R v Algiak, 2021 NUCA 14

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Algiak, 2021 NUCA 14 Date: 20210920 Docket: 23-21-002-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Joe Martin Algiak Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of The Honourable Justice Kevin Feehan _______________________________________________________

Appeal from the Conviction and Sentence by The Honourable Justice P. Bychok Dated the 2nd and 3rd day of February, 2021 ( 2021 NUCJ 17 ; Docket: 23-20-48) _______________________________________________________ Reasons for Decision of The Honourable Justice Kevin Feehan _______________________________________________________ I. Overview [ 1 ] Joe Algiak appeals his conviction and sentence of February 2 and 3, 2021 for sexual assault, contrary to s 271(

b) of the Criminal Code , RSC 1985, c C-46 . The Crown proceeded summarily, and this is a single judge appeal. [ 2 ] At trial, the complainant was the only witness for the Crown. Mr Algiak did not testify. [ 3 ] On sentencing, Crown and defence counsel each asked the sentencing judge to impose a sentence of ten months’ incarceration and three years’ probation. After giving counsel notice that he thought the recommendation of the Crown was unfit, and granting an adjournment for Crown counsel to reconsider her position, the sentencing judge imposed the maximum sentence on

summary conviction for sexual assault of 18 months, together with 18 months’ probation. [ 4 ] For the reasons below, the appeals of both conviction and sentence are dismissed. II. Facts [ 5 ] On June 6, 2020, the complainant was housesitting for a friend. She and a cousin were drinking, and the complainant agreed she was very intoxicated by the early evening and confessed to periods of blackouts throughout the day. She admitted that as a result, her memory of the events may not be perfect. The cousin left the premises for a short time in the early evening and Mr Algiak entered the house uninvited.

He too was intoxicated. He asked if there was anyone else in the house and the complainant said there was not. Mr Algiak then began pushing and grabbing her, and became more aggressive. He pushed the complainant against the wall, and began pulling her pants down and pushing her harder. He threw the complainant to the floor, began putting his hand down her pants, and pulled her pants off. He penetrated her vagina with his right and then his left hand.

The complainant kicked Mr Algiak with considerable force, and he broke off the assault and left. [ 6 ] The complainant attended at the local health centre on June 10, 2020. The health records were not permitted to be entered at trial as a result of failure to have them disclosed on a timely basis. They were, however, entered on sentencing. The records showed the complainant suffered left lower rib pain and it hurt to cough, laugh, breathe deeply, or lie down.

The complainant was holding her left lower chest laterally and the nurse said that on review of x-rays, she found “evidence of 2 fractured ribs lower left side.” The diagnostic imaging report said there were no displaced rib fractures. The complainant attended at the RCMP detachment on the recommendation of the health centre nurse. III. Grounds of Appeal [ 7 ] Mr Algiak says the trial judge erred in:

(

a) reversing the burden of proof; (

b) assessing the complainant’s reliability and credibility; and (

c) imposing a sentence longer than recommended by the Crown and in a manner that was procedurally unfair. IV. Standard of Review [ 8 ] Reversing the burden of proof is an error of law reviewable on the standard of correctness: R v Callahan , 2007 ABCA 320 , para 5 . [ 9 ] Errors in the assessment of credibility are errors of mixed fact and law, and findings on credibility should not be disturbed on appeal unless they are clearly unreasonable: R v Hilton , 2016 ABCA 397 , para 15 , 343 CCC (3d) 304; R v Salomonie , 2020 NUCA 1 , para 22 ; R v SMC , 2020 ABCA 19 , para 19 ; R v MLC , 2021 ABCA 224 , para 16 .

But where a trial judge implements a faulty methodology in determining credibility, the error is one of law and the standard of review is correctness: SMC , para 20 , R v Mavros , 2020 ABCA 436 , para 11 . [ 10 ] The standard of review on sentence appeals is deferential.

An appellate court may not interfere with a sentence unless it is demonstrably unfit or based on an error of principle, there is a failure to consider a relevant factor, or an erroneous consideration of an aggravating or mitigating factor, and the error had an impact on the sentence imposed: R v LM , 2008 SCC 31 , paras 14-15 , [2008] 2 SCR 163; R v Lacasse , 2015 SCC 64 , paras 11 , 41, [2015] 3 SCR 1089; R v Ganesan , 2017 NUCA 7 , para 5 ; R v Godfrey , 2018 ABCA 369 , para 3 , 77 Alta LR (6th) 213; R v DPH , 2019 ABCA 448 , para 18 ; R v Kippomee , 2019 NUCA 3 , paras 24-26 ; R v Parr , 2020 NUCA 2 , para 44 . [ 11 ] The mere fact that a judge deviates from the proper sentencing range does not on its own justify appellate intervention.

A sentence outside the appropriate range may only be overturned if it is demonstrably unfit or clearly unreasonable. A sentencing judge’s decision to weigh aggravating and mitigating factors in a particular way does not, in itself, mean that weighing is unreasonable: Lacasse , paras 11, 43-44, 48-49, 51-52, 78 . V. Analysis (

a) Conviction appeal [ 12 ] Mr Algiak says the trial judge reversed the burden of proof because he presumed the complainant was a truthful and reliable witness, and erred in his assessment of her credibility and reliability. He submits she is unreliable because of her degree of intoxication and that her evidence was not logical, clear, or lucid. He points to a number of inconsistencies in her evidence. [ 13 ] There is no merit to these grounds of appeal.

The trial judge made concrete factual determinations with respect to credibility and reliability based upon the complainant’s testimony, which findings were well within his purview as the trier of fact. He was alive to concerns with the complainant’s evidence, indicating that she had quite readily admitted her level of intoxication, her periods of blacking out, and gaps in her memory. He acknowledged she was confused as to how the incident ended; whether it ended before or after her cousin came back to the house.

But overall she gave a clear, lucid, logical description of what happened at the critical time when Mr Algiak was in the house. Any inconsistencies were purely on peripheral matters, not core matters. [ 14 ] Mr Algiak objects to the trial judge’s use of the word “corroboration” to describe the complainant’s attendance at the health centre with sore ribs.

However, the trial judge said that no corroboration was required (as none is required for proof of sexual assault: s 274, Criminal Code ) and the use of the word in his oral reasons should be read in context as merely meaning “consistency” or “confirmation”: see R v Primmer , 2021 ONCA 564 , paras 29-34 . [ 15 ] The trial judge was satisfied beyond a reasonable doubt that the complainant had identified Mr Algiak as the man who assaulted her, accepted her version of events surrounding the sexual assault, and that the Crown had “proven each and every single one of the elements of the charge”.

He noted she did not display animus to Mr Algiak, as she only reported to the RCMP at the suggestion of the nurse at the health centre, and clearly was reluctant to be in court. The trial judge weighed the complainant’s evidence and found her to be credible and reliable. He made no palpable or overriding error. [ 16 ] The conviction appeal is dismissed. (

b) Sentence appeal i. “Jumping” the Crown’s position [ 17 ] In speaking to sentence, the Crown referenced Mr Algiak’s extensive criminal record which included seven convictions for assault between 1983 and 2011, one additional conviction for spousal assault in 2002, four convictions for assault causing bodily harm between 1991 and 2002, and two sexual assaults in 1997 and 2003. In addition, he had two convictions for impaired driving, one for careless storage of a firearm, and nine convictions for breaching court orders, including a conditional sentence order, extending to August, 2013.

His longest jail term for assault causing bodily harm was 12 months in 2002, and for sexual assault was ten months in 1997. The Crown recognized “a significant gap in the record” since 2013. [ 18 ] Crown counsel said it was aggravating that the complainant was a vulnerable Indigenous woman who suffered physical

injuries during the sexual assault. She asked for ten months’ custody followed by three years’ probation. [19] The Court was immediately concerned with that submission. The sentencing judge pointed out there were aggravatinginjuries, the complainant was vulnerable, and this was Mr Algiak’s third sexual assault conviction. As to the gap in convictions after2013, he said: While I’m suggesting that you’re placing far too much emphasis on a gap, given the very serious offence that he committed, a veryserious violation of [the complainant’s] personal and sexual integrity.

He penetrated her vagina. [20] The sentencing judge said the Crown’s “recommendation falls well below the range for this type of penetrative sexualassault”. He recessed the Court to give Crown counsel an opportunity to speak to senior counsel and rethink the Crown’s position, beforehe heard from the defence. [21] After adjournment, Crown counsel advised it would not be appropriate for her to change the Crown’s position.

She referred toR v Flowers, (NL PC), submitting that it canvassed sentencing positions on digital penetration offences, involved anInuk offender and an Inuk complainant, and set out a sentencing range from five months to two years less a day. [22] Crown counsel emphasized that her position was “not a joint position”, a stance repeated on appeal by both counsel for MrAlgiak and the Crown.

She said she did not know what defence counsel would be recommending, but invited the Court: … if Your Honour feels that my position is inappropriate … to sentence this accused to a term that Your Honour sees fit. [23] The sentencing judge said he thought it necessary to impose a sentence harsher than recommended by counsel.

Even if thiswas not a joint submission, the sentencing judge said counsel would continue to have an opportunity to consider the Court’s inclinationto “jump” the Crown’s position. [24] Defence counsel reviewed the individual circumstances of Mr Algiak including his Gladue factors (R v Gladue, (SCC), [1999] 1 SCR 688, 133 CCC (3d) 385). He submitted that Mr Algiak had a thirty-year history as a heavy equipment operatorbut had been on disability for the past four years as a result of a skin disorder. He said Mr Algiak had returned to school in a two-yearmanagement studies program and had completed the first year.

He emphasized the gap in the criminal record and urged the Court toaccept the Crown’s position on sentence, which he said was reasonable, restrained, and measured.

He did not express concern about thesentencing judge’s notice, or the adequacy of it. [25] Mr Algiak now says this exchange with counsel was not reasonable notice of the sentencing judge’s intention to “jump” therecommendation of the Crown because he did not reinforce, after being provided with the Flowers case, that he still intended on doingso, and give specific reasons. [26] A sentencing judge may not impose a sentence greater than recommended by the Crown without giving appropriate notice tothe parties.

The law is clear that a judge has “a duty to signal to counsel that [he] was having some difficulties with what was beingproposed” and failure to do so results in inherent unfairness: R v Vegso, 2012 NWTSC 77, para 19, 40 MVR (6th) 295; R v Keough,2012 ABCA 14, para 20, 281 CCC (3d) 476; R v Williah, 2012 NWTSC 53, paras 29-36; R v Burback, 2012 ABCA 30, paras 12-15, 68Alta (5th) 72; and see R v Mathewsie, 2016 NUCA 5, para 45; Kippomee, para 30. [27] In Parr, this Court allowed a sentence appeal where a sentencing judge failed to advise counsel that he did not accept theranges of sentences they proposed, saying “[t]his practice is to be highly discouraged”, para 52.

In R v Kritaqliluk, 2021 NUCA 4, para16, this Court reaffirmed that position. [28] There was no error in the notice the sentencing judge gave to counsel. It was clear the sentencing judge was concerned withthe submission of the Crown and intended to exceed that recommendation.

Neither counsel could have been in doubt as to his intention.Additionally, the sentencing judge granted an adjournment to Crown counsel to obtain further advice, and reconsider her position.Knowing the intention of the sentencing judge, Crown counsel invited him to sentence Mr Algiak to a term he saw fit. [29] The procedure followed by the sentencing judge was appropriate and fair. ii.

Reasons for Sentence [30] Mr Algiak says the sentencing judge’s reasons show an intent to interfere with prosecutorial discretion, demonstrate improperreasons for exceeding the recommendations of the Crown, and show errors with respect to proportionality, Gladue factors, andrecognition of mitigating and aggravating factors. [31] Mr Algiak concedes the sentencing judge was not barred from imposing the maximum sentence of 18 months’ imprisonmentif that sentence was proportionate to the circumstances of the offence and the offender.

However, he says such a sentence wasinappropriate as it was a criticism of the Crown’s discretion in proceeding by

summary conviction rather than by indictment, and on acharge of sexual assault, rather than sexual assault causing bodily harm. Mr Algiak points to the sentencing judge’s comments that theevidence in this case would have supported a charge of sexual assault causing bodily harm and that he was sentencing Mr Algiak for anindictable offence which had been prosecuted summarily. [32] In his oral reasons, the sentencing judge said that he “found … the sentencing recommendations of counsel were well outsidethe range of an appropriate sentence in all the circumstances of this case”.

He reviewed the purpose and objectives of sentencing as setout ss 718, 718.04, and 718.2(a)(iii.1) of the Criminal Code. He considered as aggravating factors that the complainant was a vulnerableInuk woman, Mr Algiak entered the home uninvited, he inflicted two fractured ribs on her, had a serious criminal record includingconvictions for violent crimes and sexual assault, and he drank alcohol knowing that he gets violent when he drinks. The sentencingjudge said there were no mitigating factors. He considered Gladue factors and s 718.2(

e) of the Criminal Code, and reviewed MrAlgiak’s personal circumstances. He said that crimes of domestic and sexual violence against women in the North continue to be a

common occurrence and the sentence being imposed must seek to repair the perception that the Court minimizes the nature, impact, and severity of sexual violence, while holding Mr Algiak demonstrably responsible for his crime. He placed primary emphasis on denunciation and deterrence. [ 33 ] In his supplemental written reasons, the sentencing judge restated the positions of the parties on sentence, Mr Algiak’s personal circumstances, and his criminal record. He reviewed the purpose, objectives, and principles of sentencing, and again set out aggravating and mitigating factors.

To the aggravating factors that he had cited in his oral reasons, he added that one of Mr Algiak’s prior assault convictions arose from violence against an intimate partner, he had assaulted and injured the complainant in her place of temporary shelter, his actions were clearly premeditated, the assault was predatory and persistent, and he pursued the complainant and prevented her from fleeing.

He acknowledged that the gap in Mr Algiak’s criminal convictions was a mitigating factor. [ 34 ] The sentencing judge again reviewed the parity principle, which holds that similar offenders ought to receive similar sentences for similar crimes committed in similar circumstances, s 718.2(e), and the principles in Gladue . [ 35 ] The sentencing judge set out in detail why the Crown’s recommendation was troubling to him. He referenced the prevalence of sexual violence in Nunavut, the perception of institutional indifference, and the severity of the offence.

He noted this was not a case where the Crown had negotiated a lenient joint submission in exchange for a guilty plea, but that Mr Algiak had been convicted after trial. As a result, he sentenced Mr Algiak to the maximum

summary conviction jail term. [ 36 ] The sentencing judge’s reasons are clear and considered, and display no overriding and palpable error in explaining why he reached his decision on sentence. [ 37 ] Despite being critical of the Crown’s prosecution of the case, the sentencing judge did not interfere with prosecutorial discretion. His criticism did not amount to interference with the core of the prosecution’s powers. It was open to him to find the evidence presented at trial and supplemented during the sentencing hearing would have supported a conviction for assault causing bodily harm.

While the sentencing judge was clearly of the opinion that the Crown could have proceeded by indictment and could have charged assault causing bodily harm, he in no way attempted to force the prosecution to bring additional charges against Mr Algiak, declare a mistrial or request the Crown re-elect, in order to impose a higher sentence than was available on

summary conviction. [ 38 ] The sentencing judge made no error with respect to his consideration of proportionality, aggravating or mitigating factors, or application of Gladue principles. [ 39 ] Given that this was the appellant’s third conviction for sexual assault and that the complainant suffered bodily injury, the sentence imposed by the sentencing judge was proportionate.

The complainant is an Inuk woman attacked by Mr Algiak in circumstances in which she was vulnerable, and the sentencing judge was statutorily required to give primary consideration to denunciation and deterrence (see s 718.04, Criminal Code ). [ 40 ] Though the sentencing judge added a number of additional aggravating factors in his supplemental written reasons for decision, there was no error in his identification of such factors.

Indeed, in his written reasons he acknowledged the mitigating factor of the gap in criminal convictions after 2013. [ 41 ] Further, the sentencing judge properly considered Gladue factors.

Such consideration did not require detailed causative reasoning as “sentencing reasons do not require ‘a detailed chain of causative reasoning’, but rather a recognition of the effect of Gladue/ Ipeelee factors on moral culpability ‘based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge’”: R v Spotted Eagle , 2021 ABCA 26 , para 21 ; R v Whitehead , 2016 SKCA 165 , para 63 , 344 CCC (3d) 1. [ 42 ] The presence of Gladue factors will not result in an automatic sentence reduction.

They provide context in assessing the offender’s moral culpability but do not determine the ultimate question of the individualized sentencing assessment: R v McDonald , 2021 ABCA 262 , para 22 . [ 43 ] The sentencing judge considered Gladue factors and said the appellant had been “greatly affected by the ongoing intergenerational impacts of colonialism”.

He gave appropriate weight to those factors in light of Mr Algiak’s high moral blameworthiness and the fact that this was his third conviction for sexual assault. [ 44 ] There is no substance to Mr Algiak’s concerns over the sentencing judge’s consideration of proportionality, aggravating and mitigating factors, or Gladue factors. iii. Near joint submission [ 45 ] Mr Algiak says the 18-month sentence imposed upon him was inappropriate because the position of the Crown and defence was a “near joint submission”.

As a result, Mr Algiak says in order to increase the recommended sentence from 10 months to 18 months, it was necessary for the recommended sentence to be “so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances … to believe that the proper functioning of the justice system had broken down”: R v Anthony-Cook , 2016 SCC 43 , para 34 , [2016] 2 SCR 204. [ 46 ] It is unnecessary to determine whether defence counsel’s simple agreement after the fact to the recommendation of the Crown constituted a “near joint submission”.

First, the Crown had indicated it was not a joint submission and she did not know the position of defence counsel. Second, the Crown and defence counsel had never agreed on a range of appropriate sentence, as was the case in Kritaqliluk .

Third, Crown counsel invited the sentencing judge to impose a sentence that he thought appropriate if he was not prepared to abide by the Crown’s recommendation. [ 47 ] Under the circumstances, including the repeated assaults against the complainant, digital penetration, the bodily injury she suffered, aggravating and mitigating factors, and Mr Algiak’s extensive criminal record including two prior sexual assaults, the Crown’s recommendation of 10 months’ imprisonment would lead reasonable and informed persons aware of the circumstances to doubt the

proper functioning of justice in this case. The sentencing judge arrived at an appropriate sentence. This was a violent, premeditated, penetrative sexual assault that caused significant bodily harm. The sentence imposed was not outside the range of similar sentences imposed in Nunavut and the North. [ 48 ] The sentence appeal is dismissed. VI. Conclusion [ 49 ] The appeals with respect to conviction and sentence are dismissed. Application heard on September 17, 2021 Reasons filed at Iqaluit, Nunavut this 20th day of September, 2021 Feehan J.A. Appearances: B. Chu for the Respondent E. Tache-Green for the Appellant