R. v. Bishop, 2015 NUCJ 01

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Bishop, 2015 NUCJ 01 Date: 20150122 Docket: 21-07I-02 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Christopher Bishop ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): P. Culver, J. Potter Counsel (Accused): J. Morton Location Heard: Iqaluit, Nunavut Date Heard: January 14, 2015 Matters: Criminal Code , s. 236a x 3; s. 239 (

a) x 2 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] In the early morning hours of January 6th, 2007, the tranquility of a residential neighborhood in Cambridge Bay, Nunavut is suddenly shattered by the sound of rapid gunfire. Three residents die in a hail of bullets. Two other citizens are wounded. The RCMP arrive to discover a scene of carnage. [ 2 ] Christopher Bishop has entered guilty pleas to three counts of manslaughter and two counts of attempted murder arising out of this incident. He is now to be sentenced. II. THE FACTS [ 3 ] In the weeks immediately preceding the event giving rise to these charges, Mr.

Bishop is involved in a number of verbal and physical confrontations with the three deceased males - Dean Costa, age 29, Keith Atatahak, age 30, and Kevin Komaksiut, age 22. The reasons for this dispute are inconsequential. Nothing had been resolved by an exchange of accusations and insults. There is mutual hatred. [ 4 ] During the evening hours of January 5th, Dean Costa, Keith Atatahak and Kevin Komaksiut get together to drink with Antoinette Bernhardt and Logan Pigalak. Far too much alcohol is consumed. A sixty ounce bottle of vodka is drained. This is soon followed by three quarters of a second bottle.

As alcohol mixes with anger, the inhibitions fall away. Following a heated exchange, a number of those present decide to have it out with Mr. Bishop. They have a score to settle and are determined to punish Mr. Bishop. [ 5 ] Dean Costa, Keith Atatahak, Kevin Komaksiut, and Logan Pigalak arrive at Bishop’s residence in the early morning hours of January 6th. They are intoxicated and combative. Someone starts to pound on the front door. Mr. Bishop is inside his residence. Fearing that those outside his front door will gain entry, Mr. Bishop calls the RCMP.

While speaking with RCMP Telecoms, the pounding on the door suddenly stops. Mr. Bishop assumes that his antagonists have left the area. The police are consequently not dispatched to the scene. [ 6 ] Some fifteen minutes later, the pounding on the front door resumes. Mr. Bishop retreats to the safety of his bedroom and locks the door. He again calls the RCMP. While speaking with Telecoms, Mr. Bishop hears the front door to his residence suddenly give way under the force of many blows. The intruders are now inside. They are soon outside his bedroom. Someone begins to pound on the bedroom door. Unknown to Mr.

Bishop, some of the intruders have armed themselves. Dean Costa is now carrying a long samurai sword. Kevin Komaksiut has a broken golf club. Keith Atatahak and Logan Pigalak are also present. [ 7 ] Mr. Bishop prepares to defend himself. He has a semi-automatic rifle with an illegal thirty round banana clip at his disposal. He loads the firearm and waits behind the door. His hand is on the trigger. The police have been dispatched. Help is on the way. [ 8 ] Under the force of repeated blows, the bedroom door finally gives way. Mr. Bishop fears the worst. He starts to fire. When the intruders realize that Mr.

Bishop has a firearm, they immediately scatter and run for their lives. Mr. Bishop’s fright then turns to rage. He continues to fire even after the intruders flee. Dean Costa, Keith Atatahak, and Kevin Kamaksiut cannot outpace the bullets directed at them. There are some 25 shots discharged in all. Twenty of these shots hit their human targets. [ 9 ] The Court has not been given a sequential breakdown of what happens after the firing starts. The forensic autopsy reports tell a story, however. [ 10 ] Keith Atatahak sustains three gunshot wounds.

He is shot full in the chest from the front and eventually dies from this wound. He is also shot in his thigh. The bullet exits from the back of Mr. Atatahak’s left knee. A third bullet grazes Mr. Atatahak’s right lower leg. [ 11 ] Dean Costa sustains ten gunshot wounds. There is a gunshot wound to his back which exits the right lower chest. The wound direction is from back to front. There is another gunshot wound on Mr. Costa’s lower back area that exits the left side of his body. The direction of the wound is once again from back to front. There is a gunshot wound on the back of the neck that exits Mr.

Costa’s chest.

This bullet is also travelling from back to front. [ 12 ] There are three gunshot wounds that are identified as having been sustained after death. One shot is to Mr. Costa’s left back. Another two shots are sustained to Mr. Costa’s chest. [ 13 ] A gunshot wound is also sustained to Mr. Costa’s right upper arm. Forensic science cannot be certain whether this wound was sustained before or after death. Finally, there are two bullet wounds to Mr. Costa’s head.

Forensic medical science is once again unable to say whether these wounds were sustained before or after death. [ 14 ] All gunshots are discharged from a distance. There is no powder residue left on Mr. Costa’s skin or clothing at the bullet’s point of entry to suggest a discharge at close range. [ 15 ] Kevin Komaksiut sustains five gunshot wounds. There is a bullet wound to the deceased’s lower back that exits from the upper left area of the chest. This wound runs from back to front and is sustained from a distance.

There is no powder residue to suggest a discharge at close range. [ 16 ] There is a second gunshot wound that enters the lower left leg that exits the left upper thigh. This shot runs from front to back. There is a third gunshot wound to the left jaw that exits the chin running from front to back. [ 17 ] There is a fourth gunshot wound that enters the back side of the left forearm and exits out the front of the left forearm. This wound runs from back to front.

There is no forensic evidence of any kind to suggest that any of these other shots were delivered at close range. [ 18 ] A fifth gunshot wound is sustained to Komaksiut’s right forearm. This wound is described as a grazing type of injury. The direction of bullet travel is unknown. [ 19 ] Antoinette Bernhadt sustains a gunshot wound to her left shoulder and has to be medivaced to Yellowknife for treatment. She is shot by Mr. Bishop outside the residence. It is a serious injury.

Logan Pigalak is grazed by a bullet and sustains a minor injury to one of his limbs. [ 20 ] The location of the three deceased is also significant. It too tells a story. Dean Costa’s body is located just inside the front door to Mr. Bishop’s residence at some distance away from Mr. Bishop’s bedroom. Keith Atatahak's body is found even further away. It lies outside the Bishop residence and is approximately fifteen feet away from the front entrance. Kevin Komaksiut’s body is located down the street and outside Unit 4B at a considerable distance from the Bishop residence. III. SUBMISSIONS A.

Acceptance of the guilty pleas to the reduced charges of manslaughter [ 21 ] The negotiated resolution that is now before the Court is the product of extensive discussions between Crown and Defence. These discussions have taken place over many months. These negotiations have resulted in guilty pleas being entered to five serious offences. A trial has been avoided. [ 22 ] On the basis of the limited information that is available to the Court, it cannot be said that the negotiated resolution is unreasonable. Both sides, Crown and Defence have made compromises in order to arrive at the end result.

This result brings some closure to the families of the deceased. It brings an end to the uncertainty of litigation that has haunted Mr. Bishop and the families of the deceased for the better part of a decade.

[ 23 ] While Mr. Bishop’s action in discharging the firearm was a direct consequence of the home invasion and was initially a step taken in self-defence, the Defence concedes that the amount of force ultimately used by Mr. Bishop was excessive. The Defence expressly admits that Mr.

Bishop intended to discharge the firearm at both Antoinette Bernhardt and Logan Pigalak and, that when he did so, he had the requisite intention to commit the offence of attempted murder. [ 24 ] The number and location of gunshot entry wounds sustained to the backs of at least two of the three deceased and the ultimate location of the bodies suggest that numerous shots were fired by Mr. Bishop after the intruders took flight. At this point, shots taken in anger fall outside the privilege of self- defence.

The law does not condone the infliction of deadly force beyond that which is reasonably necessary for self-preservation. Provocation is not a defence to a charge of attempted murder. A finding of provocation can reduce a charge of murder to the lesser offence of manslaughter. In this case, the provocation associated with the home invasion has had this effect. [ 25 ] The Court sees no legal basis to reject the guilty pleas tendered by Mr. Bishop to the lesser charges of manslaughter. The Court is satisfied that Mr. Bishop’s decision to enter these guilty pleas is both voluntary and informed. B.

The joint submission on sentence [ 26 ] Crown and Defence jointly submit that a fair and appropriate sentence for these offences committed by this offender would be a custodial term of twenty years concurrent on all five counts. Both Crown and Defence are also agreed that this twenty year sentence should be reduced to reflect the extensive pre-sentence detention already served by Mr. Bishop. [ 27 ] The moral blameworthiness associated with Mr. Bishop’s actions in deliberately shooting down his fleeing antagonists is extremely high.

The Court is satisfied that the 20 year sentence proposed by the Crown and Defence, being at the extreme high end for manslaughter offences, is nonetheless justified in this case. The rifle was fired not once, but 25 times. Mr. Bishop continued to hit human targets long after the risk to his own personal safety was over. [ 28 ] There is some disagreement between the Crown and Defence over the amount of credit that should be applied in the circumstances of this case. IV. ANALYSIS A. Credit for pre-sentence custody [ 29 ] Mr.

Bishop was convicted and sentenced to life imprisonment following a trial that concluded on August 27th, 2010. This conviction was subsequently appealed. On January 28th, 2013, the Nunavut Court of Appeal allowed the appeal and quashed the convictions. The matter was then remitted back to this Court for retrial. The retrial was scheduled to take place in April 2015. The resulting plea negotiations and resolution have now rendered a further retrial unnecessary. [ 30 ] There are three periods of pre-sentence custody to consider. The first period runs from the point of Mr.

Bishop’s arrest on these charges (January 6th, 2007) to the date of Mr. Bishop’s first trial and conviction (August 27th, 2010).This consists of a period of 3 years, 7 months, and 21 days and totals 1,328 days of actual custody. [ 31 ] The second period of custody runs from the date of Mr. Bishop’s first sentencing (August 27th, 2010) to the date of Mr. Bishop’s successful appeal (January 28th, 2013).

This consists of a period of 2 years, 5 months, and 1 day for a total of 884 days of actual custody. [ 32 ] The last period of pre-sentence custody runs from the date of the successful appeal (January 28th, 2013) to the date of Mr. Bishop’s sentencing by this Court (January 14th, 2015). This consists of a period of 1 year, 11 months, and 17 days for a total of 716 days of actual custody.

[33] Mr. Bishop has thus already served a total of eight years and 8 days or 2,928 days of actual custody up to the point of thissentencing hearing. [34] Prior to the Truth in Sentencing Act, SC 2009, c29 amendments, to the Canadian Criminal Code [Criminal Code] becoming law in2010, this Court, and every other court in the country, routinely assigned enhanced credit for pre-trial detention. A two for one credit wasusually applied. This was done for two reasons.

First, such enhanced credit was necessary to reflect the fact that pre-trial detention wasnot taken into account by the parole authorities in calculating statutory remission. Second, the conditions of pre-trial detention were alsotypically far more severe. There was usually no access to remedial programming. This was made available to sentenced inmates only. [35] It is common ground that the Truth in Sentencing Amendments to the Criminal Code have no application to this proceeding.

Theseamendments restricted the circumstances under which credit for pre-trial custody could be assigned and restricted the amount of credit toa maximum limit of 1.5 days for every actual day of pre-trial detention. These statutory amendments to the Criminal Code have noapplication to offences charged before these amendments became law in 2010. [36] The Crown concedes that some enhanced credit should be assigned to all three periods of pre-sentence detention. [37] With respect to the second period of custody served by Mr.

Bishop after being sentenced, the Crown urges the Court to restrict thecredit to only 1.5 days to one. The Crown relies on the case of R v Karim 2014 ABCA 88 , [2014] ABCA 88, [2014] AJ No 218(QL), in support of this position, but the justification for such a reduction was not expressly addressed by the Alberta Court of Appeal inthat case. The British Columbia Court of Appeal, however, in the case of R v Gunning, 2008 BCCA 22, 77 WCB (2d) 43, deals directlywith this issue and arrives at a different result. In analogous circumstances to Mr.

Bishop, the BC Court of Appeal affords the appellantGunning a credit for pre-sentence custody at the rate of two for one. In sentencing Mr. Bishop, this Court adopts the reasoning of the BCCourt of Appeal in Gunning expressed at paragraphs 9 through 11, and elects to assign credit at the usual rate of two for one. [38] The Defence urges the Court to give Mr. Bishop extraordinary credit for the time Mr. Bishop was allegedly held in either solitaryconfinement or in lock-down during the first and second parts of the periods of custody identified in paragraphs nine and ten above.

TheCourt is urged to afford three to one credit for a period of one year to reflect the extraordinary hardship associated with this type ofdetention. The period of 365 days that is the subject of this claim for extraordinary credit is nothing more than an estimate. There is nodocumentation from the Correctional authorities supporting this time frame or outlining the dates that this very restrictive detention issaid to have occurred. [39] The hardships associated with detention at the Baffin Correctional Center are notorious.

The substandard conditions of detention atthis facility were the subject of a report dated 2013 and authored by the Federal Correctional Inspector . These hardships are well knownto this Court and were routinely factored into the Court’s two for one credit usually assigned to pre-trial detention prior to the Truth inSentencing reform. [40] Having given anxious consideration to both Crown and Defence submissions on the issue of credit, and noting, in particular, theextraordinary length of time already served by Mr.

Bishop prior to this sentencing, the Court chooses to exercise its discretion as follows. [41] For the first period of pre-sentence custody consisting of 1,328 days of actual custody, there will be an enhanced credit at the usualrate of two for one. The Court sees no reason to depart from the long standing practice of this Court that was in place prior to the 2010amendments to the Criminal Code. Mr. Bishop is therefore credited with a total period of 2,656 days. [42] For the second period of pre-sentence custody consisting of 884 days of actual custody, there will an enhanced credit at the rate oftwo for one. Mr.

Bishop is hereby credited with a total period of 1,768 days. [43] For the third period of pre-sentence custody consisting of 723 days of actual custody, there will once again be an enhanced creditassigned of two for one. Mr. Bishop is therefore credited for this third period with a total of 1,446 days. [44] In the end result, Mr. Bishop is afforded a total credit against his twenty year sentence of 5,870 days of time served. This credit is tobe applied to the twenty year concurrent sentences referenced above. A twenty year sentence amounts to 7,300 days of custody.

Whenthe credit for pre-trial detention of 5,870 days is applied, the total sentence remaining to be served by Mr. Bishop as of the date of thisjudgment is 1,430 days.

[ 45 ] The Court declines to afford any extraordinary credit for time served in lockdown or solitary confinement. The Court is satisfied that the conditions of Mr. Bishop’s overall detention have been adequately addressed in the overall credit assigned to his pre-sentence custody. V. CONCLUSION A. Victim impact [ 46 ] An entire community was impacted by the events of January 6th, 2007. The commission of these offences was a devastating blow to all who had lived with, or grown up with the three deceased. The families of the deceased now live out their lives trying to cope with a terrible loss.

These families have received a true life sentence. They are burdened with a lifetime of grief. Their lives will never be the same. [ 47 ] For those who now grieve, no sentence can possibly compensate for what has been taken, and is now lost. No court can possibly put a value on the life of Dean Costa, Keith Atatahak, and Kevin Komaksiut. This Court does not attempt to do so through the sentence imposed today. [ 48 ] Those who participated in the foolhardy home invasion have paid dearly for their folly. Three citizens have paid with their lives.

Logan Pigalak was later charged with and convicted of break and enter. He was sentenced to a period of custody for his involvement in this affair. [ 49 ] Ms. Bernhardt took no

part in the break in. There is no evidence to suggest that she entered the residence. She was outside the residence when she was shot. [ 50 ] Those who were lucky enough to survive the carnage are now scarred with a memory that is a living nightmare. [ 51 ] The uncertainty associated with this litigation now comes to a close. The community and the many citizens of Cambridge Bay impacted by these events must now attempt to move on with what is left of their lives. [ 52 ] The Court extends its condolences to all those who have suffered loss or injury, and wish them well in the long healing journey ahead. B. Ancillary Orders [ 53 ] Pursuant to

section 109 of the Criminal Code , the Court prohibits Mr. Bishop from possessing or using any firearm, ammunition or explosive substance for a period of twenty-five years. Mr. Bishop is prohibited for life from the possession of any restricted firearm, ammunition, or cross-bow. [ 54 ] The weapon used in the commission of this offense together with the illegal ammunition clip, are forfeited to the Attorney General pursuant to

section 491 of the Criminal Code . [ 55 ] These offences involved misuse of a firearm and possession of an illegal 30 round ammunition clip. The violence was extreme. The result of that violence was catastrophic. In the circumstances presented here a long term prohibition order is warranted notwithstanding a claim to aboriginal heritage. The protection of the public must take priority.

[ 56 ] As all of these offences are primary designated offences, there shall be a DNA order. Dated at the City of Iqaluit this 22nd day of January, 2015 ___________________ Justice R. Kilpatrick Senior Judge Nunavut Court of Justice