Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Iqalukjuaq, 2020 NUCJ 15

Date: 20200615
Docket: 08-18-584
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Roonie Iqalukjuaq

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): J. Marshall

Counsel (Accused): S. Siebert

Location Heard: Iqaluit, Nunavut

Date Heard: January 7, 2020
Matters: Sentencing for offence under section 272(1)(c) of the
Criminal Code of Canada, RSC 1985, c C-46, pursuant to
ss. 718.2(e) and 718.201.

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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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not be published in any document or broadcast or transmitted in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.”

Anonymized Judgment Disclaimer:

This judgment has been partially anonymized to comply

with legislative requirements or at the discretion of the
authoring Justice to protect vulnerable parties.
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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.

[2] On 7 January 2020 Mr. Iqalukjuaq pleaded guilty to sexual assault

causing bodily harm. The parties presented an Agreed Statement of
Facts to the Court. I heard sentencing submissions from counsel, and
I reserved my decision concerning the appropriate sentence until
today, 27 February 2020.

II. FACTS

[3] I will first briefly outline the relevant 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.

III. THE PARTIES’ POSITIONS

[9] I will now outline briefly counsel’s positions on sentence.

A. The Crown

[10] The prosecutor highlighted the violence, fear, threats, degradation

and humiliation which the offender inflicted on X. The prosecutor then
referred the Court to the recent publication “Addressing Gendered
Violence against Inuit Women: A review of police and practices in
Inuit Nunangat”.1 That quote bears repetition here:

Gendered violence against Inuit women is a problem of massive

proportions. Women in Nunavut are the victims of violent crime at a
rate more than 13 times higher than the rate for women in Canada as a
whole. The risk of a woman being sexually assaulted in Nunavut is 12
times greater than the provincial/territorial average. In 2016, Nunavut
had the highest rate of female victims of police-reported family
violence in Canada, the Northwest Territories had the second highest
rate, and Yukon had the third highest.2

[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”.

1 Pauktuutit Inuit Women of Canada, January 16, 2020.

2 Ibid at 4.
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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.

IV. SENTENCING PRINCIPLES

[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.

3 Criminal Code of Canada, R.S.C. 1985, Chap. C-46.

4 This is called proportionality. “A sentence must be proportionate to the gravity of the offence
and the degree of responsibility of the offender”. Ibid at s. 718.1.
5 Ibid at s. 718.
6 Ibid at s. 718(c).
7 Ibid at s. 718.2(e). These are the ‘Gladue factors’ explained by the Supreme Court of Canada in

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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[17] There are several aggravating factors in this case.

1. Mr. Iqalukjuaq is a repeat violent offender.

2. Mr. Iqalukjuaq voluntarily assumed a position of trust towards X
when he invited her into his home – a trust which he then violated.
3. X was especially vulnerable because she was isolated with Mr.
Iqalukjuaq in his home.
4. Mr. Iqalukjuaq threatened to kill X if she tried to escape.

[18] There is one mitigating factor in this case.

[19] Mr. Iqalukjuaq pleaded guilty thereby accepting responsibility for his
actions – albeit only on the first day of his second trial.

V. THE OFFENDER

[20] I will now say a few words about the offender.

[21] Mr. Iqalukjuaq is a single 44-year-old with no dependants. His counsel

placed several Gladue factors before the Court. I was told Mr.
Iqalukjuaq suffered violence at home as a child. His parents abused
alcohol. His lawyer said this experience caused him “deep and
significant trauma … which affects his ability to control his impulses”.
He was fostered as a teenager after his grandmother died. He has
experienced homelessness at various times. He lives in a shack on
Iqaluit’s downtown beach. He is said to be “unhappy with his life”. His
lawyer said that Mr. Iqalukjuaq functions at a low level and “knows he
needs help”.

[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).

[23] I am therefore sentencing an Indigenous adult repeat offender who

has a troubling history of committing serious violent crime.
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VI. CANADIAN VICTIMS BILL OF RIGHTS

[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.

[25] Mr. Iqalukjuaq’s victim declined to provide a victim impact statement.

VII. ANALYSIS

[26] The prosecutor has asked the Court to consider the frequency of
reported sexual violence in Nunavut. I shall do so now.

[27] I am sentencing Mr. Iqalukjuaq for his violent sexual assault on X.

However, Mr. Iqalukjuaq did not commit his crime in a societal
vacuum. Physical and sexual violence against women – young and
old - in Nunavut is of epidemic proportions. Tragically, these cases
continually dominate our court dockets throughout the Territory.

[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.

9 Canadian Victims Bill of Rights, SC 2015, c 13, s 2.

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[29] In 1995, Parliament codified the sentencing regime. In the process,

Parliament amended the Criminal Code to oblige sentencing judges to
account for the unique circumstances which confront Indigenous
offenders.10 In the later Gladue and Ipeelee cases, the Supreme
Court of Canada gave legal substance to this requirement.11 There is
now a growing body of case law across Canada which discusses how
these Gladue principles ought fairly to be applied.12 Tragically, over
20 years later, Indigenous offenders continue to be incarcerated at
rates vastly higher than other Canadians.13

[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.

[31] As we have seen, the rights of victims of crime received broader

recognition in 2015 with the coming into force of Bill C-32. Bill C-32
did more, though, than simply provide for the Victims Bill of Rights.
Just as importantly, the Bill amended Criminal Code section 718.2(e).
The section now reads as follows with the 2015 amendment
underlined:

(e) all available sanctions, other than imprisonment, that are

reasonable in the circumstances and consistent with the harm done
to victims or to the community should be considered for all
offenders, with particular attention to the circumstances of
Aboriginal offenders. [emphasis added]

[32] The 2015 amendment requiring that a just sentence must be

“consistent with the harm done to victims or to the community” has
particular resonance for Nunavummiut. In Nunavut, this amendment
ought to be considered and applied in light of the unique vulnerability
of Inuit women living in our far flung and isolated communities.

10 This is codified in section 718.2(e), Criminal Code, supra note 3.

11 R v Gladue, supra note 7; R v Ipeelee, [2012] 1 S.C.R. 433, 280 C.C.C. (3d) 265.
12 See, for example, R v Cooper-Flaherty, 2017 NUCJ 11.
13 “Indigenous incarceration rate ‘a travesty,’ Canada’s prison watchdog says”, Nunatsiaq News,

January 22, 2020.

14 Clayton C. Ruby et al., Sentencing [ Ninth Edition ] (Lexis Nexis Canada, 2017), page 729.
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[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.

[34] This consideration is appropriate, and it is a welcome development in

the law; particularly here as the Nunavut Court of Justice is a Gladue
court. However, in my view, this new consideration has a broader
application – and immediate relevance – in Nunavut.

[35] The inter-generational effects of colonialism have not only contributed

to the staggeringly high rates of Indigenous offending. This was the
problem sought to be addressed by Criminal Code section 718.2(e)
and Gladue. The impact of colonialism also gave rise to the very
same inter-generational effects which have left all Inuit women – and
not just intimate partners - in a particularly vulnerable position in
society. In my view, this reality ought to inform the deliberations of a
Nunavut sentencing judge when sentencing an offender who has
victimized an Inuk woman.

[36] In a broader context, there is persuasive legal authority that the

frequency or prevalence of crime in a community is not an
aggravating factor in sentencing. However, the sentencing judge is
entitled to consider that fact—one factor among others—when
imposing a sentence on an offender.16 A sentencing judge is entitled
to consider the broader societal context as he balances the various
relevant sentencing principles.

[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.

[38] Mr. Iqalukjuaq subjected X to a prolonged and serious assault before

he viciously sexually assaulted her. The facts of the case, and the
personal circumstances of this repeat Indigenous violent offender,
require me to emphasize denunciation and deterrence in this case.

15 Criminal Code, supra note 3, section 718.201.

16 See R v Lacasse, 2015 S.C.J. No. 64, [2015] 3 S.C.R. 1089, at para 90 (S.C.C.).
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[39] This prison sentence is consistent with traditional norms of Inuit

justice. When a person threatened the traditional group’s safety and
security, that person could be, and sometimes was, banished. In other
words, he was separated from the community. Many were welcomed
later back into the group. Forgiveness, reconciliation, reintegration
and restitution were, and still remain, key concepts of Inuit societal
relations. Similarly, Mr. Iqalukjuaq now must be separated from the
community. He will be released, and he will return home. We all hope
he will work to regain his community's trust.

VIII. SENTENCE

[40] Mr. Iqalukjuaq, on the aggravated sexual assault of X, I sentence you

to six years (2,190 days) in a federal penitentiary. On the uttering
death threats to X, I sentence you to 180 days concurrent.

[41] In my view, this penitentiary sentence is “consistent with the harm”

you did to X. The effects of serious crimes of violence also have
effects which ripple through our small remote communities. This
penitentiary sentence is also consistent with the harm you have done
to your community.

A. Credit for remand custody

[42] I now turn to the remand credit available to Mr. Iqalukjuaq.

[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.

17 As endorsed on the Information.

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[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

[47] I now impose three ancillary, or related, Criminal Code orders. I

impose:

1. A mandatory lifetime firearm prohibition pursuant to section 109;

2. A mandatory lifetime sex offender registry order pursuant to section
490.013(2.1); and
3. A non-communication order forbidding Mr. Iqalukjuaq from
contacting X while he is in the penitentiary pursuant to section
743.21.

Dated at the City of Iqaluit this 15th day of June, 2020

___________________
Justice P. Bychok
Nunavut Court of Justice