R. v. Sewoee, 2014 NUCJ 26

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Sewoee, 2014 NUCJ 26 Date of Judgment: 20140915 File Number: 14-13-113; 14-13-114 Registry: Iqaluit Appellant: Her Majesty the Queen -and- Respondent: Kevin Sewoee ________________________________________________________________________ Before The Honourable Mr. Justice E.

Johnson Counsel (Appellant): Sebastien Lafrance Counsel (Respondent): Kathryn Kellough Location Heard: Iqaluit, Nunavut Date Heard: August 29, 2014 Matters: Criminal Code, s. 812 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] The Crown filed an appeal from the sentence imposed by Justice of the Peace Gordon Main (JP Main) on January 30, 2014, with a style of cause in the Nunavut Court of Appeal. As set out in section 812 (1) of the Criminal Code (Code), this Court is the appeal court

for an appeal from the judgment of a Justice of the Peace, while an appeal from a judgment of a judge of this court on a

summaryconviction is to a single judge of the Nunavut Court of Appeal. I have changed the style of cause accordingly. [2] The Respondent was sentenced to a period of probation and the Crown asks this Court to overturn the sentence and impose a jailsentence. [3] The Respondent argues that the sentence imposed by JP Main was not demonstrably unfit and the appeal should be denied. II. GROUNDS OF APPEAL [4] The Crown argues that JP Main either ignored or gave insufficient weight to the Respondent’s criminal record and imposed asentence that was clearly unreasonable for this offender and these offences.

The Crown also asserts that the JP also failed to givesufficient emphasis to the objectives of denunciation and deterrence. III. FACTS [5] The facts are not in dispute. On December 3, 2013, Constable Erickson (Erickson) of the RCMP was off duty and went to the arenain Arviat to play hockey. While he was in the dressing room, putting on his hockey equipment, the Respondent entered the room andbegan yelling. The Respondent admitted having consumed alcohol in a dry community and challenged Erickson to a fight on the ice.Erickson declined and asked him to leave.

The Respondent became angrier and more belligerent and said Erickson was “white trash”. Hebegan telling other players that it was time for payback against the RCMP. He repeated himself three or four times and flexed hismuscles before Erickson arrested him and escorted him out of the arena. [6] On the way to the detachment, the Respondent threatened to kill Erickson as well as his wife and child. He said that he had a rifle,cited the calibre and type of cartridge it used, and said he would use it to shoot Erickson.

He also cited his hatred for “white cops” as thereason he wanted to kill him. [7] At the detachment, the Respondent continued to threaten to kill Erickson as well as other officers in the detachment while he spitand swore at them. [8] The Respondent was released on an undertaking and prohibited from consuming alcohol. On December 8, 2013, the policeresponded to a call that the Respondent was creating a disturbance at a residence.

When the police arrived at the residence they notedthat the Respondent was intoxicated and arrested him for breaching his undertaking. [9] The accused was so intoxicated on December 3, 2013, that he had no memory of the incident on December 3 and accepted theofficer’s recollection of events when he entered his plea at his first appearance before JP Main. IV. ARGUMENT A.

Appellant [10] Relying on R v M (CA), (SCC), [1996] 1 SCR 500, 105 CCC (3d) 327 [MCA], the Crown acknowledges that anappeal court should show deference to the trial judge and only interfere if the justice has erred in principle and failed to considerevidence, misapprehended a material fact, or imposed a sentence that is demonstrably unfit.

[11] While a sentencing judge need not explicitly mention every single factor he or she considers, JP Main’s sentencing reasons failed tomention anything about the accused’s lengthy record. Between 2001 and 2010, these include 7 assault convictions, 1 conviction foruttering threats, and 1 for assault with a weapon. In addition he has 10 convictions for breaching court orders. If JP Main took theaccused’s criminal record into account, he accorded it little weight despite its significantly aggravating nature.

As held in R v Teemotee,2011 NUCJ 17, [2011] Nu J No 18 [Teemotee], a Justice of the Peace must provide sufficient reasons to explain a bail decision. [12] While on occasion a criminal record will only be minimally aggravating, in this case it was lengthy and directly on point.

As set outat paras 12 and 13 of R v Wright, 2010 MBCA 80, 261 CCC (3d) 333, and at para 16 of R v Leblanc, 2011 NBCA 28, 370 NBR (2d)385, sentencing principles call on the judge to impose a sentence that, while still in the appropriate range, is greater than the sentencespreviously imposed for similar offences committed by the same accused in the past. However, instead of imposing a longer jail sentence,JP Main sentenced the Respondent to the least harsh sentence he ever received for an offence of violence.

JP Main did not order him tospend any time in custody despite the fact that his last conviction for making a threat attracted a sentence of three months in jail. TheRespondent’s sentence was equivalent to the sentence he received for his very first breach as an adult despite six further convictions forbreaches.

While a judge can depart from these rules and, as noted at para 42 of R v Bratzer, 2001 NSCA 166, 160 CCC (3d) 272[Bratzer], “take a chance” on the offender, the judge must point to some factor present in the case to justify his or her belief other than amere hope. [13] The fundamental purposes of sentencing set out in s. 718 of the Code include rehabilitation, denouncing unlawful conduct,deterring offenders and others from committing offences, and separating offenders from society.

By suspending the sentence for a violentrepeat offender who has threatened to kill a police officer and his family as well as then breaching a court order, JP Main only addressedrehabilitation and did not consider the other applicable sentencing principles. The Respondent’s ten previous convictions for failing tocomply with court orders suggest that a new probation order will also not be an effective rehabilitative tool.

As set out at paras 277-278of R v Arcand, 2010 ABCA 363, 264 CCC (3d) 134 [Arcand], a sentencing judge must give sufficient consideration to deterrence whenthe crime so warrants and provide reasons if not imposing a deterrent sentence. [14] As set out at paras 81 and 82 of R v McCraw, (SCC), [1991] 3 SCR 72, 66 CCC (3d) 517, the purpose of s. 264.1of the Code is to protect persons from fear and intimidation.

This laudable and important goal is undermined when residents of thecommunity see repeat offenders walk out of court with minimal sanctions for uttering threats and breaching court orders. [15] Police officers in Nunavut perform an important societal function and must feel free to do their jobs without fear of violence fromthe people they serve.

Section 718.02 of the Code mandates that denunciation and deterrence are the primary considerations whensentencing offenders for assaults against police officers and intimidation of justice system participants. Although threats against policeofficers are not specifically enumerated as offences covered by the section, similar principles should apply in Nunavut where gunviolence is at alarmingly high levels and the threat is credible. [16] There are circumstances where probation is an appropriate response to a threat conviction and a suspended sentence to a breachconviction.

However, this case is one where such a sentence is not appropriate because it would not be proportional to the gravity ofthese particular offences or the moral blameworthiness of this particular offender. B. Respondent [17] The Respondent argues that the sentence imposed by JP Main was not demonstrably unfit or unreasonable. JP Main neither ignorednor failed to give sufficient weight to the Respondent’s criminal record.

Elements of the sentence address the objectives of denunciationand deterrence while simultaneously taking into account the rehabilitative prospects of the aboriginal Respondent resulting from a gap inhis offending. JP Main was entitled to give more emphasis to the principle of rehabilitation over denunciation and deterrence despite theRespondent’s lengthy record because there are numerous mitigating factors favoring the emphasis on rehabilitation. These are asfollows: (

a) The Respondent’s work history; (

b) The Respondent’s recognition of his alcohol problem and his sobriety two months from the date of the offence to the date ofsentencing;

(

c) The Respondent’s sharing of joint custody for his four-year old son; (

d) The Respondent’s pursuit of traditional hunting activities; (

e) The Respondent’s expression of remorse through his apology letter and his comments in court; (

f) The Respondent’s decreasing involvement with the court system including a gap of in offending of 3.5 years and the fact that thebulk of the record was before 2007. [18] As held at para 90 of MCA and at para 38 of R v Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433, 99 WCB (2d) 91 [Ipeelee], JPMain had the discretion to impose a rehabilitative sentence. [19] JP Main considered jail but exercised his discretion and imposed a suspended sentence and probation. [20] The Respondent submits that JP Main was fully aware of the Respondent’s criminal record because the Crown counsel spent themajority of her time at the sentencing talking about it. [21] As noted at para 18 of R v Docherty, 2010 ONSC 3603, 2010 CarswellOnt 4440, and at para 2 of R v Hayden (1988), (SK CA), 68 Sask R 240, 1988 CarswellSask 191, a gap in an offender’s criminal record is something that should be givensufficient weight when considering the objective of rehabilitation as it tends to suggest renewed promise for rehabilitative prospects.

Inconsidering a significant gap the sentencing judge may discount the previous record to varying degrees. [22] The Respondent argues that, while the JP Main’s reasons were brief, they are sufficient to permit appellate review. As noted in R vA (L), 2005 NUCJ 27, 68 WCB (2d) 71 [AL], the content of the reasons of a justice of the peace should be set at a lower level than forlegally trained provincial court judges who conduct bail applications in other jurisdictions. [23] The Respondent argues that the offence was impulsive and showed a loss of judgment and deliberation.

The Respondent argues thatit was far from being premeditated. He relies on R v Simcoe, (ON CA), [2002] OJ No 884 at para 25 (1), 159 OAC190, to argue that his consumption of alcohol results in an overall reduction in his moral culpability for the offence, such that theresultant sentence is proportionate to the gravity of the offence. [24] The Respondent notes that the offender was in police custody when the threat was made. While the offence is serious in nature, thedangerousness of the offender was deemed by the police to be minimal because he was released once he was sober.

The police musttherefore have regarded the accused as no longer being a threat to the officer or his family. [25]

Section 718.2(

d) and (

e) of the Code mandates that an offender should not be deprived of liberty if less restrictive sanctions otherthan imprisonment may be appropriate, particularly for aboriginal offenders. [26] The Respondent argues that it was permissible for JP Main to exercise leniency in the special circumstances of this case where hismoral culpability was diminished by his intoxication and there was an overall reduction in his pattern of offending.

As noted in R vEtuangat, 2009 NUCA 1, 2009 CarswellNun 9 [Etuangat], in some cases an individualized sentence may break the cycle of criminalconduct and imprisonment and a judge is permitted to take a chance on the accused because his reformation is the best protection ofsociety. [27] Both Ipeelee and R v Gladue (SCC), [1999] 1 SCR 688, 133 CCC (3d) 385 [Gladue], emphasize the importanceand suitability of using non-custodial sentences for aboriginal offenders who commit non-violent offences.

As noted in Etuangat, while adegree of violence is inherent to a threat, the circumstances of this offence would place it toward the lower end of the range. JP Mainconsidered the Respondent’s expressions of remorse and rehabilitation in deciding that a non-custodial disposition was appropriate inthese particular circumstances and he was in the best position do so. V. ANALYSIS

[ 28 ] As I held in Etuangat , the standard of review for a sentence appeal is as follows: Absent an error in principle, over emphasis of factors, or a failure to consider relevant factors, an appellate court should only interfere to vary a sentence when the sentence is demonstrably unfit or clearly unreasonable. [ 29 ] AL held that justices of the peace conducting bail hearings must provide some reasons for their decision in ordinary language. Teemotee held that there is a higher standard for a justice of the peace considering the tertiary ground.

Justices of the Peace must be held to the same standards for reasons in sentencing decisions. [ 30 ] In Etuangat , an experienced trial judge did not explain why he rejected a deterrent sentence in favour of a rehabilitative sentence of probation when the accused had four previous convictions for assaulting the complainant and nine convictions for breaching court orders. In that case, the accused argued that the trial judge implicitly considered and applied s. 718 (2) (

e) of the Code and Gladue. I rejected that argument because the weight of the authorities held that judges must provide reasons for sentences that are reasonably intelligible. The failure to provide any reasons or the use of conclusory reasons does not meet the standard. [ 31 ] In Arcand , the Alberta Court of Appeal held that a sentencing judge could not simply ignore the imposition of a deterrent sentence because the judge felt it would not do the offender any good.

The reasons should demonstrate that the judge considered a deterrent sentence and explain why it was not appropriate. [ 32 ] The Nova Scotia Court of Appeal made similar comments in Bratzer , noting that a judge must identify something in the sentencing facts to justify “taking a chance”. [ 33 ] As Mahar J. noted in R v Mikkigak, 2014 NUCJ 24 , 2014 CarswellNun 18 , the standard for regular judges should not be applied to Justices of the Peace in Nunavut who are not legally trained.

He was satisfied that the Justice of the Peace considered and applied the proper principles even if the reasoning was not articulated as clearly as would be expected from a regular judge. [ 34 ] I find myself in the same position as Mahar J. JP Main’s reasons were deficient but ascertainable from the transcript. The Crown emphasized the lengthy record of the Respondent noting that the last time he was in court, in June 2010, he was sentenced to 3 months in jail.

In admitting the facts alleged by the Crown, Defence counsel stated that the Respondent had no memory of the evening in question because of his excessive consumption of alcohol. Defence counsel then read into the record the Respondent’s apology to the police that concluded with the statement that he was scared by the charges and had been sober since he had been arrested.

Defence counsel then noted her concern about the lack of treatment available in Nunavut for alcohol addiction or any harm reduction strategy and the silence of the politicians on addiction issues in the last election. [ 35 ] In response to the invitation to say anything before the sentence was imposed, the Respondent stated: I would like to apologize to all the RCMP and Allan’s family. I am not drinking anymore because my mom told me to quit so I can be good and behave so I quit drinking.

That’s it. [ 36 ] JP Main expressed his condemnation of the racist threatening comments uttered by the Respondent when he was drunk. He noted that his actions were not in accordance with Arviat’s reputation as a friendly community and stated: The RCMP are here to help you. They are not to be threatened and their family is certainly not to be threatened. Okay? [ 37 ] When the Respondent answered in the affirmative, JP Main issued the following short sentencing reasons: Yes. Like I don’t know if sending you to jail - - I don’t know how much good it would do you.

So what I am going to do is I am going to to give you a suspended sentence, okay, right. And in that suspended sentence it is going to say no alcohol.

[ 38 ] I am satisfied that JP Main considered a jail term but rejected it in favour of a restorative sentence in accordance with Gladue and Ipeelee. He was clearly influenced by the apology, work record and early guilty pleas as well as the sobriety exhibited by the Respondent from the date of the offence to the sentencing on January 30, 2014.

Although his reasons were brief they can be understood by a member of the public in the context of the entire transcript of the sentencing. [ 39 ] The RCMP provide an important societal function and they should feel free to perform their work without fear of violence from members of the public. However, threats are in a different category from actual assaults and that is why they were not included in

section 718.02 . In this case, the police were dealing with an intoxicated person who was unarmed and had no capacity to carry out the threats. If they had felt threatened after the Respondent sobered up they would not have released him. [ 40 ] In appropriate circumstances a threat will warrant a jail sentence. In this case the Respondent had one prior conviction for a threat and assault with a weapon six years earlier. In addition he had numerous assaults. These convictions may have warranted the jail sentence requested by the Crown. However, they occurred when he was a youth and were dated.

JP Main considered and rejected jail and made no errors of law. The sentence was not manifestly unfit or unreasonable. [ 41 ] The appeal is dismissed. I strongly recommend that justices of the peace receive training on the legal requirements for reasons for their decisions. Dated at the City of Iqaluit this 15th day of September, 2014 ______________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice