R. v. Audlakiak, 2020 NUCJ 41

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Audlakiak, 2020 NUCJ 41 Date: 2020 1214 Docket: 02-19-006 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Ronald Audlakiak ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): P. Plourde Counsel (Accused): S. White Location Heard: Iqaluit, Nunavut Date Heard: October 26, 2020 Matters: Sentencing for offences under Criminal Code of Canada, RSC 1985, c C-46, ss. 244.2(1) (a), 87 , and 85(1) (

a) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Ronald Audlakiak is before the court to be sentenced on a charge of intentionally discharging a firearm into a place knowing or being reckless as to whether another person is present in the place, mischief, and pointing a firearm. II. EVIDENCE [ 2 ] On February 24, 2019, Ronald Audlakiak was intoxicated. He went to the home of JN to confront his girlfriend, NQ, who was at the residence. Ronald and his girlfriend got into a fight at the residence. JN and JA, a visitor at the house, intervened to break up the fight. [ 3 ] Ronald left the house. Shortly after he left, JA also left.

JA departed on his skidoo and went to a shack nearby. JN and JQ stayed at the residence and locked the door after the others had left. [ 4 ] After leaving the residence Ronald obtained a semi-automatic rifle, a Simonov model type 56 SKS. After obtaining the rifle he was walking by the shack where JA had parked his skidoo. Ronald shot at the skidoo. It is not clear how many times he shot at the skidoo, but it was more than once. [ 5 ] People who lived nearby heard the shots and saw Ronald with the rifle. They called the RCMP for assistance. [ 6 ] Ronald carried on the home of JN.

When he arrived, he knocked on the door and his girlfriend, NQ, opened it. Ronald pointed the rifle at NQ's head. NQ swung her body back and Ronald fired the rifle. Ronald pushed NQ into the house. He was looking for JN and asked where he was. [ 7 ] JN had heard the shot. He also heard Ronald asking for him. JN was understandably concerned that Ronald wanted to shoot him. JN escaped the residence by climbing out of a bedroom window. [ 8 ] NQ sat down on the living room couch and closed her eyes. Ronald discharged the rifle at least four more times before finally leaving the house.

Fortunately, none of the shots hit anyone. [ 9 ] Neighbours saw Ronald leave the house with the rifle.The RCMP were called. [ 10 ] A short time later Ronald was found by the police. He was walking and he no longer had the rifle. Ronald was arrested. Upon being searched incidental to arrest two rifle rounds were found in his pocket. He told the police that he was going to kill JN. [ 11 ] There were a total of five shots taken inside the residence. One shot penetrated the door handle of the bathroom and carried on through the door frame and into the bathroom, through the sink.

One shot penetrated a radio in the living room. Another shot went into the exterior wall of the living room. Two shots were into the ceiling, one in a hallway area and one above the couch in the living room. [ 12 ] In addition to the bullet holes, there was also other damage to the house and its contents.

[ 13 ] The firearm was recovered in Ronald's house, along with an empty ammunition box and a trigger lock. III. POSITIONS OF THE PARTIES [ 14 ] The Crown seeks a global sentence of five years, broken down as follows: • discharging a firearm: five years; • pointing a firearm: two years, concurrent; and • mischief: 180 days, concurrent. [ 15 ] The Defence seeks a global sentence of four to four and half years. IV. VICTIM [ 16 ] NQ has provided a victim impact statement. Since the incident she suffers from depression, post-traumatic stress, anxiety, and panic attacks. She feels anger and sadness.

She struggles to cope with daily activities and has difficulties interacting with others. Her relationships with family and close friends have become distant. [ 17 ] NQ had been living with Ronald at the time and has lost her housing. Her young son was supposed to return to the community, but those plans were cancelled following the incident. [ 18 ] NQ continues to be fearful of Ronald and is concerned about what will happen when he is released from jail and returns to the community. V. CIRCUMSTANCES OF OFFENDER [ 19 ] The court has had the benefit of a pre-sentence report. [ 20 ] Ronald grew up in Qikiqtarjuaq.

His parents separated when he was six years old. His father moved to Iqaluit and Ronald continued to live in Qikiqtarjuaq with his mother and two older sisters. [ 21 ] Ronald did not do well school and dropped out in grade seven. He is essentially illiterate. Despite this he has managed to gain good work. He worked for four years for First Air. He also manages to get short term positions. At the time of his arrest he was working for the Hamlet. [ 22 ] Ronald also hunts when he has the opportunity and helps to support his family in that way. [ 23 ] Ronald was 23 years old at the time of the incident.

He and NQ had been in a relationship for some time. They have one child together. The child is in care. [ 24 ] Ronald has previously been convicted in 2017 of assault causing bodily harm. [ 25 ] Ronald's mother was interviewed for the pre-sentence report. She describes a very concerning aspect of Ronald's character, that being his anger. The mother is afraid of Ronald. Even at the time of the preparation of the pre-sentence report, while in custody, Ronald was displaying fits of anger to his mother on the telephone.

The writer of the pre-sentence report was also on the receiving end of Ronald's anger when he was contacted to be interviewed for the report.

[26] It was uncontrollable rage and jealously that contributed to the offending behaviour. Little seems to have occurred since theoffence to temper those tendencies. [27] I must also consider Ronald's circumstances as an Inuit offender, as mandated by

section 718.2(

e) of the Criminal Code and theSupreme Court of Canada's decisions in R v Gladue and R v Ipeelee. As stated by this court in R v Eegeesiak (unreported): The systemic factors that influence criminality in Nunavut are well known and well documented.

Residential schools and their inter-generational impact; over crowded, sub-standard housing; poverty; low levels of education and employment; high rates of alcohol andsubstance abuse; high rates of domestic violence and sexual abuse; high rates of suicide; all contribute to a crime rate and incarcerationrate significantly higher than the national average. (at para 20) VI.

ANALYSIS [28] The offence of intentionally discharging a firearm into a place while knowing or being reckless as to whether anyone is there ispunishable by a mandatory minimum punishment of four years imprisonment. [29] The Nunavut Court of Appeal, in R v Lyta, 2013 NUCA 10, considered the impact of a mandatory minimum sentence on theanalysis which a judge must undertake when sentencing. The Court rejected the notion that the mandatory minimum sentence is thesentence which should be imposed except in instances where the application of general sentencing principles calls for a higherpunishment.

Conversely, the Court did not endorse the approach that the mandatory minimum sentence is reserved for the “bestoffenders” and the “best cases”. Rather, the fact that there is a mandatory minimum sentence is one of the factors the Court mustconsider when determining the appropriate sentence.

The fact that there is a mandatory minimum sentence will, practically speaking,have an inflationary effect on the sentences imposed. [30] The mandatory minimum penalty recognizes the high degree of moral culpability inherent in the offence. [31] The primary principles of sentencing for such an offence are denunciation and deterrence.

It is the circumstances of the offencethat must be given primary consideration. [32] In the case of R v Oqallak, 2018 NUCJ 35, sentencing precedents from this jurisdiction for these types of offences were reviewed: [44] In R v Ishulutak (25 May 2001), Iqaluit, 08-00-481-1 (NUCJ) [Ishulutak], the offender was convicted of three counts ofdischarging a firearmwith intent to endanger lives. The victims of the charges were two police officers and a civilian. The offender wasalso convicted of endangering the lives of people by shooting at them. The offender had a substantial criminal record.

A global sentenceof seven years, for all the offences, was imposed. [45] In R v Sangoya (4 April 2002), Iqaluit, 11-01-108 (NUCJ) [Sangoya], the youthful offender, acquired two firearms, and over athree hour period fired 35 shots into the RCMP residences, the home of the special constable, and various other places throughout thecommunity. The offender shot and killed a dog. There was some planning and thought put into the incident. RCMP officers werespecifically sought out and targeted. The offender had prior convictions, including youth court convictions for firearms offences.

Thesentence imposed on the discharging a firearm offence was four years, in addition to approximately eight months spent in pre-trialcustody. [46] In R v Utye, 2013 NUCJ 14 [Utye], the offender obtained a rifle and headed towards the police residences. A youth wentto the police residences to warn them. Two police officers and the youth sought refuge in the detachment, which the offender shot into13 times knowing that people were inside, and after choosing a good vantage point from which to take aim. He had a youth record whichincluded a firearms offence. He was sentenced to seven years in custody.

[47] In Lyta, RCMP were awakened when the offender shot into their residences during the night. In addition to a police officer, therewas a wife and a child in each residence. Seven shots hit the residences. Eleven shots in total were fired. The officers and their wivesspent two-to-three hours trapped in their homes waiting for help to arrive. On appeal, the sentence imposed was five years custody. [48] In Sangoya, Lyta, and Utye the offenders all obtained rifles and then went to specifically target police officers. Seeking out policeofficers showed a level of planning and forethought.

This aspect was a significantly aggravating factor in each of those cases. [49] This is to be contrasted with the cases of R v Josephee, (14 July 2010), Iqaluit 08-09-418 (NUCJ) [Josephee] and R v Mikijuk, 2017NUCJ 2 and 2017 NUCA 5 [Mikijuk]. [50] In Josephee, the offender had a rifle and was near the high school. Police were called, and when it appeared that the offender wasgoing to enter the school three shots were fired at him. In response, he fired one shot at the police.

On the charge of discharging afirearm, a sentence of four years was imposed. [51] Mikijuk was a situation where the police were called because an intoxicated and suicidal Mr. Mikijuk was inside a residence. Atwo day standoff ensued, during which the offender fired a total of 11 shots, seven inside the residence, and four through windows to theoutside.

A sentence of four years was imposed. [33] Subsequent to Oqallak, the Court of Appeal has had the opportunity to address the issue of sentencing for these types of offences.In R v Itturiligaq, 2020 NUCA 6, the Court of Appeal upheld the constitutionality of the mandatory minimum penalty and found that asentence of four years was appropriate for a youthful, first time offender who fired a single shot at the roofline of a residence after hisgirlfriend refused to leave the residence and come home with him. [34] In R v Ookowt, 2020 NUCA 5, the four-year mandatory minimum sentence was imposed on an offender who fired a single shotthrough the window of a house after an altercation between the offender and someone who the offender felt had bullied him for years. [35] The offences in this matter are extremely serious.

Not only did Ronald discharge numerous shots in the house when he knewpeople were in the house, his stated intention was to kill one of the occupants. He pointed a loaded firearm at close range at hisgirlfriend. It was her quick thinking and not good planning on Ronald’s part that put her out of the line of fire when the firearm wasdischarged just a moment after being pointed at her. [36] The circumstances of the entire event were characterized by acts of intimidation and control. His girlfriend, the mother of his child,was the target of his bullying and violence.

The domestic context of the offences is an aggravating factor, as is the fact that as an Inukwoman, his girlfriend is part of a vulnerable group. [37] Ronald's circumstances and character do little to mitigate. As previously discussed, his underlying deep anger appears to remain.He has little insight into the issues that bring him before the court. [38] The guilty plea is a mitigating factor as it does show an acceptance of responsibility. It also ensured that the girlfriend did not haveto testify, which would have been difficult for her. VII.

CONCLUSION [39] The aggravating factors of these offences call for a sentence greater than the mandatory minimum. The sentence is as follows: • on the charge of discharging a firearm: 5 years (1,825 days); • on the charge of pointing a firearm: 2 years concurrent (730 days); and • on the charge of mischief to the skidoo: 180 days, concurrent.

Total sentence: 1,825 days. A. Pre-trial custody [ 40 ] Ronald has been in custody since February 24, 2019, a total of 653 days. He is entitled to enhanced credit at a rate of 1:1.5, for credit of 979 days. The sentence remaining to be served is 846 days. B. Ancillary orders [ 41 ] There will be a

section 109 firearms prohibition for 10 years. There will be a s. 113 exemption. There will be a DNA order as this is a primary designated offence. The victim of crime surcharge is waived for reasons of hardship. While in custody Ronald will not have any contact with NQ, JN, or JA. Exhibits seized by the RCMP will be forfeited. Dated at the City of Iqaluit this 14th day of December, 2020 ___________________ Justice S. Cooper Nunavut Court of Justice