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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut

Citation: R. v. Campbell, 2020 NUCJ 28


Date: 20200615
Docket: 08-19-503, 08-20-37, 08-19-553, 08-20-09, 08-19-465
Registry: Iqaluit

Crown: Her Majesty the Queen


-and-

Accused: Robert Campbell

________________________________________________________________________

Before: Madam Justice Charlesworth

Counsel (Crown): E. Baasch


Counsel (Accused): M. Manocchio

Location Heard: Iqaluit, Nunavut


Date Heard: June 15, 2020
Matters: Sentencing for offences under Criminal Code of Canada,
RSC 1985, c C-46, ss. 266, 145(5.1), 267(a), 430(4), and
264.1(1)(a); Cannabis Act, SC 2018, c 16, s. 10(2); and
Controlled Drugs and Substances Act, SC 1996, c 19, s.
4(1)

REASONS FOR JUDGMENT

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


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I. INTRODUCTION

[1] Robert Campbell plead guilty on 18 February 2020 to the following


string of charges all committed in Iqaluit. A Pre-Sentence Report was
ordered and I sentenced him on 15 June 2020. This is my written
decision.

A. Drug offences

[2] On 23 June 2019 last year, Mr. Campbell was found by the police to
be intoxicated and causing a disturbance outside the Storehouse
when they attended in response to a complaint about men fighting.
When he was searched incident to the arrest, the police found 72
grams of marijuana split into three bags. Later at the jail, police found
six tablets of Dilaudin (Hydromorphone) on his person.

[3] He was charged with possessing cannabis for the purpose of selling
it, and possessing a substance included in Schedule 1 of the
Controlled Drugs and Substances Act. He was released on a promise
to appear in court in September 2019.

B. Assault at the Legion

[4] On 7 July 2019 the RCMP were called regarding an assault at the
Legion in the early morning hours. They spoke to Roberto Zanetti,
who was bleeding from his face and the back of his head. Mr. Zanetti
explained that he had words with Robert Campbell, who cut in front of
him in a line. The argument turned heated and the men went outside.
When Mr. Zanetti turned and walked away, he was hit in the back of
the head by Mr. Campbell.

[5] Mr. Campbell was charged with assault and released on an Officer
Undertaking and a promise to appear in court in October 2019.

C. Assault at the Frobisher Inn

[6] The RCMP were called in the early morning on 6 September 2019 by
a security guard at the Frobisher Inn. Two men on the property were
intoxicated and refused to leave. As the security guard, Dido Kabuya
was trying to lead one of the men - Mr. Campbell - out, Campbell
started to fight him and the two men went to the ground. Mr. Campbell
struck Mr. Kabuya in the head, but that did not prevent Mr. Kabuya
from getting both men outside the Inn and calling the police.
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[7] Mr. Campbell was charged with assault and breach of the July 7
Undertaking by not abstaining from the consumption of alcohol. Mr.
Campbell was released, on a Recognizance this time, to attend Court
on all above charges at the end of September.

D. Assault at private residence

[8] On 15 December 2019, the RCMP were called to a residence building


in Iqaluit, where Samson Papatsie and Eva Qappik were punched and
hit by Robert Campbell while smoking outside their home. Apparently,
Mr. Campbell thought they were trying to steal his shoes. Ms. Qappik
was only 16 years old at the time, and she fell when Mr. Campbell hit
her.

[9] Again, Mr. Campbell was charged with assault and released on an
Undertaking, to attend Court on all charges on 18 February 2020. On
this information, he pleaded guilty to one count which included assault
on both victims.

E. Assault in Apex

[10] Finally, on 18 January 2020 at 3am, the RCMP were called to Apex
by Leia Cunningham, with whom Mr. Campbell had a relationship in
the past. She advised that Robert Campbell was intoxicated and
unwanted at her residence. On the way to Apex, the officers were
advised by dispatch that the man, known by the victim to be Robert
Campbell, was pointing a gun at Ms. Cunningham, although she was
“pretty sure” it was not real.

[11] When the RCMP arrived at the address, they saw Ms. Cunningham
running away with no jacket or shoes on, and very distressed. She
had been assaulted, and in fact suffered facial swelling and bruising
for two to three weeks. The RCMP breached the door of the home,
but no one was inside; they found Robert Campbell hiding on the
porch of a nearby house. He came out when called. A pistol grip was
found nearby; no other weapon was found. Mr. Campbell has no
recollection of the incident and can only think he may have had a toy
gun that he had bought for his son.

[12] Upon arrest, Mr. Campbell was very erratic, high-strung and
aggressive. He said to the officers: “I’m going to choke you; can’t wait,
bitch” and when read his right to retain and instruct counsel without
delay, he said, “I’m going to choke you to death.”
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[13] While she was on the initial call to the RCMP, Ms. Cunningham heard
things being smashed in her kitchen: DVD’s, electronics and
glassware were found to be broken and thrown about, and a family
heirloom cabinet was irreparably damaged.

[14] Out of this situation Mr. Campbell was charged and pled guilty to
assault with a weapon on Leia Cunningham, causing mischief to her
property and uttering a threat to cause bodily harm or death to Cst
Charles Faubert. I have read the Victim Impact Statement provided by
Ms. Cunningham in which she outlines the almost debilitating effects
of the assault and mischief on her.

II. SENTENCING

[15] Mr. Campbell was detained in custody on 18 January 2020 and


pleaded guilty to the charges outlined above, all of which were
proceeded with summarily, on 18 February 2020. A pre-sentence
report was requested, and sentencing was adjourned to 7 April 2020.

[16] Unfortunately, that date was cancelled by the COVID-19 pandemic


effect on the operation of Court Services.

[17] Counsel are agreed, taking into consideration all of the facts, the pre-
sentence report and Mr. Campbell’s prior record, that a total sentence
of 15 months in jail is appropriate in these circumstances, apportioned
as follows:

• 10 days concurrent on the two drug charges;


• Four months for the Legion assault;
• One month for the Frobisher Inn assault;
• Four months for the assault on the neighbours; and
• Six months for the serious assault with a weapon on his former
domestic partner.

[18] Following his time in custody, Mr. Campbell will be given a probation
order for 18 months, to help his rehabilitation.
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[19] In assessing this position, I start by considering the fundamental


principle that the sentence must be proportionate to the gravity of the
offence and degree of responsibility of the offender. Over a period of
almost six months, Mr. Campbell assaulted five separate individuals
in four separate locations across Iqaluit, from well-known businesses
to private residences. Each individual offence was relatively low on
the gravity scale, as shown by the summary conviction elections of
the Crown. However, two of the offences are statutorily aggravating
because of the young age of one victim and the domestic nature of
the previous relationship with another victim.

[20] I also consider the purpose of sentencing set out in s. 718 – to impose
just sanctions that have one or more of these objectives:
denunciation, deterrence of the offender and others, separation if
necessary, rehabilitation, reparation and promoting a sense of
responsibility in offenders. Mr. Campbell’s guilty plea and his
prepared statement to me show he is taking responsibility for these
offences and intends to work on rehabilitating himself. The pre-
sentence report outlined some Gladue factors that also need to be
considered in this case, per s. 718.2(e).

[21] In all of the circumstances, I agree with counsel that a sentence of 15


months with probation for a further 18 months fulfills the purposes of
sentencing.

[22] Mr. Campbell has now been in custody for a little over five months
and is entitled to credit for that time. Due to the lack of earned
remission time while in remand I give him credit of 1.5:1 per Criminal
Code s. 719(3.1) and R v Summers, 2014 SCC 26. This brings his
effective time spent in custody to a total of 234 days.

[23] The issue between counsel is whether and how to account for the
effect of COVID-19 on prison conditions and what, if any, sentencing
considerations should be made on account of such conditions. Time
in custody during the current pandemic, depending on public health
and geographic realities, may be harsher time in custody than usual.
This is so not only because authorities have put in place restrictions to
try to keep inmates safe, but also because of the general uncertainty
about the present and future wellbeing of individuals and society. The
Crown agrees that such considerations may be used to reduce an
otherwise appropriate sentence, but argues that in this case, such a
reduction would render this sentence unfit.
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[24] According to information from the Warden, Thomas Langman, in


Baffin Correctional Centre the changes to operations as a result of
COVID-19 are:

• All visits cancelled;


• All programs cancelled, including elder counselling;
• Country food no longer provided;
• Money transfers cancelled; and
• Outdoor time reduced to 2-3 times a week for 30 minutes or so.

[25] These changes were instituted 16 March 2020 and continue to date.
These changes are to protect inmates and staff at the institution,
where public health measures such as social distancing are not
readily available. Protecting the inmates and staff then also protects
the public in Iqaluit. The measures are imposed even though our
Territory continues to be “COVID free” because that status could
change at any time.

[26] I was advised by counsel that the cancellation of visits means Mr.
Campbell cannot see his four children, who live in Iqaluit and would
normally visit him at BCC. As well, Mr. Campbell wishes to take
programs while in custody and to transfer money to his family (tax
refund, and work payments) but cannot do either. The reduction in
outdoor time and lack of country food also impact Mr. Campbell.

[27] I was provided with a number of cases, most from Ontario, regarding
whether and how and when a sentencing judge can take into account
harsh circumstances of incarceration.

[28] This is not a new consideration on sentencing. If incarceration has a


deterrent effect, then surely more harsh incarceration should be
considered to have a stronger deterrent effect.

[29] As Justice Pomerance said in R v Hearns, 2020 ONSC 2365, at para


16,

Punishment is increased [by COVID measures in jails], not only by the


physical risk of contracting the virus, but by the psychological effects
of being in a high-risk environment with little ability to control
exposure.
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[30] In Nunavut where programming is often available for prisoners,


punishment is also increased by loss of programs as well as family
visits. As noted above, Mr. Campbell was not able to have any visits
from his family during remand, nor assistance from Elders or other
counsellors. Mr. Campbell was also subject to the money transfer
restrictions: not only could he not see his four children, but he could
not provide money for them, as I was told he otherwise would have
done. These restrictions will continue going forward.

[31] To quote Justice Pomerance again, this time at para 20, “the impact
of the pandemic is a matter that is extraneous to the pillars of
proportionality – the gravity of the offence and the moral
blameworthiness of the offender.” Our usual calculus regarding
proportionality must adjust to consider the harshness of conditions
now. It must consider that the time Mr. Campbell has yet to spend in
custody will be harsher for an unknown period of time.

[32] As I noted earlier, I have given Mr. Campbell the maximum allowable
amount of credit for his pre-sentence custody: 1.5 days for every 1
day per section 719(3.1) of the Criminal Code. In these
circumstances, I also feel that it is appropriate to reduce Mr.
Campbell’s sentence going forward by 60 days because of the
harsher conditions of his incarceration.

[33] 15 months is 450 days, followed by 18 months of probation. Pre-


sentence custody at a credit of 1.5:1 reduces that sentence by 234
days. With the 60 days by which I have chosen to reduce Mr.
Campbell’s sentence, that leaves 156 days remaining to be served.

[34] There will be a mandatory DNA order and forfeiture of seized items.

Dated at the City of Iqaluit this 15th day of June, 2020

___________________
Justice S. Charlesworth
Nunavut Court of Justice