Qaqasiq v. R., 2012 NUCA 03

In the Court of Appeal of Nunavut Citation: Qaqasiq v. R., 2012 NUCA 03 Date: 20120524 Docket: 10-10-007-CAP Registry: Iqaluit Between: Darryl Qaqasiq Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ The Court: The Honourable Madam Justice Constance Hunt The Honourable Madam Justice Louise Charbonneau The Honourable Madam Justice Marina Paperny _______________________________________________________ Memorandum of Judgment Delivered from the Bench Appeal from the Sentence by The Honourable Mr. Justice J.S. Poupore Dated the 2nd day of September, 2010

Amended Decision: An amended decision was issued on May 25, 2012; the corrections have been made to the text and the amendment is appended to this judgment. _______________________________________________________ Memorandum of Judgment Delivered from the Bench _______________________________________________________ Hunt J.A. (for the Court): [ 1 ] The appellant appeals a sentence of three years for breaking and entering a dwelling house and committing an assault with a weapon.

He was given concurrent sentences of twelve and six months respectively for offences arising from the same facts, possession of a weapon for a purpose dangerous to the public peace and mischief. Facts [ 2 ] The appellant, an Inuk, broke the outside door of the home of the victim, who resided there with his spouse and two young children. He was carrying a rifle, described by the victim as possibly being a .22 caliber that was rusty on the barrel and handle.

There was no police testimony and the gun was not entered as an exhibit. [ 3 ] The victim testified that the appellant, who had been in the home earlier, returned and asked for another person who had since left the house. The victim unsuccessfully tried to grab the rifle then pushed the appellant out of the house and called the police. The evidence suggested the appellant had been drinking. [ 4 ] The trial judge convicted him of three offences: break and enter and commission of an assault ( ss. 348(1) (

b) of the Criminal Code , RSC 1985, c C-46); possession of a weapon for a purpose dangerous to the public peace (s 88) and mischief less than $5,000 for damaging the door (s 430(4)). [ 5 ] Crown counsel described the appellant’s record as lengthy and very serious, demonstrating a pattern of violent offences. She emphasized the need for deterrence and asked for a jail sentence of two to four years. [ 6 ] Defence counsel explained that the appellant was 33 years old and in a common law relationship.

He pointed out that the appellant had not been in trouble with the law for some time, having been on very strict release terms for several months as a result of these charges. On appeal, defence counsel clarified that the appellant had about two weeks of pretrial custody on these matters, followed by some 8 or 9 months of strict release conditions. [ 7 ] His job as an observer with Medical Fisheries required him to go to sea several days at a time. He had taken an anger management course while in the Baffin Correctional Centre.

Counsel argued that the appellant had begun to turn his life around and the fact that he had been under virtual house arrest for some time would meet the objectives of denunciation and deterrence. He asked for a lengthy conditional sentence order and also drew the judge’s attention to the appellant’s pretrial custody, which the judge said he would deal with in his sentence.

[8] In pronouncing sentence, the judge observed that the break and enter offence was very serious and carried a maximumpenalty of life imprisonment (presumably because it was committed in relation to a dwelling house). He treated as aggravating the factthat the appellant was carrying a weapon and there were people in the house.

He went over some of the details of the appellant’s record,noting convictions in 1993 for possession of a weapon; assault in 2001; unlawfully in a dwelling house the same year; assault with aweapon in 2002; uttering threats in 2006; assault with a weapon in 2008; assault in the same year; and resist arrest and two assaultconvictions in 2009. [9] The judge stated: I’ve been sitting in this position for 15 years, and I don’t know that I have run across one situation where an accused with a recordsimilar to this doesn’t have counsel stand and say, oh, well that was the past Your Honour but he’s turned around.

I’ve got to tell you,after living a life like this, I don’t believe him. I don’t believe him. Transcript at 133-34 [10] As of the date this appeal was argued the appellant had been in jail for more than 19 months.

Standard of Review [11] A sentencing order should not be altered unless it is clearly unreasonable, in that the wrong principles were applied or thesentence imposed falls outside the acceptable range of sentences, being inordinately high or inordinately low: R v Shropshire, (SCC), [1995] 4 SCR 227, 188 NR 284 at paras 46-50; R v CAM, (SCC), [1996] 1 SCR 500, 194 NR 321 atpara 90. “Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, thestandard of review to be applied by an appellate court is one based on deference”: R v LM, 2008 SCC 31, [2008] 2 SCR 163 at para 15. [12] The Supreme Court recently confirmed that there are limits to the deference that will be accorded to trial judges, and appellatecourts “have a duty to ensure that courts properly apply the legal principles governing sentencing”, to ensure that the sentence underreview is proportionate to the gravity of the offence and the degree of responsibility of the offender: R v Ipeelee, 2012 SCC 13 at para 39(available on CanLII).

Grounds of Appeal [13] The appellant submits that the three-year sentence for breaking and entering was harsh and excessive and manifestly unfit. Healso asserts the judge failed to take account of

section 718.2(

e) of the Criminal Code, as required by R v Gladue, (SCC), [1999] 1 SCR 688, 171 DLR (4th) 385. Decision [14] We agree that the appeal should be allowed and substitute a sentence of time served. Discussion [15] All sentencing must begin with

section 718, which describes its purpose and objectives. The objectives include denunciation,general and specific deterrence and separation of offenders from society, as well as rehabilitation, reparation to victims and promoting asense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. A sentence must be

proportionate to the gravity of the offence and the degree of responsibility of the offender: s 718.1. The latter concept “serves a limiting or restraining function and ensures justice for the offender”: Ipeelee at para 37 . [ 16 ] The judge’s brief reasons did not mention sections 718 or 718.1. He noted the seriousness of the offence and the above aggravating factors. Beyond that, his entire focus was the appellant’s record and the fact that the trial judge did not believe him when he said he could turn his life around.

It is manifest from the judge’s comments that he did not consider the possibility of rehabilitation, despite defence counsel’s submissions. Moreover, although he stated he would take account of pretrial custody, his reasons do not reveal that he did so. [ 17 ] Unfortunately, neither counsel referred the judge to cases that might have informed him as to the assessment of an appropriate sentence. On appeal, counsel have done so. Although no two cases are ever the same, it is apparent that this Court has imposed a much shorter sentence for much more serious offences: R v Hughes , 2011 NUCA 3 (available on CanLII) .

In Hughes , the accused and others assaulted two people in their homes, causing them serious injuries for which a sentence of 12 months’ imprisonment was imposed on appeal. [ 18 ] The same is true of northern trial courts. In R v Michel , 2010 NWTTC 9 (available on CanLII) the offender was convicted of eight offences, one of which was damaging the complainant’s door to gain entry and refusing to leave until the police were contacted (despite a no contact order in respect of the complainant).

The aboriginal offender, who had a “horrendous” criminal record including eight crimes of violence, was sentenced to 18 months’ imprisonment for the eight offences. Similarly, in R v Smarch , 2008 YKSC 47 (available on CanLII) , the aboriginal offender was sentenced to 24 months after convictions for intending to extort money by threats and committing mischief by wilfully damaging the door of a residence.

Finally, in R v Lennie , 2007 NWTSC 69 (available on CanLII) the Court upheld, on appeal, a 10-month jail sentence for four counts of mischief one of which involved kicking down the door of a residence, assault and two counts of uttering threats to cause death. [ 19 ] We are satisfied that the judge made errors of principle that require us to re-assess the sentence.

He over-emphasized the appellant’s criminal record and the seriousness of the crime; did not take account of the appellant’s rehabilitative prospects; and neglected to take into consideration the appellant’s pretrial custody and the fact that he had apparently complied with very strict bail conditions for several months. [ 20 ] Although we acknowledge the seriousness of the offence, and especially the use of a gun in breaking into an occupied house, the sentence imposed here did not honour the principle of proportionality.

Given all the circumstances, in our view the appeal should be allowed and a sentence of time served substituted. [ 21 ] In light of these conclusions, it is unnecessary to deal with the ground of appeal asserting that the judge did not comply with the obligations that accompany the sentencing of aboriginal offenders. [ 22 ] After considering counsels’ submissions, we impose a period of probation of 9 months from date of release, conditions in addition to the statutory conditions to include no contact with the victims, report as required to the RCMP or probation authorities, and abstain from alcohol and non-prescription drugs.

There will also be a 10-year firearm prohibition. Appeal heard on May 15, 2012 Memorandum filed at Iqaluit, Nunavut this 24th day of May, 2012

Hunt J.A. Appearances: T. Fairchild for the Appellant B. McLaren for the Respondent _______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Madam Justice Constance Hunt The Honourable Madam Justice Louise Charbonneau The Honourable Madam Justice Marina Paperny _______________________________________________________ In frontispiece of the judgment The style of cause was changed from R. v. Qaqasiq to Qaqasiq v. R. The “between” has been changed to reflect that Mr. Qaqasiq was the appellant and not the respondent in the case. Please replace the amended pages in your hard copy of the judgment.