R. v. Attutuvaa, 2013 NUCJ 10

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Attutuvaa, 2013 NUCJ 10 Date: 20130611 Docket: 15-13-13; 15-13-15 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Joseph Attutuvaa ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): Leah Winters Counsel (Accused): Patrick Bruce Location Heard: Iqaluit, Nunavut Date Heard: June 4, 2013 Matters: Criminal Code, ss. 87(1) , 145(5.1) , 348(1) (

b) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION

[ 1 ] Twenty one year old Joseph Attutuvaa has entered early guilty pleas to three criminal offences. He is now before the Court for sentence. II. THE OFFENCES [ 2 ] Mr. Attutuvaa is an alcoholic. On March 17, 2013, Mr. Attutuvaa broke into the cargo area of the Baker Lake airport. Mr. Attutuvaa was looking for alcohol to sustain his addiction. Six boxes of liquor were taken. When arrested for this offense, Mr. Attutuvaa was drunk. Three bottles of hard liquor were recovered by the police. [ 3 ] Mr. Attutuvaa involved another citizen in this crime. Mr. Attutuvaa was the instigator. [ 4 ] Mr.

Attutuvaa was released by the authorities upon him entering into an undertaking given to a peace officer. A condition of this release was that Mr. Attutuvaa not possess or consume alcohol. [ 5 ] On March 30, 2013, Mr. Attutuvaa decided that he would take back the stolen alcohol that had been seized by the RCMP during the airport break and enter investigation. Mr. Attutuvaa went to the RCMP detachment at approximately seven a.m. with the intention of breaking in and stealing the alcohol. Mr. Attutuvaa’s plan was thwarted by the presence of a civilian guard inside the Detachment. [ 6 ] Later this same day, Mr.

Attutuvaa started drinking alcohol at a friend’s place. In doing so, Mr. Attutuvaa was in breach of his undertaking. [ 7 ] Mr. Attutuvaa decided that he would return to the police detachment and confront the RCMP with a rifle. Mr. Attutuvaa knew that this was very dangerous. He knew that he might be shot in such a confrontation. Mr. Attutuvaa didn’t care. Mr. Attutuvaa was angry at the police for taking the liquor from the airport break and enter. Mr. Attutuvaa was angry at the police for some perceived grievance involving his deceased stepmother. An intoxicated Joseph Attutuvaa then took his stepfather’s rifle.

He took some ammunition. Mr. Attutuvaa wanted to be arrested. He wanted to leave Baker Lake and go to gaol. Mr. Attutuvaa was angry at the world. [ 8 ] A concerned citizen saw Mr. Attutuvaa heading for the detachment and alerted Constable Briggs of the RCMP. It was now approximately four p.m. in the afternoon. [ 9 ] Constable Briggs immediately exited his home and headed towards the detachment. The detachment was a short distance away. [ 10 ] Mr. Attutuvaa saw the police officer approaching. He exited the vestibule of the Baker Lake detachment armed with his rifle.

He walked down the detachment steps and then raised the rifle, pointing it at Constable Briggs. Mr. Attutuvaa then advanced towards the officer with the rifle trained on its target. [ 11 ] Constable Briggs drew his service revolver and trained it on his adversary. Despite repeated commands to throw down the rifle, Mr. Attutuvaa continued to advance towards the officer. Vehicular traffic approached and then immediately fled the area as this armed confrontation developed. [ 12 ] At a distance of approximately 25 metres from Constable Briggs, Mr. Attutuvaa threw his rifle to the ground.

He then continued to advance towards Constable Briggs. Mr. Attutuvaa was repeatedly ordered to the ground. He ignored these commands. [ 13 ] It was not until Mr. Attutuvaa was a distance of approximately 5 to 10 metres away from the Constable that Mr. Attutuvaa’s intoxicated bravado finally gave way to common sense. Mr. Attutuvaa responded to the Constable’s directions and dropped to the ground. The confrontation was over.

[14] The following day, a sober Mr. Attutuvaa apologized to Constable Briggs for what the intoxicated Joseph Attutuvaa had done. [15] Mr. Attutuvaa’s rifle was never loaded. Mr. Attutuvaa had picked up the wrong ammunition when he left his stepfather’s house. Ina warned statement given to the RCMP subsequent to his arrest, Mr. Attutuvaa indicated that he would have loaded the firearm if he hadhad the right ammunition. Mr. Attutuvaa was fully prepared to discharge the weapon to scare the RCMP officer. Mr. Attutuvaa insist thathe never actually intended to shoot the Constable. III.

PRE-TRIAL DETENTION [16] Subsequent to the firearms incident, Mr. Attutuvaa was remanded into custody and removed from Baker Lake. He has been in pre-trial detention since the date of this incident. Mr. Attutuvaa has been held in close confinement at the Baffin Correctional Center. Heremains in segregation for his own protection. Another individual at this facility is accused of attempting to murder Mr. Attutuvaa. [17] Mr. Attutuvaa consented to his detention.

Given the circumstances of his close confinement, Crown and Defence agree that theaccused should receive a credit for his pre-trial detention at a rate of 1.5 days per day of actual serving time. He has been in pre-trialdetention for approximately six weeks. He will therefore receive a credit of 9 weeks for this pre-trial detention. IV. SENTENCING A. The lawyers’ positions on sentence [18] It is agreed that by both Crown and Defence that the seriousness of the firearms offence warrants a custodial sentence.

The lawyersremain far apart with respect to what range of custody is appropriate in the circumstances of this offence and this offender. [19] The Crown urges the Court to impose a two year sentence of custody in a federal penitentiary with an emphasis upon deterrenceand denunciation. [20] Given the accused’s young age, the absence of any record, the early guilty plea, and the pre-trial detention, the Defence urges theCourt to impose only a six month term of custody followed by a long probation order.

The Defence emphasizes rehabilitation, and theprinciples addressed by the Supreme Court of Canada in the cases of R v Gladue, (SCC), [1999] 1 SCR 688, SCJ No.19 [Gladue], and R v Ipeelee, 2012 SCC 13, 1 SCR 433 [Ipeelee], in relation to aboriginal offenders. B. Gladue considerations [21] In arriving at a fit sentence for this offence and this offender, this Court is required to take into account any systemic factors thatmay have played a

part in bringing Mr. Attutuvaa into conflict with the Criminal Justice System. [22] The proportionality principle enshrined in

section 718.1 of the Canadian Criminal Code, RSC 1985, c C-46 [Criminal Code]requires the sentence to be proportionate to the seriousness of the offence and the moral culpability of an offender. This is the onlysentencing principle of the Criminal Code to be described by Parliament as “fundamental” to the sentencing process. [23] The Gladue analysis was not intended to displace the application of the proportionality principle by creating a race-based discounton sentencing. The Supreme Court of Canada, at paragraph 75 of the Ipeelee decision, says this: This provision (section 718.2(

e) of the Criminal Code) does not ask courts to remedy the overrepresentation of Aboriginal people in

prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavor to achieve a truly fit and proper sentence in any particular case. This has, and continues to be, the fundamental duty of a sentencing judge. [ 24 ] The Gladue analysis requires the Court to consider how, and to what degree, systemic factors may have affected the moral culpability or blameworthiness associated with an offender’s criminal behavior.

It is in this limited context that systemic factors may be seen to influence the Court’s application of the proportionality principle. [ 25 ] Where alternative sanctions to imprisonment exist, the effectiveness of these sanctions in addressing the root causes of crime and their ability to contribute to long term protection of society must be considered. In the circumstances of a particular offense and offender, it may be that the long term protection of the public can be better achieved by a sanction other than imprisonment, or by a combination of gaol with other community based sanctions.

This is so particularly where the non-custodial sanction is more meaningful to the aboriginal offender and his/her community and more effective in addressing the special needs and social deficits of an offender. [ 26 ] It is not enough to simply point to an offender’s aboriginal heritage without any analysis of how this heritage bears on the sentencing process and the application of the proportionality principle. More is required. If a restorative process is to be employed, much work needs to be done to create a meaningful sentencing plan that will be effective in addressing an offender’s needs.

Protection of the public remains an important sentencing objective in all cases, whether the offender is aboriginal or not. [ 27 ] The Supreme Court of Canada requires the sentencing judge to take judicial notice of systemic factors that have impacted, and are now impacting, the aboriginal communities of Canada. This Court has done so. The Nunavut Court of Justice travels to all the communities of Nunavut.

The Court is acutely aware of prevailing social and economic conditions in Nunavut. [ 28 ] Citizens growing up in Nunavut’s communities are all affected, some more, some less, by conditions of extreme isolation. Employment opportunities are few. Meaningful opportunities for career advancement are often non-existent. Many youth have lost, or are losing touch with their language and culture, and with a life on the land. [ 29 ] All Nunavummiut long for the material comforts and lifestyles depicted on television; for many citizens of Nunavut, young and old alike, these benefits remain out of reach.

With no means of advancement, many are faced with a life of poverty. Poverty breeds hopelessness. For some, drug and alcohol abuse provides relief from this reality and the hardships associated with it. Anger, frustration, and depression are usually the bitter by-products of a life and lifestyle dependent upon alcohol. For others, suicide becomes a means of escape. C. The personal circumstances of the accused [ 30 ] Mr. Attutuvaa is 21 years of age. He was born and raised in Baker Lake. Mr. Attutuvaa has no criminal record. There is no history of mental illness. There are no known disabilities. Mr.

Attutuvaa is not the product of a residential school environment. Mr. Attutuvaa chose to drop out of school in grade ten. Mr. Attutuvaa’s decision to leave school was influenced by his growing involvement with drugs and alcohol. Mr. Attutuvaa has never taken any remedial programs to address his substance abuse or his anger. [ 31 ] It appears that Mr. Attutuvaa has had an unremarkable upbringing. There is no suggestion that he has sustained any physical, emotional, or sexual abuse in the past. He describes his relationship with his step-parents in positive terms. [ 32 ] Mr.

Attutuvaa has had no relationship with his biological parents. His step mother died some three years ago. His stepfather was incarcerated in a Federal Penitentiary some two years ago for sexual offences involving minors. [ 33 ] Mr. Attutuvaa has a history of three years seasonal employment at a mining camp as a dishwasher and labourer. [ 34 ] While Mr.

Attutuvaa thus shares with others in Nunavut all of the disadvantages associated with life in a remote arctic community, he has not been exposed to the trauma associated with the residential schools or the physical, emotional, or sexual abuse suffered by many citizens at the hands of dysfunctional family members. He has had an upbringing that many would envy. A Gladue analysis

suggests that some, but not all, of the systemic factors associated with Mr. Attutuvaa’s Inuit heritage and isolated northern residency arerelevant to the application of the proportionality principle in this case. IV. THE OFFENCES A. The circumstances of the offences [35] The break and enter was planned and deliberate. The offence was committed to facilitate Mr. Attutuvaa’s addiction. He involvedanother citizen in this criminal enterprise. The break-in involved a public building. The break-in resulted in the theft of packages destinedfor a number of other community members.

These features of the offence are aggravating. [36] Following his arrest, Mr. Attutuvaa was given his freedom subject to his compliance with a condition that he not possess orconsume alcohol. Mr. Attutuvaa chose to violate his release conditions within two weeks of his release. Mr. Attutuvaa was sober whenhe started to drink. [37] Mr. Attutuvaa was also sober when he decided to try and break in to the police detachment to steal back the liquor. This plandemonstrates a contemptuous and brazen disregard for lawful process and for lawfully constituted authority. [38] Mr.

Attutuvaa’s intoxication when he confronted the police with a rifle is in no way mitigating. He was already prohibited fromconsuming alcohol by his release process. [39] There was an element of deliberation involved in carrying out the armed confrontation with the police. This confrontation cannot besaid to be the product of impulse. It took time to retrieve the firearm and the ammunition. It took time to walk to the detachment. Mr.Attutuvaa had ample opportunity to reconsider his actions. [40] Mr.

Attutuvaa not only placed himself at great risk by provoking an armed confrontation with the RCMP, but he risked a policeresponse that jeopardized the lives of others in the community of Baker Lake. [41] Constable Brigg’s forbearance in not discharging his service revolver at the accused was remarkable. Constable Briggs did notknow that the magazine on his adversary’s firearm was empty. Had Constable Brigg’s adversary discharged a loaded firearm, theConstable might not have had the time or opportunity to fire back. Police officers do not have to wait until they receive fire to fire in self-defence.

A bullet can be very unforgiving. [42] Armed confrontations with the police have become all too common in Nunavut. [43] The Court reiterates what it said in the case of R v Kolola, 2010 NUCJ 04, 2010 NUCJ 4 [Kolola]: The peace officer is charged with the responsibility to preserve and protect the peace and to enforce the law on behalf of others in thecommunity. In symbolic terms, an attack upon a peace officer is an assault upon the community for which they serve. It is an assaultupon the rule of law.

Those who take on the peace officer, those who challenge their authority, also challenge the law upon which thisauthority is based. Deliberate attacks upon police officers thus merit a severe response from the law and from the courts that administerthis law. Denunciation and deterrence must be the foremost consideration of any court called upon to sentence individuals convicted ofsuch attacks…. For many years, peace officers in Nunavut’s small rural detachments have been required to carry out their duties alone or withoutadequate reinforcements. This was an operational reality of policing in Nunavut.

This is now changing. But the reality is that the peaceofficer in Nunavut still remains a vulnerable target. The constable is not made of iron or steel. The peace officer can bruise, bleed anddie, like any other human being. Where duty puts the peace officer in harm’s way there is a corresponding need for the courts torecognize this vulnerability through the sentencing process (Kolola, para 16-17).

[ 44 ] This Court concludes that while rehabilitation and the principle of restraint remain important considerations in cases involving youthful first offenders, these considerations must take a back seat to the need to denounce and deter this offender and others in Nunavut from resorting to an armed confrontation with the RCMP. V. CONCLUSION [ 45 ] In arriving at the form and duration of sentence for these offences, the Court has given anxious consideration to the purpose and principles of sentencing set out in sections 718 through 718.2 of the Criminal Code .

The Court has considered the offender’s personal circumstances as an aboriginal citizen and the impact that systematic factors have had on his life and lifestyle as required by the contextual analysis demanded by Gladue. The Court has considered and applied the totality principle in arriving at the appropriate length of sanctions for all three offences. [ 46 ] For the offence of break and enter and commit theft at the Baker Lake Airport, the accused is sentenced to one day or time served.

The accused has received a credit for 9 weeks for the pre-trial detention served to date. [ 47 ] For the offence of breaching the peace officer’s undertaking, Mr. Attutuvaa is sentenced to one day or time served. This is the first process offence of any kind for this offender. [ 48 ] For the indictable offence of pointing a firearm, having regard to the 9 weeks credit for pre-trial detention already served, Mr. Attutuvaa is sentenced to an additional gaol term of 15 months and 3 weeks. This sentence is the legal equivalent of 18 months of custody. [ 49 ] Had Mr.

Attutuvaa been convicted after trial, the sentence would have equaled or exceeded the recommended sentence of the Crown. Had shots been actually fired at the police, the sentence would have substantially exceeded the recommendation made by the Crown in this case. However, given the young age of this offender, the early guilty plea and accompanying remorse, the absence of a criminal record, and this offender’s lack of exposure to any remedial programming, it would not be appropriate to sentence this particular offender to a federal penitentiary at this time.

This will be the first sentence of custody ever faced by Mr. Attutuvaa. [ 50 ] The Court strongly recommends to the Corrections authorities that this offender be permitted to serve this term of imprisonment at the Rankin Inlet facility. This recommendation is to be endorsed on the warrant of committal. This offender needs access to remedial programs to address addictions and anger. [ 51 ] This period of custody is to be followed by 12 months of probation with the following terms and conditions: 1. You must keep the peace and be of good behavior; 2.

You must report to a probation officer in Baker Lake within 7 days of your release from custody; 3. You must report thereafter as and when directed by the probation officer; 4. You must remain under the supervision of the probation officer for the full term of the probation order; 5. You must undergo an alcohol and drug assessment by a qualified addiction specialist within 90 days of your release from custody. For the purpose of preparing this assessment, you will attend all scheduled interviews with the addictions worker.

You will provide your probation officer with a copy of the assessment once it is completed; and

6. You will thereafter take and successfully complete any addictions treatment as may be set for you by your probation officer in consultation with the addictions specialist. A. Ancillary orders [ 52 ] You will be subject to a ten year firearms prohibition order made pursuant to

section 110 of the Criminal Code . Any firearms ammunition or explosive substance, together with any Firearms Acquisition Certificate or Firearms Licenses must be immediately surrendered by you to the nearest detachment of the RCMP. This Court orders that any such items be forfeited to the Attorney General. [ 53 ] The Court declines to grant the offender any subsistence exemption under

section 113 of the Criminal Code . Absent exceptional circumstances, those who abuse the privilege of using a firearm by harming or threatening to harm others should lose this privilege. Mr. Attutuvaa has an unresolved and untreated addiction to alcohol. The Court is not going to take a chance on public safety. The evidence related to Mr. Attutuvaa’s dependence upon the firearm for subsistence hunting is unsatisfactory. Mr.

Attutuvaa does not know when he last participated in a hunt using a firearm. [ 54 ] There will be an order declaring the firearm used in the commission of this offence be forfeited to the Attorney General for destruction under s. 491(1) of the Criminal Code . If Defence submissions are correct, the owner of this firearm is presently serving a federal term of incarceration. The owner can neither use the firearm nor supervise its use while he is incarcerated. [ 55 ] Given the length of the sentence of custody imposed in this case, the Court waives the victim fine surcharge for reasons of hardship.

Dated at the City of Iqaluit this 11th day of June, 2013 ___________________ Justice R. Kilpatrick Nunavut Court of Justice