Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R. v. Uniuqsaraq, 2015 NUCJ 16

Date:
Docket:
Registry:

20150720
08-14-410-1; 08-14-560; 08-14-604
Iqaluit

Crown:

Her Majesty the Queen

-and-

Accused:

Guy Uniuqsaraq

________________________________________________________________________
Before:

The Honourable Madam Justice Cooper

Counsel (Crown):
Counsel (Accused):

Caroline Lirette
Patrick Bruce

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
May 26, 2015; June 18, 2015
Criminal Code, s. 266; s. 268; Controlled Drugs and
Substances Act, SC 1996, c 19, s. 4(1)

REASONS FOR JUDGMENT

(Delivered Orally)

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

I. INTRODUCTION
[1]

Mr. Uniuqsaraq is before the court for sentencing on charges of

aggravated assault, assault, and possession of cannabis.

II. FACTS
[2]

On August 4, 2014, Mr. Uniuqsaraq had been drinking heavily. He

found himself in the presence of the victim, who had once been
romantically involved with Mr. Uniuqsaraq's girlfriend. Mr. Uniuqsaraq
made clear his intention to beat up the victim, who tried to get away.
Mr. Uniuqsaraq attacked the victim and beat him up very badly. The
victim recalls nothing of the assault after the first blow. His next
memory is of waking up in hospital in Ottawa. He had been
medivaced to Ottawa because of life threatening bleeding in the brain.
His injuries included facial bone fractures, including a broken nose,
and lacerations on the face which required stitches.

[3]

The bleeding in the brain was monitored and resolved itself without
the necessity of surgery. Fortunately, the victim does not have any
permanent injuries.

[4]

As a result of this incident, Mr. Uniuqsaraq has been convicted of

aggravated assault. At the time of this incident Mr. Uniuqsaraq was on
a probation order and a conditional sentence order, both arising from
convictions for offences of violence.

[5]

As a result of being charged with the August 4, 2014, aggravated

assault, Mr. Uniuqsaraq was on remand at the Baffin Correctional
Centre [BCC]. On October 31, 2014, staff were attempting to move
him to a secure area and were having difficulties doing so. Mr.
Uniuqsaraq said that he would hit anyone who tried to move him. He
was forced to the ground, placed in leg irons and hand cuffs, and put
back on his feet, at which point he head butted a guard. As a result of
the head butt, the guard suffered a chipped tooth and a cut lip. Mr.
Uniuqsaraq has been found guilty of assault in relation to this incident.

[6]

On November 27, 2014, Mr. Uniuqsaraq was being brought to court

from the Baffin Correctional Centre. As he was walking towards the
courthouse door he picked something up from the ground and put it in
his jacket. Amongst the items picked up were 7.8 grams of marijuana
and a lighter, resulting in a conviction for simple possession.

III. POSITIONS ON SENTENCE

[7]

The Crown seeks a global sentence of 40 months, consisting of 32

months on the aggravated assault, six months on the assault, and two
months on the simple possession. They ask that the sentence be
reduced having regard to credit for pre-trial custody on a 1:1 basis.

[8]

The Defence seeks a global sentence in the range of 18 to 24

months.

IV. PERSONAL CIRCUMSTANCES

[9]

Mr. Uniuqsaraq is 28 years old. He had a difficult upbringing.

Although he has not been diagnosed as having Fetal Alcohol
Spectrum Disorder, his mother has admitted to drinking while she was
pregnant with him and he feels that he has been impacted by this.

[10] He was adopted to his paternal grandparents, however, it became

clear early on that the man who was identified as his father was not in
fact his biological father and this caused issues in the home. Mr.
Uniuqsaraq suffered physical and sexual abuse at the hands of the
other children in the home. When he was 13 he was apprehended
and placed in foster care.
[11] It was at this time that Mr. Uniuqsaraq began to encounter difficulties.
He has issues with impulsivity. I am advised that he was bullied at
school. He was encouraged by his foster father to stand up to the
bullies, which he did and which addressed the issues over the short
term, but which may have contributed to his tendency to resort to
violence.
[12] Mr. Uniuqsaraq struggles with substance abuse.
[13] Mr. Uniuqsaraq has only a grade nine education as he left school
early to go live at an outpost camp. He has spent extended periods in
an outpost camp and is a skilled hunter. He also carves, draws, and
works with wood. As an adult he has experienced extended periods of
homelessness.

IV. ANALYSIS
[14] The sentencing principles which I must consider are set out in s. 718
of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code]. They
are:
to denounce unlawful conduct
to deter the offender and others from similar
behaviour
if necessary, to separate the offender from society
to rehabilitate the offender
to provide reparations to victims of crime
to promote a sense of responsibility in an offender
[15] Counsel have provided case law from the Northwest Territories which
suggests that the appropriate range of sentence is 2 1/5 to 5 years.
A review of the NWT cases suggests that this proposition is based on
the case of R v Morgan, 2007 NWTSC 30, 74 WCB (2d) 836, wherein
the court, after reviewing a number of cases from that jurisdiction,
commented that the general range was 30 months to five years. The
court also recognized that the facts that support a conviction for
aggravated assault and the types of offenders who come before the
court to be sentenced for aggravated assault vary greatly.
[16] In the recent case of R v Akalukjuak, 2015 NUCJ 18, 2015 NUCJ 18
(CanLII) [Akalukjuak], this court reviewed some of the cases from this
jurisdiction where sentences were imposed for aggravated assault.
The cases reviewed ranged from a conditional sentence to 39
months. There is also the case of R v Kopalie, NUCJ Case File #0811-522-1 [Kopalie], a case described by the presiding judge as a
murder without a dead body where the offender was sentenced to
five years in custody.
[17] I make these comments simply to highlight that sentencing is a highly
individualized process. As stated in Akalukjuak, parity requires
consistency in analysis and approach, but does not necessarily
require that all persons convicted of the same offence receive the
same sentence.

A. Aggravating and mitigating factors

[18] There are some aggravating factors that I must consider. First, Mr.
Uniuqsaraq was on both a conditional sentence and probation at the
time of the aggravated assault. Secondly, the aggravated assault was
extended and violent and resulted in serious injuries to the victim.
Further, Mr. Uniuqsaraq's criminal record and his disciplinary record
while at the Baffin Correctional Centre are aggravating. The criminal
record consists of 13 prior offences of violence as well as five
convictions for uttering threats. Finally, two of the offences currently
before the court occurred while Mr. Uniuqsaraq was on remand on the
earlier offence of aggravated assault.
[19] There are also mitigating factors which must be considered. First,
there has been a guilty plea. It was not a guilty plea at the earliest
opportunity as there was a preliminary hearing, but nonetheless it is
an indication of remorse and an acceptance of responsibility. There
are as well factors from R v Gladue, [1999] 1 SCR 688, [1999] SCJ
No 19, and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, including
both the systemic factors such as recent colonialization and the
intergenerational impact of residential schools, which this court
recognizes regularly, and factors particular to Mr. Uniuqsaraq, which
have already been discussed.
[20] The serious nature and duration of the aggravated assault has been
noted. It is also important to note that the victim in this case did not
suffer permanent injuries. This makes this case distinguishable from
that of Kopalie, where the victim suffered permanent cognitive
impairment which has left him childlike and in the care of his family for
the remainder of his life.
B. Pre-trial custody credit
[21] There are issues in this case about the credit that ought to be given
for Mr. Uniuqsaraq's pre-trial custody.

[22] The first issue is whether consideration should be given to enhanced

credit for the full time he has spent on remand or for just the time
between his initial remand and the date of the first offence committed
while on remand. The date of the aggravated assault was August 4,
2014. The date of the subsequent offence, committed while in
custody, was October 31, 2014. I am of the view that the period of
time from August 4 to October 31, 2014, should be treated differently
than the remand time after October 31, 2014. In my view, this is
necessary to ensure that similar treatment is accorded to similarly
situated offenders. By way of illustration, one can envision two
offenders charged with the same offence, one of whom is granted bail
and the other who is either denied bail or consents to remand. While
awaiting disposition they each commit a further offence. The offender
who has been granted bail would not be eligible for consideration for
enhanced credit for any time in remand after the second offence
pursuant to s. 719(3.1) of the Criminal Code. I am unable to think of a
principled reason why the offender who reoffended while in remand
should be treated differently and, indeed, preferentially.
[23] A further issue regarding credit for remand arises from Mr.
Uniuqsaraq's discipline history while on remand. Crown counsel has
filed a discipline report from the Baffin Correctional Centre which lists
17 incidents. A review of the document discloses that two of the
entries relate to the October 31 charges for which he is to be
sentenced. The Crown submits that the disciplinary record
demonstrates that Mr. Uniuqsaraq would not be considered a good
candidate for early release and, accordingly, he should not receive
enhanced credit for his remand time.
[24] In R v Nelson, 2014 ONCA 853, 118 WCB (2d) 326, the Ontario Court
of Appeal found that the Crown had not displaced the inference of
eligibility for early release by establishing the offender had three
discipline incidents over 19 months in pre-trial custody. Further, the
court recognized, as set out in Summers, that if the disciplinary
incidents are considered an aggravating factor on sentence they
cannot be double counted to deny eligibility for enhanced credit.
[25] In my view, there is a further issue in this case and that is the
conditions under which the offender served much of his remand time.
Mr. Uniuqsaraq has been in remand since August 4, 2014, a period of
just over ten months. All of this time has been served at the Baffin
Correctional Centre, except for a period of three months when he was
at an institution at Surrey, British Columbia.

[26] It is well known that many inmates from BCC had to be transferred to
British Columbia because the conditions at BCC had become
intolerable. The Office of the Federal Correctional Investigator
released a report in April of 20131 which found that the conditions
were deplorable and some aspects of the institution constituted
human rights violations. This report was followed by the March, 2015
report of the Auditor General of Canada on Corrections in Nunavut2. I
do not intend to discuss these reports in detail. Suffice to say that the
findings highlight not only the inadequacies of the physical structure of
BCC, in particular the extreme overcrowding and lack of sufficient
facilities for personal hygiene, but also the lack of programming,
resources, and planning to facilitate an offender's successful
reintegration to the community upon release.
[27] The fact is, most of those who find themselves at BCC are without the
necessary coping mechanisms to deal with the stress and difficulties
of everyday life. Many have cognitive impairment, mental health, and
substance abuse issues. They have difficulty controlling impulses.
Simply getting through the day without incident can be a struggle for
them. It is not realistic to take this segment of the citizenry, put them
in a confined and crowded living situation, without any supports to
assist them with their issues, and expect them to function without
incident.
[28] Mr. Uniuqsaraq spoke to this better than I can. He spoke eloquently
about his time at BCC and his time in British Columbia. He spoke
about how having a cell to himself calmed him down and allowed him
to think. He sought out counselling with the prison Chaplain and
established a supportive relationship with him. He completed two
levels of programming on how to establish healthy relationships.
Perhaps the impact of this change in his remand conditions is best
illustrated by his disciplinary record, which showed numerous
incidents while in BCC and no incidents while in British Columbia.

Correctional Investigator (Canada), Report of the Office of the Correctional Investigator

(Canada) on the Baffin Correctional Centre and the Legal and Policy Framework of Nunavut
Corrections (Ottawa ON, 2013), online: <
http://www.justice.gov.nu.ca/apps/UPLOADS/fck/file/Report%20OCI%20on%20NU.pdf >.
2
Auditor General of Canada, Report of the Auditor General of Canada to
the Legislative Assembly of Nunavut2015; Corrections in NunavutDepartment of Justice
(Ottawa, ON, 2015), online: < http://www.oagbvg.gc.ca/internet/English/nun_201503_e_40255.html >.

[29] I am granting Mr. Uniuqsaraq enhanced credit at a rate of 1:1.5 for the
period from August 4 to October 31, 2014, and credit at a rate of 1:1
for the period from October 31 to today.
V. CONCLUSION
[30] The sentence is as follows:
Aggravated assault of
August 4, 2014

15 months

Assault of October 31,

2014

Six months
consecutive

Simple possession of
November 27, 2014
TOTAL

Four months
consecutive
25 months @ 30
days/month = 750
days

less credit for remand

time
from August 4 to October
30, 2014 at 1:1.5

88 days x 1.5 =
132

from October 31, 2014 to

June 17, 2015

109 days @ 1:1 =

109

Credit for pre-trial custody 241 days

Time remaining

509 days

A. Ancillary orders
[31] There will be a mandatory DNA order, a mandatory Criminal Code s.
109 firearms prohibition for ten years, and a mandatory Victim of
Crimes Surcharge of $200 on the aggravated assault, and $100 each
on the remaining two charges.

Dated at the City of Iqaluit this 20th day of July, 2015

___________________
Justice S. Cooper
Nunavut Court of Justice