R. v. Napayok, 2021 NUCJ 40

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Napayok, 2021 NUCJ 40 Date: 20211008 Docket: 14-02-89 14-18-102 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Albert Napayok __________________________________________________________________ Before: Chief Justice Sharkey Counsel (Crown): P. Plourde Counsel (Accused): P. Smith I. Amin Location Heard: Iqaluit, Nunavut Date Heard: October 8, 2021 Matters: Sentencing pursuant to sections 236 (b), 266 , and 733.1 of the Criminal Code of Canada REASONS FOR JUDGMENT (Delivered Orally)

(NOTE: This document may have been edited for publication) DISCLAIMER PAGE Anonymized Judgment Disclaimer : This judgment has been anonymized the discretion of the authoring Justice to protect vulnerable parties. I. BACKGROUND [ 1 ] Albert Napayok has pleaded guilty to a charge of manslaughter for causing the death of his friend, Manasie Thompson in February of 2019.

He has also pleaded guilty to a charge of assault and breach of probation involving his then female partner R.T, which happened the previous fall, in September of 2018. [ 2 ] Last week, I heard the submissions of Crown and Defence Counsel respecting what penalty Mr. Napayok should receive for these crimes. Today, I will impose sentence. [ 3 ] Manasie Thompson’s family is with us via video today. You were here in court with us last week, and I welcome you back today.

I have read carefully each of the Victim Impact Statements which you filed with the Court, and I watched, first hand, your pain as you listened to the proceedings last week. Today, it is necessary that I must repeat some of what you heard last week. [ 4 ] The impact that Manasie’s death has had on your family can only be described as colossal. You have all suffered, and continue to suffer, in so many ways. Manasie’s senseless killing can never be undone. I am powerless to ease your grief, only time can do that.

It is important, however, that you understand that the sentence I impose today is not a measure of the value of a life, of Manasie’s life. Rather, it is a punishment for what Albert Napayok, in a drunken state, did. Today’s hearing at least brings to an end these legal proceedings. II.

THE OFFENCE [ 5 ] On the evening of 18 February and into the early morning hours of 19 February 2019, Albert Napayok, Manasie Thompson, and some of their friends were consuming large amounts of hard liquor and smoking cannabis at Albert’s residence. [ 6 ] Eventually, only Albert and Manasie, along with one other fellow were left drinking. They were all highly intoxicated. They began to play-fight and wrestle. At some point, Albert became angry, and blocked the door when this other fellow wanted to leave. Albert also brandished a knife, saying that he felt like killing someone.

Eventually, the other fellow left, leaving Albert and Manasie alone. [ 7 ] Albert and Manasie then got into a fight during which Albert attacked Manasie with a hunting knife. Manasie was terrorized and resisted; we know this because of the defensive wounds, or cuts, to both of Manasie’s upper arms. During the course of this attack Albert stabbed Manasie in the back. The blade pierced Manasie’s lung. This was the fatal wound which caused his death. Manasie was 29 years

old. [ 8 ] After being stabbed, Manasie passed out and was bleeding badly. When he realized what he had done Albert made a futile attempt at CPR to try and revive Manasie. When this failed Albert began to kick and punch Manasie in the face and abdomen, causing numerous abrasions as well as a broken rib. He also inflicted some smaller cuts with the knife. It was later determined that these injuries were post- mortem. [ 9 ] Albert then dragged Manasie’s body outside, under the porch, and covered it with snow. He then began to clean up the bloody mess in the house.

After hiding Manasie’s body under the porch, Albert walked to a few different houses in town in a drunken stupor telling people he had killed someone, and sending out Facebook messages to the same effect. He also continued drinking at a friend’s house. When first confronted by the police with this behavior he told them he was just talking nonsense and that people were overreacting to what he said. [ 10 ] Eventually, however, Albert began to tell people in more detail about what he had done to Manasie. Police were called again and Manasie’s body was found under Albert’s porch, covered in snow.

Albert was arrested and made a confession, to the best of his memory, about what he had done to Manasie. [ 11 ] Albert had been released on bail for the assault charge against R.T. when he was arrested in relation to Manasie’s death. He has remained in custody since the day of his arrest on 19 February 2019. III. THE OFFENDER [ 12 ] Albert Napayok is now 32 years old. He has had, to say the least, a rough life. His mother was murdered when he was 2 years old, and his father has been in and out of jail since Mr. Napayok was a child. Mr.

Napayok was separated from his siblings and raised by a series of foster parents. This included one long-term placement where he suffered significant emotional as well as physical abuse. [ 13 ] Mr. Napayok was deprived of a normal childhood. He grew up without any real sense of family, at all. Indeed, and to the contrary, violence and neglect were ‘normalized’ as part of his up-bringing. [ 14 ] In his late teens Mr. Napayok fled his abusive foster home and became essentially a homeless wanderer, sleeping where he could find shelter - on friends’ couches, in furnace rooms, and sometimes even under buildings.

He experienced not just homelessness, but poverty and hunger. He coped in part by drinking alcohol and smoking weed. He began using alcohol to the point of excess and became unable to control his behaviours. Eventually he found a home with his father’s brother. [ 15 ] Despite limited opportunity Mr. Napayok was resilient. He at least completed grade 10 and over the years has managed to keep a number of wage economy jobs, mostly for short periods of time. [ 16 ] Mr. Napayok has a criminal record which consists of 4 assaults and numerous counts of breaching various court orders.

He has experienced only a few short jail periods. Frankly, considering his dire up-bringing, his record is less severe than many other offenders who come before the court with similar deprivation. [ 17 ] Mr. Napayok was still subject to a probation order at the time he killed Mr. Thompson. This probation order had only a few days left before it expired; nonetheless, one condition of the probation was to refrain from consuming intoxicating substances. IV. MR. NAPAYOK’S TIME IN PRE-TRIAL CUSTODY [ 18 ] As of October 08, 2021 Mr.

Napayok will have served 963 days of actual time in custody awaiting the outcome of his case. This remand time is normally given credit at a ratio of 1.5 days for each day spent in custody. Accordingly, Mr. Napayok’s credit for time spent on remand will be 1,445 days, or 48.2 months. [ 19 ] Mr. Napayok spent much of this remand time in southern institutions, including a federal remand facility. I am told by Defence Counsel, and accept, that during his time on remand Mr. Napayok suffered cultural deprivation as well as racist overture from non-Inuit

inmates. He also experienced numerous Covid lockdowns. [ 20 ] Since August of 2021, Mr. Napayok has been transferred back to Nunavut and is currently serving his time at the Makigiarvik unit in the Baffin Correctional Center (BCC). V. THE POSITIONS OF THE PARTIES A.

Crown [ 21 ] The Crown has urged me to impose a 6-year term of imprisonment for the manslaughter offence, and a 3 month jail sentence to be served consecutively for the assault and breach of probation charges (60 days for the assault, and 30 days consecutive for the probation breach). [ 22 ] The total sentence suggested by the Crown is 6 years and 3 months – or 75 months. [ 23 ] If I were to follow the Crown’s recommendation (after deducting credit for remand) this would leave a net sentence of approximately 27 months for Mr. Napayok to actually serve starting today.

Since such a sentence exceeds 2 years it would be served in a federal penitentiary. B. Defence [ 24 ] Counsel for Mr. Napayok has urged me to impose a 5 year and 9 month term of imprisonment for the manslaughter offence, and a 2 month sentence to be served consecutively for the assault and breach charges (60 days for the assault, and 30 days concurrent for the probation breach). [ 25 ] The total sentence suggested by the Defence is 5 years and 11 months – or 71 months. [ 26 ] If I were to follow the recommendation of Defence Counsel (after deducting credit for remand) this would leave 23 months for Mr.

Napayok to actually serve starting today. Since such a sentence is less than 2 years it would allow Mr. Napayok to serve his time in Nunavut. [ 27 ] Although the parties (Crown and Defence) are only 4 months apart on sentence it is a difference which is important, because Mr. Napayok asks to be able to serve his remaining sentence in Nunavut. VI. ANALYSIS [ 28 ] There are aggravating factors which should serve to increase the severity of the penalty which Mr. Napayok receives. First, the fact that a weapon – and more particularly a knife - was used is a major aggravating factor.

Once a knife is introduced into a scuffle it is no longer just a fight. Mr. Thompson was a drunken and thus helpless victim. There were no injuries to Albert, at all. [ 29 ] Further, the autopsy report shows that there was more than one pre-mortem injury to Mr. Thompson. This means that Mr. Napayok’s attack went beyond the single fatal stab wound. [ 30 ] It is also aggravating that Mr. Napayok was intoxicated at the time he committed the offence. Mr.

Napayok’s criminal record shows his proclivity for violence when he drinks to excess; obviously he is aware of this proclivity but chose not to be too concerned about it – in this case with tragic results. At the same time, I can appreciate, as Defence Counsel suggests, that Mr. Napayok’s choice to drink – and in turn his moral culpability - is compromised somewhat by an addiction which plagues many Nunavummiut.

[31] Alcohol abuse is tearing apart the fabric of our society. It fills our criminal and family dockets as well as our jails. The homiciderate in Nunavut has, since 2000, been at least 10 times higher than the national average. Yet, some 20 years after division from theNorthwest Territories, Nunavut does still not have a single residential treatment facility. The frequency of crime fueled by alcohol ismatched only by the paucity of treatment options. [32] The homicide rate is not an aggravating factor in Mr. Napayok’s case. He is responsible only for what he does.

Nonetheless thefrequency of homicides in Nunavut calls for an exemplary sentence. [33] It is aggravating that Mr. Napayok has a criminal record for violence, and that he was at large for an outstanding charge involvinga violent offence when he killed Manasie. [34] I do not view Mr. Napayok’s post-offence conduct to be probative of his moral culpability in committing the offence. The acts ofhiding the body outside, and then cleaning up afterwards is not a true surreptitious concealment of evidence.

It is equally consistent, asDefence Counsel suggests, with a drunken panicked reaction to an unintended death – in particular since Mr. Napayok went around townafterwards telling people what he had done. [35] Albert’s guilty plea to the manslaughter charge is a factor which should serve to decrease the severity of the penalty he receives.This plea was also offered up at an early stage in the proceedings once the Crown decided that manslaughter – as opposed to murder –would be the appropriate charge.

The timeliness of the guilty plea assured Manasie’s family that Albert was taking responsibility forwhat he did and that they would not have to endure the lengthy anticipation or stress of a trial. [36] The law says that a plea of guilty is a sign of remorse, which in turn bodes well for the offender’s prospects for rehabilitation. Thequestion is often whether, beyond the plea, the remorse is real. [37] Mr. Napayok addressed the Court, and he did so as Mr. Thompson’s family members listened.

He was eloquent in detailing howthe offence and his subsequent incarceration has affected his life and how he needs to heal. He also made an apology to Manasie’s familyfor the harm he has inflicted upon them. I would point out to Mr. Thompson’s family that it is often difficult for a person to expresssorrow in a public setting. [38] The Defence has obtained a comprehensive and supportive Gladue Report which shows Mr. Napayok as a person who has beendesperately “seeking family” for his entire life. The Gladue writer also sees Mr.

Napayok as an excellent candidate for cultural re-integration. [39] In addition, counsel have been persuasive in detailing the impact of the current charge upon their client, and portraying him as areflective and insightful individual who is committed to a sober and productive life after he completes his sentence. [40] The primary sentencing objective to be satisfied in this case is that of denunciation. A life has been taken and the penalty imposedmust denounce the conduct which led to that tragic end. I must, however, be mindful that the violence in this case was inexplicable andthat Mr.

Napayok, by definition, did not intend to cause Mr. Thompson’s death. [41] There is purpose to the sentencing process. We do not punish for the sake of punishment. The common law principle of restraintsays that a judge should impose jail only when necessary, and then only as much as is necessary. [42] It is not in dispute that a lengthy penitentiary term must necessarily be imposed upon Mr. Napayok for the manslaughter charge inorder to satisfy the denunciatory and deterrent objectives of sentencing. Nor is it in dispute that a consecutive period of incarcerationmust be imposed upon Mr.

Napayok for the assault charge involving R.T in order to satisfy

section 718.04 of the Criminal Code. [43] The only issue in this case is what value to place on the rehabilitative aspect of the sentence. [44] In this regard I am guided not just by the principle of restraint but by the additional remedial provisions of section 718(2)(

e) of theCriminal Code as those provisions have been interpreted by our Supreme Court in R. v. Gladue, (SCC), [1999] 1 SCR688 and R. v. Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433 [45] In Mr. Napayok’s case a genuine remedial and individualized application of section 718(2)(

e) leads me to conclude the offender,and society, would benefit from having Mr. Napayok serve the remainder of his sentence in Nunavut. To do this, a remaining sentence ofunder 24 months is required.

[ 46 ] Accordingly, the sentence is as follows: - On the charge of manslaughter contrary to section 236(1) (

b) of the Criminal Code , the sentence is 5 years and 9 months imprisonment. - On the charge of assault contrary to

section 266 of the Criminal Code the sentence is 2 months jail to be served consecutively; and on the charge of breach of probation contrary to

section 733.3 of the Criminal Code the sentence is 1 month jail to be served concurrently. [ 47 ] The total sentence is therefore 5 years and 11 months, or 71 months. This is a total of 2,130 days. Mr. Napayok’s remand credit of 1445 days equals 48.2 months. This 48.2 months will be deducted from the 71 months which will leave a net sentence still to be served of 22.8 months, or 685 days. I will endorse the warrant of committal with a recommendation that this sentence be served in Nunavut. [ 48 ] In addition, I am placing Mr. Napayok on probation for a period of 2 years.

During this time, in addition to the statutory requirements of probation, he is to take counselling as directed by probation services. He is not to possess or consume alcohol or any other intoxicating substance. He is not to initiate contact with Mr. Thompson’s family members or other individuals named in a list to be supplied by the Crown Attorney. [ 49 ] Ancillary Orders as follows: A

section 109 Firearm Prohibition order for life; a DNA order; and a forfeiture order for items seized by police as part of their investigation. Dated at the City of Iqaluit this 8th day of October, 2021 ___________________ Chief Justice N. Sharkey Nunavut Court of Justice