R. v. Mikkigak, 2022 NUCJ 16

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Mikkigak, 2022 NUCJ 16 Date: 20220413 Docket: 03-19-76 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: David Mikkigak __________________________________________________________________ Before: Chief Justice Sharkey Counsel (Crown): S. O’Connor Student-at-Law (Crown): S. Barnes Counsel (Accused): M.

Manocchio Location Heard: Iqaluit, Nunavut Date Heard: September 22, 24, December 3, 2021, and February 10, 2022 Matters: Sentencing: Determination of long-term offender status and custodial time for aggravated assault REASONS FOR DECISION (NOTE: This document may have been edited for publication) DISCLAIMER PAGE

Anonymized Judgment Disclaimer : Portions of this judgment have been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Table of Contents I. OVERVIEW .. 4 II. INTRODUCTION AND HISTORY OF THE CASE . 5 III. THE OFFENCE . 7 IV. THE IMPACT ON THE VICTIM MP . 8 V. MR. MIKKIGAK’S PERSONAL CIRCUMSTANCES . 9 VI. MR. MIKKIGAK’S CRIMINAL AND CUSTODIAL HISTORY . 10 VII. MR. MIKKIGAK’S THERAPEUTIC TREATMENT HISTORY WHILE IN CUSTODY AND IN THE COMMUNITY . 13 VIII. MR. MIKKIGAK’S TESTIMONY . 14

IX. DR. KLASSEN’S ASSESSMENT: DIAGNOSIS AND PROGNOSIS . 15 X. THE LAW RESPECTING LONG-TERM OFFENDERS AND THE SITUATION IN NUNAVUT . 18 XI. THE POSITIONS OF THE PARTIES . 20 A. Agreed Between the Parties . 20 B. The Crown . 20 C. The Defence . 21 XII. ANALYSIS . 23 A. The Long-Term Offender Application . 23 B. The Sentence for Aggravated Assault: 6.5 Years . 27 C. The Length of the Long-Term Supervision Order (LTSO): 4 Years . 30 D. End Result Calculations: Remand Credit and LTSO Start and Finish Dates 31 E. Findings: Sentence and LTSO Order 32 I. OVERVIEW [ 1 ] David Mikkigak is 41 years old.

He was found guilty of aggravated assault for a brutal attack upon his female common law partner. He has a decades long history of inflicting such abuse. There were two questions before me: First, whether I should declare Mr. Mikkigak to be what is called a long-term offender (LTO); and second, what sentence Mr. Mikkigak should receive for the aggravated assault. [ 2 ] A long-term offender is automatically subject to a long-term supervision order (LTSO). An LTSO is administered by federal parole services and would come into affect only after Mr.

Mikkigak finishes his sentence for the assault. [ 3 ] An LTSO would subject Mr. Mikkigak to a number of restrictive conditions. It could also require that he reside in a half-way house in southern Canada. An LTSO can be extended to a maximum of 10 years. [ 4 ] The Crown Attorney asked that I impose a 7-year prison term for the aggravated assault, which, after credit for pre-trial custody, would result in approximately a 34-month sentence (slightly less than three years) to be served in a federal institution. [ 5 ] A prison sentence of two years or longer is served in a federal penitentiary.

A sentence of less than two years is served in a territorial institution. [ 6 ] In addition, and based on Mr. Mikkigak’s long criminal history, the Crown also requested that I declare Mr. Mikkigak to be a long-term offender and place him on a long-term supervision order (LTSO) for 6 years.

[ 7 ] If Mr. Mikkigak were to receive a 34-month prison sentence followed by an LTSO for 6 years, then he would be bound by the order until he reached age 50. [ 8 ] Mr. Mikkigak’s defence attorney asked that I impose a prison term of 6.2 years, which, after credit for pre-trial custody, would result in a sentence of two years – the minimum sentence allowed to be served in a federal prison. Counsel asked for this two-year sentence so that Mr. Mikkigak could benefit from programing which is available only in the federal system. [ 9 ] Defence counsel also requested that I not find Mr.

Mikkigak to be a long-term offender who would then be subject to an LTSO. Instead, Counsel suggested that I impose a period of territorial probation for three years which would start after Mr. Mikkigak finished serving the two years federal sentence. [ 10 ] I imposed a sentence of 6.5 years, which, after credit for pre-trial custody, resulted in a sentence of approximately 27 months. [ 11 ] I also found Mr. Mikkigak to be a long-term offender and imposed a long-term supervision order for a period of 4 years. This LTSO will start when Mr. Mikkigak finishes the 27-month prison term. Thus, Mr.

Mikkigak will be subject to the LTSO until approximately his 48 th birthday. II. INTRODUCTION AND HISTORY OF THE CASE [ 12 ] The accused, David Mikkigak, was arrested on 12 April 2019 and charged with aggravated assault contrary to

section 268 of the Criminal Code . R.S., c. C-34, s. 1 ( Criminal Code ) and assault with a weapon (a chair) contrary to

section 267 (a). The complainant in the case was his common law spouse, MP. [ 13 ] Mr. Mikkigak has been in custody since this arrest on 12 April 2019. His case initially moved promptly through the system. Mr. Mikkigak pleaded not guilty to the charges and his trial took place in his home community on 23 October 2019 before Justice P.R. Jeffrey (a deputy judge of the Nunavut Court of Justice). On 24 October 2019, Justice Jeffrey found Mr. Mikkigak guilty on both aggravated assault and assault with a weapon. [ 14 ] From October of 2019 the case moved more slowly through the system. In November of 2019 the Crown applied for a psychological assessment pursuant to

section 752.1 of the Criminal Code on the basis that Mr. Mikkigak might qualify to be declared a long-term offender. If declared to be a long-term offender Mr. Mikkigak would be subjected to a federal long-term supervision order after serving his sentence for assaulting MP. [ 15 ] In early 2020 Mr. Mikkigak retained a new lawyer. Between March and June of 2020 there was a court closure (the first of several closures related to the COVID-19 pandemic).

On 27 August 2020 the Court ordered the psychological assessment, which was completed and filed with the Court on 24 November 2020. [ 16 ] In December 2020 there was a second court closure, and the case was scheduled to be addressed in Assignment Court in January 2021. Between January 2021 and September 2021 there were further adjournments of the case all of which were done with the agreement of Crown and Defence counsel. [ 17 ] During this time the Crown gave formal notice of its intention to apply for a long-term offender finding. Mr.

Mikkigak’s counsel received voluminous disclosure material which would form the basis of the Crown’s application. [ 18 ] The case was fixed for two days - 22 and 24 September 2021. The hearing would determine both what sentence Mr. Mikkigak should receive for assaulting MP and whether he should be declared a long-term offender. [ 19 ] Normally, the same judge who found Mr. Mikkigak guilty would also preside at the sentencing hearing. However, in August 2021 I advised Crown and Defence counsel that Justice Jeffrey would be unable to continue with Mr. Mikkigak’s case.

I took carriage of the matter pursuant to sections 669.2 (1) and 753 of the Criminal Code . Counsel did not oppose the change in judge for sentencing.

[ 20 ] On 22 and 24 September 2021, I presided over the evidential portion of the hearing. There was live testimony from witnesses and voluminous documentary evidence. [ 21 ] There was the testimony from Dr. Phillip Klassen, an expert in the areas of forensic psychiatry, psychiatric diagnosis and treatment, risk assessment, and risk management of offenders. He performed the court ordered assessment.

There was the testimony of territorial and federal corrections officials which outlined the rehabilitative programs available in their respective institutions as well as the federal regime for supervision of long-term offenders. [ 22 ] There was a victim impact statement from MP. In addition, on 03 December, 2021 MP was present and addressed the Court. There was a Pre-Sentence Report [PSR] prepared by probation services which provided comprehensive insight into Mr. Mikkigak’s up- bringing as well as his adult life. [ 23 ] I was provided with a compendium of Mr.

Mikkigak’s criminal history, including transcripts of previous sentencing proceedings. I was also provided with a compendium of Mr. Mikkigak’s previous custodial and treatment history in both territorial and federal correctional institutions. All of this written material was before me through the agreement of counsel. None of it was in dispute. [ 24 ] Finally, I had testimony from Mr. Mikkigak himself.

He explained the lack of treatment which he experienced while incarcerated, and how he is, and always has been, amenable to taking such treatment. [ 25 ] At the conclusion of this evidential portion of the hearing I adjourned the case for the final arguments of Crown and Defence Counsel to 03 December 2021. After hearing from the parties, I adjourned further to 10 February 2022 for the passing of sentence. [ 26 ] On 10 February 2022 I sentenced Mr. Mikkigak to 6.5 years imprisonment for the aggravated assault.

At the request of the Crown, I entered a judicial stay of proceedings on the charge of assault with a weapon contrary to

section 267 (

a) of the Criminal Code . [ 27 ] On 10 February I also declared Mr. Mikkigak to be a long-term offender and imposed a long-term supervision order of 4 years to take effect after he served the aggravated assault sentence. [ 28 ] After credit for remand, Mr. Mikkigak’s net sentence moving forward from 10 February 2022 was 27 months of imprisonment. [ 29 ] I advised the parties that I would provide written reasons for the sentence imposed. This judgment contains those reasons. III. THE OFFENCE [ 30 ] David Mikkigak and the female victim, MP, have been domestic partners since they were teenagers.

They have four children together. This relationship was interrupted on a couple of occasions over the years when Mr. Mikkigak took up briefly with other partners. They were, however, seeing each other once again when the offence was committed. [ 31 ] On 12 April 2019, the victim, MP, was visiting her mother and returned home with her two-year-old grandchild at around 11:00 pm. Mr. Mikkigak was not at the house. Sometime after she had returned home, she received a phone call from Mr. Mikkigak. She told him to stop calling her. Eventually, around 4:00 a.m., Mr. Mikkigak showed up at the house. MP met with Mr.

Mikkigak downstairs as the child was upstairs. [ 32 ] They had some discussion and MP could see that Mr. Mikkigak was intoxicated. She asked him to leave, but he refused. MP became angry and threw a cellphone in Mr. Mikkigak’s direction. Mr. Mikkigak then became angry and assaulted MP. [ 33 ] Mr. Mikkigak hit MP with his fists and the punches sent her to the floor. He then jumped on her face and head. He picked up a chair and began hitting her on the head. She covered her head with her arm to protect herself and he hit her arm with the chair. She saw

blood and fainted. [ 34 ] When MP woke up Mr. Mikkigak was gone. MP called the RCMP and was taken to the local health center. [ 35 ] MP suffered a broken arm as a result of being hit by the chair. She also had a lacerated scalp and bruising to her face and body. She was required to travel to Ottawa twice for follow-up medical attention. Photos of MP’s injuries were filed with the Court. [ 36 ] Mr. Mikkigak was arrested a short time after the incident and has been in custody since that time – 12 April 2019. MP was pregnant at the time of the assault, but it is accepted between Crown and Defence that Mr.

Mikkigak was not aware of this fact. IV. THE IMPACT ON THE VICTIM MP [ 37 ] At the outset MP wrote a victim impact statement (VIS) wherein she describes the emotional, physical, and economic impact of the offence. She says her lifestyle and emotional well-being are negatively affected by simply having Mr. Mikkigak in her life. [ 38 ] MP describes how the surgery on her arm was not routine but required some special procedures, and how she still suffers from memory loss as a result of being hit on the head. She explains how Mr. Mikkigak has put her into financial debt.

She also expresses fear for her safety when Mr. Mikkigak is released from jail and says that her entire family shares this fear. She says as well that her children are angry at Mr. Mikkigak for the way he has treated her . [ 39 ] MP says Mr. Mikkigak is in serious need of therapeutic help without which he will never change. MP was also present in the courtroom during the sentencing hearing on 03 December 2021, and she made it clear that she wanted to have no further contact with Mr. Mikkigak. V. MR. MIKKIGAK’S PERSONAL CIRCUMSTANCES [ 40 ] David Mikkigak is now 41 years old. He turns 42 in July 2022.

He and MP, his intimate female partner, have been together since they were teenagers; and with some interruption, remained partners until 2019. They have four children together, ages 19 through 7. [ 41 ] Mr. Mikkigak has also had two other intimate female partners over the years: SK from approximately 2004 to 2006; and PP, off and on, from around 2012 to 2017. [ 42 ] Mr. Mikkigak co-operated with probation services in their preparation of a Pre-sentence Report (PSR) about his life experience. [ 43 ] Mr. Mikkigak was adopted at birth by his adoptive mother, KM, and her husband.

His adoptive father worked in the local print shop and KM was a school custodian. Neither parent went to residential school. Mr. Mikkigak said that his father was an alcoholic but said he did not witness any type of abuse or violence in the family home. To the contrary, he said his parents provided well for him and for his extended family as well. [ 44 ] Mr. Mikkigak lost his biological father to suicide while still a child. His adoptive father passed away when he was 14 years old. Mr.

Mikkigak is the youngest of 14 siblings with whom he remains close, although as a child he experienced some bullying by them. [ 45 ] Mr. Mikkigak did well in school until about grade 8, when he dropped out after being the victim of sexual abuse for a number of years. Mr. Mikkigak only recently disclosed to probation services, and in turn the RCMP, that between the ages of 7 and 12 he was sexually abused and has since seen his abuser in Iqaluit. This is something with which Mr. Mikkigak is still struggling – for example he declined to discuss details with the probation officer who prepared his PSR.

He readily acknowledges, however, his need for counselling.

[ 46 ] This abuse is obviously something which has had a significant impact upon Mr. Mikkigak’s early childhood development, and in turn his addiction to alcohol. [ 47 ] Mr. Mikkigak reports that he started smoking marijuana at age 7 in the company of a relative who was a drug dealer and frequent user. He thought this lifestyle was ‘normal.’ Mr. Mikkigak says he started drinking alcohol at the age of 16 and has been drinking ever since. [ 48 ] Mr. Mikkigak has spent much of his adult life in jail.

However, he remembers going out on the land in his younger years and still enjoys doing so when the opportunity arises. He also has skill as a carver and has supported himself through his carving as well through casual work as a water/sewage truck helper for the Hamlet of Kinngait. Mr. Mikkigak is also up-front in acknowledging that he has, over the years, supported himself by selling weed. [ 49 ] Mr. Mikkigak is a physically healthy and intelligent individual who is able to read and write in both Inuktitut and English. VI. MR.

MIKKIGAK’S CRIMINAL AND CUSTODIAL HISTORY [ 50 ] David Mikkigak has a record of criminal convictions starting in 2001, when he was 21 years old, and continuing until 2019, when he was 39 years of age. [ 51 ] Now age 41, Mr. Mikkigak has been convicted of 87 criminal offences, including: 45 convictions for assaults and threatening behavior, and 25 convictions for failure to comply with court orders (including firearm prohibitions, and

section 810.2 special peace bonds). [ 52 ] The most significant area of concern is Mr. Mikkigak’s penchant for intimate partner violence, as well as violent acts committed against family members. [ 53 ] Mr. Mikkigak has 16 previous convictions for violent offences against his long-time intimate partner, MP.

These charges commenced shortly after they first got together in 2000 and ended in April of 2019 when he committed the aggravated assault. [ 54 ] The convictions relating to MP include: 7 common assaults; three assaults with a weapon (and sometimes multiple weapons such as chairs, hockey sticks, electric guitars, lamps and phones); three charges of uttering threats to kill. [ 55 ] Mr. Mikkigak served jail terms for these offences against MP ranging on average from one to 8 months, along with one term of 14 months. [ 56 ] Mr.

Mikkigak also has two assault convictions from incidents in 2005 and 2006 against his then intimate partner, SK. He served jail terms of one and 6 months for these offences. [ 57 ] Mr. Mikkigak also has one assault and three assault causing bodily harm convictions from incidents in 2013 and 2017 against his then intimate partner, PP. He served two jail terms of 6 months, and one term of one year for these offences. [ 58 ] In addition, Mr.

Mikkigak has been convicted of several violent offences against family members – his mother, his sister, his daughter, and his brother-in-law. [ 59 ] He received a three-month jail term for an assault against his sister which occurred in 2006.

[ 60 ] The most notable violent offence involving family members occurred in 2008 when Mr. Mikkigak attacked his mother and his sister. He then committed an aggravated assault by stabbing his brother-in-law who had intervened to put a stop to the attack. In 2010 Mr. Mikkigak was sentenced to 48 months for this incident (of which he served 11 months after spending considerable time on remand). [ 61 ] In March of 2016, Mr. Mikkigak was sentenced to 15 months jail (after spending five months on remand) for assaulting his mother and daughter. [ 62 ] Mr. Mikkigak has served only one federal prison term.

On 07 May 2013 he appeared before me on charges of assault, assault with a weapon, and threats. These charges did not involve intimate partners or family members – rather they involved other members of his community as well as correctional staff while he was on remand awaiting trial. [ 63 ] I sentenced Mr. Mikkigak to a prison term of two years for these offences. I did so at the request of Mr. Mikkigak and his counsel for the express purpose of allowing him to receive counselling in the federal system which was not available in the territorial jail. [ 64 ] Mr.

Mikkigak has not spent any significant amount of time out of jail since his criminal record started in 2001. [ 65 ] From 2001 until 2008 the total amount of time he spent ‘free’ from jail was around three years. His largest block of freedom in this period (from 2001 to 2008) appears to be 9 months between June 2004 and March 2005. During this time (2001 to 2008) he not only assaulted intimate partners and family members, but also served two jail terms of 11 months each for assaults and assaults with weapons involving other community members. [ 66 ] Similarly, from 2008 until 2017 the total amount of time Mr.

Mikkigak spent out of custody totalled approximately one year. [ 67 ] It follows that another aspect of Mr. Mikkigak’s criminal profile is the frequency with which he commits a criminal offence a short time after being released from a sentence of imprisonment – often within a month or two of being released, and on at least a couple of occasions within a week. [ 68 ] Mr. Mikkigak committed the vast majority of his offences – and in particular his offences against intimate partners - while drunk.

However, his pattern of anger, jealousy, and controlling behaviour towards women, is persistent even while sober. [ 69 ] His violent conduct towards long-time partner, MP, began in 2000 when, while sober, he assaulted her over the course of many months, including when she was 6 months pregnant. These were his first criminal convictions for which he received a suspended sentence with probation. In 2008 Mr.

Mikkigak, again while sober, approached MP when she was shopping with her young children and threatened to beat her. [ 70 ] It appears that MP was spared from further violence between roughly 2012 until 2019 while Mr. Mikkigak was in a relationship with PP. During this time, however, Mr. Mikkigak also assaulted PP while he was sober: in the summer of 2017 Mr. Mikkigak was on the land for about three months evading capture by police; PP joined him at his camp during which time, while sober, Mr.

Mikkigak committed an assault upon PP which caused her bodily harm and for which he was subsequently convicted. [ 71 ] Mr. Mikkigak’s compliance with community supervision orders has been problematic. He has been placed on court ordered supervision (bail release, probation orders, and s. 810.2 peace bonds) approximately 15 times. He has 25 convictions for failing to comply with such orders. [ 72 ] Mr.

Mikkigak’s history while in custody in Nunavut includes numerous incidents of uttering threats, assaults against other inmates and correctional officers, phoning his victims from custody, and property damage. [ 73 ] His behavior was significantly better during his one stint in federal custody between 2013 and 2015. Reports show a problem free period of incarceration with pro-active efforts on Mr. Mikkigak’s part to become more sociable.

[ 74 ] Unfortunately, it appears this behavioral improvement did not translate into the community. He was statutorily released on parole in September 2014. His parole was suspended in November 2014, in part due to his behavior towards his parole officer. VII. MR. MIKKIGAK’S THERAPEUTIC TREATMENT HISTORY WHILE IN CUSTODY AND IN THE COMMUNITY [ 75 ] Mr. Mikkigak’s correctional history in Nunavut shows little success in terms of treatment. His participation in programming has been inconsistent.

He has completed some programming during his time in territorial custody but has also displayed markedly disruptive and uncooperative behavior during treatment sessions. As one correctional official put it, “he does not really help himself. It is though he is looking for a miracle.” [ 76 ] Dr. Klassen spoke with Mr. Mikkigak’s victims, MP and PP, about any treatment Mr. Mikkigak might have received in the community. They each told Dr. Klassen that when they raised the subject of treatment with Mr.

Mikkigak he was unwilling to engage or told them he already had taken treatment in jail. [ 77 ] In contrast to this negative picture of Mr. Mikkigak in territorial custody, Mr. Mikkigak demonstrated a willingness to participate in treatment while in the federal penitentiary between 2013 and 2015. He was, however, denied this treatment because of waitlists. [ 78 ] This was unfortunate because access to such treatment was precisely the reason why I sentenced Mr. Mikkigak to this federal term of imprisonment.

I was told by a federal corrections official during this sentencing hearing that the federal policy of allowing such waitlists to accumulate has been remedied; and as a result inmates are now moved from the assessment to treatment stage in a prompt and humane manner. [ 79 ] Mr. Mikkigak was admitted into federal custody on 07 May 2013. He was released on parole to the Mamisarvik Healing Center (Ottawa) in October 2014 where he attended the majority of the programming available. However, by November 2014 his parole was suspended following a determination that his risk was no longer manageable in the community.

Reports show his behavior at programming was concerning – including sexualizing female staff and participants and bullying another participant. [ 80 ] Mr. Mikkigak was returned to federal custody and held to expiry of his sentence. He was released on 06 May 2015 and returned to his home community. One month later, on 06 June 2015, he re-offended. VIII. MR. MIKKIGAK’S TESTIMONY [ 81 ] In past sentencing proceedings Mr. Mikkigak has often told the sentencing judge that he needs treatment. Mr. Mikkigak also testified in these proceedings about his custodial and treatment history.

He confirmed what is clear through his custodial records – namely, that he has not received in depth programming in the last 20 years, despite his many periods of incarceration. Mr.

Mikkigak was particularly critical of federal corrections – and in my view, rightfully – for providing no treatment at all after he was sentenced to two years imprisonment in 2013. [ 82 ] He described his recent history in a Nunavut correctional institution as including positive behavior that resulted in him being transferred to the low security unit, followed by a disciplinary return to general population. [ 83 ] He was, however, less than candid about his program attendance while on parole at the Mamisarvik Center in the fall of 2014. Mr.

Mikkigak testified that when he was breached for his parole it was not his fault. He said it was PP’s fault for getting him into trouble. He further testified that in the past this has happened with another of his intimate partners, MP, when she got possessive and got him into trouble.

[ 84 ] Mr. Mikkigak explained that a significant event in his life – his nephew’s suicide – resulted in a turn of events and improvements to his behavior. In particular, he said that his nephew’s death resulted in him deciding not to be a drug dealer anymore and to consider being a better man. He also testified that his children made him realize that he wasn’t there for them when they were young. [ 85 ] Mr. Mikkigak further testified that he was remorseful for his behavior but was insistent he needed programming to change. He said that it is “just the alcohol that is always getting me in trouble.” IX. DR.

KLASSEN’S ASSESSMENT: DIAGNOSIS AND PROGNOSIS [ 86 ] David Mikkigak declined to be interviewed by Dr. Klassen. However, Dr. Klassen had access to significant file material respecting Mr. Mikkigak’s criminal, custodial, and treatment history. In addition, Dr. Klassen was able to speak at length with members of Mr. Mikkigak’s family, including the victim in this case, MP, as well as PP. [ 87 ] Dr. Klassen’s impression of Mr. Mikkigak was that he is predominantly a violent offender, and his sense was that volatility and addictions played important roles in Mr. Mikkigak’s offending. Dr. Klassen identified that Mr.

Mikkigak’s potential victims are most likely intimate partners, although he noted offending of others close to him. Dr. Klassen identified jealousy, and power and control combined with life-style instability and active intoxication as leading to a breadth of offending behavior. [ 88 ] Dr. Klassen is of the view that Mr. Mikkigak suffers from both antisocial personality disorder as well as substance abuse disorder respecting alcohol. In addition, and based on early childhood trauma, he shows signs of post traumatic stress disorder (PTSD).

Neither of these conditions are, strictly speaking, curable, but through treatment and external monitoring can be mitigated from a behavioral standpoint. [ 89 ] Dr. Klassen used three actuarial or structed methods of risk assessment in determining Mr. Mikkigak’s propensity to re-offend. Only one of these instruments (or tools) has been evaluated in relation to indigenous offenders, but Dr. Klassen is confident that all three tools are valid in assessing Mr. Mikkigak. [ 90 ] Mr. Mikkigak’s score on the Psychopathy Checklist-Revised (PCL-

R) test puts him in the 62 nd risk percentile in comparison with a reference sample of 100 other persons charged with a criminal offence. This is a moderate score suggesting some problems with treatment and supervision. [ 91 ] Mr. Mikkigak’s score on the Ontario Domestic Assault Risk Assessment (ODARA) test puts him in the 94 th risk percentile. Similarly scoring individuals re-offend violently, typically against a prior intimate partner, at a rate of 75% over approximately a 5 year follow up period. [ 92 ] Mr.

Mikkigak’s score on the Domestic Violence Risk Assessment Guide (DVRAG) test puts him in the 100 th percentile. Similar scoring individuals re-offend violently, generally against a prior intimate partner, at a rate of 100% over multi-year follow up, in the reference or standardized sample, albeit the number of individuals in this category was small. [ 93 ] Dr. Klassen points out that risk assessment involves more than simply looking at the probability of violent recidivism.

He notes that there are other domains of risk assessment as well – namely, the imminence, frequency, and severity of the offender’s violent behavior. [ 94 ] In Mr. Mikkigak’s case all three of these variables are live issues. He has often recidivated quite quickly, some of his violence has been quite significant, and as often seen in intimate partner violence (IPV), once violence occurs, Mr. Mikkigak’s aggressive behavior tends to be serial. [ 95 ] The obvious question then becomes, what to do about managing or mitigating, this risk. The answer is twofold: treatment in

custody, and external follow up post-custody. This pre-supposes, of course, Mr. Mikkigak’s willingness and co-operation in any therapy which is offered. [ 96 ] There was much testimony at the sentencing hearing from both territorial and federal corrections officials respecting the availability of rehabilitative programming. In Nunavut, the situation is dire; half of all programs at our Iqaluit correctional facility are not up and running because of staff shortages.

The Court was told the programs will not be running for another 6 months to one year. [ 97 ] Further, the programming in our territorial jail is essentially of an educational nature and not near the therapeutic level of intensive group or individual counselling offered in the federal system – and in particular the 100 to 300 hours of group and individual therapy which, according to Dr. Klassen, Mr. Mikkigak would need. This is not in dispute between the parties (Crown and Defence). [ 98 ] Dr. Klassen was of the view that Mr. Mikkigak will need supervision in the community until he reaches the age of 50.

At age 50 there is a significant reduction in risk of violence; by age 60 there is no need of external controls to prevent violence. [ 99 ] Dr. Klassen said that there is only a reasonable possibility of control of Mr. Mikkigak’s risk in the community when he is either (1) incarcerated or under supervision by federal corrections officials, or (2) has attained the age of at least 50 years old. And further, given the dynamics of Mr. Mikkigak’s home community, any release as part of his sentence would need to be in a federally supervised southern environment. [ 100 ] Dr.

Klassen concluded his written assessment as follows: “Mr. Mikkigak is now 40 years of age. He has shown dense and unremitting criminality, and he’s not been responsive to probation orders or a

Section 810.2 Order. I would expect that age-related decline in propensity for offending will reduce this gentleman’s risk independent of treatment, but this is not likely to be clinically meaningful for at least a decade. That being said, this gentleman has never received treatment commensurate with his level of risk.” [ 101 ] During his testimony Dr. Klassen described Mr. Mikkigak as ‘treatment naïve.’ I asked Dr. Klassen what he meant by this, and he said that Mr. Mikkigak essentially has never received any treatment. X.

THE LAW RESPECTING LONG-TERM OFFENDERS AND THE SITUATION IN NUNAVUT [ 102 ] The designation by a Court of a person to be a long-term offender is exceptional. Only persons who have been convicted of a serious personal injury offence (or certain sex offences) are eligible to be designated as long-term offenders. [ 103 ] The sentence which follows such a designation is also exceptional.

Such a designation is reserved for individuals who pose an ongoing threat to the public and accordingly merit an enhanced sentence on preventative grounds. [ 104 ] It follows that the rules which provide for finding an offender to be a long-term offender must be strictly complied with. These rules or criteria are found in

section 753.1 (1) of the Criminal Code . [ 105 ] First, the Court must be satisfied that it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; second, the Crown must prove, beyond a reasonable doubt, that there is a substantial risk that the offender will reoffend; and third, the Court must be satisfied there is a reasonable possibility of eventual control of the risk in the community. [ 106 ] If the Court finds a person to be a long-term offender, then they will be subject to long-term supervision in the community which can be for as long as 10 years.

Long-term supervision is provided for by sections 753.2 and 753 of the Criminal Code . [ 107 ] A long-term offender is subject to a long-term supervision order (LTSO). Pursuant to the federal Corrections and Conditional

Release Act , S.C. 1992, c. 20 the LTSO is supervised by the Parole Board of Canada through a community parole officer. The Parole Board will set various restrictive terms and conditions which the offender must obey, normally these include things like curfews, drug testing, counselling, and employment. The Parole Board can also place residency restrictions on offenders which may require them to live in a half-way house in a specific city, often far from their home.

Such a residency condition may, however, only be imposed on a yearly basis and is subject to review. [ 108 ] An LTSO takes effect only after the end of the offender’s sentence – at their warrant expiry date (WED)– regardless of whether the offender is released on parole earlier than the WED. [ 109 ] A breach of an LTSO is a serious matter. The offender is subject to immediate arrest and may be held in custody for up to 90 days. In addition, a breach of an LTSO is an offence which may be prosecuted by indictment.

If the offender is sentenced to prison for offences committed while on an LTSO, they will serve that sentence in a federal penitentiary. Their LTSO will be suspended, to resume after the new sentence is served. [ 110 ] In practical terms relevant to Nunavut there is only one federal community parole officer in Nunavut (located in Iqaluit) who is required to keep track of and supervise offenders who have been released on parole and who live in various communities. In southern Canada the most intensive level of supervision requires a parole officer to meet with the offender 8 times a month.

Obviously, unless the parolee (or the offender subject to an LTSO) lives in Iqaluit, this highest level of supervision is not possible in Nunavut. [ 111 ] There is only one half-way house in Nunavut suitable to house an offender on an LTSO – namely, the territorial community corrections facility in Iqaluit (which is also acceptable to Corrections Canada for this purpose). [ 112 ] There have not, however, been any long-term offenders ever released directly to Nunavut. This is not to say, however, that Nunavut long-term offenders could not be released to Nunavut.

The testimony from the federal parole supervisor was clear that such releases were possible – both to the Iqaluit half-way house as well as to the community at large – if, in the view of the Parole Board, the risk level could be managed with the supports available in the community. [ 113 ] Finally, it is not required that the Court must find a person to be a long-term offender even where the three criteria set out in

section 753.1 (1) of the Criminal Code , above, are satisfied. The judge maintains a residual discretion, even where the criteria are met, not to declare the offender a long-term offender and to simply impose sentence without any long-term supervision order. This is what Mr. Mikkigak’s counsel asked me to do. XI. THE POSITIONS OF THE PARTIES A.

Agreed Between the Parties [ 114 ] During final arguments the Crown and Defence were clear that 03 December 2021 – the date of the arguments – would be the starting or reference point for calculating the sentence moving forward. [ 115 ] The Crown and Defence also agreed on remand calculations – specifically, that Mr. Mikkigak’s time in remand from 12 April 2019 until 03 December 2021 is approximately 33 months. Further, the parties agree that Mr. Mikkigak should be entitled to enhanced remand credit at a rate of 1.5:1, so that his total remand credit is approximately 50 months.

I agree with counsel in this regard – Mr. Mikkigak has served his remand at various facilities during the worst of Covid-19 lockdowns and restrictions. [ 116 ] I will grant additional remand credit at a rate of 1:1 for the period between 03 December 2021 (final arguments) and 10 February 2022 (the date sentence was imposed). [ 117 ] I will use these calculations of counsel in arriving at a fit sentence moving forward from 03 December 2021. However, I will

calculate and provide the precise sentence in “days” as provided for by Court Joint Operational Directive # 2. B. The Crown [ 118 ] The Crown says that the criteria provided for in

section 753.1 of the Criminal Code are satisfied and that I should declare Mr. Mikkigak to be a long-term offender. The Crown says not declaring Mr.

Mikkigak a long-term offender would amount to gambling with the safety of the victim in this case as well as other potential victims. [ 119 ] The Crown asks that I impose a 7-year sentence (84 months) for the aggravated assault which, deducting time for remand (50 months), would leave a net sentence of approximately 34 months (slightly less than 3 years) moving forward from 03 December 2021. [ 120 ] In support of this position the Crown cites the severity of this assault upon MP, as well as the statutorily aggravating fact that MP was an intimate partner. The Crown cites Mr.

Mikkigak’s history of assaultive behavior towards MP, as well as other intimate partners. The Crown says the sentence must reflect the severity and frequency of this type of crime in Nunavut. [ 121 ] In addition, the Crown cites Mr. Mikkigak’s extensive criminal record and notes his failure to respond to previous long prison terms for similar offences, including a 3.5-year prison term for aggravated assault in 2010. [ 122 ] The Crown also asks that Mr. Mikkigak be placed on a long-term supervision order (LTSO) until he is 50 years old in July of 2030.

He is now age 41 and will turn 42 in July 2022. [ 123 ] This position is based on the evidence of Dr. Klassen that one factor which will reduce Mr. Mikkigak’s risk in the community in the absence of external controls is age related decline. However, this will not be significant until he reaches approximately 50 years of age. The Crown notes Dr. Klassen’s testimony that “the focus with Mr. Mikkigak is to get him to age 50.” [ 124 ] Accordingly, if I imposed a net sentence of 34 months imprisonment followed by an LTSO until Mr.

Mikkigak reaches age 50, then the length of the LTSO would be approximately 6 years. [ 125 ] Finally, and pursuant to the rule against multiple convictions for the same criminal act, the Crown suggests that I enter a judicial stay of proceedings on the charge of assault with a weapon. C. The Defence [ 126 ] Defence Counsel asks that I impose a sentence of 6.2 years (74 months) for the aggravated assault which, deducting time for remand (50 months), would leave a net sentence of 24 months (2 years) moving forward from 03 December 2021. [ 127 ] Counsel further suggests that Mr.

Mikkigak be placed on territorial probation for 3 years, the maximum allowed period of probation. [ 128 ] The net sentence of two years is important because

section 743.1 (1) (

b) of the Criminal Code requires that a sentence of two years (or more) be served in a federal penitentiary. A sentence of less than two years would require the offender to serve time in a territorial institution. [ 129 ] In turn, section 731 (1) (

b) allows the Court to impose a probation order following a jail sentence not exceeding two years; if the jail sentence exceeds two years, then no probation would be allowed afterwards.

[ 130 ] Thus, the position of the Defence is both principled and practical. In principle it recognizes the severity of the attack upon the victim, MP, and that a significant jump from previous sentences is appropriate. It is practical because by suggesting a net sentence of two years it will allow Mr.

Mikkigak access to the therapeutic services which are not available in the territorial system – and for which, in his own testimony, he said he desperately needs. [ 131 ] In her initial written filings Defence Counsel had urged a sentence of 5.5 years, but this calculation was based on an earlier disposition date and would not allow a net sentence of two years as of 03 December 2021. [ 132 ] Accordingly, during oral argument on 03 December counsel fine tuned her submission to a 6.2 year global or gross sentence, thus allowing a two-year net sentence moving forward from 03 December 2021.

To be precise, Counsel’s position was that a 6.2-year sentence equals 74 months, which, minus 50 months of pre-trial remand credit, would leave a net sentence of 24 months (2 years) for Mr. Mikkigak to serve. [ 133 ] Defence Counsel had the opportunity to cross-examine the federal officials who testified in the case. Counsel accepts, on behalf of Mr.

Mikkigak, that he will now– as opposed to his previous 2013-14 experience – be assessed and receive treatment in a more efficient fashion even with wait lists and Covid-19 delays. [ 134 ] Counsel submits that it is possible – assuming her client participates in his treatment program in a positive fashion – that he might eventually be released on parole to Iqaluit to reside in the territorial half-way house.

And from there, assuming again he has responded positively, be a good candidate for follow-up with territorial probation for the next 3 years following his federal sentence. [ 135 ] Defence Counsel does not dispute that the criteria contained in

section 753.1 (1) , (a), (b), and (

c) are met to have Mr. Mikkigak declared a long-term offender. The Defence position is that even if these three conditions are satisfied, I should exercise my residual discretion now to find Mr. Mikkigak to be a long-term offender. [ 136 ] The Defence says that it is not necessary yet to declare Mr. Mikkigak to be a long-term offender and that a sentence for the aggravated assault alone, without such a declaration, is sufficient to address the principles and objectives of sentencing. [ 137 ] Defence counsel says that to declare Mr.

Mikkigak a long-term offender is a too drastic and unfair a measure given that he was denied treatment in the federal system when, in 2013, he expected help. Further, counsel disputes use of an actuarial average as a measure to fix the length of an LTSO in the event one was imposed. [ 138 ] Defence counsel submits that a net two-year prison term which would address Mr. Mikkigak’s reoffending through treatment, followed by a 3-year period of supervised territorial probation is a fit and proper sentence. XII.

ANALYSIS [ 139 ] Section 753 (3) of the Criminal Code set out the sequence under which I must determine a long-term offender application as well as a sentence for the offence for which the offender is before me. [ 140 ] I must first determine whether to designate the offender as a long-term offender. If I find the offender to be a long-term offender then I must impose a sentence for their offence which must be a minimum term of imprisonment of two years.

And I must further order that the offender be subject to long-term supervision for a period that does not exceed 10 years. [ 141 ] Accordingly, the first inquiry must be whether or not I find Mr. Mikkigak to be a long-term offender. A. The Long-Term Offender Application

[ 142 ] I find that all three prerequisite conditions set out in

section 753.1 (1) (

a) through (

c) to have Mr. Mikkigak designated a long- term offender have been satisfied. Accordingly, I find Mr. Mikkigak to be a long-term offender. Each of these three criteria do, however require examination. [ 143 ] Respecting the first prerequisite to the long-term offender designation,

section 753.1 (1) (a): I find that it would be appropriate to impose a sentence of two years or more for the offence for which the offender has been convicted. [ 144 ] Mr. Mikkigak has been convicted in this case of aggravated assault. He was previously sentenced to 3.5 years imprisonment for the same charge in 2010. Mr. Mikkigak has also assaulted the victim in this case over a dozen times in the past 20 years and has served numerous jail sentences for assault against her and others.

Accordingly, it would be appropriate in this case to impose a sentence of two years or more for the aggravated assault against MP. [ 145 ] Respecting the second prerequisite to the long-term offender designation,

section 753.1 (1) (b): I find that the Crown has proven beyond a reasonable doubt that there is a substantial risk that the offender will reoffend. [ 146 ] For certain listed sex offences this criterion of “substantial risk” is presumed. However, Mr. Mikkigak does not fit within that category of offender and therefore the Crown must prove that there is a substantial risk of reoffending. [ 147 ] Mr. Mikkigak’s criminal history consists of 87 convictions over the past 20 years including 45 convictions for violence and threatening behavior.

He also has 16 convictions for violent offences against the victim in this case, his long-time intimate partner, and several convictions involving other intimate partners and family members. This past conduct alone provides an evidentiary basis supporting a high risk of future threat. [ 148 ] Dr. Klassen describes Mr. Mikkigak as predominantly a violent offender against intimate partners and those close to him. Mr. Mikkigak has two disorders: antisocial personality disorder and substance abuse disorder in relation to alcohol. [ 149 ] Mr.

Mikkigak’s anti-social personality disorder leads him to ignore social norms including disregarding the wishes of others; presenting as irritable and aggressive; repeatedly getting into fights and assaulting spouses and other family members. [ 150 ] Alcohol is a profoundly criminogenic drug and Mr. Mikkigak’s use of alcohol is not driven entirely by his traumatic past but also simply by peer influence and pleasure. Mr. Mikkigak does, however, assault intimate partners while sober. [ 151 ] Finally, Mr.

Mikkigak’s scores on both domestic or intimate partner violence scales place him in the highest percentiles (94 th on ODARA, and 100 th on DVRAG) in terms of risk. [ 152 ] It is clear from all this that there is a substantial risk that Mr. Mikkigak will reoffend. [ 153 ] Respecting the third prerequisite to the long-term offender designation,

section 753.1 (1) (c): I find that there is a reasonable possibility of eventual control of the risk in the community. The phrase ‘eventual control’ means control of the risk after a period of imprisonment.

Section 753.1 (1) (

c) differentiates the long-term offender from the dangerous offender. [ 154 ] This in the only area of any real difference between the Crown and Defence. The Crown says that the only way to reasonably address Mr. Mikkigak’s risk in the community is through supervision by federal correctional authorities. The Defence says that the risk can be reasonably managed by territorial probation services over a three-year period after Mr. Mikkigak is released from custody. [ 155 ] Dr. Klassen is of the view that the only real possibility of control of Mr.

Mikkigak’s risk to the community is when he is either (1) incarcerated or under supervision by federal correctional authorities, or (2) has attained 50 years of age. And further that any community release should have a residency requirement which initially would have Mr. Mikkigak in a southern half-way house away from the community triggers found in his home community.

[ 156 ] The Defence position is predicated on Mr. Mikkigak successfully completing an intensive therapeutic treatment program before he is released, and a willingness to comply with territorial authorities. [ 157 ] The problem with the Defence position is that I must view the situation as Mr. Mikkigak presents today as well as how he has behaved in the past. I cannot base a finding of how he can best be managed in the community based on the future hope he will change as a result of treatment.

I may incorporate this hope into the length of a long-term supervision order, but not into whether an order should be made. [ 158 ] Dr. Klassen’s opinion was not that Mr. Mikkigak would emerge from custody as an individual who is no longer a significant risk to the community. He explained that Mr. Mikkigak’s risk reduction is actually a combination of three things: treatment; the impact of aging; and how he responds to release in a more structured setting. [ 159 ] Antisocial personality is a lifelong condition. It cannot be cured. It is difficult to treat, and the only universal treatment is aging. Dr.

Klassen explained that treatment effectiveness remains an open question in the literature; there is no guarantee that treatment helps to reduce an individual’s risk going forward. [ 160 ] Mr. Mikkigak has a record of telling the court that he wishes to change, followed by rapid commission of further violent crimes. [ 161 ] He made such a plea when he was sentenced to time served on 24 November 2015 for various violent offences; six days later Mr. Mikkigak came home to his mother’s house, assaulted his mother with a broken chair, and kicked his daughter. [ 162 ] Similarly, Mr.

Mikkigak made such a plea when he was sentenced to time served on 19 June 2017; again, six days later, on 25 June 2017, Mr. Mikkigak assaulted his then intimate partner, PP, causing her bodily harm; he then left town to avoid apprehension and camped on the land until September 2017 – and he further assaulted PP when she went to visit him at his camp. [ 163 ] Mr. Mikkigak has breached release and probation orders 25 times. He has had his parole suspended and has violently offended while bound by a

section 810.2 peace bond. Mr. Mikkigak is thus well beyond the skill set of our territorial probation officers to manage him (and the risk he poses to others) in his home community, or even in Iqaluit. In my view, only a federal parole officer has the gravitas and tools to both manage and quickly respond to Mr. Mikkigak’s risk to the community. [ 164 ] Accordingly, while I am persuaded that there is reasonable possibility of eventual control of Mr.

Mikkigak’s risk in the community, I am confident that this will only be the case if he is supervised by federal corrections officials under a long-term supervision order. [ 165 ] In finding Mr. Mikkigak to be a long-term offender, I obviously decline to exercise my residual discretion not to do so even though all prerequisites to such a finding have been satisfied. It would in my view be irresponsible to exercise such a discretion. I agree with the Crown’s position that not to designate Mr.

Mikkigak a long-term offender would be to gamble with the safety of the victim in this case, his previous victims, as well as others in the community. B. The Sentence for Aggravated Assault: 6.5 Years [ 166 ] I fix a sentence for Mr. Mikkigak within a well-established analytical framework. First, in accordance with the fundamental principle of proportionality, I look at the seriousness of the offence itself and the moral blame worthiness of the offender in committing the offence.

I must ensure that the form of punishment fits the crime. [ 167 ] I then consider any aggravating circumstances which favor increasing the penalty to be imposed as well as any mitigating circumstances which favor reducing the penalty. I examine these factors with a view to satisfying the sentencing objectives of denunciation, deterrence, and rehabilitation. These sentencing objectives give me context within which to frame a sentence which best promotes a safe Nunavut.

[168] Mr. Mikkigak is an indigenous offender and accordingly I must consider section 718 (2) (

e) of the Criminal Code, and I mustapply both the letter and the spirit of these remedial provisions as directed by the Supreme Court of Canada in R v. Gladue, (SCC) and R v. Ipeelie, 2012 SCC 13 . [169] Indeed, the Gladue framework is an overarching one as I fix a sentence for Mr. Mikkigak. Further, it must be applied at both thesentence and long-term supervision stages. As much as possible I must individualize the penalty imposed on Mr.

Mikkigak within theobjective aims of sentencing. [170] I must also separate the analysis of a fixed sentence for the aggravated assault from the length of any long-term supervision order.The former is a form of punishment; the latter emphasizes rehabilitation and protection of the public. [171] The offence of aggravated assault is one of the most serious crimes a person can commit. It is punishable by a maximum of 14years imprisonment.

It will most often attract a significant federal term of imprisonment, and a major factor in the precise sentence willbe whether the offender has a previous record for violent offences. [172] The Crown has provided a number of case examples (including Nunavut cases) within which I can consider the parity principle –that is, what penalties other offenders with similar (or dissimilar) backgrounds have been given for committing the offence of aggravatedassault. The penalties imposed in these cases range from 16 months to 6 years, again, largely depending upon the offender’s previousrecord for violence. [173] In Mr.

Mikkigak’s case his propensity for violence is not only an aggravating factor in his case, it also speaks to his moralculpability in committing the offence. Mr. Mikkigak is well aware that when drunk he is a danger to his intimate partners and familymembers, yet he continues to use alcohol to excess. [174] At the same time, and particularly within the Gladue framework, I must assess Mr. Mikkigak’s moral culpability by consideringthat his addiction started at an early age and after he had already suffered significant childhood sexual abuse. [175] Sections 718.04 and 718.21 were not in force at the time Mr.

Mikkigak assaulted MP on 12 April 2019; these provisions cameinto effect only in September 2019. As a result, I am not statutorily compelled to give primary consideration to the objectives ofdenunciation and deterrence because MP is a vulnerable, Inuit woman. At the same time, I can rely upon the common law principleswhich inform these legislative initiatives. [176] I must also assess the appropriate sentence for Mr. Mikkigak within the social context of the prevalence of intimate partnerviolence and violence against women in Nunavut.

The rate of domestic violence in Nunavut is dramatically higher than all otherprovinces and territories. Mr. Mikkigak is not responsible for what other offenders have done. However, the prevalence of intimatepartner violence is relevant respecting the need, from a local perspective, for an appropriately denunciatory sentence. [177] The most important aggravating factor in this case is Mr. Mikkigak’s criminal record for violence. In particular, respecting MP, this is the 16th time that Mr. Mikkigak has been convicted of a violent crime against her.

He has waged a campaign of terror against MPfor 20 years, with a few breaks when he was in a relationship with (and offending against) another woman. The fact that he was drunk atthe time he committed this offence of aggravated assault is also, as noted earlier, an aggravating factor. [178] Finally, and pursuant to

section 718.2 (a) (ii), it is statutorily aggravating that MP was Mr. Mikkigak’s domestic partner when hecommitted the offence. [179] There are no mitigating circumstances. [180] From a Gladue perspective, I am dealing with a violent and serious crime. Our Supreme Court has made it clear that in suchcircumstances it is more likely as a practical matter that the sentences will not differ between Indigenous and non-Indigenous offenders.

This is a recognition that all Nunavummiut embrace the principles of denunciation and deterrence for serious violent crime and see the need to remove such offenders from society. [ 181 ] Nonetheless, I must apply Gladue methodology and individualize Mr. Mikkigak’s sentence. And the starting point, in all cases, is to consider whether a non-custodial (or a community based custodial sentence) would be reasonable in the circumstances. [ 182 ] In this regard absent a comprehensive rehabilitative plan in a long-term treatment facility involving the support of Mr.

Mikkigak’s victims and community, a non-custodial or community based custodial disposition (if one was legally available) is not an appropriate sentencing option. This is not a criticism of Defence counsel for not putting such an option before me; for only in exceptional cases could such a plan ever be put together. [ 183 ] Mr. Mikkigak faces a penitentiary penalty, to be sure. But he also needs treatment. On the one hand, it would not be appropriate to actually increase a jail term to achieve this aim. At the same time, the balance is delicate, and I must accede to a great extent to Mr.

Mikkigak’s own wishes – as expressed through his counsel – for a term of imprisonment which can accommodate his need for treatment. [ 184 ] In terms of fixing an appropriate term of imprisonment for Mr. Mikkigak I take into consideration that he has waged a 20-year campaign of terror against not only MP and his other intimate partners, but against his family generally. [ 185 ] I also consider the penalties that he has received for these types of offences in the past. In 2010, as noted earlier, Mr.

Mikkigak received a 3.5-year jail sentence for aggravated assault (as part of a global 48-month sentence, of which he served 11 months after a lengthy remand). This sentence was followed in 2013 by a two-year federal sentence. Then in 2016 he was given a 20-month sentence, followed in 2018 by a 27-month sentence. [ 186 ] In my view, the time for an incremental increase from the 48 months imposed in 2013 up to a sentence of between 5 and 6 years is passed. It is now time for a significant increase in penalty in order to satisfy the sentencing objectives of general deterrence, and in particular for Mr.

Mikkigak, individual deterrence. I am also mindful of the position of the defence in this regard. [ 187 ] Accordingly, I fix the sentence for aggravated assault at 6.5 years. C. The Length of the Long-Term Supervision Order (LTSO): 4 Years [ 188 ] The purpose of the long-term supervision order is not punishment. The LTSO is designed to rehabilitate the offender and, in turn, to thus provide protection for future victims. Dr. Klassen indicated that violence does not extinct until age 60; however, it substantially decreases by approximately age 50. As a result, Dr. Klassen said Mr.

Mikkigak should be subject to some form of external controls until he reaches 50 years old. [ 189 ] From a Gladue perspective I am aware that Mr. Mikkigak will spend most of his time during the LTSO away from his Inuit culture in southern Canada. If he transfers to Nunavut, it will likely not be until he has proven significant success in a southern setting; and even then, such a transfer will likely be to the half-way house in Iqaluit, not to his home community. [ 190 ] Accordingly, Mr.

Mikkigak’s time away from Nunavut – both in prison and during his LTSO – must factor into individualizing the length of the LTSO. [ 191 ] Further, while I must sentence Mr. Mikkigak given his circumstances at present and not based on some hope he will improve in the future, I must also acknowledge the salutary effect of a long prison term -the longest he has ever served – into arriving at an appropriate length for the LTSO. [ 192 ] In addition, as Defence counsel has pointed out, the age of 50 is an approximate actuarial average rather than a precise fixed point

where crime decreases. [ 193 ] Accordingly, I fix the length of the long-term supervision order to be 4 years. It will commence upon the expiration of the warrant expiry date for the aggravated assault sentence. Thus, the LTSO will be in effect until Mr. Mikkigak reaches age 48. D. End Result Calculations: Remand Credit and LTSO Start and Finish Dates [ 194 ] I heard final submissions of counsel on 03 December 2021. I sentenced Mr. Mikkigak on 10 February 2022.

A “Sentence Calculation” guide was distributed to counsel on 10 February which sets out the following calculations. [ 195 ] The gross or total sentence for the aggravated assault is 6.5 years; this is 78 months which, at 30 days per month, equals 2,340 days. [ 196 ] Mr.

Mikkigak has two remand periods: A first period from 12 April 2019 (the date of the offence) until 03 December 2021 (the date of final submissions of counsel); and a second period from 03 December 2021 (final submissions) until 10 February 2021 (the date sentence was imposed) [ 197 ] For the fist remand period (12 April 2019 – to – 03 December 2021) the total is 967 actual days. I awarded credit for this period at rate of 1.5:1. Thus, the remand credit for this first period is 1,451 days. [ 198 ] For the second remand period (03 December 2021 – to – 10 February 2022) the total is 69 actual days.

I awarded credit for this period at a rate of 1:1. Thus, the remand credit for this second period is 69 days. [ 199 ] The total remand credit for the two periods is 1,520 days [1,451 + 69]. [ 200 ] The net or total sentence for the aggravated assault is thus 820 days [2,340 – 1,520]. Thus, the time Mr. Mikkigak will actually serve moving forward from 10 February 2022 is 820 days . This is a sentence of approximately 27.3 months. [ 201 ] Respecting the long-term supervision order (LTSO). The length of the order is 4 years.

It will start to take effect upon the completion of the sentence for the aggravated assault – that is, upon the warrant expiry date (WED). The length of the sentence for aggravated assault is 27 months starting on 10 February 2022. This means the WED will be (approximately) 10 May 2024. [ 202 ] Thus, the LTSO will start on 10 May 2024 when Mr. Mikkigak is 44 years old. The LTSO will be in effect for 4 years and expire on approximately 10 May 2028, two months short of Mr. Mikkigak’s 48 th birthday on 15 July 2028. E.

Findings: Sentence and LTSO Order [ 203 ] Pursuant to sections 753.1 (1) & (3) of the Criminal Code , I find Mr. Mikkigak to be a long-term offender. [ 204 ] For the offence of aggravated assault [count # 1 in the Information], and pursuant to

section 753.1 (3) (

a) of the Criminal Code , I sentence Mr. Mikkigak to imprisonment for a term of 6.5 years. [ 205 ] For the offence of assault with a weapon [count # 2 in the Information], I enter a judicial stay of proceedings.

[ 206 ] Pursuant to

section 753.1 (3) (

b) of the Criminal Code , I order that Mr. Mikkigak be subject to long-term supervision for a period of 4 years. [ 207 ] Ancillary orders respecting DNA and firearms were made on 10 February 2022. Dated at the City of Iqaluit this 14th day of April 2022, ___________________ Chief Justice N. Sharkey Nunavut Court of Justice