R. v. Takatak, 2021 NUCJ 2

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Takatak, 2021 NUCJ 2 Date: 20210115 Docket: 13-17-65, 13-18-I-23 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Josie Takatak ________________________________________________________________________ Before: Madam Justice Tulloch Counsel (Crown): M. Tooke Counsel (Accused): A. Crowe Location Heard: Iqaluit, Nunavut Date Heard: January 5, 2021 Matters: Sentencing for offences under Criminal Code of Canada, RSC 1985, c C-46 ss. 235 , 270(1) (a), and 430(4) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Last Tuesday, I accepted Josie Takatak’s pleas of guilty and found him guilty with respect to two separate incidents which took place in Sanikiluaq on two separate dates. [ 2 ] The first incident took place on December 19 of 2017 around midnight when Mr. Takatak committed the offence of mischief and assault on a police officer. [ 3 ] The second incident occurred on June 18, 2018 when Mr. Takatak committed manslaughter involving the tragic death of Billy Arragutainaq. [ 4 ] I have carefully considered the submissions made by both counsel, together with the following:

a) Victim impact statements by Mr. Arragutainaq’s wife, Sarrasie and by Mr. Wilson, the homeowner whose property the accused damaged in 2017;

b) A presentence report prepared for purposes of sentencing;

c) A number of sentencing cases for manslaughter convictions submitted by both counsel;

d) Mr. Takatak’s criminal record; and

e) Mr. Takatak’s guilty pleas and his expression of remorse and apology. [ 5 ] I accept the description of facts as outlined by the Crown and as agreed to by the Defence. II. FACTS A. December 19, 2017 offences [ 6 ] With respect to the assault police and mischief convictions, a short

summary of the facts are as follows. [ 7 ] Around midnight on December 19 of 2017, the RCMP in Sanikiluaq received a call indicating that two men were fighting inside a house and one of them, identified as the accused, was destroying property and causing a disturbance. The police attended at the house owned by Mr. Wilson and observed the damage. [ 8 ] Witnesses at the scene told police that Mr. Takatak was responsible for breaking several antique Christmas tree decorations and for damaging a television set inside Mr.

Wilson’s home. [ 9 ] The accused had left by the time the police arrived, but they located him about 40 minutes after midnight face down on a bed in a residence next door to the place where the offence occurred. The police arrested him for mischief. [ 10 ] Mr. Takatak had blood on his shirt, lips, and mouth. He had been drinking and was angry. He struggled with the police when they attempted to put him in the police vehicle.

[ 11 ] Officer Kirwan tried to do a pat down search and the accused spit on him, trying to get the officer in the face. The accused was told to stop but he spit at the officer a second time which resulted in his blood being on Officer Kirwan’s jacket. [ 12 ] Mr. Takatak had to be taken to the ground by the officers. He continued to be extremely uncooperative throughout. B. June 18, 2018 offence [ 13 ] With respect to the manslaughter conviction, an agreed statement of fact was submitted on sentencing and marked as exhibit number one. I see no need to repeat all the facts in detail, but I will provide a brief

summary for the record. [ 14 ] I mean no disrespect to anyone, but I am going to refer to the parties mostly by their first names. I do this because first names are the ones most used in the community, and I find that often it makes what is said less complicated and easier to understand. [ 15 ] I start by expressing my sincere sympathy to Billy’s friends and family.

Losing someone you love in the circumstances I am about to describe is something you never forget. [ 16 ] Nothing can change the fact that on June 18, 2018 in the community of Sanikiluaq, Billy Arragutainaq lost his life at the hands of Josie Takatak. [ 17 ] I keep in mind throughout this decision that Josie’s actions that day resulted in a life sentence of pain and suffering for the Arragutainaq family and for Billy’s friends and acquaintances. [ 18 ] At the time of the offence, Josie was a known bootlegger in his home community of Sanikiluaq where the consumption and possession of liquor was and remains prohibited.

On the day Billy died, Josie sent out information that he had alcohol for sale at his home. [ 19 ] That afternoon and evening, several people attended Josie’s house to buy liquor. One of those people was Billy Arrangutainaq. [ 20 ] Billy and Josie knew each other well. They were friends and had family connections. [ 21 ] Billy wanted to buy alcohol from Josie but he had no money. He tried to persuade Josie to sell him a bottle of liquor on credit. He told Josie that he would pay him the following day.

Josie said no but he did allow Billy to drink some beer with him. [ 22 ] Witnesses who were present in the home describe both men as being drunk. [ 23 ] Two witnesses who were present when Josie and Billy were together at the house testified that they left because of concern over impending violence on the deceased’s part as Billy grew more drunk. [ 24 ] Billy’s blood alcohol content was recorded as 220 milligrams in 100 millilitres of blood which is almost three times more than the legal limit allowed to operate a motor vehicle. [ 25 ] Although Josie’s alcohol content was never tested, there is no doubt, even by his own admission that he was also very drunk when this awful event took place.

[ 26 ] After Josie refused to give Billy alcohol on credit and during a few minutes when both men were alone in the house, Josie showed Billy to the door. [ 27 ] After a few moments new customers attended Josie’s home and Billy was found lying on a small deck outside the front door of Josie’s house with an apparent stab wound. He was taken to the Health Centre and was pronounced dead shortly afterward.

The cause of death was a single stab wound to the heart resulting in internal bleeding. [ 28 ] Billy received immediate assistance from two men, but the injury was too severe to save him. [ 29 ] The accused fled the scene and on his return to home later that day, he locked himself in the house and refused to surrender to police. [ 30 ] The accused gave a statement in which he indicated that Billy had tried to fight with him and to defend himself he had taken a knife and stabbed him.

No weapon was ever found. [ 31 ] Given the very serious nature of this offence and the fact that there is a joint submission with respect to the 2017 offences, these reasons will be almost entirely focused on crafting an appropriate sentence for the manslaughter conviction. III. SENTENCING PRINCIPLES [ 32 ] I have also carefully considered, as I must in every case that comes before me for sentencing, the provisions contained in

section 718 of the Criminal Code . [ 33 ]

Section 718 instructs judges about the overall objectives of sentencing and the factors that must be considered when crafting a fair and fit sentence in all the circumstances of the offence and of the offender. [ 34 ] First, the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) To denounce unlawful conduct;

b) To deter the offender and other persons from committing offences;

c) To separate offenders from society, where necessary;

d) To assist in rehabilitating offenders;

e) To provide reparation for harm done to victims or to the community; and

f) To promote a sense of responsibility in offenders, and an acknowledgement of the harm done to victims and to the community. [ 35 ]

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 36 ] This is a case where a life was taken. The gravity of the offence of manslaughter is surpassed only by one of murder. Josie’s degree of responsibility is high.

[ 37 ]

Section 718.2(

a) indicates that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or to the offender. IV.

AGGRAVATING CIRCUMSTANCES [ 38 ] It is extremely aggravating that at the time of the offence Josie was participating in a dangerous and illegal activity while he was intoxicated to the point where he says he does not remember with any clarity much of what took place. [ 39 ] Although Josie is not charged with bootlegging, the court is mindful of the fact that this accused chose to be in the business of providing alcohol to anyone willing to pay his prices.

This was a business enterprise that was both illegal and dangerous. [ 40 ] Josie not only chose to ignore the wishes of his community to keep Sanikiluaq free from alcohol, but he benefitted financially from that decision. To make matters even worse, Josie chose to run his illegal business while he himself was substantially intoxicated from both drugs and alcohol. [ 41 ] All the ingredients for serious trouble were present: an illegal business operation, a drunk businessman, some vulnerable customers (many perhaps seriously addicted to alcohol) and the use of a weapon. [ 42 ] Billy wanted to drink.

He arrived at Josie’s house already drunk and both men continued to drink before the stabbing took place. [ 43 ] Although there may have been an element of self-defence present at the precise time when Josie was trying to get Billy out of the house, it was Josie who chose to introduce a sharp object into the already volatile situation, and it was Josie who stabbed Billy in the heart causing his death. [ 44 ] Josie’s criminal record is also an aggravating factor in sentencing.

Although it is somewhat dated it does contain a conviction for assault bodily harm and forcible confinement in 2011 plus an assault with a weapon and uttering threats in 2013.

It also contains eight breaches of court orders in 2011, 2012, 2013 and 2014. [ 45 ] Josie’s father and his common law spouse both agree that he is angry and can be violent when he is intoxicated, and he is a good person when he is sober. [ 46 ] Although this can be said by many people who routinely come before the court, it is an aggravating factor, given that the over consumption of alcohol on this occasion was a bad choice that led to a catastrophic result.

Alcohol played the lead role in Billy’s tragic death. [ 47 ] Finally, it is aggravating that Josie was on release conditions with respect to the 2017 offences at the time he took Billy’s life. V. MITIGATING CIRCUMSTANCES [ 48 ] The single most mitigating circumstance is that Mr. Takatak pled guilty to these offences, taking full responsibility. [ 49 ] This was not a prolonged assault. It happened very quickly and involved one stab wound. [ 50 ] There is no doubt that Josie is extremely remorseful and very sorry for what happened to his friend and relative Billy Arragutainaq.

The letter that he read out in court was heartfelt and he blames no one but himself for the death of a friend and a family member. [ 51 ] The court has been told that Josie has been a model prisoner during the approximately two and a half years that he has spent in custody awaiting resolution of these files. [ 52 ] Further, he has not wasted his time while in jail. Instead, he has taken several courses that have been made available to him.

He has earned certificates of completion for the following: • The Reformers Unanimous Addiction Program; • The Better Father, Better Husband Program; • The Alternatives to Violence Program; and • The Substance Abuse Program. [ 53 ] He also completed the Overcomers Workbook and a first aid course. [ 54 ] Josie also told the court that he has been participating regularly in the Men’s Program at the institution. [ 55 ] The fact that he recognizes his problems and is working hard on addressing them, is very encouraging and it speaks to his chances of rehabilitation once he is released from jail. VI.

THE BACKGROUND OF THE ACCUSED [ 56 ] I have had the benefit of a presentence report prepared by probation services with respect to Josie’s background. [ 57 ] It is very helpful and necessary to know as much as possible about the accused to craft a fit and fair sentence. [ 58 ] The Supreme Court of Canada cases of R v Gladue and R v Ipeelee , together with

section 718.2 of the Criminal Code require the sentencing judge to consider any unique systemic or background factors which may have played a

part in bringing Josie before the court. [ 59 ] Judges are called upon to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community. [ 60 ] Judges should take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Indigenous people. [ 61 ] However, these matters, on their own, do not necessarily justify a different sentence for Indigenous offenders.

These background facts are to be taken into consideration for all offenders, whether they are Indigenous or not. [ 62 ] Any disparity between the sanctions for different offenders needs to be justified. [ 63 ] Counsel has a duty to bring individualized information before the court in every case unless the offender expressly waives his right to have it considered. The court requires viable sentencing alternatives to imprisonment that may play a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

[ 64 ] As with all sentencing, this must be done with regard to the particular individual, the threat they pose, and their chances of rehabilitation and reintegration. Evaluating these options lies within the discretion of the sentencing judge. [ 65 ] In carefully reviewing the presentence report, I note that it appears that Josie was raised and adopted by his grandparents. He spent a lot of his time on the land being taught cultural skills.

Josie told the author of the report that he was very much loved by his parents and that he was surrounded by love and never witnessed any sort of abuse during his childhood. [ 66 ] Josie was married and they had four children. His wife left him approximately 12 years ago and moved to Churchill Manitoba. Josie told the probation officer that she left him because of his abusive behaviour.

He was left with the children for a while until he got in trouble with the law and the children were apprehended by Social Services and given to their mother in Churchill where they continue to live. [ 67 ] Josie is supportive of his children and provides for them financially whenever he can do so. [ 68 ] For about the last three and a half years, Josie has been in an “on again, off again” relationship with another lady who also talks about abusive and controlling behaviour being a problem. [ 69 ] Josie considers himself to be an active part of the community and he was an elected member of the Hamlet Counsel from 2016 to 2018. [ 70 ] Apart from the fact that Josie suffers from alcoholism and lives in a small community with limited resources, the presentence report is not particularly helpful or positive.

It does not set out any specific factors which may have played a significant role in why Josie Tatatak finds himself before the court today on this very serious matter. [ 71 ] I must recognize that the work he has done while he has been incarcerated with respect to rehabilitation assists with my evaluation of the threat he poses in the future and his eventual integration within the community. VII.

POSITIONS OF THE PARTIES [ 72 ] Following Josie’s guilty pleas to the 2017 offences of mischief and assault police, Crown and Defence have put before me a joint position as follows: 60 days on the assault relating to Officer Kirwan and seven days consecutive on the mischief charge. [ 73 ] They also agree that if I do impose probation on the manslaughter charge, the following probation terms should be added: a. Restitution in the amount of $400.00 payable to Mr. Wilson to pay for the damage to his property; b. Not to attend house #112A in Sanikiluaq; and c.

No contact directly or indirectly with Lawrence Wilson unless he provides written and revocable consent to the probation officer. [ 74 ] Following Josie’s guilty plea to the manslaughter charge, Crown and Defence both agree that the appropriate range for sentencing is four to four and a half years minus pretrial custody and a two year period of probation.

VIII. SENTENCE [ 75 ] Both counsel have provided me with a number of sentencing decisions related to a number of individuals inside and outside Nunavut who have been convicted of manslaughter. [ 76 ] They did this because

section 718.2 (

b) of the Criminal Code says: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” [ 77 ] I start of course by stating the obvious: Every case is unique and specific in terms of the facts of the case and/or the circumstances of the offender. [ 78 ] A very wide range of sentencing options are available for the offence of manslaughter. Each one is very dependent on the facts of the offence and the circumstances of the offender. [ 79 ] If someone causes death purely by accident, they commit no offence at all.

If they intentionally cause death, they commit murder.

Everything in between these two extremes is manslaughter. [ 80 ] Therefore, those facts that are closer to near accident are likely to attract a much lower sentence, while those closer to murder are likely to attract a much higher sentence. [ 81 ] I have carefully reviewed the cases presented by counsel and find them very helpful in supporting counsel’s overall position that an appropriate range for this offender in these circumstances is four to four and a half years of jail. [ 82 ] Notwithstanding the dreadful and significant loss felt by the Arrangutainaq family and Billy’s friends, it is important to understand that the criminal process is not an instrument of vengeance nor an instrument of appeasement.

The length of sentence is not and cannot be an attempt to place a value on Billy’s life. [ 83 ] The sentence I am about to impose upon Josie today is in no way a reflection or a measurement of the value of Billy’s life.

That value is far too vast to measure and nothing I do today can make up for the tragedy that has taken place. [ 84 ] Crafting a fair and fit sentence is never an easy task but it becomes far more difficult when it involves the loss of a young life. [ 85 ] I am convinced that this case warrants a sentence in the higher range suggested by counsel. [ 86 ] Deterrence and denunciation must be paramount.

The fact that Josie chose to run an illegal bootlegging business at the time he took Billy’s life cannot be ignored. [ 87 ] A tragic event such as this one is exactly what the community sought to avoid by prohibiting the possession and consumption of alcohol in the first place. [ 88 ] I balance this important factor with the letter of apology that Josie read out in court which talks a great deal about his remorse, the efforts he has made to change himself and the fact that he is very clear about his responsibility and his need to never drink again. [ 89 ] I will deal with the 2017 offences first as follows: On court file ending 65, I sentence Mr.

Takatak to 60 days on count #1;

assaulting a peace officer by spitting. On count #2, the mischief to Mr. Wilson’s property; I sentence him to seven days consecutive for a total sentence of 67 days jail. [ 90 ] I have not gone into detail with respect to these charges because they are much less serious than Josie’s manslaughter conviction. [ 91 ] Causing damage to someone’s property by being drunk is wrong and spitting at a police officer in the course of his duties is a despicable thing to do. Even though these charges are over three years old, they require an appropriate disposition highlighting deterrence and denunciation.

I find that the joint submission made by counsel is appropriate in the circumstances of these two offences and of this offender. [ 92 ] On the file ending 23 whereby Josie Takatak took the life of Billy Arragutainaq, the sentence of this court is four and a half years which amounts to 1620 days. This sentence is consecutive to the previous court file for a total jail sentence in the amount of 1687 days. [ 93 ] Counting today Josie has spent 942 real days in custody.

By law he is entitled to one and a half days for every day spent in jail waiting for these matters to be resolved which adds a further 470 days to his time in jail. This means Josie gets credit for pretrial custody in the amount of 1412 days. [ 94 ] Accordingly, for all the reasons mentioned, I find that a fit and fair sentence in these circumstances, for this offender is a total of 1687 days minus 1412 days spent in pretrial custody. This means that Josie Takatak will serve 275 more days in jail before being released on the following two-year probation order. The conditions of probation are as follows: a.

Report to the probation officer within five days of your release and thereafter as directed; b. Take counselling as directed; c. Abstain absolutely from the possession or consumption of alcohol; d. Have no contact directly or indirectly with Sarrasie, Natalie, Alice, or Noah Arragutainaq unless they provide their written and revocable consent to the probation officer. That consent can be withdrawn at any time. e.

Pay restitution in the amount of $400.00 to Lawrence Wilson through your probation officer within the first nine months of your probation order. [ 95 ] I have considered putting in a no contact clause for Mr. Wilson, but I am told that he did not want to lay charges in the first place and three years have passed since this offence. I have no indication of any kind that Lawrence Wilson is not wanting contact and I am hoping that Josie will deliver an apology together with the $400.00 in restitution. IX.

ANCILLARY ORDERS [ 96 ] The conviction for manslaughter comes with the following mandatory orders: [ 97 ] There will be a ten-year firearm prohibition pursuant to

section 109 of the Criminal Code . This means that Josie will not be allowed to use or possess any firearms, ammunition, or explosive substances for a period of ten years. [ 98 ] Although I did not hear specific submissions from Defence on the possibility of an exception under

section 113 of the Criminal Code , it is clear from the presentence report that Josie is a hunter and has been brought up on the land. I am therefore going to recommend a

section 113 exemption for purposes of sustenance hunting. Josie: That exemption is not automatic. Your lawyer can

explain this to you. [ 99 ] I must also impose an order that you submit your DNA to the national database within the next five days. [ 100 ] I have considered imposing a victim of crime surcharge but given the time in custody, the financial responsibility to your children and the pandemic, I will waive that fine because of undue hardship. [ 101 ] Finally, at tab 5 of Exhibit #1 in court file ending 23, there are several autopsy photographs depicting Billy’s injuries.

Given the nature of those photographs and being sensitive to the grief and privacy owed to Billy’s family, I order that a publication ban and viewing ban be placed on those photographs.

This cannot be lifted without a further court order. [ 102 ] My sincere hope Josie is that you will do exactly what you say you are going to in the letter you read out in court. [ 103 ] Once you are released from custody, you will have to work very hard to earn the trust of your community and of Billy’s family. [ 104 ] There is no doubt that the journey will be long and difficult, but you can succeed if you follow through on your pledge to counsel other people and to never drink alcohol again. [ 105 ] I hope that you continue to work on your rehabilitation plan during the remainder of your time in jail.

Dated at the City of Iqaluit this 15th day of January, 2021 ___________________ Justice B. Tulloch Nunavut Court of Justice