nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut

Citation: Date: Docket: Registry:

R. v. Utye, 2013 NUCJ 14
20130722 09-17-21 Iqaluit

Crown:

Her Majesty the Queen
-and-

Accused: Joe Sammy Utye ________________________________________________________________________ Before: Counsel (Crown): Counsel (Accused): Location Heard: Date Heard: Matters: The Honourable Mr. Justice Kilpatrick Paul Culver Stephen Shabala Iqaluit, Nunavut July 16, 2013 Criminal Code, s. 244.2(3)(b)

REASONS FOR JUDGMENT

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

I. INTRODUCTION [1] On July 28, 2012, the early morning peace and tranquility of Kimmirut was shattered by the sound of gunfire. Two members of the RCMP and a youth were inside the police detachment when the attack began. A hail of bullets penetrated the detachment building and the marked police vehicle parked outside. [2] Mr. Utye has entered a guilty plea to a charge of recklessly discharging a firearm at the Kimmirut detachment of the RCMP. He is now to be sentenced for this offence. II. THE FACTS [3] Twenty-one year old Joe Utye had been drinking heavily. He had consumed 26 ounces of Vodka and some beer in an episode of binge drinking. As Mr. Utyle’s level of intoxication increased, his inhibitions fell away. [4] At approximately 2 a.m., Mr. Utye exploded in a rage that knew no limits. Mr. Utye picked up a 303 calibre rifle and a quantity of ammunition. He loaded his pockets with bullets. Mr. Utye’s anger was directed at the RCMP. [5] Mr. Utye discharged his firearm numerous times as he walked towards the police detachment. Many citizens of Kimmirut woke to the sound of gunfire that morning. They feared the worst. A young female teen ran to warn the police about what was coming. [6] Roused from sleep, Kimmirut’s two police officers and the youth went to the detachment and secured the doors. An urgent call was made to RCMP headquarters in Iqaluit requesting assistance. The police emergency response team was based out of Iqaluit. It would have to be transported by air to Kimmirut. No help would be available for at least three hours.

[7] Mr. Utye took up position on a hill overlooking the police detachment and opened fire. Thirteen shots penetrated the detachment. Seven shots penetrated the police vehicle outside. Minutes seemed like hours to the victims of this attack. They waited for the bullet that would take a life or destroy a limb. The shots penetrated doors, windows, and walls with ease. Bullets were lodged in walls, furniture, and appliances. Bullets found their way into the kitchen, the bathroom, the office, and other areas of the detachment. [8] Mr. Utye eventually ceased firing. A number of citizens then risked their lives by approaching Mr. Utye as he walked home carrying the rifle. He was seized by a group of ten community members. Mr. Utye was tied up with a rope to await the arrival of the RCMP. [9] The three victims of this attack may have escaped with their lives, but all now carry emotional scars generated by this near death experience. Three lives have been profoundly changed by this trauma. They will never be the same again. A. Aggravating factors [10] The accused admitted in a statement given to the RCMP following his arrest that he knew that the police detachment was occupied when he repeatedly fired into the building. [11] There was not just one shot. There were many. This attack was both prolonged and persistent. [12] There was an element of planning and premeditation involved. This attack cannot be characterized as a spur of the moment enterprise. Mr. Utye intended to target the RCMP. It took time to gather the firearm and the ammunition. It took time to walk to the firing location. There was time for Mr. Utye’s anger to cool. There was time to reconsider.

[13] A site was chosen overlooking the target. It was a good vantage point from which to fire. Mr. Utye was an experienced hunter. It was the hunter’s eye that selected the firing position. As a hunter Mr. Utye well knew the power and destructive potential of this firearm. [14] Mr. Utye may have been intoxicated, but he was not so intoxicated that he was unable to load, aim, and fire the rifle with fair precision at his intended target. The target was hit repeatedly. [15] Mr. Utye comes before the Court with a record. Mr. Utye was convicted in Youth Justice Court in 2007 of pointing a firearm, uttering threats, and assault with intent to resist arrest. All three of these offences involved a police officer. Mr. Utye cannot claim that firearm offences or crimes of violence against peace officers are out of character for him. B. Mitigating factors [16] Mr. Utye has been in pre-trial detention for a period of approximately 50 weeks. He consented to his detention without seeking bail. Given the difficult conditions caused by overcrowding at the Baffin Correctional Center, the accused is entitled to enhanced credit for this pre-trial detention. Overcrowding continues to affect the availability of programming within the institution as well as the quality of a prisoner’s confinement. The Court accords credit for this pre-trial detention at the rate of 1.5 to one for a total credit of 75 weeks. [17] Mr. Utye has entered a guilty plea. He has not forced the state to incur the expense associated with a trial. The victims of this offense have not had to relive their ordeal by testifying in a public forum about their experience. [18] Mr. Utye claims through counsel to be remorseful. Mr. Utye chose not to address the Court prior to sentence being passed. The Court is consequently unable to assess the strength or the sincerity of Mr. Utye’s remorse. The Court does accept that a sober Mr. Utye now regrets what he did while intoxicated.

C. Personal circumstances [19] Mr. Utye is single. He has no dependants. There are no disabilities or special needs. Mr. Utye has a work history. He had been self-supporting up until his arrest for this offence. [20] Mr. Utye has completed a Grade 10 education. He has no special skills or trades. [21] Mr. Utye is an Inuk. He remains connected to his culture. He has maintained his connection to the land. Mr. Utye’s formative years were unremarkable. He was raised in a caring and supportive environment. There is no history of physical or emotional abuse. There has been no exposure to the trauma associated with a residential school. [22] Mr. Utye is socially well connected. He has maintained a relationship with members of his immediate and extended family. He has friends in Kimmirut. He is not socially isolated. [23] Mr. Utye has had much hunting experience. He has had much experience handling and using firearms. He has participated in the Junior Rangers program where he achieved the rank of Sergeant. [24] Mr. Utye is a regular user of Cannabis Marijuana. On average, Mr. Utye binge drinks twice monthly. III. ANALYSIS [25] The Nunavut territory has experienced a number of targeted attacks on police and police detachments in the last decade. Many of these cases have involved armed confrontations and firearms offences against police officers. In 2001 and again in 2007, members of the RCMP were shot to death in firearm related killings.

[26] The case authorities filed by the Crown reference a number of firearm related cases. The case of Willie Ishultak in 2001 [Unpublished] was followed by the case of Salomonie Jaw in 2001 [Unpublished]; Rueben Sangoya in 2002 [Unpublished]; R v Kolola, 2010 NUCJ 04, 2010 CarswellNun 1 [Kolola]; the case of J.S.U. in May 2010 (Youth Justice Court) [Unpublished]; R v Lyta, 2013 NUCJ 01, [2012] NuJ No 31 [Lyta]; and R v Attutuva, 2013 NUCJ 10, [2013] NuJ No 13. This Court is aware of a number of other cases not referenced by the Crown in this sentencing hearing. [27] The case now before the Court for sentence is the fourth incident of its kind since 2007 involving the RCMP in Kimmirut. The case of Kolola involved the first degree murder of a young police constable who was shot while sitting inside a marked police vehicle. The case of J.S.U. involved an armed confrontation with a member of the RCMP. A hunting rifle was pointed at the member in question in an extremely dangerous and volatile stand-off. The case of Lyta involved the deliberate targeting of police residences at night with a high powered rifle. It involved multiple shots being directed at the police and their families while they lay sleeping. [28] This Court must attempt to address Nunavut’s unique systemic problems through its sentencing posture. This Court reiterates what it said in the case of Kolola:
The peace officer is charged with the responsibility to preserve and protect the peace and to enforce the law on behalf of others in the community. In symbolic terms, an attack upon a peace officer is an assault upon the community for which they serve. It is an assault upon the rule of law. Those who take on the peace officer, those who challenge their authority, also challenge the law upon which this authority is based. Deliberate attacks upon police officers thus merit a severe response from the law and from the courts that administer this law. Denunciation and deterrence must be the foremost consideration of any court called upon to sentence individuals convicted of such attacks….

For many years, peace officers in Nunavut’s small rural detachments have been required to carry out their duties alone or without adequate reinforcements. This was an operational reality of policing in Nunavut. This is now changing. But the reality is that the peace officer in Nunavut still remains a vulnerable target. The constable is not made of iron or steel. The peace officer can bruise, bleed and die, like any other human being. Where duty puts the peace officer in harm’s way there is a corresponding need for the courts to recognize this vulnerability through the sentencing process (Kolola para.16 – 17).

[29] This Court’s position in Kolola was a restatement of what this judge had said in the case of Rueben Sangoya (April 2002):
Sentencing emphasis in the north upon general and specific deterrence is rooted in part in the hard realities of northern policing. Reinforcements are not readily available in small detachments, particularly in response to life threatening emergencies. Those who deliberately target justice personnel can and should expect a severe response from both the intended targets and the courts. …Police officers, of course are human beings. They have emotions. They have fears. They, too, have family members that can be hurt and killed. Those who deliberately expose police to the risk of death or severe injury can expect an emphasis on deterrence, not rehabilitation to follow from such an attack. (Sangoya transcript [unpublished decision], pg. 9 lines 5-10)

[30] It is said on Mr. Utye’s behalf that Mr. Utye did not have any specific intention to harm a member of the RCMP when he did what he did. Mr. Utye was aware that the detachment was occupied when he fired. Mr. Utye was aware of the hunting rifle’s potential to maim or kill a living target. Mr. Utye was aware that shots from this hunting rifle would likely penetrate the RCMP detachment. Mr. Utye was aware when he loaded, aimed, and fired at the detachment’s walls, window, and door that there was a very real potential to harm or kill another human being behind this target. There was not just one shot directed at the detachment. There were many. Implicit in the guilty plea is an acknowledgment that Mr. Utye was conscious of the risk to human life and limb when he pulled the trigger and deliberately took a chance.

[31] The submission that the defendant in the circumstances of this offense did not intend to harm anybody when he fired 13 rounds into the detachment offends common sense. It was simply good luck, and not any planning on Mr. Utye’s part, that allowed the human beings inside the detachment to escape serious injury or death. [32] There is an extremely high degree of moral culpability underlying this offence. This is why this crime carries a minimum mandatory gaol term of 4 years. [33] The Defense urges the Court to be lenient in view of Mr. Utye’s young age. The Court reiterates and applies what it said in Sangoya to this case:
There is a general sentencing principle that rehabilitation should be stressed when dealing with youthful offenders. The first sentence of imprisonment, where deemed necessary, should usually focus on specific as opposed to general deterrence. Where jail is imposed on youthful offenders, it should usually be kept as short as is reasonably possible, given the overall objectives of the sentencing process. This principle of restraint is not absolute, however. There are a number of exceptions that have long been recognized by sentencing courts. Rehabilitation of youthful offenders is not to be stressed in cases involving serious crime, particularly crimes of extreme violence or death or grevious bodily harm. This is such a case. The facts before me, for all of the reasons identified earlier, call for an exception to be made to the general rule. This Court is not saying that … rehabilitation is not important. It is saying that rehabilitation in this type of case must take a back seat to principles of general and specific deterrence, as well as denunciation. (Sangoya transcript [unpublished decision], pg. 9 lines 20-23 and pg.10 lines 1-18)

[34] The offence now before the Court may be the first recorded adult offense, but Mr. Utye cannot claim to be a first offender. He is no stranger to firearms offences or crimes of violence against police. There is a demonstrable need in this case for specific deterrence.

[35] For the reasons outlined earlier, there is also a compelling need to emphasize general deterrence and denunciation for firearms offences directed at peace officers in Nunavut. This sentencing posture is needed in order to better protect peace officers and promote public safety in this jurisdiction. [36] This Court emphatically rejects any suggestion that the Court’s sentencing posture should be relaxed to reflect a peace officer’s voluntary acceptance of a risk that he or she may be a target of violence in the line of duty. If there is a risk of violence and a potential for harm, then the Court must recognize the vulnerability of the peace officer and compensate for it by ensuring an increased measure of protection through the sentencing process. [37] The peace officer provides an essential public service. A deliberate attempt to harm those performing a public duty enhances the moral culpability of such an attack. The peace officer’s willingness to serve and protect others and to risk themselves in doing so is a reason to increase, and not reduce, the sentencing tariff for crimes of extreme violence directed against the peace officer. IV. CONCLUSION [38] In arriving at the duration of this sentence, the Court has considered both the purpose and principles of sentencing set out in sections 718 through to 718.2 of the Canadian Criminal Code (Criminal Code). [39] The Court has given anxious consideration to Mr. Utye’s circumstances as a young Inuit man who has grown up in a remote northern community. The Court has directed its mind specifically to the criteria identified by the Supreme Court of Canada in the decision of R v Gladue, [1999] 1 SCR 688, SCJ No. 19 [Gladue], and the provisions of section 718.2(e) of the Criminal Code. Apart from the usual systemic disadvantages associated with life in a remote northern community, there are no specific Gladue factors identified in this case that might influence the application of the proportionality principle of sentencing.

[40] The Court has taken into consideration the mitigating effect of the guilty plea. [41] Mr. Utye is given a credit for pre-trial detention of 75 weeks. The Court today directs that he serve an additional term of 289 weeks in a federal penitentiary. This is the legal equivalent of a seven year sentence of gaol. [42] Had Mr. Utye been convicted of this offense after trial, the sentence imposed today would have been significantly higher. A. Ancillary orders [43] Mr. Utye is ordered to provide the authorities with a DNA sample. Reckless discharge of a firearm is a primary designated offence under section 487.04 (a) of the Criminal Code. [44] The right of any Inuit beneficiary under the Nunavut Land Claims Agreement to possess a firearm for hunting purposes is not absolute. In the circumstances of this case and this offender, public safety now becomes the paramount consideration. Mr. Utye has on two occasions transformed the tool of a hunter into a potential instrument of homicide. He was warned once. He has reoffended. The potential consequences to human life and limb posed by reoffending are severe. There will be no further chances. Mr. Utye may assist others in hunting activities by helping to pack or dress the kill, but he may never again possess or use a firearm. [45] Pursuant to section 109 of the Criminal Code, Mr. Utye is prohibited from possessing or using any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosives for life. Any such items now in his possession together with any Firearms Acquisition Certificate or firearms license shall be immediately surrendered to the nearest detachment of the RCMP and are forfeited to the Attorney General for such disposition as is deemed appropriate. The Court declines to grant Mr. Utye any exemption to possess a firearm for subsistence hunting as may be permitted under section 113 of the Criminal Code.

[46] The victim fine surcharge is waived for reasons of hardship. [47] The Court recommends that the Federal Correctional authorities place Mr. Utye at the Fenbrook institution in southern Ontario. [48] There has been no explanation given in this proceeding to explain Mr. Utye’s anger at the RCMP. Mr. Utye claims through counsel to not know why he did what he did. This Court recommends that Mr. Utye be assessed by a psychiatrist to determine whether there might be some organic cause underlying or contributing to Mr. Utye’s explosive temper. [49] In closing, the Court lauds the efforts of those citizens in Kimmirut who assisted the RCMP on this occasion by apprehending and detaining Mr. Utye until the authorities could recover from the attack. Their involvement in a dangerous and volatile situation came at personal risk to themselves. The Court commends these citizens for their willingness to help the community of Kimmirut and the Kimmirut detachment of the RCMP through this unfortunate crisis.

Dated at the City of Iqaluit this 22nd day of July, 2013

___________________ Justice R. Kilpatrick Nunavut Court of Justice

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