2020 QCCQ 1698, 2020 QCCQ 1698

R. c. Qalingo 2020 QCCQ 1698 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF VAL-D’OR “Criminal and Penal Division” Nos.: 640-01-041500-183 640-01-041505-182 DATE : April 2, 2020 PRESIDING: THE HONOURABLE RENÉE LEMOINE J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

ETUK ANGUTIGIRK QALINGO Accused ______________________________________________________________________ JUDGMENT _____________________________________________________________________ [ 1 ] The accused pleaded guilty to the following charges: In the file 640-01-041500-183 Between October 1, 2018 and October 31, 2018, in Puvirnituq, district of Abitibi, in committing an assault on L. Q., did cause bodily harm to the said person, committing thereby the indictable offence provided by

section 267b) of the Criminal Code . On or about November 27, 2018, in Puvirnituq, district of Abitibi, in committing an assault on L. Q., committing thereby the indictable offence provided by

section 266a) of the Criminal Code . On or about November 27, 2018, in Puvirnituq, district of Abitibi, did knowingly utter a threat to cause death or bodily harm to L. Q., committing thereby the indictable offence provided by

section 264.1(1) a) (2)

a) of the Criminal Code . In the file 640-01-041505-182 Between October 1, 2018 and November 27, 2018, in Puvirnituq, district of Abitibi, bound by a probation order in the file 640-01- 035164-152 and 640-01-035165-159, failed or refuse to comply with that order by neglecting to respect a condition of the order, to wit: “not to communicate directly or indirectly with L. Q. except if she provide a written revocable consent to the police of Puvirnituq”, committing thereby the indictable offence provided by

section 733.1(1)

a) of the Criminal Code . Between October 1, 2018 and November 27, 2018, in Puvirnituq, district of Abitibi, bound by a probation order in the file 640-01- 035164-152 and 640-01-035165-159, failed or refuse to comply with that order by neglecting to respect a condition of the order, to wit: “not to communicate directly or indirectly with L. Q. except if she provide a written revocable consent to the police of Puvirnituq”, committing thereby the indictable offence provided by

section 733.1(1)

a) of the Criminal Code . [ 2 ] The Court must now determine the appropriate sentence. [ 3 ] The DCPP prosecutor filed an application for assessment in order to determine whether the accused should be declared a dangerous or long-term offender. Dr. Alexandre Dumais, a psychiatrist at the Institut national de psychiatrie légale Philippe-Pinel, prepared a report and recommended that the accused be declared a long-term offender.

Despite that finding, counsel abandoned her application. [ 4 ] The Crown suggests the following sentences: − For the offence of assault causing bodily harm, a sentence of 5 years’ imprisonment; − For the offence of assault, a sentence of 2 years, to be served concurrently; − For the offences of breach of probation, a sentence of 1 year’s imprisonment, to be served concurrently; [ 5 ] Counsel for the accused argues that the Crown’s suggestion is disproportional and, having regard to all the circumstances, specifically the principles in Gladue and Ipeelee , the sentence should be time served considering the pre-sentence custody.

BACKGROUND [ 6 ] On October 1, 2018, the accused, his spouse L. Q. and two friends got together in his home to smoke cannabis. For reasons unknown, the accused made a move to lunge and punch the victim, but stopped himself and did not hit her. He took a hot knife used for cannabis consumption and burned her cheek. [ 7 ] The witnesses reported that they smelled burnt skin. The accused laughed while the victim cried. [ 8 ] The victim did not file a complaint after this incident.

In fact, about one month later, the witnesses decided to report the situation to the police because they feared for the victim’s safety. [ 9 ] Approximately one month after this incident, Ms. Q.’s brother called the police to file a complaint of assault against the accused concerning his sister. [ 10 ] This time the victim agreed to file a complaint stating that she was afraid of the accused. She was holding her five-month-old baby and the accused bit her on the chest and pulled her hair.

He also told her he would beat her again if she talked back. [ 11 ] After filing the statement, the victim contacted the police to have the charges withdrawn, but the accused had already pleaded guilty to the offences. ANALYSIS Sentencing principles and objectives [ 12 ]

Section 718 of the Criminal Code provides that the purpose of sentencing is to protect society, and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The sentence must meet the following objectives: (

a) to denounce 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 and to the community. [ 13 ] The sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. [ 14 ] To impose a fair sanction, the Court must consider the following principles:

a) The sentence must be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

b) Parity in sentencing, that is, similar sentences are imposed for similar offences committed in similar circumstances;

c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

e) All available sanctions other than imprisonment that are justified in the circumstances, with particular attention to the circumstances of Aboriginal offenders. [ 15 ] Sentencing is an individualized process in which it falls to the judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. [1] The objective gravity of the offences [ 16 ] The offence of assault causing bodily harm is liable to imprisonment for a maximum of 10 years. The offences of assault and uttering threats to cause death or bodily harm are liable to imprisonment for a maximum of 5 years.

The profile of the accused [ 17 ] The accused is a 47-year-old Inuit man. He was born and raised in Puvirntuq. [ 18 ] He is the father of six children born of different unions. He traditionally adopted his youngest child with Ms. Q.. The child was five months old when the accused was arrested. [...]. [ 19 ] The accused had a difficult childhood marked by various traumatic events. His father was absent from his life because he had

started another family with many children. The father nevertheless continued his relationship with the mother of the accused, who witnessed his father’s violence against his mother. His childhood was also marked by his mother’s use of physical violence against him. [...]. [ 20 ] Over the years, he experienced various traumatic events such as the death of his best friend in a boating accident, the murder of the mother of one of his children, the suicide of his half-brother and more recently that of his daughter. [ 21 ] The accused’s relationship with the victim began in 2006.

It was a conflictual relationship in which the conjugal conflict exacerbated by jealousy and substance abuse. [ 22 ] At the time of his arrest, the accused was working as a driver’s helper on a water and sewer tanker truck for the community. He stopped school in Secondary 3.

He has some difficulty with reading and writing and his ability to express himself in English is limited. [ 23 ] As for the consumption of alcohol and other intoxicating substances, the accused sniffed glue, propane and gas from around the time he was 10 years old until he was 34 years old. [ 24 ] He has used cannabis since he was 12 years old. At about age 17, this use became regular and significant. The accused still consumes and does not intend to stop. [ 25 ] He began drinking at the age of 14. It became regular, that is, a few times a month, starting at the age of 18.

He admitted that the abusive alcohol consumption causes him to behave aggressively, even violently. [ 26 ] The accused has many prior convictions. His record starts in 1992 with opportunistic offences such as theft, breaking and entering or possession of property obtained by crime, and convictions for failure to comply with a probation order. [ 27 ] Starting in 1996, the accused has convictions for increasingly serious violent offences, ranging from simple assault to aggravated assault and arson. [ 28 ] In 2008, he was sentenced to 12 months in custody for aggravated assault.

In 2009, he was sentenced to 2 years less a day for assault and assault with a weapon. All of these offences were committed in a conjugal context against Ms. L.

Q.. [ 29 ] In 2011, the accused was sentenced to 30 months’ imprisonment for aggravated assault, death threats and forcible confinement. [ 30 ] In 2015, he was sentenced to 2 years’ imprisonment and 2 years of supervised probation for arson and breach of probation. [ 31 ] The offences in 2011 and 2015 were also committed in a conjugal context and involved the victim in this file. [ 32 ] Several other convictions are related to offences committed in a conjugal context, against intimate partners other than the victim in this file. [ 33 ] The probation officer’s report and the expert report of psychiatrist Dr.

Alexandre Dumais reveal a high risk of reoffending, particularly with regard to conjugal violence. [ 34 ] These assessors also note that the accused must increase his insight and acceptance of responsibility. [ 35 ] The accused blames the victim for the violent acts he committed. He calls her a “trouble maker”. Information from the Gladue report [ 36 ] The report gives information to consider the systemic, historic and individual factors that may have played a

part in bringing the accused in front of the Court. [ 37 ] Puvirnituk has suffered from governmental measures of assimilation and still feels today their long lasting effects that have been passed on from generation to generation. The Inuit village was affected by the impact of Indian Residential Schools where many children were sent to Great Whale River and Port Harrison (Inukjuak).

The members of the community were also strongly affected by the dog’s slaughters. [ 38 ] The policies have not only affected the Inuit way of life but highly contributed to problems such as sexual abuse, suicide, addiction to drug and alcohol, violence, low self-esteem and participated to the over representation of Inuit in the justice and correctional system. [ 39 ] The report also described specifically the accused’s situation. His difficult childhood, his addiction problem and all the traumatic events who marked his life.

The accused has been in and out of the court and jails since the age of 22. [ 40 ] The report propose the following rehabilitative, restorative and healing recommendations: • That Etuk resides with his brother Samisa in Puvirnituq; • That Etuk receives professional assessment so he can identify and understand his sudden mood swings and manage them constructively; • That Etuk looks for employment and maintains employment; • That Etuk attends the six weeks treatment program at Isuarsivik which also has a component on healing from trauma;

• That Etuk meets with the justice committee of Puvirnituq (Elisapie Irqu and-or Annie Aupaluk) on a

schedule agreed with them; • That before and after treatment, Etuk attends Isaruit meetings; • That Etuk joins Saqujuq traditional activities with Paulussie Baulne and gives back to his community. (Exact reproduction) Consequences for the victim [ 41 ] L. Q.’s cheek was burned. A photograph of the injuries sustained was filed and shows a significant burn mark on her cheek. The Criminal and Penal Prosecutor, who recently met with Ms. Q., confirmed that the scars on her cheek are still visible. [ 42 ] The offence of assault arose when she was bitten on the chest.

The mark and redness are also visible on the photograph filed. [ 43 ] Ms. Q. is currently in custody in the Leclerc detention centre for women. She plans to enter the mother and child program at the Portage Rehabilitation Centre. [ 44 ] Over the long term, she hopes to start a family with the accused and their son. [ 45 ] Ms. Q. does not want contact with the accused to be prohibited.

Aggravating and mitigating factors [ 46 ] The Court accepts the following aggravating factors: − The degree of violence, the use of a hot knife and the bite, which falls within the category of serious abuse; − The reaction of the accused, who was amused by the victim’s suffering; − The seriousness of the injuries, which left permanent esthetic sequelae; − The fact that the accused was on probation with restrictions on contact with the victim; − The post-offence conduct of the accused, who reacted by calling the victim a trouble maker and blamed her for his violent reactions and the reasons that caused him to breach his probation order; − The criminal record of violence, more specifically the prior convictions for acts of violence against the victim; [ 47 ] The Court considers the following to be mitigating factors: − The accused pleaded guilty; − The act was not premeditated; − Since his incarceration the accused has participated in programs as part of his pre-sentence custody; − Dr.

Dumais’ report indicates that the accused has partial insight. That observation suggests that his acceptance of responsibility has evolved since the offences were committed. The accused acknowledges his aggressiveness and impulsiveness. He expressed his regret in a letter read at the sentencing hearing. It is difficult to assess the sincerity of the letter given his earlier remarks; − The accused is an Inuit man from Puvirnituq who experiences the intergenerational consequences of historical decisions taken with respect to the Inuit.

Today, the living conditions in Northern Quebec remain one of the factors that has contributed to the accused’s criminality, that is, poverty, low levels of education, addiction, violence, [...] and the lack of housing with the resultant promiscuity. Conjugal violence in Nunavik’s communities [ 48 ] Conjugal violence is a social and health problem in many Aboriginal communities in the province.

The rate of conjugal violence is higher than elsewhere in Quebec. [ 49 ] According to the Qanuippitaa Health Survey [2] conducted in Nunavik in 2004: − 57 % des femmes inuites ont déclaré avoir été victimes de violence physique au cours de leur vie adulte, le conjoint ou l’ex- conjoint étant l’agresseur principal dans la majorité des cas. [ 50 ] Aboriginal women are overrepresented among victims of homicide at the hands of an intimate partner. [ 51 ] On January 30, 2020, in a newspaper

article entitled, [ translation ] “À 1500km de Montréal, l’autre violence conjugale”, LaPresse reported on the third homicide within the past 12 months of an Inuit woman in a conjugal context in Nunavik, which has a population of just 14,000.

[52] A supplementary report of the National Inquiry into Missing and Murdered Indigenous Women and Girls discussing the impactof Gladue and Ipeelee stated: Le fait que des accusés autochtones reproduisent des schemes de violence appris à l’occasion d’un passé colonial qu’ils ont eux-mêmesvécu est, de toute évidence, un facteur pertinent à prendre en considération au moment de déterminer la peine+, tel qu’établi par laSupreme Court of Canada dans les arrêts Gladue et Ipeelee.

Cependant, en attribuant un poids prépondérant à cette réalité, les tribunaux en viennent dans les faits à normaliser la violence dans lescommunautés autochtones. Ils privent ainsi les victimes autochtones des mécanismes de protection qui sont offerts aux autres victimes,notamment celles visant à créer un isolement entre elles et leurs agresseurs pendant la période d’incarcération+. The sentence [53] The violence displayed by the aggressor is very serious. The consequences for the victim are significant.

The conjugal contextof the assaults are an aggravating factor. [54] The accused’s responsibility is significant even if the Court must consider that his moral responsibility is affected bybackground factors that may explain why the accused is before the Court.[3] [55] These factors cannot excuse the repeated acts of violence committed by the accused against his spouse. The Court mustcertainly take them into consideration to determine a proportionate sentence, but without trivializing or condoning the use of violence insuch a context. The repeated acts of violence and their seriousness require a prison sentence.

In the past, the accused has not respondedwell to the external structure of a probation order. He has not participated in the services ordered in the community, blaming his lack ofcooperation on the victim’s jealousy. The recommendations in the Gladue report cannot ensure the protection of the victim and thecommunity. The accused has issues that are described in Dr.

Dumais’ report and only participation in programs in a structuredenvironment will reduce the accused’s dangerousness and allow him to return to his community and receive services under supervisedprobation. [56] The principle of gradation of sentences justifies imposing a more severe sentence when the offender has a previous convictionsfor similar offences.[4] It is subject, however, to the principle of proportionality.[5] [57] Defense counsel submits decisions related to aboriginal offender in a situation of domestic violence. [58] In R. v.

Simon[6], a 41-year-old aboriginal offender pleaded guilty to an assault in a conjugal context and dangerous driving. Forthe first event, he grabbed his spouse by the shirt and punched her in the face. For the dangerous driving offense, he hit his spouse withhis truck. She was thrown into the ditch and knocked unconscious. [59] He has a criminal record with three prior for assault, one of them in a domestic context. He has shown a poor response tosupervision.

He received a global sentence of 16 months of custody. [60] This decision reviewed sentencing case law and the defense counsel referred to those case: [51] In R. v. Brown, supra, which is one of the Umpherville trilogy cases, the offender, an aboriginal male, was intoxicated. Heassaulted and threatened his spouse, punching, kicking, and choking her. He had a serious criminal record including a record formanslaughter and prior assaults on his spouse. The Court of Appeal said that his sentence should be four years, but left it at 18 monthsbecause the Crown had not appealed the sentence. [52] In R. v.

Crazybull, 1993 ABCA 197 , [1993] A.J. No. 473 (Alta. C.A.), the offender had assaulted his spouse. He hadbeen released from custody and returned despite being required to keep away from his spouse. He had an extensive criminal record. TheCourt of Appeal said the sentence should have been twelve months incarceration plus probation, but did not disturb the probationarysentence because the accused had been in treatment for a considerable period (105 days) at the time the appeal was heard. [53] In R. v.

Carlick (1999), 43 W.C.B. (2d) 357 (B.C.C.A.), the accused assaulted his spouse on numerous occasions breaking her ribs,her arm and choking her. His assaults on her were increasing in frequency and severity. He received a sentence of 21 months. [54] In R. v. Hopkins (2000), 45 W.C.B.(2d) 30 (Alta. C.A.) the accused violated a no-contact prohibition, entered the home of hisestranged spouse, assaulted and threatened her. The offender had a substantial criminal record including prior spousal assaults. He wasa risk to re-offend. The offender received a one-year sentence of imprisonment. [55] In R. v.

Heavyrunner, [2003] A.J. No. 1641 (Alta .C.A.), the offender had assaulted his spouse and his 15-year-old son when theson tried to protect his mother. The accused was alcoholic and had a long criminal record. He was remorseful and reconciled with hisspouse. He had taken therapy for alcoholism, anger management and grief counselling during the two years before sentencing. Hereceived a suspended sentence with two years probation.

[56] In R. v . Ermine, [2002] S.J. No. 143 (Sask.C.A.) , the aboriginal offender assaulted his wife causing her bodily harm. He forced her to the ground and kicked her with steel-toed boots. She suffered a broken shoulder. This was his fourth assault on her. He received ten months incarceration. [57] In R. v . Morris , [2004] B.C.J. No. 1117 , [2005] BCCA 305 , the accused assaulted his spouse. He kept her from leaving and pointed a firearm at her. He received one-year imprisonment and two-year probation. [58] In R. v . Reid , [2005] A.J. No. 539 (Alta. Prov. Crt.) , the offender and his spouse were intoxicated.

The Metis offender struck her in the face. She fled and he pursued her, kicked her, then went and got two knives and proceeded to search for her. On arrest, the offender threatened his spouse that if he was charged, she was going to be in trouble. He had a lengthy record and he was on probation. He had prior assaults on his spouse. He received two years less a day less credit for pre-sentence custody. [ 61 ] In R. v . Iseroff [7] and R. v . Troy Coon-Come [8] , both accused were convicted of aggravated assault. The victim was kicked and punched by four individuals including the two accused.

He was injured seriously. The injuries were a broken jaw in many places and a fractured wrist. Both accused are indigenous from the Cree nation of Mistissini. The accused Iseroff had a criminal record for violent offense for which he received community work to perform. He received a sentence of suspended sentence and a probation three years with 120 hours of community work to perform. The co-accused Coon-Come has a lengthy criminal record for violent offenses. He received a sentence of eight months of imprisonment and a supervised probation for three years including a condition to undergo a six- month therapy.

The judge considered the principles of Gladue and Ipelee and the problem of the over-representation of aboriginal people in prison. [ 62 ] The case of Denis-Damé v . R. [9] involving an indigenous woman charge of manslaughter causing the death of her father. She received a sentence of six years' imprisonment in the first instance. The Appeal Court of Quebec intervened and reduced the period of incarceration for two years followed by a three-year probation period.

The systemic and background factors were considered to diminish her moral culpability considering her childhood and her difficult life qualified “beyond the limit of human dignity”. [ 63 ] The case of R . v. Quock [10] , an indigenous man member of the Kwalen Dün First Nation. He has a lengthy criminal record with a lot of prior for violent offenses. He has been convicted after a trial of having committed an aggravating assault and a breach under 811 C. cr. The offenses were committed in a domestic violence context.

The victim has severe bruising and her index finger has to be reattached and it no longer functions. The accused is at high risk of reoffending and has a high criminogenic needs rating. He was sentenced to 395 days less the time served and a probation for two years. [ 64 ] Clearly the range of the sentence depends of the circumstances of the offense and of the offender.

It is difficult for the Court to consider the sentence imposed in those cases because the accused sentencing’s is an individual process: this accused, these circumstances, this community. [ 65 ] In this case, Crown counsel described the accused’s long criminal record. It must be considered when assessing the risk of violent recidivism, when previous sentences have not had the intended deterrent effect and the objective of denunciation is of utmost importance . [ 66 ] The many prison sentences imposed have not had the desired deterrent effect.

Pursuant to the principle of gradation of sentences, a harsher sentence involving isolation is justified. [11] It must remain proportionate to the gravity of the offences, however, and not punish the accused for prior offences. [12] [ 67 ] The Court is of the view that the objectives of denunciation, deterrence and isolation must prevail. However, it does not set aside the objective of rehabilitation.

The accused is open to participating in the programs available in prison. [ 68 ] A penitentiary sentence appears appropriate to respond to the various objectives and will allow the accused to participate in rehabilitation programs adapted to his issues and, hopefully, to his culture. [ 69 ] In the circumstances, the Court considers a total sentence of 1,465 days (equivalent to 4 years of imprisonment) a sentence that is proportionate to the offences committed and the accused’s moral responsibility. [ 70 ] He has been in custody for 490 days.

A credit on a 1.5:1 ratio for each day spent in custody must be deducted and credited for his pre-sentence custody, that is, 735 days.

FOR THESE REASONS, THE COURT: In the file 640-01-041500-183 [ 71 ] SENTENCES the accused to 1,100 days (36 months and 15 days) less 735 days of pre-sentence custody, that is 365 days as of today on count 2 for the offence of assault causing bodily harm; [ 72 ] SENTENCES the accused to 365 days on count 3 for the charge of assault, to be served consecutively to count 2, but concurrently with all of the other charges in the file and all other file; [ 73 ] SENTENCES the accused to 365 days to be served concurrently on count 4 for the charge of uttering death or bodily harm threats;

In file 640-01-041505-182 [ 74 ] SENTENCES the accused to 365 days to be served concurrently with each of charges on count 1 and 3 and concurrently with any other file; [ 75 ] ORDERS that samples of bodily substances be collected for forensic DNA analysis, under ss. 487.051 and 487.06(1) Criminal Code within a delay of 90 days; [ 76 ] PROHIBITS the accused from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for life pursuant to

section 109 of the Criminal Code ; [ 77 ] ORDERS the exception of

section 113 of the Criminal Code for the purpose of hunting for his sustenance or the family’s sustenance. [ 78 ] ORDERS the accused to comply with the following conditions of supervised probation for a three-year period: − Keep the peace and be of good behaviour; − Abstain from communicating, directly or indirectly, with L. Q. or from going to any address where L.

Q. resides unless she gives her written consent or unless it is through a third party concerning their child; − Appear before the court when required to do so by the court; − Notify the probation officer in advance of any change of name or address, and promptly notify the probation officer of any change of employment or occupation. − Report to the probation officer within two working days of his return to the community after the effective date of the order and thereafter, when required by the probation officer and in the manner directed by the probation officer; − Abstain from the possession or consumption of drugs except in accordance with a medical prescription, of alcohol or any other intoxicating substance; − Follow the recommendations of the probation officer concerning his issues of violence, impulsiveness, his mental health and substance abuse; [ 79 ] PROHIBITS the accused, pursuant to

section 743.21(1) of the Criminal Code , from communicating, directly or indirectly, with L. Q. during the custodial period; [ 80 ] EXEMPTS the accused from paying the victim surcharge. __________________________________ RENÉE LEMOINE J.C.Q. Mtre Carmen Aubé Crown Prosecutor Mtre Virginie Dallaire Counsel for the accused Date of hearing: January 9, 2019 February 3, 2020