R. v. Oakoak, 2011 NUCA 04

In the Court of Appeal of Nunavut Citation: R. v. Oakoak, 2011 NUCA 04 Date: 2011-07-14 Docket: 21-09-008 CAS Registry: Iqaluit Between: TONY OAKOAK Appellant -and- Her Majesty The Queen Respondent _______________________________________________________ The Court: The Honourable Justice L.A. Charbonneau Memorandum of Judgment Appeal from a sentence imposed on June 3, 2009, by The Honourable Justice Sharkey I. INTRODUCTION [ 1 ] Tony Oakoak appeals from a sentence he received on June 3, 2009, for two charges of breach of Probation. He was sentenced to 45 days in jail for those offences.

He was released on bail pending appeal, with the consent of the Crown, on June 11, 2009. He was placed on a Recognizance for $2000.00, without deposit, with a number of conditions.

[ 2 ] Mr. Oakoak does not argue that the sentence he received was demonstrably unfit. Rather, he argues that the Sentencing Judge erred in principle by failing to adequately address and consider his circumstances as an aboriginal offender, by overemphasizing specific deterrence as a sentencing objective, and by placing insufficient emphasis on his rehabilitation. II. OVERVIEW OF FACTS [ 3 ] On June 5, 2008, Mr. Oakoak was sentenced for having assaulted his spouse on March 30, 2008.

He was also sentenced for having failed, on the same date, to comply with a term of a Probation Order that required that he abstain absolutely from the possession or consumption of alcohol. For those offenses Mr. Oakoak was sentenced to four months imprisonment, deemed served by the time he had spent in pre-trial custody, and was placed on Probation for 12 months. One of the terms of the Probation Order was that Mr. Oakoak communicate, associate or reside with his spouse only to the extent permitted, in writing, by his probation officer.

Another condition was that he abstain from the possession or consumption of alcohol. [ 4 ] On September 3, 2008, Mr. Oakoak assaulted his spouse again, and again was found in breach of the two Probation Orders that required him to abstain from the possession or consumption of alcohol. [ 5 ] On November 3, 2008, Mr. Oakoak was sentenced for the assault and breach charges. In addition to the time he had spent in pre- trial custody, he received a further term of imprisonment of two months on each charge, to be served concurrently. This was again to be followed by a term of Probation for a period of 1 year.

Two of the conditions in that Order addressed the extent to which Mr. Oakoak could have contact with his spouse. Those conditions read as follows: 5. You must have no direct or indirect contact with Anna Atighioyak unless you have written permission or Annie Atighioyak has a written permission and if the probation officers approve it. (...) 7.

You must immediately leave the presence of Anna Atighioyak when you are requested to do so by her, or a member of the RCMP, and you must have no further contact with this person for a period of twenty-four hours following such a request. [ 6 ] On February 12, 2009, a police officer who was on patrol in Cambridge Bay stopped a skidoo which he had seen being driven without due care and attention, going through stop signs and cutting through intersections. Mr. Oakoak was driving the skidoo and his spouse was the passenger. Mr.

Oakoak admitted that he did not have permission from the probation officer to be in the presence of his spouse, and stated that they were together because she wanted to see their children and he was taking her there. Mr. Oakoak was charged with having breached his two Probation Orders by being in the presence of his spouse without permission from his probation officer. [ 7 ] At the sentencing hearing on June 3, 2009, the Sentencing Judge was advised that by then, Mr. Oakoak and his spouse had resumed cohabitation, with the permission of the probation officer. The Crown noted Mr.

Oakoak’s extensive criminal record and expressed concern over the effect that repeated breaches of court orders could have on the administration of justice. The Crown argued that the Court’s sentence should deter Mr. Oakoak from thinking that he could continue to disregard his Probation conditions. The Crown sought a short jail term for the two breach charges. [ 8 ] Mr. Oakoak’s counsel told the Sentencing Judge that Mr. Oakoak was not the one who initiated contact on the day in question. At the time, the Department of Social Services had placed the couple’s children in his care, and Mr.

Oakoak had given his spouse a ride on his skidoo because she wanted to see the children and could only do so with another adult present. Counsel submitted that Mr. Oakoak had regular employment and that it would be counterproductive, and harmful to the family, if he was sent to jail. Counsel suggested that a fine would be an appropriate sentence in all the circumstances. [ 9 ] The Sentencing Judge imposed a jail term of 45 days on each count, to be served concurrently. His Reasons for Sentence were relatively brief, and can be reproduced in full:

Mr. Oakoak, when I heard the crown attorney ask for a short period of jail and I looked at your record for continual assaults upon yourwife: I see you placed on probation, I see blatant, flagrant violations of that probation on your record. I see on your record of convictionsfor drinking when you weren’t supposed to, when probation ordered you not to drink, and my first reaction was that I would give you ashort term of jail, three months on each charge. I have heard your lawyer speak. I understand the dynamic here.

I understand it is difficult and that these clauses in the order from time totime do allow you to be in contact with your wife. I understand, too, that there is some dysfunction in the family and that you have had to actually look out for the kids. These factors aregoing to reduce what I would otherwise do. I had a case in front of me the other day where a man assaulted a police officer and for that you go to jail. The problem was there thatthe police officer got to the house because the man had cut his throat and he was fighting them in an attempt to get away.

It is onlybecause it was a suicide attempt that I did not put him in jail and it is only because of what your lawyer said that I am not going to putyou in jail for six months. I am going to put you in jail for 45 days as of today. This is not a paper chase. You have to realize that you had to be proactive and wakeup. These orders have to mean something. Thank you. That’s on both counts. [10] Defence counsel then asked that Mr. Oakoak be permitted to serve the sentence intermittently, given his employment.

TheSentencing Judge declined to allow this because he did not consider it practically workable, given the nature of Mr. Oakoak’semployment. The Sentencing Judge reiterated that but for the submissions of defence counsel, the sentence imposed would have beenmuch longer. III. ANALYSIS A. Standard of review [11] It is a well established principle that sentencing is a highly discretionary exercise,that it is profoundly contextual, and that appellatecourts must show great deference when reviewing sentencing decisions. R. v.

LM, 2008 SCC 31 , [2008] 2 S.C.R. 163. [12] Notwithstanding this highly deferential standard, appellate courts may intervene if it is demonstrated that the Sentencing Judgemade an error in principle in the process that led to the imposition of the sentence. The failure to take into account a relevant sentencingprinciple or the overemphasis of a relevant factor are errors in principle that justify appellate intervention. R. v. McDonnell, (SCC), [1997] 1 SCR 948; R. v. T.(B.), 2007 NUCA 3 , 2007 NUCA 03; R. v. Etuangat, 2009 NUCA 1. B. Fresh evidence [13] Mr.

Oakoak alleges that one of the errors that the Sentencing Judge committed was that he failed to give proper effect to thesentencing principle set out at Paragraph 718.2(

e) of the Criminal Code, and to the fact that he is an aboriginal offender. In his Factum,he appears to suggest that this Court ought to order that a report be prepared and adduced as fresh evidence on this appeal, to provideadditional evidence about Mr. Oakoak’s circumstances as an Inuk offender. The matter was not pressed at the hearing of the appeal,but it was not abandoned entirely, so I must address it. [14] The suggestion that this Court order the preparation of a report at this stage is problematic from several points of view.

If this wasgoing to be pursued at all, an application should have been brought well in advance of the hearing of the appeal. In fact, it appears thatsuch an application was filed by Mr. Oakoak’s previous counsel, was scheduled to be heard, and was abandoned. If Mr. Oakoak’s newcounsel wished to pursue this avenue, a new application should have been filed, and arrangements should have been made to have itheard in advance of the hearing of the appeal. [15] Furthermore, to the extent that it is suggested that this Court should order a report to address these issues because counsel did not

ask for one, the Sentencing Judge did not order one on his own motion, and that such a report was required for the Sentencing Judge todischarge his duties, I wish to make a few observations, which are relevant as well to some of the other issues raised in this appeal. [16] The suggestion that a Pre-Sentence Report should be ordered when sentencing an aboriginal offender stems from the SupremeCourt of Canada’s

interpretation of

section 718.2(

e) of the Criminal Code. That provision reads as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (...) (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [17] In R. v. Gladue, (SCC), [1999] 1 SCR 688, the Supreme Court of Canada analyzed this provision in depth. TheSupreme Court found that

section 718.2(

e) mandates restraint in the use of incarceration as a sentencing tool generally, but especially sowhen dealing with an aboriginal offender. The Court concluded that it is a remedial provision designed to address the problem of over-incarceration in Canada, with a specific focus on the over-representation of aboriginal offenders in Canadian jails. [18] The Supreme Court found that this provision means that judges must approach the sentencing of aboriginal offenders differently,because of their unique circumstances, and in particular, to consider any systemic or background factors that may have played a

part inbringing them before the courts, as well as the types of sentencing procedure and sanctions that may be appropriate in theircircumstances, given their particular aboriginal heritage.

When sentencing an aboriginal offender, courts must approach their taskthrough a different lens, one that takes into account both the factors that led to the offender coming into conflict with the law, and theissue of what is an appropriate, meaningful sanction for the offending behavior in the offender’s community. [19] To properly engage in this analysis, sentencing judges require information about the offender, his or her background, and thecommunity.

The Supreme Court recognized that judges could take judicial notice of the broad systemic and background factors affectingaboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. It stated that additional case-specific information would come from counsel, from pre-sentence reports, and from additional evidence, where appropriate. R. v.Gladue, supra, at paras 83-84. [20] In his Factum, Mr.

Oakoak notes that the Sentencing Judge did not have the benefit of a “Gladue report” - this is the term used insome jurisdictions to describe a Pre-Sentence Report that targets specifically the factors set out in Gladue - and suggests that it may benecessary for this Court to order one to examine whether the sentence imposed was appropriate. Mr. Oakoak relies on Gladue and on theOntario Court of Appeal decision in R. v. Kakekagamick (ON CA), [2006] O.J. No. 3346 (Ont. C.A.) [21] The Supreme Court of Canada made it clear that

section 718.2(

e) places a positive duty on counsel to provide adequate informationto the sentencing Court to enable it to carry out the required analysis when sentencing an aboriginal offender. If counsel fail to providethis information, the sentencing judge may of his or her own motion order the preparation of a report to ensure that this information isgathered and presented; and if counsel and the sentencing judge do not, the appellate court may have to, as the Ontario Court of Appealdid in Kakekagamik. [22] In this case, no request for a Pre-Sentence Report was made at the sentencing hearing.

Nor did the Sentencing Judge order one onhis own motion. In some circumstances, this could signal a failure on counsel’s part and on the Court’s part to recognize the relevanceand importance of Mr. Oakoak’s aboriginal heritage for sentencing purposes. But these matters cannot be examined at a purelytheoretical level, in a vacuum. They must be examined contextually. [23] What is the context here? Mr. Harte, the counsel who represented Mr. Oakoak, is a respected and experienced lawyer who residesin Cambridge Bay, the community where this sentencing hearing took place.

It was abundantly clear from his sentencing submissionsthat he had an excellent grasp of Mr. Oakoak’s personal and family circumstances, of the factors that were contributing to hiscommission of offenses, and of what had been done, to date, to approach his situation in as constructive and restorative a way aspossible. He was the counsel who had suggested that the Probation Order include conditions setting out the parameters whereby contactbetween Mr. Oakoak and his spouse could take place.

Indeed, these types of conditions are frequently sought, and included in ProbationOrders made in the Nunavut Court of Justice. As reflected at Paragraph 6 of Mr. Oakoak’s Factum, they are commonly referred to as the“Harte standard clause:” they are named after Mr. Harte because he was instrumental in developing this approach.

[ 24 ] Another important contextual factor is that the Nunavut Court of Justice travels regularly to Cambridge Bay, as it does to almost every community across the Nunavut Territory. In so doing, the Court acquires a familiarity with these communities and its members, the social problems that people have faced and continue to face, and with the sentencing options that are available in each community. While this was not the case in this particular community when Mr.

Oakoak was sentenced, in many communities, elders sit with the presiding Judge and have an opportunity to make comments and address the offender before the sentence is imposed. The unique context within which the Court operates is must be taken into account in assessing whether it has adequate and sufficient information to carry out the analysis mandated by

section 718.2 (

e) of the Criminal Code . [ 25 ] There may well be cases where it is necessary to have a Pre-Sentence Report report prepared, or other evidence called, to provide the court with sufficient information to adequately address the factors referred to in Gladue. But given the context within which the Nunavut Court of Justice operates, it is not a necessity in each case. The fact that a court works in a milieu that is predominantly aboriginal does not diminish the sentencing judge’s duty to give effect to

section 718.2 (e), but it may make it easier to obtain the type of knowledge that informs the analysis. R. v. Marie, 2009 NWTSC 55 , at para 30 . [ 26 ] For those reasons, I do not consider that in not seeking a Pre-Sentence Report, counsel failed to comply with the responsibilities referred to in Gladue. Nor was it an error for the Sentencing Judge not to order such a report on his own motion.

It follows that I do not think that it would be necessary, or appropriate, for this Court to order such a report at the appeal stage, some two years after the sentencing hearing took place, and delay matters even more than they already have been. As I have already mentioned, the Supreme Court recognized in Gladue that courts can take judicial notice of the fact that, in aboriginal cultures, priority is generally given to a restorative approach to conflict. Extensive delays in having matters dealt with is very much at odds with a restorative approach.

This is even more true in small, isolated communities, where people have little choice but to carry on with their lives in relatively close proximity, whether the criminal justice process has reached completion or not. [ 27 ] For those reasons, had the application to have a report prepared been properly pursued by way of application, I would not have been inclined to order one under the circumstances.

C) Failure to apply

section 718.2 (

e) of the Criminal Code , to consider all available sanctions other than imprisonment, and to consider the objective of rehabilitation [ 28 ] Mr. Oakoak argues that the Sentencing Judge erred in principle because he failed to approach his sentencing with the different lens mandated by

section 718.2(

e) of the Code, did not exercise sufficient restraint, and placed insufficient emphasis on the objective of rehabilitation. [ 29 ] In his brief Reasons for Judgment, the Sentencing Judge did not specifically refer to

section 718.2(

e) or to the Gladue decision. Nor did he refer specifically to the need to consider Mr. Oakoak’s rehabilitation, or alternatives to incarceration, in arriving at his decision. Of course, it is not uncommon for judges not to refer to every legal principle, every

section of the Criminal Code , and every aspect of the jurisprudence that they have considered in arriving at their decision, particularly in courts where several cases are heard, and decided, every day. The question is whether the Reasons that are provided do show that the sentencing judge considered proper factors in exercising his or her discretion. [ 30 ] Obviously, the Sentencing Judge was aware that Mr. Oakoak was an Inuk. To suggest otherwise would be preposterous.

In my view, it can also be inferred that the Sentencing Judge took judicial notice of the general systemic factors that impact on the population Cambridge Bay and other Inuit communities.

The Nunavut Court of Justice travels to these communities on a regular basis and hears, every week, about the circumstances of the people in those communities, the challenges they face, the social problems, and other issues such as housing shortages, addictions issues, and some of the factors that are at the root of these problems. [ 31 ] I am also satisfied that it can be inferred that the Sentencing Judge would necessarily have been aware of the various sentencing options available in communities where the Court travels on a regular basis. [ 32 ] While the Sentencing Judge did not make reference to

section 718.2(

e) of the Code or the Gladue principles, his Reasons for Sentence show that he did take into account Mr. Oakoak’s specific circumstances, background and struggles, as had been described by his counsel, including the conundrum posed by the dysfunction in the family, the underlying reasons for that dysfunction, and the fact Mr. Oakoak had been given responsibility for the care of the children.

[ 33 ] In addition, Mr. Oakoak’s argument assumes that the imposition of a short jail term was necessarily at odds with the principles outlined in Gladue. Again, it is important to examine the whole context of Mr. Oakoak’s situation, and some of the events that preceeded this sentencing hearing. [ 34 ] Mr. Oakoak has an extensive criminal record. Between 1984 and 1999, he was convicted numerous times for crimes of violence, including a number of convictions for crimes of violence against his spouse. He has received significant jail terms, some in the upper territorial range, for these and other types of offenses.

While there is a gap in his record between 1999 and 2007, he has been convicted of 3 further assaults between March 2007 and June 2009. At least two of those were on his spouse, Ms. Atighioyak. [ 35 ] His last two convictions for assaults on her were committed in circumstances where he was also in breach of his Probation condition not to consume alcohol. The sentences imposed on those occasions show that the Court exercised restraint.

The jail terms imposed were relatively short, despite the repeated nature of the conduct and the related record, and they were coupled with Probation Orders that were obviously intended to achieve restorative objectives, while ensuring some protection for Mr. Oakoak’s spouse. I do not have transcripts of those proceedings, and I do not know whether

section 718.2(

e) of the Code or the Gladue principles were specifically referred to in those sentencing decisions, but the sentences imposed demonstrate an attempt by the Court to be creative and balance the obvious need to protect Mr. Oakoak’s spouse from his violent behaviour and allowing, under certain specific controlled circumstances, the couple to work on their relationship and their issues if they both wished to do so. [ 36 ] That context is very important in assessing the sentence that was imposed in this case where Mr.

Oakoak, for the third time in a relatively short period, did not comply with the terms of his Probation Orders. [ 37 ] If the Court, as it must, approaches the sentencing of an aboriginal offender with a different lens, and attempts to foster restorative objectives by imposing shorter jail terms, even in the face of repeated instances of spousal violence, and by adding probationary terms that provide for strict monitoring of the contact between the offender and his spouse, those terms must be strictly enforced.

It really comes down to this: to maintain the integrity and legitimacy of this approach, the Court must enforce its own Orders. Otherwise, the very objectives that it is trying to achieve, which are fundamentally restorative, are seriously undermined. [ 38 ] Mr. Oakoak argues that this sentence was imposed out of frustration. Respectfully, I disagree. The Sentencing Judge was concerned, and rightfully so, that Mr. Oakoak had been bound by Probation Orders for some time and did not seem to attach any importance to the restrictions imposed on him by those Orders.

He demonstrated the same attitude on the day of this offence. Admittedly, the circumstances of the breach were less serious than if there had been a further assault against Ms. Atighioyak. Still, Mr. Oakoak’s behaviour showed, again, complete disregard for the conditions imposed by the Court. Since the very purpose of those conditions was to create a framework that would allow the parties to attempt to maintain their relationship while ensuring the protection of Ms. Atighioyak, it is hardly surprising that the Sentencing Judge was concerned about Mr.

Oakoak’s apparent lack of regard for his Probation conditions. [ 39 ] In my view, there is no basis to suggest that the Sentencing Judge did not consider alternatives to incarceration. In fact, in the subsequent exchange he had with counsel, he specifically said that he did consider other options, such as a fine. But he concluded that a jail term was required to bring home to Mr. Oakoak that he had to strictly comply with the terms of his Probation conditions. Given Mr.

Oakoak’s track record, including his track record in the recent past, this was not an unreasonable conclusion. [ 40 ] The fact that, by the time the sentencing hearing proceeded in June, the probation officer had given his permission for the couple to cohabitate again does not diminish the concerns about Mr. Oakoak’s failure to comply with the requirement to have that permission before having contact with her in February. At the time of the sentencing hearing, six months were left to the most recent Probation Order. The conditions of that Order were there to address concerns about Ms. Atighioyak’s safety.

Compliance with those conditions, in particular the no-alcohol condition and the requirement that Mr. Oakoak leave Ms. Atighioyak’s presence if she asked him to, continued to be very important. [ 41 ] The sentence was also not inconsistent with Mr. Oakoak’s rehabilitation. A sentence that takes into account rehabilitative objectives is not necessarily always the least intrusive. Mr. Oakoak’s earlier failure to comply with the terms of his Probation occurred in the context where he committed further assaults on his spouse.

The conditions of his Probation were designed to provide a framework that would limit his freedom in some respects, addressing the factors that placed him at a higher risk of offending, such as the consumption of alcohol. Ensuring that those conditions were strictly complied with was consistent with his rehabilitation, because further violent incidents involving his spouse would almost inevitably lead to the imposition of longer and longer jail terms.

[ 42 ] I also disagree with the assertion that the Sentencing Judge failed to show restraint. Having concluded that a jail term was necessary under the circumstances, he kept it to a minimum, especially considering the recent prior convictions for similar offenses. The Sentencing Judge specifically said that but for Mr. Oakoak’s circumstances as described by his counsel - which included submissions about the complexity and dysfunction of the family situation - he would have imposed a jail term in the range of six months. By reducing the length of the jail term significantly, the Sentencing Judge did exactly what

Section 718.1(

e) requires: he considered whether something other than imprisonment was appropriate, and when he concluded that a jail term had to be imposed, he reduced it as much as he felt he could under the circumstances. [ 43 ] Finally, I disagree with Mr. Oakoak’s argument that the Reasons for Sentence do not permit meaningful appellate review. The Reasons, while they are brief, disclose, in my view, what the Sentencing Judge was concerned about and why he concluded that the imposition of a short jail term was required under the circumstances.

While it is always preferable, and helpful, for sentencing judges to articulate their reasons more fully, and to specifically indicate what principles of sentencing they have considered and applied, the failure to do so does not necessarily amount to an error in principle. [ 44 ] I conclude that the Sentencing Judge did not commit any error in principle in this case. Because the sentence was fit, this conclusion would ordinarily be sufficient to dispose of this appeal.

But once again, this Court is faced with the very unsatisfactory and unfortunate situation whereby it has taken an inordinate period of time for this appeal to be heard. Dismissing Mr. Oakoak’s appeal means ordering his return to custody over two years after his sentencing hearing, and almost two and a half years after these

summary conviction offences were committed. [ 45 ] A similar situation arose in the case of R. v. Koaha, 2008 NUCA 1 . Mr. Koaha had been sentenced to a jail term of six months, to be followed by Probation for one year, on April 28, 2005. He had appealed from this sentence and had been granted bail pending appeal on May 31, 2005. By the time the appeal was heard on February 26, 2008, he had been on bail pending appeal for two years and nine months. I concluded that the Sentencing Judge had not committed any errors in principle in dealing with the case, and that the sentence imposed was fit.

In dealing with the significant delay in the appeal being heard, I said: There are of course serious concerns about allowing the passage of time, in circumstances such as this, to serve as a reason to reduce an otherwise fit sentence. I am very concerned that this may send the wrong message, the message that those on bail pending appeal will be rewarded for failing to advance their appeals in a timely fashion.

Generally speaking, those who seek bail pending appeal, whether on sentence appeals or on conviction appeals, run the risk of having to go back to jail to serve the remainder of their sentence if their appeal is not successful. There are strong policy reasons to not let people derive benefits from their own failure to advance their cases in a timely fashion. R. v. Koaha, supra, at para. 42 . [ 46 ] The same is true here. A person who has been sentenced to a relatively short jail term on a

summary conviction matter and who is on bail pending appeal may have little incentive to move expeditiously with the appeal. Sometimes it falls to the Crown to ensure that the matter moves along quickly. There are several ways to do this. First, at the time bail is spoken to, the Crown can seek deadlines for the filing of materials. Transcripts can be ordered on an expedited basis. Requests can be made to have the hearing of the appeal set down on an urgent basis. If the Appellant takes no steps to advance the matter, the Crown can apply to have the appeal dismissed for want of prosecution.

Rule 15(8) of the Rules of Court respecting civil appeals provides for such a process. Rule 2(3) of the Rules Respecting Criminal Appeal provides: 2. (...)

(3) In all matters not provided for by these Rules, the Rules of Court respecting civil appeals shall apply, mutatis mutandis, save that there shall be no cross-appeal. [ 47 ] It is therefore open to a Respondent to seek dismissal of an appeal for want of prosecution on criminal matters as well as on civil matters. [ 48 ] It is unacceptable that an appeal on a

summary conviction matter be pending for two or three years. This appeal was filed a matter of months after my decision in the Koaha was released. The fact that the strong concerns I expressed in that case appear to have had no effect on how the parties dealt with this appeal increases my concerns even more. Simply put, an offender who is granted bail pending

appeal and whose appeal is dismissed can ordinarily expect to go back to jail to serve the sentence that was originally imposed. I recognize that this represents hardship for the offender, especially if there has been a long delay, but the issue, again, is one of upholding the legitimacy of the process.

The more chronic the delays, the less likely it is that this Court will be receptive to pleas for special accommodations to be made on behalf of the offender to avoid the hardship of being returned to custody. [ 49 ] In this case, having considered all the circumstances, I will not reduce the sentence imposed at trial, but I will vary it to the extent that Mr. Oakoak will be permitted, pursuant to

section 742.1 of the Criminal Code , to serve the remainder of his jail term in the community. While his record for breaches of court orders is extensive, there is no indication that he has not complied with the conditions of his bail while his appeal has been pending. The conditions of the Conditional Sentence Order will include the compulsory conditions set out at

section 742.3 of the Code, as well as the following optional conditions, which mirror some of the conditions that are included in his existing Recognizance. These conditions are the following: - must immediately leave the presence of Anna Atighioyak when requested to do so by her, or a member of the RCMP, and then have no further contact with her for a period of twenty-four hours following such a request; - must communicate, associate and reside with Anna Atighioyak only to the extent permitted by the probation officer in writing.

If the probation officer decides that it is no longer appropriate for there to be contact, communication or cohabitation with Ms. Atighioyak, Mr. Oakoak must comply immediately with this direction and, if necessary, find alternate accommodations; - must abstain absolutely from the possession or consumption of alcohol or other intoxicants; - must not be in any premises licensed to sell alcohol. [ 50 ] I direct the Registrar to make the necessary arrangements to have the Conditional Sentence Order prepared and forwarded to Cambridge Bay so that Mr. Oakoak can sign it.

I further direct that a copy of the Order be faxed to Probation services in Cambridge Bay. It appears Mr. Oakoak served 11 days of his jail term before he was released on bail pending appeal, which means he has just over a month left to serve on his sentence. For the purposes of calculating the duration of Mr. Oakoak’s sentence, he will be deemed to start serving the remainder of his jail term when he signs the Conditional Sentence Order. Appeal heard on May 17, 2011 Reasons for Judgment filed at Iqaluit, Nunavut this 14th day of July, 2011 L.A. Charbonneau, J.A. Appearances: Tamara B. Fairchild

Counsel for the Appellant Leo Lane Counsel for the Respondent