R. v. Ehaloak, 2017 NUCA 4

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. Ehaloak, 2017 NUCA 4 Date: 20170620 Docket: 21-17-115-CAS Registry: Iqaluit Respondent: Her Majesty the Queen -and- Appellant: Gregory Ehaloak ________________________________________________________________________ Before: The Honourable Mr. Justice Grist Counsel (Respondent): Abel Dion Counsel (Appellant): Sara Siebert Location Heard: Iqaluit, Nunavut Date Heard: May 29, 2017 Matters:

Summary Conviction Appeal Criminal Code ,

Section 733.1

(1) Failure to Comply with Probation Order REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] This appeal is from a sentence imposed January 11, 2017 at Cambridge Bay, Nunavut, after a guilty plea to a charge of breach of a condition of a probation order put in place November 20, 2015. The probation order followed a guilty plea to two counts of assault and a breach of a previous probation order. [ 2 ] The sentence imposed in November 2015, after 10 days’ credit for time served, was 110 days’ imprisonment. The victims of the two assaults were the accused's common-law partner [D.A.] and her mother.

The probation order accompanying this sentence was for a term of 12 months and contained the following condition: 6.

You may only have such contact with [D.A.] as approved by your probation officer and your probation officer must consult with [D.A.] and follow her wishes as to contact. [ 3 ] Breach of this condition founded the charge, the subject of the guilty plea, entered January 9, 2017; and the sentence imposed January 11, 2017. [ 4 ] The sentence imposed on that day is recorded on the endorsement to the information as imprisonment for one year with 119 days’ credit, resulting in 246 days remaining to be served.

The credited portion of the sentence comprised of 59 days for time served and 60 days of further credit for having entered a guilty plea. In imposing the sentence, the sentencing judge said, at pp. 62–63 of the transcript of the sentencing proceedings: Stand up, please, Mr. Ehaloak. The just and proper sentence in this case is one year in jail less 119 days of credit I have outlined. You shall serve a further 246 days in Territorial jail. And I hope this is the last time, sir, we ever have to see you here again. Good luck. Taima. II. SYRACUSE CRIMINAL RECORD [ 5 ] The accused is now 31 years of age.

His adult record includes a steady litany of convictions, many for various forms of assault, uttering threats and conflicts with police officers. Many of the sentences imposed were accompanied by probation orders which were subsequently breached by the commission of further substantial offences on Mr. Ehaloak’s release from the jail portion of the sentence. [ 6 ] Mr. Ehaloak's relationship with D.A. has been marked by convictions for common assault on August 11, 2014 and November 20, 2015; and a conviction for assault causing bodily harm in June 2016.

The last resulted in a jail sentence of 180 days, less 43 days for time served. This was accompanied by a concurrent sentence of 60 days for breach of the probation order outstanding at the time of the assault.

[ 7 ] While serving the sentence, Mr. Ehaloak was charged and pled guilty to a further breach of probation for contacting D.A. by way of a letter sent from jail expressing that he cared for both her and their young child. This was in breach of a no contact provision outstanding at the time, but not threatening or received as being menacing or inappropriate by D.A. [ 8 ] This communication resulted in the last of the convictions prior to the charge dealt with by the sentencing judge. Mr. Ehaloak pled guilty to the breach and the sentence of 45 days consecutive to the sentence being served was imposed. Mr.

Ehaloak was also warned that the restrictive provisions of the outstanding probation orders remained in effect, and he said that he understood this. III. THE CIRCUMSTANCES OF THE OFFENCE [ 9 ] Mr. Ehaloak returned to Cambridge Bay, his home community, following his release from custody after serving the 45-day sentence. He was met by RCMP officers who reminded him that he remained the subject of orders restricting his contact with D.A. Soon after his return, however, on the weekend of December 3, 2016, D.A. contacted Mr. Ehaloak and asked him to come to where she was residing.

In a letter dated December 4, 2016, D.A. provided to defence counsel, entered as Exhibit 3, she set out the following: To whom it may concern, I [D.A.] would like to revoke the Peace Bond against Greg Ehaloak. As a couple we would like to enroll in therapy and work towards earning custody of our daughter [B.]. I am committed to making the relationship work, becoming sober and working towards living a healthy lifestyle. We have talked about our future and we see ourselves together. I need him to help me pay the bills that we owe and I can't do that alone.

I understand meeting with him without consent of his probation officer was wrong but it was the weekend and there was no one to talk to. We just want to be a family again. Sincerely, [D.A.] [ 10 ] The reference in the last paragraph is to the still outstanding condition of the November 20, 2015 probation order restraining contact to that organized by the supervising probation officer. [ 11 ] There was no conflict between Mr. Ehaloak and D.A. when he attended. Mr.

Ehaloak had purchased and brought some items for D.A. and their child and was invited into the home by D.A. where he was discovered by police officers checking on the situation. IV. COUNSEL SUBMISSIONS ON SENTENCING [ 12 ] When the case was called, counsel advised they had conducted extensive discussions towards resolution of the outstanding charges. The accused was to enter a guilty plea to breach of condition 6 of the November 2015 probation order and the Crown would withdraw the other related charges on a successful disposition.

The submissions on sentence did not amount to a joint submission but the ranges presented were reasonably similar. The Crown suggested four to five months’ incarceration; the defence argued for one to two months. [ 13 ] Both submissions related that Mr. Ehaloak, despite his extensive court history, had not been assessed in respect of possible mental health issues and there had been minimal contact with Community Corrections. Nothing had been put in place to attempt to deal with his

reoccurring pattern of offending. At p. 9 of the transcript, Mr. Punter for the Crown said for: I believe that everybody in the community would like something better to happen for Mr. Ehaloak. The probation officer, who is here, and I’ve had discussions with her on several occasions, is – quite honestly at wits’ end in how to assist Mr. Ehaloak. They would like to. [ 14 ] Ms.

Goldenberg, for the defence, outlined that her client had, during previous periods of incarceration, been willing to undertake counselling, but that programs had not been available and nothing had been undertaken. [ 15 ] She summarized her submissions at p. 30 of the transcript: So in my submission, if we are really looking at protecting the public here, not having this dangerous man in their midst, it’s not an answer just to send him to custody because as Your Honour said, he will eventually be released. It’s not an answer to exile him from Cambridge Bay.

What really needs to be done is to get him treatment that – that assists him to deal with these issues. V. THE COMMUNITY CORRECTIONS LETTER [ 16 ] Exhibit 2 in the proceedings was a December 12, 2016 letter from A. Etienne, the Regional Supervisor, Community Corrections and M.L. Uviluq, the local Community Corrections Officer. The last two paras. of the letter read: We are concerned about his habit of consistently breaching his court orders with violent threats and actions. He make promises to the Court to follow his conditions but those promises are immediately broken.

Normally, as CCO’s we would do our best to help our client look at the pattern and find out why there is such a pattern. We then refer our client to other avenues of help in and outside of the community, if need be. We have not been able to do this with GE. Further to this, because of his short incarcerations, he has not been anywhere long enough to receive the help he needs (assessment from Mental Health or treatment or medication if necessary) to help break this cycle.

There are people and agencies in this community that would like to see GE get the help he needs to become a contributing member of the community. He has a 2 year old daughter that needs to have her father in her life; but he needs to get some help in order to be there for her. We are respectfully asking that Gregory EHALOAK be required to participate in an assessment to attend an appropriate treatment facility that can help him. VI. DISPOSITION ON SENTENCING [ 17 ] During the first day of the proceedings, the accused became belligerent and was taken into custody, and the case called the following morning.

Further submissions were made and the following day, sentence was imposed and reasons given. [ 18 ] The sentencing judge stressed the need to enforce the provisions of the probation order, and court orders in general, to sustain these orders as effective means of regulating the behaviour of persons convicted of or charged with criminal offences.

He said at p. 56: First and foremost the sentence I impose must emphasize denunciation and deterrence. [ 19 ] He found the accused's behaviour in disregarding orders in general and in particular in respect of the order founding the charge, to be egregious and a threat to D.A., who he said at p. 57, “needs this court's protection whether she realizes it or not.” [ 20 ] The sentencing judge stressed proportionality which in light of what was held to be the serious nature of the breach, mandated a more significant period of incarceration than put forward by counsel. [ 21 ] In dealing with the fact that Mr.

Ehaloak was Inuk and the need to consider s. 718.2 (

e) of the Criminal Code , and the comments of

the Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, the sentencing judge said (at p. 62): … Gladue is a constant reminder to everyone in our justice system. It reminds us that justice, if it is to approach true justice, must berooted in the community it serves. Gladue informs every decision we make at every level. It is the lens through which we look at everycase. Every sentence of the Nunavut Court of Justice involving and Inuk is a Gladue sentence.

So there is never a specific Gladue creditand foremost the sentence I impose must emphasize denunciation and deterrence. [22] The sentence was imposed (at pp. 62-63) as follows: … The just and proper sentence in this case is one year in jail less 119 days of credit I have outlined. [23] As previously indicated, the 119 days included specific credit for 59 days for time served and 60 days for having entered a guiltyplea. The sentence was accompanied by a probation order of 24 months’ duration.

The contact restriction with reference to D.A. allowedfor contact in the presence of a sober third party adult with a direction that the accused leave D.A.’s presence for 24 hours if told to do soby D.A. or the police. VII. GROUNDS FOR APPEAL [24] The grounds advanced were as follows:: 1. an error in imposing a custodial sentence significantly outside the range proposed by counsel and without providing counsel anadequate opportunity to make submissions addressing the proposed increase in the sentence; 2. a failure to properly apply s. 718.2(

e) of the Criminal Code in accord with Gladue and Ipeelee; and 3. a failure to give effect to the mitigating factors and principles restraining the severity of sentence indicated in s. 718(2) of theCriminal Code. [25] The sentence is subject to review if arrived at through an error of principle, a failure to consider a relevant factor, or overemphasisof a relevant factor; or through misapplication of the principles enumerated in ss. 718 to 718.2 of the Criminal Code; or where thesentence imposed is demonstrably unfit (see R. v. Keough, 2012 ABCA 14 [Keough] at para. 16). VIII. DISCUSSION A.

Specific Credit for a Guilty Plea [26] As a first comment, I find the means for determining the length of sentence in this case, by giving a specific credit for having dealtwith the matter by a guilty plea, to be in error and contrary to the sentencing process indicated in s. 718. [27] The guilty plea is a mitigating factor to be taken into account in assessing the sentence to be imposed, as would be other mitigatingand aggravating features on sentencing, and not a credit to be applied against the otherwise “just and proper sentence”. [28] The distinction is not entirely an esoteric one.

The accused's release date and the date an accused might be placed on mandatorysupervision were not affected, but the record of conviction will show a sentence greater than would be shown through the traditionalsentencing process. Consistency in appreciating and comparing sentences is challenged. The sentence in this case should have been

expressed as 10 months’ incarceration with a credit for 59 days for time served. [ 29 ] In particularly sensitive cases the availability of a community sentence order or the classification for corrections purposes, or conformity with minimum sentences, may be put into question. B.

Fitness of the Sentence Imposed [ 30 ] The submission of greater significance relating to the sentence imposed in this case is that the sentence was unfit, through an overemphasis of the principles of deterrence and denunciation, and the overemphasis of the aggravating factors by way of the accused's criminal record and past breaches of court orders. [ 31 ] The appellant says this result was at least in part the consequence of failing to employ a procedure of notifying counsel that their recommendations may not be followed, and taking further submissions relating to the significant increase in sentence being considered. [ 32 ] Secondly, the appellant says the sentencing judge erred as a result of a failure to take the initiative to consider individualized and innovative features of sentencing that would help avoid the approach taken, that of significantly increasing the duration all of incarceration.

This alternate course is said by the appellant to have been required by s. 718.2 (

e) of the Criminal Code , a provision specifically enacted to be applied in sentencing of Indigenous offenders. [ 33 ] The danger associated with exceeding the ranges indicated by counsel is the impact this may have on counsel's efforts to resolve disposition of cases before the courts. Responsible counsel will, in the course of considering disposition by a guilty plea, consult on the range of sentence to be recommended and secure assurances in this regard. This is a useful exercise even if complete agreement cannot be finalized by way of a joint submission.

The importance of supporting this process, targeted on disposition, has been the subject of numerous judicial comments and the process is one particularly valuable to the Northern Courts. [ 34 ] In R. v. Burke , 2016 SKCA 100 at para. 7 , the court said: [7] … [T]he sentencing judge's decision to depart from the range put forward by counsel without seeking submissions from counsel, in a general sense, is fraught with potential problems. Sentencing judges must proceed cautiously when stepping outside the recommendations of counsel. In this regard, see R v. Burback , 2012 ABCA 30 at para 15 , 522 AR 352, and R v.

Hagan , 2011 ONCA 749 , at para 5 . [ 35 ] In Keough , at para. 19 , the court said: [19] Sentencing takes place in an adversarial context. It is anticipated that in most cases the sentence imposed will fall at the boundaries, or within the range of sentences recommended by counsel. While there is no legal requirement that the sentencing judge stay within that range, or adopt the recommended structure of the sentences, it is of concern when that is not done. As the Court observed in R. v.

S.G.T. , 2010 SCC 20 at paras. 36-7 , [2010] 1 SCR 688: "... trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party." The accused is entitled to reasonable notice of the jeopardy he faces, and a fair opportunity to make submissions. The Crown is also entitled to a reasonable opportunity to explain its position.

Where the Crown makes a recommendation that the accused finds to be acceptable or fair, both sides may believe the point is not in contention, and the accused may not make any submissions on the point; a subsequent sentence inconsistent with that recommendation can catch both parties by surprise. An accused who receives a sentence outside the recommended range may in such circumstances harbour a feeling of unfairness and injustice. [ 36 ] The situation is not far different from that of a court presented with a joint submission.

The significance of such a presentation is the subject of the recent Supreme Court of Canada decision in R. v. Anthony-Cook , 2016 SCC 43 . In my view, the procedure when dealing with both of these sorts of presentations should be similar. Counsel should be informed the court sees qualities of the case that may prompt a more stringent range of sentence than presented by the Crown.

Submissions should be requested from counsel; and, in appropriate cases, there may be cause for withdrawal of the plea. [ 37 ] Further submissions from counsel can be particularly valuable because they may highlight authority that has not, to that point, been cited. I have had the advantage on this appeal of case authority speaking to ranges appropriate to cases of breach of court orders and

undertakings that the sentencing judge did not have when he imposed sentence in this case. [ 38 ] Authorities are not particularly easy to find. Often the sentence imposed is of lesser significance because the sentence is concurrent to a substantive offence associated with the breach, but R. v. Nichols , [2007] N.J. No. 180 (Nfld. P.C.) is a useful analysis of appropriate sentences.

At para. 47 of that case, the court discussed a number of other cases and commented that the range was within one to three months. [ 39 ] The sentencing judge clearly expressed his reservations in respect of the recommendations of counsel but he did not expressly indicate a sentence of the severity he actually imposed, with the invitation for further submissions. Notwithstanding this was not done, the result must still be an unfit sentence before an appeal court will intervene.

Keough at para. 20 states: [20] The case law recognizes the importance of a trial judge giving fair warning to counsel when he or she proposes to sentence outside the recommended range: R. v. Hood , 2011 ABCA 169 at para. 15 ; R. v. Abel , 2011 NWTCA 4 at para. 23 ; R. v. Beal, 2011 ABCA 35 at paras. 15 , 18, 502 AR 177, 44 Alta LR (5th) 306. This is a component of a wider principle that the parties are entitled to reasonable notice if the judge proposes to decide the case in a way not advocated by either party: R. v. Al-Fartossy , 2007 ABCA 427 at paras. 22-5 , 83 Alta LR (4th) 214, 425 AR 336; Murphy v.

Wyatt , [2011] EWCA Civ 408, [2011] 1 WLR 2129 at paras. 13-19 ; Labatt Brewing Co. v. NHL Enterprises Canada , 2011 ONCA 511 at paras. 5 , 14, 106 OR (3d) 677; In Re Lawrence's Will Trusts , [1972] Ch 418 at p. 436-7 . Nevertheless, the sentencing judge has an obligation to impose a fit sentence, and neither exceeding the recommended range, nor failing to give counsel notice of intention to exceed the range, is, without more, reviewable error. If the sentence imposed is not demonstrably unfit having regard to the principles of sentencing in the Criminal Code , appellate interference is not warranted.

Failing to seek the input of counsel may, however, make it more likely that the trial judge may overlook or overemphasize the relevant factors, rely on an irrelevant factor, impose a sentence based on an error in principle, or commit some other reviewable error. [ 40 ] Fitness of the sentence in this case focuses on whether the sentencing judge overemphasized deterrence and denunciation in finding that the record of numerous prior breaches prompted an exasperated recourse to the dramatic increase over previous sentences imposed upon the accused. [ 41 ] There were perhaps 30 previous breaches of court orders on the accused’s record, but the last two breaches were, in my view, of a different quality.

They were not associated with assaults or the commission of other criminal offences. They were standalone charges not associated with threatening behaviour; and in the case of the breach prompting this sentence, consisted of contact initiated by D.A., Mr. Ehaloak’s common-law partner. There is culpability in that the accused was specifically warned against contact. On the prior occasion, involving the letter from jail, Mr.

Ehaloak was given what was, in my view, a stiff sentence, 45 days; and an increase was perhaps in order, but the increase by way of the sentence imposed was five times greater than the previous one; and, in my view, was excessive. [ 42 ] The sentencing judge clearly classified the accused is a dangerous individual and that D.A. was in need of protection, “whether she wants it or not”.

There is ample cause for concern inherent in the past offences and particularly the assaults on D.A., but the present offence was not of the same violent nature and the marked increase in the duration of the sentence amounts more to further consequences for past offences than a just disposition of the offence before the court. [ 43 ] The appellant also argues that the sentence failed to follow the direction given in s. 718.2(e), with respect to the sentencing of Aboriginal offenders. I find the sentencing judge's comments at p. 62 of the transcript difficult to follow.

It is true by definition that every sentence of the Nunavut Court of Justice involving an Inuk is a Gladue sentence, but the sentence that follows, “so there is never a specific Gladue credit”, is troubling. [ 44 ] The reference to a “ Gladue credit” is a somewhat cynical comment relating to the directions to trial judges indicated in Gladue and Ipeelee . These cases emphasize the need for individualized and innovative sentencing to break the reliance on an ever increasing size of hammer in dealing with repeat Aboriginal offenders. The result hopefully will be less reliance on incarceration.

This in Nunavut should result in there more commonly being a Gladue emphasis on sentencing. [ 45 ] It may be that I misunderstand this rather cryptic comment, but nonetheless, in my view, this case illustrates a lost opportunity to attempt to appreciate the personal history and systemic and background factors influencing this offender. The sentencing judge acknowledges at p. 53 of the transcript that he did not know very much about the accused.

Both counsel emphasized the accused had never been subject to an assessment, and may have issues with mental health, and had never been given programming during the history of his periods of incarceration. Before considering the marked increase in sentence that was eventually imposed, I suggest the court might have used the opportunity to require a Pre-Sentence Report to better understand the accused’s behaviour.

[ 46 ] By way of disposition, I grant leave to appeal and allow the sentence appeal. I view the circumstances as giving rise to no more incarceration than recommended by Crown counsel, which is essentially satisfied by time served. [ 47 ] I think there is also cause to revisit the probation order imposed. I see little merit in imposing more than a one-year period of probation, and the terms with respect to contact between Mr. Ehaloak and Ms.

D.A. should not require the presence of a third-party adult through most of the period of probation if they are intent on resuming their relationship. [ 48 ] I directed that Mr. Ehaloak and Ms. D.A. not be in direct contact without the presence of a third party sober adult until they have participated in at least three sessions of relationship counselling to be arranged by the supervising probation officer. The provision requiring Mr. Ehaloak to leave for 24 hours when requested to do so by Ms. D.A. or the police should remain in effect. [ 49 ] Lastly, I require Mr.

Ehaloak to attend forthwith on his release to the Probation Office servicing Cambridge Bay, and to attend thereafter as directed and undertake any assessment or counselling recommended. To facilitate this, I will ask counsel to arrange for the earliest appointment available and will direct the accused's release in a manner that this appointment can be made without delay on his transport back to Cambridge Bay. Dated at the City of Iqaluit this 20th day of June, 2017 ___________________ Justice W.G. Grist Nunavut Court of Justice Appearances: S. Siebert for the Appellant

A. Dion for the Respondent