Nunavunmi Apiqhuidjutainut Uuktuffaarutit

Nunavut Court of Appeal

Cour d'appel du Nunavut
Citation: R v Ipeelie, 2015 NUCA 03
Date: 20160615
Docket: 08-14-5-CAP
Registry: Iqaluit
Between:

Lucassie Ipeelie
Appellant

-and-

Her Majesty The Queen

Respondent

_______________________________________________________

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]

Lucassie Ipeelie appeals from the imposition of a sentence of four years

incarceration upon entering a guilty plea to a charge of sexual assault
imposed February 17, 2014.

II. STATEMENT OF FACTS

[2]

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]

Mr. Ipeelie was uncooperative when arrested. He was intoxicated, had

unsteady balance, slurred speech, and bloodshot eyes. The victim told the
police she was frightened during the incident. They observed her to be
crying. As a result of medication given to her at the hospital during a
resulting examination, she became nauseous.

[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)

the predatory manner in which the offence occurred;

(b)

trauma to the victim, including the inferred long-term

psychological impact; the judge presumed that she had
offered no victim impact statement out of a desire to avoid
revisiting the horror of the event;

(c)

Mr. Ipeelies prior criminal record, including prior assault

convictions;

(d)

Mr. Ipeelie was bound by two probation orders at the time

of this offence;

(e)

Mr. Ipeelie was drunk at the time of the commission of the

offence; and

(f)

Mr. Ipeelie had done little to address his acknowledged

problem with alcohol at the time of the offence, while
knowing he had previously caused harm to others as a
result.

III. STANDARD OF REVIEW

[11] The applicable standard of review is one of deference. An appellate court
may intervene to set aside or vary a sentence only if the trial judge erred in
principle, failed to consider a relevant factor, overemphasized or gave
inadequate weight to a relevant sentencing factor, or if the sentence was
demonstrably unfit (see R v M(CA), [1996] 1 SCR 500 at para 90, 46 CR
(4th) 269).
IV. ISSUES
[12] Mr. Ipeelies counsel conceded in her factum that the primary considerations
on sentencing an offence of this nature were deterrence and denunciation.
She argued, however, that the sentencing judge erred in principle by setting
the range for sentence at too high a level by failing to give extra weight to
Mr. Ipeelies good prospects for rehabilitation as a mitigating factor because
he was an aboriginal offender, and by then failing to treat his restrictive bail
conditions and good prospects for rehabilitation as mitigating factors at all.
Finally, she argued that the judge in this case 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.
V. SENTENCING RANGE
[13] Specifically, 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. She
maintained that the proper range for sentencing for sexual assault in Nunavut is
between two years less a day and four years, set through reference to a variety of
cases from the territory. R v Mucpa (8 October 2013), Pond Inlet, Nunavut 11-1370, (NUCJ) [unpublished judgment] [Mucpa], is an example of a four-year
sentence imposed on receipt of a guilty plea to a charge of sexual assault after a
street abduction in circumstances similar to those here.
[14] She argued that the sentencing judge erred through failing to consider four years
as the upper end of the range, to which the mitigating effects of the guilty plea and
rehabilitation prospects should then have been applied to reduce the sentence to
two years less a day, with the result that Mr. Ipeelie would serve this sentence
within Nunavut rather than in a southern penitentiary.

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[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.

[20] Alternatively, even if judges sentencing aboriginal offenders are 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 Mr. Ipeelie. She maintained that her
clients success at abstaining from alcohol use, and from the antisocial
conduct flowing from it during his period of release on bail, was deserving of
particular consideration given the circumstances of life in Iqaluit.
[21] Even had these arguments been raised in her factum, and the Crown thus
put on notice that it should be prepared to respond to them, we do not
accept that good prospects for rehabilitation should be attributed extraweight in mitigation in the case of every aboriginal offender, or in the case of
Mr. Ipeelie in particular. The Criminal Code does not mandate this position.
The Supreme Court did not provide this interpretation in Gladue or Ipeelee.
No other case authority has been offered to us which so interprets s
718.2(e).
[22] That is not to say that a sentencing judge could not attribute extra weight to
rehabilitative efforts by an aboriginal offender in a proper case. However, we
cannot say this sentencing judge erred in failing to do so on the basis of the
record before him. Unhappily, resource limitations result in presentence
reports rarely being prepared in Nunavut; none was prepared here. While
the evidence before the sentencing judge showed that Mr. Ipeelie had not
breached while on bail, and that he worked at one or even two jobs through
much of the time he was on bail, it did not reveal how he had attained
sobriety, nor did it provide any basis for assessing his abilities to remain
sober upon ultimate release as a result, and thus provide a sound footing for
the conclusion that he would abstain from future alcohol abuse.
B. Mitigating effect of bail conditions
[23] Mr. Ipeelies counsel also argued that the sentencing judge erred in principle
by failing to treat his 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 judge dismissed that suggestion,
stating that Mr. Ipeelies release conditions were not so restrictive and that
they were well justified by the fact that he had been bound by two probation
orders and a bail order on a charge of impaired driving at the time the
offence in question occurred. Counsel suggested that in fact the release
conditions were the most restrictive possible, short of actual detention, but
that is obviously not so. Release conditions which did not allow Mr. Ipeelie
to be absent from his home for any reason short of medical need or court
appearance are examples of far more restrictive conditions of release.

[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.

Appeal heard on May 12, 2015

Memorandum filed at Iqaluit, Nunavut
This 15th day of June, 2015

Bielby J.A.

Mahar J.A.

Wakeling J.A.

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Appearances:
S.L. Wheildon
for the Respondent
S. Charlesworth
for the Appellant