R. v. Oakoak (T.), (2011) 510 A.R. 379

• Judge: Charbonneau, J.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: May 17, 2011
• Jurisdiction: Nunavut
• Citations: (2011), 510 A.R. 379;2011 NUCA 4

R. v. Oakoak (T.) (2011), 510 A.R. 379; 527 W.A.C. 379 (NUCA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. AU.002

Tony Oakoak (appellant) v. Her Majesty the Queen (respondent)

(21-09-008 CAS; 2011 NUCA 4)

Indexed As: R. v. Oakoak (T.)

Nunavut Court of Appeal

Charbonneau, J.A.

July 14, 2011.

Summary:

The accused appealed from a sentence of 45 days in jail imposed on him for two breaches of probation. The accused argued that the sentencing judge erred by failing to adequately address and consider his circumstances as an aboriginal offender and by placing insufficient emphasis on his rehabilitation. The accused had been released on bail pending appeal.

The Nunavut Court of Appeal, per Charbonneau, J.A., held that the sentencing judge did not commit any error in principle and the sentence was fit. The court considered that it had taken an inordinate period of time for the appeal to be heard and dismissing the appeal would mean ordering the accused's return to custody over two years after his sentencing hearing, and almost two and a half years after the summary conviction offences were committed. The court did not reduce the sentence imposed at trial, but varied it to the extent that the accused would be permitted to serve the remainder of his jail term in the community pursuant to s. 742.1 of the Criminal Code.

Criminal Law - Topic 5812

Sentencing - Sentencing procedure and rights of the accused - Use of presentence reports - [See second Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See first Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused had an extensive criminal record which included assaults on his spouse - The accused was sentenced to 45 days in jail for two breaches of probation by being in the presence of his spouse without permission from his probation officer - On the date in question, the accused gave his spouse a ride to see her children - By the time of the sentencing hearing, the accused and his spouse had resumed cohabitation with the permission of the probation officer - The accused appealed from the sentence - He argued that the sentencing judge erred by failing to adequately address and consider his circumstances as an aboriginal offender and by placing insufficient emphasis on his rehabilitation - The accused had been released on bail pending appeal - The Nunavut Court of Appeal, per Charbonneau, J.A., held that the sentencing judge did not commit any error in principle and the sentence was fit - The Nunavut Court of Justice travelled to Inuit communities on a regular basis and it could be inferred that the sentencing judge took judicial notice of the general systemic factors that impacted on the population of those communities and that the judge would necessarily have been aware of the various sentencing options available in those communities - While the sentencing judge did not refer to s. 718.2(e) of the Criminal Code or the Gladue principles, his reasons showed that he took into account the accused's specific circumstances and background - There was no basis to suggest that the sentencing judge did not consider alternatives to incarceration - He concluded that a jail term was required to bring home to the accused that he had to strictly comply with the terms of his probation conditions - Given the accused's track record, that was not an unreasonable conclusion - The sentence was not inconsistent with the accused's rehabilitation - The sentencing judge did not fail to show restraint - Having concluded that a jail term was necessary, he kept it to a minimum - The court considered that it had taken an inordinate period of time for the appeal to be heard and dismissing the appeal would mean ordering the accused's return to custody over two years after his sentencing hearing, and almost two and a half years after the summary conviction offences were committed - The court did not reduce the sentence imposed, but varied it to the extent that the accused would be permitted to serve the remainder of his jail term in the community pursuant to s. 742.1 of the Criminal Code.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The Nunavut Court of Appeal, per Charbonneau, J.A., stated that "There may well be cases where it is necessary to have a Pre-Sentence Report report prepared, or other evidence called, to provide the court with sufficient information to adequately address the factors referred to in Gladue. But given the context within which the Nunavut Court of Justice operates, it is not a necessity in each case. The fact that a court works in a milieu that is predominantly aboriginal does not diminish the sentencing judge's duty to give effect to section 718.2(e) [of the Criminal Code], but it may make it easier to obtain the type of knowledge that informs the analysis. ... For those reasons, I do not consider that in not seeking a Pre-Sentence Report, counsel failed to comply with the responsibilities referred to in Gladue. Nor was it an error for the Sentencing Judge not to order such a report on his own motion. It follows that I do not think that it would be necessary, or appropriate, for this Court to order such a report at the appeal stage, some two years after the sentencing hearing took place, and delay matters even more than they already have been. ... the Supreme Court recognized in Gladue that courts can take judicial notice of the fact that, in aboriginal cultures, priority is generally given to a restorative approach to conflict. Extensive delays in having matters dealt with is very much at odds with a restorative approach" - See paragraphs 25 to 27.

Criminal Law - Topic 5847.1

Sentencing - Considerations on imposing sentence - Restorative justice - [See second Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5898

Sentence - Breach of probation - [See first Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court fully or partially served (incl. appeal delay) - [See first Criminal Law - Topic 5846.1 ].

Cases Noticed:

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 11].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 12].

R. v. B.T., [2007] A.R. Uned. 156; 2007 NUCA 3, refd to. [para. 12].

R. v. Etuangat (L.) (2009), 457 A.R. 172; 457 W.A.C. 172; 2009 NUCA 1, refd to. [para. 12].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, consd. [para. 17].

R. v. Kakekagamick (M.R.) (2006), 214 O.A.C. 127 (C.A.), refd to. [para. 20].

R. v. Marie (C.), [2009] Northwest Terr. Cases Uned. 55; 2009 NWTSC 55, refd to. [para. 25].

R. v. Koaha (J.) (2008), 432 A.R. 343; 424 W.A.C. 343; 2008 NUCA 1, refd to. [para. 45].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.2(e) [para. 16].

Counsel:

Tamara B. Fairchild, for the appellant;

Leo Lane, for the respondent.

This appeal was heard on May 17, 2011, before Charbonneau, J.A., of the Nunavut Court of Appeal, who filed the following memorandum of judgment on July 14, 2011.