Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R. v. Shappa, 2015 NUCJ 26

Date:
Docket:
Registry:

20150828
01-15-40
Iqaluit

Crown:

Her Majesty the Queen

-and-

Accused:

Jimmy Shappa

________________________________________________________________________
Before:

The Honourable Mr. Justice Kilpatrick

Counsel (Crown):
Counsel (Accused):

Jena C. Montgomery
Susan E. Charlesworth

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
August 11, 2015; August 20, 2015
Criminal Code, s. 86(1); s. 267(a); s. 733.1(1)

REASONS FOR JUDGMENT

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

DISCLAIMER PAGE
Anonymized Judgment Disclaimer:

This judgment has been anonymized to comply with

legislative requirements or at the discretion of the
authoring Justice to protect vulnerable parties.

Table of Contents
REASONS FOR JUDGMENT ................................................................................... 1
I. INTRODUCTION........................................................................................................... 5
II. THE FACTS .................................................................................................................. 5
III. ANALYSIS ................................................................................................................... 8
A. Aggravating offence characteristics ..................................................................... 8
(i). The assault with a weapon ................................................................................... 8
A.i.1. The age of the victim ......................................................................................... 8
A.i.2. The high risk of harm to the victim .................................................................. 8
A.i.3. The use of a loaded firearm ........................................................................... 10
A.i.4. The threat to discharge the firearm ............................................................... 10
A.i.5. Mr. Shappas high state of intoxication ......................................................... 10
A.i.6. The breach of trust ........................................................................................... 11
(ii). The careless storage offence ............................................................................ 12
A.ii.1. The presence of children within the home .................................................. 12
A.ii.2. The number of firearms involved .................................................................. 12
(iii). The breach of probation .................................................................................... 12
B. Mitigating offence characteristics........................................................................ 13
(i) .The assault with a weapon ................................................................................. 13
(ii). The careless storage offence ............................................................................ 13
(iii). The breach of probation .................................................................................... 13
C. Aggravating factors related to the offender ....................................................... 14
D. Mitigating factors related to the offender ........................................................... 14
(i). The Gladue analysis ............................................................................................ 14
E. Mitigating factors arising after the commission of the offences ..................... 18
(i). The early guilty pleas ........................................................................................... 18
(ii). The pre-trial detention ......................................................................................... 18
F. Jurisdictional considerations ................................................................................ 18
IV. CONCLUSION .......................................................................................................... 19
A. The Crown and Defence positions on sentence .............................................. 19
B. The weight to be assigned to sentence impact on the offenders family ...... 20
C. Sentence calculation ............................................................................................ 21
C. Ancillary orders ...................................................................................................... 24
(i). The firearms prohibition order ............................................................................ 24

4
(ii). The DNA order ..................................................................................................... 26
(iii).The victim fine surcharge ................................................................................... 26
(iv). The order for forfeiture ....................................................................................... 26

I. INTRODUCTION
[1]

Mr. Shappa has entered prompt guilty pleas to three offences under
the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code]
namely:
a. one count of assault with a weapon contrary to Criminal
Code section 267(a);
b. one count of storing rifle(s) in a careless manner
contrary to Criminal Code section 86(1); and,
c. one count of breaching a probation order contrary to
Criminal Code section 733.1 (by failing to keep the
peace).

[2]

All offences arise out of a single incident that occurred in the hamlet
of Arctic Bay during the evening of June 17, 2015. The Crown has
elected to proceed summarily.

[3]

Mr. Shappa is now to be sentenced for these offences.

II. THE FACTS

[4]

During the evening of June 17, 2015, Mr. Shappa and his commonlaw spouse, Vera Issigaitok, have far too much to drink. At some point
Ms. Issigaitok leaves the home. Mr. Shappa remains behind,
presumably to look after the children. This couple has four children
ages sixteen, ten, seven, and two years old respectively.

[5]

At some later point, Ms. Issigaitok returns home. Something causes

Mr. Shappa to snap. Mr. Shappas rage is directed at the couples
seven year old son. He kicks the child in the stomach. He shoves the
seven year old into a wall. Mr. Shappa then grabs a high powered rifle
and points the barrel of the weapon at the victims head. This firearm
is loaded. The leveled barrel of the weapon is held against the childs
forehead. This is done with sufficient force to cause a welt to the
childs temple. While doing this Mr. Shappa says to his son Can I
shoot you?

[6]

Ms. Issigaitok is in another room of the house when this incident

occurs. She does not see these events, but she hears Mr. Shappa
threaten to shoot his son.

[7]

Sometime later that evening Ms. Issigaitok is able to speak to the

seven year old alone. She finds out what happened. Ms. Issigaitok
then leaves the home and calls the police. The Royal Canadian
Mounted Police [RCMP] arrive to find Mr. Shappa passed out and
lying on a bed. There is an unsecured Browning rifle (PE001) lying
beside Mr. Shappa. On inspection, this rifle is found to be loaded with
four rounds of Winchester .375 caliber ammunition (PE002). An
additional nine rounds of ammunition are found lying on the bed
underneath Mr. Shappa (PE004). The RCMP seize this rifle and the
ammunition.

[8]

Numerous other firearms and large quantities of ammunition are

found within the home and are also seized. These items are listed in
Exhibit S-4.

[9]

The following items are seized from the furnace room and behind the
water tank inside the residence together with a quantity of unsecured
ammunition:
a. a Marlin 917V rifle (PE005); This firearm is loaded with
three rounds of Remington .17 caliber ammunition
(PE006);
b. a bolt-action Lee-Enfield No. 5 Mk 1 rifle (PE007); This
firearm is loaded with a single round of .303 caliber
ammunition (PE08);
c. a Remington 597 bolt-action rifle (PE009);
d. a Marlin 925 rifle with a scope (PE010);
e. a Ruger M77 Mark II bolt-action rifle (PE011);
f. a bolt-action rifle (no model or serial number given)
(PE012);
g. a Winchester 30-30 in a case (PE016); This firearm is
loaded with three rounds of .30-30 caliber ammunition
(PE017). There are nine rounds of .30-30 caliber
ammunition inside the gun case (PE018);
h. a second Ruger M77 rifle with scope is found inside its
case (PE019); This firearm is loaded with three rounds
of .223 caliber ammunition (PE020);
i. a second bolt-action Marlin 917V rifle with scope
(PE021); and,
i. a third bolt-action Ruger rifle (no model number given)
(PE022); This firearm is loaded with three rounds of
Winchester .300 caliber ammunition (PE023).

[10] None of these items are secured with trigger locks. None of these
items are secured inside locked gun cases or gun cabinets.
[11] Court Exhibit S-4 also discloses that a Remington bolt-action rifle
(PE013) loaded with three rounds of .223 ammunition (PE014) is
seized from one Jeremy Koonoo along with a Winchester 1400 semiautomatic shotgun (PE015). Mr. Koonoo tells the police that these
guns also belong to Mr. Shappa.
[12] The RCMP later search a shed adjoining the Shappa residence.
There they find and seize the following rifles:
a. a Ruger M77 bolt-action rifle (PE024);
b. a bolt-action rifle (no model or serial number given)
(PE025);
c. a Remington 770 bolt-action rifle (PE026);
d. a Remington bolt-action rifle (PE027);
e. a bolt-action rifle (no model or serial number given)
(PE028);
f. a Winchester .308 caliber bolt-action rifle (PE029);
g. a second Ruger M77 bolt-action rifle secured with a
trigger lock (PE030);
h. a bolt-action rifle (no model or serial number given)
(PE031);
i. a third Ruger M77 bolt-action rifle (PE032);
j. a bolt-action rifle (no model or serial number given)
(PE033);
k. a bolt-action rifle (no model or serial number given)
(PE034);
l. a Lee-Enfield rifle (PE035);
m. a break-action New England Firearms .45-70 caliber
rifle (PE036);
n. a bolt-action rifle (no model or serial number given)
(PE037);
o. a lever-action Winchester .303 caliber rifle (PE038);
p. a bolt-action rifle (no model or serial number given)
(PE039);
q. a Savage bolt-action rifle (PE040); and,
r. a Remington 700 bolt-action rifle (PE041).

[13] This shed is lockable. None of the firearms inside the shed are
loaded. There is no ammunition for these firearms being stored in this
same shed. One of these firearms is secured with a trigger lock.
[14] When the assault on his son and the careless storage offences are
committed, Mr. Shappa is bound by a probation order that required
him to keep the peace and be of good behavior. This probation order
is Court Exhibit S-1 in this proceeding. The probation order was
imposed on January 20, 2015, following Mr. Shappas conviction and
sentence on a charge of assaulting his spouse, Ms. Issigaitok. The
sentencing court required Mr. Shappa to keep the peace and to take
family counselling, anger management counselling, and addictions
counselling as directed by his probation officer.
[15] By committing the assault and firearms offence, Mr. Shappa was in
willful breach of the probation order made on January 20, 2015.

III. ANALYSIS
A. Aggravating offence characteristics
(i). The assault with a weapon
A.i.1. The age of the victim
[16] Section 718.2(a)(ii.1) of the Criminal Code deems any abuse of a
person under the age of eighteen years to be an aggravating
circumstance. This represents a codification of common law
jurisprudence that is of ancient origin.
[17] The victim in this case was only seven years of age. This child was
vulnerable because of his size and strength. This child was
defenceless.
A.i.2. The high risk of harm to the victim
[18] The moral culpability of Mr. Shappa is elevated in this case because
he has willfully assumed the risk of causing serious physical and
emotional or psychological harm to his child by committing this
offence in the circumstances presented here.

[19] This moral culpability does not turn on whether harm was actually
caused or not. Where actual harm is established, it is a seriously
aggravating feature. The absence of harm cannot reduce Mr.
Shappas moral blameworthiness because the risk of causing serious
physical and emotional harm to a child by this assault was certainly
present.
[20] The use of a loaded firearm as a weapon while heavily intoxicated is a
recipe for disaster. Mr. Shappas level of intoxication was such that he
now says that he has no present memory of the events underlying the
charge. It is simply good luck, and not any planning on Mr. Shappas
part, that has allowed his seven year old child to escape serious
physical harm or death. Even if Mr. Shappa had no real intention of
discharging his firearm, the risk of an accidental discharge is greatly
increased when the weapon is being handled by someone who is
grossly intoxicated. The magnitude of the risk to the child victim was
substantially elevated for this reason.
[21] There is no evidence before the Court to indicate that this child has in
fact suffered psychological harm as a result of this offence. Having
said this, there is also no evidence to suggest that this child has ever
been assessed by a professional qualified to make this assessment.
The Court is left with some assurances by this childs mother through
a victim impact statement (Court Exhibit S-3) that the child victim has
not been damaged by this assault.
[22] This same mother has made every effort to have the charges against
Mr. Shappa dropped by the investigating authorities. This same
mother remains very critical of the RCMP for questioning the child
victim without her permission. Ms. Issigaitok is anxious to see Mr.
Shappa return to the family home. There is reason to question the
mothers assurances that all is now well with her seven year old.
[23] As the age of a child victim of violence decreases, the difficulty
associated with treating any resulting emotional or psychological harm
from victimization increases. A small childs limited communication
skills and comprehension may limit the therapeutic intervention that is
available to undo any harm caused by physical abuse. Psychotherapy
and other forms of counselling will become increasingly less effective
as the age and sophistication of the victim decreases. The very young
may not be positioned to participate in this process due to their limited
comprehension and communication skills.

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[24] Remedial processes to assist very young victims are further

complicated for unilingual Inuk children who must participate in the
process through an interpreter. The special expertise necessary to
address the victimization of very young Inuit is not available in
Inuktitut.
[25] Many of Nunavuts remote arctic communities lack the therapeutic
expertise needed to address the special needs of the child victim of
serious violence. Effective therapeutic intervention will likely require
removal of the child to a distant centre at considerable public
expense.
A.i.3. The use of a loaded firearm
[26] A loaded firearm when used as a weapon has the ability to kill, maim,
or otherwise cause grievous bodily harm to its victim. This is a serious
escalation of violence that has potentially deadly consequences.
A.i.4. The threat to discharge the firearm
[27] Nothing is better calculated to cause terror than the pressing of a
loaded high powered rifle into the head of another human being while
threating to shoot.
[28] Mr. Shappa was initially charged with uttering a threat to the child
arising from these same facts. This charge was properly withdrawn
because it was legally superfluous. An assault by definition includes
any threatened application of force by someone having an immediate
ability to carry out the threat (section 265(1)(b) of the Criminal Code).
The threat to shoot in the circumstances presented here thus forms
part of the assault itself.
A.i.5. Mr. Shappas high state of intoxication
[29] Mr. Shappas advanced state of intoxication in the presence of his
child is itself aggravating. This is a breach of parental duty. Parents
who choose to disable themselves from properly caring for children
through excessive use of alcohol cannot claim drunkenness in any
way mitigates the crimes they subsequently commit against these
same children.
[30] The parent is under a legal duty at all times and under all
circumstances to protect their child from harm. Exposure of children
to drunk and disorderly behavior damages children. This is so

11

particularly where this behavior emanates from someone whom the

child loves and trusts.
[31] The child learns from its home environment. The childs behavior in
life will be shaped by his or her life experiences within the home. A
heavily intoxicated parent is a poor role model for any child.
A.i.6. The breach of trust
[32] Section 718.2(a)(iii) of the Criminal Code deems any abuse of trust or
authority to be an aggravating circumstance. This section of the
Criminal Code merely codifies common law jurisprudence that
extends back in time for at least two centuries. This too is simply a
proposition of common sense.
[33] This court had recent occasion to comment on the breach of trust
implicit in parent-child violence. In the case of R v S.N., 2015 NUCJ
25, the Court said this:
[10] Raising a child as a parent or step-parent gives rise to significant
legal responsibilities. Together, the parents share responsibility for the
childs wellbeing. The child cannot support itself so there is a parental
duty to provide the necessities of life. The child is vulnerable so there
is a parental duty to protect. A family is there to provide comfort and
safety to those within it. It is there to be a safe haven or refuge from
the storms of life. It cannot become a place of fear or torment.
[11] Love, respect, trust, and duty - these are the four pillars upon
which the institution of the family is built and maintained. These
values define who we are and what we want to be, as a family, as a
society, and as a people. It is the unconditional application of these
parental responsibilities that make a parent a parent, and a family a
family. Parental responsibilities are integral to any parent-child
relationship.
[12] The trust relationship between parent and child underlies
important social values that the law seeks to protect. These are social
values that are worth protecting. Any type of violence that is
committed by a parent against a child damages the core social values
that are the underpinnings of the family unit violence destroys the
trust that is integral to a nurturing relationship. It is a denial of
everything that a parent-child relationship is there to provide. This is
not only a breach of duty, it is an act of betrayal. The emotional harm
caused by such a breach of trust cuts deep.

12

[34] In the circumstances of this offence, the breach of trust substantially

elevates Mr. Shappas moral culpability.
[35] The many aggravating offence characteristics associated with this
offence combine with section 718.01 of the Criminal Code to require
the sentencing court to put primary emphasis on the sentencing
objectives of deterrence and denunciation, not rehabilitation.
(ii). The careless storage offence
A.ii.1. The presence of children within the home
[36] There were four young children living in Mr. Shappas home. Children
are naturally inquisitive. All firearms and ammunition within the home
were readily accessible to these children. These firearms were left
insecure with no trigger locks of any kind. There was no attempt to
physically separate ammunition from the firearms that used this
ammunition. There was no attempt to secure the firearms in locked
rooms, gun cases, or gun cabinets. No fewer than six firearms found
within the home were left in a loaded condition. Twenty five rounds of
Winchester 12-gauge ammunition (PE043) were found scattered on
the floor of the residence. Five rounds of Winchester .375 caliber
ammunition (PE003) are found on a couch. Nine rounds of
Winchester .375 caliber ammunition are found on a bed (PE004). This
was an accident waiting to happen.
A.ii.2. The number of firearms involved
[37] There was not just one firearm involved in this offence, there were
many. A total of eleven firearms were seized by the RCMP from
inside the residence. All of these firearms were found to be
unsecured.
(iii). The breach of probation
[38] A fundamental condition of this probation order required Mr. Shappa
to stay out of further trouble with the law. He had a special obligation
to keep the peace as a consequence of a sentence imposed for an
earlier related offence of assaulting his spouse. The Court infers that
this earlier offence was also alcohol related. This is why Mr. Shappa
was required to take alcohol or addictions counselling as a condition
of his probation order. The commission of a further assault while
under sentence for a related offence is seriously aggravating.

13

B. Mitigating offence characteristics

(i) .The assault with a weapon
[39] There is no evidence to suggest that this offence was in any way
provoked by the child victim.
[40] This was not a case of excessive use of force being applied in selfdefence, nor was this a case of excessive force being used in the
context of parent-child discipline. No misbehavior by a child can ever
be advanced as a justification for the threatened use of deadly force.
[41] Mr. Shappas heavy state of intoxication may explain in part why this
offence occurred, but this is in no way mitigating for all the reasons
advanced earlier.
[42] There are no mitigating offence characteristics in this case.
(ii). The careless storage offence
[43] Mr. Shappa is an experienced hunter. He knew that special care
needed to be taken with respect to the storage of his many firearms.
Through hunting, Mr. Shappa was intimately familiar with the
awesome power and lethality of these rifles.
[44] There is nothing in evidence to suggest that some unforeseen exigent
circumstances arose quickly to prevent Mr. Shappa from discharging
his legal duty to ensure that these firearms were stored safely. The
Court infers from the location and general conditions of storage that
Mr. Shappas careless storage of firearms was simply the product of
habit.
[45] There are no mitigating offence related circumstances present here.
(iii). The breach of probation
[46] After regularly meeting with his probation officer for many months,
there can be no doubt that Mr. Shappa well understood his legal
obligations while on probation.

14

[47] The Court has been advised by Mr. Shappas Defence counsel that
Mr. Shappa was never directed to take family counselling, anger
management counselling, or addictions counselling by his probation
officer despite there being an express term on his probation order to
do so. It seems that Mr. Shappas employment took priority. He had
no time to attend any form of counselling. Now Mr. Shappa is back
before the court for sentence on another alcohol related offence.
There is yet another victim of Mr. Shappas anger.
[48] The alleged failure of Community Corrections to insist that Mr.
Shappa attend for counselling is not mitigating. Even if the Nunavut
Department of Justice failed to strictly enforce the Courts probation
order, such a failure does not relieve Mr. Shappa of his obligation to
comply with what he was ordered to do. The obligation to attend
counselling was his, not the probation officers. He was the person
who needed treatment. He was the person who stood to benefit from
this help. The fact that he chose not to seek help does not
consequently help him here.
C. Aggravating factors related to the offender
[49] This is not Mr. Shappas first brush with the criminal justice system.
Mr. Shappa has a related criminal record. It is Court Exhibit S-2 in this
proceeding. Of particular note is the entry from 2002 for pointing a
firearm. Mr. Shappa was sentenced conditionally to one year of
custody for this offence. He was also prohibited from using firearms
for a period of two years.
[50] As a consequence of this related conviction, Mr. Shappa cannot claim
to be unaware of the serious legal consequences associated with
pointing firearms at human beings.
D. Mitigating factors related to the offender
(i). The Gladue analysis
[51] The Court is required to factor into its analysis systemic factors that
have led Aboriginal citizens in this country to become marginalized,
disadvantaged, and overrepresented in the criminal justice systems
prisons. The Court has done so in this case.

15

[52] The Nunavut Court of Justice travels to all the communities of

Nunavut. This Court is acutely aware of the systemic disadvantages
caused by prevailing social and economic conditions in Nunavut.
[53] Citizens growing up in Nunavuts communities are all affected, some
more, some less, by conditions of extreme isolation. Employment
opportunities are few. Meaningful opportunities for career
advancement are often non-existent. Many youth have lost, or are
losing touch with their language and culture and with a life on the
land.
[54] All Nunavummiut long for the material comforts and lifestyles depicted
on television; for many citizens of Nunavut, young and old alike, these
benefits remain out of reach. With no means of advancement, many
are faced with a life of poverty. Poverty breeds hopelessness. For
some, drug and alcohol abuse provides relief from this reality and the
hardships associated with it. Anger, frustration, and depression are
usually the bitter by-products of a life and lifestyle dependant upon
alcohol. For many others, suicide becomes a means of escape.
[55] The proportionality principle enshrined in section 718.1 of the Criminal
Code requires the sentence to be proportionate to the seriousness of
the offence and the moral culpability of an offender. This is the only
sentencing principle of the Criminal Code to be described by
Parliament as fundamental to the sentencing process.

16

[56] The analysis from R v Gladue, [1999] SCJ No 19, [1999] 1 SCR 688
(QL), was not intended to displace the application of the
proportionality principle by creating a race-based discount on
sentencing. The Supreme Court of Canada, at paragraph 75 of the R
v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, decision says this:
[75] Section 718.2 (e) does not create a race-based discount on
sentencing. The provision does not ask courts to remedy the
overrepresentation of Aboriginal people in prisons by artificially
reducing incarceration rates. Rather, sentencing judges are required to
pay particular attention to the circumstances of Aboriginal offenders in
order to endeavour to achieve a truly fit and proper sentence in any
particular case. This has been, and continues to be, the fundamental
duty of a sentencing judge. Gladue is entirely consistent with the
requirement that sentencing judges engage in an individualized
assessment of all of the relevant factors and circumstances, including
the status and life experiences, of the person standing before them.
Gladue affirms this requirement and recognizes that, up to this point,
Canadian courts have failed to take into account the unique
circumstances of Aboriginal offenders that bear on the sentencing
process. Section 718.2 (e) is intended to remedy this failure by
directing judges to craft sentences in a manner that is meaningful to
Aboriginal peoples. Neglecting this duty would not be faithful to the
core requirement of the sentencing process.

[57] Where alternative sanctions to imprisonment exist, the effectiveness

of these sanctions in addressing the root causes of crime and their
ability to contribute to long term protection of society must be
considered. In the circumstances of a particular offence and offender,
it may be that the long term protection of the public can be better
achieved by a sanction other than imprisonment or by a combination
of gaol with other community-based sanctions. This is so particularly
where the non-custodial sanction is more meaningful to the Aboriginal
offender and his/her community and more effective in addressing the
special needs and social deficits of an offender.
[58] If a restorative process is to be employed, much work needs to be
done to create a meaningful sentencing plan that will be effective in
addressing an offenders needs. Protection of the public remains an
important sentencing objective in all cases, whether the offender is
Aboriginal or not.

17

[59] However, it is not enough to simply point to an offenders Aboriginal

heritage without any analysis of how this heritage bears on the
sentencing process and the application of the proportionality principle.
More is required. The Gladue analysis requires the Court to consider
how, and to what degree, systemic factors may have affected the
moral culpability or blameworthiness associated with an offenders
criminal behavior. It is in this limited context that systemic factors may
be seen to influence the courts application of the proportionality
principle.
[60] While the prevailing jurisprudence does not require Mr. Shappa to
establish that a causal link exists between his Aboriginal status and
the particular offences for which he is now to be sentenced, some
relevance must still be shown (see R v Popovich, 2013 ABCA 149 at
paragraphs 22-24, 106 WCB (2d) 652).
[61] Mr. Shappa is 39 years of age. He was born and raised in the hamlet
of Arctic Bay where this offence occurred. He was raised in a good
home by loving parents. He is one of five siblings. Mr. Shappas
formative years were not marred by any exposure to heavy drinking
within the home. There is no history of physical or sexual abuse.
[62] Mr. Shappa has achieved a Grade nine education. He is a good
provider to his family. For fifteen years Mr. Shappa has been
employed by the hamlet as a water truck driver. He is a valued
employee. Mr. Shappa will likely be rehired when he is able to return
to work.
[63] Mr. Shappa has been in a common-law relationship with his spouse
Ms. Issigaitok for approximately eighteen years.
[64] Mr. Shappa is an avid hunter. He possesses good on-the-land skills.
He has retained the language of his ancestors and is connected with
his culture.
[65] This Court concludes that there are no specific Gladue factors in this
case that might influence the application of the proportionality
principle of sentencing apart from the usual systemic disadvantages
associated with life in a remote northern community.
[66] Mr. Shappas personal circumstances suggest that he is ordinarily a
hard-working and productive member of his community. This is to his
credit.

18

E. Mitigating factors arising after the commission of the offences

(i). The early guilty pleas
[67] Mr. Shappa has accepted early responsibility for these three offences.
In doing so, he has spared his seven year old son and his spouse the
trauma of having to testify about their experience. Mr. Shappa is
entitled to receive credit in mitigation of sentence for having done so.
(ii). The pre-trial detention
[68] Mr. Shappa has remained in custody since his arrest on these
charges. He was arrested on June 17, 2015. Mr. Shappa chose not to
seek his release. He has been in actual detention for a period of 73
days up to the date of this judgment. Given the difficult conditions of
detention at the Baffin Correctional Centre, Crown and Defence agree
that he should receive credit for this detention at the rate of 1.5 days
per day of actual custody. This amounts to a total credit of 110 days
or fifteen weeks of pre-trial detention credit. This credit must be
factored into the final sentence imposed for these three offences.
F. Jurisdictional considerations
[69] Nunavut leads the country in its per capita rate of victimization of
children up to seventeen years of age. Crimes against children remain
a pressing and persistent problem in all of Nunavuts communities.
This enhances the need to emphasize the sentencing objectives of
deterrence and denunciation when addressing cases involving child
abuse.
[70] Below is a comparative graph showing the per capita rates of child
and youth victims of police-reported family violence in all of the
provinces and territories of Canada as of 20131:

Canadian Centre for Justice Statistics, Family violence in Canada: A statistical profile, 2013,
Juristat, Statistics Canada Catalogue no. 85-002-X, (Ottawa, Statistics Canada, 15 January
2015), online: < http://www.statcan.gc.ca/pub/85-002-x/2014001/article/14114-eng.pdf >.

19

Child and youth victims (0 to 17 years) of

police-reported family violence, by province
and territory, 2013
1600
1400
1200
1000
800
600

Rate per 100,000

400
200
0

IV. CONCLUSION
A. The Crown and Defence positions on sentence
[71] Crown and Defence submissions on sentence remain far apart.
[72] Defence urges the Court to impose a sentence of time served. In the
alternative, it is suggested that the Court simply impose an additional
conditional sentence that would see Mr. Shappa returned to his
community to serve his custody by way of close house arrest. It is
said that Mr. Shappa has learned his lesson and that the short sharp
shock associated with his brief stay in Baffin Correctional Centre is
sufficient to deter him from reoffending. Defence submissions on
sentence seem to urge the Court to give primacy to the sentencing
objective of rehabilitation through a liberal application of the principle
of restraint codified by sections 718.2 (d) and (e) of the Criminal
Code.

20

[73] Defence counsel resists the imposition of any firearms prohibition. It is

said that such an order would re-victimize Mr. Shappas family by
preventing him from providing country food to his family and his
community. In the alternative, if a firearms prohibition order is to be
imposed, Defence urges the Court to give Mr. Shappa an exemption
under section 113 of the Criminal Code. This would allow Mr. Shappa
to access firearms for the purpose of subsistence hunting. Defence
resists an order of forfeiture of any firearm except the firearm used in
the assault on the child. It is said that section 491 of the Criminal
Code does not apply to the many other firearms seized by the police
for being carelessly stored.
[74] The Crown urges the Court to impose a gaol term of six to nine
months for the assault on the child followed by a consecutive
sentence of two to three months gaol for the careless storage offence,
and a further term of 1 month consecutive for the breach of probation.
The global sentence recommended by the Crown is thus in the range
of nine to twelve months of additional custody. The Crown urges the
Court to impose a discretionary firearms prohibition order under
section 110 of the Criminal Code and seeks an order of forfeiture of
all firearms seized by the RCMP.
B. The weight to be assigned to sentence impact on the offenders
family
[75] In making the argument for a sentence of time served, Defence urges
the Court to take into consideration the negative impact that a further
sentence of custody would have on Mr. Shappas family. Prior to his
incarceration on these offences, Mr. Shappa was the sole bread
winner of the family. The family now struggles to make ends meet on
social assistance. All family members, including the child victim, are
now living in relative poverty. There is some suggestion that the
seven year old child victim may feel that he is in some way
responsible for his Dads continued absence and for the familys dire
financial predicament.

21

[76] The sentencing decisions of a court can have a profound financial and
emotional impact on the family of an offender. Courts have struggled
for decades to address the weight to be assigned to this type of
impact. This is of particular concern when sentencing an offender for
serious crimes of domestic violence. It is not uncommon for family
members who are financially or emotionally dependent upon an
offender to plead for leniency so that the offender can quickly return
home. The imposition of gaol terms for crimes of domestic violence
can have the unfortunate effect of further victimizing the family of the
offender.
[77] To give significant weight to a plea for leniency can potentially
undermine or impair the application of other important sentencing
objectives. If a sentencing court focuses exclusively on what the
offenders immediate family needs or wants, persons inclined to
assault other family members may come to believe that they can do
so with relative impunity. Both jurisprudence and statute now require
sentences for domestic violence to focus on deterrence and
denunciation. While some weight must be assigned to the victims
wishes, a sentencing court must not lose sight of the ultimate
objectives of the sentencing process (See R v Brown, 1992 ABCA
132, 13 CR (4th) 346).
C. Sentence calculation
[78] The treatment provisions of Mr. Shappas January probation order
were there to address the root causes of Mr. Shappas offending
behavior. By attempting to treat offending behavior related to
addictions and anger, the court sought to provide a measure of long
term protection to the victim (his spouse) and the family of which she
is a part. This community-based sentence failed to achieve this
objective. This failure was caused in large part by Mr. Shappa who
unfortunately assigned a higher priority to continuing his employment
than to his compliance with the courts directions for treatment.
[79] The issues of anger and alcohol abuse that lie behind the conviction
for assaulting his spouse have yet to be addressed through any form
of counselling or treatment. Mr. Shappas unresolved alcohol abuse
and anger has now claimed his own child as a victim.

22

[80] Mr. Shappa now says that he has learned his lesson and will fully
comply with court ordered conditions of probation. This Court often
hears this type of submission immediately before a sentence is
passed. Over many years and many cases, this Court has learned to
be skeptical of claims of sudden insight and transformation. This
Court has no doubt that Mr. Shappa wants to change, but in the
absence of any programming he remains at some risk to reoffend.
[81] This Court concludes that a conditional sentence in this case would
not adequately protect the community.
[82] In the context of this sentencing, section 718.01 of the Criminal Code
requires this Court to give primacy to the sentencing objectives of
denunciation and deterrence, not rehabilitation. This does not mean
that rehabilitation is unimportant. Mr. Shappas ultimate rehabilitation
remains an important consideration in arriving at a just result.
[83] However, the end result of the sentencing process must not only be
proportionate to the gravity of the offences before the court, but must
also reflect Mr. Shappas overall moral culpability in committing these
offences in the circumstances presented here.
[84] A sentence of time served or a further conditional sentence of custody
would fail to adequately achieve deterrence or denunciation. Nor
would such a result be proportionate to the gravity of the assault and
the high moral culpability associated with Mr. Shappas profound
breach of trust.
[85] The range of custody proposed by the Crown also falls short of the
mark. The proposed sentence range of six to nine months for the
assault is less custody than Mr. Shappa received for his earlier 2002
conviction for pointing a firearm.
[86] The sentence of this Court must absolutely repudiate all forms of
extreme violence on children. An exemplary sentence is called for.

23

[87] The maximum sentence for the assault with a weapon charge where
the Crown elects to proceed summarily is eighteen months gaol. The
Court is limited by the Crown election to the sentence that follows.
[88] For the breach of probation (count 5) Mr. Shappa is sentenced to two
weeks custody. He is credited with two weeks of pre-trial detention for
this offence. In the end result, Mr. Shappa is sentenced to one day of
custody or time served for this offence. Mr. Shappa has no prior
convictions for breaching court process.
[89] For the careless storage offence, Mr. Shappa is sentenced to five
weeks of custody. He is credited with five weeks of pre-trial detention
for this offence. In the end result, he is sentenced to 1 day or time
served for this offence.
[90] For the assault with a weapon on his child, Mr. Shappa is sentenced
to 60 weeks of gaol or fourteen months of custody. He is credited with
the balance of unused pre-trial credit of eight weeks, leaving a
balance of custody to be served of 52 weeks gaol. But for the early
guilty plea and the accompanying remorse, the Court would have
imposed the maximum sentence available for a summary conviction
267(a) offence.
[91] In arriving at this sentence of 60 weeks for this particular offence
committed by this offender, this Court is mindful of the guidance
offered by the Supreme Court of Canada in the case of R v Solowan,
2008 SCC 62, 237 CCC (3d) 129. For a hybrid offence prosecuted
summarily, a judge must determine the sentence within the limits for
that mode of procedure. The worst offender, worst offence principle
no longer constrains the imposition of an otherwise appropriate
maximum sentence.
[92] The Court is prepared to recommend on the warrant of committal that
Mr. Shappa be considered for placement at the Rankin Inlet Healing
Facility. Mr. Shappa will undoubtedly benefit from the type and
intensity of programming available to offenders at this facility. In the
event that Mr. Shappa does well in programming, the Court
recommends that the authorities consider an early release to facilitate
Mr. Shappas resumption of his employment and reintegration back
into his community. Mr. Shappas family would undoubtedly benefit
from his renewed financial support.

24

[93] Following his release from custody, Mr. Shappa will be bound by a
probation order of eighteen months duration with the following
conditions:
1. He is to keep the peace and be of good behavior;
2. He is to report to a probation officer within seven days of
his release from custody and report thereafter as directed
by the probation officer;
3. He is to remain under the supervision of the probation
officer for the full term of eighteen months;
4. He may have such contact with the seven year old victim
as is permitted in advance and in writing by his probation
officer (in consultation with a social worker);
5. He is to have no contact with his spouse or children if he
is under the influence of intoxicants to any degree;
6. He is not to go within 50 metres of the family home if he
is under the influence of intoxicants to any degree;
7. He is to take and successfully complete
alcohol/addictions counselling, anger management
counselling, and parenting skills counselling as directed by
his probation officer; and,
8. Mr. Shappa is directed to attend court for a review of his
performance on this probation order within six months of
his release from custody. The date for this review is to be
set by Mr. Shappas probation officer.
C. Ancillary orders
(i). The firearms prohibition order
[94] Mr. Shappa has now been convicted on two separate occasions of
offences that involve the pointing of a firearm at a human being.
There will not be a third. Mr. Shappas conduct in deliberately pointing
the barrel of a loaded high powered hunting rifle at his sons head is a
repudiation of the care and responsibility that any experienced hunter
knows is associated with firearms use.

25

[95] The right to possess and use weapons to hunt is a right that inures to
every beneficiary of the Nunavut Land Claims Agreement2. This is not
an absolute right. With this right comes a heavy legal obligation to use
the weapons of the hunt responsibly. The rifle is a tool in the hands of
an experienced hunter. It is not there to use against other human
beings or their property. Absent truly exceptional circumstances,
those who use a firearm to commit serious crimes of violence against
other human beings should forfeit their right to possess and use a rifle
for all purposes.
[96] A hunter who relies on subsistence hunting for food and clothing
should take particular care to ensure that his use of the tools of his
trade does not endanger others. The hunter may lose his right to
pursue such a livelihood if he or she is irresponsible.
[97] Given the importance of hunting to Inuit culture, and the widespread
use of unregulated long guns in Nunavut, it is particularly important in
sentencing for serious firearms offences, to emphasize deterrence
and denunciation. There is little deterrence or denunciation in a
sentencing process that allows an offender to regain his possession
and use of firearms after demonstrating irresponsible behavior that
endangers the lives of others.
[98] Mr. Shappa has been gainfully employed by the hamlet for many
years. He does not depend upon subsistence hunting for his
livelihood.
[99] The maximum period of prohibition available for this summary
conviction offence under section 110 of the Criminal Code is ten
years.
[100] As a consequence of his conviction for the assault, Mr. Shappa is
absolutely prohibited from possessing or using any firearms,
ammunition, cross-bow, restricted weapon, restricted device or
explosives for a period commencing today and ending ten years
after his release from imprisonment.

Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty The Queen in
Right of Canada, 25 May 1993 (Ottawa, ON: Published under the joint authority of the Tungavik
and the Hon T Siddon, Minister of Indian Affairs and Northern Development, 1993) [Nunavut Land
Claims Agreement], online: < http://www.justice.gov.nu.ca/apps/UPLOADS/fck/file/NLCA.pdf >.

26

[101] There will be no exemption permitted under section 113 of the

Criminal Code for subsistence hunting purposes. Mr. Shappa can
assist others in their hunting activities, but he cannot possess or use
firearms in doing so.
(ii). The DNA order
[102] Mr. Shappa is ordered to submit a sample of his DNA for registration
in the national DNA databank. This order is mandatory for primary
designated offences as defined by section 487.04 of the Criminal
Code.
(iii).The victim fine surcharge
[103] Mr. Shappa is ordered to pay a victim fine surcharge of $300.00 for
these three summary conviction offences. This is to be paid within
one year from the date he is released from custody.
(iv). The order for forfeiture
[104] Section 491 of the Criminal Code provides as follows:
(1) Subject to subsection (2), where it is determined by a Court that:
(a) a weapon, an imitation firearm, a prohibited device, any
ammunitionwas used in the commission of an offence and that thing
has been seized and detained.
the thing so seized and detained is forfeited to Her Majesty and shall
be disposed of as the Attorney General directs.
(2) If the Court by which a determination is referred to in subsection
(1) is made is satisfied that the lawful owner of anything that is or may
be forfeited to Her Majesty under subsection (1) was not a party to the
offence and had no reasonable grounds to believe that the thing would
or might be used in the commission of an offence, the Court shall
order that the thing be returned to that lawful owner.

[105] All insecure firearms and ammunition owned by Mr. Shappa and
seized by the RCMP from the residence are ordered to be forfeited
to the Crown. The Court is satisfied that the circumstances in which
these items were stored was careless and they are therefore caught
by section 491(1) of the Criminal Code.

27

[106] The Court is not satisfied that the firearms seized from the shed are
caught by this same section of the Criminal Code. These firearms
were not loaded or stored with their ammunition. One firearm was
secured with a trigger lock. The shed itself was lockable. Mr. Shappa
was already in custody when the RCMP returned to the residence
and found the firearms inside the shed. It is not clear on the
evidence whether the shed had been left unlocked and open by
someone other than Mr. Shappa. One Jeremy Koonoo had recently
retrieved firearms from this same shed.
[107] In relation to the firearms in the shed, there may have been offences
committed by Mr. Shappa under the Storage, Display,
Transportation and Handling of Firearms by Individuals Regulations,
SOR/98/209 [Regulations], but Mr. Shappa was not charged with
this type of offence. The application for forfeiture of the firearms is
brought by virtue of a conviction for careless storage of firearms
under section 86 of the Criminal Code. A persons failure to comply
with the Regulations (e.g. no trigger locks) does not necessarily
mean that a firearm is stored carelessly. More is required.
[108] There is some question on the evidence of who owns the firearms
handed to the police by Jeremy Koonoo from a vehicle (PE013
PE015). One of these firearms was found to be loaded. If the owner
of these firearms is Mr. Shappa, these firearms too are ordered
forfeited. If Mr. Shappa was not the owner, then the lawful owner of
these firearms can advise the Arctic Bay RCMP detachment in
writing within 60 days of their claim to ownership.
[109] In the event that the Arctic Bay RCMP detachment receives written
notice from any person claiming that they qualify under section
491(2) for an exemption from forfeiture, the Court Registry in Iqaluit
is to be advised. This Court will then make a referral to the justice
presiding at the next sittings of the court in Arctic Bay. The claimant
can then attend court for a hearing to determine whether they qualify
for any relief from forfeiture. The RCMP must not move to destroy
any firearm where a claim of ownership is being pressed by any
citizen other than Mr. Shappa.
[110] If no claim of ownership is received within 60 days of this decision,
the Koonoo firearms will be forfeited to the Crown.

28

[111] As a result of the firearms prohibition order, Mr. Shappa can no

longer lawfully own or possess any firearms or ammunition. If Mr.
Shappa owns the firearms in the shed, he must lawfully dispose of
these firearms within 60 days of this decision. Persons who wish to
take ownership of any of Mr. Shappas firearms must attend the
Arctic Bay Detachment and provide written proof that Mr. Shappa
has transferred full ownership of the firearms to them, and that they
have the necessary legal qualifications to possess a firearm.
[112] Any firearms from the shed that are not lawfully disposed of by Mr.
Shappa within this 60 day period are ordered forfeited to the Crown.
A small RCMP detachment cannot be expected to retain a large
number of firearms and ammunition indefinitely.
[113] A copy of this decision is to be sent to the Nunavut Director of Child
and Family Services. The Court recommends that the seven year old
victim of the assault be assessed by a qualified professional to
determine whether this child is in need of any therapeutic
intervention to address his victimization.
[114] An additional copy of this decision is to be sent to the Detachment
Commander of the Arctic Bay RCMP detachment to explain how the
firearms now under seizure are to be dealt with.

Dated at the City of Iqaluit this 28th day of August, 2015

___________________
Justice R. Kilpatrick
Nunavut Court of Justice