2023 QCCQ 1397, 2023 QCCQ 1397

R. c. Snowball 2023 QCCQ 1397 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF KUUJJUAQ Criminal Division No: 635-01-020009-214 DATE: March 31, 2023 ______________________________________________________________________ BY THE HONOURABLE MARIE-CHANTAL BRASSARD, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecution v. JACOB SNOWBALL 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. [ 1 ] The accused has pleaded guilty on August 19, 2021, to the following accusation: On or about October 30, 2020, in Kuujjuaq, district of Abitibi, did commit a sexual assault on G.L. (1994-[...]), committing thereby indictable offence provided by

section 271

a) of the Criminal code . THE FACTS [ 2 ] At night, the accused was drinking with friends at house [...]. The victim, the former girlfriend of the accused, lives at that house. [ 3 ] When the victim arrived home, she went to her room to sleep. She was alone and fully dressed. [ 4 ] Few hours later, she woke up naked. The accused was having intercourse with her, without her consent. [ 5 ] The accused eventually left the room and the house. [ 6 ] The victim went to the hospital on the same day.

The presence of the accused’s DNA was identified by the experts in the samples collected at the hospital. [ 7 ] The accused has no recollection of the sexual assault. He blacked out. THE OFFENDER [ 8 ] The accused is a 33-year-old Inuk man. He lives in Kuujjuaq with his grandmother. He has no children and is not involved in a romantic relationship. He has a full-time job. He has no prior conviction. THE PRE-SENTENCE REPORT [ 9 ] The accused grew up in Kuujjuaq with his parents. He had a happy childhood. He played hockey. He graduated from high school. He had a steady job.

He was involved romantically with the victim for a few months. [ 10 ] After the breakup with the victim, he drank alcohol more often and lost control of his drinking. [ 11 ] He does not recall the sexual assault. His last memory is him passing out on the couch. He is very sorry for what he has done to the victim. His level of awareness, responsibility and empathy towards the victim are adequate. [ 12 ] The accused has the support of his family. He has good values.

[ 13 ] He has an addiction to alcohol and has yet addressed the problematic. He would like to attend Isuarsivik Center. He has since reduced his consumption and now drinks six beers a day to help him sleep. [ 14 ] According to the probation officer, the accused has functioned adequately most of his life and seems to have the necessary mobilization to pursue his personal development. The risk of recidivism is low. THE GLADUE REPORT [ 15 ] The Gladue report does provide more information regarding the personal situation of the accused and his family history.

Although the information is more detailed than the presentence report, the overall picture is quite similar. [ 16 ] The relationship with the victim prior to their breakup is described as not problematic: no argument, no fight. They parted on good terms. [ 17 ] The accused currently lives at his grandmother. He has the support from his family. His brother Larry spends a lot of time with him. The accused has been working since he was 16 years old. [ 18 ] Regarding alcohol, the has reduced his consumption since the sexual assault. Only beers now, no hard liquor.

He does drink to calm himself when stressed or nervous. [ 19 ] He has numerous skills and strengths. He is well connected with his Inuit culture and his community. He is involved in different events (sled dogs, Inuit Games, Arctic Games, baseball, hockey). [ 20 ] He does not remember the sexual assault, but he feels ashamed. [ 21 ] He wants to continue to be active for his community.

He would like to attend Isuarsivik Recovery Center to explore the causes of his drinking and strategies to control excessive consumption. [ 22 ] The accused is willing to work with the Justice Committee and to volunteer with the Hunter Support .

PROSECUTION AND DEFENCE POSITION [ 23 ] The prosecution is asking for a global sentence of two (2) years less one (1) day of imprisonment taking into consideration the vulnerability of the victim, the fact that she was violated in her own house by a former intimate partner and the significant impact this abuse of trust had on her. [ 24 ] The defence is of the opinion that the fit sentence should be a conditional sentence of eighteen (18) months. This sentence would be proportionate to the responsibility and moral blameworthiness of the accused.

A conditional sentence would still achieve the purpose of denunciation and deterrence. SENTENCING PRINCIPLES AND PURPOSES [ 25 ]

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.” [ 26 ]

Section 718.1 of the Criminal Code acknowledges that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 27 ]

Section 718.201 of the Criminal Code enacts 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.” [ 28 ]

Section 718.04 of the Criminal Code 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 when the victim is vulnerable because of personal circumstances including because the person is Aboriginal and female.” [ 29 ] Finally,

section 718.2 of the Criminal Code 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 (…) o (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, o (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, o (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, o (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (…) • (

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.” [ 30 ] Some of the purposes 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 committed a sexual assault on an intimate partner; • on a vulnerable victim; • the sexual assault is a complete intercourse; • the victim was sleeping in her bedroom; • it is a violation of the victim’s house; • it is a breach of trust; • the important consequences on the victim.

THE MITIGATING FACTORS • the plea of guilt; • the absence of prior conviction: • the accused has a stable situation (housing and job); • the accused has shown remorse and empathy towards the victim; • the accused awareness and responsibility regarding his actions and the victim; • his collaboration with the redactors of the reports; • he has the support of his family and friends; • he has respected the conditions of his undertaking; • the high level of introspection; • his willingness to attend therapy for alcohol abuse, to work with the Justice Committee and to volunteer with the Hunter Support; • the low risk of recidivism.

ANALYSIS Aboriginal offender [ 31 ] 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. [ 32 ] The court has to keep in mind the recommendations of the Gladue report as well as the principles set out by the Supreme Court in Gladue [1] and Ipeelee [2] which impact the procedures and the sanction to the Aboriginal accused. [ 33 ] 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. [ 34 ] 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? [ 35 ] 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 victims or to the community. Specific attention must be paid to Aboriginal offenders. Aboriginal Victim [ 36 ] But the court must also balance these principles and objectives with the duty to determine what is fit and proper for the victims. In R. c. L.P . [3] , the Court of Appeal, concerning

section 718.2 (

e) of the Criminal Code , mentioned: [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. [ 37 ] 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. [ 38 ] Still in R. c. L.P . [4] , the Court of Appeal stated: [123] There are some serious offences and some offenders for which and for whom the aforementioned goals of deterrence, denunciation, and separation remain fundamentally relevant.

In cases of sexual violence against Indigenous women, the Gladue factors affecting the offender have to be weighed against the necessity to give appropriate consideration to the historical and systemic circumstances of Indigenous women victims of sexual violence in the domestic context, the whole to meaningfully achieve the fundamental purposes of sentencing and the protection of the public. [ 39 ] 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. (…) [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. [ 40 ] Unfortunately, every court week, we see an alarming number of offenders recognizing their guilt or being found guilty of crimes of sexual nature.

Inuk women are disproportionately victims of violence. [ 41 ] In R v Kolola [6] , the Nunavut Court of Appeal did state: [28] The prevalence of sexual violence against women in Nunavut has been known for many years and trial judges are in the best position to assess and observe the magnitude of the problem in their jurisdiction: Lacasse at para 95.

Similarly, it falls within the sentencing judge’s role to assess the gravity of an offence with a contemporary and informed understanding of the harm experienced by victims: Friesen at paras 76–94. [29] The sentencing judge did not err by seeking to emphasize the nature, severity, and impact of sexual violence on women in Nunavut in the sentencing process.

These are pressing societal challenges in Canada and in Nunavut, and it is an ongoing challenge to address and remedy the failings within the criminal justice system in this area: R v Barton , 2019 SCC 33 at para 1 . [30] Denunciation has long been a primary principle in sentencing for offences of sexual violence. The objective of denunciation is to communicate society’s condemnation of an offender’s conduct and is a means of expressing society’s values: R v CAM , 1996 SCC 230

at para 81 . The sentencing judge’s reasoning, while not best phrased in terms of repairing a public perception, was not erroneous. It was open to him to consider whether the sentence would appropriately communicate the courts’ view of the gravity of sexual violence. [ 42 ] The court must sadly conclude that too many women in Nunavik are suffering from the consequences of sexual abuse. Sentences imposed to Indigenous offender for sexual crimes [ 43 ] In R. v.

L.P . [7] 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. [ 44 ] In R. c. Kritik-Langer [8] , Justice Louis Legault did impose a term of imprisonment of 852 days to an Inuk who has committed a sexual assault. He had no prior conviction for similar crime.

He had forced himself twice the same night on his 19-year-old babysitter. [ 45 ] In R. c. Papak [9] , Justice Paul Chevalier did sentence an Inuk offender to a term of 30 months. Papak had been convicted 6 times for sexual assault and was last sentenced to 60 months of imprisonment.

The facts were of a lesser gravity than the previous offences for which he was convicted. [ 46 ] Although the court stated that the objective of denunciation and deterrence should normally be given paramount importance, Justice Chevalier did consider the reduced responsibility of Papak based on a brain injury that left him with cognitive limitations and the systemic factors that had impacted the accused. [ 47 ] In R. c.

Kanatewat [10] , Justice Louis Legault did condemn an aboriginal offender to a jail term of 18 months for a sexual assault committed on an Aboriginal victim who did sustain important emotional consequences. The subjective gravity of the sexual assault warrants certainly a sentence of jail that symbolizes strongly denunciation and deterrence as well as isolates in the present circumstances [11] . [ 48 ] To summarize, denunciation and deterrence should prevail for these crimes.

It is clear for the Court that the moral blameworthiness of the accused is diminished when evaluating the Gladue and Ipeelee factors but not to the point that it detracts the Court from focussing on the fundamental purpose of sentencing: protection. Objective of Rehabilitation [ 49 ] Even with encouraging signs of rehabilitation, the objective of rehabilitation should not take precedence over the objectives of deterrence and denunciation [12] . This is particularly true when the rehabilitation is incomplete.

Although this was indicated by the Court of Appeal in a different context, it may echo for an Indigenous offender. [ 50 ] The accused has yet addressed his alcohol addiction. He has recently applied to Isuarsivik Center and is on the waiting list. He had not made any other step to undergo therapy since he has pleaded guilty in August 2021. Rehabilitation is not complete. [ 51 ] The willingness of the accused to attend the Recovery Center is clearly a step in the right direction. But it cannot be given greatest weight than the goals of deterrence and denunciation. [ 52 ] Recently in R. c.

Houle [13] , the Court of Appeal came to that same conclusion: [55] (…) La preuve démontre que les objectifs de dissuasion spécifique, de réinsertion sociale et de responsabilisation sont en bonne voie, mais l’objectif de dénoncer la violence sexuelle et le voyeurisme ainsi que le tort causé aux victimes pèsent lourd, en plus de l’objectif de dissuasion générale. Enfin, le principe de l’harmonisation des peines milite en faveur d’une peine d’emprisonnement. Denunciation and Deterrence Versus Conditional Sentence Order [ 53 ] Since November 2022, the provisions of the Criminal Court have been amended.

Therefore, a sexual assault offence prosecuted by way of indictment is no longer automatically excluded from the possibility of a sentence of a conditional jail term. [ 54 ] The Court when imposing a sentence of imprisonment of less than two (2) years may order that the offender serve the sentence in the community if the court is satisfied that it would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out it sections 718 to 718.2 of the Criminal Code . [14] [ 55 ] The court also bears in mind it should consider all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community. [15] [ 56 ] Is a conditional sentence consistent with the fundamental principles of sentencing set out in the Criminal Code ?

Jail is not called for to satisfy the principle of specific deterrence or rehabilitation in the accused’s case. It is, however, called for to meet the principles of general deterrence, denunciation and to hold the accused accountable for the harm he has caused. [ 57 ] The need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct. The same is true of deterrence, there may be circumstances in which the need for deterrence will warrant incarceration [16] . [ 58 ] In R. v.

A.J.K [17] , the Ontario Court of Appeal did provide guidance with the approach to take when sentencing an offender for a sexual offence: [74] All sexual assaults are serious act of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or

strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones. [75] As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen , the court noted, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and I would add, is continuing to deepen: see also R. v. Goldfinch, [2019] SCC 38 at para. 37. As Moldaver J. stated in R. v.

Barton, [2019] SCC 33, at para. 1: “without a doubt, eliminating…sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled. [ 59 ] In Nunavik, the prevalence of sexual violence against women is well known by the Court. It is a sad fact that too many women have been sexually violated.

The rising numbers of sexual offences are worrisome. [ 60 ] Here, the victim was sexually assaulted in her house, in her bedroom, by her former intimate partner. The accused took advantage of a sleeping victim and had a full sexual intercourse. This was

an act of violence committed against a completely helpless and vulnerable Indigenous woman. [ 61 ] The sexual assault had a significant impact on the victim as it was expressed by her in the victim impact statement she has completed. She isolated herself, missed work, drank more, cried, and had a hard time. She has flashback. She has trust issues, and she is emotional. As the father of the victim pointed out, she has not been the same since the sexual assault.

Unfortunately, the psychological and emotional consequences will continue to affect the victim for a long period of time. [ 62 ] Society’s message has to be clear: any form of violence, physical or sexual against a woman will not be tolerated. Every woman should feel and be safe, especially in her own house. [ 63 ] In Nunavik, the pressing situation commands the Court to highlight and voice out the gravity of sexual violence and the needs to condemn such conduct. [ 64 ] The Court concludes that only a sentence of imprisonment in this case could properly give effect to the fundamental principles of sentencing.

The Appropriate Length of Sentence in this Case [ 65 ] The Court of Appeal in Oum c R . [18] did mention: [55] Par ailleurs, la peine infligée se situe dans la fourchette des peines généralement imposées et se situant entre 12 et 20 mois d’emprisonnement dans des circonstances similaires au présent dossier pour une infraction poursuivie par acte criminel. [ 66 ] The circumstances in Oum are similar to the case at bar. Even the mitigating and aggravating factors bear some resemblance. The accused was convicted to an imprisonment of 18 months. [ 67 ] The Gladue factors should also be considered.

The writer did not highlight any personal Gladue factor, but the historical and systemic factors surely have affected the accused. [ 68 ] Culturally local resources have been identified to support the accused in his community. His level of awareness, responsibility and empathy towards the victim reduce the risk of reoffending. [ 69 ] Although the rehabilitation is not completed, the motivation of the accused to undergo therapy should not be ignored. The rehabilitation (or prospect of) can be considered by the Court even when deterrence and denunciation are given paramount importance. [ 70 ] In R. c.

Kanatewat [19] , after reviewing case law pertinent to the issue, Justice Legault concludes a sentence that combined both jail and a supervised probation may reflect the offender’s rehabilitation and social reinsertion perspectives as well as the restorative justice principles and be fostered to achieve the goals of deterrence and denunciation. [ 71 ] Justice Legault went on and added, "This is why there has to be a measure of sentence that will both deter him personally and put a dynamic emphasis on structuring his involvement in his own rehabilitation and social reinsertion through all that help and these resources that from here and elsewhere can get him on the move of learning to become responsible (…)" [20] . [ 72 ] As said before, the fundamental purpose of sentencing is to protect society.

A sentence should also be fashioned to focus on individual deterrence so that the accused will not reoffend. And for that, a punitive measure alone may not be as efficient measures. [ 73 ] Of course, the objectives of denunciation, personal deterrence and isolation are to be privileged but the Court must have in mind the background and circumstances of the offender. [ 74 ] Still, the objective and subjective gravity of the infraction warrants a significant measure of isolation, and the court will impose a sentence of 15 months (450 days) of detention.

But this will be followed by a probation order for a period of three (3) years with specific rehabilitative conditions that will be listed at the hearing. [ 75 ] The court prohibits the accused following

section 109 of the Criminal Code , for a period of 10 years to be in possession of any

weapons as defined in that section, with the exception provided by

section 113 of the Criminal Code . [ 76 ] 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 90 days. [ 77 ] The court orders the accused to comply with the sex offender information registration act for twenty (20) years. [ 78 ] The court dispenses the accused from paying any surcharge fine considering the incarceration. [ 79 ] Finally, there will be an order pursuant to s. 743.21 of the Criminal Code prohibiting the offender from having contact with the victim while he serves his sentence. __________________________________ MARIE-CHANTAL BRASSARD, J.C.Q.

Me Daphnée Creighton For the Accused Me Hannah Brais-Harvey For Prosecution Date of hearing: February 16, 2023