R. v. Kunnuk, 2020 NUCJ 19

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kunnuk, 2020 NUCJ 19 Date: 2020 0522 Docket: 07-18-025 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jason Kunnuk ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): P. Plourde Counsel (Accused): S. White Location Heard: Iqaluit, Nunavut Date Heard: September 13, 2019 Matters: Appeal from absolute discharge for offence under Criminal Code of Canada, RSC 1985, c C-46, s. 86(1) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The Crown appeals the absolute discharge granted to Mr. Kunnuk following a finding of guilt on a charge of careless storage of a firearm pursuant to s. 86(1) of the Criminal Code . [ 2 ] Section 730(3) of the Criminal Code provides that the Crown may appeal the granting of a discharge as if it were an acquittal or dismissal of the charge. II. FACTS [ 3 ] The findings of the trial court were that the accused and his spouse were drinking and the spouse of the accused became angry at him because she thought he had hidden a bottle from her.

She called him names and obtained a knife from the kitchen. She tried to cut the accused on the throat resulting in a superficial scratch. She was then on top of him and lashed at his stomach, cutting his skin. The altercation between the two continued, with both parties receiving injuries. There was little evidence regarding the altercation as counsel sought to restrict the evidence to the facts relating to the storage of the firearm. [ 4 ] At some point the spouse got the children from the bedroom, got them dressed, and left the house to take them to her grandmother’s.

As she was leaving the house with the children the accused said he was going to kill himself. [ 5 ] When the spouse got to her grandmother’s she called the RCMP and told them what the accused had said about wanting to kill himself. [ 6 ] The spouse then went back to the house. As she was entering the home she saw a .22 rifle on the floor of the porch. The accused was passed out on the couch in the living room. The spouse left the rifle on the floor and went looking for alcohol. [ 7 ] The RCMP arrived. They saw the rifle on the floor of the porch upon entering the home.

It was described as being located such that a person had to step over it to get in to the house. The rifle had a round in it. [ 8 ] The rifle was normally stored in the crawl space of the house, hidden under some clothes. There was no suggestion that it normally had a trigger lock or other safety device. Certainly no such device was found by the police. The ammunition was normally stored in a kitchen cupboard. [ 9 ] The accused has a prior criminal record consisting of two drug related convictions.

His second drug related conviction in 2009 was an offence of possession for the purposes of trafficking, which attracts a mandatory firearms prohibition of at least 10 years. This is not to say that firearms were necessarily involved in the drug offence; a firearms prohibition is mandatory for that particular offence regardless. [ 10 ] The concerning aspects of the criminal record are convictions in 2011 for careless use of a firearm and possession of a firearm while prohibited. III. POSITIONS OF THE PARTIES ON SENTENCE

[11] On sentence the Crown sought a three month conditional sentence order, followed by six to nine months of probation. She alsosought a five year firearms prohibition order and indicated that the Crown would not oppose a s. 113 exemption. An exemption under s.113 (1)(

a) of the Criminal Code would permit the Chief Firearms Officer to issue a firearms permit to the offender for the purposes ofsustenance hunting and subject to terms and conditions required to ensure public safety. [12] The Defence sought a conditional discharge. IV.

GROUNDS OF APPEAL [13] The Crown sets out the following grounds of appeal: • an error in principle by failing to give sufficient weight to the principles of denunciation and deterrence; • an error by failing to consider relevant aggravating factors; • an error in principle by failing to consider the required legal principles in imposing an absolute discharge; • an error in failing to provide adequate reasons for his decision; and • the sentence is demonstrably unfit. V. STANDARD OF REVIEW [14] Sentencing decisions are entitled to considerable deference. As stated by the Supreme Court of Canada (quoting R. v.

Gourgon, (BC CA), 58 CCC (2d) 193) in R. v. M (C.A.), (SCC), [1996] 1 SCR 500 at para 90: …absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal shouldonly intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. [15] This standard of review was further clarified in R. v.

Lacasse, 2015 SCC 64 at para 11: …except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate courtmay not vary the sentence unless it is demonstrably unfit. [16] The fact that a sentence is outside of the usual sentencing range for similar offences does not necessarily mean that an appeal courtwill intervene. There may be individual cases where a sentence outside of the range is appropriate or, at least, not demonstrably unfit. VI.

ANALYSIS [17] I will begin by considering the adequacy of the reasons provided by the sentencing judge, as it is only if the reasons are adequatethat the other grounds of appeal can be analyzed. [18] Pursuant to s. 726.2 of the Criminal Code, a court is required to provide reasons for the sentence it imposes on an offender. [19] A trial judge provides reasons for three purposes:

• to explain the decision to the parties; • to provide public accountability; and • to permit for effective appellate review ( R. v. R.E.M. , 2008 SCC 51 ). [ 20 ] A reviewing court must proceed with deference and must consider the record as a whole. The reasons provided must be adequate, in the sense of providing a pathway of the reasoning process however, not every step in the reasoning process must be articulated. In assessing the adequacy of the reasons I remind myself that the entire record of the proceedings must be considered.

This is particularly so in instances such as this where the trial was short and proceeded immediately to sentencing, as it may be implicit in the record as a whole that the trial court accepted certain submissions of counsel or took a particular position on an issue. [ 21 ] In this matter the sentencing court focused entirely on the circumstances under which the offence was committed, that being suicidal ideation, and that the offender had undergone counselling.

While the sentencing court made reference to the prior, related criminal record of the offender and acknowledged that suicide attempts can create situations that quickly escalate out of control and threaten the safety of many people, the court did not address these concerns in the context of the sentencing principles set out in s. 718 of the Criminal Code . It is not possible from reviewing the reasons to determine what consideration, if any, was given to the sentencing principles of deterrence and denunciation. [ 22 ]

Section 730 of the Criminal Code provides that the court may grant a discharge if it is in the best interests of the offender and not contrary to the public interest. The court was required to consider those two criteria. The sentencing court, at the end of the decision, simply stated in a conclusory manner that a discharge was both in the best interests of the offender and not contrary to the public interest.

There is nothing in the reasons that indicates how the sentencing court came to these conclusions. [ 23 ] I find that the sentencing reasons are inadequate as they do not provide sufficient information for a reviewing court to understand the reasoning process that led to the conclusions and the ultimate sentence imposed. [ 24 ] Having concluded that the reasons for sentence are insufficient it is incumbent on this court to determine an appropriate sentence. VII. ANALYSIS ON SENTENCE [ 25 ]

Section 718 of the Criminal Code sets out the following principles of sentencing that a court must consider: • denunciation; • general and specific deterrence; • separation of offenders from society, when necessary; • rehabilitation of offenders; • reparations to victims of crime; and • promotion of a sense of responsibility in offenders and acknowledgment of harm done. [ 26 ] In the circumstances of this case, the sentencing principles of denunciation, general and specific deterrence, and rehabilitation were particularly relevant sentencing principles to be addressed.

When considering whether or not to grant a discharge, these sentencing provisions must be considered in the context of the two criteria for granting a discharge set out in s. 730 of the Criminal Code . A. Was a discharge in the best interests of the offender? [ 27 ] There are circumstances where the granting of a discharge, and in particular an absolute discharge, is not in the best interests of the

offender. Such cases would be those where the offender would benefit from accessing resources and treatment which can only be accessed through the imposition of a jail term or a probation order.

Given the acceptance of the sentencing court that the offender had completed counselling and was no longer in need of counselling or training on the safe handling of firearms (see Transcript, page 56, lines 2-5; page 62, lines 1-11) it cannot be said that this case fell into such a category. [ 28 ] Often, there are specific circumstances of an offender, such as educational, employment, or travel opportunities, that would be negatively impacted by a criminal conviction. The offender in this case did not have any such specific circumstances.

The negative impact of a conviction being entered for the offence was no greater or different than that felt by all offenders. [ 29 ] Nonetheless, the fact of a criminal conviction always carries with it some stigma. While it might be argued that this stigma was not as significant for this offender as he already has a criminal record, the number and recentness of criminal convictions, combined with the seriousness of the convictions, generally increases the social stigma. For this reason alone it was in the best interests of this offender to not have a conviction entered for the offence. B.

Was a discharge not contrary to the public interest? [ 30 ] The Alberta Court of Appeal in R. v. Chowdhury , 2019 ABCA 205 , citing R. v. MacFarlane , 1976 ALTASCAD 6 , set out the factors to be considered when considering the granting of a discharge.

Those factors are: • nature of the offence • prevalence of the particular offence in the community; • whether the offender stood to gain personally from the offence; • if a property offence, the value of the property; • whether the offence was impulsive or calculated and thought out; and • whether the offence should be a matter of record. [ 31 ] Firearms are ubiquitous in Nunavut. Most households have more than one firearm. They are a necessary tool to carry out a proud hunting tradition. It is for these same reasons that they must be handled and stored properly at all times.

Improper handling or storage of firearms places people at risk and must be denounced by the court. Unfortunately, firearms are too often picked up and used improperly; most often when someone is drunk and distraught. Many of those incidents end without injury; some end tragically. In many of the cases, as in this case, the offender has little or no recollection of the incident. It is for this reason that firearm owners must turn their minds to proper storage at all times and make it a matter of habit.

The more layers and steps that a person has to go through to access their properly stored firearms and ammunition, the less likely it is that the firearm will be taken up in a drunken state. [ 32 ] Firearm owners must know that instances of improper handling and storage of a firearm will be treated seriously by the court. They must know that the misuse of firearms carries with it not only the risk of a criminal record, but also the potential of forfeiture of the firearm itself and, perhaps most importantly, loss of the privilege to own and possess a firearm.

It is this knowledge of the potential for serious consequences, including the loss of the ability to hunt and provide for family, that will hopefully deter firearm owners from handling and storing firearms without the utmost care and diligence. [ 33 ] The offender in this matter had a prior conviction from 2011 for careless use of a firearm and for possessing a firearm while prohibited. While there was a gap of approximately seven years between that conviction and this matter, the fact remains that the prior conviction showed a cavalier attitude towards firearms.

This is particularly so when considered in conjunction with evidence at the trial in this matter that the firearm in question was normally stored under some clothes, in a crawl space (see Transcript, page 16, lines 20-25). This suggests not just a momentary lapse of judgment in the handling of the firearm but a lax attitude in general. [ 34 ] There are various employment opportunities in Nunavut that involve handling a firearm, such as a bear monitor at a remote camp or an on the land instructor at a school.

It would be important for such an employer to know that someone has a record of improper handling of a firearm.

[ 35 ] At the sentencing, the argument was made that the entry of a conviction would dissuade people from calling the RCMP for help when they are feeling suicidal for fear of a criminal record. I have considered this submission. People who find themselves caught up in situations such as the one in this case are rarely thinking rationally.

Further, in many such cases, as in this case, it is not the offender who contacts the police but rather a family member or an independent observer. [ 36 ] I conclude that it would be contrary to the public interest to grant a discharge in the circumstances of this case and this offender. [ 37 ] In my view the appropriate sentence is a suspended sentence and a period of probation. However, significant time has passed since this matter was in court. It would be unfair, given the passage of time, to now place the offender on probation.

The evidence at the sentencing hearing was that the offender had overcome some difficult circumstances and was doing well. A stay of sentence is sometimes granted in successful Crown appeals where it is determined that the interests of justice would not be served by having the offender serve the sentence ( R. v. Burnett , 2017 MBCA 122 ; R. v. Anderson , 2017 MBCA 31 ). [ 38 ] In my view this is an appropriate case for such a stay. VIII. FIREARMS PROHIBITION [ 39 ] The offender in this matter was liable to a discretionary firearms prohibition of up to 10 years pursuant to s. 110(1) (

b) of the Criminal Code .

Section 110 provides that even if a discharge is granted, the sentencing court shall consider whether a firearms prohibition should be imposed. The sentencing court did not turn its mind to the appropriateness of a firearms prohibition. [ 40 ] The sentencing court determined that the offender “…probably knows how to handle a gun properly” (Transcript, page 55, lines 19-20). If that is the case, such proficiency is aggravating, as it portrays the offender as a person with insight about the danger firearms present and the knowledge, but not the willingness, to mitigate that danger.

Further, the prior related conviction and the firearms prohibition associated with it are particularly relevant on whether or not a firearms probation was called for in relation to this matter. [ 41 ] A firearms prohibition ought to have been imposed given the prior related convictions and the circumstances of the offence before the court. While it may have been appropriate for the sentencing court to have considered firearms restrictions in the context of a probation order, that option is no longer available given the stay of the probation order.

Again, recognizing the passage of time, I will order a firearms prohibition for a period of three years. Given the position taken by the Crown at the sentencing hearing, there will be a s. 113 exemption. IX. CONCLUSION [ 42 ] The Crown appeal is granted. The absolute discharge is set aside. A conviction is entered. The sentence is a suspended sentence and nine months’ probation. The probation order is stayed. There will be a firearms prohibition pursuant to

section 110 of the Criminal Code for a period of three years. There will be a s. 113 exemption. Dated at the City of Iqaluit this 22nd day of May, 2020 ___________________

Justice S. Cooper Nunavut Court of Justice