R. v. Arnaquq, 2020 NUCJ 14

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Arnaquq, 2020 NUCJ 14 Date: 20200424 Docket: 08-18-480 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Gary Arnaquq ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): M. Tooke Counsel (Accused): M. Manocchio Location Heard: Iqaluit, Nunavut Date Heard: April 9, 2020 Matters: Sentencing for offences under ss. 65(1) and 430(3) of the Criminal Code of Canada, RSC 1985, c C-46 , pursuant to s. 718.2 (e). REASONS FOR SENTENCE (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The offender, Gary Arnaquq was charged with taking

part in a riot, causing property damage over $5,000 and uttering death threats relating to an incident on 20 June 2018. [1] The incident happened in “Charlie Unit” at the Baffin Correctional Centre (BCC) in Iqaluit where Mr. Arnaquq was a serving prisoner. Mr. Arnaquq refused the help of a lawyer with his charges and his preliminary inquiry started on 24 June 2019. At the inquiry’s conclusion, the Court committed Mr. Arnaquq to stand trial on 27 February 2020. [ 2 ] At some point afterwards, Mr. Arnaquq engaged a legal aid lawyer - Mia Manocchio - to represent him. However, Mr.

Arnaquq refused to attend court on 27 February 2020. This was not the first time Mr. Arnaquq had refused to attend court to deal with his case. [2] I ruled that Mr. Arnaquq had absconded and that he had waived his right to be present at his trial. I ordered the trial to continue in his absence. [3] [ 3 ] The Crown called four trial witnesses to testify, each one of whom was a serving BCC Correctional Officer on 20 June 2018. After hearing the evidence and submissions from counsel, [4] I found Mr. Arnaquq guilty of taking

part in a riot and of having caused damage to property over $5,000. I found Mr. Arnaquq not guilty of uttering death threats. I adjourned the sentencing hearing until 9 April 2020. Owing to COVID-19 related restrictions, I sentenced Mr. Arnaquq by telephone with the consent of counsel. These are my reasons for judgment. II. FACTUAL BACKGROUND [ 4 ] I will briefly review my key factual findings in order to put Mr. Arnaquq’s sentence into proper perspective. [ 5 ] On 20 June 2018, Mr. Arnaquq was housed in Charlie Unit. Twice earlier that day, correctional staff had to respond to incidents in Charlie Unit.

Each incident involved a prisoner who was trying to dig a hole in his cell wall to reach the outside. I was told, and accept as a fact, that prisoners resort to this activity to try to get drugs illicitly into the facility. [ 6 ] Michael Meade was a guard on duty that evening. At around 2140, Mr. Meade was standing in Charlie Unit’s recreational area. He patrolled down the hallway towards dorm two. He began to suspect that an inmate was trying again to dig a hole in his cell wall. He had noticed “too many people” in one corner of the dorm. Mr. Arnaquq then left the area for the nearby washroom. Mr.

Meade radioed his suspicion to control and two guards soon entered the unit. Mr. Meade went down the hall to assist them. [ 7 ] Mr. Meade arrived outside dorm two around the same time as Mr. Arnaquq. Mr. Meade tried to enter the dorm but the inmate JK held the door to prevent his entry. Mr. Arnaquq left the washroom and appeared beside Mr. Meade. Another guard, Colin Pugh-Doucet, saw Mr. Arnaquq put his body up against the door to prevent the guards from entering the dorm. Mr. Arnaquq was shouting out “help, help” multiple times. Mr.

Arnaquq then started shouting out for the other inmates to join them saying “There’s only a couple of them, they can’t take us”. Mr. Meade ordered the inmates to disperse, but the inmates – including Mr. Arnaquq - ignored him. [ 8 ] Mr. Meade took hold of Mr. Arnaquq and pulled him backwards. The shift supervisor, Mr. Jamie Leblanc, arrived. Mr. Leblanc heard Mr. Arnaquq shouting “let’s get ‘em” while Mr. Arnaquq was physically waiving on the other inmates to join him. Mr. Leblanc witnessed a group of inmates come down the hall seemingly in response to Mr. Arnaquq’s actions.

The other inmates present were becoming increasingly confrontational.

[ 9 ] Mr. Meade asked his supervisor if they should remove Mr. Arnaquq to defuse the situation. By this time there were many inmates crowding into the immediate area. Mr. Arnaquq was shouting “get the guards, get the guards”. Mr. Meade said by this point, the situation “had gotten out of hand”. The supervisor ordered his staff to evacuate the Unit and lock the entryways. The guards evacuated the unit. Mr. Arnaquq remained in Charlie Unit. [ 10 ] Almost immediately after the guards evacuated Charlie Unit, inmates covered the two security cameras as well as the windows on the two access doors into the unit.

However, a two-inch gap remained on one of the windows (identified as door 134) and guards continued to look into the unit as the commotion developed into a full-blown riot. [ 11 ] Mr. Pugh-Doucet heard a lot of smashing and banging coming from Charlie Unit. Specifically, he heard Mr. Arnaquq numerous times urging on the other inmates to smash windows and at one-point yelling “let’s burn the building down”. [ 12 ] Colin Kilabuk was another guard who was present during the riot. He was stationed by door 134 after the unit was locked down. At one point, Mr.

Arnaquq and another inmate came to the door, moved the paper and both yelled at him for food and cigarettes. Mr. Arnaquq shouted, “I hope this door is open so I can beat those niggers”. Two or three hours into the riot, Mr. Kilabuk also heard Mr. Arnaquq yelling at another inmate urging him to tear down the ceiling in one of the dorms. [ 13 ] There was no evidence provided respecting the number of inmates who were living in Charlie Unit at the time, or who were involved in the riot. Mr.

Kilabuk agreed with Defence Counsel in cross examination that there were “maybe 26 to 27” inmates in Charlie Unit during the riot. [ 14 ] According to the evidence, the riot lasted until well into the following morning. Prison staff finally re-entered Charlie Unit to arrest the rioters around 6 a.m. on June 21st. [ 15 ] Charlie Unit suffered extensive damage during the riot. The prosecutor did not present a final dollar figure for this extensive damage. In fact, the Crown’s evidence at trial consisted entirely of photographs of the post-riot damage.

That said, the only possible inference I could draw from the photographs was that the dollar value of the damage was in the order of magnitudes in excess of $5,000. The rioters had left Charlie Unit completely uninhabitable. III. THE PARTIES’ POSITIONS ON SENTENCE A. The Crown [ 16 ] The Crown Prosecutor stressed the need to emphasize denunciation, and both general and specific deterrence. He emphasized that Mr. Arnaquq incited not only the riot, but violence as well. Mr. Arnaquq, he continued, also “fanned the flames of the riot” while it happened. Indeed, he argued that “without him [Mr.

Arnaquq] the riot might not have happened”. [ 17 ] Respecting the damage done during the riot, the prosecutor estimated the total cost to the taxpayer as approximately 1.88 million dollars. This figure included necessary repairs and the transportation and housing of inmates in southern correctional facilities. [ 18 ] The prosecutor recommended that I impose a two-year sentence for his participation in the riot, and three years in jail concurrent for the property damage. B. The Defence [ 19 ] Defence Counsel reviewed Mr. Arnaquq’s personal circumstances.

She also noted that upon conviction, the other rioters were sentenced to Territorial time. She asked the Court to impose a 12-month sentence for both offences.

IV. SENTENCING PRINCIPLES [ 20 ] I will now say a few words concerning the purpose, objectives and principles of sentencing. A. The purpose of sentencing [ 21 ] Parliament has declared that the “fundamental purpose” of sentencing is to protect society and uphold respect for the law. [5] Judges aim to accomplish this purpose by the imposition of just sentences. B. The basic objectives of sentencing [ 22 ] Again, Parliament has set out the basic objectives involved in sentencing.

These objectives are to denounce crime and the harm it caused victims; to deter the offender and others from committing crime; to separate offenders from the community when necessary; to assist offenders to rehabilitate; to provide reparations to victims if possible; and to encourage a sense of responsibility in offenders. [6] C. Sentencing must be tailored for the individual offender [ 23 ] No two sets of circumstances are ever alike, and each offender is different. Each offender has his own personal history. In this case, Mr.

Arnaquq was charged with 10 other inmates each of whom had a different level of responsibility for what happened. The task of imposing a just sentence on an offender, therefore, is a highly individual exercise. D. The fundamental principle [ 24 ] Above all else, the sentence I impose must fit the crime. It must reflect the circumstances of the crime and the offender’s degree of responsibility. [7] E.

The sentence must account for the inter-generational effects of colonialism [ 25 ] I must account for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit. [8] Criminal Code

section 718.2 (

e) provides (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. F. Aggravating and mitigating factors [ 26 ] The Criminal Code also requires judges to consider aggravating and mitigating factors. [9] Aggravating factors work to increase the sentence. Mitigating factors tend to lessen the sentence.

[ 27 ] There are several aggravating factors in this case. 1. Mr. Arnaquq incited violence against the guards. 2. Mr. Arnaquq refused to comply with the order given by Correctional Officer Meade to disperse. 3. Mr. Arnaquq incited the riot. 4. Mr. Arnaquq continued during the riot to exhort the other inmates to trash Charlie Unit. 5. Mr. Arnaquq has a serious criminal record. He was convicted in 2017 for his participation in another BCC riot. There are no mitigating factors. V. THE OFFENDER [ 28 ] I will now say a few words about Mr. Arnaquq. [ 29 ] Mr. Arnaquq is a 38-year-old Inuk male.

Defence Counsel told me that he was born in Iqaluit but was raised in Qikiqtarjuaq. He has been in a common-law relationship with the same partner for 15 years. They have three children together, aged 10, 7 and 1 year old. Mr. Arnaquq was in jail when his youngest child was born and has never held her. [ 30 ] Mr. Arnaquq has a brother and sister. They are successful. He lost another sister to cancer five years ago. His parents divorced in 1990. His mother struggled with alcohol addiction, but they remarried in 1995 when she became sober. His father is a respected member of the community.

His father is an outfitter and pastor. Mr. Arnaquq says his parents are not proud of him. Mr. Arnaquq says he is the “dark sheep” of the family. [ 31 ] Defence Counsel advised that Mr. Arnaquq has been receiving counselling while in BCC for panic attacks. These counselling sessions seem to be helping him. [ 32 ] Mr. Arnaquq told me today that he is a changed man. He has started directed Bible study and Jesus has touched his heart. He stated he has stopped using drugs and is “trying to get out of violence”. He stated he is finally “free” of the devil and those earlier influences which “ruined my life”.

Unfortunately, he continued by trying to minimize his role in the riot. A. Mr. Arnaquq’s criminal record [ 33 ] Mr. Arnaquq has a lengthy and serious criminal record dating back to 2002. He has 56 prior convictions including 12 for violent offences, 11 for uttering threats, 4 for mischief, and 6 stand-alone weapons offences. In 2017, Mr. Arnaquq was sentenced for his participation in another jailhouse riot. [ 34 ] I am therefore sentencing an adult Indigenous repeat offender from a respectable family who has a troubling history of anti-social behaviour and of committing serious violent and other crime. VI.

CANADIAN VICTIMS’ BILL OF RIGHTS [ 35 ] The Canadian Victims Bill of Rights came into force in July 2015. [10] Victims of crime have the right to be heard in court. They may read out loud, or file, a ‘victim impact statement’. These statements help ensure victims are not ignored during the sentencing process. [ 36 ] The prosecutor did not file any victim impact statements with the Court. However, I noted that Correctional Officer Pugh-Doucet found the initial confrontation to be “pretty stressful”, and that he was concerned about “our safety as individuals and the entire dorm turning on us, the staff”. [sic] VII.

ANALYSIS [ 37 ] I am sentencing Mr. Arnaquq for two profoundly serious criminal offences. Participation in a riot carries a maximum penitentiary sentence of two years. Causing property damage in excess of $5,000 carries a maximum penitentiary sentence of 10 years.

[ 38 ] While each case is unique, judges attempt to ensure that similar offenders receive similar sentences in similar circumstances. This is called the parity principle and is enshrined in law. [11] I am satisfied that the general sentencing range for offenders who inspire, and lead jailhouse riots where extensive damage results is in the three to five-year range. [12] [ 39 ] I shall now weigh the objectives and principles of sentencing against the circumstances of this case. [ 40 ] The circumstances of this case should make it clear that I must give primary emphasis to deterrence.

In this case, the deterrent message must be both general as well as specific. This Court must send a clear message to all inmates that prison riots will not be tolerated and will result in strong penalties on conviction. But the Court’s message must also be taken to heart by Mr. Arnaquq: this is the second time he is being sentenced for his participation in a jailhouse riot. [ 41 ] By 20 June 2018, Mr. Arnaquq was an experienced inmate who understood how the guards and facility operated. Mr. Arnaquq initially interfered with the staff as they responded to the third drug related wall-digging incident of the day.

He used his body to prevent two guards from checking on the situation in dorm two. He incited violence against the guards who were vastly outnumbered; this was clearly shown in the short security video shown to the Court. Mr. Arnaquq continued to incite his fellow inmates despite the lawful order given them to return to their dorms. He then actively incited his fellow inmates to riot, and he encouraged them on throughout the riot. The evidence demonstrated that Mr. Arnaquq was both the inspiration and the driving force behind the mayhem that followed. [ 42 ] Mr.

Arnaquq, therefore, bears an extremely high degree of responsibility for what happened in Charlie Unit on 20 June 2018. [ 43 ] Our society properly views prison riots with tremendous concern. Inmates are among the most vulnerable members of our society. Every aspect of their existence is monitored and regulated by the authorities. Above all else, inmates are entirely dependant upon the authorities for their health, safety and welfare. Mr. Arnaquq’s actions put the life and safety of every inmate in Charlie Unit in serious jeopardy that night. [ 44 ] Our prison staff, too, are uniquely vulnerable individuals.

Although they carry with them the authority of the law, they are unarmed and outnumbered by the inmates they supervise. Although no victim impact statements were filed, there is no doubt the guards on duty that night were faced with an extremely dangerous, stressful and volatile situation. Their lives and safety, too, were seriously jeopardised by Mr. Arnaquq’s careless, cavalier and criminal actions. [ 45 ] The sentence I impose must denounce this criminal behaviour in the strongest possible terms. [ 46 ] The sentence I impose must also be consistent with the harm Mr.

Arnaquq inflicted on the wider community. [13] Each one of us, including Mr. Arnaquq, knows how expensive it is to live here. The enormous post-riot costs to the government of Nunavut drained away precious, scarce, dollars needed to address our many pressing infrastructure deficits. [ 47 ] I have also carefully weighed these objectives and principles of sentencing along with Gladue considerations.

The law is settled that there need be no direct link between Gladue factors and the circumstances of the case. [14] I must determine the appropriate sentence “for this offence, committed by this offender, harming this victim, in this community”. [15] [ 48 ] I am sentencing Mr. Arnaquq for an extremely serious offence. Mr. Arnaquq’s deliberate actions threatened the lives and safety of everyone in the facility on 20 June 2018. The prosecutor did not provide the Court with any information or statistics concerning the inmate population generally, or in Charlie Unit that night.

I may, however, take judicial notice that the vast majority of the jail’s inmates – those whose safety was jeopardized by Mr. Arnaquq - were Inuit. [ 49 ] I am sentencing a repeat offender, one who has been in and out of BCC for over 18 years. Mr. Arnaquq’s lifestyle is tragic, not least because he comes from a respected family. He acknowledges that he is the “dark sheep” of his family. This is a significant insight into Mr. Arnaquq’s state of mind and attitude toward his circumstances on 20 June 2018.

[ 50 ] Mr. Arnaquq is responsible for his decisions and his chosen path in life. This undeniable reality is reflected in why he incited violence and encouraged the riot: to impede the guards from stopping the flow of illicit drugs into the jail. The inmates in Charlie Unit had been thwarted twice before that very day from doing so. The only rational inference I can draw from the evidence is that Mr.

Arnaquq incited the mayhem out of anger and a desire to get even with the authorities. [ 51 ] Furthermore, as I have noted, Gladue principles require me to consider the circumstances of this offence in terms of his victims and community. [ 52 ] Most of the BCC inmates that night were Inuit. At any given time, BCC houses inmate from all over the Qikiqtani region as well as other parts of the Territory. This reality means that what happens at BCC resonates right through our small communities.

While I have no victim impact statements, I take judicial notice that the troubling events of 20 June 2018 directly touched the many family and friends of the facility’s inmates in many homes across Nunavut. It also affected those of us – in all walks of life - who take an interest in the proper administration of our justice system. [ 53 ] The sentencing judge is entitled to consider the extent of the damage caused during the riot.

It is a proper consideration so long as that factor alone does not distort the sentence. [16] I have already highlighted the staggering post-riot repair costs, and its drain on Nunavut’s scarce financial resources. In a very real sense, Mr. Arnaquq hurt all Nunavummiut. [ 54 ] In this context, I must also consider how Mr. Arnaquq’s actions are to be measured against the principles of Inuit Qaujimajatuqangit. Mr. Arnaquq failed to observe Inuuqatigiitsiarniq – respecting others, relationships and caring for people. And, he did so in the most serious of circumstances. The sentence I impose on Mr.

Arnaquq must reflect that fact. [ 55 ] The sentence I impose must separate Mr. Arnaquq from the community. This sentence I am about to impose is consistent with traditional Inuit societal norms. When a person endangered the safety and security of the traditional group, a person could be – and sometimes was – banished. Many were later welcomed back into the group. Reconciliation and reintegration are hallmarks of Inuit society. [ 56 ] Mr. Arnaquq told me in another sentencing hearing in September 2019, that “I am tired of fighting the system”.

I encouraged him that day to focus on getting on with his life; to try his best to earn the trust and respect of his community. Mr. Arnaquq will be released from jail. Everyone hopes he will return to the community chastened and wiser. VIII. SENTENCE [ 57 ] The sentence I impose on this adult Indigenous repeat offender must reflect the seriousness of the offences, and Mr. Arnaquq’s extremely high level of responsibility. The sentence must fit Mr. Arnaquq’s crimes.

For the reasons I have canvassed, I impose the following sentences. [ 58 ] On the charge of causing property damage to Charlie Unit in excess of $5,000, I sentence Mr. Arnaquq to 33 months (990 days) in jail. [ 59 ] On the charge of participating in a riot, I sentence Mr. Arnaquq to 24 months (720 days) jail to be served concurrently. [ 60 ] In my view, this is the least restrictive sanction appropriate in all the circumstances. IX. CREDIT FOR REMAND TIME

[ 61 ] Mr. Arnaquq was a serving prisoner at the time of the riot. After the riot, he was convicted of other criminal offences and sentenced to further jail time. He stopped serving these sentences on October 23, 2019. He has since been on remand on these charges for a total of 172 days. [ 62 ] Normally, Mr. Arnaquq would be entitled to credit at the rate of one and a half to one for each one of those 172 days spent on remand. This credit is then deducted from his sentence, and he would serve the remaining balance. However, Mr.

Arnaquq refused to attend court no less than eight times while this case was before the Court. His absences included his refusal to attend his trial. This is a factor I must consider on the question of what remand credit to give him. [ 63 ] I have recently taken judicial notice of the fact that prisoners refusing to attend court in 2019 created real delays in numerous cases. [17] In my view, it would be wrong to give Mr. Arnaquq extra credit for remand time in which he attempted repeatedly to frustrate the Court. I will not give Mr. Arnaquq extra remand credit.

I give him straight credit at the rate of one to one for his 172-day remand. [18] [ 64 ] For clarity, we calculate sentences based on 30-day months. I have sentenced Mr. Arnaquq to a total jail term of 33 months, or 990 days. I subtract his 172-day remand credit. Mr. Arnaquq shall serve the remaining 818 days of this sentence in a federal penitentiary. [ 65 ] I waive the victim fine surcharge. Dated at the City of Iqaluit this 24th day of April, 2020 ___________________ Justice P. Bychok Nunavut Court of Justice