R. v. Shappa, 2015 NUCJ 26

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Shappa, 2015 NUCJ 26 Date: 20150828 Docket: 01-15-40 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jimmy Shappa ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): Jena C. Montgomery Counsel (Accused): Susan E. Charlesworth Location Heard: Iqaluit, Nunavut Date Heard: August 11, 2015 Matters: Criminal Code, s. 86(1) ; s. 267 (a); s. 733.1(1) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer: This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Table of Contents REASONS FOR JUDGMENT 1 I. INTRODUCTION 5 II. THE FACTS 5 III. ANALYSIS 8 A. Aggravating offence characteristics 8 (i). The assault with a weapon 8 A.i.1. The age of the victim 8 A.i.2. The high risk of harm to the victim 8 A.i.3. The use of a loaded firearm 10 A.i.4. The threat to discharge the firearm 10 A.i.5. Mr. Shappa’s high state of intoxication 10 A.i.6. The breach of trust 11 (ii).

The careless storage offence 12 A.ii.1. The presence of children within the home 12 A.ii.2. The number of firearms involved 12 (iii). The breach of probation 12 B. Mitigating offence characteristics 13 (i) .The assault with a weapon 13 (ii). The careless storage offence 13 (iii). The breach of probation 13 C. Aggravating factors related to the offender 14 D. Mitigating factors related to the offender 14 (i). The Gladue analysis 14 E. Mitigating factors arising after the commission of the offences 18 (i). The early guilty pleas 18 (ii). The pre-trial detention 18 F. Jurisdictional considerations 18 IV.

CONCLUSION 19

A. The Crown and Defence positions on sentence 19 B. The weight to be assigned to sentence impact on the offender’s family 20 C. Sentence calculation 21 C. Ancillary orders 24 (i). The firearms prohibition order 24 (ii). The DNA order 26 (iii).The victim fine surcharge 26 (iv). The order for forfeiture 26 I. INTRODUCTION [ 1 ] Mr. Shappa has entered prompt guilty pleas to three offences under the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code] namely: a. one count of assault with a weapon contrary to Criminal Code

section 267 (a); b. one count of storing rifle(

s) in a careless manner contrary to Criminal Code section 86(1) ; and, c. one count of breaching a probation order contrary to Criminal Code

section 733.1 (by failing to keep the peace). [ 2 ] All offences arise out of a single incident that occurred in the hamlet of Arctic Bay during the evening of June 17, 2015. The Crown has elected to proceed summarily. [ 3 ] Mr. Shappa is now to be sentenced for these offences. II. THE FACTS [ 4 ] During the evening of June 17, 2015, Mr. Shappa and his common-law spouse, Vera Issigaitok, have far too much to drink. At some point Ms. Issigaitok leaves the home. Mr. Shappa remains behind, presumably to look after the children.

This couple has four children ages sixteen, ten, seven, and two years old respectively. [ 5 ] At some later point, Ms. Issigaitok returns home. Something causes Mr. Shappa to snap. Mr. Shappa’s rage is directed at the couple’s seven year old son. He kicks the child in the stomach. He shoves the seven year old into a wall. Mr. Shappa then grabs a high powered rifle and points the barrel of the weapon at the victim’s head. This firearm is loaded. The leveled barrel of the weapon is held against the child’s forehead. This is done with sufficient force to cause a welt to the child’s temple. While doing this Mr.

Shappa says to his son “Can I shoot you?” [ 6 ] Ms. Issigaitok is in another room of the house when this incident occurs. She does not see these events, but she hears Mr. Shappa threaten to shoot his son. [ 7 ] Sometime later that evening Ms. Issigaitok is able to speak to the seven year old alone. She finds out what happened. Ms. Issigaitok then leaves the home and calls the police. The Royal Canadian Mounted Police [RCMP] arrive to find Mr. Shappa passed out and lying on a bed. There is an unsecured Browning rifle (PE001) lying beside Mr. Shappa.

On inspection, this rifle is found to be loaded with four rounds of Winchester .375 caliber ammunition (PE002). An additional nine rounds of ammunition are found lying on the bed underneath Mr. Shappa (PE004). The RCMP seize this rifle and the ammunition.

[ 8 ] Numerous other firearms and large quantities of ammunition are found within the home and are also seized.

These items are listed in Exhibit S-4. [ 9 ] The following items are seized from the furnace room and behind the water tank inside the residence together with a quantity of unsecured ammunition: a. a Marlin 917V rifle (PE005); This firearm is loaded with three rounds of Remington .17 caliber ammunition (PE006); b. a bolt-action Lee-Enfield No. 5 Mk 1 rifle (PE007); This firearm is loaded with a single round of .303 caliber ammunition (PE08); c. a Remington 597 bolt-action rifle (PE009); d. a Marlin 925 rifle with a scope (PE010); e. a Ruger M77 Mark II bolt-action rifle (PE011); f. a bolt-action rifle (no model or serial number given) (PE012); g. a Winchester 30-30 in a case (PE016); This firearm is loaded with three rounds of .30-30 caliber ammunition (PE017).

There are nine rounds of .30-30 caliber ammunition inside the gun case (PE018); h. a second Ruger M77 rifle with scope is found inside its case (PE019); This firearm is loaded with three rounds of .223 caliber ammunition (PE020); i. a second bolt-action Marlin 917V rifle with scope (PE021); and, i. a third bolt-action Ruger rifle (no model number given) (PE022); This firearm is loaded with three rounds of Winchester .300 caliber ammunition (PE023). [ 10 ] None of these items are secured with trigger locks.

None of these items are secured inside locked gun cases or gun cabinets. [ 11 ] Court Exhibit S-4 also discloses that a Remington bolt-action rifle (PE013) loaded with three rounds of .223 ammunition (PE014) is seized from one Jeremy Koonoo along with a Winchester 1400 semi-automatic shotgun (PE015). Mr. Koonoo tells the police that these guns also belong to Mr. Shappa. [ 12 ] The RCMP later search a shed adjoining the Shappa residence.

There they find and seize the following rifles: a. a Ruger M77 bolt-action rifle (PE024); b. a bolt-action rifle (no model or serial number given) (PE025); c. a Remington 770 bolt-action rifle (PE026); d. a Remington bolt-action rifle (PE027); e. a bolt-action rifle (no model or serial number given) (PE028); f. a Winchester .308 caliber bolt-action rifle (PE029); g. a second Ruger M77 bolt-action rifle secured with a trigger lock (PE030); h. a bolt-action rifle (no model or serial number given) (PE031); i. a third Ruger M77 bolt-action rifle (PE032); j. a bolt-action rifle (no model or serial number given) (PE033); k. a bolt-action rifle (no model or serial number given) (PE034); l. a Lee-Enfield rifle (PE035); m. a break-action “New England Firearms” .45-70 caliber rifle (PE036); n. a bolt-action rifle (no model or serial number given) (PE037);

o. a lever-action Winchester .303 caliber rifle (PE038); p. a bolt-action rifle (no model or serial number given) (PE039); q. a Savage bolt-action rifle (PE040); and, r. a Remington 700 bolt-action rifle (PE041). [ 13 ] This shed is lockable. None of the firearms inside the shed are loaded. There is no ammunition for these firearms being stored in this same shed. One of these firearms is secured with a trigger lock. [ 14 ] When the assault on his son and the careless storage offences are committed, Mr. Shappa is bound by a probation order that required him to keep the peace and be of good behavior.

This probation order is Court Exhibit S-1 in this proceeding. The probation order was imposed on January 20, 2015, following Mr. Shappa’s conviction and sentence on a charge of assaulting his spouse, Ms. Issigaitok. The sentencing court required Mr. Shappa to keep the peace and to take family counselling, anger management counselling, and addictions counselling as directed by his probation officer. [ 15 ] By committing the assault and firearms offence, Mr. Shappa was in willful breach of the probation order made on January 20, 2015. III. ANALYSIS A. Aggravating offence characteristics (i).

The assault with a weapon A.i.1. The age of the victim [ 16 ]

Section 718.2 (a)(ii.1) of the Criminal Code deems any abuse of a person under the age of eighteen years to be an aggravating circumstance. This represents a codification of common law jurisprudence that is of ancient origin. [ 17 ] The victim in this case was only seven years of age. This child was vulnerable because of his size and strength. This child was defenceless. A.i.2. The high risk of harm to the victim [ 18 ] The moral culpability of Mr.

Shappa is elevated in this case because he has willfully assumed the risk of causing serious physical and emotional or psychological harm to his child by committing this offence in the circumstances presented here. [ 19 ] This moral culpability does not turn on whether harm was actually caused or not. Where actual harm is established, it is a seriously aggravating feature. The absence of harm cannot reduce Mr.

Shappa’s moral blameworthiness because the risk of causing serious physical and emotional harm to a child by this assault was certainly present. [ 20 ] The use of a loaded firearm as a weapon while heavily intoxicated is a recipe for disaster. Mr. Shappa’s level of intoxication was such that he now says that he has no present memory of the events underlying the charge. It is simply good luck, and not any planning on Mr. Shappa’s part, that has allowed his seven year old child to escape serious physical harm or death. Even if Mr.

Shappa had no real intention of discharging his firearm, the risk of an accidental discharge is greatly increased when the weapon is being handled by someone who is grossly intoxicated. The magnitude of the risk to the child victim was substantially elevated for this reason. [ 21 ] There is no evidence before the Court to indicate that this child has in fact suffered psychological harm as a result of this offence. Having said this, there is also no evidence to suggest that this child has ever been assessed by a professional qualified to make this

assessment. The Court is left with some assurances by this child’s mother through a victim impact statement (Court Exhibit S-3) that the child victim has not been damaged by this assault. [ 22 ] This same mother has made every effort to have the charges against Mr. Shappa dropped by the investigating authorities. This same mother remains very critical of the RCMP for questioning the child victim without her permission. Ms. Issigaitok is anxious to see Mr. Shappa return to the family home.

There is reason to question the mother’s assurances that all is now well with her seven year old. [ 23 ] As the age of a child victim of violence decreases, the difficulty associated with treating any resulting emotional or psychological harm from victimization increases. A small child’s limited communication skills and comprehension may limit the therapeutic intervention that is available to undo any harm caused by physical abuse. Psychotherapy and other forms of counselling will become increasingly less effective as the age and sophistication of the victim decreases.

The very young may not be positioned to participate in this process due to their limited comprehension and communication skills. [ 24 ] Remedial processes to assist very young victims are further complicated for unilingual Inuk children who must participate in the process through an interpreter. The special expertise necessary to address the victimization of very young Inuit is not available in Inuktitut. [ 25 ] Many of Nunavut’s remote arctic communities lack the therapeutic expertise needed to address the special needs of the child victim of serious violence.

Effective therapeutic intervention will likely require removal of the child to a distant centre at considerable public expense. A.i.3. The use of a loaded firearm [ 26 ] A loaded firearm when used as a weapon has the ability to kill, maim, or otherwise cause grievous bodily harm to its victim. This is a serious escalation of violence that has potentially deadly consequences. A.i.4. The threat to discharge the firearm [ 27 ] Nothing is better calculated to cause terror than the pressing of a loaded high powered rifle into the head of another human being while threating to shoot. [ 28 ] Mr.

Shappa was initially charged with uttering a threat to the child arising from these same facts. This charge was properly withdrawn because it was legally superfluous. An assault by definition includes any threatened application of force by someone having an immediate ability to carry out the threat ( section 265(1) (

b) of the Criminal Code ). The threat to shoot in the circumstances presented here thus forms part of the assault itself. A.i.5. Mr. Shappa’s high state of intoxication [ 29 ] Mr. Shappa’s advanced state of intoxication in the presence of his child is itself aggravating. This is a breach of parental duty.

Parents who choose to disable themselves from properly caring for children through excessive use of alcohol cannot claim drunkenness in any way mitigates the crimes they subsequently commit against these same children. [ 30 ] The parent is under a legal duty at all times and under all circumstances to protect their child from harm. Exposure of children to drunk and disorderly behavior damages children. This is so particularly where this behavior emanates from someone whom the child loves and trusts. [ 31 ] The child learns from its home environment.

The child’s behavior in life will be shaped by his or her life experiences within the home. A heavily intoxicated parent is a poor role model for any child.

A.i.6. The breach of trust [ 32 ]

Section 718.2(a)(iii) of the Criminal Code deems any abuse of trust or authority to be an aggravating circumstance. This

section of the Criminal Code merely codifies common law jurisprudence that extends back in time for at least two centuries. This too is simply a proposition of common sense. [ 33 ] This court had recent occasion to comment on the breach of trust implicit in parent-child violence. In the case of R v S.N., 2015 NUCJ 25 , the Court said this: [10] Raising a child as a parent or step-parent gives rise to significant legal responsibilities. Together, the parents share responsibility for the child’s wellbeing. The child cannot support itself so there is a parental duty to provide the necessities of life.

The child is vulnerable so there is a parental duty to protect. A family is there to provide comfort and safety to those within it. It is there to be a safe haven or refuge from the storms of life. It cannot become a place of fear or torment. [11] Love, respect, trust, and duty - these are the four pillars upon which the institution of the family is built and maintained. These values define who we are and what we want to be, as a family, as a society, and as a people. It is the unconditional application of these parental responsibilities that make a parent a parent, and a family a family.

Parental responsibilities are integral to any parent-child relationship. [12] The trust relationship between parent and child underlies important social values that the law seeks to protect. These are social values that are worth protecting. Any type of violence… that is committed by a parent against a child damages the core social values that are the underpinnings of the family unit… violence destroys the trust that is integral to a nurturing relationship. It is a denial of everything that a parent-child relationship is there to provide. This is not only a breach of duty, it is

an act of betrayal. The emotional harm caused by such a breach of trust cuts deep. [ 34 ] In the circumstances of this offence, the breach of trust substantially elevates Mr. Shappa’s moral culpability. [ 35 ] The many aggravating offence characteristics associated with this offence combine with

section 718.01 of the Criminal Code to require the sentencing court to put primary emphasis on the sentencing objectives of deterrence and denunciation, not rehabilitation. (ii). The careless storage offence A.ii.1. The presence of children within the home [ 36 ] There were four young children living in Mr. Shappa’s home. Children are naturally inquisitive. All firearms and ammunition within the home were readily accessible to these children. These firearms were left insecure with no trigger locks of any kind. There was no attempt to physically separate ammunition from the firearms that used this ammunition.

There was no attempt to secure the firearms in locked rooms, gun cases, or gun cabinets. No fewer than six firearms found within the home were left in a loaded condition. Twenty five rounds of Winchester 12-gauge ammunition (PE043) were found scattered on the floor of the residence. Five rounds of Winchester .375 caliber ammunition (PE003) are found on a couch. Nine rounds of Winchester .375 caliber ammunition are found on a bed (PE004). This was an accident waiting to happen. A.ii.2. The number of firearms involved [ 37 ] There was not just one firearm involved in this offence, there were many.

A total of eleven firearms were seized by the RCMP from inside the residence. All of these firearms were found to be unsecured. (iii). The breach of probation

[ 38 ] A fundamental condition of this probation order required Mr. Shappa to stay out of further trouble with the law. He had a special obligation to keep the peace as a consequence of a sentence imposed for an earlier related offence of assaulting his spouse. The Court infers that this earlier offence was also alcohol related. This is why Mr. Shappa was required to take alcohol or addictions counselling as a condition of his probation order. The commission of a further assault while under sentence for a related offence is seriously aggravating. B.

Mitigating offence characteristics (i) .The assault with a weapon [ 39 ] There is no evidence to suggest that this offence was in any way provoked by the child victim. [ 40 ] This was not a case of excessive use of force being applied in self-defence, nor was this a case of excessive force being used in the context of parent-child discipline. No misbehavior by a child can ever be advanced as a justification for the threatened use of deadly force. [ 41 ] Mr.

Shappa’s heavy state of intoxication may explain in part why this offence occurred, but this is in no way mitigating for all the reasons advanced earlier. [ 42 ] There are no mitigating offence characteristics in this case. (ii). The careless storage offence [ 43 ] Mr. Shappa is an experienced hunter. He knew that special care needed to be taken with respect to the storage of his many firearms. Through hunting, Mr.

Shappa was intimately familiar with the awesome power and lethality of these rifles. [ 44 ] There is nothing in evidence to suggest that some unforeseen exigent circumstances arose quickly to prevent Mr. Shappa from discharging his legal duty to ensure that these firearms were stored safely. The Court infers from the location and general conditions of storage that Mr. Shappa’s careless storage of firearms was simply the product of habit. [ 45 ] There are no mitigating offence related circumstances present here. (iii).

The breach of probation [ 46 ] After regularly meeting with his probation officer for many months, there can be no doubt that Mr. Shappa well understood his legal obligations while on probation. [ 47 ] The Court has been advised by Mr. Shappa’s Defence counsel that Mr. Shappa was never directed to take family counselling, anger management counselling, or addictions counselling by his probation officer despite there being an express term on his probation order to do so. It seems that Mr. Shappa’s employment took priority. He had no time to attend any form of counselling. Now Mr.

Shappa is back before the court for sentence on another alcohol related offence. There is yet another victim of Mr. Shappa’s anger. [ 48 ] The alleged failure of Community Corrections to insist that Mr. Shappa attend for counselling is not mitigating. Even if the Nunavut Department of Justice failed to strictly enforce the Court’s probation order, such a failure does not relieve Mr. Shappa of his obligation to comply with what he was ordered to do. The obligation to attend counselling was his, not the probation officer’s. He was the person who needed treatment.

He was the person who stood to benefit from this help. The fact that he chose not to seek help does not consequently help him here.

C. Aggravating factors related to the offender [49] This is not Mr. Shappa’s first brush with the criminal justice system. Mr. Shappa has a related criminal record. It is Court Exhibit S-2 in this proceeding. Of particular note is the entry from 2002 for pointing a firearm. Mr. Shappa was sentenced conditionally to one yearof custody for this offence. He was also prohibited from using firearms for a period of two years. [50] As a consequence of this related conviction, Mr. Shappa cannot claim to be unaware of the serious legal consequences associatedwith pointing firearms at human beings. D.

Mitigating factors related to the offender (i). The Gladue analysis [51] The Court is required to factor into its analysis systemic factors that have led Aboriginal citizens in this country to becomemarginalized, disadvantaged, and overrepresented in the criminal justice system’s prisons. The Court has done so in this case. [52] The Nunavut Court of Justice travels to all the communities of Nunavut.

This Court is acutely aware of the systemic disadvantagescaused by prevailing social and economic conditions in Nunavut. [53] Citizens growing up in Nunavut’s communities are all affected, some more, some less, by conditions of extreme isolation.Employment opportunities are few. Meaningful opportunities for career advancement are often non-existent.

Many youth have lost, orare losing touch with their language and culture and with a life on the land. [54] All Nunavummiut long for the material comforts and lifestyles depicted on television; for many citizens of Nunavut, young and oldalike, these benefits remain out of reach. With no means of advancement, many are faced with a life of poverty. Poverty breedshopelessness. For some, drug and alcohol abuse provides relief from this reality and the hardships associated with it. Anger, frustration,and depression are usually the bitter by-products of a life and lifestyle dependant upon alcohol.

For many others, suicide becomes ameans of escape. [55] The proportionality principle enshrined in

section 718.1 of the Criminal Code requires the sentence to be proportionate to theseriousness of the offence and the moral culpability of an offender. This is the only sentencing principle of the Criminal Code to bedescribed by Parliament as “fundamental” to the sentencing process. [56] The analysis from R v Gladue, (SCC), [1999] SCJ No 19, [1999] 1 SCR 688 (QL), was not intended to displacethe application of the proportionality principle by creating a race-based discount on sentencing. The Supreme Court of Canada, atparagraph 75 of the R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, decision says this: [75]

Section 718.2 (

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy theoverrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required topay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence inany particular case. This has been, and continues to be, the fundamental duty of a sentencing judge.

Gladue is entirely consistent with therequirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including thestatus and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point,Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.Section 718.2 (

e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginalpeoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.

[ 57 ] Where alternative sanctions to imprisonment exist, the effectiveness of these sanctions in addressing the root causes of crime and their ability to contribute to long term protection of society must be considered. In the circumstances of a particular offence and offender, it may be that the long term protection of the public can be better achieved by a sanction other than imprisonment or by a combination of gaol with other community-based sanctions.

This is so particularly where the non-custodial sanction is more meaningful to the Aboriginal offender and his/her community and more effective in addressing the special needs and social deficits of an offender. [ 58 ] If a restorative process is to be employed, much work needs to be done to create a meaningful sentencing plan that will be effective in addressing an offender’s needs.

Protection of the public remains an important sentencing objective in all cases, whether the offender is Aboriginal or not. [ 59 ] However, it is not enough to simply point to an offender’s Aboriginal heritage without any analysis of how this heritage bears on the sentencing process and the application of the proportionality principle. More is required. The Gladue analysis requires the Court to consider how, and to what degree, systemic factors may have affected the moral culpability or blameworthiness associated with an offender’s criminal behavior.

It is in this limited context that systemic factors may be seen to influence the court’s application of the proportionality principle. [ 60 ] While the prevailing jurisprudence does not require Mr. Shappa to establish that a causal link exists between his Aboriginal status and the particular offences for which he is now to be sentenced, some relevance must still be shown ( see R v Popovich, 2013 ABCA 149 at paragraphs 22-24 , 106 WCB (2d) 652 ). [ 61 ] Mr. Shappa is 39 years of age. He was born and raised in the hamlet of Arctic Bay where this offence occurred. He was raised in a good home by loving parents.

He is one of five siblings. Mr. Shappa’s formative years were not marred by any exposure to heavy drinking within the home. There is no history of physical or sexual abuse. [ 62 ] Mr. Shappa has achieved a Grade nine education. He is a good provider to his family. For fifteen years Mr. Shappa has been employed by the hamlet as a water truck driver. He is a valued employee. Mr. Shappa will likely be rehired when he is able to return to work. [ 63 ] Mr. Shappa has been in a common-law relationship with his spouse Ms. Issigaitok for approximately eighteen years. [ 64 ] Mr. Shappa is an avid hunter.

He possesses good on-the-land skills. He has retained the language of his ancestors and is connected with his culture. [ 65 ] This Court concludes that there are no specific Gladue factors in this case that might influence the application of the proportionality principle of sentencing apart from the usual systemic disadvantages associated with life in a remote northern community. [ 66 ] Mr. Shappa’s personal circumstances suggest that he is ordinarily a hard-working and productive member of his community. This is to his credit. E. Mitigating factors arising after the commission of the offences (i).

The early guilty pleas [ 67 ] Mr. Shappa has accepted early responsibility for these three offences. In doing so, he has spared his seven year old son and his spouse the trauma of having to testify about their experience. Mr. Shappa is entitled to receive credit in mitigation of sentence for having done so. (ii). The pre-trial detention

[ 68 ] Mr. Shappa has remained in custody since his arrest on these charges. He was arrested on June 17, 2015. Mr. Shappa chose not to seek his release. He has been in actual detention for a period of 73 days up to the date of this judgment. Given the difficult conditions of detention at the Baffin Correctional Centre, Crown and Defence agree that he should receive credit for this detention at the rate of 1.5 days per day of actual custody. This amounts to a total credit of 110 days or fifteen weeks of pre-trial detention credit.

This credit must be factored into the final sentence imposed for these three offences. F. Jurisdictional considerations [ 69 ] Nunavut leads the country in its per capita rate of victimization of children up to seventeen years of age. Crimes against children remain a pressing and persistent problem in all of Nunavut’s communities.

This enhances the need to emphasize the sentencing objectives of deterrence and denunciation when addressing cases involving child abuse. [ 70 ] Below is a comparative graph showing the per capita rates of child and youth victims of police-reported family violence in all of the provinces and territories of Canada as of 2013 : IV. CONCLUSION A. The Crown and Defence positions on sentence [ 71 ] Crown and Defence submissions on sentence remain far apart. [ 72 ] Defence urges the Court to impose a sentence of time served.

In the alternative, it is suggested that the Court simply impose an additional conditional sentence that would see Mr. Shappa returned to his community to serve his custody by way of close house arrest. It is said that Mr. Shappa has learned his lesson and that the short sharp shock associated with his brief stay in Baffin Correctional Centre is sufficient to deter him from reoffending. Defence submissions on sentence seem to urge the Court to give primacy to the sentencing objective of rehabilitation through a liberal application of the principle of restraint codified by sections 718.2 (

d) and (

e) of the Criminal Code . [ 73 ] Defence counsel resists the imposition of any firearms prohibition. It is said that such an order would re-victimize Mr. Shappa’s family by preventing him from providing country food to his family and his community. In the alternative, if a firearms prohibition order is to be imposed, Defence urges the Court to give Mr. Shappa an exemption under

section 113 of the Criminal Code . This would allow Mr. Shappa to access firearms for the purpose of subsistence hunting. Defence resists an order of forfeiture of any firearm except the firearm used in the assault on the child. It is said that

section 491 of the Criminal Code does not apply to the many other firearms seized by the police for being carelessly stored. [ 74 ] The Crown urges the Court to impose a gaol term of six to nine months for the assault on the child followed by a consecutive sentence of two to three months gaol for the careless storage offence, and a further term of 1 month consecutive for the breach of probation. The global sentence recommended by the Crown is thus in the range of nine to twelve months of additional custody. The Crown urges the Court to impose a discretionary firearms prohibition order under

section 110 of the Criminal Code and seeks an order of forfeiture of all firearms seized by the RCMP. B. The weight to be assigned to sentence impact on the offender’s family [ 75 ] In making the argument for a sentence of time served, Defence urges the Court to take into consideration the negative impact that a further sentence of custody would have on Mr. Shappa’s family. Prior to his incarceration on these offences, Mr. Shappa was the sole bread winner of the family. The family now struggles to make ends meet on social assistance.

All family members, including the child victim, are now living in relative poverty. There is some suggestion that the seven year old child victim may feel that he is in some way responsible for his Dad’s continued absence and for the family’s dire financial predicament.

[ 76 ] The sentencing decisions of a court can have a profound financial and emotional impact on the family of an offender. Courts have struggled for decades to address the weight to be assigned to this type of impact. This is of particular concern when sentencing an offender for serious crimes of domestic violence. It is not uncommon for family members who are financially or emotionally dependent upon an offender to plead for leniency so that the offender can quickly return home.

The imposition of gaol terms for crimes of domestic violence can have the unfortunate effect of further victimizing the family of the offender. [ 77 ] To give significant weight to a plea for leniency can potentially undermine or impair the application of other important sentencing objectives. If a sentencing court focuses exclusively on what the offender’s immediate family needs or wants, persons inclined to assault other family members may come to believe that they can do so with relative impunity.

Both jurisprudence and statute now require sentences for domestic violence to focus on deterrence and denunciation. While some weight must be assigned to the victim’s wishes, a sentencing court must not lose sight of the ultimate objectives of the sentencing process ( See R v Brown, 1992 ABCA 132 , 13 CR (4th) 346 ). C. Sentence calculation [ 78 ] The treatment provisions of Mr. Shappa’s January probation order were there to address the root causes of Mr. Shappa’s offending behavior.

By attempting to treat offending behavior related to addictions and anger, the court sought to provide a measure of long term protection to the victim (his spouse) and the family of which she is a part. This community-based sentence failed to achieve this objective. This failure was caused in large part by Mr.

Shappa who unfortunately assigned a higher priority to continuing his employment than to his compliance with the court’s directions for treatment. [ 79 ] The issues of anger and alcohol abuse that lie behind the conviction for assaulting his spouse have yet to be addressed through any form of counselling or treatment. Mr. Shappa’s unresolved alcohol abuse and anger has now claimed his own child as a victim. [ 80 ] Mr. Shappa now says that he has learned his lesson and will fully comply with court ordered conditions of probation.

This Court often hears this type of submission immediately before a sentence is passed. Over many years and many cases, this Court has learned to be skeptical of claims of sudden insight and transformation. This Court has no doubt that Mr. Shappa wants to change, but in the absence of any programming he remains at some risk to reoffend. [ 81 ] This Court concludes that a conditional sentence in this case would not adequately protect the community. [ 82 ] In the context of this sentencing,

section 718.01 of the Criminal Code requires this Court to give primacy to the sentencing objectives of denunciation and deterrence, not rehabilitation. This does not mean that rehabilitation is unimportant. Mr. Shappa’s ultimate rehabilitation remains an important consideration in arriving at a just result. [ 83 ] However, the end result of the sentencing process must not only be proportionate to the gravity of the offences before the court, but must also reflect Mr.

Shappa’s overall moral culpability in committing these offences in the circumstances presented here. [ 84 ] A sentence of time served or a further conditional sentence of custody would fail to adequately achieve deterrence or denunciation. Nor would such a result be proportionate to the gravity of the assault and the high moral culpability associated with Mr. Shappa’s profound breach of trust. [ 85 ] The range of custody proposed by the Crown also falls short of the mark. The proposed sentence range of six to nine months for the assault is less custody than Mr.

Shappa received for his earlier 2002 conviction for pointing a firearm. [ 86 ] The sentence of this Court must absolutely repudiate all forms of extreme violence on children. An exemplary sentence is called for.

[ 87 ] The maximum sentence for the assault with a weapon charge where the Crown elects to proceed summarily is eighteen months gaol. The Court is limited by the Crown election to the sentence that follows. [ 88 ] For the breach of probation (count 5) Mr. Shappa is sentenced to two weeks custody. He is credited with two weeks of pre-trial detention for this offence. In the end result, Mr. Shappa is sentenced to one day of custody or time served for this offence. Mr. Shappa has no prior convictions for breaching court process. [ 89 ] For the careless storage offence, Mr.

Shappa is sentenced to five weeks of custody. He is credited with five weeks of pre-trial detention for this offence. In the end result, he is sentenced to 1 day or time served for this offence. [ 90 ] For the assault with a weapon on his child, Mr. Shappa is sentenced to 60 weeks of gaol or fourteen months of custody. He is credited with the balance of unused pre-trial credit of eight weeks, leaving a balance of custody to be served of 52 weeks gaol. But for the early guilty plea and the accompanying remorse, the Court would have imposed the maximum sentence available for a

summary conviction 267(

a) offence. [ 91 ] In arriving at this sentence of 60 weeks for this particular offence committed by this offender, this Court is mindful of the guidance offered by the Supreme Court of Canada in the case of R v Solowan, 2008 SCC 62 , 237 CCC (3d) 129 . For a hybrid offence prosecuted summarily, a judge must determine the sentence within the limits for that mode of procedure. The “worst offender, worst offence” principle no longer constrains the imposition of an otherwise appropriate maximum sentence. [ 92 ] The Court is prepared to recommend on the warrant of committal that Mr.

Shappa be considered for placement at the Rankin Inlet Healing Facility. Mr. Shappa will undoubtedly benefit from the type and intensity of programming available to offenders at this facility. In the event that Mr. Shappa does well in programming, the Court recommends that the authorities consider an early release to facilitate Mr. Shappa’s resumption of his employment and reintegration back into his community. Mr. Shappa’s family would undoubtedly benefit from his renewed financial support. [ 93 ] Following his release from custody, Mr.

Shappa will be bound by a probation order of eighteen months duration with the following conditions: 1. He is to keep the peace and be of good behavior; 2. He is to report to a probation officer within seven days of his release from custody and report thereafter as directed by the probation officer; 3. He is to remain under the supervision of the probation officer for the full term of eighteen months; 4. He may have such contact with the seven year old victim as is permitted in advance and in writing by his probation officer (in consultation with a social worker); 5.

He is to have no contact with his spouse or children if he is under the influence of intoxicants to any degree; 6. He is not to go within 50 metres of the family home if he is under the influence of intoxicants to any degree; 7. He is to take and successfully complete alcohol/addictions counselling, anger management counselling, and parenting skills counselling as directed by his probation officer; and, 8. Mr. Shappa is directed to attend court for a review of his performance on this probation order within six months of his release from custody. The date for this review is to be set by Mr.

Shappa’s probation officer. C. Ancillary orders (i). The firearms prohibition order [ 94 ] Mr. Shappa has now been convicted on two separate occasions of offences that involve the pointing of a firearm at a human being. There will not be a third. Mr. Shappa’s conduct in deliberately pointing the barrel of a loaded high powered hunting rifle at his son’s

head is a repudiation of the care and responsibility that any experienced hunter knows is associated with firearms use. [ 95 ] The right to possess and use weapons to hunt is a right that inures to every beneficiary of the Nunavut Land Claims Agreement . This is not an absolute right. With this right comes a heavy legal obligation to use the weapons of the hunt responsibly. The rifle is a tool in the hands of an experienced hunter. It is not there to use against other human beings or their property.

Absent truly exceptional circumstances, those who use a firearm to commit serious crimes of violence against other human beings should forfeit their right to possess and use a rifle for all purposes. [ 96 ] A hunter who relies on subsistence hunting for food and clothing should take particular care to ensure that his use of the tools of his trade does not endanger others.

The hunter may lose his right to pursue such a livelihood if he or she is irresponsible. [ 97 ] Given the importance of hunting to Inuit culture, and the widespread use of unregulated long guns in Nunavut, it is particularly important in sentencing for serious firearms offences, to emphasize deterrence and denunciation. There is little deterrence or denunciation in a sentencing process that allows an offender to regain his possession and use of firearms after demonstrating irresponsible behavior that endangers the lives of others. [ 98 ] Mr. Shappa has been gainfully employed by the hamlet for many years.

He does not depend upon subsistence hunting for his livelihood. [ 99 ] The maximum period of prohibition available for this

summary conviction offence under

section 110 of the Criminal Code is ten years. [ 100 ] As a consequence of his conviction for the assault, Mr. Shappa is absolutely prohibited from possessing or using any firearms, ammunition, cross-bow, restricted weapon, restricted device or explosives for a period commencing today and ending ten years after his release from imprisonment. [ 101 ] There will be no exemption permitted under

section 113 of the Criminal Code for subsistence hunting purposes. Mr. Shappa can assist others in their hunting activities, but he cannot possess or use firearms in doing so. (ii). The DNA order [ 102 ] Mr. Shappa is ordered to submit a sample of his DNA for registration in the national DNA databank. This order is mandatory for primary designated offences as defined by

section 487.04 of the Criminal Code . (iii).The victim fine surcharge [ 103 ] Mr. Shappa is ordered to pay a victim fine surcharge of $300.00 for these three

summary conviction offences. This is to be paid within one year from the date he is released from custody. (iv). The order for forfeiture [ 104 ]

Section 491 of the Criminal Code provides as follows:

(1) Subject to subsection (2), where it is determined by a Court that:

(

a) a weapon, an imitation firearm, a prohibited device, any ammunition…was used in the commission of an offence and that thing has been seized and detained…. the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs.

(2) If the Court by which a determination is referred to in subsection (1) is made is satisfied that the lawful owner of anything that is or may be forfeited to Her Majesty under subsection (1) was not a party to the offence and had no reasonable grounds to believe that the thing would or might be used in the commission of an offence, the Court shall order that the thing be returned to that lawful owner…. [ 105 ] All insecure firearms and ammunition owned by Mr. Shappa and seized by the RCMP from the residence are ordered to be forfeited to the Crown.

The Court is satisfied that the circumstances in which these items were stored was careless and they are therefore caught by section 491(1) of the Criminal Code . [ 106 ] The Court is not satisfied that the firearms seized from the shed are caught by this same

section of the Criminal Code . These firearms were not loaded or stored with their ammunition. One firearm was secured with a trigger lock. The shed itself was lockable. Mr. Shappa was already in custody when the RCMP returned to the residence and found the firearms inside the shed. It is not clear on the evidence whether the shed had been left unlocked and open by someone other than Mr. Shappa. One Jeremy Koonoo had recently retrieved firearms from this same shed. [ 107 ] In relation to the firearms in the shed, there may have been offences committed by Mr.

Shappa under the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98/209 [Regulations], but Mr. Shappa was not charged with this type of offence. The application for forfeiture of the firearms is brought by virtue of a conviction for careless storage of firearms under

section 86 of the Criminal Code . A person’s failure to comply with the Regulations (e.g. no trigger locks) does not necessarily mean that a firearm is stored carelessly. More is required. [ 108 ] There is some question on the evidence of who owns the firearms handed to the police by Jeremy Koonoo from a vehicle (PE013 – PE015). One of these firearms was found to be loaded. If the owner of these firearms is Mr. Shappa, these firearms too are ordered forfeited. If Mr.

Shappa was not the owner, then the lawful owner of these firearms can advise the Arctic Bay RCMP detachment in writing within 60 days of their claim to ownership. [ 109 ] In the event that the Arctic Bay RCMP detachment receives written notice from any person claiming that they qualify under section 491(2) for an exemption from forfeiture, the Court Registry in Iqaluit is to be advised. This Court will then make a referral to the justice presiding at the next sittings of the court in Arctic Bay. The claimant can then attend court for a hearing to determine whether they qualify for any relief from forfeiture.

The RCMP must not move to destroy any firearm where a claim of ownership is being pressed by any citizen other than Mr. Shappa. [ 110 ] If no claim of ownership is received within 60 days of this decision, the Koonoo firearms will be forfeited to the Crown. [ 111 ] As a result of the firearms prohibition order, Mr. Shappa can no longer lawfully own or possess any firearms or ammunition. If Mr. Shappa owns the firearms in the shed, he must lawfully dispose of these firearms within 60 days of this decision. Persons who wish to take ownership of any of Mr.

Shappa’s firearms must attend the Arctic Bay Detachment and provide written proof that Mr. Shappa has transferred full ownership of the firearms to them, and that they have the necessary legal qualifications to possess a firearm. [ 112 ] Any firearms from the shed that are not lawfully disposed of by Mr. Shappa within this 60 day period are ordered forfeited to the Crown. A small RCMP detachment cannot be expected to retain a large number of firearms and ammunition indefinitely. [ 113 ] A copy of this decision is to be sent to the Nunavut Director of Child and Family Services.

The Court recommends that the seven year old victim of the assault be assessed by a qualified professional to determine whether this child is in need of any therapeutic intervention to address his victimization.

[ 114 ] An additional copy of this decision is to be sent to the Detachment Commander of the Arctic Bay RCMP detachment to explain how the firearms now under seizure are to be dealt with. Dated at the City of Iqaluit this 28th day of August, 2015 ___________________ Justice R. Kilpatrick Nunavut Court of Justice