2019 QCCA 1336, 2019 QCCA 1336

Kritik c. R. 2019 QCCA 1336 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-003514-184 (635-01-014601-166) DATE: AUGUST 5, 2019 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. SIMON RUEL, J.A. MICHEL BEAUPRÉ, J.A. JOE KRITIK APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] Joe Kritik is appealing both his designation as a dangerous offender and his sentence for an indeterminate period of detention following his conviction of the judgment of the Court of Québec, District of Abitibi (the Honourable Claude P.

Bigué) rendered on April 4, 2018 on a count of sexual assault.

He further presents a motion for leave to adduce fresh evidence, that evidence being a complementary report to the Gladue report presented to the sentencing judge. [ 2 ] For the reasons of Chief Justice Nicole Duval Hesler, with which Ruel and Beaupré, JJ.A. concur, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] ANNULS the declaration of dangerous offender and the sentence; [ 5 ] GRANTS appellant’s motion to present new evidence, such evidence being the complementary Gladue report by Eliane Santchi dated May 1, 2019; and [ 6 ] ORDERS a complete psychiatric assessment of the appellant as well as a new hearing before a different judge of the Court of Québec once that assessment has been filed, together with the any new evidence that might flow therefrom.

NICOLE DUVAL HESLER, C.J.Q. SIMON RUEL, J.A. MICHEL BEAUPRÉ, J.A. Mtre Louis-Nicholas Coupal-Schmidt Mtre Julia Blais-Quintal COUPAL CHAUVELOT For appellant Mtre Annie Sills-Massicotte DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For respondent Date of hearing: May 10, 2019

REASONS OF DUVAL HESLER, C.J.Q. [ 7 ] Joe Kritik is appealing [1] both his designation as a dangerous offender and his sentence for an indeterminate period of detention following his conviction on a count of sexual assault. He further presents a motion for leave to adduce fresh evidence, that evidence being a complementary report to the Gladue report presented to the sentencing judge. [ 8 ] In my respectful opinion, the judge committed errors that allow the Court to set aside both the aforesaid designation and sentence and to order a new hearing pursuant to s. 759(3) (a)(ii) Cr.C . [ 9 ] Mr.

Kritik is an Inuit man from Nunavik. He was born in 1987. [ 10 ] On December 13, 2016, when Mr. Kritik was found guilty of the offense for which he was declared a dangerous offender, he already had a long record of sexual offenses despite his young age. Between 2005 and 2014, he was convicted and sentenced for seven sexual assaults on a number of Inuit women in positions of vulnerability. That same day, the Crown advised the Court of its intent to apply to have Mr. Kritik designated as a dangerous offender. The Court thus ordered an assessment of Mr.

Kritik pursuant to s. 752.1 Cr.C . [ 11 ] The appointed expert found that Mr. Kritik represents a high risk of recidivism especially regarding sexual offences and suggested that he qualifies as a dangerous offender. [ 12 ] In August 2017, the Court granted Mr.

Kritik’s request for the preparation of a Gladue report. [2] That report, dated November 3 2017, gives a detailed account of the dramatic history of this Inuit man born in Tasiujaq, an isolated community in Quebec’s extreme north. [ 13 ] The Gladue report discusses the intergenerational impact of the state’s assimilation methods, as well as the impact of a deplorably dysfunctional family history on the appellant. That impact includes daily alcohol and drug abuse by members of the appellant’s immediate family, as well as physical and sexual abuse perpetrated on him from a very young age.

His father told its author that his last name was changed from “Qisik” to “Kritik” when “white men came and counted the Inuit population”. He was unable to pursue and teach his children traditional hunting and survival methods after the slaughter of the local pack of dogs by the Canadian government. The mother, indeed the entire community, were similarly affected by cultural loss.

The appellant started drinking at the age of 12, first attempted suicide at 13 (there were 10 such attempts), lost five friends to suicide, sustained a serious head injury as a result of an accident at 19, and has since suffered from seizures, episodic convulsions and memory problems. He sometimes believes he is a child and acts as one.

A nurse who treated the appellant raised concerns about the interaction between his prescribed medication and his alcohol and drug consumption and noted a possible onset of schizophrenia, although there is no indication that he has ever undergone a complete psychiatric evaluation. [ 14 ] At the time of filing of the Gladue report, counsel for the appellant presented a motion asking the Court to order a complete psychiatric assessment of his client pursuant to ss. 721(4) and 723(3) Cr.C .

In support of this motion, he argued that the Gladue report suggested that the appellant’s behaviour may be related to psychiatric issues and that a psychiatric assessment was therefore essential to decide on the application for declaring him a dangerous offender.

That motion was dismissed by the judge, which is surprising given the severe consequences of his judgment. [ 15 ] In his judgment, the judge made no mention of fundamental considerations such as the appellant’s highly problematic upbringing, nor of his suicidal tendencies, and generally ignored the Gladue report, dismissing its author as not being an expert and saying that her report contained “nothing specific to address a sexual offender”. [3] [ 16 ] In contrast, the judge held that the report on the assessment ordered under s. 752.1 Cr.C . had a high probative value. [ 17 ] The appellant’s first ground of appeal is that the judge erred in law by dismissing his motion to order a psychiatric assessment.

In my opinion, that ground alone is sufficient to allow the appeal. [ 18 ] As Wagner J. (as he then was) emphasized in Steele , the indeterminate detention and the long-term supervision the designation as a dangerous offender entails “are exceptional sentences in our criminal justice system”. [4] It is thus crucial that judges decide these matters on the basis of a complete record and take into account all relevant factors. [ 19 ] To designate someone as a dangerous offender pursuant to s. 753(1) (

b) Cr.C . , the Court must be satisfied that the offender has shown “a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses”. [5] (Emphasis added) [ 20 ] In Boutilier , Côté J. stated that “this future risk assessment has always required consideration of future treatment prospects”. [6] Based on the content of the Gladue report, a psychiatric assessment was necessary to fully inform the Court about Mr.

Kritik’s future treatment prospects. [ 21 ] In this same decision, Côté J. also wrote that “(e)ven where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public”. [7] [ 22 ] By dismissing Mr. Kritik’s motion, the judge therefore also deprived himself of evidence that could have satisfied him on the issue of whether or not the public would be adequately protected by a less drastic sentence than detention for an indeterminate period.

[ 23 ] To sum up, the judge’s decision to designate Mr. Kritik as a dangerous offender and to impose a sentence of detention for an indeterminate period was made on the basis of an incomplete record, which resulted from his decision not to grant the request for a psychiatric evaluation.

That is an error that entitles this Court to reverse both decisions. [8] However, since this Court cannot determine the designation nor the sentence without the benefit of a complete psychiatric assessment, the appropriate remedy is to order a new hearing and a complete psychiatric assessment. [ 24 ] Even though this suffices to dispose of the appeal, I find it appropriate to discuss the treatment afforded the Gladue report by the sentencing judge as the appellant argues that the judge erred, not only in imposing an indeterminate sentence without having first exhausted the least coercive sentencing options, but also without taking into account all the relevant factors set out in the Gladue report. [ 25 ] In his judgment, the judge briefly stated: “As for the length of the detention, the Court is not satisfied by the evidence submitted by the Defence and the overall evidence that a measure lesser than the indeterminate detention will protect adequately the public, and I refer to

Section 753(4.1.)”. [9] [ 26 ] This short analysis does not follow the framework that the Supreme Court prescribes in Boutilier : [70] The framework a sentencing judge should adopt in exercising his or her discretion under s. 753(4.1) has been aptly explained by Justice Tuck-Jackson of the Ontario Court of Justice: R. v. Crowe , No. 10-10013990, March 22, 2017.

First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offense, then that sentence must be imposed.

If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offense. If the answer is “yes”, then that sen​tence must be imposed. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time.

Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dan​gerous offender, so too is nothing more required. [71] (...) Properly read and applied, s. 753(4.1) does not impose an onus, a rebuttable presumption, or mandatory sanctioning. Nor does it prevent a sentencing judge from considering sentencing objectives and principles. Every sentence must be imposed after an individualized assessment of all of the relevant factors and circumstances.

Seen in this way, s. 753(4.1) will not result in grossly disproportionate sentences or in the imposition of a detention of indeterminate duration in cases where such a sentence is unfit. [10] (...) [ 27 ] In Lyons , Laforest J. stated that “ it is difficult to deny that the effects of an indeterminate sentence on a dangerous offender must be profoundly devastating”. [11] A sentencing judge should bear that in mind and seriously contemplate the possibility of adequately protecting the public with a sentence that would not eliminate any incentive for rehabilitation, as the indeterminate detention sentence does.

In the case at bar, the judge failed to do so and, again, erred in law as a result. [ 28 ] Moreover, because he failed to apply the prescribed framework, the judge did not properly assess the Gladue report. He was right to say that the Gladue report has a limited effect at the designation stage . [12] However, when a judge considers the appropriate measure to be imposed under s. 753(4.1) Cr.C . , he or she is required to give weight to the principles set forth in s. 718.2 (

e) Cr.C . , which include the circumstances of indigenous offenders, which in this case were explained in some detail in the Gladue report . [13] The judge should thus have assessed the factors and circumstances that relate to moral culpability and to the possibility of rehabilitation as revealed by the Gladue report [14] .

Failure to carry out any individualized assessment to determine the sentence was also an error of law. [ 29 ] Reverting again to Boutilier , I think it important to mention that Côté J. emphasized the necessity of a thorough assessment of relevant factors at the sentencing stage in order to ensure that the Court does not impose detention for an indeterminate period in situations where such a sentence is unfit. In this case, it is not possible to ascertain that the sentence is fit as an important piece of the puzzle is missing on account of the judge’s decision not to allow it as evidence.

Such uncertainty is unacceptable considering that the Crown admitted at the hearing that only 1 to 2 % of dangerous offenders sentenced to an indeterminate detention are eventually released. [ 30 ] In the case of Denis-Damée v.

R. , 2018 QCCA 1251 , the Court commented thus on the issue of sentencing indigenous offenders: ( translation ) [68] As for the component related to systemic or background factors , the trial judge must, “in every case”, take judicial notice thereof and consider “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”. [15] (Emphasis added) [ 31 ] A Gladue report had been prepared in that case as well.

The court noted that the sentencing judge had emphasized the gravity of the crime and added the following: ( translation ) [90] In so doing, he completely failed to draw a connection between the background and systemic factors and Stacey-Sikounik’s moral culpability. He merely considered the relationship between the gravity of the crime and the degree of culpability, without taking into account the Aboriginal dimension embodied in the background and systemic factors.

It is therefore impossible to know whether or not those factors had an impact on the appellant’s moral culpability, because he completely failed to address this matter. Moreover, the judgement does not allow us to determine how Stacey-Sikounik’s difficult circumstances might mitigate her moral culpability. [16]

[32] It is difficult to ignore the similarities with the present case, in which the sentencing judge, while for all practical purposesignoring any Gladue factor, noted that he considered “that the protection of the public prevails even when we are in a Native Offender’ssituation”, a statement with which I agree, but not when all other relevant factors are overlooked. [33] It is worth mentioning that the appellant further argued that the judge erred in overemphasizing the probative value of theexpert opinion filed under s. 752.1 Cr.C.

Given my conclusions on the other grounds of appeal, it is not necessary to decide the issue.Nevertheless, it is worth addressing the concerns raised by the appellant regarding the fact that such opinion was partially based on riskassessment tools that had not been validated specifically for Inuit offenders. At the hearing, the expert testified that such tools have beenvalidated for the indigenous population at large, including the Inuit.

She explained that while she recognizes the cultural specificities ofInuit people and takes them into account when conducting interviews, “there are not enough of them to make different groups” forvalidation purposes. In other words, the sample is quantitatively inconclusive. In this context, the judge was correct in finding that therewas no evidence supporting the submission of the Defence that, for the purpose of an assessment of dangerous offender, “the tests shouldbe different for Inuit people from other Native people”. But neither was there any evidence that the tests would adequately assess theappellant.

The issue is thus perplexing and invites one to even greater prudence. [34] In Ewert v. Canada, 2018 SCC 30 , [2018] 2 S.C.R. 165, the Supreme Court dealt with the tools used by thecorrectional services to assess risks of recidivism. The accused contended that he was a Metis. At para. 66, the Court wondered about“questionable validity with respect to Indigenous inmates because the tools fail to account for cultural differences”. [35] Perhaps the psychologist was aware of the limitations of such tools and used her expertise to overcome them.

However, the factremains that the resulting sentence, as a whole, strikes one as insensitive to the specific reality of the Inuit people, who appear to be quitedistinct. [36] It goes without saying that, ensuring the security of possible victims in the future must be duly considered as well. [37] Finally, I am satisfied that the fresh evidence that the appellant wishes to introduce, being an update of the Gladue report, aspreviously mentioned, meets the criteria set out in Palmer[17] and should be allowed into the record. [38] The judge presiding the new hearing will have the opportunity to assess all relevant factors transpiring from the Gladue reportand its complement, as well as a full psychiatric assessment in deciding on both a designation as a dangerous offender and theappropriate sentence. [39] For these reasons, I would allow the appeal, set the declaration of dangerous offender and the sentence aside, allow into therecord the new evidence tendered by the appellant, order a complete psychiatric assessment of the appellant as well as a new hearingbefore a different judge of the Court of Québec once that assessment has been filed, together with any new evidence that might flowtherefrom.

NICOLE DUVAL HESLER, C.J.Q.