r v. HENRY JUNIOR ANNANACK, 2022 QCCQ 11923

R. c. Annanack 2022 QCCQ 11923 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF Kangiqsualujjuaq No: 635-01-018513-193; 635-01-018590-191; 635-01-018608-191; 635-01-019002-204; 635-01-019147-207; 635-01-019324-202; 635-01-020541-216; 635-01-019535-203; 635-01-020550-217 DATE: March 10, 2022 ______________________________________________________________________ BY THE HONOURABLE MARIE-CHANTAL BRASSARD, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

HENRY JUNIOR ANNANACK Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ Restrictions on publication: Publication ban has been imposed under

section 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainant. This publication ban applies indefinitely unless otherwise ordered . OVERVIEW [ 1 ] The accused pleaded guilty to numerous accusations in many files: threat, use of a firearm, breaches of conditions, obstructing a peace officer, recklessly discharging a firearm, escaping lawful custody and possession of a weapon dangerous for public peace. [ 2 ] He was also found guilty by Judge Louis A.

Legault, C.Q. of a charge of break and enter and commit a sexual assault on S.E. Since Justice Legault has now retired, I was designated to impose the sentence according to

section 669.2 (2) of the Criminal Code . THE FACTS [ 3 ] Written

summary of facts signed by all the parties has been filed in most of the cases. Other details of these infractions were adduced in court by both parties [1] . 635-01-018513-193 On September 17, 2019, the accused went to a party with his girlfriend, Irene May Annanack. He was already angry for an unknown reason and mentioned that he wanted to kill everybody. He did mention to the Gladue writer that he wanted to scare his girlfriend with a gun. He took a firearm that he had brought and pointed it at two people standing outside who then ran inside the residence for protection.

They called the police and the accused was later located and arrested. The shotgun used was not loaded when seized by the police. 635-01-018590-191 On October 9, 2019, the accused was seen outside his residence after his curfew. He was bound by conditions of release since September 18, 2019.

635-01-018608-191 On October 18, 2019, the sister of the accused called the police because she was worried for her brother who was suicidal. So police located him past his curfew. Police intercepted him twice, first time, not knowing who he was. Second time, he did not want to comply with the police instructions, giving a false name and running away from the officer. 635-01-019002-004 On November 22, 2019, police did see the accused driving his car at 10 p.m. therefore not respecting the curfew condition.

He was bound by three (3) different release orders. 635-01-019147-207 On March 24, 2020, at night, the accused shot his girlfriend, Irene May Annanack, when she was walking with friends and going by the house of the accused. He explains that he was angry because she threatened him to cheat on him. He then saw her outside by the kitchen window, so he went to the shack, knowing there was a gun, took it, aimed at his girlfriend and shot her. After, he left to go to the beach and to get rid of the gun. The accused said in court that he was impaired when this happened, that he had drank beers that night.

He added that he was asleep when he got a call from the victim which made him mad and then he saw her walk by. His degree of impairment is still nebulous. As for the victim, she was with friends who saw the rifle being pointed at their direction and ran because they were scared. The injuries sustained by the victim were not severe but she was medevaced the next day for tests in Kuujjuaq. Although she did not collaborate with police or Crown, it seems she has no long-term consequence. The accused was bound by conditions of release order, conditions such as curfew and not to have in his possession any firearms.

Conditions not to communicate with the victim and not to harass, molest or threaten the victim given within a police undertaking were also in force. 635-01-0019324-202 On June 5, 2020, police went to the accused residence to investigate possible suicidal threats on Facebook. He had written that “he wanted to kill and be dead after.” When the accused was located, police officers decided to have him see a social worker and searched him before bringing him to the clinic. They then found cannabis on him, so he was arrested for breaching conditions.

When they got to the police station, after meeting with the social worker, they opened the car door and the accused ran away, so police officers had to chase and tackle him to the ground. 635-01-020541-216 On July 27, 2020, police officers received a call for a possible breach of condition.

They went to the residence of the accused and he was not there although he had a condition to be there at all time. 635-01-019535-203 (count 1, 4, 5) On August 2, 2020, at night, the accused, while under the influence of alcohol, did break and enter into the house of S.E., by going through a window, and this, in order to have sex with her. She was sleeping in her room. The accused went up to her room and started caressing her legs, going upward, toward the buttock. She woke up, placed a pillow in front of her, preventing the accused from touching her further. He asked her to sleep with him.

She refused several times. He was trying to touch her and she constantly pushed away his hand. She screamed to get him out of the house, so eventually, he left. The victim’s child was in the bedroom with her during the sexual assault. The victim was really scared and afraid. The victim knew the accused since they went to school together. According to the information given by the accused to the Gladue

writer, she would have been his girlfriend in the past. But this information was denied by S.E. The accused was bound by conditions of release order: house arrest and not to consume alcohol. 635-01-020550-217 Later on August 2, 2020, police saw the accused in the streets. He had a knife in his hands, waving it and was screaming at others, including Irene May Annanack. He was breaching his conditions in regard of house arrest and not to have any weapons in his possession. He was not arrested on the spot, only days later. 635-01-019535-203 (count 6, 7) On August 13, 2020, the accused was finally located by police.

He had a knife that he used on him to cut his throat. He sustained injuries and had to be medevaced to Kuujjuaq for medical reasons. He was officially arrested on the 21 st of August 2020. He breached the condition of his release order. MATTERS IN DISPUTE [ 4 ] The accused raises the following issues before this Court in regard to the charge of recklessly discharging a firearm for which he admitted his guilt to in file 635-01-019147207: Does the mandatory minimum provided by

section 244.2 (3)

b) of the Criminal Code violate the Applicant’s right to be protected from cruel and unusual punishment, guaranteed by

section 12 of the Canadian Charter of Rights and Freedoms ? [ 5 ] Before addressing this issue, the Court will first determine the fit and appropriate global sentence for all files. The parties agree that if the conclusion is that the appropriate sentence does equal to or exceed the mandatory minimum then, there will be no need to address the matter of the constitutionality of the minimum sentence. The Offender [ 6 ] The accused is a 24-year-old Inuk who has been living in Kangiqsualujjuaq. He has no prior conviction.

He has been detained preventively since August 21, 2020. [ 7 ] As of March 10, 2022, the total preventive custody, including all periods of time he was detained in all files, is 619 days at a ratio of 1.5, which totalize 929 days (31 months). The pre-sentence report [ 8 ] The accused was born in Kangiqsualujjuaq and as a child was living with both parents. Because of alcohol consumption, his parents fought a lot. When his mother eventually stopped drinking so did the violence.

His father was even incarcerated for a period of two (2) years for domestic violence. [ 9 ] The offender did well in school and did graduate from high school. He had been working all his adult life. Though, before his arrest, his drinking habits affected his attendance at work as he was drinking more. [ 10 ] At age 21, he started a relationship with his girlfriend, Irene May Annanack, the victim of some offences at bar. They both drank a lot and were jealous, which led to many arguments between the couple. It was a toxic relationship.

Being jealous, resentful, angry as well of depressive, combined with alcohol consumption, all these, led him to engage in criminal and sometimes, violent behaviours. [ 11 ] Regarding the numerous breaches of conditions he admitted committing, the accused perceives himself as the victim of a dysfunctional relationship blaming his former girlfriend for the events that did occur between September and November 2019. [ 12 ] Concerning the event of March 2020, where he shot his former girlfriend, he explains that anger made him act that way and that he should have ended the relationship before. [ 13 ] Finally, regarding the break and enter of August 2020, he lacks empathy for the victim, only partially admitting his wrongdoing.

He kept saying that he never wanted to sexually assault the victim, not fully acknowledging his actions or how they were perceived by the victim or made her feel. [ 14 ] Though, he was honest and sincere with the probation officer. He seems to have repeated the pattern of violence seen at home and adopted the erratic lifestyle of his then girlfriend. He was jealous and unstable, had poor self-esteem, feared to be rejected and became increasingly angry. [ 15 ] The offender does not intend to return to his community when released and would like to go back to school in Kuujjuaq.

He is ready to undergo closed therapy for his alcohol addiction problem and is willing to continue his psychosocial follow-up for anger management and depression. [ 16 ] The probation officer concludes that it would be appropriate for the accused to go to a therapy center and to pursue a psychosocial follow-up first, before attending school. He needs to address certain previous traumas that could be at the origin of his discomfort and acting out. [ 17 ] The risk of recidivism remains present since the offender’s introspection remains partial but the probation officer believes that

he has good chances of reintegrating into society in light of his current plan. The Gladue Report [ 18 ] Before his arrest, the accused lived with his parents, his siblings and his girlfriend. He had a steady job. He does not have any children. [ 19 ] He grew up in a house where both parents were working. But they were also struggling with alcohol consumption which led to arguments and violence. Children would sometimes be slapped by their parents when they were drunk. His father went to jail for domestic violence on a few occasions.

When the parents did slow down their drinking habits, the violence ended. [ 20 ] As a child, he joined the Nunavik Youth Hockey Development Program , travelling to other communities in Nunavik and even to Quebec City. [ 21 ] He was also a member of the Junior Rangers for many years. He did participate in the Défi Pierre Lavoie . He was quite active. [ 22 ] Although he was bullied at school, he did graduate from high school. After that, he started working full-time. [ 23 ] He lost his best friend who committed suicide when they were both 19-year-old.

It has greatly affected him but he never talked about it since he does not know how to cope with the grief. [ 24 ] At 21, he started a relationship with his girlfriend Irene, who moved in with him and his parents. She was drinking a lot and so did he. They were arguing repeatedly of jealousy and cheating. He started having suicidal thoughts. [ 25 ] Although he started drinking at age 18 on special occasion, it was only when 21 years old that he began abusing alcohol. He is aware that he needs to control his alcohol intake in the future. [ 26 ] Since his incarceration, he took

part in the program Toward my community and was able to demonstrate introspection in his personal work. He still calls his family regularly from detention. [ 27 ] He plans on going back living with his parents, which contradicts the information given to the probation officer. [ 28 ] He regrets his actions and hopes that he can apologize one day. He is very conscious that he made bad decisions. He realized that he could have killed his girlfriend when he shot her. Every night he thinks about it and it hurts him. [ 29 ] He knows that he gets into trouble because he has difficulties controlling his anger when drunk.

He also needs to address the losses of friends that have passed away and he would be willing to go to Isuarsivik. He knows there is a lot of work to be done before going back to his community but he is willing to work on his issues. The Gladue report writer is of the opinion that it would be helpful for the accused to participate in programs, therapies or follow-ups. TESTIMONY OF THE ACCUSED [ 30 ] In court, the accused confirmed most of the information he had given to the probation officer or to the Gladue report writer.

But he did add or correct some specifics. [ 31 ] He recalls one particular episode of violence between his parents when he was a child. His mother had hit his father to the head with a stick. He was really scared. [ 32 ] For the last few months prior to his last arrest, he had been meeting regularly with a social worker and a psychologist. He has not attempted to commit suicide since being incarcerated. [ 33 ] He is very close to his sister Ellasie and his father Henry. He can rely on them.

They are supporting him and they will help him “for not going back to prison.” [ 34 ] Even though he had conditions to comply with, he has communicated with Irene May Annanack to apologize for the harm he had done to her. He does not show as much empathy for the other victims of his crimes. [ 35 ] He cannot recount what he has learned in the program he has completed in jail nor if other programs were available. [ 36 ] His plan when he will be released is not clear for the Court. He testified he wants to go back to Kangiqsualujjuaq with his family. He also wants to attend Isuarsivik for therapy.

He has already filled out the application and he is on a waiting list. [ 37 ] Then, the accused testified wanting to live in Kuujjuaq with relatives, then to attend school in Kangiqsujuaq or in Inukjuak. He concluded that he does not want to go back to Kangiqsualujjuaq because “there are too many problems there.” So the Court is left confused on his real intentions. Prosecution and defence position [ 38 ] The prosecution is asking for a global sentence of eight (8) years, suggesting six (6) years for the charge of recklessly discharging a firearm.

The prosecution is focusing on the need for denunciation and deterrence.

[ 39 ] The defence is of the opinion that the fit sentence should be 32 months, less preventive custody, followed by a probation order of three (3) years. This suggestion takes into consideration the principle of totality. As for the accusation of recklessly discharging a firearm, the defence argues that the fit sentence should be two (2) years in light of the potential of rehabilitation shown by the accused. Sentencing principle and objective [ 40 ]

Section 718 of the Criminal Code states that “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community.” [ 41 ]

Section 718.1 acknowledges that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 42 ]

Section 718.201 recognizes that when court imposes a sentence in respect of an offence that involved the abuse of an intimate partner, he or she shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.

Section 718.04 specifies that then, the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 43 ] Finally,

section 718.2 mentions that “A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” [ 44 ] Some of the objectives or principles relate to the victims but judges also have the responsibility to consider the unique systemic background of the aboriginal offender which may have brought the offender before the court.

The aggravating factors • the accused abused his intimate partner • the accused used a firearm on two different occasions and even shot his intimate partner (recklessly discharge) • the accused committed a sexual assault on a vulnerable Inuk victim • the aggravating circumstances of the home invasion provided for in

section 348.1 of the Criminal Code • the repetitiveness of the breaches of conditions • the risk of reoffending remains present. The mitigating factors • the accused pleaded guilty to most infractions • the accused is a 24-year-old Inuk man • the accused has no prior conviction • the accused has been working all his adult life • the accused graduated from high school • the accused benefits from the support of his family • the accused’s desire to work on personal issues including alcohol abuse, anger management and past traumas

• the accused has expressed regrets and remorses for most of his actions, especially for the events of March 2020. The analysis and appropriate sentence [ 45 ] The prosecution and defence have submitted numerous decisions.

The Court has carefully read all of them. [ 46 ] The Court, when deciding on the fit sentence for an aboriginal offender, has to take into account all circumstances including systematic and historic background factors related to the offender and to his community. [ 47 ] The Court has to keep in mind the recommendations of the Gladue report as well the principles set out by Supreme Court in Gladue [2] and Ipeelee [3] which impact the procedures and the sanctions for a Aboriginal accused. [ 48 ] In the present matter, the Gladue considerations may diminish the moral blameworthiness or culpability of the offender.

The fundamental principle in

section 718.1 Cr. C. states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 49 ] The offender is not required to prove a causal connection between the systemic or background factors of the offender and the offence. Instead, the court should focus on two questions: • To what extent do these factors impact on the moral blameworthiness of the offender? • To what extent do these factors impact on an appropriate sanction? [ 50 ] The Court also notes the importance of the principle set out in

section 718.2 (

e) Cr. C. whereby, in cases involving Aboriginal offenders, the Court should consider all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims or to the community. Specific attention must be paid to Aboriginal offenders. VULNERABLE VICTIM AND DOMESTIC VIOLENCE [ 51 ] But the court must also balance these principles with the duty of determining what is fit and proper for the victims. In R. v. L.P. [4] , the Court of Appeal mentioned: [71]

Section 718.2 (

e) of the Criminal Code “is a direction to sentencing judges to consider certain unique circumstances pertaining to aboriginal offenders as a part of the task of weighing the multitude of factors which must be taken into account in striving to impose a fit sentence”. [72] However, this provision should not detract from the judge’s “fundamental duty to fashion a sentence that is fit and proper in the circumstances of the offence, the offender and the victim” [emphasis added]. [75] Irrespective of whether domestic abuse or sexual violence occur in the Indigenous context, general denunciation and individual deterrence remain key considerations for preserving the confidence of victims in the criminal justice system. [76] In 2019, sections 718.04 and 718.201 were added to the sentencing provisions of the Criminal Code to further emphasize the need to give proper consideration and weight to the increased vulnerability of female victims in cases of abuse, with particular attention to the circumstances of Indigenous female victims. [ 52 ] Victims too, as an Inuk woman and victim, suffered or will suffer from policies of community dislocation, sedentarization, forced relocation, suicides or shootings in the community.

Historic, social and socio-economic realities clearly had intergenerational impacts in compromising their physical, mental, emotional, and spiritual health and her personal integrity as an Indigenous woman. [ 53 ] In R v AD [5] , the necessity to protect vulnerable female victims was reaffirmed: [25] The fundamental purpose of sentencing is to protect society (s 718). Unfortunately, there is clear and overwhelming evidence that, when it comes to protecting Aboriginal women from violence and discrimination, more needs to be done.

The homicide rate for Aboriginal women is six times that of non-Aboriginal women, and higher than the rate for non-Aboriginal men. Aboriginal women are almost three times more likely to experience violent victimization than non-Aboriginal women.

Compared with non-Aboriginal women, Aboriginal women are almost three times more likely to report being the victim of spousal violence and, compared with non-Aboriginal victims of spousal violence, Aboriginal women are more likely to have experienced spousal violence on more than one occasion. [26] The sad fact is that Aboriginal women are disproportionately affected by domestic violence and violence in general and this reality should inform the sentencing process if there is to be any hope of achieving the fundamental purpose of sentencing and meeting the objectives set out in

section 718 of the Criminal Code , which include denunciation and deterrence. [29] Taking the circumstances of Aboriginal victims into account in sentencing is consistent with the principles of sentencing, and arguably necessary in order to meaningfully achieve the fundamental purpose of sentencing, namely the protection of the public.

The circumstances of both the victim and the offender must be considered as relevant factors and, along with other relevant factors (e.g. aggravating and mitigating), be considered by the sentencing judge to arrive at a fit sentence. [ 54 ] Recently, as reminded by the Court of Appeal in R. v. Davidson [6] in regards of sentencing an offender for domestic abuse: [32] Moreover, the Court has emphasized on several occasions the added weight that must be given to the objectives of denunciation and deterrence in the context of domestic violence.

Indeed, sentencing in these matters pursues two main imperatives: first to denounce the unacceptable and criminal character of domestic violence and to enhance the confidence of the victim and the public in the administration of justice.”

[ 55 ] As highlighted by Judge Paul Chevalier, C.Q. in R v. Gordon [7] when referring to this decision from the Court of Appeal: [29] This is especially important in Nunavik where there is an alarming number of files for that type of crime on the Court’s dockets. [ 56 ] Justice Chevalier did impose a sentence of 4 years to an Inuk offender who had assaulted with a weapon his intimate partner (used a kind of basket) and choked her on another occasion. The offender had previous convictions for violent crimes and was serving a conditional sentence of imprisonment at the time of the infractions.

Judge Chevalier, when assessing the impact of the Gladue factors, mentioned: [37] The Court is fully aware of the Gladue factors that have affected the Inuit people and the accused. But Ms.

Savard Tukkiapik is also a victim of these factors that affect Inuit women who are much more often victims of domestic violence than non-Aboriginal women. [38] The Court is also fully aware that there is an over-representation of Inuit inmates in the different detention facilities. [39] But the Court has concluded that accused’s overall responsibility for the very serious crimes he committed was only slightly reduced by the Gladue factors and his personal factors. [40] The Court has also concluded that the aggravating factors overwhelmingly superseded the mitigating factors. [41] The importance that must be given to the objectives of denunciation and deterrence can only be met, taking into account the aggravating factors and accused’s responsibility for the very serious offences committed, by a lengthy term of imprisonment. [42] The necessity of separating accused from society is acknowledged, as previously said, by both counsels. [ 57 ] In R. v.

Qualingo [8] , Justice Renée Lemoine, C.Q. did convict an Inuk offender to a term of imprisonment of four (4) years for domestic violence and breach of a probation order. He had been convicted in part for violence in a conjugal context. Judge Renée Lemoine then reviewed many decisions related to Aboriginal offenders in a situation of domestic violence. She stated that: [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 [9] 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 1500 km 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 impact of 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-mêmes vécu est, de toute évidence, un facteur pertinent à prendre en considération au moment de déterminer la peine, tel qu’établi par la Supreme 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 les communautés 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. [ 58 ] Last year, in 2021, out of the 17 feminicides committed in the province of Quebec, 3 of them occurred in Nunavik. Sadly, this number is worrisome as the rate of conjugal violence is not decreasing.

SEXUAL ASSAULT [ 59 ] The sentencing range for sexual assault committed on a single occasion and one single victim will vary from short periods of detention up to penitentiary terms, but will normally include a period of incarceration. [ 60 ] The sentencing range for sexual offences established by Justice Robert Sansfaçon in R. c. Cloutier [10] was recognized by the Quebec Court of Appeal [11] . Accordingly, less serious sexual assaults are sanctioned by sentences of less than two years in prison. [ 61 ] In R. v.

L.P [12] , the Court of Appeal did reverse the judgment rendered by the Court of Quebec and did condemn an Inuk offender to serve a sentence of forty-four (44) months for violence and sexual assault against his intimate partner. The injuries sustained by the victim were horrific. The offender had a long history of violent domestic abuse against the victim. [ 62 ] In that same decision, the Court of Appeal reminded sentencing judge that: [90] In R. v.

Barton, the Supreme Court wrote that: “to better ensure Indigenous women and girls receive the full protection and benefit of the law in sexual assault cases, our criminal justice system should take reasonable steps to address biases, prejudices, and stereotypes against Indigenous women and girls openly, honestly, and without fear.” [13]

[91] Therefore, even before the enactment of sections 718.04 and 718.201 of the Criminal Code , the protection of vulnerable Indigenous women who were victims of abuse, whether or not in the domestic context, and the recognition of the suffering endured by these victims, were key considerations in sentencing offenders. [ 63 ] In R. v. Kritik-Langer [14] , Justice Legault did impose a term of imprisonment of 852 days for an Inuk offender, who had no prior conviction for sexual assault. He had forced himself twice the same night on his 19-year-old babysitter.

Justice Legault wrote: [99] For me, any sexual assault is a most serious infraction. Any sexual assault on a lady is a major societal and personal violation. Any sexual assault on an Aboriginal Female victim is also a major societal and personal violation of her personal rights. [100] This has to be so as a sexual assault is a targeted intrusion in the personal life of a victim notwithstanding her absence of consent. A sexual assault is inherently a violent, striking, humiliating, degrading, selfish, egocentric and belittling act on a person. It negates the alterity of the other person.

It negates the other person’s right to equality, to dignity, to freedom, to personal integrity and security and to respect and have a life of its own. The more intrusive the assault is, the more serious it is. Its seriousness must nonetheless be considered in context, in its specificity, in its impact, in its circumstances. recklessly discharging a firearm [ 64 ] In R. v. Vézina [15] , the offender, who was not aboriginal, was found guilty of intentionally discharging a firearm into or at a place, knowing that or being reckless as to whether another person was present in the place (section 244.2 (1)(

a) and (3) (b)). The offender mentioned that he wanted to kill himself and asked his spouse and her son to leave so he would not hurt them. When the police arrived, he refused to exit the house and said he wanted to shoot himself in the head. Police heard a total of 18 shots being fired before the accused came out. The sentencing judge found the mandatory minimum was totally disproportionate for the offender and therefore violated his

section 12 Charter right. The offender was sentenced to 90 days. [ 65 ] In R. v. Gunner [16] , the offender pleaded guilty to sections 244.2 (1)(

a) and (3) (b), 91(1)(

a) and (3)(b). At the time of the infractions, he was intoxicated and suicidal. When the police arrived at his apartment, he fired a shot at an officer. His three-year-old daughter was with him inside the apartment during the standoff with the police. Gladue factors applied. The sentencing judge considered the circumstance that the offender was a member of an indigenous community very far removed from the urban areas where federal penitentiaries are located. The offender was sentenced to 90 days. [ 66 ] In R. v. Neeposh [17] , the offender pleaded guilty to sections 244.2 (1)(

b) and (3) (

b) as well as sections 267 (a), 87(2)(

a) and 88(2)(a). After a fight with his ex-girlfriend, who told him to “go kill yourself,” the offender was intoxicated and suicidal while walking with a .12 caliber firearm outside his residence in a small northern Aboriginal community. Numerous shots were fired including three shots at a witness, who was uninjured. When confronted by a police officer, he pointed the firearm at the officer and then turned it toward his own chin. He then dropped the gun, which was empty of ammunition.

The sentencing judge emphasized on the Gladue factors, the collateral consequences of the sentence far from home and in a fundamentally different culture, and the uncertain and limited nature of general deterrence. The sentencing judge found the case was similar to Gunner and concluded the mandatory minimum violated

section 12 of the Charter . The offender was sentenced to 20 months or 600 days for the

section 244.2 (1)(

b) and (3)(

b) offences. [ 67 ] All these decisions were rendered by Quebec judges before the courts of Appeal of Alberta and Nunavut overturned findings of invalidity and held that the mandatory minimum punishment of four years is not “cruel and unusual punishment” and does not violate the

section 12 Charter rights of these persons. [ 68 ] In R. v. Hills [18] , the accused ingested large amounts of prescription medication and alcohol, then took a loaded rifle and ran outside toward complainant 1’s vehicle. The accused swung a baseball bat at the vehicle and fired a shot at the vehicle after which he walked to an unoccupied car and smashed its windows. Then he walked toward the home of complainants 2 and 3 and fired a round that went through their living room window.

The accused pleaded guilty to four offences: discharging a firearm at or into the complainants’ house, pointing a firearm at the occupant of a car, possession of a firearm without a licence, and mischief to property under $5,000. [ 69 ] The Court of Appeal of Alberta overturned the sentence and substituted a sentence of four years on the count of discharging firearm with intent or recklessness. [ 70 ] Justice Antonio stated: [83] As the appellate cases have pointed out, because of the serious potential harm from firearms and the greater need for deterrence, the penalty provisions of the Criminal Code reflect an elevated concern for offences involving firearms.

In Nur [19] , a 40-month sentence was imposed on a 19-year-old first offender who merely possessed a loaded firearm in a public place for a short period of time and did not discharge it or use it in a threatening manner. If 40 months was an appropriate sentence in the Nur case, then an additional eight months as a mandatory minimum penalty where a firearm was actually used does not amount to a grossly disproportionate sentence. [ 71 ] In R v.

Itturiligag [20] , a 24-year-old Inuk man and traditional hunter for country food, who had lived his entire life in Nunavut, intentionally fired his hunting rifle at the roofline of a house he knew to be occupied. Mr. Itturiligaq had previously gone to the house and repeatedly asked his girlfriend to go home with him. When she refused, he told her “he could get worse”; he then left on his skidoo and returned home to retrieve a rifle. Because he was angry at his girlfriend who was refusing to go home with him, he fired a single shot at the house. The bullet exited the roof and caused no injuries.

He was charged with intentionally discharging a firearm at a place, contrary to s 244.2 (1)(

a) of the Criminal Code . Mr. Itturiligaq, who had no criminal record, entered an early guilty plea. [ 72 ] The Court of Appeal of Nunavut did substitute the sentence imposed by the sentencing judge for a four-year penitentiary term. [ 73 ] Justice Schutz wrote regarding the seriousness of the offence:

[59] Even if Nunavut is not a “war zone” for gangs, as the sentencing judge put it, Nunavut has a pressing interest in deterring gun violence. Firearm violence is equally, if not more, grave and aggravating in the domestic relationship context and in small community settings where there are limited means of escape. [ 74 ] When reviewing what is the fit sentence for Mr. Itturiligaq, Justice Schutz mentioned the following: [86] A fit sentence proportionate to the gravity of this offence and Mr. Itturiligaq’s moral blameworthiness would be in the range of four years’ imprisonment in a penitentiary.

Persuasive case law supports this conclusion, including R. v. Lyta, 2013 NUCA 10 , 301 C.C.C. (3d) 486 (Nun. C.A.) [Lyta]; Oud; and R. v. McMillan, 2016 MBCA 12 , 326 Man. R. (2d) 56 (Man. C.A.) [McMillan]. [87] As stated in the reasons of Slatter JA (dissenting, but not on this point) in Lyta at paragraph 42 : This case concerns a new offence, which was recently introduced into the Code with a 4 year minimum. This minimum cannot be a reflection on prior sentences, but rather is an indication of the seriousness with which Parliament regards the newly created offence.

The seriousness is obviously a reflection of the grave risk that firing gunshots into occupied buildings can have, as reflected by the tragic consequences in cases like R v D. WC, 2013 ABPC 112 . [88] Echoing McMillan at paragraph 1 , Mr. Itturiligaq committed an offence of serious violence. The sentencing judge’s failure to impose a penitentiary sentence sends the wrong message. Significant penitentiary time is necessary to reflect society’s denunciation and condemnation of such conduct, particularly when it occurs in the domestic context.

Society expects a sentence that “will serve as a general deterrent to prevent others from acting so recklessly in the future.” A four-year sentence is a fit and proportionate sentence in the circumstances of this offence and this offender. [ 75 ] Justice Schutz then added: [91] We have reached the same conclusion here. Mr. Itturiligaq was an adult whose offending behaviour was “inherently dangerous and highly disruptive of the public peace”; the positive steps he has taken since the offence must necessarily be considered secondary to denunciation and deterrence.

The conduct caught under s 244.2 of the Criminal Code must attract a consistent response commensurate with Parliament’s deterrent objective. [92] Recognizing this offence occurred in a small, predominantly Inuit community in Nunavut, and that there are Gladue factors and Inuit Qaujimajatuqangit considerations, none of these factors operate to make the four-year mandatory minimum a grossly disproportionate sentence for this offence or this offender. (…) [ 76 ] In R v. Ookowt [21] , a 19-year-old Inuk man, fired a bullet at the victim house after having a fight with him.

The bullet shattered a window and missed striking the victim by mere inches. Mr. Ookowt entered a guilty plea to intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was present, contrary to s 244.2 (1)(

a) of the Criminal Code . Ookowt had no criminal record. [ 77 ] The Court of Appeal of Nunavut did also substitute the sentence imposed by the sentencing judge for a four-year penitentiary term. [ 78 ] Justice Schutz emphasized that “As stated in Itturiligaq, both of these appeals arose as a result of young men resorting to the use of hunting rifles in response to what they believed to be personal slights or problems in their personal lives. It is common for those who live in Nunavut’s communities to own rifles. They are used for subsistence hunting, supporting a traditional way of life.

Sadly, this also means they are often readily accessible for unlawful and dangerous purposes such as intimidation, revenge, domestic violence, and retaliation. This unlawful and dangerous conduct must stop.” [22] [ 79 ] Regarding the determination of a fit sentence for Ookowt, Justice Schutz indicated at paragraph 41: We accept the Crown’s submission that firearm-related offences are of the utmost gravity. Further, the mens rea requirement in s 244.2 of intentionally discharging a firearm with knowledge or recklessness as to whether others are present, speaks to high moral blameworthiness.

Denunciation and deterrence are paramount considerations on sentence, and factors personal to the offender are to be given less weight. As was observed in R. v. Nur, 2013 ONCA 677 (Ont. C.A.) at para 107 : “Mitigating factors personal to a particular accused necessarily [take] on a less significant role when fixing the appropriate penalty” for a firearm-related offence.

Further, as found in McMillan at para 20 , “ … when denunciation and general deterrence are the paramount sentencing considerations, the primary focus is on the offender’s conduct ( … discharging a firearm into a home), not the particular circumstances of the offender (victim of bullying). While personal factors remain relevant, they are to be given less weight.” [ 80 ] Justice Schutz pointed out that: [44] Mr. Ookowt very easily could have killed someone, namely Kenneth Arngna’naaq, and it was a matter of pure luck that he did not.

As noted in Morrisey at para 53: “There is no room for error when a trigger is pulled. If the gun is loaded, there is a sufficient probability that any person in the line of fire could be killed” (…) [52] We note that in none of these cases did the offender’s intoxication, youth, or Indigenous status or upbringing in Nunavut serve to substantially reduce their moral blameworthiness so as to justify a sentence below the mandatory minimum. [ 81 ] Considering the Gladue factors, the Appeal Court declared: [71] The sentencing judge found he could “take into account [Mr.

Ookowt’s] Gladue factors to temper the usual deterrence sentence for this type of crime”, immediately following which he determined that a sentence of two years less a day would be appropriate. However, he failed to explain why a sentence far below the mandatory minimum sentence of four years, and that imposed on other Nunavut offenders who committed similar criminal conduct, would meet the paramount need for denunciation and deterrence in this matter. He

also failed to state why such a lower sentence would be responsive to the “needs, experiences, and perspectives of Aboriginal people andtheir communities”: Ipeelee at para 74. The people of Nunavut, like people everywhere else in Canada, are entitled to be protected by thelaw and are entitled to be safe in their homes and communities, free from firearm-related gun violence. [82] And concluded that: [79] The need for denunciation and deterrence in these types of matters is equally, if not more important in Nunavut than in otherCanadian jurisdictions.

Hunting rifles are prevalent in Nunavut, and resorted to far too often for violent purposes. [83] The Court of Appeal of Quebec in R. v. Lapointe[23] regarding the rule of stare decisis expressed the following: [32] La jurisprudence identifie plusieurs conditions pour l’application du stare decisis vertical. D’abord, la décision établissant leprécédent doit provenir d’un tribunal hiérarchiquement supérieur. En effet, la logique inhérente au stare decisis vertical est rattachée enpartie au droit d’appel et repose sur une conception essentiellement hiérarchique de l’ordre judiciaire.

Cet aspect hiérarchique fait ensorte qu’un tribunal est lié par les décisions d’un autre tribunal qui lui est supérieur et qui fait

partie intégrante de la même hiérarchie quecelui-ci. C’est ainsi que la Cour supérieure est liée par les arrêts de la Cour et de la Cour suprême du Canada, mais non par ceux d’uneautre cour d’appel canadienne, malgré que ceux-ci puissent cependant être persuasifs, sans être liants. [84] This Court finds the decisions of the Court of Appeal of other provinces quite persuasive and compelling.

The social situation,challenges and problematic that Nunavummiut are facing and described by the Court of Appeal can easily be transposed to Nunavik.Therefore, the need for denunciation and deterrence is just as much pressing in Nunavik. THE SENTENCE [85] So denunciation and deterrence should prevail for these crimes. But it is clear for the Court that the moral blameworthiness ofthe accused is diminished when evaluating the Gladue and Ipeelee factors. But to what extent? [86] The repeated offences and their seriousness clearly require a sentence of detention.

The numerous breaches of conditions show areal lack from the offender to respect the authority. [87] As for recklessly discharging a firearm, the Court considers that it was deliberate and thought out as the accused had to retrievethe rifle from the shack before aiming at his girlfriend and shooting her. He was acting out of anger at her. The offender could haveeasily killed his intimate partner.

The Court also considers the fact that it was the second time the offender used a firearm when he wasangry at his girlfriend. [88] Regarding the crime of breaking and entering, the accused went through a window, at night, to sexually assault S.E. who wassleeping in her own bed, a place where she should feel safe and secure. Not only was her sexual integrity compromised but also herfeeling of safety at home.

The offender barely admits that his actions must have hurt or scared S.E when he sexually touched her andinsisted on having sex. [89] Although no evidence on the impact of these crimes on the victims was adduced, the Crown informed the Court how they werescared at the time of the infractions. S.E. did testify at trial on her fear and panic state. According to the Crown, it was a difficultexperience that still impacts her.

It is obvious to the Court that there will be long-term emotional and psychological consequences for allthe victims. [90] The accused has expressed wanting to address his problems and the Court can only encourage him to do so. Clearly, he hassome issues, particularly anger management, that he needs to resolve. But, multiples traumas and desire to amend himself cannot outweight all the aggravating factors. [91] The Court acknowledges the potential of rehabilitation and the steps made by the offender in that direction. But as stated in R.v.

Davidson[24]: [34] Moreover, even when an accused shows encouraging signs of rehabilitation, the objective of rehabilitation should not takeprecedence over the objectives of deterrence and denunciation in matters of domestic violence. As Rousseau-Houle, J. A., wrote : […] si la réhabilitation demeure un facteur important dans la détermination de la peine, elle ne doit pas, surtout dans un contexte deviolence conjugale, prévaloir démesurément sur les facteurs de dissuasion et d’exemplarité de la sentence. Madame la juge Wilson dansR. c.

Lavallée, (CSC), [1990] 1 R.C.S. 852, à la page 872, a rappelé « qu’il est difficile d’exagérer la gravité, voire latragédie, de la violence domestique. L’attention accrue portée à ce phénomène par les médias au cours des dernières années a faitressortir aussi bien son caractère généralisé que ses conséquences terribles pour les femmes de toutes les conditions sociales ». [92] If the accused is really serious concerning his desire to change, there will be resources available for him in a structuredenvironment to work with him before his return to Nunavik.

This will meet the objective of assisting in rehabilitating the offender withprograms adapted to his issues and, hopefully, to his culture. [93] A penitentiary sentence appears appropriate to respond to the various objectives, giving particular attention to the circumstancesof the accused, an Inuk offender and in accordance with the sentencing principles of proportionality and individualization. [94] Lastly, crimes committed at different times normally command consecutive sentences, but the Court also must bear in mind thetotality of the sentence for it not to become disproportionate nor too harsh in the circumstances.

[ 95 ] The Court concludes that the fit sentence is a global sentence of five (5) years of imprisonment. Concerning the accusation of recklessly discharging a firearm, the Court considers the mandatory minimum as fit. Consequently, there is no need to address the matter of the constitutionality of the minimum sentence. [ 96 ] Keeping in mind the principle of totality of the sentence, the Court will impose a lesser period of incarceration for the accusation of breaking and entering and committing a sexual assault that it would normally command. [ 97 ] The Court can only hope that the message will be heard.

Violence against an intimate partner will not be tolerated. It is such a flail in Nunavik. Unfortunately, too many lives have been lost. Sexual violence will also not be accepted either; women in Nunavik should feel safe, especially in their own residence. Finally, improper use of firearms must be stopped. Rifles should not be used for unlawful and dangerous purposes such as intimidation, revenge, domestic violence, and retaliation. [ 98 ] The breakdown of the different terms of imprisonment is listed in the table attached to this decision. [ 99 ] The Court prohibits the accused following

section 109 of the Criminal Code , for a period of ten (10) years to be in possession of any weapons as defined in that section, [ 100 ] The Court authorizes the taking of the number of samples of bodily substance that is reasonably required for the purpose of forensic DNA analysis within the delay of ninety (90) days. [ 101 ] The Court orders the accused to comply with the Sex Offender Information Registration Act for life. [ 102 ] Finally, the Court dispenses the accused from paying any cost or surcharge fine considering the incarceration.

Signed in Amos, on March 10 th ,2022 __________________________________ MARIE-CHANTAL BRASSARD, J.C.Q. Me Joanie Marion Attorney for the Crown Me Daphnée Creighton Attorney for the Defence Me Alexandre Duval Attorney General of Quebec Date of hearing: January 25,26 and 27, 2022 Files numbers Count Accusations Sentence 635-01-018513-193 1

Section 264.1 (1) a) (2)

b) Cr. 90 days concurrent 3 Section 87

(2) b) of the Cr. c. 365 days concurrent 635-01-018590-191 1 Section 145

(3) b) of the Cr. c. 90 days concurrent

635-01-018608-191 1 Section 145

(3) b) of the Cr. c. 90 days concurrent 3

Section 129

a) e) of the Cr. c. 90 days concurrent 635-01-019002-204 1 Section 145

(3) b) of the Cr. c. 90 days concurrent 635-01-019147-207 3

Section 244.2 (1)

b) and (3)

b) of the Cr. c. 1460 days (4 years) less preventive custody (619 days at a ratio of 1.5, which totalize 929 days) for a total of 531 days DNA 109 5

Section 267

a) of the Cr. c. 365 days concurrent DNA 109 9 Section 145

(5) a) of the Cr. c. 90 days concurrent 10 Section 145

(5) a) of the Cr. c. 90 days concurrent 11 Section 145

(4) a) of the Cr. c. 90 days concurrent 12 Section 145

(4) a) of the Cr. c. 90 days concurrent 635-01-019324-202 1 Section 145

(1) a) of the Cr. c. 90 days concurrent 2 Section 145

(5) a) of the Cr. c. 90 days concurrent 635-01-020541-216 1 Section 145

(5) a) of the Cr. c. 90 days concurrent 635-01-019535-203 1 Section 348

(1) b) d) of the Cr. c. 365 days consecutive DNA 109 Sex Offender Act 4 Section 145

(5) a) of the Cr. c. 90 days concurrent 5 Section 145

(5) a) of the Cr. c. 90 days concurrent 6 Section 145

(5) a) of the Cr. c. 90 days concurrent 7 Section 88

(2) a) of the Cr. c. 365 days concurrent 109 Files numbers Count Accusations Sentence 635-01-020550-217 1 Section 88

(2) a) of the Cr. c. 365 days concurrent 109 2 Section 145

(5) a) of the Cr. c. 90 days concurrent 3 Section 145

(5) a) of the Cr. c. 90 days concurrent Total: 1825 days (5 years) – 929 days= 896 days as of today