R. v. Ipeelie (L.), (2015) 602 A.R. 98

• Judge: Bielby, Mahar and Wakeling, JJ.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: May 12, 2015
• Jurisdiction: Nunavut
• Citations: (2015), 602 A.R. 98;2015 NUCA 3

R. v. Ipeelie (L.) (2015), 602 A.R. 98; 647 W.A.C. 98 (NUCA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JN.097

Lucassie Ipeelie (appellant) v. Her Majesty the Queen (respondent)

(08-14-5-CAP; 2015 NUCA 3)

Indexed As: R. v. Ipeelie (L.)

Nunavut Court of Appeal

Bielby, Mahar and Wakeling, JJ.A.

June 15, 2015.

Summary:

The accused pled guilty to sexual assault. A sentence of four years' incarceration was imposed. The accused appealed the sentence.

The Nunavut Court of Appeal dismissed the appeal.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim - The accused appealed from a sentence of four years' imprisonment imposed for sexual assault - His counsel argued that the judge erred by improperly treating the following considerations as aggravating: the inferred harm suffered by the victim; her failure to provide a victim impact statement; and that the circumstances of the offence were predatory - The Nunavut Court of Appeal stated that "We do not interpret the sentencing judge's 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. 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" - See paragraphs 25 to 27.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused appealed from a sentence of four years' imprisonment imposed for sexual assault - The accused's counsel submitted that in the context of the Supreme Court of Canada's interpretation of s. 781.2(e) of the Criminal Code set out in R v. Gladue and R v. Ipeelee, the trial judge was compelled to give extra weight to the accused's prospects for rehabilitation - Alternatively, even if judges sentencing aboriginal offenders were not mandated to give extra weight to the mitigating factor of established rehabilitative success, counsel argued the sentencing judge should have given it extra weight in sentencing the accused - She maintained that the accused's success at abstaining from alcohol use, and from the antisocial conduct flowing from it during his release on bail, was deserving of particular consideration given the circumstances of life in Iqaluit - The Nunavut Court of Appeal did not accept that good prospects for rehabilitation should be attributed extra-weight in mitigation in the case of every aboriginal offender, or in the case of the accused in particular - The Code did not mandate that position - The Supreme Court did not provide that interpretation in Gladue or Ipeelee - That was not to say that a sentencing judge could not attribute extra weight to rehabilitative efforts by an aboriginal offender in a proper case - However, the court could not say the sentencing judge erred in failing to do so on the basis of the record before him - See paragraphs 17 to 22.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - The accused pled guilty to sexual assault - 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 considered the effect of the mitigating factors of a relatively prompt guilty plea and the accused's significant steps taken toward rehabilitation while on bail in reducing the sentence to one of four years' imprisonment - The accused appealed the sentence - His counsel argued that the sentencing judge erred in concluding that the starting point in his analysis of sentence was at the six to 10 year range - Counsel maintained that the proper range for sentencing for sexual assault in Nunavut was between two years less a day and four years, set through reference to a variety of cases from the territory - The Nunavut Court of Appeal stated that "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 10-years' imprisonment for sexual assault in s. 271(a) of the Criminal Code. The four-year 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" - Even if a proper sentencing range could be established through reference to reported cases, the accused's four-year sentence fell within that range - See paragraphs 13 to 16.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused appealed from a sentence of four years' imprisonment imposed for sexual assault - His counsel argued that the sentencing judge erred in principle by failing to treat the accused's conditions of judicial interim release as a mitigating factor, requiring that extra credit be given against the period of incarceration he was otherwise sentenced to serve - The Nunavut Court of Appeal rejected the argument - While counsel suggested that the release conditions were the most restrictive possible, short of actual detention, that was not so - Further, the sentencing judge's comment that "there is little likelihood that any court would have considered releasing [the accused] unless the conditions had been exceptionally restrictive" was not an error, but a reflection of the fact that time spent on release, or bail, was not generally treated as a factor mitigating the length of a subsequent sentence of incarceration - Further, the fact that the accused 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 - See paragraphs 23 to 24.

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused approached the victim, a virtual stranger, 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 - As a result of a passerby hearing her cries, two police officers arrived on the scene to find the accused on top of the victim - The accused was intoxicated and was uncooperative when arrested - The accused was 25 years old - He had prior convictions for impaired driving, assaults and breach of conditions of judicial interim release - 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 - He was a skilled mechanic and had finished heavy equipment training in 2010 - 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 - The accused's counsel sought a sentence of the maximum possible territorial jail time, two years less a day, to be followed by three years of probation - The sentencing judge imposed a sentence of four years' incarceration - The accused appealed the sentence - The Nunavut Court of Appeal dismissed the appeal.

Criminal Law - Topic 5932

Sentence - Sexual assault - [See Criminal Law - Topic 5846.5 ].

Cases Noticed:

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 46 C.R.(4th) 269, refd to. [para. 11].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 17].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1, refd to. [para. 17].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.2(e) [para. 17].

Counsel:

S.L. Wheildon, for the respondent;

S. Charlesworth, for the appellant.

This appeal was heard on May 12, 2015, before Bielby, Mahar and Wakeling, JJ.A., of the Nunavut Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on June 15, 2015.