R. v. VanEindhoven, 2016 NUCJ 19

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. VanEindhoven, 2016 NUCJ 19 Date: 20160715 Docket: 18-04-57 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused Adrian VanEindhoven ________________________________________________________________________ Before: The Honourable Mr. Justice Herold Counsel (Crown): C. Lirette Counsel (Accused): R. Nuttall; D.

Santoro Location Heard: Iqaluit, Nunavut Date Heard: July 15, 2016 Matters: Criminal Code of Canada, RSC 1985, c C-46, s. 235(1); s. 236 REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) Written Supplementary Reasons for Decision were released on July 28, 2016; the supplementary reasons can be found at the end of this

decision Table of Contents REASONS FOR JUDGMENT (Delivered Orally) 1 I. INTRODUCTION .. 3 II. BACKGROUND .. 3 III. SENTENCE .. 4 IV. CONCLUSION .. 7 SUPPLEMENTARY REASONS FOR DECISION .. 8 I. INTRODUCTION [ 1 ] The Court: Please be seated. Thank you. First of all, before I forget, Madame Registrar, I'm going to -- as I indicated earlier -- I'm going to be doing some amplified reasons [appended to this judgment], so I will be taking with me the Agreed Statement of Facts on sentencing [ Exhibit 1], and the Book of Authorities .

I will return to you the Victim Impact Statement [ Exhibit 3] , and I will return to you Exhibit 2 , the photographs. I have seen them. I don't need to see them any longer, and I'm going to ask that it now be sealed as Exhibit 2. I'll pass those both down to you. Thank you. [ 2 ] And I think the next order of business was to have the Minister's letter. Madame Registrar has that. So that will be -- and do we have the photocopies of it? I'll certify those so we can have true copies of them. I can do that afterwards. Each of you has a copy? [ 3 ] Ms. Lirette: Yes.

We can get a copy of the one that you certify, sir, at a later date. [ 4 ] The Court: Okay. All right. Actually, if you would pass them out now, I'll make them true copies now and I'll get them back to you. Madame Registrar will get those back to you shortly. Here's the original then. I've just approved that. All right, yes, then please remain seated. II. BACKGROUND [ 5 ] The Court: This case has a very convoluted history. On April 23, 2004, Adrian VanEindhoven killed his romantic partner, Leanne Irkootee, in the prime of her life.

He was charged with and convicted of second degree murder in 2006, and again in 2013. He was sentenced to life with no chance of parole for 12, and then 13 years. Each of those convictions was overturned by the Nunavut Court of Appeal and he is back before the court for a third trial. [ 6 ] Crown Counsel, Ms. Lirette, and Defence Counsel, Messrs. Nuttall and Santoro have, with the assistance I have no doubt of one or more judges of this court, arrived at what is in my respectful view a very appropriate disposition. [ 7 ] Today, Mr.

VanEindhoven plead guilty to the lesser included offence of manslaughter and, based on the plea and the admitted facts (see Exhibits 1 and 2), he was convicted of manslaughter.

[ 8 ] Mr. VanEindhoven has now been in custody since April 2004, 4,464 days. Counsel and I are all in agreement that enhanced credit of 1.5 is appropriate with an adjusted result of 18 years and four months. I intend to give some brief expanded reasons in the near future, but for now it is sufficient to say that the range of sentence for this particular crime, homicide involving a domestic partner is approximately 12 to 15 years. Mr. VanEindhoven has now served the equivalent of that and more. [ 9 ] The Crown seeks, and the Defence endorses the request, a probation order of 18 months. Although unusual, I'm satisfied that Criminal Code of Canada , RSC 1985, c C-46 [Criminal Code]

section 731 permits such an order in the particular circumstances of this case (See the judgement of the Supreme Court of Canada in R v Knott, 2012 SCC 42 , [2012] 2 SCR 470 ). [ 10 ] I will, in due course, in the expanded reasons refer to the sentencing principles which apply to this case, but for now simply note that rehabilitation is the one which cries out for a probation order to keep track of one who has been in custody for over 12 years and will not be on parole. III. SENTENCE [ 11 ] The terms of probation are as follows. Mr.

VanEindhoven, although your counsel have agreed to these terms, you are the one that's going to be signing the order, so I'm going to ask you to listen carefully and confirm that you are personally content with them. [ 12 ] The accused : Yes, sir. [ 13 ] The Court: So the probation order indicates that you were charged with the second degree murder of Leeanne Irkootee, but that you have now plead guilty and were convicted of

section 236 of the Criminal Code , and the sentence is jail. Jail in this case being time served. [ 14 ] The terms of your probation are that: a. it be for a period of 18 months starting from today; b. You must keep the peace and be of good behaviour; c. You must appear before the court when required to do so; d. You must promptly notify the court or a probation officer of any change of employment or occupation; e. You must notify the court or your probation officer in advance of any change of name or address; f.

You must report to a probation officer in Winnipeg within 48 hours from your arrival and when required by the probation officer and thereafter when required by the probation officer as directed by the probation officer; g. You must attend counselling as directed by your probation officer such as healthy relationships counselling, anger management counselling, substance abuse counselling; h. You must abstain absolutely from the possession or consumption of any intoxicating substances, including alcohol, unless a physician lawfully prescribes the substance. i.

You must have no direct or indirect contact with all the family members of Leanne Irkootee, namely Elena Amarok and Moses Irkootee. [ 15 ] Are you content to sign a probation order to that effect? [ 16 ] The accused : Yes, I am. [ 17 ] The Court : All right, you will be doing so. Supervision of this probation order shall be transferred to Winnipeg, Manitoba (see Exhibit 4). The main reason for this is to put Mr. VanEindhoven as far away as possible from the victim's family in Rankin Inlet, and

close to his supportive family in Winnipeg. [ 18 ] It is so important in this case that I take the unusual step of ordering that Mr. VanEindhoven be forthwith transferred at the expense of the Nunavut Government to Winnipeg through either Rankin Inlet or Ottawa. I may seek counsel's input on this. I may actually endorse that right on the warrant of committal. Is that something worth trying at least? [ 19 ] Ms. Lirette : It's a first for me, sir. [ 20 ] The Court : We're all in the same boat, I think. [ 21 ] Mr. Santoro : Did Your Honour mean Winnipeg or Ottawa? [ 22 ] The Court : Sorry, what did I say? [ 23 ] Mr.

Santoro : Rankin or Ottawa. [ 24 ] The Court : Yes. Sorry, to Winnipeg through either Rankin Inlet or Ottawa, yes. I'll put that on the -- I'll do that shortly on the warrant of committal. [ 25 ] There will be a DNA primary order. There will be two Criminal Code

section 109 orders, one for ten years and one for life subject to an exception for subsistence hunting pursuant to

section 113 of the Criminal Code , and an order -- and I understand this is in the Criminal Code s.109 order now, requiring the surrender of weapons. The Forfeiture Order has been signed by me. [ 26 ] It is trite to say that no sentence can ever do anything to undue the harm that's already been done to Leeanne Irkootee and her family, but the one jointly proposed is otherwise a fair and reasonable disposition and I therefore endorse it. [ 27 ] And I've also ordered the sealing of Exhibit 2 . And is there anything I've omitted in those very brief point form comments? Anything else, Ms.

Lirette, that you think I should add to the brief reasons at this stage? [ 28 ] Mr. Nuttall: Not that I can think of. [ 29 ] Ms. Lirette: Nothing, sir. [ 30 ] The Court: Have a seat for just one second. The warrant of committal and conviction actually has a spot on the bottom, 'Recommendations'. It's a milder word than I would have used, but I have added that it is ordered that Adrian VanEindhoven shall be forthwith transferred at the expense of the Nunavut Government to Winnipeg through either Ottawa or Rankin Inlet. So I've signed that. [ 31 ] The Prohibition Order under Criminal Code s. 109 (2)(

a) for ten years I will now sign. The Prohibition Order under Criminal Code s. 109(2)(

b) for life, I'll sign that. The DNA order I have signed, and the Probation Order I have signed. Now I'm obviously going to be here as long as it takes to get everything done so that this matter is finally put to rest. IV. CONCLUSION [ 32 ] Thank you so much. Thank you all of you for your hard work and a very, very appropriate result.

[33] Mr. Nuttall: Thank you, sir. [34] Ms. Lirette: Do we need a return date, or is it your intention to render a written decision? [35] The Court: Oh, no, I'm just going to render a written decision. I'll ask you to provide an e-mail address for each of you to MadameRegistrar and she will pass it on to me. [36] Mr. Nuttall: Thank you. [37] The Court: No, it will not be given in open Court. Thank you. Thank you all. Thank you again very much. Dated at the City of Iqaluit this 15th day of July, 2016 ___________________ Justice C.

Herold Nunavut Court of Justice SUPPLEMENTARY REASONS FOR DECISION [1] Sometime between 10:00 p.m. April 22, 2004, and 7:30 a.m. April 23, 2004, Adrian VanEindhoven killed his romantic partnerLeanne Irkootee. Ms. Irkootee was 22 years of age and in the prime of her life when she was killed. [2] Adrian VanEindhoven was charged with second degree murder. He was tried by a jury of his peers in Rankin Inlet in 2006, andsentenced by Justice Robert Kilpatrick on January 11, 2007, to a life sentence with no chance of parole for 12 years.

Justice Kilpatrick’sreasons for sentence are found at R v VanEindhoven, 2007 NUCJ 2 , 2007 NUCJ 02, [2007] Nu J No2, and nothing will begained by repeating the poignant comments in those reasons here. In 2012, the second degree murder conviction was overturned by theNunavut Court of Appeal and the matter was returned for trial (See R v VanEindhoven, 2012 NUCA 5 , 2012 NUCA 05, [2012]Nu J 15). [3] At his new trial in 2013, Mr.

VanEindhoven was again convicted by a jury of his peers of second degree murder, and onDecember 9, 2013, he was sentenced by Justice Earl Johnson, to life imprisonment with no eligibility for parole for 13 years. Onceagain, in 2016, this second conviction for second degree murder was overturned by the Nunavut Court of Appeal (See R vVanEindhoven, 2016 NUCA 3 , 2016 NUCA 03, [2016] Nu J 16). Again the reasons for sentence are both comprehensive andpoignant and again nothing further will be gained by repeating them here.

[4] The matter came back before the Nunavut Court of Justice for a third jury trial on the charge of second degree murder. CrownCounsel, Ms. Lirette, and Defence Counsel, Messrs Nuttall and Santoro, worked diligently to prepare an Agreed Statement of Facts and,in the course of doing so, in considering the reasons of Justice Kilpatrick and Justice Johnson, and considering the comments of theNunavut Court of Appeal, in each case thereafter, they all concluded that a conviction for manslaughter rather than second degree murderwas both inevitable and appropriate. [5] On Friday, July 15, 2016, Mr.

VanEindhoven, along with all counsel appeared before me in Iqaluit at which time he plead notguilty to the charge of second degree murder, but guilty to the lesser and included offence of manslaughter. [6] After hearing the submissions of both Crown and Defence, and reading the Agreed Statement of Facts, which had appended to itthe Autopsy Report, the Nunavut Coroner’s Autopsy

Summary, Forensic Laboratory Reports, and a Major Incident Exhibit Flow Chart, Iwas prepared to and did accept the guilty plea to the charge of manslaughter with the consent of all counsel. [7] Mr. VanEindhoven has been in custody since April 2004, a period in excess of 12 years. Counsel were in agreement that enhancedcredit at the rate of 1.5:1, would be appropriate. As a result of that mathematical calculation, Mr.

VanEindhoven was deemed to haveserved the equivalent of 18.5 years in custody pending this sentence. [8] Counsel reviewed carefully the authorities dealing with similar cases and agreed that an appropriate sentence in this particular casewould be 15 years in penitentiary.

In this connection, see: • R v Geetah, 2015 NUCJ 10, [2015] Nu J No 9 • R v Peter, 2014 NUCJ 28, [2014] Nu J No 26 • R v Kayaitok, 2013 NUCJ 16, [2013] Nu J No 21 • R v Kinak 2011, court file # 14-08-41 {unpublished decision} • R v Anablak, 2008 NUCJ 9 , 2008 NUCJ 09, [2008] Nu J No 8 • R v Ammaklak, 2008 NUCJ 27, [2008] Nu J No 27 [9] This case was alcohol fuelled and it involved people who were in a domestic relationship of a very volatile nature. Sadly andtragically, this is not unusual in the Nunavut territory.

The Nunavut Court of Justice has taken great pains to strongly denounce all formsof violence between domestic partners with particularly harsh sentences. It was in the context of this that counsel agreed that, but for thetime already served in custody, Mr.

VanEindhoven should receive a sentence in the range of 15 years in custody. [10] Because of the prevalence of crimes of this sort in the Territory, I agree that a sentence which might otherwise appear to others tobe on the high side of the range for manslaughter, which would satisfactorily denounce similar crimes and hopefully deter others fromdoing the same, was both necessary and appropriate. [11] I gave some brief reasons for imposing the sentence I did in court on July 15, 2016, and those reasons have now been transcribedand should be read together with these reasons [see above].

At that time, I explained why I agreed with Counsel for the Defence, notopposed by Counsel for the Crown, that because Mr. VanEindhoven was sentenced to time served, s. 731 of the Criminal Codepermitted a period of probation in addition, notwithstanding the fact that the effective sentence was at least 15 years. [12] For reasons also expressed, I ordered that the supervision of probation should be transferred to Winnipeg, Manitoba and also thatMr.

VanEindhoven himself should be transported at the expense of the Nunavut Government to Winnipeg, where he would be as far aspossible away from the victim’s surviving family in Rankin Inlet and as close as possible to his own supportive family in Winnipeg. It issufficient at this time to say that, in addition to denunciation and general deterrence, the rehabilitation of Mr. VanEindhoven was a verysignificant factor justifying, in my respectful view, this particular approach. Mr.

VanEindhoven went into custody in his early 30’s and isleaving custody more than 12 years later without the usual benefit of a period of parole to assist him in reintegrating into society. It ishoped and expected that the probation order will perform a similar role. [13] These then are my brief supplementary reasons for making the orders which I did and which are reflected in the transcript of my

reasons of July 15, 2016. Dated at the City of Iqaluit this 28th day of July, 2016 ___________________ Justice C. Herold Nunavut Court of Justice