R. v. Kappi, 2016 NUCJ 28

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kappi, 2016 NUCJ 28 Date: 20160916 Docket: 18-15-132 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused Pablo Kappi ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): Benjamin Flight Counsel (Accused): David Berg Location Heard: Rankin Inlet, Nunavut Date Heard: September 12 & 16, 2016 Matters: Criminal Code of Canada , RSC 1985, c C-46, s 236; Manslaughter REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Pablo Kappi has plead guilty to manslaughter in relation to the death of Joseph Patturk. He is before the court to be sentenced. II. FACTS [ 2 ] Joseph Patturk and Pablo Kappi had known each other for years. They grew up together in Rankin Inlet, they were “rough drinking buddies”, and their families all know each other. [ 3 ] On the evening of July 30, 2015, Joseph and Pablo were socializing together, along with some other people, at the home of Pablo. [ 4 ] At some point, a disagreement arose between Pablo and Joseph which led to Pablo pushing Joseph to the ground.

This disagreement ended and people continued socializing. [ 5 ] Sometime later, at approximately 6:00 in the morning, there were four people remaining in house: Pablo, Joseph, AB, and a woman, PN. [ 6 ] A dispute arose which seemed to relate to how Pablo was behaving towards the woman, PN. It is clear, however, that Pablo was not in any way being disrespectful or inappropriate towards the woman. [ 7 ] AB punched Pablo in the face. Both Joseph and AB were close to Pablo and were challenging him. Pablo told people to leave. AB punched Pablo again.

Pablo recalls also being struck by Joseph. [ 8 ] After being hit Pablo backed away into the kitchen, but Joseph and AB followed him. Their manner was threatening. There was a pushing match during which Pablo believes he was struck again. [ 9 ] In the course of this, Pablo opened a drawer and grabbed a kitchen knife and raised it. He stabbed Joseph in the side of the neck. Joseph also received a wound to his right hand. Pablo dropped the knife in the kitchen. [ 10 ] Joseph fled the house and collapsed on the street.

AB and PN ran to the home of the Royal Canadian Mounted Police [RCMP] officer to get help. [ 11 ] When the RCMP arrived, Pablo and AB were trying to assist Joseph, but their assistance was ineffective due to their high level of intoxication. [ 12 ] Joseph was pronounced dead at the health centre. The stab wound to his neck had cut through his jugular vein, bisecting the vein and causing him to bleed to death.

III. POSITIONS ON SENTENCE [ 13 ] The Crown is seeking a sentence of 5-6 years. [ 14 ] The Defence is seeking a sentence of 2-3 years. [ 15 ] Counsel agree that Mr. Kappi is entitled to credit for the time he has spent in pre-trial custody at an enhanced rate of 1:1.5. IV. ANALYSIS A. Submissions (i). Victim impact statements [ 16 ] The court heard from Joseph’s father and from two of his cousins. [ 17 ] The father spoke of the numb feeling that the family members still feel.

He spoke of how the loss of his son has affected not only the immediate family, but the large extended family and the community as a whole. [ 18 ] Joseph’s cousins spoke of the anger, the sadness, and the emptiness they feel from losing their cousin. Joseph was described as someone who always put others first. His cousin, Eugene, spoke about how he had wanted Joseph to stand with him at his wedding and how Eugene’s young son still asks when Joseph is coming back. [ 19 ] The sentence that I will impose today will not bring Joseph back. It will not make those deep feelings of loss go away.

A young life has been taken and nothing this Court can do will make that right. The sentence imposed is not a reflection of the value of the life that has been lost. [ 20 ] I know it will be very difficult for Joseph’s family to see Pablo about the community when he is released from jail. Pablo must recognize this and must honour Joseph’s memory by living a good life and doing what he can to help others. [ 21 ] Jeremiah talked about how he prayed for healing for both of the families. I hope that, given time, such healing will come about. (ii). Personal circumstances [ 22 ] Pablo Kappi is 26 years old.

He was adopted at birth and was raised in Rankin Inlet. He lived with both parents until he was about 10 years old, when his parents separated and his father moved out of the home. His father maintained contact and support for the family and, in fact, to this day Pablo and his mother continue to live in a house owned by his father. [ 23 ] Although his parents were not together, Pablo was well loved and cared for in the family. His life outside of the family was not as good. From a young age he was bullied and, at a very young age, he started to skip school and would hide in a shack to avoid being bullied.

[ 24 ] As he grew older he got into drinking and drugs and he started to bully other children. He eventually left school in grade 10. [ 25 ] He has had some employment handling cargo for a local airline and as a first responder with fire and ambulance. [ 26 ] Pablo does not have strong connections to the land or to traditional pursuits such as hunting or fishing. [ 27 ] The Pre-sentence Report describes a young man who is not happy with himself and who he is. His self-esteem has been low for many years.

This is likely linked to his abuse of substances. [ 28 ] The Pre-sentence Report indicates a high level of remorse for the offence. This was also clear in the statement that Pablo made during the court proceeding, where he spoke directly to the victim’s family. [ 29 ] Pablo has a criminal record which consists of a conviction in 2008, for assaulting a police officer and two convictions in 2015, one for assault with a weapon and one for mischief. Alcohol was involved in the 2015 convictions. [ 30 ] Pablo has been a model inmate while in custody over the last year.

He is going to school, working, and taking programming. His prospects for rehabilitation are good. (iii). Gladue [1] Factors [ 31 ] I must consider Pablo’s circumstances as an Aboriginal offender. As stated by this court in R v Eegeesiak {unreported decision}: The systemic factors that influence criminality in Nunavut are well known and well documented.

Residential schools and their inter- generational impact; over crowded, sub-standard housing; poverty; low levels of education and employment; high rates of alcohol and substance abuse; high rates of domestic violence and sexual abuse; high rates of suicide; all contribute to a crime rate and incarceration rate significantly higher than the national average (para 20). [ 32 ] Although the impact of these systemic factors may not have directly impacted Pablo’s family home during childhood, he is part of a wider community and population within which all members are impacted. B.

Sentencing [ 33 ] The Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code], provides for a wide range of available sentences for manslaughter convictions, from probation to life imprisonment. This wide range of sentencing options reflects the variety of circumstances, from near accident to near murde r , that fall within the definition of manslaughte r . [ 34 ] The principles of sentencing are set out in s. 718 of the Criminal Code .

It states: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary;

(

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [35] The sentence that is imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [36] I must also consider the sentencing principle of parity, which requires that similarly situated offenders should receive similarsentences for similar offences. In this regard a review of the case law is helpful. [37] Counsel have provided a number of cases, which I have reviewed.

I will discuss only a few of them. [38] In R v Korgak, 2013 NUCA 9 , 2013 NUCA 09, [2013] Nu J No 27, the Nunavut Court of Appeal upheld a sentence of 3years for manslaughter where the offender ran over the deceased with an ATV following a verbal argument. [39] In R v Makpah, 2015 NUCJ 34, [2015] Nu J No 31 (QL) [Makpah], the offender was charged with manslaughter and was foundguilty of manslaughter following a trial. The offender was not the aggressor and was acting in self defence, however, his response wasexcessive.

He introduced a knife into a physical dispute, which was found to be an aggravating factor. [40] Further, there were multiple stab wounds and the offender did little to get help to the deceased after the incident. A sentence offour years was imposed. [41] In the most recent case of R v Padluq, 2016 NUCJ 22, [2016] Nu J No 25 [Padluq], the offender plead guilty to manslaughter. Theoffender was the aggressor throughout. He took a kitchen knife and stabbed the victim in the heart and then left the house. The victimleft the house and caught up to the offender.

The offender pushed the victim to the ground and made stabbing motions towards him. Theoffender did nothing to assist the victim and left him lying in the street, with the knife next to him. A sentence of 6 years was imposed. [42] Sentencing is a difficult balancing of many factors. It is a highly individualized process, as no two offences and no two offendersare the same. [43] It is clear that denunciation and deterrence are sentencing principles that must be given consideration in this matter. (i).

Aggravating factors [44] The Crown submits that it is aggravating that Pablo’s reaction to the situation was disproportionate to the threat he was facing.That is true. However, that disproportionate reaction is part of the basis for the conviction. If the force used had been proportionate to thethreat then arguably there could be no conviction. The extent to which the use of excessive force will be an aggravating feature willdepend on the circumstances.

A reaction which is minimally excessive such that a defence is not available will not be as aggravating as areaction which is manifestly and significantly excessive. [45] It is aggravating that Pablo introduced a knife into what was essentially a shoving match. The introduction of a weapon into aphysical altercation immediately increases the risk that there will be serious bodily harm or death. [46] Pablo’s criminal record is aggravating. It includes prior offences of violence, of which at least one occurred while he wasintoxicated. He was on notice that when he is drunk he is capable of violence.

[ 47 ] It is aggravating that he was on probation at the time of this incident. (ii). Mitigating factors [ 48 ] There are a number of mitigating factors in this matter. [ 49 ] With respect to the circumstances themselves, Pablo was not the aggressor. The victim and AB were both being aggressive towards Pablo. Pablo backed off from the altercation and they followed him. It was in this context that the knife was picked up. [ 50 ] There were two stab wounds to the victim, one to the hand and one to the neck, leading one to conclude that there were two stabbing motions by the offender.

However, the circumstances of this case differ from those in Makpah , where there were multiple, serious stab wounds. [ 51 ] The picking up and use of the knife was more spontaneous and reactive than thought out and planned. [ 52 ] Pablo immediately tried to assist Joseph. His remorse was immediate. [ 53 ] There has been a guilty plea. A guilty plea is a mitigating factor because it is an indication of remorse. It saves the family and the witnesses from the stress and uncertainty of a trial.

It saves the state the time and expense associated with a major trial. [ 54 ] The court in this jurisdiction has consistently stated that a guilty plea will have real meaning which will be reflected in a reduced sentence. V. CONCLUSION [ 55 ] I must put this matter in the context of the recent cases of Makpah and Padluq . When I consider the circumstances of the particular offences and the offenders, I conclude that the offender in this matter must receive a lesser sentence than either of those offenders.

The circumstances of this offence are less egregious and the guilty plea is a significant mitigating factor. [ 56 ] The sentence is 3 years in custody. A. Credit for pre-sentence custody [ 57 ] Pablo has been in custody since his arrest on July 30th, a period of 415 days.

Counsel agree that he is entitled to credit at the rate of 1:1.5, for pre-sentence custody of 622 days. [ 58 ] The sentence of 3 years is 1,095 days, less 622 days credit for pre-sentence custody, leaving time remaining to be served of 473 days. [ 59 ] Since the balance of the sentence remaining to be served is 2 years or less, I have the ability to impose a period of probation. That period of probation shall be 3 years. [ 60 ] While on probation, Pablo will have to obey the following statutory required terms:

• report to the probation office within 5 days of release and thereafter as directed; • take such counselling as directed by the probation officer; • seek and maintain employment; • to have no contact with those persons listed in an appendix to be attached to the probation order. B. Ancillary orders [ 61 ] There shall be a DNA order as this is a primary designated offence. [ 62 ] There will be a 10 year firearm prohibition under Criminal Code

section 109. Dated at the City of Iqaluit this 16th day of September, 2016 ___________________ Justice S. Cooper Nunavut Court of Justice