R. v. Uniuqsaraq, 2015 NUCJ 16

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v.

Uniuqsaraq, 2015 NUCJ 16 Date: 20150720 Docket: 08-14-410-1; 08-14-560; 08-14-604 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Guy Uniuqsaraq ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): Caroline Lirette Counsel (Accused): Patrick Bruce Location Heard: Iqaluit, Nunavut Date Heard: May 26, 2015; June 18, 2015 Matters: Criminal Code, s. 266 ; s. 268 ; Controlled Drugs and Substances Act, SC 1996, c 19, s. 4(1) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Mr. Uniuqsaraq is before the court for sentencing on charges of aggravated assault, assault, and possession of cannabis. II. FACTS [ 2 ] On August 4, 2014, Mr. Uniuqsaraq had been drinking heavily. He found himself in the presence of the victim, who had once been romantically involved with Mr. Uniuqsaraq's girlfriend. Mr. Uniuqsaraq made clear his intention to beat up the victim, who tried to get away. Mr. Uniuqsaraq attacked the victim and beat him up very badly. The victim recalls nothing of the assault after the first blow. His next memory is of waking up in hospital in Ottawa.

He had been medivaced to Ottawa because of life threatening bleeding in the brain. His injuries included facial bone fractures, including a broken nose, and lacerations on the face which required stitches. [ 3 ] The bleeding in the brain was monitored and resolved itself without the necessity of surgery. Fortunately, the victim does not have any permanent injuries. [ 4 ] As a result of this incident, Mr. Uniuqsaraq has been convicted of aggravated assault. At the time of this incident Mr.

Uniuqsaraq was on a probation order and a conditional sentence order, both arising from convictions for offences of violence. [ 5 ] As a result of being charged with the August 4, 2014, aggravated assault, Mr. Uniuqsaraq was on remand at the Baffin Correctional Centre [BCC]. On October 31, 2014, staff were attempting to move him to a secure area and were having difficulties doing so. Mr. Uniuqsaraq said that he would hit anyone who tried to move him. He was forced to the ground, placed in leg irons and hand cuffs, and put back on his feet, at which point he head butted a guard.

As a result of the head butt, the guard suffered a chipped tooth and a cut lip. Mr. Uniuqsaraq has been found guilty of assault in relation to this incident. [ 6 ] On November 27, 2014, Mr. Uniuqsaraq was being brought to court from the Baffin Correctional Centre. As he was walking towards the courthouse door he picked something up from the ground and put it in his jacket. Amongst the items picked up were 7.8 grams of marijuana and a lighter, resulting in a conviction for simple possession. III.

POSITIONS ON SENTENCE [ 7 ] The Crown seeks a global sentence of 40 months, consisting of 32 months on the aggravated assault, six months on the assault, and two months on the simple possession. They ask that the sentence be reduced having regard to credit for pre-trial custody on a 1:1 basis. [ 8 ] The Defence seeks a global sentence in the range of 18 to 24 months. IV. PERSONAL CIRCUMSTANCES [ 9 ] Mr. Uniuqsaraq is 28 years old. He had a difficult upbringing.

Although he has not been diagnosed as having Fetal Alcohol Spectrum Disorder, his mother has admitted to drinking while she was pregnant with him and he feels that he has been impacted by this. [ 10 ] He was adopted to his paternal grandparents, however, it became clear early on that the man who was identified as his father was not in fact his biological father and this caused issues in the home. Mr. Uniuqsaraq suffered physical and sexual abuse at the hands of the

other children in the home. When he was 13 he was apprehended and placed in foster care. [11] It was at this time that Mr. Uniuqsaraq began to encounter difficulties. He has issues with impulsivity. I am advised that he wasbullied at school. He was encouraged by his foster father to stand up to the bullies, which he did and which addressed the issues over theshort term, but which may have contributed to his tendency to resort to violence. [12] Mr. Uniuqsaraq struggles with substance abuse. [13] Mr. Uniuqsaraq has only a grade nine education as he left school early to go live at an outpost camp.

He has spent extended periodsin an outpost camp and is a skilled hunter. He also carves, draws, and works with wood. As an adult he has experienced extended periodsof homelessness. IV. ANALYSIS [14] The sentencing principles which I must consider are set out in s. 718 of the Criminal Code of Canada, RSC 1985, c C-46 [CriminalCode].

They are: • to denounce unlawful conduct • to deter the offender and others from similar behaviour • if necessary, to separate the offender from society • to rehabilitate the offender • to provide reparations to victims of crime • to promote a sense of responsibility in an offender [15] Counsel have provided case law from the Northwest Territories which suggests that the appropriate range of sentence is 2 1/5 to 5years.

A review of the NWT cases suggests that this proposition is based on the case of R v Morgan, 2007 NWTSC 30, 74 WCB (2d)836, wherein the court, after reviewing a number of cases from that jurisdiction, commented that the general range was 30 months to fiveyears.

The court also recognized that the facts that support a conviction for aggravated assault and the types of offenders who comebefore the court to be sentenced for aggravated assault vary greatly. [16] In the recent case of R v Akalukjuak, 2015 NUCJ 18, 2015 NUCJ 18 [Akalukjuak], this court reviewed some of the casesfrom this jurisdiction where sentences were imposed for aggravated assault. The cases reviewed ranged from a conditional sentence to 39months.

There is also the case of R v Kopalie, NUCJ Case File #08-11-522-1 [Kopalie], a case described by the presiding judge as “amurder without a dead body” where the offender was sentenced to five years in custody. [17] I make these comments simply to highlight that sentencing is a highly individualized process. As stated in Akalukjuak, parityrequires consistency in analysis and approach, but does not necessarily require that all persons convicted of the same offence receive thesame sentence. A. Aggravating and mitigating factors [18] There are some aggravating factors that I must consider. First, Mr.

Uniuqsaraq was on both a conditional sentence and probation atthe time of the aggravated assault. Secondly, the aggravated assault was extended and violent and resulted in serious injuries to thevictim. Further, Mr. Uniuqsaraq's criminal record and his disciplinary record while at the Baffin Correctional Centre are aggravating.The criminal record consists of 13 prior offences of violence as well as five convictions for uttering threats. Finally, two of the offencescurrently before the court occurred while Mr. Uniuqsaraq was on remand on the earlier offence of aggravated assault.

[19] There are also mitigating factors which must be considered. First, there has been a guilty plea. It was not a guilty plea at the earliestopportunity as there was a preliminary hearing, but nonetheless it is an indication of remorse and an acceptance of responsibility. Thereare as well factors from R v Gladue, (SCC), [1999] 1 SCR 688, [1999] SCJ No 19, and R v Ipeelee, 2012 SCC 13,[2012] 1 SCR 433, including both the systemic factors such as recent colonialization and the intergenerational impact of residentialschools, which this court recognizes regularly, and factors particular to Mr.

Uniuqsaraq, which have already been discussed. [20] The serious nature and duration of the aggravated assault has been noted. It is also important to note that the victim in this case didnot suffer permanent injuries. This makes this case distinguishable from that of Kopalie, where the victim suffered permanent cognitiveimpairment which has left him childlike and in the care of his family for the remainder of his life. B. Pre-trial custody credit [21] There are issues in this case about the credit that ought to be given for Mr.

Uniuqsaraq's pre-trial custody. [22] The first issue is whether consideration should be given to enhanced credit for the full time he has spent on remand or for just thetime between his initial remand and the date of the first offence committed while on remand. The date of the aggravated assault wasAugust 4, 2014. The date of the subsequent offence, committed while in custody, was October 31, 2014. I am of the view that the periodof time from August 4 to October 31, 2014, should be treated differently than the remand time after October 31, 2014.

In my view, this isnecessary to ensure that similar treatment is accorded to similarly situated offenders. By way of illustration, one can envision twooffenders charged with the same offence, one of whom is granted bail and the other who is either denied bail or consents to remand.While awaiting disposition they each commit a further offence. The offender who has been granted bail would not be eligible forconsideration for enhanced credit for any time in remand after the second offence pursuant to s. 719(3.1) of the Criminal Code.

I amunable to think of a principled reason why the offender who reoffended while in remand should be treated differently and, indeed,preferentially. [23] A further issue regarding credit for remand arises from Mr. Uniuqsaraq's discipline history while on remand. Crown counsel hasfiled a discipline report from the Baffin Correctional Centre which lists 17 incidents. A review of the document discloses that two of theentries relate to the October 31 charges for which he is to be sentenced. The Crown submits that the disciplinary record demonstrates thatMr.

Uniuqsaraq would not be considered a good candidate for early release and, accordingly, he should not receive enhanced credit forhis remand time. [24] In R v Nelson, 2014 ONCA 853, 118 WCB (2d) 326, the Ontario Court of Appeal found that the Crown had not displaced theinference of eligibility for early release by establishing the offender had three discipline incidents over 19 months in pre-trial custody.Further, the court recognized, as set out in Summers, that if the disciplinary incidents are considered an aggravating factor on sentencethey cannot be “double counted” to deny eligibility for enhanced credit. [25] In my view, there is a further issue in this case and that is the conditions under which the offender served much of his remand time.

Mr. Uniuqsaraq has been in remand since August 4, 2014, a period of just over ten months. All of this time has been served at the BaffinCorrectional Centre, except for a period of three months when he was at an institution at Surrey, British Columbia. [26] It is well known that many inmates from BCC had to be transferred to British Columbia because the conditions at BCC hadbecome intolerable. The Office of the Federal Correctional Investigator released a report in April of 2013 which found that theconditions were deplorable and some aspects of the institution constituted human rights violations.

This report was followed by theMarch, 2015 report of the Auditor General of Canada on Corrections in Nunavut .

I do not intend to discuss these reports in detail.Suffice to say that the findings highlight not only the inadequacies of the physical structure of BCC, in particular the extremeovercrowding and lack of sufficient facilities for personal hygiene, but also the lack of programming, resources, and planning to facilitatean offender's successful reintegration to the community upon release. [27] The fact is, most of those who find themselves at BCC are without the necessary coping mechanisms to deal with the stress anddifficulties of everyday life.

Many have cognitive impairment, mental health, and substance abuse issues. They have difficultycontrolling impulses. Simply getting through the day without incident can be a struggle for them. It is not realistic to take this segment ofthe citizenry, put them in a confined and crowded living situation, without any supports to assist them with their issues, and expect them

to function without incident. [ 28 ] Mr. Uniuqsaraq spoke to this better than I can. He spoke eloquently about his time at BCC and his time in British Columbia. He spoke about how having a cell to himself calmed him down and allowed him to think. He sought out counselling with the prison Chaplain and established a supportive relationship with him. He completed two levels of programming on how to establish healthy relationships.

Perhaps the impact of this change in his remand conditions is best illustrated by his disciplinary record, which showed numerous incidents while in BCC and no incidents while in British Columbia. [ 29 ] I am granting Mr. Uniuqsaraq enhanced credit at a rate of 1:1.5 for the period from August 4 to October 31, 2014, and credit at a rate of 1:1 for the period from October 31 to today. V.

CONCLUSION [ 30 ] The sentence is as follows: Aggravated assault of August 4, 2014 15 months Assault of October 31, 2014 Six months consecutive Simple possession of November 27, 2014 Four months consecutive TOTAL 25 months @ 30 days/month = 750 days less credit for remand time from August 4 to October 30, 2014 at 1:1.5 88 days x 1.5 = 132 from October 31, 2014 to June 17, 2015 109 days @ 1:1 = 109 Credit for pre-trial custody 241 days Time remaining 509 days A.

Ancillary orders [ 31 ] There will be a mandatory DNA order, a mandatory Criminal Code s. 109 firearms prohibition for ten years, and a mandatory Victim of Crimes Surcharge of $200 on the aggravated assault, and $100 each on the remaining two charges. Dated at the City of Iqaluit this 20th day of July, 2015

___________________ Justice S. Cooper Nunavut Court of Justice