R. v. Campbell, 2020 NUCJ 28

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Campbell, 2020 NUCJ 28 Date: 20200615 Docket: 08-19-503, 08-20-37, 08-19-553, 08-20-09, 08-19-465 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Robert Campbell ________________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): E. Baasch Counsel (Accused): M.

Manocchio Location Heard: Iqaluit, Nunavut Date Heard: June 15, 2020 Matters: Sentencing for offences under Criminal Code of Canada, RSC 1985, c C-46, ss. 266 , 145(5.1) , 267 (a), 430(4) , and 264.1(1) (a); Cannabis Act , SC 2018, c 16, s. 10(2) ; and Controlled Drugs and Substances Act , SC 1996, c 19, s. 4(1) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Robert Campbell plead guilty on 18 February 2020 to the following string of charges all committed in Iqaluit. A Pre-Sentence Report was ordered and I sentenced him on 15 June 2020. This is my written decision. A. Drug offences [ 2 ] On 23 June 2019 last year, Mr. Campbell was found by the police to be intoxicated and causing a disturbance outside the Storehouse when they attended in response to a complaint about men fighting. When he was searched incident to the arrest, the police found 72 grams of marijuana split into three bags.

Later at the jail, police found six tablets of Dilaudin (Hydromorphone) on his person. [ 3 ] He was charged with possessing cannabis for the purpose of selling it, and possessing a substance included in

Schedule 1 of the Controlled Drugs and Substances Act . He was released on a promise to appear in court in September 2019. B. Assault at the Legion [ 4 ] On 7 July 2019 the RCMP were called regarding an assault at the Legion in the early morning hours. They spoke to Roberto Zanetti, who was bleeding from his face and the back of his head. Mr. Zanetti explained that he had words with Robert Campbell, who cut in front of him in a line. The argument turned heated and the men went outside. When Mr. Zanetti turned and walked away, he was hit in the back of the head by Mr. Campbell. [ 5 ] Mr.

Campbell was charged with assault and released on an Officer Undertaking and a promise to appear in court in October 2019. C. Assault at the Frobisher Inn [ 6 ] The RCMP were called in the early morning on 6 September 2019 by a security guard at the Frobisher Inn. Two men on the property were intoxicated and refused to leave. As the security guard, Dido Kabuya was trying to lead one of the men - Mr. Campbell - out, Campbell started to fight him and the two men went to the ground. Mr. Campbell struck Mr. Kabuya in the head, but that did not prevent Mr.

Kabuya from getting both men outside the Inn and calling the police. [ 7 ] Mr. Campbell was charged with assault and breach of the July 7 Undertaking by not abstaining from the consumption of alcohol. Mr. Campbell was released, on a Recognizance this time, to attend Court on all above charges at the end of September. D. Assault at private residence [ 8 ] On 15 December 2019, the RCMP were called to a residence building in Iqaluit, where Samson Papatsie and Eva Qappik were punched and hit by Robert Campbell while smoking outside their home. Apparently, Mr. Campbell thought they were trying to steal his shoes. Ms.

Qappik was only 16 years old at the time, and she fell when Mr. Campbell hit her. [ 9 ] Again, Mr. Campbell was charged with assault and released on an Undertaking, to attend Court on all charges on 18 February 2020. On this information, he pleaded guilty to one count which included assault on both victims. E. Assault in Apex

[ 10 ] Finally, on 18 January 2020 at 3am, the RCMP were called to Apex by Leia Cunningham, with whom Mr. Campbell had a relationship in the past. She advised that Robert Campbell was intoxicated and unwanted at her residence. On the way to Apex, the officers were advised by dispatch that the man, known by the victim to be Robert Campbell, was pointing a gun at Ms. Cunningham, although she was “pretty sure” it was not real. [ 11 ] When the RCMP arrived at the address, they saw Ms. Cunningham running away with no jacket or shoes on, and very distressed.

She had been assaulted, and in fact suffered facial swelling and bruising for two to three weeks. The RCMP breached the door of the home, but no one was inside; they found Robert Campbell hiding on the porch of a nearby house. He came out when called. A pistol grip was found nearby; no other weapon was found. Mr. Campbell has no recollection of the incident and can only think he may have had a toy gun that he had bought for his son. [ 12 ] Upon arrest, Mr. Campbell was very erratic, high-strung and aggressive.

He said to the officers: “I’m going to choke you; can’t wait, bitch” and when read his right to retain and instruct counsel without delay, he said, “I’m going to choke you to death.” [ 13 ] While she was on the initial call to the RCMP, Ms. Cunningham heard things being smashed in her kitchen: DVD’s, electronics and glassware were found to be broken and thrown about, and a family heirloom cabinet was irreparably damaged. [ 14 ] Out of this situation Mr.

Campbell was charged and pled guilty to assault with a weapon on Leia Cunningham, causing mischief to her property and uttering a threat to cause bodily harm or death to Cst Charles Faubert. I have read the Victim Impact Statement provided by Ms. Cunningham in which she outlines the almost debilitating effects of the assault and mischief on her. II. SENTENCING [ 15 ] Mr. Campbell was detained in custody on 18 January 2020 and pleaded guilty to the charges outlined above, all of which were proceeded with summarily, on 18 February 2020.

A pre-sentence report was requested, and sentencing was adjourned to 7 April 2020. [ 16 ] Unfortunately, that date was cancelled by the COVID-19 pandemic effect on the operation of Court Services. [ 17 ] Counsel are agreed, taking into consideration all of the facts, the pre-sentence report and Mr.

Campbell’s prior record, that a total sentence of 15 months in jail is appropriate in these circumstances, apportioned as follows: • 10 days concurrent on the two drug charges; • Four months for the Legion assault; • One month for the Frobisher Inn assault; • Four months for the assault on the neighbours; and • Six months for the serious assault with a weapon on his former domestic partner. [ 18 ] Following his time in custody, Mr.

Campbell will be given a probation order for 18 months, to help his rehabilitation. [ 19 ] In assessing this position, I start by considering the fundamental principle that the sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Over a period of almost six months, Mr. Campbell assaulted five separate individuals in four separate locations across Iqaluit, from well-known businesses to private residences. Each individual offence was relatively low on the gravity scale, as shown by the

summary conviction elections of the Crown. However, two of the offences are statutorily aggravating because of the young age of one victim and the domestic nature of the previous relationship with another victim.

[ 20 ] I also consider the purpose of sentencing set out in s. 718 – to impose just sanctions that have one or more of these objectives: denunciation, deterrence of the offender and others, separation if necessary, rehabilitation, reparation and promoting a sense of responsibility in offenders. Mr. Campbell’s guilty plea and his prepared statement to me show he is taking responsibility for these offences and intends to work on rehabilitating himself.

The pre-sentence report outlined some Gladue factors that also need to be considered in this case, per s. 718.2(e). [ 21 ] In all of the circumstances, I agree with counsel that a sentence of 15 months with probation for a further 18 months fulfills the purposes of sentencing. [ 22 ] Mr. Campbell has now been in custody for a little over five months and is entitled to credit for that time. Due to the lack of earned remission time while in remand I give him credit of 1.5:1 per Criminal Code s. 719(3.1) and R v Summers , 2014 SCC 26 .

This brings his effective time spent in custody to a total of 234 days. [ 23 ] The issue between counsel is whether and how to account for the effect of COVID-19 on prison conditions and what, if any, sentencing considerations should be made on account of such conditions. Time in custody during the current pandemic, depending on public health and geographic realities, may be harsher time in custody than usual.

This is so not only because authorities have put in place restrictions to try to keep inmates safe, but also because of the general uncertainty about the present and future wellbeing of individuals and society.

The Crown agrees that such considerations may be used to reduce an otherwise appropriate sentence, but argues that in this case, such a reduction would render this sentence unfit. [ 24 ] According to information from the Warden, Thomas Langman, in Baffin Correctional Centre the changes to operations as a result of COVID-19 are: • All visits cancelled; • All programs cancelled, including elder counselling; • Country food no longer provided; • Money transfers cancelled; and • Outdoor time reduced to 2-3 times a week for 30 minutes or so. [ 25 ] These changes were instituted 16 March 2020 and continue to date.

These changes are to protect inmates and staff at the institution, where public health measures such as social distancing are not readily available. Protecting the inmates and staff then also protects the public in Iqaluit. The measures are imposed even though our Territory continues to be “COVID free” because that status could change at any time. [ 26 ] I was advised by counsel that the cancellation of visits means Mr. Campbell cannot see his four children, who live in Iqaluit and would normally visit him at BCC. As well, Mr.

Campbell wishes to take programs while in custody and to transfer money to his family (tax refund, and work payments) but cannot do either. The reduction in outdoor time and lack of country food also impact Mr. Campbell. [ 27 ] I was provided with a number of cases, most from Ontario, regarding whether and how and when a sentencing judge can take into account harsh circumstances of incarceration. [ 28 ] This is not a new consideration on sentencing.

If incarceration has a deterrent effect, then surely more harsh incarceration should be considered to have a stronger deterrent effect. [ 29 ] As Justice Pomerance said in R v Hearns , 2020 ONSC 2365 , at para 16 , Punishment is increased [by COVID measures in jails], not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

[ 30 ] In Nunavut where programming is often available for prisoners, punishment is also increased by loss of programs as well as family visits. As noted above, Mr. Campbell was not able to have any visits from his family during remand, nor assistance from Elders or other counsellors. Mr. Campbell was also subject to the money transfer restrictions: not only could he not see his four children, but he could not provide money for them, as I was told he otherwise would have done.

These restrictions will continue going forward. [ 31 ] To quote Justice Pomerance again, this time at para 20, “the impact of the pandemic is a matter that is extraneous to the pillars of proportionality – the gravity of the offence and the moral blameworthiness of the offender.” Our usual calculus regarding proportionality must adjust to consider the harshness of conditions now. It must consider that the time Mr. Campbell has yet to spend in custody will be harsher for an unknown period of time. [ 32 ] As I noted earlier, I have given Mr.

Campbell the maximum allowable amount of credit for his pre-sentence custody: 1.5 days for every 1 day per section 719(3.1) of the Criminal Code . In these circumstances, I also feel that it is appropriate to reduce Mr. Campbell’s sentence going forward by 60 days because of the harsher conditions of his incarceration. [ 33 ] 15 months is 450 days, followed by 18 months of probation. Pre-sentence custody at a credit of 1.5:1 reduces that sentence by 234 days. With the 60 days by which I have chosen to reduce Mr.

Campbell’s sentence, that leaves 156 days remaining to be served. [ 34 ] There will be a mandatory DNA order and forfeiture of seized items. Dated at the City of Iqaluit this 15th day of June, 2020 ___________________ Justice S. Charlesworth Nunavut Court of Justice