R v. Kilikavioyak, 2016 NUCJ 21

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R v. Kilikavioyak, 2016 NUCJ 21 Date: 20160817 Docket: 23-16-31; 23-16-23 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused Gavin Kilikavioyak ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): Sarah Arngna'naaq Counsel (Accused): Jonathan Park Location Heard: Kugluktuk, Nunavut Date Heard: August 8, 2016 Matters: Criminal Code of Canada , RSC 1985, c C-46, s. 145; s. 226 (x2); s. 334 ; Sentencing REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Amended Decision: An amended decision was issued on August 22, 2016; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [ 1 ] Mr. Kililavioyak has plead guilty to two sets of charges: an incident on March 5, 2016, of assault on his child and an incident on March 27, 2016, that gave rise to charges of assault, theft, and two breaches of court orders. [ 2 ] At the sentencing, I directed that the Victim of Crime Surcharge [VCS] be concurrent on the four charges arising from the incident on March 27th.

These are my reasons for finding that the Victim Crime Surcharge can be concurrent. II. ISSUE [ 3 ] The issue is whether Victim of Crime Surcharges on multiple convictions can be ordered to be concurrent to each other, the result being that the amount payable is reduced. III. POSITIONS OF THE PARTIES A. Crown [ 4 ] The Crown submits that the mandatory nature of VCS’ was Parliament’s response to a judicial culture in which VCS’ were all too frequently waived without any consideration to those factors that were relevant to determining whether waiver was appropriate.

The Crown argues that ordering VCS’ to run concurrently will undermine the intent of Parliament to remove discretion from the sentencing judge in relation to VCS’. B. Defence [ 5 ] The Defence argues that there is no prohibition on directing that VCS’ run concurrently and that the sentencing principles regarding the imposition of concurrent sentences should also apply to VCS’. IV. ANALYSIS [ 6 ] The Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code] provides: s. 737(1) An offender who is convicted, or discharged under

section 730, of an offence under this Act or the Controlled Drugs and Substances Act shall pay a victim surcharge in addition to any other punishment imposed on the offender.

(2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is

a) 30 percent of any fine that is imposed on the offender for the offence; or

b) if no fine is imposed on the offender for the offence, (i) $100 in the case of an offence punishable by

summary conviction, and (ii) $200 in the case of an offence punishable by indictment.

(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount. [1] [ 7 ]

Section 718.3 of the Criminal Code provides that where different degrees or kinds of punishment are prescribed for an offence, the punishment imposed is in the discretion of the court, subject to any limitations set out in the Criminal Code .

It also sets out the circumstances under which the court may impose consecutive terms of imprisonment. [ 8 ] The issue of concurrent VCS’ was recently considered in the matter of R v Fedele , 2016 ONSC 2305 , [2016] OJ No 3661 [Fedele] . [ 9 ] The court in Fedele found that VCS’ are in the nature of ancillary orders, similar to driving prohibitions, firearms prohibitions, DNA orders and such. [ 10 ] I agree with the reasoning in Fedele that VCS’ are in the nature of ancillary orders.

While it may be argued that they address the sentencing principle of acknowledging the harm done to victims, and in that way might be considered part of the sentence imposed, in my view they are more akin to ancillary orders, which tend to be aimed at protective measures for the future and broader societal interests. The broader societal interest is ensuring that victims of crime are provided with the necessary supports and services to assist them in their recovery. [ 11 ] In Fedele , the court then reviewed the case law and determined that ancillary orders frequently run concurrently.

For example, a single driving prohibition will be issued when an offender has been convicted of multiple offences which give rise to a driving prohibition, but the sentences on the charges are running concurrently. [ 12 ] The principles applicable to the imposition of concurrent sentences are well known.

There must be a nexus between the offences or, in those instances where there are multiple offences, the principle of totality may result in the imposition of concurrent sentences. [ 13 ] In Fedele , the court found that ancillary orders supplement the sentence imposed for convictions and, as such, should be treated similarly to the convictions which they flow from. Accordingly, if the sentences run concurrently so should the VCS’ which flow from those convictions. [ 14 ] In this jurisdiction, concurrent sentences are routinely imposed where one incident or transaction gives rise to multiple charges.

Frequently, these multiple charges consist of what would be referred to as a “substantive offence”, such as an assault, and offences against the administration of justice, such as a breach of probation or a breach of undertaking for failing to keep the peace and be of good behaviour. This is perhaps the clearest example of there being one incident, one victim, and, yet, multiple charges and potentially the payment of multiple VCS’. [ 15 ] The argument has been made that since VCS’ are monetary orders, they should be treated similarly to fines, which cannot be

ordered concurrently. This issue is also addressed in Fedele , which suggests that there is no reason in principle why fines could not be ordered concurrently (see para 43). Further, in my view, the issue is less of a concern when considering fines, as there are no offences for which there is a mandatory minimum fine. Accordingly, the sentencing judge retains the discretion to tailor the amount of any fines payable to also comply with the sentencing principle of totality. Such is not the case with VCS’. V.

CONCLUSION [ 16 ] In conclusion, I find that the VCS is in the nature of an ancillary order and that the principles regarding the imposition of concurrent sentences may be applied to VCS’, such that they may be ordered concurrently. Dated at the City of Iqaluit this 17th day of August, 2016 ___________________ Justice S.

Cooper Nunavut Court of Justice _______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Madam Justice Cooper _______________________________________________________ All references to the accused where the accused has been named has been amended from “Kililavioyak” to “Kilikavioyak” On the frontispiece, the docket numbers have been corrected from “23-26-31; 23-16-23” to “23-16-31; 23-16-23.” On the frontispiece, the Counsel (Accused) has been corrected from Joanna Goldenberg to Jonathan Park.

Please replace the amended pages in your hard copy of the judgment.