Nunavut court: ex-BCC guard appears on appeal of assault conviction

Ex-BCC guard Michael Bracken appeared in court March 14 to appeal a recent conviction and sentencing for assaulting a prisoner, but he was not represented by a lawyer. (FILE PHOTO)

A former Baffin Correctional Centre guard, who was convicted in 2015 of assaulting a “low functioning” inmate in 2014, appeared March 14 before Justice Neil Sharkey at the Nunavut Court of Appeals in Iqaluit.

Michael Bracken, 31, has appealed the conviction and the 30-day jail sentence that Justice Paul Bychok handed down in late January, following a trial at the Nunavut Court of Justice which got underway in October 2015.

Bychok’s judgment said Bracken first punched the inmate while “unprovoked,” in the face and then, after the inmate was subdued on the floor, kicked the inmate in the head.

In finding Bracken guilty, Bychok described Bracken’s attack on the prisoner as “a cowardly and gratuitous act of violence unleashed against a helpless victim.”

But in a notice of appeal filed with the court on Jan. 25, Bracken said Bychok made “unreasonable findings” at trial and “overemphasized general deterrence and denunciation,” in his sentencing decision.

So far, Bracken is not represented by a lawyer to handle his appeal.

But as part of Bracken’s appeal, lawyer Scott Cowan, who did represent Bracken during the trial, filed a letter with the court and argued Bracken’s appeal of the sentence has “significant merit.”

In his letter, Cowan alleges Bychok made a number of mistakes both at trial and in sentencing, including:

• relying on video footage that is too “choppy and grainy,” to be relied on;

• ignoring the fact that no other guards who testified at trial actually saw Bracken kick the inmate;

• excluding in his sentencing the fact that the inmate said at trial he was not kicked in the head; and,

• handing down a sentence that is not supported by precedent.

Bracken appeared before Sharkey March 9 wearing a black T-shirt with a graphic from the heavy metal band Iron Maiden, and tattoos visible beneath the cuffs of his t-shirt.

A court guard brought Bracken up from cells at the courthouse — to the surprise of everyone in the courtroom, since Bracken had been granted bail in January.

Crown prosecutor Ivan Nault said the confusion likely took place as a result of one of the conditions placed on Bracken’s bail release.

That condition, placed by Justice Robert Kilpatrick, required Bracken to surrender himself to RCMP on the “eve of his appeal,” Nault said.

“That likely means on the eve before your appeal hearing,” Sharkey explained to Bracken, and apologized on behalf of the court for the misunderstanding.

Because Bracken is not represented by a lawyer for his appeal, that may have added to the confusion, Sharkey said.

Maliiganik Tukisniakvik denied Bracken’s request for legal aid, and Bracken is now appealing that decision by the legal aid body, the court heard March 9.

If that appeal is also denied, then Bracken can apply for a court-appointed lawyer.

Bracken’s appeal will next be addressed July 13 to give him time to find a lawyer.

But Bracken’s appeal will not be heard on July 13, Sharkey said, so Bracken need not turn himself into RCMP for that date.