Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Akpik, 2021 NUCJ 6

Date: 20210209
Docket: 08-18-697
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Kassandra Akpik

________________________________________________________________________

Before: Madam Justice Charlesworth

Counsel (Crown): G. Lyndon

Counsel (Accused): S. Siebert

Location Heard: Iqaluit, Nunavut

Date Heard: October 21, 2020
Matters: Sentencing for offences under ss. 343(d) and 344(1)(b) of
the Criminal Code of Canada, RSC 1985, c C-46

REASONS FOR JUDGMENT

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

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I. FACTS

[1] Kassandra Akpik pleaded guilty before me to a charge that she “on or
about the 4th day of October in the year 2018 in the City of Iqaluit in
the Territory of Nunavut did rob Adal Mahraz with a knife contrary to
s. 343(d) and 344(1)(b) of the Criminal Code of Canada”.

[2] At the sentencing hearing for Ms. Akpik on October 21, 2020 an
Agreed Statement of Facts was provided. The facts of the offence and
information about Ms. Akpik are contained in the Statement (Exhibit 1)
as follows.

[3] On October 4, 2018 at around 1:44 am, Kassandra Oolamie Akpik,

female, 21, and EN, male, 15, robbed cab driver Adal Mehraz in
Iqaluit, Nunavut.

[4] Mr. Mehraz responded to a dispatch to House 224 and saw a couple
(Ms. Akpik and EN) standing face-to-face. Ms. Akpik got into the back
seat while EN opened the passenger side door beside the driver. Ms.
Akpik put a knife to Mr. Mehraz’s neck. EN put a black air rifle (without
a stock) to Mr. Mehraz’s head and demanded money. EN made a
threatening demand for money. Mr. Mehraz gave them about $500 in
cash and some taxi vouchers. Ms. Akpik asked EN if he got all the
money. The couple then ran behind the Elder’s Centre.

[5] Mr. Mehraz recognized Ms. Akpik as someone he drove to House 560
many times and knows very well. Mr. Mehraz did not know her name.

[6] The RCMP learned through their PROS database that Kassandra
Akpik, 21, was associated with the residence at House 560 and that
she was in a relationship with EN. The later investigation revealed
that Ms. Akpik was living on a boat on the shore with EN.

[7] The investigation also revealed certain evidence of the offence

recovered from the boat, such as the black air rifle and the knife. Ms.
Akpik acknowledges that the knife and rifle seized from the boat were
used in the offence.
 3

[8] Ms. Akpik was known to the RCMP around the time of the offence.
She was consuming drugs heavily and attending numerous parties
and social gatherings involving alcohol and drug use, including the
night of October 3, 2018. During her warned statement to the RCMP,
Ms. Akpik talked freely about her conduct and the RCMP interviewer
noted the effect of these activities on her emotions, decision-making
and personal conduct.

[9] Ms. Akpik acknowledges running with the wrong crowd. The parties
note that her crowd, as it were, seemed to be made up of primarily
teenagers, mostly youths, and some of these vulnerable youths would
have been subpoenaed as Crown witnesses had this matter gone to
trial.

[10] The Crown’s case consists of identification evidence from the taxi
driver/victim (Mr. Mehraz), location sightings by responding RCMP
Members, evidence seized from the search of the boat, and
admissions made by Ms. Akpik in her warned statement and
admissions made to civilian third parties by her and EN. All this
evidence of course has been untested in court and would have been
subject to admissibility rulings by the trial judge.

[11] By way of background, the parties are agreed that Ms. Akpik is a
survivor of childhood trauma and sexual abuse. Her childhood
experiences inform and affect her current situation. Her childhood
experiences contributed to her circumstances in Fall 2018, and
specifically, they contributed to her conduct on October 4, 2018 when
she robbed Mr. Mehraz.

[12] Between October 2018 and April 2019, Ms. Akpik was charged with
several substantive offences arising out of interpersonal conflict or her
past relationship with EN. All these charges ended in stays of
proceedings. Ms. Akpik comes before the court today with no criminal
record.

[13] In the past year, Ms. Akpik has demonstrated enhanced problem-
solving skills and other pro-social skills. Through counsel, she has
approached the RCMP to participate in an investigation of a matter
where she was a victim and a witness. Despite initial trepidation, she
interacted with the investigator cooperatively and in good faith,
attending at the RCMP detachment to provide further information
regarding the incident.
 4

[14] In the past year, through counsel, she approached the Crown and the
Court to change her conditions to ensure compliance while attempting
to integrate herself more fully into daily Iqaluit life in a pro-social
manner. She had generally maintained compliance with her
conditions. She has not burned any bridges and continues to build a
positive support network. However, she has come to the attention of
the RCMP for consuming alcohol and most recently, for changing her
residence without seeking an amendment to her release conditions. In
both instances, the RCMP exercised discretion and gave her
warnings.

[15] A pre-sentence report was also prepared by Community Corrections

Officer, Mary Jackson, which contained some more details about Ms.
Akpik’s upbringing: she was abandoned by her abusive and alcoholic
birth parents at the age of two and then was raised by her aunt in a
multi-generational home where she was close with her grandmother.
Most unfortunately, Ms. Akpik was sexually assaulted by a friend of
her stepmother at the age of six, but her stepmother did not believe
her when told what had happened. A teacher asked her what was
wrong at school the next day and after hearing from Ms. Akpik,
contacted the RCMP. Apparently in the result, the male friend was not
charged with an offence. Ms. Akpik also advised that she suffered
other physical, emotional, and verbal abuse in the home she grew up
in.

[16] The pre-sentence report also pointed out that Ms. Akpik has a grade
10 education, having left school when she became pregnant with a
daughter who was adopted. She has had three children in total, all of
whom have been adopted. Ms. Akpik would like to obtain her GED or
find a job as a housekeeper or dishwasher. She was employed for
about six months as a bus girl at the Iqaluit Royal Canadian Legion at
one time.

[17] The pre-sentence report, as well as a victim impact statement, reveal

the serious and long-term effects suffered by the taxi driver as a result
of this offence. Mr. Mehraz’s physical health has suffered, he finds it
hard to sleep when he remembers that night, and he cannot trust
anyone he does not know anymore. He also had to reduce his
working hours so as not to work nights after the incident because he
is afraid of being robbed again. This has reduced his income to the
point that it has added to his stress.
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[18] The Defence asked me to consider the case of R v Friesen, 2020

SCC 9, which discussed the long-lasting effects of sexual abuse on
children, in the situation where the traumatized child—now an adult—
comes before me to be sentenced for a very serious crime. In their
joint reasons for judgement in Friesen, Wagner, C.J. and Rowe, J.
state:

[57] A number of this Court’s decisions provide insight into these

forms of harm. In R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4
S.C.R. 419, L’Heureux-Dubé J. emphasized the emotional trauma that
the nine-year old complainant experienced from sexual violence (pp.
439-42). Similarly, in McDonnell, McLachlin J. (as she then was)
stressed the emotional harm of “the violation of the child victim’s
integrity and sense of self-worth and control over her body” that the
child victim experienced as a result of being sexually assaulted while
sleeping (para. 111). The likely result of the sexual assault would be
“shame, embarrassment, unresolved anger, a reduced ability to trust
others and fear that . . . people could and would abuse her and her
body” (para. 113).

[58] These forms of harm are particularly pronounced for children.

Sexual violence can interfere with children’s self-fulfillment and
healthy and autonomous development to adulthood precisely because
children are still developing and learning the skills and qualities to
overcome adversity (Sharpe, at paras. 158, 184-85 and 188, per
L’Heureux-Dubé, Gonthier and Bastarache JJ.; G. Renaud, The
Sentencing Code of Canada: Principles and Objectives (2009), at §
12.64). For this reason, even a single instance of sexual violence can
“permanently alter the course of a child’s life” (Stuckless (2019), at
para. 136, per Pepall J.A.). As Otis J.A. explained in L. (J.-J.), at p.
250:

[translation] The shattering of the personality of a child at a stage

where [the child’s] budding organization as a person has only a
very fragile defensive structure, will result — in the long term —
in suffering, distress and the loss of self esteem. (emphasis
added)

[19] Of course, as pointed out in the next paragraph in Friesen, not all
children are forever broken by experiences of sexual violence. Some
have supportive families or other resources to help them overcome
these harms.
 6

[20] Chief Justice Sharkey reiterated the seriousness of sexual offences

against children in Nunavut in the recent case of R v GH, 2020 NUCJ
33. I also take judicial notice that mental health resources are sorely
lacking in Nunavut, and many families suffer intergenerational harms
which limit the support they can offer.

[21] Dr. Granger-Brown gave evidence for the Defence on this issue. Her
Curriculum Vitae and Report on the effects of trauma generally and
specifically with respect to Ms. Akpik were made Exhibit 2 on this
sentencing.

[22] Dr. Granger-Brown has a Doctorate in Human and Organizational

Systems from Fielding Graduate University. According to Wikipedia,

Fielding Graduate University (previously Fielding Graduate Institute

and The Fielding Institute) is a private university in Santa Barbara,
California. It offers postgraduate and doctoral studies mainly in
psychology, education, and organizational studies, primarily through
distance education programs. Fielding Graduate University was
founded in 1974 by Frederic M. Hudson, Hallock Hoffman, and
Renata Tesch. They designed Fielding as a graduate program for mid-
career professionals who were not being served by traditional
universities.

[23] Dr. Granger-Brown also has over 15 years’ experience working for
Correctional Services of Canada, most recently on Staff Training on
Developmental Trauma, and has done research and published joint
papers often dealing with incarcerated women who have been
traumatized. She provided an “Introduction to Trauma Informed
Justice” in her Report in Exhibit 2 (pp. 1-2), specific information
regarding Ms. Akpik’s situation at pages 3-4, and discussion of how
Ms. Akpik’s upbringing has likely affected her as an adult, at pages 4-
11. At page 11, Dr. Granger-Brown also briefly discusses research
that suggests ways to help Ms. Akpik “learn the skills to negotiate a
safe, successful and healthy adult life.”

[24] Although much of her research and views are likely controversial as
fairly new ideas, I do not have to test her evidence in a sentencing
situation the same way I would in a trial. It seems clear to me that the
causes and effects of early-childhood trauma are still being
discovered, and how to deal with or treat them is a work in progress.
 7

II. PARTIES’ POSITIONS

[25] The Crown’s position on sentence is that Ms. Akpik’s guilty plea
should be considered an early one in the circumstances and was
meaningful because there were potentially triable issues on
admissibility, and some youthful witnesses who were concerned
about having to testify at a trial. The Crown advised that the
“traditional” Crown position would be two years less a day in custody
(less remand time) and probation for 12-18 months to support the
victim’s concerns about contact as well as provide anger
management and addictions counselling.

[26] The Crown also advised that a trauma-informed approach could be

useful in this case but is concerned that the Court still must address
the moral blameworthiness of Ms. Akpik in putting a knife to the throat
of the vulnerable cab driver victim and the issue of general
deterrence.

[27] The Crown pointed out that Ms. Akpik does not have a criminal record
and that although she did not have perfect compliance while on
release, in the end she was not charged with breaching any
conditions.

[28] Through the information from Dr. Granger-Brown, the Defence argues
for a “trauma-informed sentence” which she says would not excuse
Ms. Akpik’s criminal behaviour but would take into account her
traumatic childhood and provide the therapeutic intervention she
needs to live a pro-social life. In Dr. Granger-Brown’s opinion, prison
is not a safe setting to do the necessary work for treatment to be
successful, and she stressed that the work involved will be difficult for
Ms. Akpik. Her evidence also suggested that because of her
childhood, Ms. Akpik’s moral responsibility for this offence should be
considered lower than someone with a different upbringing.
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[29] While noting that Ms. Akpik served the equivalent of nine months in
custody on remand for this offence (although she has been out on
release for over a year at this point), the Defence position is that it
would be in the public interest to suspend the passing of sentence
and place Ms. Akpik on probation for the maximum period allowed,
three years. She would be required while on probation to maintain
abstinence from alcohol, marijuana, and illicit drugs, attend a suitable
Residential Treatment program as arranged by her probation officer,
perform 150 hours of community service work and (at Ms. Akpik’s
suggestion) prepare an apology letter to Mr. Mehraz.

III. SENTENCING

[30] Part XXIII of the Criminal Code has extensive provisions on the
purpose and principles that guide all judges in determining fit
sentences. The fundamental purpose of sentencing is set out in s.
718,

718 … to protect society and to contribute, along with crime

prevention initiatives, to respect for the law and the maintenance of
a just, peaceful and safe society by imposing just sanctions that
have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims
or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing
offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harms done to victims or to the
community; and
(f) to promote a sense of responsibility in offenders, and
acknowledgment of the harm done to victims or to the
community.

[31] The fundamental principle of sentencing is set out in s. 718.1, which

says,

718.1 A sentence must be proportionate to the gravity of the offence

and the degree of responsibility of the offender.
 9

[32] Other relevant sentencing principles are set out in s. 718.2:

718.2 …
(a) a sentence should be increased or reduced to account for any
relevant aggravating or mitigating circumstances relating to
the offence or the offender …
…
(b) a sentence should be similar to sentences imposed on similar
offenders for similar offences committed in similar
circumstances;
…
(d) an offender should not be deprived of liberty, if less
restrictive sanctions may be appropriate in the
circumstances; and
(e) all available sanctions, other than imprisonment, that are
reasonable in the circumstances and consistent with the harm
done to victims or to the community should be considered for
all offenders, with particular attention to the circumstances
of Aboriginal offenders.

[33] Unfortunately, sentencing is not a science in which I can just plug

certain facts into a formula and the appropriate sentence would be
revealed. Instead, sentencing requires a careful balancing of the
multitude of factors set out above.

[34] The Criminal Code gives a range of punishments for the offence of
robbery, one of the most serious offences in our law, between a
period of probation up to life imprisonment. Section 718.3(1) says that
the appropriate sentence is “… in the discretion of the court that
convicts a person who commits the offence.” It is my task to consider
the purpose and principles of sentencing and construct a suitable
sentence for this particular accused in these particular circumstances.

[35] It is clear that this robbery had a strong negative impact on Mr.
Mehraz and I must try to address his concerns. A robbery like this one
also negatively impacts the whole community, especially in a
relatively small community like Iqaluit where people often rely on
taxis, and their wider interests must also be considered. In general,
denunciation and deterrence (ss. 718(a) and (b)) are considered
essential in sentencing for robbery – and that usually requires a
lengthy jail sentence.
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[36] On the other hand, in considering the long-term safety of the

community, a sentence that encourages Ms. Akpik to battle her past
and work to become a fully functioning adult member of her
community, as the sentence proposed by the Defence is intended to
do, has some merit. In addition, s. 718.2(e) requires that I consider
restraint.

[37] Former NCJ Justice Kilpatrick considered the issue of use of the
sentencing principles in the case of an accused with FASD (Fetal
Alcohol Spectrum Disorder), in R v Joamie, 2013 NUCJ 19. Many of
these issues may well be similar for survivors of child sexual abuse.

[32] The Yukon Territorial Court in Harper [2009 YKTC 18] at

paragraph 30 and 31 makes the following comments about how the
cognitive impairments associated with FASD challenge the basic
assumptions of sentencing.

The purpose and principles of sentencing found in the Criminal

Code assume that offenders are capable of making choices,
understand the consequences of their actions, and when punitive
sanctions are applied, are capable of learning from their mistakes
so as not to repeat them. General deterrence, meaning that the
punishment given to one person for breaking the law will operate
to deter other persons, presupposes the ability of those other
persons to process and translate information as well as to
remember it. Similarly, rehabilitation, as it is conventionally
understood, is largely a cognitive process premised on the ability
to understand, to learn, to remember and to make choices. None
of these assumptions fit well with what is known about FASD, a
permanent form of brain damage that can affect all parts of the
brain.

The fundamental principle contained in s. 718.1 of the Code also

requires that the sentence be proportionate to the "degree of
responsibility of the offender". What does this mean for an
offender who . . . suffers from an organic brain disorder that
affects not only his ability to control his actions, but also his
understanding of the consequences that flow from them?

[33] In order to craft a fit sentence for an offender with FASD related
cognitive deficits, the Court must embark upon a two stage analysis.
 11

[34] The Court must first assess the moral blameworthiness of the
offender in light of the impact that the cognitive deficits attributable to
FASD had upon offender’s behavior. This assessment cannot be done
in the abstract. Forensic medical or psychiatric evidence is required to
understand how the offender’s cognitive deficits impacted his or her
behaviour and so contributed to the commission of the offense before
the Court.

[35] The Court must then seek to balance the need to protect the
public on the one hand, with the feasibility of reintegrating the
offender back in to the community through alternative sanctions.
Where specialized community based treatment programs are available
for an offender that are sufficient to address the FASD offender’s
special needs, the Court must assess whether such programs are likely
to mitigate or reduce the offender’s risk of reoffending.

[36] Where the Court concludes that the use of such community based
programs for a particular offender may better achieve the long term
protection of society, then in keeping with a finding of diminished
responsibility, the Court should consider the use of a non-custodial
sanction, or reduce the length of the custodial sanction that would
otherwise be employed in combination with the use of the community
based treatment program.

[38] This approach, suggested by Justice Kilpatrick, was used by Justice

Sharkey (now Chief Justice) in R v Ipeelee, 2015 NUCJ 38 to impose
a sentence of 289 days plus three years’ probation on two counts of
robbery committed by an 18-year-old Inuk male with no previous
criminal record, who was clinically diagnosed with FASD. Defence
counsel had found a secure placement for Ipeelee’s treatment of his
FASD.

[39] One difference with survivors of child sexual abuse as opposed to

individuals with FASD is that the brain deficits that can result from
abuse are subject to treatment, according to Dr. Granger-Brown,
while FASD is a permanent condition. According to Dr. Granger-
Brown’s evidence, treatment for childhood trauma can increase pro-
social behaviours. All the more reason to consider a treatment-based
sentence for Ms. Akpik.
 12

[40] Considering all the facts and factors, it is my view that a sentence of
imprisonment of nine months (time served) to be followed by a three-
year probation order would be appropriate. It addresses the harm
done to the community and Mr. Mehraz by this robbery and sends a
message that jail is required for this type of offence, while also
requiring that Ms. Akpik get treatment to address her childhood
trauma so hopefully she will stay out of trouble in the future.

[41] The conditions of probation will be:

• Keep the peace and be of good behaviour, and other statutory

conditions;
• Contact the probation office within three days of today’s date
and thereafter as required;
• Attend and complete such residential or outpatient treatment
and/or counselling as may be arranged by your probation
officer;
• For the first six months of probation, follow a curfew and be in
your home (address to be provided to probation officer)
between the hours of 9pm to 7am, except as approved by your
probation officer, in advance;
• If the RCMP come to your door, or phone your residence to
check on curfew compliance, you must present yourself
peacefully at the door, or answer the telephone;
• You must abstain absolutely from the consumption or
possession of alcohol or other intoxicating substances including
marijuana unless lawfully prescribed by a physician, unless and
until your probation officer applies to amend this condition and it
is amended;
• You must prepare an apology letter to Mr. Adal Mehraz to the
satisfaction of your probation officer who will provide it to Mr.
Mehraz;
• If you request a taxi, you must tell the dispatcher who you are
and say, “don’t send Adal”; and
• You must perform 150 hours of community service as arranged
by your probation officer.

[42] Because of the seriousness of the offence, the Criminal Code

requires that I make an order under s. 487.051 for the taking of
samples suitable for DNA analysis, so your DNA can be placed in the
national database.
 13

[43] As well, I am required under s. 109 of the Criminal Code to prohibit

you from the possession of any firearm for a minimum of ten years,
and I do so. I do not object if you wish to apply for an exemption
under s. 113 for the purpose of subsistence hunting.

[44] Finally, the Court orders the forfeiture of the knife and firearm seized
in the investigation of this offence.

Dated at the City of Iqaluit this 9th day of February, 2021

___________________
Justice S. Charlesworth
Nunavut Court of Justice