R. v. Komak, 2020 NUCJ 12

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Komak, 2020 NUCJ 12 Date: 20200303 Docket: 21-19-153 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Raymond Komak ________________________________________________________________________ Before: Madam Justice Tulloch Counsel (Crown): N. Sinclair Counsel (Accused): P. Connolly Location Heard: Cambridge Bay, Nunavut Date Heard: March 2, 2020 Matters: Sentencing for offence under Criminal Code of Canada, RSC 1985, c C- 46, ss. 236 (

b) REASONS FOR SENTENCE (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Yesterday I found Raymond Komak guilty of manslaughter for the death of Sandy Ekpakohak. [ 2 ] Good afternoon ladies and gentlemen. There is no doubt that these proceedings have been very difficult for the community of Cambridge Bay and more particularly for the Ekpakohak family. [ 3 ] I mean no disrespect but I am going to refer to the parties mostly by their first names.

I do this because first names are the ones most commonly used in the community and I find that often it makes what is said less complicated and more human for those who are listening. [ 4 ] Nothing I do today will in any way make up for the pain and suffering that Sandy’s family have gone through as a result of losing someone they love.

My sincere sympathy goes out to each and every one of you. [ 5 ] Today, I am tasked with imposing a fit and fair sentence in all of the circumstances of this case and of this offender. [ 6 ] The present and future loss suffered by the family and friends of Sandy Ekpakohak is both dreadful and significant. That being said, I cannot and must not use this court as an instrument of revenge or an instrument of appeasement.

The length of any sentence I impose today is not and cannot attempt to place a value on Sandy’s life.That value is too vast to measure and nothing I do today can make up for the tragedy that has taken place. [ 7 ] I am extremely mindful of the seriousness of what has happened at the hands of the accused and I have carefully considered the submissions made by both counsel. [ 8 ] I have also considered the following:

a) The four victim impact statements that were provided yesterday morning including the heartbreaking oral impact statement given in court by Mr. Darren Etibloena;

b) The contents of the presentence report that was prepared on Mr. Komak’s behalf;

c) The various cases submitted by counsel;

d) The criminal record of Raymond Komak; and

e) Mr. Komak’s guilty plea, and sincere remorse. II. FACTS [ 9 ] I accept the description of the facts as outlined by the Crown and as agreed to by the Defence. They are contained in an agreed statement of fact entered as exhibit one in this case. They were also read out by the Crown prosecutor yesterday in court. Although it may be hard to revisit those facts yet again, I need to summarize them for the purpose of this sentencing. The key parts are as follows:

[ 10 ] On Jan. 25, 2019, the accused hosted a cribbage game at his home in Cambridge Bay. Present were his two daughters, Darren Etibloena (Sandy’s brother), Mr. Etibloena’s son, Janice Komak (Raymond’s sister) and a friend, Ron Qamukaq. [ 11 ] Some of those present, including Raymond Komak, smoked cannabis throughout the evening but none were drinking alcohol. [ 12 ] At some point, the accused received a text message from Sandy Ekpakohak indicating that he was drunk and he wanted to come over to the accused’s house to drink with him. [ 13 ] Raymond wrote back to say he didn’t want to drink.

Raymond was reluctant to invite Sandy to join the group but in any event, Sandy did arrive around 10 p.m. with a 60 ounce bottle of vodka. The bottle was about two-thirds full. [ 14 ] Sandy was intoxicated when he arrived. The group continued to socialize. Sandy drank and tried throughout the evening to convince the others, including Raymond, to drink with him. Although Raymond kept saying no, he was finally convinced by Sandy to have a shot. [ 15 ] Sandy’s brother Darren saw Sandy getting agitated. Sandy was aggressive with Darren and with Raymond before Darren left the house.

Darren knows that his brother is always angry when he is drinking and according to Darren, he is always in a hyper state and trying to pick a fight. [ 16 ] Darren also indicated that he considers both Raymond and Sandy to be what he describes as “alpha males” and he has observed that each of these two men in his words, “always want to be on top”. Darren said that he has never seen them fight but he knows that they have fought with each other in the past. [ 17 ] About 11:45, Darren, his son and Ron Qamukaq decided to leave. At that time Raymond had started to drink vodka with Sandy. Mr.

Qamukaq observed that at the time of their departure, no one was upset and everyone was laughing and joking around. [ 18 ] Around the time his friends departed, Raymond texted his wife and asked her permission to drink with Sandy. He also asked her to come over to the house and pick up their daughters. Raymond’s wife granted him permission to drink and she arrived at the house sometime around 1:30 a.m. to remove their two daughters. [ 19 ] When Mrs. Komak arrived she observed Raymond and Sandy sitting on the couch arguing. There was no physical interaction.

She left them there by themselves. [ 20 ] At about 4:00 a.m. Mrs. Komak went back to the house to check up on her husband. She was frightened to go there alone so she brought three of her friends with her. [ 21 ] They entered the house and found Sandy dead on the living room floor in a pool of blood. [ 22 ] Mrs. Komak located her husband, the accused, asleep on their bed. She woke him up and he went into the living room and sat beside Sandy’s body. She left to call the police. [ 23 ] The police arrived around 7:52 a.m.

They located Sandy’s body and also found a bloodstained steak knife on the floor approximately 15 feet from the body and an empty vodka bottle in the kitchen garbage container. [ 24 ] An autopsy determined the cause of death to be a single stab wound to Mr. Ekpakohak’s left, upper back area.

[ 25 ] There were no defence injuries noted on Sandy’s body. His blood alcohol content at the time of his death was more than four times the legal blood alcohol limit for driving a motor vehicle. Also present in Sandy’s blood were blood metabolites indicative of recent exposure to cannabis. [ 26 ] Investigators located the accused in his bedroom, face down on his bed, deeply asleep. He was very difficult to wake up. The officers noted that he was very intoxicated.

They also noticed the following: a fresh approximately one inch slight laceration on Raymond’s forehead, a swollen and black left eye, dried blood around his nostrils and top lip, possibly a fat lip on the left side of his lower lip and dried blood on his hands. [ 27 ] He was arrested at 8:59 a.m. He was told he was being investigated for a possible homicide. Raymond started to cry and said, “What homicide?” He was provided his 10(

b) rights. He was too drunk at that time to speak to duty counsel but he did so once he was sober. [ 28 ] After Raymond was sober, the police took a cautioned statement. He said he had been home playing cribbage with his friends when Sandy arrived with the vodka. Raymond said that Sandy was drunk, loud and too drunk to play cards. [ 29 ] He told the officers that at one point Sandy was scaring one of the children so everyone left. Only the two of them remained in the house. [ 30 ] The accused admits taking some shots of vodka with Sandy, who he knows to be angry when he is drinking.

Raymond said he and Sandy had been fighting and that he blacked out. The accused has no memory of the stabbing and he could not provide any details concerning the apparent injuries that he received that night. [ 31 ] By his guilty plea, Raymond Komak is admitting responsibility for the stab wound that killed Sandy Ekpakohak. [ 32 ] The accused admits that he acted in the heat of passion caused by Sandy’s sudden, provocative, intoxicated and aggressive behaviour. [ 33 ] Raymond admits that he is the one who used the knife and lost self-control during their drunken fight.

He is the one that used excessive force and he admits that in those circumstances he is guilty of manslaughter. [ 34 ] When giving this statement to the police he asked them to tell Sandy’s wife Donna that he was sorry. III.

SENTENCING PRINCIPLES—SECTION 718 [ 35 ] I have also considered, as I must in every criminal case, the sentencing provisions contained in s.718 of the Criminal Code with respect to the objectives of sentencing. [ 36 ] The fundamental purpose of sentencing is to contribute 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: to denounce unlawful conduct, to deter the offender and other persons from committing offences, to separate offenders from society, where necessary, to assist in rehabilitating offenders, to provide reparation for harm done to victims or to the community and to promote a sense of responsibility in offenders, and an acknowledgement of the harm done to victims and to the community. [ 37 ]

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[ 38 ] You need only know that Sandy’s life was taken from him that night to understand the gravity of the offence in this case. Raymond bears a very high degree of responsibility for that tragic reality. [ 39 ]

Section 718.2(

a) of the Code instructs me that any sentence I impose should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or to the offender. IV. AGGRAVATING CIRCUMSTANCES [ 40 ] The aggravating things in this case are: [ 41 ] First and foremost, Raymond chose to drink that night with his friend Sandy. As a result of his past criminal behaviour, Raymond knew that consuming alcohol might get him into serious trouble. [ 42 ] It is clear from the facts agreed upon that both Sandy and Raymond were arguing and after everyone else left they fought.

There is no other reasonable explanation for the injuries that Raymond had when he was arrested the following morning. [ 43 ] It is also clear from the facts agreed upon that Sandy was extremely drunk which made him particularly vulnerable. Raymond was also very drunk…so drunk that he doesn’t remember what actually happened. [ 44 ] It is Raymond who chose to use a weapon, a steak knife. He used that knife with such force as to cause Sandy’s death. [ 45 ] It is also aggravating that Raymond comes before the court with a criminal record. [ 46 ] That record aligns with the contents of the presentence report.

I have reviewed it carefully. [ 47 ] Raymond began coming before the court in 1990 as a youth. In the next two years as a youth, he was convicted of eight charges. He then continues with his criminal behaviour as an adult and amasses by my count 19 offences. All of these offences are breaches of court orders and property offences. Starting in June of 2000 he starts committing violent offences. There are 11 convictions that would fall into this category including seven assaults together with threatening and obstructing police. In September of 2012 Raymond was convicted of uttering threats.

That is his last conviction prior to yesterday. [ 48 ] The presentence report attributes his lack of charges after 2012 with his becoming a father and his decision to stay away from the consumption of alcohol. [ 49 ] As Defence counsel submitted although the criminal record is aggravating, it also shows an ability to understand his demons and to make positive changes. V. MITIGATING CIRCUMSTANCES [ 50 ] Next I must look at the mitigating circumstances, the good things that can be said in support of Raymond. [ 51 ] The most important mitigating circumstance in this case is Raymond’s early guilty plea.

By pleading guilty and admitting responsibility, Raymond has saved the court, the family and those present that fateful night from the further agony of having to relive the events. He has eliminated the need for a trial and his expression of remorse has been evident throughout these proceedings. [ 52 ] Raymond’s plea of guilt, his immediate and continued apologies to Donna and her family are a reflection of his own personal

agony for what he has done. When interviewed for the presentence report Raymond talked about the fact that he will live with the guilt ofSandy’s death for the rest of his life. [53] Even though Raymond does not remember what happened that night he has taken full responsibility for Sandy’s death. [54] He has done this in spite of a number of viable trial issues. [55] An admission of guilt is always the first step to rehabilitation and the most important step in healing. [56] It is to his credit that Raymond has been a model prisoner for the past year while in custody.

It is a good thing that he has takenadvantage of a number of programs while being in jail. According to the presentence report, Raymond has also participated incounselling while in custody. [57] He has completed four programs while incarcerated at Makigarviak in Iqaluit.

On March 14 of last year, Raymond received acertificate of completion for his attendance and contribution to the Substance Abuse Program at Baffin Correctional Centre. [58] Raymond took and passed a course in standard first aid and the ability to perform CPR. [59] He passed the Trade Entrance Examination and in November he successfully completed the Alternatives to Violence Program. [60] It is a good thing that during his time in jail Raymond was not idle. It is good that he took advantage of whatever programs wereavailable to him. [61] My decision today cannot be solely based on the offence.

I am obligated to also consider the background of every offender whocomes before me. [62] With respect to this case, I am instructed by

section 718.2(e), and by the SCC decisions in R v Gladue, (SCC),[1999] 1 SCR 688 and R v Ipeelee, 2012 SCC 13 to consider the unique systemic or background factors which may have played a

part inbringing Raymond before the court. These factors may bear on the culpability of the offender to the extent that they shed light on hislevel of moral blameworthiness. [63] Raymond is 45 years old. He is a husband and a father of three. [64] The presentence report talks about the fact that Raymond suffered through a very difficult childhood. His parents were alcoholicswho often chose excessive drinking over the welfare and safety of their son. There were times when Raymond had to actually sleepoutside in the cold.

During the period of time when Darren was committing property offences, he was suffering from a lack ofsupervision and the inability to count on three meals a day and a warm bed to sleep in.

He was banished from school in grade eightbecause he missed too many days. [65] It is not surprising that Raymond then spent a considerable amount of time in the criminal justice system struggling with his ownabuse of alcohol. [66] In 2005 he completed his grade ten at Arctic College showing an initiative to improve his life. [67] The information I have before me is that Raymond turned his life around when he became a father and he stopped drinking for themost part. This meant that he also stopped getting into trouble.

[ 68 ] None of this makes up for the fact that Raymond took Sandy’s life and forever changed the lives of his 12 children, his grandchildren, his wife, his in-laws, his other relatives and his friends. [ 69 ] Although rehabilitation is always important, this is a case where the primary goal of sentencing is deterrence and denunciation. [ 70 ] You have heard that the offence of manslaughter has a very broad range of sentencing. I therefore have an obligation to consider the principle of parity.

This means that I am instructed that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 71 ] I have said many times in this jurisdiction that sentencing is always unique to the particular case and the particular offender before me.

No two cases are identical. [ 72 ] That being said, counsel have provided me with a number of cases which they feel might assist me in crafting a fit and fair sentence within the broad range of sentencing options that are available in cases like this one. [ 73 ] I am thankful for the decisions provided as they are helpful in a number of ways but of course, none of them are directly on point with the facts in this case and the background of this accused. [ 74 ] Sentencing is the most difficult job of any judge.

It is a balancing exercise which must focus on the specific circumstances of the offence and the offender. [ 75 ] In the early morning hours of January 26 of last year, two friends chose to drink, argue and fight until one of them took the life of the other. The next morning two families and countless friends on both sides woke up to a reality that included tremendous loss, pain and guilt. [ 76 ] Darren’s courage to come forward and represent his family by speaking in court yesterday was heart wrenching. He did not hold back. He spoke with conviction and eloquence.

He spoke to the court and he spoke directly to Raymond. [ 77 ] Darren’s deep loss, his overwhelming guilt, his love for both his brother and for the accused and his hope for the future of both his own family and Raymond’s family filled the courtroom. As Darren poured out what was in his heart Raymond cried. Nothing I can say will have more of an impact on Raymond than what Darren told him yesterday. [ 78 ] The unique thing about what Darren said involves the fact that he is deeply connected to both families—to Sandy’s family and to Raymond’s family.

He told us that both Sandy and Raymond were his “go tos”, his close friends. He obviously admired both men who were prominent in his life. [ 79 ] He said a number of times that he cries inside every day. He misses his brother deeply. He talked about the inevitable loss of culture for Sandy’s children and grandchildren. Darren talked about the reality of a future without his brother and the inability to change history. [ 80 ] Darren talked in the presentence report and in his testimony yesterday about the very hard toll that alcohol has had on his family and also on Raymond’s family.

[ 81 ] Darren told Raymond he needed to change for the sake of his own children. He reminded him in no uncertain terms that he has that chance while his brother Sandy and Sandy’s family do not. [ 82 ] It was powerful, passionate and very appropriate. I am extremely thankful for what he said. [ 83 ] Darren’s overall goal aligns with this court’s goal. He wants reconciliation at some point in the future for both families. He has given everyone a sense of hope for the future.

Forgiveness is not possible at this time but perhaps with the passage of time and with Raymond’s hard work at restoring some semblance of trust, it can happen down the road. [ 84 ] This court is thankful for Darren’s understanding that making the best out of this terrible tragedy is necessary for overall healing. [ 85 ] Yesterday we also heard from Raymond who sat in front of everyone and apologized over and over again. He told us that every day he thinks about what he has done. He spoke directly to Sandy’s family. He said “I hope in time you can forgive me but if you can not do so, it is understandable.” VI.

SENTENCE [ 86 ] If I were to send Raymond to the penitentiary in the south for a long period of time, it would not bring Sandy back but if my sentence balances the need for reconciliation and healing, these two families might have a chance to move forward—not immediately but at some point down the road. [ 87 ] That is what this court hopes for the most. [ 88 ] In conclusion, taking into account all of the things I have just talked about, I am convinced that any sentence I impose today should build on the work that Raymond has already done while in custody.

I am convinced that allowing him to remain in Nunavut for the balance of his sentence is the right decision in all the circumstances. [ 89 ] By imposing a sentence, minus pretrial custody, in the territorial range, I am able to impose a long period of probation which hopefully will help Raymond be the kind of person Darren was talking about. [ 90 ] Therefore the sentence is as follows: [ 91 ] Three and one half years in jail minus pretrial custody to be followed by three years of probation. [ 92 ] To be clear that amounts to a total of 42 months or by my calculation, rounding off every month to be 30 days, a total of 1260 days in jail. [ 93 ] I am told that Raymond has now spent 403 days of pretrial custody.

He is entitled to what is called enhanced credit of one and one half days for every day he has been in jail on what is called remand. [ 94 ] I am therefore going to credit Raymond Komak with 605 days, which means that he will need to spend another 655 days in custody.

[ 95 ] That jail sentence will be followed by three years’ probation with the mandatory conditions and with the followed added conditions:

a) You must report to your probation officer within two days of your release from custody and thereafter as directed;

b) You must have no contact directly or indirectly with Donna Ekpakohak except with Donna’s written consent through consultation with the RCMP;

c) You must participate in counselling as directed by your probation officer including but not limited to, counselling with elders and family counselling through programs available at the Wellness Centre here in Cambridge Bay;

d) For the first year, you must report to the mental health nurse in Cambridge Bay at least once a month. This is so that you might receive counselling focused on your mental health; and

e) You will not possess or consume any alcohol. If you need professional help to avoid alcohol, you must ask for it Mr. Komak. If you breach this term, I have no doubt that you will find yourself before the court on a breach or you might even find yourself in further trouble. [ 96 ] There are also a number of mandatory orders that I must impose today.

a) You must by law provide a sample of your DNA for the purpose of the national DNA data bank;

b) Pursuant to

section 109 of the Criminal Code , you must be prohibited from possessing any firearm or ammunition for a period of ten years. I understand fully that you are a skilled hunter and being on the land is a very important tool for healing. I am therefore going to recommend that you receive an exemption under

section 113 of the code for sustenance hunting. I must warn you Raymond that it is not automatic. You must convince the authorities that it is appropriate in the circumstances for them to grant you that exemption;

c) I am required to consider the Victim of Crime Surcharge. It is to be waived due to financial hardship. At this point in your journey it is much more important to use any funds you make while in custody toward the support of your family. [ 97 ] Is there anything I have forgotten Mr. Sinclair? No, your honour. [ 98 ] Anything Mr. Connolly? Nothing, your honour. [ 99 ] Raymond: remember what Darren had to say yesterday. [ 100 ] He told you that it is time to change. He told you that your children will need you. Remember that Sandy’s twelve children no long have the opportunity of looking up to their father.

He is gone from their lives. You have a very heavy responsibility when you get out of jail and are returned to the community. It will be a long and difficult journey. You will have to be in control of your rehabilitation. As Darren said you must step up for your family’s sake. [ 101 ] In conclusion, I am very mindful of the fact that Sandy’s family are in great need. I am reminded that there are counselling services available in this community and my hope is that you can also benefit from the programs provided. My wish for all of you is to get help and take counselling if you need to do so.

Healing is a very long process for everyone! [ 102 ] We will now close court.

Dated at the Hamlet of Cambridge Bay this 3rd day of March, 2020 ___________________ Justice B. Tulloch Nunavut Court of Justice