2023 QCCA 1044, 2023 QCCA 1044

Saviadjuk c. R. 2023 QCCA 1044 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007707-217 (500-01-163298-174) DATE: August 10, 2023 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. MARIE-JOSÉE HOGUE, J.A. BENOÎT MOORE, J.A. ADAMIE SAVIADJUK APPLICANT – Accused v.

HIS MAJESTY THE KING RESPONDENT – Prosecutor JUDGMENT [ 1 ] The Applicant seeks leave to appeal from a judgment rendered on October 19, 2021, by the Court of Québec, Criminal and Penal Division (the Honourable Julie Riendeau), which sentenced him to 18 months of imprisonment and imposed various orders in connection with the offence committed. His application was referred to the Court by a judge of this Court. [ 2 ] He firstly alleges that the judge failed to properly consider his status as an Indigenous offender in accordance with s. 718.2 (

e) Cr.C . by erroneously requiring a causal link between his status as an Inuk and the commission of the offence in order to consider the conclusions of the Gladue report.

Such a causal link, in his view, is not required by the rulings in Gladue [1] and Ipeelee . [2] [ 3 ] He also alleges that she committed a second error by not considering his state of extreme intoxication, which concerns a central element of the offence and which, given that he comes from an Inuit community, is a relevant factor. [ 4 ] At the hearing before the Court, he addressed these two grounds of appeal together, emphasizing the judge’s refusal to “consider” his Indigenous status. He proposes that the sentence imposed be replaced by 90 days of imprisonment to be served intermittently.

He does not offer any other alternatives to incarceration. *** [ 5 ] The Applicant was born in January 1999 in Salluit, a village in Nunavik. He is the second youngest of five children. He lived in Salluit until he came to Montreal in 2017 to pursue his studies. [ 6 ] While in Montreal, he lived in a student residence, where the event took place. After having spent the night at a bar consuming alcohol, he returned to the residence and broke into the victim’s room. He tried to take off her shorts and penetrate her, and he introduced a finger into her vagina and licked her anus.

Throughout the event, the victim told him to stop many times, but to no avail. She finally succeeded in causing him to fall off the bed. She then she ran out of the room and sought help from a security guard. [ 7 ] The Applicant was charged with sexual assault ( s. 271 (

a) Cr.C .) and pleaded guilty on May 21, 2021. [ 8 ] In view of the then upcoming sentencing hearing, a Gladue report, a pre-sentence report and a sexological report were filed. [ 9 ] At the hearing, the Applicant insisted that the event occurred when he was in a new and unknown environment and was going through a difficult and emotional period given that he had just broken up with his girlfriend in Salluit, and, furthermore, that it happened while he was intoxicated.

In his view, these circumstances, together with the fact that he is a member of the First Nations and has a glowing profile and no criminal record, justified imposing a suspended sentence of 90 days of imprisonment to be served intermittently with probation. [ 10 ] The Crown, on the other hand, emphasized the absence of any link between his First Nations status and the commission of the offence, and therefore suggested a sentence of 24 months less one day of imprisonment.

Subsidiarily, it proposed 18 months of imprisonment if the judge were to conclude that there was a link between his status and the offence. [ 11 ] After having heard the parties’ submissions, the judge sentenced the Applicant to 18 months of imprisonment followed by a 2 year probation. She also rendered various orders, some applicable during the custodial period and others during the probation.

[ 12 ] Her reasons reveal that she reviewed the general principles of sentencing, the various reports filed as well as the various testimonies. Looking more particularly at the Applicant’s childhood in Salluit, she wrote: [15] The accused was raised in Salluit in a tight, loving and supporting family. His mother was a teacher, and his father was once a policeman, the town manager, and after the mayor for six years. According to him his parents gave him a good structure while growing up, wanting him to focus on his studies.

As well, his parents describe him as a nice and respectful child. [16] In regard to his family environment, the presentence report refers to the accused remembering episodes where his parents consumed alcohol and sometimes argued in such context, but this type of situation hasn’t occurred in a long time. However, the sexological evaluation of sexual offences (the sexual evaluation) notes that “questioned about his parents’ relationship, [the accused] described them as a good team”, that “he never saw them fighting” and that the “communication between his parents was healthy and respectful”.

The same report specifies that the accused mentioned his parents were never violent with him and that alcohol was not an issue in his family. [17] Overall, the Court retains that the accused, as a kid and a young adult, was raised in a loving and caring family, and was well surrounded by his parents and his friends, which he had a lot. He remembers being popular, and very active.

The Court notes that before and after coming to Montreal, the accused worked in and for his community. [18] He graduated from high school, where he was a good student, and left for Montreal in order to start the prerequisite classes for college. There, feeling homesick, he started drinking, and he started to do so more excessively after the breakup with his girlfriend in November 2017. He had been drinking when he committed the sexual assault, while alcohol was never a problem before. In court, the accused said with regard to consumption “I was exploring I guess”, after explaining he also tried drugs.

The writer of the presentence report retains the above as factors that led to the acting out. Being away may have made him lose his landmarks. [ 13 ] She then dealt with many aggravating and mitigating factors but did not accept that the Applicant’s Inuit status played any role in the event.

After having reviewed the applicable principles at length, she concluded: [31] It must be noted though, that “in assessing whether that bears on the appellant’s moral culpability for the offences in question, the jurisprudence is clear that a direct causal chain need not be shown”. [32] Here, the Court finds that the systemic and background factors did not play a role in bringing the accused before the court.

Indeed, the Court cannot see how the systemic and background factors had any impact on the accused’s moral culpability, when looking at his childhood and young adult life, he was well surrounded and supported by a caring family. Moreover, nothing supports that more generally, what he saw or observed in his community influenced his actions in any way.

Therefore, his sentence will not be diminished because of systemic and background factors. [ 14 ] These remarks show that, contrary to the Applicant’s assertion, she did not require that a causal link be established.Rather, she duly considered his unique situation – notably his Inuit status – and concluded that such status, as well as the life he had experienced in his community, had had no bearing whatsoever on the act he committed. Consequently, she refused to reduce the sentence on the basis of systemic and background factors. [ 15 ] The Court sees no reviewable error in such a conclusion [3] .

Although judges have a duty to give real force to the remedial purpose of

section 718.2 (e), this does not mean that it must be taken as a means of automatically reducing the prison sentence of an Indigenous offender [4] . [ 16 ] As the Supreme Court stressed in Gladue , s. 718.2 (

e) must be considered in the context of that

section read as a whole and in the context of s. 718, s. 718.1, and the overall scheme of

Part XXIII. It is one of the statutorily mandated considerations that a sentencing judge must take into account. It may not always mean a lower sentence for an aboriginal offender. The sentence imposed will depend upon all the factors which must be taken into account in each individual case” (emphasis in the original) [5] . This is precisely what the sentencing judge did here. She weighed all the relevant factors and concluded that 18 months of imprisonment was a fit sentence.

She may have given no weight to his Indigenous status, in light of her findings, and less weight to the intoxication factor than the Applicant would have hoped, but in so doing she exercised her discretion. It is worth remembering that the Court must show deference and only intervene in the presence of an error in principle, a failure to take a relevant factor into account or an erroneous consideration of a mitigating or aggravating factor. [6] [ 17 ] No such error having been demonstrated here, an intervention is unjustified.

FOR THESE REASONS, THE COURT: [ 18 ] GRANTS leave to appeal the sentence; [ 19 ] DISMISSES the appeal; [ 20 ] ORDERS the Applicant to surrender himself into the custody of the authorities no later than August 22, 2023, at 5 PM. GENEVIÈVE MARCOTTE, J.A.

MARIE-JOSÉE HOGUE, J.A. BENOÎT MOORE, J.A. Mtre George Calaritis M E GEORGE CALARITIS, AVOCAT For the Applicant Mtre Bruno Ménard DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: June 16, 2023