R. v. Bracken, 2016 NUCJ 03

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Bracken, 2016 NUCJ 03 Date: 20160128 Docket: 08-14-645 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Michael Bracken ________________________________________________________________________ Before: The Honourable Mr. Justice Bychok Counsel (Crown): C. Lirette Counsel (Accused): S. Cowan Location Heard: Iqaluit, Nunavut Date Heard: October 26-27, 2015; January 22, 2016 Matters: Criminal Code, s. 266 ; Sentencing REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Table of Contents REASONS FOR JUDGMENT 1 I. INTRODUCTION 3 II. FACTS 3 A. The first assault 3 B. The second assault 4 C. The offender’s immediate post-offence explanation 4 D. The victim had special needs 4 III. PRINCIPLES OF SENTENCING 5 IV. SUBMISSIONS 6 A. Aggravating circumstances 6 B. Mitigating circumstances 7 C. Position of the parties 7 D. The offender 9 V. ANALYSIS 9 A. The consequences of a breach of the public trust by a prison guard 9 B. The victim suffered from cognitive impairment known to the offender 10 VII. SENTENCING OPTIONS 11 A. A conditional discharge is not available to the offender 11 B.

Suspended sentence or jail? 12 B. Conditional sentence of imprisonment or jail? 16 VIII. SENTENCE 18 I. INTRODUCTION [ 1 ] The offender, Michael Bracken, was convicted after trial of assault, contrary to

section 266 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code]. At the time he committed the offence, the offender was a full time guard at the Baffin Correctional Centre [BCC] in Iqaluit. His victim was one of the inmates he was sworn to guard and to protect. [ 2 ] The imposition of sentence was adjourned for the preparation of a Pre-Sentence Report and the submissions of counsel. Both counsel submitted written arguments and case authorities. Oral submissions were received on January 22, 2016.

As this case touches upon important issues fundamental to the administration of justice, I reserved my decision. These are my reasons respecting the appropriate and just sentence in this case. II. FACTS A. The first assault [ 3 ] The Court heard from five guards who were on duty on October 26, 2014. The offender testified. The Court found that the offender

assaulted the victim twice during his shift that day. The Court heard evidence that the offender had been having a stressful day and that the victim had been irritating him during his shift. The first assault happened in the mess area, and it was captured on security video. As the offender walked toward the door leading to the kitchen, the victim approached him. The victim wanted a cookie. The offender told him no and started to open the door. The victim then put his foot against the door.

Without any hesitation, the offender punched the victim in the face and then he immediately wrestled him violently to the ground. Two guards intervened to assist the offender. The offender’s attack against his victim was unnecessary, and it was unprovoked. This attack greatly upset several inmates who were present and who witnessed the attack. One of the guards became concerned that a riot might break out if the situation was not immediately diffused. B. The second assault [ 4 ] The second assault happened several minutes later. Once the victim had been subdued by the guards, he was escorted out of the area.

The guards took the victim into a secure hallway. The shift supervisor followed them. Instead of removing himself from the situation, the offender chose to follow the victim and his escorts into that secure hallway. The victim became agitated when he saw the offender and he was taken to the ground again by two guards. The victim was handcuffed at this time. The victim landed on the floor on his stomach with his head facing the wall. While he was being controlled by two guards, the offender approached him, wound up, and deliberately kicked him violently in the head. That kick drove the victim’s head into the wall.

The attack by the offender was a cowardly and gratuitous act of violence unleashed against a helpless victim. As a direct result of the two assaults, the victim suffered swelling to his forehead. [ 5 ] There was a security camera in that hallway. The Court was not provided with a satisfactory explanation as to why a video recording of that assault was not available as evidence. C. The offender’s immediate post-offence explanation [ 6 ] The offender was confronted by his supervisor after the first attack and before the second one.

The Court was told that the offender said: “Do I look like I give a fuck?” At trial, the offender testified that he was justified in using the force he did at the door to the kitchen. He denied kicking the victim in the secure hallway. D. The victim had special needs [ 7 ] The victim was a repeat offender who was well known to all the guards in the institution. He was cognitively impaired. He was described by witnesses as being “child-like” and “low functioning”. With the exception of the offender, all five guards told the Court they adjusted their handling of the victim to account for his special needs. III.

PRINCIPLES OF SENTENCING [ 8 ] There are a number of important legal principles which a judge must use when a court sentences an offender. The most important of these principles is found in

section 718 of the Criminal Code . Above all, the sentence I impose today should foster respect for the rule of law and it should contribute to building a safe and healthy Nunavut. [ 9 ] In the circumstances of this case, the Court must impose a sentence which tries to achieve the following overriding objectives: a. First, to denounce this type of criminal behaviour. In other words, the court must send to the entire community a message which condemns this crime, and which reminds people that we expect community laws to be obeyed by everyone, no matter their position in society; b.

Second, the court must impose a sentence which will deter the offender and other persons from committing crimes. In other words, to make them think twice before committing crime. This objective is particularly important in this case. I will have more to say about it later in my reasons for sentence; c. Third, the court must impose a sentence which has as one of its principle aims to rehabilitate offenders, and to help them heal; and,

d. A sentence which encourages this offender to take responsibility for his actions, and both to acknowledge and to admit the hurt he has done to his victim. [ 10 ] The court must also remember that the sentence must be proportional to the crime committed. In everyday English, this principle means that a sentence should reflect the seriousness of the crime as well as the responsibility of the offender. This requirement is found in

section 718.1 of the Criminal Code . [ 11 ] The court must also consider the ‘totality’ principle. This is another legal term which means that a judge should ensure that the sentence reflects the overall responsibility of the offender. [ 12 ]

Section 718.2 of the Criminal Code also reminds us that it is only fair that similar offenders should be treated similarly for similar crimes. Also, I am reminded that an offender should only be deprived of his liberty if no other sentence would be appropriate. [ 13 ] In putting these sentencing rules to use, the Court also relies greatly on what we call case law. Case law is made up of published court reports that tell us what other judges have done in similar circumstances.

Both lawyers have provided case law to the Court to assist its deliberations. [ 14 ] The law I am bound as a sentencing judge to apply also says that a sentence must be increased or reduced to reflect the absence or presence of aggravating and mitigating circumstances. IV. SUBMISSIONS A. Aggravating circumstances [ 15 ] There are a number of serious aggravating factors which must be considered by this Court in deciding upon a just sentence: a. The offender was a prison guard responsible for the safety and well-being of his victim.

The offender’s cowardly and violent assault of the victim was a brazen and flagrant abuse of his position of authority and the public trust. This abuse of authority is highlighted as an aggravating factor pursuant to

section 718.2 (a) (iii) of the Criminal Code ; b. The victim was an inmate and, as such, he was in an extremely vulnerable position vis-à-vis the offender; c. Nunavut’s historical and socio-economic realities make its overwhelmingly Inuit inmate population especially vulnerable; d. The offender knew that the victim suffered from cognitive impairment; e. The first assault was witnessed by other inmates and it caused them considerable anger and upset. In the immediate aftermath of the punch, one of his colleagues was worried a riot might break out.

The offender’s action directly put the safety of his fellow guards and the other inmates in immediate peril; f. The offender’s criminal actions undermined the authority of all his colleagues within the institution. g. The offender’s criminal actions undermine public confidence and trust in the justice system; h. The offender chose not to separate himself from the situation after the first assault. Instead, he followed the victim as the latter was escorted into the secure hallway where he assaulted the victim a second time; i.

The victim was handcuffed, on his stomach on the floor, while being restrained by two other guards with his face towards the wall, when the offender purposefully kicked the victim in the head. The victim was entirely helpless; j. The victim was injured during the assaults; k. The two assaults were gratuitous and unprovoked; and, l. The offender showed not the slightest bit of remorse when he was confronted by his supervisor moments after the first incident happened. Rather, he shrugged the incident off. His supervisor told the Court that the offender said: “Do I look like I give a fuck?” B.

Mitigating circumstances

[16] In mitigation, this is the offender’s first criminal offence. C. Position of the parties (i). Defence [17] Counsel for the offender reminds the Court that the punishment should “not exceed the guilt”. He asks the Court to impose adischarge. He says that the most similar case to this one is R v Eegeesiak, reported at 2010 NUCJ 10, [2010] Nu J No 7 (QL)[Eegeesiak]. In that case, a Royal Canadian Mounted Police [RCMP] Constable [Cst.] was given a suspended sentence and probation forhaving assaulted two persons in custody.

Counsel for the offender says that case was more serious, and that a sentence proportional tothat one would lead to a discharge in this case. He also relies on the ‘parity principle’ to say that it would not be just to punish theoffender more harshly than Cst.

Eegeesiak. [18] Counsel for the offender referred the Court to the following cases: R v Klima, 2015 MBPC 30, [2015] MJ No 168 (QL); Eegeesiak;R v Cronmiller, 2004 BCPC 1, [2004] BCJ No 7 (QL) [Cronmiller]; R v Feeney, 2008 ONCA 756, 238 CCC (3d) 49; R v Tait, 2005BCPC 273, [2005] BCJ No 1574; R v Murphy, [2007] OJ No 327 (CJ), 73 WCB (2d) 133; R v Sweeney, [2001] OJ No 1899 (CJ), 50WCB (2d) 138; R v Schertzer, 2015 ONCA 259, 325 CCC (3d) 202; and, R v Wainwright, 2008 ABCA 6, 77 WCB (2d) 568. (ii).

The Crown [19] The Crown says that a conditional discharge would be an unfit sentence, would not be in the public interest, and that it wouldtrivialize the crime. Rather, the Crown says this type of “reprehensible crime must attract a sentence of imprisonment”. The Crown saysthat it is unlikely that the offender will reoffend and that he is not a danger to the community. For these reasons, the Crown asks theCourt to impose a conditional sentence of jail in the range of 30 to 45 days.

The Crown says it would be “too great a punishment” toimpose a jail term in an institution. [20] The Crown referred the Court to the Corrections Act, R.S.N.W.T. 1988, c.

C-22, s. 17 (Nunavut), as well as the following case law:R v Fallowfield, (BC CA), [1973] BCJ No 559 (1973), 13 CCC (2d) 450 (BCCA); R v Waters, [1990] SJ No 39(1990), (SK KB), 54 CCC (3d) 40 (Sask QB); R v MacFarlane, 1976 ALTASCAD 6, 3 Alta LR (2d) 341; R vLeblanc, 2003 NBCA 75 , [2003] NBJ No 398 (QL), (2003), 180 CCC (3d) 265 (NBCA) ]Leblanc]; R v Edmunds, 2012 NLCA26, 288 CCC (3d) 164 [Edmunds]; R v Crocker, 2015 NLPC 0114A03113, 2015 NLPC 73941 [Crocker]; R v Carrigan, 2009NLPC 59434, (NL PC) [Carrigan]; R v Lepine, 2010 ABPC 374, [2010] AJ No 1344 (QL); R v Rosa, 2011 ONCJ348, 95 WCB (2d) 524 [Rosa]; R v Pickering, 2014 ONCJ 594, [2014] OJ No 5323 (QL); and, R v Cusak, (NS CA),[1978] NSJ No 538 (1978), 41 CCC (2d) 289 (NSCA).

D. The offender [21] The offender is 31 years old. He was born in Iqaluit, but he spent much of his youth growing up and attending school in Alberta andOntario. He lost his employment at BCC as a result of this criminal prosecution. The Court was told that he has worked at odd jobs sincehe was fired. His previous work history includes working in factories in southern Canada and as a security officer for a local propertycompany. This charge resulted in his first criminal conviction. There was no evidence led that a criminal conviction would affect hisfuture employment prospects.

His counsel, in argument, did not raise any factors from R v Gladue, (SCC), [1999] SCJNo 19, [1999] 1 SCR 688 (QL) [Gladue], as relevant to the disposition of this case. I shall have more to say about Gladue and Nunavutlater in my reasons for decision. V. ANALYSIS A. The consequences of a breach of the public trust by a prison guard [22] Canadian courts have consistently ruled that criminal offences committed by peace officers in the course of duty are particularlyserious crimes. This was noted by Mr.

Justice Veale in the Eegeesiak case, at paragraph 38, where he quoted a 1977 Alberta case inwhich that judge stated:

The commission of offences by police officers has been considered on numerous occasions by the courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commits the same crime because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration. [R v Spilde, [1977] AJ No 152 (District Ct. App.

Div.) , DCR No. 7761] [ 23 ] This statement of the law applies equally, and for the same reasons, to prison guards: The excessive use of force on a prisoner in the confines of a lockup is a reprehensible crime in a free and democratic society. Correctional officers, like the police and sheriff’s officers, are in a special position of power over prisoners. Prisoners and those in custody can do little to protect themselves against assaults by those whom the law has entrusted with their care.

It is the law and the justice system which puts the correctional officer in the position of power over the prisoner and therefore it is the law and the justice system which must protect the prisoner from abuse and excessive force. [Chief Judge Pike in Carrigan , para 15 ; See also Crocker and Rosa (supra para 20 )] [ 24 ] Therefore, the sentence imposed today must act as a forceful and meaningful reminder to all that the Court will do what it can to prevent the abuse and mistreatment of inmates. The defence and preservation of the values of our free and democratic society demand no less. B.

The victim suffered from cognitive impairment known to the offender [ 25 ] This Court heard evidence during the two-day trial that the victim in this case was a difficult inmate. Several witnesses severely criticized management for permitting this special needs inmate to be incarcerated in their facility. In his written submissions, counsel for the offender described the victim as “unstable”, “unrepentant”, and “unpredictable”. He says that BCC staff were “flummoxed with the best way to house this man.

It was in this context that the herein (sic) offence took place”. [ 26 ] One thing must be said immediately in response to counsel for the offender’s last comment. The victim’s mental instability and so called lack of repentance in no way explains, excuses, or mitigates the offender’s two attacks on him. [ 27 ] It is clear that the victim was a frustrating inmate to manage. However, each of the other current or former guards who were witnesses testified that they adjusted their own behaviour when they dealt with the victim. Their evidence satisfied the Court that the victim was, indeed, manageable.

Guards were trained to use their words, not their fists, and not their boots. That is precisely what was, and is, expected from correctional staff. [ 28 ] This point was made in another case by Judge Weitzel: It cannot be denied that police officers [and here I add prison guards*] must confront many frustrating individuals and situations in the course of performing their duties.

Society has recognised that, and has and continues to provide special training and education to its police officers in how to manage themselves in such situations … Society has invested in its police officers a special authority to deal with individual members of that society, a special position of trust.

But there is a reciprocal expectation that police officers who are invested with substantial rights of interference with individual liberties, exercise those rights with scrupulous propriety. [ Cronmiller , paras 25 and 26] * [note added by Justice Bychok] [ 29 ] The Court therefore rejects counsel for the offender’s inference that the intellectual infirmity of the victim somehow excuses, or lessens, the offender’s responsibility for his actions. In all the circumstances, the offender, and the Nunavut Department of Justice, Corrections division as a whole, owed the victim a heightened duty of care. VII.

SENTENCING OPTIONS

A. A conditional discharge is not available to the offender [ 30 ] Counsel for the offender has urged the Court to impose a discharge. By that submission, I understand counsel to have recommended a conditional discharge. In effect, he asks the Court to give the offender a chance to avoid a criminal record by serving successfully a term of probation. To impose such a sentence, a Court must consider a two-part test. First, whether a discharge would be in the best interest of the offender; and, second, whether a discharge would not be contrary to the public interest.

That test is mandated by section 730(1) of the Criminal Code . [ 31 ] Generally, it may be assumed that a conditional discharge might be in the best interest of an offender. However, there are cases where it would be a disservice to the offender to permit him to avoid meaningful consequences for his actions. This is so where an offender has claimed to have been justified for actions found by the Court to have been a brazen and flagrant criminal act committed in breach of the public trust.

It would serve no purpose to justify the offender’s criminal actions in his own mind. [ 32 ] Any form of discharge in this case would undermine the credibility of the Court’s denunciation. A discharge would also send the wrong message to all those individuals placed in authority over others by the justice system. In coming to this conclusion on the facts before me, I have adopted the reasoning of Mr. Justice Veale in the Eegeesiak case at paragraph 83 when he emphasised denunciation and deterrence: In short, it would not be in the public interest to grant a conditional discharge.

Citizens of Nunavut, no matter what their condition, personal circumstances or criminal record may be, must have confidence in our system of justice which sometimes begins in an RCMP cell. It must be a safe and secure place free from threats or violence by police officers. A jail cell is a place where accused persons are the most vulnerable and in greatest need of protection.

A police officer [and I add here or a prison guard*] must always act with scrupulous propriety when carrying out the special duties conferred on him. * [note added by Justice Bychok] [ 33 ] This analysis correctly reflects the law in this area: [25] In my view, only the most exceptional circumstances can justify a discharge, absolute or conditional, for breach of trust by a police officer in the execution of his duties. [White, J. in Edmunds , at para 35 citing Chief Justice Drapeau in Leblanc at para 33 (supra para 20)] [ 34 ] No such exceptional circumstances exist in this case. B.

Suspended sentence or jail? [ 35 ] A suspended sentence results in a criminal record. However, the passing of the actual sentence is suspended, or not imposed, to give the offender a chance to complete his probation successfully. Should the offender be convicted of a breach of probation or another criminal offence, he is then liable to be sentenced on the original offence. If he stays out of trouble, no further action is taken by the Court. [ 36 ] Following amendments to the Criminal Code late last century, there are two types of potential jail terms available to the Court.

The first is the traditional term of imprisonment served in an institution. The second is known as a conditional sentence which is said to be served in the community. In most cases, a conditional jail term is served in the home of the offender under strict conditions. [ 37 ] Counsel for the offender has referred to the Eegeesiak case as the most persuasive comparator found in the case law. He says it is the “closest similar case from Nunavut”.

If the Court does not grant a discharge, then he says “sentence parity” would require this Court to grant this offender a suspended sentence. [ 38 ] This Court agrees with counsel for the offender that the Eegeesiak case is the most relevant of all the various cases cited by both parties. In my view, however, there are important points of distinction between Eegeesiak and the case before me today.

[ 39 ] First, Cst. Eegeesiak pleaded guilty at the first opportunity. Of course, it is not aggravating that Mr. Bracken put the Crown to formal proof at trial; that was his right. But the fact remains that the Nunavut Court of Justice has always extended meaningful credit to offenders who plead guilty early in the process. Guilty pleas are viewed as some evidence of remorse, and as an acceptance of responsibility. Cst. Eegeesiak also accepted unconditional responsibility and expressed sincere remorse all along. [ 40 ] Second, Cst.

Eegeesiak was provoked by his two victims who knew, and had threatened, members of his family. Mr. Bracken’s two assaults were entirely gratuitous and senseless. [ 41 ] Third, in Eegeesiak, Justice Veale emphasised a number of significant Gladue factors which are not found in the present case. [ 42 ] The Eegeesiak case, unlike the present one, is an excellent example of the “unique cultural circumstances” of a Gladue case in the context of Nunavut. In Gladue , the Supreme Court of Canada gave guidance to trial judges concerning the principles to be applied in sentencing Aboriginal offenders.

To make a very long explanation short, and in the Nunavut context, our court must take into account the cultural perspectives, particular history and circumstances of the Inuit people, including the radical transformation of Inuit society which started in earnest in the mid-twentieth century. Most importantly, this court must consider how that larger history has had an impact on the individual offender. This legal requirement was subsequently enshrined in

section 718.2 (

e) of the Criminal Code . [ 43 ] In Eegeesiak, the Court was presented with a defence recommendation of a conditional discharge. The Crown sought the imposition of a criminal record by way of a suspended sentence. Justice Veale noted that to a great extent, his Gladue analysis had been anticipated by the Crown which had factored into its recommendation the “unique cultural circumstances” of that case. The learned trial judge listed the following Gladue factors as justifying his decision to impose a suspended sentence on Cst. Eegeesiak: a. The offender was an Inuk and his “family circumstances had been difficult”.

He had an alcoholic father who was mentally and physically abusive to his family; b. As a child, he would often have to escape this abusive environment by fleeing to the homes of relatives for safety; c. He was sent on his first two RCMP postings to isolated communities where there were few resources available to mentor him adequately; d. He was then posted to his home community where he had to police family, friends, and acquaintances. He was also well known generally within the community.

As an Inuk in a predominantly non-Inuit police force, his mere presence generated unreasonable expectations within many in the community that he simply could not legally fulfill. Not surprisingly, the offender found this situation to be extremely stressful; e. The offender walked “a difficult road between two cultures, languages… where sometimes he was resented and he was viewed as a betrayer of the Inuit culture but was not totally accepted into qallunaaq culture because he was Inuk”; and, f.

He had recognised his vulnerability in Iqaluit, and he had requested and taken concrete steps to relocate to Whitehorse before the incidents happened. [ 44 ] Furthermore, as I noted before, Cst. Eegeesiak not only pleaded guilty, but he accepted unconditional responsibility for his actions. [ 45 ] Notwithstanding these very compelling mitigating considerations, Cst. Eegeesiak nevertheless received a criminal record.

The early guilty plea, genuine remorse, provocation, and Gladue factors all distinguish Eegeesiak from the case before the Court. [ 46 ] Justice Veale’s decision in Eegeesiak also shone a necessary light upon our society itself. Each and every day, we who are fortunate enough to live here walk paths somewhat similar to the one taken by Cst. Eegeesiak in his Iqaluit posting. We all straddle two culturally distinct worlds.

These “unique cultural circumstances” must also inform how the Court determines what is a just sentence in this case. [ 47 ] Canadian courts have consistently highlighted the vulnerability of our inmate populations. Each and every aspect of an inmate’s life is administered, controlled, and regulated by agents of the state. Our polity grants to these state agents extraordinary authority and power over their charges. These powers are necessary if our institutions of imprisonment are to be places of safety, both for inmates as well as their staff.

But with those powers comes a tremendous legal and moral responsibility to exercise those powers justly. Canada is a free and democratic society and the concept of human dignity is a cornerstone of our collective understanding of human rights. This Court must

not only protect the dignity of those persons from whom it removes their personal liberty; this Court must be seen to protect that value in a clear, decisive, and meaningful way whenever it is called upon to do so. This calls for a sentence which emphasizes the objectives of denunciation and deterrence. [ 48 ] The duty of this Court is to interpret and apply the law with a sensitivity to, and understanding of, the society it serves. Our society is a vulnerable one in the midst of an ongoing and radical social transformation.

An entire generation of Nunavummiut were taken from the nurturing bosoms of their families and sent away to Residential Schools. The consequences of that traumatic episode in our history continues to reverberate to the present day. The drop-out rate from our schools is high. Substance abuse and all the negative consequences of that abuse are endemic. Nunavut leads the country in reported crimes and suicide. This sad reality means that our prison population is especially vulnerable. That sad reality is plainly manifest in this case.

This factor, too, compels this Court to give primary emphasis on the objectives of denunciation and deterrence. [ 49 ] The reprehensible circumstances of this case and the factors and principles I have just discussed lead me to conclude that a jail term followed by probation is the appropriate and just sentence in this case. B. Conditional sentence of imprisonment or jail? [ 50 ] This Court must now decide whether the jail term I am about to impose may be served as a conditional sentence or in an institution. A conditional sentence of imprisonment is available on its face for a conviction of common assault.

The key provision of

section 742.1 of the Criminal Code states: If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 [ 51 ] As I consider whether a conditional sentence would be a fit sentence, it is clear that the first threshold criterion has been met. I am satisfied that Mr.

Bracken, as a first time offender, would pose no danger to the community if permitted to serve his sentence under house arrest. [ 52 ] The more important question though, is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. The Crown says that the fact that the offender is unlikely to reoffend ‘addresses’ the purposes of sentencing.

However, each branch of the two-part test requires an entirely different, and independent analysis. [ 53 ] In my view, the imposition of a conditional sentence here – for an offence by a prison guard on a defenceless and vulnerable special needs inmate – would not satisfy the purpose and fundamental principles of sentencing. Nor would such a sentence act as a meaningful articulation of the objectives of denunciation and deterrence. [ 54 ] Furthermore, I hold the view that the imposition of a conditional sentence would fail to address the special vulnerability of prison inmates in Nunavut.

The high legal and moral duty of correctional officers to act at all times with justice, probity, and restraint is even more marked here given the highly vulnerable nature of our prison population. This factor, too, leads this Court to impose a sentence which places primary emphasis on denunciation and general deterrence. [ 55 ] The Court heard much evidence from the offender and five other current and former BCC guards respecting the way in which special needs inmates, like the victim, are handled within the institution.

The evidence painted a troubling backdrop of a perception by the witnesses that management does not provide them with appropriate training and support. If their evidence is to be believed, the institution also fails adequately to educate their staff in the unique cultural, economic, and mental health related circumstances of their overwhelmingly Inuit inmate population.

[ 56 ] This evidence greatly troubles this Court. Whatever the merits of this unanimously articulated perspective, the result has been to create a culture of a lack of understanding of and, in certain cases, of disrespect on the part of some guards towards the inmate population. Each one of the witnesses called by the Crown attempted to excuse the offender and justify his actions. As I said in my reasons for decision, I found that several of the witnesses were evasive and non-responsive to the questions put to them by Crown.

The offender’s former supervisor also backtracked in his evidence and offered alternate explanations for the kick which had absolutely no air of reality. I was troubled by their obvious lack of candour with the Court. The sympathy of these witnesses for their former colleague was palpable, and that bias tainted their evidence. These factors weigh in the balance respecting the obvious need for a sentence in this case which emphasizes general deterrence. [ 57 ] The sentence which this Court imposes must be not only just, it must be meaningful.

This Court wishes to send a message to all Nunavummiut, and to all who are put in authority over them, that the dignity of each and every one of us is inviolable. This Court must also impose a sentence which corresponds to the expectations and values of all right minded and informed persons. The law is not simply an abstract construct. It is the guarantor of our social peace, but only to the extent that our courts’ decisions inspire confidence and respect. Our society’s values do not change behind a prison’s walls, and those persons entrusted with authority must be the standard bearers of those values.

In all the circumstances of this case, this Court rules that a period of incarceration in an institution is required. VIII. SENTENCE [ 58 ] Stand up please, Mr. Bracken. The sentence of this Court is that you shall spend thirty days in jail. That sentence is to be followed by nine months of probation.

You are: a. to report to the Iqaluit probation office within two business days of your release from jail, and thereafter as directed by your probation officer; b. to perform fifty (50) hours of community service during your probationary period; and, c. to take any assessment or counselling for anger management as directed by your probation officer. [ 59 ] The Criminal Code requires that I impose a $100.00 Victim Fine Surcharge, and I do so now. You shall have nine months after your release from jail to pay the fine. Dated at the City of Iqaluit this 28th day of January, 2016 ___________________ Justice P.

Bychok Nunavut Court of Justice