R. v. Panipakoocho, 2022 NUCJ 43

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Panipakoocho, 2022 NUCJ 43 Date: 20221201 Docket: 08-19-815 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Wayne Panipakoocho __________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): Counsel (Accused): A. Dion J. Foord K.

Selkirk Location Heard: Date Heard: Iqaluit, Nunavut November 10, 2022 Matters: Sentencing decision in regards to charges under Criminal Code of Canada, RSC 1985, c C-46, ss. 98(4) , 86(3) , and 229 REASONS FOR DECISION (Delivered Orally) (NOTE: This document may have been edited for publication) [ 1 ] Hannas Braun died on June 30, 2019 after being shot in the leg by a single bullet fired at close range from a .270 cal. Ruger, a high-powered hunting rifle. The bullet travelled in a downward trajectory and pierced both of Mr. Braun’s femoral arteries causing him to bleed to death in a matter of minutes.

[ 2 ] Wayne Panipakoocho admitted to shooting Mr. Braun and was charged with first degree murder. He was also charged with other offences relating to events that took place on June 30, 2019: including one count of breaking into a cabin and stealing a firearm in the hours before the shooting contrary to s. 98(3) of the Criminal Code ; and one count of carrying a firearm in a careless manner contrary to s. 86(3) of the Criminal Code . [ 3 ] Mr. Panipakoocho pled not guilty to the first degree murder charge but guilty to the s. 86(3) and s. 98(3) offences.

He elected to be tried by a judge alone. [ 4 ] It is not in dispute that Mr. Panipakoocho also offered to plead guilty to manslaughter early on in this case. The Crown chose not to accept the guilty plea and a trial became necessary. [ 5 ] His trial was held before me in Iqaluit from March 28 to April 8, 2022. On September 28, 2022, I found Mr. Panipakoocho not guilty of first degree murder but guilty of the lesser included offence of manslaughter. [ 6 ] On November 10, 2022, counsel appeared before me to make sentencing submissions. The following are my reasons and decision with respect to sentence. I.

MANSLAUGHTER [ 7 ] The circumstances of the offence are described in R. v. Panipakoocho , 2022 NUCJ 33 . I will not repeat much of what is described in those reasons but it is important, in order to provide context to the sentence being imposed, that I revisit certain relevant facts. [ 8 ] As I wrote in the conviction decision, “Mr. Panipakoocho admits that shortly after 7:25 a.m. on June 30, 2019, while inside his aunt’s apartment in Iqaluit, he fired a single shot at Mr. Braun from a Ruger, model M77 Mark II, .270 calibre WIN bolt action rifle that had been stolen earlier that morning. The bullet hit Mr.

Braun in the left thigh and … Mr. Braun bled to death shortly after being shot.” [ 9 ] Mr. Panipakoocho killed Mr. Braun only 10 days after Mr. Panipakoocho had moved to Iqaluit from Pond Inlet. He was sent to Iqaluit on June 20 as part of bail release conditions imposed because of a serious assault he committed on June 19. Once in Iqaluit, he began living with his aunt in his aunt’s apartment. He made contact with an acquaintance, Dennis Ipeelie, who would eventually introduce him to Mr. Braun. [ 10 ] In the early morning hours of June 30, Mr. Ipeelie wanted to cause trouble for a rival in Iqaluit. He and Mr.

Panipakoocho stole six firearms hanging on the walls of the rival’s shack in Apex, some of which were loaded. They then burned down the shack and drove back to Iqaluit. One of the firearms, a .270 cal. Ruger, ended up in Ms. Panipakoocho’s apartment in the early morning, along with Mr. Panipakoocho, his cousin Pauline, and Mr. Braun. [ 11 ] We do not know exactly what happened there, but after asking Mr. Braun to leave a number of times and sending texts to his girlfriend and Mr. Ipeelie threatening to shoot Mr. Braun, Mr. Panipakoocho fired the single fatal shot at Mr.

Braun. [ 12 ] I found, after considering the evidence at trial, that while Mr. Panipakoocho caused Mr. Braun’s death, he did not mean to cause his death nor did he mean to cause him bodily harm that he knew was likely to cause death and was reckless whether death would ensue. [ 13 ] I found instead that Mr. Panipakoocho’s deliberate act of aiming the rifle at Mr. Braun’s legs satisfied me that he only meant to cause Mr. Braun serious injury, not death. Consequently, I found Mr. Panipakoocho guilty of manslaughter. II. POSITIONS OF THE PARTIES ON SENTENCE

A. Crown [ 14 ] The Crown argues that any reasonable person would appreciate the extreme danger of firing a .270 rifle at a person at close range, and thus objectively this killing was very close to murder, and Mr. Panipakoocho should be sentenced accordingly. [ 15 ] Chief Justice Sharkey of this court dealt with a “near murder” manslaughter in R . v. Geetah , 2015 NUCJ 10 and decided that the sentencing range for such an offence in Nunavut should be 10 – 15 years. The Crown relies on other sentencing principles in this case to argue that the appropriate range of sentence here is 11 – 13 years in custody. B.

The Defence [ 16 ] The Defence points to many factors, including that Mr. Panipakoocho expressed deep remorse for the offence as soon as he found out what happened to Mr.

Braun, offered at an early stage to take responsibility and plead guilty to manslaughter which would have avoided the trial in this case, and that he has worked during his time in custody – which was largely served in the south during the height of Covid restrictions – to begin to rehabilitate himself. [ 17 ] The Defence argues this should be considered a mid-range manslaughter, as there was only objective foreseeability of serious bodily harm and no subjective knowledge that death would result.

The Defence says a sentence of six years, inclusive of time served, in custody to be followed by two years of probation is a fit and proper sentence. III. SENTENCING PRINCIPLES IN MANSLAUGHTER CASES [ 18 ]

Part XXIII/Sentencing of the Criminal Code provides the statutory framework under which I must craft a fit and proper sentence for Mr. Panipakoocho. [ 19 ]

Section 718 sets out the fundamental purpose of sentencing, which “is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions” with the objectives of denunciation, deterrence, separating offenders from society if necessary, rehabilitation, reparations and to promote a sense of responsibility in offenders. [ 20 ] The Crown argues that denunciation and deterrence are the primary purposes of the sentence to be imposed in this case.

Because this was a case where a firearm was used, I agree. [ 21 ] The fundamental principle of sentencing, set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 22 ] I pause here to discuss why manslaughter convictions are not homogenous, and sentences for such conviction necessarily vary widely based on the moral culpability of the offender. [ 23 ] As stated in R. v.

Laberge , 1995 ABCA 196 , at paragraph 6 : It is precisely because a sentence for manslaughter can range from a suspended sentence up to life imprisonment that the court must determine for sentencing purposes what rung on the moral culpability ladder the offender reached when he committed the prohibited act.

The purpose of this exercise is to ensure that the sentence imposed fits the degree of moral fault of the offender for the harm done. [ 24 ] The Alberta Court of Appeal suggests the way to categorize manslaughter in Laberge at paragraph 9 : Unlawful acts may be divided into three broad groups: those which are likely to put the victim at risk of, or cause, bodily injury; those which are likely to put the victim at risk of, or cause, serious bodily injury and those which are likely to put the victim at risk of, or cause, life-threatening injuries.

Only when the offender's proven mental state at the time of commission of the offence is evaluated in the context of the crime itself, in other words in terms of its relative degree of seriousness, is it possible to classify for sentencing purposes the degree of fault inherent in the crime committed. [ 25 ] I also find paragraph 24 in R . v. Badhesa , 2019 BCCA 70 helpful: A sentencing judge assesses moral culpability for manslaughter by considering the offender’s mental state in the context of the unlawful act itself and the offender’s personal characteristics, blending and balancing all in combination.

Factors that weigh in the balance include intentional risk-taking, the harm caused, the normative character of the offender’s conduct, the degree of deliberation involved, the existence of provocation and the element of chance involved in the resulting death. [ 26 ] Returning to the provisions of the Criminal Code , Paragraph 718.2 (

a) says that the sentence I impose should be increased if there are aggravating circumstances and decreased for mitigating circumstances. Paragraph (

b) requires that the sentence imposed should be similar to sentences imposed on similar offenders for similar offences in similar circumstances, and paragraph (

e) reminds me to pay particular attention to the circumstances of Mr. Panipakoocho as an Inuk offender. [ 27 ] Parts of

section 719 are also relevant, because Mr. Panipakoocho has been in custody since June 30, 2019. That provision says I may take into account the time Mr. Panipakoocho has spent in custody, to a maximum of one and one-half day credit for each day spent in custody. A. Relevant Sentencing Information [ 28 ] Both the Crown and Defence provided written statements from the families and friends of Mr. Braun (Victim Impact Statements) and Mr. Panipakoocho. Both men had two children and other close family members who loved them and who were, and still are, affected by the events of June 30, 2019.

I have read all of the statements provided to the court. I know they were hard to prepare, and I thank all the authors for taking the time to write about their feelings. [ 29 ] The loss for Mr. Braun’s family is forever, and it was solely caused by Mr. Panipakoocho. Clearly, Mr. Braun was a huge support to his mother, sister, aunts, cousins, partner, children (I was touched by the drawing his daughter provided the Court of being at the playground with her father) and friends as well.

I cannot heal their hurt, which is described in the many Victim Impact Statements, but it is always in my thoughts as I consider the appropriate sentence. [ 30 ] I also read the many cases provided by the Crown and defence, demonstrating the vast array of possible sentences that could result from a manslaughter conviction. i. Prior record [ 31 ] As a young person, Mr. Panipakoocho was dealt with in Youth Justice Court a number of times between 2014 and 2018 for various assault and uttering threat charges, as well as failing to comply with orders.

Mainly he was placed on probation each time, until July 2018, when he was given a deferred custody sentence of 180 days for an assault. [ 32 ] Much more importantly, Mr. Panipakoocho also had an adult criminal record at the time of this offence, again consisting of assault, mischief, causing disturbances, and failures to comply with various orders. At the time of this offence, he had an outstanding

charge of assault causing bodily harm committed in Pond Inlet in June, 2019. In that assault, Mr. Panipakoocho kicked the victim, who was lying on the ground, in the head many times in what the sentencing judge described as prolonged, sustained violence against the victim. [ 33 ] When Mr. Panipakoocho was charged with that assault in June 2019, he was released on bail with conditions including to keep the peace and be of good behaviour, abstain from alcohol and other intoxicating substances, reside at his Aunt Brenda’s home in Iqaluit, and other conditions. At the same time, Mr.

Panipakoocho was also on a probation order dated March 18, 2019, to abstain from alcohol and other intoxicating substances, keep the peace and be of good behaviour and other conditions. He obviously made little if any attempt to follow either of those orders that were in effect on June 30, 2019. [ 34 ] Mr. Panipakoocho pleaded guilty to the charge of assault causing bodily harm on October 8, 2020, and received a sentence of six months in jail, which must be considered when calculating Mr. Panipakoocho’s time in pre-sentence custody. ii.

Local information [ 35 ] The Crown provided a document prepared by Statistics Canada titled, “Police-reported crime statistics in Canada, 2021” which pointed out that the 2021 rate of homicide of Indigenous people was about six times higher than non-Indigenous people, and 41% of homicides that year were firearm related. [ 36 ] Firearms are very common in Nunavut, where many Inuit and others still hunt for sustenance. It is important that the sentence I impose reminds the Territory that the misuse of firearms is strongly condemned by this Court. iii. Pre-trial custody [ 37 ] Mr.

Panipakoocho was arrested within hours of the murder of Mr. Braun and detained in custody. He was at the Baffin Correctional Centre (BCC) in Iqaluit from July 2019 until sometime in October 2020 when he was transferred to the Central East Detention Centre (CECC) in Lindsay, Ontario after being attacked at BCC. Mr. Panipakoocho was transferred back to Iqaluit around March 2022. [ 38 ] While in CECC, Mr. Panipakoocho completed Bible Study Courses offered by the Chaplaincy Department as well as all eight of the Gospel Echoes Home Bible Study courses offered.

He consistently attended and completed Aboriginal programs offered by the Aboriginal Department: “new beginnings for new men”, “wild rice harvesting”, and “trapping and furs”. He also met with an Elder who shared his story and healing journey through the “Residential School Survivor” program. At CECC the Aboriginal programs are aimed at First Nations people rather than Inuit, but Mr. Panipakoocho nevertheless received positive reports for attendance and progress in them. [ 39 ] Mr.

Panipakoocho filed a reference letter by a CECC Correctional Officer of 15 years, indicating that he was always “respectful and polite with staff”. During the time Mr. Panipakoocho was at CECC, he took on responsibilities “as Wing Cleaner and even held the Pod Cleaner position right up until he left”. Mr. Panipakoocho “ran a very peaceful and quiet unit and encouraged others to be respectful and polite.

I feel that through various programs and support Wayne has made steps in the right direction to become a better person in his daily life.” [ 40 ] Defence counsel also provided me with “running records” documenting Mr. Panipakoocho’s work in the kitchen at Akausisarvik Correctional and Healing Facility in Iqaluit between May and November 2022. He showed up for almost all shifts and did the work requested of him, many times, “very well.” iv. The effect of COVID-19 on sentence calculation [ 41 ] Mr.

Panipakoocho was on remand starting before the COVID-19 pandemic and throughout the major lock-downs of remand facilities that were required as a result. As noted in decisions from mid-2020 such as my decision of R . v. Campbell , 2020 NUCJ 28 and Chief Justice Sharkey’s decision of R . v. Pangon , 2020 NUCJ 30 (and cases cited in each) conditions in remand facilities were very

strict, and prisoners were under significant threat from COVID, particularly in Ontario remand centres. The Defence asks that I also take that into consideration in assessing the appropriate sentence for this offence. [ 42 ] Since my decision in Campbell in which I shortened an otherwise appropriate sentence because of harsher conditions in custody during COVID, Chief Justice Sharkey also considered this issue and stated, “COVID-19 should be taken into account when arriving at a fit sentence.

The pandemic should not, however, operate as an automatic reduction of sentence, or allow a specific reduction to an otherwise fit and proper sentence” ( Pangon ). I agree with Chief Justice Sharkey’s analysis. [ 43 ] In my view, COVID-19 should be taken into account in this case as a mitigating factor in the overall sentence, in the same way as I will take into account the positive reports filed regarding how Mr. Panipakoocho spent his time in custody to work on his own rehabilitation. Despite relatively harsh conditions, especially in the CECC, Mr.

Panipakoocho conducted himself in such a way that he was given a responsible job in the institution and also completed a string of programs. v. Mr. Panipakoocho’s background [ 44 ] Mr. Panipakoocho was 19 years old at the time of this offence. He was raised by his grandparents in Pond Inlet, but they both passed away of cancer within about a year of each other when he was about 16-17 years old; he also suffered the loss of some friends by suicide. Family members report that they all had difficulty dealing with these losses, that continued in 2019. Mr.

Panipakoocho’s mother resides in Pond Inlet where he has three younger siblings. At the time of the offence, he had a job at a local mine, for which he worked two weeks on and two weeks off. Mr. Panipakoocho was helping to support his family, including two young children of his own. Unfortunately, he was also abusing alcohol, and getting into trouble. His family misses him and will support him when he is able to return to Pond Inlet. IV. OTHER FACTORS i.

Aggravating Factors [ 45 ] The use of a firearm is a serious aggravating factor, and as I said already, requires that denunciation and deterrence be emphasized in the sentence I impose. Mr. Panipakoocho’s prior criminal record is aggravating, as is the fact that he was subject to a probation order and a release order with conditions that he stay out of trouble. I do not consider his Youth Record as important in this regard, because youths are seen to be in need of guidance and have diminished responsibility for their actions. ii. Mitigating Factors [ 46 ] Mr.

Panipakoocho was still a young man at the time of the offence and was away from his hometown and on his own for the first time in his life. He seemed to be trying to impress Mr. Ipeelie, who instigated the visit to the shack that night. iii.

Gladue Factors [ 47 ] So-called “Gladue factors” relate to considerations on sentence related to the disadvantages in many indigenous communities as a result of colonization, caused by colonization such as the destruction of traditional lifestyles, removal of children to attend residential schools, and the removal of others for treatment of health conditions sometimes spread by colonizers. Mr. Panipakoocho’s life was affected by such factors: the relatively early death of his grandparents, by whom he was raised; at least one of his friends committed suicide when Mr.

Panipakoocho was in his mid-teens; and he was exposed to alcohol at a young age. V. ANALYSIS AND DECISION

[ 48 ] I found Mr. Panipakoocho guilty of manslaughter because the Crown did not prove beyond a reasonable doubt that he knew the shot he took was likely to cause Mr. Braun’s death. However, any reasonable person would be aware of the extremely dangerous action of shooting someone in the leg with a high-powered rifle at close range. [ 49 ] Mr. Panipakoocho was not new to firearms, and the evidence at trial was that he tried to aim at Mr. Braun’s lower body so as not to kill him, but in the result, the shot turned out to be extremely dangerous.

It is hard not to believe objectively that a high powered rifle shot to the leg, while not expected to kill the victim, would cause significant, life altering injuries. I find this is a manslaughter which attracts a high level of moral culpability. [ 50 ] However, Mr. Panipakoocho expressed extreme remorse as soon as he heard he was being arrested for murder, and he has used his time in prison very effectively to start his own rehabilitation, despite being in harsh conditions for much of his time in CECC as a result of Covid protocols.

In all of the circumstances, taking into account all of the above, including the range suggested by Chief Justice Sharkey in the Geetah case, it is my view that a sentence of nine years in custody would be appropriate. [ 51 ] As mentioned at the very start of these reasons, Mr. Panipakoocho has plead guilty to two additional charges. I add three months of custody for the break and enter of the shack where the rifle was stolen. In relation to the s 86(3) charge, on the facts heard at trial, I find that the careless carrying of the firearm was a panicked response to the shooting of Mr. Braun, and Mr.

Panipakoocho readily agreed to and did help police find the weapon when he was arrested. I believe the sentence on that charge – three months in custody – should be concurrent to the manslaughter sentence. [ 52 ] The total sentence I impose today is nine years and three months in custody, or 111 months. [ 53 ] Mr. Panipakoocho was arrested on June 30, 2019 and to date he has served 41 months of pre-trial custody. I believe he is entitled to receive the credit specified in s. 714(3.1) of 1.5 days for every day spent in custody.

That would make the effective time spent in custody 61.5 months. [ 54 ] From that figure, I subtract the six-month sentence he received for the Pond Inlet assault; the time spent on account of this offence is 55.5 months. He therefore has another 55.5 months to serve. [ 55 ] Finally, in addition to the sentence imposed, I order that Mr. Panipakoocho provide the mandatory DNA sample. I also order, pursuant to

Section 109 of the Criminal Code , a 15-year firearms prohibition. Dated at the City of Iqaluit this 1st day of December, 2022 ___________________ Justice S. Charlesworth Nunavut Court of Justice