R. v. Shoo, 2020 NUCJ 45

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Shoo, 2020 NUCJ 45 Date: 20201222 Docket: 08-19-816, 08-19-622 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Oolayou Shoo ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): E. Baasch Counsel (Accused): M. Manocchio Location Heard: Iqaluit, Nunavut Date Heard: December 16, 2020 Matters: Sentencing for offences pursuant to Criminal Code of Canada, RSC 1985, c C-46, ss. 86(2) (x2), 87(2) (x2), 88(2) , 145(3) (x2) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Within a six-week period Oolayou Shoo was involved in two separate standoffs with RCMP officers in Iqaluit. Firearms were involved in each of the incidents. He is before the court to be sentenced. II. FACTS A. October 2, 2019 [ 2 ] Shortly after midnight on October 2, 2019, RCMP responded to a complaint of a domestic altercation at #203, unit 2, in Iqaluit. When they arrived at the residence Mr. Shoo's partner, EI, was outside. She told the RCMP that she and Mr. Shoo had argued and that he was intoxicated and upset.

She also told them that there were two children in the residence, ages six years and two years. She gave the RCMP keys to the residence. [ 3 ] Two RCMP officers went up the stairs to the residence. The door was locked. Mr. Shoo opened a window next to the door and told the RCMP that he did not need them. He was asked to open the door and refused. He said to the police “do you want me to blow my head off in front of the kids.” He refused to speak with the police. [ 4 ] More RCMP members arrived on the scene. A police officer on the landing of the stairs spoke to Mr. Shoo through the window. Mr.

Shoo placed the rifle under his chin then moved the rifle and pointed it at the police officer. He repeated this motion several times. When asked, he refused to tell the police whether the rifle was loaded. At one point Mr. Shoo brought the children to the window. [ 5 ] Police officers remained stationed outside of the residence and attempted to resolve the matters. Thirteen hours later, Mr. Shoo left the residence with the two-year-old in his arms. He put the child on an ATV and appeared to be attempting to leave. Police blocked the ATV and were able to arrest Mr.

Shoo without incident. [ 6 ] A search of the residence was conducted. Inside the police found five firearms, one rifle barrel, three rifle stocks, one magazine, and a variety of ammunition. Mr. Shoo was released from custody with conditions, which included a condition that he not drink and a condition that he have no contact with EI. [ 7 ] As a result of this incident Mr. Shoo has pleaded guilty to charges of unlawful storage of firearms, possession of a weapon for a dangerous purpose, and pointing a firearm. B.

December 17, 2019 [ 8 ] At approximately 5:00 pm on December 17, 2019 RCMP responded to a report of a possible case of impaired driving. Mr. Shoo was identified as the driver. Police were unable to locate the vehicle in the area where it was said to be travelling and once again found themselves at #203, unit #2 in Iqaluit. Mr. Shoo was inside the residence. EI and a child were outside. Police entered the residence and determined that Mr. Shoo was in a bedroom with the door closed and locked. Police managed to open the bedroom door. Upon doing so they determined that the door had been barricaded. [ 9 ] Mr.

Shoo was in the corner of the bedroom with a rifle under his chin. He yelled at the RCMP to “get the fuck out.” The police exited the residence. The critical response team was called, and police attempted to negotiate a peaceful resolution to the matter. At one

point Mr. Shoo came out of the residence with the rifle shouldered and pointed it at a group of police officers. On another occasion he pointed the rifle at one officer. Approximately five hours later Mr. Shoo exited the residence and the matter was resolved peacefully. [ 10 ] A search of the residence was conducted. One firearm plus ammunition was found. [ 11 ] As a result of this incident Mr. Shoo has pleaded guilty to charges of unlawful storage of a firearm, pointing a firearm, and two breaches of a Release Order, one for drinking and one for having contact with EI when he was not supposed to. III.

SUBMISSIONS A. Crown [ 12 ] On the charges arising October 2, 2019, the Crown seeks a global sentence of 12 to 18 months. [ 13 ] On the charges arising December 17, 2019, the Crown seeks a global sentence of two years less a day. B. Defence [ 14 ] The Defence seeks a global sentence on both sets of charges of 18 months, resulting in a “time served” sentence, followed by a lengthy period of probation. IV. VICTIM [ 15 ] No victim impact statement has been provided. It is simply common sense that these incidents would have been traumatic for those involved.

In particular, the children who saw the incidents, some of whom were in the residence with Mr. Shoo on the first occasion, would be deeply impacted by the events. V. OFFENDER [ 16 ] Mr. Shoo is 25 years old. He was raised by his mother and his grandmother. His mother says that she drank up until the seventh month of her pregnancy and, although there is no diagnosis, she thinks he has fetal alcohol syndrome disorder. Mr. Shoo started to have difficulties in school and dropped out when he was in grade ten. After leaving school he spent a lot of time on the land. [ 17 ] The mother says that Mr.

Shoo’s behaviour began to change when he was in his early twenties; that his reasoning became odd and he did not seem to understand things. [ 18 ] Mr. Shoo has three children with EI. The youngest child was born after he was arrested and remanded into custody and Mr. Shoo has not spent any time with the child. [ 19 ] He has suffered from depression. His mother assisted him in trying to access counselling. I understand that he had an initial consultation with a doctor and is on a waiting list. [ 20 ] Mr. Shoo’s family continue to be supportive of him. Upon his release they will assist him.

[ 21 ] Mr. Shoo has a criminal record. His most recent conviction was in August of 2014. It is concerning that it was for an offence of pointing a firearm. At that time he was placed on a firearms prohibition, although it is not clear from the information provided how long that prohibition was for. VI. ANALYSIS [ 22 ] The principles of sentencing are set out in s. 718 of the Criminal Code .

The fundamental purpose of sentencing is to protect society and to promote respect for the law and the maintenance of a just and peaceful society. [ 23 ] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 24 ] Counsel have quite rightly distinguished these matters from cases where shots are fired.

The increased dangerousness in circumstances where shots are discharged while knowing or being reckless as to whether people are present is reflected in the mandatory minimum sentence of four years. [ 25 ] For the offence of pointing a firearm the maximum penalty is five years imprisonment. The maximum penalty for possessing a weapon for a dangerous purpose is ten years imprisonment. There is no mandatory minimum penalty for either offence.

Sentences can vary widely depending upon the nature of the offence and the circumstances of the offender (see: R v Omik , unreported, a Nunavut case where a suspended sentence and 18 months’ probation was imposed for the brief pointing of a firearm at police when they responded to a complaint; R v Attutuvaa , 2013 NUCJ 10 where 18 months’ jail and 12 months’ probation was imposed for seeking out police and pointing a firearm at them while indicating a preparedness to discharge the firearm). [ 26 ] While the fact that no shots were fired lessens the dangerousness of the incidents, there is no doubt that there is inherent danger in such irresponsible handling of a firearm.

It is not an answer to say that the firearm was intended to be used for self-harm. That of course presents not only a danger to the person who is intent on self-harm, but also to those, both family, members of the public, and police officers, who come to the aid of the individual in distress. Further, Mr. Shoo’s state of intoxication is not a mitigating factor.

Such a high level of intoxication has the potential to elevate the level of dangerousness given the volatility and unpredictability of people when intoxicated. [ 27 ] The judges of this court have commented many times about the increase in firearms offences in the territory. Anecdotally, the same week I heard submissions in this matter I also sentenced two young men to lengthy prison terms for separate standoffs with police where firearms were involved, and shots were fired. Also the same week, the news reported an active shooter in a standoff with police in Clyde River. [ 28 ] Mr.

Shoo is not to be sentenced for offences committed by others, but the context in which the offence is committed, including the prevalence of the offence in the community, is relevant to sentencing ( R v Lyta , 2013 NUCA 10 at para 20 ). [ 29 ] The perception of those involved in the justice system is that the number of firearms offences has greatly increased in recent years. But the court should not act upon anecdotal testimony or perceptions. Too often perceptions are not borne out once the evidence is properly considered. [ 30 ] So, has there been an increase in firearms offences in Nunavut in recent years?

Unfortunately, I have not been able to access statistical evidence that permits a year by year comparison of such offences. What the statistics do show however is that relative to the rest of Canada, the rate of firearms offences is exceedingly high. Firearms related violent offences per one hundred thousand, nationally in 2016, were 18.6 for adults and 46.1 for youth. In Nunavut they were 100.7 for adults and 105.5 for youth. [1] [ 31 ] I implore the respected hunters in our communities, our elders, and our political leaders, to speak out about firearm safety.

It is simply too easy for angry, depressed, intoxicated persons to access firearms. It is not enough to own locking gun cabinets and trigger locks. Their use must become a matter of habit. Families and community members must be watchful of each other and take steps to ensure that those amongst us who are depressed, troubled, or prone to violent fits of anger, do not have ready access to firearms.

[ 32 ] Following the incident in October, Mr. Shoo was still able to access a firearm. I am told that the firearm belongs to the mother of EI and that it was lent to EI so that she could go hunting. Despite being on court conditions to not have any contact with EI, Mr. Shoo was not only having contact with her but was staying overnight at the house. I have not been provided with any information as to how EI was storing the firearm. Given the incident that ensued I can only infer that it was relatively easy to access. [ 33 ] There are a number of aggravating circumstances to these matters.

First, it is aggravating that children were present and witnessed both incidents. During the December incident Mr. Shoo pointed the firearm at five different police officers. Mr. Shoo’s prior conviction for pointing a firearm is aggravating. [ 34 ] In mitigation, Mr. Shoo has entered guilty pleas. This is an acceptance of responsibility. I must also consider Mr. Shoo’s circumstances as an Inuit offender pursuant to

section 718.2 (

e) of the Criminal Code and the Supreme Court of Canada’s decisions in R v Gladue and R v Ipeelee . In addition to the systemic factors such as colonialism, displacement, and loss of culture that affect all Inuit, Mr. Shoo is said to have mental health issues that to date have gone untreated. VII. CONCLUSION [ 35 ] The sentence is as follows: October offences: • pointing a firearm: 8 months (240 days); • possession of a firearm for a dangerous purpose: 6 months (180 days concurrent); and • unlawful storage of firearms: 60 days.

TOTAL: 10 months (300 days) [ 36 ] December offences: • pointing a firearm: 15 months (450 days consecutive); • breach of release conditions (x2): 60 days on each, concurrent to each other but consecutive to the others; and • unlawful storage of firearms: 60 days concurrent. TOTAL: 510 days TOTAL SENTENCE: 810 days VIII. PRE-TRIAL CUSTODY [ 37 ] Mr. Shoo has been in custody since December 17, 2019, a total of 369 days. He is entitled to credit for pre-trial custody at a rate of 1:1.5, for credit of 554 days. The sentence remaining to be served is 256 days.

IX. ANCILLARY ORDERS A. DNA [38] Both the offence of pointing a firearm and possessing a weapon for a dangerous purpose are secondary designated offences(meaning the granting of an order is discretionary) for the purposes of taking a DNA sample of the offender for registry in the nationalDNA data bank. [39]

Section 487.051(3) states that in considering whether to make a DNA order the court shall consider: • the person’s criminal record; • the nature of the offence; • the circumstances of the offence; and • the impact such an order would have on the person’s privacy and security. [40] The ultimate decision to be made is whether it is in the best interests of the administration of justice to make an order. [41] The Ontario Court of Appeal in R v F (PR), (ON CA), 57 OR (3d) 475, 153 OAC 167 considered discretionaryDNA orders.

The court found that while there is no legal onus on either Crown or Defence, an application for a discretionary DNA orderis made by the Crown, placing a practical burden on the Crown to put forward sufficient information to persuade the court that the ordershould be made (see para 11). [42] Hendry references R v Briggs, (ON CA), 55 OR (3d) 417, 149 OAC 244 at para 17, which provides someguidance in assessing whether a DNA order should issue.

It noted: • whether there is DNA at the scene of the crime for which the offender has been convicted is not necessarily relevant; • it is not necessary to determine that there are reasonable and probable grounds that the offender will commit further offences for anorder to be made; and • the state interest in having a DNA profile of an offender is broad and includes: • deterrence of repeat offenders; • the promotion of community safety; • the ability to detect a serial offender; • assistance in the solving of “cold” crimes; • the streamlining of investigations; and • the ability to exclude innocent suspects.

Further, in Hendry the court recognized the decreased expectation of privacy of those convicted of criminal offences. [43] I am of the view that a DNA order is not required at this time. The charges before the court and the criminal record do not suggestthat Mr. Shoo is involved in the type of offending for which DNA would be of assistance in addressing the state interests such an order isintended to address.

B. Firearms [44] At the conclusion of her submissions Crown Counsel sought a lifetime firearms prohibition, on the basis that the matters fell withins. 109(1)(

a) of the Criminal Code, as including “an indictable offence in the commission of which violence against a person was used,threatened, or attempted and for which the person may be sentenced to imprisonment for ten years or more” and because Mr.

Shoo had aprevious firearms prohibition issued against him in 2014. [45] Defence Counsel opposed the issuance of a lifetime firearms prohibition and asked the court to exercise its discretion and issue ashorter prohibition, relying on the cases of R v Jobb, (SK CA), 67 Sask R 315, 43 CCC (3d) 476; R v Ellis, 143 OAC43, (ON CA); and R v RJF, 2004 MBCA 188 for the proposition that the Crown must provide notice to the accused ifit seeks the imposition of a greater penalty for a second or subsequent offence. The Crown agreed with this position. [46] There will be a firearms prohibition for 10 years.

There will not be a s.113 exemption. C. Victim of crime surcharge [47] The victim of crime surcharge is waived for reasons of hardship. Dated at the City of Iqaluit this 22nd day of December, 2020 ___________________ Justice S. Cooper Nunavut Court of Justice ADDENDUM

Source: Juristat Bulletin—Quick Fact: Firearm-related violent crime in Canada, online at https://www150.statcan.gc.ca/n1/pub/85-005- x/2018001/article/54962-eng.htm