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Abstract: Transcript of the Reasons for Sentence

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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

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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.

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13	_____________________________

14	D. J. Halvorsen, CSR(A), RPR

15	Court Reporter/Examiner

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 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.