R. v. Akpik, 2021 NUCJ 6

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Akpik, 2021 NUCJ 6 Date: 20210209 Docket: 08-18-697 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Kassandra Akpik ________________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): G. Lyndon Counsel (Accused): S. Siebert Location Heard: Iqaluit, Nunavut Date Heard: October 21, 2020 Matters: Sentencing for offences under ss. 343 (

d) and 344(1) (

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

I. FACTS [ 1 ] Kassandra Akpik pleaded guilty before me to a charge that she “on or about the 4th day of October in the year 2018 in the City of Iqaluit in the Territory of Nunavut did rob Adal Mahraz with a knife contrary to s. 343 (

d) and 344(1) (

b) of the Criminal Code of Canada ”. [ 2 ] At the sentencing hearing for Ms. Akpik on October 21, 2020 an Agreed Statement of Facts was provided. The facts of the offence and information about Ms. Akpik are contained in the Statement (Exhibit 1) as follows. [ 3 ] On October 4, 2018 at around 1:44 am, Kassandra Oolamie Akpik, female, 21, and EN, male, 15, robbed cab driver Adal Mehraz in Iqaluit, Nunavut. [ 4 ] Mr. Mehraz responded to a dispatch to House 224 and saw a couple (Ms. Akpik and EN) standing face-to-face. Ms. Akpik got into the back seat while EN opened the passenger side door beside the driver. Ms.

Akpik put a knife to Mr. Mehraz’s neck. EN put a black air rifle (without a stock) to Mr. Mehraz’s head and demanded money. EN made a threatening demand for money. Mr. Mehraz gave them about $500 in cash and some taxi vouchers. Ms. Akpik asked EN if he got all the money. The couple then ran behind the Elder’s Centre. [ 5 ] Mr. Mehraz recognized Ms. Akpik as someone he drove to House 560 many times and knows very well. Mr.

Mehraz did not know her name. [ 6 ] The RCMP learned through their PROS database that Kassandra Akpik, 21, was associated with the residence at House 560 and that she was in a relationship with EN. The later investigation revealed that Ms. Akpik was living on a boat on the shore with EN. [ 7 ] The investigation also revealed certain evidence of the offence recovered from the boat, such as the black air rifle and the knife. Ms. Akpik acknowledges that the knife and rifle seized from the boat were used in the offence. [ 8 ] Ms. Akpik was known to the RCMP around the time of the offence.

She was consuming drugs heavily and attending numerous parties and social gatherings involving alcohol and drug use, including the night of October 3, 2018. During her warned statement to the RCMP, Ms. Akpik talked freely about her conduct and the RCMP interviewer noted the effect of these activities on her emotions, decision-making and personal conduct. [ 9 ] Ms. Akpik acknowledges running with the wrong crowd.

The parties note that her crowd, as it were, seemed to be made up of primarily teenagers, mostly youths, and some of these vulnerable youths would have been subpoenaed as Crown witnesses had this matter gone to trial. [ 10 ] The Crown’s case consists of identification evidence from the taxi driver/victim (Mr. Mehraz), location sightings by responding RCMP Members, evidence seized from the search of the boat, and admissions made by Ms. Akpik in her warned statement and admissions made to civilian third parties by her and EN.

All this evidence of course has been untested in court and would have been subject to admissibility rulings by the trial judge.

[11] By way of background, the parties are agreed that Ms. Akpik is a survivor of childhood trauma and sexual abuse. Her childhoodexperiences inform and affect her current situation. Her childhood experiences contributed to her circumstances in Fall 2018, andspecifically, they contributed to her conduct on October 4, 2018 when she robbed Mr. Mehraz. [12] Between October 2018 and April 2019, Ms. Akpik was charged with several substantive offences arising out of interpersonalconflict or her past relationship with EN. All these charges ended in stays of proceedings. Ms.

Akpik comes before the court today withno criminal record. [13] In the past year, Ms. Akpik has demonstrated enhanced problem-solving skills and other pro-social skills. Through counsel, she hasapproached the RCMP to participate in an investigation of a matter where she was a victim and a witness.

Despite initial trepidation, sheinteracted with the investigator cooperatively and in good faith, attending at the RCMP detachment to provide further informationregarding the incident. [14] In the past year, through counsel, she approached the Crown and the Court to change her conditions to ensure compliance whileattempting to integrate herself more fully into daily Iqaluit life in a pro-social manner. She had generally maintained compliance with herconditions. She has not burned any bridges and continues to build a positive support network.

However, she has come to the attention ofthe RCMP for consuming alcohol and most recently, for changing her residence without seeking an amendment to her release conditions.In both instances, the RCMP exercised discretion and gave her warnings. [15] A pre-sentence report was also prepared by Community Corrections Officer, Mary Jackson, which contained some more detailsabout Ms. Akpik’s upbringing: she was abandoned by her abusive and alcoholic birth parents at the age of two and then was raised byher aunt in a multi-generational home where she was close with her grandmother. Most unfortunately, Ms.

Akpik was sexually assaultedby a friend of her stepmother at the age of six, but her stepmother did not believe her when told what had happened. A teacher asked herwhat was wrong at school the next day and after hearing from Ms. Akpik, contacted the RCMP. Apparently in the result, the male friendwas not charged with an offence. Ms. Akpik also advised that she suffered other physical, emotional, and verbal abuse in the home shegrew up in. [16] The pre-sentence report also pointed out that Ms. Akpik has a grade 10 education, having left school when she became pregnantwith a daughter who was adopted.

She has had three children in total, all of whom have been adopted. Ms. Akpik would like to obtain herGED or find a job as a housekeeper or dishwasher. She was employed for about six months as a bus girl at the Iqaluit Royal CanadianLegion at one time. [17] The pre-sentence report, as well as a victim impact statement, reveal the serious and long-term effects suffered by the taxi driver asa result of this offence. Mr. Mehraz’s physical health has suffered, he finds it hard to sleep when he remembers that night, and he cannottrust anyone he does not know anymore.

He also had to reduce his working hours so as not to work nights after the incident because he isafraid of being robbed again. This has reduced his income to the point that it has added to his stress. [18] The Defence asked me to consider the case of R v Friesen, 2020 SCC 9, which discussed the long-lasting effects of sexual abuseon children, in the situation where the traumatized child—now an adult—comes before me to be sentenced for a very serious crime.

Intheir joint reasons for judgement in Friesen, Wagner, C.J. and Rowe, J. state: [57] A number of this Court’s decisions provide insight into these forms of harm. In R. v. L. (D.O.), (SCC), [1993] 4S.C.R. 419, L’Heureux-Dubé J. emphasized the emotional trauma that the nine-year old complainant experienced from sexual violence(pp. 439-42).

Similarly, in McDonnell, McLachlin J. (as she then was) stressed the emotional harm of “the violation of the child victim’sintegrity and sense of self-worth and control over her body” that the child victim experienced as a result of being sexually assaulted whilesleeping (para. 111). The likely result of the sexual assault would be “shame, embarrassment, unresolved anger, a reduced ability to trustothers and fear that . . . people could and would abuse her and her body” (para. 113). [58] These forms of harm are particularly pronounced for children.

Sexual violence can interfere with children’s self-fulfillment andhealthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities toovercome adversity (Sharpe, at paras. 158, 184-85 and 188, per L’Heureux-Dubé, Gonthier and Bastarache JJ.; G. Renaud, TheSentencing Code of Canada: Principles and Objectives (2009), at § 12.64). For this reason, even a single instance of sexual violence can“permanently alter the course of a child’s life” (Stuckless (2019), at para. 136, per Pepall J.A.). As Otis J.A. explained in L. (J.-J.), at p.250:

[translation] The shattering of the personality of a child at a stage where [the child’s] budding organization as a person has only a very fragile defensive structure, will result — in the long term — in suffering, distress and the loss of self esteem. (emphasis added) [ 19 ] Of course, as pointed out in the next paragraph in Friesen , not all children are forever broken by experiences of sexual violence.

Some have supportive families or other resources to help them overcome these harms. [ 20 ] Chief Justice Sharkey reiterated the seriousness of sexual offences against children in Nunavut in the recent case of R v GH , 2020 NUCJ 33 . I also take judicial notice that mental health resources are sorely lacking in Nunavut, and many families suffer intergenerational harms which limit the support they can offer. [ 21 ] Dr. Granger-Brown gave evidence for the Defence on this issue. Her Curriculum Vitae and Report on the effects of trauma generally and specifically with respect to Ms.

Akpik were made Exhibit 2 on this sentencing. [ 22 ] Dr. Granger-Brown has a Doctorate in Human and Organizational Systems from Fielding Graduate University. According to Wikipedia, Fielding Graduate University (previously Fielding Graduate Institute and The Fielding Institute) is a private university in Santa Barbara, California. It offers postgraduate and doctoral studies mainly in psychology, education, and organizational studies, primarily through distance education programs. Fielding Graduate University was founded in 1974 by Frederic M. Hudson, Hallock Hoffman, and Renata Tesch.

They designed Fielding as a graduate program for mid-career professionals who were not being served by traditional universities. [ 23 ] Dr. Granger-Brown also has over 15 years’ experience working for Correctional Services of Canada, most recently on Staff Training on Developmental Trauma, and has done research and published joint papers often dealing with incarcerated women who have been traumatized. She provided an “Introduction to Trauma Informed Justice” in her Report in Exhibit 2 (pp. 1-2), specific information regarding Ms. Akpik’s situation at pages 3-4, and discussion of how Ms.

Akpik’s upbringing has likely affected her as an adult, at pages 4-11. At page 11, Dr. Granger-Brown also briefly discusses research that suggests ways to help Ms. Akpik “learn the skills to negotiate a safe, successful and healthy adult life.” [ 24 ] Although much of her research and views are likely controversial as fairly new ideas, I do not have to test her evidence in a sentencing situation the same way I would in a trial. It seems clear to me that the causes and effects of early-childhood trauma are still being discovered, and how to deal with or treat them is a work in progress. II.

PARTIES’ POSITIONS [ 25 ] The Crown’s position on sentence is that Ms. Akpik’s guilty plea should be considered an early one in the circumstances and was meaningful because there were potentially triable issues on admissibility, and some youthful witnesses who were concerned about having to testify at a trial.

The Crown advised that the “traditional” Crown position would be two years less a day in custody (less remand time) and probation for 12-18 months to support the victim’s concerns about contact as well as provide anger management and addictions counselling. [ 26 ] The Crown also advised that a trauma-informed approach could be useful in this case but is concerned that the Court still must address the moral blameworthiness of Ms. Akpik in putting a knife to the throat of the vulnerable cab driver victim and the issue of general deterrence. [ 27 ] The Crown pointed out that Ms.

Akpik does not have a criminal record and that although she did not have perfect compliance while on release, in the end she was not charged with breaching any conditions.

[ 28 ] Through the information from Dr. Granger-Brown, the Defence argues for a “trauma-informed sentence” which she says would not excuse Ms. Akpik’s criminal behaviour but would take into account her traumatic childhood and provide the therapeutic intervention she needs to live a pro-social life. In Dr. Granger-Brown’s opinion, prison is not a safe setting to do the necessary work for treatment to be successful, and she stressed that the work involved will be difficult for Ms. Akpik. Her evidence also suggested that because of her childhood, Ms.

Akpik’s moral responsibility for this offence should be considered lower than someone with a different upbringing. [ 29 ] While noting that Ms. Akpik served the equivalent of nine months in custody on remand for this offence (although she has been out on release for over a year at this point), the Defence position is that it would be in the public interest to suspend the passing of sentence and place Ms. Akpik on probation for the maximum period allowed, three years.

She would be required while on probation to maintain abstinence from alcohol, marijuana, and illicit drugs, attend a suitable Residential Treatment program as arranged by her probation officer, perform 150 hours of community service work and (at Ms. Akpik’s suggestion) prepare an apology letter to Mr. Mehraz. III. SENTENCING [ 30 ]

Part XXIII of the Criminal Code has extensive provisions on the purpose and principles that guide all judges in determining fit sentences. The fundamental purpose of sentencing is set out in s. 718 , 718 … to protect society and 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 objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 reparations for harms done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 31 ] The fundamental principle of sentencing is set out in s. 718.1, which says, 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 32 ] Other relevant sentencing principles are set out in s. 718.2: 718.2 … (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender … … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

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.

[ 33 ] Unfortunately, sentencing is not a science in which I can just plug certain facts into a formula and the appropriate sentence would be revealed. Instead, sentencing requires a careful balancing of the multitude of factors set out above. [ 34 ] The Criminal Code gives a range of punishments for the offence of robbery, one of the most serious offences in our law, between a period of probation up to life imprisonment.

Section 718.3(1) says that the appropriate sentence is “… in the discretion of the court that convicts a person who commits the offence.” It is my task to consider the purpose and principles of sentencing and construct a suitable sentence for this particular accused in these particular circumstances. [ 35 ] It is clear that this robbery had a strong negative impact on Mr. Mehraz and I must try to address his concerns. A robbery like this one also negatively impacts the whole community, especially in a relatively small community like Iqaluit where people often rely on taxis, and their wider interests must also be considered. In general, denunciation and deterrence (ss. 718(

a) and (b)) are considered essential in sentencing for robbery – and that usually requires a lengthy jail sentence. [ 36 ] On the other hand, in considering the long-term safety of the community, a sentence that encourages Ms. Akpik to battle her past and work to become a fully functioning adult member of her community, as the sentence proposed by the Defence is intended to do, has some merit. In addition, s. 718.2(

e) requires that I consider restraint. [ 37 ] Former NCJ Justice Kilpatrick considered the issue of use of the sentencing principles in the case of an accused with FASD (Fetal Alcohol Spectrum Disorder), in R v Joamie , 2013 NUCJ 19 . Many of these issues may well be similar for survivors of child sexual abuse. [32] The Yukon Territorial Court in Harper [2009 YKTC 18] at paragraph 30 and 31 makes the following comments about how the cognitive impairments associated with FASD challenge the basic assumptions of sentencing.

The purpose and principles of sentencing found in the Criminal Code assume that offenders are capable of making choices, understand the consequences of their actions, and when punitive sanctions are applied, are capable of learning from their mistakes so as not to repeat them. General deterrence, meaning that the punishment given to one person for breaking the law will operate to deter other persons, presupposes the ability of those other persons to process and translate information as well as to remember it.

Similarly, rehabilitation, as it is conventionally understood, is largely a cognitive process premised on the ability to understand, to learn, to remember and to make choices. None of these assumptions fit well with what is known about FASD, a permanent form of brain damage that can affect all parts of the brain. The fundamental principle contained in s. 718.1 of the Code also requires that the sentence be proportionate to the "degree of responsibility of the offender".

What does this mean for an offender who . . . suffers from an organic brain disorder that affects not only his ability to control his actions, but also his understanding of the consequences that flow from them? [33] In order to craft a fit sentence for an offender with FASD related cognitive deficits, the Court must embark upon a two stage analysis. [34] The Court must first assess the moral blameworthiness of the offender in light of the impact that the cognitive deficits attributable to FASD had upon offender’s behavior. This assessment cannot be done in the abstract.

Forensic medical or psychiatric evidence is required to understand how the offender’s cognitive deficits impacted his or her behaviour and so contributed to the commission of the offense before the Court. [35] The Court must then seek to balance the need to protect the public on the one hand, with the feasibility of reintegrating the offender back in to the community through alternative sanctions.

Where specialized community based treatment programs are available for an offender that are sufficient to address the FASD offender’s special needs, the Court must assess whether such programs are likely to mitigate or reduce the offender’s risk of reoffending.

[36] Where the Court concludes that the use of such community based programs for a particular offender may better achieve the long term protection of society, then in keeping with a finding of diminished responsibility, the Court should consider the use of a non- custodial sanction, or reduce the length of the custodial sanction that would otherwise be employed in combination with the use of the community based treatment program. [ 38 ] This approach, suggested by Justice Kilpatrick, was used by Justice Sharkey (now Chief Justice) in R v Ipeelee , 2015 NUCJ 38 to impose a sentence of 289 days plus three years’ probation on two counts of robbery committed by an 18-year-old Inuk male with no previous criminal record, who was clinically diagnosed with FASD.

Defence counsel had found a secure placement for Ipeelee’s treatment of his FASD. [ 39 ] One difference with survivors of child sexual abuse as opposed to individuals with FASD is that the brain deficits that can result from abuse are subject to treatment, according to Dr. Granger-Brown, while FASD is a permanent condition. According to Dr. Granger- Brown’s evidence, treatment for childhood trauma can increase pro-social behaviours. All the more reason to consider a treatment-based sentence for Ms.

Akpik. [ 40 ] Considering all the facts and factors, it is my view that a sentence of imprisonment of nine months (time served) to be followed by a three-year probation order would be appropriate. It addresses the harm done to the community and Mr. Mehraz by this robbery and sends a message that jail is required for this type of offence, while also requiring that Ms.

Akpik get treatment to address her childhood trauma so hopefully she will stay out of trouble in the future. [ 41 ] The conditions of probation will be: • Keep the peace and be of good behaviour, and other statutory conditions; • Contact the probation office within three days of today’s date and thereafter as required; • Attend and complete such residential or outpatient treatment and/or counselling as may be arranged by your probation officer; • For the first six months of probation, follow a curfew and be in your home (address to be provided to probation officer) between the hours of 9pm to 7am, except as approved by your probation officer, in advance; • If the RCMP come to your door, or phone your residence to check on curfew compliance, you must present yourself peacefully at the door, or answer the telephone; • You must abstain absolutely from the consumption or possession of alcohol or other intoxicating substances including marijuana unless lawfully prescribed by a physician, unless and until your probation officer applies to amend this condition and it is amended; • You must prepare an apology letter to Mr.

Adal Mehraz to the satisfaction of your probation officer who will provide it to Mr.

Mehraz; • If you request a taxi, you must tell the dispatcher who you are and say, “don’t send Adal”; and • You must perform 150 hours of community service as arranged by your probation officer. [ 42 ] Because of the seriousness of the offence, the Criminal Code requires that I make an order under s. 487.051 for the taking of samples suitable for DNA analysis, so your DNA can be placed in the national database. [ 43 ] As well, I am required under s. 109 of the Criminal Code to prohibit you from the possession of any firearm for a minimum of ten years, and I do so.

I do not object if you wish to apply for an exemption under s. 113 for the purpose of subsistence hunting. [ 44 ] Finally, the Court orders the forfeiture of the knife and firearm seized in the investigation of this offence. Dated at the City of Iqaluit this 9th day of February, 2021

___________________ Justice S. Charlesworth Nunavut Court of Justice