R. v. Piugattuk, 2023 NUCJ 12

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Piugattuk, 2023 NUCJ 12 Date: 20230502 Docket: 07-21-66; 07-21-82; 07-22-35; 07-22-39 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Dennis Piugattuk __________________________________________________________________ Before: Mr. Justice Lyons Counsel (Crown): Counsel (Accused): S. Boydell L.

Moore Location Heard: Date Heard: Iqaluit, Nunavut May 2, 2023 Matters: Sentencing decision in regards to charges under Criminal Code of Canada, RSC 1985, c C-46, ss. 349(1) ; 266; 268; 129(1); 145(5) REASONS FOR DECISION (Delivered Orally) (NOTE: This document may have been edited for publication) 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. [ 1 ] The offender was charged with a number of criminal offences arising from four separate incidents and four court files. He pleaded guilty to some of the charges and is to be sentenced. [ 2 ] An agreed statement of facts was filed with the court, and is summarized chronologically. I.

COURT FILE 07-21-66 June 28, 2021 – s.268 – Aggravated Assault on A.I. [ 3 ] Dennis was at his childhood friend A.I.’s home, drinking alcohol and was intoxicated. After being asked to leave by A.I., Dennis hit him really hard in the head, knocking him unconscious. [ 4 ] The details of what followed are unclear as A.I. was in and out of consciousness.

He remembers waking up with Dennis on top of him pushing his thumbs into his eyeballs and asking him if he wanted to die, and if he should kill him. [ 5 ] A.I. was later taken to the health centre, and his injuries made it clear there was more to the assault than he was able to remember. He had a number of lacerations on his face which bled extensively, blood was seeping from his severely damaged eyes, and he had significant bruising and swelling to his face, eyes, neck, ears, chest, legs and arms.

Photos depicting some of these injuries were made exhibits at the sentencing hearing. [ 6 ] While being treated in the emergency room, A.I. was unable to sit up or speak, and was vomiting. He was also having difficulty breathing due to the trauma to his upper body. A chest tube was inserted to help him breathe and re-inflate his left lung. [ 7 ] He was flown to Ottawa for emergency medical treatment where he had multiple surgeries. His jaw was operated on. His right eye was irreparably damaged and had to be removed and replaced with a prosthetic, and his left eye was left with minimal vision. II.

COURT FILE 07-21-66 June 29, 2021 – s.349(1) – Unlawfully in a Dwelling House – s.266 – Assault on R.Q. [ 8 ] For reasons that are unclear, but likely related to the fact that A.I. was unable to provide a statement to police about the assault against him until later, Dennis was not arrested for the assault against A.I. until September 27, 2001, and remained at large in the community.

[ 9 ] The day after the assault, while walking home from a friend’s house, the victim R.Q., was approached by Dennis who asked for a lighter. Dennis appeared to be heavily intoxicated. [ 10 ] As R.Q. continued to walk home, Dennis ran ahead and entered into R.Q.’s home. Sleeping inside was R.Q.’s mother, and R.Q. feared for her safety. He went into the home and told Dennis to leave numerous times, but Dennis refused. R.Q. used force by punching Dennis once, and pushing him towards the door.

Dennis resisted by grabbing the doorframe, preventing R.Q. from removing him. [ 11 ] During the struggle, both men landed on the floor, and Dennis began punching and biting R.Q. R.Q.’s father intervened, pulling Dennis off R.Q., putting an end to the incident. [ 12 ] Dennis was arrested later that day and released by the police. III. COURT FILE 07-21-82 September 25, 2021 – s.268 – Aggravated Assault – M.N. [ 13 ] Some three months later, on September 25, 2021, Dennis, his spouse M.N., and their five children, who were all under the age of eight, were at M.N.’s sister’s home.

Dennis was again intoxicated. [ 14 ] Dennis was agitated about losing a bottle of alcohol and accused M.N. of stealing it. M.N.’s children were asleep at the time, and she got them up for them to all return home together. She packed her infant daughter on her back in her amauti, and they began walking home. [ 15 ] On the way Dennis attacked M.N. in the street while she had the baby on her back.

He punched her, kicked her, and threw her to the ground, and M.N. was bleeding extensively. [ 16 ] At some point during the attack, a woman on the street tried to intervene and stop the assault, but Dennis was not deterred and continued beating M.N. M.N. again fell to the ground, and told the children to run home and be safe. She begged Dennis to stop, but he would not stop. He continued kicking and striking her, all with the baby in the amauti. [ 17 ] They eventually got home where M.N. managed to flee to her sister’s home and then to the personal residence of an RCMP officer seeking help.

The RCMP observed multiple facial injuries, and heavy bleeding from M.N. Her baby daughter was in her amauti and was covered in blood. [ 18 ] The RCMP took M.N. to the health centre for treatment for her injuries. Her wrist, nose, and a rib were broken. Her face was severely swollen, and appeared disfigured. Her left eye was bleeding and swollen shut, she had a 3 cm laceration on her skull that was stapled closed, and numerous bruises and contusions. M.N. was medivaced to Ottawa for further treatment of her injuries. Photos of some of the injuries were taken and were made an exhibit at the sentencing hearing.

They are disturbing. The beating was severe. [ 19 ] The police went to arrest Dennis and were let in his home by Dennis’ mother. Dennis was found in a bedroom asleep. The room was covered in blood on the floor, walls, and furniture. Dennis was awoken, resisted arrest, was combative with the police, and ultimately subdued with a taser and detained in custody. IV. COURT FILE 07-22-35

S.145(5) – Breach of Release Order [ 20 ] Seven months later, Dennis was released on bail on compassionate grounds to attend his mother’s funeral. One of the conditions of his release was that he have no contact with M.N. [ 21 ] A month and a half after his release he was caught breaching the condition by having contact with M.N. It appears they were living together with their children. I am told that M.N. became pregnant by Dennis during this time, and their sixth child has since been born. V. VICTIM IMPACT [ 22 ] A.I. provided a victim impact statement.

As stated previously his right eye was removed and replaced by a prosthetic and his left eye has been left with minimal vision.

He continues to suffer constant shoulder, neck, and jaw discomfort, and is emotionally traumatized by the incident. [ 23 ] He reports keeping his emotions bottled up until he cannot contain them, and then exploding on his loved ones, or crying it all out when no one is around. [ 24 ] When asked if he has fears for his security, he simply wrote that Dennis was his childhood friend. [ 25 ] M.N. refused to provide a victim impact statement due to her being afraid to do so. [ 26 ] R.Q. also refused to provide a victim impact statement. VI.

PERSONAL CIRCUMSTANCES OF OFFENDER [ 27 ] A pre-sentence report was prepared and provides details about Dennis’ life, as did information provided by Defence counsel. [ 28 ] Dennis is 32 years old and was born and raised in Igloolik. He has a grade 11 education, speaks fluent English and Inuktitut, and reads and writes English. He achieved good grades in school and pursued adult education, completing courses in first aid, heavy equipment, and small vessel operation. [ 29 ] He has had some employment history, working on and off for many years at the Igloolik Community Hall supervising events.

He candidly acknowledged that starting in his teenaged years and for most of his adult life (some 12 years) his main source of income was from selling marijuana, but that he has since stopped to not to set a bad example for his children. [ 30 ] He and M.N. have six biological children, and he has been involved in their upbringing. When not in jail he has taken care of them, getting them clothed and fed in the morning, in order to allow M.N. to sleep.

He considers himself a good father figure and his sister described him as a “pretty good father”. [ 31 ] Dennis’ parents attended residential school in Chesterfield Inlet, and were reportedly alcoholic and often highly intoxicated during Dennis’ childhood. Although they were not physically abusive, his mother would become verbally abusive when she was drunk.

[ 32 ] His father was described by Dennis as always mild-mannered, and stoic, and an avid hunter. He brought Dennis along with him on many hunting trips throughout Dennis’ childhood. Dennis continues to hunt to provide food for his family and others in the community, and takes particular pride in sharing his catch with the community. Dennis’ father now relies on Dennis for help with hunting and general upkeep of their transportation machines and hunting tools. [ 33 ] Dennis’ life has been impacted by suicide.

When he was an adolescent his older brother died by suicide, and later many of his childhood friends, including his best friend, also died by suicide. His brother’s death in particular had a profound effect on Dennis, as he was fond of and looked up to him. In the wake of the death, Dennis attempted suicide. He also became angry, and rebellious and acknowledged becoming extremely short tempered, and liable to lash out with the slightest provocation. [ 34 ] Dennis has had a long-standing problem with alcohol. Although he is not a chronic drinker, when he does drink, it is to excess.

As is typical of offenders in Nunavut, his violent behaviour is fueled by alcohol abuse. I am told that his prior crimes of violence were committed while intoxicated, as were the assaults in this case. In the pre-sentence report Dennis cited his relationship with alcohol as a key ingredient in damaging his family and himself. VII.

AGGRAVATING FACTORS [ 35 ] When determining an appropriate sentence, the aggravating and mitigating factors must be weighed. [ 36 ] There are significant aggravating factors. [ 37 ] Dennis caused permanent injury and lifelong disability to his childhood friend. [ 38 ] Dennis has a related and extensive criminal record with 19 prior convictions, including 9 crimes of violence spanning from 2009 to 2019. [ 39 ] He has been convicted of assaulting three different women on three different occasions, including a previous assault causing bodily harm conviction against M.N. in 2019, for which he received a 153-day jail sentence. [ 40 ] He has served other lengthy jail sentences including a 3.5-year sentence for an aggravated assault and breach probation in 2010, and a 630 day jail sentence for a number of offenses including pointing a firearm, uttering threats, and possession of a firearm while prohibited in 2019. [ 41 ] He has also received non-custodial sentences in the past and has been convicted of breaching court orders on four occasions. [ 42 ] Further aggravating is that Dennis was on an undertaking for the charges in relation to R.Q. when he assaulted M.N. [ 43 ] For reasons unknown to me, Dennis was not charged for the assault on A.I. until he was charged with assaulting M.N. three months later.

Despite this, Dennis must have known that his childhood friend A.I. had been medivaced, and hospitalized with serious injuries, as a result of his drunken actions. Knowing this and long knowing that he can be violent when drunk, he again chose to become highly intoxicated prior to the assault on M.N., which in my view heightens his moral culpability for that assault. [ 44 ] Another highly aggravating factor is that Dennis’ five children, who were under the age of 8, witnessed the assault against their mother.

One could hardly imagine a more traumatizing experience for a child than to watch your father brutally beating your mother bloody, while your baby sister is on your mother’s back, becoming bloodied as well. [ 45 ] By his actions, Dennis demonstrated a disturbing disregard for the emotional and physical well-being of his children, as it is obvious that witnessing such an attack would be traumatizing for a child, and that his baby daughter was placed in physical danger. It

was only a matter of luck that she was not seriously injured given her close proximity to the numerous forceful punches and kicksdelivered to M.N.’s head and body. [46] It is also aggravating that Dennis assaulted his female indigenous intimate partner, as indigenous woman have historically beenmore vulnerable to abuse.

The aggravating nature of this has been codified by sections 718.04 and 718.201 of the Criminal Code, whichdirect that sentences for violent crimes against intimate partners, and particularly indigenous woman who are disproportionately affectedby such violence, must have denunciation and deterrence as their primary objectives. [47] This means that sentences for assaults against Indigenous intimate partners must send the message to the offender and communitythat society abhors such violence, and further, should deter the offender and others from committing similar crimes, by communicating tothem that there will be significant consequences to them if they do.

VIII.

MITIGATING FACTORS [48] There are also some mitigating factors. [49] Although Dennis reports having almost no memory of his crimes due to his high level of intoxication, he has accepted that A.I.,M.N., and R.Q. told the truth to the police, and plead guilty to his charges. [50] By doing so, he has taken responsibility for his actions and spared his victims from having to re-live their trauma by testifying incourt. [51] He expressed remorse to the writer of the pre-sentence report where he indicated that he understands his actions have caused a lotof changes and heartache for everyone involved and he doesn’t feel good about it.

He was also cooperative with the writer of the pre-sentence report, which in my view shows respect for the judicial process. His demeanour in court also suggests to me that he appreciatesthe seriousness of his crimes. [52] Dennis has been taking counselling while on remand, and has been taking prescribed medication that he says helps him with hisissues. I take this as a sign he wants to change, which is also a mitigating factor. [53] Dennis is an Inuk man, which requires me to consider

section 718.2(

e) of the Criminal Code which states: All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [54] The Supreme Court of Canada has given direction to sentencing judges in the

interpretation of this

section in R. v. Gladue (SCC), [1999]1 S.C.R. 688, and R. v. Ipeelee [2012] S.C.C. 13. I have considered the principles set out in those cases and therequirement to consider the unique systemic or background factors which may have played a

part in bringing Dennis before the courts, aswell as the type of sentence that may be appropriate because of his indigenous background. [55] As demonstrated by Dennis’ personal and family history, there are systemic background factors involved in this case. Dennis’parents attended residential school, were alcoholics, and often intoxicated. Although they were not physically abusive, his mother wasverbally abusive when she drank.

Also, Dennis’ life has been adversely impacted by the suicide of people close to him, including hisbrother and best friend; which is tragically common in Nunavut, where the suicide rate is approximately seven times the nationalaverage. Given the prevalence of suicide in the territory, I consider this, as well as his parents attendance at residential school, to besystemic background factors that contributed to his offending behaviour. IX. RANGE OF SENTENCE

[56] Although all cases are unique and there is no one size fits all sentence, the following cases provide some guidance on a generalrange of sentence for similar offences in Nunavut: [57] In R v JA, 2013 NUCJ 7 , the court acceded to a joint submission for 6 years jail for two domestic aggravated assaultsagainst the same woman, among other serious charges. Sentences of 3 years and 1 year consecutive for each aggravated assault wereimposed. The Court made it clear that but for the joint submission the jail sentence would have been longer.

In imposing the sentence,the court recognized the case as one of the most disturbing it had heard. [58] In R. v. Angivrana, 2022 NUCJ 42, a global sentence of 5 years was imposed for a serious domestic assault as well as othercharges. The offender received 3.5 years for the aggravated assault where the offender bit off a significant portion of a woman’s lipresulting in life long physical and emotional scarring. [59] In R. v. Aqqiaruq, 2018 NUCJ 5 , a joint submission for a 7-year sentence was acceded to by the court for the offense ofattempted murder.

In that case the offender beat the victim and stabbed him in the head with a screwdriver, resulting in permanent injury.There was an element of provocation as the offender had intervened in an assault by the victim against his brother, and was punched firstprior to assaulting the victim. [60] In R. v. Kopalie (17 April 2013), Iqaluit 08-11-552-1 (NUCJ), the intoxicated offender severely beat the victim, and the victimsuffered permanent injuries. He is not able to work or care for himself and had to move in with his mother, who took on responsibility forhis care.

The offender was sentenced to 5 years in custody. [61] In R v Kilabuk, (15 April 2011) Nunavut 08-10-218 (NU CJ), the offender was convicted of aggravated assault following a trial.The assault occurred in the context of a drunken fight between two men during where the offender used a hunting knife to slash and stabthe victim multiple times, causing life threatening injuries that included a slash wound to the face. The victim was medivaced andunderwent emergency surgery. The offender was also injured significantly by the victim in the incident, and had a significant criminalrecord.

The sentence imposed was 39 months. [62] The purpose of reviewing these cases is to highlight that these types of offences vary greatly in their circumstances, as do theoffenders who commit them. The result is a wide range of sentences imposed. [63] No cases were presented, nor am I aware of any Nunavut cases, with two distinct and unrelated serious aggravated assaultscommitted many months apart against different people, as in this case. A. The Crown Position [64] The Crown asks the court to impose a 7-year jail sentence.

With 7 years ascribed to the assault on M.N., 5 years concurrent for theassault on A.I., 90 days concurrent for the unlawfully in a dwelling house and assault on R.Q., and 6 months concurrent for the breach ofundertaking. B. Defence Position [65] Defence submits that a 6 to 6 and a half years jail sentence is appropriate: 3 years for the assault on M.N., 3.5 years consecutive forthe assault on A.I., 90 days concurrent for being unlawfully in a dwelling and assaulting R.Q., and 3 months concurrent for the breach ofundertaking. X. SENTENCE

[66] I apply the spirit of section 718(2)(

e) of the Code as this provision has been interpreted by our Supreme Court. I must individualizethe sentence with a view to Dennis’ rehabilitation. [67] In sentences involving multiple crimes of serious violence by indigenous offenders with lengthy violent criminal records, Gladuefactors do not necessarily act to reduce the length of a sentence, as the overarching principle of proportionality, the need to protect thepublic, and denunciation and deterrence, are primary considerations.

As stated in para. 79 of the Gladue case: Generally, the more violent and serious the offence the more likely it is a practical reality that the terms of imprisonment for aboriginalsand non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [68] As this court has repeatedly noted, the violent crime rate in Nunavut is many times the national average, and the vast majority ofthe victims of these crimes are indigenous people and the vast majority of the offenders are indigenous people who became violent whendrunk. [69] The cycle of violence churns relentlessly, violence begets violence, and trauma is passed from one generation to the next.

One needonly look at Dennis and M.N.’s families to see the tragic impact of this, as M.N.’s sister was brutally murdered by her spouse in 2003,and Dennis’ brother is serving a life sentence for killing a woman in 2012. [70] Given the nature of these offences and Dennis’ significant related criminal record, a lengthy penitentiary sentence is required toappropriately denounce his conduct, and hopefully deter others from committing similar crimes. [71] Dennis also has demonstrated that at this time of his life he is a danger to society and should be removed for a significant period oftime so he cannot harm others, and can get treatment and programming for the issues that fuel his criminality. [72] The fact that denunciation and deterrence are the primary considerations in this case, does not mean that Dennis’ rehabilitation isnot a consideration.

An offender’s rehabilitation is always a consideration in sentencing, and has not been disregarded. Dennis willeventually be released from jail, and it is in his, and Nunavut’s interest, that he come out of jail less prone to violence and alcohol abuse,than when he went in. [73] Relevant to this consideration is the fact that Dennis cannot serve a penitentiary sentence in Nunavut, and therefore will likely havelimited contact with family and friends while he serves his sentence in southern Canada. [74] The Crown is seeking concurrent sentences for the offences. As stated by the SCC in R. v.

Frieson, 2020, para 155, the decisionwhether to impose a sentence concurrent with another sentence or consecutive to it is guided by principles. The general rule is thatoffences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receiveconcurrent sentences, while all other offences are to receive consecutive sentences. (see, e.g., R. v. Arbuthnot, 2009 MBCA 106, 245Man.R. (2d) 244, at paras. 18-21; R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211, at para. 84; R. v.

Desjardins, 2015 QCCA1774, at para. 29 ). [75] The two aggravated assaults committed by Dennis are unrelated. They were committed against different people in different places,some 3 months apart.

Accordingly, their respective sentences should be served consecutive to each other. [76] When imposing consecutive sentences, the principle of totality comes into play and requires me to ensure that the total sentencedoes not exceed Dennis’ overall culpability, or result in a sentence crushing to him. [77] As stated in Friesen at para 157, there have been divergences in the methodology used when applying totality by various appellatecourts.

Some jurisdictions require the sentencing judge to decide what would be a fit sentence for each offence before considering totality(see, e.g., Hutchings NLCA, at para. 84; R. v. Adams, 2010 NSCA 42, 255 C.C.C. (3d) 150, at paras. 23-28; R. v. Punko, 2010 BCCA365, 258 C.C.C. (3d) 144, at para. 93; R. v. Draper, 2010 MBCA 35, 253 C.C.C. (3d) 351, at paras. 29-30; R. v. J.V., 2014 QCCA 1828,at para. 28 ; R. v. Chicoine, 2019 SKCA 104, 381 C.C.C. (3d) 43, at paras. 66-68). In other jurisdictions, sentencing judges start

by determining an overall fit sentence and then impose individual sentences adding up to the total ( R. v.

Ahmed , 2017 ONCA 76 , 136 O.R. (3d) 403). [ 78 ] I apply the methodology as espoused by the vast majority of appellate courts in the country and decide a fit sentence for each offence before considering totality. [ 79 ] Given the range of sentence, and taking into account the aggravating and mitigating factors, including that Dennis has served a 3.5 year sentence previously for an aggravated assault and also a significant jail sentence for a relatively recent assault against M.N. causing bodily harm to her, as well as the fact that Dennis plead guilty, I determine that the appropriate sentence for the assault against A.I. is 4.5 years jail, and the appropriate sentence for the assault against M.N., is also 4.5 years jail. [ 80 ] The appropriate sentence for resisting arrest is 60 days concurrent to the assault on M.N.

This sentence is concurrent as both charges were part of the same event. [ 81 ] The appropriate sentence for the assault on R.Q. is 60 days jail consecutive, with 30 days concurrent for being unlawfully in a dwelling. [ 82 ] The appropriate sentence for the breach of bail is 30 days consecutive. [ 83 ] Cumulatively this is a sentence of nine years and 3 months, which in light of the mitigating factors, including the guilty pleas, Gladue factors, and the fact that Dennis will serve his sentence far from home, I find to be excessive. [ 84 ] Accordingly I employ the principle of totality and reduce the overall sentence to the one suggested by the Crown, 7 years. [ 85 ] The actual sentence, then, is as follows: • 41 months, or 1230 days, for the aggravated assault on A.I. • 41 months, or 1230 days, for the aggravated assault on M.N., to be served consecutively. • 30 days concurrent for the resist arrest charge • 30 days consecutive for the assault on R.Q. • 30 days concurrent for the unlawfully in a dwelling house • 30 days consecutive for the breach of bail [ 86 ] Total Global Sentence: 2520 days [ 87 ] I give Dennis credit for his pre-sentence custody of 537 days at an enhanced credit of 1 to 1.5 for 806 days credit, and reduce the sentence by that amount, leaving Dennis with 1714 or roughly 4.7 years left to serve.

[ 88 ] This is a significant sentence but it does not exceed Dennis’ overall culpability, nor is it crushing. A. Ancillary Orders 1. DNA order 2. s. 109 firearms prohibition for life 3. s. 113 – exemption recommended to allow him to possess a firearm while on the land for sustenance hunting purposes 4. s. 743.21(1) – he shall have no contact with M.N, A.I., or R.Q., while serving his sentence. Dated at the City of Iqaluit this 2 nd day of May, 2023 ___________________ Justice C. Lyons Nunavut Court of Justice