Drunk Nunavut hit-and-run driver gets reduced sentence for rights breach

Tommy Holland will be seeing another 309 days inside the Baffin Correctional Centre, above: Holland was handed down the prison sentence at the Iqaluit courthouse, Feb. 3, for a hit-and-run incident in January 2016 where he injured a seven-year-old boy. An original sentence of 645 days was cut by more than half because arresting officers breached his rights. (FILE PHOTO)

Tommy Holland will spend another 309 days in territorial prison, Justice Paul Bychok ruled in an Iqaluit courtroom Feb. 3.

Holland, 30, is the Iqaluit man who, in 2016, hit a seven-year-old boy with an all-terrain vehicle that he was driving while “extremely drunk”—and then fled the scene.

But Bychok’s sentence, originally set at 645 days, was reduced by more than half, in part because of “extremely serious breaches” of Holland’s rights committed by the two arresting officers, the judge ruled at the Nunavut Court of Justice.

Those officers both “committed an assault” against Holland when they entered his house unlawfully and wrestled him into handcuffs, said Bychok.

“In defending the accused’s rights, this court defends the rights and liberties of all Nunavummiut,” Bychok said during his 35-minute oral ruling.

On Jan. 17, 2016, Holland drove an ATV around the Tundra Valley neighbourhood of Iqaluit while “more drunk than he’d ever been,” Bychok said.

Holland hit a parked Jeep, fled the scene, and hit the Jeep a second time later that same day.

But the second time, Bychok said Holland pinned a seven-year-old boy between the ATV and the Jeep.

The child was rushed to hospital and, three months later, recovered from his injuries, said the judge.

The father of the child recognized Holland and identified him to Iqaluit police, who then staked out Holland’s home.

RCMP Const. Andrew Kerstens, and his supervisor, Cpl. Mary Beth Dunphy, sat outside Holland’s house for between five and eight hours—the officers’ testimony at a hearing in December 2016 varied, Bychok said.

In fact, their testimony was “inconsistent,” the judge said, and Dunphy’s attitude was “cavalier,” and her testimony “not reliable.”

When, after 8 p.m. Jan. 17, 2016, Holland came out of his house for a cigarette, Kerstens yelled, “You’re under arrest,” to which Holland replied, “Fuck you,” the court heard.

Holland then went inside his home. The officers followed Holland—kicking in two doors in the process—and used a number of techniques to subdue and then arrest Holland, who was resisting.

But in arresting Holland without a warrant, the judge said the officers broke a “crystal clear” law which they either knew or ought to have known: Officers can only enter a home to arrest someone without a warrant if someone in the home is under threat of physical harm or if the suspect has been chased by police, usually from the crime scene.

Neither of those circumstances apply in this case, Bychok ruled.

Instead, Bychok found Kerstens, “hot under the collar” from Holland’s profanity, reacted “angrily” and chased Holland into his home.

And Dunphy, who should have ordered her junior colleague to stop, simply followed Kerstens into Holland’s home, without a warrant.

After his arrest, police discovered that Holland had already been convicted of impaired driving in August 2015 and charged with the same offence again for an incident on Jan. 1, 2016.

That means that Holland was caught driving under the influence three times in about five months, Bychok said.

And the third time, on Jan. 17, 2016, was the most serious offence because it resulted in the injury of a young child, the judge said.

Shortly after his arrest, Holland pleaded guilty to four charges stemming from the two incidents in January, 2016, including:

• one count of impaired driving;

• two counts of driving while under a court order not to drive; and,

• one count of impaired driving causing bodily harm.

While Holland’s moral blameworthiness is high in this case, Bychok said Nunavut is in a state of “crisis,” with alcoholism—and the lack of treatment services for alcoholism— “tearing” Nunavut society apart.

In reducing Holland’s sentence from 645 to 309 days, Bychok also took into consideration Holland’s early guilty plea, sincere apology to the family and his 64 days in pre-sentence custody.

Upon release, Holland must complete 18 months of probation, 60 hours of community service and observe a four-year driving ban, Bychok ruled.

Holland, about six feet tall, with short, dark hair and a close-cropped beard, looked back at four or five supporters sitting in the court gallery before being lead by court police out of the courtroom.

R. v. Holland 2017 Nucj 03 by NunatsiaqNews on Scribd