R. v. Algiak, 2021 NUCJ 17

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Algiak, 2021 NUCJ 17 Date: 20210203 Docket: 23-20-48 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Joe Algiak ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): A. Seagal Counsel (Accused): W. McDiarmid Location Heard: Kugluktuk, Nunavut Date Heard: February 2, 2021 Matters: Sentencing, maximum penalty for a

summary offence under s. 271 of the Criminal Code of Canada, RSC 1985, c C-46 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. INTRODUCTION [ 1 ] This brutal sexual assault case raises the issue of when it is appropriate for a sentencing judge to “jump” the Crown recommendation and impose the maximum available penal sanction. [ 2 ] The facts of this case supported a charge of sexual assault causing bodily harm and a penitentiary sentence upon conviction. However, the police charged Mr.

Algiak with what I call level one sexual assault, the Crown proceeded summarily, and, after conviction, the prosecutor recommended a 10-month jail term—eight months less than the statutory

summary conviction maximum penalty—which itself was substantially below the appropriate penitentiary term. [ 3 ] I found the Crown’s sentencing recommendation troubling and, after giving counsel notice to respond to my concerns, I imposed the maximum

summary offence sentence of 18 months in jail. The four-day circuit docket had 25 trials and a preliminary inquiry scheduled and time was a precious commodity. I sentenced Mr. Algiak in the community, but I advised counsel that I would later supplement my oral reasons with a written decision. [ 4 ] These are my written reasons for why I “jumped” the Crown and imposed the maximum

summary 18-month jail term followed by probation. II. BACKGROUND [ 5 ] The police charged the offender, Joe Algiak, with sexual assault arising from an incident in Kugluktuk on June 6, 2020. Sexual assault is a hybrid offence, which means that the Crown may elect to proceed by indictment or summarily. The Crown elected to proceed summarily, and Mr. Algiak pleaded not guilty. The trial proceeded as scheduled on February 2, 2021. I convicted and sentenced Mr. Algiak in the community. III. THE FACTS [ 6 ] I shall first outline the relevant facts which led me to convict Mr.

Algiak. [ 7 ] The adult, female, Inuk victim, X, was house sitting for a friend. She and a cousin were drinking vodka, and she became

intoxicated. At some point her cousin left. After the cousin left, Mr. Algiak entered the house uninvited. He asked X if there was anyone else in the house, and she said no. Mr. Algiak was intoxicated. He started saying “I want you. I really want to be with you”. X said no. Mr. Algiak went into the living room. Mr. Algiak started “getting rough”, pushing and grabbing X. All the while, Mr. Algiak kept repeating “I really want you” while X continued saying no. [1] Mr. Algiak grabbed her outside and underneath her shirt and pants, touching her genitals. He continued to say, “I really want you”. [2] When Mr.

Algiak was touching her breasts, he was “going hard and squeezing”. [3] [ 8 ] Although X again repeated no, Mr. Algiak began pushing her against the wall “getting harder and harder”. [4] X again said “no, I don’t want to”, and Mr. Algiak started to pull X’s pants down. X moved away and tried to push Mr. Algiak away. Mr. Algiak continued the assault. He pushed her even harder, and her ribs started to hurt. He then threw her onto the floor, continuing to say that he really wanted her. [ 9 ] At some point, X was able to get up. She ran upstairs, hoping to lock herself in the bathroom, but Mr.

Algiak ran after her and caught her by grabbing her shirt. Mr. Algiak continued to say that “I’ve been wanting you for so long” and “I really want you”. [5] He pulled her towards him and started holding her. X said no, and they fell to the floor. Mr. Algiak began touching X over her pants before he pulled them off. X kicked at Mr. Algiak, who continued by penetrating her vagina first with “his right and then his left hand”. [6] The assault stopped when X told him “I’m going to get my nephews to hurt you for hurting me and doing this to me”. Moments later, Mr. Algiak “took off”. [7] [ 10 ] Mr.

Algiak fractured two of X’s ribs during the assault. For two weeks afterward, X could not lie down and had to sleep sitting up. X said that “I couldn’t move, nothing” during that time. [8] The prosecutor did not ask X why she couldn’t move, but I draw the rational inference that the injuries caused X considerable ongoing pain. IV. THE LAW PERTAINING TO SEXUAL ASSAULT [ 11 ] Our criminal law is codified in the Criminal Code and it is national in scope. [9] Sexually based offences are found in

Part VIII, entitled “Offences against the Person”. A. Sexual assault [ 12 ] Sexual assault, as we have seen, is a hybrid offence. A person commits a sexual assault when they intentionally hit, touch, or threaten to hit or touch another person in circumstances which violate another person’s sexual integrity. [10] [ 13 ] The police charged Mr. Algiak with sexual assault pursuant to

section 271 , the relevant part of which reads as follows: 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years … or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term not more than 18 months … [ 14 ] As noted above, the Crown elected to proceed summarily. B. Sexual assault causing bodily harm [ 15 ] In cases where the assailant causes bodily harm to his victim, a second more serious charge is available: sexual assault causing bodily harm. The relevant portions of the

section read as follows: 272

(1) Every person commits an offence who, in committing a sexual assault,

(

c) causes bodily harm to the complainant.

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable (b) … to imprisonment for a term not exceeding fourteen years. [ 16 ] Bodily harm is defined in the Criminal Code as “any injury or hurt to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. [11] [ 17 ] The evidence in this case supported a charge of sexual assault causing bodily harm. [12] V. THE POSITIONS OF THE PARTIES ON SENTENCE [ 18 ] Each lawyer spoke very briefly. I shall deal with each one in turn. A.

The Crown [ 19 ] The prosecutor tendered Mr. Algiak’s criminal record, highlighting offences for violence, including two prior convictions for sexual assault. She stated that his “lengthy record ends abruptly in 2013”. [13] The gap in the criminal record, she continued, made it “difficult” to devise a sentencing recommendation. She highlighted three aggravating factors: this being Mr. Algiak’s third conviction for sexual assault, the significance of X’s injuries, and the fact that X was a vulnerable Indigenous woman. She recommended a sentence of 10 months in jail followed by probation.

She continued by saying “…the reason for the ten-month sentence primarily is the big gap in the record”. [14] [ 20 ] I intervened at this point to express my view that the Crown’s recommendation placed too much emphasis on the gap in his record and that it fell well below the sentencing range for this type of brutal sexual assault. There are no similar reported cases in Nunavut, so I referred counsel to R v Parr [15] and R v Ipeelie [16] as well as R v Kolola . [17] I put both counsel on notice that I was considering jailing Mr. Algiak beyond the Crown recommendation.

I adjourned the hearing to permit the prosecutor to seek guidance from senior counsel in the Yellowknife office and to allow Defence Counsel to consider my concerns. [18] [ 21 ] When we resumed the hearing, the prosecutor said she had spoken with senior counsel, and she stated, “it wouldn’t be appropriate for me to change the Crown’s position at this time”. [19] The prosecutor did not explain why the Crown had formed that conclusion. B.

The Defence [ 22 ] Defence Counsel was willing to continue without further delay and asserted that the Crown’s recommendation was “restrained and measured” and “reasonable” given the gap in the record and Mr. Algiak’s “good work”. Defence Counsel urged the Court not to impose a “crippling” sentence. [20] VI. THE OFFENDER A. Mr. Algiak’s personal circumstances [ 23 ] Defence Counsel told me that Mr. Algiak is a 56-year-old who grew up in Kugluktuk. He is separated but living with a new partner. He has five children, one of whom died tragically last November.

I was told he had a good relationship with his parents while he was growing up. Following his mother’s death, Mr. Algiak started drinking and accumulating a criminal record. This criminal record “is

almost entirely, if not entirely, alcohol related”. [21] [ 24 ] Mr. Algiak has been on disability for four years following around 30 years as a heavy equipment operator in the mines. His family has been impacted by alcohol and suicides. At 55 years of age, he enrolled in management studies at Nunavut Arctic College. He completed the first year of the program, which was then derailed by the COVID-19 pandemic. Defence Counsel stated, “I think it would be damaging to Mr. Algiak’s long-term rehabilitative prospects if he were to be hammered too harshly on sentence on the basis of his criminal past”. [22] B. Mr.

Algiak’s criminal record [ 25 ] Mr.

Algiak has a lengthy criminal record dating back to 1983 including the following convictions for crimes of violence: 1983 assault $100 fine 1986 assault 15 days in jail 1991 assault suspended sentence / probation 1991 assault causing bodily harm 2 months in jail 1993 assault 6 months in jail 1995 assault 6 months in jail / probation 1997 sexual assault 10 months in jail 2001 assault causing bodily harm 6 months in jail / probation 2001 assault causing bodily harm 6 months in jail concurrent 2002 assault (spousal) 30 days in jail / probation 2002 assault causing bodily harm 12 months in jail / probation 2003 sexual assault 6 months in jail consecutive / probation 2010 assault 60 days in jail / probation 2011 assault 2 months and 15 days in jail / probation [ 26 ] Mr.

Algiak also has two convictions for impaired driving, one conviction for careless storage of a firearm, and nine convictions for breaching court orders, including one conditional sentence order breach, the last of which was entered on August 26, 2013. [ 27 ] Criminal records play an important

part in the sentencing process. For example, a first-time offender convicted of a minor property offence can expect to be treated more leniently than a repeat offender who is being sentenced for a heinous personal injury offence. VII. THE PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING [ 28 ] The sentencing hearing is a highly individualised process. No two cases or offenders are exactly alike. A.

The purpose and objectives of sentencing [ 29 ] I first shall briefly outline the purpose and objectives of sentencing as legislated by Parliament. 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 acknowledgement of the harm done to victims of the community. [23] [ 30 ] In 2019, Parliament added a further sentencing objective in

section 718.04, which is directly relevant to this case: 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female – the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [24] [ 31 ] Thus, I was required to put public safety considerations first, to give primary emphasis to denunciation and deterrence, and to do so in a meaningful way. [ 32 ] The sentence I imposed was also required to promote Mr.

Algiak’s reformation. B. The principles of sentencing [ 33 ] I now turn to the principles of sentencing codified by Parliament and how they apply to this case. I will refer to the principles in the same order as they appear in the Criminal Code . (

i) The proportionality principle [ 34 ] First and foremost, the punishment I imposed in this case was required to fit the offender and the crime. This is called the proportionality principle, which is enshrined as sentencing’s “fundamental principle”: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [25] [ 35 ] Mr.

Algiak was a repeat sexual offender who bore a high level of moral blameworthiness for this heinous crime, despite the gap in his criminal record. (ii) Aggravating and mitigating factors [ 36 ] The sentence I imposed had to account for the presence of relevant aggravating or mitigating circumstances. [26] Aggravating factors operate to increase the sentence. Mitigating factors operate to lessen the sentence. [ 37 ] There were numerous aggravating factors in this case: 1. Mr. Algiak had two prior convictions for sexual assault; 2. At least one of Mr.

Algiak’s prior assault convictions arose from violence against an intimate partner;

3. Mr. Algiak assaulted and injured his victim in a place that was her temporary shelter; 4. Mr. Algiak entered his victim’s home without permission; 5. Mr. Algiak’s actions were clearly premeditated; 6. Mr. Algiak’s assault was predatory and persistent; 7. Mr. Algiak pursued his victim and prevented her from fleeing; 8. Mr. Algiak inflicted bodily harm on his victim; and 9. Mr.

Algiak consumed alcohol knowing that his past extensive criminal record for violence was alcohol driven. [ 38 ] In cases of this type, Parliament has decreed the following factor to be an aggravating one as well: 718.2 … (a) … (iii.1) evidence that the offence had a significant impact on the victim, considering their age and personal circumstances, including their health and financial situation. [27] [ 39 ] We now recognise that sexual assault always has a significant impact on its victims. In this case, apart from the physical injuries and their impact, Mr.

Algiak’s victim displayed ongoing psychological distress as she recalled the horrific incident in detail. [ 40 ] The gap in Mr. Algiak’s criminal record was the only mitigating factor. (iii) The parity principle [ 41 ] I was required to apply the parity principle, which holds that similar offenders ought to receive similar sentences for similar crimes committed in similar circumstances. [28] [ 42 ] I was challenged as to how to apply parity because I was sentencing Mr. Algiak for an indictable offence which had been prosecuted summarily. But for this fact, Mr.

Algiak could have expected to be sentenced to a penitentiary term if convicted after trial. (iv) Criminal Code

section 718.2 (

e) and R v Gladue [ 43 ] I also was required to apply the following principle which pertained to Mr. Algiak (and all Inuit offenders). I was obliged to consider: 718.2 … (

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. [29] [ 44 ] In this context, I was required to account for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit.

These are the now well-known Gladue factors articulated by the Supreme Court of Canada in R v Gladue [30] and later reinforced by the Court in R v Ipeelee . [31] [ 45 ] The vast majority of Nunavummiut who come before the Nunavut Court of Justice are Inuit, and we deal daily with

section

718.2 (e) / Gladue factors and the realities of the impact of colonialism on Inuit society. Indeed,

section 718.2(e) / Gladue constitutes the lens through which we view all cases involving Inuit. [ 46 ] The

section 718.2 / Gladue analysis required me to consider the impact of colonialism on Mr. Algiak along with his personal circumstances, of which I was told very little. Nevertheless, I readily infer that Mr. Algiak has been greatly affected by the ongoing intergenerational impacts of colonialism, many of which I reviewed in R v Anugaa . [32] [ 47 ] The aggravating factors here demonstrated that Mr. Algiak bears a high moral blameworthiness for this brutal sexual assault. The challenge, therefore, was to give appropriate weight to 718.2(e) / Gladue factors in light of Mr. Algiak’s high moral blameworthiness. To balance properly the objectives and principles of sentencing and precedent with

section 718.2(e) / Gladue , I was required to impose a penitentiary sentence. A penitentiary sentence being unavailable to me, I imposed the maximum

summary penalty. VIII. WHY THE CROWN RECOMMENDATION WAS TROUBLING [ 48 ] In my view, the Crown recommendation was troubling, and the prosecutor failed to justify the Crown’s lenient sentence recommendation. There were several problems with the Crown submission, and I shall discuss each one in turn. A. The prevalence of sexual violence in Nunavut [ 49 ] The Crown recommendation failed to account for the prevalence of domestic and sexual violence in Nunavut.

While not an aggravating factor, the frequency or prevalence of crime in a community is a relevant factor at sentencing. [33] [ 50 ] In January 2020, gender-based violence was addressed in a study released by Pauktuutit Inuit Women of Canada. 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 women 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 … [34] [ 51 ] The sexual violence endured by so many Inuit women forms a necessary backdrop to determining an appropriate judicial sanction in this case. The prosecutor here did acknowledge that Mr. Algiak’s victim was vulnerable, but in my view the sentence recommendation did not specifically address that reality in any meaningful or supportable way. [35] [ 52 ] Late last year in R v Kolola , I placed Nunavut’s travails within the larger Canadian context, citing Dalhousie University’s Professor Elaine Craig.

Her findings bear repeating in this case: Less than one percent of the sexual assaults that occur each year in Canada will result in any form of legal sanction for those who perpetrate these violations of another’s sexual integrity. In part, this is because most women do not report sexual assault. Indeed, over ninety percent of sexual assaults in Canada go unreported. One of the main reasons women do not turn to the law to respond to their experiences of sexual violence is distrust and fear of the criminal justice process. This is a stunning indictment of our legal response to sexual harm. [36] B.

The perception of institutional indifference [ 53 ] As noted earlier, the allegations against Mr. Algiak merited the more serious charge of sexual assault causing bodily harm but were presented to the Court as a

summary offence.

[ 54 ] The Crown sentence recommendation also did not refer to the relevant and applicable objectives and principles of sentencing nor did it consider the appropriate sentencing range. Furthermore, the Crown referenced only three of the 10 aggravating factors which I found were present. The Crown did not articulate any case-specific mitigating circumstances to justify this lenient sentence apart from the gap in Mr.

Algiak’s criminal record. [ 55 ] I repeat here my reference in R v Aklok to one of the conclusions of the Commissioners of the National Inquiry into Murdered and Missing Indigenous Women and Girls: The language used in the Canadian justice system, especially the language used in the Criminal Code and in criminal justice proceedings, minimizes the nature and severity of violent offences and serves to minimize the responsibility of the offender and the impact of the crime. [37] [ 56 ] And again generally: [The] Canadian criminal justice system fails to provide justice for Indigenous people, especially missing and murdered Indigenous women, girls … and to hold accountable those who commit violence against them. [38] [ 57 ] The Crown sentence recommendation in Mr.

Algiak’s case only reinforces the perception that our justice system fails to provide justice to Inuit female victims of sexual violence. C. The severity of the offence [ 58 ] Mr. Algiak committed a brutal sexual assault. If this case did not merit imposition of the maximum

summary penalty, I cannot imagine what other case might. IX. CONCLUSION [ 59 ] This was not a case where the Crown negotiated an extremely lenient joint submission in exchange for a guilty plea sparing the victim having to testify in public. I convicted Mr. Algiak after trial, and the Crown failed to justify its sentencing recommendation even after I gave counsel a further opportunity to do so.

Although this was not a joint submission case, the R v Anthony-Cook test best describes the Crown recommendation, which: … was so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down . [39] [ 60 ] I am certain that reasonable and informed Nunavummiut would conclude as I did that the Crown sentencing recommendation here was unhinged. X.

SENTENCE [ 61 ] For all these reasons, I jumped the Crown submission by eight months, and I imposed the maximum

summary offence: an 18- month territorial jail term followed by probation for 18 months. B. Ancillary orders [ 62 ] I also imposed the following ancillary or related orders:

a. A mandatory DNA order pursuant to

section 487.051(1); and b. A mandatory Sexual Offenders Registry Order for 10 years pursuant to

section 490.013(1)(a). [ 63 ] As I sentenced Mr. Algiak to the maximum

summary jail term, I waived the victim fine surcharge. Dated at the City of Iqaluit this 19th day of March 2021. ___________________ Justice P. Bychok Nunavut Court of Justice