 days in custody such that he has 327 days remaining on his sentence. 2. There will be a mandatory DNA order pursuant to s. 487.051 of the Criminal Code .

3. His name will be registered for 20 years pursuant to the Sexual Offenders Information Registration Act . 4. There will be a firearms prohibition for a period of ten years pursuant to s. 109 of the Criminal Code . 5. There will be a twelve-month probation order following the period of custody with the terms:

a) Keep the peace and be of good behaviour

b) Report to a probation officer as directed by the probation officer

c) Have no contact, direct or indirect with the victim, R.I. 6. There will be no victim surcharge payment due to inability to pay. Dated at the City of Iqaluit this 20th day of December 2021 ___________________ Justice A. Ingram Nunavut Court of Justice