R. v. Irqqiut, 2017 NWTSC 18 S-1-CR2015000054 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - SAMUAL IRQQIUT _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice L. A. Charbonneau, at Yellowknife in the Northwest Territories, on February 22nd A.D., 2017. _________________________________________________________ APPEARANCES:
Mr. D. Praught: Counsel for the Crown Mr. P. Harte: Counsel for the Accused ---------------------------------------- Charge under s. 271 Criminal Code of Canada No information shall be published in any document or broadcast or transmitted in any way which could identify the victim or a witness in these proceedings pursuant to s. 486.4 of the Criminal Code of Canada
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1 THE COURT: I am ready to give my 2 decision on this matter. I am asking that a 3 transcript of my remarks be prepared. I will 4 say that although I had sufficient time to 5 make my decision, I had limited time to write 6 my Reasons so I do anticipate that I may edit 7 and possibly add some things to the transcript 8 of the decision. I want to make sure that my 9 Reasons for having come to the conclusion that 10 I have are clear and complete. 11 I also want to remind everyone that there 12 is in place an order prohibiting the 13 publication of any information that could 14 identify the victim in this matter. I will 15 refer to her by using initials but if at any 16 point I refer to her by name or if there are 17 other things in my decision that disclose her 18 identity, those are subject to a publication 19 ban. 20 I have quite a bit to say on this matter 21 to address the various issues that were raised 22 during the submissions. 23 Today it is my responsibility to sentence 24 Samual Irqqiut for a sexual assault that he 25 committed on T.T. over two years ago in 26 September of 2014. 27 In any sentencing, the Court has to take
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1 into consideration the crime that was 2 committed, the circumstances of the person who 3 committed it, and the legal principles that 4 govern sentencing. Some of these principles 5 are set out in the Criminal Code and others 6 come from the case law. 7 Before I turn more specifically to these 8 things, I want to talk briefly about the 9 procedural history of this case because it 10 explains some of the delays in this matter 11 coming to an end. In addition, aspects of how 12 things unfolded are relevant to the decision 13 that I have to make today. 14 Originally Mr. Irqqiut was charged with 15 sexual assault and two other charges. He 16 elected to have his trial in front of a court 17 composed of a Judge and a jury. He was 18 committed to stand trial after a preliminary 19 hearing held on May 21st, 2015. His jury 20 trial was eventually scheduled to proceed 21 commencing on September 5th, 2016. 22 On August 21st, 2016, Mr. Irqqiut's 23 counsel requested that the matter be brought 24 forward ahead of the trial date so that a 25 guilty plea could be entered. This was done. 26 On August 29th, 2016, Mr. Irqqiut pleaded 27 guilty to the sexual assault charge and the
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1 Crown indicated that it would not proceed on 2 the other charges. The jury trial that had 3 been scheduled to commence the following week 4 was then cancelled. 5 Sentencing was adjourned so that 6 consideration could be given to whether a 7 pre-sentence report would be ordered. 8 Eventually, a pre-sentence report was ordered. 9 The sentencing hearing was scheduled to 10 proceed on December the 5th. 11 On that date, Mr. Irqqiut admitted the 12 facts alleged by the Crown, and I heard 13 sentencing submissions. I was presented with 14 a joint submission. Counsel were asking that 15 I sentence Mr. Irqqiut to "time served". At 16 that point, this would have amounted to a 17 sentence of roughly three years and three 18 months. I expressed concern about the joint 19 submission and I gave counsel an opportunity 20 to tell me more about how they had arrived to 21 it and to make more submissions in support of 22 it. 23 Crown counsel, who is not counsel before 24 the Court today, said that he was not 25 surprised that the Court had some concerns. 26 He acknowledged that the sentence being 27 proposed was low. The only additional
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1 information that he provided in response to my 2 inquiries about the basis for the joint 3 position was that T.T. was very relieved to 4 learn that this matter would resolve and that 5 she would not have to testify at trial. Crown 6 counsel did not say that she was reluctant, 7 uncooperative, unable to testify, or hostile 8 to the prosecution. He simply said that some 9 preparation work would have been needed to get 10 her ready to testify at the trial, that she 11 was very nervous and worried about having to 12 testify about these events, and that she was 13 extremely relieved to learn that she would not 14 have to. 15 As for Mr. Irqqiut's counsel, he asked 16 that the matter be adjourned to give him an 17 opportunity to obtain additional information 18 about Mr. Irqqiut and, in particular, 19 information from some of the professionals 20 that Mr. Irqqiut had been in contact with 21 while on remand. Counsel said that his desire 22 to explore certain issues came from his 23 discussions with Mr. Irqqiut, aspects of those 24 conversations, as well as some rather 25 troubling comments attributed to Mr. Irqqiut 26 in the pre-sentence report. 27 The matter was adjourned a few times to
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1 enable counsel to attempt to get additional 2 information. 3 Without trying to summarize everything 4 that defence counsel has said on the last few 5 appearances, I will say that my understanding 6 from what he said was that it has proven 7 difficult, and actually impossible, for him to 8 get anyone to provide additional information 9 about Mr. Irqqiut's progress in his sessions 10 with the psychologist at the jail, or any 11 further information that would assist in 12 clarifying some of the concerns that counsel 13 had. The underlying reasons for these 14 difficulties are not clear to me and it is not 15 something that I can speculate about. Based 16 on what counsel said, I am satisfied that he 17 did everything that he could to try and get 18 additional information and simply was not able 19 to. 20 On the last appearance, he advised that he 21 did not think there would be any point in 22 adjourning the matter any further, as he did 23 not expect that any further information would 24 be forthcoming. On that appearance, counsel 25 did file documents (sign-in sheets) showing 26 Mr. Irqqiut's attendance at AA meetings. 27 Those sheets have been marked as an exhibit.
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1 They show a fairly regular attendance to AA 2 meetings from November 2015 through to 3 December 2016. For the most part, there 4 appears to have been regular attendance by Mr. 5 Irqqiut during that time frame. 6 I also have the benefit of a very thorough 7 pre-sentence report and I will get back to 8 that when I talk about Mr. Irqqiut's personal 9 circumstances. 10 The first thing that I want to talk about 11 are the circumstances of the offence. Obviously, 12 that is one of the things that is important at 13 any sentencing hearing. 14 Mr. Irqqiut and T.T. were in a 15 relationship for a period of time in the past. 16 This relationship had ended less than a year 17 before the incident that led to this charge. 18 At the time of the incident, in September 19 2014, T.T. was 23 years old and Mr. Irrquit 20 was 32. 21 Mr. Irqqiut sexually assaulted T.T. on 22 September 28th, 2014. This was just 16 days 23 after his release from custody for his last 24 sentence. That sentence had been imposed as a 25 result of his conviction for an assault 26 causing bodily harm. T.T. was the victim of 27 that assault. Although the CPIC printout
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1 (filed as an exhibit) and the copy of the 2 probation order attached to the pre-sentence 3 report and relates to that sentence are 4 inconsistent, on the whole, it appears that 5 the sentence imposed on that day was eight 6 months in jail and that six months credit were 7 given for time that Mr. Irqqiut had spent on 8 remand. This is the only way the numbers make 9 sense because the sentence was imposed at the 10 end of July and Mr. Irqqiut was released in 11 September. So of all of the possible 12 combinations arising from the conflicting 13 information on the documents, a sentence of 14 eight months, with six months credit given for 15 remand time, is what makes most sense. 16 What is significant is that Mr. Irqqiut 17 had just been released from custody for an 18 offence committed against T.T. when he 19 sexually assaulted her in September 2014. 20 On September 28th, Mr. Irqqiut spent some 21 time with T.T. in Yellowknife. They drank 22 alcohol together and they eventually went to a 23 tent which is in a secluded area of green 24 space in the city of Yellowknife. They were 25 drinking there with another man and together, 26 drank most of the 26-ounce bottle of hard 27 liquor.
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1 T.T. blacked out as a result of her 2 alcohol consumption. Her next memory is being 3 in the tent alone with Mr. Irqqiut. She did 4 not feel safe being alone with him and she 5 tried to leave. He prevented her from doing 6 so. He grabbed her arm and pulled her back 7 into the tent by the hair. By this point, 8 T.T. was scared and was crying. 9 After pulling her back inside the tent, 10 Mr. Irqqiut grabbed her head, moved it toward 11 his penis, and told her to give him oral sex. 12 She refused. He hit her in the face. Feeling 13 she had no choice, she did what he was asking 14 and started to give him oral sex. 15 The photos filed in the sentencing hearing 16 show bruising on T.T.'s cheek, which I infer 17 came from being struck at that point. 18 Mr. Irqqiut then told T.T. to take her 19 pants off. Again, she did so because she felt 20 she had no choice. He told her to turn 21 around. She said she did not want to. He got 22 angry and forced her down to the ground onto 23 her stomach and held her down by her arms. He 24 then had forced anal intercourse with her. 25 She asked him to stop because it was causing 26 her pain but he continued. 27 T.T. told Mr. Irqqiut she needed to
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1 "poop". At that point he stopped having anal 2 intercourse with her; however, he forced her 3 again to give him oral sex. She did not want 4 to do this, but he forced her by holding her 5 by the hair and keeping her head down by his 6 penis. 7 Mr. Irqqiut fell asleep or passed out 8 during the second instance when he was forcing 9 T.T. to give him oral sex. She was able to 10 leave the tent. She could not find her pants 11 so she covered herself with a sweater and then 12 ran to a nearby hotel to get help. The staff 13 at the hotel called the police. 14 T.T. was injured during this attack. When 15 she was taken to the hospital for treatment, 16 the medical staff observed bruising on various 17 parts of her body, including her face, neck, 18 arms and legs. There was also a small amount 19 of blood near her anus. 20 Mr. Irqqiut was arrested that same day and 21 he has been on remand ever since. The total 22 number of days he has spent on remand as of 23 today is 877 days. At this point, with the 24 additional remand time that has accumulated 25 since December 5th when the sentencing hearing 26 started, and if he is given credit for his 27 remand time on the ratio of one and a half
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1 days credit for each day of remand, a sentence 2 of time served would amount to a sentence of 3 three years and seven months. 4 T.T. prepared a Victim Impact Statement. 5 In it, she describes the impact that this 6 offence had on her. 7 The things that she describes are, sadly, 8 things we frequently see in Victim Impact 9 Statements in sexual assault cases. T.T. 10 talks about feeling scared of being out with 11 friends, feeling sad and depressed. Initially 12 she lied to her friends who were asking what 13 was wrong with her. Then she became upset 14 about lying to friends and family. She writes 15 "at that point I just wanted to give up my 16 life. I didn't want to be hurt again". 17 T.T. also talks about how she was 18 physically injured in this attack, how her 19 neck was sore, how she could not sit 20 comfortably for a period of time. She also 21 talks about feeling uncomfortable when she 22 underwent the sexual assault examination at 23 the hospital. That is not difficult to 24 understand. A sexual assault examination 25 involves a person's whole body being examined 26 and scrutinized. Samples and swabs are taken 27 from the genital and anal area of the body.
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1 This would be uncomfortable and unpleasant at 2 the best of times. To undergo this after 3 having been the victim of a sexual assault 4 must be horrible. T.T. says she was not 5 comfortable with this but that she put her 6 fear aside and "let the nurse do her job". 7 What T.T. wrote in her Victim Impact 8 Statement confirms what we already know: 9 Sexual abuse causes significant harm to the 10 victims. Courts have long recognized this. 11 We know that the psychological harm that is 12 caused often lasts long after the bruises have 13 healed. 14 There was a time where this type of crime 15 was trivialized and its consequences not well 16 understood. Perhaps that remains the case in 17 some circles. But as far as the law goes, and 18 as far as this Court is concerned, this is a 19 very serious crime that has very serious 20 consequences. And, unfortunately, it is a 21 crime that is terribly prevalent in this 22 jurisdiction. 23 I turn now to Mr. Irqqiut's own personal 24 circumstances. They are also very important 25 and must be taken into account on sentencing. 26 I have heard detailed submissions from his 27 counsel about his background and personal
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1 circumstances. And, as I have already noted, 2 I have the benefit of a very thorough 3 pre-sentence report that talks about Mr. 4 Irqqiut's childhood and some of the tremendous 5 hardships and losses he suffered as he was 6 growing up and into his young adulthood. 7 These are not pleasant things to talk about, 8 and I know they were difficult for him to hear 9 this all referred to during the submissions, 10 but I need to talk about them. 11 Mr. Irqqiut has just turned 34. He was 12 born in Taloyoak, which is an isolated 13 community on Boothia Peninsula, in the 14 Kitikmeot Region of Nunavut. Its population 15 is about 800 people and in large majority 16 Inuit. It is a very isolated community. 17 Mr. Irqqiut's family lived, in some 18 respects, a traditional lifestyle. The family 19 spent time on the land, hunted for seals, 20 whale and caribou. The parents did not 21 consume alcohol when they were out on the 22 land. Mr. Irqqiut recalls he and his siblings 23 were always excited to go out on the land. 24 Unfortunately, there were many 25 difficulties in the family. 26 When not on the land, both parents abused 27 alcohol. There was violence within the home.
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1 Mr. Irqqiut recalls often going to the 2 emergency shelter where he, his mother and 3 siblings would remain until his father sobered 4 up. In addition to the violence that occurred 5 between his parents, according to Mr. Irqqiut, 6 his mother was violent with the children. 7 The abuse of alcohol had a very 8 detrimental impact on this family. There were 9 times where all the money went to the purchase 10 of alcohol instead of buying food. Mr. 11 Irqqiut's sister was apprehended by Social 12 Services at one point. There were times where 13 Mr. Irqquit and his siblings would go to 14 relatives' homes so that they would have a 15 safe place to stay and so they would have 16 something to eat. Mr. Irqqiut recalls feeling 17 often scared and worried as a child. 18 At a young age, he discovered the 19 existence of an incestuous relationship 20 between his mother and one of his siblings. 21 His father eventually found out about it too. 22 This of course led to more conflict and 23 violence in the family. Mr. Irqqiut reports 24 that his father starved the family for two 25 days as punishment for what he had discovered. 26 When he was 15 years old, one of Mr. 27 Irqqiut's brothers committed suicide. This
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1 occurred over the Christmas season and 2 obviously had a huge traumatic impact on the 3 family and on the whole community. Mr. 4 Irqqiut's parents separated after this. He 5 lived with his father from that point on. 6 They consumed alcohol frequently together and, 7 for a period of time, on a daily basis. 8 Around the same time, when Mr. Irqqiut was 9 16 or 17, he had a child with a woman from the 10 community. The family of the child's mother 11 did not approve of him so he was not able to 12 have any contact with his child. 13 Mr. Irqqiut attempted to commit suicide 14 when he was 17. He ended up at the psych ward 15 in the hospital in Yellowknife and remained 16 there for three months. He was given a 17 prescription for medication when he got out 18 but never got it filled. He was very angry at 19 that point because he felt he had been forced 20 to stay at the hospital, whereas he had been 21 under the impression or belief, when he went 22 there initially, that he was being admitted to 23 a treatment center. 24 He returned to Taloyoak. 25 By the time he was 20, Mr. Irqqiut was 26 abusing alcohol regularly. That is when he 27 started having involvement with the criminal
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1 justice system. His first conviction on the 2 record is in 2003 and that's the year Mr. 3 Irqqiut turned 20. He was, among other 4 things, violent in intimate relationships. 5 When he was 24, he moved to Yellowknife 6 and lived a transient lifestyle, residing for 7 the most part at the Salvation Army. By then 8 his mother had moved to Yellowknife as well 9 but she still used alcohol and was not able to 10 provide any kind of consistent support to him. 11 When Mr. Irqqiut was 27, his other brother 12 committed suicide. He was not able to return 13 to the community for the funeral. Mr. Irqqiut 14 used alcohol to cope. His consumption 15 increased after this event. 16 Over the last several years, Mr. Irqqiut 17 has been in and out of jail, as is apparent 18 from his criminal record. Many of his 19 convictions are for assault. To date, the 20 sentences he has received have been counted in 21 months. But there is an escalation showing on 22 the record. 23 The 2014 conviction for assault causing 24 bodily harm was the most serious offence he 25 had ever committed up to then, and it led to 26 the longest sentence he had ever received. 27 What I must sentence him for today is in an
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1 entirely different category as far as 2 seriousness. It is by far much much more 3 serious than anything else that he has ever 4 been convicted for. 5 Mr. Irqqiut, I heard, has had sporadic 6 employment but of late, at least, the money 7 that he has earned has largely gone to feed 8 his alcohol addiction. It is obvious that 9 before his arrest on this offence, he was 10 literally trapped in a cycle of dysfunction. 11 This is a very sad chronicle of what Mr. 12 Irqqiut's life has been up to now. It should 13 be a surprise to no one that he turned to 14 alcohol and other intoxicants, that he has 15 displayed anger and violence, and that he has 16 had a dysfunctional lifestyle. He is a victim 17 of his own parents' alcohol abuse and 18 dysfunction. It is very difficult to imagine 19 what it must have been like for him as a 20 little boy, worried and scared, with none of 21 the supports that children need in order to 22 develop in a healthy way. It was terribly sad 23 to read this pre-sentence report and to hear 24 the additional information provided to the 25 Court by Mr. Irqqiut's counsel. 26 Several aspects of Mr. Irqqiut's personal 27 circumstances and the losses that he has faced
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1 are horrendous. And I could observe while 2 this was being talked about at the sentencing 3 hearing that he was still visibly upset 4 hearing these things talked about. These are 5 extremely tragic circumstances. It is 6 impossible to imagine what living through the 7 series of traumas and losses would do to a 8 person. I have tried to give due 9 consideration to all of that in arriving at my 10 decision today. 11 I have talked about the circumstances of 12 the offence and those of Mr. Irqqiut. 13 In making my decision I also have to 14 consider the principles of sentencing. As I 15 said, some are set out in the Criminal Code 16 and others come from the case law. 17 I will address, first, the principles that 18 flow from the fact that I was presented with a 19 joint submission at this sentencing. Because 20 when that happens, it alters the manner in 21 which the Court has to proceed in deciding 22 what sentence to impose. 23 For a long time, the law was that a joint 24 submission should be given serious 25 consideration by sentencing Judges, but there 26 were different approaches across the country 27 and different ways that this was explained.
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1 In the recent case of R. v. Anthony-Cook, 2 2016 SCC 43, the Supreme Court of Canada 3 unequivocally adopted the most stringent of 4 the tests among those that had been used by 5 the courts. The Supreme Court described this 6 test as the "public interest" test. 7 At paragraph 29 of the decision, the 8 Supreme Court said: 9 Under this test, trial judges should not depart from a joint 10 submission unless the proposed sentence would bring the 11 administration of justice into disrepute, or is otherwise not in 12 the public interest.
13 This is a very high threshold and in 14 explaining further what it meant, the Supreme 15 Court of Canada referred to language used in 16 cases from the Newfoundland and Labrador Court 17 of Appeal, including these descriptions. 18 A joint submission will bring the administration of justice into 19 disrepute or be contrary to the public interest if, despite the 20 public interest considerations that support imposing it, it is so 21 "markedly out of line with the expectations of reasonable persons 22 aware of the circumstances of the case that they would view it as a 23 break down of the proper functioning of the criminal 24 justice system".
25 (...) 26 When assessing a joint submission, trial Judges should "avoid 27 rendering a decision that causes an informed and reasonable public
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1 to lose confidence in the institution of the courts". 2 Anthony-Cook, para 33
3 At paragraph 34 of Anthony-Cook, the 4 Supreme Court itself said, speaking of the 5 rejection of a joint submission: 6 Rejection denotes a submission so unhinged from the circumstances of 7 the offence and the offender that its acceptance would lead 8 reasonable and informed persons, aware of all of the relevant 9 circumstances, including the importance of promoting certainty 10 in resolution discussions, to believe that the proper 11 functioning of the justice system had broken down. 12
13 The Supreme Court explained that this very 14 high threshold is required because of the 15 benefits of joint submissions and the 16 importance for Crown and Defence to be able to 17 have confidence that they will, generally, be 18 followed. Anthony-Cook, paras 35-45. 19 One of the benefits of joint submissions 20 for Crown and Defence is the certainty of 21 outcome. That is what Crown counsel 22 emphasized in this case as the main basis for 23 the Crown having taken the position it did. 24 The Supreme Court recognized the importance of 25 this benefit. That is made clear in different 26 parts of its decision. 27 The Court did note, however, that
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1 certainty of outcome is not the ultimate goal 2 of sentencing. At paragraph 43, the Court 3 said, referring to the "public interest" test: 4 This test also recognizes that certainty of outcome is not the 5 ultimate goal of the sentencing process. Certainty must yield 6 where the harm caused by accepting the joint submission is beyond the 7 value gained by promoting certainty of results. 8 Anthony-Cook, para 43.
9 Put another way, stringent as this test 10 is, it does not mean that sentencing judges 11 are required to "rubber stamp" a joint 12 submission. 13 In this respect, I am in complete 14 agreement with comments recently made by Chief 15 Justice Wittmann of the Court of Queen's Bench 16 of Alberta in R. v. Montoya, 2016 ABQB 660, 17 and particularly at paragraphs 38 and 39: 18 Regardless of a joint submission, a Court is still obliged to craft 19 a sentence according to sentencing principles. The proportionality 20 principle in section 718.1 is particularly salient. That is, 21 the sentence must be proportionate to the gravity of the offence and 22 the degree of responsibility of the offender. In Arcand, this 23 principle was discussed extensively, including the meaning 24 of the gravity of the offence and the degree of responsibility of 25 the offender.
26 Sentencing in this country is still an individualized process 27 and in considering a joint submission it is still helpful to
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1 measure the proposed sentence against the proper application of 2 sentencing principles to ensure that a sentencing range is 3 generally respected. This engages the parity principle and involves 4 looking at similar cases, that is, similar offences and similar 5 offenders; the penalties imposed on similarly situated offenders in 6 similar circumstances.
7 I should say that in Montoya, Chief 8 Justice Wittmann followed the joint 9 submission. I quote his comments because I 10 strongly agree that general sentencing 11 principles are part of the context in which 12 the analysis mandated by the Supreme Court of 13 Canada must be carried out. 14 Because I was presented with a joint 15 submission, the question that I must ask 16 myself in approaching this matter is not the 17 one I normally would ask myself in making a 18 sentencing decision. I must not ask myself 19 simply "What do I think a fit sentence is for 20 this offence?" Rather, what I have to ask 21 myself is "Would sentencing Mr. Irqqiut to 22 three years and seven months for this offence 23 bring the administration of justice into 24 disrepute? Would it be so markedly out of 25 line with the expectations of reasonable 26 persons aware of the circumstances of the case 27 that they would view it as a breakdown of the
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1 proper functioning of the criminal justice 2 system? Would it cause an informed and 3 reasonable public to lose confidence in the 4 institution of the Court?" 5 Those questions cannot be answered in a 6 vacuum. As noted in Montoya, I must assess 7 those questions in light of general sentencing 8 principles and I must take into account 9 appellate case law that this Court is bound 10 by, and in particular, leading authorities in 11 sentencing offenders for serious sexual 12 assaults. 13 With this is in mind, I now turn to 14 general principles of sentencing. 15 The purpose of sentencing is set out in 16 the Criminal Code at section 718: 17 The purpose of sentencing is to contribute, along with crime 18 prevention initiatives, to respect for the law and the maintenance of 19 a just, peaceful and safe society by imposing just sanctions that 20 have one or more of the following objectives: 21 (a) to denounce unlawful conduct; 22 (b) to deter the offender and others from 23 committing offences;
24 (c) to separate offenders from society where necessary; 25 (d) to assist in rehabilitating 26 offenders,
27 (e) to provide reparations for harm done to victims or to the community; and
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1 (f) to promote a sense of responsibility 2 in offenders, and an acknowledgment of harm done to the victims and the 3 community.
4 Deterrence means discouraging the offender 5 before the Court and other people from 6 committing similar offences. Denunciation 7 means expressing society's disapproval of the 8 conduct in question. Sentencing is not and 9 should never be about revenge but sentencing 10 is the expression of the Court's condemnation 11 of certain conduct. When a crime is very 12 prevalent, the need for that condemnation and 13 a need to discourage the commission of these 14 crimes is all the more pressing. 15 As has been commented on on numerous 16 occasions by this Court, and as would be 17 obvious to anyone who spends any time 18 following what goes on in the criminal courts 19 of this jurisdiction, sexual assault is a very 20 prevalent crime here. It has been referred to 21 as an epidemic. It affects people of all ages 22 and is committed by people of all ages. It is 23 a significant social problem in the Northwest 24 Territories. 25 It is well established in law that when 26 dealing with serious crimes of violence and 27 serious sexual assaults, the paramount
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1 sentencing objectives are deterrence and 2 denunciation. 3 An offender's rehabilitation is also a 4 sentencing objective. It is in everyone's 5 interests that somehow Mr. Irqqiut find a way 6 to break out of the pattern that he has been 7 in for years - this pattern of drinking, 8 destructive behaviour, harming others, harming 9 this specific victim. 10 The pre-sentence report indicates that as 11 of the time it was written in November of 12 2016, Mr. Irqqiut had started to take 13 advantage of some of the resources available 14 to him in the jail. In particular, he had 15 been seeing one of the psychologists in the 16 jail regularly and was showing signs of 17 progress. This is an encouraging sign. But 18 there are other aspects of the pre-sentence 19 report that are quite disturbing. 20 Mr. Irqqiut started seeing the 21 psychologist in May of 2016. The pre-sentence 22 report, as I said, was prepared in November of 23 2016. And at that point, Mr. Irqqiut 24 apparently, despite having attended AA for a 25 period of time, told the author of the report 26 he did not think he needed counselling or 27 treatment to address his alcohol problem.
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1 That's at page 6 of the report. 2 He also said that he did not think that he 3 could comply with the condition to stay away 4 from T.T. because of his perception that her 5 father was pressuring him to maintain a 6 relationship with her. That is at page 3 of 7 the report. 8 The report states at page 4 that Mr. 9 Irqqiut has used violence in prior intimate 10 relationships and when discussing his last 11 relationship, he appeared to justify his use 12 of violence. 13 So as of November 2016, it appears that 14 Mr. Irqqiut still had considerable work ahead 15 of him as far as gaining insight into his 16 conduct and taking full responsibility for his 17 actions. And this was just a few months ago. 18 I have talked about the sentencing 19 objectives. There are also a number of 20 sentencing principles that are set out in the 21 Criminal Code. 22 The fundamental principle of sentencing is 23 proportionality. A sentence should be 24 proportionate to the seriousness of the 25 offence and to the degree of blameworthiness 26 of the offender. Many other specific 27 principles are set out in the Code.
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1 I want to say a few words about restraint. 2 It is an important sentencing principle and it 3 has special implications in the sentencing of 4 Aboriginal offenders. Those principles were 5 explained by the Supreme Court of Canada in 6 the cases of Gladue, [1999] 1 SCR 688, and 7 Ipeelee, 2012 SCC 13, and they apply in this 8 case. The Gladue and the Ipeelee cases talk 9 about this principle of restraint, set out in 10 section 718.f1(e) of the Criminal Code, and 11 how it operates in the cases involving 12 Aboriginal offenders. The cases explain the 13 obligation that this provision places on 14 sentencing Judges. 15 One of these obligations is to take 16 judicial notice of systemic factors that have 17 contributed to the overrepresentation of 18 Aboriginal people in Canadian jails. Another 19 is to take into account case-specific factors, 20 namely, the specific circumstances faced by 21 the offender who is before the Court. These 22 things may have a bearing on the level of 23 blameworthiness of an offender for the crime 24 committed. If the blameworthiness is reduced 25 because of those factors, it may affect the 26 sentence ultimately imposed because of the 27 fundamental principles of proportionality.
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1 Another aspect of the direction given to 2 sentencing Judges in these cases has to do 3 with careful consideration of sanction: what 4 sanction is the most appropriate and most 5 likely to achieve the goals of sentencing, 6 having regard to the personal circumstances of 7 the offender before the Court and his or her 8 Aboriginal heritage. Depending on the 9 situation, the Court may be able to craft a 10 sentence that is better aligned with the 11 values of the offender and the offender's 12 community - a more meaningful sentence, a more 13 effective sentence. But of course the Court's 14 ability to do that depends on the 15 circumstances of each case and, importantly, 16 on what options the Court has. Just because 17 an offender is Aboriginal does not mean that 18 the resources, programs, or individuals that 19 are required to craft the desired sentence are 20 there. 21 In this case, there is ample evidence 22 before the Court about very difficult 23 circumstances that Mr. Irqqiut has faced as a 24 young Aboriginal child growing up in his home 25 community. No doubt, no doubt at all, those 26 circumstances have contributed to his 27 difficulties over the years. Those
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1 circumstances have to be taken into account. 2 To be clear, Mr. Irqqiut was victimized as a 3 child. He was a victim of abuse and neglect. 4 He suffered consequences from events that he 5 had absolutely no control over and no 6 responsibility for. As he grew up, he faced 7 numerous tragic losses. It is no surprise, as 8 I already said, that he developed issues with 9 substance abuse, anger and violence. 10 But the fact that the root causes of his 11 behaviours may be readily identifiable does 12 not change anything to the harm that this 13 behaviour can cause and has caused, including 14 the harm caused to T.T. who is also 15 Aboriginal. 16 As our Court of Appeal recently noted in 17 R. v. Bonnetrouge, 2017 NWTCA 1, paragraph 22: 18 If a person is dangerous, Gladue factors may explain how he came to 19 be dangerous but that does not make him any less dangerous. 20
21 Those comments were made in the context of 22 dangerous offender proceedings, which of 23 course engage different considerations than 24 does a regular sentencing hearing. But I 25 think the point is the same. Compassion and 26 understanding about how a person came to be 27 where they are at in life is one thing, but it
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1 does not remove the reality of the danger that 2 they present to others. 3 The crime of sexual assault covers a wide 4 range of possible conducts and it can give 5 rise to a wide range of possible sentences. 6 In this jurisdiction, as in some others, the 7 starting-point approach has been adopted by 8 our Court of Appeal. This guides sentencing 9 Judges in the exercise of their discretion. 10 There is no question at all that the 11 sexual assaults committed by Mr. Irqqiut (and 12 by this I mean the three different ways in 13 which he sexually assaulted T.T.) fit the 14 definition of "a major sexual assault" as 15 defined in R. v. Arcand, 2010 ABCA 363, and 16 adopted by our Court of Appeal in R. v. 17 A.J.P.J., 2011 NWTCA 2. The starting-point 18 for a single act that constitutes a major 19 sexual assault is three years imprisonment. 20 Adopting a starting-point approach, as I 21 often say, must not be confused with creating 22 a minimum sentence. A starting-point, as was 23 explained at length in Arcand simply reflects 24 the objective seriousness of a type of 25 offence. It tells sentencing courts where to 26 begin in the analysis. It does not tell them 27 where to stop.
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1 When a starting-point applies, the 2 sentence must be adjusted to reflect the 3 aggravating and mitigating factors of the 4 case. That is part of the principles that I 5 must take into account on this matter in 6 deciding whether I should follow the joint 7 submission. 8 The question comes down to whether this is 9 one of those cases where, in the words of the 10 Supreme Court of Canada in Anthony-Cook, 11 accepting the joint submission would cause 12 harm beyond the value gained by promoting 13 certainty of result. 14 As I have already said, the starting-point 15 for a "major sexual assault" is three years. 16 In this case, there are a number of 17 aggravating factors. 18 The first is that the sexual assault 19 involved multiple violations of T.T.'s 20 personal and sexual integrity. There was 21 forced anal intercourse and two separate 22 instances of Mr. Irqqiut forcing her to give 23 him oral sex. 24 The second is that Mr. Irqqiut used 25 violence to perpetrate his assault. When T.T. 26 tried to resist, she was grabbed by the hair 27 and forced back in the tent. She was struck
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1 in the face when she refused to comply with 2 his demand for oral sex. She was pinned to 3 the ground during the forced anal intercourse. 4 The violence used in the commission of the 5 offence is highly aggravating. 6 The third aggravating factor is that T.T. 7 suffered injuries as a result of this attack, 8 including injuries to her anus and bruising to 9 various parts of her body. The photographs 10 filed show bruising to her face, arm, leg and 11 neck. And when she was examined, there was 12 blood around her anus. Her Victim Impact 13 Statement confirms that she was hurt 14 physically as well as emotionally. 15 This was a prolonged assault during which 16 Mr. Irqqiut showed complete contempt and 17 disregard for T.T. At one point during the 18 anal intercourse she told him he was hurting 19 her but he just kept on doing what he was 20 doing. 21 Another very significant aggravating 22 factor is that Mr. Irqqiut had barely been 23 released from jail (only two weeks before this 24 incident) from serving a sentence for having 25 committed an assault on T.T. and causing 26 bodily harm to her. This is extremely 27 aggravating.
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1 His criminal record, as I have said, has a 2 number of convictions for assault. It also 3 shows an escalation in that violence and an 4 escalation of violence against T.T. 5 Mr. Irqqiut was on probation for the 6 assault causing bodily harm against T.T. when 7 this happened. He was not actually supposed 8 to have any contact with her. It is true that 9 initially she was in his presence voluntarily. 10 But she was not the one who was bound by a 11 court order; he was. 12 There is some element of breach of trust 13 here because of the parties' past relationship 14 but it is not as significant as it would be if 15 they still had been in a relationship. 16 T.T. was intoxicated and therefore more 17 vulnerable when the attack started but this is 18 not as much of a factor as it would be if she 19 had been sleeping or passed out when the 20 attack started. 21 But on the whole there are a number of 22 highly aggravating factors that suggest that a 23 significant increase from the three year 24 starting-point is necessary to reflect the 25 seriousness of this crime. 26 These aggravating factors must be balanced 27 with the mitigating factors. The main one
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1 here is the guilty plea. 2 Mr. Irqqiut's decision to plead guilty 3 came a few weeks before the start of his jury 4 trial. At that point, jury summonses had been 5 served of course. But there was sufficient 6 time to post notices and advertise to 7 prospective jurors that they did not need to 8 attend. There was also time for the Crown to 9 cancel its witnesses. This included one, I am 10 told, who would have had to travel from 11 Ontario. 12 The guilty plea no doubt saved court time 13 and resources, although as far as court time 14 is concerned, it must be recognized that on a 15 week's notice it is virtually impossible for 16 this Court to schedule another trial in the 17 place of the one that has collapsed. 18 The most significant aspect of the guilty 19 plea is that it avoided the need for T.T. to 20 testify about these events in front of a jury 21 and it provided certainty of outcome in this 22 case. The Court knows that is always a relief 23 for victims and always an important 24 consideration. 25 But given its timing, this guilty plea 26 cannot be given the same mitigating effect as 27 would be the case if it had been entered at an
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1 early opportunity. Here, it came very close 2 to the start of the trial, after a preliminary 3 hearing was held. T.T. had to testify at that 4 preliminary inquiry. 5 On December 5th, Crown counsel noted in 6 submissions that it was what he called an 7 "abbreviated preliminary hearing" or a 8 "focused preliminary hearing". T.T.'s 9 statement was introduced into evidence in lieu 10 of her testimony in-chief. Crown counsel 11 mentioned that the cross-examination was 12 focused and limited. 13 The cross-examination may not have been as 14 lengthy as is sometimes the case, but T.T. did 15 have to answer questions about all aspects of 16 the sexual assault. She also had to live for 17 over a year after that preliminary hearing 18 with the belief that this trial would go ahead 19 and that she would have to testify again. 20 Without taking away from the fact that a 21 guilty plea is an important mitigating factor 22 to consider on sentencing, and all things 23 being relative, the timing of the plea and the 24 fact that T.T. did have to testify about these 25 events at a preliminary hearing, must also be 26 taken into account in assessing the mitigating 27 impact of this plea.
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1 On the whole, all of this suggests to me 2 that a sentence significantly higher than the 3 three-year starting-point is required in this 4 case. 5 I have read carefully the three cases 6 submitted by the Crown: R. v. Laviolette, 7 2003 NWTSC 26; R. v. P.D.C., 2005 NWTSC 69; 8 and R. v. C.M., 2005 NWTSC 100. I am not going 9 to go into those cases in any great detail. I 10 will only say that there are, as is often the 11 case, distinguishing features in all of them. 12 It is true they all involve serious sexual 13 assaults. But in P.D.C., the offender was 14 youthful, had no record, had pleaded guilty at 15 a very early opportunity, and there had not 16 been a preliminary hearing. None of these 17 cases were cases where there was previous 18 violence against the same victim. None of 19 them were cases where a very serious crime was 20 committed only weeks after the offender was 21 released from a sentence imposed as a result 22 of an offence against the same victim. 23 I also note that these three cases date 24 back 12 to 14 years. It is perhaps telling, 25 considering how many sexual assaults come 26 before this Court, that no recent case was 27 submitted in support of the joint position.
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1 Against the backdrop of sentences imposed by 2 this Court on a regular basis for this, 3 unfortunately, very prevalent type of crime, I 4 see the three cases submitted as outliers as 5 opposed to being representative of the 6 sentences ordinarily imposed by this Court in 7 serious sexual assault cases. 8 I want to make it clear I have not lost 9 sight of Mr. Irqqiut's tragic circumstances in 10 all of this. 11 This is a very difficult case. It is 12 difficult because, as I have already said, Mr. 13 Irqqiut has suffered immensely in his life. 14 He has been exposed to numerous traumatic 15 events and it is no surprise that he has ended 16 up with many personal issues, including issues 17 with anger, substance abuse, and addiction 18 issues. It is perhaps not surprising at all 19 that for many years he has lived a 20 dysfunctional self-destructive lifestyle and, 21 that as part of destructive lifestyle, he has 22 harmed other people. Unfortunately he is not 23 the only one in that position. I want to 24 address this because it is something that 25 defence counsel referred to at length in his 26 submissions on December the 5th. 27 The addiction issues, the problems related
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1 to suicide, sexual abuse, and violence 2 generally, are staggering in this 3 jurisdiction. Many people have suffered 4 severe trauma and are now harming others, 5 causing more trauma and causing that cycle to 6 continue. Breaking the cycle requires more 7 than an acknowledgment that the situation 8 exists and declarations of good intentions. 9 They require resources. They require the 10 programs and the people to administer them. 11 They require treatment options. Until those 12 things are available, it is reasonable to 13 expect that the cycle will continue and more 14 people will be hurt. 15 The harm that was done to Aboriginal 16 people in this jurisdiction, and elsewhere in 17 Canada, has been documented, acknowledged, and 18 studied. We know, sadly, about the level of 19 trauma that many people have lived through 20 over the years. We know a lot of that harm 21 was the result of actions by the state. 22 Still, as counsel noted in submissions, there 23 continues to be so little by way of resources 24 to assist people who live every day with the 25 aftermath and consequences of all this harm, 26 compared to the need. This is terrible 27 because not only are many people not able to
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1 get the help they need to address their own 2 issues, but the problems are growing 3 exponentially. 4 Some victims of yesterday become the 5 abusers of today. And as more people are 6 abused, harmed and traumatized, it is fairly 7 predictable that some in this new generation 8 of victims and traumatized people, unless they 9 get help, may well turn into abusers and cause 10 more harm to the next generation. And on and 11 on this cycle goes. 12 I do not know what would be needed to help 13 address the issues some people face, with 14 individual trauma, intergenerational trauma, 15 the addiction issues, violence issues, sexual 16 abuse issues. Cases like this one, and sadly 17 many others, underscore the pressing and 18 urgent need for ways to help people move byond 19 this cycle and these tragic outcomes. 20 I return to the basic question that I 21 started with: Would a sentence of three years 22 and seven months be contrary to the public 23 interest given the overall circumstances of 24 this case? 25 After much anxious consideration, and with 26 the greatest respect for the contrary view, my 27 own view is that imposing the sentence
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1 suggested would cause a reasonably informed 2 public to lose confidence in the institution 3 of the Court because such a sentence would not 4 adequately protect the public and it would not 5 reflect the many serious aggravating features 6 of this case. 7 Mr. Irqqiut's terrible background helps 8 understand why he has anger and why he is 9 violent. And it is true that he does not 10 appear, until recently during this time on 11 remand, to have had access to the help and 12 resources that he needs to address the high 13 level of trauma he experienced as a child, 14 teenager, and young adult. But the fact 15 remains that those issues and his anger, in 16 conjunction with his substance abuse, have 17 resulted in him causing harm to others in the 18 past and grave harm to T.T. on this occasion. 19 He did so a very short time after his release 20 from the sentence that he had received after 21 having harmed her on a previous occasion. And 22 he also had yet another conviction for an 23 assault on her dating back to 2013. 24 As of when the pre-sentence report was 25 prepared and despite having started to work on 26 himself with the help of the psychologist for 27 six months before the report was prepared, Mr.
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1 Irqquit still said he did not think he could 2 stay away from T.T. and he still did not seem 3 to think he needed treatment for his alcohol 4 issues. This raises very serious concerns 5 about the adequacy of the proposed sentence to 6 adequately address the sentencing objectives. 7 The proposed sentence is not an 8 insignificant sentence of course, but in my 9 respectful view it would be contrary to the 10 public interest because it would overemphasize 11 Mr. Irqqiut's tragic personal circumstances at 12 the exclusion of other things that must also 13 be acknowledged at this sentencing, not the 14 least of which is the harm caused to T.T. who, 15 as I have mentioned, is Aboriginal. She is 16 entitled to the same protection from the Court 17 as anyone else. 18 In my view, doing what I have been asked 19 to do would offend the fundamental principle 20 of proportionality. 21 As I have already said, the test adopted 22 by the Supreme Court in Anthony-Cook instructs 23 sentencing judges to consider how a reasonable 24 and informed public would view a sentence. I 25 have to say that is probably much easier said 26 than done when it comes right down to it. All 27 that I can do is consider carefully the
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1 fundamental principles of sentencing, the 2 approach that our Court of Appeal directs me 3 to take, and decide whether what is being 4 proposed is so low and so offensive to those 5 principles that it could result in the loss of 6 confidence that the Supreme Court of Canada 7 talks about. I have concluded that it would. 8 That leaves the question of what sentence 9 should be imposed. In deciding that, I have 10 exercised as much restraint as I feel I can in 11 the circumstances, while keeping in mind the 12 other sentencing principles and objectives as 13 well. 14 There will, of course, be credit for the 15 time Mr. Irqqiut has spent on remand. Mr. 16 Irqqiut has spent a total of 877 days on 17 remand, which amounts to three years and seven 18 months if I give him credit on a ratio of one 19 and a half day credit for each day spent on 20 remand. 21 The last time this matter was before the 22 Court, counsel raised an issue about whether 23 probation would be available if, after having 24 given Mr. Irqqiut credit for his remand time, 25 I impose a further jail term that is two years 26 or less. It was suggested perhaps it was not 27 because the sentence that would have been
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1 imposed but for the remand time would be in 2 excess of two years. 3 I told counsel at the time I thought 4 probation was available and that I would 5 examine the issue further. I was advised, 6 after we concluded the proceedings in court, 7 that counsel, having considered the matter 8 further, were of the view that probation was 9 available if the further jail term imposed is 10 two years or less. 11 I have looked into this further. Probation 12 is available here. The issue was addressed 13 directly by the Supreme Court of Canada in 14 R. v. Mathieu, 2008 SCC 21. 15 Section 731 of the Criminal Code says that 16 a Court can order probation in addition to a 17 jail term not exceeding two years. In 18 Mathieu, the Supreme Court interpreted that 19 "two years" to be a reference to the jail term 20 imposed after consideration of remand time. 21 The amendments to the provisions of the Code 22 that deal with credit to be given for remand 23 time do not alter in any way the Supreme Court 24 of Canada's reasoning in that regard. 25 Probation is available if the further jail 26 term that I impose today is two years or less. 27 It is very clear to me that it is
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1 absolutely necessary for Mr. Irqqiut to have 2 the benefit of supervision and support for as 3 long as possible after his release, given the 4 magnitude of the issues that he has to try to 5 work through. As I have already said, the 6 pre-sentence report raises many concerns about 7 his level of insight into his behaviour and as 8 much as the issues he has faced in his life 9 make it easy to understand why he has those 10 issues, the fact remains that until they are 11 addressed, he presents a threat to public 12 safety. 13 The Crown has asked for a number of 14 ancillary orders. They are all mandatory for 15 this type of offence. 16 This is a primary designated offence so 17 there will be a DNA order. 18 There will be an order that Mr. Irqqiut 19 comply with the requirements of the Sex 20 Offender Information Registration Act for a 21 period of 20 years. 22 There will be a firearms prohibition that 23 will commence today and expire ten years after 24 his release, under section 109 of the Criminal 25 Code. 26 There will be the victim of crime 27 surcharge, as I have no discretion to waive
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1 it. 2 Can you stand up, please, sir. 3 Mr. Irqqiut, for the sexual assault that 4 you have committed against T.T., if you did 5 not have any remand time I would have imposed 6 a sentence of four years and ten months. I am 7 giving you credit for three years and seven 8 months for the time that you have already 9 spent in custody. So there will be a further 10 jail term of 15 months. 11 You can sit down. 12 This will be followed by a period of 13 probation for three years. The conditions 14 will be that Mr. Irqqiut be under the 15 supervision of a probation officer; 16 That he report to a probation officer 17 within 24 hours of his release from custody, 18 and thereafter as required; 19 That he have no contact with T.T.; and, 20 That he take counselling and treatment as 21 directed and as can be arranged by the 22 probation officer as long as he consents to 23 it. Treatment cannot be imposed on Mr. 24 Irqqiut but I really hope that if it is 25 offered, he will take advantage of it. 26 Whatever the reasons why there were some 27 recent difficulties with the process that had
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1 started with the psychologist in the jail, I 2 sincerely hope that now that these proceedings 3 are over, Mr. Irqqiut will be able to resume 4 seeing the psychologist and that he will 5 continue to do so after his release, as I have 6 been told that this is an available option. I 7 sincerely hope that being under the 8 supervision of the probation officer and 9 having help from that probation officer will 10 be of assistance to him after his release. 11 Mr. Irqqiut is still young and it is not 12 too late for him to try to break out of this. 13 I really hope that he gets the help that he 14 needs to change the direction of his life. 15 Mr. Praught, from your perspective is 16 there anything that I have overlooked? 17 MR. PRAUGHT: No, Your Honour. 18 THE COURT: Mr. Harte, anything that I 19 have overlooked? 20 MR. HARTE: No, thank you, Your Honour. 21 THE COURT: Any other conditions of 22 probation that I could include that could 23 assist him? 24 MR. HARTE: Not -- residential treatment 25 is an available option, if that is something 26 that can be set up via probation, and so I 27 can't think of anything else.
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1 THE COURT: I will simply say that when 2 the time comes, this order can be amended in 3 any way to add strength to it in terms of of 4 Mr. Irqqiut being able to access treatment, I 5 would certainly consider an application to 6 vary. For example, if an order of this Court 7 would add pressure or facilitate placement or 8 anything along those lines that would be 9 helpful to Mr. Irqqiut, I would urge you, Mr. 10 Harte, to bring the matter back. Because it 11 is very clear on the evidence before me that 12 significant intervention is needed; you made 13 that point and I agree. The Court only has 14 limited options and really no control over 15 what is available. But if there is anything 16 that this Court can do that would assist, then 17 I would invite an application to amend the 18 probation order so that this can be done. 19 MR. HARTE: Thank you, Your Honour. 20 THE COURT: I thank counsel for their 21 submissions. We will close court. 22 ------------------------------------------- 23 24 25 26 27
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1 2 Certified to be a true and accurate transcript pursuant 3 to Rules 723 and 724 of the Supreme Court Rules, 4
5 6 7 8 ____________________________ 9 Lois Hewitt, Court Reporter 10
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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