Cour de Justice Du Nunavut
Cour de Justice Du Nunavut
Cour de Justice Du Nunavut
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DISCLAIMER PAGE
Restriction on Publication:
By court order made under section 486.4 of the Criminal Code, “any
information that could identify the complainant or a witness shall
not be published in any document or broadcast or transmitted in
any way.”
I. BACKGROUND
[1] The offender, Mr. Iqalukjuaq was charged with several Criminal Code
offences including aggravated sexual assault. The incident happened
in Iqaluit on 28 June 2018 in a shack behind the old courthouse. Mr.
Iqalukjuaq was remanded into custody pending his trial. On 21
February 2019 Mr. Iqalukjuaq was ordered to stand trial in August
2019. On 22 August, Justice Earl Johnson declared a mistrial. The
case was subsequently rescheduled for trial on 6 January 2020.
II. FACTS
[4] The female victim, who I shall call X, knew the offender. They were
not involved in an intimate partner relationship. At around 9 p.m. on
27 June 2018 X dropped by the offender’s shack for a visit. The
offender was drinking wine when she arrived, and she accepted his
offer to join him. Both the offender and X became intoxicated over the
next few hours.
[5] X later told police that the offender suddenly became angry “out of
nowhere”. The offender began “to beat her up” to force her to have
sex with him. He punched X repeatedly on her face, both sides of her
head as well as the back of her head. He then slapped her around
before throwing her down onto the floor. The offender was threatening
to kill her if she said anything. X told the police that “I thought he was
really going to kill me”.
[6] At some point, the offender picked something up and he hit her with it,
cutting her. The offender ordered her onto his bed, and he threatened
to kill her again if she tried to leave. The offender poured water all
over her. Then, he sexually assaulted her.
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[7] The police later found and seized as evidence a used condom in a
small garbage pail in the shack, and a blood stained pillowcase. Each
item was examined at the forensic laboratory. X’s DNA was found on
the outside of the condom. The condom contained the offender’s
sperm. The blood on the pillowcase came from X.
[8] The offender left X with bruises on her face, swollen eyes and a cut to
her left eye lid which required multiple stitches to close. X also
suffered a bump to the back of her head as well as pain and soreness
on her hips, ribs, and shoulders. In fact, X was concerned that the
offender had broken some of her ribs, but this was ruled out after she
received x-rays.
A. The Crown
[11] The prosecutor stated that the Court ought to give primacy to
denunciation, deterrence and the frequency of these violent crimes in
Nunavut. The prosecutor suggested that the sentencing range for
sexual assault causing bodily harm across Canada is in the three to
12 year range. In his view, the offender ought to receive six years in a
federal penitentiary for this “major sexual assault”.
B. The Defence
[12] Defence Counsel stated that the parties were “not far apart” in their
recommended sentences. She stated that the offender should be
given credit for his guilty plea and his acceptance of responsibility.
She referred the Court to various Gladue factors; I will return to these
factors momentarily. She suggested that the usual sentencing range
for these offences in Nunavut is two to four years. She called the
prosecution’s six-year recommendation “crushing”. Instead, she
asked the Court to impose a five-year penitentiary sentence.
[13] I will now say a few words about the sentencing principles which I
must apply. These principles are found in Part XXIII of the Criminal
Code.3
[14] First and foremost, the punishment must fit the crime.4 In this case,
the sentence I impose must denounce emphatically gendered crimes
of sexual violence and, hopefully, deter this offender and others from
committing them.5 This is a case where the offender must be
separated from society.6
[15] I must account for the effects of historic and systemic colonialism and
inter-generational trauma experienced by Inuit.7 And, I must consider
that Mr. Iqalukjuaq’s actions were a serious violation of the principles
of Inuit Qaujimajatuqangit.
[16] The Criminal Code also requires judges to consider aggravating and
mitigating factors.8 Aggravating factors work to increase the sentence.
Mitigating factors tend to lessen the sentence.
R. v. Gladue [1999] S.C.J. No. 19, 133 C.C.C. (3d) 385. I will discuss this aspect of the case later
in my analysis.
8 Ibid at s. 718.2(a).
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[19] Mr. Iqalukjuaq pleaded guilty thereby accepting responsibility for his
actions – albeit only on the first day of his second trial.
V. THE OFFENDER
[22] The offender has a long and troubling criminal record dating back to
1994. Among his convictions include assault (2004, 2010), assault
causing bodily harm (2002, 2010), assault with a weapon (2004),
aggravated assault (2004), sexual assault (2004), assaulting a peace
officer (2010), criminal harassment (2014), and uttering threats (1997,
1998, 1998, 1999, 2004 x 2, 2010).
[24] I now turn to Bill C-32 which received Royal Assent in 2015. Among
other things, the Bill provided for a new Victims Bill of Rights. Victims
of crime have the right to be heard in court.9 They may read out loud,
or file, a “victim impact statement”. These statements help ensure
victims are not ignored during the sentencing process.
VII. ANALYSIS
[26] The prosecutor has asked the Court to consider the frequency of
reported sexual violence in Nunavut. I shall do so now.
[28] What Mr. Iqalukjuaq did to X was every woman’s nightmare. As the
recent Pauktuutit report reminds us, Inuit women in particular are
among this country’s most vulnerable. How does the Nunavut
sentencing judge account fairly for that reality? Ought that
consideration play a role in sentencing? In my view, recent
developments in the law suggest strongly that the unique vulnerability
of Inuit women is an important consideration at sentencing.
[30] From this offender-focused analysis, the criminal law has developed
in a more holistic direction. As one commentator has noted: “Victims
are playing an increasingly significant role, both formally and
informally, in the sentencing of offenders in Canada”.14 This is as it
should be. One cannot judge a crime fairly without understanding how
its victim was hurt. And, this is particularly relevant when one
considers the impact of crime on vulnerable Inuit women.
[33] Late last year, Parliament turned its attention to the unique position of
some Indigenous victims. Effective 19 September 2019 sentencing
judges are required – in the case of intimate partner violence – to
“consider the increased vulnerability of female persons who are
victims, giving particular attention to the circumstances of Aboriginal
female victims”.15 In effect, Parliament has expanded the application
of Gladue principles to a specific class of Indigenous victim.
[37] On this basis, I agree with the prosecutor that I ought to consider the
prevalence of reported gendered sexual violence in Nunavut as I
apply the principles and seek the objectives of sentencing.
VIII. SENTENCE
[43] Mr. Iqalukjuaq has been in custody since late in the evening of 28
June 2018. He has been on remand for 610 days.
[44] Normally, Mr. Iqalukjuaq would be entitled to credit at the rate of one
and a half to one for each one of those days. However, Mr. Iqalukjuaq
refused to attend court on 8 January 2019. The presiding judge that
day ordered a bench arrest warrant for Mr. Iqalukjuaq.17 The judge
also stated that Mr. Iqalukjuaq would not receive extra remand credit
for the time between his refusal to attend court on 8 January and his
next court appearance on 20 February.
[45] I take judicial notice of the fact that prisoners refusing to attend court
in 2019 created real delays in numerous cases. In my view, the judge
presiding on 8 January 2019 was right to defend the court’s integrity
and process by denying extra remand credit as a consequence of Mr.
Iqalukjuaq’s refusal to attend court. I will not give Mr. Iqalukjuaq
enhanced, or extra, credit for the 42 days between 8 January and 20
February 2019. I give him credit during that time at the rate of one to
one.
[46] According to law, I give him enhanced remand credit at the rate of
one and a half to one except for the 42 day period I have just
discussed. Stated another way, I give Mr. Iqalukjuaq enhanced credit
based on 568 days – 610 less 42. At one and a half to one, Mr.
Iqalukjuaq’s remand credit, then, totals 852 days. I now add straight
credit for the 42 days: this totals 894 days of remand credit. I subtract
this 894 days credit from his six year (2,190 days) sentence. Mr.
Iqalukjuaq, you will serve the remaining 1296 days in a federal
penitentiary.
B. Ancillary orders
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Justice P. Bychok
Nunavut Court of Justice