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PROCEDURE - Trial judge’s duties - Assessing credibility of witnesses

Wednesday, October 13, 2021 @ 6:18 AM  

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Appeal by the accused, Algiak, from a conviction and sentence for sexual assault. The complainant testified that she spent a day drinking with her cousin while housesitting for a friend. She acknowledged that she became heavily intoxicated with periods of blackouts. The complainant testified that the accused entered the home after her cousin left. The accused was not invited and was intoxicated. Upon learning that nobody else was home, the accused forced himself upon the complainant, groped and penetrated her using his hands, and began to undress her. The complainant fought the accused off and he left. The complainant obtained medical treatment and reported the matter to police. The accused was convicted. The Crown proposed a sentence of ten months’ imprisonment plus three years’ probation. The sentencing judge gave notice that the recommended sentence was unfit given the accused’s two prior related convictions and the prevalence of sexual violence in the area. Following an adjournment, the Crown maintained its position. The judge imposed the maximum summary conviction sentence of 18 months’ imprisonment plus 18 months’ probation. The accused appealed the conviction and sentence.

HELD: Appeal dismissed. The trial judge made concrete factual determinations with respect to credibility and reliability while being alive to concerns posed by the complainant’s intoxication. The complainant’s account of what occurred with the accused was lucid. Any inconsistencies were on peripheral rather than core matters. No palpable and overriding error or improper reversal of the burden of proof was established. The sentencing judge gave clear notice of the concern with the Crown’s proposed sentence and clearly expressed intent to exceed that recommendation. The judge appropriately granted the Crown an adjournment to reconsider its position. The procedure adopted was fair. The sentencing judge’s reasons were clear and considered and displayed no overriding and palpable error in explaining why he reached his decision on sentence. The sentence did not amount to interference with prosecutorial discretion. There was no error with respect to consideration of proportionality, aggravating or mitigating factors, or application of Gladue principles. The sentence imposed was appropriate for a violent, premeditated, penetrative sexual assault that caused significant bodily harm. Sentence: 18 months’ imprisonment; 18 months’ probation.

R. v. Algiak, [2021] Nu.J. No. 41, Nunavut Court of Appeal, K. Feehan J.A., September 20, 2021. Digest No. TLD-October112021004