R. v. Holland, 2017 NUCJ 03

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Holland, 2017 NUCJ 03 Date: 20170203 Docket: 08-16-22; 08-16-39 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Tommy Tiglik Holland ________________________________________________________________________ Before: The Honourable Mr. Justice Bychok Counsel (Crown): Benjamin Flight Counsel (Accused): Lana Walker Location Heard: Iqaluit, Nunavut Date Heard: December 08, 2016 Matters: Criminal Code of Canada, RSC 1985, c C-46, s. 235(1) (b); s. 255(2) ; s. 259(4) ; Effect of police misconduct on sentence REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Table of Contents REASONS FOR JUDGMENT 1 I. BACKGROUND 3 II. THE POSITION OF THE PARTIES……………………………………………….4 III. ANALYSIS……………………………………………………………………………4 A. Sentencing objectives and principles 4 B. The offender 6 C. Criminal record 6 D. Mitigating factors 7 E. Aggravating factors 7 F. Canadian Victims Bill of Rights . SENTENCE 8 A. January 1, 2016: impaired driving – 235(1)(

b) and driving while prohibited – s 259(4) 8 B. January 17, 2016: impaired driving causing bodily harm – s 255(2) and driving while prohibited – s 259(4) 9 D. The effect of the guilty plea 10 E. The effect of the breach of Holland’s Charter rights by the police 10 (i). The evidence 10 (ii). Charter breach Analysis F. Credit for remand custody and time served 16 G. Probation order 16 H. Ancillary orders 17 I. BACKGROUND [ 1 ] On August 25, 2015, Mr. Holland was convicted of impaired driving. Only four months later, on January 1, 2016, he was arrested again for impaired driving. He was released on bail.

Just over two weeks later, Mr. Holland, while extremely drunk, again got behind the wheel of a vehicle. Soon after, he struck a Jeep which was parked on a Happy Valley street. He drove away. He drove back shortly after and again he struck the same vehicle. This time, the Jeep owner’s little seven-year-old son was at its back. Mr. Holland backed into the Jeep pinning the child between the hatch and the Jeep. The child was seriously injured, and he had to be rushed to the hospital. Mr. Holland drove away immediately without stopping to help. [ 2 ] The Jeep’s owner recognized Mr. Holland from the neighbourhood.

He told the police where the offender lived. The police then staked out the offender’s home. About eight hours later, Mr. Holland came out. He let his dog out and lit a cigarette. Constable [Cst.] Andrew Kerstens called out to him that he was under arrest. Mr. Holland yelled back “fuck you”. He went right back inside. Cst. Kerstens chased after him. Cst. Kerstens, and Corporal [Cpl.] Mary Beth Dunphy, kicked their way into the house behind him. They caught up with him just inside the second door. Cst. Kerstens immediately put him against the wall. A struggle ensued. Mr.

Holland was subdued, arrested, and taken from his home to police cells.

[ 3 ] Mr. Holland has pleaded guilty to impaired driving and driving while prohibited on January 1. Mr. Holland was charged with five offences for the January 17 incident. These charges included leaving the scene of an accident and resisting arrest. The Crown accepted guilty pleas to impaired driving causing bodily harm and driving while prohibited. The Crown stayed the other charges. This happened on August 22, 2016. [ 4 ] Mr. Holland’s sentence hearing started on December 8, 2016. The Crown read in the facts. The Defence admitted they were correct. The Crown then called two witnesses, Cpl. Dunphy and Cst.

Kerstens. They testified about the arrest. I then heard from the prosecutor, Mr. Flight, and the Defence lawyer, Ms. Walker. They told me what they thought would be would be an appropriate, or just and proper, sentence for these serious crimes. These are the reasons for my decision on sentence. II. THE POSITIONS OF THE PARTIES [ 5 ] The Defence lawyer says I should impose a six-month jail term. Ms. Walker says I should also reduce Mr. Holland’s sentence because the police breached his rights under the Canadian Charter of Rights and Freedoms1 [ Charter ]. She said the police had no right to go into Mr.

Holland’s home to arrest him. She provided twelve cases for my review. The sentences in these cases range from sixty days to three years in jail. [ 6 ] The prosecutor says I should send Mr. Holland to the correctional centre for forty-five days for the first incident. He says Mr. Holland should receive a further 395 days for the second incident. This equals a total of 440 days in jail. Mr. Flight recommended a three-year driving prohibition. He did not provide any case law. He said the Charter breach was not serious; the sentence should not be reduced. III. ANALYSIS A.

Sentencing objectives and principles [ 7 ] Sentencing is an individualized process. Every offender, and every case, is unique. A judge must weigh the objectives and principles of sentencing against the specific circumstances of each case. [ 8 ] There are important rules a judge must follow when imposing a sentence. These rules are found in the Criminal Code of Canada2 [ Criminal Code ]. The sentence I impose must serve to: * Protect the public; * Foster respect for the law; * Be seen to be just; * Acknowledge the harm done to Mr. Holland’s victims; * Condemn and denounce criminal conduct; * Deter Mr.

Holland and others from committing these crimes; * Rehabilitate Mr. Holland to help him heal; * Encourage offenders to accept responsibility for their actions, to acknowledge and admit the harm they caused to their victim(s), and try to repair the harm where possible; and to * Separate offenders from society when necessary.3 [ 9 ] The Criminal Code directs judges to consider ‘proportionality’. This principle is at the heart of the sentencing process. This legal term means a sentence should reflect the seriousness of the crime, and the offender’s responsibility for it.

[ 10 ] The Criminal Code directs sentencing judges to act with ‘restraint’. This means the court must impose the least harsh sentence which can achieve the goals involved in sentencing. Jail must only be imposed when there is no reasonable alternative. In Canada, jail is imposed only as a last resort. Combined sentences are not to be unduly long or harsh. Here, the Criminal Code directs judges to be especially aware of the circumstances of Aboriginal offenders. I’ll say more about that starting in paragraph thirteen. [ 11 ] The Criminal Code directs judges to consider ‘totality’.

This legal term means a judge is not allowed just to add up the sentences for each individual offence. The final, total sentence should be no more than the overall responsibility of the offender. [ 12 ] Sentencing judges must also consider ‘case-law’. Case-law is made up of published reports that tell us what other judges have done in similar circumstances. This is extremely important. It is only fair that similar offenders should be treated similarly for similar crimes.

I was referred to twelve drinking and driving cases by Defence counsel. [ 13 ] One of the most important cases is called the Queen v Gladue4 [Gladue]. It is called that because in Canada all criminal prosecutions are done in the name of Her Majesty the Queen. Gladue was the name of the offender in that case. Gladue is a very important case from the highest court in Canada, the Supreme Court. In fact, the Nunavut Court of Justice is a Gladue court. We serve all Nunavummiut.

To make a long explanation short, our court must account for the unique circumstances of the Inuit people, their history, and society. [ 14 ] Gladue requires a sentencing judge to consider the circumstances of the offence, the offender, the victim and their community. Nunavut is in crisis. Alcohol abuse is tearing apart our society. I must take that fact into account. I will say more about that later today when I sentence Jamie Mikijuk5. [ 15 ] Gladue is a constant reminder to everyone in our justice system. It reminds us that justice, if it is to approach true justice, must be rooted in the community it serves.

Gladue informs every decision we make -- at every level. It is the lens through which we look at every case. Every sentence of the Nunavut Court of Justice involving an Inuk is a Gladue sentence. So, there is never a specific Gladue credit. [ 16 ] There is another important aspect to Gladue. The case also tells us that practically speaking, sentences for serious or violent crimes will be similar whether the offender is Aboriginal or non-Aboriginal. This is one of those cases. [ 17 ] Mr. Holland’s case is about repeated drunk driving. It is about the terrible decisions people can make when they are drunk.

It is about what happens when drunk people drive. Innocent people get hurt, or are killed. B. The offender [ 18 ] Mr. Holland is from Iqaluit. His mother is Inuk. He is an alcoholic. He grew up in the home of parents who abused alcohol. Often, money went for alcohol, not food. He and his siblings sometimes went hungry. Mr. Holland finished grade ten. He is employed full time with the Nunavut Housing Corporation. Before the incident, his addiction seriously affected his work. He told me January 17 was a wake-up call; he has been sober since then. He started to attend Alcoholics Anonymous twice a week.

He is the father of a seven-year- old daughter. He has imagined her in his victim’s shoes. C. Criminal record [ 19 ] Criminal records play an important role in sentencing. Common sense says a first-time offender who does a less serious crime will be treated more leniently than someone who commits one serious crime after another. Mr. Holland has a recent criminal record for impaired driving. On August 25, 2015, he received the minimum $1,300 fine, and his privilege to drive was revoked for twelve months. He was also convicted on July 17, 2014, for breaching a condition of his bail on an assault charge.

He was put on probation for twelve months for that crime as well as for the assault. [ 20 ] The Criminal Code also requires a sentencing judge to consider mitigating and aggravating factors. One of those mitigating factors arises from police misconduct in the case. I will say more about that later. D. Mitigating factors

[ 21 ] There are two other mitigating factors which go to Mr. Hollands’ credit. They work to lessen his sentence. Those mitigating factors are: * Mr. Holland entered an early guilty plea. He has taken responsibility for what he did. * His employers and a respected member of the community, Dr. Steven M. Partyka, say Mr. Holland has turned a new leaf. He was unreliable before the last incident. Now, he seems to be turning his life around. They say he should be given a chance. E. Aggravating factors [ 22 ] Balanced against these factors are serious aggravating ones which work to increase his sentence.

The aggravating factors are: * On January 1, Mr. Holland’s blood alcohol level was just under twice the legal limit; * He had been convicted of impaired driving only four months previously; * On January 17, he was extremely drunk; * He was free on bail following the January 1 incident; * After he hit the Jeep the first time, he left the scene; * He continued to drive around, and he hit the Jeep again; * His victim was a young child; * His victim was seriously injured; * He left the scene without stopping to help; * The incident had a serious emotional impact on the child and his parents; * This is Mr.

Holland’s second and third drunk driving offences within 4.5 months. [ 23 ] I have considered and weighed all these things. F. Canadian Victims Bill of Rights [ 24 ] Victims of crime have the right to be heard in court6. They may read out loud, or the Crown may file a Victim Impact Statement. These statements bring to life the real effect crime has on peoples’ lives. One cannot judge a crime without understanding how its victims were hurt. These statements help ensure victims are not ignored during the sentencing process.

The Crown obtained one Victim Impact Statement. [ 25 ] At the court’s invitation, the victim’s father read aloud his family’s Victim Impact Statement. I will not embarrass the family by going into detail. Suffice to say, the incident had a serious emotional and financial impact. It was three months before his son’s injuries healed. His son remains fearful of all-terrain vehicles. IV. SENTENCE [ 26 ] Mr. Holland must be separated from the community for these serious offences. A jail term is consistent with traditional Inuit justice.

When a person threatened the traditional group’s safety and security, that person could be, and sometimes was, banished. Many were welcomed later back into the group. Forgiveness, reconciliation, reintegration and restitution were, and are still, key concepts of Inuit justice. As they are in the Nunavut Court of Justice.

[ 27 ] Mr. Holland was very intoxicated during both incidents. A young child was seriously injured. He bears an extremely high moral culpability. He is a participant in the modern wage economy. [ 28 ] I will deal with the sentences for each offence in turn. A. January 1, 2016: impaired driving – 235(1)(

b) and driving while prohibited – s 259(4) [ 29 ] I sentence Mr. Holland to forty-five days in jail for impaired driving, and thirty days in jail for driving while prohibited. This is his second conviction for breaching a court order in one year and a half. Therefore, the sentences are consecutive; that means they shall be served one after the other. B. January 17, 2016: impaired driving causing bodily harm – s 255(2) and driving while prohibited – s 259(4) [ 30 ] August 25, 2015, is the appropriate starting point for analysis.

From this viewpoint, we see the full magnitude of the relevant circumstances. [ 31 ] On August 25, 2015, Mr. Holland was convicted of drunk driving. He was fined the minimum $1,300. The court took away his driving privilege for one year. Only four months later, he ignored the court order. He drove again while drunk. He put his own life and that of others at risk. He was arrested, charged and released on bail. His blood alcohol level was just under twice the legal limit. Just over two weeks later, he ignored the court order again. He drove around Happy Valley drunk. In fact, he was extremely drunk.

He told police later, he had never been that drunk before. He struck the Jeep and left the scene. He did not decide to stop driving. He drove back to the area. He hit the Jeep again, this time seriously injuring the child. He again immediately left the scene, without stopping to help. This is Mr. Holland’s third conviction for breaching a court order. [ 32 ] In these circumstances, considering case-law and the objectives of sentencing, the parties’ recommendations fall short of a just and proper sentence. They are not proportional to the seriousness of the offences, or to Mr.

Holland’s very high moral blameworthiness. The sentence must be significantly higher. [ 33 ] The appropriate sentence, therefore, is twenty months, or 600 days, for the impaired driving causing bodily harm, and sixty days of jail for driving while prohibited. These sentences are consecutive to each other, and consecutive to the seventy-five-day sentence imposed for the January 1 offence. The total sentence, then, before ‘totality’ and other credits is 735 days in jail. This would be a federal sentence. C.

The ‘totality’ principle [ 34 ] I must now consider whether the two sentences taken together reflect the ‘totality’ principle. The final sentence I impose must not exceed Mr. Holland’s overall culpability. In these circumstances, it would not serve the objectives of sentencing to send Mr. Holland to a federal penitentiary. Nor is it necessary to send him to a federal penitentiary to further his rehabilitation.

This is a case where it would not be just simply to add up the sentences. [ 35 ] I must lower the effective sentence to reflect ‘totality.’ Therefore, I reduce the sentence for the January 17 impaired driving causing bodily harm offence to eighteen months, or 540 days. I reduce the sentence for driving while prohibited to thirty-days in jail.

The global, or total, sentence, therefore, considering ‘totality’ is 645 days in territorial jail. [ 36 ] This sentence is well within the range covered by the cases submitted by Defence counsel. [ 37 ] I must now turn to how this sentence of 645 days is affected by the guilty plea, the Charter breach by the police, and the credit for pre-sentence custody. D. The effect of the guilty plea

[ 38 ] This court always gives meaningful credit to offenders who take early responsibility for their crimes. At the hearing on December 8, Mr. Holland appeared to express sincere regret. He apologized to the victim and the victim’s parents who were in court too. He says he is working hard on staying sober. The prosecution avoids having to prove its two cases at trial. Witnesses do not have to come to court. Our overloaded dockets do not have to accommodate a trial. Mr. Holland’s sentence is reduced, therefore, by ninety days. E. The effect of the breach of Holland’s Charter rights by the police [ 39 ] Mr.

Holland’s lawyer says I should reduce his sentence. She says that would be fair because the police breached his Charter rights. The prosecutor does not agree. He says the police committed only a minor, “technical” breach. The sentence, he says, should not be affected. (i). The evidence [ 40 ] Cpl. Dunphy testified. She had only a vague memory of the incident. Her evidence was inconsistent. She said at first, she responded to a call at a certain address. She was asked by the prosecutor to refresh her memory from her notes. She then admitted she got the address wrong. She said she was told Mr.

Holland was inside and “arrestable”. She could not remember who told her. She could not remember whether she was told over police radio, or her cell phone. She was asked about the chase into the house. First, she said Mr. Holland ran back inside. Then, she said he walked back in. Then she said he went “faster than a walk”. Then she said, “I honestly don’t remember how fast he went”. As to what happened inside, she said only there was a “struggle”. Her attitude in giving evidence was cavalier. Her evidence was not reliable. [ 41 ] Cst. Kerstens testified by telephone.

He has been in the Royal Canadian Mounted Police for four years. He said he had only a “minimal role” that day - that of watching Mr. Holland’s ATV as evidence. He said he was staked outside Mr. Holland’s house for about eight hours. He observed Mr. Holland several times through a window. Mr. Holland taunted him once from inside. Mr. Holland went outside at about 8:21 p.m. He let out his dog and lit a cigarette. Cst. Kerstens said Mr. Holland was standing on his top step. Mr. Holland was “very close” to the inside of the front cold porch of his home. [ 42 ] Cpl. Dunphy insisted Mr.

Holland had come right down the stairs onto his driveway. I accept Cst. Kerstens’ evidence that Mr. Holland went no further than the top of his front step, and that he was very near his open front door. [ 43 ] When Mr. Holland came out, Cst. Kerstens said he was about ten feet away. He said he told Mr. Holland he was under arrest. Mr. Holland became agitated and began to yell. He yelled “fuck you” at Cst. Kerstens. He ran back inside. Cst. Kerstens gave chase. [ 44 ] Cst. Kerstens said he was still on the steps outside as Mr. Holland closed his outside door. Cpl. Dunphy claimed “we were right behind him” as Mr.

Holland got to his front door. I accept Cst. Kerstens’ evidence as reliable on this point. [ 45 ] Cst. Kerstens continued his pursuit. He kicked the outside door open. He then carried right on and kicked and opened the interior door. He then carried on at a “fairly rapid pace” and immediately put Mr. Holland in a “C-clamp”. He put Mr. Holland up against the hall wall. Mr. Holland resisted. They struggled. Cst. Kerstens put Mr. Holland in a standing headlock. Mr. Holland continued to resist. Cst. Kerstens then used a “pain compliance technique”. He pulled Mr.

Holland’s left arm at a ninety-degree angle behind his back. He never mentioned what Cpl. Dunphy was doing, apart from taking the cigarette out of Mr. Holland’s mouth. [ 46 ] Each police officer said they knew they were not allowed to go into Mr. Holland’s house without a warrant. Cpl. Dunphy said she was told an arrest warrant was being prepared to permit them to enter the home to arrest Mr. Holland. She and Cst. Kerstens staked out the house between five to eight hours; the evidence on this point was confusing. Cst. Kerstens was in contact with his corporal and the investigators throughout that time.

It is inconceivable that Cpl. Dunphy did not tell Cst. Kerstens that an arrest warrant was being prepared. It is inconceivable that Cst. Kerstens did not know the arrest warrant was being prepared. Each witness said they believed they had the right to chase Mr. Holland inside without an arrest warrant. (iii). Charter breach Analysis [ 47 ] Society needs laws. Society also needs to be able to enforce those laws. We could not live in community without laws, and our police. Our free and democratic society also needs independent courts. Our courts settle disputes. Our courts protect our rights and our liberties.

The decisions our judges make help to maintain public peace.

[ 48 ] Our police are our first line of defence against disorder and lawlessness. We expect our police to place their lives and safety on the line every day. We expect our police to deal with dangerous and difficult situations. We expect our police to make difficult judgment calls in fast-moving and sometimes volatile situations. Everyone can and does make mistakes. Our police are human just like us; so, we do not expect them to be perfect. [ 49 ] We entrust our police with extraordinary authority and power. As well as special protections. Our police are trained in the criminal law they are sworn to uphold.

They are trained specifically on how to deal with difficult people and situations. In return, we expect our police to uphold the law, not to break it. [ 50 ] Nunavummiut expect just consequences when someone breaks the law. Our police are not exempt from that expectation. These consequences must be meaningful lest the lesson be ignored, or forgotten. [ 51 ] This case is troubling. The Crown acknowledges the police violated Holland’s Charter rights. And let us be clear - the Charter protects each and every one of us; whether or not we are suspected of having broken the law. In asserting Mr.

Holland’s rights, this court defends the rights and liberties of all its citizens. It has raised a serious issue for this court and for all Nunavummiut. When can a police officer legally enter your home and arrest you? Deprive you of your liberty? Put you in police cells? [ 52 ] There is nothing more basic in our police officer’s tool kit than the power to arrest a suspect. It is as basic as his or her uniform, badge, and side arm. The Crown did not call any evidence concerning police training.

Despite that lack of information, I cannot accept that any Canadian police officer does not understand the limits on their power to arrest. It is the simplest and most basic concept our police must learn. [ 53 ] Our laws of arrest are crystal clear. [ 54 ] A person may be arrested by a police officer if they are caught committing an indictable offence. Or, a person may be arrested if the police officer has reasonable grounds to believe that the person committed an indictable offence.7 In either case, a lawful arrest has two parts. First, the police officer must tell the person he is under arrest.

Second, the police officer must take hold of, or at least touch, the person during the arrest. [ 55 ] Our law is also crystal clear that a police officer may not go into a person’s home without an arrest warrant. These warrants are called Feeney warrants. Feeney was the suspect in the case that established this law.8 That arrest warrant must be issued by a judicial officer. The judicial officer is involved to make sure our police have lawful reasons to go into someone’s home. In our democracy, that is a healthy and necessary check on the use of police authority. [ 56 ] There are only two exceptions.

First, if someone inside the house is in imminent danger of harm. The law calls that “exigent circumstances”.9 Here, police officers do not have to wait for a warrant. If they did, it might be too late for the person in trouble. In Mr. Holland’s case, no one was in immediate danger. Exigent circumstances as an explanation for what the police did are not available here. [ 57 ] The second exception happens when the policer officer has been chasing the person, and the person flees into their home.

Generally, but not always, this happens when the suspect is fleeing the scene of the crime to avoid capture, and possibly, his identification. This is called “hot or fresh pursuit”. Cpl. Dunphy and Cst. Kerstens claim they were in “hot pursuit” when they forced their way into Mr. Holland’s home. However, this is not what happened. [ 58 ] Cpl. Dunphy and Cst. Kerstens were not actively chasing Mr. Holland who then fled to, and into, his home. They had been patiently staking out Mr. Holland’s home. For at least five, long, and doubtless tedious, hours. They knew he was inside. Mr.

Holland made direct eye contact with Cst. Kerstens several times. They were hoping he would leave so they could arrest him. At least once, Mr. Holland had taunted them from his window. But they were powerless to act - at least until the Feeney warrant arrived. The court was never told why the Feeney warrant never came. There was no other suspect. [ 59 ] Mr. Holland eventually stepped just outside, and let out his dog. He lit a cigarette. Cst. Kerstens decided to act. He called out from a distance that Mr. Holland was under arrest. Mr. Holland yelled “fuck you”. Mr.

Holland immediately turned, and went right back inside. Cst. Kerstens decided to chase after him although there was no way he could make up the distance. Mr. Holland was inside his home before Cst. Kerstens was even up the steps. The opportunity to arrest Mr. Holland lawfully was lost.

[ 60 ] Instead of stopping at the door, Cst. Kerstens decided to kick his way inside. Through not one, but two doors. According to his evidence, when Cst. Kerstens got inside, Mr. Holland was standing facing him. Mr. Holland was not moving. His arms were at his side. He was not doing or saying anything - just standing there, unarmed, with no weapons in sight. Officer safety concerns did not justify what happened. The constable did not try to deescalate the situation. The constable immediately grabbed Mr. Holland and put him against the wall. In a “C-clamp”. Then a headlock.

Then he used a “pain compliance technique”. In doing so, in these circumstances, Cst. Kerstens assaulted Mr. Holland. Assault is a crime. [ 61 ] Why did this happen? The answer is found in Cpl. Dunphy’s evidence. She was asked why she chased Mr. Holland, and why she didn’t call for the warrant. She replied: “In the heat of the … when all that was happening, no that wasn’t … that wasn’t an option”. Cpl. Dunphy had started to say “in the heat of the moment”, but she caught herself. [ 62 ] This incident happened because the police lost their cool and acted in the heat of the moment. Cst.

Kerstens reacted angrily when Mr. Holland yelled “fuck you” at him after the earlier taunt. Cst. Kerstens lost his cool. He ignored his training. He acted without legal authority. He is accountable, even if he believed he acted in good faith. [ 63 ] When Cst. Kerstens ran after Holland, Cpl. Dunphy should have exercised her authority. She ought to have ordered the junior constable to stop. She failed in her duty to do so. Instead of restraining her colleague, she followed the junior constable inside. She helped Cst. Kerstens subdue Mr. Holland who was rightfully defending himself. By assisting Cst.

Kerstens subdue Mr. Holland unlawfully, Cpl. Dunphy also committed an assault. She, too, is accountable. [ 64 ] As I said earlier, our law is crystal clear. Police may only enter a person’s house without a warrant in two situations: if someone’s safety is in peril, or if they are in hot pursuit. The only hot pursuit on January 17 was the pursuit by a constable who was hot under the collar, and by his supervisor who claims she did not understand the law. [ 65 ] This illegal forced entry into Mr. Holland’s home, and unprovoked assault, are extremely serious breaches of Mr. Holland’s Charter rights.

In our free and democratic society, these illegal acts undermine our trust in our police. It taints all our police officers. This court cannot turn a blind eye. These breaches must be sanctioned in a meaningful way. The question, then, becomes what is a fair and meaningful remedy? [ 66 ] The Supreme Court of Canada has explained the law I must apply. In 2010, all nine justices issued a unanimous judgment. That case is R v Nasogaluak10. A judge may use sentencing principles to denounce police misconduct. Where, as here, that misconduct related directly to Mr.

Holland as their suspect, it works to lessen his sentence. It becomes a mitigating factor I must consider and apply in a meaningful way. The sentence reduction must reflect this serious violation of the law by Cpl. Dunphy and Cst. Kerstens. [ 67 ] The court, therefore, reduces Mr. Holland’s sentence further by five months, or 150 days. F. Credit for remand custody [ 68 ] Our law says offenders get enhanced credit for remand time. The credit recognizes the harsh conditions of remand. Mr. Holland has spent sixty-four days in pre-sentence custody. Our law says that is equivalent to ninety-six days. Mr.

Holland, then, receives ninety-six days of credit which I subtract from his sentence. [ 69 ] Stand up, please Mr. Holland. Your sentence of 645 days in jail is reduced by 336 days because of your guilty plea, the police misconduct, and the remand credit. You will serve a further 309 days in territorial jail. G. Probation order [ 70 ] The jail term will be followed by probation for eighteen months. Mr. Holland, you will: * Report to the local probation office within two business days of your release from jail, and thereafter as directed;

* Take assessment, counselling, and treatment as directed by your probation officer for substance abuse; * Have no contact or communication with the victim and his parents; * Stay away always from the victims’ home; * Not possess or consume alcohol, or attend any establishment licensed to sell alcohol; * Perform sixty hours of community service within twelve months of completing your jail term.

This community service work is anopportunity for you to be seen making a positive contribution to our community. [71] I urge you to take advantage of the probation period to deal with your alcohol abuse problems, and to heal. Make no mistake, it willbe a lifelong struggle. You can be a good father, and a contributing member of society. H. Ancillary orders [72] The Criminal Code provides for various ancillary, or related, orders. I impose the following orders: [73] Mr. Holland is prohibited from driving anywhere in Canada for four years -Criminal Code s 259. (1)(c). [74] While he is jailed, Mr.

Holland may not communicate with his victim or his family – Criminal Code s 743.21. The Crown willprepare the Order. [75] The Criminal Code requires a Victim Fine Surcharge for each offence. The Crown proceeded by

summary conviction for the twoJanuary 1, 2016, offences. Each crime requires a $100.00 Victim Fine Surcharge, or $200. The January 17, 2016 charges are indictable.Each one of those two crimes require a $200.00 Victim Fine Surcharge, or $400. Mr. Holland must pay that $600.00 within one year ofhis release from jail (Criminal Code s 737). Dated at the City of Iqaluit this 3rd day of February, 2017 ___________________ Justice Paul Bychok Nunavut Court of Justice 1

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 2 RSC 1985, c C-46 3 Criminal Code, s. 718 4 R v Gladue, (SCC), [1999] SCJ No 19, [1999] 1 SCR 688 (QL) 5 R v Mikijuk, 2017 NUCJ 2 , 2017 NUCJ 02

6 Canadian Victims Bill of Rights, SC 2015, c 13, s 2 7 Criminal Code, s 495 8 R v Feeney, (SCC), [1997] 2 SCR 13, 115 CCC (3d) 129 9 Criminal Code, s 529.3 10 2010 SCC 6, [2010] 1 SCR --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2