2021 QCCQ 1844, 2021 QCCQ 1844

R. c. Angnatuk 2021 QCCQ 1844 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF KUUJUUAQ « Criminal Division » N : 635-01-016519-184 635-01-018521-196 DATE : March 17th 2021 ______________________________________________________________________ UNDER THE PRESIDENCE OF HONOURABLE PAUL CHEVALIER J.C.Q. ______________________________________________________________________ THE QUEEN vs.

STEVEN ANGNATUK ______________________________________________________________________ SENTENCE ______________________________________________________________________ NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant or witness ( sec. 486.4 of the Criminal Code ). [ 1 ] What are the just sanctions deserved by Mr.

Steven Angnatuk, who, on the one hand, was diagnosed with Fetal Alcohol Spectrum Disorder (FASD) [1] and was assessed as having an intellectual disability with considerable cognitive limitations [2] , and who, on the other hand, pled guilty on September 21, 2018 for having sexually assaulted L.I. on April 29, 2018, and pled guilty on January 21, 2021 for breaching two conditions of an undertaking and for resisting police officers on September 22, 2019? THE FACTS [ 2 ] A Joint

summary of facts, duly signed by accused, was filed on September 21, 2018 in file 635-01-016519-184 which reads as follows: 2.1. “ On April 29 th 2018, the accused and L.I. were in a relationship since few months; 2.2. At night, L.I. went to the accused house and she went to bed: 2.3. The accused drank alcohol and joined Ms. I. in the bed; 2.4. Around 2 am, the accused woke up Ms. I. because he wanted to have sex with her; 2.5. She refused, but the accused did not listen to her and took off her pants and panties and had a complete sexual intercourse with her, even if she was asking him to stop; 2.6.

Both of them fell asleep and the accused woke up again 2 times during the night and had sexual intercourse with her, despite the fact that she was asking him to stop; 2.7. After the third time, while the accused was in the washroom, Ms. I. gets out of the house and she called the police.” [3] [ 3 ] As for file 635-01-018521-196, the

summary of facts in the Occurrence Report states that: “On 2019-09-22 in the early morning, Steven goes at house [...] where J., F. and N. are with the babies. Steven starts banging on the door really hard, making a lot of noise. The police is called by J.. Once the police arrive there, they notice that Steven is intoxicated by alcohol.

Steven tries to go in the house when J. opens the door and starts resisting actively with the police, obstructing their work …” [4] [ 4 ] The conditions that were not complied with are condition no. 2, “Be at my residential address between 10 PM and 7 AM” and condition no. 1, “Not drink any alcoholic beverages or have them in my possession”. THE PARTIES SENTENCING SUBMISSIONS The prosecution [ 5 ] Crown counsel considers that a sentence of imprisonment of 22 months, less the time spent in preventive custody, followed by a supervised probation for a period of three years would be a fit sentence.

To make such a submission, she takes into consideration the Gladue factors detailed in the Gladue Report [5] as well as the fact that accused is affected by FASD and has an intellectual disability.

[ 6 ] But she insists on the Pre-sentence Report [6] which is far from being favourable to accused, on the fact that there were three unaccepted sexual intercourses during the night with the victim, on accused’s criminal record, on the factual and legal aggravating factors that are present here, to consider that the sentencing submission by Defence counsel is unfit.

The defence [ 7 ] Defence counsel suggests that the appropriate sentence would be one of one hundred and twenty (120) days of detention, less the time spent in preventive detention, accompanied by the following “punitive sanctions” [7] : two hundred and forty (240) hours of community services and a donation of seven hundred and fifty (750) dollars to the Women Shelter of Kuujjuaq, conditions to be imposed within a supervised probation that would be in force for a period of three years [8] . [ 8 ] Such sentence would be “a fair and proportionate sentence in regards to the gravity of the crimes […] as well as [accused’s] degree of responsibility” [9] which is highly impacted by his intellectual disability and his diagnosis of FASD.

Accused’s mental problems warrant that denunciation and deterrence be given low weight in this file. [ 9 ] Defence counsel considers that the Pre-sentence Report’s “probative value is extremely low if not inexistant” [10] because the interview with accused was conducted in English, without an interpreter. Yet, she relies fully on the FASD Assessment during which accused “answered the assessment team’s questions easily and readily […] was able to understand and answer the questions in English. Only once, did he require the support of the interpreter to translate the question from English to Inuktitut” [11] .

ANALYSIS Accused’s personal situation [ 10 ] Mr. Angnatuk is an Inuit man born on [...], 1995 in Kuujjuaq from parents who used to be “drinking and talk fighting and yelling every few weeks” [12] then. His mother eventually stopped drinking after attending the Isuarsivik Treatment Center program. His parents were themselves raised in environments where alcohol was present and where their own father was violent against their spouse.

The grandparents were also affected by the dog slaughter which, according to accused’s mother, still impacts their lives. [ 11 ] The Gladue report informs us that accused liked going to school when he was in Grades 1, 2 and 3, even if school got a little harder each year and if there were bullies. In Grade 4, people began to realize that he had learning difficulties and that he struggled to do well in school. Even in Grade 7, his teacher had to help him how to write English and do Math.

So, for Secondary 1, he was offered to go into the IPL class, which he enjoyed, but he dropped out after just a few months. [ 12 ] After being forced by a friend to smoke a cigarette when he was 11, accused has been smoking every day since then. He started smoking marijuana at 13, liked how it calmed him down and continued using it daily after. He started drinking alcohol heavily when he was 16, realized eventually he was drinking too much, tried many times to stop but found it too hard.

He states that he slowed down and uses mostly marijuana, that his drinking is OK. [ 13 ] When he was 18, a cousin with whom he had been drinking alcohol committed suicide after going back to his own home. However he is sad when he talks about it, he says that he is “OK with it now”. His first “conjugal” relationship was with P.A. and would have lasted until 2016. P.A, committed suicide at the end of 2018 and accused was then unable to say how he felt about her death.

When his maternal grandfather, Sammy Angnatuk, passed away in 2016, accused was sad enough not to attend his funeral, but he says he is “OK now”. [ 14 ] After his relationship with P.A., accused started a new one with L.I. which ended because L.I. was asking him to stop drinking and he says he could not. After they broke up, L.I. found out she was pregnant in January 2018. It is while she was visiting him that the sexual assaults happened.

In July 2018, accused started a new relationship with N.P. and they were still living together in January 2021. [ 15 ] Accused lived at his parents’ place until spring 2019 where he got his own house. [ 16 ] He is working full time at Raglan Mine and has been working there for many years, first as a labourer, then as a dishwasher. [ 17 ] Unlike many Inuit offenders who, according to their Pre-sentence Report or Gladue Report, were physically and/or sexually abused in their childhood, accused was lucky enough not to be “a victim of physical violence from his father” [13] . [ 18 ] The conclusion of accused’s psychological assessment by Dr.

Beltempo that Mr.

Angnatuk is having an intellectual disability is based on the tests performed by him which all showed that his score was in the very or extremely poor range, or in the very or significantly deficient range [14] . [ 19 ] These tests did put in evidence that accused has impairments with memory, attention, processing speed and verbal comprehension which can be linked with his behaviors, “in particular impulsive actions, making the same errors again, money and time problems, slow thinker, resistant to change, does not learn “a lesson”, very poor comprehension, very poor planning about the future, poor judgement, poor memory, misunderstands spoken words, and cannot generalize.

These primary disabilities in cognitive, emotional and social dysmaturity affect secondary disabilities, which include but are not limited to, poor social relationships, sexual inappropriateness, irritability, fatigue, addiction issues, resistance, anger, aggressiveness and lastly recidivism” [15] . [ 20 ] The FASD diagnosis is based on the fact that accused’s mother was an alcoholic when she was pregnant and admitted drinking heavily throughout her pregnancy, and on the fact that he has substantial deficits consistent with FASD, namely “significant deficits in his executive functioning, academic abilities, memory and intelligence/cognition” [16] .

His intellectual disability implies that he “has and

will continue to have challenges with problem solving, abstract reasoning and learning which will impact his ability to function on dailybasis”[17].

Sentencing principles [21] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, must beincreased or reduced to account for any aggravating or mitigating circumstances relating to the offence and the offender and the Courtmust consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to thecircumstances of Aboriginal offenders. [22] As for the objective gravity of the offences, for sexually assaulting I.L., accused is liable to a maximum term of imprisonmentof ten (10) years.

For resisting police officers and for failing to comply with a condition of an undertaking, the maximum term ofimprisonment is two (2) years less a day. [23] The subjective gravity of the sexual assault is important.

It is not only a complete sexual relation that accused had with hisformer spouse who clearly expressed her refusal, it is a total of three sexual intercourses during the same night that he had with her,despite the fact that she was asking him to stop. [24] His alcohol intake when he committed the sexual assault cannot decrease his degree of responsibility since he “wasn’t thatdrunk, just wanted to have sex”[18], had been drinking at the moment of the infraction “but, according to his words, not that much”[19];he was then feeling “like he wanted to have sex with the victim”[20].

Moreover, he was aware that he had a drinking problem. Accordingto Dr. Beltempo, “his use of alcohol in the late adolescence has increased his disinhibition, aggressiveness, sexual impulses andimpulsive crimes” [25] His “moral culpability varies according to the harm intended or the degree of recklessness or wilful blindness”[21]. To assessthat moral culpability, the Court must consider “the unique systemic or background factors which may- par199ave played a

part in bringing [accused] in front ofthe courts”[22] as well as “those related to the [accused’s] personality, and the consideration of these factors should not be limited to theperiod during which the offence was committed”[23]. [26] The Court is fully aware that it must take judicial notice of the systemic and background factors that affect Aboriginalpeople[24] to determine if they can affect accused’s moral culpability. [27] Alcohol abuse by accused, his parents and grandparents, the lack of appropriate services in Nunavik to evaluate him whenFASD was suspected and help him when he was young enough to improve his behavior and daily life, his low level of education –accused being illiterate - the intergenerational trauma caused by the dog slaughter, the limited employment opportunities in Nunavik –accused is working as a dishwasher – certainly contributed to bring him in front of the Criminal Justice System.

These backgroundfactors can lessen his moral culpability. [28] His FASD can also be considered as being the result of a systemic and background factor since accused’s mother becamealcoholic because alcohol affected her life, his father abusing alcohol and being then violent, wondering how he would be able to feedhis family after his dogs were slaughtered. Accused’s personal factors include the FASD. [29] Speaking of the role of FASD in determining an accused’s moral culpability, the Manitoba Court of Appeal, after referring toprevious decisions, wrote: “In

summary, an offender moral blameworthiness may be reduced if he suffers from an FASD related diagnosis and there is a connexionbetween the condition and the offence for which he stands charged. The sentencing judge must have evidence of the diagnosis and itsimpact on accused in order to draw the nexus between that diagnosis and the accused conduct relating to the offences”[25]. [30] The Alberta Court of Appeal stated that “the degree of moral blameworthiness must therefore be commensurate with themagnitude of the cognitive deficits attributable to FASD”[26].

It also added that “the actual condition of a specific offender depends onthe qualified expert evidence adduced”[27]. [31] Dr. Beltempo’s concludes that accused has an intellectual disability and a I.Q. profile in the extremely low range. His primarydisabilities in cognitive, emotional and social dysmaturity are evidenced by his impairments with memory, attention, processing speedand in verbal comprehension.

They can be linked directly to his behaviour, in particular, impulsive actions, slow thinker, very poorcomprehension, poor judgement, poor memory[28]. [32] “These primary disabilities […] affect secondary disabilities, which include but are not limited to, poor social relationships,sexual inappropriateness, irritability, fatigue, addictions issues, resistance, anger, aggressiveness and lastly recidivism”[29]. [33] Dr. Temple’s opinion is that accused “has significant and substantial deficits in his executive functioning skills” which leads,among others, to problems managing his behavior.

He has “a significantly elevated score (T=70) for the “Hyperactivity/Impulsivity”scale” and people with such deficits “also frequently experience impulsivity, hyperactivity and challenges with problem solving andmental flexibility”[30]. [34] Accused admitted to the Gladue writer that he had sex with the victim even if “she said no”, because he “just wanted to havesex”[31]. [35] “He considers sex as being important in his life but not omnipresent in his mind”[32] and when he committed the offence, “hefelt like he wanted to have sex with the victim”[33]. [36] The evidence clearly shows that accused acted impulsively, in a sexually inappropriate manner, having sex three times in the

same night, whenever he wanted. [ 37 ] The evidence also clearly proves accused’s poor judgement and comprehension since he thought that what he did was wrong not because the victim did not consent, but because he had sex with a pregnant woman and he does not think it is correct to do so [34] . [ 38 ] There is therefore a direct connexion between accused’s condition and the offence for which he is charged.

His moral blameworthiness is certainly reduced by his FASD and he must not be bear a full responsibility for the sexual assault he committed. [ 39 ] A sentence must be tailored to an accused and therefore must be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender. [ 40 ] Looking at the mitigating circumstances, accused’s plea of guilt is certainly one. His regular employment for many years now at Raglan Mine is another one.

His FASD, which is a mental disorder that contributed to the commission of the offence, is a mitigating factor that can reduce the sentence [35] . His cooperation with the authors of the different reports that were filed is another one. His supportive social network, although limited – his parents, his actual intimate partner and a friend – is another one. It is however reduced when we consider that accused was living with his parents when he sexually assaulted L.I. and that it did not prevent the offence to be committed.

The availability of some resources in his community to help him work on his issues, and his willingness to get help and support from them, is a mitigating factor. [ 41 ] Turning now to the aggravating circumstances, the fact that there were three forced sexual intercourses is surely one. Accused’s previous convictions is another one. The fact that he was on probation while committing the sexual assault is another one. The fact that one of his last convictions for assault causing bodily harm and forcible confinement was also against an intimate partner [36] is worrisome and is an aggravating circumstance.

The fact that in committing his crime, accused was abusing an intimate partner is another aggravating factor. The vulnerability of the victim, an Inuit woman is another one [37] , as well as his alcohol consumption [38] . [ 42 ] His disabilities in cognitive, emotional and social dysmaturity affect, among others, his proneness to recidivism [39] . Accused’s “deficits in his impulse control, short-term memory, and executive functioning abilities […] will limit his ability to control and change his own behaviour” [40] was writing Dr. Temple in 2019.

The fact that even in his current relationship with his partner there is still some violence when they have an argument, which accused accepts and even legitimizes [41] , is probative evidence of the risk of reoffending. Another proof of that persistent violence comes from N. P., accused’s partner, who, when she testified on January 21, 2021, admitted that the last time there was domestic violence within their relationship was the week before.

This risk is also associated to his FASD, and it lessens the importance of the mitigating factors stemming from that disorder. [ 43 ] All these factors are clear signs that the risk of recidivism is still present [42] , another aggravating circumstance. [ 44 ] Crown counsel relied on different decisions to justify her sentencing submissions. As long as they pertain to sentencing principles, those decisions are useful.

But if they tend to show that the sentence required for the sexual offence is adequate according to the principle of parity , the Court must disagree because the circumstances in each file were so different than those in accused’s file that they cannot be compared.

Either the offences were different, or the accused persons were not Aboriginal but suffered from FASD or not, or if they were Aboriginal they did not suffer from FASD. [ 45 ] Defence counsel referred to many decisions where Aboriginal offenders who were suffering from FASD received lenient sentences on account of their reduced blameworthiness due to their disorder. [ 46 ] A sentence must be imposed with restraint , especially when it concerns an Aboriginal offender.

But to be a sanction other than imprisonment, it must be appropriate and reasonable in the circumstances and consistent with the harm done and the other sentencing principles and objectives. Sentencing objectives [ 47 ] The objectives of denunciation and deterrence must be given primary consideration on account of the nature of the offence, because the victim is an Inuit woman (sec. 718.04 Cr. C., sec.), because, in committing the offence, accused abused his intimate partner (sec. 718.2 a) (ii) Cr. C.).

They should also be given such a consideration to reflect the gravity of the offence and the number of aggravating circumstances. The Court must moreover “give particular attention to the circumstances of Aboriginal female victims” who were the intimate partner of an offender (sec. 718.201 Cr. C.). [ 48 ] The British Columbia Court of Appeal, dealing with a sexual offence, stated that “The more invasive the sexual activity and the more significant the aggravating factors, the higher the sentence.

However, a proportionate sentence must also give weight to attenuating personal circumstances and mitigating factors that may reduce the offender’s moral blameworthiness” [43] . [ 49 ] Despite the importance these sentencing objectives should normally be given, the Québec Court of Appeal quoted with approval the author Clayton C.

Ruby, in Sentencing who wrote “[…] courts have come to recognize the decreased significance of general deterrence in sentencing the mentally ill offender, and they also have affirmed that specific deterrence and punishment ought to be given similarly reduced weight.” [44] [ 50 ] The Yukon Territorial Court, dealing with an offender affected by FASD, wrote: “The purposes and principles of sentencing found in the Criminal Code assume that the offenders are capable of making choices, understand the consequences of their actions, and when punitive sanctions are applied, are capable of learning from their mistakes so as not to repeat them.

General deterrence, meaning that the punishment given to one person for breaking the law will operate to deter other persons, presupposes the ability of those other persons to process and translate information as well as to remember it. Similarly, rehabilitation, as it is conventionally understood, is largely a cognitive process premised on the ability to understand, to learn, to remember and make choices. None of these assumptions fit well with what is known about FASD, a permanent brain damage that can

affect all parts of the brain” [45] . [ 51 ] This is why Dr.

Beltempo stated that on account of his reasoning problems, accused would hardly be able to “link the crimes with consequences [and might] not connect his sentence with his behaviour, or even understand the offence” [46] , especially because of the long delays in the judicial process. [ 52 ] The Alberta Court of Appeal added that “it is over-simplification to assume that the objectives of denunciation and deterrence are only served by severity. […] The key principle in sentencing is proportionality” [47] . [ 53 ] The objective of separating the offender from society is necessary on account of the relative consideration that must be given to the objectives of denunciation and deterrence, the gravity of the offence and the aggravating circumstances.

It will also, hopefully and despite accused’s cognitive disabilities, give him the occasion to think over and over again to what he has done, to start promoting in him a sense of responsibility and a clear understanding and acknowledgement of what really is the harm sustained by the victim. Both counsels agree that a sentence of incarceration is warranted in the circumstances [48] but disagree on its length. [ 54 ] Repairing the harm done to the victim will never be possible.

Performing community service may sometimes be considered as a mean to repair the harm done to society [49] . [ 55 ] Assisting in rehabilitating accused is certainly, here, a paramount sentencing objective. When a court has to sentence an offender affected with mental disorder, deterrence and punishment are less important and emphasis should be put on the objective of rehabilitation and treatment [50] . [ 56 ] If he receives proper counselling and is closely supervised, accused will not present a danger for the public.

If nothing is done, since his abilities to control and change his behaviour are limited, he will again and again have to face the Criminal Justice System. It is certainly not while serving a long sentence that he will improve his behaviour or have access to the necessary tools to try to modify his behaviour. [ 57 ] Accused has identified some resources in his community that could help him and these resources are willing to work with him.

His social network, fully aware now of the situation, will be there to make sure he attends every appointment he will have and to put in a routine. [ 58 ] As for the objective of promoting in accused a sense of responsibility for what he has done , it will take time since, on account of his reasoning problems, he “cannot link actions to consequences […] and may not connect his sentence with his behaviour, or even understand the offence” [51] , especially since it was committed two years and a half ago. [ 59 ] It will be mostly in his community, with people sharing the same language and the same culture, that achieving this objective will slowly be possible.

He has so many issues to work on, stemming from his FASD, that it will take time and patience from him and from the different resources to succeed, but he is ready to do so. THE FIT SENTENCES [ 60 ] Accused committed the sexual assault on April 29, 2018, almost three years ago and was able to keep his job at Raglan Mine, working two weeks on and two weeks off, as a dishwasher, a very simple and routine job, since then.

He managed to stay out of trouble until September 22, 2019 when he was arrested, being highly intoxicated and has not been arrested after that. [ 61 ] When he is off, he stays home, not doing much, his parents and his girl friend helping him. [ 62 ] Apart from his relapse of September 2019, accused has shown for nearly three (3) years, with the support of his family, that he can live in his community without representing a danger. [ 63 ] The Court considers that its decision must tend to have more rehabilitative, restorative and healing prospects for this particular Inuit offender with very particular personal circumstances. [ 64 ] Considering that emphasis must be put on the rehabilitation objective on account of accused’s FASD and the Gladue factors that affected him, rather than on the deterrence and denunciation objectives, but without ignoring them for the reasons already given, the Court considers that a fit sentence for that offence would be a term of imprisonment of six (6) months, followed by a supervised probation for a period of three (3) years.

A much longer term of imprisonment would have been warranted if not for the importance of accused’s disabilities.

But the Court is also taking into account the fact that because of his vulnerability, he will have a very hard time serving his sentence since he is “a high potential for victimization and criminal influence” [52] and on account of his misundertsandings. [ 65 ] As for the offences of September 2019, hoping that accused will realize the importance of respecting court orders - since he was able to understand that marijuana was not allowed at Raglan Mine after being suspended for that reason – an additional term of imprisonment of seven days, but to be served consecutively to the sentence for sexual assault, is adequate. [ 66 ] Accused was in preventive custody from April 30, 2018 to May 4, 2018 (five (5) days), from April 23, 2019 to April 30, 2019 (eight (8) days) and from September 22, 2019 to September 23, 2019 (two (2) days), for a total of fifteen (15) days.

Crediting accused one day and a half for each day he spent in custody, according to sec. 719

(3.1) Cr. C., the Court must subtract 23 days from the total length of his sentence of imprisonment. CONCLUSION [ 67 ] In file 635-01-016519-184, the sentence of the Court is a term of imprisonment of six months, or one hundred and eighty-four (184) days from today, less 23 days to account for the preventive custody, to wit 161 days from today.

[ 68 ] This sentence of imprisonment will be followed by a supervised probation for a period of three (3) years.

Accused will have to comply with the following conditions: → keep the peace and have a good behaviour; → appear before the court when required to do so; → report to a probation officer within two working days after his return in his community, and thereafter whenever required to do so; → notify the probation officer in advance of any change of name or address and promptly notify him of any change of employment or occupation; → abstain from communicating directly or indirectly with L.I. or being in her physical presence, except with her revocable written consent, through a third person, for the child; → remain within the jurisdiction of the Court, except with the written consent of the probation officer or the Court; → follow the recommendations of the probation officer regarding any follow-ups deemed necessary to address his alcohol issues, anger issues, sexual behaviour problems, psychological issues; → meet with the Justice Committee at least once a month and provide the evidence of such meetings to the probation officer; → attend Qajaq men’s group meetings at least once a month as long as deemed necessary and provide evidence of those meetings to the probation officer; → seek counselling from elders and from the social worker as long as they consider it to be necessary; → take the necessary steps to maintain an employment or find a new one. [ 69 ] The Court is making an order under sec. 109 Cr.

C. prohibiting accused to have in his possession the firearms and weapons described in the order, for a period of ten (10) years. The exception provided by sec. 113 Cr. C. will apply. [ 70 ] The Court is making the order under sec. 487.051

(1) Cr. C. for the taking of bodily substances from accused for DNA analysis, such body substances having to be taken within sixty (60) days. [ 71 ] The Court orders accused, according to sec. 490.012

(1) Cr. C., to comply with the Sex Offender Information Registration Act for a period of twenty (20) years. [ 72 ] In file 635-01-018521-196, on counts no. 1, 2 and 4, for not complying with two conditions of a release order and for resisting police officers, accused is sentenced to a term of imprisonment of seven (7) days. These sentences will be served concurrently, but consecutively to the sentence imposed in file 635-01-016519-184. [ 73 ] Accused is therefore sentenced to serve a total period of imprisonment of 168 days, followed by the three (3) years supervised probation. PC/ PAUL CHEVALIER, J.C.Q.

Me Raphaël Lacoste For the Crown. Me Isabelle Martineau For the accused. Date of the sentencing hearing : January 21 st , 2021