Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Komak, 2020 NUCJ 12

Date: 20200303
Docket: 21-19-153
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Raymond Komak

________________________________________________________________________

Before: Madam Justice Tulloch

Counsel (Crown): N. Sinclair

Counsel (Accused): P. Connolly

Location Heard: Cambridge Bay, Nunavut

Date Heard: March 2, 2020
Matters: Sentencing for offence under Criminal Code of Canada,
RSC 1985, c C-46, ss. 236(b)

REASONS FOR SENTENCE

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

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I. INTRODUCTION

[1] Yesterday I found Raymond Komak guilty of manslaughter for the

death of Sandy Ekpakohak.

[2] Good afternoon ladies and gentlemen. There is no doubt that these
proceedings have been very difficult for the community of Cambridge
Bay and more particularly for the Ekpakohak family.

[3] I mean no disrespect but I am going to refer to the parties mostly by

their first names. I do this because first names are the ones most
commonly used in the community and I find that often it makes what
is said less complicated and more human for those who are listening.

[4] Nothing I do today will in any way make up for the pain and suffering
that Sandy’s family have gone through as a result of losing someone
they love. My sincere sympathy goes out to each and every one of
you.

[5] Today, I am tasked with imposing a fit and fair sentence in all of the
circumstances of this case and of this offender.

[6] The present and future loss suffered by the family and friends of
Sandy Ekpakohak is both dreadful and significant. That being said, I
cannot and must not use this court as an instrument of revenge or an
instrument of appeasement. The length of any sentence I impose
today is not and cannot attempt to place a value on Sandy’s life.That
value is too vast to measure and nothing I do today can make up for
the tragedy that has taken place.

[7] I am extremely mindful of the seriousness of what has happened at

the hands of the accused and I have carefully considered the
submissions made by both counsel.
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[8] I have also considered the following:

a) The four victim impact statements that were provided yesterday

morning including the heartbreaking oral impact statement
given in court by Mr. Darren Etibloena;
b) The contents of the presentence report that was prepared on
Mr. Komak’s behalf;
c) The various cases submitted by counsel;
d) The criminal record of Raymond Komak; and
e) Mr. Komak’s guilty plea, and sincere remorse.

II. FACTS

[9] I accept the description of the facts as outlined by the Crown and as
agreed to by the Defence. They are contained in an agreed statement
of fact entered as exhibit one in this case. They were also read out by
the Crown prosecutor yesterday in court. Although it may be hard to
revisit those facts yet again, I need to summarize them for the
purpose of this sentencing. The key parts are as follows:

[10] On Jan. 25, 2019, the accused hosted a cribbage game at his home
in Cambridge Bay. Present were his two daughters, Darren Etibloena
(Sandy’s brother), Mr. Etibloena’s son, Janice Komak (Raymond’s
sister) and a friend, Ron Qamukaq.

[11] Some of those present, including Raymond Komak, smoked cannabis

throughout the evening but none were drinking alcohol.

[12] At some point, the accused received a text message from Sandy
Ekpakohak indicating that he was drunk and he wanted to come over
to the accused’s house to drink with him.

[13] Raymond wrote back to say he didn’t want to drink. Raymond was
reluctant to invite Sandy to join the group but in any event, Sandy did
arrive around 10 p.m. with a 60 ounce bottle of vodka. The bottle was
about two-thirds full.

[14] Sandy was intoxicated when he arrived. The group continued to

socialize. Sandy drank and tried throughout the evening to convince
the others, including Raymond, to drink with him. Although Raymond
kept saying no, he was finally convinced by Sandy to have a shot.
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[15] Sandy’s brother Darren saw Sandy getting agitated. Sandy was
aggressive with Darren and with Raymond before Darren left the
house. Darren knows that his brother is always angry when he is
drinking and according to Darren, he is always in a hyper state and
trying to pick a fight.

[16] Darren also indicated that he considers both Raymond and Sandy to
be what he describes as “alpha males” and he has observed that
each of these two men in his words, “always want to be on top”.
Darren said that he has never seen them fight but he knows that they
have fought with each other in the past.

[17] About 11:45, Darren, his son and Ron Qamukaq decided to leave. At
that time Raymond had started to drink vodka with Sandy. Mr.
Qamukaq observed that at the time of their departure, no one was
upset and everyone was laughing and joking around.

[18] Around the time his friends departed, Raymond texted his wife and
asked her permission to drink with Sandy. He also asked her to come
over to the house and pick up their daughters. Raymond’s wife
granted him permission to drink and she arrived at the house
sometime around 1:30 a.m. to remove their two daughters.

[19] When Mrs. Komak arrived she observed Raymond and Sandy sitting
on the couch arguing. There was no physical interaction. She left
them there by themselves.

[20] At about 4:00 a.m. Mrs. Komak went back to the house to check up
on her husband. She was frightened to go there alone so she brought
three of her friends with her.

[21] They entered the house and found Sandy dead on the living room
floor in a pool of blood.

[22] Mrs. Komak located her husband, the accused, asleep on their bed.
She woke him up and he went into the living room and sat beside
Sandy’s body. She left to call the police.

[23] The police arrived around 7:52 a.m. They located Sandy’s body and
also found a bloodstained steak knife on the floor approximately 15
feet from the body and an empty vodka bottle in the kitchen garbage
container.
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[24] An autopsy determined the cause of death to be a single stab wound

to Mr. Ekpakohak’s left, upper back area.

[25] There were no defence injuries noted on Sandy’s body. His blood
alcohol content at the time of his death was more than four times the
legal blood alcohol limit for driving a motor vehicle. Also present in
Sandy’s blood were blood metabolites indicative of recent exposure to
cannabis.

[26] Investigators located the accused in his bedroom, face down on his
bed, deeply asleep. He was very difficult to wake up. The officers
noted that he was very intoxicated. They also noticed the following: a
fresh approximately one inch slight laceration on Raymond’s
forehead, a swollen and black left eye, dried blood around his nostrils
and top lip, possibly a fat lip on the left side of his lower lip and dried
blood on his hands.

[27] He was arrested at 8:59 a.m. He was told he was being investigated
for a possible homicide. Raymond started to cry and said, “What
homicide?” He was provided his 10(b) rights. He was too drunk at that
time to speak to duty counsel but he did so once he was sober.

[28] After Raymond was sober, the police took a cautioned statement. He
said he had been home playing cribbage with his friends when Sandy
arrived with the vodka. Raymond said that Sandy was drunk, loud and
too drunk to play cards.

[29] He told the officers that at one point Sandy was scaring one of the
children so everyone left. Only the two of them remained in the house.

[30] The accused admits taking some shots of vodka with Sandy, who he
knows to be angry when he is drinking. Raymond said he and Sandy
had been fighting and that he blacked out. The accused has no
memory of the stabbing and he could not provide any details
concerning the apparent injuries that he received that night.

[31] By his guilty plea, Raymond Komak is admitting responsibility for the
stab wound that killed Sandy Ekpakohak.

[32] The accused admits that he acted in the heat of passion caused by
Sandy’s sudden, provocative, intoxicated and aggressive behaviour.
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[33] Raymond admits that he is the one who used the knife and lost self-
control during their drunken fight. He is the one that used excessive
force and he admits that in those circumstances he is guilty of
manslaughter.

[34] When giving this statement to the police he asked them to tell Sandy’s
wife Donna that he was sorry.

III. SENTENCING PRINCIPLES—SECTION 718

[35] I have also considered, as I must in every criminal case, the

sentencing provisions contained in s.718 of the Criminal Code with
respect to the objectives of sentencing.

[36] The fundamental purpose of sentencing is to contribute to respect for

the law and the maintenance of a just, peaceful and safe society by
imposing just sanctions that have one or more of the following
objectives: to denounce unlawful conduct, to deter the offender and
other persons from committing offences, to separate offenders from
society, where necessary, to assist in rehabilitating offenders, to
provide reparation for harm done to victims or to the community and
to promote a sense of responsibility in offenders, and an
acknowledgement of the harm done to victims and to the community.

[37] Section 718.1 requires that a sentence must be proportionate to the

gravity of the offence and the degree of responsibility of the offender.

[38] You need only know that Sandy’s life was taken from him that night to
understand the gravity of the offence in this case. Raymond bears a
very high degree of responsibility for that tragic reality.

[39] Section 718.2(a) of the Code instructs me that any sentence I impose
should be increased or reduced to account for any relevant
aggravating or mitigating circumstances relating to the offence or to
the offender.

IV. AGGRAVATING CIRCUMSTANCES

[40] The aggravating things in this case are:

[41] First and foremost, Raymond chose to drink that night with his friend
Sandy. As a result of his past criminal behaviour, Raymond knew that
consuming alcohol might get him into serious trouble.
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[42] It is clear from the facts agreed upon that both Sandy and Raymond
were arguing and after everyone else left they fought. There is no
other reasonable explanation for the injuries that Raymond had when
he was arrested the following morning.

[43] It is also clear from the facts agreed upon that Sandy was extremely
drunk which made him particularly vulnerable. Raymond was also
very drunk…so drunk that he doesn’t remember what actually
happened.

[44] It is Raymond who chose to use a weapon, a steak knife. He used

that knife with such force as to cause Sandy’s death.

[45] It is also aggravating that Raymond comes before the court with a
criminal record.

[46] That record aligns with the contents of the presentence report. I have
reviewed it carefully.

[47] Raymond began coming before the court in 1990 as a youth. In the
next two years as a youth, he was convicted of eight charges. He then
continues with his criminal behaviour as an adult and amasses by my
count 19 offences. All of these offences are breaches of court orders
and property offences. Starting in June of 2000 he starts committing
violent offences. There are 11 convictions that would fall into this
category including seven assaults together with threatening and
obstructing police. In September of 2012 Raymond was convicted of
uttering threats. That is his last conviction prior to yesterday.

[48] The presentence report attributes his lack of charges after 2012 with
his becoming a father and his decision to stay away from the
consumption of alcohol.

[49] As Defence counsel submitted although the criminal record is

aggravating, it also shows an ability to understand his demons and to
make positive changes.

V. MITIGATING CIRCUMSTANCES

[50] Next I must look at the mitigating circumstances, the good things that
can be said in support of Raymond.
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[51] The most important mitigating circumstance in this case is Raymond’s

early guilty plea. By pleading guilty and admitting responsibility,
Raymond has saved the court, the family and those present that
fateful night from the further agony of having to relive the events. He
has eliminated the need for a trial and his expression of remorse has
been evident throughout these proceedings.

[52] Raymond’s plea of guilt, his immediate and continued apologies to

Donna and her family are a reflection of his own personal agony for
what he has done. When interviewed for the presentence report
Raymond talked about the fact that he will live with the guilt of
Sandy’s death for the rest of his life.

[53] Even though Raymond does not remember what happened that night
he has taken full responsibility for Sandy’s death.

[54] He has done this in spite of a number of viable trial issues.

[55] An admission of guilt is always the first step to rehabilitation and the
most important step in healing.

[56] It is to his credit that Raymond has been a model prisoner for the past
year while in custody. It is a good thing that he has taken advantage
of a number of programs while being in jail. According to the
presentence report, Raymond has also participated in counselling
while in custody.

[57] He has completed four programs while incarcerated at Makigarviak in

Iqaluit. On March 14 of last year, Raymond received a certificate of
completion for his attendance and contribution to the Substance
Abuse Program at Baffin Correctional Centre.

[58] Raymond took and passed a course in standard first aid and the
ability to perform CPR.

[59] He passed the Trade Entrance Examination and in November he

successfully completed the Alternatives to Violence Program.

[60] It is a good thing that during his time in jail Raymond was not idle. It is
good that he took advantage of whatever programs were available to
him.
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[61] My decision today cannot be solely based on the offence. I am

obligated to also consider the background of every offender who
comes before me.

[62] With respect to this case, I am instructed by section 718.2(e), and by

the SCC decisions in R v Gladue, [1999] 1 SCR 688 and R v Ipeelee,
2012 SCC 13 to consider the unique systemic or background factors
which may have played a part in bringing Raymond before the court.
These factors may bear on the culpability of the offender to the extent
that they shed light on his level of moral blameworthiness.

[63] Raymond is 45 years old. He is a husband and a father of three.

[64] The presentence report talks about the fact that Raymond suffered
through a very difficult childhood. His parents were alcoholics who
often chose excessive drinking over the welfare and safety of their
son. There were times when Raymond had to actually sleep outside
in the cold. During the period of time when Darren was committing
property offences, he was suffering from a lack of supervision and the
inability to count on three meals a day and a warm bed to sleep in. He
was banished from school in grade eight because he missed too
many days.

[65] It is not surprising that Raymond then spent a considerable amount of

time in the criminal justice system struggling with his own abuse of
alcohol.

[66] In 2005 he completed his grade ten at Arctic College showing an

initiative to improve his life.

[67] The information I have before me is that Raymond turned his life
around when he became a father and he stopped drinking for the
most part. This meant that he also stopped getting into trouble.

[68] None of this makes up for the fact that Raymond took Sandy’s life and
forever changed the lives of his 12 children, his grandchildren, his
wife, his in-laws, his other relatives and his friends.

[69] Although rehabilitation is always important, this is a case where the

primary goal of sentencing is deterrence and denunciation.
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[70] You have heard that the offence of manslaughter has a very broad
range of sentencing. I therefore have an obligation to consider the
principle of parity. This means that I am instructed that a sentence
should be similar to sentences imposed on similar offenders for
similar offences committed in similar circumstances.

[71] I have said many times in this jurisdiction that sentencing is always
unique to the particular case and the particular offender before me.
No two cases are identical.

[72] That being said, counsel have provided me with a number of cases
which they feel might assist me in crafting a fit and fair sentence
within the broad range of sentencing options that are available in
cases like this one.

[73] I am thankful for the decisions provided as they are helpful in a

number of ways but of course, none of them are directly on point with
the facts in this case and the background of this accused.

[74] Sentencing is the most difficult job of any judge. It is a balancing

exercise which must focus on the specific circumstances of the
offence and the offender.

[75] In the early morning hours of January 26 of last year, two friends
chose to drink, argue and fight until one of them took the life of the
other. The next morning two families and countless friends on both
sides woke up to a reality that included tremendous loss, pain and
guilt.

[76] Darren’s courage to come forward and represent his family by

speaking in court yesterday was heart wrenching. He did not hold
back. He spoke with conviction and eloquence. He spoke to the court
and he spoke directly to Raymond.

[77] Darren’s deep loss, his overwhelming guilt, his love for both his
brother and for the accused and his hope for the future of both his
own family and Raymond’s family filled the courtroom. As Darren
poured out what was in his heart Raymond cried. Nothing I can say
will have more of an impact on Raymond than what Darren told him
yesterday.
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[78] The unique thing about what Darren said involves the fact that he is
deeply connected to both families—to Sandy’s family and to
Raymond’s family. He told us that both Sandy and Raymond were his
“go tos”, his close friends. He obviously admired both men who were
prominent in his life.

[79] He said a number of times that he cries inside every day. He misses
his brother deeply. He talked about the inevitable loss of culture for
Sandy’s children and grandchildren. Darren talked about the reality of
a future without his brother and the inability to change history.

[80] Darren talked in the presentence report and in his testimony

yesterday about the very hard toll that alcohol has had on his family
and also on Raymond’s family.

[81] Darren told Raymond he needed to change for the sake of his own
children. He reminded him in no uncertain terms that he has that
chance while his brother Sandy and Sandy’s family do not.

[82] It was powerful, passionate and very appropriate. I am extremely

thankful for what he said.

[83] Darren’s overall goal aligns with this court’s goal. He wants
reconciliation at some point in the future for both families. He has
given everyone a sense of hope for the future. Forgiveness is not
possible at this time but perhaps with the passage of time and with
Raymond’s hard work at restoring some semblance of trust, it can
happen down the road.

[84] This court is thankful for Darren’s understanding that making the best
out of this terrible tragedy is necessary for overall healing.

[85] Yesterday we also heard from Raymond who sat in front of everyone
and apologized over and over again. He told us that every day he
thinks about what he has done. He spoke directly to Sandy’s family.
He said “I hope in time you can forgive me but if you can not do so, it
is understandable.”
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VI. SENTENCE

[86] If I were to send Raymond to the penitentiary in the south for a long
period of time, it would not bring Sandy back but if my sentence
balances the need for reconciliation and healing, these two families
might have a chance to move forward—not immediately but at some
point down the road.

[87] That is what this court hopes for the most.

[88] In conclusion, taking into account all of the things I have just talked
about, I am convinced that any sentence I impose today should build
on the work that Raymond has already done while in custody. I am
convinced that allowing him to remain in Nunavut for the balance of
his sentence is the right decision in all the circumstances.

[89] By imposing a sentence, minus pretrial custody, in the territorial

range, I am able to impose a long period of probation which hopefully
will help Raymond be the kind of person Darren was talking about.

[90] Therefore the sentence is as follows:

[91] Three and one half years in jail minus pretrial custody to be followed
by three years of probation.

[92] To be clear that amounts to a total of 42 months or by my calculation,

rounding off every month to be 30 days, a total of 1260 days in jail.

[93] I am told that Raymond has now spent 403 days of pretrial custody.
He is entitled to what is called enhanced credit of one and one half
days for every day he has been in jail on what is called remand.

[94] I am therefore going to credit Raymond Komak with 605 days, which
means that he will need to spend another 655 days in custody.

[95] That jail sentence will be followed by three years’ probation with the
mandatory conditions and with the followed added conditions:

a) You must report to your probation officer within two days of

your release from custody and thereafter as directed;
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b) You must have no contact directly or indirectly with Donna

Ekpakohak except with Donna’s written consent through
consultation with the RCMP;

c) You must participate in counselling as directed by your

probation officer including but not limited to, counselling with
elders and family counselling through programs available at the
Wellness Centre here in Cambridge Bay;

d) For the first year, you must report to the mental health nurse in
Cambridge Bay at least once a month. This is so that you might
receive counselling focused on your mental health; and

e) You will not possess or consume any alcohol. If you need

professional help to avoid alcohol, you must ask for it Mr.
Komak. If you breach this term, I have no doubt that you will
find yourself before the court on a breach or you might even
find yourself in further trouble.

[96] There are also a number of mandatory orders that I must impose
today.

a) You must by law provide a sample of your DNA for the purpose
of the national DNA data bank;

b) Pursuant to section 109 of the Criminal Code, you must be

prohibited from possessing any firearm or ammunition for a
period of ten years. I understand fully that you are a skilled
hunter and being on the land is a very important tool for healing.
I am therefore going to recommend that you receive an
exemption under section 113 of the code for sustenance
hunting. I must warn you Raymond that it is not automatic. You
must convince the authorities that it is appropriate in the
circumstances for them to grant you that exemption;

c) I am required to consider the Victim of Crime Surcharge. It is to

be waived due to financial hardship. At this point in your journey
it is much more important to use any funds you make while in
custody toward the support of your family.

[97] Is there anything I have forgotten Mr. Sinclair? No, your honour.

[98] Anything Mr. Connolly? Nothing, your honour.

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[99] Raymond: remember what Darren had to say yesterday.

[100] He told you that it is time to change. He told you that your children
will need you. Remember that Sandy’s twelve children no long have
the opportunity of looking up to their father. He is gone from their
lives. You have a very heavy responsibility when you get out of jail
and are returned to the community. It will be a long and difficult
journey. You will have to be in control of your rehabilitation. As
Darren said you must step up for your family’s sake.

[101] In conclusion, I am very mindful of the fact that Sandy’s family are in
great need. I am reminded that there are counselling services
available in this community and my hope is that you can also benefit
from the programs provided. My wish for all of you is to get help and
take counselling if you need to do so. Healing is a very long process
for everyone!

[102] We will now close court.

Dated at the Hamlet of Cambridge Bay this 3rd day of March, 2020

___________________
Justice B. Tulloch
Nunavut Court of Justice