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Nunavunmi Apiqhuidjutainut Uuktuffaarutit

Nunavut Court of Appeal


Cour d'appel du Nunavut

Citation: R. v. Ehaloak, 2017 NUCA 4


Date: 20170620
Docket: 21-17-115-CAS
Registry: Iqaluit

Respondent: Her Majesty the Queen


-and-

Appellant: Gregory Ehaloak

________________________________________________________________________

Before: The Honourable Mr. Justice Grist

Counsel (Respondent): Abel Dion


Counsel (Appellant): Sara Siebert

Location Heard: Iqaluit, Nunavut


Date Heard: May 29, 2017
Matters: Summary Conviction Appeal
Criminal Code, Section 733.1 (1)
Failure to Comply with Probation Order

REASONS FOR JUDGMENT


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

I. INTRODUCTION

[1] This appeal is from a sentence imposed January 11, 2017 at


Cambridge Bay, Nunavut, after a guilty plea to a charge of breach of a
condition of a probation order put in place November 20, 2015. The
probation order followed a guilty plea to two counts of assault and a
breach of a previous probation order.

[2] The sentence imposed in November 2015, after 10 days credit for
time served, was 110 days imprisonment. The victims of the two
assaults were the accused's common-law partner [D.A.] and her
mother. The probation order accompanying this sentence was for a
term of 12 months and contained the following condition:

6. You may only have such contact with [D.A.] as approved by


your probation officer and your probation officer must consult
with [D.A.] and follow her wishes as to contact.

[3] Breach of this condition founded the charge, the subject of the guilty
plea, entered January 9, 2017; and the sentence imposed January
11, 2017.

[4] The sentence imposed on that day is recorded on the endorsement to


the information as imprisonment for one year with 119 days credit,
resulting in 246 days remaining to be served. The credited portion of
the sentence comprised of 59 days for time served and 60 days of
further credit for having entered a guilty plea. In imposing the
sentence, the sentencing judge said, at pp. 6263 of the transcript of
the sentencing proceedings:

Stand up, please, Mr. Ehaloak. The just and proper sentence in this
case is one year in jail less 119 days of credit I have outlined. You
shall serve a further 246 days in Territorial jail. And I hope this is the
last time, sir, we ever have to see you here again. Good luck. Taima.
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II. SYRACUSE CRIMINAL RECORD

[5] The accused is now 31 years of age. His adult record includes a
steady litany of convictions, many for various forms of assault,
uttering threats and conflicts with police officers. Many of the
sentences imposed were accompanied by probation orders which
were subsequently breached by the commission of further substantial
offences on Mr. Ehaloaks release from the jail portion of the
sentence.

[6] Mr. Ehaloak's relationship with D.A. has been marked by convictions
for common assault on August 11, 2014 and November 20, 2015; and
a conviction for assault causing bodily harm in June 2016. The last
resulted in a jail sentence of 180 days, less 43 days for time served.
This was accompanied by a concurrent sentence of 60 days for
breach of the probation order outstanding at the time of the assault.

[7] While serving the sentence, Mr. Ehaloak was charged and pled guilty
to a further breach of probation for contacting D.A. by way of a letter
sent from jail expressing that he cared for both her and their young
child. This was in breach of a no contact provision outstanding at the
time, but not threatening or received as being menacing or
inappropriate by D.A.

[8] This communication resulted in the last of the convictions prior to the
charge dealt with by the sentencing judge. Mr. Ehaloak pled guilty to
the breach and the sentence of 45 days consecutive to the sentence
being served was imposed. Mr. Ehaloak was also warned that the
restrictive provisions of the outstanding probation orders remained in
effect, and he said that he understood this.

III. THE CIRCUMSTANCES OF THE OFFENCE

[9] Mr. Ehaloak returned to Cambridge Bay, his home community,


following his release from custody after serving the 45-day sentence.
He was met by RCMP officers who reminded him that he remained
the subject of orders restricting his contact with D.A. Soon after his
return, however, on the weekend of December 3, 2016, D.A.
contacted Mr. Ehaloak and asked him to come to where she was
residing. In a letter dated December 4, 2016, D.A. provided to
defence counsel, entered as Exhibit 3, she set out the following:
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To whom it may concern,

I [D.A.] would like to revoke the Peace Bond against Greg Ehaloak.
As a couple we would like to enroll in therapy and work towards
earning custody of our daughter [B.]. I am committed to making the
relationship work, becoming sober and working towards living a
healthy lifestyle.

We have talked about our future and we see ourselves together. I need
him to help me pay the bills that we owe and I can't do that alone.

I understand meeting with him without consent of his probation officer


was wrong but it was the weekend and there was no one to talk to. We
just want to be a family again.

Sincerely,

[D.A.]

[10] The reference in the last paragraph is to the still outstanding condition
of the November 20, 2015 probation order restraining contact to that
organized by the supervising probation officer.

[11] There was no conflict between Mr. Ehaloak and D.A. when he
attended. Mr. Ehaloak had purchased and brought some items
for D.A. and their child and was invited into the home by D.A.
where he was discovered by police officers checking on the
situation.

IV. COUNSEL SUBMISSIONS ON SENTENCING

[12] When the case was called, counsel advised they had conducted
extensive discussions towards resolution of the outstanding charges.
The accused was to enter a guilty plea to breach of condition 6 of the
November 2015 probation order and the Crown would withdraw the
other related charges on a successful disposition. The submissions
on sentence did not amount to a joint submission but the ranges
presented were reasonably similar. The Crown suggested four to five
months incarceration; the defence argued for one to two months.

[13] Both submissions related that Mr. Ehaloak, despite his extensive
court history, had not been assessed in respect of possible mental
health issues and there had been minimal contact with Community
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Corrections. Nothing had been put in place to attempt to deal with his
reoccurring pattern of offending. At p. 9 of the transcript, Mr. Punter
for the Crown said for:

I believe that everybody in the community would like something better


to happen for Mr. Ehaloak. The probation officer, who is here, and
Ive had discussions with her on several occasions, is quite honestly
at wits end in how to assist Mr. Ehaloak. They would like to.

[14] Ms. Goldenberg, for the defence, outlined that her client had, during
previous periods of incarceration, been willing to undertake
counselling, but that programs had not been available and nothing
had been undertaken.

[15] She summarized her submissions at p. 30 of the transcript:

So in my submission, if we are really looking at protecting the public


here, not having this dangerous man in their midst, its not an answer
just to send him to custody because as Your Honour said, he will
eventually be released. Its not an answer to exile him from Cambridge
Bay. What really needs to be done is to get him treatment that that
assists him to deal with these issues.

V. THE COMMUNITY CORRECTIONS LETTER

[16] Exhibit 2 in the proceedings was a December 12, 2016 letter from A.
Etienne, the Regional Supervisor, Community Corrections and M.L.
Uviluq, the local Community Corrections Officer. The last two paras.
of the letter read:

We are concerned about his habit of consistently breaching his court


orders with violent threats and actions. He make promises to the Court
to follow his conditions but those promises are immediately broken.
Normally, as CCOs we would do our best to help our client look at
the pattern and find out why there is such a pattern. We then refer our
client to other avenues of help in and outside of the community, if
need be. We have not been able to do this with GE. Further to this,
because of his short incarcerations, he has not been anywhere long
enough to receive the help he needs (assessment from Mental Health
or treatment or medication if necessary) to help break this cycle. There
are people and agencies in this community that would like to see GE
get the help he needs to become a contributing member of the
community. He has a 2 year old daughter that needs to have her father
in her life; but he needs to get some help in order to be there for her.
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We are respectfully asking that Gregory EHALOAK be required to


participate in an assessment to attend an appropriate treatment facility
that can help him.

VI. DISPOSITION ON SENTENCING

[17] During the first day of the proceedings, the accused became
belligerent and was taken into custody, and the case called the
following morning. Further submissions were made and the following
day, sentence was imposed and reasons given.

[18] The sentencing judge stressed the need to enforce the provisions of
the probation order, and court orders in general, to sustain these
orders as effective means of regulating the behaviour of persons
convicted of or charged with criminal offences. He said at p. 56:

First and foremost the sentence I impose must emphasize denunciation


and deterrence.

[19] He found the accused's behaviour in disregarding orders in general


and in particular in respect of the order founding the charge, to be
egregious and a threat to D.A., who he said at p. 57, needs this
court's protection whether she realizes it or not.

[20] The sentencing judge stressed proportionality which in light of what


was held to be the serious nature of the breach, mandated a more
significant period of incarceration than put forward by counsel.

[21] In dealing with the fact that Mr. Ehaloak was Inuk and the need to
consider s. 718.2(e) of the Criminal Code, and the comments of the
Supreme Court of Canada in R. v. Gladue, [1999] 1 S.C.R. 688, the
sentencing judge said (at p. 62):

Gladue 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 at
every level. It is the lens through which we look at every case. Every
sentence of the Nunavut Court of Justice involving and Inuk is a
Gladue sentence. So there is never a specific Gladue credit and
foremost the sentence I impose must emphasize denunciation and
deterrence.
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[22] The sentence was imposed (at pp. 62-63) as follows:

The just and proper sentence in this case is one year in jail less 119
days of credit I have outlined.

[23] As previously indicated, the 119 days included specific credit for 59
days for time served and 60 days for having entered a guilty plea. The
sentence was accompanied by a probation order of 24 months
duration. The contact restriction with reference to D.A. allowed for
contact in the presence of a sober third party adult with a direction
that the accused leave D.A.s presence for 24 hours if told to do so by
D.A. or the police.

VII. GROUNDS FOR APPEAL

[24] The grounds advanced were as follows::

1. an error in imposing a custodial sentence significantly outside the


range proposed by counsel and without providing counsel an
adequate opportunity to make submissions addressing the proposed
increase in the sentence;

2. a failure to properly apply s. 718.2(e) of the Criminal Code in


accord with Gladue and Ipeelee; and

3. a failure to give effect to the mitigating factors and principles


restraining the severity of sentence indicated in s. 718(2) of the
Criminal Code.

[25] The sentence is subject to review if arrived at through an error of


principle, a failure to consider a relevant factor, or overemphasis of a
relevant factor; or through misapplication of the principles enumerated
in ss. 718 to 718.2 of the Criminal Code; or where the sentence
imposed is demonstrably unfit (see R. v. Keough, 2012 ABCA 14
[Keough] at para. 16).

VIII. DISCUSSION

A. Specific Credit for a Guilty Plea

[26] As a first comment, I find the means for determining the length of
sentence in this case, by giving a specific credit for having dealt with
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the matter by a guilty plea, to be in error and contrary to the


sentencing process indicated in s. 718.

[27] The guilty plea is a mitigating factor to be taken into account in


assessing the sentence to be imposed, as would be other mitigating
and aggravating features on sentencing, and not a credit to be applied
against the otherwise just and proper sentence.

[28] The distinction is not entirely an esoteric one. The accused's release
date and the date an accused might be placed on mandatory
supervision were not affected, but the record of conviction will show a
sentence greater than would be shown through the traditional
sentencing process. Consistency in appreciating and comparing
sentences is challenged. The sentence in this case should have been
expressed as 10 months incarceration with a credit for 59 days for
time served.

[29] In particularly sensitive cases the availability of a community sentence


order or the classification for corrections purposes, or conformity with
minimum sentences, may be put into question.

B. Fitness of the Sentence Imposed

[30] The submission of greater significance relating to the sentence


imposed in this case is that the sentence was unfit, through an
overemphasis of the principles of deterrence and denunciation, and
the overemphasis of the aggravating factors by way of the accused's
criminal record and past breaches of court orders.

[31] The appellant says this result was at least in part the consequence of
failing to employ a procedure of notifying counsel that their
recommendations may not be followed, and taking further
submissions relating to the significant increase in sentence being
considered.

[32] Secondly, the appellant says the sentencing judge erred as a result of
a failure to take the initiative to consider individualized and innovative
features of sentencing that would help avoid the approach taken, that
of significantly increasing the duration all of incarceration. This
alternate course is said by the appellant to have been required by
s. 718.2(e) of the Criminal Code, a provision specifically enacted to be
applied in sentencing of Indigenous offenders.
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[33] The danger associated with exceeding the ranges indicated by


counsel is the impact this may have on counsel's efforts to resolve
disposition of cases before the courts. Responsible counsel will, in the
course of considering disposition by a guilty plea, consult on the
range of sentence to be recommended and secure assurances in this
regard. This is a useful exercise even if complete agreement cannot
be finalized by way of a joint submission. The importance of
supporting this process, targeted on disposition, has been the subject
of numerous judicial comments and the process is one particularly
valuable to the Northern Courts.

[34] In R. v. Burke, 2016 SKCA 100 at para. 7, the court said:

[7] [T]he sentencing judge's decision to depart from the range put
forward by counsel without seeking submissions from counsel, in a
general sense, is fraught with potential problems. Sentencing judges
must proceed cautiously when stepping outside the recommendations
of counsel. In this regard, see R v. Burback, 2012 ABCA 30 at para 15,
522 AR 352, and R v. Hagan, 2011 ONCA 749, at para 5.

[35] In Keough, at para. 19, the court said:

[19] Sentencing takes place in an adversarial context. It is


anticipated that in most cases the sentence imposed will fall at the
boundaries, or within the range of sentences recommended by counsel.
While there is no legal requirement that the sentencing judge stay
within that range, or adopt the recommended structure of the
sentences, it is of concern when that is not done. As the Court
observed in R. v. S.G.T., 2010 SCC 20 at paras. 36-7, [2010] 1 SCR
688: "... trial judges are expected to be impartial arbiters of the dispute
before them; the more a trial judge second-guesses or overrides the
decisions of counsel, the greater is the risk that the trial judge will, in
either appearance or reality, cease being a neutral arbiter and instead
become an advocate for one party." The accused is entitled to
reasonable notice of the jeopardy he faces, and a fair opportunity to
make submissions. The Crown is also entitled to a reasonable
opportunity to explain its position. Where the Crown makes a
recommendation that the accused finds to be acceptable or fair, both
sides may believe the point is not in contention, and the accused may
not make any submissions on the point; a subsequent sentence
inconsistent with that recommendation can catch both parties by
surprise. An accused who receives a sentence outside the
recommended range may in such circumstances harbour a feeling of
unfairness and injustice.
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[36] The situation is not far different from that of a court presented with a
joint submission. The significance of such a presentation is the
subject of the recent Supreme Court of Canada decision in R. v.
Anthony-Cook, 2016 SCC 43. In my view, the procedure when
dealing with both of these sorts of presentations should be similar.
Counsel should be informed the court sees qualities of the case that
may prompt a more stringent range of sentence than presented by the
Crown. Submissions should be requested from counsel; and, in
appropriate cases, there may be cause for withdrawal of the plea.

[37] Further submissions from counsel can be particularly valuable


because they may highlight authority that has not, to that point, been
cited. I have had the advantage on this appeal of case authority
speaking to ranges appropriate to cases of breach of court orders and
undertakings that the sentencing judge did not have when he imposed
sentence in this case.

[38] Authorities are not particularly easy to find. Often the sentence
imposed is of lesser significance because the sentence is concurrent
to a substantive offence associated with the breach, but R. v. Nichols,
[2007] N.J. No. 180 (Nfld. P.C.) is a useful analysis of appropriate
sentences. At para. 47 of that case, the court discussed a number of
other cases and commented that the range was within one to three
months.

[39] The sentencing judge clearly expressed his reservations in respect of


the recommendations of counsel but he did not expressly indicate a
sentence of the severity he actually imposed, with the invitation for
further submissions. Notwithstanding this was not done, the result
must still be an unfit sentence before an appeal court will intervene.
Keough at para. 20 states:

[20] The case law recognizes the importance of a trial judge giving
fair warning to counsel when he or she proposes to sentence outside
the recommended range: R. v. Hood, 2011 ABCA 169 at para. 15; R. v.
Abel, 2011 NWTCA 4 at para. 23; R. v. Beal, 2011 ABCA 35 at
paras. 15, 18, 502 AR 177, 44 Alta LR (5th) 306. This is a component
of a wider principle that the parties are entitled to reasonable notice if
the judge proposes to decide the case in a way not advocated by either
party: R. v. Al-Fartossy, 2007 ABCA 427 at paras. 22-5, 83 Alta LR
(4th) 214, 425 AR 336; Murphy v. Wyatt, [2011] EWCA Civ 408,
[2011] 1 WLR 2129 at paras. 13-19; Labatt Brewing Co. v. NHL
Enterprises Canada, 2011 ONCA 511 at paras. 5, 14, 106 OR (3d)
677; In Re Lawrence's Will Trusts, [1972] Ch 418 at p. 436-7.
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Nevertheless, the sentencing judge has an obligation to impose a fit


sentence, and neither exceeding the recommended range, nor failing to
give counsel notice of intention to exceed the range, is, without more,
reviewable error. If the sentence imposed is not demonstrably unfit
having regard to the principles of sentencing in the Criminal Code,
appellate interference is not warranted. Failing to seek the input of
counsel may, however, make it more likely that the trial judge may
overlook or overemphasize the relevant factors, rely on an irrelevant
factor, impose a sentence based on an error in principle, or commit
some other reviewable error.

[40] Fitness of the sentence in this case focuses on whether the


sentencing judge overemphasized deterrence and denunciation in
finding that the record of numerous prior breaches prompted an
exasperated recourse to the dramatic increase over previous
sentences imposed upon the accused.

[41] There were perhaps 30 previous breaches of court orders on the


accuseds record, but the last two breaches were, in my view, of a
different quality. They were not associated with assaults or the
commission of other criminal offences. They were standalone charges
not associated with threatening behaviour; and in the case of the
breach prompting this sentence, consisted of contact initiated by D.A.,
Mr. Ehaloaks common-law partner. There is culpability in that the
accused was specifically warned against contact. On the prior
occasion, involving the letter from jail, Mr. Ehaloak was given what
was, in my view, a stiff sentence, 45 days; and an increase was
perhaps in order, but the increase by way of the sentence imposed
was five times greater than the previous one; and, in my view, was
excessive.

[42] The sentencing judge clearly classified the accused is a dangerous


individual and that D.A. was in need of protection, whether she wants
it or not. There is ample cause for concern inherent in the past
offences and particularly the assaults on D.A., but the present offence
was not of the same violent nature and the marked increase in the
duration of the sentence amounts more to further consequences for
past offences than a just disposition of the offence before the court.

[43] The appellant also argues that the sentence failed to follow the
direction given in s. 718.2(e), with respect to the sentencing of
Aboriginal offenders. I find the sentencing judge's comments at p. 62
of the transcript difficult to follow. It is true by definition that every
sentence of the Nunavut Court of Justice involving an Inuk is a
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Gladue sentence, but the sentence that follows, so there is never a


specific Gladue credit, is troubling.

[44] The reference to a Gladue credit is a somewhat cynical comment


relating to the directions to trial judges indicated in Gladue and
Ipeelee. These cases emphasize the need for individualized and
innovative sentencing to break the reliance on an ever increasing size
of hammer in dealing with repeat Aboriginal offenders. The result
hopefully will be less reliance on incarceration. This in Nunavut should
result in there more commonly being a Gladue emphasis on
sentencing.

[45] It may be that I misunderstand this rather cryptic comment, but


nonetheless, in my view, this case illustrates a lost opportunity to
attempt to appreciate the personal history and systemic and
background factors influencing this offender. The sentencing judge
acknowledges at p. 53 of the transcript that he did not know very
much about the accused. Both counsel emphasized the accused had
never been subject to an assessment, and may have issues with
mental health, and had never been given programming during the
history of his periods of incarceration. Before considering the marked
increase in sentence that was eventually imposed, I suggest the court
might have used the opportunity to require a Pre-Sentence Report to
better understand the accuseds behaviour.

[46] By way of disposition, I grant leave to appeal and allow the sentence
appeal. I view the circumstances as giving rise to no more
incarceration than recommended by Crown counsel, which is
essentially satisfied by time served.

[47] I think there is also cause to revisit the probation order imposed. I see
little merit in imposing more than a one-year period of probation, and
the terms with respect to contact between Mr. Ehaloak and Ms. D.A.
should not require the presence of a third-party adult through most of
the period of probation if they are intent on resuming their
relationship.

[48] I directed that Mr. Ehaloak and Ms. D.A. not be in direct contact
without the presence of a third party sober adult until they have
participated in at least three sessions of relationship counselling to be
arranged by the supervising probation officer. The provision requiring
Mr. Ehaloak to leave for 24 hours when requested to do so by
Ms. D.A. or the police should remain in effect.
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[49] Lastly, I require Mr. Ehaloak to attend forthwith on his release to the
Probation Office servicing Cambridge Bay, and to attend thereafter as
directed and undertake any assessment or counselling
recommended. To facilitate this, I will ask counsel to arrange for the
earliest appointment available and will direct the accused's release in
a manner that this appointment can be made without delay on his
transport back to Cambridge Bay.

Dated at the City of Iqaluit this 20th day of June, 2017

___________________
Justice W.G. Grist
Nunavut Court of Justice
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Appearances:

S. Siebert
for the Appellant

A. Dion
for the Respondent