R v Qaqasiq, 2021 NUCA 16

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Qaqasiq, 2021 NUCA 16 Date: 20211012 Docket: 10-20-17-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Charlie Qaqasiq Appellant Anonymized Judgment Disclaimer This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justices to protect vulnerable parties. _______________________________________________________ The Court: The Honourable Justice Karan Shaner The Honourable Justice Frederica Schutz The Honourable Justice Kevin Feehan _______________________________________________________

Memorandum of Judgment Appeal from the Sentence of The Honourable Justice Lyons Dated the 27th of October, 2020 ( Docket: 10-18-49 ) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I.

Overview [ 1 ] The appellant appeals a seven-year sentence following a guilty plea to attempted murder, less 1386 days credit for pre-trial custody: R v Qaqasiq , 2020 NUCJ 36 (the “Decision”). [ 2 ] On May 19, 2018, the 21-year-old appellant carried out an unprovoked attack on a 16-year-old complainant who was working as a cashier in a local grocery store, stabbing him at least 15 times with a hunting knife until store patrons were able to subdue the appellant.

The complainant suffered serious injuries, including undergoing surgery for a collapsed lung. [ 3 ] The appellant had some history of mental health issues, but was assessed as fit to stand trial and a court-ordered assessment did not support a NCR defence. [ 4 ] The appellant argues that the sentencing judge failed to give sufficient mitigating weight to Gladue factors, his mental illness and his guilty plea. He further submits that the sentencing judge erred by treating past incidents of violence which did not result in criminal charges, as aggravating.

The appellant argues these errors directly impacted the sentence imposed. [ 5 ] The Crown maintains that the sentencing judge made no error in weighing the relevant aggravating and mitigating factors on sentence, and that even if such an error should be found, the sentence is demonstrably fit in all the circumstances. [ 6 ] For the reasons that follow, the appeal is dismissed. II. Background Circumstances of the offence [ 7 ] On the morning of May 19, 2018, the appellant entered a grocery store and, without provocation or reason, attacked a 16- year-old cashier with a hunting knife.

He stabbed the complainant in the upper body, pinned him to the ground, and continued stabbing him. [ 8 ] Store employees restrained the appellant momentarily, which allowed the complainant to flee down one of the shopping aisles but the appellant freed himself and ran after the complainant. Catching up to the complainant, the appellant stabbed him in the back, pinned him to the floor, and continued stabbing him.

Store patrons again restrained the appellant and removed him from the store where he was held down until the police arrived. [ 9 ] The complainant was seriously injured in the attack, which resulted in extensive bleeding. He suffered “15 significant stab wounds to his upper body: six on his back; three on his chest; one on each on his shoulder, abdomen, and flank; one large six-inch long wound to his forearm that exposed bones; and a laceration to his palm and cheek”: Decision at para 6. The complainant was taken to the

Health Centre where he was in and out of alertness; once stabilized however, the complainant was evacuated to Iqaluit where x-rays showed evidence of collapsed lungs. He underwent surgery, receiving a chest tube and stitching to close several wounds, and spent three weeks in hospital.

Following the attack, the complainant suffered physical pain, muscle aches, had difficulty lifting things, and continues to have significant scarring: Decision at paras 6-8. [ 10 ] Prior to the attack, the appellant and the complainant were largely unknown to each other, although the complainant had seen the appellant around town. [ 11 ] The appellant gave different accounts of the incident during various psychiatric assessments conducted while in custody following the attack.

The most comprehensive assessment was the June 2019 court-ordered report by Dr De Freitas, who treated the appellant for the three months while he was a patient at the Ontario Shores Centre for Mental Health Sciences from March to June 2019. [ 12 ] The appellant reported to Dr De Freitas that he consumed drugs and was “stoned” at the time of the offence; he stated he “didn’t feel good that day”, “just felt like killing somebody”, and “didn’t care about life”: Decision at para 11.

More specifically, he told Dr De Freitas that on the day of the offence he went for a walk to clear his head and entered the store to buy something; once inside however, he started stabbing the first male he saw. The appellant said he was not going to stab a female, as that just was not him, and that he lost control and kept stabbing the complainant, aiming for his neck and just wanted him to die. [ 13 ] The appellant said that he did not know why he committed the attack, and that he knew at the time that it was wrong.

He said that after his arrest, he thought he had killed the complainant and would be going to jail for 25 years. When asked how he felt about the attack, he said “I feel sorry for the guy. I feel sorry about stabbing him”; he felt disgusted with himself and could not believe what he had done: Decision at paras 13-14. [ 14 ] The appellant gave various inconsistent accounts of the drugs he was on at the time of the offence, at one point stating he had consumed five grams of marijuana, then later saying he had used crack cocaine and a variety of psychiatric medications including Prozac, Cogentin, and Clozapine.

In speaking with another doctor, the appellant stated he stopped taking Clozapine a month prior to the incident, while in another statement he stated that he had stopped taking all medication three months prior to the attack. Similarly, while he told one doctor that he had consumed alcohol at the time of the offence, he told Dr De Freitas that he had not.

He further reported using illicit and psychiatric medications in the weeks and days leading up to the offence: Decision at paras 15-17. [ 15 ] The complainant and his parents provided victim impact statements in which they describe being significantly traumatized by the senselessness and viciousness of the attack; they state it has been hard to trust anyone in the community outside of their family and friends since the offence. [ 16 ] The complainant’s parents describe him as an innocent boy and good son who has never hurt anyone.

They stated that while their son used to be outgoing, after the attack he mostly stayed home and was afraid of being in public or being targeted again; he suffers from post-traumatic stress disorder and anxiety, and has seen a mental health nurse as a result. While the complainant tried to go back to work at the store, he experienced flashbacks of the attack and was forced to quit. The complainant’s mother also had to stop working for a period of time to stay home with the complainant, which resulted in financial hardship for the family.

The complainant and both his parents remain very concerned about the appellant returning to the community after he serves his sentence, and fear further attacks on their family: Decision at paras 19-24. Personal circumstances of the appellant [ 17 ] The appellant was 21 years old at the time of the offence. He was raised in a small Hamlet by his grandparents, with whom he has a positive relationship. The appellant’s mother, who battled alcoholism, has not been part of his life since he was two years old.

His father suffers from a drug problem, has a violent criminal history and spent much of the appellant’s childhood in jail. [ 18 ] Despite this difficult family background, the appellant did fairly well in school and graduated high school, thereafter completing a few courses at the Arctic College in his community. However, his grandmother stated that the appellant started getting into trouble when he was 17 or 18 years old, around the time he began using marijuana, alcohol, and other drugs.

The appellant, his grandmother and his father all reported that the appellant becomes violent while intoxicated; he punched and stabbed walls at home, and in the home of a relative.

There were also incidents of violence towards others, including hitting people with rocks, beating people up, and chasing a stranger with a machete and almost killing him, as well as chasing his father with a machete. [ 19 ] From 2016 until 2018, the appellant had a series of admissions to hospital after appearing to experience psychotic episodes, including seizures and reporting episodes of auditory and visual hallucinations; he was prescribed a variety of psychiatric medications which he did not always take.

He was diagnosed with schizophrenia in 2016 when he first reported symptoms, and again in 2018 in the defence-commissioned report of Dr Gojer, which assessed whether or not the appellant was criminally responsible for the attack. [ 20 ] As the sentencing judge found however, this diagnosis remains controversial. For example, Dr Choptiany who treated the appellant in 2017 and 2018, noted that despite the diagnosis and not having taken antipsychotic medication for months, the appellant’s thought processes were organized.

Another psychiatrist, Dr Law, found the appellant’s reported symptoms were related to drug-induced psychosis and a mood disorder, and that the appellant’s reported hallucinations were not true hallucinations and the seizures were pseudo-seizures, willfully or voluntarily produced by the appellant; the appellant’s CT scan also read as normal.

Still another psychiatrist, Dr Klassen, favored a diagnosis of a factitious disorder with psychological symptoms; that is, the appellant was acting as if he had a mental illness by creating or exaggerating symptoms of illness: Decision at paras 33-35. [ 21 ] Dr De Freitas’ 45-page report did not rule out schizophrenia, but concluded that the appellant’s reported symptoms were “best explained by a combination of substance-induced psychotic disorder and malingering (faking symptoms to achieve some perceived benefit).” This opinion was based on the three-month period she and her staff observed the appellant, and during which their observations did not support his reported symptoms, and testing showed he was most likely feigning his illness: Decision at paras 36-37.

[22] Dr De Freitas opined that while it was possible that the appellant was experiencing psychotic symptoms at the time of theattack, it is likely that these symptoms were caused by his substance use and not a major mental illness. Further, it was her medicalopinion that the attack was caused by the appellant’s intoxication, consistent with his history of substance abuse and violence whileintoxicated: Decision at paras 39-41. Sentencing Decision [23] At sentencing, the Crown submitted that a seven-year sentence was necessary to achieve the objectives of denunciation anddeterrence.

It argued that attempted murder requires intent to kill, and the appellant’s moral blameworthiness was high.

Further, theappellant’s decision to become intoxicated despite being aware that intoxication makes him violent, was aggravating, as was the impactof the offence on the complainant and his family. [24] The defence submitted that a four to five-year sentence was more appropriate given the appellant’s guilty plea, young age,lack of criminal record, and his substance abuse and mental health issues. [25] In written reasons, the sentencing judge ultimately preferred the Crown’s position and sentenced the appellant to seven yearsincarceration, less pre-sentence custody credited at a 1:1.5 ratio, resulting in a remaining sentence of three years and three months.

Henoted that attempted murder is one of the most serious offences in criminal law, and here included a clear intent to kill the complainantby repeatedly stabbing him in the chest and back while the appellant admittedly aimed for his neck. As to the appellant’s mental state,the sentencing judge found at paras 38-41: Given Dr. De Freitas’ extensive opportunity to observe [the appellant], her assessment was the most helpful to the court in shedding lighton [the appellant’s] mental state at the time of the incident. While Dr.

De Freitas could not rule out the presence of a major mental illness, she believed it less likely than substance-inducedpsychotic disorder. She felt that his history of bizarre behaviour and psychotic symptoms was likely the result of his extensive use ofdrugs and his feigning symptoms. Dr. De Freitas’s medical opinion was that [the appellant] committed the attack on [the complainant] because of intoxication... consistentwith his extensive substance abuse at the time and his history of violence when intoxicated. Intoxication would explain a violent act on arandom stranger without any clear motive.

She thought it might be possible he was experiencing psychotic symptoms at the time of the attack, but that it was difficult to determinethis because of his inconsistent self-reporting.

However, even giving him the benefit of the doubt and assuming he was psychotic at thetime, she thought it is likely that these symptoms were caused by his substance use and not a major mental illness. [26] The sentencing judge found there were several aggravating factors which placed the offence at the “more serious end of thespectrum”, including that the attack was unprovoked, involved the use of a deadly weapon, and that it was carried out upon a youngcashier in a gathering place in the small community.

Further, the attack was to vulnerable areas of the complainant’s body, and wasrepeated and relentless even in the face of efforts by bystanders to restrain the appellant, and without whose intervention the appellantlikely would have killed the complainant. “The profound impact of the attack on [the complainant] and his family is also an aggravatingfactor”: Decision at paras 49-51. [27] While the appellant did not have a criminal record, the sentencing judge noted his “troubling and significant history ofviolence and assaultive use of weapons, particularly when he is under the influence of drugs and/or alcohol.” The sentencing judge foundthat as the appellant was aware of his tendency to be violent when using drugs, this increased his moral culpability in carrying out theoffence while on drugs: Decision at para 52. [28] In light of this, the sentencing judge found denunciation to be the paramount sentencing principle in the circumstances, andthat a significant sentence of imprisonment was warranted in order to deter others from committing such offences.

He further found thatthe serious nature of the offence required that the appellant be separated from society for public safety and rehabilitation: Decision atpara 53. [29] The sentencing judge further found the following Gladue factors: the appellant’s “drug and alcohol abuse; his mental healthstruggles; his troubled relationship with his father (as well as his father’s substance abuse issues and history of incarceration); as well asthe fact that his relationship with his mother was severed at a young age”: Decision at para 54.

However, he held that the serious, violentnature of the offence meant that there were no available and appropriate sanctions other than imprisonment in all of the circumstances. [30] In determining the length of incarceration required, the sentencing judge specifically noted the mitigating factors of theappellant’s guilty plea, his mental health concerns, lack of prior criminal record, and acknowledged that the appellant had completedanger management and substance abuse programs while in custody.

He ultimately found the Crown’s position appropriate consideringthe aggravating and mitigating factors, and was “fair, firm, and measured”, and noted that the appellant could have received a muchlonger jail sentence than the seven years sought by the Crown for “one of the most disturbing cases of violence that has come before[him] as a judge in Nunavut”: Decision at paras 57-59. III. Grounds of Appeal [31] On appeal, the appellant argues that the sentencing judge erred by: 1. failing to meaningfully consider and apply R v Gladue, (SCC), [1999] 1 SCR 688, 171 DLR (4th) 385 [Gladue];

2. failing to treat the appellant’s mental illness as a mitigating factor; 3. treating alleged past incidents of violence that did not result in criminal charges as aggravating; and, 4. not properly weighing the mitigation of the appellant’s guilty plea. IV.

Standard of Review [ 32 ] The standard of review on a sentence appeal was recently restated by the Supreme Court in R v Friesen , 2020 SCC 9 at para 26 , 444 DLR (4th) 1, and citing R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089 [ Lacasse ]: As this Court confirmed in Lacasse , an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44).

Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably.” Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on sentence ( Lacasse , at para. 44 ).

If an error in principle had no impact on sentence, that is the end of the principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit. V. Analysis [ 33 ] The appellant does not contend that the seven-year sentence in this matter is demonstrably unfit.

Indeed, the Crown and defence were only two years apart on their sentence recommendations to the court, and the seven-year sentence sought by the Crown for this attempted murder where the appellant admitted he “just felt like killing somebody”, targeted the first male he saw and repeatedly stabbed the complainant aiming for his neck – was neither demonstrably unfit nor unwarranted. The sentencing judge was correct when he found the fact that the complainant did not die, was just a matter of luck and the heroic efforts of bystanders in the store.

He was also correct that the paramount principles of sentencing for this offence were denunciation and deterrence, and that the “message must be sent that people are responsible for their conduct, even when heavily intoxicated by drugs or alcohol”: Decision at para 53. [ 34 ] The appellant’s objections largely rest on the sentencing judge’s weighing of various aggravating and mitigating factors. As was found in Lacasse at para 78 , “determining the weight to be given to aggravating or mitigating circumstances falls strictly within the sentencing judge’s discretion.

The decision to weigh such factors in a given way is not in itself an error that opens the door to appellate intervention unless the weight is unreasonable.” In our view, the sentencing judge’s weighing of relevant factors was reasonable, and appellate intervention is not warranted. [ 35 ] More specifically, this was a serious violent offence, and significant jail time was required; this Court is not persuaded there is any justification to reduce this carefully considered and imposed sentence by two years. 1.

The sentencing judge did not fail to meaningfully consider and apply Gladue [ 36 ] The appellant argues that the sentencing judge’s Gladue analysis was inadequate and led him to overlook the principle of restraint. In particular, the appellant submits that while the sentencing judge took into account the specific Gladue factors in the appellant’s background, he failed to adequately consider the history of colonialism and disenfranchisement in the community, and how this history contributed to bringing the appellant before the courts.

The appellant further submits that the sentencing judge failed to meaningfully consider alternative sentencing sanctions that may have been appropriate given the appellant’s Indigenous heritage, including the defence’s position of an additional 12-18 months incarceration to the time already served (1386 days), which would have allowed for a lengthy period of probation to monitor the appellant in the community. [ 37 ] There is no merit to this ground of appeal. As the appellant acknowledged, the sentencing judge specifically considered the “unique systemic or background factors which may have played a

part in bringing [the appellant] before the court”; these included his “drug and alcohol abuse, his mental health struggles, his troubled relationship with his father (as well as his father’s substance abuse issues and history of incarceration), as well as the fact his relationship with his mother was severed a very young age”. The sentencing judge recognized that the appellant was a “young Indigenous man with no prior criminal conviction”, and that he must “pay particular attention to the circumstances of this Indigenous offender.

Gladue requires me to consider the types of sentencing procedures and sanctions which may be appropriate for [the appellant] because of his Inuit heritage” (emphasis added) . [ 38 ] There was nothing in the hearing record or the sentencing judge’s reasons which could be read as failing to give the systemic and individualized Gladue factors present in this case the necessary consideration and weight in determining sentence.

More specifically, there is no error in the sentencing judge reasons that as per Gladue at para 79 , this was one of those violent and serious offences that as a “practical reality. . . the terms of imprisonment for Indigenous and non-Indigenous individuals will be close to each other or the same”: Decision at para 55. [ 39 ] All parties agreed that a significant period of incarceration was required, and the sentencing judge’s finding that there was no alternative to incarceration is unassailable.

Even in so finding, the sentencing judge found that “ Gladue requires that [he] carefully consider the length of the term.” We take the sentencing judge at his word when he said he did so, and there is no error in his finding that

given the circumstances of the offence, the appellant could have received a much longer sentence than the one proposed by the Crown, which he found to be “fair, firm, and measured” in accounting for both the aggravating and mitigating factors, “and Gladue factors.” We agree that the appellant could have received a much longer sentence.

In considering the gravity of this attempted murder and circumstances of this offender, the sentence imposed was at the lower end of available sanctions. [ 40 ] The sentencing judge’s Gladue assessment was not inadequate, but carefully “consider[ed] the unique situation of [this] aboriginal offender”, as was his duty: Gladue at para 82 , R v Ipeelee , 2012 SCC 13 at para 85 , [2012] 1 SCR 433.

The Crown is correct that this duty did not mean that the sentencing judge was required to give the greatest weight to the principles of restorative justice and less weight to denunciation and deterrence, particularly in the circumstances of this offence. This ground of appeal is dismissed. 2.

The sentencing judge did not err in his assessment and treatment of either the appellant’s mental health or his past incidents of violence resulting from intoxication [ 41 ] It is somewhat difficult to reconcile the appellant’s arguments that the sentencing judge failed to consider whether his mental illness, schizophrenia or substance abuse disorder, contributed to the offence directly, or indirectly through addiction and intoxication, and that the sentencing judge should not have considered the appellant’s own reports of previous incidents of acting violently while intoxicated because the appellant has been diagnosed with factitious disorder and malingering.

Further, while the appellant seems to argue that the previous incidents of violence were “uncorroborated by police reports”, most of these incidents were not only self-reported but directly corroborated by the appellant’s own family members, including that consuming intoxicants had led to him to punching holes in the wall, and attacking people with a machete.

In defence submissions at the sentencing hearing, counsel further refers to the police being called in the latter incident and attending at the home to find the appellant intoxicated and that the walls had been stabbed with a knife. [ 42 ] In any event, the sentencing judge detailed the appellant’s psychiatric history in his reasons for judgment, including the various testing and diagnoses which had occurred since 2016.

While he ultimately preferred the opinion of Dr De Freitas that the appellant was less likely to have a major mental illness as opposed substance-induced psychotic disorder, “likely the result of his extensive abuse of drugs and his feigning symptoms”, the sentencing judge nevertheless found that the appellant’s “mental health concerns” were a mitigating factor. More importantly, as noted above, the sentencing judge found that the appellant’s “drug and alcohol abuse, [and] his mental health struggles” were specific Gladue factors that brought the appellant before the court on this offence.

There was no error in the sentencing judge’s treatment of the appellant’s mental health issues in this regard. [ 43 ] Further, the appellant had been found fit to stand trial, had been assessed to have no NCR defence, and pleaded guilty to attempted murder. Various statements by him included that he knew intoxication made him act violently, and that he had consumed both illicit and psychiatric medication, and/or alcohol leading up to the offence, that he remembered the attack and had intended to kill the complainant.

These statements were reviewed by the sentencing judge in his reasons, most of which were discussed in Dr De Freitas’s report. [ 44 ] The sentencing judge was entitled to consider all of the expert reports before him and accept or reject some, all, or none of that evidence. The sentencing judge concluded that “[g]iven Dr.

DeFreitas’ extensive opportunity to observe [the appellant], her assessment was the most helpful to the court in shedding light on [the appellant’s] mental state at the time of the incident”, and that it was her opinion that the appellant committed the offence “because of intoxication... consistent with his extensive substance abuse at the time and his history of violence when intoxicated”.

The sentencing judge specifically noted that while Dr De Freitas could not rule out the presence of a major mental illness, it was less likely than substance-induced psychotic disorder, and his “history of bizarre behaviour and psychotic symptoms was likely the result of his extensive abuse of drugs and his feigning symptoms.” He further found that while Dr De Freitas stated it might have been possible the appellant was experiencing psychotic symptoms during the offence, those symptoms were likely caused by his substance abuse and not a major mental illness: Decision at paras 38-41. [ 45 ] In light of the conclusions of Dr De Freitas and her clinical psychology team, there is no basis to suggest that the sentencing judge failed to consider whether the appellant’s mental illness contributed to the offence directly, or indirectly through substance abuse and addictions.

It was open to the sentence judge to conclude, as he did, that the appellant had failed to prove, on a balance of probabilities, that at the time of the offence he suffered from a major mental illness or psychotic episode that played a

part in the commission of the offence or diminished his moral culpability. [ 46 ] Setting this case apart from those cited by the appellant, is the absence of a well-documented, solidly diagnosed mental health history. There was simply inconclusive persuasive evidence to conclude the appellant’s offence was precipitated as a result of, or during, a serious mental breakdown. The medical opinions were not clear, or even in basic agreement, about whether the appellant had a significant history of mental illness outside of episodes tied to intoxication, or was otherwise malingering.

Further, there was insufficient evidence to safely conclude that during the commission of the offence, the appellant was in a state of psychosis, or had lost touch with reality. His own accountings of the offence, and the aftermath, while different over time, point in the opposite direction. [ 47 ] The sentencing judge drew a reasonable nexus between the offence and the self-induced intoxication of the appellant. There was no error in his finding that such intoxication was not a mitigating factor, nor does it serve to lower the appellant’s moral culpability for the offence.

The sentencing judge’s finding that the appellant’s awareness of his own “proclivity to be extremely violent when he abused drugs... increases his moral blameworthiness in relation to this attack committed while on drugs” was available on the record.

Indeed, Dr De Freitas’ report is replete with various comments by the appellant about his past violence “to the effect that ‘drugs’ made him attack people”, and when asked about this offence “he said ‘It’s basically the same thing (as his prior acts of violence while intoxicated), but it ended up pretty badly.” [ 48 ] Deference is owed to the sentencing judge’s conclusion that self-induced intoxication was the root cause of the appellant’s horrific conduct.

Moreover, it was open to the sentencing judge to conclude that the appellant knew in advance that when he chose to become intoxicated on this occasion, there would likely be a deleterious effect on his mood and a likelihood of violence; that likelihood was realized to an almost lethal result.

[49] The appellant’s prior acts of anger or violent episodes while intoxicated were not viewed as aggravating factors in the sense offinding the appellant had a prior record for serious criminal violence. Rather, they were appropriately considered in assessing theappellant’s state of mind, mental health and moral blameworthiness at the time of the offence.

And, while there was also certainly anexus between the appellant’s systemic and background factors as a young Indigenous offender, including his substance abuse, thisnexus was duly noted by the sentencing judge in finding that the Crown’s seven year sentence struck a proportionate balance whenconsidering all factors, including the appellant’s history of drug and alcohol abuse and his self-induced intoxication at the time of theoffence. [50] These grounds of appeal are dismissed. 3.

The sentencing judge gave appropriate weight to the appellant’s guilty plea [51] Lastly, there is no error in the sentencing judge’s findings with respect to the appellant’s guilty plea, and the seven yearsentence imposed. It was for the sentencing judge to decide how much weight to give the plea in this matter, which was a strong factualcase for the Crown. The appellant states on appeal that intoxication may have been an arguable defence in relation to the specific intentrequired for attempted murder, warranting a further reduction in sentence for his guilty plea.

Again however, this must be considered bythe sentencing judge against the appellant’s post-offence statements about the consciousness of his actions and his intent to kill thecomplainant. [52] The appellant’s plea was adverted to numerous times in the sentencing judge’s reasons, and was specifically considered inrelation to the seven-year sentence imposed which was, as the Crown respondent argues, at the lower end of possible sentences.

Even ona guilty plea, the moral culpability for attempted murder is extremely high, particularly given that the mens rea found is the intent to kill.Both parties acknowledged that a significant jail sentence was required in this matter; under the Criminal Code the maximum sentencewas life imprisonment - a sentence that would have been automatically imposed had the appellant been convicted of successfullycarrying out his intention to kill the complainant.

As was said by the sentencing judge, and as was found by Supreme Court in R vLogan, (SCC), [1990] 2 SCR 731 at 743, 73 DLR (4th) 40: The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although nodeath ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less akiller than a murderer: he may be lucky -- the ambulance arrived early, or some other fortuitous circumstance -- but he still has the samekiller instinct.

Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence ispunishable by life and the usual penalty is very severe. [53] It is beyond doubt that the guilty plea in this matter reduced the sentence imposed significantly, as did the appellant’s Gladuefactors, mental health issues and lack of prior record. There is no merit to any claim that the sentencing judge did not adequately accountfor the appellant’s guilty plea. This ground is dismissed. VI. Disposition [54] The appeal is dismissed.

Appeal heard on September 21, 2021 Memorandum filed at Iqaluit, Nunavut this 12th day of October, 2021 Authorized to sign for: Shaner J.A. Schutz J.A. Feehan J.A.

Appearances: P. Plourde for the Respondent E. Tache-Green for the Appellant