R. v. Makpah, 2015 NUCJ 34

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Makpah, 2015 NUCJ 34 Date: 20150909 Docket: 16-13-9; 18-10-140; 18-10-131-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Colin Makpah ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Crown): F. Alibhai; B. McLaren Counsel (Accused): S. Kert Location Heard: Iqaluit, Nunavut Date Heard: September 9, 2015 Matters: Criminal Code, s. 143(3) ; s. 236 (b); s. 733.1(1) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document has been edited for publication)

Table of Contents REASONS FOR JUDGMENT (Delivered Orally) 1 I. INTRODUCTION 3 II. THE FACTS 5 A. Aggravating Factors 5 B. Mitigating circumstances 10 C. Personal circumstances 12 III. SUBMISSIONS 16 A. Position of parties 16 B. Proportionality principle 17 C. Moral blameworthiness 19 D. Proportionality in sentencing 21 IV. SENTENCE 23 I. INTRODUCTION [ 1 ] Before we begin, I would like to thank counsel, as well as the families involved in this case for their indulgence in waiting this extra day. I very much appreciate it and I thank you.

I hope it hasn’t been too much of a stressful inconvenience. [ 2 ] This morning I intend to read and deliver this judgment orally. As a courtesy for counsel I will provide copies marked draft so you can work with them afterwards. [ 3 ] For the information of the press, there are two envelopes here marked Press 1 and Press 2, and you will have a copy of what I am reading here. It is a draft and it is what we call an aide memoire. It is not to be published or put on your web sites.

Eventually, what I have to say here today and what I read will be transcribed and CanLII will produce a formatted judgment for publication, but you can feel free to quote from this all you wish because I am going to read it in any event. [ 4 ] Now the accused, Colin Makpah, is before the court today to be sentenced on a charge of manslaughter involving the death of Donald James Gamble [D.J. Gamble] and also on the charge of breach of probation, which was in effect at the time he caused the victim’s death. [ 5 ] He had entered a plea of not guilty to the manslaughter charge and was found guilty after a trial.

On the breach of probation offence, he entered a plea of guilty. [ 6 ] The lawyers in this case have, throughout the proceedings, referenced the accused, as well as the deceased victim and the various family members, who appeared as witnesses, by their first names or familiar initials, and I will follow and for the most part do the same as I pass sentence upon Colin Makpah today. [ 7 ] Before passing sentence, I feel I must address the issue of victim impact.

I have given anxious consideration as I poured over the many victim impact statements to the feelings and sensibilities of both the immediate and extended members of the Gamble family and,

like every other person who was present in court last week, I was fixated in silence as we listened to those members of the Gamble family who had chosen to speak. [ 8 ] The eloquence with which each speaker expressed themselves was surpassed only by the anguish of their loss, a loss which they continue to suffer and attempt to cope with. [ 9 ] In particular, we heard from Kayla as she read extracts from her diary.

She has mourned the loss of her beloved brother, D.J., daily, hour by hour, minute by minute, second by second, since the moment he was taken from her. [ 10 ] On February 13, 2012, she wrote, and I quote, “If love alone could have saved you you would have never left us.” The Court has seen, heard, and felt through Kayla the level of devastation which has wreaked such horrific havoc upon the Gamble family. [ 11 ] Kayla also wrote in her diary at some point, and, again, I quote, “They say time heals all wounds. That’s bullshit.” To her, all I can say about that is that what she wrote is true.

The wound will not heal and things will never be the same as they were when D.J. was here, but they will not always be like this. [ 12 ] The criminal court process is itself a major stress upon families and as Kayla read from her diary beginning in August of 2010, it struck me profoundly that in this particular case the Court has, at least to some extent, already failed the Gamble family or let them down by taking the five years it has taken to complete this case. [ 13 ] It is clear to me now, with the benefit of hindsight, that I should have insisted upon stricter timelines to complete this case, and in that regard the buck stops with me. [ 14 ] We heard last week also from Susan Schwartz, as she called upon me or upon this court to respect the family; in Susan’s words, “to be fair to them.” [ 15 ] In this regard, I can only say that the sentence that this Court imposes upon Colin Makpah is not, and can never be, a reflection upon the value of the life that has been lost or the value of human life generally. [ 16 ] This Court understands that from the perspective of a grieving family no sentence and no amount of jail can possibly equal what has been taken from them or replace what has been lost.

Their anger, their sadness is understandable, but this Court is powerless to ease their grief. And while time cannot, as Kayla said, heal the wound, it is only time which can ease the grief which the Gamble family continues to experience. [ 17 ] As I articulate the analytical framework in arriving at what I consider to be a proper sentence for Colin Makpah, I should like to say two things at the outset. [ 18 ] First, I do not intend to review the findings of fact from the trial in any detail.

I shall reference the facts, as well as my conclusions or views respecting the facts only as is necessary to relate such findings or views to the individual elements of the sentencing process. [ 19 ] Second, I found the Defence written pre-sentence report to be very helpful. In particular, I found the statement of Colin’s mother, Susan Makpah, concerning Colin’s upbringing to be a useful and balanced assessment. She told it like she saw it - good and bad, and she did not sugar coat anything. [ 20 ] I will now deal with the aggravating and mitigating aspects of this manslaughter case. II. THE FACTS

A. Aggravating Factors [ 21 ] Dealing first with the aggravating factors, that is to say, those features of the case which call for a greater or more severe punishment or sentence. First and foremost, I consider it to be aggravating that a weapon, a knife, was used in the commission of this offence. [ 22 ] I also consider it an aggravating circumstance that there was more than one stab wound to D.J.’s body.

There were four stab wounds. [ 23 ] I also consider as an aggravating circumstance the considerable force that Colin would have had to employ or use in order to plunge the knife into D.J.’s abdomen and cause the final wound.

I come to this conclusion as a matter of simple common sense which, in my view, hardly needs a medical opinion to support. [ 24 ] I note, in particular, Colin’s own testimony, where by his own admission D.J. was actually in the process of getting up when Colin decided to stab him. [ 25 ] I also consider it an aggravating circumstance that the accused, Colin, was under the influence of alcohol at the time he stabbed D.J. He was not drunk by any means, but by his own admission he was under the influence that night. By his own estimate, he had consumed four or five shots.

He said that he and Abraham drank about one-third of Abraham’s forty-ouncer. [ 26 ] The fact that Colin was under the influence when he stabbed D.J. is an aggravating factor because the consumption of alcohol, as a matter of common sense, would impair his judgment even in the heat of the moment when things were moving so fast about how much force he was using. [ 27 ] The fact that Colin was also in breach of Justice of the Peace Fredlund’s proscription against consuming alcohol and actually breaking the law by drinking that night is a separate and discrete matter as the subject of a separate charge. [ 28 ] It is also an aggravating factor at sentencing that Colin’s stabbing of D.J. was a gratuitous over-the-top reaction to the general and minimal level of violence that was in evidence that D.J. had exhibited that night. [ 29 ] The question of the nature of Colin’s response to the general level of violence is not something which is simply relevant or linked only to liability to the question of whether Colin is guilty or not guilty.

It is, in my view, as the prosecutor has suggested, relevant as an aggravating circumstance on sentence. [ 30 ] As the Crown pointed out during submissions, Colin was not the instigator to be sure, but D.J. had not punched anyone, had not kicked anyone or had not choked anyone, nor had he threatened to use or used a weapon beyond it appears for a moment at least picking up an ATV trade magazine. [ 31 ] As I said in the trial decision, and I quote from what I have said before, “The nature of D.J.’s violence was essentially, as the Crown has suggested, a matter of pushing and shoving, and as Abraham himself has testified, a matter of wrestling on the floor (R v Makpah, 2015 NUCJ 12 para 223 , 2015 NuJ No 11(QL) )”. [ 32 ] Even if we conclude the actions of throwing both men to the floor, in my view, the nature of the force used by D.J. was at the minor end of the scale in terms of the type of violence that judges see described almost daily in our criminal courts. [ 33 ] At this point I would simply add, as I alluded in my earlier judgment, the fact that Cheryl saw fit to hit D.J. on the head with a bottle did not change the nature of what was essentially boorish and minimally violent behavior by D.J. as he was pushing and shoving people around and throwing two men down in what, at the end of the day, was nothing more than a glorified wrestling match.

[ 34 ] The notion that somehow there was an immediate threat or imminent threat of escalating violence on the horizon beyond such a context was simply, in my view, not the stuff of reality, and I thoroughly rejected any such idea. [ 35 ] Indeed, I would remind again that in the immediate aftermath of hitting D.J. with a bottle Cheryl simply busied herself by attending to baby Whisper, calling for a taxi so that she and Whisper could leave. [ 36 ] If I recall her testimony correctly, she was concerned that the taxi dispatcher might overhear the commotion in the house and decline to send a cab. [ 37 ] Thus, and to repeat, the minimal nature of the violence exhibited by D.J. is certainly an aggravating feature of the case when it comes to imposing sentence. [ 38 ] I view Colin’s post-offence conduct, that is, what he did after he stabbed D.J., as a minimal aggravating circumstance.

It is disturbing that Colin did not do more to get help for D.J.

Unlike the other people in the house, he is the one who would best know or at least fear that, indeed, D.J. had been seriously hurt. [ 39 ] Of course, whether it would have made any difference and whether D.J. would have been saved had Colin made a better and more concerted effort to get medical help is simply the stuff of speculation, something we will never know. [ 40 ] Colin made an initial attempt to make a phone call for help from a neighbour’s house, but his overall effort in this regard, as I alluded last week during counsel’s submissions, was pretty weak indeed. [ 41 ] Basically, it is clear that Colin knew he had hurt D.J. badly, but for the most part afterward he panicked and was concerned primarily not for D.J., but for himself. [ 42 ] Respecting Colin Makpah’s criminal record, I do not feel that it figures into this case as much of an aggravating circumstance.

He has a break and entry conviction from 2004 which I will mention shortly as I address his personal circumstances, and, of course, the simple assault conviction in May of 2010, for an incident which took place the previous July of 2009, and for which Justice of the Peace Steve Fredlund imposed a suspended sentence and probation, which included a no alcohol condition. [ 43 ] The reason that the previous conviction for assault does not factor in much as an aggravating feature on sentence in this case is because, quite simply, Colin was the aggressor when he punched the victim at Abraham’s house in 2009, but he was not the initial aggressor before he eventually stabbed D.J. [ 44 ] I will have more to say about this assault conviction from May of 2010, as I consider the proportionality principle and the question of Colin’s so-called moral blameworthiness for what happened. [ 45 ] During the Crown’s submissions, Mr.

Alibhai made reference to the fact that the usual credit reduction of sentence which results where an accused person enters a plea of guilty is not available in this case. [ 46 ] Mr. Alibhai was quite careful in crafting this submission and I intend to be equally careful in responding to it. [ 47 ] A person accused of a crime has a constitutional right to a trial and if he is found guilty after a trial he should not receive a greater penalty because of that fact, because he exercised his constitutional right to a trial.

[ 48 ] At the same time, the courts recognize that it is legitimate to give some credit reduction of sentence to those people who chose not to have a trial, who choose not to exercise this constitutional right. [ 49 ] The courts do this mainly for two reasons. First, because, as a matter of law, the entry of a guilty plea is seen as

an act of remorse by the accused, as

an act whereby the accused says publicly that he did wrong and that he is sorry for what he did, not just to the public generally, but to the victim or victims of his crime. [ 50 ] Second, because an accused who pleads guilty allows the victims in the case, including sometimes family members of the victim, to be free of the stress of having to be witnesses, a stress which they begin to experience not just when they come to court, but from the moment many months or even years earlier when they first receive a subpoena. [ 51 ] An accused who enters a guilty plea will normally receive a reduction in the sentence imposed.

This reduction could be in the form of a prison sentence even beneath the normal range or it could be in the form of the type or nature of the sentence imposed, for example, the imposition of a non-prison term. [ 52 ] The judges of the Nunavut Court of Justice have said consistently that not only do guilty pleas count for something, but that they should be seen to count for something by the individual offender before the court and by other offenders facing charges. [ 53 ] So while an offender who enters a plea of guilty will most often receive some credit reduction in their sentence or even sometimes in the type of sentence they receive, this does not mean that an offender who is found guilty after exercising their constitutional right to a trial will receive or even expect to receive an aggravated or greater sentence simply because his case went to trial. [ 54 ] Indeed, courts must take great care to avoid such a mistaken approach in sentencing such an offender. [ 55 ] Now this may seem somewhat of a legal fiction, but the fact of the matter is that it is only through a form of sentence reduction or credit that the court can recognize the value of a guilty plea, both to the offender and the community at large. [ 56 ] In this case, Colin Makpah did not enter a plea of guilty, but this only means that he does not receive a credit reduction of his sentence by virtue of this fact. [ 57 ] It does not mean that he is to receive a more aggravated sentence simply because he went to trial and, in this particular case, I must take care not to conclude that the fact of a trial means that there is an absence, on Colin’s part, of remorse. [ 58 ] Indeed, I find quite to the contrary, and I believe that Colin Makpah, when he said what he said to me last Friday, showed true and real remorse, true and real sorrow for D.J.’s death, for killing D.J., and I have, at the risk of sounding somewhat maudlin, been around enough in this business to spot and distinguish real remorse from phony eleventh hour tears. [ 59 ] I must keep in mind that the trial in this case went ahead.

It took place, as I alluded to during submissions, because Colin Makpah, in his own brain and despite the fact he was high at the time, in his own brain was doing what he was doing at first just to stop D.J. from behaving the way he was, and then after this did not work, in his own brain, stabbing D.J. to defend himself and to protect the others in the house. [ 60 ] I must emphasize the fact that I concluded otherwise and found his actions were excessive in this regard and simply the end result of a legitimate trial. It will not serve to aggravate the ultimate sentence imposed on Colin Makpah. B.

Mitigating circumstances

[ 61 ] I will now deal with the mitigating circumstances, that is to say, those features of the case which favour a lesser punishment or sentence. [ 62 ] In this regard, first and foremost, as alluded to by Defence counsel, is the fact that Colin Makpah was not the aggressor, at least [not] the primary aggressor in this case. He did not pursue D.J.

He did not go to Abraham’s place looking for trouble, nor did he have a knife on his person when he got there. [ 63 ] There was no evidence that Colin had any prior hostility towards D.J. or was even angry with him up to the point where he was pulled into this fight or wrestling match and even then, Colin’s clear testimony was that he stabbed D.J. not out of anger, but to defend himself and the others. [ 64 ] Now Colin’s choice to threaten to fetch a knife and then to actually go fetch it was certainly an ill-advised one and something I will deal with shortly later in this judgment.

But he did so, as I found at trial, for the purpose of dissuading D.J. to stop his insulting, boorish, and aggressive behavior and not for the purpose of putting an end to this behavior by stabbing D.J. [ 65 ] Again, I found at trial that Colin was pulled into this fight or scuffle while holding the knife. [ 66 ] It is true that D.J. was actually getting up when Colin stabbed him and it is clear, as I found at trial, that there were alternate physical options available to Colin other than actually stabbing D.J. with the knife, let alone stabbing him four times. [ 67 ] At the same time, despite this clear excessive use of force, Colin’s opportunity to reflect about what he was doing was somewhat limited. [ 68 ] But even giving some credit in mitigation to Colin for the short timeframe involved after he was pulled into the scuffle, I would pause to note that his own trial testimony in this regard was, as I alluded in the trial judgment, both puzzling and problematic. [ 69 ] I viewed it as incongruous that Colin could say on the one hand that he was able to somehow measure the force of his actions and at the same time that things were moving so fast he was unable to answer some poignant and simple questions from Crown counsel. [ 70 ] But, I repeat, at this point and within the analytical framework of sentencing, I think there is clearly traction to the Defence submission in mitigation of sentence that the stabbing was one where Colin’s ability to reflect was limited.

C. Personal circumstances [ 71 ] I now turn to the personal circumstances of the accused. This is a case where Colin Makpah’s personal circumstances favours a mitigation of sentence. He is thirty-one years old now. He was twenty-six when the offence was committed. Accordingly, by any measure he is still a young man. [ 72 ] He was raised by his mother, Susan Makpah, a single mother who worked hard to ensure that Colin had all that he needed.

They lived primarily in Rankin Inlet, but left the community together for brief periods so that Susan could upgrade her educational level. [ 73 ] Susan provided a report to the court as part of the Defence pre-sentence bundle.

Colin’s boyhood appears to have been a happy one, both in his mother’s home as well as when he stayed with her parents at their camp when school was out following the season’s hunting and fishing. [ 74 ] Susan describes her son’s late boyhood and early teens as a time when not only she could count on him to be helpful, but when other less fortunate members of the community could do the same as well.

[ 75 ] When the two of them went to Yellowknife the plan was that Colin would start high school. Instead, it was during this brief time in Yellowknife that Colin first started getting into trouble by drinking. [ 76 ] From age seventeen until about when he was twenty years old, Colin became rebellious. He was missing school, smoking dope, drinking and basically getting up to no good or, worse, he was getting out of control. [ 77 ] He was obviously a handful for his mother, but she stuck with him.

At one point, Susan needed to call the police and Colin was sent off to Winnipeg for a medical assessment after he had tried to hurt himself. [ 78 ] I am told that Colin’s 2004 conviction for Break and Entry [B and E], when he was about nineteen years old, was a B and E into his own mother’s home.

But, to Colin’s credit, he made a choice to change his ways unlike, sadly, so many of our youth in Nunavut who, once they get started drinking, partying, and committing crimes, often stay on that easily travelled route well into their mid and late twenties and, in some cases, even longer. [ 79 ] Eventually, Colin left for Chesterfield Inlet and it was here where he first met his wife, Jill, and it was when she became pregnant for the first time in 2004 that Colin’s behavior changed for the better.

His new life with Jill prompted him to reach out to his mother, Susan, as well and to apologize for all of the anguish he had caused her over the past few years. Colin and Jill now have three young children and a baby. [ 80 ] Between 2005 and up until he was arrested in August of 2010, Colin had secured solid employment with the local housing association, and he had continued as well to be active on the land, hunting and fishing, with his in-laws and other members of Jill’s family. [ 81 ] But nobody is perfect. In July of 2009, there was a party at Abraham Nakoolak’s place. People were drinking.

Colin was intoxicated. He was standing outside on the porch having a smoke, along with another fellow. Colin challenged this other fellow to a fight. The two of them briefly exchanged words and then Colin punched this fellow in the face. [ 82 ] Colin was charged with assault. His case came before Justice of the Peace Steve Fredlund [J.P. Fredlund] on 17 May, 2010. Only three short months before D.J. was stabbed at Abraham’s place, Colin pleaded guilty to this assault charge. [ 83 ] J.P. Fredlund suspended the passing of sentence and placed Colin on probation for a period of nine months.

He also imposed certain probation conditions. Colin was forbidden to possess or consume alcohol during this nine-month period and also required to attend counseling for substance abuse. [ 84 ] J.P. Fredlund also had some sage advice for Colin. He said, and I quote, Now when there is some kind of conflict happening between two people, adding a substance that will reduce your inhibitions is just not a good idea, and I think if you don’t see that clearly now, hopefully a bit of counseling will help you see that clearly.

But I am thinking that you do see that and so we wish for you a sober and decent life. {Unreported decision; Nunavut Justice of the Peace Court} [ 85 ] The Crown attorney had asked the Court to consider this earlier injunction or admonition by J.P. Fredlund, some three months before D.J. was stabbed, as an aggravating feature in this case, namely, the notion that Colin was warned about the dangers of alcohol when people are in conflict as a factor that somehow should favour an increase in the ultimate sentence he receives. [ 86 ] Defence counsel took issue with this notion.

I tend to agree with the Defence that the so-called warning by J.P. Fredlund is not an aggravating feature of the case. In this regard, the warning itself is a red herring.

[ 87 ] It is clear that J.P. Fredlund was just telling or reminding Colin of things that he already knew, specifically, for those of us who have problems handling alcohol, drinking can lower inhibitions and in times of conflict can get us into trouble with the law. [ 88 ] Colin already was well aware of this. He committed this assault in July of 2009, but in the few months or weeks before his court appearance in May of 2010, before J.P. Fredlund, Colin’s lawyer made the point to J.P.

Fredlund that his client, Colin, had already taken the initiative to address his problem with alcohol through professional counseling. [ 89 ] So, at the end of the day, J.P.

Fredlund’s remarks about the dangers of substance abuse were less an injunction and simply words of encouragement and support. [ 90 ] At the same time, while the J.P.’s comments or earlier warning do not aggravate the sentence, nonetheless, in my view Colin’s own perception or self-knowledge that alcohol abuse can lead to stupid and dangerous results is relevant and I will address this relevancy as I talk about the proportionality principle in relation to Colin’s so-called overall moral blameworthiness. [ 91 ] As far as Colin’s prospects for productive work [are] concerned, he seems to be an accomplished carpenter with a good work ethic.

Indeed, after he was released on bail into Chesterfield Inlet it appears that a number of contractors had come calling for his services. [ 92 ] Unfortunately, however, leaving Chesterfield to work while he was on bail awaiting trial was simply not in the cards.

It would have been both logistically difficult and stressful for both he and his young family. [ 93 ] Colin has also been unable during this time when he has been out on bail to even go hunting because of the restrictions in his bail papers. [ 94 ] Colin’s mother, Susan, has articulated the difficulties that Colin has endured while living on bail in Chesterfield.

These include everything from general community hostility towards Colin and other members of their family and the fact that with jobs in such short supply in Chesterfield, Colin is unable to provide for his family either by working or by securing country food.

Nonetheless, she says he remains a solid family man and the large amounts of time he has spent with family since his release have allowed him to enjoy his sobriety. [ 95 ] But Susan also describes how, except for his wife, Colin feels completely alone with no one to talk to about the situation he finds himself in. [ 96 ] Susan says the last few years have been difficult for her, seeing her son so helpless.

But this is not a situation, Susan says, where Colin is simply feeling sorry for himself. [ 97 ] Susan says, and I quote from her statement, “I know that Colin will have to live with the fact of D.J.’s death for his entire life.” [ 98 ] Susan tells us in her statement that Colin is simply surviving day by day, that he is forever saying, ‘I wish I could turn back time.’ [ 99 ] The Chesterfield Inlet [Royal Canadian Mounted Police] speak highly of Colin as a family man with a good work ethic and about how they perceive Colin as remorseful about what happened, about what he did in causing D.J.’s death, and they say this, despite the fact that Colin slipped once while on bail. [ 100 ] Jill had called the police, but when the police found Colin, obviously impaired, they said the most remarkable thing was how apologetic and ashamed he was for taking a drink. [ 101 ] It is clear to me, if this allegation of breach is true, that the pressure which his mother has described must have been a contributing

factor. [ 102 ] In terms of the sentencing objective of individual deterrence, which I am required to address, it appears that the prospects for Colin’s rehabilitation are good and it is likely that after serving his sentence he will once again resume as a solid family man and productive member of society.

There is, in my mind, little risk that he will ever pose a danger to society. [ 103 ] There are a number of things that have contributed to me coming to this conclusion. [ 104 ] First is the so-called salutary effect of the seven and a half months on remand and, indeed, the long and drawn out prosecution of this case generally. [ 105 ] Second is the fact that I am confident that Colin will accept his sentence and serve a penitentiary sentence with dignity.

Not just because he knows there is light at the end of the tunnel and that he will eventually be reunited with his family, but also because this time in jail will be all he is even capable of doing, no matter how long his sentence, to grant some measure of solace to the Gamble family. [ 106 ] Colin will return to his family after he serves his sentence. D.J., however, is gone from the Gamble family forever. Colin knows this, but all he can do about it is put his head down and serve his time with dignity. III. SUBMISSIONS A.

Position of parties [ 107 ] I will now deal with the position of the parties, the Crown and Defence. The Crown in this case has urged the Court to impose a sentence in the range of between seven to nine years, less credit for remand. [ 108 ] The Defence has said that a federal sentence of three years is sufficient to satisfy the principles and objectives of the sentencing process. Defence counsel also requests an enhanced remand credit at a ratio of 1.5 to 1.

This means that Colin would receive a remand credit of eleven months, although he only served a total of seven and a half months in pretrial custody. [ 109 ] At the end of the day, if the Court imposed a three-year sentence, as requested by the Defence, then the eleven-month remand would be deducted from the three year or thirty-six months term for a total which would result in a net sentence or remaining sentence of 25 months. [ 110 ] Regardless of the sentence, the Crown does not take issue with the granting of enhanced remand credit.

I pause to note that Colin upgraded himself by securing a high school GED while on remand and it is the practice of the court to grant enhanced remand credit to offenders who spend their time in pretrial custody productively. [ 111 ] There is no issue in this case with the so-called ancillary orders which must be made as a sidebar to the main sentence. Accordingly, there will be, as I directed on Friday, a

section 110 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code], firearm prohibition order which will run for a period of ten years from Colin’s release from prison. [ 112 ] There will, however, be a Criminal Code

section 113 subsistence hunting exemption which will allow Colin during this time to use a firearm on the land in pursuit of country food. [ 113 ] He will also be required to provide a DNA sample. In this case there are no other ancillary orders necessary. B. Proportionality principle

[ 114 ] I will deal now with the so-called proportionality principle which is involved in our criminal sentencing process. [ 115 ]

Section 718.1 of the Criminal Code says that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 116 ] In homicide cases where the offender has been found guilty of murder the penalty is a mandatory sentence of life imprisonment. The judge must impose a life sentence and the only remaining issue is where the sentencing judge may fix the time when the offender is allowed to ask for parole. [ 117 ] The homicide offence of manslaughter is obviously also at the high end of severity. A life has been taken.

The maximum penalty for manslaughter is life imprisonment. There is, however, except in cases involving firearms, no minimum sentence. [ 118 ] This notion of proportionality means that the punishment must fit the crime.

This in turn requires an examination of the facts of the offence, as well as the surrounding circumstances of the crime. [ 119 ] As I have said in other manslaughter cases, it is not surprising that the sentencing range for manslaughter has historically reflected the wide and varying circumstances under which this crime is committed, circumstances which range from instances of gratuitous drunken beatings to cases of near accident. [ 120 ] For example, in rare cases an accused may have lashed out in anger towards the victim as a result of a lifetime of abuse.

In others, he or she may have overstepped the boundaries of self-defence, which is the case here.

Also, it is not uncommon that an otherwise innocuous fight, a fist-fight, may yield a fatal result. [ 121 ] Cases such as this, cases of excessive self-defence necessarily involve situations where the accused has been provoked and where most often he is not the initial aggressor and quite often, not even himself committing a crime when he is attacked or assaulted. [ 122 ] In cases where the court finds that self-defence was excessive, the court is also saying that the overall circumstances of the case are such that the accused was indeed entitled to use some force to defend himself or others and the finding of the court that he used too much force or the wrong type of force does not change this conclusion. [ 123 ] In turn then, in general, we might expect the sentences imposed for cases of excessive self-defence to be tempered somewhat compared to sentences imposed in other circumstances where the offender had no such entitlement to use force at all.

C. Moral blameworthiness [ 124 ] In addition to characterizing or examining the nature of the manslaughter case, the court is required, as Criminal Code

section 718.1 says, to look at the degree of responsibility of the offender. [ 125 ] What the case authorities say about this is that the court needs to examine the moral blameworthiness of the offender in committing the offence of manslaughter. [ 126 ] This is often difficult to get one’s head around because if the offender killed somebody is he not simply as a matter of common sense already morally blameworthy? Well the answer to this rhetorical question is yes, he is morally blameworthy full stop.

[ 127 ] But within the context of a manslaughter charge and because the sentence range varies so widely it is necessary to look to see where in terms of this moral culpability the offender stands compared to other cases, to see where on the rung of the figurative moral culpability stepladder the individual offender should be placed. [ 128 ] As I assess Colin Makpah’s moral culpability and even where, as here, the nature of the manslaughter case is one of excessive self- defence or defence of others, my assessment is not restricted just to the act which constituted the crime, namely, the act of stabbing D.J. [ 129 ] Rather, my assessment of Colin’s moral culpability in D.J.’s death has a wider component, to include not only what Colin was thinking, but also what, objectively speaking, he should have been aware of. [ 130 ] Colin was not the aggressor and he did not choose to get involved physically with D.J.

He was quickly taken down by D.J. But he did choose to confront D.J. with a knife, first by threatening to get the knife and next by standing close to D.J. as a means to dissuade D.J. from his boorish and rough behavior.

This was an ill-advised choice. [ 131 ] It was not a crime to threaten to get the knife and then to go fetch one in the hope that D.J. would respond by stopping, and if it had worked, if D.J., even in his drunken state had said ‘Geez, Colin, I get it, I get it, I’ll knock it off,’ and had then just got up and went home, then Colin would have committed no crime by using the knife as a tool to dissuade D.J., to get him to knock it off, to get him to stop.

Whether D.J. actually heard Colin threaten to get a knife or even saw any knife is irrelevant. [ 132 ] The reason that Colin’s choice to get a knife was ill advised is because, objectively speaking, anyone with an ounce of common sense would clearly see the risk involved in such a choice.

Clearly, [Collin] was frustrated to the point where he thought that threatening to get a knife was the best way of getting D.J. to stop all this, but there was a clear and obvious risk that fetching a knife might not work to dissuade D.J., that it might not get him to stop. [ 133 ] Colin was also under the influence of alcohol, his judgment was impaired, and his ability to act with restraint had been lessened by drink. [ 134 ] D.J. was out of control, but he was also unarmed.

In the event that the threat of a knife did not work to stop D.J., Colin should have foreseen the real prospect that he might wind up actually using the knife and causing some serious bodily harm. [ 135 ] Colin was not the aggressor to be sure, but he intentionally put himself in harm’s way and at the end of the day caused a fatal harm. Accordingly, Colin’s moral blameworthiness or culpability in this manslaughter case is high, despite the fact that this case itself of manslaughter is properly described or characterized as one of excessive self-defence. [ 136 ] Further, Colin’s blatant disregard for J.P.

Fredlund’s probation order speaks for itself in terms of moral blameworthiness. This was not a situation where Colin, for example, was sitting at home and other guys showed up with a bottle. Colin purposely went out to party and to drink. Accordingly, and in order to give some teeth to the punishment for breaching J.P. Fredlund’s order, the sentence imposed must, in my view, be imposed as an additional or consecutive period of jail to the sentence imposed for manslaughter. D.

Proportionality in sentencing [ 137 ] To be clear about my reasoning here, I have found the fact that Colin was under the influence when he stabbed D.J. to be an aggravating circumstance in the manslaughter offence, but as a separate and discrete matter the fact that his drinking also broke the law is something which should, in my view, attract a separate and stand-alone punishment. [ 138 ] It is within this context of proportionality that we examine what has happened in other manslaughter cases throughout the country.

The Criminal Code itself directs judges to make some effort at parity when it says that sentences for similar offences and for similar offenders should themselves be similar, but this is more often than not a seemingly impossible task.

[139] A sentence must be crafted so it addresses not just the gravity of the crime, but also the particular circumstances of the offender, hisbackground, his criminal history or lack of criminal history, as well as his prospects for rehabilitation. [140] The effort to achieve parity in sentencing is compounded by the fact that while a sentence imposed upon an offender is concernedwith more than just the offender and must address and satisfy the more general principles and objectives of sentencing, the process isitself by its very nature an individualized one. [141] Another impediment to achieving parity in sentencing is the fact that regional disparity in sentencing is a legitimate fact.

Courts indifferent parts of the country will see the need to address unique or frequently occurring types of crime particular to their geographicregion. [142] Now, in Nunavut, over the past few years, sentences have been imposed which have been tailored to address some troubling inrecurring manslaughter fact situations in our jurisdiction.

For example, respecting spousal manslaughter, sentences of thirteen years inthe R v Ammaklak, 2008 NUCJ 27, 2008 CarswellNun 27, case and fourteen years in the R v Kinak {Unreported Nunavut Court ofJustice Decision 2013, Docket Number 14-08-41-1} case have been imposed; and respecting the use of firearms in the more recent caseof R v Geetah, 2015 NUCJ 10, 2015 CarswellNun 8, a ten-year sentence for manslaughter was imposed. [143] Now counsel in this case have provided me with numerous case authorities and precedence which illustrates the wide range of factsituations where an equally wide range of sentences have been imposed in manslaughter cases. [144] In many of these cases where the sentence imposed is in the higher range, it is clear that the accused is in invariably the aggressor,himself bent on committing a crime from the outset and often in pursuit of the victim. [145] In many of the cases where sentences in the lower range have been imposed, it is clear that the accused has often been the victim oflong-time domestic violence and abuse. [146] In many of the cases where sentences in what I would call the middle range have been imposed, it is clear that the level ofintoxication of the accused, and sometimes the victim as well, is so extreme as to leave little deterrent punch in whatever sentence thecourt sought fit to impose. [147] In particular, some of the case precedent cited by Defence counsel towards the lower end of the sentencing range, for example, theR v Gladue, (SCC), [1999] SCJ No 19, [1999] 1 SCR 688 (QL), case itself, the Young case (R v Young, (MB CA), [1998] MJ No 495 (Man CA), 40 WCB (2d) 256), and the R v Korgak, 2013 NUCA 9 , 2013 NUCA 09,[2013] NuJ No 27 (QL), case from our Nunavut Court of Appeal are, in my view, simply not sufficiently denunciatory in terms of thetype of conduct which the court must address in this case, namely, the inclination or propensity of people and particularly young men toreach for knives in situations which do not call for it and where doing so can have fatal results. [148] The point needs to be made from both a denunciatory as well as a deterrent standpoint that bringing a knife, or introducing a knifeinto a scuffle or even a fight at a party is something which will attract a federal term of imprisonment. [149] In this case, I am mindful that imposing a federal penitentiary term upon Colin Makpah, that he is a young man with little criminalantecedents and that he has never, except for his remand time at Baffin Correctional Center [BCC], served any period of jail, let alonetime in a federal system.

Accordingly, I must be guided to some extent by the common law principle of restraint. [150] In addition, even though the remedial provisions of Criminal Code

section 718.2(

e) is not strictly speaking triggered in this case, Iam required, nonetheless, in considering the personal circumstances of Colin Makpah to embrace the spirit of that legislative provisionand enactment as it has been enunciated by our Supreme Court [of Canada]. [151] Now I have noted earlier that the prospects for Colin Makpah’s rehabilitation are good and I have said in previous cases that whilethe sentencing objectives of denouncing crime and deterring others from committing crimes on the one hand, and the sentencingobjective of rehabilitation of the offender on the other, seem at odds with each other, but at the end of the day they both have the same

goal or aim and that is to promote a sentence in the individual case which best itself promotes or ensures a safe Nunavut. IV. SENTENCE [ 152 ] I will now impose sentence. Mr. Makpah, will you stand, please. On the charge of manslaughter for causing the death of D.J. Gamble on the 14th of August, 2010, contrary to

section 236 of the Criminal Code , the sentence of this court is a term of imprisonment for four years to be served in a federal penitentiary. [ 153 ] On the charge of breach of probation for consuming alcohol in violation of the probation order made by the Justice of the Peace, Steve Fredlund, contrary to

section 733.1 of the Criminal Code , the sentence of the court is a term of four months imprisonment, to be served consecutive or in addition to the sentence imposed for manslaughter. The total sentence is four years and four months. [ 154 ] Respecting credit for remand, your actual remand time served is seven and one half months. Your remand credit calculated at a ratio of 1.5 to 1 equals a remand credit which I have rounded to eleven months. Therefore, your actual remand credit is eleven months.

This eleven months will be deducted from your overall sentence as follows. [ 155 ] The four year sentence for manslaughter expressed in months is forty-eight months. The consecutive four month sentence for breach of probation brings you to fifty-two months. The eleven month remand credit deducted from the fifty-two months leaves you with a net sentence of forty-one months which you will serve starting today. [ 156 ] So starting today the sentence you will serve is forty-one months or expressed otherwise, three years and five months.

I will endorse the warrant of committal accordingly. [ 157 ] Do you understand the sentence, sir? [ 158 ] THE ACCUSED: Yes. [ 159 ] THE COURT: All right. You can be seated. The sheriff will take care of you. [ 160 ] MS KERT: Your Honour, if I may. If Your Honour is willing to endorse, as a suggestion or recommendation, that Mr. Makpah serve his sentence, what we used to call Fenbrook and is now Beaver Creek, I would appreciate it. I am going to try to have him classified. [ 161 ] THE COURT: I will ask them to give that consideration. [ 162 ] MS KERT: Thank you very much. [ 163 ] THE COURT: Crown?

Nothing further? [ 164 ] MR. McLAREN: I always have something further, Your Honour, and I apologize a bit. You mentioned ancillary orders and I’m not sure whether Mr. Alibhai brought this up. [ 165 ] Despite the fact that this is a sentencing for manslaughter, it does in fact carry a mandatory victim fine surcharge.

[ 166 ] THE COURT: No, it wasn’t in place at the time. [ 167 ] MR. McLAREN: So it was discussed on the record? [ 168 ] THE COURT: Yes. [ 169 ] MR. McLAREN: I apologize for that then. Dated at the City of Iqaluit this 9th day of September, 2015 ___________________ Justice N. Sharkey Nunavut Court of Justice