R. v. Koonoo, 2018 NUCJ 38

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Koonoo, 2018 NUCJ 38 Date: 20181221 Docket: 11-17-128 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Lila Koonoo ________________________________________________________________________ Before: The Honourable Madam Justice Susan Cooper Counsel (Crown): Sarah Bailey Counsel (Accused): Ilan Nueman Location Heard: Iqaluit, Nunavut Date Heard: December 21, 2018 Matters: Sentence for guilty plea to Criminal Code , RSC 1985, c C-46, s. 255(3). REASONS FOR JUDGMENT (Delivered Orally)

DISCLAIMER PAGE Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] Ms. Lila Koonoo has pleaded guilty to impaired driving causing death contrary to Criminal Code , RSC 1985, c C-46, s. 255(3) [ Criminal Code ]. She is in court today to be sentenced. II. FACTS [ 2 ] On June 30, 2017, at about 6:00 o’clock in the evening, Lila Koonoo began drinking with two of her friends.

The evening started off with a bad decision, as they chose to drink in Lila’s truck. [ 3 ] At some point Lila and one of people she was drinking with, J.S., drove to a residence and picked up R.I., M.A., and their baby. R.I. became the designated driver. [ 4 ] Lila and J.S. continued to drink as the group drove around the community of Pond Inlet in Lila’s truck. Although R.I. was the designated driver, Lila tried several times to make her way in to the driver’s seat or to obtain the keys to the truck. Each time R.I. was able to prevent her.

The people in the truck expressed to Lila their concern about having her drive. [ 5 ] At some point the plan was to drop Lila and J.S. off at home, but then the decision was made to drive around some more so that the two of them could sober up. R.I. drove to his residence to pick up diapers and milk for the baby. [ 6 ] R.I. and M.A. took their baby with them and went in to their house to get the supplies needed. R.I. had the truck keys with him.

When they returned to the truck, Lila had made her way into the driver’s seat. [ 7 ] R.I. was concerned as Lila looked “burnt out,” and he was unsure as to her state of sobriety. He hesitated in giving her the keys to

the truck. J.S. told R.I. that he trusted Lila and M.A. thought that Lila looked okay to drive. R.I. relented and passed the truck keys to Lila and got in the vehicle with M.A. and their baby. [ 8 ] The incident occurred just shortly after midnight. Lila had been drinking for about six hours. She and J.S. had been pouring liquor from two two-litre bottles into mickey bottles and drinking from the mickey bottle. Lila had drank at least one mickey bottle of hard liquor.

There is no doubt that her ability to drive was impaired by the alcohol. [ 9 ] Lila started driving at a speed which all of the passengers thought was too fast for the road conditions. She was told to slow down. M.A. saw Lila’s head start to droop down and M.A. thought that Lila was passing out. [ 10 ] Lila was driving down a hill. On a curve at the bottom of the hill, the truck drifted off the road and hit a parked car. That car hit another parked car. Linda Milton was between those parked cars. She got pinned between the two vehicles. [ 11 ] Lila’s truck was stuck.

Lila tried to back the truck up and in doing so hit the steps of a house. At this point, R.I. took the keys out of the ignition. [ 12 ] None of the people in Lila’s truck were injured. [ 13 ] Linda Milton was unconscious and injured. CPR was performed on her. She died of her injuries within the hour. III. POSITIONS OF THE PARTIES [ 14 ] The Crown seeks a sentence of four years in custody. They also seek a five year driving prohibition commencing on her release from custody. [ 15 ] The Defence seeks a sentence of less than two years in custody. IV.

VICTIM IMPACT STATEMENTS [ 16 ] Linda Milton was just 43 years old when she died. She was the mother of three young children, a long time teacher at the elementary school, a volleyball coach, and active in her church. She was an important and loved person in the lives of many. [ 17 ] Linda’s teenaged daughter describes her mother as the strength in the family; the person who kept the family traditions alive. She describes the loss to the children of a mother who supported them, who encouraged them to be curious about life, to work hard, and who they could confide in.

The children continue to need their mother, but it is a need that is no longer met. [ 18 ] Linda’s sister describes the void left in the family unit because of Linda’s death. The family was coping with grief from other events in their lives when Linda died so tragically. While dealing with the loss of her daughter, Linda’s mother took in Linda’s children, providing a home for three additional children along with the two grandchildren already living with her.

Linda’s two oldest children have relocated to Ottawa and seem to be doing well, but the youngest child struggles with anger and trauma, as he witnessed his mother die. [ 19 ] Linda’s friends and co-workers described the impact of the loss of a loved and respected community member and colleague.

[ 20 ] Nothing that this Court can do will alleviate the impact of Linda’s death. [ 21 ] The Court expresses its condolences to Linda’s family and friends and hope that they will be comforted by their fond memories of Linda. V. PERSONAL CIRCUMSTANCES [ 22 ] The Court has the benefit of a comprehensive pre-sentence report and medical records, [ 23 ] Lila Koonoo is just 22 years old. She was 20 at the time of the offence. [ 24 ] Lila was raised by her biological parents. [ 25 ] She has some happy memories from very young childhood.

However, there was violence and substance abuse in the home, largely by her father, but there was a period of time when her mother also drank heavily. [ 26 ] Lila’s parents separated when she was about 12 years old, following an incident that saw police involvement and her father going to jail. [ 27 ] This is around the time Lila started drinking. [ 28 ] Lila has seven younger siblings. She was the oldest child in the home and took on care giving for her younger siblings at an early age, even though she was not much older than them. The home was crowded and often there was not enough food.

Lila’s aunt has described instances of Lila declining to eat so as to ensure her younger siblings could eat. One Christmas, when Lila realized her mother was not going to get presents for the children, Lila used her Employment Insurance (EI) money to buy presents for them, to ensure they had something to open on Christmas morning. [ 29 ] Her aunt describes Lila as never having had a childhood. [ 30 ] It is clear that Lila feels the responsibility for her younger siblings is hers, even as she has been going through the court process.

The pre-sentence report speaks of Lila feeling she has to start earning money as her mother is no longer working and Lila feels an obligation to financially support the family. [ 31 ] Lila has a strained relationship with her mother. They manage to “get along” but it is not a close relationship; her mother is not someone Lila feels she can confide in or who she feels supports her. [ 32 ] Lila graduated grade 12 and attended Nunavut Sivuniksavut for a few months.

There was some pressure from her mother to return, although it also appears that Lila was not adjusting well to the program’s academic pressures. [ 33 ] Up until the offence, Lila was active in her community, attending gatherings and helping out. [ 34 ] Friends describe her as active and happy before the offence. They say that she is very good with children, is artistic, and a good baker.

[ 35 ] Lila had a good work history. She has worked as a cashier, as an Assistant Municipal Technical Officer for the Government of Nunavut, and as a substitute teacher and student support assistant in the schools. She is keen to work and seems to be a hard worker. [ 36 ] Since the offence, Lila has been withdrawn and reclusive. Being in Pond Inlet is difficult for her because she is ashamed of herself. Obviously it is difficult for both Lila and the victim’s family and friends if they cross paths in the community. [ 37 ] Lila’s remorse is deep and real.

Regardless of the sentence imposed by this court, it is clear that the real punishment for Lila will be living with what she has done. She feels guilty for still being alive and feels that she has no right to live after what happened. She has been diagnosed with depression, anxiety, and Post-Traumatic Stress Disorder. She has been harming herself by cutting, sometimes to the point of requiring stitches, has frequent thoughts of suicide, and has attempted suicide three times. [ 38 ] In January of 2018, she tried to kill herself by overdosing with her prescription medication.

She was medevaced to Iqaluit and after a period of stabilization, she returned to Pond Inlet, although she continued to be under the care of the Department of Health, Mental Health division (“Mental Health”). In March of 2018, she tried to hang herself. She was again medevaced to Iqaluit and spent three months in hospital. Upon her release from hospital, she moved to the boarding home as she continued to be under the care of Mental Health.

It appears there was a further attempt to overdose in June of 2018, while Lila was back in Pond Inlet for some reason. [ 39 ] At the time of sentencing submissions, Lila was still under the care of mental health professionals. It is clear that she will require ongoing, extensive counselling and therapy to address issues related to her past, and with coming to terms with the fact that she is responsible for the death of another person. [ 40 ] Unfortunately, Lila continues to struggle with alcohol. The medical reports indicate that as recently as this fall she was sometimes drinking to the point of blacking out.

She knows she has to deal with her alcohol issues and is willing to do so, but her mental health is so precarious she is unable to attend a residential treatment program. VI. ANALYSIS A. Law [ 41 ] The Criminal Code provides: s. 253(1) Every one commits an offence who operates a motor vehicle…(

a) while the person’s ability to operate the vehicle…is impaired by alcohol or a drug. s. 254 (3) Every one who commits an offence under paragraph 253(

a) and causes the death of another person as a result is guilty of an indictable offence and liable to imprisonment for life. [ 42 ] The mandatory minimum penalty would be that proscribed for an offence pursuant to s.253(a), that being a fine of $1000 and a one year driving prohibition. B. Principles of Sentencing for Impaired Driving [ 43 ] The overriding principle of sentencing is found in s. 718.1 of the Criminal Code , which provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[ 44 ] The jurisprudence speaks of the increase in public education and awareness of the dangers of drinking and driving over the last 20- 30 years. Police agencies, governments, private businesses, and others have made concerted efforts to increase awareness of the dangers of drinking and driving.

No longer is anyone able to say that they are not aware of the risks they take when they choose to drink and then drive. [ 45 ] Parliament has also responded, with increases in the mandatory minimum penalty for impaired driving offences, increases in the maximum penalty available for sentences for impaired driving causing bodily harm, and by eliminating the availability of conditional sentences for impaired driving causing death. [ 46 ] Counsel have provided cases to the Court to assist in determining the appropriate sentence.

It is important to place these cases in the context of changes in the legislation and the development of the jurisprudence. [ 47 ] Cases which predate amendments to the Criminal Code that increased the mandatory minimum sentence for impaired driving (2008) or the available upper limit for impaired driving causing death (2001), are not as persuasive as those cases which were decided more recently. [ 48 ] Further, cases which were decided at a time when a conditional sentence was an available sentencing option for impaired driving causing death (no longer available as of December 2007) must be considered in that context. [ 49 ] The regime of consistently increasing penalties provided for in the legislation will have an inflationary effect on the sentences imposed. [ 50 ] Nonetheless, sentencing remains highly individualized.

The range of sentences imposed for impaired driving causing death are varied, reflecting the various circumstances of both the offence and the offender that come before the courts. [ 51 ] The recent decision of the Supreme Court of Canada in R v Suter , 2018 SCC 34 , [2018] SCJ No 34 , confirmed that the range of sentences for these offences is from a low penitentiary sentence of two-to-three years to a more substantial penitentiary sentence of eight- to-ten years.

The particular circumstances of the offence and the offender will place the appropriate sentence in the range and may, on occasion, be such that the appropriate sentence falls outside of the range. [ 52 ] The consistent theme in all of the jurisprudence on sentences for impaired driving causing death is that deterrence and denunciation are paramount sentencing principles (R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089 [ Lacasse ] ). C. Application of sentencing principles [ 53 ] No one commences an evening of drinking with the intention of getting behind the wheel of a car and killing someone.

Many people who are otherwise law abiding can be reckless and exercise poor judgment when they are drinking. It is for this reason that the court must impose sentences that ensure people act responsible prior to drinking and put in place a plan that ensures they do not drive. [ 54 ] The sentencing principle of proportionality requires that the court balance the gravity of the offence and the moral blameworthiness of the offender. [ 55 ] Clearly, this is a very grave, serious matter.

A life was lost. [ 56 ] In my view, there are several factors that increase Lila’s moral blameworthiness. [ 57 ] Firstly, when she was still sober and started drinking, she chose to do so in her vehicle. At this point in time her judgment was not yet impaired by alcohol. Her thought process would have been clear. It is at this point that she should have taken the steps necessary to

ensure that she did not find herself behind the wheel of her truck. This is accomplished by giving the vehicle keys to someone or taking the truck somewhere else prior to drinking. Not only did she fail to take these precautions, she started drinking in circumstances which inevitably put her in violation of the law, by having her in care and control of the vehicle.

This substantially increased the likelihood that she would put the vehicle in motion while impaired and place herself and others at risk. [ 58 ] Secondly, despite having, at some point, arranged for a sober designated driver, which suggests she was cognizant of the inherent risks of drinking and driving, Lila was nonetheless persistent in her attempts to place herself once again in control of the vehicle. D. Aggravating Factors [ 59 ] There are also a number of aggravating factors in the circumstances of the offence. [ 60 ] The manner of driving is an aggravating factor. Lila was speeding prior to collision.

When she tried to take over the driving the passengers expressed their concern to her, yet she ignored them and was persistent in her attempts to drive. (i). Local Circumstances [ 61 ] The Crown relies upon Lacasse for the proposition that a judge may take judicial notice of local circumstances in fashioning an appropriate sentence. Lacasse stands for the proposition that the court can take notice of the prevalence of a particular type of offence in a region in determining the appropriate sentence. [ 62 ] The approach the Crown urges the court to take is somewhat different than that in Lacasse .

The Crown submits that alcohol is a significant contributing factor in most offences in Nunavut and that the court should take that in to consideration when determining the appropriate sentence. [ 63 ] I agree that most of the offences that come before the court can be described as alcohol related.

However, the mischief that the court must concern itself with is the commission of criminal offences, not the choice to consume alcohol. [ 64 ] Sentencing proceedings in which the court will consider the prevalence of a certain type of behaviour in the jurisdiction and impose sentences in an effort to discourage that behaviour are instances in which the behaviour being deterred is criminal. [ 65 ] I acknowledge that the court must understand and be responsive to both the social context in which it works and to changing social norms.

However, the court must also be careful to respect its boundaries and not engage in social engineering which is beyond its mandate. [ 66 ] It is not for this court to impose sentences that are designed to discourage or encourage the consumption of alcohol. It is for this court to impose sentences that deter crime. [ 67 ] Further, I struggle with the Crown’s submission, as it is akin to asking the court to find that the consumption of alcohol is an aggravating factor. The consumption of alcohol is an essential element of the offence. It cannot be both an essential element of the offence and an aggravating factor.

E. Mitigating Factors [ 68 ] I must also take in to consideration Lila’s circumstances as an Indigenous offender. These circumstances have been discussed earlier. Clearly Lila has experienced significant challenges in her young life and continues to do so. These circumstances mitigate Lila’s blameworthiness.

[ 69 ] In mitigation, Lila has entered a guilty plea. It was not an early guilty plea, as it came at the conclusion of the preliminary hearing, but it has brought closure to the legal proceedings. It is clear that Lila is remorseful and accepts responsibility. [ 70 ] Rehabilitation as a sentencing principle must be given consideration. Lila is young and with enough time and proper treatment and support, there is every hope that she will go on to live a productive, law abiding life.

Clearly there is much work that must be done to get her there. [ 71 ] Unfortunately, Lila does not come before the court having addressed her alcohol issue and with a sustained period of progress in that regard. On the contrary, due to her fragile mental health, her use of alcohol has either continued as before or worsened. [ 72 ] The Defence seeks a sentence that will keep Lila in Nunavut. In order for that to be achieved, the sentence must be two years or less.

With such a sentence the Court would be able to impose a period of probation of up to three years. [ 73 ] Probation orders are designed to be largely rehabilitative. If Lila had made significant progress in addressing her misuse of alcohol, the sentence requested by the Defence would be one for the Court to consider, as the lengthy period of probation would assist her in continuing progress already made. Unfortunately, those are not the circumstances the court is presented with. VII.

DISPOSITION [ 74 ] The sentence on the charge of impaired driving causing death is three years. [ 75 ] There will be credit for pre-trial custody of 30 days at an enhanced rate of 1:1.5, for credit of 45 days. [ 76 ] There will be a driving prohibition for five years, commencing on her release from custody. Dated at the City of Iqaluit this 21st day of December, 2018 ___________________ Justice S. Cooper Nunavut Court of Justice