Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Koonoo, 2018 NUCJ 38

Date: 20181221
Docket: 11-17-128
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Lila Koonoo

________________________________________________________________________

Before: The Honourable Madam Justice Susan Cooper

Counsel (Crown): Sarah Bailey

Counsel (Accused): Ilan Nueman

Location Heard: Iqaluit, Nunavut

Date Heard: December 21, 2018
Matters: Sentence for guilty plea to Criminal Code, RSC 1985, c C-
46, s. 255(3).

REASONS FOR JUDGMENT

(Delivered Orally)
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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. Letters have been assigned at random.
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I. INTRODUCTION

[1] Ms. Lila Koonoo has pleaded guilty to impaired driving causing death
contrary to Criminal Code, RSC 1985, c C-46, s. 255(3) [Criminal
Code]. She is in court today to be sentenced.

II. FACTS

[2] On June 30, 2017, at about 6:00 o’clock in the evening, Lila Koonoo
began drinking with two of her friends. The evening started off with a
bad decision, as they chose to drink in Lila’s truck.

[3] At some point Lila and one of people she was drinking with, J.S.,
drove to a residence and picked up R.I., M.A., and their baby. R.I.
became the designated driver.

[4] Lila and J.S. continued to drink as the group drove around the
community of Pond Inlet in Lila’s truck. Although R.I. was the
designated driver, Lila tried several times to make her way in to the
driver’s seat or to obtain the keys to the truck. Each time R.I. was
able to prevent her. The people in the truck expressed to Lila their
concern about having her drive.

[5] At some point the plan was to drop Lila and J.S. off at home, but then
the decision was made to drive around some more so that the two of
them could sober up. R.I. drove to his residence to pick up diapers
and milk for the baby.

[6] R.I. and M.A. took their baby with them and went in to their house to
get the supplies needed. R.I. had the truck keys with him. When they
returned to the truck, Lila had made her way into the driver’s seat.

[7] R.I. was concerned as Lila looked “burnt out,” and he was unsure as
to her state of sobriety. He hesitated in giving her the keys to the
truck. J.S. told R.I. that he trusted Lila and M.A. thought that Lila
looked okay to drive. R.I. relented and passed the truck keys to Lila
and got in the vehicle with M.A. and their baby.

[8] The incident occurred just shortly after midnight. Lila had been
drinking for about six hours. She and J.S. had been pouring liquor
from two two-litre bottles into mickey bottles and drinking from the
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mickey bottle. Lila had drank at least one mickey bottle of hard liquor.
There is no doubt that her ability to drive was impaired by the alcohol.

[9] Lila started driving at a speed which all of the passengers thought
was too fast for the road conditions. She was told to slow down. M.A.
saw Lila’s head start to droop down and M.A. thought that Lila was
passing out.

[10] Lila was driving down a hill. On a curve at the bottom of the hill, the
truck drifted off the road and hit a parked car. That car hit another
parked car. Linda Milton was between those parked cars. She got
pinned between the two vehicles.

[11] Lila’s truck was stuck. Lila tried to back the truck up and in doing so
hit the steps of a house. At this point, R.I. took the keys out of the
ignition.

[12] None of the people in Lila’s truck were injured.

[13] Linda Milton was unconscious and injured. CPR was performed on
her. She died of her injuries within the hour.

III. POSITIONS OF THE PARTIES

[14] The Crown seeks a sentence of four years in custody. They also
seek a five year driving prohibition commencing on her release from
custody.

[15] The Defence seeks a sentence of less than two years in custody.

IV. VICTIM IMPACT STATEMENTS

[16] Linda Milton was just 43 years old when she died. She was the
mother of three young children, a long time teacher at the elementary
school, a volleyball coach, and active in her church. She was an
important and loved person in the lives of many.

[17] Linda’s teenaged daughter describes her mother as the strength in

the family; the person who kept the family traditions alive. She
describes the loss to the children of a mother who supported them,
who encouraged them to be curious about life, to work hard, and who
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they could confide in. The children continue to need their mother, but
it is a need that is no longer met.

[18] Linda’s sister describes the void left in the family unit because of
Linda’s death. The family was coping with grief from other events in
their lives when Linda died so tragically. While dealing with the loss
of her daughter, Linda’s mother took in Linda’s children, providing a
home for three additional children along with the two grandchildren
already living with her. Linda’s two oldest children have relocated to
Ottawa and seem to be doing well, but the youngest child struggles
with anger and trauma, as he witnessed his mother die.

[19] Linda’s friends and co-workers described the impact of the loss of a
loved and respected community member and colleague.

[20] Nothing that this Court can do will alleviate the impact of Linda’s
death.

[21] The Court expresses its condolences to Linda’s family and friends
and hope that they will be comforted by their fond memories of Linda.

V. PERSONAL CIRCUMSTANCES

[22] The Court has the benefit of a comprehensive pre-sentence report

and medical records,

[23] Lila Koonoo is just 22 years old. She was 20 at the time of the
offence.

[24] Lila was raised by her biological parents.

[25] She has some happy memories from very young childhood.
However, there was violence and substance abuse in the home,
largely by her father, but there was a period of time when her mother
also drank heavily.

[26] Lila’s parents separated when she was about 12 years old, following
an incident that saw police involvement and her father going to jail.

[27] This is around the time Lila started drinking.

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[28] Lila has seven younger siblings. She was the oldest child in the home
and took on care giving for her younger siblings at an early age, even
though she was not much older than them. The home was crowded
and often there was not enough food. Lila’s aunt has described
instances of Lila declining to eat so as to ensure her younger siblings
could eat. One Christmas, when Lila realized her mother was not
going to get presents for the children, Lila used her Employment
Insurance (EI) money to buy presents for them, to ensure they had
something to open on Christmas morning.

[29] Her aunt describes Lila as never having had a childhood.

[30] It is clear that Lila feels the responsibility for her younger siblings is
hers, even as she has been going through the court process. The
pre-sentence report speaks of Lila feeling she has to start earning
money as her mother is no longer working and Lila feels an obligation
to financially support the family.

[31] Lila has a strained relationship with her mother. They manage to “get
along” but it is not a close relationship; her mother is not someone Lila
feels she can confide in or who she feels supports her.

[32] Lila graduated grade 12 and attended Nunavut Sivuniksavut for a few
months. There was some pressure from her mother to return,
although it also appears that Lila was not adjusting well to the
program’s academic pressures.

[33] Up until the offence, Lila was active in her community, attending
gatherings and helping out.

[34] Friends describe her as active and happy before the offence. They
say that she is very good with children, is artistic, and a good baker.

[35] Lila had a good work history. She has worked as a cashier, as an
Assistant Municipal Technical Officer for the Government of Nunavut,
and as a substitute teacher and student support assistant in the
schools. She is keen to work and seems to be a hard worker.

[36] Since the offence, Lila has been withdrawn and reclusive. Being in
Pond Inlet is difficult for her because she is ashamed of herself.
Obviously it is difficult for both Lila and the victim’s family and friends
if they cross paths in the community.
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[37] Lila’s remorse is deep and real. Regardless of the sentence imposed
by this court, it is clear that the real punishment for Lila will be living
with what she has done. She feels guilty for still being alive and feels
that she has no right to live after what happened. She has been
diagnosed with depression, anxiety, and Post-Traumatic Stress
Disorder. She has been harming herself by cutting, sometimes to the
point of requiring stitches, has frequent thoughts of suicide, and has
attempted suicide three times.

[38] In January of 2018, she tried to kill herself by overdosing with her
prescription medication. She was medevaced to Iqaluit and after a
period of stabilization, she returned to Pond Inlet, although she
continued to be under the care of the Department of Health, Mental
Health division (“Mental Health”). In March of 2018, she tried to hang
herself. She was again medevaced to Iqaluit and spent three months
in hospital. Upon her release from hospital, she moved to the
boarding home as she continued to be under the care of Mental
Health. It appears there was a further attempt to overdose in June of
2018, while Lila was back in Pond Inlet for some reason.

[39] At the time of sentencing submissions, Lila was still under the care of
mental health professionals. It is clear that she will require ongoing,
extensive counselling and therapy to address issues related to her
past, and with coming to terms with the fact that she is responsible for
the death of another person.

[40] Unfortunately, Lila continues to struggle with alcohol. The medical

reports indicate that as recently as this fall she was sometimes
drinking to the point of blacking out. She knows she has to deal with
her alcohol issues and is willing to do so, but her mental health is so
precarious she is unable to attend a residential treatment program.

VI. ANALYSIS

A. Law

[41] The Criminal Code provides:

s. 253(1) Every one commits an offence who operates a motor

vehicle…(a) while the person’s ability to operate the vehicle…is
impaired by alcohol or a drug.
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s. 254 (3) Every one who commits an offence under paragraph

253(a) and causes the death of another person as a result is guilty of
an indictable offence and liable to imprisonment for life.

[42] The mandatory minimum penalty would be that proscribed for an

offence pursuant to s.253(a), that being a fine of $1000 and a one
year driving prohibition.

B. Principles of Sentencing for Impaired Driving

[43] The overriding principle of sentencing is found in s. 718.1 of the

Criminal Code, which provides that a sentence must be proportionate
to the gravity of the offence and the degree of responsibility of the
offender.

[44] The jurisprudence speaks of the increase in public education and

awareness of the dangers of drinking and driving over the last 20-30
years. Police agencies, governments, private businesses, and others
have made concerted efforts to increase awareness of the dangers of
drinking and driving. No longer is anyone able to say that they are
not aware of the risks they take when they choose to drink and then
drive.

[45] Parliament has also responded, with increases in the mandatory

minimum penalty for impaired driving offences, increases in the
maximum penalty available for sentences for impaired driving causing
bodily harm, and by eliminating the availability of conditional
sentences for impaired driving causing death.

[46] Counsel have provided cases to the Court to assist in determining the
appropriate sentence. It is important to place these cases in the
context of changes in the legislation and the development of the
jurisprudence.

[47] Cases which predate amendments to the Criminal Code that

increased the mandatory minimum sentence for impaired driving
(2008) or the available upper limit for impaired driving causing death
(2001), are not as persuasive as those cases which were decided
more recently.

[48] Further, cases which were decided at a time when a conditional

sentence was an available sentencing option for impaired driving
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causing death (no longer available as of December 2007) must be

considered in that context.

[49] The regime of consistently increasing penalties provided for in the

legislation will have an inflationary effect on the sentences imposed.

[50] Nonetheless, sentencing remains highly individualized. The range of

sentences imposed for impaired driving causing death are varied,
reflecting the various circumstances of both the offence and the
offender that come before the courts.

[51] The recent decision of the Supreme Court of Canada in R v Suter,

2018 SCC 34, [2018] SCJ No 34, confirmed that the range of
sentences for these offences is from a low penitentiary sentence of
two-to-three years to a more substantial penitentiary sentence of
eight-to-ten years. The particular circumstances of the offence and
the offender will place the appropriate sentence in the range and may,
on occasion, be such that the appropriate sentence falls outside of the
range.

[52] The consistent theme in all of the jurisprudence on sentences for

impaired driving causing death is that deterrence and denunciation
are paramount sentencing principles (R v Lacasse, 2015 SCC 64,
[2015] 3 SCR 1089 [Lacasse]).

C. Application of sentencing principles

[53] No one commences an evening of drinking with the intention of

getting behind the wheel of a car and killing someone. Many people
who are otherwise law abiding can be reckless and exercise poor
judgment when they are drinking. It is for this reason that the court
must impose sentences that ensure people act responsible prior to
drinking and put in place a plan that ensures they do not drive.

[54] The sentencing principle of proportionality requires that the court

balance the gravity of the offence and the moral blameworthiness of
the offender.

[55] Clearly, this is a very grave, serious matter. A life was lost.

[56] In my view, there are several factors that increase Lila’s moral
blameworthiness.
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[57] Firstly, when she was still sober and started drinking, she chose to do
so in her vehicle. At this point in time her judgment was not yet
impaired by alcohol. Her thought process would have been clear. It
is at this point that she should have taken the steps necessary to
ensure that she did not find herself behind the wheel of her truck.
This is accomplished by giving the vehicle keys to someone or taking
the truck somewhere else prior to drinking. Not only did she fail to
take these precautions, she started drinking in circumstances which
inevitably put her in violation of the law, by having her in care and
control of the vehicle. This substantially increased the likelihood that
she would put the vehicle in motion while impaired and place herself
and others at risk.

[58] Secondly, despite having, at some point, arranged for a sober

designated driver, which suggests she was cognizant of the inherent
risks of drinking and driving, Lila was nonetheless persistent in her
attempts to place herself once again in control of the vehicle.

D. Aggravating Factors

[59] There are also a number of aggravating factors in the circumstances

of the offence.

[60] The manner of driving is an aggravating factor. Lila was speeding

prior to collision. When she tried to take over the driving the
passengers expressed their concern to her, yet she ignored them and
was persistent in her attempts to drive.

(i). Local Circumstances

[61] The Crown relies upon Lacasse for the proposition that a judge may
take judicial notice of local circumstances in fashioning an appropriate
sentence. Lacasse stands for the proposition that the court can take
notice of the prevalence of a particular type of offence in a region in
determining the appropriate sentence.

[62] The approach the Crown urges the court to take is somewhat different
than that in Lacasse. The Crown submits that alcohol is a significant
contributing factor in most offences in Nunavut and that the court
should take that in to consideration when determining the appropriate
sentence.
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[63] I agree that most of the offences that come before the court can be
described as alcohol related. However, the mischief that the court
must concern itself with is the commission of criminal offences, not
the choice to consume alcohol.

[64] Sentencing proceedings in which the court will consider the

prevalence of a certain type of behaviour in the jurisdiction and
impose sentences in an effort to discourage that behaviour are
instances in which the behaviour being deterred is criminal.

[65] I acknowledge that the court must understand and be responsive to

both the social context in which it works and to changing social
norms. However, the court must also be careful to respect its
boundaries and not engage in social engineering which is beyond its
mandate.

[66] It is not for this court to impose sentences that are designed to
discourage or encourage the consumption of alcohol. It is for this
court to impose sentences that deter crime.

[67] Further, I struggle with the Crown’s submission, as it is akin to asking

the court to find that the consumption of alcohol is an aggravating
factor. The consumption of alcohol is an essential element of the
offence. It cannot be both an essential element of the offence and an
aggravating factor.

E. Mitigating Factors

[68] I must also take in to consideration Lila’s circumstances as an

Indigenous offender. These circumstances have been discussed
earlier. Clearly Lila has experienced significant challenges in her
young life and continues to do so. These circumstances mitigate
Lila’s blameworthiness.

[69] In mitigation, Lila has entered a guilty plea. It was not an early guilty
plea, as it came at the conclusion of the preliminary hearing, but it has
brought closure to the legal proceedings. It is clear that Lila is
remorseful and accepts responsibility.

[70] Rehabilitation as a sentencing principle must be given consideration.

Lila is young and with enough time and proper treatment and support,
there is every hope that she will go on to live a productive, law abiding
life. Clearly there is much work that must be done to get her there.
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[71] Unfortunately, Lila does not come before the court having addressed
her alcohol issue and with a sustained period of progress in that
regard. On the contrary, due to her fragile mental health, her use of
alcohol has either continued as before or worsened.

[72] The Defence seeks a sentence that will keep Lila in Nunavut. In order
for that to be achieved, the sentence must be two years or less. With
such a sentence the Court would be able to impose a period of
probation of up to three years.

[73] Probation orders are designed to be largely rehabilitative. If Lila had

made significant progress in addressing her misuse of alcohol, the
sentence requested by the Defence would be one for the Court to
consider, as the lengthy period of probation would assist her in
continuing progress already made. Unfortunately, those are not the
circumstances the court is presented with.

VII. DISPOSITION

[74] The sentence on the charge of impaired driving causing death is three
years.

[75] There will be credit for pre-trial custody of 21 days at an enhanced

rate of 1:1.5, for credit of 31 days.

[76] There will be a driving prohibition for five years, commencing on her
release from custody.

Dated at the City of Iqaluit this 21st day of December, 2018

___________________
Justice S. Cooper
Nunavut Court of Justice