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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

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