R. v. Quvianaqtuliaq, 2017 NUCJ 1

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v.

Quvianaqtuliaq, 2017 NUCJ 01 Date: 20170110 Docket: 03-16-216 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Elijah Quvianaqtuliaq ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Crown): Ivan Nault Counsel (Accused): Kathryn Kellough Location Heard: Cape Dorset, Nunavut Date Heard: December 02, 2016 Matters: Criminal Code of Canada, RSC 1985, c C-46 , s. 87; s. 117.01(1) ; s. 129 (a); s. 264.1(1) ; s. 272(2) ( a.1 ); s. 733.1(1) REASONS FOR JUDGMENT (Supplemental Reasons on Sentencing) (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” 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. Letters have been assigned at random. I. INTRODUCTION [ 1 ] On December 2, 2016, in Cape Dorset, Nunavut, I sentenced Mr.

Quvianaqtuliaq to a total of 108 months in the penitentiary on the following charges: breach of probation, possession of a firearm while prohibited, pointing a firearm, threatening death, sexual assault with a weapon, and resisting arrest. [ 2 ] The total sentence was broken down between the offences, as follows: • On Count #5, sexual assault with a weapon, the sentence imposed was 72 months; • On Count #6, resisting arrest, the sentence imposed was 12 months consecutive; • On Count #2, possessing a firearm while prohibited, the sentence imposed was 12 months consecutive; • On Count #3, pointing a firearm, the sentence imposed was 12 months consecutive; • On Count #1, breach of probation, the sentence was 6 months concurrent; and finally , • On Count #4, threatening to cause death, the sentence imposed was 12 months concurrent. [ 3 ] I have credited the accused for 21 months pre-trial custody, which includes enhanced credit at the rate of 1.5 to 1.0, leaving him a total of 87 months left to serve. [ 4 ] Ancillary orders were as follows: the accused is to submit a sample of his DNA for the database and he is to be registered on the

Sex Offender Information Registry for a period of 20 years. These orders are mandatory with respect to Count #5. [ 5 ] Further, an order was made pursuant to

section 743.21 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code], that he have no contact direct or indirect with Solomon Ottokie, Mialia Oqutaq, Adla Pudlat, Naptachie Toonoo, or L.M. while in custody. [ 6 ] The accused must serve at least half his sentence before being eligible for parole pursuant to

section 743.6(1) of the Criminal Code . [ 7 ] Count # 2 mandates that Mr. Quvianaqtuliaq be prohibited for life under Criminal Code

section 109 from owning or possessing any firearm, restricted weapon, ammunition, or explosive substance. Defence asked the court to consider an exemption under Criminal Code

section 113 for sustenance hunting. I reserved my decision on whether to grant such an exemption and will address that issue further in these expanded reasons. [ 8 ] Count #3 requires an order under Criminal Code

section 491 for the forfeiture of the long gun. All other items seized are to be returned to their lawful owners. [ 9 ] Finally a Victim of Crime Surcharge was imposed in the total amount of $200.00 with respect to the sexual assault with a weapon. The other Victim of Crime Surcharges of $200.00 per offence were imposed to run concurrently. [ 10 ] This sentence was the result of a joint submission made by both Crown and Defence.

Lengthy facts were read into the record and substantial submissions were made on sentencing. [ 11 ] Numerous victim impact statements were provided to the court late in the day and, although Mr. Quvianaqtuliaq was sentenced according to the joint submission, further reasons were promised by the Court. [ 12 ] I am now ready to give those reasons. II. BACKGROUND [ 13 ] The facts in this case are extremely serious. The following is a

summary of events which took place during the early morning hours of October 9, 2015, in the small community of Cape Dorset. [ 14 ] At approximately 1:05 a.m., the Royal Canadian Mounted Police [RCMP] received a call and were advised that the accused had attended at his former partner’s house, Ms. Qatsiya, with a long gun. [ 15 ] She advised the police that Mr. Quvianaqtuliaq smelled of liquor and he had a gun in his hands, which he showed her was loaded. He entered the residence and told Ms. Qatsiya to take the gun from him before he went to shoot it.

She did so and put the gun in the porch. [ 16 ] The accused then told her that she should get ready because she was leaving with him. She told the officer that she was afraid of him as he is crazy when he drinks and he has hurt her in the past. She also thought that he was going to shoot her. [ 17 ] As Ms. Qatsiya was getting dressed to leave, the accused said that he was going to mug people at the gambling house. He took the gun and left her home. She ran from the house and went to her neighbour’s to call the police, leaving her small children at home.

[ 18 ] At approximately 1:28 a.m., RCMP advised members of the community that they had received a call from Soloman Ottokie who advised that he was driving his ATV in the valley area of the community. His passenger, Mialia Oqutaq, told him that there was a guy with a gun. Mr. Ottokie turned his head to look and he saw Mr. Quvianaqtuliaq pointing a long gun at him as he drove past. He told the police that the accused had the gun to his shoulder and was following the movement of his ATV as he drove by. Mr. Ottokie turned off his headlights and accelerated out of the area. [ 19 ] Mr.

Ottokie attended at residence number 4408 and told the occupants that Mr. Quvianaqtuliaq was walking around with a gun. In his statement to the police, Mr. Ottokie advised that this happened shortly after 1:00 a.m. [ 20 ] Ms. Oqutaq also advised that, around 1:00 a.m., she was a passenger on the ATV being driven by Mr. Ottokie. They were driving near Quvianaqtuliaq’s residence when she saw a male carrying a gun in his hands. She saw the male start to point the gun at her and Mr. Ottokie.

She told him and they sped away. [ 21 ] At approximately 1:31 a.m., Pitseolak Pudlat, not a named complainant, called the RCMP advising that she had seen the accused at house number 4517. He was drunk and carrying a gun. She was very scared. [ 22 ] Members of the Cape Dorset RCMP approached and surrounded House #4517 and, upon approach, Adla Pudlat was located leaving the front of the house. Mr. Pudlat advised them that the accused had arrived with a gun in the company of L.M. [ 23 ] Mr. Pudlat said that Mr. Quvianaqtuliaq took L.M. and the firearm into the bedroom of the residence and shut the door.

The accused and L.M. emerged from the residence when he was told he was under arrest and members conducted what they call a high-risk take down. At that time, the long gun was seen leaning against the stair railing. [ 24 ] The accused was directed to the ground, but only went to his knees and, before members were able to handcuff him, he ran, on foot, down the hill and away from the residence. The members gave chase, told him he was under arrest, and directed him to stop. He kept running. [ 25 ] Members returned to the residence and secured the firearm. At that time, L.M. disclosed that Mr.

Quvianaqtuliaq had forced her to have sex with him by threatening to shoot her. [ 26 ] At approximately 3:40 a.m., the accused was located and finally arrested. He was read his rights and cautioned. He indicated that he understood and advised Constable [Cst.] Hardy; “at least I didn’t shoot”. Mr. Quvianaqtuliaq appeared intoxicated. He was slurring his words and smelled of liquor. [ 27 ] Later in the afternoon, L.M. attended at the RCMP detachment with her mother. She said that she was on the step of house #4408 when the accused approached her.

At first she did not see the gun, but then he told her that she was coming with him and they were going to have sex or he was going to shoot her. [ 28 ] L.M. was sober and said she could smell alcohol coming from Mr. Quvianaqtuliaq’s breath. She started down the stairs of the residence at which time he followed her.

He took her by the arm and walked with the gun in the other hand, telling L.M. that she was going to find a place for them to have sex or he would kill her. [ 29 ] The accused told L.M. that he had four rounds in the gun --- three to shoot other people and one to shoot himself. [ 30 ] Along the way, L.M. saw a male outside that she recognized. She did not call for help as she feared for her life.

[ 31 ] L.M. walked to house #4517. Two people were home: Mr. Pudlat and Ms. Toonoo. They were both sober. Once inside the home, L.M. said that she had to go home. Mr. Quvianaqtuliaq said that she was not going anywhere, that he was going to have sex with her. She told him that she did not want to have sex with him on multiple occasions and he took her into the bedroom by the arm. He was still carrying the loaded firearm into the room. He closed the bedroom door and said that if anyone came in the room he would shoot them. [ 32 ] Mr. Quvianaqtuliaq ordered her to get undressed.

She did so, fearing that he would shoot her if she did not comply. He undressed himself and proceeded to get on top of her and have intercourse with her. [ 33 ] During intercourse, Mr. Quvianaqtuliaq held the firearm in his right hand. L.M. told the police that she believed his finger was on the trigger. The accused told police that prior to this he had taken the cartridge with the bullets in it out of the gun. However, he admits that he was holding it when he forced himself upon her. She wanted to stop, but she was very afraid for her life.

The accused asked L.M. if his penis was bigger than two of L.M.’s ex-boyfriend’s penises. The accused told L.M. that if she said his penis was smaller, he would shoot her. [ 34 ] The accused eventually stopped having intercourse with L.M. when she warned him that the homeowner would soon be home with her child. [ 35 ] Mr. Quvianaqtuliaq got dressed and the two went outside for a cigarette. He took the firearm out and set it on the corner of the steps outside.

It was at that time that the police attempted to arrest him. [ 36 ] L.M. reports that she does not have a relationship with the accused, she doesn’t regularly associate with him, and she has no idea why she fell victim to him that night. [ 37 ] Later that same afternoon, RCMP members spoke with Mr. Adla Pudlat who advised that L.M. was at his place visiting earlier in the evening and then subsequently returned with Mr. Quvianaqtuliaq. [ 38 ] The accused had a firearm with him that Mr. Pudlat recognized to be a pump-action rifle and he also had four rounds of ammunition. Mr.

Quvianaqtuliaq pointed the firearm at Mr. Pudlat and Ms. Toonoo telling them “I can kill you all. I have four shells”. [ 39 ] Mr. Pudlat said that the accused specifically pointed the gun at his stomach area and racked the action, chambering the load. [ 40 ] Mr. Quvianaqtuliaq then told Mr.

Pudlat and L.M. to sit on the couch where he repeatedly cycled the action of the gun, emptying the ammunition, picking up the rounds, reloading the magazine, and cycling through again. [ 41 ] Pitseolak Pudlat who had reported that the accused was at the house was able to leave with her two young children before all of this happened. [ 42 ] The accused told Mr. Pudlat and L.M. if they did not listen to him, he would kill them. He told L.M.: “If you don’t have sex with me I’ll shoot you. I can shoot you right now.” [ 43 ] Mr.

Pudlat said that is when the accused took the gun and L.M. into the bedroom and told him that if anyone opened the door, he would shoot them. Mr. Quvianaqtuliaq shut the door and Mr. Pudlat left the residence. [ 44 ] Following his eventual arrest, the accused was cooperative with police and gave a full inculpatory statement.

[ 45 ] The entire incident from attending at Ms. Qatsiya’s home until going to the porch at the Pudlat residence lasted approximately 45 minutes in length and Mr. Quvianaqtuliaq was highly intoxicated during this time. [ 46 ] At the time of this incident, the accused was bound by two probation orders. One was imposed on September 11, 2014, and the other was imposed May 5, 2015. [ 47 ] Not too long before this happened, Mr. Quvianaqtuliaq had completed a very lengthy custodial sentence for offences against Ms. Qatsiya, his former partner.

He was bound by the earlier probation order that included a no contact condition. Further, the accused was not to be within ten meters of Ms. Qatsiya’s home. [ 48 ] An order was also made on September 11, 2014, prohibiting the accused from owning or possessing any firearms, explosive substances, or ammunition for a period of ten years. [ 49 ] I accept this description of the facts as outlined by the Crown and as agreed to by the Defence. III. SUBMISSIONS [ 50 ] In agreeing to the joint submission put forward on sentencing, I have also carefully considered the following: (

a) Five victim impact statements; (

b) The book of authorities on sentencing agreed to by both counsel; (

c) The criminal record of the accused; (

d) The programs that the accused has participated in during his time in pre-trial custody; (

e) The able submissions of counsel; and, (

f) The accused’s guilty plea and his expression of remorse. IV. ANALYSIS [ 51 ] I have also considered, as I must in every case before me, the sentencing provisions contained in

section 718 of the Criminal Code , with respect to the objectives and principles of sentencing. [ 52 ] I have carefully taken into account the fundamental purpose of sentencing and there is no doubt that on these facts, this offender must be separated from society. [ 53 ] Criminal Code

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 54 ] Mr. Quvianaqtuliaq terrorized his community for 45 minutes during the early morning hours of October 9, 2015. He had a loaded firearm which he used to get what he wanted. He did this while he was intoxicated. The gravity of the offences for which he has been found guilty are extremely high and his degree of responsibility is significant.

[ 55 ] This is a case that requires a strong emphasis on both specific and general deterrence and denunciation. [ 56 ] Criminal Code

Section 718.2(

a) indicates that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 57 ] There are numerous aggravating circumstances that I must take into account. They are, as follows. A. Aggravating factors (i). Victim impact statements [ 58 ] First of all, I would like to talk about what is contained in the five victim impact statements presented to the court in this case. [ 59 ] There is absolutely no doubt whatsoever that the actions of Mr. Quvianaqtuliaq at the time in question had a profound impact on these individuals.

I thank them for providing their statements to the court. [ 60 ] Each and every victim impact statement talks about the fact that these people felt that they were going to die at the hands of this accused. Each one thought they were going to be shot and killed. Each person has been significantly impacted by the accused’s actions. [ 61 ] Mr. Quvianaqtuliaq made sure that three of his victims, L.M., Mr. Pudlat, and Ms. Toonoo, knew that the gun he had in his possession was loaded and that at any moment he could use it to kill them.

I should pause here to indicate that the accused advised counsel that he had the safety on with respect to the firearm the entire time. The Crown did not take issue with this and, therefore, I must take this into consideration in relation to the overall facts. That being said, that fact would not have been evident to the accused’s victims. [ 62 ] The most serious charge in this case is the sexual assault using a weapon. L.M.’s victim impact statement leaves no doubt that the events of that night had a tremendous impact on her at the time and her memories continue to play a negative role in her future.

I am not going to outline what she said in detail as I believe her statement is extremely personal, but suffice it to say that the experience she suffered at the hands of this accused has caused significant harm. She will never be the same. Her life has changed dramatically and I sincerely hope that she is getting the professional counselling she needs to move on. (ii). Accused’s criminal record [ 63 ] The accused’s criminal record is also extremely aggravating.

It is lengthy and contains a large number of related and violent offences. [ 64 ] It shows a history of abuse with respect to women who are unfortunate enough to be involved with him. The record includes seven previous assaults on Ms. Qatsiya alone. There are also three assaults with a weapon, one assault police, and at least seven breaches of court orders. It includes three convictions for threatening and two firearm offences. [ 65 ] In considering Mr. Quvianaqtuliaq’s criminal record, it is very easy to understand why individuals in his home community were and continue to be afraid of him.

He has proven in the past what he is capable of. This is someone who has no regard for other people’s safety or security. [ 66 ] The accused committed these offences while he was subject to two probation orders and while he was prohibited from owning or possessing any firearms. This demonstrates his complete disregard for court orders.

[67] Elijah Quvianaqtuliaq was drunk that night. He took a loaded firearm and used it to get whatever he wanted. He took advantage ofanyone who happened to be near him that night. He took a young woman and forced her at gunpoint to have sex with him against her willsimply because she was available that night. These were crimes of opportunity. All of his victims were vulnerable. None of them hadweapons.

He had all the power and he was willing to use it to get whatever he wanted. [68] He had no hesitation about pointing that gun at those he came across that night and he knew how to use the weapon to threaten hisvictims. [69] These aggravating circumstances must be taken into account on sentencing. C. Mitigating factors [70] That being said, Mr. Quvianaqtuliaq is to be credited for his guilty pleas and his decision to take responsibility for his actions fromthe beginning. His pleas have saved the court the time and expense of a trial.

Taking responsibility saved his victims from further traumaand from having to testify and relive this nightmare.

This is a significant mitigating factor. [71] I also take into account the accused’s remorse and the courses he has completed while in custody waiting for his case to resolve. [72] Next, pursuant to the Supreme Court of Canada decisions in R v Gladue, (SCC), [1999] SCJ No 19, [1999] 1SCR 688 (QL) [Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], I must carefully consider the circumstances of theoffender and consider any unique systemic or background factors which may have played a role in bringing the accused before the court. [73] Mr. Quvianaqtuliaq is only 28 years old.

He grew up in Cape Dorset and is the youngest of five brothers. He also has three sisters. [74] Neither of his adoptive parents went to residential school. He had a good upbringing. There was no drinking or drug use in thehouse. [75] Tragically, at age 12, the accused was sexually assaulted. It was one occasion that had a profound impact on him. He told hisparents six years later and, when in his twenties, he reported it to the RCMP, but no charges were ever laid. [76] Mr. Quvianaqtuliaq grew up on the land where he learned to be a hunter.

Hunting is very important to him and this is why hiscounsel is seeking a Criminal Code

section 113 exemption. [77] He left school in grade 12 and did not graduate. He was passed through the school system from grade to grade, despite not havingthe skills he might need to succeed in the next grade. He told his lawyer that he reads and writes “a little bit”. [78] He admits that he has been in a common-law relationship with Ms. Qatsiya for the past six years and that there has been a highdegree of violence in that union. He knows that this is something he needs to work on. To that end, he attended the Men’s group and theAlternatives to Violence program. He completed both courses and is proud of the certificates he received.

[ 79 ] Ms. Qatsiya and Mr. Quvianaqtuliaq have a five-year-old son together whom the accused loves a great deal and he knows that he will not be able to be a part of his son’s life in any real sense until he is released. He is, of course, not happy to leave his son without a father. [ 80 ] He was highly intoxicated when these events took place. He knows that he is unable to handle alcohol and he is dangerous on the few occasions when he consumes it. This is something he is prepared to work on. [ 81 ] I am told that Mr.

Quvianaqtuliaq has an openness to improve himself and that he wants to make sincere efforts to address some of his underlying issues. He apparently has some insight into what is needed; which is very important, given the amount of time he will serve in the penitentiary. V.

CONCLUSION [ 82 ] There has been a great deal of discussion between Crown and Defence which has resulted in the joint position put before me in this case. [ 83 ] I have considered the cases provided by counsel and I am content that the sentence requested is well within the range of acceptable sentences for these offences committed by this offender in these circumstances. [ 84 ] I thank both Mr. Nault and Ms.

Kellough for their able submissions and for the hard work they have done in coming to this decision. [ 85 ] Taking into account the seriousness of the offences and the circumstances of the offender, I am of the opinion that the sentence suggested is both fit and fair. [ 86 ] Accordingly, I have imposed the sentence requested. [ 87 ] The only remaining issue is whether or not to grant Mr. Quvianaqtuliaq the Criminal Code

section 113 exemption requested by his counsel for the purposes of sustenance hunting. [ 88 ] The circumstances of the offences before the court and the accused’s criminal record are both aggravating in terms of my decision on this point. [ 89 ] Owning firearms is a privilege. In Nunavut it is closely associated with Inuit culture and I am always reluctant to remove the possibility of using guns for hunting when many families depend on country food. [ 90 ] Mr. Quvianaqtuliaq, according to his criminal record, has had an abusive relationship with firearms.

He has been convicted of careless use of a firearm, of two charges of possession of weapons for a dangerous purpose, and three assaults with a weapon. [ 91 ] Further, the facts in this case make it very clear that he is prepared to use weapons for illegal purposes.

At the time of these offences, he showed a complete disregard for the safety of the people in his own community. [ 92 ] Finally, he was already prohibited from owning or possessing any firearms at the time that he committed the offences for which he is being sentenced. [ 93 ] This is someone who has lost the privilege of owning or possessing a firearm and, based on his history, I am not convinced that if I were to grant a sustenance hunting exemption he would use a weapon solely for that purpose.

[ 94 ] The request to grant a Criminal Code

section 113 exemption is hereby denied. Dated at the City of Iqaluit this 10th day of January, 2017 ___________________ Justice B. Tulloch Nunavut Court of Justice