2022 QCCQ 3303, 2022 QCCQ 3303

R. c. Papak 2022 QCCQ 3303 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF KUUJJUAQ “Criminal Division” No: 635-01-020072-212 635-01-020105-210 DATE: May 31, 2022 ________________________________________________________________ UNDER THE PRESIDENCE OF HONOURABLE PAUL CHEVALIER J.C.Q. ________________________________________________________________ THE QUEEN Plaintiff v. PETER PAPAK Accused SENTENCE NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the victim ( sec. 486.4 of the Criminal Code ) [ 1 ] Mr.

Peter Papak pleaded guilty, on May 25, 2022, in file 635-01-020072-212, to have, in Kuujjuaq on December 8, 2020, assaulted Ms. L. A. (sec. 266

a) Cr. C, count No.1) and to have sexually assaulted her (sec. 271

a) Cr. C., count No. 3). [ 2 ] On the same date, he pleaded guilty, in file 635-01-020105-210, to have, in Kuujjuaq between January 5 and January 20, 2021, intentionally attempted to obstruct the course of justice by asking Ms. A. to drop the charges (sec. 139

(2) b) Cr. C., count No. 1) and to have failed to comply to a condition of an undertaking by communicating with Ms. A. while he was ordered to abstain from doing so (sec. 145

(4) a) Cr. C., count No.2). THE FACTS [ 3 ] At the sentencing hearing, the parties filed a document titled AGREED FACTS which recognizes as proven that on December 8, 2020, accused, Ms. L. A. and Ms. E. Ad. where drinking together at Ms. Ad.’ house. Accused and Ms. A. continued to drink when

Ms. Ad. fell asleep on the couch. At one point, accused touched Ms. A.’s left leg for 5 to 10 seconds. He got closer to her and asked to kiss her. She refused, accused stopped touching her and slapped her once. [ 4 ] It is also admitted that on December 9, 2020 accused received a condition not to communicate with Ms. A.. Between January 5 and January 20, 2021, accused saw Ms. A. at the Coop store, said “Hi” to her and in his own words asked her to drop the charge. He had heard other people in the community using the expression “drop the charges” in order to settle a dispute and move on.

He “did not understand at the time that it was not OK to ask that to Ms. A.”. THE PARTIES’ SENTENCING SUBMISSIONS The prosecution [ 5 ] Crown counsel asks the Court to impose on accused a sentence of imprisonment of six (6) years, less the time spent in preventive custody. Such a sentence is justified by accused’s previous convictions, among which six (6) for sexual assault on six (6) different female victims since he is an adult. The last sentence, in 2013 for a similar offence, was sixty (60) months of imprisonment.

Crown counsel also relies on different “correctional plans” and “progression reports” prepared during accused’s last sentence that considered that accused presented a high risk of reoffending for the same type of crime. The Defence [ 6 ] Defence counsel considers that a fit sentence would be a term of imprisonment of two (2) years less one (1) day, less the time spent in preventive custody, followed by a three year supervised probation. She relies on Dr. Alain Ptito’s report, who conducted a neuropsychological examination on accused, and on Dr. Joseph Beltempo’s psychological assessment report concerning Mr.

Papak. Those reports shed light on accused’s intellectual limitations and cognitive deficits. [ 7 ] Such sentence would allow accused to follow some programs in Inuktitut since he would serve his sentence in the provincial detention center of Saint-Jérôme, and he would then be able to better understand. He did not benefit from the programs offered by the federal Correctional Services because they were in English, a language that accused does not master. ANALYSIS Accused’s personal situation [ 8 ] Mr.

Papak is a forty-one (41) years old Inuk who was given up for adoption by his biological parents to his maternal great-grandmother who brought him up until she died when he was around nineteen (19) years old. He then grew up with his uncle Billy Papak.

[ 9 ] As a child, he grew up in an environment of alcohol and violence, was mistreated by his older brothers, was once sexually touched by [...] and was victim of bullying at school and at home. In Secondary 1 and 2, he attended the IPL program because he had developed behavioural problems at school, but he eventually dropped out and did not learn much there. [ 10 ] He started using marijuana at the age of seventeen (17) and continued whenever he could get some, stating that he has no problem with that drug.

He started drinking alcohol when he was eighteen (18) years old but has been using it regularly since he is twenty (20) [1] . [ 11 ] In 2000, he had an ATV accident which caused skull fractures, facial bone fractures, clavicle fracture, vertebras fractures, hearing problems. While he was treated in Montréal, Dr. Joanne LeBlanc noted that he presented with “moderate to severe cognitive-communication deficits involving auditory, memory and comprehension, verbal organization and reasoning and mental flexibility” [2] . Dr.

Sylvie Houde noted that accused showed certain cognitive troubles: his visual attention was effected, the treatment by him of visual information was limited, he had troubles in planning and organizing, there was a significant reduction of his capacity to make a calculation, he had difficulty to comply with certain instructions and to understand conceptual questions even in Inuktitut [3] . [ 12 ] While Dr. Houde considered that the cognitive deficits she observed were likely linked with the accident, Dr.

LeBlanc warned that the limitations and deficits observed might also have been “influenced by [accused’s] pre-morbid level of functioning given his educational history, his level of mastery of the English language as well as his current hearing loss” [4] . [ 13 ] The neuropsychological assessment and the psychological assessment made in 2022 both concluded that accused has “an intellectual disability with considerable cognitive limitations spread across numerous areas” [5] . [ 14 ] In Kuujjuaq, accused was living at his uncle Billy Papak’s place, where he intends to go back after being released.

He has a son but has no relationship with him, has not spoken to him for a long time and does not even know his phone number. He has no relationship with a partner or a girlfriend.

THE SENTENCING PRINCIPLES [ 15 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 16 ] The objective gravity of the offences committed by accused, which is the maximum penalty attached to each of them, is as follows: for the sexual assault, accused is liable to an imprisonment of ten (10) years; for the assault, five (5) years; for obstructing the course of justice, ten (10) years and for failing to comply with a condition of an undertaking, two (2) years. [ 17 ] The subjective gravity relates to the circumstances of each offence.

The sexual assault committed by accused is certainly at the low end of a scale of gravity of sexual assaults. Touching the left leg of a victim for five (5) to ten (10) seconds, getting closer to ask for a kiss and removing the hand when facing a refusal is far from being a very serious sexual assault.

[ 18 ] The assault consisted of a single slap, which cannot be considered as a very serious assault. [ 19 ] Asking a victim to “drop the charge” and therefore obstructing the course of justice is a very serious offence because, as the Ontario Court of Appeal said, “it strikes at the very soul of the judicial system” [6] . [ 20 ] Failing to comply with a condition of an undertaking is certainly a serious offence because it shows a total contempt for Court orders. [ 21 ] An accused’s degree of responsibility corresponds to his moral culpability.

It varies according to the harm he intended to cause, or to his degree of recklessness or wilful blindness as to the consequences of his acts [7] . [ 22 ] To assess that moral culpability, the Court must consider “the unique systemic or background factors which may have played a

part in bringing [accused] in front of the courts” [8] as well as “those related to the [accused’s] personality, and the consideration of these factors should not be limited to the period during which the offence was committed” [9] . [ 23 ] The Court is fully aware that it must take judicial notice of the systemic and background factors that affected Aboriginal people to determine if they can affect accused’s moral culpability [10] . [ 24 ] Colonialism, displacement and residential schools had the following impacts on the population of Nunavik: “alcohol and drug abuse, domestic violence, sexual harassment, suicidal tendencies, criminality and dropping out of school” [11] .

Accused unfortunately has all these characteristics which surely affect his moral culpability. [ 25 ] The traumatic brain injury (TBI) sustained by accused in 2000 has likely resulted in sexual disinhibition which in turn may cause sexually inappropriate behaviour. According to Dr. Ptito, “personality changes, memory and judgment deficits, lack of impulse control and poor concentration are all common issues following multiple head injuries of the kind [accused] sustained” [12] . [ 26 ] Dr.

Ptito also affirms that “acting without thought of the consequences is considered by many to be a cardinal feature of altered personality after TBI. Impulsive decision making and poor social judgment are often accompanied by shallow affect and a lack of concern for social values, usually associated with right hemisphere prefrontal injury” [13] . [ 27 ] On August 2013, a psychological assessment performed in the penitentiary confirmed his cognitive distortions. The psychologist even mentioned that the conclusions of his assessment were similar to another assessment that had been performed in 2006 [14] .

On November 23, 2016, a Correctional Plan was prepared to tackle accused’s difficulties with Cognitive Functioning, Interpersonal/Social Skills, Attention/Concentration, Impulsivity and Communication Abilities [15] because they were still present. [ 28 ] The Court is also fully aware of the lack of adequate and specialized professional resources in Nunavik. Dr. Beltempo, who has “19 years experience doing psychological assessments with Inuit individuals” [16] , affirms that “If it was not for the lack of accomodations, appropriate help and follow-ups for Mr.

Papak’s cognitive limitations in Kuujjuak, it would likely led to a different life outcome (fewer criminal behaviors). Had

Mr. Papak received an adapted individualized program suited for his special needs, it would likely have reduced his criminal behaviors” [17] . [ 29 ] When accused sexually assaulted Ms. A., he had been drinking. He acted impulsively, having little insight into the consequences of what he was doing on account of his intellectual limitations and cognitive deficits. There is therefore a direct connexion between his condition and the offence he committed.

His moral culpability is clearly reduced and he must not bear a full responsibility for this sexual assault. [ 30 ] The same conclusion applies to the assault he committed impulsively when being refused to kiss his victim. [ 31 ] Even though accused committed the actus reus of the offence of obstructing justice by asking his victim to drop the charge, he “did not understand at the time that it was not OK to ask that to Ms. A.” [18] .

His moral culpability is therefore very limited. [ 32 ] In doing so, he clearly breached a condition of an undertaking, but without foreseeing the legal consequences, due to his condition.

Once again, his responsibility is reduced. [ 33 ] The Court has therefore to impose sentences for offences which are objectively serious, but have subjectively a limited gravity, and for an accused whose responsibility is reduced. [ 34 ] A sentence must be adapted to the aggravating and mitigating circumstances relating to the offences or the offender. [ 35 ] Among the aggravating factors are his numerous previous convictions [19] .

He has been convicted in the past, among others, for six (6) sexual assaults on six (6) different victims, for seven (7) offences of breaking and entering, for six (6) breaches of an undertaking, for nine (9) breaches of a probation order. [ 36 ] The risk of recidivism he presents is another aggravating circumstance. [ 37 ] While serving his last sentence, accused was assigned to the Moderate Intensity Sex Offender ADAPTED Program but was suspended because he cumulated many unjustified absences and when he attended, he displayed poor motivation and participation [20] . [ 38 ] It brought his Correctional Program Officer to conclude that “his risk factors were unchanged from before the program” and that he needed a lot of improvement to “solve problems and cope with challenges effectively; to use thinking and behavioral skills to manage emotions; to manage impulse and temptations; to manage problematic sexual fantasies and arousal and increase appropriate fantasies and arousal; to manage thinking that supports substance abuse” [21] . [ 39 ] It is however important to consider Dr.

Beltempo’s remarks that accused “attended programs in the federal correctional system, but they were given in English and not in Inuktitut”, that “most of the time, [accused] tends to agree when he does not fully understand” [22] and that he “could not understand or engage in [the different correctional programs] because they were not adapted to his [special] needs” [23] .

[ 40 ] Apart from the opinion of the correctional officers, it is to be noted that accused committed almost every offence for which he was convicted in the past while he was under a Court condition. The lack of insight into the sexual assaults committed by him is highly relevant to his potential of future dangerousness [24] and is another indicator of the risk of reoffending he presents.

The Court considers therefore the risk of recidivism as being high if nothing is done to reduce it. [ 41 ] The fact that accused is aware that consumption of alcohol was a problem, since he was blaming it to explain his deviant sexual behaviors [25] , but returns to the same pattern whenever he is released is normally an aggravating factor [26] .

The Court however has to consider accused’s intellectual limitations and cognitive deficits and grant this factor a reduced weight. [ 42 ] The vulnerability of the victim, an Inuit woman, who had also consumed alcohol, is an aggravating circumstance [27] . [ 43 ] The guilty plea registered by accused is a mitigating circumstance . [ 44 ] Accused’s intellectual limitations and cognitive deficits is also a mitigating factor.

It explains why “he has difficulty generalizing and learning from his past experiences and requires a certain level of structure, consistency and supervision” and why “he needs an environment where most decisions are made for him so as to reduce the misunderstanding of situations” [28] . [ 45 ] The support that his uncle Billy Papak and other members of his family in Kuujjuak will be ready to offer him when he will be released is another mitigating factor. [ 46 ] The fact that, at last, some adapted individualized programs suited for accused’s special needs have been identified and could be offered to accused to reduce the risk of reoffending is a mitigating circumstance [29] . [ 47 ] The fact that accused, contrary to the attitude he displayed when he was detained, is open and willing to participate in such programs [30] is also a mitigating circumstance. [ 48 ] The sentencing principle of parity in sentences has no application here on account of accused’s very particular situation as well as the very particular circumstances of the offences.

THE SENTENCING OBJECTIVES [ 49 ] The objectives of denunciation and deterrence should normally be given paramount importance when sentencing an offender for a sexual assault [31] , especially when it has been committed against a vulnerable Inuit woman [32] . But it is well recognized that when an accused person has mental health problems, emphasis must be put on his rehabilitation and treatment rather than on punishment [33] . [ 50 ] The objective of separating accused from society is nonetheless necessary since past sentences did not succeed to deter him from reoffending [34] .

It is also necessary at least to allow him to start preparing himself adequately to his release and to start having some counselling in Inuktitut, which should be available in the Saint-Jérôme detention facility.

[ 51 ] The objective of assisting in his rehabilitation is important, considering his intellectual and cognitive problems which may be significantly reduced with the appropriate programs and counselling that have been identified. [ 52 ] Repairing the harm done to the victim and the society will never be achieved, whatever the sentence that can be imposed. [ 53 ] Promoting a sense of responsibility in accused and acknowledgment of the harm done will hopefully be achieved with the proposed programs and counselling if accused actively participates, as he expressed his desire to do so.

This is a relevant objective that has to be given importance because it can reduce his risk of reoffending. THE APPROPRIATE SENTENCE [ 54 ] The sentence suggested by the Crown relies on accused’s last sentence for a sexual assault, sixty (60) months of imprisonment, and on the principle of gradation of sentences [35] . [ 55 ] It is important to remember that this principle of gradation of sentences is not an immutable one [36] . [ 56 ] Moreover, it is important to stress that this last penitentiary sentence was the result of a joint submission which lasted 35 minutes in court.

The sexual assault consisted then of touching the victim on her genitalia over her clothes when she was sleeping, and accused left when she woke up. The Court did not have the benefit of the assessments made in the present files and could not then take into consideration accused’s deficits and limitations. [ 57 ] The principle of gradation of sentences cannot therefore be considered as applicable in the present files. And a sentence of six (6) years of imprisonment is excessive when we consider the gravity of the offences and accused’s responsibility.

The mitigating circumstances, mainly accused’s limitations and deficits, and the importance to give to treatment and rehabilitation warrant a more lenient sentence. [ 58 ] A sentence of two (2) years les one (1) day of imprisonment, as suggested by the Defence, overemphasizes the objective of rehabilitation and minimizes the importance that must be attributed to the objectives of denunciation and deterrence and to the aggravating factors. [ 59 ] The appropriate range of sentences for sexual assaults has recently been confirmed by the Court of Appeal [37] and, with the present circumstances, an appropriate sentence should be between two (2) and six (6) years of imprisonment. [ 60 ] Despite the fact that accused has to be sentenced for a seventh sexual assault, a sentence of thirty (30) months of imprisonment, or 882 days, is a fair and just sentence that takes into consideration all the relevant sentencing principles and objectives. [ 61 ] Accused has been preventively detained from March 9, 2021 to May 31, 2022, for a total of 449 days.

According to sec. 719

(3.1) Cr. C., he must be credited one day and a half for each day he spent in preventive custody, which is 674 days. It is therefore a total of 208 days of imprisonment that accused will have to serve, starting today.

CONCLUSION [ 62 ] In file 635-01-020072-212, for having sexually assaulted L. A. (count No. 3), the Court orders that accused serve 208 days of imprisonment, the remaining of the sentence of thirty (30) months that he deserves after taking away the time spent in preventive custody. [ 63 ] For assaulting L.

A. (count No. 1), accused is sentenced to a term of imprisonment of three (3) months, sentence to be served concurrently with the sentence imposed on count No. 3. [ 64 ] In file 635-01-020105-210, for having attempted to obstruct the course of justice (count No. 1), accused is sentenced to a term of imprisonment of three (3) months considering the low level of his moral culpability.

This sentence will be served concurrently to the sentence imposed in file 635-01-020072-212. [ 65 ] For failing to comply with a condition of an undertaking (count No. 2), accused is sentenced to a concurrent term of imprisonment of three (3) months. [ 66 ] These sentences of imprisonment will be followed by a probation order which will be in force for a period of three (3) years with the following conditions: - keep the peace and be of good behaviour; - appear before the Court when required ; - report to a probation officer within two working days upon his return in his community and thereafter when required by the probation officer; - notify the probation officer in advance of any change of name or address, and promptly notify him or her of any change of employment or occupation; - abstain from communicating directly or indirectly with L.

A.; - abstain from going to any place where she could reside, work or be present; - comply with his probation officer’s instructions regarding his alcohol and drug abuse issue and his sexual deviancy issue; - under the supervision of his probation officer and with the help of Social Services, comply with the probation officer’s instructions regarding the following recommendations made by the psychologist [38] : 1. Get in place structure, supervision and consistency with appropriate accomodations for his limits; 2.

Obtain the help of a counsellor who can gain his trust, account for his culture and cognitive limitations. Subsequently, when he can talk about himself, he would be able to start feeling and then eventually be able to trust people; 3. Even though his level of motivation is sufficient and despite his concrete and cognitive limitations, be guided in terms of psychoeducation about the advantages of gaining help from others (i.e. motivational interviewing) and being able to trust; 4. Engage with an Inuit interpreter because best results are obtained from that process; 5.

Have a regular follow-up with a psychologist to discuss and improve distorted attitude and cognitions about women; 6. Accept to be referred to the Centre de Réadaptation en Déficience Intellectuelle,

CRDI for social, emotional and adaptive support services in the long run. It is recommended that a CRDI counsellor be provided along with an interpreter, so that accused fully understand what is expected of him. [ 67 ] In file 635-01-020072-212 on count No. 3, the Court is making the order under sec. 109 Cr. C. prohibiting accused from having in his possession any firearm, ammunition and restricted or prohibited weapons for life. [ 68 ] On that same count, the Court is making the order under sec. 487.051

(1) Cr. C. for the taking of accused’s bodily substances for DNA analysis, substances that will have to be taken within sixty (60) days. [ 69 ] On that same count , the Court is ordering accused, under sec. 490.012

(1) Cr. C., to comply with the Sex Offender Information Registration Act for life. [ 70 ] Accused is dispensed from paying the fine surcharges considering his lack of resources. ________________________ PAUL CHEVALIER, J.C.Q. Me Jérémie Brault, for the Crown Me Isabelle Martineau for the accused Dates of hearing: May 19 and 25, 2022