Академический Документы
Профессиональный Документы
Культура Документы
Lucassie Ipeelie
Appellant
-and-
_______________________________________________________
The Court:
The Honourable Madam Justice Myra Bielby
The Honourable Mr. Justice Andrew Mahar
The Honourable Mr. Justice Thomas W. Wakeling
Memorandum of Judgment
Appeal from the Sentence by
The Honourable Mr. Justice N. Sharkey
Dated the 17th day of February, 2014
(Docket: 08-12-500; 08-12-563)
MEMORANDUM OF JUDGMENT
(NOTE: This document may have been edited for publication)
I. INTRODUCTION
[1]
By way of an agreed statement of facts, Mr. Ipeelie admitted that in the early
hours of August 14, 2012, he approached the victim a virtual stranger
walking home from work in Iqaluit, Nunavut and coerced her to go behind
a house, where he pushed her to the ground and proceeded to have
unprotected and non-consensual sexual intercourse with her. She actively
resisted him to no effect.
[3]
As a result of a passerby hearing her cries, two police officers arrived on the
scene at about 2:17 am to find Mr. Ipeelie on top of the victim, who was
squirming, trying to get away and telling him to get off. The police officer
who pulled him off could see Mr. Ipeelies penis exiting the victims vagina.
[4]
[5]
As a result of Mr. Ipeelies guilty plea, the complainant was spared the need
to testify at a preliminary inquiry as well as at trial. At the time of sentencing,
Mr. Ipeelie had eight prior convictions for impaired driving, three assaults,
and breach of conditions of judicial interim release. Each of the assaults was
on the same woman, a former girlfriend. At the time of this offence he was
bound by two probation orders. He had been out of prison for only a couple
of months and had been charged with impaired driving during that time. He
struggled with alcohol abuse.
[6]
Mr. Ipeelie was 25 years old at the time of sentencing, single, and had no
children. He had the support of his parents, both solid citizens. He was a
skilled mechanic and finished heavy equipment training in 2010. He had
worked as a driller, both seasonal and part-time, for five years. He was
active on the land, which we interpret to mean that he was an active hunter
and fisherman.
[7]
The Crown sought a sentence in the range of four years, which would have
to be served outside of Nunavut given the lack of penitentiary facilities within
the territory. Mr. Ipeelies counsel sought a sentence of the maximum
possible territorial jail time, two years less a day, to be followed by the
maximum period of probation permitted, three years.
[8]
The sentencing judge found Mr. Ipeelies moral culpability for the offence to
be high; he was a man with a clear predilection for crime and violence when
drinking, yet he continued to drink. His crime was purposeful, and he
ignored the victims pleas for help and for him to stop. The judge noted his
obligation to consider the remedial provisions of s 718.2 of the Criminal
Code of Canada, RSC 1985, c C-46 [Criminal Code], given that Mr. Ipeelie
is an aboriginal, while noting that his victim was also aboriginal.
[9]
After observing that Nunavut endured the highest rate of sexual assault in
the nation, and the egregious nature of the circumstances in which this
offence took place, the sentencing judge concluded that a proper sentence
would be in the range of six to 10 years imprisonment, depending on the
record of the offender. He then expressly considered the effect of the
mitigating factors of a relatively prompt guilty plea and Mr. Ipeelies
significant steps taken toward rehabilitation while on bail in reducing the
sentence to one of four years imprisonment.
[10] In imposing this sentence, the judge found the following factors to be
aggravating:
(a)
(b)
(c)
(d)
(e)
(f)
5
[15] The flaw in this argument is that it treats four years as the maximum sentence
which could be imposed, whereas Parliament has imposed an upper limit of 10years imprisonment for sexual assault in s 271(a) of the Criminal Code. The fouryear sentence imposed in Mucpa was not determined because it was the upper
limit of any fit sentence, but was the end result of applying both the aggravating
and mitigating factors existing in that case. And here, the sentencing judge must
also have applied both the aggravating and mitigating factors to the sentencing
range he articulated of six to 10 years, given that his ultimate conclusion was that
a four year sentence was fit.
[16] Finally, even if a proper sentencing range can be established through reference to
reported cases, Mr. Ipeelies four-year sentence obviously falls within this range.
We otherwise reject the suggestion that a sentence of more than four-years
imprisonment is presumptively unfit.
A. Mitigating effect of prospects for rehabilitation
[17] While Mr. Ipeelies counsel agreed that the sentencing judge acknowledged
his obligation to consider the provisions of s 718.2(e) of the Criminal Code,
in the context of the Supreme Court of Canadas interpretation of that
section set out in R v Gladue, [1999] 1 SCR 688, [1999] 1 SCR 688 (QL)
[Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], she
argued that he was thus compelled to give extra weight to Mr. Ipeelies
prospects for rehabilitation, which he did treat as a mitigating factor. Section
718.2(e) of the Criminal Code directs:
S. 718.2 A court that imposes a sentence shall also take into consideration the
following principles: ...
(e) all available sanctions other than imprisonment that are reasonable in the
circumstances should be considered for all offenders, with particular attention
to the circumstances of aboriginal offenders.
[18] While she did not argue that a sanction other than imprisonment would be
appropriate for Mr. Ipeelie, counsel suggested the interpretation given to s
718.2(e) by the Supreme Court of Canada in Ipeelee, supported her
proposition that prospects for rehabilitation should be considered as
particularly mitigating in the case of an aboriginal offender. In that case,
LeBel J, writing for the majority, gave this context for interpreting the
statutory provision:
[59] The Court held ... that s. 718.2(e) of the Code is a remedial provision
designed to ameliorate the serious problem of overrepresentation of
Aboriginal people in Canadian prisons, and to encourage sentencing judges to
have recourse to a restorative approach to sentencing (Gladue, at para. 93). It
does more than affirm existing principles of sentencing; it calls upon judges to
use a different method of analysis in determining a fit sentence for Aboriginal
offenders. Section 718.2(e) directs sentencing judges to pay particular
attention to the circumstances of Aboriginal offenders because those
circumstances are unique and different from those of non-Aboriginal
offenders (Gladue, at para. 37)... Judges may take judicial notice of the broad
systemic and background factors affecting Aboriginal people generally...
[60] Courts have, at times, been hesitant to take judicial notice of the systemic
and background factors affecting Aboriginal people in Canadian society (see,
e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts
must take judicial notice of such matters as the history of colonialism,
displacement, and residential schools and how that history continues to
translate into lower educational attainment, lower incomes, higher
unemployment, higher rates of substance abuse and suicide, and of course
higher levels of incarceration for Aboriginal peoples. These matters, on their
own, do not necessarily justify a different sentence for Aboriginal offenders.
Rather, they provide the necessary context for understanding and evaluating
the case-specific information presented by counsel... (R v Ipeelee, 2012 SCC
13, [2012] 1 SCR 433 at paras 59-60).
[19] Mr. Ipeelies counsel observed that in Nunavut the history of displacement of
the Inuit is fresh; many people still alive recall living in the traditional way
before relocation to current settlements by the federal government. Alcohol
abuse is rife in the territory. Aids to rehabilitation are few in comparison to
those available in southern urban areas. As such, addressing alcohol
addiction is especially challenging in Nunavut, and success particularly
uncertain.
[24] Further, the sentencing judges comment that there is little likelihood that
any court would have considered releasing [Mr. Ipeelie] unless the
conditions had been exceptionally restrictive is not an error, but a reflection
of the fact that time spent on release, or bail, is not generally treated as a
factor mitigating the length of a subsequent sentence of incarceration.
Further, the fact that Mr. Ipeelie was released pending conviction and
sentencing gave him the opportunity to engage in improved behaviour,
leading the judge to consider as evidence the likelihood of future
rehabilitation which he took into account as a mitigating factor.
VI. OTHER SENTENCING CONSIDERATIONS
[25] We do not interpret the sentencing judges inference that the victim may
have declined to give a victim impact statement because she did not want to
revisit the horror of the offence as a separate, additional aggravating factor
from that of the inferred harm to the victim. It was open to him to treat the
circumstances in which the offence occurred, a street rape, in the dark, by a
stranger, as aggravating. It was open to him to infer harm to her as a result,
and to treat that harm as an aggravating factor. His comments regarding the
absence of a victim impact statement are simply part of that context.
[26] The sentencing judge also did not err in treating the offence as predatory.
That flows from the perspective of the victim, not of the offender. Whether
Mr. Ipeelie planned the sexual assault or it was simply an impulsive crime
driven by opportunity made little difference to the impact on the victim, or to
the larger community.
[27] In summary, the resulting sentence is demonstrably fit given the moral
blameworthiness of the offender as well as his degree of responsibility.
VII. CONCLUSION
[28] We dismiss this appeal.
Bielby J.A.
Mahar J.A.
Wakeling J.A.
10
Appearances:
S.L. Wheildon
for the Respondent
S. Charlesworth
for the Appellant