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Abstract: Transcript of the Reasons for Sentence
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R. v. Keyuajuk, 2007 NWTSC 71 S-1-CR-2007-000029 S-1-CR-2007-000030 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - JONAH KEYUAJUK _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice L. Charbonneau at Yellowknife in the Northwest Territories, on Friday, August 24 A.D., 2007. _________________________________________________________ APPEARANCES: Ms. C. Gagnon: Counsel for the Crown Mr. D. Rideout: Counsel for the Accused ---------------------------------------------- Charge under s. 267(b) x 2 and 267(a) of the Criminal Code of Canada Official Court Reporters 1 THE COURT: Good morning, everyone. 2 MR. RIDEOUT: Good morning, Your Honour. I 3 would ask that my client be able to sit next to 4 me. 5 THE COURT: The Crown's position is the 6 same as earlier this week? 7 MS. GAGNON: It is, Your Honour. 8 THE COURT: You can come forward, Mr. 9 Keyuajuk. 10 Counsel, I am ready to give my decision but 11 I thought I would ask you first, Ms. Gagnon, if 12 you were able to confirm the situation with 13 respect to the DNA order. 14 MS. GAGNON: I have, Your Honour, and DNA 15 has been obtained in the past. 16 THE COURT: Thank you very much. 17 Well, Mr. Keyuajuk, I am now going to 18 deliver my reasons for sentence and I will talk 19 for sometime and I need to look at my notes so if 20 you will bear with me. 21 Mr. Keyuajuk has pleaded guilty to three 22 serious offences. The first is an assault on 23 Leeveena Turqtuq, his common-law spouse, in the 24 early morning hours of June 13th, 2006, that 25 assault having caused bodily harm to her. The 26 other two charges, both from November 23rd, 2006 27 are for having assaulted Susie Ahegona and Official Court Reporters 1 1 causing bodily harm to her and having assaulted 2 Walter Goose with a weapon, namely a metal pipe. 3 It is now my responsibility to sentence Mr. 4 Keyuajuk for these crimes. 5 The circumstances of these offences were 6 recorded in Agreed Statement of Facts that were 7 made exhibits at the sentencing hearing and were 8 read by the Crown prosecutor. It is important to 9 recount what those facts are to put my sentencing 10 remarks in their proper context. 11 The first crime was the one involving Mr. 12 Keyuajuk's spouse. On the night this happened, 13 they had rented a room at a hotel in Yellowknife. 14 During the night there was an argument over a 15 bottle of liquor. Mr. Keyuajuk punched his 16 spouse several times in the head, causing her to 17 go unconscious. In the meantime, there had been 18 a complaint about noise in the room so security 19 personnel from the hotel went to the room. The 20 victim tried to open the door but someone was 21 keeping it shut from the inside. The personnel 22 said they would call the police, and a short time 23 later the victim was seen running naked from the 24 room. Her face was bloody and swollen. 25 She said that while she was in the room with 26 Mr. Keyuajuk he said he was going to kill her but 27 she was able to get away. She was taken to the Official Court Reporters 2 1 hospital. The right side of her face was 2 injured. She had a cut behind her ear, her cheek 3 was swollen and her cheekbone was fractured. She 4 also had bruising to her arm. 5 The police were not able to find Mr. 6 Keyuajuk after this incident so a warrant for his 7 arrest was issued on June 26th. That warrant 8 remained outstanding for over four months. There 9 is no evidence before me as to where Mr. Keyuajuk 10 was during those months, whether he knew there 11 was a warrant out for his arrest, whether any 12 efforts were made to locate him, but the warrant 13 was executed on November 13, 2006. The 14 authorities decided to release him on a promise 15 to appear with an undertaking to a peace officer. 16 The only conditions on that undertaking were that 17 he have no contact with the victim of the 18 assault, that he not attend her residence and 19 that he report to the RCMP once a week. 20 Just 10 days later, on November 23rd, 2006, 21 the other two offences were committed. That day 22 Mr. Keyuajuk had spent time with Walter Goose 23 collecting bottles around town to take them to 24 the recycling depot and also doing some 25 shovelling to earn money. They bought some 26 liquor and then walked to a location behind the 27 Explorer Hotel. Mr. Goose at the time was Official Court Reporters 3 1 staying in a tent that was set up at that 2 location. 3 They did not stay there for very long. By 4 then they had consumed the liquor they had bought 5 and they went back into town and did more 6 shovelling and eventually went to a local bar, 7 each going their separate ways. 8 Mr. Goose ran into Ms. Ahegona in the bar. 9 She did not have a place to stay so he said she 10 could come back and stay at the tent for the 11 night. Mr. Goose and Ms. Ahegona walked back to 12 the tent. By then it was around 11 p.m. When 13 they got there, Mr. Keyuajuk was already there. 14 They began drinking liquor together. Mr. Goose 15 and Mr. Keyuajuk also shared some marijuana. 16 They got quite high. For no known or apparent 17 reason, Mr. Keyuajuk became very aggressive. Mr. 18 Goose was trying to sleep apparently and Mr. 19 Keyuajuk started shoving him and pulling at him 20 to get him up. He leaned over and punched Mr. 21 Goose several times in the face. He got on top 22 of Mr. Goose and continued to punch him and he 23 also started punching Ms. Ahegona in the face. 24 Mr. Keyuajuk then armed himself with a metal 25 pipe and started hitting Mr. Goose with it in 26 various parts of his body. Mr. Keyuajuk told Mr. 27 Goose that Mr. Goose was going to die that night. Official Court Reporters 4 1 Mr. Goose found a knife and he was able to cut 2 his way out of the tent and ran away. As he was 3 leaving the tent he could see that Ms. Ahegona's 4 face was full of blood. 5 Mr. Goose came upon people on the street 6 when he got out of the bush and asked for their 7 help. The police were called. Mr. Keyuajuk was 8 seen walking out of the bush a short time after 9 and the police arrested him without incident. 10 Ms. Ahegona was seriously injured as a 11 result of this attack. One of her ribs was 12 fractured, she had injuries to her jaw, the 13 inside of her lip, the back of her head and her 14 forehead. She had cuts that required stitches to 15 the inside and outside of her lip, her chin, her 16 forehead and her cheek, and she also had to have 17 several staples put on the top of her head. The 18 photographs that were filed at the sentencing 19 hearing show the injuries and are further 20 evidence of the level of violence that was used 21 in this attack. Ms. Ahegona was in hospital for 22 a number of days and eventually checked herself 23 out against medical advice. She remembers 24 nothing of how she got injured. 25 Mr. Goose was also taken to the hospital for 26 his injuries. He had a cut under his eye and 27 abrasions to his neck, both his shoulders and Official Court Reporters 5 1 elbow, a large bump on his head and significant 2 bruising to his ankle, and again photographs 3 showing those injuries were filed at the 4 sentencing hearing. 5 The recital of these facts is a sad but 6 necessary account of what happened of what Mr. 7 Keyuajuk did in his intoxicated unexplained rage. 8 Any time a court has to impose sentence it 9 has to take into account the circumstances of the 10 offence, the circumstances of the offender and 11 the general principles and purposes of sentencing 12 that are set out in the Criminal Code. 13 Dealing first with the offence, these were 14 three violent attacks. There were many 15 aggravating factors or features to them, things 16 that increased Mr. Keyuajuk's blameworthiness, in 17 my view. The first is that death threats were 18 made while these assaults were taking place. It 19 is clear that the victims took those threats 20 seriously and it is not hard to understand why 21 they did. Mr. Keyuajuk's spouse was so afraid 22 that she ran out of the hotel room naked. As for 23 Mr. Goose, he cut his way through a tent and left 24 his friend behind knowing she was injured and at 25 risk because presumably he thought that it was 26 the only way he could save himself and get help 27 for her. Official Court Reporters 6 1 The next aggravating feature is the extent 2 of the injuries. In my view, those are not at 3 the minor end of the scale of what constitutes, 4 in law, bodily harm. I consider them to be at 5 the higher end of what constitutes bodily harm 6 but still falls short of the legal definition of 7 wounding. 8 The first victim's cheekbone was broken, so 9 was Ms. Ahegona's rib. Ms. Ahegona was 10 hospitalized and would have been in the hospital 11 longer if she had followed medical advice. I do 12 not need to repeat the details of the injuries 13 here but I would say they were extensive. 14 Next I consider the persistence of Mr. 15 Keyuajuk in assaulting his victims. This again 16 is a feature of both these incidents. In the 17 first case, the intervention of security people 18 from the hotel did not appear to stop things. 19 They were prevented from coming inside the room. 20 In the second case, the attack went on for some 21 time and was escalated by Mr. Keyuajuk arming 22 himself with a weapon. I do not think it is a 23 stretch to say that using a metal pipe to hit 24 someone in the head and elsewhere could have 25 easily led to much more serious injuries. In 26 that sense Mr. Goose was lucky and indirectly Mr. 27 Keyuajuk was lucky. Official Court Reporters 7 1 With respect to the first assault, another 2 aggravating factor is that the victim was Mr. 3 Keyuajuk's spouse, someone who should have been 4 able to trust him, to turn to him for assistance, 5 support and protection. Long before this was 6 specifically made an aggravating factor in the 7 Criminal Code, this court considered that the 8 fact that a crime of violence is perpetrated 9 against a spouse is an aggravating factor. 10 With respect to the assault on Ms. Ahegona, 11 she appears to have been asleep, either through 12 all or through part of the incident. She would 13 have been in a particularly vulnerable position, 14 unable to see this coming, unable to defend 15 herself, unable to try to escape, and I find this 16 aggravating as well. 17 I have also taken into account what she 18 wrote in her Victim Impact Statement that she 19 prepared and was read in court by the Crown 20 prosecutor. Ms. Ahegona talks about the effect 21 this crime had on her. Because she was in 22 hospital she lost her job as a dishwasher at a 23 local restaurant. She reports feeling things 24 that victims of violence often report feeling - a 25 sense of loneliness, of not being able to talk 26 about what happened. What she wrote is sadly 27 familiar and is consistent with what we often Official Court Reporters 8 1 hear about the impact that violence has on 2 victims. 3 Finally, these offences were all committed 4 at a time when Mr. Keyuajuk was on probation. 5 That probation order was made when he was 6 sentenced for another crime of violence, assault 7 causing bodily harm. That sentencing took place 8 in Nunavut in December of 2005. He received a 9 six-month gaol term followed by probation at that 10 time. He was released in April of 2006, so he 11 had only been at large for about two months when 12 the first of these crimes was committed, and that 13 is highly aggravating as well. 14 Submissions were made about the 15 significance, if any, that I should attach to the 16 four months or so where Mr. Keyuajuk was at large 17 while the arrest warrant was outstanding. I have 18 thought about the submissions that I heard and in 19 the end I consider this to be a neutral fact 20 because I really have no evidence that he was 21 deliberately trying to evade the authorities 22 during that time. 23 I must add that it seems surprising, at 24 first blush at least, that despite his criminal 25 record, despite the history of breaches and his 26 recent release from serving his last sentence, 27 and the existence of a probation order, that the Official Court Reporters 9 1 authorities chose to give Mr. Keyuajuk a promise 2 to appear and have him give an undertaking to a 3 peace officer when that June arrest warrant was 4 finally executed. 5 Mr. Keyuajuk had not been found for over 6 four months, he appeared to have a limited 7 connection to Yellowknife, he had a bad record 8 and he was facing a serious charge for an assault 9 on his spouse. Of course, the arrest warrant had 10 been endorsed so it was open to the authorities 11 to put him on the form of process that they did, 12 but the endorsement would not have precluded 13 other courses of action. 14 That being said, I am aware and I recognize 15 that I do not know what information was available 16 then or what the decision was based on. I make 17 these remarks mostly to underscore and to make 18 sure that it is clear that the fact that a 19 warrant has been endorsed permits this form of 20 release but it does not mandate it. 21 The next area I must take into 22 consideration, as I said at the outset, are the 23 circumstances of Mr. Keyuajuk. He is of Inuit 24 descent, born in Pangnirtung in Nunavut and still 25 has family there. He has many siblings and he 26 has a 15-year-old son. Counsel has conveyed to 27 the court information that was provided to him Official Court Reporters 10 1 about Mr. Keyuajuk's youth by one of Mr. 2 Keyuajuk's sisters. 3 There was reference made to the fact that he 4 and other family members may have suffered some 5 abuse at some point. I have also heard that 6 until his early teenage years, Mr. Keyuajuk seems 7 to have been a happy, healthy child who enjoyed 8 going out on the land with his family. 9 Something, it is not at all clear what, seems to 10 have happened at some point. I have heard that 11 Mr. Keyuajuk started suffering fainting spells 12 when he was about 13 and that in the same time 13 frame it is reported that he started having some 14 behavioural changes but, as I have said, much 15 remains unclear about what happened to him and, 16 of course, I cannot speculate about that. 17 What is also clear is that when he was still 18 relatively young, he started getting in trouble 19 with the law. Initially this trouble consisted 20 of property offences but unfortunately later on 21 Mr. Keyuajuk began committing crimes of violence. 22 He received relatively short gaol terms in 1993 23 and 1995 for assault and assault with a weapon. 24 He received a day in gaol for a sexual assault in 25 1996, eight months in gaol for an assault with a 26 weapon later that same year, and then in 1997 he 27 received a penitentiary term of seven years for Official Court Reporters 11 1 the very serious crime of aggravated sexual 2 assault. 3 While in gaol he was convicted for a further 4 assault, and after his release from that long 5 sentence he was convicted for various other 6 offences including uttering threats in 2005 and, 7 as I have mentioned, that last conviction in 8 December of 2005 for assault causing bodily harm. 9 This criminal record is highly aggravating. 10 Not because courts can or should punish a person 11 over and over again for crimes that appear on 12 their records but because the record shows a 13 consistent pattern of violence over several 14 years. From that pattern and from what I have 15 heard about the June and November offences, it 16 seems that alcohol, drugs and maybe the mix of 17 the two trigger or unleash something in Mr. 18 Keyuajuk that makes him very, very explosive and 19 dangerous to those around him. 20 Turning now to the sentencing principles 21 that must guide me, they are set out mainly in 22 section 718 to 718.2 of the Criminal Code, but 23 also in some other sections. I will not read 24 them all now but I have considered them. I will 25 simply emphasize those principles that in my view 26 are the most relevant to this case. 27 The first one is the protection of the Official Court Reporters 12 1 public. As I have already said, the evidence 2 before me suggests that this can be a very 3 dangerous person to those around him. Personal 4 deterrence or the need to deter, discourage Mr. 5 Keyuajuk from acting this way is also relevant. 6 Denunciation - that is, the expression of 7 society's disapproval of gratuitous violence - is 8 also very relevant in this case, and separation 9 is relevant. Until Mr. Keyuajuk, with the help 10 of professionals, addresses the issues that 11 underlie his conduct and the addictions that 12 contribute to making him act this way, separating 13 him from society seems to be the only way to 14 protect the public. 15 Because I am sentencing him for several 16 offences, I must also be mindful of the principle 17 of totality. That principle requires me not to 18 simply add the three sentences that would be 19 imposed for each of these offences but to also 20 consider the cumulative and global impact of 21 those sentences so that the final and total 22 result is not one that is excessive. 23 Mr. Keyuajuk is of Aboriginal descent and 24 for that reason I must also take into 25 consideration section 718.2(e) of the Criminal 26 Code. This provision requires the court to 27 consider all available sanctions other than Official Court Reporters 13 1 imprisonment that are reasonable in the 2 circumstances, with particular attention to the 3 circumstances of Aboriginal offenders. 4 The Supreme Court of Canada has provided 5 guidance about the effect of this provision and 6 what it requires sentencing judges to do. The 7 purpose of the provision was to address the 8 overrepresentation of Aboriginal people in gaol. 9 It directs the court to approach sentencing of an 10 Aboriginal offender in a way that acknowledges 11 the unique circumstances of Aboriginal people 12 and, in particular, the unique systemic or 13 background factors that may have played a part in 14 bringing the person before the court, as well as 15 the type of sentencing procedures or sanctions 16 that might be appropriate because of the 17 offender's heritage. 18 Mr. Keyuajuk's counsel advised, when I 19 raised this issue, that he was not aware of any 20 particular background or systemic factors that 21 Mr. Keyuajuk faced that ought to impact on 22 sentencing in this case, and I also gather from 23 the submissions that I heard that counsel 24 recognize in any event that given the seriousness 25 of these offences, this is not a case where those 26 types of systemic considerations could operate to 27 mitigate or reduce the sentence that must be Official Court Reporters 14 1 imposed. The Supreme Court of Canada in its 2 analysis of this provision did say that the more 3 serious the offence, the less likely the ultimate 4 sentence is to be affected by these types of 5 considerations, and I am sentencing this offender 6 today, as I have already said, for very serious 7 offences. So I have given consideration to this 8 factor but I find that in the circumstances of 9 this case it has minimal impact. 10 I want to speak now about the mitigating 11 factors. I have spoken at length about some of 12 the aggravating factors that are present in this 13 case but I must not overlook the mitigating 14 factors. There are two really - the time that 15 Mr. Keyuajuk spent in pretrial custody and the 16 fact that he has pleaded guilty. Mr. Keyuajuk 17 deserves to be given considerable, and I emphasis 18 this, considerable credit for his guilty pleas. 19 It has saved the costs and time of holding trials 20 into these matters, but beyond any material costs 21 that have been avoided a significant human cost 22 has been avoided as well. 23 Accused persons have the right to rely on 24 the presumption of innocence and have a trial. 25 They have the right to have the Crown call 26 witnesses to prove beyond a reasonable doubt that 27 they are guilty. Giving up that right is a very Official Court Reporters 15 1 significant thing. Anyone who has seen a 2 criminal trial unfold knows that they are very 3 hard on witnesses. There is the uncertainty of 4 the outcome, of course, but there is much more. 5 Most people find it extremely difficult to come 6 to a public courtroom and talk about traumatic 7 things that have happened to them. To look at 8 pictures of their own bruised and swollen faces 9 and confirm that, yes, this a picture that shows 10 what they looked like after the incident, 11 reliving it all, being asked numerous questions 12 about all the details. 13 Sparing someone from that experience is 14 something that is worth recognizing and that is 15 why courts give such significant credit to guilty 16 pleas. In this case, although the guilty pleas 17 were not entered at the first available 18 opportunity, based on the submissions I have 19 heard I am satisfied that they should be treated 20 as early guilty pleas. The matters were set for 21 preliminary hearings but the hearings were 22 waived. Defence counsel communicated this to the 23 Crown ahead of the date, which I infer means that 24 witnesses knew ahead of time that they would not 25 be required to testify. 26 I also accept that the Crown may have faced 27 certain challenges in prosecuting these matters. Official Court Reporters 16 1 I know from the facts that I heard and from the 2 submissions that were made that the whereabouts 3 of Ms. Ahegona are not currently known, that she 4 had no recollection of how she got hurt, that 5 alcohol was involved in both incidents, which 6 often results in memories of witnesses being less 7 clear that might otherwise be the case. 8 Those things must be factored in when 9 assessing the mitigating impact of a guilty plea. 10 If a person is inescapably caught that is one 11 thing, but giving up a right to a trial when 12 there are live issues is another thing. So for 13 all of those reasons, I consider the guilty pleas 14 as very significant. Without those guilty pleas, 15 Mr. Keyuajuk would be facing a much, much longer 16 sentence today. 17 Next I must turn my attention to the remand 18 time. The Criminal Code says that in imposing 19 sentence, courts may take into account time that 20 has been spent in pretrial or presentence 21 custody. Whether credit is given for presentence 22 custody and the extent of the credit given are 23 matters within the sentencing judge's discretion. 24 That discretion has to be exercised on a 25 case-by-case basis but there is case law that 26 guides judges in the exercise of that discretion. 27 The case of R. v. Wust, a decision from 2000 by Official Court Reporters 17 1 the Supreme Court of Canada, has settled some of 2 the points of controversy in this area and since 3 that case was decided other cases have provided 4 further guidance. Some of those cases were filed 5 by the Crown prosecutor. 6 There is no dispute, it seems, between the 7 Crown and the defence in this case that there is 8 a general practice to credit remand time on a 9 ratio of two to one. This sometimes surprises 10 members of the public. Why should a person get 11 double credit for remand time? The reasoning 12 that most courts seem to adopt, and certainly 13 that the Supreme Court of Canada has endorsed, is 14 that the basic reasons are that remand time is 15 considered harder time because remand prisoners 16 often do not have access to the same types of 17 programs and facilities than prisoners who are 18 serving sentences. Conditions in remand centres 19 are often more harsh; for example, overcrowding 20 is a frequent problem in some areas. People who 21 serve sentences have the benefit of early release 22 programs and remission, which usually results in 23 them being released before the end of their 24 sentence. Remission and early release does not 25 apply to remand time. 26 Because those are the underlying reasons for 27 granting enhanced credit for remand time, courts Official Court Reporters 18 1 have found sometimes it is appropriate for a 2 sentencing judge to give credit for remand time 3 on a greater ratio than two for one; for example, 4 if the remand conditions are particularly harsh 5 or if there have been extensive delays in 6 proceedings or other unusual circumstances. 7 On the other hand, the courts can reduce the 8 level of credit given and the factors that are 9 used to justify this are usually that the person 10 on remand has, in fact, had access to the same 11 programs as they would have if they had been 12 serving prisoners, or if their history of 13 incarceration is such that it is unlikely they 14 will get the benefit of remission or early 15 release, or if they are seen to pose a serious 16 danger to society. 17 In this case, the Crown acknowledges that 18 Mr. Keyuajuk should receive some credit for the 19 nine months he has spent on remand since November 20 of 2006, but argues that the circumstances of 21 this case justify a departure from the usual 22 two-to-one ratio. The Crown is suggesting that a 23 one-for-one ratio should be used. The Crown is 24 not relying on factors related to the 25 availability of programs but says that the 26 criminal record of Mr. Keyuajuk shows a history 27 that shows that he poses a serious danger to Official Court Reporters 19 1 society and that he may not benefit from early 2 release programs. 3 The Crown points in particular to the fact 4 that the record shows he was granted statutory 5 release on the seven-year sentence imposed in 6 1997 but was recommitted to custody because of 7 the breach of the release conditions. 8 Defence counsel is asking me to apply the 9 usual two-to-one ratio when calculating the 10 credit to be given on the remand time. He 11 advises that the revocation of the early release 12 in 2002 was for smoking marijuana and 13 characterized this as a relatively minor breach, 14 all things being relative, so defence counsel 15 argues that this is not a case where there is any 16 reason not to give Mr. Keyuajuk double credit for 17 his remand time. 18 As Crown counsel acknowledged, I cannot 19 speculate what the National Parole Board will do 20 or how it will administer Mr. Keyuajuk's 21 sentence. I note that his significant criminal 22 record did not prevent him from getting early 23 release from his 1997 sentence. The same record 24 and the fact that he violated his release 25 conditions then did not prevent him from being 26 released before the expiration of the sentence 27 that was imposed in December 2005, although I Official Court Reporters 20 1 realize that that sentence would have been 2 administered by territorial correctional 3 authorities and not the federal ones. 4 So Mr. Keyuajuk's incarceration history is 5 unenviable, but I cannot say it is so bad that he 6 is unlikely to benefit from any form of early 7 release on the sentence I impose today. I am 8 sure many factors will impact on this, including 9 the efforts that he makes while in custody to 10 deal with his issues and how the authorities 11 perceive he is doing on that front, but I simply 12 do not know. 13 The next thing the Crown argues on this 14 issue is that Mr. Keyuajuk poses a serious danger 15 to society and of that I am satisfied. Hopefully 16 this will change, but for the reasons I have 17 already mentioned the evidence before me leads me 18 to the conclusion that currently he does pose a 19 risk and a danger to society. 20 The Crown does not argue that Mr. Keyuajuk 21 benefited from the usual programs available to 22 serving prisoners and I accept that that is 23 another consideration I must look at. I heard 24 that he was able to work at the kitchen of the 25 correctional facility for a large portion of the 26 time he spent on remand, so he was not locked up 27 in a cell all day during his remand time. I Official Court Reporters 21 1 mention this because in some of the case law that 2 is a factor that the courts look at when looking 3 at the detention conditions, so those are all 4 things I have to take into account. 5 Having balanced those factors, I have 6 decided that Mr. Keyuajuk's circumstances are 7 such that it is appropriate to reduce, to a 8 degree, the amount of credit he will receive for 9 the time he spent on remand but I am not 10 convinced that this reduction should be to the 11 extent that the Crown has suggested. 12 In my view, something between a ratio of 13 one-for-one and two-for-one is appropriate in the 14 circumstances, so for the nine months Mr. 15 Keyuajuk has spent on remand, I will give him 16 credit for 13 months. 17 As I have already said, I cannot and should 18 not punish Mr. Keyuajuk all over for his past 19 crimes. That would not be fair. But I can and I 20 must look at his criminal record and add these 21 offences as evidence that for several years now 22 he has committed crimes against people. He has 23 used violence, he has hurt people. He has not 24 addressed what underlies this behaviour. It is 25 essential that he does so if his life is to take 26 a more positive course. I am not suggesting that 27 that would be an easy process or one that can be Official Court Reporters 22 1 completed quickly, but it is essential that he 2 undertake it for the sake of others but also for 3 his own sake, because the simple reality is that 4 he has built up a record now that makes him a 5 candidate for longer and longer sentences to be 6 imposed if he commits further violent crimes. It 7 could also lead the Crown to apply to have him 8 declared a dangerous offender and become the 9 subject of an indeterminate sentence. Those are 10 not happy prospects for him. 11 But Mr. Keyuajuk is not an old man. He 12 could still have many productive years ahead him. 13 This case can either be one more item in the 14 pattern of violence that has existed until now or 15 it could be where that pattern changes. I know 16 it is not the sentence I impose or the words that 17 I use in imposing it that will determine which of 18 the two it will be. Mr. Keyuajuk is the only one 19 who has control over which of the two it is going 20 to be. It is all up to him. 21 In the letter he wrote to the court and 22 again when he was given the opportunity to speak 23 at the end of his counsel's submissions, Mr. 24 Keyuajuk said he was sorry and that he wished 25 this had not happened and that he does not like 26 hurting people. As I have said already, he has 27 pleaded guilty and spared his victims from having Official Court Reporters 23 1 to come to court and testify. I accept that he 2 is sorry now for what he has done, but that does 3 not change the fact that these were vicious, 4 persistent and apparently unprovoked attacks. 5 Alcohol or drugs may be part of what triggers 6 this but they do not explain that level of 7 violence. There must be other underlying issues 8 and it is obviously far beyond the knowledge or 9 expertise of the court to know what these might 10 be or how they could be addressed. Mr. Keyuajuk 11 says he wants to get help to deal with those 12 issues, he wants to deal with them, and I 13 sincerely hope he does that and persists because 14 if he does not it is only a matter of time, no 15 matter what I do today, before another judge has 16 to deal with him. 17 Counsel say that a global range of four to 18 five years is appropriate for these crimes. 19 Although they disagree as to how much credit 20 should be given for the remand time, they present 21 this range as a joint submission. When a court 22 is presented with a joint submission, the law 23 says it must be followed unless the joint 24 submission is unreasonable or unfit, that it is 25 outside the range. I accept what defence counsel 26 has said about there being a broad range of 27 sentences available for these types of crime. Official Court Reporters 24 1 Bearing in mind that these are three very 2 serious offences committed by someone with an 3 extensive related record a short time after being 4 released from the last sentence and while on 5 probation, in my view, a global range of four to 6 five years for these three offences is at the 7 very low end of the range of what is a proper 8 global range, but counsel, I know, have given 9 careful thought to their position. They have 10 explained some of the considerations that have 11 formed part of their discussions. I accept that 12 for various reasons these cases may have 13 presented some challenges for the Crown had they 14 gone to trial, as I alluded earlier when I was 15 talking about the mitigating effect of the guilty 16 pleas. 17 The ultimate responsibility to impose 18 sentences that are fit and consistent with the 19 principles and purposes of sentencing rests with 20 the sentencing judge but, as I have already said, 21 the joint submission must be given careful 22 attention by a sentencing judge. 23 Because of the submissions I have heard and 24 because of the highly mitigating effect of the 25 guilty pleas, I will accept the range that 26 counsel have jointly submitted but because of the 27 seriousness of these offences and my concerns Official Court Reporters 25 1 about the threat that Mr. Keyuajuk presently 2 poses to the public, I find that my sentence must 3 be at the high end of that range. 4 As I have already said, I must give effect 5 to the principle of totality. It would certainly 6 be appropriate for the sentences imposed for the 7 November offences to be consecutive to the 8 sentence I will impose for the June offence. One 9 way of avoiding an over-all crushing effect when 10 consecutive sentences are to be imposed is to 11 reduce each of them so that the total is not 12 excessive. But in this case I prefer not doing 13 that. I want to ensure that each of the 14 sentences I impose reflect the seriousness of 15 each of the offence. I do not want the sentences 16 to be diluted by the operation of the principle 17 of totality. I do not want the seriousness of 18 these incidents to ever get lost in the 19 translation, as it were. I want anyone looking 20 at these matters in the future to know how 21 seriously this court viewed all of these 22 offences. 23 And so to achieve this while still giving 24 effect to the principle of totality, I have 25 decided to impose concurrent sentences for these 26 crimes. 27 Mr. Keyuajuk, please stand. Mr. Keyuajuk, Official Court Reporters 26 1 for the assault on Leeveena Turqtuq I am going to 2 sentence you to three and a half years' 3 imprisonment. For the assault on Susan Ahegona, 4 I am going to sentence you to five years' 5 imprisonment, but because of the 13-month credit 6 I am giving you for the remand time that leaves a 7 gaol term of 47 months, which is three years and 8 11 months, and that will be served at the same 9 time as the first one. Finally, for the assault 10 on Mr. Goose, again I am going to impose a 11 sentence of five years' imprisonment but because 12 I am giving you credit for 13 months for your 13 remand time it brings it to 47 months as well and 14 that will also be concurrent. So in simple terms 15 it is a further gaol term of three years and 11 16 months. You may be seated. 17 Mr. Keyuajuk, I know I have already talked 18 for a long time. I know you know what you did 19 was serious. Maybe you have seen the photographs 20 of Ms. Ahegona and Mr. Goose, and they speak more 21 loudly than any words that I could use this 22 morning. You have told me through your letter - 23 and I have read your letter a number of times 24 this week - and also when you spoke, that you 25 were sorry, that you do not like to hurt people. 26 You said that in your letter and you repeated it 27 in court. You have also said, both in your Official Court Reporters 27 1 letter and in court, that if you could turn back 2 the time you would and you wish these things had 3 not happened. None of us can turn back the time 4 but you always have your choices for the future. 5 You can use your time in gaol to work on yourself 6 and try to find ways to not hurt people anymore, 7 or you could serve your time, do nothing and get 8 out and then you will probably get yourself into 9 trouble again. So I hope you will be able to 10 make the most of the help that will be available 11 to you while you are in custody. 12 You have also written, and your lawyer has 13 said, that you would like to go to Fenbrook 14 Institution. In your letter you say it is the 15 "Mother Institution for Nunavut". I do not have 16 the power to direct where you are going to serve 17 your sentence. That is up to the correctional 18 authorities. They will know what programs are 19 where and they will have a transcript of this 20 hearing so they will know what your lawyer has 21 said on your behalf, and they will know that you 22 would like to go to that institution. 23 What I am going to do is I am going to ask 24 the clerk to write on the Warrant of Committal 25 simply that I am recommending that they consider 26 your request when they choose where to send you, 27 so I am not recommending anything and I cannot Official Court Reporters 28 1 order anything, and they probably would consider 2 your request in any event, but this will make 3 sure that their attention is drawn to the fact 4 that this is where you think you should go. But 5 it will be up to them. They will have more 6 information than I have and really more 7 information than you have about where is the best 8 place for you. So I hope that ultimately they 9 will send you somewhere where you can get the 10 help that you need. 11 There are other orders that I must make in 12 the circumstances of this case. The first is a 13 firearm prohibition order under section 109 of 14 the Criminal Code. It is mandatory for these 15 type of offences. The minimum is 10 years and 16 the maximum is life. The Crown is not asking for 17 the maximum but is asking for more than the 18 minimum. 19 Defence counsel is asking me to show some 20 restraint to foster Mr. Keyuajuk's eventual 21 rehabilitation, preserving his abilities to 22 hopefully return to some of the practices of 23 traditional activities on the land if he is to 24 return to Nunavut eventually. Of course, 25 rehabilitation is not the primary sentencing goal 26 in this case but that does not mean it should be 27 ignored. Official Court Reporters 29 1 I am satisfied under the circumstances that 2 something more in the minimum should be imposed, 3 so the order will begin today and expire 14 years 4 after Mr. Keyuajuk's release. I assume he does 5 not currently possess any firearms because he is 6 already under the scope of the prohibition order 7 so the order should say that firearms that he has 8 should be surrendered forthwith. 9 Having heard what I have heard from the 10 Crown prosecutor this morning, I will not make a 11 DNA order. Normally, because these are primary 12 designated offences, I would make one but the 13 Criminal Code also says that when a person's 14 profile is already in the databank the court 15 should not make a further order, for obvious 16 reasons, so since there already has been a DNA 17 order with respect to Mr. Keyuajuk, I will not 18 make a further one. 19 Section 727 of the Criminal Code says that a 20 person convicted of an offence must be ordered to 21 pay what is called a victim surcharge. That 22 money goes to a fund to assist victims of crime. 23 When the sentence imposed is not a fine, as is 24 the case here, and is an indictable offence, the 25 surcharge is in the amount of $100, so with three 26 offences here the amount of the surcharge would 27 be $300. Official Court Reporters 30 1 That section of the Code also gives the 2 sentencing judge discretion not to impose a 3 surcharge if the person being sentenced 4 establishes that hardship could result. Mr. 5 Keyuajuk's counsel has made that submission based 6 on Mr. Keyuajuk's limited means and also, of 7 course, the fact that he faces a lengthy gaol 8 term and the Crown does not dispute the 9 submissions, so under the circumstances I agree 10 that the imposition of a surcharge would create 11 hardship and for that reason I make an order 12 exempting Mr. Keyuajuk from having to pay it. 13 Now, counsel, do you require any order with 14 respect to the disposition of exhibits? 15 MS. GAGNON: Your Honour, I would ask 16 basically that they be destroyed. I understand 17 as a matter of semantics that nothing was entered 18 as in the course of a trial so that all we have 19 are exhibits on sentence. However, whatever 20 items had been seized by the police, Crown would 21 ask that they have permission to destroy them. 22 THE COURT: Yes, anything that was filed 23 as part of the sentencing will remain on the 24 court file but sometimes there are personal items 25 that are asked to be returned to their rightful 26 owners, but I what I will do is I will make an 27 order authorizing the destruction of the exhibits Official Court Reporters 31 1 still in the possession of the RCMP - that is of 2 course at the expiration of the appeal period - 3 and I will leave it to the authorities' 4 discretion if any of the items are such that they 5 should be returned to any of the victims or 6 witnesses then they can do that as well. 7 Is there anything else that is required that 8 I have overlooked? 9 MS. GAGNON: Not on behalf of the Crown, 10 Your Honour. 11 THE COURT: Mr. Rideout? 12 MR. RIDEOUT: Nothing further, Your Honour. 13 THE COURT: Okay. Well, I want to thank 14 both counsel for their thorough submissions, for 15 the material they have filed and for their help 16 in this case. 17 And, Mr. Keyuajuk, I wish you luck in your 18 efforts to deal with these difficult and serious 19 issues. We will close court. 20 ----------------------------------------------- 21 Certified to be a true and accurate transcript pursuant 22 to Rules 723 and 724 of the Supreme Court Rules, 23 24 25 _____________________ 26 Janet Harder, CSR(A) 27 Court Reporter Official Court Reporters 32
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