Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Josephee, 2020 NUCJ 40

Date: 20201214
Docket: 03-18-100, 08-18-613, 08-19-434, 08-19-466,
03-19-221
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Harry Josephee

________________________________________________________________________

Before: Madam Justice Cooper

Counsel (Crown): P. Plourde

Counsel (Accused): M. Blanchard

Location Heard: Iqaluit, Nunavut

Date Heard: October 26, 2020
Matters: Sentencing for offences under Criminal Code of Canada,
RSC 1985, c C-46, ss. 244.2(3), 98(1)(b), and 145(3) (x4)

REASONS FOR JUDGMENT

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

 2

I. INTRODUCTION

[1] Harry Josephee is before the court to be sentenced on charges of

break and enter and commit theft, intentionally discharging a firearm
into a place knowing or being reckless as to whether another person
is present in the place, and four charges of breaching court orders.

II. FACTS

[2] On June 17, 2018, Harry Josephee had his eighteenth birthday. A
month later, on July 18, 2018, he and another person broke into the
Recreation Office in Kinngait. Harry used a drill to unscrew the
plexiglass window so the two of them could enter the offices. They
spent about 40 minutes inside the offices. When they left, they took a
number items with them, including a set of office keys and a Savage
.223 rifle.

[3] The break and enter was captured on camera. The footage showed
Harry leaving the office with the rifle strapped on his back. The
following morning a Hamlet employee went to Harry's house and
asked for the rifle back. Harry returned it to him.

[4] Later the same day Harry was confronted on the street by the
Recreation Director. The Recreation Director noticed that Harry was
wearing some sneakers that had been stolen from the Recreation
office. The Recreation Director was angry, and he grabbed Harry by
the throat and demanded the sneakers. The Recreation Director was
using such force that Harry almost lost consciousness. There were
other people in the area. A bystander felt compelled to intervene,
telling the Recreation Director to stop. The sneakers were returned,
and Harry was left in his stocking feet, on the street.

[5] Less than an hour later the Recreation Director was in his office when
he heard loud bangs. He looked out the window and upon hearing
more bangs, realized they were gun shots. Bullets were entering the
office from various locations. The Recreation Director had to lie down
to try and protect himself. No one else was in the office. The
Recreation Director called a Hamlet employee to find out what was
happening. The employee drove to the area and saw Harry with a
rifle. He told the Recreation Director to stay inside and set up
barricades.
 3

[6] By this time, the RCMP were aware of active shooting in the
community and were responding. All the RCMP members in the
community made their way to the area of the shooting. They
approached cautiously. They saw Harry close to the Recreation Office
with a firearm. Harry complied with directions given to him by the
RCMP, dropping the rifle and putting his hands over his head. In
addition to the rifle, other items were on the ground in the area around
Harry, including a machete, rifle cartridges and casings, and two
boxes of ammunition.

[7] Subsequent investigation disclosed that Harry had taken a rifle from
his uncle's house. At least two shots were taken into the Recreation
Office and one shot at a hamlet vehicle punctured a tire.

[8] Harry was arrested and taken into custody. On July 23, 2018, he was
released on a Recognizance. Conditions on his release required that
he live at a specific residence in Iqaluit and that he abide by a curfew
from 10:00 pm to 7:00 am. On August 29, 2018 he was arrested for
breaching his Recognizance as he was not in his residence as
required.

[9] On January 17, 2019, Harry was again released on a Recognizance.

One of the conditions of the Recognizance was that he not drink. On
July 24, 2019, RCMP were called to the men's shelter because of an
intoxicated male who was causing problems and refusing to leave.
That male was Harry. He was arrested for breaching his
recognizance.

[10] On October 1, 2019, Harry was released on a Recognizance so that

he could travel to Kinngait to attend his grandfather's funeral. He was
to remain within a specified residence in Kinngait 24 hours a day, the
only exception being to attend the funeral. Upon his return to Iqaluit
he was to go back into custody. While in Kinngait Harry did not
comply with the terms of his release as he was moving about the
community and was not in his residence as required. On October 3,
2019 he was arrested.

[11] He has been in custody since.

 4

III. POSITIONS OF THE PARTIES

[12] The Crown seeks a global sentence of 5 years, 30 days custody.

[13] The Defence seeks a sentence that, given the amount he will be
credited for pre-trial custody, will not exceed two years less a day.
The goal, they say, should be to keep Harry in the territory.

IV. VICTIM

[14] Although no victim impact statement has been provided, it can be

assumed that the Recreation Director who was targeted suffered and
likely continues to suffer from trauma flowing from the incident.

V. CIRCUMSTANCES OF OFFENDER

[15] Harry is an Indigenous offender. Per s. 718.2(e) of the Criminal Code

and the Supreme Court of Canada's decisions in R v Gladue, [1999] 1
SCR 688, 238 NR 1 and R v Ipeelee, 2012 SCC 13 I must consider
both the unique systemic or background factors which may have
played a part in bringing this Inuk offender before the courts and the
types of sentencing procedures and sanctions which may be
appropriate given his Inuit heritage (Gladue at para 93). I must take
judicial notice of factors such as the history of colonialism,
displacement, and residential schools and how that history continues
to translate into lower educational attainment, lower incomes, higher
unemployment, higher rates of substance abuse and suicide, and of
course higher levels of incarceration for Indigenous peoples (Ipeelee
at para 60). Considering these factors will enable me to reach a truly
fit and proper sentence (Ipeelee at para 75).

[16] Harry's mother struggles with substance abuse and left when he was
baby. His father, also struggling with substance abuse, left when
Harry was every young. Harry was raised in by his grandparents. His
grandparents were caring and supportive but were sometimes
overwhelmed by their responsibilities. The family did not have a lot of
resources and were affected by homelessness and food insecurity.
Harry was not taught land skills as the family did not have the means
to purchase skidoos, boats, and other tools that are necessary for
land activities.
 5

[17] Harry has been affected by suicide. Two of his uncles died by suicide
in the home Harry grew up in. When he was 15 Harry discovered the
body of an 11-year-old friend who had taken his own life. Again, in
2016, a friend died by suicide.

[18] When he was 16 Harry became involved in the Embassy of

Imagination (EOI), an arts initiative for youth in Kinngait. Harry's
participation in EOI led to a close and supportive relationship with one
of the organization’s founders. She has provided the court with
information about Harry's circumstances and expresses support for
him. By all accounts he was an active, well regarded member of the
group. For three months in 2016 he was a regular participant in
morning workshops with the group.

[19] In 2017 Harry was involved in art projects in Kinngait, including

painting murals on the exterior of the community hall and the
community gazebo. He was able to participate in some on the land
programming sponsored by EOI, something which was particularly
significant for him as his family circumstances did not allow for land
activities.

[20] In 2017 Harry travelled to Ottawa to participate in the painting of a

public mural for Canada's 150th anniversary celebrations. The mural
was well received and publicly lauded by the arts community. It
remains on prominent display in downtown Ottawa.

[21] In 2018 one of his prints was selected as part of a group of prints
displayed at the Legislative Assembly.

[22] In the time leading up to the incident Harry was struggling. He was
homeless. He was often hungry. He was still very young but was
trying to deal with the responsibilities of adulthood. He was not able to
cope; he simply did not have the resources, maturity, or skills to
address the multitude of issues he was faced with.

[23] Harry had never been in trouble with the law. The break and enter to
the Recreation Office was the first time.

[24] The confrontation with the Recreation Director seemed to have

triggered something in Harry. The humiliation of being manhandled
and left in the street in his stocking feet provoked an extreme
response. Within an hour Harry was shooting into the Recreation
Office.
 6

[25] Harry has been in pre-trial custody for a considerable period. He is

described by his case worker at the Healing Facility in Rankin Inlet as
a good inmate who has avoided or de-escalated situations of conflict
and has having taken the opportunities available to him through
programming. Despite being on remand status he has been working
on the grounds crew. The money he makes is used to support his
grandmother and to meet some of his own basic needs.

[26] He is planning for the future. He would like to become a carpenter and
work for the Hamlet.

VI. ANALYSIS

[27] The principles of sentencing are set out in s. 718 of the Criminal
Code.

[28] The primary purpose of sentencing is to protect society and to

promote respect for the law and the maintenance of a just, peaceful,
and safe society. Parliament has recognized the danger presented by
the intentional or reckless use of fireams in places where people
might be present by imposing a mandatory minimum sentence of four
years imprisonment. The maximum penalty is fourteen years
imprisonment.

[29] The Nunavut Court of Appeal, in R v Lyta, 2013 NUCA 10, considered
the impact of a mandatory minimum sentence on the analysis which a
judge must undertake when sentencing. The Court rejected the notion
that the mandatory minimum sentence is the sentence which should
be imposed except in instances where the application of general
sentencing principles calls for a higher punishment. Conversely, the
Court did not endorse the approach that the mandatory minimum
sentence is reserved for the “best offenders” and the “best cases”.
Rather, the fact that there is a mandatory minimum sentence is one of
the factors the Court must consider when determining the appropriate
sentence. The fact that there is a mandatory minimum sentence will,
practically speaking, have an inflationary effect on the sentences
imposed.

[30] The high level of moral culpability and the seriousness inherent in
intentionally discharging a firearm into a place where people might be
is recognized by the mandatory minimum sentence of four years (R v
Ookowt, 2020 NUCA 5 at paras 46, 77).
 7

[31] It is aggravating that there was more than one shot taken at the
Recreation Offices. There was some forethought to the offence, as
Harry had to obtain the rifle and ammunition before going to the
Recreation Office. This was an opportunity for him to calm down and
consider his response to the situation.

[32] In mitigation, Harry has entered a guilty plea. This is an acceptance of

responsibility and an indication of remorse. I accept that his
expression of remorse as set out in his letter to the Recreation
Director is sincere.

[33] The perceived humiliation suffered by Harry prior to the offence, while
it might assist in explaining the circumstances leading to the offence,
is not a mitigating factor.

[34] Deterrence, both specific and general, must be primary

considerations in determining a fit sentence. The focus must be on
the offence and not the offender (Ookowt, supra, at para 46).
However, this does not mean that rehabilitation plays no role. The
sentence imposed must be just. It must recognize not only the
seriousness of the offence that was committed, but also the youth and
prior good character of the offender and Gladue factors such as his
circumstances of poverty and deprivation. There is good reason to be
hopeful for Harry's future. His history of being able to succeed despite
difficult circumstances coupled with his apparent progress while in
custody bode well for his future. The Crown has recognized this and
has stated that it does not want a sentence that will impede the
progress he has made.

VII. CONCLUSION

[35] In my view the one-year sentence sought by the Crown for the break
and enter is excessive. I say this while appreciating that the offence of
break and enter to a non-dwelling with the intention of stealing a
firearm or actually stealing a firearm is considered more serious than
break and enters to non-dwellings that do not involve firearms. This is
reflected in the higher maximum penalty for break and enters which
involve firearms.
 8

[36] The break and enter was Harry's first offence. It is serious that a
firearm was stolen during the break and enter. However, it cannot be
assumed nor do the facts support the inference that the intent in
taking the firearm was to use it in the commission of further offences
or for any nefarious purpose. But for the firearm having been taken,
such a break and enter for a first-time offender may not have resulted
in a jail term.

[37] The sentence is a total of 1580 days, as follows:

• On the break and enter charge: 90 days;
• On the charge of intentionally discharging a firearm: 4 years
(1460 days), consecutive; and
• On the breach charges, a total of 30 days consecutive, as
follows: for the first charge, one day; for the second, five days
consecutive; for the third, 10 days consecutive; and for the
fourth, 14 days consecutive.

A. Pre-trial custody

[38] Harry has served 655 actual days in pre-trial custody. He is entitled to
enhanced credit at a rate of 1:1.5, for credit of 982 days. The
sentence remaining to be served is 598 days.

B. Ancillary orders

[39] There will be a section 109 firearms prohibition for 10 years. There
will be a s. 113 exemption. There will be a DNA order as this is a
primary designated offence. The victim of crime surcharge is waived
for reasons of hardship. While in custody Harry will not have any
contact with the Recreation Director. Exhibits seized by the RCMP will
be forfeited.

Dated at the City of Iqaluit this 14th day of December, 2020

___________________
Justice S. Cooper
Nunavut Court of Justice