R. v. Mikijuk, 2017 NUCJ 02

..Da..>r _Abbb)_Ai"bcJC Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Mikijuk, 2017 NUCJ 02 Date: Docket: Registry: 20170203 08-15-195 Iqaluit Crown: Her Majesty the Queen -and- Accused: Jamie Mikijuk Before: The l-Io11ourable Mr. Jttstice Bycl1ok Counsel (Crown): Counsel (Accused): Caroli ne Lirette William McNair Location 1-Ieard: Date Heard: Matters: Iqaluit, Nunavut November 29, 201 6 Criminal Code of Canada, RSC 1985, c C-46, s. 244.2 ( I )(b); R. v. Gladue; Sentencing

REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Table of Contents REASONS FOR JUDGMENT 1 I. INTRODUCTION 2 11. BACKGROUND 2 A. Happy Valley, Iqaluit, April 28, 2015 2 Ill. POSITIONS OF THE PARTIES 3 IV ANALYSIS 3 A. Sentencing objectives and principles 3 B. The offender 6 C. Criminal record 8 D. Mitigating factors 9 E. Aggravating factors 9 F. Victim's Bill of Rights 9 V. SENTENCE 10 A. The effect of the Gladue case 10 B. The effect of the guilty plea 11 C. Credit for remand custody and sentence served 12 D. Probation order 12 E. Ancillary orders 13 I.

INTRODUCTION [ 1 ] A serious incident happened in lqaluit's Happy Valley on APril 28, 2015. When it was over, Jamie Mikijuk was charged with five Criminal Code of Canada ' [Criminal Code] firearm related offences. The Crown and Defence negotiated a guilty plea to one of those charges, the intentional and reckless discharge of a firearm. Mr. Mikijuk pied guilty to that charge on August 23, 2016.

[ 2 ] Mr. Mikijuk's sentence hearing started on November 29, 2016. The prosecutor, Ms. Lirette, presented an Agreed Statement of Facts. These facts were agreed upon by the parties. I then heard from the prosecutor and the Defence lawyer, Mr. McNair. They told me what they thought would be would be an appropriate sentence. These are the reasons for my decision. II. BACKGROUND A. Happy Valley, Iqaluit, April 28, 2015 [ 3 ] Mr. Mikijuk's girlfriend called the police at about 3:30 p.m. She said Mr. Mikijuk was at house number 1671. He was drunk and suicidal. She believed he had a loaded rifie.

This call triggered a forty-one-hour stand-off and neighbourhood lock down. On arrival, police saw Mr. Mikijuk through a window. Mr. Mikijuk was holding a rifle. They heard gunshots inside. Constable [Cs!.] Stephan Kilabuk and Cst. Alan Foster set up an observation post right across the street. The local Emergency Response Team [ERT] was deployed. Other ERT teams were mobilized and flown to Iqaluit. Mr. Mikijuk's house was under around the clock surveillance. The neighbourhood was sealed. The lives of its residents were seriously disrupted. [ 4 ] Mr. Mikijuk fired at least eleven shots during the stand-off.

He fired seven shots inside. He fired four shots through windows towards the outside. At one point, Cs!. Kilabuk believed Mr. Mikijuk had shot at him. Cs!. Kilabuk returned fire with a sniper rifle once. Mr. Mikijuk was not hit. The police deployed a negotiator. They resorted eventually to tear gas. Mr. Mikijuk surrendered about 9 a.m. on April 30. t RSC 1985, c C-46 [ 5 ] Police discovered Mr. Mikijuk had used a .17 calibre rifle. The rifle belonged to his father. It had not been lawfully stored. There were several other firearms in the house. They too were not lawfully stored.

Each firearm was readily accessible and available to the intoxicated and distraught offender. Mr. Mikijuk chose to use one. He could as easily have chosen one of the others. Ishall say more about those rifles later. [ 6 ] Mr. Mikijuk gave a warned statement to the police. He claimed he did not know why he shot through the front window. He claimed he shot outside into the sky. He claimed he shot inside to "get some anger out". He claimed he did not want to hurt anyone. He admitted he was drunk. He was so drunk, he claimed to have little memory of what happened. Ill.

POSITIONS OF THE PARTIES [ 7 ] The prosecutor says Mr. Mikijuk should serve a six-year term in a federal penitentiary. She referred the court to ten cases. [ 8 ] Defence counsel says the jail term should be the mandatory four-year minimum. He referred the court to ten cases. [ 9 ] Each side acknowledges Mr. Mikijuk is entitled to pre-sentence credit for time already served. IV. ANALYSIS

A. Sentencing objectives and principles [ 10 ] Sentencing is an individualized process. Every offender, and every case, is unique. A judge must weigh the objectives and principles of sentencing against the specific circumstances of each case. [ 11 ] There are important rules a judge must follow when imposing a sentence. These rules are found in the Criminal Code . The sentence I impose must serve to: • Protect the public; • Foster respect for the law; • Be seen to be just; • Acknowledge the harm done to Mr. Mikijuk's victims; • Condemn and denounce criminal conduct; • Deter Mr.

Mikijuk and others from committing these crimes; • Rehabilitate Mr. Mikijuk to help him heal; • Encourage offenders to accept responsibility for their actions, to acknowledge and admit the harm they caused to their victim(s), and try to repair the harm where possible; and • Separate offenders from society when necessary.2 [ 12 ] The Criminal Code directs judges to consider 'proportionality'. This principle is at the heart of the sentencing process.

This legal term means a sentence should refiect the seriousness of the crime, and the offender's responsibility for it. [ 13 ] The Criminal Code directs sentencingjudges to act with 'restraint'. This means the court must impose the least harsh sentence which can achieve the goals involved in sentencing. Jail must only be imposed when there is no reasonable alternative. In Canada, jail is imposed only as a last resort. Combined sentences are not to be unduly long or harsh. Here, the Criminal Code directs judges to be especially aware of the circumstances of Aboriginal offenders.

I'll say more about that starting in paragraph sixteen. [ 14 ] The Criminal Code directs judges to consider 'totality'. This legal term means a judge is not allowed just to add up the sentences for each individual offence. The total sentence should be no more than the overall responsibility of the offender. (15] Sentencing judges must also consider 'case-law'. Case-law is made up of published reports that tell us what other judges have done in similar circumstances. This is extremely important. It is only fair that similar offenders should be treated similarly for similar crimes.

I was referred to case-law by counsel. [16] One of these important cases is called the Queen v. Gladue3 [Gladue] . It is called that because in Canada all criminal prosecutions are done in the name of Her Majesty the Queen. Gladue was the name of the offender in that case. Gladue is a very important case. From the highest court in Canada, the Supreme Court. In fact, the Nunavut Court of 2 Criminal Code, s. 718 .

' R v Gladue, (SCC), [1999] SCJ No 19, [1999] 1 SCR 688 (QL) Justice is a Gladue court. We serve all Nunavummiut. To make a long explanation short, our court must account for the uniquecircumstances of the Inuit people, their history, and society. And, importantly today, how this reality has had an impact on Mr. Mikijuk. [17] Nunavut is a beautiful, wonderful land. It is a great place to live. Nunavummiut are deservedly proud of their ancient heritage andhistory. All of us who live here are enriched by Inuit Qaujimajatuqangit. [18] But, Nunavut is in crisis.

I must take this fact into account. [19] Alcohol abuse is tearing apart our society. Binge drinking for many is a normal part of life. Alcohol abuse is destroying the lives ofNunavummiut. Alcohol abuse is tearing apart families. Alcohol abuse fills our child protection dockets - right across the territory.Alcohol abuse is filling our jails. Offenders convicted of serious alcohol-related crime are thrown into the maw of southern prisons;isolated and far from home. Every court circuit, we learn bootlegging is rampant. Everywhere. The Liquor Act' and past sentences havenot been, and are not, effective deterrents.

Bootleggers don't just sell alcohol; bootleggers callously and calculatedly purvey humanmisery. Our sentencing regime should reflect that fact. [20] Seventeen years after division from the NWT, there is still no residential treatment facility in Nunavut. Nunavummiut who belongin secure residential treatment wind up in jail. Those few Nunavummiut who are lucky enough to get residential treatment are sent south.Again, where they are isolated and far from home. Those few frontline responders we have are given few resources to deal with theepidemic of alcohol's victims.

Few resources are available to help our many neighbours who suffer from real mental health concerns,like Fetal Alcohol Spectrum Disorder. The need to address these issues is urgent. [21] In my lifetime, Inuit were forced off the land. Many were moved, sometimes forcibly, by alien authority into artificial and isolatedcommunities. Children were taken from the bosoms of their families and sent to far away residential schools. One of the purposes ofthese schools was to supplant their culture and language. That painful legacy reverberates today.

Sexual predators like Cloughley, DeJaeger, and Horne victimized significant numbers of an entire generation. Their 'R.S.N.W.T. 1988, c.L-9 (Nu) victims suffer still and so do their families. The Inuit world and very way of life was turned upside down. [22] Inuit society is still adjusting to that collective trauma. Jobs of any kind outside Iqaluit and Rankin Inlet are scarce. What littleeconomy there is government and mineral exploration driven. There is an ongoing and serious housing crisis. Overcrowding plaguesmany Nunavummiut. Overcrowding affects their health. It adds stress to an already hard life.

It contributes to our shocking domesticviolence statistics. Safe houses for families in distress are few and far between. A shocking number of our children go to school hungry.Social and recreational infrastructure is woefully lacking. Time and time again we are told that utter boredom leads many youth intodelinquency. For some, despair and misery lead to thoughts that suicide is an option.

Our suicide rate is many times the national average.Thirty-two Nunavummiut killed themselves in 2016.5 [23] The Nunavut Court of Justice cannot judge offenders fairly without acknowledging and understanding the real impact of this realityon Nunavummiut.

[24] Gladue is a constant reminder to everyone in our justice system. It reminds us that justice, if it is to approach true justice, must be rooted in the community it serves. Gladue informs every decision we make. It is the lens through which we look at every case. Every sentence of the Nunavut Court of Justice involving an lnuk is a Gladue sentence. So, there is never a specific Gladue credit. B. The offender [25] Mr. Mikijuk is from Iqaluit. He is twenty-eight years old. He is lnuk. He is a severe alcoholic. Thus, he has struggled holding down a job. [26] His mother filed a letter with the court.

Her story is heartbreaking, like so many others we hear every court circuit. She was born in an outpost camp near Pangnirtung. She contracted tuberculosis when she was about three years old. She was sent to Toronto all alone for medical care. While she was there, she lost her language and appetite for traditional country food. When she returned home, her parents and family were strangers to her. She has suffered all her life from what she calls this "tug of war'' between traditional and modern ways of life. 5 Nunatsiaq News, January 26, 2017, "Nunavut's 2016 suicide death toll equals the previous year' s".

"This, I know has been felt by my family and children without knowing the actual cause". "I don't know any Inuit families", she continued, "that have not felt this type of heartache or depression due to many injustices what we as a people have suffered". [27] Defence counsel filed three other letters from friends and neighbours of Mr. Mikijuk's family. Each correspondent told the court this offence was out of character for Mr. Mikijuk. [28] Mr. Mikijuk was assessed by a forensic psychiatrist. Dr. Leslie Wong reported to the court on June 25, 2015. Dr. Wong's report is troubling. Mr.

Mikijuk started drinking when he was fourteen. What follows is part of what he reported: Mr. Mikijuk ad1nitted to longstandi11g problems with abusi11g alcohol. He reported first consuming alcohol at the age of 14, and that J1e last consumed on the day of his arrest. He recou11ted \veekly binge dri11king sessio11s in high school wherein he would dri11k with peers u11til losing consciousness. For the past 3 to 4 years, 11e has drank (sic) on a daily basis, wherein he would share two to tlu- ee 60 oz bottles of vodka mnongst 5 i11dividuals.

At times, he has experienced abdominal pain from excessive drinki11g, including vomiting blood on one occasion, thougl1 he l1as never seeked (sic) out n1edical attention for same. He did, l1owever, atte11d the Emergency Room in excess of 25 occasions for sy1nptoms of alcohol withdrawal. 6 [29] Mr. Mikijuk said he once drank eighty ounces of vodka by himself during one of these binges. He reported being physically abusive to his common-law partner. [30] His medical files noted that Mikijuk has also been smoking two grams of cannabis daily. He has been selling marijuana to feed his habits since he was fifteen. Mr.

Mikijuk told Dr. Wong that the night before the incident, he and five others shared a sixty-ounce bottle of vodka. He also smoked three joints of marijuana. He then continued, by himself, to drink four 1.2 litre bottles of wine. [31] Dr. Wong diagnosed Mr. Mikijuk as suffering from substance abuse disorders (alcohol, cannabis, and stimulants), conduct disorder (adolescent onset, moderate severity), and antisocial personality traits.

6 Wong Report, p 7. [32] We also have a Pre-sentence report, dated November 22, 2016. The author reported Mr. Mikijuk does not feel torn between traditional and modern society. He hunts and fishes only occasionally around town. His parents went to residential schools. He would like to learn to speak and understand lnuktitut more fluently. He has a long history of suicidal thoughts when drinking. I heard that he was in week six of an eight​ week mental health program at the Makigiarvik Correctional Centre. [33] Mr. Mikijuk is reported to have been "model prisoner" while on remand.

At the Baffin Correctional Centre, he took and completed the lnunnguiniq Healthy Families Program, Alternatives to Violence Program, and the Substance Abuse Program. [34] Mr. Mikijuk wrote an apology filed with the court. I was not read into the record. This is what it said: I an1 very so1Ty for the suffering I have caused to my family, 111y neighbours and n1y co1nmunity. I an1very sorry to the RCMP for causing major disruptions in the day​ to-day lives of n1y fellow Iqaluitmiut. I an1also deeply sorry to everyone wl10 felt afraid in tl1at time, because of what I did.

Every day I have been injail, I have had to tl1ink about \Vhat I have done. The actions I took 011tl1ose days have forever cl1a11ged ine. I cannot take those days back. But I am ready to receive your judg1nent, so that I can inove forward to the next

chapter of n1y life. C. Criminal record [35] Criminal records play an important role in sentencing. Common sense says that a first-time offender will be treated more leniently than someone who commits one serious crime after another. Mr. Mikijuk does not have a prior criminal record. We are not dealing with a hardened criminal. In our Anglo-Canadian justice system, justice must always be tempered with mercy, especially for a first-time offender.

Forgiveness, healing, and understanding are also hallmarks of traditional Inuit justice. [36] The Criminal Code also requires a sentencing judge to consider mitigating and aggravating factors. D. Mitigating factors [37] There is one mitigating factor which goes to Mr. Mikijuk's credit. It works to lessen his sentence.

• Mr. Mikijuk pied guilty and he has accepted responsibility [38] This court always gives meaningful credit for someone who does this. E. Aggravating factors [39] Balanced against this mitigating factor are serious aggravating ones which work to increase his sentence: • Mr. Mikijuk put the lives of his neighbours and police at serious risk; • The neighbourhood had to be locked down for over forty hours; • The neighbourhood was sealed off during that time.

This caused anxiety, stress, expense, and inconvenience to everyone who lived there; • The resulting emotional trauma continues to reverberate; • City services to the area were disrupted; • Police ERT reinforcements had to be deployed from three southern jurisdictions at great public expense. F. Canadian Victims Bill of Rights [40] Victims of crime have the right to be heard in court.7 They may read out loud, or the Crown may file, a Victim Impact Statement. These statements bring to life the real effect crime has on peoples' lives. One cannot judge a crime without understanding how its victims were hurt.

These statements help ensure victims are not ignored during the sentencing process. [41] The prosecutor read out aloud two Victim Impact Statements. [42] Mr. Cameron McGregor and his wife lived in Happy Valley. His wife was stranded downtown. He could not leave his home. City services could not pump out his sewage. A property manager responsible for 7 Canadian Victims Bill of Rights, SC 2015, c 13, s 2 . tenants, he could not go to work. The incident left them fearful and nervous. [43] Doubtless, this experience was shared by many of their neighbours. [44] Cs!.

Stephan Kilabuk was in the observation post across the street. He was armed with a sniper rifle. He returned fire when he believed he was shot at. He is also a husband and father of three young children. His statement is moving and thoughtful. His family was very worried about him. Would he be hurt? Would her be killed? Would he come home? He hopes Mr. Mikijuk will look inside himself, and get the help he needs. V .SENTEN CE

[45] Mr. Mikijuk committed an extremely serious crime. He endangered the lives and safety of many innocent people. He brought his own neighbourhood to a standstill. He cost his community tens of thousands of badly needed tax dollars. Nunavummiut expect strong sentences for serious crimes. The objectives and principles of sentencing require a strong penitentiary sentence. [46] A penitentiary term is consistent with traditional Inuit justice. When a person threatened the traditional group's safety and security, that person could be, and sometimes was, banished. Many were welcomed later back into the group.

Forgiveness, reconciliation, reintegration and restitution were, and are still, key aspects of Inuit justice. As they are in the Nunavut Court of Justice. [47] First and foremost, the sentence I impose must emphasize denunciation and deterrence. Alcoholic though he is, Mr. Mikijuk bears a high degree of moral culpability. He is responsible for his actions. Alcohol abuse is no excuse. [48] Firearm related crime is far too prevalent in Nunavut. There has also been an alarming rise of armed robberies in Iqaluit. This is important. Hunting remains a way of life for many Nunavummiut.

Country food is an important daily need for many Nunavummiut. Hunters walking or travelling on skidoos through our communities with rifles slung over their shoulders are a common sight. The sentence I impose must signal the critical importance of fire arm safety, and responsible firearm use. A. The effect of the Gladue case [49] I have said many times, and I say again, rehabilitation is always the result we seek, even though the criminal law and the Territory give us few tools with which to work. The Nunavut Court of Justice cannot solve Nunavut's alcohol crisis.

The Nunavut Court of Justice cannot solve the Territory's mental health crisis. The Nunavut Court of Justice cannot solve widespread domestic and sexual violence. Jails are not the answer. Probation offers little meaningful help. It is up to our governments, community leaders, and elders who have the power and influence to act. [50] This is a case where the objectives and principles of sentencing compel a sentence where justice is tempered with mercy. The Crown recommendation is reasonable. It is justifiabl e in law. However, this court cannot ignore what brought Mr. Mikijuk before it. As Isaid earlier, Mr.

Mikijuk is not a hardened criminal. He is in trouble with the law for the first time. On April 28, 2015, he was drunk, which is no excuse; but, he was a distraught and suicidal alcoholic. Had his father stored his firearms properly and lawfully, the incident would not have happened. [51] This court cannot ignore that Mr. Mikijuk sought out help time and time again over the years. Mr. Mikijuk was an adolescent in distress. He became an adult in distress. We must come to grips with alcohol abuse in Nunavut. We must take meaningful action to help Nunavummiut in distress.

The need is urgent and if we do not, this tragic scenario will play out again and again in the future. This is the Gladue lens I spoke about earlier. [52] Therefore, the just and proper sentence is the mandatory minimum four-year jail term. The sentence would have been four years in a penitentiary even without the mandatory minimum. B. The effect of the guilty plea [53] This court always gives meaningful credit to offenders who take responsibility for their crimes. Mr. Mikijuk has taken responsibility for his actions. He appeared to express sincere regret. The prosecution avoids having to prove its case at trial.

Witnesses do not have to come to court. Our overloaded dockets do not have to accommodate a trial. Mr. Mikijuk's sentence is reduced, therefore, by 120 days. C. Credit for remand custody and sentence served

[54] Our law says offenders get enhanced credit for remand time. The credit is one and one half days for each remand day. This credit recognizes the harsh conditions experienced by prisoners on remand. In appropriate cases like here, it also acknowledges an offender's efforts at rehabilitation while in custody. Mr. Mikijuk spent 645 days on remand. Our law says this is equivalent to 968 days. Mr. Mikijuk, then receives 968 days of credit which I reduce from his sentence. [55] Stand up, please, Mr. Mikijuk. You are sentenced to four years, or 1460 days in prison.

Your sentence is reduced by 1088 days because of your early guilty plea and remand credit. You shall serve a further 372 days in territorial jail. D. Probation order [56] The jail term will be followed by probation for two years. Mr. Mikijuk, you will: • Report to probation in Iqaluit within two business days of your release from jail.

You will report thereafter as required; • Keep the peace and be of good behaviour; • Take any assessment, counselling, or treatment for alcohol abuse as directed by your probation officer; • Take any educational or vocational training as directed by your probation officer; • Not go inside any commercial establishment that sells alcohol; • Not keep alcohol in your home; and • Complete sixty hours of community service work by February 3, 2018.

This community service work is an opportunity for you to be seen making a positive contribution to our community. [57] I urge you to commit yourself to get the help you need while on probation and afterward. E. Ancillary orders [58] The Criminal Code provides for several ancillary, or related orders. I impose the following orders : [59] A Criminal Code

section 491 . (1) (

a) forfeiture order. The .17 calibre bolt action Savage Model 93R17 rifle fired by the accused, and its scope, are forfeited to Her Majesty. For whatever reason, Mr. Mikijuk chose to fire the .17 calibre Savage rifle instead of the other firearms available to him. Had the stand-off continued, those unlawfully stored weapons and ammunition were close at hand for use. I order those firearms and all seized ammunition forfeit to Her Majesty.

Those forfeited firearms are: one Browning 223 rifle with scope, one Carl Gustav rifle, and one brown shotgun and its barrel. [60] A mandatory Criminal Code section 109(1) order prohibiting Mr. Mikijuk from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance for ten years. [61] A mandatory Criminal Code

section 487 .04 primary designated ONA order. The police are empowered to obtain a sample of Mr. Mikijuk's DNA. That DNA will be registered in the national DNA data bank. [62] A mandatory $200.00 Victim Fine Surcharge. Mr. Mikijuk must pay the surcharge within six months of his release from jai l.

Dated at the City of Iqaluit this 3'd day of Februau. l Justice Paul B):'. ok Nunavut Co of Justice