R v Arreak, 2023 NUCA 9

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Arreak, 2023 NUCA 9 Date: 20230925 Docket: 04-22-016-CAP Registry: Iqaluit Between: His Majesty the King Respondent - and - Mark Arreak Appellant _______________________________________________________ Memorandum of Judgment _______________________________________________________ Appeal from the Sentence of The Honourable Justice S. Cooper Dated the 4th day of October, 2022 ( Docket: 04-19-30) ______________________________________________________

Memorandum of Judgment _______________________________________________________ The Court: [1] This is an appeal from a sentence for aggravated assault contrary to

section 268 of the Criminal Code, RSC 1985 c C-46 andbreach of probation contrary to

section 733.1(1) of the Criminal Code. The appellant pled guilty to both offences. [2] On June 21, 2019, the appellant, who was 23 years old at the time, committed a vicious and unprovoked attack on the victimin a school playground in Clyde River, Nunavut. Witnesses saw the appellant kicking the victim in the head. The appellant approachedone witness and told them he had just killed a man. The appellant appeared intoxicated. Other witnesses observed the victim on theground after the attack and called the RCMP. [3] The appellant caused the victim life altering and permanent injuries.

The victim, 45 years old at the time of the assault, nowlives in a long-term care facility in Ottawa as he requires round-the-clock daily care. He will reside at the facility for the foreseeablefuture with no definite discharge date. He is removed from his family and his community. He will no longer be able to work or supporthis family. He has cognitive deficits, and he requires a walker for mobility. [4] According to a pre-sentence report, the appellant was drinking on the day of the offence and says he blacked out and has nomemory of the assault.

The appellant was on probation at the time of the aggravated assault, having been recently released from thecustodial part of that sentence. [5] The Crown sought a sentence of 36 to 40 months. [6] The defence sought a sentence of 30 to 36 months. In addition, the appellant sought credit for pre-trial bail conditions.

Forapproximately two years and four months, from March 2020 to April 2022 and June 2022 to October 2022, the appellant’s bailconditions required that he stay inside his mother’s residence, or within 10 metres of the residence, 24 hours a day unless he was in thepresence of his aunt or mother or for medical emergencies. There was no exemption for employment or religious worship. When theappellant’s sentencing hearing was adjourned in June 2022 and his bail conditions continued, the presiding judge stated: “This is sort oflike being in jail when you are in Clyde River.

You are not free to do whatever you want…” [7] The appellant was sentenced to 40 months in custody for the aggravated assault, and two months in custody for the breach ofprobation to be served concurrently, followed by a period of probation of 18 months. The appellant was credited 490 days for pre-sentence custody (credited at a rate of 1.5 to 1). [8] The sentencing judge found as aggravating the seriousness of the assault due to the devastating nature of the injuries to thevictim as well as the appellant’s criminal record. Mitigating factors were the appellant’s guilty plea and his expression of remorse.

Shealso held that this case was most similar to R v Kopalie (17 April 2013), Iqaluit 08-11-552-1 (Nu Ct J) (cited in R v Aqqiaruq, 2018NUCJ 5) where a sentence of five years was imposed. In that case the accused had been drinking at the victim’s home and after beingremoved due to his behaviour he returned with his brother and severely beat the victim causing him permanent injury. [9] In addressing the appellant’s submissions respecting credit for his pre-trial bail conditions, the sentencing judge held that acourt may mitigate sentence because of strict pre-trial bail conditions.

The sentencing judge noted two appellate decisions on the issue: Rv Hughes, 2011 NUCA 3 at para 10 (“It is within the discretion of a trial judge to give credit for onerous bail conditions.”) and R vIpeelie, 2015 NUCA 3 at para 24 (“…time spent on release, or bail, is not generally treated as a factor mitigating the length of asubsequent sentence of incarceration.”). [10] Ultimately, the sentencing judge concluded she would not give credit for the strict pre-trial bail conditions for three reasons.First, the Crown’s position, which the sentencing judge found to be “lenient”, already took into account the strict pre-trial bail conditionsas a mitigating factor.

Second, the pre-trial bail conditions did not place restrictions on when or where the appellant could go so long ashe was with one of the named individuals. Third, the restrictions placed on the appellant were not unduly harsh given that for much ofthe time that the appellant was on restrictive bail conditions the general public was experiencing similar restrictions on their movementsdue to the Covid-19 pandemic. [11] The appellant argues that the sentencing judge erred in declining to award credit for strict pre-trial bail conditions as amitigating factor.

The appellant submits that the sentencing judge erred by failing to apply Gladue factors when considering how thepre-trial bail conditions affected the appellant, who is Inuk, and erred by equating the pre-trial bail conditions placed on the appellantwith the restrictions placed on the general public due to Covid-19. The appellant asks this court to reduce the sentence by five months. [12] Unless a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate courtmay not vary the sentence unless it is demonstrably unfit.

An error in principle, failure to consider a relevant factor, or erroneousconsideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’sdecision that such an error had an impact on the sentence: R v Lacasse, 2015 SCC 64 at paras 11, 43-44. [13] We agree with the Crown that there was no error of law or principle warranting appellate intervention. [14] Appellate courts have recognized that time spent on stringent pre-trial bail or custody conditions is a relevant mitigating factorthat may be considered in determining sentence: Hughes; R v Lau, 2004 ABCA 408 at para 15; R v Downes (2006), (ON CA), 79 OR (3d) 321, 205 CCC (3d) 488 (CA) at para 37; R v Ijam, 2007 ONCA 597 at paras 26-37; R v Marshall, 2021 ONCA344 at paras 50-53; R v Cunningham, 2023 ONCA 36 at paras 58-63.

Whether to allow credit and how much credit to be given in such

circumstances is a matter of judicial discretion: Hughes ; Lau at para 16 ; Ijam at para 37 ; Cunningham at para 59 ; R v Eliasson , 2021 ABCA 188 at para 11 . However, it cannot reduce a fit sentence into an “unfit” sentence. A sentencing judge's reasonable exercise of discretion is owed deference on appeal. [ 15 ] We see no error in the sentencing judge’s exercise of discretion in not awarding an increased credit for pre-trial bail conditions.

The sentencing judge correctly noted that it was open to her to grant credit for the time the appellant spent on pre-trial bail conditions but explained why she would not grant the increased credit in the circumstances of this case. She properly reviewed the circumstances of the appellant’s bail conditions and at the end exercised her discretion not to grant a credit. Here, the Crown’s position was a significant factor.

The sentencing judge noted that the Crown’s position of 36 to 40 months was not excessive and “might be said to be lenient” and concluded that in a sense “the restrictive bail conditions have already been taken into consideration given the position taken by the Crown”.

Further, the reasons of the sentencing judge clearly equated the pre-trial bail conditions placed on the appellant with the restrictions placed on the general public in Nunavut as a whole due to Covid-19. [ 16 ] In addition, the reasons of the sentencing judge demonstrate that she clearly understood the appellant is Inuk, and the Gladue principles. [ 17 ] Given the sentencing judge’s finding that the case was most similar to Kopalie where a five-year sentence was imposed, we see no basis to interfere with the sentencing judge’s exercise of discretion.

Further, in our view, the sentence imposed was not demonstrably unfit. [ 18 ] The appellant also argues that the sentencing judge erred in admitting inflammatory comments from the victim that were included in the pre-sentence report and that this resulted in an unfair sentencing process. The comments are not inflammatory when read in context and had no impact on the sentence imposed. [ 19 ] The appeal is dismissed. Appeal heard on September 19, 2023 Memorandum filed at Iqaluit, Nunavut this 25th day of September, 2023 Authorized to sign for: Slatter J.A. Hughes J.A. Authorized to sign for: Fagnan J.A.

Appearances: M. Bryant For the Respondent J. Thompson For the Appellant