Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R. v. Bracken, 2016 NUCJ 03

Date:
Docket:
Registry:

20160128
08-14-645
Iqaluit

Crown:

Her Majesty the Queen

-and-

Accused:

Michael Bracken

________________________________________________________________________
Before:

The Honourable Mr. Justice Bychok

Counsel (Crown):
Counsel (Accused):

C. Lirette
S. Cowan

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
October 26-27, 2015; January 22, 2016
Criminal Code, s. 266; Sentencing

REASONS FOR JUDGMENT

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

Table of Contents
REASONS FOR JUDGMENT ................................................................................... 1
I. INTRODUCTION........................................................................................................... 3
II. FACTS ........................................................................................................................... 3
A. The first assault ...................................................................................................... 3
B. The second assault ................................................................................................ 4
C. The offenders immediate post-offence explanation ........................................ 4
D. The victim had special needs ............................................................................... 4
III. PRINCIPLES OF SENTENCING ............................................................................. 5
IV. SUBMISSIONS ........................................................................................................... 6
A. Aggravating circumstances.................................................................................... 6
B. Mitigating circumstances ........................................................................................ 7
C. Position of the parties ............................................................................................. 7
D. The offender ............................................................................................................. 9
V. ANALYSIS .................................................................................................................... 9
A. The consequences of a breach of the public trust by a prison guard ............ 9
B. The victim suffered from cognitive impairment known to the offender ...... 10
VII. SENTENCING OPTIONS ...................................................................................... 11
A. A conditional discharge is not available to the offender .................................. 11
B. Suspended sentence or jail? ............................................................................... 12
B. Conditional sentence of imprisonment or jail? ................................................. 16
VIII. SENTENCE............................................................................................................. 18

I. INTRODUCTION
[1]

The offender, Michael Bracken, was convicted after trial of assault,

contrary to section 266 of the Criminal Code of Canada, RSC 1985, c
C-46 [Criminal Code]. At the time he committed the offence, the
offender was a full time guard at the Baffin Correctional Centre [BCC]
in Iqaluit. His victim was one of the inmates he was sworn to guard
and to protect.

[2]

The imposition of sentence was adjourned for the preparation of a

Pre-Sentence Report and the submissions of counsel. Both counsel
submitted written arguments and case authorities. Oral submissions
were received on January 22, 2016. As this case touches upon
important issues fundamental to the administration of justice, I
reserved my decision. These are my reasons respecting the
appropriate and just sentence in this case.

II. FACTS
A. The first assault
[3]

The Court heard from five guards who were on duty on October 26,
2014. The offender testified. The Court found that the offender
assaulted the victim twice during his shift that day. The Court heard
evidence that the offender had been having a stressful day and that
the victim had been irritating him during his shift. The first assault
happened in the mess area, and it was captured on security video.
As the offender walked toward the door leading to the kitchen, the
victim approached him. The victim wanted a cookie. The offender told
him no and started to open the door. The victim then put his foot
against the door. Without any hesitation, the offender punched the
victim in the face and then he immediately wrestled him violently to
the ground. Two guards intervened to assist the offender. The
offenders attack against his victim was unnecessary, and it was
unprovoked. This attack greatly upset several inmates who were
present and who witnessed the attack. One of the guards became
concerned that a riot might break out if the situation was not
immediately diffused.

B. The second assault

[4]

The second assault happened several minutes later. Once the victim
had been subdued by the guards, he was escorted out of the area.
The guards took the victim into a secure hallway. The shift supervisor
followed them. Instead of removing himself from the situation, the
offender chose to follow the victim and his escorts into that secure
hallway. The victim became agitated when he saw the offender and
he was taken to the ground again by two guards. The victim was
handcuffed at this time. The victim landed on the floor on his stomach
with his head facing the wall. While he was being controlled by two
guards, the offender approached him, wound up, and deliberately
kicked him violently in the head. That kick drove the victims head into
the wall. The attack by the offender was a cowardly and gratuitous act
of violence unleashed against a helpless victim. As a direct result of
the two assaults, the victim suffered swelling to his forehead.

[5]

There was a security camera in that hallway. The Court was not
provided with a satisfactory explanation as to why a video recording of
that assault was not available as evidence.

C. The offenders immediate post-offence explanation

[6]

The offender was confronted by his supervisor after the first attack
and before the second one. The Court was told that the offender said:
Do I look like I give a fuck? At trial, the offender testified that he was
justified in using the force he did at the door to the kitchen. He denied
kicking the victim in the secure hallway.

D. The victim had special needs

[7]

The victim was a repeat offender who was well known to all the
guards in the institution. He was cognitively impaired. He was
described by witnesses as being child-like and low functioning.
With the exception of the offender, all five guards told the Court they
adjusted their handling of the victim to account for his special needs.

III. PRINCIPLES OF SENTENCING

[8]

There are a number of important legal principles which a judge must

use when a court sentences an offender. The most important of these
principles is found in section 718 of the Criminal Code. Above all, the
sentence I impose today should foster respect for the rule of law and
it should contribute to building a safe and healthy Nunavut.

[9]

In the circumstances of this case, the Court must impose a sentence

which tries to achieve the following overriding objectives:
a.

b.

c.

d.

First, to denounce this type of criminal behaviour. In

other words, the court must send to the entire
community a message which condemns this crime,
and which reminds people that we expect community
laws to be obeyed by everyone, no matter their
position in society;
Second, the court must impose a sentence which will
deter the offender and other persons from
committing crimes. In other words, to make them
think twice before committing crime. This objective is
particularly important in this case. I will have more to
say about it later in my reasons for sentence;
Third, the court must impose a sentence which has
as one of its principle aims to rehabilitate offenders,
and to help them heal; and,
A sentence which encourages this offender to take
responsibility for his actions, and both to
acknowledge and to admit the hurt he has done to
his victim.

[10] The court must also remember that the sentence must be proportional
to the crime committed. In everyday English, this principle means that
a sentence should reflect the seriousness of the crime as well as the
responsibility of the offender. This requirement is found in section
718.1 of the Criminal Code.
[11] The court must also consider the totality principle. This is another
legal term which means that a judge should ensure that the sentence
reflects the overall responsibility of the offender.

[12] Section 718.2 of the Criminal Code also reminds us that it is only fair
that similar offenders should be treated similarly for similar crimes.
Also, I am reminded that an offender should only be deprived of his
liberty if no other sentence would be appropriate.
[13] In putting these sentencing rules to use, the Court also relies greatly
on what we call case law. Case law is made up of published court
reports that tell us what other judges have done in similar
circumstances. Both lawyers have provided case law to the Court to
assist its deliberations.
[14] The law I am bound as a sentencing judge to apply also says that a
sentence must be increased or reduced to reflect the absence or
presence of aggravating and mitigating circumstances.

IV. SUBMISSIONS
A. Aggravating circumstances
[15] There are a number of serious aggravating factors which must be
considered by this Court in deciding upon a just sentence:
a. The offender was a prison guard responsible for the safety
and well-being of his victim. The offenders cowardly and
violent assault of the victim was a brazen and flagrant abuse
of his position of authority and the public trust. This abuse of
authority is highlighted as an aggravating factor pursuant to
section 718.2 (a) (iii) of the Criminal Code;
b. The victim was an inmate and, as such, he was in an
extremely vulnerable position vis--vis the offender;
c. Nunavuts historical and socio-economic realities make its
overwhelmingly Inuit inmate population especially
vulnerable;
d. The offender knew that the victim suffered from cognitive
impairment;
e. The first assault was witnessed by other inmates and it
caused them considerable anger and upset. In the
immediate aftermath of the punch, one of his colleagues was
worried a riot might break out. The offenders action directly
put the safety of his fellow guards and the other inmates in
immediate peril;
f. The offenders criminal actions undermined the authority of
all his colleagues within the institution.

g. The offenders criminal actions undermine public confidence

and trust in the justice system;
h. The offender chose not to separate himself from the situation
after the first assault. Instead, he followed the victim as the
latter was escorted into the secure hallway where he
assaulted the victim a second time;
i. The victim was handcuffed, on his stomach on the floor,
while being restrained by two other guards with his face
towards the wall, when the offender purposefully kicked the
victim in the head. The victim was entirely helpless;
j. The victim was injured during the assaults;
k. The two assaults were gratuitous and unprovoked; and,
l. The offender showed not the slightest bit of remorse when
he was confronted by his supervisor moments after the first
incident happened. Rather, he shrugged the incident off. His
supervisor told the Court that the offender said: Do I look
like I give a fuck?
B. Mitigating circumstances
[16] In mitigation, this is the offenders first criminal offence.
C. Position of the parties
(i). Defence

[17] Counsel for the offender reminds the Court that the punishment
should not exceed the guilt. He asks the Court to impose a
discharge. He says that the most similar case to this one is R v
Eegeesiak, reported at 2010 NUCJ 10, [2010] Nu J No 7 (QL)
[Eegeesiak]. In that case, a Royal Canadian Mounted Police [RCMP]
Constable [Cst.] was given a suspended sentence and probation for
having assaulted two persons in custody. Counsel for the offender
says that case was more serious, and that a sentence proportional to
that one would lead to a discharge in this case. He also relies on the
parity principle to say that it would not be just to punish the offender
more harshly than Cst. Eegeesiak.

[18] Counsel for the offender referred the Court to the following cases: R v
Klima, 2015 MBPC 30, [2015] MJ No 168 (QL); Eegeesiak; R v
Cronmiller, 2004 BCPC 1, [2004] BCJ No 7 (QL) [Cronmiller]; R v
Feeney, 2008 ONCA 756, 238 CCC (3d) 49; R v Tait, 2005 BCPC
273, [2005] BCJ No 1574; R v Murphy, [2007] OJ No 327 (CJ), 73
WCB (2d) 133; R v Sweeney, [2001] OJ No 1899 (CJ), 50 WCB (2d)
138; R v Schertzer, 2015 ONCA 259, 325 CCC (3d) 202; and, R v
Wainwright, 2008 ABCA 6, 77 WCB (2d) 568.
(ii). The Crown

[19] The Crown says that a conditional discharge would be an unfit

sentence, would not be in the public interest, and that it would
trivialize the crime. Rather, the Crown says this type of reprehensible
crime must attract a sentence of imprisonment. The Crown says that
it is unlikely that the offender will reoffend and that he is not a danger
to the community. For these reasons, the Crown asks the Court to
impose a conditional sentence of jail in the range of 30 to 45 days.
The Crown says it would be too great a punishment to impose a jail
term in an institution.
[20] The Crown referred the Court to the Corrections Act, R.S.N.W.T.
1988, c. C-22, s. 17 (Nunavut), as well as the following case law: R v
Fallowfield, [1973] BCJ No 559 (1973), 13 CCC (2d) 450 (BCCA); R v
Waters, [1990] SJ No 39 (1990), 54 CCC (3d) 40 (Sask QB); R v
MacFarlane, 1976 ALTASCAD 6, 3 Alta LR (2d) 341; R v Leblanc,
[2003] NBJ No 398 (QL), (2003), 180 CCC (3d) 265 (NBCA)
]Leblanc]; R v Edmunds, 2012 NLCA 26, 288 CCC (3d) 164
[Edmunds]; R v Crocker, 2015 NLPC 0114A03113, 2015 NLPC
73941 (CanLII) [Crocker]; R v Carrigan, 2009 NLPC 59434, 2009
CanLII 59434 (NL PC) [Carrigan]; R v Lepine, 2010 ABPC 374, [2010]
AJ No 1344 (QL); R v Rosa, 2011 ONCJ 348, 95 WCB (2d) 524
[Rosa]; R v Pickering, 2014 ONCJ 594, [2014] OJ No 5323 (QL); and,
R v Cusak, [1978] NSJ No 538 (1978), 41 CCC (2d) 289 (NSCA).

D. The offender
[21] The offender is 31 years old. He was born in Iqaluit, but he spent
much of his youth growing up and attending school in Alberta and
Ontario. He lost his employment at BCC as a result of this criminal
prosecution. The Court was told that he has worked at odd jobs since
he was fired. His previous work history includes working in factories in
southern Canada and as a security officer for a local property
company. This charge resulted in his first criminal conviction. There
was no evidence led that a criminal conviction would affect his future
employment prospects. His counsel, in argument, did not raise any
factors from R v Gladue, [1999] SCJ No 19, [1999] 1 SCR 688 (QL)
[Gladue], as relevant to the disposition of this case. I shall have more
to say about Gladue and Nunavut later in my reasons for decision.

V. ANALYSIS
A. The consequences of a breach of the public trust by a prison
guard
[22] Canadian courts have consistently ruled that criminal offences
committed by peace officers in the course of duty are particularly
serious crimes. This was noted by Mr. Justice Veale in the Eegeesiak
case, at paragraph 38, where he quoted a 1977 Alberta case in which
that judge stated:
The commission of offences by police officers has been considered on
numerous occasions by the courts, and the unanimous finding has been
that their sentence should be more severe than that of an ordinary
person who commits the same crime because of the position of public
trust which they held at the time of the offence and their knowledge of
the consequences of its perpetration. [R v Spilde, [1977] AJ No 152
(District Ct. App. Div.), DCR No. 7761]

10

[23] This statement of the law applies equally, and for the same reasons,
to prison guards:
The excessive use of force on a prisoner in the confines of a lockup is
a reprehensible crime in a free and democratic society. Correctional
officers, like the police and sheriffs officers, are in a special position
of power over prisoners. Prisoners and those in custody can do little to
protect themselves against assaults by those whom the law has
entrusted with their care. It is the law and the justice system which
puts the correctional officer in the position of power over the prisoner
and therefore it is the law and the justice system which must protect
the prisoner from abuse and excessive force. [Chief Judge Pike in
Carrigan, para 15; See also Crocker and Rosa (supra para 20)]

[24] Therefore, the sentence imposed today must act as a forceful and
meaningful reminder to all that the Court will do what it can to prevent
the abuse and mistreatment of inmates. The defence and
preservation of the values of our free and democratic society demand
no less.
B. The victim suffered from cognitive impairment known to the
offender
[25] This Court heard evidence during the two-day trial that the victim in
this case was a difficult inmate. Several witnesses severely criticized
management for permitting this special needs inmate to be
incarcerated in their facility. In his written submissions, counsel for the
offender described the victim as unstable, unrepentant, and
unpredictable. He says that BCC staff were flummoxed with the
best way to house this man. It was in this context that the herein (sic)
offence took place.
[26] One thing must be said immediately in response to counsel for the
offenders last comment. The victims mental instability and so called
lack of repentance in no way explains, excuses, or mitigates the
offenders two attacks on him.
[27] It is clear that the victim was a frustrating inmate to manage.
However, each of the other current or former guards who were
witnesses testified that they adjusted their own behaviour when they
dealt with the victim. Their evidence satisfied the Court that the victim
was, indeed, manageable. Guards were trained to use their words,
not their fists, and not their boots. That is precisely what was, and is,
expected from correctional staff.

11

[28] This point was made in another case by Judge Weitzel:

It cannot be denied that police officers [and here I add prison
guards*] must confront many frustrating individuals and situations in
the course of performing their duties. Society has recognised that, and
has and continues to provide special training and education to its
police officers in how to manage themselves in such situations
Society has invested in its police officers a special authority to deal
with individual members of that society, a special position of trust.
But there is a reciprocal expectation that police officers who are
invested with substantial rights of interference with individual
liberties, exercise those rights with scrupulous propriety.
[Cronmiller, paras 25 and 26]
* [note added by Justice Bychok]

[29] The Court therefore rejects counsel for the offenders inference that
the intellectual infirmity of the victim somehow excuses, or lessens,
the offenders responsibility for his actions. In all the circumstances,
the offender, and the Nunavut Department of Justice, Corrections
division as a whole, owed the victim a heightened duty of care.

VII. SENTENCING OPTIONS

A. A conditional discharge is not available to the offender
[30] Counsel for the offender has urged the Court to impose a discharge.
By that submission, I understand counsel to have recommended a
conditional discharge. In effect, he asks the Court to give the offender
a chance to avoid a criminal record by serving successfully a term of
probation. To impose such a sentence, a Court must consider a twopart test. First, whether a discharge would be in the best interest of
the offender; and, second, whether a discharge would not be contrary
to the public interest. That test is mandated by section 730(1) of the
Criminal Code.
[31] Generally, it may be assumed that a conditional discharge might be in
the best interest of an offender. However, there are cases where it
would be a disservice to the offender to permit him to avoid
meaningful consequences for his actions. This is so where an
offender has claimed to have been justified for actions found by the
Court to have been a brazen and flagrant criminal act committed in
breach of the public trust. It would serve no purpose to justify the
offenders criminal actions in his own mind.

12

[32] Any form of discharge in this case would undermine the credibility of
the Courts denunciation. A discharge would also send the wrong
message to all those individuals placed in authority over others by the
justice system. In coming to this conclusion on the facts before me, I
have adopted the reasoning of Mr. Justice Veale in the Eegeesiak
case at paragraph 83 when he emphasised denunciation and
deterrence:
In short, it would not be in the public interest to grant a conditional
discharge. Citizens of Nunavut, no matter what their condition,
personal circumstances or criminal record may be, must have
confidence in our system of justice which sometimes begins in an
RCMP cell. It must be a safe and secure place free from threats or
violence by police officers. A jail cell is a place where accused
persons are the most vulnerable and in greatest need of protection. A
police officer [and I add here or a prison guard*] must always act
with scrupulous propriety when carrying out the special duties
conferred on him.
* [note added by Justice Bychok]

[33] This analysis correctly reflects the law in this area:

[25] In my view, only the most exceptional circumstances can justify
a discharge, absolute or conditional, for breach of trust by a police
officer in the execution of his duties. [White, J. in Edmunds, at para 35
citing Chief Justice Drapeau in Leblanc at para 33 (supra para 20)]

[34] No such exceptional circumstances exist in this case.

B. Suspended sentence or jail?
[35] A suspended sentence results in a criminal record. However, the
passing of the actual sentence is suspended, or not imposed, to give
the offender a chance to complete his probation successfully. Should
the offender be convicted of a breach of probation or another criminal
offence, he is then liable to be sentenced on the original offence. If he
stays out of trouble, no further action is taken by the Court.

13

[36] Following amendments to the Criminal Code late last century, there
are two types of potential jail terms available to the Court. The first is
the traditional term of imprisonment served in an institution. The
second is known as a conditional sentence which is said to be served
in the community. In most cases, a conditional jail term is served in
the home of the offender under strict conditions.
[37] Counsel for the offender has referred to the Eegeesiak case as the
most persuasive comparator found in the case law. He says it is the
closest similar case from Nunavut. If the Court does not grant a
discharge, then he says sentence parity would require this Court to
grant this offender a suspended sentence.
[38] This Court agrees with counsel for the offender that the Eegeesiak
case is the most relevant of all the various cases cited by both parties.
In my view, however, there are important points of distinction between
Eegeesiak and the case before me today.
[39] First, Cst. Eegeesiak pleaded guilty at the first opportunity. Of course,
it is not aggravating that Mr. Bracken put the Crown to formal proof at
trial; that was his right. But the fact remains that the Nunavut Court of
Justice has always extended meaningful credit to offenders who plead
guilty early in the process. Guilty pleas are viewed as some evidence
of remorse, and as an acceptance of responsibility. Cst. Eegeesiak
also accepted unconditional responsibility and expressed sincere
remorse all along.
[40] Second, Cst. Eegeesiak was provoked by his two victims who knew,
and had threatened, members of his family. Mr. Brackens two
assaults were entirely gratuitous and senseless.
[41] Third, in Eegeesiak, Justice Veale emphasised a number of
significant Gladue factors which are not found in the present case.

14

[42] The Eegeesiak case, unlike the present one, is an excellent example
of the unique cultural circumstances of a Gladue case in the context
of Nunavut. In Gladue, the Supreme Court of Canada gave guidance
to trial judges concerning the principles to be applied in sentencing
Aboriginal offenders. To make a very long explanation short, and in
the Nunavut context, our court must take into account the cultural
perspectives, particular history and circumstances of the Inuit people,
including the radical transformation of Inuit society which started in
earnest in the mid-twentieth century. Most importantly, this court must
consider how that larger history has had an impact on the individual
offender. This legal requirement was subsequently enshrined in
section 718.2 (e) of the Criminal Code.
[43] In Eegeesiak, the Court was presented with a defence
recommendation of a conditional discharge. The Crown sought the
imposition of a criminal record by way of a suspended sentence.
Justice Veale noted that to a great extent, his Gladue analysis had
been anticipated by the Crown which had factored into its
recommendation the unique cultural circumstances of that case.
The learned trial judge listed the following Gladue factors as justifying
his decision to impose a suspended sentence on Cst. Eegeesiak:
a. The offender was an Inuk and his family circumstances had
been difficult. He had an alcoholic father who was mentally
and physically abusive to his family;
b. As a child, he would often have to escape this abusive
environment by fleeing to the homes of relatives for safety;
c. He was sent on his first two RCMP postings to isolated
communities where there were few resources available to
mentor him adequately;
d. He was then posted to his home community where he had to
police family, friends, and acquaintances. He was also well
known generally within the community. As an Inuk in a
predominantly non-Inuit police force, his mere presence
generated unreasonable expectations within many in the
community that he simply could not legally fulfill. Not
surprisingly, the offender found this situation to be extremely
stressful;
e. The offender walked a difficult road between two cultures,
languages where sometimes he was resented and he was
viewed as a betrayer of the Inuit culture but was not totally
accepted into qallunaaq culture because he was Inuk; and,

15

f. He had recognised his vulnerability in Iqaluit, and he had

requested and taken concrete steps to relocate to
Whitehorse before the incidents happened.
[44] Furthermore, as I noted before, Cst. Eegeesiak not only pleaded
guilty, but he accepted unconditional responsibility for his actions.
[45] Notwithstanding these very compelling mitigating considerations, Cst.
Eegeesiak nevertheless received a criminal record. The early guilty
plea, genuine remorse, provocation, and Gladue factors all distinguish
Eegeesiak from the case before the Court.
[46] Justice Veales decision in Eegeesiak also shone a necessary light
upon our society itself. Each and every day, we who are fortunate
enough to live here walk paths somewhat similar to the one taken by
Cst. Eegeesiak in his Iqaluit posting. We all straddle two culturally
distinct worlds. These unique cultural circumstances must also
inform how the Court determines what is a just sentence in this case.
[47] Canadian courts have consistently highlighted the vulnerability of our
inmate populations. Each and every aspect of an inmates life is
administered, controlled, and regulated by agents of the state. Our
polity grants to these state agents extraordinary authority and power
over their charges. These powers are necessary if our institutions of
imprisonment are to be places of safety, both for inmates as well as
their staff. But with those powers comes a tremendous legal and
moral responsibility to exercise those powers justly. Canada is a free
and democratic society and the concept of human dignity is a
cornerstone of our collective understanding of human rights. This
Court must not only protect the dignity of those persons from whom it
removes their personal liberty; this Court must be seen to protect that
value in a clear, decisive, and meaningful way whenever it is called
upon to do so. This calls for a sentence which emphasizes the
objectives of denunciation and deterrence.

16

[48] The duty of this Court is to interpret and apply the law with a
sensitivity to, and understanding of, the society it serves. Our society
is a vulnerable one in the midst of an ongoing and radical social
transformation. An entire generation of Nunavummiut were taken from
the nurturing bosoms of their families and sent away to Residential
Schools. The consequences of that traumatic episode in our history
continues to reverberate to the present day. The drop-out rate from
our schools is high. Substance abuse and all the negative
consequences of that abuse are endemic. Nunavut leads the country
in reported crimes and suicide. This sad reality means that our prison
population is especially vulnerable. That sad reality is plainly manifest
in this case. This factor, too, compels this Court to give primary
emphasis on the objectives of denunciation and deterrence.
[49] The reprehensible circumstances of this case and the factors and
principles I have just discussed lead me to conclude that a jail term
followed by probation is the appropriate and just sentence in this
case.
B. Conditional sentence of imprisonment or jail?
[50] This Court must now decide whether the jail term I am about to
impose may be served as a conditional sentence or in an institution.
A conditional sentence of imprisonment is available on its face for a
conviction of common assault. The key provision of section 742.1 of
the Criminal Code states:
If a person is convicted of an offence and the court imposes a sentence of
imprisonment of less than two years, the court may, for the purpose of
supervising the offenders behaviour in the community, order that the
offender serve the sentence in the community, subject to the conditions
imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community
would not endanger the safety of the community and would be
consistent with the fundamental purpose and principles of sentencing
set out in sections 718 to 718.2

[51] As I consider whether a conditional sentence would be a fit sentence,

it is clear that the first threshold criterion has been met. I am satisfied
that Mr. Bracken, as a first time offender, would pose no danger to the
community if permitted to serve his sentence under house arrest.

17

[52] The more important question though, is whether a conditional

sentence would be consistent with the fundamental purpose and
principles of sentencing. The Crown says that the fact that the
offender is unlikely to reoffend addresses the purposes of
sentencing. However, each branch of the two-part test requires an
entirely different, and independent analysis.
[53] In my view, the imposition of a conditional sentence here for an
offence by a prison guard on a defenceless and vulnerable special
needs inmate would not satisfy the purpose and fundamental
principles of sentencing. Nor would such a sentence act as a
meaningful articulation of the objectives of denunciation and
deterrence.
[54] Furthermore, I hold the view that the imposition of a conditional
sentence would fail to address the special vulnerability of prison
inmates in Nunavut. The high legal and moral duty of correctional
officers to act at all times with justice, probity, and restraint is even
more marked here given the highly vulnerable nature of our prison
population. This factor, too, leads this Court to impose a sentence
which places primary emphasis on denunciation and general
deterrence.
[55] The Court heard much evidence from the offender and five other
current and former BCC guards respecting the way in which special
needs inmates, like the victim, are handled within the institution. The
evidence painted a troubling backdrop of a perception by the
witnesses that management does not provide them with appropriate
training and support. If their evidence is to be believed, the institution
also fails adequately to educate their staff in the unique cultural,
economic, and mental health related circumstances of their
overwhelmingly Inuit inmate population.

18

[56] This evidence greatly troubles this Court. Whatever the merits of this
unanimously articulated perspective, the result has been to create a
culture of a lack of understanding of and, in certain cases, of
disrespect on the part of some guards towards the inmate population.
Each one of the witnesses called by the Crown attempted to excuse
the offender and justify his actions. As I said in my reasons for
decision, I found that several of the witnesses were evasive and nonresponsive to the questions put to them by Crown. The offenders
former supervisor also backtracked in his evidence and offered
alternate explanations for the kick which had absolutely no air of
reality. I was troubled by their obvious lack of candour with the Court.
The sympathy of these witnesses for their former colleague was
palpable, and that bias tainted their evidence. These factors weigh in
the balance respecting the obvious need for a sentence in this case
which emphasizes general deterrence.
[57] The sentence which this Court imposes must be not only just, it must
be meaningful. This Court wishes to send a message to all
Nunavummiut, and to all who are put in authority over them, that the
dignity of each and every one of us is inviolable. This Court must also
impose a sentence which corresponds to the expectations and values
of all right minded and informed persons. The law is not simply an
abstract construct. It is the guarantor of our social peace, but only to
the extent that our courts decisions inspire confidence and respect.
Our societys values do not change behind a prisons walls, and those
persons entrusted with authority must be the standard bearers of
those values. In all the circumstances of this case, this Court rules
that a period of incarceration in an institution is required.

VIII. SENTENCE
[58] Stand up please, Mr. Bracken. The sentence of this Court is that you
shall spend thirty days in jail. That sentence is to be followed by nine
months of probation. You are:
a. to report to the Iqaluit probation office within two business
days of your release from jail, and thereafter as directed by
your probation officer;
b. to perform fifty (50) hours of community service during your
probationary period; and,
c. to take any assessment or counselling for anger
management as directed by your probation officer.

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[59] The Criminal Code requires that I impose a $100.00 Victim Fine
Surcharge, and I do so now. You shall have nine months after your
release from jail to pay the fine.

Dated at the City of Iqaluit this 28th day of January, 2016

___________________
Justice P. Bychok
Nunavut Court of Justice