R. v. Nowdlak, 2012 NUCJ 19

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Nowdlak, 2012 NUCJ 19 Date: 20121113 Docket: 08-09-70 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jimmy Nowdlak ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): A. Porteous Counsel (Accused): L. Stevens Location Heard: Iqaluit, Nunavut Date Heard: November 1, 2012 Matters: Criminal Code, s. 236 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION

[ 1 ] In the early evening hours of September 8, 2008, Maria Amarualik left her room at the medical boarding residence in Iqaluit. She intended to walk to her sister’s place. Maria hoped to console her sister who had experienced a family tragedy some two days earlier. Maria never arrived. [ 2 ] Maria Amarualik was attacked behind Inuksuk high school. She was taken to the ground with sufficient force to dislodge her dentures. She was beaten and dragged a distance of approximately 50 feet. Her pants were then removed and she was sexually assaulted.

The intervention of a citizen, attracted by Maria’s screams, put an end to the sexual assault. [ 3 ] The sequencing of these events is not entirely clear. It cannot be determined whether Ms. Amaralik was struck first causing her to fall to the ground or whether she was first shoved or tackled to the ground and then beaten. [ 4 ] What is certain is that in the course of the assault, Ms. Amarualik sustained a serious brain injury. Her cheekbone was fractured. Both sides of her jaw were broken. Forensic science suggests that the injuries to Ms. Amarualik’s face were caused by a minimum of at least two heavy blows.

The brain injury was likely caused by Ms. Amarualik’s fall to the ground. [ 5 ] Ms. Amarualik was medevaced to Ottawa for emergency medical treatment. When out of immediate danger, she was transferred from the hospital to a long term care facility. The broken bones would eventually heal but medical science was powerless to undo the damage caused by the brain injury. This injury had left Ms. Amarualik partially paralyzed. She was unable to walk. She was unable to swallow properly or feed herself. She was unable to properly communicate. Ms.

Amarualik’s treatment needs resulted in her seclusion far from friends and family in Nunavut. [ 6 ] The attack of September 8th may have robbed Maria of her personal dignity but the resulting brain injury cruelly stripped away Maria’s personal autonomy and destroyed her quality of life. [ 7 ] Recurring lung infections ultimately resulted in Ms. Amarualik contracting pneumonia. She was readmitted to hospital. Approximately two years after the attack, death intervened to end Maria Amarualik’s life and her family’s torment.

Maria was fifty six years of age and a single mother of three children. [ 8 ] Jimmy Nowdlak accepts responsibility for the attack on Maria Amarualik. He has pled guilty to a single count of manslaughter and is now to be sentenced for this offence. II. PERSONAL CIRCUMSTANCES OF THE ACCUSED [ 9 ] Mr. Nowdlak is 29 years of age. He has been born and raised in Nunavut and is of Inuit descent. He has a grade 10 education, but is functioning well below this grade level. Mr.

Nowdlak is the product of an education system in Nunavut that allows for the “social promotion” of students who are performing below grade level standards. Mr. Nowdlak has no indicated special needs. [ 10 ] Mr. Nowdlak was raised by his grandmother. He is the second youngest of 13 siblings. There is no suggestion that Mr. Nowdlak was exposed to violence or abuse of any kind during his formative years. [ 11 ] Mr. Nowdlak has developed an addiction to alcohol. [ 12 ] Mr. Nowdlak comes before the Court with a record. There are 16 entries from Youth Justice Court accumulated between 1996 and 2000.

There are an additional 16 entries from adult court acquired between 2001 and 2009. Seven of these convictions were entered after the commission of the offence now before the Court. The record is unbroken except for a span of approximately 2 and a half years between October 2005 and May 2008. Mr. Nowdlak has been in custody since being arrested in January 2009, upon a charge of aggravated sexual assault.

[ 13 ] The youth and adult records are primarily related to crimes against property and breaches of court process. There are two entries for common assault involving assaults on other males. There is no history of sexual offending. [ 14 ] Beyond Mr. Nowdlak’s addiction to alcohol, there is nothing before the Court to explain why Mr. Nowdlak continues to reoffend. III. ANALYSIS A. The inferences to be drawn from the admitted facts [ 15 ] There is no direct evidence to indicate what prompted Mr. Nowdlak to attack Ms. Amarualik. [ 16 ] Following the initial attack, Mr. Nowdlak dragged Ms.

Amarualik a distance of 50 feet where he removed the victim’s pants. Mr. Nowdlak sexually assaulted the complainant at this second location. [ 17 ] There was a purpose behind this movement. It would have taken some time and considerable effort to drag the complainant to this second location. The Court rejects any suggestion that the sexual assault was not in the mind of the accused when the complainant was moved further down the hill and away from the school.

I infer that this forced movement of the victim to a different location was in fact done to facilitate the commission of a sexual assault. [ 18 ] I also infer that, at the point the complainant was dragged along the ground, she was incapable of effectively defending herself. Ms. Amarualik was completely incoherent when the police arrived at the crime scene, some minutes after her assailant fled the scene.

There is no evidence that the accused sustained any injuries as a result of the deceased attempting to defend herself. [ 19 ] The Court infers that the struggle with the complainant was entirely one sided. [ 20 ] If the forced relocation of the victim was done to facilitate a sexual assault, then what, if any, inferences can be drawn as to the purpose behind the initial attack? There is nothing to suggest that the complainant’s property was disturbed. There is nothing to suggest that this was a robbery gone wrong. There is no evidence to suggest that Ms. Amarualik and Mr. Nowdlak knew each other.

On the basis of the admitted facts, the Court rules out any suggestion that there was some provocation or pre-existing grievance behind the attack. [ 21 ] The Court rejects the proposition that the initial attack on Maria Amarualik was done by Mr. Nowdlak with no particular purpose in mind. [ 22 ] The only reasonable inference arising from the admitted facts is that the initial attack was done to carry out an intended sexual assault. Sufficient force was used in this initial attack to neutralize any resistance.

Given the type and degree of force applied by the accused to the face of the complainant, the Court infers that this accused intended to cause the complainant serious bodily harm when he struck her as he did. There is no suggestion that the complainant had any special medical condition making her readily susceptible to fractures. The close-up photograph of the complainant’s face (Exhibit S-6) graphically depicts the extent of the complainant’s injuries. [ 23 ] Mr. Nowdlak may not have intended to cause death. He may not have specifically intended to cause the complainant a brain injury.

He may not have foreseen as a “likelihood” Ms. Amarualik’s heavy fall to the ground causing the level of injury that it did. This being said, he ought to have foreseen that a life threatening head injury was certainly a possible consequence in the event the victim’s head struck the ground in the course of such a fall. [ 24 ] It is said that Mr. Nowdlak was grossly intoxicated during the commission of this offence. He claims to have no memory of the circumstances of this offence as a result of this condition.

[ 25 ] The Court notes that this state of intoxication was not severe enough to prevent Mr. Nowdlak’s dragging the adult complainant a distance of approximately 50 feet from the location of the initial attack. This would have taken some coordination and physical dexterity, particularly if the complainant was conscious. [ 26 ] The Court notes that despite his intoxication,Mr. Nowdlak was able to flee the crime scene on foot. He was chased away from the victim by an intervening citizen. [ 27 ] Nor did Mr. Nowdlak’s impairment prevent him from understanding that he was committing a serious crime. Mr.

Nowdlak pulled up his pants and took flight after a bystander indicated that the police were being called. B. Mitigating factors [ 28 ] Mr. Nowdlak has entered a guilty plea to the manslaughter charge. Prior to Ms. Amarualik’s death, Mr. Nowdlak was charged with aggravated sexual assault. He elected to have a preliminary inquiry. This resulted in some delay. Mr. Nowdlak did not enter a guilty plea to this charge. [ 29 ] As a result of Ms. Amarualik’s death, the charge of aggravated sexual assault was upgraded to a charge of first degree murder. Mr. Nowdlak again elected to have a preliminary inquiry.

This once again caused additional delay. Mr. Nowdlak was eventually committed to stand trial on a reduced charge of manslaughter, there being insufficient evidence to establish the necessary intent for the crime of murder. It was only after this preliminary inquiry, and the delay associated with independent testing of the DNA implicating Mr. Nowdlak, that a guilty plea was entered to the charge of manslaughter. [ 30 ] A hair found in the complainant’s panties had been analyzed and confirmed by DNA analysis to have originated from the accused.

A pair of sunglasses found at the scene of the initial attack also was found to have the accused’s DNA. These sunglasses belonged to Mr. Nowdlak. [ 31 ] The guilty plea has spared the state the expense of a trial. It has also spared the family of the deceased the agony associated with the uncertainty of the trial process. Mr. Nowdlak is entitled to some credit in mitigation of sentence for this guilty plea. This plea is not entitled to the same weight as a guilty plea at first instance, however. [ 32 ] Once arrested for this incident, Mr. Nowdlak consented to his detention.

He has been in pre-trial detention for a period of approximately three and a half years. Difficult conditions associated with overcrowding within Nunavut’s only correctional institution, the Baffin Correctional Center, merit enhanced credit for pre-trial detention. Approximately 12 months of this time has been spent in segregation. [ 33 ] The offence was committed prior to the Truth in Sentencing amendments to the Criminal Code coming into effect. These substantive changes to the law cannot be applied retroactively.

The long standing practice of this Court prior to this change in the law was to afford prisoners credit for pre-trial detention at a rate of 2 for 1. Mr. Nowdlak was not detained as a result of breaching any form of court process. There is no statutory remission associated with this pre-trial detention. [ 34 ] In the circumstances of Mr. Nowdlak’s detention, I see no reason to deny Mr.

Nowdlak the credit ordinarily applicable to prisoners when this offence was committed. [ 35 ] To avoid double credit for pre-trial detention, the Court has deducted from its calculation the 4 month term of imprisonment for a sentence imposed in 2009. C. Aggravating factors [ 36 ] The deceased was vulnerable because of her age.

[ 37 ] The attack occurred in a public place. The attack occurred in an area adjacent to a school and within sight and earshot of private residences. [ 38 ] The attack was persistent. After the complainant was taken to the ground and beaten, she was physically dragged to a different location. The attack only ended with the intervention of a citizen and the threat of police involvement. [ 39 ] At a time proximate to the infliction of serious bodily harm, the accused sexually assaulted his victim. [ 40 ] The Court infers that the initial attack on the deceased was done to facilitate an intended sexual assault.

Putting the victim on the ground was an integral part of the sexual assault. There is a direct link between the commission of an indictable sexual assault by this accused and the victim sustaining the head injury that ultimately took Ms. Amarualik’s life. D. Applicable sentencing principles [ 41 ] In arriving at the form and duration of the sentence to be imposed in this case, the Court has given anxious consideration to the purpose and principles of sentencing set out in

section 718 through 718.1 of the Criminal Code . Denunciation and deterrence, both general and specific, are the foremost sentencing principles to be applied in cases involving homicides. There is a compelling need to do so in Nunavut, where the per capita rate for both homicide and sexual assault exceeds the national rate by many times. [ 42 ] In 2010, the homicide rate in Nunavut stood at 18.1 homicides per 100,000 people, compared to 1.6 homicides per 100,000 for all of Canada . There have been 47 charges of homicide in Nunavut since 2000. Eight citizens were charged from incidents arising in 2010 alone.

As of May 11, 2012, there were 16 homicide allegations before the Nunavut Court of Justice. There are more homicide charges now pending in Nunavut than in the other two territories combined. [ 43 ] In 2010, Canada as a whole averaged 65 reported sexual assaults per 100,000 citizens while the rate in Nunavut was almost ten times higher at 608 sexual assaults per 100,000 citizens . [ 44 ] It is deterrence, denunciation and protection of the public, not rehabilitation that must be the foremost consideration of a sentencing court dealing with serious crimes against the person.

This is so, particularly in cases involving vulnerable victims. Rehabilitation of the offender remains an important objective of the sentencing process, but this must ordinarily take a backseat to the other sentencing objectives in cases of this kind. E. Gladue considerations [ 45 ] In arriving at the form and duration of this sentence, the Court is required to consider Mr. Nowdlak’s life circumstances as an aboriginal citizen growing up in a remote arctic community.

It has done so. [ 46 ] In the space of less than three generations, the Inuit have moved from a nomadic hunting life on the land to a life in the settlements. The traditional values of Inuit society are under siege. Language is threatened. Many Inuit long for the benefits they see on TV. They are held back by chronic poverty and a lack of opportunity for advancement. Employment is scarce, and the promise held out by education rings hollow. [ 47 ] Many young adults in Nunavut are no longer comfortable living a traditional lifestyle on the land. Some have turned to substance abuse to ease their boredom.

A growing number take their lives out of desperation – they see no way out. Alcohol or drug dependence brings with it an economic need to finance the addiction. Some citizens are tempted to turn to property related crime in order to finance their continued addiction. Jimmy Nowdlak is likely one of these.

F. Victim Impact [ 48 ] Sentencing is a human process. The sentence imposed for this offense must be proportional to the overall seriousness of the offence. Victim impact is quite properly considered when assessing seriousness. Seriousness cannot be measured solely by reference to an offender’s moral culpability and the offence’s general characteristics – in this case an unlawful act that ultimately resulted in the unintended loss of a life. Ms. Amarualik not only lost her life as a result of this offence, but she languished for almost two years before death mercifully eased her way out of this world.

This was not a quick or easy death for Maria Amarualik, or her family. [ 49 ] Ms. Amarualik’s three children have lost their mother. They have been given a life sentence from which there is no escape. There is no possibility of parole. The children’s lives have been profoundly diminished by this loss. [ 50 ] Nothing can replace what has been taken from them.

The family photographs will bring a flood of memories, memories that are now forever seared with the knowledge of this great loss. [ 51 ] The Victim Impact statement (Exhibit S-4) filed in this proceeding speaks to the awful emotional consequences that this death has had on its author. Inconsolable grief and self-blame now fuels an alcohol problem that threatens to engulf other family members in an outwardly expanding wave of human misery. G. Community Impact [ 52 ] This random act of violence caused great fear in the City of Iqaluit. Until the perpetrator was arrested, many citizens feared for their safety.

The public alarm generated by this incident caused the City to form a Public Safety Committee in December 2008 in an effort to address issues related to violence and violence prevention in Iqaluit . IV. CONCLUSION A. Address to the accused [ 53 ] Mr. Nowdlak has told his counsel that he did not think he was capable of committing this offense. [ 54 ] There may not be any real explanation for Mr. Nowdlak’s violence beyond his own anger and history of self-destructive substance abuse. Mr. Nowdlak was angry on the night of September 8th. He had told a friend that he wanted to beat someone up.

Maria Amarualik was unlucky enough to be present when Mr. Nowdlak exploded. [ 55 ] The sad reality is that there is often no rational reason for the violence offered to others. Many of Nunavut’s serious violent crimes are committed by those who are drunk. Many wake up after a night of drinking to discover that they have committed horrific crimes against strangers and even those they claim to love. Many claim to be surprised when they are implicated in this violence. This is the face of violent crime in Nunavut. It is often as irrational, as it is devastating, to those who are exposed to it. [ 56 ] Mr.

Nowdlak has had a long standing problem with substance abuse. He alone owns this problem. He alone has the responsibility for healing. Mr. Nowdlak has been a burden upon his community for years. He has had many opportunities to change. Ms. Amarualik, Ms. Amarualik’s children, and her family have all paid a terrible price for Mr. Nowdlak’s weakness. [ 57 ] In the event that Mr. Nowdlak does not now take his own healing seriously, he may find the National Parole Board unwilling to grant him parole. He could be held in prison until warrant expiry. This would be a terrible waste of a human life. B.

Address to the family of the deceased

[ 58 ] As individual family members, and as a community, we are all diminished when a life is taken from us prematurely. This Court is powerless to give back what has been taken. Nothing that this Court can say or do can compensate the Amarualik family for what they have lost. This family’s anger is understandable. [ 59 ] The sentence that this Court imposes today is not a reflection upon the value of the life that has been lost or the value of human life generally.

The Court understands that from the perspective of a grieving family member, no sentence, no amount of gaol, can possibly equal what has been taken or replace what has been lost. [ 60 ] No one is to blame for Ms. Amarualik’s death except Mr. Nowdlak. He alone bears the responsibility for this tragedy. C. Moral culpability and offense seriousness [ 61 ] The unintended injury that ultimately took the life of Ms. Amarualik was inflicted in the course of the accused committing or attempting to commit an indictable sexual assault.

This significantly elevates the seriousness of this offense. [ 62 ] There is no suggestion on the evidence that Maria Amarualik was able to effectively defend herself from the attack. Where harm is inflicted upon a vulnerable victim, the moral culpability associated with the offence is higher. The sentence should reflect this. D. The Sentence [ 63 ] Mr. Nowdlak has already served three and a half years in pre-trial detention. He receives credit at the rate of two to one for this time to compensate for the absence of any statutory remission.

His credit for pre-trial detention therefore stands at 7 years. [ 64 ] Today Mr. Nowdlak is sentenced to an additional term of custody of five years. This will be served in a Federal penitentiary. The sentence imposed upon Mr. Nowdlak is the legal equivalent of a 12 year sentence. Had Mr. Nowdlak been convicted after trial, the sentence would have been higher to reflect the absence of a mitigating guilty plea. [ 65 ] The Court recommends on the warrant of committal that Mr.

Nowdlak be considered for placement at the Fenbrook institution in Ontario in order to facilitate his access to culturally appropriate programming. [ 66 ] The Court recommends that he be provided with programming to address issues related to his substance abuse, anger management and sexual offending. E. Ancillary Orders [ 67 ] There will be a DNA order. It is mandatory for this offence. [ 68 ] There will be a firearms prohibition order for 10 years. There will be a lifetime prohibition upon Mr. Nowdlak possessing any restricted firearm or cross-bow.

Any firearms, ammunition or explosives, restricted firearms or cross-bows must be immediately surrendered to the RCMP together with any firearms licenses and Firearms Acquisition Certificate. Any such items are ordered forfeited to the Attorney General. [ 69 ] Given the commission of the sexual offense, there will be an order that Mr. Nowdlak submit himself to the processes of the Sex Offender Registry. This order will be for life. [ 70 ] The Victim Fine Surcharge is waived for reasons of hardship.

Dated at the City of Iqaluit this 13th day of November, 2012 ___________________ Justice R. Kilpatrick Nunavut Court of Justice