Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Evic, 2020 NUCJ 7

Date: 20200124
Docket: 10-19-34
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Joshua Evic

________________________________________________________________________

Before: Madam Justice Doyle

Counsel (Crown): P. Plourde

Counsel (Accused): A. Landry

Location Heard: Iqaluit, Nunavut

Date Heard: December 17, 2019
Matters: Sentencing for offence under s. 268(2) of the Criminal
Code of Canada, RSC 1985, c C-46

REASONS FOR SENTENCE

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

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I. OVERVIEW

[1] On August 21, 2019, Joshua Evic and the co-accused, Jessica
Akpalialuk, were convicted of aggravated assault on Billy Qappik on
March 5, 2019 in the hamlet of Pangnirtung in the territory of Nunavut
contrary to s. 268(2) of the Criminal Code.

[2] The details of the offence are that Mr. Qappik was at his friend’s
home having drinks when Mr. Evic and Ms. Akpalialuk came over. An
argument ensued between Ms. Akpalialuk and Mr. Qappik, and she
then started punching Mr. Qappik on his head and his arm. In order to
protect himself, Mr. Qappik covered his head with his arms. Mr. Evic
began punching him as well. Both Ms. Akpalialuk and Mr. Evic began
kicking him while Mr. Qappik was on the ground covering his head.
He was rendered unconscious. Mr. Qappik did not fight back.

[3] Mr. Qappik suffered bruising on the left arm and three serious
lacerations to his scalp which required 16 staples to his head from the
Health Centre.

II. OFFENDER

[4] Mr. Evic is 44 years old and is a resident of Pangnirtung who

participates in community functions. He hunts and fishes for his family
and donates some of his catch to elders. He also carves for a living,
having received funding from Kakivak for tools, and he does odd jobs
in the community. He did not attend residential school and does not
know if his biological mother did. Although Pangnirtung is a dry
community he reports there is an extensive use of both drugs and
alcohol. He was in a common-law relationship with Jessica Akpalialuk
for six months prior to being placed in custody at Baffin Correctional
Centre. His apartment burned down in January 2019 and he plans to
return upon the completion of the repairs; otherwise, he plans to move
in with his mother.

[5] He has two children who live with their mother and he provides
support when he has income. He was involved in an eight-week
program at Mamisarvik. He has lost an uncle and some cousins to
suicide. He states that he was the object of racism while on the boats
“but nothing serious….we would make fun of each other.”
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[6] Mr. Evic has a record dating back to 2001 which includes possession
of a weapon, assaults for which he has served time in prison,
mischief, theft, uttering threats and failure to comply with an
undertaking. He has convictions dating back to February 2017 for
uttering threats (90-day sentence), mischief under $5000 (60 days)
and failure to comply with an undertaking (41 days).

[7] His most recent convictions occurred on May 8, 2019: failure to

comply with conditions of an undertaking, breach of probation,
mischief, and criminal harassment. For these, he was required to
serve 186 days in addition to pre-sentence custody.

[8] He has been in custody since his conviction on March 5, 2019. After
serving his time on that conviction, the pre-trial custody on the
aggravated assault conviction before the court amounts to 102 days
as of December 16, 2019 (the date of the sentencing hearing) and
with a 1.5 credit, he has 153 days pre-sentence custody credit.

[9] Mr. Evic is of Indigenous background.

III. VICTIM

[10] The victim, Mr. Qappik, was interviewed by the Community

Corrections officer who prepared Mr. Evic’s Pre-Sentence Report. Mr.
Qappik indicated he feared Mr. Evic and feels he is “paranoid” and
feels he has to watch his back in the community. He states that he no
longer drinks which has allowed him to spend more time with his
family. He has support from his mother. Due to his head injuries, he
was sometimes quicker to anger but this is no longer an issue. He
indicates that he did not know why they assaulted him.

IV. POSITION OF THE PARTIES

[11] The Criminal Code provides that a person found guilty of the
indictable offence of aggravated assault is liable to imprisonment for a
term not exceeding fourteen years.
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[12] The Crown seeks a prison sentence of four and a half years. It was a
brutal attack and Mr. Evic has a serious criminal record with highly
violent offences especially since 2013. The most significant conviction
was for aggravated assault in 2017 for which he received two years
less a day. Mr. Evic shows a propensity to violence. Even when he
was given a lenient sentence in 2005 of eight months conditional, he
was only able to comply with the terms for one month. Mr. Evic has
significant issues with complying with court orders.

[13] The Crown relies on R v Sinclair, 2014 MBPC 13, where the offender
received two years less a day plus three years of probation for a
house invasion resulting in an aggravated assault and an assault with
a weapon. The offender was Aboriginal and had experienced severe
poverty, racism, sexism, and the legacy of residential schooling and
displacement. The victim had wounds to her head which required
stitches and staples, cuts and bruising to her face and arms and
bruises to her upper back and side caused by the baseball bat.

[14] In R v Brown, 2014 ABPC 236, the offender pled guilty to assault
causing bodily harm on one victim, Mr. Charland, and wounding,
maiming, disfiguring or endangering the life of another victim, Ms.
Marty. Ms. Marty and the offender had been dating and the offender
saw Ms. Marty have intimate relations with Mr. Charland. All three
individuals were intoxicated. The offender assaulted Mr. Charland and
then grabbed Ms. Marty by her hair, kicked her in the head
repeatedly, stomped her head against the pavement several times,
and rendered her unconscious. He continued to kick her while she
was unconscious. Mr. Charland tried to stop the offender but he then
became the target of the offender’s punches and kicks. Ms. Marty
underwent neurosurgery for subdural hematoma. She had a traumatic
brain injury. She was tube fed for several weeks and eventually was
able to respond appropriately to questions and whisper and mouth
some words. For both offences he was given a global sentence of 5.5
years.

[15] The offender suggests a sentence of 2 years. With the credit he

received for pre-trial detention, he will be able to serve his sentence
territorially.

[16] He submits that he did not instigate the attack; there were no lasting
injuries; a four-and-a-half-year sentence is quite a big jump in custody
since his last convictions; and this sentence should be similar to this
first aggravated assault in 2017, which was more serious.
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[17] Defence submits Gladue factors figure prominently in this case, due
to the massive bootlegging and drug dealing taking place in
Pangnirtung, which is supposed to be a dry community. Even though
a Gladue report is not available, it would outline the conditions facing
those living in these conditions, both historically and today.

[18] Mr. Evic completed some certificates while in Baffin Correctional

Centre including addiction and alternatives to violence. He is now
completing the program Inside Out (SMART recovery).

V. GENERAL LEGAL PRINCIPLES

[19] The applicable sentencing principles are set out in s. 718 of the
Criminal Code. The sentence must denounce unlawful conduct, deter
the offender and others from committing offences, separate offenders
from society if necessary, assist in rehabilitation, provide reparation
for harm done to victims and the community, promote a sense of
responsibility in offenders, and acknowledge of the harm done to
victims or to the community.

[20] Section 718.1 of the Criminal Code states that the fundamental
principle of sentencing is that a sentence must be proportionate to the
gravity of the offence and the degree of responsibility of the offender.

[21] Section 718.2 sets out other sentencing principles to consider in

determining aggravating or mitigating circumstances.

A. Proportionality

[22] The proportionality principle analysis under s. 718.1 takes into

account the gravity of the offence and the degree of responsibility of
the offender, including the fault component and any specific aspects
of the offender’s conduct or background that affect his responsibility
for the crime.

B. Parity

[23] The parity principle requires that the Court consider sentences
imposed for similar offences committed in similar circumstances. The
cases presented provide a range of sentences and sentencing
principles for the Court to consider. The cases indicate that lengthy
prison sentences are imposed in cases where the victim has suffered
serious head injuries.
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VI. ANALYSIS

A. Aggravating and mitigating circumstances

[24] The aggravating circumstances in this matter are as follows:

i) The severity of the injuries to the victim;

ii) The unprovoked attack on the victim;
iii) The long serious criminal record for similar type offences; and
iv) The 2017 assault which was serious in nature for which he
received a sentence of two years less a day.

[25] The mitigating circumstances are as follows:

i) The offender has expressed remorse for the assault;

ii) He did not initiate the assault but rather Ms. Akpalialuk did;
iii) He has expressed a desire to change his ways and return to
Pangnirtung to upgrade his education and obtain work;
iv) He is willing to engage in a rehabilitative process and willing to
comply with any court directives;
v) He has a support network in the community; and
vi) He has a connection to the community.

[26] I am also directed by the Supreme Court of Canada in R v Gladue,

[1999] 1 SCR 688, to consider the unique systemic and background
factors that have played a role here. Gladue is part of the
proportionality analysis and is fundamental to the sentencing process.
See R v Ipeelee, 2012 SCC 13, at para 87.

[27] The Gladue analysis involves a two-level inquiry. The first level is to
recognize the systemic and background factors that bear on the
culpability of the offender. The second level is to consider the types of
sanctions which may be appropriate having regard to the
effectiveness of the sentence.
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[28] At paras 74 and 75, the Supreme Court stated in Ipeelee:

...The Gladue principles direct sentencing judges to abandon the

presumption that all offenders and all communities share the same
values when it comes to sentencing and to recognize that, given these
fundamentally different world views, different or alternative sanctions
may more effectively achieve the objectives of sentencing in a
particular community.

[75] Section 718.2(e) does not create a race-based discount on

sentencing. The provision does not ask courts to remedy the
overrepresentation of Aboriginal people in prisons by artificially
reducing incarceration rates.

[29] Sentencing judges can endeavour to reduce crime rates in Aboriginal

communities by imposing sentences that effectively deter criminality
and rehabilitate offenders. These are codified objectives of sentencing
(para 66 in Ipeelee).

[30] At para 78 of Ipeelee, the Supreme Court stated:

The purpose of sentencing is to promote a just, peaceful and safe

society through the imposition of just sanctions that, among other
things, deter criminality and rehabilitate offenders, all in accordance
with the fundamental principle of proportionality. Just sanctions are
those that do not operate in a discriminatory manner. Parliament, in
enacting s. 718.2(e), evidently concluded that nothing short of a
specific direction to pay particular attention to the circumstances of
Aboriginal offenders would suffice to ensure that judges undertook
their duties properly.

[31] At para 73:

…systemic and background factors may bear on the culpability of the

offender, to the extent that they shed light on his or her level of moral
blameworthiness.

B. Analysis of aggravating and mitigating circumstances

[32] In cases referring to Gladue and Ipeelee, courts have taken judicial
notice of the history of colonialism, displacement and residential
schools and the fact that Aboriginal people continue to suffer from
lower education, lower incomes, substance abuse, high suicide rates
and, at times, higher levels of incarceration. See para 46 of R v
Sinclair, 2014 MBPC 13.
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[33] In considering the rehabilitative and restorative sentencing objective, I

am taking notice of the willingness of Mr. Evic to participate in
rehabilitation, the resources available in the Pangnirtung community,
the availability of counselling and psychiatric services, and the
presence of the community corrections officer who supervises
offenders on probation and conditional sentences.

[34] Mr. Evic has participated in two programs while at Baffin Correctional
Center. First, Inside Out (SMART recovery), which targets recidivism
and addresses addiction, both substance and behavior. It offers
methods of dealing with addictive and behavioral issues including
self-help and emotional behavior.

[35] Mr. Evic also completed ATV (Alternatives to Violence), a program for
participants to examine the “cost of anger and aggression in their own
lives”. Participants learn alternative and practical skills for managing
their own anger and creating a different life.

[36] The pre-sentence report indicates that Mr. Evic showed a responsible
attitude in the sessions and took an active role in the discussions and
dynamics. The institutional instructor, Pascual Rubio, commented as
follows: “To my knowledge and experience as an educator, I can tell
you that I noticed quite a few changes in Joshua’s attitude from
beginning to end of the programs.”

[37] Mr. Qappik was seriously injured. There was no pre-planning, but the
assault was serious enough that it rendered the victim unconscious.
In addition, he continued to be kicked when he was on the ground
covering his head and not fighting back against his assailants.

[38] I am mindful of the step principle and the strong need for denunciation
and deterrence.

[39] Therefore, Mr. Evic please stand up.

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[40] The Court imposes the following sentence:

i) A term of incarceration of 3 years minus credit for pre-sentence

custody (of 1.5 days per 1 day presentence);
ii) You shall provide a DNA sample pursuant to s. 487.051(2) of
the Criminal Code;
iii) There will be firearms prohibition pursuant to s. 109 of the
Criminal Code save and except permission to hunt and fish
pursuant to s. 113 for sustenance or employment;
iv) You shall not contact or communicate in any way directly or
indirectly with the victim while you are in custody pursuant to s.
743.21 of the Criminal Code.
v) No victim surcharge in accordance with s. 737 of the Criminal
Code, as it would place undue hardship on the offender given
his financial status and unemployment. Any funds earned in the
near future should benefit his two children who live with their
mother.

Dated at the City of Iqaluit this 24th day of January, 2020

___________________
Justice A. Doyle
Nunavut Court of Justice