Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Apak, 2018 NUCJ 1

Date: 20180111
Docket: 11-17-120
Registry: Pond Inlet

Crown: Her Majesty the Queen

-and-

Accused: Curtis Singoorie Apak

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): Sarah Bailey

Counsel (Accused): John Thompson

Location Heard: Pond Inlet, Nunavut

Date Heard: January 11, 2018
Matters: Sentencing Decision

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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I. OVERVIEW

[1] The offender, Curtis Apak, was charged with several offences arising
from an incident in Pond Inlet on August 18, 2017. He pleaded guilty
on 20 November, 2017 to impaired operation of a motor vehicle
causing bodily harm contrary to section 255(2) of the Criminal Code.1
His lawyer requested the preparation of a pre-sentence report;
however, the local probation office did not prepare one. I adjourned
the sentence hearing until today to give defence counsel time to
prepare for the hearing.

[2] Mr. Apak’s sentence hearing started this morning. I heard from the
prosecutor, Ms. Bailey and the defence lawyer, Mr. Thompson. They
told me what they thought would be the appropriate, or proper,
sentence. These are the reasons for my decision.

[3] Surprisingly, apart from the R v Holland case, which was reported in
February 2017,2 there seem to be no published Nunavut cases
dealing with impaired driving causing bodily harm. I say “surprisingly”
given how often this Court deals with these kinds of cases. For that
reason, I will follow my oral reasons this afternoon with a written
decision.

II. FACTS

[4] On August 18, 2017 the police were called to the local Health Centre
around 2 a.m. There they found three-year-old Arthur Koonoo who
had been seriously hurt in a hit-and-run incident. Arthur’s mother
identified Mr. Apak as the driver. Police arrested Mr. Apak at 3:30
a.m. Mr. Apak at that time was extremely intoxicated. He later told
police that on a scale from one to 10 (10 being falling down drunk), he
was a nine.

[5] The police investigation learned that Mr. Apak had consumed most of
a 375-millilitre bottle of alcohol the night before. He then decided
around midnight to borrow his father’s new snow machine to go for a
drive. He did not have a driver’s license. He only had a learner’s

1
Criminal Code, RSC, 1985, c C-46, s 255(2) [Criminal Code].
2
R v Holland, 2017 NUCJ 03, 2017 CarswellNun 2.
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permit which restricted him to driving with a responsible adult driver.

[6] At some point, Mr. Apak took on his girlfriend as a passenger. She
told police she became very scared because Mr. Apak was speeding,
and she insisted she get off. Mr. Apak became angry and he drove
onto the land where he stayed for a while. He then drove back into
town. He admitted he had been speeding. Close to 2 a.m., he drove
up to a crowd of people outside the local candy store. Mr. Apak did
not slow down. He drove right between two children, hitting little
Arthur. Mr. Apak then slammed the snow machine into a nearby boat.
He immediately ran away. His lawyer said Mr. Apak panicked.

[7] Arthur’s mother took him immediately to the Health Centre. Arthur
had a nasty gash across the bridge of his nose, leading to an eye.
The medical staff found that Arthur had suffered a broken nose and a
torn tear duct. Arthur was medevaced to Ottawa for emergency
surgery. Arthur’s nose remains crooked, but it is hoped his nose will
straighten as he continues to grow.

III. THE POSITIONS OF THE PARTIES

[8] The prosecutor says Mr. Apak should serve 12 months in jail. She
suggested that jail be followed by two years of probation. She also
asked for a two-year driving prohibition. Ms. Bailey referred the Court
to eight cases.

[9] Defence counsel says the jail term should be six months, at the
bottom of the sentencing range. He noted that Mr. Apak does not
have a criminal record. He emphasised that Mr. Apak is a “model
citizen”. Mr. Thompson provided a letter of support from Jacintha
Ootook which I have read.

IV. SENTENCING OBJECTIVES AND PRINCIPLES

[10] Sentencing is an individualised process. Every offender (and every

case) is unique. A sentencing judge must weigh the objectives and
principles of sentencing against the specific circumstances of each
case.
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[11] There are several important objectives a sentencing judge must try to
achieve when imposing a sentence. These objectives are found in
the Criminal Code.3 The sentence I impose must work to:

• Protect the public;

• Encourage respect for the law;

• Be seen to be fair, to be just;

• Acknowledge the harm done to Mr. Apak’s victim;

• Condemn and denounce criminal conduct;

• Deter Mr. Apak and others from committing these

crimes;

• Rehabilitate Mr. Apak to help him heal;

• Encourage offenders to accept responsibility for

their actions, to acknowledge and admit the harm
they caused to their victim(s), and try to repair the
harm where possible; and

• To separate offenders from society when

necessary.

[12] In trying to meet these objectives, the judge is not left up to his or her
own personal views. There are legal sentencing principles in place to
guide a judge and to help the judge decide on a fit and proper
sentence.

[13] In this case, there are four objectives and principles in particular
which stand out. They are: denunciation, deterrence, rehabilitation
and proportionality. I will talk about each one in turn.

[14] Denunciation means to condemn an illegal act. This Court must send
a strong message that impaired driving causing bodily harm will be
punished because we consider it to be a very serious crime.

3
Criminal Code, supra note 1, Part XXIII.
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[15] Deterrence means to try to influence people to respect the law and
not to drink and drive. Deterrence has two parts: general and
specific. In every day English, my intended audience to discourage
from drinking and driving today is made up of all Nunavummiut
(general), as well as Mr. Apak (specific).

[16] And the law is very clear: denunciation and deterrence are the
primary objectives when sentencing an offender for impaired driving
causing bodily harm. I refer here to the Alberta Court of Appeal case
R v Gejdos.4 This was one of the cases referred to the Court by the
Crown prosecutor.

[17] The Criminal Code also directs judges to consider ‘proportionality’.

This principle is at the heart of the sentencing process. This legal
term means a sentence should reflect the seriousness of the crime,
and the offender’s responsibility for it. The importance of this principle
in this case cannot be overstated. The Court of Appeal in the Gejdos
case stated that when considering proportionality in these kinds of
cases: “the courts have very few options other than imprisonment for
meeting” the primary objectives of denunciation and deterrence.5

[18] I pause to note that decisions of the Alberta Court of Appeal are not
binding on this court, but they are relevant to Nunavut; most of the
judges of the Nunavut Court of Appeal are judges of the Alberta
Court.

[19] I now turn to rehabilitation. Rehabilitation means helping the offender

to change his ways for the better and to become a better person. In
Nunavut, given the staggering abuse of alcohol that we hear about in
court, rehabilitation mostly means helping the offender to heal. I have
said many times in every one of our 25 communities, and I say again:
rehabilitation is always the final result we seek in each and every
case, even though the criminal law and the territory give us few tools
with which to work. There can be no real deterrence unless the
offender heals. Chances are the offender will offend again if he does
not heal.

[20] There is also another sentencing principle which is particularly

relevant to this case. This is the principle of restraint.

4
R v Gejdos, 2017 ABCA 227, 2017 CarswellAlta 1196 [Gejdos].
5
Ibid at para 33, citing R v Lacasse, 2015 SCC 64 at para 6, [2015] 3 SCR 1089.
 6

[21] The Criminal Code directs sentencing judges to act with restraint.
This means the Court must impose the least harsh sentence which
can achieve the goals involved in sentencing. Jail must only be
imposed when there is no reasonable alternative. In Canada, jail is
imposed only as a last resort. If an offender is being sentenced for
more than one offence, the combined sentences are not to be unduly
long or harsh. Here, the Criminal Code directs judges to be especially
aware of the circumstances of aboriginal offenders.6 I’ll say more
about that in a moment.

[22] Sentencing judges must also consider case law. Case law is made
up of published reports that tell us what other judges have done in
similar circumstances. This is extremely important. It is only fair that
similar offenders should be treated similarly for similar crimes. This is
called the parity principle. As I noted earlier, I was given copies of
several cases by the Crown prosecutor.

[23] Perhaps the most important case in Nunavut is the Queen v Gladue.7
It is called that because in Canada all criminal prosecutions are done
in the name of Her Majesty the Queen. Gladue was the name of the
offender in that case. Gladue is a very important case, from the
highest court in Canada, the Supreme Court. In fact, the Nunavut
Court of Justice is a Gladue court. To make a long explanation short,
our court must account for the particular and unique circumstances of
Inuit, their culture, history and society. Nunavut society is in the midst
of an alcohol abuse crisis. The direct results of alcohol abuse fill our
criminal and child protection dockets. The influence of Residential
Schools is inter-generational. Nunavut has the highest suicide rate in
the country. These are but three examples.

[24] The Gladue case is a constant reminder to everyone in our justice

system. It reminds us that justice, if it is to approach true justice, must
be rooted in the community it serves. Gladue informs every decision
we make. It is the lens through which we look at every case. Every
sentence of the Nunavut Court of Justice involving an Inuk is a
Gladue sentence.

[25] That said, the Supreme Court of Canada in the Gladue case also was
clear that in the more serious cases the difference in a sentence
between an aboriginal and non-aboriginal offender will lessen. This is

6
Criminal Code, supra note 1, s 718.2(e).
7
R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679.
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one of those cases.

[26] This case cannot be looked at alone, in isolation. It must be looked at

with the bigger picture in mind. Right across Nunavut, too many
drunk people are getting behind the wheel of cars, trucks, snow
machines and ATVs, and they are putting everyone else’s lives and
safety at risk. There are also far too many cases where angry and
intoxicated people are grabbing and using fire arms. In this climate of
a rampant alcohol abuse, this Court has a duty to put deterrence and
public safety at the very forefront of its sentences in these types of
cases.

[27] Mr. Thompson told the Court that the people of Pond Inlet would view
a sentence of more than six months to be excessive. He emphasised
that Mr. Apak is a model citizen. For that reason, I think it is important
that I explain why we treat impaired driving causing bodily harm as a
very serious offence; and why Mr. Apak must serve a longer jail term
than six months.

[28] We are dealing today with a crime which is often committed by

otherwise upstanding citizens. For that reason, the law is clear: the
otherwise good character of the offender will not, in most cases, save
the offender from “meaningful” jail if he commits an impaired driving
offence causing bodily harm:8

[I]t is often committed by otherwise law-abiding citizens who

make irresponsible and selfish decisions to drive when the law
prohibits them from doing so. It is a crime committed in the
face of massive media coverage about the dangers of impaired
driving. These offenders often have no prior record, are
genuinely remorseful, have been rehabilitated by the very fact
of being charged and convicted, and are highly unlikely to
offend again.

… That the respondent was an otherwise law-abiding citizen

does not negate the need for a deterrence sentence, but is in fact
the very reason for it.9

[29] I agree with Mr. Thompson that in a community the size of Pond Inlet,
this sentence will be known all over town by nightfall. Despite the
absence of the media during most of our sittings, the sentences of this
8
Gejdos, supra note 4 at para 45.
9
Ibid at paras 45, 48.
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Court are known to Nunavummiut during our court circuits. Whether

they have the desired effects or not, decisions of this Court do
resonate in our communities.

V. THE OFFENDER

[30] I will now say a few words about the offender. Mr. Apak is from Pond
Inlet. He is 23 years old. He is Inuk. He has been in a seven-year
common law relationship and the couple have a one-year-old child.
He is a high school graduate. He has been a reliable employee of a
local construction company. In the off season, he is a substitute
teacher and gets called in about five times a month. He is not known
in the community to have trouble with alcohol. He describes himself
as a “moderate” drinker. Indeed, Mr. Thompson described him as a
“model citizen”.

A. Criminal record

[31] Criminal records play an important role in sentencing. Common

sense says a first-time offender who does a less serious crime will be
treated more leniently than someone who commits one serious crime
after another. Mr. Apak does not have a criminal record. We are not
dealing with a hardened criminal. In our Anglo-Canadian justice
system, justice must always be tempered with mercy, especially for a
first-time offender. Forgiveness, healing and understanding are also
hallmarks of traditional Inuit justice.

B. Aggravating and mitigating factors

[32] The Criminal Code also requires a sentencing judge to consider

mitigating and aggravating factors.

C. Mitigating factors

[33] There is a mitigating factor which goes to Mr. Apak’s credit. It works
to lessen his sentence:

• Mr. Apak pled guilty. He accepts responsibility. This

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court always gives meaningful credit for someone who

does this.

D. Aggravating factors

[34] Balanced against this mitigating factor are several serious

aggravating ones which work to increase his sentence:

• Mr. Apak put the lives and safety of many of his

neighbours in immediate danger of grievous bodily harm;

• Mr. Apak was seriously impaired by alcohol; in everyday

language, he was staggering drunk;

• Mr. Apak had a learner’s permit, and he could only drive

under the supervision of a licensed driver;

• Before the incident, Mr. Apak was told by his girlfriend

that his fast driving scared her. She insisted he stop so
she could get off. This did not deter or stop Mr. Apak
from continuing to drive;

• Mr. Apak drove right into a crowd of bystanders outside

the local candy store;

• Mr. Apak seriously injured a three-year-old boy, Arthur,

who had to be medevaced to Ottawa for emergency
medical treatment and surgery; and

• Mr. Apak left the scene of the crash and did not stop to
offer any help to Arthur.

VI. VICTIMS’ BILL OF RIGHTS

[35] Victims of crime have the right to be heard in court.10 They may read
out loud, or file, a Victim Impact Statement. These statements bring
to life the real effect crime has on peoples’ lives. One cannot judge a
crime without understanding how its victims were hurt. These
statements help ensure victims are not ignored during the sentencing

10
Victims’ Bill of Rights, 1995, SO 1995, c 6.
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process.

[36] The Crown prosecutor gave the Court a Victim Impact Statement
written by Arthur’s mother. In it, Ms. Koonoo talks about the lingering
emotional and physical effects not only on Arthur but on herself as
well.

VII. SENTENCE

[37] Mr. Apak committed a very serious crime. He hurt Arthur very badly.
He also put the lives and safety of many of his neighbours in
immediate danger. Nunavummiut expect strong sentences for
serious crimes. The principles of sentencing in this case require a
strong jail sentence.

[38] A jail term is consistent with traditional Inuit justice. When a person
threatened the traditional group’s safety and security, that person
could be, and sometimes was, banished. Many were welcomed later
back into the group. Forgiveness, reconciliation and reintegration
were, and are still, key aspects of Inuit justice, as they are in the
Nunavut Court of Justice.

[39] First and foremost, the sentence I impose must emphasise

denunciation and deterrence. Impaired driving is a very serious
offence. Every time an impaired person takes the wheel, there is a
very real risk that someone will be hurt, like here, or killed. This is
especially so in Nunavut, where we are in the midst of an alcohol-
fueled crisis.

[40] Mr. Apak, you bear a high degree of moral culpability. You were
responsible for your actions. Alcohol abuse is no excuse.

[41] Stand up, please, Mr. Apak. I sentence you to 365 days in jail. As
Mr. Thompson fairly conceded, this sentence falls in the middle of the
sentencing range for this crime. In my view, this sentence satisfies
denunciation, deterrence, proportionality and restraint. It represents a
fit and proper sentence.
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VIII. PROBATION ORDER

[42] Rehabilitation must never be forgotten. As I said earlier, there is no

effective deterrence without healing. The jail term I have just imposed
will be followed by probation for 24 months. Mr. Mr. Apak, you will:

• Report to probation within two business days of

your release from jail. You will report thereafter as
required.

• Keep the peace and be of good behaviour.

• Take any assessment, counselling or treatment for

alcohol abuse as directed by your probation officer.

• Take any educational or vocational training as

directed by your probation officer.

• Not go inside any commercial establishment that

sells alcohol.

• Not keep alcohol in your home.

• Complete 60 hours of community service work by

December 31, 2019. This community service work is
an opportunity for you to be seen making a positive
contribution to our community.

[43] Do you understand those conditions?

[44] These probation conditions are not meant to be punishment. I have

put them in place to try to help you heal. But the truth is, nothing
good will come of your time on probation if you do not work at getting
better. So, I am asking you this afternoon to help the probation officer
help you. Help the counselor help you. No one wants to see you get
into trouble with the law again.
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IX. ANCILLARY ORDERS

[45] The Criminal Code provides for several ancillary, or related, orders. I
impose the following orders:

• A two-year driving prohibition. You are prohibited

from driving any motorised vehicle anywhere in
Canada for two years. And anywhere means just
that, anywhere, including the land.

[46] You must surrender your learner’s permit to the court clerk by the end
of court this afternoon.

[47] There is also a mandatory $200 victim fine surcharge which I now
impose. Mr. Apak, you must pay the surcharge within six months of
your release from jail. Do not ignore it because it is not going to go
away.

[48] Good luck, sir. Taima.

Dated at the City of Iqaluit this 11th day of January, 2018

___________________
Justice P. Bychok
Nunavut Court of Justice