R. v. Apak, 2018 NUCJ 1

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Apak, 2018 NUCJ 1 Date: 20180111 Docket: 11-17-120 Registry: Pond Inlet Crown: Her Majesty the Queen -and- Accused: Curtis Singoorie Apak ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): Sarah Bailey Counsel (Accused): John Thompson Location Heard: Pond Inlet, Nunavut Date Heard: January 11, 2018 Matters: Sentencing Decision REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. OVERVIEW [ 1 ] The offender, Curtis Apak, was charged with several offences arising from an incident in Pond Inlet on August 18, 2017. He pleaded guilty on 20 November, 2017 to impaired operation of a motor vehicle causing bodily harm contrary to section 255(2) of the Criminal Code . [1] His lawyer requested the preparation of a pre-sentence report; however, the local probation office did not prepare one. I adjourned the sentence hearing until today to give defence counsel time to prepare for the hearing. [ 2 ] Mr. Apak’s sentence hearing started this morning. I heard from the prosecutor, Ms.

Bailey and the defence lawyer, Mr. Thompson. They told me what they thought would be the appropriate, or proper, sentence. These are the reasons for my decision. [ 3 ] Surprisingly, apart from the R v Holland case, which was reported in February 2017, [2] there seem to be no published Nunavut cases dealing with impaired driving causing bodily harm. I say “surprisingly” given how often this Court deals with these kinds of cases. For that reason, I will follow my oral reasons this afternoon with a written decision. II. FACTS [ 4 ] On August 18, 2017 the police were called to the local Health Centre around 2 a.m.

There they found three-year-old Arthur Koonoo who had been seriously hurt in a hit-and-run incident. Arthur’s mother identified Mr. Apak as the driver. Police arrested Mr. Apak at 3:30 a.m. Mr. Apak at that time was extremely intoxicated. He later told police that on a scale from one to 10 (10 being falling down drunk), he was a nine. [ 5 ] The police investigation learned that Mr. Apak had consumed most of a 375-millilitre bottle of alcohol the night before. He then decided around midnight to borrow his father’s new ATV to go for a drive. He did not have a driver’s license.

He only had a learner’s permit which restricted him to driving with a responsible adult driver. [ 6 ] At some point, Mr. Apak took on his girlfriend as a passenger. She told police she became very scared because Mr. Apak was speeding, and she insisted she get off. Mr. Apak became angry and he drove onto the land where he stayed for a while. He then drove back into town. He admitted he had been speeding. Close to 2 a.m., he drove up to a crowd of people outside the local candy store. Mr. Apak did not slow down. He drove right between two children, hitting little Arthur. Mr.

Apak then slammed the ATV into a nearby boat. He immediately ran away. His lawyer said Mr. Apak panicked. [ 7 ] Arthur’s mother took him immediately to the Health Centre. Arthur had a nasty gash across the bridge of his nose, leading to an eye. The medical staff found that Arthur had suffered a broken nose and a torn tear duct. Arthur was medevaced to Ottawa for emergency surgery. Arthur’s nose remains crooked, but it is hoped his nose will straighten as he continues to grow. III. THE POSITIONS OF THE PARTIES [ 8 ] The prosecutor says Mr. Apak should serve 12 months in jail.

She suggested that jail be followed by two years of probation. She also asked for a two-year driving prohibition. Ms. Bailey referred the Court to eight cases. [ 9 ] Defence counsel says the jail term should be six months, at the bottom of the sentencing range. He noted that Mr. Apak does not have a criminal record. He emphasised that Mr. Apak is a “model citizen”. Mr. Thompson provided a letter of support from Jacintha Ootook which I have read. IV. SENTENCING OBJECTIVES AND PRINCIPLES [ 10 ] Sentencing is an individualised process. Every offender (and every case) is unique.

A sentencing judge must weigh the objectives and principles of sentencing against the specific circumstances of each case.

[ 11 ] There are several important objectives a sentencing judge must try to achieve when imposing a sentence. These objectives are found in the Criminal Code . [3] The sentence I impose must work to: • Protect the public; • Encourage respect for the law; • Be seen to be fair, to be just; • Acknowledge the harm done to Mr. Apak’s victim; • Condemn and denounce criminal conduct; • Deter Mr. Apak and others from committing these crimes; • Rehabilitate Mr.

Apak to help him heal; • Encourage offenders to accept responsibility for their actions, to acknowledge and admit the harm they caused to their victim(s), and try to repair the harm where possible; and • To separate offenders from society when necessary. [ 12 ] In trying to meet these objectives, the judge is not left up to his or her own personal views. There are legal sentencing principles in place to guide a judge and to help the judge decide on a fit and proper sentence. [ 13 ] In this case, there are four objectives and principles in particular which stand out.

They are: denunciation, deterrence, rehabilitation and proportionality. I will talk about each one in turn. [ 14 ] Denunciation means to condemn an illegal act. This Court must send a strong message that impaired driving causing bodily harm will be punished because we consider it to be a very serious crime. [ 15 ] Deterrence means to try to influence people to respect the law and not to drink and drive. Deterrence has two parts: general and specific. In every day English, my intended audience to discourage from drinking and driving today is made up of all Nunavummiut (general), as well as Mr.

Apak (specific). [ 16 ] And the law is very clear: denunciation and deterrence are the primary objectives when sentencing an offender for impaired driving causing bodily harm. I refer here to the Alberta Court of Appeal case R v Gejdos . [4] This was one of the cases referred to the Court by the Crown prosecutor. [ 17 ] The Criminal Code also directs judges to consider ‘proportionality’. This principle is at the heart of the sentencing process. This legal term means a sentence should reflect the seriousness of the crime, and the offender’s responsibility for it.

The importance of this principle in this case cannot be overstated. The Court of Appeal in the Gejdos case stated that when considering proportionality in these kinds of cases: “the courts have very few options other than imprisonment for meeting” the primary objectives of denunciation and deterrence. [5] [ 18 ] I pause to note that decisions of the Alberta Court of Appeal are not binding on this court, but they are relevant to Nunavut; most of the judges of the Nunavut Court of Appeal are judges of the Alberta Court. [ 19 ] I now turn to rehabilitation.

Rehabilitation means helping the offender to change his ways for the better and to become a better person. In Nunavut, given the staggering abuse of alcohol that we hear about in court, rehabilitation mostly means helping the offender to heal. I have said many times in every one of our 25 communities, and I say again: rehabilitation is always the final result we seek in each and every case, even though the criminal law and the territory give us few tools with which to work. There can be no real deterrence unless the offender heals.

Chances are the offender will offend again if he does not heal. [ 20 ] There is also another sentencing principle which is particularly relevant to this case. This is the principle of restraint.

[ 21 ] The Criminal Code directs sentencing judges to act with restraint. This means the Court must impose the least harsh sentence which can achieve the goals involved in sentencing. Jail must only be imposed when there is no reasonable alternative. In Canada, jail is imposed only as a last resort. If an offender is being sentenced for more than one offence, the combined sentences are not to be unduly long or harsh.

Here, the Criminal Code directs judges to be especially aware of the circumstances of aboriginal offenders. [6] I’ll say more about that in a moment. [ 22 ] Sentencing judges must also consider case law. Case law is made up of published reports that tell us what other judges have done in similar circumstances. This is extremely important. It is only fair that similar offenders should be treated similarly for similar crimes. This is called the parity principle.

As I noted earlier, I was given copies of several cases by the Crown prosecutor. [ 23 ] Perhaps the most important case in Nunavut is the Queen v Gladue . [7] It is called that because in Canada all criminal prosecutions are done in the name of Her Majesty the Queen. Gladue was the name of the offender in that case. Gladue is a very important case, from the highest court in Canada, the Supreme Court. In fact, the Nunavut Court of Justice is a Gladue court. To make a long explanation short, our court must account for the particular and unique circumstances of Inuit, their culture, history and society.

Nunavut society is in the midst of an alcohol abuse crisis. The direct results of alcohol abuse fill our criminal and child protection dockets. The influence of Residential Schools is inter-generational. Nunavut has the highest suicide rate in the country. These are but three examples. [ 24 ] The Gladue case is a constant reminder to everyone in our justice system. It reminds us that justice, if it is to approach true justice, must be rooted in the community it serves. Gladue informs every decision we make. It is the lens through which we look at every case.

Every sentence of the Nunavut Court of Justice involving an Inuk is a Gladue sentence. [ 25 ] That said, the Supreme Court of Canada in the Gladue case also was clear that in the more serious cases the difference in a sentence between an aboriginal and non-aboriginal offender will lessen. This is one of those cases. [ 26 ] This case cannot be looked at alone, in isolation. It must be looked at with the bigger picture in mind. Right across Nunavut, too many drunk people are getting behind the wheel of cars, trucks, snow machines and ATVs, and they are putting everyone else’s lives and safety at risk.

There are also far too many cases where angry and intoxicated people are grabbing and using fire arms. In this climate of a rampant alcohol abuse, this Court has a duty to put deterrence and public safety at the very forefront of its sentences in these types of cases. [ 27 ] Mr. Thompson told the Court that the people of Pond Inlet would view a sentence of more than six months to be excessive. He emphasised that Mr. Apak is a model citizen. For that reason, I think it is important that I explain why we treat impaired driving causing bodily harm as a very serious offence; and why Mr.

Apak must serve a longer jail term than six months. [ 28 ] We are dealing today with a crime which is often committed by otherwise upstanding citizens. For that reason, the law is clear: the otherwise good character of the offender will not, in most cases, save the offender from “meaningful” jail if he commits an impaired driving offence causing bodily harm: [8] [I]t is often committed by otherwise law-abiding citizens who make irresponsible and selfish decisions to drive when the law prohibits them from doing so. It is a crime committed in the face of massive media coverage about the dangers of impaired driving.

These offenders often have no prior record, are genuinely remorseful, have been rehabilitated by the very fact of being charged and convicted, and are highly unlikely to offend again. … That the respondent was an otherwise law-abiding citizen does not negate the need for a deterrence sentence, but is in fact the very reason for it. [9] [ 29 ] I agree with Mr. Thompson that in a community the size of Pond Inlet, this sentence will be known all over town by nightfall. Despite the absence of the media during most of our sittings, the sentences of this Court are known to Nunavummiut during our court circuits.

Whether they have the desired effects or not, decisions of this Court do resonate in our communities. V. THE OFFENDER [ 30 ] I will now say a few words about the offender. Mr. Apak is from Pond Inlet. He is 23 years old. He is Inuk. He has been in a seven-year common law relationship and the couple have a one-year-old child. He is a high school graduate. He has been a reliable employee of a local construction company. In the off season, he is a substitute teacher and gets called in about five times a month. He is

not known in the community to have trouble with alcohol. He describes himself as a “moderate” drinker. Indeed, Mr. Thompson described him as a “model citizen”. A. Criminal record [ 31 ] Criminal records play an important role in sentencing. Common sense says a first-time offender who does a less serious crime will be treated more leniently than someone who commits one serious crime after another. Mr. Apak does not have a criminal record. We are not dealing with a hardened criminal. In our Anglo-Canadian justice system, justice must always be tempered with mercy, especially for a first-time offender.

Forgiveness, healing and understanding are also hallmarks of traditional Inuit justice. B. Aggravating and mitigating factors [ 32 ] The Criminal Code also requires a sentencing judge to consider mitigating and aggravating factors. C. Mitigating factors [ 33 ] There is a mitigating factor which goes to Mr. Apak’s credit. It works to lessen his sentence: • Mr. Apak pled guilty. He accepts responsibility. This court always gives meaningful credit for someone who does this. D.

Aggravating factors [ 34 ] Balanced against this mitigating factor are several serious aggravating ones which work to increase his sentence: • Mr. Apak put the lives and safety of many of his neighbours in immediate danger of grievous bodily harm; • Mr. Apak was seriously impaired by alcohol; in everyday language, he was staggering drunk; • Mr. Apak had a learner’s permit, and he could only drive under the supervision of a licensed driver; • Before the incident, Mr. Apak was told by his girlfriend that his fast driving scared her. She insisted he stop so she could get off. This did not deter or stop Mr.

Apak from continuing to drive; • Mr. Apak drove right into a crowd of bystanders outside the local candy store; • Mr. Apak seriously injured a three-year-old boy, Arthur, who had to be medevaced to Ottawa for emergency medical treatment and surgery; and • Mr. Apak left the scene of the crash and did not stop to offer any help to Arthur. VI. VICTIMS’ BILL OF RIGHTS [ 35 ] Victims of crime have the right to be heard in court. [10] They may read out loud, or file, a Victim Impact Statement. These statements bring to life the real effect crime has on peoples’ lives.

One cannot judge a crime without understanding how its victims were hurt. These statements help ensure victims are not ignored during the sentencing process.

[ 36 ] The Crown prosecutor gave the Court a Victim Impact Statement written by Arthur’s mother. In it, Ms. Koonoo talks about the lingering emotional and physical effects not only on Arthur but on herself as well. VII. SENTENCE [ 37 ] Mr. Apak committed a very serious crime. He hurt Arthur very badly. He also put the lives and safety of many of his neighbours in immediate danger. Nunavummiut expect strong sentences for serious crimes. The principles of sentencing in this case require a strong jail sentence. [ 38 ] A jail term is consistent with traditional Inuit justice.

When a person threatened the traditional group’s safety and security, that person could be, and sometimes was, banished. Many were welcomed later back into the group. Forgiveness, reconciliation and reintegration were, and are still, key aspects of Inuit justice, as they are in the Nunavut Court of Justice. [ 39 ] First and foremost, the sentence I impose must emphasise denunciation and deterrence. Impaired driving is a very serious offence. Every time an impaired person takes the wheel, there is a very real risk that someone will be hurt, like here, or killed.

This is especially so in Nunavut, where we are in the midst of an alcohol-fueled crisis. [ 40 ] Mr. Apak, you bear a high degree of moral culpability. You were responsible for your actions. Alcohol abuse is no excuse. [ 41 ] Stand up, please, Mr. Apak. I sentence you to 365 days in jail. As Mr. Thompson fairly conceded, this sentence falls in the middle of the sentencing range for this crime. In my view, this sentence satisfies denunciation, deterrence, proportionality and restraint. It represents a fit and proper sentence. VIII. PROBATION ORDER [ 42 ] Rehabilitation must never be forgotten.

As I said earlier, there is no effective deterrence without healing. The jail term I have just imposed will be followed by probation for 24 months. Mr. Mr. Apak, you will: • Report to probation within two business days of your release from jail.

You will report thereafter as required. • Keep the peace and be of good behaviour. • Take any assessment, counselling or treatment for alcohol abuse as directed by your probation officer. • Take any educational or vocational training as directed by your probation officer. • Not go inside any commercial establishment that sells alcohol. • Not keep alcohol in your home. • Complete 60 hours of community service work by December 31, 2019.

This community service work is an opportunity for you to be seen making a positive contribution to our community. [ 43 ] Do you understand those conditions? [ 44 ] These probation conditions are not meant to be punishment. I have put them in place to try to help you heal. But the truth is, nothing good will come of your time on probation if you do not work at getting better. So, I am asking you this afternoon to help the probation officer help you. Help the counselor help you. No one wants to see you get into trouble with the law again.

IX. ANCILLARY ORDERS [ 45 ] The Criminal Code provides for several ancillary, or related, orders. I impose the following orders: • A two-year driving prohibition. You are prohibited from driving any motorised vehicle anywhere in Canada for two years. And anywhere means just that, anywhere, including the land. [ 46 ] You must surrender your learner’s permit to the court clerk by the end of court this afternoon. [ 47 ] There is also a mandatory $200 victim fine surcharge which I now impose. Mr. Apak, you must pay the surcharge within six months of your release from jail.

Do not ignore it because it is not going to go away. [ 48 ] Good luck, sir. Taima. Dated at the City of Iqaluit this 11th day of January, 2018 ___________________ Justice P. Bychok Nunavut Court of Justice