R. v. Qiatsuk, 2012 NUCJ 24

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Qiatsuk, 2012 NUCJ 24 Date: 20121018 Docket: 08-12-141-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Tivi Qiatsuk ________________________________________________________________________ Before: The Honourable Mr. Justice Johnson Counsel (Crown): A. Porteous Counsel (Accused): S. Wheildon, M.

Christie Location Heard: Iqaluit, Nunavut Date Heard: October 18, 2012 Matters: Criminal Code , s. 240.01(1)(a) (x 3), 88(1) (x 2), s. 87(1) (x 2), 266, 264.1(1), 244.2(1)(b) (x 2), s. 85(1) (a) (x 2) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] The accused entered guilty pleas to one charge of assaulting Cst. Jacob McKenzie and Cpl. Yvonne Niego by pointing a weapon at them on March the 1st, 2012. He also pleaded guilty to possession of weapon for a purpose dangerous to the public peace.

[ 2 ] I accepted the guilty pleas based on the following facts admitted by the accused. II. THE FACTS [ 3 ] On the evening of February 29, 2012, the accused and his wife, Caroline Ipeelie-Qiatsuk, went to the Storehouse Bar and Grill for Wing Night. They left behind their three children, aged three to eight, in the care of Caroline’s 19-year-old sister, Lena, who lived with the family in Unit Q3, which is part of the student housing complex behind Nunavut Arctic College. [ 4 ] Lena put the children to bed and eventually went to bed herself.

At about one-thirty in the morning on March the 1st, she woke up to the sounds of an argument between the accused and Caroline, both of whom had consumed some alcohol at the bar and she heard Caroline calling out to her to call the police. [ 5 ] At 1:40 she did so and reported an assault in progress. The accused, aware that she was calling in, seized an unloaded 30.06 semi- automatic Remington rife, equipped with a safety, got the keys to the trigger lock and removed it, went to get ammunition and loaded the gun. [ 6 ] Cst. McKenzie and Cpl.

Niego attended the call in regular uniform, with holstered pistols, believing themselves to be attending a simple family dispute. They parked their truck in front of the next unit over, which they estimated was between ten and fifty meters away from the dark unit, Q3. [ 7 ] They approached Q3 and found the door ajar. They knocked and called out ‘POLICE’, but got no response. Believing an assault to be in progress, they entered the porch, but they knocked on the inside door and called ‘Hello, RCMP’.

Getting no response, they slowly opened that second door, calling ‘POLICE’ again. [ 8 ] The accused, by that time, had developed an intention to use a rifle for a dangerous purpose, and as the officers opened the door they saw him standing down the hall, pointing the rifle at their heads. He told them to get out. [ 9 ] They hit the floor, closed the inner door behind them, fumbled around until they could reopen the outside door and ran for cover behind their police truck in the parking lot. [ 10 ] After getting behind the truck, Cst.

McKenzie, who was towards the rear of the truck, popped his head up over the cab and saw the accused at the door. He yelled ‘RCMP, Drop the gun’, at least once and within the next few seconds he heard the rifle discharge. [ 11 ] He ducked down as it went off and neither he, nor anyone else actually saw it being fired. Cst. McKenzie then looked up and saw that the accused was no longer at the door.

Not knowing whether he had gone inside the residence or had, in fact, come out and was on his way around the truck towards them, the Officers spent a frightening minute or two, checking around the truck 360 degrees and checking around themselves, trying to decide whether it was safe to get into the truck and ultimately they decided to make a run for the side of the building.

They were able to do so without incident and each took up a position of one corner of the far side of the building. [ 12 ] Back-up officers arrived a few minutes later, approaching the scene cautiously because no one knew whether the accused was outside, somewhere waiting for them.

He was, fortunately, not waiting outside for them and that is because, unbeknownst to them, he had returned inside with the gun. [ 13 ] After he came back in, his wife, Caroline, made efforts to muster her three children quickly, but ultimately unable to do so, simply grabbed her three-year-old under one arm, took the gun in the other hand and ran out with the gun into the snow, wearing a t-shirt, but no pants, socks or shoes. The gun still contained three rounds.

[ 14 ] The accused, who Lena reported to be buzzed, came to talk to her and the remaining two children. He gave them six dollars and sent them out of the house, asking Lena to tell everyone “I’m sorry.” The accused then remained inside the residence for the next several hours. [ 15 ] Information provided by Caroline indicated that he had more guns inside the residence and so the officers still considered him a danger. [ 16 ] Cpl. Niego and Cst.

McKenzie remained on the scene during the entire time, sharing one pair of gloves and one hat to try and stave off frostbite in minus 30 degree temperatures. [ 17 ] They were supported by back-up in the emergency response team, who helped them control the scene.

This proved difficult because there were a number of taxis in the area and several intoxicated people, partying in one of the Q units who, understandably, wanted to leave, having heard a gunshot and who had to be contained for their safety and in some cases were not very pleased with that. [ 18 ] The officers managed to establish phone contact with the accused inside of the house at 4:49 in the morning and, over the course of the next half hour, Cst. Joe Baines managed to talk him into surrendering.

He was cooperative and indicated through the conversation that he was amenable to surrendering. [ 19 ] He was clear that he wanted to do it in his own time, wanting time for tea and to eat some cereal and to think about things, and that he would come out when he was ready, which he eventually did do at about 5:20 in the morning and was cooperative following his surrender. [ 20 ] As he was being taken away, the police located a spent casing just outside the front door.

No projectile or bullet hole was ever found and as a result the Crown was unable to prove the direction of the bullet. [ 21 ] Four Morgans and some ammunition were located in the closet and seized, but there was nothing to suggest that they were ever deployed at any point during this incident. [ 22 ] The accused was detained on tertiary grounds and has been in custody since March the 1st, which is a little over seven and a half months to today. [ 23 ] The accused accepted these facts with the following additional facts. [ 24 ] When the police entered the residence the accused told them to get out, at which point they left the residence in a hurry.

They left the door to the outside of the residence open, at which point he went to close the outside door, carrying the rifle with him, and in the porch area, as indicated in the preliminary inquiry, there were shoes strewn about, hockey sticks strewn about and he tripped on a shoe and it discharged the weapon accidentally at that time. He did not in any way shoot at the officers. He did not shoot in their direction and the Crown has not proven that there was any intent to shoot at the police. [ 25 ] He accidentally discharged the weapon.

He thereafter went back into the residence and ceased any involvement with the rifle. It was taken by Caroline. She left the residence. He gave her money and demonstrated his remorse and immediately took some time to contemplate what was going to happen to him. He thereafter in no way was antagonistic towards the RCMP. [ 26 ] In speaking to sentence, the Crown filed victim impact statements from both Cpl. Niego and Cst. McKenzie; with Cpl. Niego being present by video connection, and she read her statement into the record. [ 27 ] Cst.

McKenzie, in his victim impact statement, referred to himself as terrified, but more than that, said that what he can only describe as, open quote, “Well, this is the moment,” in which he thought his life was over.

[28] In the sentencing submissions, the Crown indicated the accused has a criminal record. He was convicted of assaulting Caroline onOctober 3, 2003 and received a suspended sentence. He was convicted of assault and uttering threats on October 20, 2004. He was finedand placed on probation for nine months.

He was convicted of assault on November 28, 2007 and received a five-month conditionalsentence. [29] While acknowledging the applicability of the Gladue and Ipeelie cases to the sentencing of an aboriginal person, the Crown arguedthat these facts were sufficiently serious that a deterrent sentence of 3.5 years in jail, less 7.5 months’ time served should be imposed. [30] The Crown submitted that it is not known how close the bullet went to the officers.

What is known is that the accused wasdrunkenly and angrily handling a firearm in the presence of three children, two adult relatives and two police officers in the studenthousing complex apartment, which has an apartment on either side of it and an apartment above it and another apartment building facingit. That was a recipe for disaster. III. ANALYSIS A. Crown [31] The Crown relied on the following authorities: R. v. Gavrolik, 2010, Ontario Judgments, #274; R. v. Kolola, 2010 NUCJ 4, 2010 NUCJ 04; R. v.

Rueben Sangoya, an oral judgment of Justice Kilpatrick delivered on April 4, 2002 in Pond Inlet; R. v.Titusie Audlakiak, an oral judgment delivered by Justice Foisy on April 14, 2005 in Qikiqtarjuaq. [32] Crown counsel noted that the accused was a former conservation officer and very experienced with firearms. As an experiencedofficer he should have known better than to mix alcohol with firearms. [33] She noted the alarming increase in weapons’ offences against police in Nunavut in the past few years.

She noted the comment ofJustice Mahar, at the most recent bail hearing of the accused, that the police are under siege. At another bail hearing of the accused,Justice Sharkey called the situation the officers faced as being frightening. [34] The fear and drama that the officers faced was readily apparent from the communication tape that was played in court.

Atparagraph 62 of Gavrolik, Kasper, J. of the Ontario Court of Justice repeated the comments of Doherty, J. in R v McArthur, (ON CA), 2004 182 CCC 3d, 230, as follows: As indicated above, the maintenance of a just, peaceful and safe society is the fundamental purpose of sentencing. Police officers play aunique and crucial role in promoting and preserving a just, peaceful and safe society. We rely on the police to put themselves in harmsway to protect the community from the criminal element.

At the same time, we rely on the police to act with restraint the execution oftheir duties and to avoid the use of any force, much less deadly force in what is clearly necessary. Violent attacks upon police officers who are doing their duties are attacks on the rule of law and on the safety and wellbeing of thecommunity as a whole.

Sentences imposed for those attacks must reflect the vulnerability of the police officers, society’s dependence onthe police, and society’s determination to avoid a policing mentality, which invites easy resort to violence in the execution of the policingfunction. [35] He also noted Watt J.’s comment in R. v. Peer: “…that no court would countenance declarations of war on law enforcement officers engaged in their duties. Such egregious conduct willbe punished by the imposition of an exemplary sentence.”

[ 36 ] Similar comments were made by Kilpatrick, J. of this court in R. v. Kolola . He said at paragraphs 16 and 17 that: The peace officer is charged with the responsibility to preserve and protect the peace and to enforce the law on behalf of others in the community. In symbolic terms, attacks upon a peace officer is an assault upon the community for which they serve. It is an assault upon the rule of law. Those who take on the peace officer, those who challenge their authority also challenge the law upon which this authority is based.

Deliberate attacks upon police officers merit a severe response from the law and from the courts that administer this law. Denunciation and deterrence must be the foremost consideration of any court called upon to sentence individuals convicted of such attacks. This is so particularly where harm is caused to the police officer. This is why the law reserves the heavy sanction available under the law for those convicted of murdering a police officer. For many years, peace officers in Nunavut’s small rural detachments have been required to carry out their duties alone or without adequate reinforcements.

This was an operational reality of policing in Nunavut. This is now changing, but the reality is that the peace officer in Nunavut still remains a vulnerable target. The Constable is not made of iron or steel. The peace officer can bruise, bleed and die, just like any other human being. Where duty puts the peace officer in harm’s way there is a corresponding need for the courts to recognize this vulnerability through the sentencing process. [ 37 ] In the Rueben Sangoya case, the sober 19-year-old accused was an experienced hunter.

He borrowed two rifles from his grandmother and said he was going out hunting seals. However, the accused had something else in mind. He found ammunition for the weapons and took up a position overlooking the local police detachment and its staff housing. [ 38 ] At 7:10 in the morning he loaded the firearms and directed multiple shots at the two staff houses.

Many shots were directed at windows and doors and some people narrowly missed being shot. [ 39 ] In imposing a four-year minimum sentence on the offender, who had no adult record, Kilpatrick J. also sentenced the accused to two years for pointing a firearm concurrent to the four year sentence. [ 40 ] In the Audlakiak case, Justice Foisy sentenced the intoxicated accused for firing seven shots from a firearm inside a house to a global sentence of 53 months, less time served, saying that the denunciation was paramount.

The accused had a lengthy record that was mostly non-violent offences. [ 41 ] The Crown argues that, as in Audlakiak, denunciation and deterrence must be paramount. This does not mean that Mr. Qiatsuk is beyond rehabilitation. The Crown urged the Court to take into account the fact that programming offered at federal penitentiaries, particularly at Fenbrook Institution, would likely be of huge benefit to Mr.

Qiatsuk and by extension, to his family and to those who come into contact with him in the future. [ 42 ] In the Crown’s submission that factor, as well as the need to decisively denounce and deter his behavior, mitigates in favour of a sentence that, after taking into account his pre-sentence custody, will be served in a penitentiary system. B. Defense [ 43 ] The Defence submitted that, although the accused entered a guilty plea after the end of a preliminary inquiry, the facts upon which the sentencing is proceeding are markedly different than the counts which the accused was facing in the indictment.

His plea of guilt ought to be worth something in terms of a mitigating factor in these circumstances. [ 44 ] Defence counsel characterized the actions of the accused as a gross error in judgment. The essential facts from the Defence

perspective are the aggravating factor of pointing of a loaded firearm.

However, the discharge of the firearm was an accident and, although it shows a gross error of misjudgment, it is distinguishable from the cases relied upon by the Crown that involved the intentional discharge of a firearm at the police and others. [ 45 ] While the Defence concedes that the officers in this case had a reasonable belief that they were being shot at, that did not happen. [ 46 ] The Defence acknowledges the fear the officers felt, but the accused did not shoot at them, he did not even intend to shoot the rifle - he was going to commit suicide. [ 47 ] The accused understands that he is lucky to have this second chance and that no one was hurt.

He has, however, lost his family and lost his job. Nevertheless he has hope for the future. [ 48 ] The accused is a 32-year-old citizen with a criminal record. While there are some assaults on his criminal record, the last one was in 2007 and there are no firearms offences. [ 49 ] He was born in Cape Dorset, he was raised there and moved to Iqaluit when he was 15 years old.

He graduated from high school, worked as a judicial officer, as a clerk of the court, and went to the Nunavut Arctic College, Environmental Tech program in 2003 and 2004, and graduated from that program. [ 50 ] He thereafter worked in the Iqaluit Housing Corporation when he was in college. He was reassigned to the staffing human resources program. However, in 2005 he was able to fulfill a dream and become a conservation officer in Cape Dorset.

He moved his family to Cape Dorset and continued to live there while he carried out his duties. [ 51 ] He investigated and charged people under the Fisheries Act, the Wildlife Act and other federal acts, and from time to time had to arrest individuals. [ 52 ] The accused understands that what happened on this particular occasion is highly aggravating and he feels and demonstrates manifest remorse for what occurred on this occasion. [ 53 ] His wife wanted to move to Iqaluit so she could attend Nunavut Arctic College for the teachers’ program in 2011.

He agreed to leave his job and to relocate to Iqaluit because he believed he owed it to his wife for supporting him in college. He moved to Iqaluit and became a floater as a conservation officer. [ 54 ] However, his wife asked him to resign from that position and thereafter he worked with the housing authority. While he worked for the housing authority his income was cut in half. They were accustomed to a particular life style and the financial stress became quite significant. [ 55 ] He grew up with parents in Cape Dorset, a community that has suffered greatly from the presence of the sexual predator, Ed Horne.

The accused recalls having to learn how to fight off sexual predators at an early age. He saw violence and alcohol throughout the community and he saw his mother being beat up on occasion. [ 56 ] He had a hard upbringing. His uncle committed suicide two years ago. He was very close to his uncle. He was forty years old and he could not handle that his daughter may have been murdered and was an unsolved crime in northern Quebec. His uncle’s daughter is Mr. Qiatsuk’s cousin and it caused significant stress for Mr. Qiatusk as well. [ 57 ] His grandfather recently passed away.

The accused expressed to Defence counsel a great level of remorse towards his grandfather for what occurred on that particular evening because his grandfather taught him how to hunt from an early age and about firearm safety. He was also someone he could open up to and share with him and he lost that when his grandfather passed.

[ 58 ] He feels strongly as though he has disgraced his family and his family heritage by engaging in the act on that particular evening and it has caused him some great consternation. [ 59 ] The accused turned to alcohol since the recent death of his uncle and his father has a heavy drinking problem, which became heavier here in Iqaluit. [ 60 ] Despite his struggles, it is evident from his employment history that the accused has been a very contributing member of his community. He has also been a very active volunteer.

He’s coached hockey for five years in Cape Dorset, from novice to adults, the Mighty Mights, the Midgets, and he has taught basic skills with regard to hockey. [ 61 ] He has been on the Co-op board of directors for Cape Dorset and he was in charge of the portfolio of the credit committee. He was also on the Hamlet Council of Cape Dorset and ran the recreation portfolio.

He hunted for widows, disabled persons and elders and provided for these citizens in Cape Dorset. [ 62 ] Hunting is an essential component of his identity and he spent many months on the land and spent time in an outpost camp. [ 63 ] After serving the sentence imposed by this Court, the accused’s plan is to work tirelessly to repair his character and to repair his relationship with his sons However, he will not be seeking to repair the relationship with Caroline. He will be going back to school. He wants to take business administration.

He hopes to thereafter do heavy equipment operating in Morrisburg or in the school in Rankin Inlet.

He also hopes to assist in the development of some form of mine for soap stone and to carry on the business in and around the Kingait area. [ 64 ] He appreciates that there is a weapons’ prohibition that the Court must impose, however, he asked this Court to exercise leniency and not rob him of his ability to hunt on the land and the therapeutic elements that provides him and asks for a sustenance exemption. [ 65 ] He also asks for leniency on the length of the prohibition and asks that the Court not go beyond the 10-year minimum prohibition. [ 66 ] Defence counsel indicates that the accused appreciates that he could face a lifetime weapons prohibition.

However, it was submitted that to do so would take away an essential component of his identity and would not assist in his rehabilitation. [ 67 ] The accused wants to become a father again and understands that he has been given a second chance. He intends to make the most of it. He appreciates that he is lucky that he did not pull the trigger on himself that night and that no one was hurt as a result of the accidental discharge. [ 68 ] Defence counsel suggests that the plea of guilt is a mitigating factor in the circumstances because it is a demonstration of remorse.

He asks the Court take into consideration the principles of s. 718.2 (

b) of the Criminal Code , as indicated in Gladue and Ipeelie. [ 69 ] Defence counsel argues that a sentence of 2.5 years’ custody, less time served of 11.5 months would be an appropriate sentence. That would leave him with roughly 18 months to serve at the Baffin Correctional Center in these circumstances. [ 70 ] In distinguishing the cases relied on by the Crown, Defence counsel noted that in R. v. Green, 2006 OJ, #3118, the Ontario Court of Justice imposed a 23 month conditional sentence on an aboriginal person who pointed a loaded 30/30 at his partner while intoxicated.

He attempted to pull the trigger, but was prevented from doing so by the trigger guard. Although a conditional sentence cannot be imposed in these circumstances, it indicates that the courts can impose a rehabilitative sentence in these types of sentencings. [ 71 ] It also serves to distinguish the cases relied on by the Crown where there were multiple discharges of firearm or discharges in the context of an intention to wound, maim or disfigure. The two year sentence in Sangoya for pointing a firearm was imposed in these

aggravating circumstances. [ 72 ] Defence counsel emphasized that the accused was not to be sentenced for the fact that Nunavut finds itself tragically on the high end for every type of offence in the Criminal Code . Nunavut far exceeds any other jurisdiction in this country for criminal rates. [ 73 ] The spousal abuse rate, violent crime, drug use crime and firearm use is in Canada the highest. [ 74 ] It is not something that the accused should be sentenced on in these circumstances.

He should be sentenced based on the facts of this particular case and the circumstances surrounding the offence, not the political dynamics which is at play in the sentencing. [ 75 ] The facts in this case, once again, are a reminder to the residents of Nunavut of the dangers involved in mixing alcohol and firearms. There has been an epidemic of these types of incidents in the past few years, as noted by Justices Mahar and Sharkey recently.

They must be denounced in the strongest of terms by imposing deterrent sentences to get the message out that this type of conduct will not be tolerated. [ 76 ] I adopt and approve the words of Kilpatrick, J. that I just read from Kolola. I fully recognize the terror that must have ran through both Cst. McKenzie and Cpl. Niego as they faced the rifle in the hands of the accused. They are to be commended for their bravery and professionalism in handling a potentially dangerous situation. [ 77 ] I was very moved by Cpl. Niego’s witness impact statement.

It was read into the record of these proceedings and I hope all organizations and individuals who are trying to educate Inuit on the dangers of mixing alcohol and firearms will obtain a copy of it and use it in the future to hopefully prevent this type of situation from happening. [ 78 ] As the cases relied on by the Crown demonstrate, this Court will impose deterrent sentences where there has been an intentional discharge of a firearm that endangers the public. [ 79 ] However, this case can be distinguished from those cases where a firearm was deliberately discharged at police officers and other people.

The accused is being sentenced for assaulting two peace officers, by pointing a loaded rifle at them. He is also being sentenced for possessing a rifle for a purpose dangerous to the public. [ 80 ] The facts before me are that the rifle accidentally discharged. That puts this sentencing in an entirely different category. [ 81 ] The accused was visibly remorseful in court as he read a very extensive apology to all of the people he hurt. He has lost his family and his job, as well as his dignity.

He knows he made a grave error of judgment and he has paid a big price for it. [ 82 ] He has to be punished for what he did and others have to see the consequences for mixing firearms and alcohol. However, I believe he has good potential for rehabilitation. He has taken the Alternatives to Violence program at Baffin Correctional Center during his pretrial custody and he has started attending AA meetings and has a plan for his future. [ 83 ] His past employment and volunteer work show he is a good man who is interested in his community and his family.

He is yet another Inuk who did something terrible while intoxicated and must now rebuild his life. IV. CONCLUSION [ 84 ] Would you stand up, please? Mr. Qiatsuk, I impose a sentence of two years for assaulting the peace officers by pointing the weapon. I impose a sentence of 11.5 months consecutive for possessing the firearm for a purpose dangerous to the public.

[ 85 ] The accused will receive credit for 11.5 months in custody, leaving him to serve a sentence of two years in a penitentiary. [ 86 ] I grant the DNA order requested by the Crown. The Crown also requests a lifetime weapons prohibition and that the firearm that was used must be forfeited under s. 491(1)(b). As a result of the prohibition order, the remaining firearms and ammunition that were seized must also be forfeited under s. 115(1)(

b) unless I specify otherwise. [ 87 ] I am satisfied that a ten year weapons prohibition is appropriate in the circumstances of this case and I grant the accused an exemption under s. 113 for use of a weapon for hunting purposes outside the boundaries of any community. [ 88 ] I also order that the firearm used in the offence be forfeited. The other weapons seized can be released to or stored by an independent third party and also used only for hunting purposes outside of a community. Dated at the City of Iqaluit this 18th day of October, 2012 ___________________ Justice E.

Johnson Nunavut Court of Justice Ancillary Information from the Court Transcript Is there anything that I missed, counsel? THE CROWN: I am not going to suggest anything you missed, Your Honour, but just to clarify so that Mr. Qiatsuk understands that the 113 exemption doesn’t mean he’s immediately free to go hunting. I think it is worth mentioning on the record that I believe how a 113 works is that Your Honour is essentially authorizing the Chief Firearms Officer to issue … THE COURT: Yes, it is a recommendation, yes. THE CROWN: Yes. THE COURT: The s. 113.

THE CROWN: And so I understand then that you are directing or authorizing the firearms’ officer to allow Mr. Qiatsuk to use a rifle for hunting purposes as long as it is outside, but only to possess that rifle outside the boundaries of a community; is that right? THE COURT: Correct. THE CROWN: Okay. And it will be subject to any other limitations that the firearm’s officer puts on it. THE COURT: (Nods head). THE CROWN: Okay, thank you.