R. v. Josephee, 2020 NUCJ 40

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Josephee, 2020 NUCJ 40 Date: 2020 1214 Docket: 03-18-100, 08-18-613, 08-19-434, 08-19-466, 03-19-221 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Harry Josephee ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): P. Plourde Counsel (Accused): M. Blanchard 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(3) , 98(1) (b), and 145(3) (x4) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Harry Josephee is before the court to be sentenced on charges of break and enter and commit theft, intentionally discharging a firearm into a place knowing or being reckless as to whether another person is present in the place, and four charges of breaching court orders. II. FACTS [ 2 ] On June 17, 2018, Harry Josephee had his eighteenth birthday. A month later, on July 18, 2018, he and another person broke into the Recreation Office in Kinngait. Harry used a drill to unscrew the plexiglass window so the two of them could enter the offices. They spent about 40 minutes inside the offices.

When they left, they took a number items with them, including a set of office keys and a Savage .223 rifle. [ 3 ] The break and enter was captured on camera. The footage showed Harry leaving the office with the rifle strapped on his back. The following morning a Hamlet employee went to Harry's house and asked for the rifle back. Harry returned it to him. [ 4 ] Later the same day Harry was confronted on the street by the Recreation Director. The Recreation Director noticed that Harry was wearing some sneakers that had been stolen from the Recreation office.

The Recreation Director was angry, and he grabbed Harry by the throat and demanded the sneakers. The Recreation Director was using such force that Harry almost lost consciousness. There were other people in the area. A bystander felt compelled to intervene, telling the Recreation Director to stop. The sneakers were returned, and Harry was left in his stocking feet, on the street. [ 5 ] Less than an hour later the Recreation Director was in his office when he heard loud bangs. He looked out the window and upon hearing more bangs, realized they were gun shots.

Bullets were entering the office from various locations. The Recreation Director had to lie down to try and protect himself. No one else was in the office. The Recreation Director called a Hamlet employee to find out what was happening. The employee drove to the area and saw Harry with a rifle. He told the Recreation Director to stay inside and set up barricades. [ 6 ] By this time, the RCMP were aware of active shooting in the community and were responding. All the RCMP members in the community made their way to the area of the shooting. They approached cautiously.

They saw Harry close to the Recreation Office with a firearm. Harry complied with directions given to him by the RCMP, dropping the rifle and putting his hands over his head. In addition to the rifle, other items were on the ground in the area around Harry, including a machete, rifle cartridges and casings, and two boxes of ammunition. [ 7 ] Subsequent investigation disclosed that Harry had taken a rifle from his uncle's house. At least two shots were taken into the Recreation Office and one shot at a hamlet vehicle punctured a tire. [ 8 ] Harry was arrested and taken into custody.

On July 23, 2018, he was released on a Recognizance. Conditions on his release required that he live at a specific residence in Iqaluit and that he abide by a curfew from 10:00 pm to 7:00 am. On August 29, 2018 he was arrested for breaching his Recognizance as he was not in his residence as required. [ 9 ] On January 17, 2019, Harry was again released on a Recognizance. One of the conditions of the Recognizance was that he not drink. On July 24, 2019, RCMP were called to the men's shelter because of an intoxicated male who was causing problems and refusing to leave. That male was Harry.

He was arrested for breaching his recognizance.

[10] On October 1, 2019, Harry was released on a Recognizance so that he could travel to Kinngait to attend his grandfather's funeral.He was to remain within a specified residence in Kinngait 24 hours a day, the only exception being to attend the funeral. Upon his returnto Iqaluit he was to go back into custody. While in Kinngait Harry did not comply with the terms of his release as he was moving aboutthe community and was not in his residence as required. On October 3, 2019 he was arrested. [11] He has been in custody since. III.

POSITIONS OF THE PARTIES [12] The Crown seeks a global sentence of 5 years, 30 days custody. [13] The Defence seeks a sentence that, given the amount he will be credited for pre-trial custody, will not exceed two years less a day.The goal, they say, should be to keep Harry in the territory. IV. VICTIM [14] Although no victim impact statement has been provided, it can be assumed that the Recreation Director who was targeted sufferedand likely continues to suffer from trauma flowing from the incident. V. CIRCUMSTANCES OF OFFENDER [15] Harry is an Indigenous offender. Per s. 718.2(

e) of the Criminal Code and the Supreme Court of Canada's decisions in R v Gladue, (SCC), [1999] 1 SCR 688, 238 NR 1 and R v Ipeelee, 2012 SCC 13 I must consider both the unique systemic orbackground factors which may have played a

part in bringing this Inuk offender before the courts and the types of sentencing proceduresand sanctions which may be appropriate given his Inuit heritage (Gladue at para 93). I must take judicial notice of factors such as thehistory of colonialism, displacement, and residential schools and how that history continues to translate into lower educationalattainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels ofincarceration for Indigenous peoples (Ipeelee at para 60).

Considering these factors will enable me to reach a truly fit and propersentence (Ipeelee at para 75). [16] Harry's mother struggles with substance abuse and left when he was baby. His father, also struggling with substance abuse, leftwhen Harry was every young. Harry was raised in by his grandparents. His grandparents were caring and supportive but were sometimesoverwhelmed by their responsibilities.

The family did not have a lot of resources and were affected by homelessness and food insecurity.Harry was not taught land skills as the family did not have the means to purchase skidoos, boats, and other tools that are necessary forland activities. [17] Harry has been affected by suicide. Two of his uncles died by suicide in the home Harry grew up in. When he was 15 Harrydiscovered the body of an 11-year-old friend who had taken his own life. Again, in 2016, a friend died by suicide. [18] When he was 16 Harry became involved in the Embassy of Imagination (EOI), an arts initiative for youth in Kinngait.

Harry'sparticipation in EOI led to a close and supportive relationship with one of the organization’s founders. She has provided the court withinformation about Harry's circumstances and expresses support for him. By all accounts he was an active, well regarded member of thegroup. For three months in 2016 he was a regular participant in morning workshops with the group. [19] In 2017 Harry was involved in art projects in Kinngait, including painting murals on the exterior of the community hall and thecommunity gazebo.

He was able to participate in some on the land programming sponsored by EOI, something which was particularlysignificant for him as his family circumstances did not allow for land activities.

[ 20 ] In 2017 Harry travelled to Ottawa to participate in the painting of a public mural for Canada's 150 th anniversary celebrations. The mural was well received and publicly lauded by the arts community. It remains on prominent display in downtown Ottawa. [ 21 ] In 2018 one of his prints was selected as part of a group of prints displayed at the Legislative Assembly. [ 22 ] In the time leading up to the incident Harry was struggling. He was homeless. He was often hungry. He was still very young but was trying to deal with the responsibilities of adulthood.

He was not able to cope; he simply did not have the resources, maturity, or skills to address the multitude of issues he was faced with. [ 23 ] Harry had never been in trouble with the law. The break and enter to the Recreation Office was the first time. [ 24 ] The confrontation with the Recreation Director seemed to have triggered something in Harry. The humiliation of being manhandled and left in the street in his stocking feet provoked an extreme response. Within an hour Harry was shooting into the Recreation Office. [ 25 ] Harry has been in pre-trial custody for a considerable period.

He is described by his case worker at the Healing Facility in Rankin Inlet as a good inmate who has avoided or de-escalated situations of conflict and has having taken the opportunities available to him through programming. Despite being on remand status he has been working on the grounds crew. The money he makes is used to support his grandmother and to meet some of his own basic needs. [ 26 ] He is planning for the future. He would like to become a carpenter and work for the Hamlet. VI.

ANALYSIS [ 27 ] The principles of sentencing are set out in s. 718 of the Criminal Code . [ 28 ] The primary purpose of sentencing is to protect society and to promote respect for the law and the maintenance of a just, peaceful, and safe society. Parliament has recognized the danger presented by the intentional or reckless use of fireams in places where people might be present by imposing a mandatory minimum sentence of four years imprisonment.

The maximum penalty is fourteen years imprisonment. [ 29 ] The Nunavut Court of Appeal, in R v Lyta , 2013 NUCA 10 , considered the impact of a mandatory minimum sentence on the analysis which a judge must undertake when sentencing. The Court rejected the notion that the mandatory minimum sentence is the sentence which should be imposed except in instances where the application of general sentencing principles calls for a higher punishment. Conversely, the Court did not endorse the approach that the mandatory minimum sentence is reserved for the “best offenders” and the “best cases”.

Rather, the fact that there is a mandatory minimum sentence is one of the factors the Court must consider 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 high level of moral culpability and the seriousness inherent in intentionally discharging a firearm into a place where people might be is recognized by the mandatory minimum sentence of four years ( R v Ookowt , 2020 NUCA 5 at paras 46 , 77). [ 31 ] It is aggravating that there was more than one shot taken at the Recreation Offices. There was some forethought to the offence, as Harry had to obtain the rifle and ammunition before going to the Recreation Office.

This was an opportunity for him to calm down and consider his response to the situation. [ 32 ] In mitigation, Harry has entered a guilty plea. This is an acceptance of responsibility and an indication of remorse. I accept that his expression of remorse as set out in his letter to the Recreation Director is sincere.

[ 33 ] The perceived humiliation suffered by Harry prior to the offence, while it might assist in explaining the circumstances leading to the offence, is not a mitigating factor. [ 34 ] Deterrence, both specific and general, must be primary considerations in determining a fit sentence. The focus must be on the offence and not the offender ( Ookowt , supra , at para 46 ). However, this does not mean that rehabilitation plays no role. The sentence imposed must be just.

It must recognize not only the seriousness of the offence that was committed, but also the youth and prior good character of the offender and Gladue factors such as his circumstances of poverty and deprivation. There is good reason to be hopeful for Harry's future. His history of being able to succeed despite difficult circumstances coupled with his apparent progress while in custody bode well for his future. The Crown has recognized this and has stated that it does not want a sentence that will impede the progress he has made. VII.

CONCLUSION [ 35 ] In my view the one-year sentence sought by the Crown for the break and enter is excessive. I say this while appreciating that the offence of break and enter to a non-dwelling with the intention of stealing a firearm or actually stealing a firearm is considered more serious than break and enters to non-dwellings that do not involve firearms. This is reflected in the higher maximum penalty for break and enters which involve firearms. [ 36 ] The break and enter was Harry's first offence. It is serious that a firearm was stolen during the break and enter.

However, it cannot be assumed nor do the facts support the inference that the intent in taking the firearm was to use it in the commission of further offences or for any nefarious purpose.

Such a break and enter for a first-time offender may not have resulted in a jail term. [ 37 ] The sentence is a total of 1580 days, as follows: • On the break and enter charge: 90 days; • On the charge of intentionally discharging a firearm: 4 years (1460 days), consecutive; and • On the breach charges, a total of 30 days consecutive, as follows: for the first charge, one day; for the second, five days consecutive; for the third, 10 days consecutive; and for the fourth, 14 days consecutive. A. Pre-trial custody [ 38 ] Harry has served 655 actual days in pre-trial custody.

He is entitled to enhanced credit at a rate of 1:1.5, for credit of 982 days. The sentence remaining to be served is 598 days. B. Ancillary orders [ 39 ] 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 Harry will not have any contact with the Recreation Director. 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