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I. INTRODUCTION
[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:
[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.
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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[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.
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.
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.
[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:
[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.
[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:
[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:
[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):
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.
VIII. DISCUSSION
[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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[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.
[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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[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.
[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.
[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.
[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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[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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[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.
___________________
Justice W.G. Grist
Nunavut Court of Justice
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Appearances:
S. Siebert
for the Appellant
A. Dion
for the Respondent