Her Majesty The Queen v. Ipeelee [Indexed as: R. v. Ipeelee]
99 O.R. (3d) 419
Court of Appeal for Ontario,
Laskin, Sharpe and Cronk JJ.A.
December 15, 2009
Criminal law -- Long-term offenders -- Breach of long-term supervision order -- Sentence -- Aboriginal accused breaching condition of long-term supervision order prohibiting him from consuming alcohol 17 days after release -- Sentence of 30 months' imprisonment (in addition to six months' pre-trial custody) affirmed on appeal -- Intoxication having played major role in accused's violent offences -- Alcohol constituting major risk factor for re-offending -- Sentencing judge not erring in failing to give accused enhanced credit for pre-trial custody as time under long-term supervision order continues to run while offender is in pre-trial custody for breach of condition of order -- Accused's aboriginal status and tragic background not warranting reduction of otherwise-appropriate sentence.
The aboriginal accused breached a condition of a long-term supervision order prohibiting him from consuming alcohol 17 days after his release. The sentencing judge imposed a sentence of 30 months' imprisonment, in addition to six months of pre- trial custody. The accused appealed.
Held, the appeal was dismissed.
Intoxication played a major role in the accused's violent offences, and alcohol consumption was a major risk factor for re-offending. The breach was of a vital condition of the long- term supervision order in light of the accused's demonstrated propensity to commit violent offences under the influence of alcohol. In determining a fit sentence, the predominant concern was for public protection. The sentencing judge did not err in refusing to give the accused enhanced credit for the time spent in pre-trial custody because a long- term supervision order continues to run while the offender is in pre-sentence custody for breach of a condition of the order. Moreover, the accused was unlikely to be granted early release. In the circumstances of this case, neither the accused's aboriginal status nor his tragic background warranted a reduction of the otherwise-appropriate sentence. [page420]
APPEAL by the accused from the sentence imposed by Megginson J. of the Ontario Court of Justice dated February 24, 2009 for breach of a long-term supervision order.
Cases referred to R. v. Carrière, 2002 CanLII 41803 (ON CA), [2002] O.J. No. 1429, 158 O.A.C. 36, 164 C.C.C. (3d) 569, 53 W.C.B. (2d) 491 (C.A.); R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, 171 D.L.R. (4th) 385, 238 N.R. 1, J.E. 99-881, 121 B.C.A.C. 161, 133 C.C.C. (3d) 385, [1999] 2 C.N.L.R. 252, 23 C.R. (5th) 197, 41 W.C.B. (2d) 402; R. v. W. (H.P.), [2003] A.J. No. 479, 2003 ABCA 131, [2003] 10 W.W.R. 36, 18 Alta. L.R. (4th) 20, 327 A.R. 170, 175 C.C.C. (3d) 56, 57 W.C.B. (2d) 371
Statutes referred to Criminal Code, R.S.C. 1985, c. C-46 s. 718.2(e) [as am.]
Fergus J. O'Connor, for appellant. Megan K. Williams, for respondent.
The judgment of the court was delivered by
[1] SHARPE J.A.: -- The appellant was sentenced to 30 months' imprisonment, in addition to six months' pre-sentence custody, for breaching the alcohol abstention condition of his long-term supervision order. The appellant submits that (1) the sentence is demonstrably unfit; (2) the sentencing judge misapprehended the evidence relating to breaches that led to suspension of the appellant's release; (3) the appellant should have received enhanced credit for pre- sentence custody; and (4) the appellant's aboriginal status was not adequately considered.
Facts
[2] The appellant is a 37-year-old Inuit with a tragic background. He has a very long and very serious criminal record that includes three convictions for violent assaults, one for sexual assault and one for sexual assault causing bodily harm, the predicate offence to his designation as a long-term offender. This latter offence was a vicious sexual assault on a vulnerable 50-year-old homeless woman committed shortly after the appellant's release from a prison sentence following conviction for another sexual assault.
[3] Intoxication played a major role in the appellant's violent offences. The evidence led on the long-term offender proceeding indicated that the appellant suffers from anti- social personality [page421] disorder and alcohol abuse disorder and that alcohol consumption is directly linked to the violent offences he has committed and is a major risk factor for re-offending. A forensic psychiatrist from the Centre for Addiction and Mental Health stated in his report that "[a]ny breaches in his alcohol abstention conditions would have to be seriously and immediately dealt with, as this, I believe, is the major risk factor for serious violent or sexual re- [offence] with this individual". The trial judge in the long-term offender proceeding found a consistent pattern of "Mr. Ipeelee administering gratuitous violence against vulnerable, helpless people while is in a state of intoxication". He determined that the risk of re-offending was substantial: "Indeed, if he has access to alcohol, it is as certain as night follows day."
[4] After serving the full six-year custodial sentence imposed for the predicate offence in the Kingston Penitentiary, the appellant was released to a community correctional centre in Kingston. His release was suspended a number of times for short periods but then reinstated.
[5] The offence in question here was committed 17 months after the date of his initial release. The appellant was found in possession of alcohol and in a severely intoxicated state riding a bicycle the wrong way on a one-way portion of a major downtown street. The appellant pleaded guilty to this offence and had served six months' pre-sentence custody.
Reasons of the Sentencing Judge
[6] The sentencing judge found:
[T]his was a serious and not at all trivial breach of a very fundamental condition of the offender's long-term supervision order. It is a very central and essential condition, because alcohol abuse was involved, not only in the predicate offence, but also in most of the offenses on the offender's criminal record. On his history, Mr. Ipeelee becomes violent when he abuses alcohol, and he was assessed as posing a significant risk of re-offending sexually.
[7] The sentencing judge held that in the case of a breach of a long-term offender condition, for which Parliament has set a maximum sentence of ten years, protection of the public is the paramount concern and rehabilitation has only a small role. This distinguishes the offence from breach of a probation order and warrants the imposition of a more severe penalty.
Analysis
(1) Is the sentence demonstrably unfit?
[8] I am not persuaded that an effective sentence of three years for this offence was demonstrably unfit. This was not [page422] simply a case of public intoxication or cycling under the influence of alcohol. I agree with the sentencing judge that as this case involves the breach of a vital condition of a long-term supervision order, and that given the appellant's demonstrated propensity to commit violent offences under the influence of alcohol, the predominant concern is for public protection.
(2) Did the sentencing judge misapprehend the evidence relating to breaches that led to suspension of the appellant's release?
[9] The sentencing judge noted in his reasons that the appellant's release on long-term supervision had been suspended four times and that these suspensions were mostly alcohol related. This was not accurate, although there were allegations of refused urinalysis and diluted urine samples. However, I agree with the respondent's submission that any misapprehension as to the reason for the prior suspensions did not affect the sentence imposed.
(3) Did the sentencing judge err by refusing enhanced credit?
[10] The sentencing judge refused to give the appellant enhanced credit for the six months he spent in pre-sentence custody. In the circumstance of this case, I see no error. As the sentencing judge noted, the time under the long-term supervision order continues to run while the offender is in pre-sentence custody for breach of a condition of the order. Moreover, the lack of credit for time served towards early release, a factor usually cited as a reason for enhanced credit, is less relevant here as the appellant is unlikely to be granted early release.
(4) Did the sentencing judge fail to give adequate consideration to the appellant's aboriginal status?
[11] The sentencing judge adverted to the appellant's entitlement in sentencing to the consideration of his aboriginal status under R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 and s. 718.2(e) of the Criminal Code, R.S.C. 1985, c. C-46. He noted, however, that the appellant had already received consideration for his aboriginal status on the sentence imposed for the predicate offence leading to the long- term supervision order and that at this point, when protection of the public is the dominant concern, his aboriginal status is of diminished importance. The sentencing judge held that imposing a sentence at the lower end of the three-to-five-year range proposed by the Crown, with adequate credit for pre-sentence custody, would adequately reflect [page423] the appellant's aboriginal status and the mitigating effect of his guilty plea.
[12] In my view, the role that the appellant's disadvantaged background has played in his criminal behaviour is the most troubling aspect of this appeal. While there may well be breaches of long-term offender orders that call for sentences of more than three years, I am not persuaded that this particular offence falls into that category. Despite the sentencing judge's comment, I do not think that, in the end, the appellant's aboriginal status led to any reduction from the sentence that he would otherwise have been received.
[13] It is not at all clear to me, however, that in the circumstances of this case, consideration of his aboriginal status should lead to a reduction in his sentence for breach of the long-term offender condition. The appellant's commission of violent offences and the risk he poses for re-offending when under the influence of alcohol make the principles of denunciation, deterrence and protection of the public paramount. This is one of those cases where "the appropriate sentence will . . . not differ as between aboriginal and non- aboriginal offenders": R. v. Carrière, 2002 CanLII 41803 (ON CA), [2002] O.J. No. 1429, 164 C.C.C. (3d) 569 (C.A.), at para. 17. As the appellant has been declared a long-term offender, "consideration of restorative justice and other features of aboriginal offender sentencing . . . play little or no role": R. v. W. (H.P.), 2003 ABCA 131, [2003] A.J. No. 479, 327 A.R. 170 (C.A.), at para. 50.
[14] I feel compelled to add, however, that the appellant's aboriginal background and the disadvantage he has suffered clearly provide insight into his sorry involvement with the criminal justice system. He grew up in Nunavat. His alcoholic mother froze to death when he was a child. He was raised by his grandparents, one of whom has died. His involvement with alcohol and crime started at an early age. He complains that an older person sexually abused him when he was nine. He lost many close relatives while serving his penitentiary term and, at this point, he appears to lack links with his own community. He was not released in his home community in Iqualuit because the Inuit-oriented facility there refused to accept him on the ground that he posed an undue risk of re-offending. The community correctional facility in Kingston has relatively little to offer by way of aboriginal services.
[15] The appellant is to be commended for the progress he has made with traditional soapstone carving. However, his psychiatric disorder and addiction clearly pose serious obstacles to his rehabilitation. It is regrettable that he has not been afforded more access to services tailored to his background and heritage, [page424] although I recognize that his condition and the attitude of his own community present the correctional authorities with many challenges with respect to his management and treatment. Still, I would feel remiss if I did not include in these reasons a plea that the correctional authorities make every effort to provide the appellant with appropriate aboriginal-oriented assistance.
Conclusion
[16] For these reasons, I would grant leave to appeal sentence but dismiss the appeal.
Appeal dismissed.