R. v. Oqallak, 2018 NUCJ 35

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Oqallak, 2018 NUCJ 35 Date: 20181214 Docket: 12-18-4; 12-17-16 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Sheldon Oqallak ________________________________________________________________________ Before: The Honourable Madam Justice Susan Cooper Counsel (Crown): Phillipe Plourde Counsel (Accused): Sarah White Location Heard: Iqaluit, Nunavut Date Heard: November 7, 2018 Matters: Sentencing on Criminal Code , RSC 1985, c C-46, sections 129(a), 145(3) and 244.2(1) (b). REASONS FOR SENTENCE (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Mr. Sheldon Oqallak is before the court to be sentenced on a charge of discharging a firearm while reckless as to the life or safety of another person contrary to s. 244.2(1) (

b) of the Criminal Code , RSC 1985, c C-46 [ Criminal Code ], arising from an incident on June 14, 2017. [ 2 ] He was released on conditions pending the resolution of charges arising from that incident. While on release he committed further offences by resisting a police officer in the execution of duty contrary to s. 129 (a), and by being outside of his residence beyond his curfew contrary to s. 145(3) . He is also to be sentenced on those charges. II. FACTS [ 3 ] In the morning of June 14, 2017, Mr. Oqallak, his girlfriend, and his sister were in their residence drinking. Mr.

Oqallak became depressed as he thought about his former girlfriend, the mother of his two-year-old daughter, who had committed suicide. Mr. Oqallak became suicidal himself. He obtained a rifle from a closet and loaded it. His sister was able to get the rifle away from him. She disabled the rifle by removing the bolt, then she hid the rifle in the laundry room. Mr. Oqallak's girlfriend left the residence. [ 4 ] Mr. Oqallak then grabbed a .22 rifle and began to walk around the house saying he was going to kill himself.

At this point, his sister left the residence and advised police as to what was happening. [ 5 ] Police attended the residence, and two Royal Canadian Mounted Police [RCMP] officers entered. One had his pistol drawn and although he was not able to see Mr. Oqallak he was able to speak with him. Once he was able to see Mr. Oqallak and determine that he was not armed, the officer re-holstered his pistol. [ 6 ] An attempt was then made to arrest Mr. Oqallak, at which point Mr. Oqallak went into the bedroom and onto a mattress in the room.

The officers were able to see that there was a rifle on the mattress. [ 7 ] The officers backed off onto the porch of the residence and tried to negotiate with Mr. Oqallak, who responded by saying he had a gun and he wanted everyone to leave. Officers retrieved a carbine rifle from the RCMP truck. Mr. Oqallak continued to yell at everyone to leave. A standoff ensued. [ 8 ] The officers were on the exterior steps of the residence when Mr. Oqallak came out onto the landing of the steps and put a rifle under his chin. One of the officers drew his pistol and pointed it at Mr.

Oqallak while at the same time trying to speak with him. Mr. Oqallak continued to say he wanted to kill himself and went back into the residence with his two-year-old daughter. [ 9 ] Approximately 30 minutes after the police first attended at the residence, Mr. Oqallak again exited the residence with a rifle. The police sought cover behind a police truck. Mr. Oqallak's father was there and was trying to talk to him. He had to be removed for his own safety. Mr. Oqallak fired two shots. The direction of the shots is unknown. Mr. Oqallak said he would calm down if everyone left.

[ 10 ] During this time, the police were communicating with Incident Command in Iqaluit, and the school in Resolute Bay was put into lock down. The RCMP vehicle was moved further away so that it was no longer in Mr. Oqallak's sight. Mr. Oqallak came out of the residence and fired more shots. [ 11 ] At one point, Mr. Oqallak and one of the police officers were 30 feet away from each other with nothing between them. Mr. Oqallak had a .22 rifle and the officer had a carbine rifle. Mr. Oqallak fired at the officer. The officer fired back. Both shots missed. Mr.

Oqallak retreated back into the residence, saying that he had reloaded. [ 12 ] A relative of Mr. Oqallak's arrived on the scene and could not be safely removed. He remained positioned behind a tire of the police vehicle for the remainder of the incident. It came to the attention of police that a fuel tank on a neighbouring house had been struck with a bullet and was leaking fuel. [ 13 ] Mr. Oqallak exited the residence again and spoke with police for about 40 minutes. He reentered the residence, saying he wanted to check on his daughter. [ 14 ] Mr. Oqallak exited the residence again. He seemed calmer.

He propped the rifle up beside himself and had a couple of cigarettes. He had his cell phone with him and told police that he was “posting everything”. It was later determined that he had made a number of posts to Facebook. Once again he retreated back in to the residence. [ 15 ] The police were able to continue negotiating with Mr. Oqallak while he was in the residence. Ultimately, approximately three hours after the police received the initial complaint, Mr. Oqallak surrendered to police.

His daughter was not physically harmed. [ 16 ] Investigation revealed six shell casings outside the residence and one in a bedroom of the residence. In addition, there was a spent casing from the shot fired by the officer. In one of his Facebook posts, Mr. Oqallak wrote “I shot towards the cops”. [ 17 ] Mr. Oqallak was released on conditions following a show cause hearing. One of the conditions he was to follow was to abide by a strict curfew. [ 18 ] On March 11, 2018, Mr. Oqallak was once again on Facebook. This time he posted photos of himself with a noose around his neck, his face and neck were both red.

Quite understandably this caused concern for many people and the police were contacted. Mr. Oqallak was located near the arena, with a noose around his neck, the other end attached to a railing. The police were able to place handcuffs on one of his wrists, at which point Mr. Oqallak flailed against them, in an attempt to stop the handcuffs from being placed on his other wrist, thereby resisting them as they were attempting to comply with their duties as police officers. By being out of his residence, he was in breach of the condition of his release that he remain inside his residence. [ 19 ] Mr.

Oqallak was taken into custody. He was before the court for a show cause hearing on March 13, 2018, at which time the recognizance arising from the June 14, 2017, was vacated and he was released on a new recognizance. III.

POSITIONS OF THE PARTIES [ 20 ] The Crown seeks a sentence of five years for the charge of discharging a firearm and a concurrent jail term on the remaining charges, for a total sentence of five years incarceration. [ 21 ] The Defence seeks a sentence of four years for the charge of discharging a firearm and a concurrent jail term on the remaining charges, for a total sentence of four years’ incarceration. IV. PERSONAL CIRCUMSTANCES

[ 22 ] The Court has the benefit of a comprehensive pre-sentence report. [ 23 ] Mr. Oqallak was just 18 at the time of the standoff with police. [ 24 ] His childhood home was plagued by alcohol abuse and fighting until his parents stopped drinking when he was nine-years-old. He gets along well with his parents, who now provide a sober, stable environment. They are supportive of him. [ 25 ] Mr. Oqallak was taught hunting and land skills by his father. He is a year round hunter. He is also very mechanically inclined, another skill set he learned from his father. [ 26 ] Mr.

Oqallak was a junior ranger for six years as a youth before becoming a Ranger at the age of 18. [ 27 ] He has held various jobs in the wage economy. [ 28 ] Prior to going in to custody, Mr. Oqallak was on the community youth committee, which fundraised and organized community events. [ 29 ] Mr. Oqallak was in grade 12 at the time of the incident. He still has some courses to complete before being eligible to graduate. He would like to graduate and continue on to get trained as a heavy equipment operator. [ 30 ] Mr. Oqallak has a young daughter.

The mother of the daughter committed suicide when the child was one year old. Mr. Oqallak has a girlfriend that he has been with for two years. She is also very supportive of him. [ 31 ] Recent events which have impacted Mr. Oqallak are the suicide of his former girlfriend, an incident in the community where shots were fired into the family home – into the living room in which he was – and the death of his grandmother. V. ANALYSIS A.

Effect of Mandatory Minimum Sentence [ 32 ] The offence of discharging a firearm while reckless as to the life or safety of another person has a mandatory minimum penalty of four years incarceration. [ 33 ] The Nunavut Court of Appeal, in R v Lyta , 2013 NUCA 10 , 561 AR 146 [ Lyta ] , considered the impact of a mandatory minimum sentence on the analysis which a judge must undertake when sentencing. The Court rejected the notion that the mandatory minimum sentence is the sentence which should be imposed except in instances where the application of general sentencing principles call for a higher punishment.

Conversely, the Court did not endorse the approach that the mandatory minimum sentence is reserved for the “best offenders” and the “best cases”. Rather, the fact that there is a mandatory minimum sentence is one of the factors the Court must consider when determining the appropriate sentence. The fact that there is a mandatory minimum sentence will, practically speaking, have an inflationary effect on the sentences imposed. [ 34 ] The fact that the offence of discharging a firearm carries a mandatory minimum sentence reflects the seriousness with which Parliament considers the matter.

B. Sentencing Principles [ 35 ] The primary sentencing principles in this matter are denunciation and deterrence. Through the sentence imposed, the Court must send a message that the community denounces such conduct and deters other like-minded individuals from committing similar offences. The rehabilitation of Mr. Oqallak, while a relevant consideration, plays a secondary role. C.

Aggravating Factors [ 36 ] There are a number of aggravating factors in this matter. [ 37 ] First, shots were fired towards the RCMP. [ 38 ] It is important to state that recognizing as aggravating the fact that shots were fired at police officers does not mean that the lives of non-police are any less valued. Rather, this approach recognizes that, unlike other citizens, police officers are under a positive duty to respond to dangerous situations where their lives may be in danger.

It is not a choice for them. [ 39 ] Further, the jurisprudence from this jurisdiction recognizes the exigencies of policing in remote northern communities where there are few officers and help is often hours away. [ 40 ] It is aggravating that there were multiple shots fired over an extended period of time. [ 41 ] It is aggravating that Mr. Oqallak’s young daughter was present throughout the incident. As a father, his duty is to protect his child. On that day he did the exact opposite. He placed her in a situation of extreme danger; a situation that he created.

It is not enough to say that she was physically unharmed. It is highly likely that she experience psychological trauma which will stay with her for some time despite her young age. D. Mitigating Factors [ 42 ] In mitigation, Mr. Oqallak has pleaded guilty to the offences and is remorseful. He is a first time offender and has good prospects for rehabilitation. VI.

CASE LAW [ 43 ] There are a number of reported cases from this jurisdiction which involve shooting at police officers. [ 44 ] In R v Ishulutak (25 May 2001), Iqaluit, 08-00-481-1 (NUCJ) [ Ishulutak ], the offender was convicted of three counts of discharging a firearm with intent to endanger lives. The victims of the charges were two police officers and a civilian. The offender was also convicted of endangering the lives of people by shooting at them. The offender had a substantial criminal record.

A global sentence of seven years, for all the offences, was imposed. [ 45 ] In R v Sangoya (4 April 2002), Iqaluit, 11-01-108 (NUCJ) [ Sangoya ], the youthful offender, acquired two firearms, and over a three hour period fired 35 shots into the RCMP residences, the home of the special constable, and various other places throughout the community. The offender shot and killed a dog. There was some planning and thought put into the incident. RCMP officers were specifically sought out and targeted. The offender had prior convictions, including youth court convictions for firearms offences. The

sentence imposed on the discharging a firearm offence was four years, in addition to approximately eight months spent in pre-trialcustody. [46] In R v Utye, 2013 NUCJ 14 [Utye], the offender obtained a rifle and headed towards the police residences. A youth wentto the police residences to warn them. Two police officers and the youth sought refuge in the detachment, which the offender shot into13 times knowing that people were inside, and after choosing a good vantage point from which to take aim. He had a youth recordwhich included a firearms offence.

He was sentenced to seven years in custody. [47] In Lyta, RCMP were awakened when the offender shot into their residences during the night. In addition to a police officer, therewas a wife and a child in each residence. Seven shots hit the residences. Eleven shots in total were fired. The officers and their wivesspent two-to-three hours trapped in their homes waiting for help to arrive. On appeal, the sentence imposed was five years custody. [48] In Sangoya, Lyta, and Utye the offenders all obtained rifles and then went to specifically target police officers.

Seeking out policeofficers showed a level of planning and forethought. This aspect was a significantly aggravating factor in each of those cases. [49] This is to be contrasted with the cases of R v Josephee, (14 July 2010), Iqaluit 08-09-418 (NUCJ) [Josephee] and R v Mikijuk, 2017NUCJ 2 and 2017 NUCA 5 [Mikijuk]. [50] In Josephee, the offender had a rifle and was near the high school. Police were called, and when it appeared that the offender wasgoing to enter the school three shots were fired at him. In response, he fired one shot at the police.

On the charge of discharging afirearm, a sentence of four years was imposed. [51] Mikijuk was a situation where the police were called because an intoxicated and suicidal Mr. Mikijuk was inside a residence. Atwo day standoff ensued, during which the offender fired a total of 11 shots, seven inside the residence, and four through windows to theoutside. A sentence of four years was imposed. [52] As in Mikijuk, the matter before me started as a clumsy, drunken suicide attempt which the police were called upon to respond to. The spent shell casings support the conclusion that Mr. Oqallak fired a total of seven shots.

At least one was towards the police. Thedirection of many could not be determined. Clearly this does not make them any less dangerous. [53] Mr. Oqallak does not have a prior criminal record. His prospects for rehabilitation are good. [54] In my view, his offence and personal circumstances are more akin to those in the Mikijuk case than in the Sangoya, Utye, and Lytacases. VII.

DISPOSITION [55] On the charge of discharging a firearm, the sentence is four years custody. [56] On the charge of resist arrest, the sentence is 30 days concurrent. [57] On the charge of breach of probation, the sentence is 15 days concurrent. VIII. CREDIT FOR REMAND TIME

[ 58 ] Mr. Oqallak’s remand situation is unusual. [ 59 ] Following the firearms incident on June 14, 2017, he was taken into custody. He was released on a recognizance on June 23, 2017. [ 60 ] Following the incident on March 11, 2018, he was again taken in to custody. The recognizance that he had been on was vacated and he was released on a new recognizance on March 13. [ 61 ] I am advised by Counsel that prior to the March 11th incident there was an agreement that Mr. Oqallak would surrender himself into custody.

It was understood that he would be pleading guilty to the offence of discharging a firearm and that he was looking at a lengthy term of imprisonment. Surrendering himself into custody would allow him to become accustomed to jail while still in Nunavut and would allow him to accrue time to go towards the ultimate sentence. It seems that the stress of his impending incarceration was a contributing factor to the incident of March 11, which was just one week before his agreed upon surrender date. [ 62 ] A condition of the March 13 recognizance was that Mr. Oqallak surrender himself in to custody on April 3, 2018.

He has been in custody since that time. [ 63 ] The issue to be determined is how much credit should be given for the time spent in custody since April 3, 2018. [ 64 ] The relevant portion of s. 719 of the Criminal Code states: …if the circumstance justify it, the maximum [credit for pre-trial custody] is one and one half days for each day spent in custody… unless the person was detained in custody pursuant to s. 524(4). [ 65 ]

Section 524 of the Criminal Code provides that where an accused is released on charges and is subsequently found to have contravened his release conditions, or finds that there are reasonable grounds to believe the accused has committed an indictable offence, the judge shall cancel the release documents and detain the accused in custody, unless the accused has shown cause why he should be released. [ 66 ]

Section 524 contemplates the re-release of an accused. [ 67 ] In such instances, the normal practice would be to vacate the initial process and release on new process encompassing all pending charges.

This is a desirable practice as the result is one release document that encompasses all charges and conditions rather than several release documents with overlapping and potentially conflicting release conditions. [ 68 ] Such an offender has accrued subsequent charges but will, upon being sentenced to a jail term, benefit from early release. [ 69 ] The loss of accrued early release is one of the reasons why pre-trial custody is credited at an enhanced rate. [ 70 ] Mr. Oqallak is in a comparable situation to the offender who is subsequently charged and re-released. In fact, he is such an offender.

While it is true that a condition of his release was that he turn himself in to custody on April 3, this appears to simply be in furtherance of the agreement reached between counsel that Mr. Oqallak would voluntarily submit to custody. It does not appear to be a considered determination by the Justice of the Peace that Mr. Oqallak’s detention was necessary on any of the grounds enumerated in s. 515 of the Criminal Code . Indeed, if detention was called for on the enumerated grounds, then one would not expect Mr. Oqallak to have been released until April.

[ 71 ] Quite simply, Mr. Oqallak’s pre-trial detention was not as a result of the operation of s. 524(4) of the Criminal Code . While his initial release documents were vacated, his release was not revoked. [ 72 ] Had Mr. Oqallak not voluntarily submitted to custody prior to having his matters dealt with in court, he would benefit from early release for the full term of the jail sentence. Mr. Oqallak’s decision to voluntarily submit to custody early should not work to his prejudice. [ 73 ] Mr.

Oqallak is entitled to credit for pre-trial custody at an enhanced rate of 1.5:1. [ 74 ] He has spent 218 days in actual pre-trial custody. He will be credited with 327 days. IX. ANCILLARY ORDERS [ 75 ] There will be a DNA order as s. 244 is a primary designated offence [ 76 ] There will be a mandatory firearms prohibition for 10 years, subject to Criminal Code s. 113. [ 77 ] Victim of crime surcharge of $200 on the remaining two charges, $100 on each, to run concurrently. [ 78 ] The seized firearms will be forfeited. Dated at the City of Iqaluit this 14th day of December, 2018 ___________________ Justice S.

Cooper Nunavut Court of Justice