R. v. Aqqiaruq, 2018 NUCJ 5

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Aqqiaruq, 2018 NUCJ 5 Date: 20180125 Docket: 07-16-44 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Joey Aqqiaruq ________________________________________________________________________ Before: The Honourable Madam Justice Susan Cooper Counsel (Crown): Phillippe Plourde Counsel (Accused): Kathryn Kellough Location Heard: Iqaluit, Nunavut Date Heard: January 25, 2018 Matters: Criminal Code, RSC, 1985, c C-46 , s 239(1)(b); Sentencing Decision REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Joey Aqqiaruq has pleaded guilty to a charge of attempted murder. He is before the Court to be sentenced. II. BACKGROUND [ 2 ] For the purposes of this decision I am going to use first names. [ 3 ] On March 12, 2016, Joey went with some friends to get ice. While they were doing this they were drinking. Joey drank some vodka and some whiskey. [ 4 ] After dropping the ice off at his brother's house, Joey went to a friend’s house. Over time, other people came to the house, some of them bringing alcohol.

Mario Auqsak, the victim, was amongst them. [ 5 ] Joey and Mario both drank alcohol and became intoxicated. They both went to sleep in the residence. [ 6 ] Mario was awoken when he was kicked in the groin. Joey is not the person who kicked Mario in the groin. It was Joey's brother, PA, who kicked Mario in the groin. Joey was still sleeping. [ 7 ] Upon being kicked in the groin, Mario awoke and began fighting with PA. It was the commotion from this fight that awakened Joey. When Joey awoke, he saw Mario punching PA in the face and PA trying to cover his face. [ 8 ] Joey told Mario to stop but he did not.

Joey stepped between Mario and PA in order to protect PA and get Mario to stop. However, this did not make Mario stop. Instead, Mario punched Joey and the two of them began to fight. They exchanged a few punches. Joey got Mario into a headlock and brought him to the ground. Mario was lying on his back on the floor and Joey got on top of him. [ 9 ] Joey held Mario down with one hand and punched him numerous times with his other hand. He then stood up and kicked him in the face four to five times with stocking feet. [ 10 ] At this point Mario was unconscious. But that did not stop Joey, who was fueled by anger.

Joey picked up a chair and brought it down twice on Mario's face. On the second hit, the chair broke into numerous pieces. Still Joey did not stop. [ 11 ] He then picked up a screwdriver which was on a nearby table. He knelt beside Mario and turned his head to the side. He then stabbed Mario twice in the head with the screwdriver, just behind the right ear. Mario began to bleed profusely. [ 12 ] It is admitted that, at the time he smashed the chair down on Mario and stabbed Mario, Joey intended to kill him. [ 13 ] The incident between Joey and Mario lasted about five minutes.

There were other people in the house, including children. No one intervened. [ 14 ] After stabbing Mario twice and seeing the blood, Joey had a change of heart. He then tried to help Mario. He dropped the screwdriver and went to get some rags to try and stop the bleeding. Joey and some other people in the house took Mario to the Health Centre. Two of the children ran to the RCMP to get help.

[ 15 ] When the police attended at the Health Centre, Mario was being cared for by the nurse with the assistance of Joey and another person. The police were advised that Joey was responsible for the injuries and he was arrested. B. Injuries [ 16 ] As can be expected, Mario's injuries were life threatening. He was medevaced to Iqaluit, where his condition was determined to be critical and he was further medevaced to Ottawa. [ 17 ] Upon arriving in Ottawa, Mario immediately underwent neurosurgery to decompress his brain.

He could only breathe with the assistance of a ventilator and had to be fed through a feeding tube. He could not move the left side of his body. He was in and out of consciousness. He underwent numerous surgeries and treatments. His medical prognosis was poor. [ 18 ] Mario spent three months in the hospital, at which point he was transferred to a rehabilitation centre. Over four months after the incident Mario was interviewed by the police. He was confined to a wheelchair. He had no use of his legs or his left arm.

He had to wear a helmet to protect his head and a diaper because he had no control over his bladder or bowels. He had no recollection of the incident. [ 19 ] In September of 2016 Mario was transferred to a long-term care centre. He has made some progress. He can now lift five pounds with his right arm. He is able to use his right leg. He does not have any use of the left side of his body. Using the strength of his right side, Mario is now able to transfer himself from his bed to his wheelchair and is able to move his wheelchair, thus, giving him a somewhat greater measure of independence.

He has, for the most part, regained control of his bladder and bowels. He continues to have difficulty speaking. [ 20 ] It must be acknowledged that Mario’s progress has been good in comparison to what was expected. This is perhaps due in a significant way to his own determination and attitude in confronting his current circumstances and making the best of them. [ 21 ] There is no doubt that he will suffer impairment for the rest of his life and both he and his family will have to make significant adjustments to accommodate his limitations.

This, of course, addresses only the physical harm and does not speak to the emotional and psychological harm, which is unfathomable. [ 22 ] Mario is only 25 years old. III. VICTIM IMPACT STATEMENTS [ 23 ] Much of Mario’s care will be provided by his parents who, instead of being able to rely upon their son to help them as they age, will be providing care to him. [ 24 ] The Court has the benefit of two Victim Impact Statements; one from Mario and one from his mother. [ 25 ] Mario speaks to his physical impairment and also to his reduced expectations for the future.

His life has changed from being a hunter and being able to provide for his family and community to someone who has to be provided for. He previously worked as a driver and helper on the hamlet trucks. He is now unable to work. Any plans he had to return to school will not be fulfilled. [ 26 ] He experiences fear and anxiety. He is concerned about the strain on his family as they will be required to care for him. His future has been taken from him. [ 27 ] His mother speaks about the impact on the family. Understandably, this has put tremendous stress on the family.

There has been and will continue to be financial loss as both parents were unable to work for some time. It is expected that the mother may be required to stay home full time. This is all at a time when money will be required for the care that Mario requires. [ 28 ] The mother speaks about losses of other children and how she feared also losing Mario. She speaks about the anger and the sadness and how it has impacted relationships in the family. [ 29 ] The mother said that when she was south with Mario, he asked her to forgive and forget what Joey had done. That request by Mario is remarkable.

It seems that the mother is more accepting of it, perhaps for Mario’s sake. Quite understandably the father cannot let go of his anger.

IV. POSITIONS OF THE PARTIES [ 30 ] Crown and Defence Counsel have put forward a joint submission of seven years in custody, less credit for the time Joey has spent in custody. V. PERSONAL CIRCUMSTANCES [ 31 ] Joey is 29 years old. He was raised in Iglulik by his parents. He is the youngest of six children. His older brother died by suicide. His father died four years ago from cancer. His mother remarried and she no longer lives in Iglulik but she and Joey are close and they speak regularly. [ 32 ] There is conflicting information regarding the childhood home.

On one hand Joey tells his lawyer that his family home was good. On the other hand, a psychiatric report recently completed indicates that Joey suffered childhood neglect. It may be, as suggested by his Counsel, that Joey was reticent to speak negatively of his family with her. It may also be that, like so many things, it was a mixture of positive and negative experiences. [ 33 ] Joey was sexually abused by an uncle and a friend of the uncle. [ 34 ] He left school at 18, when he was in Grade 10 or 11.

He had decided that he wanted to pursue a career in construction so he attended the pre-trades program at Nunavut Arctic College. He did nine months of the first year of the program but did not complete the year. I am advised that he went back for a second year and obtained the qualifications to be an apprentice carpenter. Since that time he has maintained seasonal employment in the construction industry. [ 35 ] I am advised that Joey is an avid hunter. He has maintained a dog team since a young age and is able to make money from guiding.

He has volunteered as a firefighter and has coached peewee hockey for many years. He seems to be connected and active in his community. [ 36 ] Joey married about five years ago. He and his wife have a four-year-old son. While initially supportive of him following his arrest, his wife has very recently ended the relationship. [ 37 ] Joey has a criminal record which includes seven convictions for offences of violence. Despite his criminal record, he has not served any time in jail. [ 38 ] Joey has been doing very well while in custody. There have been no incidents. He has completed several programs.

Despite being on remand status, he has been permitted to participate in the carving program and the land program. He is on the town crew and is working at the soup kitchen. [ 39 ] There is no dispute that Joey is extremely remorseful for what has happened. He accepted responsibility immediately. He entered an early guilty plea . VI. ANALYSIS A. Principles of Sentencing [ 40 ] The paramount principle of sentencing must be denunciation. The Court must impose a sentence that clearly reflects society’s condemnation of such conduct.

The sentence imposed must also deter similarly-minded individuals, particularly those who are prone to drinking to the point of loss of control. The message must be sent that people are responsible for their conduct, even if they were heavily intoxicated.

[ 41 ] Rehabilitation is also a principle of sentencing that must be given effect. Joey is still young and has the potential for a productive future. B. Range of Sentence [ 42 ] As Counsel have indicated, there is a wide range of sentences for attempted murder. This is because there are many different circumstances that can result in such a conviction. In some cases there will be no injuries to the victim and the victim may even be unaware of the attempt.

In other instances, such as this, the injuries may be severe. [ 43 ] In addition to cases of attempted murder, it is also worthwhile to look at the range of sentences for aggravated assault committed under similar circumstances. [ 44 ] The closest case on the facts is that of R v Kopalie (17 April 2013), Iqaluit 08-11-552-1 (NUCJ). In that case, the accused was drinking with the victim and a few others in the home of the victim. The accused was removed from the home because of his behaviour. He went to his brother’s house and returned to the home of the victim where he and his brother severely beat the victim.

The victim suffered permanent injuries. He is not able to work or care for himself and had to move in with his mother, who took on responsibility for his care. The case was described as one of “near murder”. The offender was sentenced to five years in custody. [ 45 ] The distinction between Kopalie and this case is that of intent. The law requires that a sentence reflect the moral blameworthiness of the offender. In cases of aggravated assault there is not necessarily the intent to cause the injury. There is not the intent to kill.

In a case of attempted murder there is the intent to kill; that intent simply goes unfulfilled.

This factor increases the moral blameworthiness of the offender and must be reflected in the sentence that is imposed. [ 46 ] The aggravating factors in this case are the severity and nature of the assault (including the fact that the most violent part of the assault occurred when the victim was unconscious and highly vulnerable), the nature of the injuries to the victim and the criminal record of Joey. [ 47 ] In mitigation are the lack of premeditation or planning and the remorse of Joey, as shown by the early guilty plea. [ 48 ] Counsel have put before me a joint position on sentence.

They have done so after lengthy discussions and with intimate knowledge of the case. The law is clear that unless a joint submission is such that acceding to it would bring the administration of justice into disrepute, a court should follow the joint submission. [ 49 ] The proposed sentence put forward by Counsel is within the range of appropriate sentences. VII. CONCLUSION [ 50 ] The sentence on the charge of attempted murder is seven years, or 2,555 days. Joey has been in custody since March 12, 2016, a total of 684 days.

He is entitled to enhanced credit at a rate of 1 to 1.5, for pre-trial custody credit of 1,026 days. [ 51 ] There will be a DNA order. That is mandatory. [ 52 ] There will be a 10 year firearms prohibition pursuant to

section 109 of the Criminal Code , RSC, 1985, c C-46. There will be an exemption under

section 113 of the Criminal Code . [ 53 ] The victim of crime surcharge is $200. There will be six months to pay. [ 54 ] There will be a forfeiture order in relation to items seized during the investigation. [ 55 ] The Crown has sought an order sealing the victim’s photos which were filed during these proceedings. While I understand the Crown’s concerns regarding the privacy of the victim, I must balance this against the right of the public to view court proceedings. It is through the right of the public and the press to view court proceedings that courts are held accountable to those they serve. It serves to assist the public in understanding why the court has made the decision that it has.

[ 56 ] I am not going to order the photos sealed but I will issue a non-publication order in relation to the photos at Appendix 3 and 4 of the Agreed Statement of Facts. Dated at the City of Iqaluit this 25 th day of January, 2018 ___________________ Justice S. Cooper Nunavut Court of Justice