Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
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
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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
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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
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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
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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,
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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
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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
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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.
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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.
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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
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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
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