Decision Content
R. v. Akkak, 2017 NWTSC 30 S-1-CR-2016-000072
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
DAVID AKKAK
_________________________________________________________ S1 delivered by The Honourable Justice A.M. Mahar, sitting in Yellowknife, in the Northwest Territories, on the 29th day of March, 2017.
_________________________________________________________
APPEARANCES:
Ms. A. Piche: Counsel for the Crown
Ms. K. Oja: Counsel for the Accused
(Charges under s. 267(b) of the Criminal Code of Canada)
1 THE COURT: Mr. Akkak, you can be seated
2 beside your lawyer. Thank you.
3 Mr. Akkak is here today for sentencing on
4 two counts of assault causing bodily harm,
5 proceeded by indictment. The guilty plea was
6 entered some time ago. There was a pre-sentence
7 report prepared.
8 With respect to the facts, towards the end
9 of April of 2016, Mr. Akkak and his common-law
10 partner were drinking. He became very drunk and
11 very jealous. He assaulted his partner by
12 striking her repeatedly, choking her and biting
13 her. It was a vicious assault, and it resulted
14 in a broken jaw for which she required surgery in
15 Edmonton by a plastic surgeon.
16 Approximately two weeks later, again
17 drinking with his common-law spouse, Mr. Akkak
18 became intoxicated and jealous. He punched his
19 spouse, Ms. Porter, in the face once and choked
20 her. At the time, she was still recovering from
21 surgery. Those are essentially the facts in
22 relation to the first count.
23 There is an agreed statement of facts filed,
24 and I would suggest that it be made an appendix
25 to my decision with the transcript.
26 Sometime in between the two assaults on
27 Ms. Porter, Mr. Akkak was being visited by his
1 friend, Christopher Amautinuar. Again, they were
2 drinking. Mr. Amautinuar got into an argument
3 with Mr. Akkak. Mr. Akkak demanded that Mr.
4 Amautinuar leave. Mr. Amautinuar refused to
5 leave, and Mr. Akkak used too much force trying
6 to eject him. Essentially he punched him in the
7 rib cage, and this resulted in some pretty severe
8 bruising to his ribs. I am going to give
9 Mr. Akkak the benefit of the doubt; the surgeons
10 at the hospital were uncertain as to whether or
11 not there was, in fact, a cracked rib. All I
12 need to find is that Mr. Amautinuar suffered from
13 some significant discomfort as a result of the
14 assault to find that it is beyond the threshold
15 for assault causing bodily harm. That is my
16 finding.
17 Although Mr. Akkak has not entered a guilty
18 plea at the first opportunity, he is to be given
19 significant credit for the guilty plea in this
20 case. I am told that he was originally facing
21 far more serious charges, which is something to
22 keep in mind when looking at the timing of the
23 guilty plea. Trials can take many forms, and
24 sometimes the form they take is ongoing
25 discussions between counsel to resolve
26 outstanding issues, and an accused should not be
27 penalized for exercising his rights in this way
1 as opposed to a more formal route of a trial.
2 I am also told that it would have been a
3 difficult case for the complainants, specifically
4 his spouse or former spouse, and I take that into
5 account as well. He has spared her the need to
6 testify about a very unpleasant incident or
7 incidents. And he is to be given credit for
8 that.
9 Mr. Akkak is 47 years old. He is of
10 Inuvialuit descent. When he was 3 years old,
11 because of some ongoing problems with his birth
12 family, he was adopted by an Inuit family in
13 Kugaaruk which is where he grew up. The family
14 also adopted three girls.
15 For some reason, his adoptive mother took a
16 dislike to Mr. Akkak, and we must remember that
17 he was a 3-year-old boy when he was adopted.
18 From what I could glean from the pre-sentence
19 report and the comments of counsel, he was never
20 shown any affection or love by this person. He
21 was beaten regularly. He was locked in his room.
22 And he ended up with sores because he was unable
23 to maintain his own hygiene. He was essentially
24 abused and unloved at a very critical time in his
25 life.
26 He ended up running away from home at
27 various times beginning when he was 11. At 15,
1 he found himself in a youth protection facility.
2 At that point, he indicated that he was first
3 shown some physical affection. I understand that
4 his adoptive father was actually a decent fellow
5 who took him out on the land and who never
6 mistreated him. Both of these parents have since
7 died as well as his birth mother.
8 The amount of damage and trauma suffered as
9 a result of this upbringing is what brings
10 Mr. Akkak before the Court. I do not need to be
11 a psychologist or a psychiatrist to see the
12 obvious link and connection between that sort of
13 abuse and a man who panics at the first sign that
14 he might be abandoned or he might lose love,
15 especially when he has been drinking. This
16 difficulty has plagued Mr. Akkak throughout his
17 intimate relationships. Unless he gets some
18 serious help for it, it is going to continue to
19 plague him. I am not specifically referring to
20 these facts in terms of their Gladue or section
21 718.2(e) indications, but they are taken into
22 account under that umbrella. Mr. Akkak is a
23 person of Aboriginal descent, and he clearly
24 falls into the parameters of somebody whose life
25 has borne some tremendous difficulty, and I take
26 that into account.
27 The courts end up sentencing people for
1 purely predictable behaviours resulting from
2 trauma, loss, and a lack of proper upbringing,
3 for lack of a better way of expressing it. It is
4 unfortunate. He has taken responsibility for his
5 actions and he must be sentenced accordingly, but
6 I cannot help but be sympathetic to Mr. Akkak's
7 circumstances. It is to his credit that he has
8 taken responsibility for this, and I can only
9 hope that his journey through the correctional
10 system this time allows him to access some help.
11 He has a number of children primarily in
12 Kugaaruk. His plans upon release, if he cannot
13 resume a relationship with the complainant, is to
14 return to Kugaaruk and live with his daughter and
15 his grandkids where he intends to find work. He
16 has a Grade 9 education. His upbringing
17 interfered with his ability to finish his high
18 school education, and he has been involved in a
19 number of menial or relatively low-level
20 employment opportunities since then.
21 I have reviewed as well the victim impact
22 statement, which was very sad. The complainant
23 or victim obviously still cares for Mr. Akkak.
24 She simply cannot deal with this sort of
25 behaviour anymore. From what I can glean from
26 that document, they both require some healing,
27 and she feels it best that they do that healing
1 separately. I intend to address that somewhat
2 ambiguous sentiment in the probation order.
3 With respect to the assault on Mr.
4 Amautinuar, while the injury was somewhat
5 significant, the behaviour itself in my view
6 falls at the lower end of the spectrum in terms
7 of culpability. Mr. Akkak used too much force in
8 ejecting someone from his home. He hit Mr.
9 Amautinuar too hard, probably in a delicate part
10 of his body, and an injury ensued.
11 With respect to sentence, the Crown attorney
12 is asking to impose a global sentence of two
13 years less a day, 18 months for the first count,
14 the assault on his common-law spouse; and a
15 further six months for the assault on Mr.
16 Amautinuar. Defence counsel agrees with the
17 18-month sentence but urges me to impose a
18 sentence of 3 months for the assault on Mr.
19 Amautinuar.
20 I agree that 18 months is an appropriate
21 sentence for the assault on Ms. Porter, and you
22 are therefore sentenced to 18 months. I
23 struggled a little with the difference in the
24 request with respect to Mr. Amautinuar, and I
25 have to concur with the defence. Mr. Akkak had
26 been out of trouble at least in terms of violent
27 offences for about nine years. The assault
1 itself, as I have indicated, while not at the
2 lowest end of the scale, is certainly not even
3 close to the level of seriousness of assault on
4 Ms. Porter, so I will impose a further sentence
5 of 3 months for that assault.
6 Counsel, if you could remind me exactly how
7 many days has he done in custody?
8 MS. PICHE: I had it in months,
9 Your Honour, so I don't have the exact days.
10 THE COURT: How many months is it?
11 MS. PICHE: Ten and a half months of
12 actual pre-sentence custody, which by my
13 calculation was 15 months and three-quarters by 14 1.5.
15 THE COURT: Very well. I will give him 15
16 and three-quarters months' credit. On that
17 basis, having served 10 and a half months of
18 actual pretrial custody, leaving him 5 and a
19 quarter months, I believe. 5 months 8 days. I
20 do not want them to have to start splitting days.
21 Following this period of incarceration, he
22 will be on probation for 18 months. Conditions
23 are to keep the peace and be of good behaviour,
24 report to probation services within three days of
25 his release and after that as directed and that
26 he take whatever counselling is recommended for
27 him. On the warrant of committal -- sorry, I
1 forgot this. On the warrant of committal, I will
2 make a note that he be considered for any
3 in-house treatment facility, if program is
4 available that suits his needs. And should one
5 become available, that he be considered for early
6 release to a treatment program. I would suggest
7 any institution is perfectly capable of coming up
8 with this assessment, that the primary focus of
9 the treatment be for trauma. He is not to
10 consume any alcohol while he is on probation.
11 He is to have no contact directly or
12 indirectly with Ms. Porter unless initiated by
13 her. If contact does resume, he is to have her
14 written consent to that contact on his person at
15 all times. She is able to revoke that consent at
16 any time.
17 And, Crown, I am simply putting that in
18 there because in these situations there is often
19 some ambiguity. I am leaving it in Ms. Porter's
20 hands. He is not to have any contact with her
21 directly or indirectly.
22 MS. PICHE: May I be heard on this,
23 Your Honour.
24 THE COURT: You may.
25 MS. PICHE: There is no indication from
26 Ms. Porter that there is any wish at this point
27 to resume contact. Considering the fact that she
1 was assaulted twice in a short period of time and
2 she returned with him after being hospitalized in
3 Edmonton, I would respectfully submit that it
4 might not be the best solution to put it in her
5 hands at this point.
6 THE COURT: What about in the probation
7 officer's hands?
8 MS. PICHE: I would suggest that that
9 would be more appropriate.
10 THE COURT: Okay. Any comment on that?
11 MS. OJA: No, that's agreeable,
12 Your Honour.
13 THE COURT: I take your point. He is to
14 have no contact directly or indirectly with
15 Ms. Porter unless he has the prior written
16 authorization of his probation officer. And in
17 any event, this is never to be without
18 Ms. Porter's prior consent. Obviously a
19 probation officer would not do that, but I just
20 want that for clarity's sake.
21 That contact, if it is commenced, can be
22 withdrawn at any time by either the probation
23 officer or by Ms. Porter.
24 I place no condition to Mr. Amautinuar. He
25 doesn't seem to want one so there's no need for
26 that.
27 There is a mandatory order. There will be a
1 DNA order, a firearms order for a period of 10
2 years. I'll make an exemption under section 113
3 allowing Mr. Akkak to apply for a limited
4 subsistence permit to the relevant authority in
5 his community.
6 Is there anything I've forgotten, Crown?
7 MS. PICHE: No, thank you.
8 MS. OJA: No, Your Honour.
9 THE COURT: Good luck, Mr. Akkak.
10 -----------------------------------------------------
11 CERTIFICATE OF TRANSCRIPT
12
13 I, the undersigned, hereby certify that the
14 foregoing pages are a complete and accurate
15 transcript of the proceedings taken down by me in
16 shorthand and transcribed from my shorthand notes
17 to the best of my skill and ability.
18 Dated at the City of Edmonton, Province of
19 Alberta, this 11th day of May, 2017. 20
21 Certified Pursuant to Rule 723
22 of the Rules of Court. 23
24 __________________________
25 Joanne Leah McKenzie
26 RPR, CRR, CRC, RSA, CSR(A)
27 Court Reporter