oadD A*b DAR
Nunavunmi Maligaliuqtiit
NUNAVUT COURT OF JUSTICE
Cour de justice du Nunavut
Citation: R. v. Holland, 2017 NUCJ 03
Date: 20160203
Docket: 08-16-22; 08-16-39
Regisiry: Iqaluit
Crown: Her Majesty the Queen
-and-
Accused: Tommy Tiglik Holland
Before: ‘The Honourable Mr. Justice Bychok
Counsel (Crown): Benjamin Flight
Counsel (Accused): Lana Walker
Location Heard: Iqaluit, Nunavut
Date Heard: December 08, 2016
Matters: Criminal Code of Canada, RSC 1985, ¢ C-46, s. 235(1)(b);
s. 255(2); s. 259(4); Effect of police misconduct on
sentence
REASONS FOR JUDGMENT
(NOTE: This document may have been edited for publication)Table of Contents
REASONS FOR JUDGMENT
|. BACKGROUND
i THE POSITION OF THE PARTIES.
tn ANALYSIS... ee
A. Sentencing objectives and principle:
B. The offender cscs
C. Criminal re008d
D. Mitigating factors,
E, Aggravating factors. .
F. Canadian Victims Bill of Rights...
SENTENCE .
A, January 1, 2016:
8 259(4)..
B, January 17, 2016: impaired driving causing bodily harm -s 255(2) and
driving while prohibited ~ s 259(4)
D. The effect of the guilty plea...
E, The effec ofthe breach of Holland's Charter rights by the police
(). The evidence...
(ii). Charter breach Analysis.......
E. Credit for remand custody and time served...
F, Probation order
G Ancillary orders
4
a4
6
6
7
7
impaired tving — 235(1)0) and driving while rote -
woe B1. BACKGROUND
(1)
2)
3]
4)
On August 25, 2015, Mr. Holland was convicted of impaired driving
Only four months later, on January 1, 2016, he was arrested again for
impaired driving. He was released on bail. Just over two weeks later,
Mr. Holland, while extremely drunk, again got behind the wheel of a
vehicle. Soon after, he struck a Jeep which was parked on a Happy
Valley street. He drove away. He drove back shortly after and again he
struck the same vehicle. This time, the Jeep owner's little seven-year-
old son was at its back. Mr. Holland backed into the Jeep pinning the
child between the hatch and the Jeep. The child was seriously injured,
and he had to be rushed to the hospital. Mr. Holland drove away
immediately without stopping to help.
‘The Jeep's owner recognized Mr. Holland from the neighbourhood. He
told the police where the offender lived. The police then staked out the
offender's home. About eight hours later, Mr. Holland came out. He let
his dog out and lit a cigarette. Constable [Cst.] Andrew Kerstens called
out to him that he was under arrest, Mr. Holland yelled back “fuck you’.
He went right back inside. Cst. Kerstens chased after him. Cst.
Kerstens, and Corporal [Cpl.] Mary Beth Dunphy, kicked their way into
the house behind him. They caught up with him just inside the second
door. Cst. Kerstens immediately put him against the wall. A struggle
ensued. Mr. Holland was subdued, arrested, and taken from his home
to police cells,
Mr. Holland has pleaded guilty to impaired driving and driving while
prohibited on January 1. Mr. Holland was charged with five offences for
the January 17 incident, These charges included leaving the scene of
an accident and resisting arrest. The Crown accepted guilty pleas to
impaired driving causing bodily harm and driving while prohibited. The
Crown stayed the other charges. This happened on August 22, 2016
Mr. Holland's sentence hearing started on December 8, 2016. The
Crown read in the facts. The Defence admitted they were correct. The
Crown then called two witnesses, Cpl. Dunphy and Gst. Kerstens. They
testified about the arrest. | then heard from the prosecutor, Mr. Flight,
and the Defence lawyer, Ms. Walker. They told me what they thought
would be would be an appropriate, or just and proper, sentence for
these serious crimes. These are the reasons for my decision on
sentence.il. THE POSITIONS OF THE PARTIES
[5] The Defence lawyer says | should impose a six-month jail term. Ms.
Walker says | should also reduce Mr. Holland's sentence because the
police breached his rights under the Canadian Charter of Rights and
Freedoms' [Charter], She said the police had no right to go into Mr.
Holland's home to arrest him. She provided twelve cases for my review.
The sentences in these cases range from sixty days to three years in
jail,
[6]
The prosecutor says | should send Mr. Holland to the correctional
centre for forty-five days for the first incident. He says Mr. Holland
should receive a further 395 days for the second incident. This equals
a total of 440 days in jail. Mr. Flight recommended a three-year driving
prohibition. He did not provide any case law. He said the Charter
breach was not serious; the sentence should not be reduced.
Il, ANALYSIS
A. Sentencing objectives and principles
{7] Sentencing is an individualized process. Every offender, and every
case, is unique. A judge must weigh the objectives and principles of
sentencing against the specific circumstances of each case.
[8] There are important rules a judge must follow when imposing 2
sentence. These rules are found in the Criminal Code of Canada?
[Criminal Code}. The sentence | impose must serve to:
Protect the public;
Foster respect for the law:
Be seen to be just;
Acknowledge the harm done to Mr. Holland's victims;
Condemn and denounce criminal conduct;
Deter Mr. Holland and others from committing these
crimes;
Rehabilitate Mr. Holland to help him heal;
Encourage offenders to accept responsibility for their
actions, to acknowledge and admit the harm they caused
.
‘Part of the Constitutton Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, ¢ 14
PREC 1988, cC-46(1
[10]
(11)
[12]
[13]
[14]
to their victim(s), and try to repair the harm where
possible; and to
* Separate offenders from society when necessary?
The Criminal Code directs judges to consider ‘proportionality’, This
principle is at the heart of the sentencing process. This legal term
means a sentence should reflect the seriousness of the crime, and the
offender's responsibility for it.
The Criminal Code directs sentencing judges to act with ‘restraint’. This
means the court must impose the least harsh sentence which can
achieve the goals involved in sentencing. Jail must only be imposed
when there is no reasonable alternative. in Canada, jail is imposed only
as a last resort. Combined sentences are not to be unduly long or
harsh. Here, the Criminal Code directs judges to be especially aware
of the circumstances of Aboriginal offenders. I'll say more about that
starting in paragraph thirteen,
The Criminal Code directs judges to consider ‘totality’, This tegal term
means a judge is not allowed just to add up the sentences for each
individual offence. The final, total sentence should be no more than the
overall responsibility of the offender.
Sentencing judges must also consider ‘case-law’. Case-law is made up
of published reports that tell us what other judges have done in similar
circumstances. This is extremely important. it is only fair that similar
offenders should be treated similarly for similar crimes. | was referred
to twelve drinking and driving cases by Defence counsel.
One of the most important cases is called the Queen v Gladue*
[Gladue]. It is called that because in Canada alll criminal prosecutions
are done in the name of Her Majesty the Queen. Gladue was the name
of the offender in that case. Giadue is a very important case from the
highest court in Canada, the Supreme Court. In fact, the Nunavut Court
of Justice is a Gladue court. We serve all Nunavummiut. To make a
fong explanation short, our court must account for the unique
circumstances of the Inuit people, their history, and society.
Gladue requires a sentencing judge to consider the circumstances of
the offence, the offender, the victim and their community. Nunavut is
8 Criminal Code, 5. 718
+ Rv Gladue, [1998] SCJ No 19, [1999] 1 SCR 688 (QL)in crisis. Alcohol abuse is tearing apart our society, | must take that
fact into account. | will say more about that later today when I sentence
Jamie Mikijuk®,
[15] Gladue is a constant reminder to everyone in our justice system. It
reminds us that justice, if it is to approach true justice, must be rooted
in the community it serves. Gladue informs every decision we make —
at every level. Itis the lens through which we look at every case. Every
sentence of the Nunavut Court of Justice involving an Inuk is a Gladue
sentence, So, there is never a specific Gladue credit,
[16] There is another important aspect to Gladue. The case also tells us
that practically speaking, sentences for serious or violent crimes will be
similar whether the offender is Aboriginal or non-Aboriginal. This is one
of those cases.
[17] Mr. Holland's case is about repeated drunk driving. It is about the
terrible decisions people can make when they are drunk. It is about
what happens when drunk people drive. Innocent people get hurt, or
are killed,
B. The offender
[18] Mr. Holland is from Iqaluit. His mother is Inuk. He is an alcoholic, He
grew up in the home of parents who abused alcohol. Often, money went
for alcohol, not food. He and his siblings sometimes went hungry. Mr.
Holland finished grade ten. He is employed full time with the Nunavut
Housing Corporation. Before the incident, his addiction seriously
affected his work. He told me January 17 was a wake-up call; he has
been sober since then, He started to attend Alcoholics Anonymous
twice @ week. He is the father of a seven-year-old daughter. He has
imagined her in his victim's shoes.
¢. Criminal record
[19] Criminal records play an important role in sentencing. Common sense
says a first-time offender who does a less serious crime will be treated
more leniently than someone who commits one serious crime after
another. Mr. Holland has a recent criminal record for impaired driving.
On August 25, 2015, he received the minimum $1,300 fine, and his
privilege to drive was revoked for twelve months. He was also convicted
on July 17, 2014, for breaching a condition of his bail on an assault
5 Rv Milejuk, 2017 NUCJ 02charge. He was put on probation for twelve months for that crime as
well as for the assault.
[20] The Criminal Code also requires a sentencing judge to consider
mitigating and aggravating factors. One of those mitigating factors
arises from police misconduct in the case. | will say more about that
later.
D. Mitigating factors
[21] There are two other mitigating factors which go to Mr. Hollands’ credit.
They work to lessen his sentence. Those mitigating factors are:
* Mr. Holland entered an early guilty plea. He has taken
responsibility for what he did.
* His employers and a respected member of the
community, Dr. Steven M. Partyka, say Mr. Holland has
turned a new leaf. He was unreliable before the last
incident. Now, he seems to be turning his life around.
They say he should be given a chance.
E, Aggravating factors
[22] Balanced against these factors are setious aggravating ones which
work to increase his sentence. The aggravating factors are:
* On January 1, Mr. Holland's blood alcoho! level was just
under twice the legal limit;
* He had been convicted of impaired driving only four
months previously;
On January 17, he was extremely drunk;
He was free on bail following the January 1 incident;
After he hit the Jeep the first time, he left the scene;
He continued to drive around, and he hit the Jeep again;
His victim was a young child:
His victim was seriously injured:
He left the scene without stopping to help;
The incident had a serious emotional impact on the child
and his parents;
This is Mr. Holland's second and third drunk driving
offences within 4.5 months.
wee wees[23] | have considered and weighed all these things.
F. Canadian Victims Bill of Rights
[24] Victims of crime have the right to be heard in court®. They may read out
loud, or the Crown may file a Victim Impact Statement. These
statements bring to life the real effect crime has on peoples’ lives. One
cannot judge a crime without understanding how its victims were hurt
These statements help ensure victims are not ignored during the
sentencing process. The Crown obtained one Vietim Impact Statement.
[25] At the court's invitation, the victim's father read aloud his family’s Victim
Impact Statement. | will not embarrass the family by going into detait.
Suffice to say, the incident had a setious emotional and financial
impact. It was three months before his son’s injuries healed. His son
remains fearful of all-terrain vehicles.
IV. SENTENCE
[26] Mr. Holland must be separated from the community for these serious
offences. A jail term is consistent with traditional Inuit justice. When a
berson threatened the traditional group's safety and security, that
person could be, and sometimes was, banished. Many were welcomed
later back into the group. Forgiveness, reconciliation, reintegration and
restitution were, and are still, key concepts of Inuit justice. As they are
in the Nunavut Court of Justice.
[27] Mr. Holland was very intoxicated during both incidents. A young child
was seriously injured. He bears an extremely high moral culpability.
He is a participant in the modem wage economy.
[28] | wil deal with the sentences for each offence in tum.
A, January 1, 2016: impaired driving - 236(1)(b) and driving while
prohibited ~ s 259(4)
[29] 1 sentence Mr. Holland to forty-five days in jail for impaired driving, and
thirty days in jall for driving while prohibited. This is his second
conviction for breaching a court order in one year and a half. Therefore,
* Canadian Victims Bil of Rights, SC 2018, c 13, 82the sentences are consecutive; that means they shall be served one
after the other,
B, January 17, 2016: impaired driving causing bodily harm — s 255(2)
and
[30]
{34]
[32]
[33]
driving while prohibited — s 259(4)
August 25, 2015, is the appropriate starting point for analysis. From this
viewpoint, we see the full magnitude of the relevant circumstances.
On August 25, 2015, Mr. Holland was convicted of drunk driving. He
was fined the minimum $1,300. The court took away his driving
privilege for one year. Only four months fater, he ignored the court
order. He drove again while drunk. He put his own life and that of others
at risk. He was arrested, charged and released on bail. His blood
alcohol level was just under twice the legal limit. Just over two weeks
later, he ignored the court order again. He drove around Happy Valley
drunk. In fact, he was extremely drunk. He told police later, he had
never been that drunk before. He struck the Jeep and left the scene.
He did not decide to stop driving. He drove back to the area. He hit the
Jeep again, this time seriously injuring the child. He again immediately
left the scene, without stopping to help. This is Mr. Holland’s third
conviction for breaching a court order.
In these circumstances, considering case-law and the objectives of
sentencing, the parties’ recommendations fall short of a just and proper
sentence. They are not proportional to the seriousness of the offences,
or to Mr. Holland's very high moral blameworthiness. The sentence
must be significantly higher.
The appropriate sentence, therefore, is twenty months, or 600 days, for
the impaired driving causing bodily harm, and sixty days of jail for
driving while prohibited, These sentences are consecutive to each
other, and consecutive to the seventy-five-day sentence imposed for
the January 1 offence. The total sentence, then, before ‘totality! and
other credits is 735 days in jail. This would be a federal sentence
C. The ‘totality’ principle
134]
| must now consider whether the two sentences taken together reflect
the 'totality’ principle. The final sentence | impose must not exceed Mr.
Holland's overall culpability. In these circumstances, it would not serve
the objectives of sentencing to send Mr. Holland to a federal
penitentiary. Nor is it necessary to send him to a federal penitentiary10
to further his rehabilitation. This is a case where it would not be just
simply to add up the sentences.
135] | must lower the effective sentence to reflect ‘totality.’ Therefore, |
reduce the sentence for the January 17 impaired driving causing bodily
harm offence to eighteen months, or 540 days. | reduce the sentence
for driving while prohibited to thirty-days in jail. The global, or total,
sentence, therefore, considering ‘totality’ is 645 days in territorial jail.
[36] This sentence is well within the range covered by the cases submitted
by Defence counsel
[37] | must now turn to how this sentence of 645 days is affected by the
guilty plea, the Charter breach by the police, and the credit for pre-
sentence custody.
D. The effect of the guilty plea
[38] This court always gives meaningful credit to offenders who take early
responsibility for their crimes, At the hearing on December 8, Mr.
Holland appeared to express sincere regret. He apologized to the victim
and the victim’s parents who were in court too, He says he is working
hard on staying sober. The prosecution avoids having to prove its two
cases at trial. Witnesses do not have to come to court. Our overloaded
dockets do not have to accommodate a trial. Mr. Holland's sentence is
reduced, therefore, by ninety days
E. The effect of the breach of Holland's Charter rights by the potice
[39] Mr. Holland's lawyer says | should reduce his sentence. She says that
would be fair because the police breached his Charter rights. The
prosecutor does not agree. He says the police committed only a minor,
“technical’ breach. The sentence, he says, should not be affected.
(i). The evidence
[40] Cpl. Dunphy testified. She had only a vague memory of the incident.
Her evidence was inconsistent. She said at first, she responded to a
call at a certain address. She was asked by the prosecutor to refresh
her memory from her notes. She then admitted she got the address
wrong. She said she was told Mr. Holland was inside and “arrestable’.
She could not remember who told her. She could not remember
whether she was told over police radio, or her cell phone. She was
asked about the chase into the house. First, she said Mr. Holland ran(41)
[42]
[43]
{44]
[45]
4
back inside. Then, she said he walked back in, Then she said he went
“faster than a walk”. Then she said, "I honestly don't remember how
fast he went’. As to what happened inside, she said only there was a
"struggle". Her attitude in giving evidence was cavalier. Her evidence
was not reliable.
Cst. Kerstens testified by telephone. He has been in the Royal
Canadian Mounted Police for four years. He said he had only a
“minimal role” that day - that of watching Mr. Holiand’s ATV as
evidence. He said he was staked outside Mr. Holland's house for about
eight hours. He observed Mr. Holland several times through a window.
Mr. Holland taunted him once from inside. Mr. Holland went outside at
about 8:21 p.m, He let out his dog and lit a cigarette. Cst. Kerstens said
Mr. Holland was standing on his top step. Mr. Holland was “very close”
to the inside of the front cold porch of his home.
Cpl. Dunphy insisted Mr. Holland had come right down the stairs onto
his driveway. | accept Cst. Kerstens' evidence that Mr. Holland went no
further than the top of his front step, and that he was very near his open
front door,
When Mr, Holland came out, Cst. Kerstens said he was about ten feet
away. He said he told Mr. Holland he was under arrest. Mr. Holland
became agitated and began to yell. He yelled “fuck you” at Cst.
Kerstens, He ran back inside. Cst. Kerstens gave chase.
Cst. Kerstens said he was still on the steps outside as Mr. Holland
closed his outside door. Cpl. Dunphy claimed “we were right behind
him" as Mr. Holland got to his front door. | accept Cst. Kerstens'
evidence as reliable on this point.
Cst. Kerstens continued his pursuit. He kicked the outside door open.
He then carried right on and kicked and opened the interior door. He
then carried on at a “fairly rapid pace” and immediately put Mr. Holland
in a “C-clamp". He put Mr, Holland up against the hall wall. Mr. Holland
resisted. They struggled. Cst. Kerstens put Mr. Holland in a standing
headlock, Mr, Holland continued to resist. Cst. Kerstens then used a
“pain compliance technique”. He pulled Mr. Holland’s left arm at a
ninety-degree angle behind his back, He never mentioned what Cpl.
Dunphy was doing, apart from taking the cigarette out of Mr. Holland's
mouth.[46]
(iti).
[47]
[48]
(49)
{50}
(51]
12
Each police officer said they knew they were not allowed to go into Mr.
Holland's house without a warrant. Cpl. Dunphy said she was told an
arrest warrant was being prepared to permit them to enter the home to
arrest Mr. Holland. She and Cst. Kerstens staked out the house
between five to eight hours; the evidence on this point was confusing.
Cst. Kerstens was in contact with his corporal and the investigators
throughout that time. It is inconceivable that Cpl. Dunphy did not tel
Cst. Kerstens that an arrest warrant was being prepared. It is
inconceivable that Cst. Kerstens did not know the arrest warrant was
being prepared. Each witness said they believed they had the right to
chase Mr. Holland inside without an arrest warrant.
Charter breach Analysis
Society needs laws. Society also needs to be able to enforce those
laws. We could not live in community without laws, and our police. Our
free and democratic society also needs independent courts. Our courts
settle disputes. Our courts protect our rights and our liberties. The
decisions our judges make help to maintain public peace.
Our police are our first line of defence against disorder and
lawlessness. We expect our police to place their lives and safety on the
line every day. We expect our police to deal with dangerous and difficult
situations, We expect our police to make difficult judgment calls in fast-
moving and sometimes volatile situations. Everyone can and does
make mistakes. Our police are human just like us; so, we do not expect
them to be perfect.
We entrust our police with extraordinary authority and power. As well
as special protections. Our police are trained in the criminal law they
are sworn to uphold. They are trained specifically on how to deal with
difficult people and situations. In retum, we expect our police to uphold
the law, not to break it.
Nunavummiut expect just consequences when someone breaks the
law. Our police are not exempt from that expectation. These
consequences must be meaningful lest the lesson be ignored, or
forgotten.
This case is troubling. The Crown acknowledges the police violated
Holland's Charter rights. And let us be clear - the Charter protects each
and every one of us; whether or not we are suspected of having broken
the law. In asserting Mr. Holland's rights, this court defends the rights152]
53]
[54]
(S5]
(56)
7)
13
and liberties of all its citizens. It has raised a serious issue for this court
and for all Nunavummiut, When can a police officer legally enter your
home and arrest you? Deprive you of your liberty? Put you in police
cells?
There is nothing more basic in our police officer's tool kit than the power
to arrest a suspect. It is as basic as his or her uniform, badge, and side
arm. The Crown did not call any evidence concerning police training,
Despite that lack of information, | cannot accept that any Canadian
Police officer does not understand the limits on their power to arrest. It
is the simplest and most basic concept our police must learn.
Our laws of arrest are crystal clear.
A person may be arrested by a police officer if they are caught
committing an indictable offence. Or, a person may be arrested if the
police officer has reasonable grounds to believe that the person
committed an indictable offence.’ in either case, a lawful arrest has two
parts, First, the police officer must tell the person he is under arrest.
Second, the police officer must take hold of, or at least touch, the
person during the arrest.
Our law is also crystal clear that a police officer may not go into a
person's home without an arrest warrant. These warrants are called
Feeney warrants. Feeney was the suspect in the case that established
this law.° That arrest warrant must be issued by a judicial officer. The
judicial officer is involved to make sure our police have lawful reasons
to go into someone’s home. In our democracy, that is a healthy and
necessary check on the use of police authority.
There are only two exceptions. First, if someone inside the house is in
imminent danger of harm, The law calls that “exigent circumstances”?
Here, police officers do not have to wait for a warrant. If they did, it
might be too late for the person in trouble. In Mr. Holland's case, no
one was in immediate danger, Exigent circumstances as an
explanation for what the police did are not available here.
The second exception happens when the policer officer has been
chasing the person, and the person flees into their home. Generally,
® Criminal Code, s 495
® Rv Feoney, [1997] 2 SCR 13, 115 CCC (8d) 129
8 Criminal Code, $ 629.3[58]
[59]
[60]
(61]
14
but not always, this happens when the suspect is fleeing the scene of
the crime to avoid capture, and possibly, his identification. This is called
“hot or fresh pursuit’. Cpl. Dunphy and Cst. Kerstens claim they were
in “hot pursuit” when they forced their way into Mr. Holland’s home.
However, this is not what happened.
Cpl. Dunphy and Cst. Kerstens were not actively chasing Mr. Holland
who then fled to, and into, his home. They had been patiently staking
out Mr. Holland's home. For at least five, long, and doubtless tedious,
hours. They knew he was inside. Mr. Holland made direct eye contact
with Cst, Kerstens several times. They were hoping he would leave so
they could arrest him. Atleast once, Mr. Holland had taunted them from
his window, But they were powerless to act - at least until the Feeney
warrant arrived. The court was never told why the Feeney warrant
never came, There was no other suspect.
Mr. Holland eventually stepped just outside, and let out his dog, He lit
a cigarette, Cst. Kerstens decided to act. He called out from a distance
that Mr. Holland was under arrest. Mr. Holland yelled “fuck you". Mr
Holland immediately turned, and went right back inside. Cst. Kerstens
decided to chase after him although there was no way he could make
up the distance. Mr. Holland was inside his home before Cst. Kerstens
was even up the steps. The opportunity to arrest Mr. Holland lawfully
was lost.
Instead of stopping at the door, Cst. Kerstens decided to kick his way
inside. Through not one, but two doors. According to his evidence,
when Cst, Kerstens got inside, Mr. Holland was standing facing him.
Mr. Holland was not moving. His arms were at his side. He was not
doing or saying anything - just standing there, unarmed, with no
weapons in sight. Officer safety concerns did not justify what happened.
The constable did not try to deescalate the situation. The constable
immediately grabbed Mr. Holland and put him against the wall. Ina “C-
clamp’. Then a headiock. Then he used a "pain compliance technique’.
In doing so, in these circumstances, Cst. Kerstens assaulted Mr.
Holland. Assault is a crime.
Why did this happen? The answer is found in Cpl. Dunphy’s evidence.
She was asked why she chased Mr. Holland, and why she didn’t call
for the warrant. She replied: “In the heat of the ... when all that was
happening, no that wasn't ... that wasn't an option’. Cpl. Dunphy had
started to say “in the heat of the moment”, but she caught herself.(62)
[63]
{64]
[65]
(66)
(67]
16
This incident happened because the police lost their cool and acted in
the heat of the moment. Cst. Kerstens reacted angrily when Mr. Holland
yelled “fuck you” at him after the earlier taunt. Cst. Kerstens lost his
cool. He ignored his training, He acted without legal authority, He is
accountable, even if he believed he acted in good faith.
When Cst. Kerstens ran after Holland, Cpl. Dunphy should have
exercised her authority. She ought to have ordered the junior constable
to stop. She failed in her duty to do so. Instead of restraining her
colleague, she followed the junior constable inside. She helped Cst.
Kerstens subdue Mr. Holland who was righifully defending himself, By
assisting Cst. Kerstens subdue Mr. Holland unlawfully, Cpl. Dunphy
also committed an assault. She, too, is accountable.
As | said earlier, our law is crystal clear, Police may only enter a
person's house without a warrant in two situations: if someone's safety
is in peril, or if they are in hot pursuit. The only hot pursuit on January
47 was the pursuit by a constable who was hot under the collar, and by
his supervisor who claims she did not understand the law.
This illegal forced entry into Mr. Holland's home, and unprovoked
assault, are extremely serious breaches of Mr. Holland's Charter rights.
In our free and democratic society, these ilegal acts undermine our
trust in our police. it taints ail our police officers. This court cannot tum
a blind eye, These breaches must be sanctioned in a meaningful way.
The question, then, becomes what is a fair and meaningful remedy?
The Supreme Court of Canada has explained the law | must apply. In
2010, all nine justices issued a unanimous judgment. That case is
Rv Nasogaluak"®, A judge may use sentencing principles to denounce
police misconduct. Where, as here, that misconduct related directly to
Mr. Holland as their suspect, it works to lessen his sentence. It
becomes a mitigating factor | must consider and apply in a meaningful
way. The sentence reduction must reflect this serious violation of the
law by Cpl. Dunphy and Cst. Kerstens.
The court, therefore, reduces Mr. Holland’s sentence further by five
months, or 150 days.
¥ 2010 SCC 6, [2010] 1 SCR16
E. Credit for remand custody
[68] Our taw says offenders get enhanced credit for remand time. The credit
recognizes the harsh conditions of remand. Mr. Holland has spent
sixty-four days in pre-sentence custody. Our law says that is equivalent
to ninety-six days. Mr. Holland, then, receives ninety-six days of credit
which | subtract from his sentence.
[69] Stand up, please Mr. Holland. Your sentence of 645 days in jail is
reduced by 336 days because of your guilty plea, the police
misconduct, and the remand credit. You will serve a further 309 days
in territorial jail.
F. Probation order
[70] The jail term will be followed by probation for eighteen months. Mr.
Holland, you will:
» Report to the local probation office within two business
days of your release from jail, and thereafter as directed;
» Take assessment, counselling, and treatment as directed
by your probation officer for substance abuse;
« Have no contact or communication with the victim and his
parents;
Stay away always from the victims’ home;
Not possess or consume alcohol, or attend any
establishment licensed to sell alcohol;
* Perform sixty hours of community service within twelve
months of completing your jail term. This community
service work is an opportunity for you to be seen making
positive contribution to our community.
[71] | urge you to take advantage of the probation period to deal with your
aicohol abuse problems, and to heal. Make no mistake, it will be a
lifelong struggle. You can be a good father, and a contributing member
of society.G. Ancillary orders
[72] The Criminal Code provides for various ancillary, or related, orders. |
impose the following orders:
[73] Mr. Holland is prohibited from driving anywhere in Canada for four
years -Criminal Code s 259. (1)(c).
[74] While he is jailed, Mr. Holland may not communicate with his victim or
his family — Criminal Code s 743.21. The Crown will prepare the Order.
[75] The Criminal Code requires a Victim Fine Surcharge for each offence
The Crown proceeded by summary conviction for the two January 1,
2016, offences. Each crime requires a $100.00 Victim Fine Surcharge,
or $200. The January 17, 2016 charges are indictable. Each one of
those two crimes require a $200.00 Victim Fine Surcharge, or $400.
Mr. Holland must pay that $600.00 within one year of his release from
jail (Criminal Code s 737),
Dated at the City of Iqaluit this 3° day of February, 20
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Justice Paul Bychok
Nunavut Coupt of Justice