R v Ipeelie, 2015 NUCA 03

???? ?????????? ???????? Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Ipeelie, 2015 NUCA 03 Date: 20160615 Docket: 08-14-5-CAP Registry: Iqaluit Between: Lucassie Ipeelie Appellant -and- Her Majesty The Queen Respondent _______________________________________________________ The Court: The Honourable Madam Justice Myra Bielby The Honourable Mr. Justice Andrew Mahar The Honourable Mr. Justice Thomas W. Wakeling Memorandum of Judgment Appeal from the Sentence by The Honourable Mr. Justice N. Sharkey Dated the 17th day of February, 2014 (Docket: 08-12-500; 08-12-563)

MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] Lucassie Ipeelie appeals from the imposition of a sentence of four years’ incarceration upon entering a guilty plea to a charge of sexual assault imposed February 17, 2014. II. STATEMENT OF FACTS [ 2 ] By way of an agreed statement of facts, Mr.

Ipeelie admitted that in the early hours of August 14, 2012, he approached the victim – a virtual stranger walking home from work in Iqaluit, Nunavut – and coerced her to go behind a house, where he pushed her to the ground and proceeded to have unprotected and non-consensual sexual intercourse with her. She actively resisted him to no effect. [ 3 ] As a result of a passerby hearing her cries, two police officers arrived on the scene at about 2:17 am to find Mr. Ipeelie on top of the victim, who was squirming, trying to get away and telling him to get off. The police officer who pulled him off could see Mr.

Ipeelie’s penis exiting the victim’s vagina. [ 4 ] Mr. Ipeelie was uncooperative when arrested. He was intoxicated, had unsteady balance, slurred speech, and bloodshot eyes. The victim told the police she was frightened during the incident. They observed her to be crying. As a result of medication given to her at the hospital during a resulting examination, she became nauseous. [ 5 ] As a result of Mr. Ipeelie’s guilty plea, the complainant was spared the need to testify at a preliminary inquiry as well as at trial. At the time of sentencing, Mr.

Ipeelie had eight prior convictions for impaired driving, three assaults, and breach of conditions of judicial interim release. Each of the assaults was on the same woman, a former girlfriend. At the time of this offence he was bound by two probation orders. He had been out of prison for only a couple of months and had been charged with impaired driving during that time. He struggled with alcohol abuse. [ 6 ] Mr. Ipeelie was 25 years old at the time of sentencing, single, and had no children. He had the support of his parents, both solid citizens.

He was a skilled mechanic and finished heavy equipment training in 2010. He had worked as a driller, both seasonal and part- time, for five years. He was active “on the land”, which we interpret to mean that he was an active hunter and fisherman. [ 7 ] The Crown sought a sentence in the range of four years, which would have to be served outside of Nunavut given the lack of penitentiary facilities within the territory. Mr.

Ipeelie’s counsel sought a sentence of the maximum possible territorial jail time, two years less a day, to be followed by the maximum period of probation permitted, three years. [ 8 ] The sentencing judge found Mr. Ipeelie’s moral culpability for the offence to be high; he was a man with a clear predilection for crime and violence when drinking, yet he continued to drink. His crime was purposeful, and he ignored the victim’s pleas for help and for him to stop.

The judge noted his obligation to consider the remedial provisions of s 718.2 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code], given that Mr. Ipeelie is an aboriginal, while noting that his victim was also aboriginal. [ 9 ] After observing that Nunavut endured the highest rate of sexual assault in the nation, and the egregious nature of the circumstances in which this offence took place, the sentencing judge concluded that a proper sentence would be in the range of six to 10 years imprisonment, depending on the record of the offender.

He then expressly considered the effect of the mitigating factors of a relatively

prompt guilty plea and Mr. Ipeelie’s significant steps taken toward rehabilitation while on bail in reducing the sentence to one of fouryears imprisonment. [10] In imposing this sentence, the judge found the following factors to be aggravating: (

a) the predatory manner in which the offence occurred; (

b) trauma to the victim, including the inferred long-term psychological impact; the judge presumed that she had offered no victimimpact statement out of a desire to avoid revisiting the horror of the event; (

c) Mr. Ipeelie’s prior criminal record, including prior assault convictions; (

d) Mr. Ipeelie was bound by two probation orders at the time of this offence; (

e) Mr. Ipeelie was drunk at the time of the commission of the offence; and (

f) Mr. Ipeelie had done little to address his acknowledged problem with alcohol at the time of the offence, while knowing he hadpreviously caused harm to others as a result. III. STANDARD OF REVIEW [11] The applicable standard of review is one of deference. An appellate court may intervene to set aside or vary a sentence only if thetrial judge erred in principle, failed to consider a relevant factor, overemphasized or gave inadequate weight to a relevant sentencingfactor, or if the sentence was demonstrably unfit (see R v M(CA), (SCC), [1996] 1 SCR 500 at para 90, 46 CR (4th)269). IV. ISSUES [12] Mr.

Ipeelie’s counsel conceded in her factum that the primary considerations on sentencing an offence of this nature weredeterrence and denunciation. She argued, however, that the sentencing judge erred in principle by setting the range for sentence at toohigh a level by failing to give extra weight to Mr. Ipeelie’s good prospects for rehabilitation as a mitigating factor because he was anaboriginal offender, and by then failing to treat his restrictive bail conditions and good prospects for rehabilitation as mitigating factors atall.

Finally, she argued that the judge in this case erred by improperly treating the following considerations as aggravating: the inferredharm suffered by the victim; her failure to provide a victim impact statement; and that the circumstances of the offence were predatory. V. SENTENCING RANGE [13] Specifically, counsel argued that the sentencing judge erred in concluding that the starting point in his analysis of sentence was atthe six to 10 year range.

She maintained that the proper range for sentencing for sexual assault in Nunavut is between two years less aday and four years, set through reference to a variety of cases from the territory.

R v Mucpa (8 October 2013), Pond Inlet, Nunavut 11-13-70, (NUCJ) [unpublished judgment] [Mucpa], is an example of a four-year sentence imposed on receipt of a guilty plea to a charge ofsexual assault after a street abduction in circumstances similar to those here. [14] She argued that the sentencing judge erred through failing to consider four years as the upper end of the range, to which themitigating effects of the guilty plea and rehabilitation prospects should then have been applied to reduce the sentence to two years less aday, with the result that Mr.

Ipeelie would serve this sentence within Nunavut rather than in a southern penitentiary. [15] The flaw in this argument is that it treats four years as the maximum sentence which could be imposed, whereas Parliament hasimposed an upper limit of 10-years’ imprisonment for sexual assault in s 271(

a) of the Criminal Code. The four-year sentence imposed inMucpa was not determined because it was the upper limit of any fit sentence, but was the end result of applying both the aggravating andmitigating factors existing in that case. And here, the sentencing judge must also have applied both the aggravating and mitigatingfactors to the sentencing range he articulated of six to 10 years, given that his ultimate conclusion was that a four year sentence was fit.

[16] Finally, even if a proper sentencing range can be established through reference to reported cases, Mr. Ipeelie’s four-year sentenceobviously falls within this range. We otherwise reject the suggestion that a sentence of more than four-years’ imprisonment ispresumptively unfit. A. Mitigating effect of prospects for rehabilitation [17] While Mr. Ipeelie’s counsel agreed that the sentencing judge acknowledged his obligation to consider the provisions of s 718.2(e)of the Criminal Code, in the context of the Supreme Court of Canada’s

interpretation of that

section set out in R v Gladue, (SCC), [1999] 1 SCR 688, [1999] 1 SCR 688 (QL) [Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], sheargued that he was thus compelled to give extra weight to Mr. Ipeelie’s prospects for rehabilitation, which he did treat as a mitigatingfactor.

Section 718.2(

e) of the Criminal Code directs: S. 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [18] While she did not argue that a sanction other than imprisonment would be appropriate for Mr. Ipeelie, counsel suggested theinterpretation given to s 718.2(

e) by the Supreme Court of Canada in Ipeelee, supported her proposition that prospects for rehabilitationshould be considered as particularly mitigating in the case of an aboriginal offender. In that case, LeBel J, writing for the majority, gavethis context for interpreting the statutory provision: [59] The Court held ... that s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem ofoverrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorativeapproach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use adifferent method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to payparticular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37)... Judges may take judicial notice of the broad systemic and background factors affectingAboriginal people generally... [60] Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people inCanadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190).

To be clear, courts must take judicial notice of suchmatters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lowereducational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels ofincarceration for Aboriginal peoples.

These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders.Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel... (R vIpeelee, 2012 SCC 13, [2012] 1 SCR 433 at paras 59-60). [19] Mr. Ipeelie’s counsel observed that in Nunavut the history of displacement of the Inuit is fresh; many people still alive recall livingin the traditional way before relocation to current settlements by the federal government. Alcohol abuse is rife in the territory.

Aids torehabilitation are few in comparison to those available in southern urban areas. As such, addressing alcohol addiction is especiallychallenging in Nunavut, and success particularly uncertain. [20] Alternatively, even if judges sentencing aboriginal offenders are not mandated to give extra weight to the mitigating factor ofestablished rehabilitative success, counsel argued the sentencing judge should have given it extra weight in sentencing Mr. Ipeelie.

Shemaintained that her client’s success at abstaining from alcohol use, and from the antisocial conduct flowing from it during his period ofrelease on bail, was deserving of particular consideration given the circumstances of life in Iqaluit. [21] Even had these arguments been raised in her factum, and the Crown thus put on notice that it should be prepared to respond tothem, we do not accept that good prospects for rehabilitation should be attributed extra-weight in mitigation in the case of everyaboriginal offender, or in the case of Mr. Ipeelie in particular. The Criminal Code does not mandate this position.

The Supreme Court didnot provide this

interpretation in Gladue or Ipeelee. No other case authority has been offered to us which so interprets s 718.2(e). [22] That is not to say that a sentencing judge could not attribute extra weight to rehabilitative efforts by an aboriginal offender in aproper case. However, we cannot say this sentencing judge erred in failing to do so on the basis of the record before him. Unhappily,resource limitations result in presentence reports rarely being prepared in Nunavut; none was prepared here. While the evidence beforethe sentencing judge showed that Mr.

Ipeelie had not breached while on bail, and that he worked at one or even two jobs through muchof the time he was on bail, it did not reveal how he had attained sobriety, nor did it provide any basis for assessing his abilities to remain

sober upon ultimate release as a result, and thus provide a sound footing for the conclusion that he would abstain from future alcohol abuse. B. Mitigating effect of bail conditions [ 23 ] Mr. Ipeelie’s counsel also argued that the sentencing judge erred in principle by failing to treat his conditions of judicial interim release as a mitigating factor, requiring that extra credit be given against the period of incarceration he was otherwise sentenced to serve. The judge dismissed that suggestion, stating that Mr.

Ipeelie’s release conditions were not “so restrictive” and that they were well justified by the fact that he had been bound by two probation orders and a bail order on a charge of impaired driving at the time the offence in question occurred. Counsel suggested that in fact the release conditions were the most restrictive possible, short of actual detention, but that is obviously not so. Release conditions which did not allow Mr.

Ipeelie to be absent from his home for any reason short of medical need or court appearance are examples of far more restrictive conditions of release. [ 24 ] Further, the sentencing judge’s comment that “there is little likelihood that any court would have considered releasing [Mr. Ipeelie] unless the conditions had been exceptionally restrictive” is not an error, but a reflection of the fact that time spent on release, or bail, is not generally treated as a factor mitigating the length of a subsequent sentence of incarceration. Further, the fact that Mr.

Ipeelie was released pending conviction and sentencing gave him the opportunity to engage in improved behaviour, leading the judge to consider as evidence the likelihood of future rehabilitation which he took into account as a mitigating factor. VI. OTHER SENTENCING CONSIDERATIONS [ 25 ] We do not interpret the sentencing judge’s inference that the victim may have declined to give a victim impact statement because she did not want to revisit the horror of the offence as a separate, additional aggravating factor from that of the inferred harm to the victim.

It was open to him to treat the circumstances in which the offence occurred, a street rape, in the dark, by a stranger, as aggravating. It was open to him to infer harm to her as a result, and to treat that harm as an aggravating factor. His comments regarding the absence of a victim impact statement are simply part of that context. [ 26 ] The sentencing judge also did not err in treating the offence as predatory. That flows from the perspective of the victim, not of the offender. Whether Mr.

Ipeelie planned the sexual assault or it was simply an impulsive crime driven by opportunity made little difference to the impact on the victim, or to the larger community. [ 27 ] In

summary, the resulting sentence is demonstrably fit given the moral blameworthiness of the offender as well as his degree of responsibility. VII. CONCLUSION [ 28 ] We dismiss this appeal. Appeal heard on May 12, 2015 Memorandum filed at Iqaluit, Nunavut This 15th day of June, 2015 ________________________________________ Bielby J.A.

________________________________________ Mahar J.A. ________________________________________ Wakeling J.A. Appearances: S.L. Wheildon for the Respondent S. Charlesworth for the Appellant