R. v. Ejetsiak, 2020 NUCJ 23

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ejetsiak , 2020 NUCJ 23 Date: 20200511 Docket: 08-17-580 Registry: Iqaluit Crown: Her Majesty the Queen -and- Respondent: Eetooloo Ejetsiak ________________________________________________________________________ Before: Madam Justice Tulloch Counsel (Applicant): G. Magee Counsel (Respondent): M. Manocchio Location Heard: Iqaluit, Nunavut Date Heard: May 1, 2020 Matters: Designation of the offender as a long-term offender under

section 753.1(1) of the Criminal Code , RSC 1985, c C-46 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Table of Contents I. INTRODUCTION .. 3 II. THE PREDICATE OFFENCES . 4 III.

SUMMARY OF ACCUSED’S CRIMINAL HISTORY .. 6 IV. PSYCHIATRIC ASSESSMENTS . 6 V. PERSONAL BACKGROUND OF THE ACCUSED .. 8 VI. POSITIONS OF THE PARTIES . 10 A. Submissions by the Crown . 10 B. Submissions by Defence counsel 15 VII. ANALYSIS . 18 VIII. SENTENCE .. 24 I. INTRODUCTION [ 1 ] On December 29, 2017, Eetooloo Ejetsiak was charged with six offences.

He was arrested on January 5, 2018 and has been in custody since that date. [ 2 ] Eventually, the Crown proceeded by indictment and the accused pled not guilty to all six charges on the information. [ 3 ] It was not until almost a year later, on December 12, 2018 that Eetooloo was convicted, after trial, of assault causing bodily harm pursuant to

section 267 (

b) of the Criminal Code and a breach of peace bond pursuant to

section 811 of the Criminal Code . [ 4 ] He was not convicted of the remaining four charges. [ 5 ] On that date the Crown advised the court that they would be seeking a dangerous offender designation and asked for an adjournment to make an application for an assessment pursuant to

section 752.1 of the Criminal Code . [ 6 ] The court granted the application and an assessment report, authored by Dr. Philip E. Klassen was received on July 26, 2019. [ 7 ] Dr. Klassen reported that Mr. Ejetsiak chose not to participate in the assessment on the advice of his counsel. Accordingly, the doctor prepared his report based only on file material provided to him by the Crown. That material contained the following information: a

summary of the documentary evidence regarding the accused’s history of criminal charges and convictions, information obtained from Baffin Correctional Centre, Northwest Territories jail records, Parole Board of Canada records and Correctional Services of Canada records.

[ 8 ] There were many adjournments following the receipt of the assessment for a variety of reasons. [ 9 ] Given the fact that Mr. Ejetsiak’s original counsel was unavailable, he had problems instructing and retaining another lawyer. Subsequently, for a large amount of time he was unrepresented.

There were times when he chose not to attend court when he was required to do so and the court was reluctant to set a date for this complicated and serious hearing without counsel. [ 10 ] The court reached out to the Legal Services Board to ask that counsel be assigned as amicus if necessary and counsel was finally retained by Mr. Ejetsiak. Once that happened case management meetings were convened and the matter moved as quickly as possible towards resolution. [ 11 ] Prior to the hearing, an agreement was reached after considerable discussion between counsel, to ask the court to declare Mr.

Ejetsiak a long-term offender pursuant to

Part XXIV of the Criminal Code . [ 12 ] In doing so, counsel agreed that the accused’s conviction after trial for assault causing bodily harm constituted a “serious personal injury offence” pursuant to

section 752 of the Criminal Code . [ 13 ] They agreed that it would be appropriate to sentence Mr. Ejetsiak to more than two years imprisonment for that offence and they agreed that although there is a substantial risk that Mr. Ejetsiak will reoffend, there is at least a reasonable possibility that the risk presented by the accused could eventually be controlled in the community. [ 14 ] Following this agreement and upon my review of the large amount of materials filed and the able submissions of counsel I have no difficulty finding that Eetooloo Ejetsiak meets the criteria necessary for designation as a long-term offender pursuant to

section 753.1(1) of the Criminal Code . [ 15 ] Accordingly, I hereby declare Mr. Ejetsiak a long-term offender. [ 16 ] Crown and Defence disagree both on the length of sentence to be imposed for the predicate offences and the length of time to be attributed to the long-term supervision order to follow. II. THE PREDICATE OFFENCES [ 17 ] Mr.

Ejetsiak’s conviction for assault causing bodily harm is based on the following facts found after trial. [ 18 ] The victim, Mosesee Nakashook, and the accused, Eetooloo Ejetsiak, grew up together and were long-time friends. [ 19 ] On December 29, 2017, 12 days after the accused was released from custody he went to the victim’s house and was invited inside. [ 20 ] Prior to his arrival, the accused met two other friends and the three of them made plans to meet up at Mr. Nakashook’s house to drink. Eetooloo arrived first and was the last to leave. [ 21 ] At first everything was fine.

The four men were sharing the weed that Mr. Ejetsiak brought with him and the beer and wine that the other two friends had purchased. All of them were toking marijuana by heating up butter knives on the stove and then taking shots of the heated marijuana from the knives. The term used to describe this was “stove-toking”.

[ 22 ] At some point the other two men left and Mr. Ejetsiak and Mr. Nakashook were left alone. The two of them continued to stove- toke and they took turns taking what they referred to as shots of marijuana. [ 23 ] Out of the blue, with no notice or provocation Eetooloo noticed a roll of black tape on the victim’s counter which he used to tape Mosesee’s mouth. The victim thought this was a joke and he removed the tape and asked for another toke or shot which was provided to him. [ 24 ] Again, for no identifiable reason, the accused taped his friend’s mouth and eyes.

Eetooloo then proceeded to burn Mosesee with the hot knife. The burning was mostly to his hands but he also burned the side of the victim’s head and his neck. This happened six or seven times. [ 25 ] The victim was eventually able to remove the tape for the second time and asked for another shot which was provided to him. A short time later when it was the accused’s turn to take a shot and his back was turned, the victim was able to escape.

Mosesee went directly to the police even though Eetooloo had told him not to call the cops. [ 26 ] Some time later seven photographs were taken by the police depicting Mosesee’s injuries. They showed burn marks to his hands, neck and head which were scabbed over and in the process of healing. [ 27 ] Following trial, Mr. Ejetsiak conceded that he had breached his

section 810.2 peace bond by not abstaining from the consumption of any intoxicating substances. He admitted that he had been drinking and toking marijuana when he was prohibited from doing so and therefore was also convicted of that breach. III.

SUMMARY OF ACCUSED’S CRIMINAL HISTORY [ 28 ] Mr. Ejetsiak’s criminal convictions began in 1984. As a youth he committed four property related offences. [ 29 ] In 1988 he received his first adult sentence.

He was convicted of assault with a weapon which was his first crime of violence. [ 30 ] Since then Eetooloo has amassed over 130 criminal convictions. [ 31 ] He has spent most of his adult life in jail. [ 32 ] His lengthy and substantial criminal record contains many breaches of court orders, a large number of threatening charges, charges involving spousal violence, charges against police officers and other violent offences. [ 33 ] The only significant gaps in his criminal record come when he is detained in custody. [ 34 ] Eetooloo has completed two penitentiary sentences whereby he was held until his warrant expiry date. [ 35 ] The accused’s time in custody has not been good.

His behaviour has generally been terrible while in jail. [ 36 ] The documents received from the various institutions where Eetooloo has resided confirm a large number of institutional offences.

[ 37 ] Dr. Klassen reviewed those records, and he counted 249 misconducts while the accused was detained in custody. [ 38 ] Eetooloo Ejetsiak has been identified as a violent inmate with suicidal tendencies who requires careful monitoring. [ 39 ] His difficulty with anger control has been well documented while in jail. His disrespect for authority and mistrust of people make him easily agitated and aggressive with everyone he comes into contact. IV. PSYCHIATRIC ASSESSMENTS [ 40 ] Two separate assessments were ordered by the court and completed by Dr. Philip E. Klassen. [ 41 ] I start by stating that Dr.

Klassen’s credentials, knowledge and experience are beyond question in the field of psychiatry. He has testified in many cases throughout Nunavut. There is no question as to his expertise and no issues were raised in this case. [ 42 ] Dr. Klassen conducted two separate psychiatric assessments involving Mr. Ejetsiak. The first one in 2004 was focussed on his criminal responsibility and fitness to stand trial. [ 43 ] In preparation the doctor met with the accused who was living in Iqaluit at the time with an unsupportive sister. Mr. Ejetsiak was very reluctant to talk about his childhood and kept telling Dr.

Klassen that he wished he was in heaven. He was described as angry, hostile and tense in his dealings at that time with the doctor. When asked about his future, the accused said he would be behind bars or in heaven or in hell. [ 44 ] Dr.

Klassen found that the accused did not suffer from any major mental illness and that he was both fit to stand trial and criminally responsible for his actions. [ 45 ] The doctor also commented that, at that time, it was possible that the accused could be suffering from complex post traumatic stress disorder. [ 46 ] A second assessment was ordered by the court prior to this hearing. In preparation Dr. Klassen requested to meet with Mr. Ejetsiak who respectfully declined to participate in any way on the advice of his lawyer. [ 47 ] Accordingly, Dr.

Klassen proceeded based solely on documentation provided to him. [ 48 ] His second assessment report dated July 26, 2019 bases its findings of significant risk to the public when released from custody on the accused’s serious and lengthy criminal record and his prior bad behaviour while in custody. [ 49 ] The notes reviewed from the jails confirm that there were many instances where Mr. Ejetsiak became agitated and where he was intimidating towards other inmates and staff. As I said previously, Dr. Klassen identified 249 misconducts while Eetooloo was in custody. [ 50 ] From the documentation, Dr.

Klassen concludes that Mr. Ejetsiak is at a very high risk for recidivism and that he poses a significant risk of harm to the public. [ 51 ] He notes that the accused has limited insight into his behavior and little empathy for his victims.

[ 52 ] Dr. Klassen also notes that Mr. Ejetsiak was expelled from a well known and respected residential treatment centre in Ottawa known as Mamisarvik. He was kicked out of the program for threatening staff in 2003. [ 53 ] Multiple suicide attempts were also noted in 2015. [ 54 ] Based on the documents at his disposal, Dr.Klassen concludes that there is a low chance of Eetooloo’s risk being controlled in the community. V. PERSONAL BACKGROUND OF THE ACCUSED [ 55 ] Mr.

Ejetsiak is an individual who has had an absolutely horrific history as a child and later as a young adult. [ 56 ] I realize that talking yet again about the terrible events that make up his past causes Eetooloo a great deal of anguish but I also know that any sentence or long-term supervision order that I impose today must carefully take into account his personal, specific and unique background. [ 57 ] Mr. Ejetsiak had 12 siblings; eight sisters and four brothers.

His mother and father fought and drank throughout his early childhood. [ 58 ] Eetooloo started being physically abused by his siblings and his father at age eight. In the early years Eetooloo ran away from home because he was scared on at least four occasions.

Eventually his mother would look for him through the radio. [ 59 ] One of his brothers was killed in a motor vehicle accident when he was eight or nine. [ 60 ] At age ten or 11 Eetooloo stopped getting beaten up but it was at this time that he started committing crimes with his friends. [ 61 ] He was abusing both solvents and alcohol at an early age and when not in custody, he continued to use them to excess. [ 62 ] At a young age Eetooloo was kicked out of the house and eventually went into foster care. [ 63 ] At age 13, he was sent to a foster home in Apex for two years and after that he went to jail and kept going to jail. [ 64 ] Mr.

Ejetsiak’s father died of lung cancer when he was 13 and around the same time he was targeted and sexually abused for a significant period of time by a teacher who has been identified as one of the worst pedophiles in Nunavut’s history. [ 65 ] In 1986 his mother and one of his brothers were violently murdered. He was 16 at the time. This court and the community are well aware of this event. During the sentencing hearing I conducted in 2015, I made the following comments which expand on what Defence counsel said in her submissions during this hearing.

I think the extra context is important and provide the comments I made five years ago for that purpose. I quote from tab ten, pages 73 and 74 of the Book of Transcripts as follows: His mother and brother were brutally murdered leaving a very ugly legacy for his entire family. The part of town where they used to live is still called “Slaughter Hill” to this day. The murders took place November 1, 1986. An officer who reviewed the file advised that just

reviewing the file was enough to give anyone Post Traumatic Stress Disorder. In 2003, CTV made a movie based on the murder. The movie was shown on TV and it understandably bothered the entire Ejetsiak family a great deal. Mr. Ejetsiak’s sister tried unsuccessfully to stop the movie from being released. All members of the Ejetsiak family live with the memory of what happened and being reminded and having it made public was like throwing salt in an open wound. [ 66 ] Mr.

Ejetsiak has attempted suicide at least twice and he has exhibited suicidal tendencies on a number of occasions over the years. [ 67 ] It has been reported that the accused’s first spouse shot herself in front of their child. VI. POSITIONS OF THE PARTIES A. Submissions by the Crown [ 68 ] The accused has been in custody since January 5, 2018 which is approximately 27 and one half months of real time in jail while waiting to be sentenced on these offences.

If I find that he is entitled to enhanced credit at the rate of 1.5 days for every day spent in custody, the total time in jail, including pretrial custody is approximately three and one half years. [ 69 ] The Crown submits that a further period of custody of four years is warranted after taking into account the time he has already spent in jail on an enhanced basis.

This means that the Crown is asking me to impose a total global sentence of seven and one half years for the predicate offences. [ 70 ] It is also the Crown’s position that a long-term supervision order of ten years to follow is necessary to fulfil the overall purpose of sentencing in this particular case for this particular offender. [ 71 ] The Crown concedes that this is not a typical sentence for these offences but submits that it is an appropriate one, taking into account the overall purpose of

Part XXIV of the Criminal Code where the risk to the public and the protection of the public is of paramount importance. [ 72 ] Counsel argued that the primary objective of public safety is sufficient to warrant sentencing dispositions beyond those ordinarily available for the predicate offences pursuant to section 753(4) (

b) of the Criminal Code . [ 73 ] The Crown provided a number of cases where the court found that preventative detention was justified for long-term offenders and he submitted that this was one of those cases. [ 74 ] The Court of Appeal of Ontario in the case of R. v. Spilman , 2018 ONCA 551 imposed a ten-year sentence for assault causing bodily harm followed by a long-term supervision order for a further ten years.

Paragraph 32 states: As I will explain, I am satisfied that in determining the length of the fixed custodial component of a composite sentence under s. 753(4) (b), the hearing judge is not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offence but in the absence of a dangerous offender designation. The hearing judge must take into account the statutory limits of the offence for which sentence is being imposed, the paramount purpose of public protection under

Part XXIV, and other applicable sentencing principles under ss. 718 to 718.2. This analysis may justify fixed term sentences lengthier than those appropriate outside the dangerous offender context.

[ 75 ] In the same case Justice Watt determined that one of the considerations appropriate for the sentencing judge to take into account is the accused’s access to programming. [ 76 ] Justice Watt indicated at paragraph 54 of the decision in Spilman that: The length of sentence imposed must be responsive to evidence adduced at the hearing.

The evidence about treatment programs should be specific, preferably indicating an approximate length or range of time within which the offender may be expected to complete the programming said to be necessary to protect the public. [ 77 ] The Crown argues that this is a case where no specific plan for treatment has been identified. Accordingly, there is no evidence before the court as to how long it would take to complete such programs. The time and success of any programs undertaken by Mr.

Ejetsiak will depend on his commitment which has, the Crown submits, been lacking in the past. [ 78 ] The evidence is that Eetooloo made no real progress in programs made available to him during his first penitentiary sentence and the same is true with respect to his second penitentiary term. It was identified by the institution that the accused required a significant period of treatment in a highly structured environment.

Further, it was noted that he was unable to succeed in a group environment and that he required one on one attention. [ 79 ] A number of cases were filed in support of the Crown’s position and they were referred to both with respect to their similarities and their differences. Defence counsel also referred to three additional cases. [ 80 ] The Crown also filed, on consent, a book of documents which includes the following: • Mr. Ejetsiak’s criminal record; • Two psychiatric assessments completed by Dr. Klassen. The first one was dated June 18, 2004. It was determined at that time that Mr.

Ejetsiak was fit to stand trial and he was criminally responsible for his actions. The second one was dated July 26, 2019 [15 years later] in preparation for this hearing; • E-mail correspondence between Dr. Klassen and the Crown prosecutor; • E-mail correspondence between Correctional Service Canada and the Crown prosecutor; • Information from the Correctional Service of Canada and the Parole Board of Canada from 2011 to 2013 during Mr. Ejetsiak’s first penitentiary term; and • Information from the Correctional Service of Canada and the Parole Board of Canada from 2015 to 2017 during Mr.

Ejetsiak’s second penitentiary term. [ 81 ] The Crown also filed a book of transcripts outlining the offences for which Mr. Ejetsiak was convicted. It was noted that there were a number of convictions where transcripts were not available. [ 82 ] Based on the material filed, the Crown argued strongly that treatment needs to be completed before the accused can be released on a long-term offender supervision order and that commencing treatment requires the intensive structure only available in the penitentiary. [ 83 ] It is abundantly clear that Mr. Ejetsiak has been in court over and over again.

He has spent most of his life in jail. [ 84 ] As evidenced by transcripts provided from Eetooloo’s many convictions, the accused’s horrendous personal circumstances have been taken into account to support somewhat lower sentences for repeat offences. Although he was given many chances and was pointed to a number of programs, he continued to re-offend. [ 85 ] Dr. Klassen’s assessment in 2004 identified some treatment programs that he felt might be helpful but by the time of his second assessment, he concludes that no significant treatment had taken place.

[ 86 ] On page 39 of his report dated July 26, 2019 Dr. Klassen indicates that the accused may benefit from further psychological treatment. He says that there have been numerous efforts at treatment which have, thus far, not been successful in spite of the accused’s indication that he needs help. [ 87 ] On page 36 of Dr. Klassen’s report he notes that the accused’s score was 31 out of a possible 40, using what he refers to as the PCL-R risk assessment tool.

This high score suggests significant difficulties with general and violent recidivism and challenges with respect to treatment and community supervision. [ 88 ] The Crown submits that imminent risk is very much a live issue based on Dr. Klassen’s findings. [ 89 ] That being said, the convictions overall suggest a moderate degree of violence. [ 90 ] The Crown asked Dr. Klassen a number of questions that have been included in the documents submitted at this hearing. One related to whether or not Mr. Ejetsiak’s risk to reoffend would be reduced with advanced age.

The doctor indicated that although the reduction cannot be quantified, age would be a factor and it could reduce the risk in the future. [ 91 ] Although Dr. Klassen took no position on whether Mr. Ejetsiak should be declared a dangerous offender or a long-term offender, he did say that he would be a high risk release. He based this on the facts before him. Eetooloo’s success at treatment throughout has been poor and his behaviour terrible. [ 92 ] Tab 9 in the Book of Transcripts filed as exhibit #1 sets out the proceedings of Mr. Ejetsiak’s conviction which resulted in his first penitentiary sentence.

In May of 2011, the accused pled guilty to assault causing bodily harm on Mosesee Nakashook. He broke the victim’s elbow with a metal bar. He blamed the victim for this offence and showed no remorse for his actions. [ 93 ] This is the same victim and the same offence as is present in the predicate offence for which sentence must be imposed today. [ 94 ] At tab 7 in the Book of Documents filed as exhibit #2 in these proceedings, Mr. Ejetsiak was accepted into the High Intensity Violence Prevention Program at Kingston Penitentiary. He was subsequently suspended from the program.

The report indicates that although he maintained that he wanted the program, his actions and behaviours demonstrated otherwise. [ 95 ] Later the report indicated that anger and emotional control is a significant risk factor for violence for Mr. Ejetsiak and his level of need in that area is high. He did not remain in the program long enough to address this need and it is necessary for him to expand his ability to control his anger and emotions in any future programs. [ 96 ] At tab 10 in the Book of Documents, the Parole Board of Canada determines in April of 2013 that Mr.

Ejetsiak’s further detention is warranted. The accused’s risk to reoffend was not mitigated in any way. [ 97 ] At tab 12, Mr. Ejetsiak met with Peter Irniq, an Inuk elder from Nunavut. The report from Mr. Irniq dated July 15, 2015 is very positive. It was a positive review whereby the accused planned to take a number of programs while in jail and proposed to work hard once he was released from custody and back in the community. Unfortunately though he did not follow through with those plans. [ 98 ] At tab 13 is a report dated April 18, 2016.

In that report made by a mental health nurse the accused’s plans for the future were not good and totally inappropriate. Mr. Ejetsiak told the nurse the following: “When I get out I will get drunk first and then smoke weed, lots of it.” [ 99 ] The Crown submits that not only did Mr. Ejetsiak say that to the nurse at the institution but that is, in fact, just what he did when he got out of jail. The facts of the predicate offence which occurs shortly after his release involve drinking and drugs.

[ 100 ] At tab 16 there is an observation report dated November 27, 2017 whereby Mr. Ejetsiak made inappropriate sexual comments towards a female caseworker two weeks before he was scheduled to be released. [ 101 ] Given the fact that the warrant expiry package was overwhelmingly negative Eetooloo was placed on a

section 810.2 peace bond under the Criminal Code . There were three conditions imposed: he must keep the peace and be of good behaviour, he must advise the police of his place of residence, and he must abstain from drugs and alcohol. It was only a short time before he breached by committing the predicate offence. The overall purpose of a

section 810.2 peace bond is the protection of the public. This is a serious breach with a maximum penalty of three years. [ 102 ] The predicate offence is both perverse and disturbing. The burning was painful and although the victim’s injuries healed quickly, it is aggravating that the victim had to escape his own house after the accused told him not to call the cops. [ 103 ] The Crown concluded by saying that the only way the accused will receive the intensive treatment he needs is by spending more time in the penitentiary before being put on a lengthy long-term supervision order. [ 104 ] The Crown also requested the following ancillary orders. [ 105 ] There should be a

section 109 firearms prohibition for life and the accused must provide a sample of his DNA for inclusion in the national databank. [ 106 ] Finally the Crown submits that a copy of the book of documents and the book of transcripts filed as exhibits one and two in these proceedings, together with a transcript of the hearing which took place May 1, 2020 and this decision, must be forwarded to the Correctional Service of Canada for their information pursuant to

section 760 of the Criminal Code . B. Submissions by Defence counsel [ 107 ] Defence counsel advised the court that she has had numerous meetings with Mr. Ejetsiak. She told the court that they spent a considerable amount of time looking at the law together and she received very clear instructions. [ 108 ] Mr. Ejetsiak agrees that he meets the criteria to be declared a long-term offender. He knows that this is where he is, at this stage in his life and he accepts that. [ 109 ] In one week the accused turns 50.

His age is a factor that must be considered in terms of eventually reducing his risk for reoffence pursuant to Dr. Klassen’s report. [ 110 ] Counsel spent time going through the numerous and significant background factors identified previously. She concludes by saying that these are facts and the accused is not making them up.

The things the court has identified under the heading: “Personal background of the accused” actually happened to him. [ 111 ] Defence counsel advised that the accused’s criminal history is fueled by his continued abuse of alcohol and drugs and his lack of treatment for the substantial historical trauma he has suffered. [ 112 ] Dr. Klassen’s latest assessment finds that Mr. Ejetsiak is likely suffering from borderline personality disorder and anti-social personality disorder which is trauma induced. He also suffers from a serious substance abuse disorder.

[ 113 ] In order to reach any level of success with respect to treatment the accused knows that he must deal with his root problems and his anger. [ 114 ] At page 39 and 40 of Dr. Klassen’s assessment a number of positive treatment plans are identified including further psychological treatment and dialectical behavioural therapy which is focused on individuals with trauma histories. [ 115 ] There is no doubt that Mr. Ejetsiak cannot drink alcohol and that he should not use drugs. Dr. Klassen talks about anti-craving medication that could possibly prevent, or at least assist with, substance abuse. [ 116 ] Mr.

Ejetsiak has proven that he is capable of abstaining from alcohol. It has been over two years since he drank or abused drugs. [ 117 ] The recommendations contained on pages 39 and 40 of Dr. Klassen’s report are helpful for the development of a treatment plan. [ 118 ] There is no doubt that what this accused needs most once he is released from custody and placed on a supervision order is structure.

Eetooloo’s three basic needs are stable and consistent accommodation, employment and treatment. [ 119 ] Counsel’s position is that Eetooloo requires circles of support and intensive programs focussed on his unique and specific needs. [ 120 ] Mr. Ejetsiak understands fully that these programs are likely not available in Nunavut and he is prepared to go south to get the help he needs. [ 121 ] Eetooloo told his lawyer that he wishes to go to Toronto as he developed a relationship of trust with one of the parole officers there. He is hoping to go back there where he is known. [ 122 ] Defence counsel submits that Mr.

Ejetsiak is a very different person today than he was when he went to jail over two years ago to await his sentencing. [ 123 ] During the time he has been in remand there has been no evidence of any misconduct. [ 124 ] Eetooloo received a very positive letter from one of the counsellors at Baffin Correctional Centre on February 26, 2020. Ms. Bracken advised that the accused successfully completed a four week substance abuse program. [ 125 ] Mr.

Ejetsiak knows that he has a significant amount of work to do with respect to his anger management issues and he has been trying very hard to do so. [ 126 ] During his time in custody, the accused has found comfort in his drawings. He told counsel that he finds this very therapeutic. This is a particularly hopeful sign. [ 127 ] Counsel submits that after spending a considerable amount of time with Mr.

Ejetsiak, she is convinced that he now has a clear mind and is ready to receive the sentence he deserves and the treatment he requires. [ 128 ] Defence submits strongly that there is no evidence that four extra years in the penitentiary, or in fact any further time in the penitentiary, is required before imposing a long-term supervision order even though at this point the treatment is unknown.

[ 129 ] Defence further submits that a long-term supervision order for the maximum time allowed under

Part XXIV of the Criminal Code is far from automatic and less time under supervision is warranted in this case for this offender. [ 130 ] Defence argues that the appropriate sentence on the predicate offences should be time served and that Mr. Ejetsiak should be placed on a Long-Term Supervision Order for a period in the range of five to seven years. VII. ANALYSIS [ 131 ] Counsel and this court agree that Eetooloo Ejetsiak meets all of the statutory requirements to be declared a long-term offender under

section 753.1(1) of the Criminal Code . [ 132 ] Counsel disagrees on the amount of time to be given for the predicate offence that precipitated the application and the amount of time to be given for the Long-Term Supervision Order to follow. [ 133 ] In dealing with the predicate offences I have set out the finding of facts under the heading “The Predicate Offences” and see no need to repeat them here in detail other than to talk about the aggravating and mitigating circumstances. [ 134 ] In coming to my overall decision today I have carefully reviewed those facts. [ 135 ] I have also carefully reviewed the numerous cases provided to me by both Crown and Defence.

They are all sentencing decisions involving individuals who have been designated long-term offenders.

Although I find the cases helpful, they are indicative of the fact that no two sentences are the same and the task before me must be one based on the unique facts of this particular case and the unique circumstances of this particular offender. [ 136 ] I have also carefully considered the Book of Documents and the Book of Transcripts which were provided to me prior to the hearing of this matter. [ 137 ] I paid close attention to the able submissions of counsel in coming to what I consider to be a fair and fit sentence in all of the circumstances of this case and this offender. [ 138 ] There is no doubt that any sentence I impose must incorporate the sentencing principles contained in

section 718 of the Criminal Code in addition to the overall purpose of protecting the public when sentencing offenders pursuant to

Part XXIV of the Criminal Code . [ 139 ] The sentence and long-term supervision order I make today, must also carefully consider Eetooloo’s Indigenous background, his unique history, his future treatment and his risk control prospects. [ 140 ] The objectives of sentencing contained in s. 718 of the Criminal Code are important in every criminal case. That

section says as follows: 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objective: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences;

(

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparation for harm done to victims or to the community, and; (

f) to promote a sense of responsibility in offenders, and an acknowledgement of the harm done to victims and to the community. [ 141 ]

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 142 ]

Section 718.2 indicates that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing. [ 143 ] From my review of the facts there are a number of aggravating circumstances with respect to both offences for which Mr. Ejetsiak is now to be sentenced. [ 144 ] The assault causing bodily harm offence occurred in the victim’s home where he should feel safe and protected. [ 145 ] Although Mr.

Nakashook minimized his injuries at trial, when he attended at the police station, he described what the accused’s had done to him as torture. Given the photographs tendered in evidence, it appears clear that at the time of the offence, those injuries were very painful. [ 146 ] What Mr. Ejetsiak did to his victim is very disturbing. There was no provocation and the incident appeared to simply be a random act to cause pain to a friend for no reason. [ 147 ] Eetooloo burned Mosesee with a hot knife that they were using to toke marijuana not once but six or seven times.

He did this after taping the victim’s mouth and his eyes. [ 148 ] It is aggravating that this offence happened only 12 days after he was released from his second penitentiary term. [ 149 ] Mr. Ejetsiak knew that he was not to be drinking or abusing drugs. He knew this because he signed a

section 810.2 peace bond just prior to his release only days earlier. Breaching this peace bond a very short time after signing it is aggravating in the extreme, given that it was put in place for the purpose of protecting the public. That paramount purpose is also the paramount consideration in these proceedings today. [ 150 ] Mr. Ejetsiak’s criminal record is substantial and lengthy. [ 151 ] It is aggravating that the accused was convicted in May of 2011 for assault causing bodily harm on the same victim. On that occasion the accused broke Mr. Nakashook’s elbow with a metal bar.

This offence resulted in his first penitentiary sentence. [ 152 ] It is also not good that some time before Eetooloo’s release from custody, prior to committing the predicate offences, he told one of the caseworkers at the institution that he was going to drink and toke marijuana as soon as he was released from custody which is exactly what he did when he assaulted his friend for a second time. [ 153 ] That being said, there are some mitigating factors or good things to consider when crafting a fit and appropriate sentence for this offender.

[154] It is mitigating that last week when Eetooloo was given a chance to address the court, he took full responsibility for his actions. Headmitted the facts and said that they were true and that he respects that. He told this court that it was very good news to learn thatMosesee was not hurt badly by his actions and he ended by saying that he clearly needed to apologize to him. [155] I find it substantially mitigating that Eetooloo has stayed out of trouble while waiting for these matters to be resolved. There is noevidence of any misconduct.

This is an exception to what usually happens when he is incarcerated and it is no small feat for this accused. [156] Counsel indicated that she had met with Eetooloo recently at the minimum security unit known as Makigiarvik. This is a separatebuilding at Baffin Correctional Centre that is reserved only for those inmates who have exhibited good behaviour and for those who aredoing very well within the institution. Since actions speak louder than words, I am very encouraged by this factor. [157] Eetooloo has been waiting a very long time to resolve these outstanding matters.

He has spent 27 and one half months in remand. Idid not ask but it is clear that at least some of that time was spent at Baffin Correctional Centre. [158] While in jail this time, Eetooloo attended counselling on a regular basis and he successfully completed a four week substance abuseprogram as evidenced by the very positive comments contained in the letter dated February 26, 2020 from Ms.

Bracken who is acounsellor/facilitator at Baffin Correctional Centre. [159] I am told that Eetooloo has not consumed alcohol or abused drugs during the time he has been in custody and that he is committedto abstaining when he is released. [160]

Section 718.2(

e) of the Criminal Code mandatorily requires sentencing judges to consider all available sanctions other thanimprisonment and to pay particular attention to the circumstances of Indigenous offenders. [161] The Supreme Court of Canada decisions in R. v. Gladue, (SCC), [1999] 1 SCR 688, 238 NR 1 and R. v. Ipeelee,2012 SCC 13 , [2012] 1 SCR 433 call upon judges to use a different method of analysis in determining a fit sentence forIndigenous offenders. [162] Accordingly, I am required to consider the unique systemic and background factors which may have played a

part in bringingEetooloo Ejetsiak before the court. [163] Earlier under the heading “Personal Background of the Accused” I have tried to set out in one place the historical events that haveundoubtedly contributed to Mr.

Ejetsiak reaching this point in his life where he has been designated a long-term offender. [164] Any one of the horrific things that have happened to Eetooloo over the years is in my view, enough to explain the tremendous painand anger that appears to have founded the unenviable criminal record that he now possesses. [165] The Nunavut Court of Justice is well aware of the accused’s traumatic circumstances and many comments have been made overthe years about his need for one on one targeted and intensive treatment. [166] Dr.

Klassen’s report talks about the risk of reoffence being reduced as the accused person ages. [167] Eetooloo is now 50 years old. He is no longer a young man. The submissions of counsel give this court some hope that he has nowreached that age of maturity where he is ready and committed to treatment. [168] Although the assessments by Dr. Klassen are helpful to my decision today, I am reminded that the first assessment is over 16 yearsold and was focussed on his fitness to stand trial.

[ 169 ] The second assessment report was completed and based solely on dated material with no input from the accused. I therefore find it of somewhat limited value when assessing what Eetooloo’s overall danger to the public is at this time. [ 170 ] I have also carefully reviewed all of the transcripts that are available with respect to Eetooloo’s convictions. They are contained in the Book of Transcripts entered as exhibit one in these proceedings. [ 171 ] I sentenced Mr. Ejetsiak to his second penitentiary term on February 18, 2015.

During that sentencing hearing, at pages 73 through 75, I carefully reviewed Eetooloo’s background and concluded by saying and I quote: “It appears clear that Mr. Ejetsiak needs intensive psychiatric intervention.” [ 172 ] That statement is just as true today as it was five years ago. The time has come for Eetooloo to get serious about treatment, rehabilitation and healing. [ 173 ] There have been a number of times during Eetooloo’s many court appearances when the court has indicated that Mr. Ejetsiak is likely to be suffering from post traumatic stress disorder.

This makes abundant sense since any one of the truly awful events that he has experienced would strongly support such a diagnosis. [ 174 ] It is not difficult to say that the unresolved trauma that he experienced in the past has to have played a large role in where he finds himself today. [ 175 ] That being said, I am required, based on the law, to impose a sentence today that has at its forefront protection of the public while incorporating the principles of sentencing applicable to all offenders. [ 176 ] I must do this today without having any specific treatment plan before me. [ 177 ] From my review of emails exchanged between the prosecutor and Corrections Canada, I am not convinced that Eetooloo must be in a penitentiary before commencing the lengthy treatment he desperately needs. [ 178 ] I base this partially on the fact that during the 27 and one half months that the accused has spent in remand, he has been doing okay.

It bears repeating here that being of good behaviour while in custody is no easy task for Eetooloo. [ 179 ] This is the first time I have heard about Eetooloo’s artistic talent and the fact that he finds drawing therapeutic. I am excited by this and it gives me hope for his future. From what counsel said last week it appears that he is very proud of his work and I am hopeful that he will be encouraged to maintain this craft which I am convinced should be a part of any treatment plan imposed upon him. VIII. SENTENCE [ 180 ] Taking into account this reality, the letter of support from Ms.

Bracken and Eetooloo’s advanced age factor, I conclude that the following is a fit and fair sentence in all of the circumstances of this case and this particular long-term offender. [ 181 ] I sentence Eetooloo Ejetsiak to four years custody on the assault causing bodily harm and two years concurrent on the breach of a peace bond. [ 182 ] I am not prepared to give Eetooloo enhanced credit for the entire time he has spent in custody waiting for these charges to get dealt

with. This is largely due to the fact that on a number of occasions Eetooloo refused to attend court when he was required to do so. This behaviour can not in any way be rewarded.

Not attending court causes many problems for the justice system and consequences must follow. [ 183 ] Accordingly, I am prepared to grant the accused a total of three years pretrial custody which includes some enhanced credit. [ 184 ] That means that Eetooloo Ejetsiak will be required to spend one more year in custody on these offences. [ 185 ] I feel that the extra time in custody is necessary and it will assist the authorities to develop an appropriate plan of treatment. [ 186 ] I find as well that this is a case where a long-term supervision order is necessary for the maximum amount of time. [ 187 ] Eetooloo has many issues that will need to be addressed and the levels of historical trauma are well embedded, serious and complicated.

It will not be an easy road and he requires as much time as possible to succeed. [ 188 ] Accordingly, the long-term supervision order to follow will be for a period of ten years. [ 189 ] The Crown has also asked for a lifetime firearms prohibition under

section 109 of the Criminal Code . I have discovered from my review of the February 18, 2015 sentencing that the accused is already subject to such an order prohibiting him from firearms for the rest of his life. I see no need to impose the same order again. [ 190 ] I will however order that the accused provide a sample of his DNA for inclusion in the national DNA database. [ 191 ] Finally, pursuant to

section 760 of the Criminal Code I order that the following documents be forwarded to the Correctional Service of Canada together with these reasons as soon as possible: • The Book of Transcripts containing 11 tabs and filed as Exhibit One in these proceedings. • The Book of Documents containing 18 tabs and filed as Exhibit Two in these proceedings, and • A transcript of Mr. Ejetsiak’s long-term offender hearing which took place on May 1, 2020. [ 192 ] Eetooloo: It is my fervent and sincere hope that you succeed in managing the demons that have driven your life for so long.

It is time! [ 193 ] Given what your lawyer said and the comments you made last week, I am hopeful that with a lot of hard work on your part, you can succeed. [ 194 ] There is no doubt that there will be lots of bumps in the road and my hope is that you won’t be too discouraged by them but instead will determine to put them behind you and move forward to someday become a responsible and law abiding member of society. [ 195 ] I believe in you and now you must believe in yourself knowing that it will be a long and difficult journey. Good luck sir!

Dated at the City of Iqaluit this 11th day of May, 2020 ___________________ Justice B. Tulloch Nunavut Court of Justice