2011 QCCQ 12729, 2011 QCCQ 12729

JB3810 R. c. Kumarluk USAGE NÉGLIGENT ET BRAQUAGE D’UNE ARME À FEU PAR UN AUTOCHTONE - SENTENCE 2011 QCCQ 12729 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI VILLAGE OF UMIUJAQ “Criminal division” N°: 640-01-014645-080 DATE: August 23, 2011 ______________________________________________________________________ BY THE HONOURABLE CLAUDE BIGUÉ, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v.

CHARLIE KUMARLUK Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ [ 1 ] The accused pleaded guilty to the following counts, for an event that took place on May 23, 2008 in Umiujaq, a small Inuit community of 400 people, located on the Hudson Bay coast: Count 1: Careless use of a firearm: s. 86 (1)(3)

a) Counts 2 and 6: Conveying a person to cause death or bodily harm to any person (2 events): s. 264.1 (1) a)

(2) a) Count 4: Pointing a firearm at another person (police victim): s. 87

(2) a) Count 5: Resisting a peace officer in the execution of his duty: s. 129

a) d) Count 7: Careless use of another firearm (second event): s. 86 (1)

(3) a) POSITION OF THE PARTIES: [ 2 ] The Crown Attorney proposes 3 years of imprisonment whereas the Defence Counsel suggests a conditional sentence of imprisonment for a period of 16 to 18 months. THE FACTS: [ 3 ] On May 23, 2008, shortly after midnight, the accused is intoxicated by alcohol. He has an argument with Alaku Inukpuk, near Mr. Inukpuk’s house. They even have a fight. At a certain point, the accused takes a gun. While the plaintiff runs away, he hears a gun shot. [ 4 ] As a matter of fact, the accused fires one shot with the firearm.

The bullets shot from the 16-gage gun hit the outside wall of the plaintiff’s house. There are some people inside the house. The accused leaves right after. He goes home. It is 00:43 A.M. [ 5 ] At the same time, the police hear the gun shot and decide to go and investigate. When they arrive at Mr. Inukpuk’s house, they are informed that the person responsible for the shot is Mr. Charlie Kumarluk. The houses are all built close to each other in the tiny community of Umiujaq. So three minutes after they heard the shot, the police officers arrive at the accused’s house.

[ 6 ] In the meantime, the accused has actually gone back to his place. Once inside, he keeps repeating, in front of a witness, that he is going to kill Alaku Inukpuk and even his fiancée while loading another firearm, a Winchester 700. [ 7 ] When Police Officer Katrine Cecchini comes to the accused’s place, the accused has a firearm in his hands. He repeatedly yells that he is angry at Alaku Inupuk and that he wants to kill him. Constable Cecchini tries to calm him down, but the accused points the firearm at her, from a window.

She is rather close to him, but she manages to move away and take cover. [ 8 ] Finally, after a few requests, the accused complies and he drops his firearm. Within minutes, he is arrested. OBJECTIVE GRAVITY: [ 9 ] All the counts are taken by indictable offences. The maximum sentence for counts under sections 264.1, 129 and 87 C.C.C. is 5 years of detention. The maximum jail term for the counts under

section 86 is two years. None of the accusations involves a minimum punishment of imprisonment. THE ACCUSED: [ 10 ] Now 41 years old, the accused was 38 when the events occurred. He is the father of six children. [ 11 ] Mr. Kumarluk is currently employed by the Kativik regional Government (K.R.G.) as Director of Wildlife Management. [ 12 ] He has always been very much involved in the community, and the Mayor confirms that he is really appreciated by the community.

He is currently volunteering as Director and Secretary of the co-op store, Director and Secretary of the Kativik Municipal Housing Bureau (K.M.H.B.), Director and Secretary of the Anniturvik Landholding Corporation. He is also active as a ranger, as a first respondent and as a firefighter. He is responsible for the community boat and he hunts caribou for the community. [ 13 ] In 2008, he decided to complete high school.

Right now, he only has one more exam to perform before he obtains his high school diploma. [ 14 ] Although he has remained sober from alcohol and marijuana since 2008, he is still at risk since he has not attended any relapse prevention program. [ 15 ] Mr. Kumarluk has previous convictions, in different matters, between 1993 and 1999 (sentence rendered in 2001). We note that he has rehabilitated since 1999, not committing any crimes for a period of 9 years before reoffending in 2008 in the present file.

THE PRE-SENTENCE REPORT: [ 16 ] Probation Officer Martine Lanthier provided the Court with a detailed Pre-Sentence Report, dated October 7, 2010. She testified in Court for an up-date. [ 17 ] After setting down the issues in her written report, the Probation Officer concludes “that the client’s social rehabilitation is feasible and realistic”. She confirms that there is a risk of recidivism as long as concrete and feasible steps are not undertaken. Mr. Kumarluk would have to focus on his social rehabilitation as strongly as he now does in his volunteer work. [ 18 ] The Probation Officer considers that Mr.

Kumarluk spends too much time volunteering instead of focusing on activities concerning his personal problems: substance abuse and anger management. With due respect for her opinion, the Court is of the view that, by “maintaining his implication in the community”, the accused was fulfilling a condition ordered by Judge Daniel Bédard on March 29, 2008, to grant him an interim release. Also, it is well known that all tiny communities rely a lot on volunteering. At last, volunteering helps the rehabilitation of an offender.

AGGRAVATING FACTORS: [ 19 ] The aggravating factors are: ➢ A shot was fired from a gun in the village at night-time; ➢ A shot was fired on a house occupied by people; however the small shots did not go through the wall; ➢ The accused has some previous convictions, not for similar matters; he was even sentenced to jail twice, for 3 months in 1993 and 5 months in 2001; ➢ He pointed a loaded firearm at a Police Officer in duty; ➢ Firearms related crimes occur too often in the Northern communities: it raises many concerns for the safety of the members of the community and of Police Officers who have to intervene in such situations. [1] MITIGATING FACTORS: [ 20 ] The mitigating factors are: ➢ The accused pleaded guilty at a relatively early stage of the proceedings; many delays were caused by Court sessions having to be cancelled in Umiujaq, because of unfavourable weather preventing the Court from travelling; ➢ A positive Pre-Sentence Report was submitted;

➢ The Probation Officer testified that, since the Pre-Sentence Report was prepared, the accused has been behaving well and has keptbeing helpful in the community; ➢ The accused has the support of both his family and the community, as expressed in the testimony rendered by the Mayor of theNortherm Village of Umiujaq, Mr.

Davidee Suppa; ➢ He has maintained his sobriety since 2008, and he has respected the conditions ordered by the Court relative to his interim releasethree years ago; ➢ He has a full-time employment and has been working regularly since he was 17 years old. ➢ As explained earlier, he is also actively involved as a volunteer; ➢ At last, the accused apologized to the victim, and they reconciled. SENTENCING OBJECTIVES: [21] The first objective is to denounce the misuse of firearms inside a community, putting people’s lives in jeopardy. [22] The second objective of

section 718 C.C.C. is also pertinent: to deter the offender and other persons from committing suchoffences. [23] Police Officers have to intervene too often for “gun calls” without any prior notice, where an offender is actually threateninghis entourage with a loaded firearm in his hands. [24] But when sentencing a native person, a judge must also refer to

section 718. 2

e) C.C.C. and consider, if possible, allavailable sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to circumstances ofaboriginal offenders. [25] This additional sentencing principle, arising from

section 718. 2

e) C.C.C. and specific to native people, was considered as“restorative justice” in the case of R. v. Gladue, a decision of the Supreme Court of Canada.[2] Restorative justice reminds that theobjectives of social rehabilitation (718 c)) as well as taking responsibility for the harm done to the victims and to the community, mustalso be assessed (718 f)). CASE LAW: [26] The Crown presents the written decision rendered by Judge Lucille Chabot in the case of R. v. Swallow[3], where the accusedwas sentenced to five and a half years ( 5½ years) of detention.

In this case, the accused fired many shots at the Police Officers. Theaccused barricaded himself in his home for a while, shooting from there, before coming out and firing again. A count under

section 85, -involving a minimum prison term of one year -, is not part of the case of Mr. Charlie Kumarluk. [27] The lawyers refer to many decisions rendered orally by the Court of Québec, which are not reported case law. A rapidanalysis of the cases summarized by the two lawyers provides the Court with relevant indications before a decision is made on a fitsentence in this case, for this accused, relating to these events, in this particular community. [28] In the decisions referred to by the lawyers, the sentence range varies from six months to be served as a conditional sentenceorder to 5 ½ years of detention.

Many factors are to be considered. It appears that jail sentences longer than three years involve a highnumber of fired shots. In these cases, some of the shots were fired at persons, or near persons. In R. v. Swallow the events lasted longenough for police forces to be mobilized around the place and where negotiations took place with an accused barricaded in a house.These cases generally deserve severe jail sentences. [29] In some other cases, judges have decided that conditional sentence orders should be granted, when no shots or very few werefired, and when the shots were not directly aimed at persons.

This was the case in R. v. Iserhoff[4], amongst others. [30] In the Iserhoff decision, the Court of Appeal considered that a conditional sentence of 16 months was a fit sentence for anoffender who had fired two shots from the window of a house, within 45 minutes. No one was directly aimed at, no one was injured,although some people were in the vicinity. The accused had prior convictions.

The Court of Appeal describes the sentence as a severeone and summarizes the decision of Judge Roy as follows:[5] «Qualifiant d’extrêmement graves les gestes posés par l’appelant, le juge de première instance conclut d’abord qu’une peined’emprisonnement s’impose. Il tient, toutefois, compte de la priorité donnée dans les cultures autochtones à une approche corrective dela détermination de la peine, tel que préconisé par l’arrêt R. c. Gladue, (1999) (SCC), 1 R.C.S. 688, de la Coursuprême, en imposant à l’appelant une peine à purger dans la communauté.»

ANALYSIS: - Length of detention: [31] The facts in the present case can be considered in the lower gravity crimes related to gun misuse. Only one shot was fired.The victim did not testify on sentence. He is reported to have said that he heard a shot while he was running away, but he nevermentioned that he heard a bullet in his vicinity. There is no evidence that the civil victim would have been directly aimed at by a gun. Allwe know is that a shot hit the house. We don’t know the consequence of this event on the victim and on the household. [32] There were people inside the house.

The shot was fired in the wall far enough from a window. The accused caused more fearthan real danger. The gun shot did not even go through the finishing of the house. Nobody was injured.

[ 33 ] This case is not as serious as that of Tommy Kumarluk [6] where the gravity of the crime was serious enough to decide that

section 718.2 e), as ruled in R. v. Gladue , had no noticeable incidence on considering a sentence other than imprisonment, or on ordering a shorter term of imprisonment: a Police Officer was then hit by a bullet in his ankle, and the offender shot many times at the victim. [ 34 ] Considering the decision of the Court of Appeal of Québec in the case of R. v. Iserhoff [7] applicable to a count under section 86 (1), and

section 718.2

e) C.C.C., the Tribunal will consider a term of detention under two years. [ 35 ] The Court of Appeal considered that the length of detention was “severe” [8] , when a term of 16 months of detention was decided in R. v. Iserhoff . Let it be reminded that the Crown was asking for 18 months and the Defence for only 8. In the present case, the accused pointed a firearm at Police Officer Katharine Cecchini, which is an additional aggravating factor when compared with the Iserhoff case. [ 36 ] Consequently, a fit sentence in the present case deserves a period of detention close to 2 years.

The Court decides for six months longer than in the R. v. Iserhoff , setting it at 22 months. - Detention in jail or in the community: [ 37 ] It is the duty of the Court to assess all available sanctions other than imprisonment that are reasonable, concerning a native person, as set out in

section 718.2

e) C.C.C. This means for the Court to consider granting the opportunity of a conditional sentence order, which implies detention in the community instead of jail. [ 38 ] The Pre-Sentence Report confirms that the accused is not at risk in the community.

Furthermore, the accused in an asset for the community of Umiujaq. [ 39 ] He has the support of the community through the testimony of the Mayor. [ 40 ] He respected all the conditions ordered by the Court, three years ago, as part of his interim release. [ 41 ] This is a case appropriate for a conditional sentence order of imprisonment and the application of the well-known R. v. Gladue decision in favour of the accused.

Specific conditions will be ordered requiring the accused to actively address his substance abuse and anger management problems. - Probation: [ 42 ] A supervised period of probation will apply after the conditional sentence order, for a period of 6 months.

A shorter probation is ordered because the offender has been under interim release conditions for three years, from being granted a bail in 2008. [ 43 ] FOR THESE REASONS, THE COURT: [ 44 ] SENTENCES the accused to: ➢ 22 months on count 1 (s. 86) ➢ 12 months on count 3 (s. 264.1), concurrent ➢ 22 months on count 4 (s. 87), concurrent ➢ 12 months on count 5 (s. 129), concurrent ➢ 12 months on count 6 (s. 264.1), concurrent ➢ 22 months on count 7 (s. 86), concurrent. [ 45 ] DETERMINES the time to be served as follows: Preventive detention: 6 days Length of sentence: 22 months and 6 days Less preventive time served: 6 days Time to be served: 22 months [ 46 ] ORDERS that the offender serve the sentence in the community under the terms and conditions appearing in the formal minutes of this case, including: ➢ 11 months of house arrest; ➢ 11 months of curfew (10:00 P.M. to 7:00 A.M.); ➢ 150 hours of community work to be performed, within a delay of 8 months; ➢ Abstain from possessing or consuming alcohol, drugs and other intoxicating substances; ➢ Be evaluated for two treatment programs, regarding substance abuse and anger management, and if required, register to these programs within a period of 30 days;

➢ Follow the instructions and report to the supervisor on the evaluations, therapy and treatment; ➢ Take the necessary steps to remain employed; ➢ Take the necessary steps to complete your high school program; ➢ Take active steps to support the organization of A.A. meetings in Umiujaq. [ 47 ] ORDERS that, after the term of the conditional sentence order, a supervised probation apply for 6 months, under the terms and conditions appearing in the formal minutes of this file, including: ➢ The probation will be supervised; ➢ Report to the Probation Officer within 5 working days following the end of the conditional sentence order and thereafter, when required by the Probation Officer and in the manner directed by him or her; ➢ Follow the instructions set out by the Probation Officer on substance abuse and anger management therapy and treatment, and report on them to the Probation Officer. [ 48 ] PROHIBITS Mr.

Charlie Kumarluk to have in his possession any firearms, ammunitions or explosive substances for a period of 2 years, pursuant to

section 110 of the Code, except for traditional hunting (s.113) and for activities as a ranger. [ 49 ] CONDEMNS Mr. Charlie Kumarluk to pay the victim’s surcharge as per

section 737 C.C.C. __________________________________ CLAUDE BIGUÉ, J.C.Q. Me Lyly-Anne Ratelle Crown Prosecutor Me Jacques Stuart Defence Counsel Dates of hearing: April 14, 2011, June 29, 2011 and August 23, 2011