Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
R. V. Alikamik, 2013 NWTSC 35 S-1-CR-2009-000020 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v – BOBBY ALIKAMIK _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice K. Shaner, at Yellowknife in the Northwest Territories, on the 5th day of June, 2013. _________________________________________________________ APPEARANCES: Mr. K. Onyskevitch: Counsel for the Crown Mr. P. Fuglsang: Counsel for the Accused ---------------------------------------- Charge under s. 271 Criminal Code of Canada Official Court Reporters 1 Proceedings taken in the Supreme Court of 2 Yellowknife, Northwest Territories 3 ----------------------------------------------------- 4 THE COURT: The first thing I would like 5 to do is to thank both counsel and Mr. Alikamik, 6 and you, officer, for accommodating the court's 7 need to reschedule this from Friday to today. It 8 came up rather suddenly, and I do appreciate 9 everyone making the effort to be here. 10 Today I have to impose sentence on 11 Mr. Alikamik, who was convicted of sexual assault 12 following a jury trial in Inuvik in April of 13 2013. 14 The first issue is with respect to enhanced 15 credit for time spent awaiting sentencing, and 16 it's my view that Mr. Alikamik should be granted 17 enhanced credit at the maximum rate of one and a 18 half days for every day served. 19 The Criminal Code provides in section 719(3) 20 that credit for time spent in custody awaiting 21 trial, and also time spent awaiting sentence, is 22 limited to a maximum of one day to each day spent 23 in custody. But section 719(3.1), provides that 24 the court can grant up to one and a half days for 25 each day spent in custody if the circumstances 26 justify it. 27 The Manitoba Court of Appeal, in a decision 1 called R. v. Stonefish, 2012 MBCA 116, examined 2 the circumstances that need to exist in order to 3 grant the enhanced credit, and among other cases, 4 it cited Chief Judge Gorin's decision in R. v. 5 Desjarlais from the Territorial Court of the 6 Northwest Territories, and it found that the 7 circumstances do not need to be exceptional to 8 justify granting more generous credit, but there 9 have to be circumstances that justify it and 10 those have to be individual to the accused. 11 One of the circumstances that has in other 12 cases justified granting enhanced credit is delay 13 in sentencing that is due to having to wait for a 14 presentence report, and examples of that come 15 from throughout the country: R. v. Sharkey, 2011 16 BCSC 1541; R. v. Mozumdar, 2012 ONCJ 151; R. v. 17 Dingwell, 2012 PESC 13; R. v. Moase, 2012 PESC 18 36; and recently from this court, R. v. Lepine, 19 2013 NWTSC 19. 20 The presentence report that was tendered 21 here was extremely helpful in helping me to 22 understand Mr. Alikamik's background so that I 23 could determine what an appropriate sentence 24 would be. These reports do take time, however, 25 and during that time, Mr. Alikamik was remanded 26 in custody awaiting sentence and not earning 27 remission. 1 In my view, he should not be penalized for 2 that legitimate delay. He was taken into custody 3 on April 10th, 2013, and as of today, he has 4 spent 57 days in remand. So he will be given 5 credit at 1.5 to one, and that credit will be two 6 months and two weeks, and that will be deducted 7 from the custodial portion of his sentence. 8 Turning to the offence itself, the 9 indictment upon which Mr. Alikamik went to trial 10 contained two counts. The first alleged a sexual 11 assault by Mr. Alikamik between February 17th and 12 February 23rd, 2008. The second alleged a sexual 13 assault between March 31st, 2005, and 14 February 17th, 2008. 15 The jury found Mr. Alikamik guilty on the 16 second charge but was unable to reach a verdict 17 on the first. A mistrial was declared with 18 respect to the first and the Crown subsequently 19 stayed that first charge. 20 So the facts surrounding the second charge 21 are relevant today, and they came out in the 22 evidence as follows: The victim is 23 Mr. Alikamik's biological daughter, and she had 24 learned of that fact relatively recently in 25 relation to the time of the offence. She was 26 living with Mr. Alikamik in a house in Ulukhaktok 27 along with his wife and her half brothers. She 1 had just turned 16. 2 Her brothers were asleep in the house one 3 night and Mr. Alikamik's wife was out of town. 4 Mr. Alikamik and the victim were still awake. He 5 told her he was "horny" and he tried to get her 6 to touch his genitals. He grabbed her hand and 7 placed it in his crotch area over his pants and 8 he repeated again that he was horny. 9 Mr. Alikamik touched the victim's breasts. 10 She told him to stop but he continued. He then 11 forced her face down onto to a couch and tried to 12 put his penis into her vagina. She tried to get 13 up, but he pushed her back down. She was finally 14 able to get away from him without the sexual 15 assault going any further. 16 The victim also described a second sexual 17 assault that happened some time later but during 18 the same time period described in count 2 of the 19 indictment. The two were in the laundry room. 20 Her brothers were in the living room awake. 21 Again, Mr. Alikamik's wife was out of town. 22 The victim and Mr. Alikamik had just smoked 23 a marijuana cigarette. He told her again he was 24 horny and he proceeded to touch her breasts and 25 her vagina underneath her clothing. He told her 26 to be quiet. She told him to stop and he did. 27 She said she was about 17 when that happened. 1 At trial, Mr. Alikamik denied all of these 2 charges. Obviously, however, the jury either did 3 not believe him or his evidence did not raise a 4 reasonable doubt. 5 Mr. Fuglsang provided some information to 6 the court about Mr. Alikamik's background and 7 circumstances, and I also had the benefit of 8 reading a presentence report that was prepared by 9 Probation Services. It was extremely helpful, as 10 I said earlier. 11 Mr. Alikamik is a 47-year-old Inuvialuit man 12 who was raised in Ulukhaktok. He went to school 13 and he stayed there until Grade 8, and this was 14 largely a positive experience for him and he was 15 a strong student. He never returned to school, 16 however, as he had to work to support his family. 17 According to the presentence report, 18 Mr. Alikamik's early childhood was also very 19 positive. His parents were described as 20 traditional people. They spent a lot of time on 21 the land with their children teaching them 22 traditional skills. 23 Unfortunately, however, things went way off 24 the rails when Mr. Alikamik was in his early 25 teens. It was then that his parents began to 26 consume alcohol regularly. This coincided with 27 the opening of the hotel in Ulukhaktok and his 1 parents entering the wage economy. 2 His father would inflict physical abuse on 3 his mother, and more tragically, Mr. Alikamik and 4 his siblings were left with a babysitter, a man 5 from the community, when his parents went out to 6 parties. The man sexually abused Mr. Alikamik 7 and he sexually abused Mr. Alikamik's brother. 8 This went on for several years. 9 When he was 17, Mr. Alikamik left his 10 parents' home and moved in with his aunt. In his 11 20s, Mr. Alikamik consumed alcohol as a binge 12 drinker, often drinking for a week at a time to 13 the point of blacking out. To his credit, he 14 recognized the adverse effect that this was 15 having on his life and on his family and he 16 stopped drinking. 17 He told the probation officer who wrote the 18 presentence report that he has not consumed 19 alcohol for 10 years, and indeed, there was 20 evidence given at the trial that Mr. Alikamik 21 does not use alcohol, and certainly there was no 22 suggestion that either the victim or Mr. Alikamik 23 were under the influence of alcohol when the 24 victim was sexually assaulted. 25 The Crown also tendered Mr. Alikamik's 26 criminal record, which I will return to later. 27 The principles and objectives of sentencing 1 are set out in the Criminal Code. It is a highly 2 individualized process, and the emphasis that is 3 placed on any particular objective or set of 4 objectives will vary with the nature of the 5 offence and the circumstances of the individual 6 offender. 7 Where the offence involves the abuse of a 8 person under 18 years of age, as is the case 9 here, the judge, by the provisions of the 10 Criminal Code, has to give primary consideration 11 to the objectives of denunciation and deterrence. 12 However, that is not to say that the other 13 objectives, such as rehabilitation, do not factor 14 in to the consideration also very strongly. 15 There are also a number of principles that 16 guide judges in imposing sentence. The primary 17 one is proportionality, which means quite simply 18 that the sentence has to be proportional to the 19 degree of moral blameworthiness of the offender. 20 In other words, the sentence has to fit the 21 crime. 22 Mitigating and aggravating circumstances 23 also have to be considered, and the sentence has 24 to be increased or reduced to reflect these. 25 Evidence that the offender abused a person 26 under the age of 18 years and that the offender 27 was in a position of trust in relation to the 1 victim are specifically noted in the Criminal 2 Code as aggravating factors, and sadly, both of 3 those are present here. 4 Judges are also bound to recognize that 5 there should be similar treatment for like 6 offences and offenders, and as well, that prison 7 is a last resort. 8 In the case of aboriginal offenders in 9 particular, judges are required to consider all 10 available sanctions other than imprisonment that 11 are reasonable in the circumstances, and the 12 purpose of this is to recognize and address the 13 over-representation of aboriginal people in our 14 correctional system. 15 The fact that this is something to which we 16 must pay more than just lip service was recently 17 affirmed by the Supreme Court of Canada in the 18 case of R. v. Ipeelee. 19 There are, as I indicated earlier, some 20 aggravating factors that arise out of the 21 circumstances of that particular offence. 22 Mr. Alikamik is the victim's father, and when 23 this occurred, the victim was living with him and 24 she had just turned 16. He sexually assaulted 25 her twice, blatantly, while her brothers were 26 present in the home, once when they were asleep 27 and once when they were awake. 1 Mr. Alikamik has a criminal record which 2 contains two convictions for sexual assault, two 3 convictions for assault and one conviction for 4 assault causing bodily harm. It also contains 5 two convictions for drug possession. The sexual 6 assaults I'm told by the prosecutor involved 7 women under the age of 18. 8 I do note, however, that the record is a 9 very old one. The last conviction which was for 10 assault dates back to 1999. Moreover, if one 11 compares it to the presentence report, it appears 12 that these convictions were sustained during that 13 period of time when Mr. Alikamik was using 14 alcohol extensively. This does not remove the 15 criminal record from the list of aggravating 16 factors, but in my view, it certainly diminishes 17 its effect. 18 There are not any mitigating factors. I 19 pause here to note that the fact that 20 Mr. Alikamik did not plead guilty is not 21 aggravating. It doesn't count against him. 22 Everyone has the right to a trial, and he was 23 entitled to have this matter determined by a 24 jury. However, the fact that there is no guilty 25 plea and there has been no expression of remorse, 26 while not aggravating, means that there is 27 nothing that is mitigating. 1 The Crown is seeking a custodial sentence of 2 four to five years, less time spent awaiting 3 sentence, and defence counsel suggests that a 4 custodial sentence of 10 months to a year, again 5 less presentence custody, is appropriate. 6 Now, the Crown is not characterizing this as 7 a major sexual assault such that there is a 8 three-year starting point for sentencing with 9 which I have to work. I agree with this, and 10 defence counsel emphasized this point as well. 11 While I in no way want to diminish the 12 seriousness of what happened here, nor do I want 13 to diminish the adverse impact it must have had 14 on the victim, it does not fall into the category 15 of a major sexual assault as that term was 16 articulated by the Alberta Court of Appeal in R. 17 v. Arcand, 2010 ABCA 363, specifically at 18 paragraph 171. 19 As I understand the Crown's position, 20 however, it is of the view that a custodial 21 sentence in the range it suggests, being four to 22 five years, is necessary to achieve the objective 23 of sentencing, particularly denunciation and 24 specific and general deterrence, which, as I 25 noted earlier, have to be given primary 26 consideration. 27 Sexual crimes against children are 1 particularly serious, and even more so when that 2 crime is perpetrated by a parent. Children need 3 their parents to teach them, to care for them, to 4 love them and to protect them. They need to be 5 able to trust their parents, and when a parent 6 violates a child sexually, that is among the most 7 grave betrayals of trust. Where that happens, 8 the offender bears an extremely high degree of 9 moral blameworthiness. 10 Defence urged me to consider that although 11 Mr. Alikamik is the victim's father, their 12 relationship had only begun recently in relation 13 to the time when these events occurred, and he 14 suggested that the two had not really bonded in a 15 father-daughter or parent-child relationship 16 because someone else had raised the victim until 17 she was 16. 18 I just cannot accept that. The fact is that 19 Mr. Alikamik is the victim's father. He knew 20 this at the time. She knew it at the time, and 21 she was living with him as a child. He was 22 responsible for her. 23 I have considered Mr. Alikamik's aboriginal 24 status and his history. His life was 25 significantly affected with the advent of 26 economic development in his home community. His 27 parents went from being almost wholly traditional 1 in their lifestyle to straddling between the 2 opportunities of the wage economy, including the 3 opportunity to buy and consume alcohol, and a 4 traditional lifestyle. 5 With his parents' changed lifestyle came 6 grave consequences for Mr. Alikamik. The time he 7 is reported to have dropped out of school in 8 Grade 8 and when he started using alcohol himself 9 coincides very closely with the opening of the 10 hotel in town and when his parents started using 11 alcohol. That coincided as well with when his 12 parents started to leave the children with the 13 babysitter while they drank, and that is when 14 Mr. Alikamik himself was sexually abused. 15 Crown counsel submitted two cases, both 16 decisions of this court, being R. v. Mannilaq, 17 which is reported at 2012 NWTSC 48, and R. v. 18 T.(P.S.), 2012, NWTSC 86. 19 The Mannilaq case is somewhat helpful, but 20 on the whole, it is of limited value here because 21 it did involve a major sexual assault, so the 22 length of the sentence is approached somewhat 23 differently than the approach I have to take in 24 this case. 25 In the T.(P.S.) case, the offender was 26 sentenced to a prison term of three years 27 following a guilty plea for a sexual assault 1 against his daughter. She was passed out at the 2 time and the offence consisted of multiple sexual 3 touchings. 4 There are some similarities in fact between 5 that case and the one before me now. The 6 offender was the victim's father and the offence 7 was not characterized as a major sexual assault. 8 As well, in that case, the offender was 9 aboriginal. In that case, the offender entered a 10 guilty plea, which was not the case here. 11 A significant difference is that the 12 offender in T.(P.S.) had a lengthy criminal 13 record which contained relatively recent 14 convictions for sexual crimes against his other 15 daughters and for which he had served a 16 significant period of incarceration. 17 As I noted earlier, Mr. Alikamik's record is 18 very old and coincided with the time in which his 19 life was in upheaval, in particular when he used 20 alcohol excessively. 21 I agree that the sentence in this case has 22 to give priority to the objectives of 23 denunciation and deterrence, but it is my view 24 that those objectives can be readily achieved 25 with a shorter period of incarceration than what 26 the Crown proposes, combined with a 27 community-based sentence. 1 As well, it bears repeating that all 2 sentencing objectives and principles remain 3 important, even if priority is required to be 4 placed on certain ones. That means, of course, 5 that the objective of rehabilitation must still 6 be considered, and the principle of restraint, 7 particularly with respect to aboriginal 8 offenders, must still be respected. 9 One of the things that strikes me about 10 Mr. Alikamik's record, especially when it's 11 viewed side by side with the presentence report 12 and all the information about his background, is 13 that Mr. Alikamik is capable of learning from his 14 mistakes and he is capable of motivating himself 15 to make changes and choices on his own. 16 The author of the presentence report is of 17 the view that Mr. Alikamik would benefit from a 18 community-based sentence. A community-based 19 sentence would, in my view, have meaning for 20 Mr. Alikamik. He should be given the opportunity 21 for rehabilitation in the community to the extent 22 that that is possible. 23 Thus I am of the view that it is appropriate 24 for there to be a sentence that combines a period 25 of custody with a longer period of probation. 26 I now want to turn to the issue of the 27 firearms prohibition under section 109 of the 1 Criminal Code. Section 109 provides for a 2 mandatory prohibition when a person is convicted 3 of an indictable offence in the commission of 4 which violence against a person is used, 5 threatened or attempted, or for which the person 6 may be sentenced for 10 years or more. 7 The facts in this case readily lead to the 8 conclusion that the sexual assault here involved 9 violence. The victim was forced down on the 10 couch and held there while she was assaulted. 11 When she tried to get up, she was restrained. 12 That is violence, and accordingly, in my view, 13 there's a sound basis for the mandatory firearms 14 prohibition. 15 Mr. Alikamik, please stand. Mr. Alikamik, 16 upon being convicted of sexual assault and upon 17 consideration of the circumstances and the nature 18 of the offence, as well as your own personal 19 circumstances and your past, I sentence you to a 20 term of 15 months in prison, and that will be 21 followed by two years probation. 22 The time that you will be required to serve 23 in prison will be reduced by a credit on a 24 1.5-to-one basis for the time you spent awaiting 25 the sentencing. As of today, as I indicated 26 earlier, that enhanced credit is two months and 27 two weeks, so your sentence of 15 months will be 1 reduced by that amount of time. 2 The terms of the probation order that will 3 be in effect in addition to the mandatory 4 conditions that are set out in the Criminal Code 5 will be as follows: You will report to a 6 probation officer forthwith upon being released 7 and thereafter as directed by your probation 8 officer; you will remain in the Northwest 9 Territories unless you have written permission to 10 go outside of the Northwest Territories from your 11 probation officer; and you will abstain from the 12 consumption of drugs except at the direction of a 13 licensed medical practitioner. 14 Mr. Alikamik, I am not going to order you to 15 go to counselling, although that was recommended 16 by the author of the presentence report, and the 17 reason I will not order that is because I think 18 that is something that you have to decide to do 19 on your own, and I think it's something that you 20 are capable of deciding to do on your own. 21 You can sit down. 22 That said, I do hope that you seek 23 counselling, because you are still a young man 24 and you have proven in the past that you can make 25 the right choices and you can change. 26 There will also be an order for bodily 27 fluids to be taken from Mr. Alikamik for DNA 1 analysis and an order requiring compliance with 2 the Sex Offender Information Registration Act 3 pursuant to section 490.012 of the Criminal Code, 4 and that order will be in effect for lif. 5 Finally, there will be a firearms 6 prohibition order in accordance with section 109 7 of the Criminal Code for a duration of 10 years. 8 In the circumstances, however, and having read in 9 the presentence report and heard from your 10 counsel about the fact that you have lived a 11 fairly traditional lifestyle and you do do a lot 12 of sustenance hunting, I will also make an order 13 at this time under section 113(1) of the Criminal 14 Code authorizing the firearms authority to issue 15 a licence to you to possess a firearm for the 16 purpose of sustenance hunting upon your 17 application. 18 Counsel, is there anything else? 19 MR. ONYSKEVITCH: Your Honour, I think this is 20 fairly academic, given that Mr. Alikamik has been 21 in custody and pursuant to your sentence will 22 continue to be in custody, but there is the issue 23 of the victim of crime surcharge, which I imagine 24 should be waived. 25 THE COURT: Mr. Fuglsang, I assume you 26 agree with that? 27 MR. FUGLSANG: Yes, I do, Your Honour. 1 THE COURT: I think that's a reasonable 2 submission. Thank you. 3 And if it hasn't been done through the 4 removal order -- I just want to check. I will 5 also make an order just vacating the form 19 6 requiring Mr. Alikamik to be here on Friday, in 7 the circumstances. 8 Does that conclude everything for you, 9 counsel? 10 MR. ONYSKEVITCH: I believe so, yes, Your 11 Honour. 12 THE COURT: Thank you. Mr. Fuglsang, is 13 there anything else? 14 MR. FUGLSANG: No, that's fine, Your Honour. 15 Everything is good. 16 THE COURT: All right. Then we will 17 adjourn. 18 Thank you Mr. Onyskevitch, thank you 19 Mr. Fuglsang, Mr. Alikamik, officer. 20 ----------------------------------------------------- 21 PROCEEDINGS CONCLUDED 22 ----------------------------------------------------- 23 24 25 26 27 1 CERTIFICATE OF TRANSCRIPT 2 3 I, the undersigned, hereby 4 certify that the foregoing pages are a complete 5 and accurate transcript of the proceedings taken 6 down by me in shorthand and transcribed to the 7 best of my skill and ability. 8 Dated at the City of Edmonton, 9 Province of Alberta, this 22nd day of June, 2013. 10 11 12 13 _____________________________ 14 D. J. Halvorsen, CSR(A), RPR 15 Court Reporter/Examiner 16 17 18 19 20 21 22 23 24 25 26 27
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.