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Abstract: Transcript of the Reasons for Sentence
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R. v. Ekpakohak, 2014 NWTSC 32 S-1-CR-2013-000087
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
ADAM JAMES EKPAKOHAK
_________________________________________________________
Transcript of the Reasons for Sentence delivered by the
Honourable Justice L. A. Charbonneau, in Yellowknife, in
the Northwest Territories, on the 17th day of March, 2014
_________________________________________________________
APPEARANCES:
Ms. W. Miller: Counsel on behalf of the Crown
Mr. M. Martin: Counsel on behalf of the Accused
---------------------------------------------------------
Charge under s. 140(1)(a) Criminal Code of Canada
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1 THE COURT: Mr. Ekpakohak pleaded guilty
2 to a charge of public mischief contrary to
3 Paragraph 140(1)(a) of the Criminal Code, and I
4 must now decide what the sentence should be for
5 that offence.
6 The Crown and defence have presented the
7 Court with a joint submission as to what the
8 sentence should be. Sentencing involves the
9 exercise of considerable discretion on the part
10 of the sentencing judge. That discretion is not
11 absolute. It must always be exercised within the
12 framework of sentencing principles that are set
13 out in the Criminal Code. The discretion is
14 narrowed when a joint submission is presented.
15 Judges are required to give a joint submission
16 very serious consideration, and they are required
17 to follow joint submissions unless a judge comes
18 to the conclusion that the joint submission is
19 clearly out of the range of sentences for the
20 type of offence. In other words, it should be
21 followed unless it is clearly unreasonable.
22 I have considered the joint submission that
23 was presented to me this morning and the reasons
24 that were given to me for it. I have come to the
25 conclusion that it is a reasonable suggestion
26 under the circumstances, and I have decided to
27 follow it.
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1 I do want to put reasons on the record,
2 though, as to why I have concluded that this is a
3 fit sentence for this offence and taking into
4 account Mr. Ekpakohak's personal circumstances,
5 and I think it is important also that certain
6 things be said about the type of offence that
7 Mr. Ekpakohak has committed.
8 To put my decision in context, I will first
9 go over briefly the facts that Mr. Ekpakohak has
10 admitted. The Indictment charges that he caused
11 the RCMP in Ulukhaktok to enter upon an
12 investigation by falsely alleging that his
13 then-spouse tried to murder him.
14 How that came to be was that Mr. Ekpakohak
15 attended the nursing station in Ulukhaktok in the
16 early morning hours of August 22nd, 2012. He had
17 a large injury to his neck going from the front
18 of his neck to the back, an injury that took 16
19 sutures to close. Fortunately, the cut was not
20 deep; it only went as deep as the fat tissue
21 along the neck. Had the wound been deeper, at
22 least in the view of the nurse who treated him,
23 it is the type of injury that could have killed
24 him.
25 The photos that were filed this morning that
26 show the injury demonstrate very clearly just how
27 serious and large a cut this was. These are
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1 frightening photographs to look at.
2 The police were called to the health centre,
3 and Mr. Ekpakohak told them that he and his
4 spouse had been out in a cabin outside the
5 community approximately ten kilometres out of
6 town, that they had been drinking alcohol, that
7 at some point there was an argument, and that she
8 got mad at him. He alleged that she started
9 beating him up and that he defended himself, that
10 the fight stopped, but the argument resumed
11 sometime after and at that point he decided he
12 would just go back to town. So he got on his
13 quad getting ready to leave. He alleged that she
14 jumped on him and knocked him off the vehicle and
15 then took out a steak knife and slashed at his
16 neck with it.
17 The same day as this accusation was made,
18 the RCMP arrested his spouse on a charge of
19 attempted murder. At that point the police had
20 more than ample, reasonable grounds to believe
21 that this offence had been committed. She was
22 brought into custody, and she spent four days in
23 custody until she was released on terms that
24 included a requirement that she reside in
25 Kugluktuk with her mother.
26 During the course of the investigation the
27 RCMP took a statement from his spouse. She gave
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1 a very different account of what took place at
2 the cabin. She denied being responsible for
3 Mr. Ekpakohak's injury. On her version of events
4 there was a fight and there was an argument, but
5 she was the one who ended up leaving the cabin on
6 foot, and the last thing she heard Mr. Ekpakohak
7 say as she was leaving was that he was going to
8 kill himself.
9 The police continued to investigate and, to
10 get further clarifications from Mr. Ekpakohak,
11 spoke to him the next day on August 23rd. He was
12 reluctant to speak them. Eventually he said he
13 had a blackout and did not remember what
14 happened. He also said on that date that it was
15 not his spouse who had inflicted the injuries to
16 his neck. The RCMP continued to investigate and
17 tried to get more information from him, but he
18 refused to cooperate and refused to discuss the
19 matter further when they approached him sometime
20 later.
21 Eventually on the 14th of November, the
22 police spoke to Mr. Ekpakohak again, this time
23 advising him he was being investigated for public
24 mischief. He was cautioned and advised of his
25 rights, and then he provided a warned statement
26 where he confirmed that his spouse did not attack
27 him with a knife but that, in fact, he had
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1 inflicted the injury upon himself because he was
2 angry and disappointed about how the evening with
3 her had turned out.
4 About a week later the Crown stayed the
5 proceedings against Mr. Ekpakohak's spouse.
6 Counsel have advised that she now lives in Inuvik
7 and that the spousal relationship between she and
8 Mr. Ekpakohak is over. I also heard that she was
9 advised of her right to provide a victim impact
10 statement, but there is none on the file. I have
11 to assume that she chose not to prepare one.
12 Mr. Ekpakohak's counsel told me about
13 Mr. Ekpakohak's personal circumstances this
14 morning. I do not propose to repeat everything
15 that was said, but I do want to refer to some of
16 the things I was told.
17 I heard that he grew up in an environment
18 where his parents, who are both residential
19 school survivors who suffered abuse when they
20 were at Grolier Hall, drank to excess.
21 I heard he had an older brother that he
22 respected and admired a lot who looked after him
23 during those years and that he was very close to
24 this brother. Tragically, this brother committed
25 suicide when Mr. Ekpakohak was a teenager and it
26 has affected him deeply, and it continues to
27 affect him. I was able to observe that myself,
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1 as it was fairly obvious even this morning as his
2 counsel was talking about this topic during his
3 submissions.
4 I also heard that Mr. Ekpakohak has been
5 able to be gainfully employed at various times
6 doing various jobs. He has worked as a labourer,
7 as a gas service person, he has done some work in
8 carpentry, and in addition to that he is a
9 carver. So he is someone who can work and he
10 definitely has some skills.
11 I heard as well that he started using
12 alcohol and drugs when he was 17 and that he
13 recognizes that this is something that
14 contributes to him getting into trouble with the
15 law. That is very obvious from his criminal
16 record which is a lengthy record and includes a
17 variety of convictions for all sorts of
18 different offences between 2004 and 2013. There
19 are driving offences, property offences, drug
20 offences. There are assaults, and there are
21 breaches of various court orders. It is clear
22 that Mr. Ekpakohak has been regularly in trouble
23 with the law although he has never been sentenced
24 to very long jail terms.
25 The types of losses and tragedies and
26 difficulties that Mr. Ekpakohak faced growing up
27 are, sadly, not uncommon in small communities in
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1 this jurisdiction. There is very little doubt
2 that those circumstances contributed to
3 Mr. Ekpakohak coming to abuse alcohol and have
4 contributed to some of the struggles he has had
5 living a crime-free life. I have taken those
6 circumstances into account in deciding that the
7 proposed sentence is a fit one under the
8 circumstances.
9 But I have to add, and I am sure I am not
10 the first person to say this, Mr. Ekpakohak must
11 realize that as much as this Court and others can
12 have compassion for the circumstances that he
13 faced as a child and as a young adult, nothing
14 can be done to change the past. But he does have
15 control over how he will behave from this point
16 on.
17 He has young children, and it is up to him
18 if he wants them to have a father who abuses
19 alcohol and is in and out of jail and is not
20 there for them or whether they will have a father
21 who will be positive and a strong figure in their
22 eyes.
23 It sounds as though maybe Mr. Ekpakohak did
24 not have that when he was child, and it is up to
25 him to decide whether his children will be in the
26 same position he was or whether he will make the
27 change happen for them, and the Court really
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1 hopes that he will do so.
2 The last sentence that Mr. Ekpakohak
3 received according to the information that I have
4 been given was in October 2013, and he received a
5 global sentence of eight months' imprisonment at
6 the time. I heard that his release date would
7 have been February 28th, 2014, so the time he has
8 spent in custody since then has been by consent
9 on this charge.
10 I have talked about the offence and I have
11 talked about the circumstances of Mr. Ekpakohak,
12 but now I want to speak more generally about this
13 type of offence.
14 Public mischief can cover a wide range of
15 conduct which, in turn, can have a wide range of
16 consequences. When it involves falsely accusing
17 someone of a serious offence such as in this
18 case, that can be very serious. The offence in
19 this case falls at the high end of seriousness of
20 what this type of charge can relate to. Falsely
21 accusing someone of attempted murder is a serious
22 matter.
23 As the Crown noted, some resources were
24 expended to investigate this matter thoroughly,
25 as all serious charges should be. While they
26 were busy doing that the two police officers
27 stationed in Ulukhaktok, which is a very isolated
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1 community, were not able to deal with other
2 investigations and attend to other matters that
3 needed their attention. Police officers are busy
4 enough as it is investigating the offences that
5 have actually been committed. It is a terrible
6 waste of their resources to have to investigate
7 something that did not happen.
8 Even more significantly, Mr. Ekpakohak's
9 actions resulted in an innocent person being
10 charged in her community of a horrendous offence.
11 The impact of that, especially in a small
12 community like Ulukhaktok, with which the Court
13 is familiar, is huge. I have no doubt that news
14 of the type of injury that Mr. Ekpakohak suffered
15 must have travelled very quickly in the community
16 of Ulukhaktok that morning. And because he was
17 seriously injured and there was no question about
18 that, it may well be that many people thought
19 that his spouse was, in fact, guilty of this
20 terrible crime. People may well have found it
21 quite unbelievable that there would be any other
22 explanation for his serious injury. In fact, the
23 truth in this case, the fact that he inflicted
24 this injury upon himself, is incredible. By many
25 standards it would be considered an unbelievable
26 story. So I have no doubt that in the community
27 from the time that this matter was reported and
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1 in the following days, there may well have been a
2 lot of people who thought that this particular
3 woman, Mr. Ekpakohak's spouse, had actually tried
4 to slice his throat.
5 Beyond that effect, she spent four days in
6 custody in the cells of the small detachment, and
7 then she was released on terms that required her
8 to leave the community where she lived for many
9 years. Fortunately, the prosecution against her
10 did come to an end before it had time to move
11 along too far in the process, but the charge was
12 still pending for a number of months. And
13 really, until today, until the day where
14 Mr. Ekpakohak actually pleaded guilty to this
15 charge and admitted publicly that he lied about
16 what she had done, there may well have remained
17 some lingering doubts about whether she had
18 actually hurt him or not.
19 Domestic violence is a very prevalent crime
20 in this jurisdiction. Many complaints are made,
21 and many charges are laid in conjunction with
22 this type of offence involving violence between
23 spouses. And violence between spouses is a very
24 serious social problem. The authorities are
25 expected to take those types of complaints very
26 seriously. Any time the system is abused in the
27 way that it was in this case, when a person
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1 knowingly makes a false complaint whether it is
2 out of spite, revenge, desperation, or whatever
3 drove Mr. Ekpakohak's actions that day, it
4 compromises the whole system. It trivializes the
5 cases of real spousal violence and the
6 devastating consequences that they have.
7 Not so long ago the Territorial Court had
8 occasion to comment on this, dealing with someone
9 who had made a false complaint to police in a
10 different context but had followed through with
11 an application for an Emergency Protection Order.
12 It was later found and established that it was a
13 false complaint. This was the case of
14 R. v. Simmonds [2011] N.W.T.R. No. 8. At
15 paragraph 23 of that decision, the Territorial
16 Court said:
17 "I will start from the premise that family
violence is a notorious problem in our
18 jurisdiction, as it may well be throughout the
country. We as a community struggle to deal with
19 the many pervasive, long-lasting, harmful effects
of family violence. Resources are scarce and the
20 problem is many-facetted and it is complex. The
Protection Against Family Violence Act is but one
21 attempt or one tool to try to address the problem
and to assist the victims. The legislation is
22 preventive as opposed to reactionary, which the
criminal law is. The legislation was enacted to
23 give applicants another tool besides the criminal
law to address family violence. Ms. Simmonds
24 abused this legislation. She abused the system
for her own end, and, by that, she has harmed the
25 administration of justice, she has tarnished a
route provided by the legislation that has
26 laudable goals. She has brought unwarranted
criticism to the legislation which might have,
27 still may have, the result of making that
legislation less effective for those who truly do
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1 need protection. And if for no other reason, in
a jurisdiction where family violence sometimes
2 seems an insurmountable problem with too few
resources for the victims of it and it sometimes
3 seems even fewer solutions to deal with it, for
that reason Ms. Simmonds' actions have to be
4 denounced."
5 These comments were made in the specific
6 context of the misuse of the Protection Against
7 Family Violence Act, which is legislation that
8 allows people to seek the protection of the Court
9 without necessarily making a criminal complaint.
10 But those comments are equally applicable to
11 people who misuse police resources and other
12 resources by making a false accusation
13 of domestic violence. That type of abuse raises
14 similar concerns and justifies a denunciatory
15 sentence and one that will hopefully achieve
16 deterrence.
17 The seriousness of making false accusations
18 was also underscored by this Court in
19 R. v. Fraser, 2007 NWTSC 13. In that case the
20 accused had falsely accused police officers of
21 having sexually assaulted his girlfriend while
22 she was in custody after having been arrested on
23 a drug charge. At paragraph 6 of that decision
24 the Court said:
25 "Although the Criminal Code terms this
offence "public mischief", that is really a
26 misnomer, because the word "mischief" in the
English language has the connotation of something
27 minor, or wrongdoing that is merely annoying or
irritating. It may be that some crimes of public
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1 mischief are minor, but this one is not. It is a
serious offence against the administration of
2 justice. As stated by the Alberta Court in the
Ambrose case, the sting of this kind of crime is
3 not so much causing the police to waste their
time and resources, but, rather, the real harm
4 done is the danger that innocent persons might be
prosecuted and lose their reputations, their
5 jobs, their livelihoods."
6 The facts in Fraser were obviously quite
7 different from what they are here, but the point
8 remains the same about just how serious it is to
9 falsely accuse someone of committing a serious
10 crime.
11 In Fraser the Court was sentencing the
12 accused for the public mischief charge as well as
13 for a drug offence, but in giving his reasons for
14 sentence the sentencing judge said that if he was
15 sentencing the accused only for the public
16 mischief charge, he would have given him
17 18 months' imprisonment. At the same time there
18 is no question that the range of sentences
19 imposed for this serious type of offence can be
20 quite broad. In Simmonds, which I referred to
21 earlier, the ultimate sentence was a conditional
22 sentence of three months' imprisonment.
23 In other cases the Court has refrained from
24 imposing jail at all; for example, in
25 R. v. Tesar [1991] N.W.T.R. No. 159, the
26 Territorial Court judge who was sentencing
27 someone for causing another person to be arrested
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1 improperly said that ordinarily, jail should be
2 imposed for this type of crime, but in that case
3 the Court did not. And similarly in the case
4 that was filed by counsel here, R. v. Lapoleon,
5 2008, B.C. PC 80, in the cases cited in that
6 decision all show that there is a broad range of
7 sentences which can be imposed for this type of
8 crime.
9 It is mitigating that Mr. Ekpakohak has
10 pleaded guilty. I would not consider this a plea
11 at an early opportunity considering that the
12 matter did get to the point of being set for
13 trial. At the same time, I recognize that as a
14 result of his waiver of the preliminary hearing,
15 the complainant never had to testify on this
16 matter. That makes a big, big difference as far
17 as a mitigating effect on the guilty plea. I
18 also accept that because this trial was set to
19 proceed in Yellowknife there were considerable
20 resources that were saved as a result of a guilty
21 plea. Finally, when he was given a chance to
22 speak directly to the Court this morning,
23 Mr. Ekpakohak's words were words of apology to
24 his spouse, to the police, and to his community;
25 and I accept that it was a sincere apology, and I
26 accept that he is truly remorseful for what he
27 has done.
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1 It is deeply disturbing to think that
2 Mr. Ekpakohak, in a state of intoxication,
3 actually cut his own neck. It suggests a level
4 of despair that is hard to imagine. He has been
5 in and out of court for many years. Change is
6 needed, but he is the only one who can effect
7 that change.
8 Given the number of breaches on his criminal
9 record, I would normally be quite reluctant to
10 place him on probation because that sentencing
11 tool has not been helpful to him in the past. It
12 has actually led to more charges and more
13 sentences and more jail for him. But given the
14 unusual facts of this case and the fact that
15 Mr. Ekpakohak will need help to deal with his
16 issues, and also to give his former spouse some
17 level of comfort that he cannot contact her
18 whenever he wants, I have decided that probation
19 is a useful thing to include as part of this
20 sentence.
21 Public mischief is a secondary designated
22 offence. The Crown has asked me to make a DNA
23 order having regard to the seriousness of the
24 offence and to Mr. Ekpakohak's record. Defence
25 does not oppose that request, and I am satisfied
26 that this is a proper case for making that type
27 of an order.
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1 So, Mr. Clerk, a DNA order will be issued.
2 I have discretion to waive the victim of
3 crime surcharge because these events occurred
4 before there was a change in the law that removes
5 the Court's discretion to waive the surcharge.
6 Given that Mr. Ekpakohak has been in jail for
7 some time and will be in jail for some time yet,
8 I will exercise my discretion and will not
9 require him to pay the surcharge.
10 I have heard from his counsel that
11 Mr. Ekpakohak's detention conditions have been
12 more difficult than might otherwise be the case,
13 that he has had problems with other inmates.
14 More specifically I have heard that there have
15 been two recent altercations, very recent
16 alterations where he was injured and that for his
17 own protection he is being held in segregation.
18 Defence counsel asks me to take this into
19 account in two respects; first, in the
20 calculation of how much credit Mr. Ekpakohak
21 should receive for the time he has spent in
22 remand; and secondly, in endorsing the warrant of
23 committal with the recommendation that
24 Mr. Ekpakohak be transferred to another facility.
25 It is a little bit difficult for me to assess
26 these arguments and how these incidents should
27 impact on the credit that I give Mr. Ekpakohak
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1 for remand time.
2 I certainly accept that these altercations
3 took place, but I know very little about the
4 circumstances or the reasons why they occurred,
5 whether there is any shared responsibility on
6 Mr. Ekpakohak's part for some of these incidents.
7 I am not saying he is responsible for them. I am
8 just saying that I do not know, and it is
9 difficult to gauge them with the information I
10 have. I do accept that whatever the cause, as a
11 result of these incidents he has been injured,
12 and I do accept that whatever the cause, it has
13 resulted in him being held in segregation, and
14 that has prevented him from having access to some
15 of the things that inmates in the general
16 population have access to.
17 But at the same time I also heard that while
18 he has been in custody, he has taken the
19 opportunity to take counselling and take part in
20 healing circles. I do not know how much of that
21 took place before or after February 28th, but he
22 has had access to some things while in custody.
23 So I am satisfied that some enhanced credit
24 is appropriate, but I do not think it is
25 appropriate for me to give him the maximum ratio
26 as suggested by counsel. For the 17 days
27 Mr. Ekpakohak has spent in remand, I will give
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1 him credit for 21 days and reduce his sentence
2 accordingly.
3 As for the second request, the
4 recommendation that he be transferred to another
5 institution to alleviate some of the issues,
6 again, I do not feel I have enough information to
7 be comfortable making a specific recommendation.
8 I do not have all the information about various
9 facilities and the types of programs that are
10 available in those facilities and which ones
11 might be more best suited to assist Mr. Ekpakohak
12 for the rest of the time he will spend in
13 custody.
14 I would note that according to what I heard,
15 these altercations that occurred recently
16 resulted in injuries to him; they were not minor
17 incidents. I also take it from what counsel has
18 said that the correctional authorities are in the
19 process of reviewing his placement in light of
20 these recent events, more specifically, the
21 altercations of March 4th and March 7th. I will
22 say this much: The Court is relieved to hear
23 that these are being looked into and that the
24 correctional authorities are considering how best
25 to approach this as far as whether a different
26 placement is appropriate. I think it is best to
27 allow them to carry out their assessment, and I
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1 will not make any recommendations about placement
2 in the absence of clearer information about what
3 has happened.
4 Mr. Ekpakohak can you stand up, please.
5 Mr. Ekpakohak, you heard what I said. I hope
6 that you really are able to get the help that you
7 need and not be in and out of jail for the next
8 10, 15 years while your kids are growing up.
9 There are a lot of things you can do with your
10 time other than drinking, and I really hope that
11 when you are finished serving your sentence you
12 will be able to go back to your community and use
13 those skills in the right way and remember the
14 terrible things that happened, including what you
15 did to yourself that night, and just find a way
16 to stay away from alcohol. It does not sound
17 like it is something that has ever been good for
18 you, and I just hope that this time will be the
19 last time I see you in court.
20 For all those reasons I have been talking
21 about, I am going along with the suggestion that
22 the two lawyers made. For the crime of public
23 mischief that you pleaded guilty to, I will
24 sentence you to a term of eight months in jail as
25 was suggested. I will give you credit for
26 21 days for the time you already spent
27 in custody. So there will be a further jail term
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1 of seven months and one week.
2 In addition to that you will be on probation
3 for one year. You heard what I said. You have
4 breached many court orders before. Probation is
5 not there to punish you; probation is there to
6 give you a little bit of help, perhaps, after
7 your release. So you can take counselling as
8 directed and report to the probation officer so
9 that they can help you.
10 I am also going to put conditions in there
11 about contact with C., and that is for her
12 protection, for both of your protection, because
13 it appears that it is best for the two of you not
14 to be together. The first term of probation is
15 you are to report to a probation officer when and
16 as directed and within 48 hours of returning to
17 your community. 48 hours after your release,
18 basically, you have to report.
19 The second term is that you will take
20 counselling when and as directed. That is
21 something that your probation officer and
22 yourself can talk about, whether it can help you.
23 If there is A.A. in Ulukhaktok, and there
24 probably is, you probably should go, but I will
25 leave the details to you and your probation
26 officer to work out.
27 The third condition is you are to have no
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1 contact with C.K. unless she initiates it. You
2 are not allowed to contact her. But I will put a
3 fourth term in recognizing that you have children
4 together, and that term will be if you have a
5 need to communicate with C.K. regarding the
6 children, then you have to contact her through a
7 third party.
8 THE ACCUSED: Okay.
9 THE COURT: The reason I am breaking it up
10 in two like that is that I do not want you
11 contacting her in general unless she initiates
12 it, but if something comes up with the children,
13 then you should be able to contact her because
14 that is important, but again, not directly. You
15 have to do it through a third party.
16 THE ACCUSED: Okay.
17 THE COURT: Do you understand all that?
18 THE ACCUSED: Yeah.
19 THE COURT: All right. You can sit down.
20 There will be an order for the destruction
21 of any exhibits I have received in this matter
22 once the appeal period has expired.
23 Ms. Miller, is there anything that I have
24 overlooked?
25 MS. MILLER: No. Thank you, Your Honour.
26 THE COURT: Mr. Martin, is there anything
27 I have overlooked?
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1 MR. MARTIN: No. Thank you, Your Honour.
2 THE COURT: Well, I want to thank you
3 both, counsel, for your submissions on this, and
4 I want to commend you for your work in resolving
5 this case.
6 We will close court.
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8 PROCEEDINGS ADJOURNED ACCORDINGLY
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1 CERTIFICATE OF TRANSCRIPT
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5 I, the undersigned, hereby certify that
6 the foregoing pages are a complete and accurate
7 transcript of the proceedings taken down by me in
8 shorthand and transcribed from my shorthand notes to
9 the best of my skill and ability.
10 Dated at the City of Edmonton, Province
11 of Alberta, this 17th day of March, 2014.
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16 __________________________
17 Tiffany Low
18 Court Reporter
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