R v Mikkigak, 2014 NUCJ 24

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v Mikkigak, 2014 NUCJ 24 Date: 20140826 Court File: 08-13-796-SCA; 08-13-797-SCA Registry: Iqaluit Appellant: Her Majesty the Queen -and- Respondent: Robbie Mikkigak ________________________________________________________________________ Before: The Honourable Justice Andrew Mahar Counsel (Appellant): G. Turner Counsel (Respondent): S.

Charlesworth Location Heard: Iqaluit, Nunavut Date Heard: February 28, 2014 Matters: Criminal Code, ss. 334 (b), 733.1(1) , 145(5.1) REASONS FOR JUDGMENT Application regarding an appeal on the judgment by the Honourable Justice of the Peace Nicole Sikma, dated the 20th day of September, 2013 (Docket: 08-13-333)

Amended Decision: An amended decision was issued on September 2, 2014; the corrections have been made to the text and theamendment is appended to this judgment. [1] The Respondent, Robbie Mikkigak, was the defendant in a

summary prosecution for theft of a pair of sunglasses from the Northmarton April 29, 2013. He was easily apprehended, not only because the theft was captured on film, but because he returned to the Northmartlater the same day wearing the sunglasses, which were recovered. He was also facing another

summary conviction charge of breach ofprobation, arising from his being intoxicated in the Iqaluit Library on May 24, 2013. [2] At his first appearance in the Nunavut Justice of the Peace Court, Mr. Mikkigak pleaded guilty to the theft as well as the breach ofprobation for consuming alcohol. The Crown, relying on Mr. Mikkigak’s extensive criminal record, urged the presiding Justice of thePeace (JP) to impose a period of custody in jail. Counsel for Mr.

Mikkigak suggested that the appropriate penalty would be a fine. [3] The presiding JP imposed a fine of $400, with an additional $75 victim surcharge. [4] The Crown appealed the JP’s decision to this Court, and urged, on appeal, that the appropriate sentence for Mr. Mikkigak for theseoffences should be a period of incarceration. [5] Mr. Mikkigak is an Inuit male who was approximately 27 years old at the time of the offence. He has a criminal record withnumerous convictions for property offences and breaches of Court Orders. Much of his criminal past has been driven both by poverty andhis addiction to alcohol.

Neither the record nor the reasons for it are, unfortunately, unusual amongst Mr. Mikkigak’s peers in Nunavut. [6] To Mr. Mikkigak’s credit, however, he had, prior to the sentencing, found full-time employment at the nascent Mary River iron mine.Credible information was provided to the Justice of the Peace that he “is a reliable and hard worker” and that his prospects for continuedemployment with Mary River are very positive. He had also acknowledged his addiction to alcohol, was trying to change, and indicatedthat he had been sober for at least a month.

He had also lost his mother some six months prior to the charges before the court. It appearsas though Mr. Mikkigak was coming out of a very difficult time into one of productivity and hope. [7] In one sense, my analysis of the appeal before me is a simple one.

The sentence imposed is not manifestly unfit; nor did thesentencing JP overlook or unduly overemphasize any particular objective of sentencing to the detriment of another legitimate sentencingobjective. [8] The rationale behind the Crown’s submission – namely, reliance upon the defendant’s criminal record, and the need for bothindividual and general deterrence, was squarely before the sentencing JP. It is obvious that the JP opted for a rehabilitative sentence overa punitive one. [9] The JP did not articulate with any precision the application of s.718.2(

e) of the Criminal Code of Canada (CCC), as those principleshave been enunciated and expanded upon by the Supreme Court of Canada in R v Gladue, (SCC), [1999] 1 SCR 688[Gladue] and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee]. But this is not unusual, since this sentencing JP, like most ofNunavut’s JPs, lack formal legal qualifications. [10] However, in my view, it is clear that the sentencing JP did, in fact, and as required by law, apply the remedial spirit of s.718.2(e),CCC, Gladue, and Ipeelee to the fact situation before her in imposing sentence.

In my view, a member of the public, with knowledge ofall the facts, could see that the JP in this case has imposed a punishment which fit the crimes. [11] Retail theft is a serious concern. It deprives businesses of their property and profit, and causes immense ancillary administrativecosts. It also forces some retailers to increase prices to compensate. It is because Canadian Courts are acutely aware of this socialphenomena that those who commit retail theft are often sent to jail for committing this type of crime.

First offenders are routinely givena rehabilitative sentence of probation in the hope that they will change their ways, but repeat offenders, particularly where the theft iscalculated and purposeful, will often face a jail term. However, the personal circumstances of individual offenders, as a matter of bothjustice and common sense, need to be taken into account when a Court determines the appropriate penalty. [12] In my view, Mr.

Mikkigak presented to the sentencing JP as a man who has, despite great difficulty, become a productive member ofsociety, but who must still be cautious to avoid alcohol if he is to remain such a person. To incarcerate Mr. Mikkigak for this offencewould be to place far greater emphasis on his criminal record than on his background and efforts at rehabilitation.

Essentially, such asentence would tend to ignore the remedial provisions of s. 718.2(e), CCC, and the principles enunciated in Gladue and Ipeelee. [13] And, so, while I said at the outset that this appeal before me is a simple one, it is also a bit puzzling. The so-called Wells (R vWells, 2000 SCC 10 , [2000] 1 SCR 207) approach does not apply to crimes such as theft of sunglasses; it applies to majorcrimes.

It is an approach inherent in and derived from Gladue and which is unaltered by Ipeelee. [14] This approach – that the sentences imposed for major crimes will likely differ little between aboriginal and non-aboriginal offenders- has been noted, in the Nunavut Court of Justice in cases such as R v Mickey Kootoo, (NU CJ). [15] Clearly, in Mr. Mikkigak’s case, and despite his criminal record, a restorative sentence was available as a workable alternative tojail. A fine of $400 is a wake-up call to Mr.

Mikkigak and a message that if he continues to allow alcohol to rule his life then he will notbe facing just fines alone in the future. The penalty imposed by the JP also offers hope to Mr. Mikkigak by acknowledging the successfulefforts he has made in his struggles with addiction and to find gainful employment. The penalty imposed by the JP is a signal from theCourt which recognizes Mr. Mikkigak’s continuing potential to be a contributing member of society (as well as a valued customer at our

retail stores), if he remains alcohol free. [ 16 ] In my view, the sentence imposed by the JP in Mr. Mikkigak’s case is an example of how the remedial provisions of s. 718.2 (e), CCC should apply. [ 17 ] Accordingly, the Crown appeal against sentence is dismissed. Appeal heard on February 28, 2014 Memorandum filed at Iqaluit, Nunavut This 26th day of August, 2014 ______________________ Justice A. Mahar Nunavut Court of Justice Appearances: G. Turner for the Appellant S. Charlesworth for the Respondent ___________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Mr. Justice Mahar ___________________________________________

This decision was erroneously identified and cited as a Court of Appeal decision; applications for appeal from JP court are heard by NCJ. The citation has been corrected from: 2014 NUCA 03 to: 2014 NUCJ 24 And the decision has been reformatted in the NCJ template. In paragraph [13] the sentence “…an approach inherent in and derived from Gladue…” has been changed from “deprived” to “derived”. Please replace the amended pages in your hard copy of the judgment.