Supreme Court

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IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES 2 3 4 HER MAJESTY THE QUEEN 5 6 vs-7 ,8 9 10 JIMMY EKVANA 11 12 13 REASONS FOR JUDGMENT 14

15 of The Honourable Mr. Justice C. F. Tallis, delivered at the Court House in Yellowknife, 16. N .W.T., on Thursday, the 20th day of October, A.D. 1977. 17

18 On September 2 4 , 1977, the accused was found 19 guilty by a Jury presided over by me at Cambridge Bay, in 20 the Northwest Territories, on an indictment charging the 21 accused with what is commonly called "Manslaughter", con-22 trary to Section 217 of the Criminal Code of Canada. 23 Ths offence took place on October 23, 1976, in 24 the Centre of Cambridge Bay, in the Northwest Territories, 25 and the victim was one Paul' Anagak w h o , according to the pre-26 sentence report which is accepted as being accurate, was 27 related to the accused. N.W.T. 53<9 (3/77) ' ^ '

Sei c^ 77 ^1-^

fcl^. L'hlil'i-I^ miSm -2-1 I am indebted to both Counsel for their com-2 prehensive and able submissions on the facts, and also on 3 the principles applicable on the issue of sentencing in 4 this type of offence. I am also indebted to the Probation 5 Officer, Mr. O e ü n e k , who furnished the Court with a 6 comprehensive pre-sentence report, wliich was made available 7 to Counsel and which is now filed in these proceedings as ! 8 Exhibit S-1 on the question of sentencing. 9 In this particular case I did have the bene-10 fit of presiding ever the t r i a l , so that I heard all of the 11 'evidence on which the Jury were called upon to deliberate. 12 In this particular case the accused and the 13 decsased had baen drinking a great deal on the day in 14 questipn and I have no doubt that the accused was somewhat 15 drunk, to say the least, at the time of the death that 16- occurred, 17 I would observe that based on the evidence 18 there is no Suggestion that any weapon, such as a knife, 19 or club, or s t o n e , or anything of that nature, was used. 20 I mention this because during the course of argument my n •sentence in the case of the Queen v. Minilgak was dealt 11 with at length. I see very substantial differences dist-23 inguishing the Minilgak case and this case. 24 First of a l l , the accused Minilgak in that 25 case had a very lengthy record, which appears in my written 26 Judgment; and secondly, the evidence of Inspector Quinn 27 made it very clear that Minilgak had a reputation for

) vaüSL-L .3-1, violence and that members of the Community were extremely 2 afraid o f h i m , t o say the least. 3 ".__; In this particular case the accused, Jimmy 4 Ekvana, and the deceased were drinking along with another 5 companion in the "Jimmy Ekvana h o u s e " , if I may use that 6 term. During the course of the day an altercation did dev-7 elop, and it would appear that the Jury accepted the evid-8 ence that it was a very one-sided altercation, which res-9 ulted in the accused assaulting the deceased. 10 In many respects this case is very, very 11 similar to the facts of the case of The Queen v. Smithers, 12 "wh'ich is reported in 24 Canadian Cases, Second Series, 427. 13 Dr. Stirrat dealt at length with the cause of 14 'death, and in this particular case I think it is a fair 15 inference that the Jury obviously accepted his evidence. 16- This is one of those cases where the unlawful assault of 17 the deceased by the accused resulted in the accused - to use 18 a lay term, suffocating or choking to death on his own vomit 19 or aspiration. Dr. Stirrat indicated that if first aid 20 had been administered to the deceased within a few minutes 21 or so the death would not likely have ensued. 22 In this particular case I would also point 23 .out that the accused does have an excellent work record, 24 when you compare his Situation to other members of the 25 Community at Cambridge Bay that have been before the 26 Courts. 27

^O^ÜtLl .>̂ 6a H^HH S e c o n d l y . his criminal record does involve 2l two c o n v i c t i o n s that took place some y e a r s a g o , and also 3 they do i n v o l v e a s s a u l t . T h e r e was nothing in the sub-4 m i s s i o n s put f o r w a r d to this Court which would indicate that 5 these a s s a u l t s w e r e w h a t could be called " a g g r a v a t e d " 6 a s s a u l t s . 7 In this p a r t i c u l a r case the accused was 8 released on b a i l . I p r e s i d e d over the application for his 9 r e l e a s e , and at that p a r t i c u l a r time the Crown indicated 10 that they had no o b j e c t i o n to him being r e l e a s e d , and 11 f u r t h e r m o r e , it was clearly u n d e r s t o o d that he would be 12 going back to C a m b r i d g e Bay to w o r k , This gives us a very 13 clear i n d i c a t i o n that he does m a i n t a i n h i m s e l f ; and the 14 evidence of Mr. W i l l i a m L y a l l , who came to Court on a v o l -15 untary basis and was called before the C o u r t , is also of 16 very great a s s i s t a n c e in dealing with this man's position 17 in the C o m m u n i t y . 18 Mr. Lyall o u t l i n e d very fairly the accused's 19 S i t u a t i o n , and he did not in any way attempt to m i n i m i z e 20 or e x a g g e r a t e the S i t u a t i o n . He d i d , h o w e v e r , make it quite 21 clear that in the last y e a r or so this man has done very 22 w e l l , and it is common ground that even though he has very 23 limited e d u c a t i o n he has s u b s t a n t i a l ability in certain 24 fields to w h i c h he has a p p l i e d h i m s e l f . I make these o b s e r -25 vations b e c a u s e it p o i n t s out the n e c e s s i t y of dealing wiLn 26 each case on 1ts own f a c t s . 27 ^

1 » ^ ^ ^ ;r̂ »«f\ ^ .^um -5-1 U n d e r c e r t a i n c i r c u m s t a n c e s it is very d e s i r -2 a b l e to h a v e w h a t a r e c a l l e d " u n i f o r m s e n t e n c e s " , but 3 on the o t h e r h a n d , y o u h a v e to b e a r in mind that in c a s e s 4 of t h i s kind P a r l i a m e n t has g i v e n the s e n t e n c i n g j u d g e a 5 d i s c r e t i o n r a n g i n g f r o m s u s p e n d e d s e n t e n c e to life i m p r i s -6 o n m e n t . T h i s d i s c r e t i o n w a s n o t , in my v i e w , v e s t e d in a 7 trial j u d g e on the f o o t i n g that he w o u l d i g n o r e i t. On ^ the c o n t r a r y , I t h i n k it w a s v e s t e d in a trial j u d g e so 9 that in a p r o p e r c a s e füll c o n s i d e r a t i o n w o u l d be g i v e n 10 to the f a c t u a l b a c k g r o u n d of the o f f e n c e and the S i t u a t i o n 11 of the a c c u s e d , t h e c o m m u n i t y , and the m e m b e r s of the 12 f a m i l y o f the v i c t i m . 13 I s h o u l d a l s o m e n t i o n in my J u d g m e n t in the ) 14 M i n i l g a k c a s e I p o i n t e d o u t t h a t I hoped t h a t m e m b e r s of 15 the C o m m u n i t y w o u l d t a k e s t e p s to deal w i t h the p r o b l e m 16 of e x c e s s i v e use of l i q u o r . I p o i n t e d out this m i g h t help 17 to a v e r t c r i m e s o f v i o l e n c e such as t h a t o n e , w h i c h w a s 18 a m a n s l a u g h t e r c a s e . In s a y i n g t h a t , I r e c o g n i z e that 19 m e m b e r s o f the C o m m u n i t y look to the P o l i c e and to the 20 Co u r t s to a s s i s t w h e n c r i m e s of v i o l e n c e h a v e o c c u r r e d 21 or are a b o u t to o c c u r . H o w e v e r , I w a n t to r e - e m p h a s i z e 22 what I said e a r l i e r , and t h a t is t h a t m e m b e r s of the 23 C o m m u n i t y h a v e , in my o p i n i o n , a v e r y s u b s t a n t i a l r e s p o n s -24 ibility to t a k e S t e p s to g r a p p l e w i t h the l i q u o r p r o b l e m s 25 in that C o m m u n i t y , w h i c h has on m a n y o c c a s i o n s been v i v i d l y 26 d e s c r i b e d to me by m e m b e r s o f che p o l i c e f o r c e in the 27 course of g i v i n g t h e i r e v i d e n c e . N.W.T. 5349 (3/77) ^

.Jim -6-1 In the case of The .Queen v. Minilgak I took 2 time to lay down and discuss the general principles of 3 sentencing. At the risk of repetition I would point out 4 that the position of a trial judge or an appellate judge 5 has been by Chief Justice Culliton succinctly stated in 6 the case of Regina v. Morrissette et al, 12 Criminal 7 Reports, New Series, 392, at 3S3, and I quote: "There is no problem which causes both the 9 "trial judge and the members of this Court 10 "more anxious consideration than the deter-11 "mination of an appropriate and proper sent-12 "ence for a criminal offence. Both trial and 13 "appellate judges must be ever mindful of tne » 14 "fact that the principal purpose of the crim-15 "inal process, of which sentencing is an imp' 16 "ortant element, is the protection of society 17 " From time to time Courts have rev-18 "iewed the principles to be considered in the 19 "determination of proper sentences. This 20 "Court recently did so in Regina v. Kissick 21 "(1969) 70 Western Weekly Reports, 365. As has been 22 "Stated many t i m e s , the facts to be consid-23 "ered a r e : (1) punishment; (2) deterrence; 24 "(3) protection of the public; and (4) the 25 "reformation and rehabilitation of the offencler 26 • . II The real problem arises in deciding 27 "thq factor to be emphasized in a particular N.W.T. 5349 (3/77)

•,\'ii P ;.sÄl - 7 -\pO[>tv / 1 "case. Of necessity the circumstances surr-2 "ounding the commission of an offence differ 3 "in each case, so that even for the same 4 "offence sentences may justifiably show a wide 5 "variati on." 6 I might also add that I have carefully read 7 again the case of Regina v. Wilmott (1967) l Canadian 8 Criminal Cases at l7l and Regina v. Hinch and Salanski, 9 82 Western Weekly Reports, page 205. Furthermore, I have 10 carefully considered the case of The Queen v. Smith, 11 25 Criminal Reports, New Series, at page 350. I refer to 12 that particular judgment because it was an appeal by the 13 Crown where Mr. Justice Johnson , now Chief Justice Johnson, 14 of the Saskatchewan Court Queen's Bench, granted a sus-15 pended sentence to the accused on a manslaughter conviction. 16 . The sentence was not upheld on appeal, and I think that it 17 contains some useful guidance for trial judges. 18 In this particular case it has been stren-19 uously and sincerely urged that the welfare and the re-20 habilitation of the accused is a very important factor. 21 In this particular case I agree that this is a very import-22 ant factor which has to be taken into account, but I cannot 23 exciude all of the otlier factors. I do, however, mention 24 that I am giving substantial emphasis to this factor 25 in this case because of the facts and circumstances as 26 they unfolded, and as I have already pointed out, there are 27 very substantial differences between the facts and

^iii^ ^%i0^^r^mf

Xpoüv 1 circumstances of this case and thefacts of The Queen v. 2 Minilgak. 3 On the other hand, I would point out that 4 manslaughter is a serious offence, as was recognized by 5 Parliament, the Courts and this Community. In the present 6 case there are mitigating circumstances relevant to the 7 offence in that the case of death in this particular case 8 was somewhat unusual. 9 The offence itself was not characterized by 10 what you might commonly call a "savage beating" with fists, 11 or boots, or with clubs or knives, or something like that. 12 However, this case does illustrate when one embarks on a 13 course of action such as an unlawful assault he must take 14 the consequences, and if the victim happens to have a 15 thin skull or happens to have a particular condition which 16 is aggravated by the assault and results in death, then 17 the consequences are quite clear. 18 In the case of The Queen v. Smithers that I 19 have already referred to the Court in that particular case 20 passed a sentence of six months' imprisonment, That case 21 passed through the Ontario Court of Appeal and was finally 22 decided in the Supreme Court of Canada, with the lower 23 Court judgments being upheld. 24 However, on reviewing the complete transcript 25 of the trial proceedings, including the addresses of 26 Counsel and the Judge's Charge and the Jury's verdict, I I 2.7 find that the Jury made a ve.ry clear recommendation for

N D Ü D V 1 for leniency in sentence, because of the youthfulness of I

2 the accused. 3 On the other hand, in the case of The Queen 4 V. Smith that I mention the Court of Appeal in that 5 case thought that a sent ice of three years in the Penit-6 entiary was an appropriate sentence, notwithstanding the 7 mitigating circumstances that are outlined in that part-8 icular Judgment. 9 In this particular case I am satisfied that a 10 Short sentence, such as in The Queen v. Smithers is not 11 warranted. Furthermore, it is likely to be considered by 12 the public of the particular community of Cambridge Bay 13 as an indication that the Courts would not take a serious 14 view of manslaughter. This is not so, and I emphasized 15 that'fact in the case of The Queen v. Minilgak. 16 There may be exceptional circumstances when 17 a suspending of sentence for manslaughter may be justified. 18 However, in my opinion there are not exceptional circum-19 stances in this case which would justify the imposing of 20 a suspended sentence. 21 The adequacy of the sentence depends upon 22 all of the relevant circumstances and, as I stated earlier, 23 there can be no such thing as a uniform sentence on a 24 Charge of manslaughter. • . 25 In the present case I want to emphasize that 26 a sentence is not being imposed in a vindictive way. In j \ 27 other words, punishment as such is not being emphasized, |

N.W.T. 5349 (3/77)

10-1 but on the other hand, the seriousness of the offence and 2 the element of deterrence must be considered. This is a 3 case wherein I have indicated the Court is justified in 4 showing a degree of leniency. I have concluded in all of 5 the circumstances that this case does not call for a 6 Penitentiary term. 7 Giving proper consideration to the views that I have expressed, and bearing in mind the various factors 9 that must be taken inte account as outlined by a number 10 of authorities that I have referred to, as well as the time 11 spent in custody prior to bail and later while awaiting 12 sentence, I think a sentence of two years, less a day, is » 13 an adequate and appropriate sentence. •14 I therefore sentence the accused to a term 15 of two years, less one day, in the Yellowknife Correctional 16 Centre. 17 I should add that, on the basis of the inform-18 ation placed before this Court, the accused may well be 19 worthy of consideration on the question of parole or an 20 early work release, This, of course, will be a matter for 21 the penal authorities to assess and determine, but on the 22 basis of the information that has been placed before the 23 Court - and I include in that the pre-sentence report, 24 the oral Statements of Mr, William Lyall, and the.sub-25 missions of Counsel, I think this is a case that calls for 26 an early assessment as far as this particular accused is 27 concerned. l^\\ß T cs-tn ''''