2019 QCCQ 7115, 2019 QCCQ 7115

R. c. Tukkiapik 2019 QCCQ 7115 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI NORTHERN VILLAGE OF KUUJJUAQ « Criminal room » N° : 635-01-017846-198 635-01-017847-196 635-01-017848-194 635-01-017821-191 DATE : November 5, 2019 ______________________________________________________________________ BY THE HONOURABLE PAUL CHEVALIER, J.C.Q. ______________________________________________________________________ THE QUEEN Poursuivante c.

LARRY TUKKIAPIK Accused ______________________________________________________________________ SENTENCE ______________________________________________________________________ [ 1 ] The criminal justice system is aimed at trying to help people to live in peace by prosecuting and punishing those who commit crimes. [ 2 ] Mr.

Larry Tukkiapik, on September 19, 2019, pleaded guilty to different charges, his pleas having been accepted after the conditions set out in sec. 606 (1.1) of the Criminal code were met. [ 3 ] In file 635-01-017846-198 : obstructing justice on September 11, 2018, sec. 139 Cr.C . [ 4 ] In file 635-01-017847-196 : failing to comply with a probation order at the same date, sec. 733.1 Cr.C . [ 5 ] In file 635-01-017848-194 : driving while prohibited on November 27, 2018, sec. 259

(4) Cr.C . [ 6 ] In file 635-01-017821-191 : count 1: obstructing justice on February 11, 2019, sec. 139 Cr.C .; count 2: failing to comply with an order under sec. 516

(2) Cr.C . on the same date, sec. 145

(3) Cr.C . [ 7 ] He testified on September 20, 2019, after Crown counsel presented her arguments. THE PARTIES’ POSITION [ 8 ] The Crown, relying on different judgments, requires a global sentence of 2 years, less the time spent in preventive custody. It insists on accused’s previous convictions, among which two for obstructing justice and one for driving while prohibited, [ 9 ] Defence counsel considers that the time already spent in preventive custody is enough and that no additional period of detention should be added.

She insists on the distinctions that have to be made between the facts in the present case and those in the judgments referred to by the Crown, which are much more serious.

She stresses the explanations given by the accused when he testified, which show that the crimes he admitted were, at worst, the result of “a temporarily lapse of judgment” [1] or of “a general misunderstanding of the system” [2] or of “the misunderstanding” of the conditions that were given in English, without translation. [3] THE FACTS [ 10 ] Before accepting accused’s pleas, the Court heard the facts summarized by the Crown and made sure accused acknowledged them.

[ 11 ] As for the first obstruction of justice, on September 11, 2018, while he was detained, accused called at Suzanna Okpik’s workplace, was unable to speak to her and asked someone to tell her to drop the charge that she had laid against him otherwise he would charge her. He was prohibited to communicate with her by a condition of a probation order. As a matter of fact, Mrs.

Okpik gave a statement on October 10, 2018, telling she wanted to drop the charge. [ 12 ] Accused acknowledged that statement of facts on September 19, 2019. [ 13 ] As for the charge of driving while prohibited, on November 11, 2018, he was seen by a police officer driving a motor vehicle while he was disqualified to do so. [ 14 ] Accused said he was mistaken as to the time the order had commenced, thinking it had started when he was arrested and not at the end of his jail sentence. [ 15 ] As for the second obstruction of justice, on February 11, 2019, five days after being arrested for an assault causing bodily harm to Kayla Meeko, one day before the case had been postponed, while he was detained and despite the fact that he had been ordered under sec. 516

(2) Cr. C. not to communicate with her, accused called her at least five times from 3:08 PM and 4:46 PM to ask her to drop the charge she had laid against him, telling her she was the one who did hurt herself and that if she dropped the charge, she would not hear from him anymore. [ 16 ] Mrs. Meeko did not drop the charge and testified in file 635-01-017809-197. Accused was found not guilty, the Court being unable then to determine who could be believed after accused and Mrs. Meeko testified. [ 17 ] Accused admitted on September 19, 2019, through his lawyer, calling Mrs.

Meeko and asking her to drop the charge, which constituted the obstruction of justice. Defence counsel added that accused would testify and give more explanations. [ 18 ] Accused testified, on September 20, 2019, and said that he only called Mrs. Meeko three times, spoke to her only once, asking her to drop the charge because according to him she had made a false statement.

She asked him not to call her anymore, which he did. [ 19 ] He had not really understood that he was prohibited to communicate with her because the condition was given in English and was not translated when he appeared by phone for the assault charge on Mrs. Meeko.

THE SENTENCING OBJECTIVES AND PRINCIPLES [ 20 ] When deciding what is a fit sentence, a Court must, according to the different circumstances of the case, try to achieve one or more of the following objectives: to denounce the illegal conduct of accused; to deter him and other persons from committing offences; to separate an offender from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; to promote a sense of responsibility in offenders, and acknowledgment of the harm done. [ 21 ] The Court must keep in mind that the fundamental sentencing principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 22 ] The sentence should therefore be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender. [ 23 ] It should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 24 ] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims should be considered for all offenders, with particular attention to the particular circumstances of Aboriginal offenders.

ANALYSIS The sentencing principle of proportionality [ 25 ] What is called the objective gravity of a crime refers to the maximum penalty attached to that crime by the Criminal Code . [ 26 ] As for the crimes committed by accused, obstructing justice is punishable by a maximum term of imprisonment of ten years. Accused is liable to an imprisonment of five years for driving while prohibited, to an imprisonment of four years for not complying with a probation order and to an imprisonment for two years for not complying with an order made under sec. 516

(2) Cr.C . [ 27 ] The subjective gravity of crimes refers to the circumstances of the crimes, the way they were committed. [ 28 ] Obstructing justice is subjectively a very serious offence which “strikes at the very heart of the administration of justice” [4] as the Court of Appeal of Alberta stated in 2012.

More recently, the Ontario Court of Appeal repeated that obstruction of justice “strikes at the very soul of the judicial system. [It] rents the fibre of the intricate scheme that we as a society have designed to determine whether the guilt of one accused of crime has been proven beyond a reasonable doubt. [The] offence is easy to commit … hard to prove”. [5] [ 29 ] An accused’s degree of responsibility corresponds to his moral blameworthiness.

It varies according to the harm he intended to cause, or to his degree of recklessness or wilful blindness as to the consequences of his acts. [ 30 ] The more serious are his intentions, or the higher is his degree of recklessness, the higher is his moral blameworthiness. But to

determine one’s moral blameworthiness, a Court must not limit itself to look at the precise moment when the crime was committed. It must consider all of the factors linked to the accused’s personality. [6] [ 31 ] Accused’s personal circumstances were sparingly explained through his testimony, since he refused to cooperate with a Gladue Report or a Presentence Report. [ 32 ] Raised by his adopting parents who eventually passed away from cancer, accused quit school after secondary 1 because he wanted to become a hunter and follow his parents’ steps.

Before being arrested, he was working as a fire fighter in Quaqtaq and was providing for his older brother who has a house there and with whom he lived. [ 33 ] He started in 2014 a mechanic program in Inukjuak which he did not complete. [ 34 ] When released after his sentence, his plans are to go to Isuarsivik Treatment Center to stop drinking - even though he was sober when he committed the actual crimes -, to go to Inukjuak to finish the course he started in 2014 and to go back to Quaqtaq to work again as a fire fighter. [ 35 ] As for his responsibility for the offences for which he pleaded guilty, it is an important one, mainly because he was sober, as he admits it, and also on account that he was convicted twice in the past for obstructing justice by asking plaintiffs to drop their charge, once on January 25, 2017 for an offence committed on October 10, 2015, and then on November 6, 2018 for an offence committed on September 3, 2018. [ 36 ] If he pleaded guilty to those offences, it is certainly because it had been explained to him that asking someone to drop charges is illegal.

The Court cannot therefore believe accused when he says that he did not understand that what he was doing was illegal. [ 37 ] Moreover, when he pretends to have misunderstood the different orders that he breached because they were in English and not translated, he admitted on September 20, 2019, that he could read English (and he certainly received a copy of his probation order and a copy of his prohibition to drive, that were moreover certainly explained and translated to him at least in Court, unless he said he could understand and did not need translation).

The Court can only conclude that he had understood and had been made aware of the prohibitions contained in his probation order and in his prohibition order to drive. [ 38 ] He can as well understand English: his cross-examination in file 635-01-017809-196 concerning Mrs. Meeko, where he was acquitted, was successfully conducted, with his consent, in that language, and he was even able to rightfully correct some errors of translation that had been made during his examination in chief.

The Court cannot believe that accused committed his offences on account of his “general misunderstanding of the system” or of a “temporarily lapse of judgment”. [ 39 ] His intention in threatening potential witnesses if they did not drop their charges was clearly to avoid the legal consequences of what he had done and to undermine the criminal justice system, which indicates a high level of moral blameworthiness. [ 40 ] The Court must conclude that accused’s responsibility is heavy in regard to these very serious offences.

The sentencing principle of tailoring sentences [ 41 ] As for the aggravating factors, accused’s numerous previous convictions are certainly one.

Since 2015, he was convicted twice for obstructing justice, twice for obstructing police officers, five times for failing to comply with a condition ordered by the Court, eight times for different offences of assault, three times for uttering threats, once for criminal harassment, once for driving while prohibited to do so, once for driving while impaired, once for dangerous driving. [ 42 ] Another aggravating factor is the fact that the threats were directly uttered to Mrs.

Meeko, a victim herself. [7] [ 43 ] The fact that obstructing justice by trying to prevent a witness to testify has an impact not only on the victim herself but also a serious one on the community at large is also an aggravating factor. [8] [ 44 ] Another one is the fact that in both cases the threats were made while accused was detained, and just a few days after the alleged offences for which he had been arrested. [ 45 ] Another one resides in the fact that accused was bound by different probation orders each time he committed his offences. [ 46 ] As for the mitigating factors, accused’s pleas of guilt must certainly be considered as such. [ 47 ] His positive plans for the future, mainly to work on his alcohol issue, are certainly to be considered.

But his problems were known by him for a long time – even though they have nothing to do with the current offences - and nothing was even started to cope with them. This normally mitigating factor is therefore reduced. [ 48 ] The fact that he was acquitted in the file concerning Mrs. Meeko is certainly not a mitigating factor. [9] [ 49 ] The fact that the offences of obstruction of justice were not committed over a long period of time and that there is no evidence that they had been premeditated over a lengthy period is, at most, a neutral factor. Especially the one related to Mrs.

Meeko, where accused admits calling three times, shows that he did not act on the spur of the moment, just once. [ 50 ] The fact that he said that he felt sorry for what he had done must be given a very light mitigating factor when considering that he tried to minimize his responsibility for all the crimes he had committed, when he testified. [ 51 ] The Court can only conclude that the aggravating factors in these cases outdo the mitigating factors.

The sentencing principle of similarity in sentences [ 52 ] Crown counsel filed some caselaw. All those judgments concerned non-Inuit people, but they all rightfully stressed the seriousness of the offence of obstructing justice for whoever commits this offence. The range of sentences for that type of crime is usually between six to twenty-four months of imprisonment [10] , but one again this range is related, in those judgments, to non- Aboriginal people. [ 53 ] In Nunavik, Crown counsel referred to an oral and unreported judgment in the case of R. v.

Jaasi Eetok , in Salluit, where accused, acquitted on a main charge – like here, concerning Mrs. Meeko -, with minor previous convictions, for two charges of obstructing justice, but upon a joint submission, received a global sentence of eighteen months of imprisonment, eight months on the first charge and ten months consecutive on the other. The Court is however unaware of the facts in that file and cannot compare them with those in the present files.

The less restrictive sentence principle [ 54 ] For a less restrictive sentence than imprisonment to be considered, with a particular attention to the circumstances of accused who is an Aboriginal offender, such a sentence must be reasonable in the circumstances. [ 55 ] The Court is fully aware of the systemic and historical factors that have affected the Inuit people and, through intergenerational heritage, accused himself.

It is also aware of the particular circumstances concerning the village of Quaqtaq [11] . [ 56 ] But the Ontario Court of Appeal, relying on the judgment of the Supreme Court of Canada in Ipeelee [12] , sated that “for an offender’s Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case” [13] . [ 57 ] Aware that a Court cannot try to find a causal link between an accused’s background factors and the commission of the offences for which he deserves a sentence, the Court cannot see here, based on the evidence in front of it, how those systemic and background factors may have impacted accused’s life in a way that it decreased his moral blameworthiness in committing the two obstructions of justice. [ 58 ] It is to be reminded that accused was committing his third and fourth obstructions of justice and had been sentenced for the two first ones.

He knew perfectly well what he was doing, being sober, wishing to defeat the course of justice by threatening people to drop charges, wishing to be released, to avoid trials and the legal consequences of what he had done. [ 59 ] Those systemic and historical factors taken into consideration, as well as accused’s personal circumstances where the aggravating factors outdo the mitigating ones, cannot prevent the Court to put emphasis on the objectives of denunciation and deterrence for the offences of obstructing justice, which are here paramount. [14] The sentencing objectives that must be prioritised [ 60 ] The harm done to witnesses and to the judicial system by those who obstruct justice requires that emphasis be placed on the objective of denunciation in order to make it clear to everyone that society cannot tolerate such a behavior. [ 61 ] The sentence imposed on those who decide to obstruct justice must be severe enough to deter them from reoffending and must tend to deter others who might be tempted to do so, by having them know that they will deserve severe sentences if they decide to behave that way. [ 62 ] But even when deterrence and denunciation are the primary objectives in determining a sentence, as here, “it is over- simplification to assume that the objectives of denunciation and deterrence are only served by severity. […] The key principle in sentencing is proportionality” [15] . [ 63 ] Since accused is twenty-five years old, even if he is not a first offender, the objective of assisting in his rehabilitation remains important, especially when looking at his positive plans for the future.

Therefore the sentence must not be too long in order to give him hope that he will succeed in rehabilitating himself and, as he testified, to restart his life. The Court is well aware that it is more difficult for Aboriginal people to spend time in detention. [ 64 ] The objective of promoting in accused a sense of responsibility and acknowledgment of the harm done to the victims and to the community seems to be partly achieved if we rely on his testimony.

Clearly the 254 days he has already spent in preventive custody gave him the opportunity to think about what he has done and to make positive plans for the future. CONCLUSION [ 65 ] A sentence of two years might have been a fit one in other circumstances, mainly dealing with a non-Aboriginal person, but it would here overemphasize the importance that must be given to the objectives of denunciation and deterrence and would underemphasize the objectives of rehabilitation and promoting a sense of responsibility which have to be given weight.

[ 66 ] The seriousness of the main offences demands that a sentence of imprisonment be imposed and a sentence not imposing more than “the time served”, as requested by defence counsel, would certainly not be a fit sentence, giving insufficient importance to the objectives of denunciation and deterrence and to the aggravating factors. [ 67 ] Keeping in mind that it is dealing with an Inuk, the Court considers that a global term of imprisonment of fifteen months, or 450 days, is an appropriate and proportionate sentence. [ 68 ] Accused has been detained since his arrest on February 6, 2019, in file 635-01-017821-191 , to wit 272 days.

For the first three first files, he is officially detained since March 14, 2019, to wit 236 days. According to sec. 719 (3) and

(3.1) Cr.C ., he must be credited 408 days in file 635-01-017821-191 of detention already served, and 354 days in the three other files. [ 69 ] In file 635-01-017846-198 , for the first obstruction of justice concerning Mrs. Okpik, the sentence of the Court is an imprisonment of six months or 180 days. Considering the time already spent in preventive detention, counting for 354 days, accused will have to spend one day in detention. [ 70 ] In file 635-01-017847-196 , for the breach of probation in communicating with Mrs.

Okpik, the sentence is an imprisonment of 30 days to be served concurrently, but, considering the preventive detention, accused will have to spend one day in detention, concurrently. [ 71 ] In file 635-01-017848-194 , for driving while prohibited, the sentence is an imprisonment of 30 days, to be served consecutively to the sentence imposed in file 635-01-017846-198. If there had been no preventive detention, the global sentence would have been 210 days of imprisonment.

Once again, considering the preventive detention equalling 354 days, accused will have to spend one day in detention, concurrently. [ 72 ] In file 635-01-017821-191 , on count 1, for the second obstruction of justice concerning Mrs. Meeko, the sentence is an imprisonment of nine months, to be served consecutively to the sentence of six months imposed in file 635-01-017846-198, for a global sentence of fifteen months or 450 days. Accused has been preventively detained in this file for 272 days, for which he must be credited 403 days. He will therefore have to serve an additional term of 47 days in detention.

On count 2, for failing to comply with an order under sec. 516

(2) Cr.C ., the sentence is an imprisonment of 30 days, to be served concurrently. [ 73 ] In files 635-01-017821-191 and 635-01-017846-198 , accused will have to comply, at the end of the sentences of imprisonment, with the following conditions of a probation order that will be in force for a period of eighteen months : • keep the peace and be of good behavior; • report to a probation officer within a week after his release from custody, and thereafter whenever required by him; • comply with the probation officer’s instructions regarding the issues he has to work on, mainly alcohol; • not to communicate directly or indirectly with Mrs.

Suzanna Okpik and Mrs. Kayla Meeko; • not to go to their residence or workplace. [ 74 ] Since no violence was used, threatened or attempted against the two victims of obstruction of justice, there will be no order under sec. 109

(1) Cr.C . in the files of obstruction of justice. __________________________________ PAUL CHEVALIER, J.C.Q. Me Annie Sills-Massicotte for the Crown Me Isabelle Martineau for the accused Dates of hearing: September 19 and 20, 2019