R. v. Papatsie, 2022 NUCJ 44

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Papatsie, 2022 NUCJ 44 Date: 20220817 Docket: 10-21-47 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Ken Papatsie __________________________________________________________________ Before: Mr. Justice Conlan Counsel (Crown): Counsel (Accused): C. D’Souza L.

Shadley Location Heard: Date Heard: Pangnirtung, Nunavut August 17, 2022 Matters: Sentencing decision in regards to charges under Criminal Code of Canada, RSC 1985, c C-46, ss. 270(1) (a), 354(1) (a), and Controlled Drugs and Substances Act ss. 5(2) REASONS FOR DECISION (Delivered Orally) (NOTE: This document may have been edited for publication) I. THE CONVICTION [ 1 ] The conviction Mr.

Papatsie has pleaded guilty to and has been found guilty and convicted of one count; namely, that in May of 2021, at Pangnirtung, he possessed methamphetamine for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and

Substances Act . II. THE FACTS [ 2 ] Mr. Papatsie today is approximately 32 years of age. The police executed a search warrant at the residence of Mr. Papatsie. At the time of the execution of the warrant, the offender was present inside the residence. During the course of the search, the police seized, among other items, 426 grams of methamphetamine in the form of pills and $37,000 of Canadian currency. III. THE POSITIONS OF THE CROWN AND DEFENCE ON SENTENCE [ 3 ] The Crown and the Defence have put forward a joint position on sentencing.

That joint position, aside from ancillary orders, is 36 months incarceration less credit for time served to date. IV. THE EXHIBITS FILED BY BOTH SIDES A. Exhibit 1 [ 4 ] Exhibit No. 1 is Mr. Papatsie's criminal history. It is very lengthy and includes multiple convictions for violence such as assault a police officer, assault with a weapon, assault causing bodily harm, and aggravated assault. Notably the criminal history does not include any prior narcotics convictions but for one very dated and very minor criminal conviction involving cannabis. B.

Exhibit 2 [ 5 ] Exhibit No. 2 is the Certificate of Analyst confirming that the narcotics seized by the police were, indeed, methamphetamine. C. Exhibit 3 [ 6 ] Exhibit No. 3 is Mr. Papatsie's lengthy handwritten letter. I was quite impressed with the letter for several reasons. First, it is well written and shows me that Mr. Papatsie is an intelligent person who is very capable of doing good things. I was also impressed with the fact that Mr. Papatsie accepts full responsibility for the offence and has expressed what I view to be genuine remorse for his criminal conduct. I am impressed that, while Mr.

Papatsie has outlined his difficult circumstances in the letter, he does not blame those circumstances for his criminal history.

He accepts personal responsibility for the criminal convictions that he has amassed to-date. [ 7 ] It strikes me, sir, from reading your letter that you are a person who has experienced unfortunately a lot of trauma in your life; the untimely loss of family members, substance abuse, very unfortunate circumstances in correctional facilities, and so on. [ 8 ] I think on balance the tragedy that you have faced far outweighs the high moments so far in your life, but hopefully going forward those positive moments will start to outweigh the negative ones.

And by positive moments, I'm talking about things like the hockey championship that you won. I played hockey many years myself at a highly competitive level, so I was interested in reading how excited you were to be able to play in that tournament and win the championship.

[ 9 ] I give you a lot of credit for writing this letter. I share the view expressed by the probation officer that it is very, very unusual. In fact, I would say unheard of to see a letter this in-depth from any offender — anywhere. Not just in Nunavut but including in southern Ontario where I normally preside. D. Exhibit 4 [ 10 ] Exhibit No. 4 is the collection of letters on your behalf from service providers and proof of the various workshops and programs that you have completed.

Again, I commend you, sir, for taking advantage of the services that you were offered even as limited as they have been because of COVID and because of being shuffled from institution to institution and so on. I give you a lot of credit for accomplishing what you have been able to accomplish as reflected in the documents filed Exhibit No. 4. V. THE AGGRAVATING FACTORS ON SENTENCE [ 11 ] In my view, there are three main aggravating factors at play in this case. The first is Mr. Papatsie's lengthy, though unrelated, criminal record.

The second is the massive quantity of methamphetamine involved in this offence. 426 grams is a very significant quantity of any illegal narcotic. And the third aggravating feature of this case is the fact that you brought this illegal narcotic into a vulnerable, remote, resource-limited community in the far north. [ 12 ] Having this quantity of methamphetamine in any community is extremely dangerous; but having it in a community like Pangnirtung, because of its geography, because of its limited resources, because of its overall circumstances, that conduct is especially dangerous. VI.

THE MITIGATING FACTORS ON SENTENCE [ 13 ] In my view, there are several mitigating factors present in this case.

The first is your relatively early guilty plea which is an acceptance of responsibility, an expression of remorse, a brave thing to do in front of your peers in the community, and a helpful way to save the administration of justice the time and expense of what could have been a lengthy trial. [ 14 ] The next mitigating factor is your letter, because as I said, it is a clear acceptance of responsibility on your part without false excuses and a very strong expression of remorse. [ 15 ] The third mitigating factor are your oral comments to the court today which I found quite impressive.

You speak very well and, again, that shows me that you are articulate, you are intelligent, and you have far too many assets to waste your life away behind bars. [ 16 ] Another mitigating factor are the comments that I heard from your grandmother and the Elder in the community sitting beside me. Those comments show me that at times in your life you have been a good person, a helpful person, a person that your grandmother depends on. The fact that she would very much like to take you home with her today tells me that she depends on you. That type of dependence is not shown in favour of people who are worthless.

So you're not worthless. You have great value to offer other people including your family. And that's a mitigating factor in your favour. VII. THE PRINCIPLES OF SENTENCING [ 17 ] The Crown, Mr. D'Souza, is correct; the penultimate goal of sentencing is to craft a sentence that is commensurate with the circumstances of the offence and the circumstances of the offender. The objective is to impose a sentence that is fit in all of the circumstances of the case. The sentencing process is highly individualized and highly discretionary on the part of the court.

A fit sentence is one that takes into account the facts of the offence but also aims to consider the degree of moral blameworthiness of the offender. [ 18 ] The Criminal Code of Canada sets out many principles of sentencing. In my opinion, the most important principles of sentencing in this case are the Gladue principles to recognize your status as an indigenous person. Denunciation to denounce your serious

unlawful conduct. Deterrence, both individual and general, to specifically deter you from committing this or any other type of criminal offence in the future and to deter any member of this community from committing a similar offence. [ 19 ] And finally rehabilitation, because nobody is beyond the prospect of rehabilitation including you despite your lengthy criminal history. VIII. DECISION [ 20 ] There are many important jurisprudential authorities that have been filed. I would like to quote from just one of them. It is the decision of Justice Tulloch of the Nunavut Court of Justice in the case of R. v.

Pierce 2018 NUCJ 16 . At Paragraph 26 of that decision where Justice Tulloch refers to other cases; the case of R. v. Cherkaoui , 2009 NUCJ 7 at Paragraph 21 and the case of R. v. Friskie , from 10 September 2, 2008 — the Cherkaoui case is a decision of Justice Johnson of this court, the Friskie decision is that of Justice Foisy — I would like to quote the same remarks that Justice Tulloch quoted in Pierce at Paragraph 26 . This quotation is from the remarks of Justice Foisy in the Friskie decision at page 15, quote: Basically what you are dealing is poison.

It's extremely addictive and people like yourselves as far as I'm concerned are parasites because you feed off the weaknesses of others for your own profit. Nunavut is different than other jurisdictions because it is extremely largely populated by Inuit; it is the Inuit territory. By and large these are not people of means; these are people who have to struggle to live, they don't have a lot of money - many of them are very poor.

When dealing with crack cocaine or other very addictive drugs their small resources are spent to feed a habit which they [acquired] as a result of people like you coming into this territory. That leaves no money to pay rent, no money to buy food to feed themselves and/or other families, no money to buy other staples of life which are very, very expensive in this territory. [ 21 ] Now I want to qualify my reliance on that quotation by saying I would not call you a parasite, sir, but the point is that there's -- that this is a parasitic behaviour.

This is behaviour that takes advantage of the vulnerabilities of people who live in this community, who are especially susceptible to substance abuse. And once they get addicted to a narcotic like methamphetamine, they end up one of a couple of things: A career criminal in order to feed the habit or dead. One of those two. There is really no exception. There is no third. [ 22 ] I accept the joint submission put forward by the lawyers. In my view, it is entirely fit and reasonable given all of the circumstances of this case.

I think that the joint submission adequately takes into account the aggravating and mitigating factors in this case. I recognize that this is, I am told, the largest seizure of methamphetamine in Nunavut in history. And I recognize that if this sentencing is reported in newspapers or on the media there will be some who think that the sentence is too lenient. [ 23 ] But I don't make my decisions based on what I think the uninformed reader will think about it. I have to make my decisions based on the law. And I don't think that the joint submission is too lenient. I think that it is appropriate.

Maybe not for another offender who has not started to turn the corner in his life, maybe not for another offender who has no mitigating factors to present to the court, but that's not you. So for you I think it's a fit sentence. [ 24 ] The sentence of the court is as follows. There is a secondary DNA order issued. There is a mandatory

Section 109 Criminal Code firearms and weapons prohibition order issued for life. And the sentence of the court is 36 months incarceration less credit for time served. I'll come back to that in a moment. And as indicated before, a conditional stay is entered on Count 1. [ 25 ] Credit is given for 450 real days time served to the present, which for the purpose of this sentence is treated as the equivalent of 675 days time served. Thus, the sentence of the court is 36 months in custody less 675 days time served leaving a net sentence from today of 405 days in custody, 4-0-5 days in custody, from today.

Dated at the City of Iqaluit this 17th day of August, 2022 ___________________ Justice Conlan Nunavut Court of Justice