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nunavuumi iqkaqtuijikkut

NUNAVUT COURT OF JUSTICE


La Cour de justice du Nunavut
Citation:

R. v. Bishop, 2015 NUCJ 01

Date:
Docket:
Registry:

20150122
21-07I-02
Iqaluit

Crown:

Her Majesty the Queen


-and-

Accused:

Christopher Bishop

________________________________________________________________________
Before:

The Honourable Mr. Justice Kilpatrick

Counsel (Crown):
Counsel (Accused):

P. Culver, J. Potter
J. Morton

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
January 14, 2015
Criminal Code, s. 236a x 3; s. 239(a) x 2

REASONS FOR JUDGMENT

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

I. INTRODUCTION
[1]

In the early morning hours of January 6th, 2007, the tranquility of a


residential neighborhood in Cambridge Bay, Nunavut is suddenly
shattered by the sound of rapid gunfire. Three residents die in a hail
of bullets. Two other citizens are wounded. The RCMP arrive to
discover a scene of carnage.

[2]

Christopher Bishop has entered guilty pleas to three counts of


manslaughter and two counts of attempted murder arising out of this
incident. He is now to be sentenced.

II. THE FACTS


[3]

In the weeks immediately preceding the event giving rise to these


charges, Mr. Bishop is involved in a number of verbal and physical
confrontations with the three deceased males - Dean Costa, age 29,
Keith Atatahak, age 30, and Kevin Komaksiut, age 22. The reasons
for this dispute are inconsequential. Nothing had been resolved by an
exchange of accusations and insults. There is mutual hatred.

[4]

During the evening hours of January 5th, Dean Costa, Keith Atatahak
and Kevin Komaksiut get together to drink with Antoinette Bernhardt
and Logan Pigalak. Far too much alcohol is consumed. A sixty ounce
bottle of vodka is drained. This is soon followed by three quarters of a
second bottle. As alcohol mixes with anger, the inhibitions fall away.
Following a heated exchange, a number of those present decide to
have it out with Mr. Bishop. They have a score to settle and are
determined to punish Mr. Bishop.

[5]

Dean Costa, Keith Atatahak, Kevin Komaksiut, and Logan Pigalak


arrive at Bishops residence in the early morning hours of January 6th.
They are intoxicated and combative. Someone starts to pound on the
front door. Mr. Bishop is inside his residence. Fearing that those
outside his front door will gain entry, Mr. Bishop calls the RCMP.
While speaking with RCMP Telecoms, the pounding on the door
suddenly stops. Mr. Bishop assumes that his antagonists have left the
area. The police are consequently not dispatched to the scene.

[6]

Some fifteen minutes later, the pounding on the front door resumes.
Mr. Bishop retreats to the safety of his bedroom and locks the door.
He again calls the RCMP. While speaking with Telecoms, Mr. Bishop
hears the front door to his residence suddenly give way under the
force of many blows. The intruders are now inside. They are soon
outside his bedroom. Someone begins to pound on the bedroom
door. Unknown to Mr. Bishop, some of the intruders have armed
themselves. Dean Costa is now carrying a long samurai sword. Kevin
Komaksiut has a broken golf club. Keith Atatahak and Logan Pigalak
are also present.

[7]

Mr. Bishop prepares to defend himself. He has a semi-automatic rifle


with an illegal thirty round banana clip at his disposal. He loads the
firearm and waits behind the door. His hand is on the trigger. The
police have been dispatched. Help is on the way.

[8]

Under the force of repeated blows, the bedroom door finally gives
way. Mr. Bishop fears the worst. He starts to fire. When the intruders
realize that Mr. Bishop has a firearm, they immediately scatter and
run for their lives. Mr. Bishops fright then turns to rage. He continues
to fire even after the intruders flee. Dean Costa, Keith Atatahak, and
Kevin Kamaksiut cannot outpace the bullets directed at them. There
are some 25 shots discharged in all. Twenty of these shots hit their
human targets.

[9]

The Court has not been given a sequential breakdown of what


happens after the firing starts. The forensic autopsy reports tell a
story, however.

[10] Keith Atatahak sustains three gunshot wounds. He is shot full in the
chest from the front and eventually dies from this wound. He is also
shot in his thigh. The bullet exits from the back of Mr. Atatahaks left
knee. A third bullet grazes Mr. Atatahaks right lower leg.
[11] Dean Costa sustains ten gunshot wounds. There is a gunshot wound
to his back which exits the right lower chest. The wound direction is
from back to front. There is another gunshot wound on Mr. Costas
lower back area that exits the left side of his body. The direction of the
wound is once again from back to front. There is a gunshot wound on
the back of the neck that exits Mr. Costas chest. This bullet is also
travelling from back to front.

[12] There are three gunshot wounds that are identified as having been
sustained after death. One shot is to Mr. Costas left back. Another
two shots are sustained to Mr. Costas chest.
[13] A gunshot wound is also sustained to Mr. Costas right upper arm.
Forensic science cannot be certain whether this wound was sustained
before or after death. Finally, there are two bullet wounds to Mr.
Costas head. Forensic medical science1 is once again unable to say
whether these wounds were sustained before or after death.
[14] All gunshots are discharged from a distance. There is no powder
residue left on Mr. Costas skin or clothing at the bullets point of entry
to suggest a discharge at close range.
[15] Kevin Komaksiut sustains five gunshot wounds. There is a bullet
wound to the deceaseds lower back that exits from the upper left
area of the chest. This wound runs from back to front and is sustained
from a distance. There is no powder residue to suggest a discharge at
close range.
[16] There is a second gunshot wound that enters the lower left leg that
exits the left upper thigh. This shot runs from front to back. There is a
third gunshot wound to the left jaw that exits the chin running from
front to back.
[17] There is a fourth gunshot wound that enters the back side of the left
forearm and exits out the front of the left forearm. This wound runs
from back to front. There is no forensic evidence of any kind to
suggest that any of these other shots were delivered at close range.
[18] A fifth gunshot wound is sustained to Komaksiuts right forearm. This
wound is described as a grazing type of injury. The direction of bullet
travel is unknown.
[19] Antoinette Bernhadt sustains a gunshot wound to her left shoulder
and has to be medivaced to Yellowknife for treatment. She is shot by
Mr. Bishop outside the residence. It is a serious injury. Logan Pigalak
is grazed by a bullet and sustains a minor injury to one of his limbs.

As described by the Crown and Defence counsel jointly submitted Agreed Statement of Fact:
The Report of the Post Mortem Examination.

[20] The location of the three deceased is also significant. It too tells a
story. Dean Costas body is located just inside the front door to Mr.
Bishops residence at some distance away from Mr. Bishops
bedroom. Keith Atatahak's body is found even further away. It lies
outside the Bishop residence and is approximately fifteen feet away
from the front entrance. Kevin Komaksiuts body is located down the
street and outside Unit 4B at a considerable distance from the Bishop
residence.
III. SUBMISSIONS
A. Acceptance of the guilty pleas to the reduced charges of
manslaughter
[21] The negotiated resolution that is now before the Court is the product
of extensive discussions between Crown and Defence. These
discussions have taken place over many months. These negotiations
have resulted in guilty pleas being entered to five serious offences. A
trial has been avoided.
[22] On the basis of the limited information that is available to the Court, it
cannot be said that the negotiated resolution is unreasonable. Both
sides, Crown and Defence have made compromises in order to arrive
at the end result. This result brings some closure to the families of the
deceased. It brings an end to the uncertainty of litigation that has
haunted Mr. Bishop and the families of the deceased for the better
part of a decade.
[23] While Mr. Bishops action in discharging the firearm was a direct
consequence of the home invasion and was initially a step taken in
self-defence, the Defence concedes that the amount of force
ultimately used by Mr. Bishop was excessive. The Defence expressly
admits that Mr. Bishop intended to discharge the firearm at both
Antoinette Bernhardt and Logan Pigalak and, that when he did so, he
had the requisite intention to commit the offence of attempted murder.

[24] The number and location of gunshot entry wounds sustained to the
backs of at least two of the three deceased and the ultimate location
of the bodies suggest that numerous shots were fired by Mr. Bishop
after the intruders took flight. At this point, shots taken in anger fall
outside the privilege of self- defence. The law does not condone the
infliction of deadly force beyond that which is reasonably necessary
for self-preservation. Provocation is not a defence to a charge of
attempted murder. A finding of provocation can reduce a charge of
murder to the lesser offence of manslaughter. In this case, the
provocation associated with the home invasion has had this effect.
[25] The Court sees no legal basis to reject the guilty pleas tendered by
Mr. Bishop to the lesser charges of manslaughter. The Court is
satisfied that Mr. Bishops decision to enter these guilty pleas is both
voluntary and informed.
B. The joint submission on sentence
[26] Crown and Defence jointly submit that a fair and appropriate sentence
for these offences committed by this offender would be a custodial
term of twenty years concurrent on all five counts. Both Crown and
Defence are also agreed that this twenty year sentence should be
reduced to reflect the extensive pre-sentence detention already
served by Mr. Bishop.
[27] The moral blameworthiness associated with Mr. Bishops actions in
deliberately shooting down his fleeing antagonists is extremely high.
The Court is satisfied that the 20 year sentence proposed by the
Crown and Defence, being at the extreme high end for manslaughter
offences, is nonetheless justified in this case. The rifle was fired not
once, but 25 times. Mr. Bishop continued to hit human targets long
after the risk to his own personal safety was over.
[28] There is some disagreement between the Crown and Defence over
the amount of credit that should be applied in the circumstances of
this case.

IV. ANALYSIS
A. Credit for pre-sentence custody
[29] Mr. Bishop was convicted and sentenced to life imprisonment
following a trial that concluded on August 27th, 2010. This conviction
was subsequently appealed. On January 28th, 2013, the Nunavut
Court of Appeal allowed the appeal and quashed the convictions. The
matter was then remitted back to this Court for retrial. The retrial was
scheduled to take place in April 2015. The resulting plea negotiations
and resolution have now rendered a further retrial unnecessary.
[30] There are three periods of pre-sentence custody to consider. The first
period runs from the point of Mr. Bishops arrest on these charges
(January 6th, 2007) to the date of Mr. Bishops first trial and conviction
(August 27th, 2010).This consists of a period of 3 years, 7 months,
and 21 days and totals 1,328 days of actual custody.
[31] The second period of custody runs from the date of Mr. Bishops first
sentencing (August 27th, 2010) to the date of Mr. Bishops successful
appeal (January 28th, 2013). This consists of a period of 2 years, 5
months, and 1 day for a total of 884 days of actual custody.
[32] The last period of pre-sentence custody runs from the date of the
successful appeal (January 28th, 2013) to the date of Mr. Bishops
sentencing by this Court (January 14th, 2015). This consists of a
period of 1 year, 11 months, and 17 days for a total of 716 days of
actual custody.
[33] Mr. Bishop has thus already served a total of eight years and 8 days
or 2,928 days of actual custody up to the point of this sentencing
hearing.
[34] Prior to the Truth in Sentencing Act, SC 2009, c29 amendments, to
the Canadian Criminal Code [Criminal Code] becoming law in 2010,
this Court, and every other court in the country, routinely assigned
enhanced credit for pre-trial detention. A two for one credit was
usually applied. This was done for two reasons. First, such enhanced
credit was necessary to reflect the fact that pre-trial detention was not
taken into account by the parole authorities in calculating statutory
remission. Second, the conditions of pre-trial detention were also
typically far more severe. There was usually no access to remedial
programming. This was made available to sentenced inmates only.

[35] It is common ground that the Truth in Sentencing Amendments to the


Criminal Code have no application to this proceeding. These
amendments restricted the circumstances under which credit for pretrial custody could be assigned and restricted the amount of credit to
a maximum limit of 1.5 days for every actual day of pre-trial detention.
These statutory amendments to the Criminal Code have no
application to offences charged before these amendments became
law in 2010.
[36] The Crown concedes that some enhanced credit should be assigned
to all three periods of pre-sentence detention.
[37] With respect to the second period of custody served by Mr. Bishop
after being sentenced, the Crown urges the Court to restrict the credit
to only 1.5 days to one. The Crown relies on the case of R v Karim
[2014] ABCA 88, [2014] AJ No 218 (QL), in support of this position,
but the justification for such a reduction was not expressly addressed
by the Alberta Court of Appeal in that case. The British Columbia
Court of Appeal, however, in the case of R v Gunning, 2008 BCCA
22, 77 WCB (2d) 43, deals directly with this issue and arrives at a
different result. In analogous circumstances to Mr. Bishop, the BC
Court of Appeal affords the appellant Gunning a credit for presentence custody at the rate of two for one. In sentencing Mr. Bishop,
this Court adopts the reasoning of the BC Court of Appeal in Gunning
expressed at paragraphs 9 through 11, and elects to assign credit at
the usual rate of two for one.
[38] The Defence urges the Court to give Mr. Bishop extraordinary credit
for the time Mr. Bishop was allegedly held in either solitary
confinement or in lock-down during the first and second parts of the
periods of custody identified in paragraphs nine and ten above. The
Court is urged to afford three to one credit for a period of one year to
reflect the extraordinary hardship associated with this type of
detention. The period of 365 days that is the subject of this claim for
extraordinary credit is nothing more than an estimate. There is no
documentation from the Correctional authorities supporting this time
frame or outlining the dates that this very restrictive detention is said
to have occurred.

[39] The hardships associated with detention at the Baffin Correctional


Center are notorious. The substandard conditions of detention at this
facility were the subject of a report dated 2013 and authored by the
Federal Correctional Inspector2. These hardships are well known to
this Court and were routinely factored into the Courts two for one
credit usually assigned to pre-trial detention prior to the Truth in
Sentencing reform.
[40] Having given anxious consideration to both Crown and Defence
submissions on the issue of credit, and noting, in particular, the
extraordinary length of time already served by Mr. Bishop prior to this
sentencing, the Court chooses to exercise its discretion as follows.
[41] For the first period of pre-sentence custody consisting of 1,328 days
of actual custody, there will be an enhanced credit at the usual rate of
two for one. The Court sees no reason to depart from the long
standing practice of this Court that was in place prior to the 2010
amendments to the Criminal Code. Mr. Bishop is therefore credited
with a total period of 2,656 days.
[42] For the second period of pre-sentence custody consisting of 884 days
of actual custody, there will an enhanced credit at the rate of two for
one. Mr. Bishop is hereby credited with a total period of 1,768 days.
[43] For the third period of pre-sentence custody consisting of 723 days of
actual custody, there will once again be an enhanced credit assigned
of two for one. Mr. Bishop is therefore credited for this third period
with a total of 1,446 days.
[44] In the end result, Mr. Bishop is afforded a total credit against his
twenty year sentence of 5,870 days of time served. This credit is to be
applied to the twenty year concurrent sentences referenced above. A
twenty year sentence amounts to 7,300 days of custody. When the
credit for pre-trial detention of 5,870 days is applied, the total
sentence remaining to be served by Mr. Bishop as of the date of this
judgment is 1,430 days.

Correctional Investigator (Canada), Report of the Office of the Correctional Investigator


(Canada) on the Baffin Correctional Centre and the Legal and Policy Framework of Nunavut
Corrections (Ottawa ON, 2013), online: <
http://www.justice.gov.nu.ca/apps/UPLOADS/fck/file/Report%20OCI%20on%20NU.pdf >

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[45] The Court declines to afford any extraordinary credit for time served in
lockdown or solitary confinement. The Court is satisfied that the
conditions of Mr. Bishops overall detention have been adequately
addressed in the overall credit assigned to his pre-sentence custody.
V. CONCLUSION
A. Victim impact
[46] An entire community was impacted by the events of January 6th,
2007. The commission of these offences was a devastating blow to all
who had lived with, or grown up with the three deceased. The families
of the deceased now live out their lives trying to cope with a terrible
loss. These families have received a true life sentence. They are
burdened with a lifetime of grief. Their lives will never be the same.
[47] For those who now grieve, no sentence can possibly compensate for
what has been taken, and is now lost. No court can possibly put a
value on the life of Dean Costa, Keith Atatahak, and Kevin Komaksiut.
This Court does not attempt to do so through the sentence imposed
today.
[48] Those who participated in the foolhardy home invasion have paid
dearly for their folly. Three citizens have paid with their lives. Logan
Pigalak was later charged with and convicted of break and enter. He
was sentenced to a period of custody for his involvement in this affair.
[49] Ms. Bernhardt took no part in the break in. There is no evidence to
suggest that she entered the residence. She was outside the
residence when she was shot.
[50] Those who were lucky enough to survive the carnage are now
scarred with a memory that is a living nightmare.
[51] The uncertainty associated with this litigation now comes to a close.
The community and the many citizens of Cambridge Bay impacted by
these events must now attempt to move on with what is left of their
lives.
[52] The Court extends its condolences to all those who have suffered loss
or injury, and wish them well in the long healing journey ahead.

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B. Ancillary Orders
[53] Pursuant to section 109 of the Criminal Code, the Court prohibits Mr.
Bishop from possessing or using any firearm, ammunition or
explosive substance for a period of twenty-five years. Mr. Bishop is
prohibited for life from the possession of any restricted firearm,
ammunition, or cross-bow.
[54] The weapon used in the commission of this offense together with the
illegal ammunition clip, are forfeited to the Attorney General pursuant
to section 491 of the Criminal Code.
[55] These offences involved misuse of a firearm and possession of an
illegal 30 round ammunition clip. The violence was extreme. The
result of that violence was catastrophic. In the circumstances
presented here a long term prohibition order is warranted
notwithstanding a claim to aboriginal heritage. The protection of the
public must take priority.
[56] As all of these offences are primary designated offences, there shall
be a DNA order.

Dated at the City of Iqaluit this 22nd day of January, 2015

___________________
Justice R. Kilpatrick
Senior Judge
Nunavut Court of Justice