r v. LIZA APPAQAQ, 2016 QCCQ 7765

R. c. Appaqaq 2016 QCCQ 7765 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF KUUJJUARAPIK Criminal Division No: 640-01-030192-133 DATE: July 6, 2016 ______________________________________________________________________ PRESENT: THE HONOURABLE CLAUDE P. BIGUÉ, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

LIZA APPAQAQ Accused ______________________________________________________________________ JUDGMENT Written version of an oral judgment delivered on April 12, 2016 concerning a sentence ______________________________________________________________________ [ 1 ] The accused pleaded guilty to two counts of operating a motor vehicle after having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, thereby causing an accident that resulted in bodily harm to two victims, Kayleigh Kawapit and Tiffany Masty, on August 5, 2012. [ 2 ] This infraction, pursuant to section 255(2.1) of the Criminal Code of Canada , renders the offender liable to imprisonment for a maximum period of 10 years.

POSITION OF THE PARTIES [ 3 ] The Crown asks for a jail term for a period of 6 to 9 months; the Crown also asks for an order prohibiting driving for a period of two years. [ 4 ] The defence recommends a probation order applying for a period of three years, including a condition involving the performance of 150 hours of community service or a donation of $1 500.00 to a non-profit organization. The prohibition to drive would be for a period of 15 months.

THE FACTS [ 5 ] The accused is an Inuk woman from Sanikiluaq, formerly known as the Belcher Islands, in Hudson Bay, located 150 kilometers west of Kuujjuarapik. [ 6 ] On August 5, 2012, the accused was visiting friends in Kuujjuarapik, formerly known as Great Whale River. [ 7 ] She had a few drinks with her friends during the day at a friend’s place.

Then the group decided to go to another house in order to continue the social gathering. [ 8 ] Two other young women asked the accused to drive a four-wheel vehicle (ATV or all-terrain vehicle), and the three of them took place on the ATV. [ 9 ] The accused started too fast and lost control of the ATV; all three women were ejected and fell to the ground. [ 10 ] All three were injured: the accused, Ms. Kawapit and Ms. Masty. They were taken to the clinic, and from there they returned to their respective homes.

The accused was taken to the police station where samples of her breath were taken with an approved instrument; it revealed a blood alcohol level of 100 milligrams, just over 80. [ 11 ] Ms. Kawapit still has a few slight scars on her face, resulting from the accident, and still has blurry vision in her left eye. Besides that, she sustained no other physical consequence from the accident. [ 12 ] Ms. Masty also recovered rapidly, and sustained no physical consequence on her person, except for a scar on her knee.

THE ACCUSED [ 13 ] The accused is a young woman, 24 years old. She was only 21 when the events happened. [ 14 ] She is now the single mother of a son of one year old. She currently lives with her parents. [ 15 ] Ms. Appaqaq graduated from high school in 2012. She studied in Ottawa as a hygienist in 2014, and received professional training as an office manager in 2015 in Iqaluit.

For almost one year now, she has been working for the school board and a high school as secretary and office manager. [ 16 ] She enjoyed participating in camping and other traditional activities with her grandparents, her parents and her siblings, and she plans to volunteer with the local church that she attends regularly, since her grandfather was a minister. She also plans to volunteer for sport activities for teenagers and as a Sunday school teacher for the younger children. [ 17 ] A Gladue report was prepared for the purpose of the sentencing process.

The report was prepared by Mary Hannah Angatookalook of the Justice Committee of Kuujjuarapik. The report is extremely positive for the accused. [ 18 ] Since the events, the accused no longer consumes alcohol, maintaining her sobriety. She does not use drugs. [ 19 ] The accused insisted on testifying in Court, in the presence of the local assistance.

SUBJECTIVE GRAVITY [ 20 ] We will now review the mitigating and aggravating factors in the present case. - Mitigating factors [ 21 ] The mitigating factors are: ➢ The accused pleaded guilty, avoiding a trial; ➢ The accused was only 21 years old when the incident happened; ➢ She has no prior convictions; ➢ She does not have the pattern of a delinquent person; ➢ She has positive social, moral and family values; ➢ She is an asset to her community: she has been working regularly since she was 16; ➢ She provided fair cooperation in the preparation of the Gladue report; ➢ She admits the harm done to the two victims, who were her passengers; ➢ She expressed sincere remorse, in front of the public at the courthouse; ➢ The judicial process has been a “wake up call” for her; ➢ She regrets her actions and has taken measures to prevent any reoccurrence; hence the risk of recidivism is low, if any; ➢ She has maintained her sobriety regarding alcohol and drugs since the events; ➢ She has not reoffended, for over three years now, and has not breached any conditions; ➢ She wants to share her skills and knowledge with the community; ➢ She wishes to meet the victims, through the Justice Committee, in order to apologize personally to them; ➢ The accused has the support of her family and a person responsible for family intervention with the government in the territory of Nunavut, who is also a well-respected member of the community of Sanikiluaq and a justice of the peace; that person provided a detailed letter of support; ➢ The accused was not involved in a car race, she did not miss a stop sign, she did not speed up; she drove the vehicle only a few feet; ➢ The victims accepted a ride with the accused, and the accident did not involve a collision with another vehicle or a pedestrian walking on the street. - Aggravating factors [ 22 ] The aggravating factors are very few, apart from the offence itself, since it is the offender who decided to drive and to take passengers after she had consumed too much alcohol. [ 23 ] There is no aggravating factor resulting from the level of alcohol in her blood, it being 100 milligrams, just above the allowed limit.

THE OBJECTIVES AND THE PRINCIPLES OF SENTENCING [ 24 ] The jurisprudence has determined that the objectives of denunciation and deterrence must prevail, where an offender has caused bodily harm to another person while driving under the influence of alcohol. [ 25 ] In order to reach such objectives, is it necessary to impose a period of detention? [ 26 ] Both lawyers agree that a sentence within the community (conditional sentence order) is no longer available for this type of offence. [ 27 ] However, despite many amendments voted to modify the Criminal Code for the past 10 years, Parliament has left sentencing judges discretion for a first offender, fixing a minimum fine but not a minimum term of imprisonment. [ 28 ] Also, in the present case, the objective of rehabilitation is not incompatible with the objectives of denunciation and deterrence.

Rehabilitation is another objective to prioritize when the Court deals with a first offender, who is a young adult, at the beginning of her professional career and parental responsibilities, and for whom the Court anticipates a promising future. [ 29 ] We have no reason to believe that the consequence of the offence in this case renders necessary the separation of the offender from society. [ 30 ] Acknowledgment of the harm done to the victims or to society can be achieved here by a sentence other than imprisonment; it must be weighed, as per

section 718 of the Criminal Code of Canada . [ 31 ]

Section 718.2 edicts other principles for sentencing, including 718.2 ( e ), concerning Aboriginal offenders in particular. That

section was never abolished, even though the Criminal Code was amended many times by Parliament to increase sentencing by imprisonment and to render more severe punishment for some offenses. [ 32 ]

Section 718.2 (

e) edicts that a Court imposing a sentence shall consider, for all offenders, with particular attention to the circumstances of Aboriginal offenders, all available sanctions, other than imprisonment, that are reasonable in the circumstances. [ 33 ] The previous subsection, 718.2 ( d ), urges the consideration of sanctions less restrictive than imprisonment, when appropriate to the circumstances. [ 34 ]

Section 718.2 (

b) emphasizes the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is the principle of harmonization of sentences. - Harmonization of sentences [ 35 ] For the past twenty years, the jurisprudence mainly considered terms of imprisonment varying between 9 and 18 months for cases of dangerous driving causing bodily harm, as exposed by the Court of Appeal of Québec in R. c.

Blouin . [1] [ 36 ] Concerning cases of impaired driving causing bodily harm, which is different from cases of dangerous driving, more recently Gilles Lafrenière J. made an extensive review of the case law and concluded that the range was broader, between 90 days and 3 years of imprisonment. [2] [ 37 ] This is a case with numerous mitigating factors, pointing to a sentence on the lower side of the range of sentences. [ 38 ] The judgment rendered by Gagnon J. in R. v. Mailhot [3] is different. The Crown was then asking for 12 months of imprisonment.

The defence was seeking a conditional sentence order, which was then still available. The Court decided on imprisonment for 4 months.

In that case, the offender caused a car accident with another vehicle, where three occupants were injured; one year later, the accused had reoffended with another impaired driving offence. [ 39 ] The Court cannot use Biernat [4] as a similar case, where the offender was sentenced to 90 days of imprisonment, to be served intermittently, it being his third offence in a similar matter, with alcohol levels of 220 and 227 milligrams in 100 millilitres of blood. [ 40 ] The Court has reviewed many Court decisions ordering sentences in the lower range of imprisonment, meaning 90 days, to be served intermittently most of the time.

In most of those cases, the victim or victims were the occupants of another vehicle, or cyclists or pedestrians riding or walking along the roadside where they would normally have no concern for their security, and were knocked down by an intoxicated driver: • R. c. Ayotte , 2011 QCCQ 11317 ; • R. c. Deschênes , 2012 QCCQ 10546 ; • R. c. Taylor , 2013 QCCQ 11042 , where the judge refers to six similar judgments in paragraph 32; • R. c. Zurnic , 2011 QCCQ 10507 ; • R. c. L’Ecuyer , AZ-51219559 (C.Q. 2011-11-17); • R. c. Pelletier , 2012 QCCQ 6472 ; • R. v.

Markozashvili , 2010 ONCA 52 . [ 41 ] The Court then found decisions for the same offence where imprisonment was not ordered. Even if the Court is not bound by

those decisions, which are recent, the offences were committed by similar offenders for similar offences in similar circumstances. The sentencing judges opted for sentences involving fines and periods of probation for offenders who were guilty of impaired driving causing bodily harm. [ 42 ] In R. c. Fréchette , [5] Larouche J. fined a woman (2 counts) and ordered probation for two incidents of driving while impaired on the same night, with blood alcohol readings of 289 milligrams and 269 milligrams. She was a medical specialist who was very devoted to her patients, and she had no prior convictions.

The victim suffered neck and back injuries, and was taken to the hospital. He was the driver of the other vehicle. [ 43 ] The Territorial Court of Yukon ordered probation for a period of 18 months and the payment of a fine of $1 500.00 for a reckless young man who drove an ATV while impaired and caused bodily harm to his passenger. The circumstances were similar to what we have in the present case concerning Ms.

Appaqaq and her two friends. [ 44 ] The Queen’s Bench for Saskatchewan [6] found that a driver, with a blood alcohol level of 190 milligrams, involved in an isolated event that caused bodily harm to a person standing beside an illegally parked vehicle did not deserve imprisonment, but a probation order of 3 years and a fine of $2 500.00. [ 45 ] Very recently, the Court sentenced a 24-year-old man, an ambulance operator, to a fine of $2 000.00 and a probation order of 2 years with strict conditions.

The offender was a young adult, and there were many mitigating factors and very few aggravating factors. [7] The victim was the offender’s cousin, his passenger, and had spent the day and also the evening with the offender, when they consumed alcohol together. That offender was not imprisoned, but he will spread a message of denunciation and deterrence through lectures and conferences to young students. [ 46 ] The four latter cases raise the possibility of a sentence without imprisonment, in view of the sentencing principle that a judge has the obligation to consider alternatives to detention, according to

section 718.2 (

e) of the Criminal Code , for all offenders, even non- Aboriginal offenders. [ 47 ] For the Court, the teachings of R. v. Gladue [8] and R. v.

Ipeelee [9] can be applied in the present case, where the offender is a native person. [ 48 ] The Court benefited from a Gladue report dated February 3, 2016, an extremely positive report which provided the Court with detailed information about the personal circumstances of the offender, in her family and in her immediate environment, and also on the systemic and background factors of her community. [ 49 ] The Gladue and Ipeelee decisions were specifically taken into consideration by other judges in determining appropriate sentences for charges similar to the offence in the present case. [ 50 ] In R. c.

Kawapit , [10] the offender was a young Cree man, 22 years old, who caused bodily harm to his passenger when riding an ATV while he was under the influence of alcohol and also hit a pedestrian, but without injuring that person. The sentencing judge also had to deal with two other counts of drinking and driving earlier that year, in 2009. [ 51 ] The sentencing judge, Renée Lemoine J., decided that the objectives of denunciation and deterrence could be met by imposing a sentence other than detention.

She decided to reach those objectives by accepting the restorative justice goals proposed by the Justice Committee of the community. [ 52 ] Under the detailed conditions of the probation order, mainly resulting from the Justice Committee’s proposals, the offender had to face the community.

The objectives of deterrence and denunciation were to be reached by the strict conditions of the probation order. [ 53 ] It was decided, in Kawapit , that the offender would pay a fine, as provided under section 255 (1), and that he would be on probation for a period of two years, with strict conditions. [ 54 ] In another judgment concerning a Cree offender, R. c.

Iserhoff , [11] Chabot J. dealt with a mature, 67-year-old man who caused bodily harm to two young female pedestrians when he hit them with his vehicle after consuming too much alcohol. [ 55 ] Although there was no Gladue report, Chabot J. received sufficient information on the personal circumstances of the accused, and knew the systemic background of the community well, as she regularly presided court sessions in the community of Mistassini for many years. Consequently, she had sufficient information to render an appropriate sentence, taking into account

section 718.2 (

e) of the Criminal Code and the teachings of Gladue and Ipeelee . [ 56 ] In Iserhoff , the judge also considered that the objectives of denunciation and deterrence could be met by a non-custodial sentence. She chose a fine and probation for two years, with conditions involving the offender’s commitments to the Justice Committee. [ 57 ] In the circumstances of the present case concerning Ms. Appaqaq, I agree that the same type of sentence can be considered as appropriate for the offender, meaning that the Court will decide on a sentence without imprisonment. [ 58 ] Ms.

Appaqaq accepted to take two other persons with her on an ATV. We often see overloaded ATVs in Nunavik, even if these vehicles are not designed to carry more than one or two persons.

Here, the passengers shared the risk when choosing to ride on the ATV, which was overloaded and driven by a person whom they knew was drunk. [ 59 ] Exceptionally, and in circumstances similar to the present case, judges are justified in considering sentences below the usual range and in making decisions with a certain flexibility, as taught by the Supreme Court in Nasogaluak , [12] where the circumstances supported the decision of a sentence below the usual range. [ 60 ] The Criminal Code edicts no minimal term of imprisonment for a first offender under section 255 (2.1) , but edicts a minimum

fine of $1 000.00. [ 61 ] Not only does the Criminal Code not impose minimal imprisonment for a first offender,

section 718.2 (

e) states clearly, as a principle of sentencing, that the sentencing judge must, before imposing a sentence depriving the offender of his freedom, consider all other available sanctions, if circumstances allow. [ 62 ] A jail sentence would not serve the community, or the offender.

One of the accused’s conditions will be to give a lecture or participate in an activity that will reach more persons than the mere decision to send the offender to jail, a decision that would not necessarily be widely broadcast. [ 63 ] And, what is most important, the present decision will be a fitting sentence that will contribute to reduce the over-representation of native people in detention centres by finding other sentencing methods, which is the judge’s duty when sentencing a member of the First Nations. [13] PROHIBITION TO DRIVE [ 64 ] A review of the cases referred to earlier enlightens the decision respecting the length of the prohibition to drive.

In circumstances similar to the present case, and even where sentences of intermittent imprisonment are decided, the length of the prohibition to drive, pursuant to section 259 (1) of the Criminal Code , varies between one and two years, at least for first offenders. [ 65 ] A prohibition to drive for one year will meet the needs of justice in the present case. [14] FOR THESE REASONS, THE COURT: [ 66 ] SENTENCES Ms.

Lisa Appaqaq to pay a fine of $2 000.00 ($1 000.00 for each count) within a delay of 24 months. [ 67 ] ORDERS probation for a period of two years, with the following conditions: ➢ Keep the peace and be of good behaviour; ➢ Appear before the Court when required to do so by the Court; ➢ Report to the Justice Committee of Kuujjuarapik and to the probation officer within a delay of two working days, and thereafter when required by the Justice Committee and by the probation officer of Kuujjuarapik or Sanikiluaq. ➢ Notify the Court, the probation officer and the Justice Committee of any change of name, address, employment or occupation; ➢ Remain at her residence between 10:00 p.m. and 6:00 a.m. during the first 12 months of probation, except if given prior authorization by the probation officer, for traditional activities or any other valid raison; ➢ Follow the recommendations of the probation officer and of the Justice Committee; ➢ Make reasonable efforts to find and maintain suitable employment; ➢ Meet the two victims with the support of the Justice Committee, in order to apologize to them (if they accept); ➢ Perform 120 hours of community service, as directed by the probation officer, within a period of 18 months, including sharing her skills and giving time to youth activities and other activities that will benefit the community, as recommended by the Gladue report; ➢ Deliver a speech at a public meeting organized by the Justice Committee and/or the probation officer, to explain the consequences of mixing the consumption of alcohol and the operation of a motor vehicle, in order to denounce that infraction, to deter herself from reoffending in similar matters, and to deter other members of the community from driving a motor vehicle, including ATVs and snowmobiles, after consuming alcohol; OR draft a text on the same subject, with the support of the Justice Committee or the probation officer, to be published in a newspaper or on a social network. [ 68 ] PROHIBITS the offender from operating a motor vehicle on any street, road, highway or public place, for a period of 12 months. [ 69 ] ORDERS the offender to pay the victim surcharge, and the costs, within a delay of 24 months. __________________________________ CLAUDE P.

BIGUÉ, J.C.Q. Mtre. Geneviève Lamontagne For the Crown Mtre. Jacques Stuart For the accused Date of hearing: February 16 and April 12, 2016