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Citation: Date: Docket: Registry:
R. v. A.B., 2013 NUCJ 15
20130508 11-13-3, 11-12-146 Iqaluit
Her Majesty the Queen
________________________________________________________________________ Before: Counsel (Crown): Counsel (Accused): Location Heard: Date Heard: Matters: The Honourable Mr. Justice Kilpatrick B. McClaren S. Shabala Iqaluit, Nunavut August 1, 2013 Criminal Code, ss. 271; 246; 145(3); 268(2); 267(a)
REASONS FOR JUDGMENT
(NOTE: This document may have been edited for publication)
Restriction on Publication: By court order made under section 486.4 of the Criminal Code, “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” The victim of the sexual assault was the accused’s common law spouse. The Court has had to anonymize the name of the accused in order to protect the identity of the spouse.
I. INTRODUCTION  AB has entered prompt guilty pleas to five indictable offences. These offences arise from two incidents in Pond Inlet on November 7th, 2012, and January 5th, 2013. He is now to be sentenced. A. The first incident – November 7th, 2012  AB acquired two mickies of vodka from a local bootlegger. He started to drink with his spouse CD in the family home. AB became intoxicated.  There were unresolved issues of jealousy in this relationship. As AB’s level of intoxication increased, suspicion displaced trust and respect. An argument erupted. Listening stopped as words became heated. Alcohol vanquished reason.  AB demanded sex. CD refused. Angry words soon turned to blows. CD was hit repeatedly by AB. A small child was present in the bedroom to witness this attack. The little one’s screams of terror, the screams of AB’s own child, did not deter AB from the violence that followed.  CD was kicked. She was thrown to the bed. AB said that he wanted CD to feel what it was like to be raped. He started tearing at CD’s clothing in an effort to achieve this end. CD continued to resist. AB put his thumbs in CD’s eyes, and pulled her hair. He grabbed at CD’s face with his hands. In an effort to end CD’s struggling, AB put his hands around CD’s neck and squeezed. AB threatened to kill his spouse.  AB was unable to remove CD’s pants. The attack ended abruptly when AB tired. CD fled the house. She sought protection from a neighbor. When examined at the nursing station later that day, bruising was evident on CD’s upper thigh and upper torso. There were visible marks and scratches on CD’s face and neck.
 AB is to be sentenced on one count of sexual assault and one count of choking arising from this event. B. The second incident – January 5th, 2013  Following his arrest, AB was released by a Justice of the Peace on an undertaking. AB was ordered not to have any contact or communication with CD. He was prohibited from attending the family home.  On January 5th, 2013, AB’s suspicions were aroused when he learned through another family member that one Aaron Pitseolak (AP) was visiting CD, at the family home. AB decided to investigate.  AB entered the family home. He found AP sleeping by himself on the couch in the living room. AB decided that CD must be having an affair with AP.  AB then entered the bedroom. CD was asleep on the bed with the couple’s three children snuggled beside her. AB snapped. He grabbed a hockey stick and struck his spouse on the legs with the stick. AB then approached AP in the living room.  AP was asleep when the beating started. AP was intoxicated. He was sleeping soundly. AP had no warning of the attack. He had no chance to defend himself. AB struck AP approximately 20 times with the hockey stick. AP was struck numerous times on the head. He was struck numerous times in the chest. Sufficient force was behind these blows to ultimately cause the hockey stick to break on AP’s head.  In the course of the assault AP sustained multiple skull fractures and lacerations to the head and face. There was much loss of blood. The force of the blows to the head soon rendered AP unconscious. The beating continued. An internal organ was ruptured as a consequence of repeated blows to AP’s diaphragm.
 The attack was witnessed by CD and one of the children. The child’s screams and the screams of his spouse ultimately caused AB to break off his attack. On leaving, he kicked an unconscious AP in the face.  AB was sober when he carried out this attack.  The injuries sustained by AP were life threatening. AP was medivaced at substantial public expense, first to Iqaluit and then to Ottawa. On January 7th, emergency surgical intervention was performed in Ottawa to correct a traumatic rupture of an internal organ. Later complications arose requiring a further surgical intervention on January 15th.  AP has sustained a loss of hearing in one ear as a result of this attack. It is unknown whether this hearing loss will be permanent. AP resigned from his long term employment with the government of Nunavut following his discharge from hospital.  AP is described by his spouse as being personally devastated by this attack. AP’s wife travelled to Ottawa to be at AP’s side during his long and painful recovery. The lives of AP’s wife and two young children have been turned upside down. All can be said to be traumatized by this event.  AB is to be sentenced on one count of aggravated assault on AP, one count of assault with a weapon on CD, and one count of breaching an undertaking. C. Personal Circumstances of the Offender  AB’s personal circumstances are outlined in some detail in the Pre-Sentence Report prepared by the Department of Community Corrections. AB is currently 25 years of age. He has no criminal record. He has a grade 12 education and some history of employment.
 AB was in a relationship with CD for five years. There have been four children born to this relationship. One child was adopted out some years ago. The children remaining to this couple are all under 7 years of age. As a consequence of the events outlined here, AB’s relationship with CD is now at an end.  AB had a dysfunctional childhood. He witnessed much alcohol abuse and violence within the home. His biological parents separated when he was two years of age. He has had no real contact with his biological father. His mother then entered into a number of abusive relationships. AB did not enjoy a close relationship with his mother. His mother struggled with issues related to anger and addiction. AB’s step father also drank heavily and always remained distant to AB. The home of an alcoholic is a lonely place for a child.  AB relocated with his family to Igloolik twice as a child. He claims to have been the victim of sexual abuse from a member of his extended family when he was young.  AB has used and abused alcohol from the age of thirteen.  AB credits the steady influence and love of his now deceased grandmother with his drive to graduate from school and successful search for employment.
II. Analysis A. Aggravating factors  This Court can do no better than to repeat what it said in the case of R. v. VanEindhoven, 2007 NUCJ 02,  Nu.J. No. 2, at paras 2-4:
An intimate spousal relationship is based upon trust, mutual respect and love. These are the pillars upon which a nurturing relationship is built and maintained. These are the values that define who we are, and what we want to be as a people, as a society, and as a nation. Violence damages the core social values that are the underpinnings of any domestic union. Violence destroys the trust that is integral to a nurturing relationship. Violence demonstrates profound disrespect for the other partner’s physical and emotional integrity. It is a denial of everything that a relationship is intended to provide. It is a betrayal of love itself. The emotional harm caused by such a breach of trust runs deep. The consequences to all its victims are as serious as they are long lasting. The intimate relationship is intended to provide comfort and security to those within it. It is intended to be a safe haven, a refuge from the storms of life.
 AB’s violence of November 7th and January 5th was a betrayal of CD. This violence showed a callous and contemptuous disrespect for CD’s physical and emotional integrity. There can be no greater breach of trust than this.  A sexual assault in the context of an intimate domestic relationship is a particularly aggravated form of domestic violence. It is an act calculated to degrade and demean its victim. Such an act denies a victim control of their sexual integrity. Instead of validating the trust and respect associated with an intimate relationship, the sexual act is used to destroy a victim’s sense of self-esteem. This can have long term repercussions to a victim’s emotional well-being.
 The attack of November 7th was perpetrated upon a mother in the presence of her young child. AB can count his own child to be a victim of this offence. This was a living nightmare for a vulnerable and impressionable infant. This child is now emotionally scarred by the horror of this event.  There is a moral and legal duty to protect one’s children from harm. This is a feature common to all parent-child relationships in every culture throughout the world. To cause harm where there is a duty to protect, is a profound breach of this duty, and of a trust that the law regards as sacred.  A crime of violence perpetrated by a parent in the presence of their own child or children cries out for a deterrent sentence. Such crimes must be emphatically denounced by the Court in order to preserve and protect the social values underlying the parent-child relationship.  The attack of January 5th, 2013, on CD and AP shares many of the aggravating features associated with the incident of November 7th, 2012.For all of the reasons advanced above, the attack on CD by AB was a breach of trust.  This was also an attack upon a sleeping victim. A sleeping victim cannot defend themself from attack. They are particularly vulnerable to harm.  The attack on CD was carried out with the use of a weapon. The resort to a weapon in the course of a domestic dispute is particularly aggravating. The use of a weapon is a significant escalation in the level of violence. This can result in the infliction of significant injuries upon a victim. A person threatened with harm may also reach for a weapon in self-defence. They do not have to wait for harm to be inflicted to act. The prospect of an elevated level of harm arising from conflict between armed protagonists under these circumstances is very real.  The attack on CD occurred on a bed occupied by the complainant and AB’s three young children. For all the reasons advanced above, violence by one parent to another in the
presence of children causes harm to children. This is a breach of the trust owed by a parent to their child.  The horrific attack on AP was perpetrated in the presence of one of AB’s children. This too was aggravating. The exposure of a child to an act of extreme violence can be expected to traumatize a small child.  Psychological harm to the very young is not readily fixable. The therapeutic counselling that is typically used to address posttraumatic stress disorder in adults is not readily useable with children. Childrens’ lack of sophistication and limited communication skills makes them far more difficult to treat. The highly specialized services necessary to effectively address this type of trauma in children is not available in Nunavut.  The attack on AP was both prolonged and persistent. AP was attacked while sleeping and unable to defend himself. The beating continued while the victim lay defenceless. The victim was rendered unconscious by blows directed to the head. This attack was as merciless as it was brutal.  The injuries sustained by AP were many. They were severe and life threatening. AP has been profoundly traumatized by this beating. His life will never be the same again.  AB cannot claim that his judgment was impaired by alcohol or drugs when he carried out this savage beating. AB was sober.  The attacks on CD and AP occurred while AB was bound by an undertaking not to attend the family home. B. Mitigating Factors  AB has entered prompt guilty pleas to these offences. He is remorseful. He cooperated with the investigating authorities and readily admitted the offences in a warned statement provided to the RCMP.
 AB has been in custody since his arrest on January 7th, 2013. He has served approximately seven months of pre-trial detention at the new Rankin Inlet Healing Facility (Rankin Facility). He did not seek bail on the second set of charges.  AB is entitled to credit for this pre-trial detention at the rate of one for one. His detention was triggered by a breach of undertaking. The hardship associated with pre-trial detention at the Baffin Correctional Centre does not exist in this case. There is no overcrowding at the Rankin Facility. It is new and modern. Conditions of detention are good.  AB has spent his time in pre-trial detention attending healing programs in the facility. He has been a model inmate. Letters of support have been filed by correctional officers and program leaders attesting to his good behavior and his motivation to address his personal issues. He has participated in, and graduated from the healing programs offered by the Rankin Facility. This is demonstrated by the many Certificates of Completion filed on his behalf during the sentencing hearing. This Court concludes that with assistance, the prospects for AB’s ultimate rehabilitation are good.  In addition to the difficult lifestyle associated with living in a remote arctic community, AB experienced significant social dysfunction in his formative years. AB now mirrors, in his own life and lifestyle, the bitter by-products of this dysfunction. AB struggles with addiction. AB continues to use alcohol to mask his pain. He uses alcohol to forget what is unforgettable and unforgiveable in his own past. AB also struggles with anger. He harbors a brooding resentment for a childhood that was survived, and not lived.  AB’s difficult life experience is properly considered by the Court in mitigation of the sentence that might otherwise have been imposed for these offences. This approach is mandated by the principle of restraint codified in section 718.2(e) of the Criminal Code, RSC 1985, c C-46 [Criminal Code]. Such an approach is also mandated through an application of the principles enunciated by the Supreme Court of Canada in R v Gladue,
 1 SCR 688, SCJ No 19. This Court concludes that AB’s social history does have some bearing on the application of the proportionality principle of sentencing in this case. III. Argument A. The joint submission on sentence  Two experienced lawyers have jointly recommended that AB serve a global sentence of three and a half years in a federal penitentiary for these offences, less a credit of seven months for pre-trial detention. This recommendation takes into account all the mitigating factors identified earlier.  The Court’s discretion on sentence is constrained by the terms of a joint submission. Jurisprudence from the Court of Appeal provides that a sentencing court must not lightly interfere with the terms of a negotiated settlement that has resulted in the entry of guilty pleas. The Court cannot exceed the joint recommendation made by the lawyers in this case unless the proposed sentence brings the administration of the criminal justice system into disrepute.  For sound public policy reasons, the criminal justice system seeks to encourage the settlement of serious criminal allegations without trial. This saves much time and public expense. The state does not then have to prove the allegations underlying the guilty plea. Victims are spared the torment of having to relive their ordeal in a public forum.  In exchange for the guilty plea and waiver of their right to trial, an accused defendant often negotiates with the prosecuting authorities for a lenient position on sentence. The joint submission on sentence is the end result of this process of negotiation. The joint submission is the “lubricant” that allows the cumbersome machinery of the criminal justice system to process cases with reasonable dispatch and efficiency.
 The jurisprudence from the Court of Appeal recognizes that an accused defendant must have some reasonable assurance that the end product of these negotiations will be respected by a sentencing court. Without this assurance, persons accused of crime would insist on a trial in every case. The cost to the system of justice would be immense. The emotional cost to victims of crime would also be correspondingly very high.  The proposed three and a half year sentence is very generous. Given the many aggravating features of these offences, such a recommendation falls at the very low end of the appropriate range for this combination of offences committed in these circumstances.  After much anxious consideration, the Court concludes that it is not in a position to depart from the terms of the joint submission. The proposed sentence is not so low as to enable this Court to find that the administration of justice would be brought into disrepute by such a sentence.  The resulting sentence should not be viewed as a sentencing precedent however. It is the product of a joint submission, nothing more. The Court’s discretion has been fettered. But for the joint submission, the sentence imposed for these offences, particularly the aggravated assault, might have exceeded that recommended by counsel. If this offender had a record for violence, or had he had been convicted after trial, the resulting gaol term would have been significantly higher. IV. Conclusion A. Custodial dispositions  In the result, AB is sentenced to serve the legal equivalent of three and a half years custody for these five offences. He receives a credit of 28 weeks for pre-trial detention. This has been deducted from the overall sentence. This leaves AB with a net term of 154 weeks in custody remaining to be served.  The individual custodial dispositions are broken down as follows:
i. For the sexual assault on CD – 44 weeks of custody; ii. For the offence of choking – 26 weeks of custody concurrent; iii. For the offence of aggravated assault on AP – 110 weeks of custody consecutive to the sentence imposed on the sexual assault; iv. For the offence of assault with a weapon on CD – 26 weeks of custody concurrent to the sentence for aggravated assault; v. For the offence of breaching an undertaking – 1 day concurrent (time served). B. Ancillary orders  AB is ordered to provide a DNA sample for registration in the national database. The offences of aggravated assault, sexual assault and assault with a weapon are primary designated offences. The provision of DNA is mandatory upon conviction for these offences.  AB is also ordered to submit to the processes of the Sex Offender Information Registry. This order is mandatory upon conviction for a sexual assault. This order is for twenty years.  AB is prohibited from owning, possessing or using any firearms, ammunition or explosive substance for a period of 10 years following his release from imprisonment. This prohibition is mandatory under section 109 of the Criminal Code. AB is also prohibited from owning, possessing or using any restricted firearm, ammunition or crossbow for life. AB must make immediate arrangements to surrender any such items, together with any Firearms Acquisition Certificate or firearms licenses to the nearest detachment of the RCMP. These items are ordered forfeited to the Attorney General.  Pursuant to section 743.21 of the Criminal Code AB is ordered to have no contact with the victim AP while serving this custodial sentence.  The victim fine surcharge payable upon conviction for these five offenses is waived for reasons of hardship.
 The Court recommends that AB be placed at the Fenbrook Facility in Ontario where he can benefit from culturally appropriate programming. C. Address to the accused  Once the lawyers have finished speaking, once this judge has issued judgment, your life will go on. You will then have to reassemble what is left of your life.  Your past does not have to dominate your present. You are not like a stick in a river being driven by currents beyond your control. You are the master of your fate. You will decide, every day, whether you will progress in your healing journey, or not.  You have let anger dominate your life. The criminal justice system now punishes you for this anger. You are also being punished by your anger. This anger has caused, and is causing, severe damage to your relationship with others.  You must learn to let go of the past. You must move forward with your life. You must address your inner demons. You must seek the assistance of those who can help you bear the burdens of your past. You must rely upon the love of those around you to support you and sustain you when the going gets tough.  It is not an easy thing to change a life and a lifestyle, but this is what must be done. No one else can do this for you. You alone bear the consequences of your life choices. You have made good progress while at the Rankin Facility, but this is only a beginning. This healing journey is a journey of a lifetime. Let no power or persuasion dissuade you from continuing what you have started.
 The Court hopes that you have the courage to change what must be changed in the months and years to come. Judgment accordingly
Dated at the City of Iqaluit this 8th day of August, 2013
___________________ Justice R. Kilpatrick Nunavut Court of Justice
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