R. v. Ipeelee, 2015 NUCJ 38

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ipeelee, 2015 NUCJ 38 Date: 20151112 Docket: 08-15-139; 08-15-251; 08-15-252 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Pauloosie Ipeelee ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Crown): D. Garson Counsel (Accused): S. Foulds Location Heard: Iqaluit, Nunavut Date Heard: November 10, 2015 Matters: Criminal Code , 344(1)(

b) x 2, 335 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Table of Contents REASONS FOR JUDGMENT 1 I. INTRODUCTION 3 A. Procedural background 3 B. Sentences imposed 3 C. Some practical sentencing considerations 4 II. EVIDENCE 6 A. The first robbery 6 B. The second robbery 7 C. The accused’s personal circumstances and medical condition 8 III. Submissions 12 A. Defence 12 B. Crown 12 IV. ANALYSIS 13 V. CONCLUSION 17 I. INTRODUCTION A. Procedural background [ 1 ] Two days ago, on 10 November 2015, I imposed a sentence upon Pauloosie Ipeelee. During the course of the proceedings, both Crown and Defence Counsel referred to Mr. Ipeelee simply as Pauloosie.

For the sake of consistency, I will do the same. [ 2 ] The short timeline between the entry of his guilty pleas and the passing of sentence was not sufficient to allow for any articulation of the reasons for judgement. Accordingly, I advised counsel that I would provide [these reasons for] Judgment within a couple of days. [ 3 ] In this case, I had before me an 18-year-old Inuit man, with no previous criminal record, who had been clinically diagnosed with Fetal Alcohol Spectrum Disorder [FASD]. He pled guilty to two very serious charges of robbery and a single charge of joyriding on a snowmobile.

This latter charge is of little significance. [ 4 ] The first robbery occurred at a coffee shop. Pauloosie was outside, sitting in the back seat of the get-away car, while a young offender went inside the coffee shop and brandished a knife at two young store clerks in an attempt to have them turn over the store’s money. The second robbery occurred at a retail store. Pauloosie committed this robbery alone.

Although he was not armed, his face was partially masked and he threatened the store clerk with violence if the clerk did not turn over the money. [ 5 ] The joyriding charge took place about a week before the first of the two robberies. The facts of this charge are not remarkable, except that the machine involved was not damaged. Pauloosie turned himself in to police shortly afterwards.

B. Sentences imposed [ 6 ] I imposed a sentence of 289 days imprisonment for the robbery at the retail store and the same period for the robbery where a knife was brandished by the young offender. These sentences were to be served concurrently. I imposed another concurrent 10 days of jail for the joyriding charge. [ 7 ] At the time I passed sentence, just a couple of days ago, Pauloosie had already served 278 days of remand custody; however, he was not eligible for any enhanced remand credit.

Accordingly, the remaining jail time he would need to serve moving forward would be only 11 days. [ 8 ] I also imposed a three-year probationary period. The most important condition of this probation was that Pauloosie was required to reside, for the entire three-year period, in a secure southern residential treatment centre. Finally, I imposed several ancillary orders: a 10- year firearms prohibition, an order for DNA samples, and a $500.00 victim of crime surcharge. C.

Some practical sentencing considerations [ 9 ] This case was one where the Court was somewhat caught short, so to speak. [ 10 ] The Crown provided me with some case authority respecting the appropriate sentencing approach in robbery cases. Defence Counsel, however, essentially requested that I impose a rehabilitative or restorative sentence where a penitentiary term would normally be appropriate and proper.

Specifically, I was asked by Defence Counsel, on relatively short notice, to order a long-term residential treatment centre placement instead of sentencing Pauloosie to further jail time. [ 11 ] Pauloosie entered his guilty pleas only a couple of weeks prior, on 29 October 2015. On that day, Pauloosie’s lawyer presented the Court with some 60 pages of sentencing material. This was the first time that any of these documents were placed before the Court.

The sentencing material that was provided included a medical diagnosis of Pauloosie’s condition, results from extensive forensic testing and assessments and, finally, case authorities and academic articles dealing with the sentencing of offenders afflicted with Fetal Alcohol Syndrome [FAS] and other FASDs. The window of opportunity for the Court to impose the sentence urged by Defence Counsel, however, was narrow.

The timeline that would have allowed for a residential placement was continuously shrinking as the clock counted down the final days of the case. [ 12 ] I pause to note that I make no criticism of Defence Counsel for the late filing of these materials. Counsel has articulated the institutional and administrative hurdles he had to overcome during the past few months to put together this comprehensive sentencing proposal. I accept his reasons.

Indeed, I commend Defence Counsel for his efforts and for his high degree of client care in this case. [ 13 ] From the testimony that was heard, it appears that the placement in the residential treatment centre was specially arranged and secured for a period beginning next week, on 16 November 2015. Defense counsel has worked, with the help of various government officials, to secure this placement. The funding is in place, the institution involved is well aware of Pauloosie’s situation, and he has been positively assessed as a suitable resident.

During testimony, however, it became clear that if a placement commencing next week was not imposed, then the possibility of future placement would become uncertain. After November 16th, the position held for Pauloosie will no longer be securely reserved for him. Simply put, beds are scarce at this residential treatment centre.

If any placement is to be made as part and parcel of the sentence imposed, it will have to be now or, perhaps, never. [ 14 ] An important aspect of the sentence urged by Defence Counsel is, of course, the fact that the imposition of such a sentence would necessarily result in a lengthy period of isolation from society. In this way, there would be both a punitive and denunciatory aspect to the requested sentence in a practical sense, at the very least.

Indeed, if I were to accede to Defence Counsel’s request, the practical end result would be that Pauloosie would face a longer restriction on his freedom than if I were to sentence him to a federal penitentiary term of 2 and ½ years - the original position put forth by the Crown. There is no dispute over the institution’s reputability or security. [ 15 ] In this regard, I pause to note two points:

1. I am keenly aware that, as far as punishment is concerned, Pauloosie’s time as an inmate in a federal prison would be much harsher than time essentially spent as a patient in a residential treatment centre; and 2. I am confident that, on the basis of the evidence before me, if I did facilitate a long-term placement in a residential treatment centre, I would not simply be foisting a dangerous criminal on an unsuspecting southern community. II. EVIDENCE A. The first robbery [ 16 ] The first robbery took place on 10 February 2015.

It involved the coffee shop. [ 17 ] Pauloosie was with three other individuals: a young man around his age, an older fellow whom I will simply refer to as Mr. X, and a 16-year-old young offender. Mr. X was the mastermind in this robbery. [ 18 ] Counsel has informed me that Mr. X has been behind more than one robbery of this kind. It seems that he is driven to such activity by a desperate need to settle some drug-related debts. [ 19 ] It was around the time of this first robbery that Pauloosie, out of desperation himself, had fallen in with the wrong crowd. He was living on and off at Mr. X’s place.

He had no fixed address or place to live and was essentially couch surfing, mooching food and dope from various acquaintances. Mr. X was one such acquaintance. [ 20 ] On the day of the offence, Mr. X invited the others to go for a ride. While they were driving around, he told them the plan that he had hatched. Mr. X had a confederate – a woman working inside the coffee shop who would send a text advising when the manager stepped out to do errands. [ 21 ] Eventually, Mr. X received such a text. He then pressured the young offender to go into the coffee shop with a knife.

The youth went into the shop brandishing the knife at the two young female clerks, both of whom were quite obviously frightened to death. [ 22 ] The young offender demanded money and the clerks handed over approximately $1,000.00. He then ran back to the car, at which point Mr. X directed the driver to a secluded spot. Mr. X then counted the money and gave the young people, including Pauloosie, some dope to smoke. Mr. X did not distribute any of the money. The next day, Mr.

X split the loot from the robbery with his female confederate, the coffee shop employee who had sent the text to inform him that the coast was clear. [ 23 ] In terms of liability, Defence Counsel has conceded that Pauloosie’s knowledge of what was to occur prior to the robbery, as well as his continual presence in the car, constitutes sufficient encouragement to conclude that Pauloosie was a party to the offence. B. The second robbery [ 24 ] The second robbery took place one week after the coffee shop robbery, on 17 February 2015.

It occurred at the retail store. [ 25 ] Pauloosie was still living from house to house and among the same group of people that were involved in the earlier robbery. He was staying with one of the main players involved in this type of activity, who happened to be out of town at the time. Desperate for both food and grass, Pauloosie decided to pull off a robbery on his own. [ 26 ] He entered a local retail store through the front entrance, walking past the main floor cashiers with his face fully visible so as to not arouse suspicion. He went upstairs, approaching the lone cashier on the second floor.

This time, he covered his face with either a ski

mask or a scarf. Pauloosie was not armed, nor did he threaten to use any sort of weapon. He did, however, threaten the clerk by saying, “give me your fuckin’ money or I’ll hurt you.” The clerk, who was terrified, handed over approximately $1,300.00. Pauloosie then fled the store. [ 27 ] This particular store has video cameras in place to detect suspicious activity and other extraordinary events.

Sometime after the robbery, one of the store managers (who also happened to be Pauloosie’s cousin) was studying the video recording when he recognized Pauloosie’s distinctive jacket and the part of his face that had been partially uncovered. [ 28 ] Pauloosie was arrested the next day, on 18 February 2015. He admitted his guilt to the police and told them about both robberies. C. The accused’s personal circumstances and medical condition (i). The accused’s background [ 29 ] Pauloosie turned 18 shortly before the first robbery.

While he has no previous criminal history as a youth, young Pauloosie has been a child of the street for most of his life. He was 5 years old when he was abandoned by his alcoholic mother. Before that, he witnessed much domestic violence between his mother and her male partner. This male partner eventually abandoned both Pauloosie and his mother. I have been told by Counsel that Pauloosie never considered his mother’s partner to be any kind of father figure.

To the contrary, as a young boy, Pauloosie’s only thoughts about this man were to wish that the fellow was dead. [ 30 ] It is clear that Pauloosie really had no traditional upbringing. Counsel has informed me that, when Pauloosie was very young, his mother would blow marijuana smoke into his lungs. After his mother abandoned him, he was raised for the most part by his grandmother. While his grandmother did the best she could, Pauloosie still spent much of his time as a young boy essentially ‘on the street.’ [ 31 ] Eventually, in 2009, Pauloosie was given a placement at Ranch Ehrlo.

Ranch Ehrlo is a residential youth treatment centre in Saskatchewan. Pauloosie was 12 or 13 years old. [ 32 ] It was at Ranch Ehrlo that Pauloosie was finally able to get some professional help for the medical challenges he faced. He responded well to his various counsellors and caregivers during his time there. [ 33 ] Upon his return to Iqaluit in 2012, Pauloosie entered into the care of his aunt, Rosie. Shortly after his return, both his mother and his grandmother passed away. It was around this time that Pauloosie attempted suicide.

I am told that he tried to hang himself but was saved by his brother, Luke. [ 34 ] Rosie tried the best she could to raise the boy, but when Pauloosie eventually returned to alcohol and drugs, his aunt could no longer cope. Pauloosie was returned to Ranch Ehrlo. [ 35 ] By mid-2014, Pauloosie was approaching legal adulthood. As a result, he was returned to Iqaluit to live. Once again, he was placed in the care of his aunt Rosie.

While at Ranch Ehrlo, Pauloosie was unable to complete much of Grade 10 and is therefore not highly employable. [ 36 ] Nunavut Mental Health [Mental Health], a division of the Department of Health, had put a plan into place to assist and follow-up with Pauloosie upon his return from Ranch Ehrlo in 2014. It was clear from the testimony that we heard in Court, that they essentially ‘dropped the ball’ in this regard. Pauloosie received no follow-up care upon his final return from Ranch Ehrlo.

Left essentially to fend for himself yet again, Pauloosie inevitably fell in with a rather unsavory group of friends - the proverbial ‘wrong crowd.’ (ii). The accused’s medical condition

[ 37 ] I had before me medical evidence that shows Pauloosie suffers from FASD. This diagnosis is not disputed by the Crown. [ 38 ] I was provided with two diagnostic reports from medical specialists in the area of FAS & FASD. The first was prepared in 2010 by Dr. Logan from the Regina Community Clinic’s FASD Centre, during the time when Pauloosie was residing at Ranch Ehrlo. The second report was prepared in September of 2015 by Dr. Handley, who is a highly credentialed clinical psychologist who also has extensive forensic and clinical experience with FAS & FASD patients.

In addition to these medical and psychological assessments, I was fortunate to hear the testimony of Susan Beddam, Adult Services Specialist from the Nunavut Department of Family Services [Family Services]. She is also the Deputy Public Guardian. [ 39 ] In a nutshell, the reports and Ms. Beddam’s testimony show the following: 1. In terms of severity, Pauloosie’s condition – particularly his cognitive deficiency – is towards the higher end of the scale; 2. His criminal behavior is directly linked to his condition and the associated cognitive deficiency; 3.

These negative behaviours and impulses can be managed with the right therapeutic approach and with community follow-up support; and 4. The risk of recidivism is low, as Pauloosie responds well to intervention. The prognosis is therefore positive. [ 40 ] When Pauloosie returned to Iqaluit from Ranch Ehrlo last year, he once again fell in with the wrong crowd. According to Dr. Handley, however, this is not unusual. It is fairly common for someone with Pauloosie’s condition to hang out with whomever will have them.

It is also clear to me that, during this time, Pauloosie was not receiving any of the professional community follow-up from Mental Health that he was apparently supposed to receive under the plan of care upon his return to this community. [ 41 ] Ms. Beddam is familiar with Pauloosie’s case, and has extensive experience dealing with FAS and FASD clients in her care. At present she has over one hundred such clients. She is also well aware of the previous failure of the Mental Health division to provide the recommended community follow-up for Pauloosie.

She is quite confident that her Family Services division is both equipped and willing to provide such follow-up upon Pauloosie’s discharge from the southern treatment centre. [ 42 ] Ms. Beddam has essentially assured me that what happened last year with Mental Health ‘dropping the ball’ will not happen again with her Family Services team. Ms. Beddam has also assured me that her team will provide sufficient and useful community support to Pauloosie upon his return from the treatment centre in order to help him stay on the ‘straight and narrow’ when he eventually comes home.

I accept both of these assurances. [ 43 ] As a final note in this regard, Ms. Beddam has informed the Court that she is “quite confident that Pauloosie will do very well at this agency [the southern treatment centre under consideration].” [ 44 ] I have evidence that Pauloosie’s condition affects his cognitive functioning. The evidence shows that, like Pauloosie, people with FAS and FASD have great difficulty controlling impulsive behavior, such as the impulse to act in various, often anti-social and/or criminal ways.

These individuals also have difficulty appreciating the consequences that their actions may have for others or themselves. The materials before me also show that persons with FASD are prone to hyperactivity and have difficulty with so-called ‘executive functioning,’ or problem solving. [ 45 ] These tendencies do not mean that people suffering from FAS and/or FASD do not understand or know what they are doing. Indeed, they quite often do. Defence Counsel readily concedes that Pauloosie knew what he was doing when he committed these offences.

This is particularly true for the robbery at the retail store, when he attempted to disguise himself. Nonetheless, it is clear from the materials filed that these two aspects of cognitive impairment – the difficulty in controlling impulsive behavior and the difficulty in appreciating the consequences of such behavior – are often predominant hallmarks of FASD.

[ 46 ] I pause to note that none of this is in dispute. In characteristic fairness, the Crown takes issue with neither my conclusions respecting Pauloosie’s medical condition, nor the conclusion that he was unable to deal with the impulse to rob the retail store due to this condition. Indeed, as Dr. Handley bluntly worded it in his report: “the answer to the question, “Is [Pauloosie’s] current behavior the result of his background and the diagnosis of FAS?”…is “Yes.”” [ 47 ] FASD is a lifelong condition.

The materials filed and the testimony heard has made it clear, however, that with treatment, therapy, community follow-up and the patient’s willingness to co-operate, the negative behaviors associated with the disorder can be managed. In Pauloosie’s case, it appears that the prospect for such management is good. Dr. Handley noted that Pauloosie was both pleasant and co- operative throughout an obviously rigorous assessment process. In concluding his report, Dr.

Handley noted the following: On a positive note, although Pauloosie is intellectually compromised and lacks insight and self-control, the prognosis is encouraging if he works with a caring and sensitive therapist and lives in a structured setting. The progress will be slow but Pauloosie has the intellectual capability and his is the type of personality that will assist in learning pro-social attitudes and behaviors. III. Submissions A.

Defence [ 48 ] The Defence position is that the threshold criteria for the imposition of a lengthy residential placement in a treatment centre, in lieu of a long prison term, has been met in this case. The Court should therefore seize upon this rare opportunity to actually sentence his client in an effective manner. [ 49 ] The Defence bluntly and, I think, accurately states that Pauloosie is just one of many more like him. Young men, appearing before the Court for committing crimes while suffering from FAS or FASD, who represent - in Defence Counsel’s words - “the new face of Nunavut.” B.

Crown [ 50 ] The Crown has taken what I consider to be both a fair and firm position. [ 51 ] Initially, the Crown made submission for a global sentence of 2 and ½ years of federal imprisonment. The Crown informed me that it arrived at this position after a careful consideration of both the seriousness of the offence and the personal circumstances of the accused. The Crown has therefore considered the paramount sentencing objectives of deterrence and denunciation, as well as Pauloosie’s youth, his absence of a criminal record, and his medical condition.

As regards the seriousness of the offense, Crown Counsel specifically noted the increased frequency of robberies throughout Nunavut, particularly in Iqaluit, as of late. He described this phenomenon poignantly and accurately as “a terrifying coming of age in Iqaluit.” [ 52 ] The Crown made the point that the citizens of Iqaluit are frightened by these types of robberies; bluntly stating that the sentences imposed for crimes such as this must be measured in years.

Counsel’s argument for this position was that, “at the end of the day, in terms of the paramount goal of public safety, the public just wants to feel safe.” [ 53 ] After conducting a thorough and skillful cross-examination of Ms. Beddam, however, Crown Counsel modified his position. Counsel suggested that, if the Court were considering a treatment centre placement, a jail sentence of 18 months would be the appropriate stretch of time for Pauloosie to serve prior to any such placement.

This sentence falls in the middle-to-high territorial range. [ 54 ] Crown Counsel was aware of the Court’s shrinking window of opportunity to make a treatment centre placement. Despite this, Counsel suggested that if the Court was inclined to make the treatment center placement, the key would be to get the balance right with the amount of time that Pauloosie should serve prior to any such placement. IV. ANALYSIS

[ 55 ] In terms of the fundamental principle of proportionality, the punishment that Pauloosie receives must fit both the crimes and his degree of responsibility in carrying them out. The Court must assess the severity of the crime as well as its impact on the victims and the community. The Court must also look at the question of Pauloosie’s moral blameworthiness at the time he committed the crimes. [ 56 ] Robbery, particularly armed robbery, is one of the most serious crimes found in the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code].

The maximum penalty is life imprisonment. [ 57 ] In the modern digital age, we hear about serious violent crime in large urban centers around the world on an almost daily basis. Such news does not really impact our daily lives. However, the people of Iqaluit are shocked to hear of robberies and armed robberies occurring right here at home.

Such brazen criminality not only instills fear among our citizenry, it allows for a residual atmosphere of insecurity to infect the daily life of our small and intimate city. [ 58 ] In particular, I am concerned about the fear experienced by the poor store clerks, who are often just young kids, when confronted by these types of situations – situations in which a man, brandishing a knife or wearing a mask, threatens them with harm and demands money. Frankly, in situations like these, it does not matter if the robber is unarmed.

The store clerk will always be fearful of the mere possibility of a concealed weapon. [ 59 ] It is because of the severity of this type of crime, a type of crime that has now taken root in our community, that the Court must give paramount consideration and emphasis to the sentencing objectives of deterrence (both general and specific) and denunciation when passing sentence upon an offender. [ 60 ] The Court must impose a sentence that will dissuade the offender from committing this type of crime in the future, while sending a signal to anyone else who contemplates such a crime that the penalty for its commission will be severe. [ 61 ] The Court must also impose a sentence which denounces the type of crime committed.

It must confirm the values of those law abiding members of our community who are outraged by this type of crime while signalling that it also takes this type of crime seriously. The best way to send such a signal is, of course, by sentencing the offender to a lengthy jail term. [ 62 ] Pauloosie’s crimes, particularly the masked robbery at the retail store, are crimes of the highest severity.

At the same time, however, his medical condition cannot be ignored in assessing what type of sentence he should receive. [ 63 ] It is clear that the level of Pauloosie’s moral blameworthiness as he entered the store, put on the mask, and threatened the store clerk, is less than that of a person who does the same thing, but does not suffer from FASD. This is not to say, however, that FASD is an excuse for committing the crime. It is not. Nor is this to say that Pauloosie did not know or fully comprehend his actions at the time. It is clear that he was aware of what he was doing.

The point is that we know, from the medical evidence presented in this case, that Pauloosie’s ability to control the impulsive behaviour which led him to commit this robbery is directly affected by his FASD condition. [ 64 ] It is fairly well-settled law that imposing long jail sentences on people with these conditions in the hopes that they will cease to behave in such an anti-social and criminal fashion is most often a futile proposition. Simply put, the sentencing objective of individual deterrence cannot be satisfied in most such cases.

Offenders suffering from FASD, unlike those who are not, will likely remain undeterred by the prospect of time in jail. [ 65 ] Nonetheless, since public safety is paramount, the Court is left with little alternative, but the imposition of a prison term.

Often, depending upon the severity of the offence, a federal penitentiary term will be imposed. [ 66 ] The only alternative to prison for those offenders who commit serious crimes, but who suffer from FAS or FASD, is a long-term placement in a secure and well-established residential treatment centre. [ 67 ] It is only in such a setting that any hope to reduce the chance of recidivism may take seed. As important, if not more so, is the sense

of safety and security that placement in such a setting will afford the public, knowing that the offender has been taken away and isolated from society for a significant period of time. [ 68 ] In Nunavut, of course, there exists no such residential treatment centre.

Indeed, the frequency of FASD, as with the frequency of other afflictions involving drugs and alcohol, is matched only by the paucity of services available within the territory for those affected. [ 69 ] In the case R v Joamie, 2013 NUCJ 19 , 2013 CarswellNun 23 [Joamie] , the Senior Judge of the Nunavut Court of Justice set out a clear set of threshold criteria which must be satisfied before a residential treatment placement can be made in lieu of a jail term in cases involving FAS or FASD. [ 70 ] The Joamie criteria make it clear that Defence Counsel seeking a residential placement for their client must provide the Court with a solid medical and forensic evidential base to support their application. [ 71 ] In this regard, the Court will need to consider, and have before it, the following: 1.

A medical diagnosis of the offender’s FAS condition from a specialist in that field; 2. A forensic psychological assessment, identifying both the nature and severity of the offender’s cognitive defect(

s) as a result of his FAS or FASD condition, as well as the relation between the cognitive defect and his criminal behavior; 3. The specifics of any treatment plan, including particulars as to how the plan addresses the risk of recidivism; and 4.

Information as to whether the residential treatment centre has the specialized resources necessary to help the offender manage and control his behavioral impulses. [ 72 ] The Court will also need to be satisfied that there are sufficient specialized resources or support mechanisms in place to help the offender when he is released from the facility and returned to his community. [ 73 ] Given the herculean task of putting such information together, it is obvious that applications for residential treatment dispositions will be rarely granted. [ 74 ] In this case before me, Defence Counsel has laboured diligently over the past six months to put together a sentencing proposal on behalf of his client that satisfies the threshold evidential framework required by Joamie .

In my view, counsel has passed the test. Both the materials before me and the testimony I have heard clearly meet the Joamie standard. V. CONCLUSION [ 75 ] ] Having thus assessed the substance of the materials and the testimony, I feel both confident and compelled in this, the rarest of cases, to impose the sentence urged by Defence Counsel.

I therefore require that Pauloosie, in addition to the 278 days he has already spent on remand in pre-trial custody, spend the next three years in a secure residential treatment centre. [ 76 ] Finally, I would be remiss if I did not acknowledge the effort, patience, and acumen of both Crown and Defence Counsel during this difficult case, which has finally come to a close after a stressful two week period.

Dated at the City of Iqaluit this 12th day of November, 2015 ___________________ Justice N. Sharkey Nunavut Court of Justice