Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R v. Akpaliakluk, 2016 NUCJ 24

Date:
Docket:
Registry:

20160920
08-15-246
Iqaluit

Crown:

Her Majesty the Queen

-and-

Accused

Joe Akpaliakluk

________________________________________________________________________
Before:

The Honourable Mr. Justice Burrows

Counsel (Crown):
Counsel (Accused):

B. Flight
L. Walker

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
July 21, 2016
Criminal Code of Canada, RSC 1985, c C-46, s. 271

REASONS FOR JUDGMENT

(Delivered Orally)

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

I. INTRODUCTION
[1]

Mr. Akpaliakluk pled guilty to this charge:

On or about the 26th day of January, A.D. 2015, at or near
the City of Iqaluit, in the Territory of Nunavut, did commit a
sexual assault on [the complainant] contrary to section 271
of the Criminal Code of Canada, RSC 1985, c C-46
[Criminal Code].

[2]

At the sentencing hearing on July 21, 2016, Mr. Akpaliakluk

acknowledged the accuracy of the Crowns statement of facts. The
essential elements of which are:
1. On January 26, 2015, Mr. Akpaliakluk and his cousin, the
complainant, had been drinking with two other people at
the complainants house. The others left the house, and the
complainant and Mr. Akpaliakluk continued to drink into the
early morning hours. The complainant went to bed. Mr.
Akpaliakluk was still in her house.
2. The complainant woke up and discovered Mr. Akpaliakluk
on top of her with his penis in her vagina. Initially she did
not know who was on top of her because it was dark. She
realized it was Mr. Akpaliakluk and told him to get off and
tried to push him off, but he did not and continued for what
felt to the complainant like five minutes.
3. When Mr. Akpaliakluk stopped, he tried to perform oral sex
on the complainant, but she told him not to.
4. Mr. Akpaliakluk got dressed and went downstairs.
5. The complainant phoned Mr. Akpaliakluk the next morning
and he apologized to her. She has not seen or spoken to
Mr. Akpaliakluk since.
6. The complainant reported the assault to police on March
30, 2015.

7. Mr. Akpaliakluk was cooperative with the police when

arrested. He provided a statement in which he maintained
that he did not remember what had occurred on the night in
question. He did say that he was sorry to the complainant,
but did not elaborate further.
II. ANALYSIS
[3]

I am satisfied that the elements of the offence to which Mr.

Akpaliakluk pled guilty are contained in the facts outlined by the
Crown and acknowledged by Mr. Akpaliakluk. I find
Mr. Akpaliakluk guilty as charged and direct that a conviction be
entered.

[4]

The complainant provided a Victim Impact Statement in which she

describes the effects Mr. Akpaliakluks crime has had on her. It is
clear that she has suffered significant emotional distress, that formerly
close ties to family members (Mr. Akpaliakluks mother and sisters)
have been jeopardized, that she is fearful of Mr. Akpaliakluk, and that
she is concerned about the consequences for her, Mr. Akpaliakluk,
and their extended family of her having reported his crime to the
authorities.

[5]

A pre-sentence report was prepared. It indicates that Mr. Akpaliakluk

is 37 years old. He was born in Iqaluit, but was raised in another
community. He is the third eldest of his parents seven children. He
and his siblings had a rough upbringing as his parents often drank
and his father was physically abusive towards his mother and the
children. His parents divorced when he was 16 and he moved to
Iqaluit. His siblings remained in the other community. His father
continues to reside there. His mother now lives outside Nunavut. He
reported that his ties to his siblings continue to be strong.

[6]

Mr. Akpaliakluk was a victim of sexual abuse as a child. He had not

told anyone of the abuse until after he encountered his abuser in a
prison in Ontario. The pre-sentence report indicates that the abuse he
suffered as a child still causes Mr. Akpaliakluk significant mental
anguish for which he has not received counselling or other
assistance.

[7]

Mr. Akpaliakluk and his partner of nearly 20 years have two

adolescent sons. His relationship with his partner has been volatile
and has involved domestic violence; in respect of which he has been
criminally charged several times in the past.

[8]

He has a Grade 5 education. He has worked on and off for various

employers. He now relies largely on Income Support for food,
clothing, and housing.

[9]

Mr. Akpaliakluk advised the author of the pre-sentence report that he

uses marijuana regularly, is a binge drinker, and at times blacks out
from drinking too much alcohol. He has never attended a treatment
facility and has never had long-term counseling.

[10] Mr. Akpaliakluk has a lengthy criminal record. As an adult, he has

been before the courts on 12 previous occasions since 1999. In all,
but two instances, the lead offence was assault including four
instances of spousal assault. There is no previous conviction for
sexual assault. The sentences imposed have involved incarceration
on all, but one occasion. The total of all the sentences imposed
amounts to about eight years over the last 16 years. As I interpret the
criminal record statement provided by the Crown, his sentence would
have been served in a federal prison on only two instances.
Probation has been imposed on four occasions.
A. Crown position
[11] The Crown sought a sentence of between three and three and a half
years. The Crown submitted that the following features of the
circumstances are particularly relevant to the determination of a fit
sentence:
that the complainant was asleep and intoxicated when
the sexual assault began;
that the complainant told Mr. Akpaliakluk to stop, but he
did not;
that there was full vaginal penetration;
that the sexual assault lasted between one and five
minutes;
that, after the vaginal penetration stopped, Mr.
Akpaliakluk attempted oral intercourse;
that the assault occurred in the complainants home, in
her own bed, where she ought to have been safe; and
that Mr. Akpaliakluk and the complainant are cousins.
He is someone with whom the complainant ought to
have been safe.

[12] The Crown submitted that an aggravating feature of this sexual

assault was that it was predatory, comparable, though not identical,
to a case where the accused accosts a stranger in the street, coerces
her to go behind a building, pushes her to the ground and sexually
assaults her. That was the situation in R v Ipeelee, 2012 SCC 13,
[2012] 1 SCR 433 [Ipeelee], where a sentence of four years was
upheld.
[13] In my view, the circumstances in Ipeelie and this case are
distinguishable. The blameworthiness associated with accosting a
stranger in the street late at night and sexually assaulting her is
aggravated by the predatory nature of the attack. The
blameworthiness of getting into bed with and sexually assaulting a
drunk and sleeping female relative with whom the accused has spent
the evening getting drunk is aggravated because it is a betrayal of a
familial relationship. In my view, the difference renders Ipeelie of little
assistance in determining a fit sentence in this case.
[14] The Crown acknowledged that Mr. Akpaliakluks guilty plea is a very
significant mitigating factor.
B. Defence position
[15] Defence Counsel submitted that a fit sentence is two years less a day
plus two years probation.
[16] Defence Counsel identified the following mitigating factors:
that Mr. Akpaliakluk pled guilty early in the proceedings.
There was no preliminary inquiry. The complainant was
not required to testify (the delay between the date of the
offence and the sentencing does not result from
anything Mr. Akpaliakluk did or failed to do);
that Mr. Akpaliakluk apologised to the complainant the
next day;
that Mr. Akpaliakluk was cooperative with police and the
court throughout; and
that Mr. Akpaliakluk expressed remorse for his actions
at the sentencing hearing.
[17] Defence Counsel referred me to R v AB, 2011 NUCJ 15, [2011] Nu J
No 17 (QL) [AB], where Cooper J. discussed the particular
significance of a guilty plea in a Nunavut sexual assault case at paras
22 to 25 and concluded that in Nunavut a guilty plea must mitigate
sentence in a real and meaningful way (para. 20).

[18] AB involved four instances of sexual assault of ABs older sister. In

two instances the complainant awoke to discover AB having sexual
intercourse with her. On each occasion both AB and the complainant
had been drinking. AB pled guilty. Cooper J. imposed a sentence of
two years less a day followed by two years probation.
[19] Defence Counsel also cited R v Nookiguak, 2005 NUCJ 16, [2005] Nu
J No14 (QL), in support of her submission as to a fit sentence in this
case. In that case, the accused, who was drunk, sexually assaulted
his 16 year old niece who lived in his residence. Kilpatrick J.
observed:
Given the frequency of this type of offence in Iqaluit, there is an
emphatic need in this case to send a clear and unequivocal message to
the community of Iqaluit that sexual offences involving sleeping
victims, particularly young people, will result in a serious
consequence [para 25].

[20] The accused in that case had no criminal record. He was employed
and had family obligations. He was sentenced to 18 months in gaol
followed by two years probation.
III. SENTENCE
[21] In my view, a fit sentence for Mr. Akpaliakluk is two years less a day
followed by two years probation.
[22] In reaching that conclusion I have:
considered the aggravating effect of the relational
betrayal in the circumstances of the offence;
considered Mr. Akpaliakluks criminal record as
minimally aggravating since, though extensive, it does
not include a previous conviction for sexual assault;
given substantial mitigating effect to his guilty plea;.
considered as having mitigating effect the previously
mentioned features of Mr. Akpaliakluks personal history
including:
o the paternal abuse and neglect he experienced as
a child;
o the sexual abuse he suffered as a child and the
mental anguish that continues to cause him; and
o his unaddressed substance abuse problems

attempted to give particular attention to Mr.

Akpaliakluks circumstances as an Aboriginal as
required by Criminal Code s. 718.2(e);
recognized the heightened need for denunciation and
deterrence in cases of sexual assault;
recognized that the sentence must attempt to promote
Mr. Akpaliakluks rehabilitation, which in this case
includes:
o assisting him to overcome his alcohol abuse
problem which appears to have been a very
significant causal factor in this offence;
o assisting him to address the mental anguish
resulting from his having been sexually abused as
a child;
o assisting him to repair the damaged family
relationships that his conduct has caused.
[23] I sentence Mr. Akpaliakluk to incarceration for two years less a day
followed by two years probation.
[24] Mr. Akpalilakluk has been in pre-sentence custody since the date of
the sentencing hearing, which was two months ago. He is entitled to 3
months credit against the two years less a day for that time. He
therefor has 21 months of his sentence left to serve.
A. Probation order
[25] The conditions of the probation order shall be that Mr. Akpaliakluk:
1. keep the peace and be of good behaviour;
2. abstain from communicating, directly or indirectly, or
having any contact, with the complainant or her
daughter, who shall be named in the probation order,
unless the complainant or her daughter give their
consent;
3. appear before the court when required to do so by the
court;

4. notify the court or the probation officer in advance of

any change of name or address, and promptly notify the
court or the probation officer of any change of
employment or occupation;
5. report to a probation officer:
a. within two working days after his release from
custody, and
b. thereafter, when required by the probation officer and
in the manner directed by the probation officer;
6. provided he agrees to do so, participate actively in such
treatment or counselling as his probation officer may
arrange particularly in respect of:
a. his alcohol abuse;
b. his mental anguish resulting from childhood sexual
abuse; and
c. the repair of the family relationships he damaged
by his crime.
B. Ancillary orders
[26] There will be a firearms prohibition under Criminal Code s. 109 [s.
109]. The Crown submitted that because Mr. Akpaliakluk must have
been subject to a firearms prohibition order in respect of a previous
conviction for robbery, the duration of the firearms prohibition now
being imposed would be for life. As I read s. 109 that is not correct.
Section 109(2) provides that in the case of a first conviction for the
offence to which the order relates the duration of the prohibition in
respect of the weapons referred to in s. 109(2)(a) is 10 years. This is
Mr. Akpaliakluks first conviction for sexual assault, the offence to
which the present order relates. The prohibition will continue until 10
years after his release from imprisonment as it relates to the weapons
referred to in s. 109(2)(a).
[27] Given that Mr. Akpaliakluk has a history of hunting for food and in
future may need to have the resources to resume that activity, and
having taken into account the factors listed in Criminal Code s.
113(2), I grant a Criminal Code s. 113 exemption in respect of the
firearms prohibition.
[28] I order, pursuant to Criminal Code s. 487.051(1), that Mr. Akpaliakluk
provide a DNA sample.

[29] I order, pursuant to Criminal Code s. 490.012(1), that Mr. Akpaliakluk

comply with the Sex Offender Information Regulations for the period
specified in Criminal Code s. 490.013(2)(b), 20 years.
[30] I order, pursuant to Criminal Code s. 743.21(1), that, during his
incarceration Mr. Akpaliakluk not communicate directly or indirectly
with the complainant or her daughter.
C. Victim Fine Surcharge
[31] The Crown submitted that I should order Mr. Akpaliakluk to pay a
Victim Fine Surcharge as contemplated by Criminal Code s. 737. I
decline to do so.
[32] Criminal Code section 737 [s. 737] is entirely self-administering.
Unlike the sections referenced above in relation to the ancillary
orders, s. 737 does not contemplate the court making an order.
Rather, the section itself imposes the surcharge, establishes the
amount of the surcharge, and the time when the surcharge must be
paid.
[33] Section 737(3) contemplates that the court might order that the
offender pay a higher amount than the surcharge set by the section if
that is appropriate, but I did not understand the Crown to be asking for
such an order in this case. However, if I misunderstood and that is
what the Crown was seeking, I decline to make such an order. A
greater surcharge is certainly not appropriate in this case. Indeed, in
my view, the surcharge imposed by the section is very significantly
greater than is appropriate in this case, but Parliament has seen fit to
take away the courts discretion to reduce or waive the victim fine
surcharge in an appropriate case. The courts only discretion is to
increase the surcharge.
[34] Section 737(8) requires the court to cause the offender to be given a
written notice setting out the particulars of the victim fine surcharge
imposed by the section. In my view, this is entirely an administrative
and not a judicial function. I expect the written notice is prepared and
given to the offender by the Clerk of the Court in the same manner
that, for example, the similarly worded Criminal Code s. 732.1(5),
results in the clerks office preparing the probation order and providing
it to the offender. Compliance with s. 737(8) does not depend upon,
require, or contemplate an order or any other action by the judge.

10

Dated at the City of Iqaluit this 20th day of September, 2016

___________________
Justice B.R. Burrows
Nunavut Court of Justice