R v Peter, 2014 NUCJ 28

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v Peter, 2014 NUCJ 28 Date: 20140912 Docket: 08-13-152 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Pitseolak Peter ________________________________________________________________________ Before: The Honourable Mr. Justice Rooke Counsel (Crown): Jay Potter Counsel (Accused): James Morton Location Heard: Iqaluit, Nunavut Date Heard: September 12, 2014 Matters: Criminal Code, s. 235(1) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) Disclaimer Page

Amended Decision: An amended decision was issued on November, 05, 2014. The corrections have been made to the text and theamendment is appended to end of this judgment. I. INTRODUCTION [1] In this case Mr. Peter was charged that, “On or about the 3rd day of February, 2013, in the City of Iqaluit in the Nunavut Territorydid commit second degree murder on the person of Kathy Michael contrary to section 235(1) of the Canadian Criminal Code [CriminalCode]. [2] That was the charge. A. GUILT/CONVICTION [3] He was found guilty of, and convicted for, the charge that is included, of manslaughter.

The reason for that result -- and I say thismore for laypersons than for Counsel present -- “…relates to the mental element as to whether he meant to cause bodily harm that heknew was likely to cause death and was reckless about whether or not it caused death.” [4] This is described in more full detail in a number of cases, and I will refer to one of those in a moment. [5] The case of R v Ammaklak, 2008 NUCJ 27, 2008 CarswellNun 27 [Ammaklak], talks about this result [finding of manslaughter ona charge of second degree murder] in that case, but it is applicable to this case and, again, for the benefit of the public and those present,at paragraph 33, the Court, consisting of Senior Justice Kilpatrick says: Murder is an offence reserved for those who deliberately take life or recklessly Court death when deliberately causing serious bodilyharm to others.

It is the thought process behind this conscious willful act that causes the crime of murder to carry the greatest socialstigma and the highest legal penalties provided by law for criminal misconduct. Significant intoxication may interfere with anindividual’s ability to measure or foresee the consequences of their action. It may raise a reasonable doubt as to whether an accusedactually understood death to be a likely consequence when inflicting bodily harm on another. In these circumstances an accused must begiven the benefit of any reasonable doubt.

In these circumstances an accused may be convicted of the crime of manslaughter. Theaccused’s legal liability is reduced to take into account the effect of intoxication on the accused’s state of mind. [6] And that is the situation in the evidence in this case. There was evidence to support a charge of second degree murder as to theeffects of intoxication where the police evidence was to the effect that he wasn’t that intoxicated. [7] There was conflicting evidence from among others the EMS personnel that suggested he was quite intoxicated.

In the face of thatevidence, the Court exercised a reasonable doubt and convicted him of manslaughter in the end result. [8] The difference is a difference in sentencing. It is not a difference in the physical conduct and it is not a difference in the result.

Thephysical conduct is that he severely beat the victim and she died. [9] Had he been convicted as charged, he would have been sentenced to life imprisonment automatically with no eligibility for parolefor a minimum of ten years to a maximum of twenty-five years. [10] We see in one case here before us, in R v VanEindhoven, 2013 NUCJ 30, (NUCJ) [VanEindhoven], where, insuch a case, the ineligibility for parole was thirteen years. That means nineteen years with no opportunity to get out.

[ 11 ] With respect to manslaughter it is different. One of the Counsel provided me with a text…in the text of Ruby on Sentencing at page 835 and subsequent pages, there is a passage that tells a lot. It says: No sentencing discretion is wider than that for manslaughter: As for sentencing, manslaughter is …a crime which varies very greatly in its seriousness. It may sometimes come very close to inadvertence. That is one end of the scale. At the other end of the scale it may sometimes come very close to murder.” Under

Section 236 of the Criminal Code , the maximum punishment for manslaughter is life imprisonment. [ 12 ] Therefore, the potentially available sentence in this case is from zero -- i.e., a suspended sentence -- to life imprisonment. There is eligibility for parole, unless it is specifically ordered by the Court that there be a period of ineligibility. That application has not been made here.

Therefore, the quantum of the punishment for this offence is whether it is near accident or inadvertence, which was clearly rejected by the Court, in what I would call the liability phase or the conviction phase, and it is rejected now. [ 13 ] I find that it is much closer to near murder, as opposed to near accident or inadvertence or, indeed, in between. It is at the very high end of the scale. [ 14 ] The same text in the next paragraph says this: “Manslaughter cases arise out of escalated family tensions or altercations stemming from a pre-existing relationship with the Victim.

Drugs and alcohol are a commonly observed factor.” [ 15 ] That is very much the case here. [ 16 ] There is no difference in the result, as I have indicated. The Deceased, found naked in a bathtub in her own home which she shared with the offender, was found comatose and fourteen days later, in Ottawa, after medical evacuation and notwithstanding significant medical intervention, died at the age of fifty-two from the injuries she suffered at the hands of the offender. [ 17 ] So the legal niceties do not change the result.

It is relevant to note, and I will touch on this further, that this was a mere twelve days after the offender had been released from jail on conditions of not having contact, with or consuming alcohol, after he had spent four months in custody for beating the same victim. II.

BACKGROUND FACTS [ 18 ] The Agreed Statement of Facts in this case sets out some pre-offence facts that are very relevant and I will read some paragraphs of those, starting at paragraph two, and I am going to just read between the lines as it were: On December 23, 2011 … [the Victim] and the Offender were intoxicated… During the evening [the Offender] became angry with [the Victim] and attacked her, punched her in the head with his fists while [she] was on the floor. [ 19 ] It goes on to say, “No weapons were used.” Indeed, weapons were used – his fists; that there was bruising and swelling to the victim’s face at that time.

[ 20 ] Nine months later, on September 28, 2012, both the victim and the offender were intoxicated. During that evening the offender attacked the victim, biting her on the hand and left cheek, and at the same time he punched another person with his hand three times in the face.

It says, “No weapon was used.” Yes, there was a weapon used, it was his hand, it was his fist. [ 21 ] The offender was subject at that time to Court orders requiring him not to have contact with the victim, consume or be under the influence of alcohol and to abide by a curfew; none of which he followed. [ 22 ] With respect to the subject offence, the injuries and the assaults or the results of the assaults were detailed in the trial that led to the conviction.

Again, to use the terms of the Agreed Statement of Fact, I quote, “No weapons were used.” [ 23 ] Except it is pretty clear, by implication, but clear nevertheless, that his hands were the weapons and her body was the weapon. His hands and perhaps his feet, I’m not sure about the latter, were used to pummel and bruise the victim. [ 24 ] Her own body was used by striking it against hard objects, such as the heat register, one or more times. I note that a neighbour testified at the trial of hearing a bang, bang, bang sound.

At the trial, while there is no direct evidence to confirm it, I found that bang, bang, bang was consistent with her head being slammed by the accused, now the offender, against that heat register. [ 25 ] His excuse, and the Court didn’t accept his credibility, was that she was chopping frozen fish with a hatchet.

There is no evidence before the Court of any hatchet and his credibility is not reliable. [ 26 ] She was pushed by his hands against the walls of the bedroom and hallway and there [are] marks on those walls indicating impact, clearly indicating from her body. [ 27 ] She was extremely intoxicated at the time - three times the driving limit - which would have made her prone to, if not, passed out. [ 28 ] There were weapons used. Because one doesn’t use a knife or a gun doesn’t mean there wasn’t weapons. One can use a fist and knock someone out. We have seen that on TV very graphically in the last few days.

One uses one’s hands as the weapon. In this case the walls were the weapons. The register was the weapon and the assault was pushing, slamming, and banging the victim’s body against those hard objects. [ 29 ] At the same time, there were no injuries to the offender.

There is no evidence that she fought back or had the ability to fight back. [ 30 ] Notwithstanding that, there was post-offence conduct of him washing her and him and hands and objects, and there is lots of evidence of dilution of some of the evidence, which is clear if only implicit from the evidence. [ 31 ] The Crown argued before me that this was not one incidence of spontaneous striking out or acting out, but it was actions of a prolonged beating and the details, which I will not go through in great detail, are contained in the evidence that was read into the decision at trial. [ 32 ] One can look at Exhibit 13A for the contact of the deceased’s head against the heat register one or more times.

Many impacts against the walls in the bedroom and leading to the bathroom in Exhibits 13B and 16, a minimum of four impacts on the walls; the injuries resulted in the death. [ 33 ] The cause of the death, as found at trial and repeated here is, quote, “Complication of blunt impact head trauma” as set out in Exhibit 1. There are many injuries that were documented in Exhibit 1 and in the evidence at trial. [ 34 ] This point is picked up in Ammaklak , at paragraph 24 . They are dealing with those facts, but generally those facts apply equally to

this case: The fatal injury was part of a persistent and prolonged attack that … did cause serious bodily harm to the Victim. Even if there is somedoubt as to whether the fatal blow … was actually foreseen by him as a consequence of his intoxication, this was not a situationinvolving a brief application of force. Nor was this a situation involving a limited application of force. There was not just one blow,there were many.

The beating and bodily harm associated with it cannot be characterized as a near accident… [35] … and the Court so found. [36] As I said, the deceased was highly intoxicated at the time, a blood alcohol reading of 268 milligrams of alcohol in a hundredmilliliters of blood, which I take it to be .268 as opposed to the driving limit of .08. It is 3.35 times the amount of that level ofintoxication.

She was highly intoxicated, and then I will come back, that is relevant. [37] At Exhibit 1 at trial there is a detailed description, which I will not read – I think I read it then, I will not read it again – at pages 16and 17 of 18, under the heading “What was the mechanism of the head injury?” and a couple of the points indicate, among other things,without me rereading it -- one can go back to the text of my decision at trial -- “…multiple blunt impact injuries to the head.” [38] And it goes on, “The injuries were a result of a firm object impacting the head or the head being impacting against a firm, unyielding surface (such as afloor or wall).

The injuries could also have resulted from punches or kicks to the head.” [39] And it goes on under the heading, “What is the significance of the other injuries to the body?”, and that is also relevant to the casein sentencing. [40] As I said a moment ago, and I add again, there is also evidence of post-offence conduct which was relevant to the conviction, but italso is a sentencing aggravating factor, where the offender bathed himself, in whole or in part, and bathed the deceased in the tub. Thereis evidence throughout the house of clean up. III. PRINCIPLES OF SENTENCING [41]

Section 18 of the Criminal Code sets out as follows: The fundamental purpose of sentencing is to contribute … to respect for the law and the maintenance of a just, peaceful and safe societyby imposing just sanctions that have one or more of the following objectives. [42] In other words, the Court has a duty to fix a just and fit sentence. [43] There are a number of objectives that are listed in

section 718. A. Denunciation of Unlawful Conduct [44] The first is to denounce unlawful conduct and, in this case, in the death of a person in the most extreme way, to denounce it asmuch as the Court can of how despicable

an act this is by a sober or intoxicated person. Sub-paragraph B is deterrence. I will come backto B. But looking at R v Anablak, 2008 NUCJ 09, 2008 NUCJ 9 [Anablak], at paragraph 22, the Court says, and I quote,

The primary focus of this sentencing must be denunciation and deterrence. By emphasizing these sentencing principles, the Court tries to protect the fundamental social values that were devalued by [the Offender’s] conduct towards his spouse. The Court notes the Nunavut territory leads this country in its per capita rate of violent crime. Most of this violence is of domestic origin. Much of this violence is committed by citizens who are under the influence of alcohol. [ 45 ] Those were the comments of Justice Kilpatrick in 2008. It doesn’t seem to be getting any better. It seems to be getting worse.

It seems to me there is a time for a greater consequence than those times and it is time to revise what was the kind of maximum range at that time. [ 46 ] It isn’t getting through to the population. It isn’t deterring specific offenders and it isn’t deterring offenders or potential offenders generally. [ 47 ] At an unknown page -- because the copy I’ve got had the pages cut off -- of the decision of Mr. Justice Sharkey in R v Kinak, (September 20, 2011), Nunavut 14-08-4 (NUCJ) [Kinak], and it is about four pages from the end of that transcript, he said, quote:.

What The Court must do in cases such as this, in cases of spousal manslaughter, is to impose a sentence which emphasizes the sentencing objectives of deterrence and denunciation, and in particular, denunciation. The sentence imposed by the Court in cases of spousal manslaughter must reflect the abhorrence that the people in Nunavut have for this type of unlawful conduct. The sentences imposed in cases of spousal manslaughter must assure the public that the Court considers this crime, the crime of killing your spouse in a drunken rage, seriously.

This can only be accomplished by the imposition of a significant penitentiary term upon the Offender. (Transcript at 69-70). [ 48 ] So that makes it clear. It is not just the Court that is abhorred, it is the community that is abhorred and everybody should be abhorred and, therefore, there must be denunciation, and a penitentiary sentence of appropriate length and a balanced sentence must be handed out. B. Deterrence (i). Specific Deterrence [ 49 ] Then going to deterrence, first of all, there is specific deterrence, that is, deterrence for this offender.

I will come back to his record, but he has had a record of spousal assault on more than one victim. Thankfully, only one death; no thanks for the fact that there is only one, that there is one, but it is a continued pattern that he has had for a number of years going back to 1991. [ 50 ] For twelve years he has a record that is spattered with spousal assaults, at least four recorded convictions for assaults of his previous spouse between 1990 and 1995, and then at least two before this event with this most current spouse. [ 51 ] He is not getting the message. There needs to be specific deterrence.

He is dynamite when he is associated with a spouse and alcohol. The inevitable result has been in many cases assaults, assaults causing bodily harm and now death at the hands of this offender. [ 52 ] He must be specifically deterred and he must have a sentence long enough to get the treatment, the education, and the counseling, necessary to ensure that he never commits a spousal assault or assault on someone with which he has a relationship of trust or, indeed, any person. [ 53 ] It is not that he can’t have alcohol. In a simple sense of that word it is he cannot handle alcohol. He becomes a violent person.

He must be specifically deterred.

[ 54 ] At paragraph 23 of Anablak, Justice Kilpatrick said of that offender, and I quote, in part: In the circumstances of this case there is an emphatic need to deter [the Offender] who took his partner’s life while under sentence for a related offence. [ 55 ] The offender here was still on probation and in the last one he had been given time in custody.

He had an eighteen-month probation from the previous one. [ 56 ] He goes on to say: “An exemplary sentence is called for where an offender shows a contemptuous disregard for lawful process resulting in the taking of a life.” [ 57 ] He had complete disregard for the directions that had been given in the past and specifically those of Justice Foisy twelve days prior to this offence… And I’ll come back to that. (ii). General Deterrence [ 58 ] I turn now to general deterrence.

It appears that men in Nunavut, men in this community and men in the broader Territory are not getting the message, and primarily, and specifically in this case, aboriginal men are not getting the message about attacks against women and, worse still, aboriginal men attacking aboriginal women. The statistics haven’t changed much. I haven’t looked at the most recent, I don’t intend to, but they are there and they are a public record. [ 59 ] This offence is a crime and it may also be a social problem. The Court cannot deal with the social problem.

That is in the hands of governments to deal with, but the Court can deal with the crime and can send a message to all men out there, and aboriginal men in particular, that they are not to assault their spouses, they are not to cause bodily harm and they are not to cause death, and that if they do so, they will get the severest punishment available at law and that the fact that they were intoxicated to give them some sort of an “excuse” is not [a real] excuse.

They will still get a significant sentence. [ 60 ] There is a [national] campaign of which I take some note in the media by aboriginal women that says, quote, “Am I next?” Well, all of the women, and especially the aboriginal women in Iqaluit, can ask that same question. [ 61 ] Spouses in this community, especially spouses of aboriginal men who can’t control their violent behaviors, can ask themselves that same question. [ 62 ] Anybody who is unfortunate to ever have a relationship of a spousal nature with this offender in the future can ask that question, and with his history, unless there is a change, the answer will be, “Quite likely you are next”. [ 63 ] This offender needs to get the message, the public needs to get the message, and the so-called high end of sentencing is not sufficient.

Fifteen years is not sufficient. It is light years away from a life imprisonment, which is available for manslaughter. [ 64 ] And I note the fifteen and fourteen and thirteen-year sentences that were given in some cases -- and I will refer to these later -- were often given where there was a guilty plea. Well, there is a significant reduction, often a half. So add another seven years to those, add another six years to those, to what might be an appropriate sentence.

It is a way over fifteen and it is certainly twenty and maybe more. [ 65 ] [A maximum of] fifteen years doesn’t cut it because the statistics show that aboriginal men in Nunavut -- and there may be some other non-aboriginal men, but primarily aboriginal men in Nunavut -- are not getting the message and they need to understand that there is a message. The Court can do more, but it is not getting through. [ 66 ] The higher limit needs to change and it seems to me that it needs to start with a death and any prior conduct at about twelve plus years and fifteen as the high is not enough.

C. Protection of the Public Through Separation Where Necessary [ 67 ] Well, jail is absolutely necessary and it has been necessary for the last five hundred and eighty-five days - I will come back to that - and it is necessary for many years in the future. D.

Assist in Rehabilitation [ 68 ] We know that in most cases, and certainly in this one, if he survives prison, that this offender will be released one day and with the parole laws, which I am not to take into account, it will be probably less than the sentence I give him. [ 69 ] And so, the Court has to set and trust the authorities to get their acts together to provide training, treatment, counseling, and to rehabilitate this offender. [ 70 ] When he is sober it seems like he is a pretty good guy. He’s got a job most of the time. He’s got skills.

He can gain more skills in prison with the right motivation and programming. [ 71 ] He has taken some treatment. It didn’t do him any good. He took anger management and he took alcoholic treatment. Twelve days later he commits manslaughter against his spouse [while intoxicated]. [ 72 ] This needs to sink in and he needs sufficient time for that to sink in so that if he is released he has the prospect of doing his family proud and becoming an elder in his community, like his Mother and Father are; not the retch of the community like he now is. A large sentence can only assist in rehabilitation. E.

Provide Reparations for the Harm Done to the Victims and the Community [ 73 ] Well that is next to impossible and the Court has said so in the past. [ 74 ] And I am going to refer and quote from Anablak, Justice Kilpatrick’s judgment in 2008, and there at paragraphs 32 - 34, he is talking about that victim. I am going to talk about this victim. The language is the same, the identity is different. So I am just going to use the word ‘Victim’ instead of the name of the person: [The Victim] is now gone.

She leaves behind a grieving family, a family who will be tormented by their memories of [the Victim] for the rest of their lives. Much emotion is generated by this. Feelings of sadness, emptiness and despair; feelings of anger and guilt, will haunt this family for years to come. The empty chair at every family meeting will always remind [the Victim’s] loved ones of just who is missing and why. This pain is real. It will last a life time. 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.

This Court understands that from the perspective of a grieving family member, no sentence, and no amount of gaol, can possibly equal what has been taken, or replace what has been lost. [The Victim’s] death was an unnecessary tragedy. As a family, as a community, as a people, we are diminished when a life is taken from us prematurely. This Court and this community can do nothing to restore the life that has fled. Nothing that this Court can say or do can possibly compensate the [Victim’s] family for what they have lost. Their anger, their sadness is understandable. The Court is

powerless to ease their grief. Only time can do that. [75] And here we see that grief in the Victim Impact Statements that were read to the Court. [76] I adopt the words of Justice Kilpatrick in that case as applicable to this case. The only thing the Court can do is try and work ondenunciation, deterrence, and the possibility of rehabilitation by an appropriate lengthy sentence. F. Promote Responsibility in Offenders and Acknowledgement of the Harm Done to the Victims in the Community [77] We have heard no statements of remorse from this offender – not one.

How would he like it, if instead of sitting in that chair, he’s inthe gallery where someone has done the same to his daughter or his granddaughter or his mother or his sister? [78] He has not given any indication of any acceptance of any responsibility for what he has done and there are ways to do that withoutadmitting guilt. There are ways to express sorryness [sp], to express a wish to pay back the community. [79] The way he can do that is by proper rehabilitation, by never ever offending again of this nature. G.

Other Principles of Sentencing [80] Now there are other principles of sentencing under s. 718.1 and .2 of the Criminal Code, and they include a number of things and Iam going to touch on some of them briefly. (i). Proportionality and Responsibility [81] The first is proportionality to the gravity of the offence and the degree of responsibility of the offender. [82] Justice Cooper, in her decision in R v Ussak, 2013 NUCJ 9 , 2013 NUCJ 09, [2013] Nu J No 12 (LN) [Ussak], talks aboutthis at paragraphs 58 through 60 -- well, 58 primarily.

At the end of paragraph 58 she says, quote: A review of the cases supports the proposition that a wide range of sentences are imposed for manslaughter convictions and each is verydependent on the facts of the particular offence and the circumstances of the particular offender. [83] And we see that her very case is a case that had mitigating, if you will, circumstances for the death of somebody who was a wifebeater, although that didn’t make the offender there completely innocent and she was subject to punishment, and she was neverthelessthe victim. [84] That case clearly doesn’t apply, nor does the sentencing apply here.

The proposition of a wide range of sentences does apply, andwhat is clear to this Court, it is those that are in the 12- and 13- and 14- and 15-year range within this jurisdiction that are to apply. [85] I am going to touch on some of them in the future, but some of the other cases in different circumstances don’t apply – a couple ofones in Alberta, although even there the sentencing is high, in the 12-year range, with the exception of one case that I will touch on. (ii). Aggravating and Mitigating Factors; Similarity of Offences,

Offenders and Circumstances [ 86 ] Other principles of sentencing include: the aggravating and mitigating factors -- and I am going to come back to those; and the similarity of offences, offenders and circumstances. [ 87 ] Again, the point I just made - those cases in Nunavut that are peculiar to the same sort of offence - of aboriginal man against their aboriginal spouses with, in most cases, previous examples of abuse and assaults are very, very much in parity with, at the minimum, the sentence that I intend to give in this case. [ 88 ] One can look at the Anablak case and I have touched upon it.

One can look at the Ammaklak case, and, in particular, paragraph 14. I have touched on this before and I will maybe touch on it again. I don’t want to belabour it, but it makes the same point, and it talks about spousal violence in Nunavut. [ 89 ] At paragraph 22 of Ammaklak, Justice Kilpatrick said, quote: Spousal violence is a pressing concern in the territory of Nunavut. This type of violence accounts for a very significant percentage of all violent crimes committed in this jurisdiction. A significant percentage of all homicides in this territory are of domestic origin. The statistics reflect this.

This Court’s experience reflects this. The territory of Nunavut continues to lead this country in its per capita rate of offences related to domestic violence. Treatment options are few. In this jurisdiction there is a demonstrable need to emphasize general deterrence when addressing sentences in matters involving domestic homicides.

The sentencing range for spousal manslaughter should reflect the unique circumstances of this offence being committed in this jurisdiction. [ 90 ] There are similar comments in Kinak - again, I don’t have the page number … but the passage is half a dozen pages from the end and it starts in the middle of a paragraph.

Our Supreme Court of Canada has said that sentencing across the country can, and should, address circumstances which are particularly prevalent in the various parts of the country, that sentences imposed for a crime should reflect regional needs (Transcript at 61, lines 3-8). [ 91 ] Justice Sharkey goes on to say: In Nunavut, the incidence of spousal and domestic homicide is stunning. The incidents of spousal and domestic abuse is stunning.

It is surpassed only by the paucity of Government services available to address the underlying conditions of this phenomenon (Transcript at 61, lines 9-14). [ 92 ] That may be the case in Nunavut. It should change. There are more programs, I believe -- perhaps not enough, but more programs -- that may be available in the south, where this offender is undoubtedly going to end up. [ 93 ] Also, in VanEindhoven , Justice Johnson, just a few months ago, talks about this and it was referred to in argument, and it gives the details of the numbers at that time. They probably haven’t changed much.

In paragraphs 25 through 28 the same point is made. (iii). Not Unduly Long or Harsh [ 94 ] The next principle is “not unduly long or harsh”. The question becomes, what is undue and the Court is not intended to make it unduly harsh. If the Court wanted to make it unduly harsh, the Court would impose a life sentence with no eligibility for parole for some lengthy period. The sentence must be measured and it shall be. (iv). No Depravation of Liberty if Less Restrictive Sanctions are

Appropriate [95] The next principle is no depravation of liberty if less restrictive sanctions are appropriate. [96] In this case, many cases have been quoted to me, and, in this sentencing, are cases where the courts have been very, very lax -- and Idon’t mean that negative to the courts -- but lax in terms of the result, of a slap on the hand of offenders who beat up their spouses andthen after ten incidents or ‘x’ incidents there is a death because it got carried one step further. [97] In some of those cases it may have been that depravation of liberty should have been more frequently used.

I am not saying thatcritically of the individual judges or sentences, because we try, in the courts, to give offenders an opportunity to learn from their mistakesand provide minimum sanctions under appropriate conditions, which, if obeyed, should protect the public. [98] But offenders, such as this offender, go out, don’t follow the restrictions and, in spite of them, and in their face, flaunt therestrictions and their respect for the law and go out and break those restrictions in cases such as this where this man was restricted fromusing alcohol and he is a time bomb when he has alcohol, as I explained. (v).

Sanctions Other Than Imprisonment [99] Then, sanctions other than imprisonment that are reasonable should be considered. Here, there are none that are reasonable, otherthan prison. [100] It continues on “with particular attention to Aboriginals”, and I want to comment on that.

There is evidence in this case about thisoffender and his aboriginal status, and I will come back to that, but I want to talk about the principle in this case. [101] There is much talk, as I alluded to, about loss of aboriginal women in our country, in our community, sometimes the victims ofviolent offences by strangers, but here we have a violent offence by an aboriginal person who isn’t a stranger. Should there be somebenefit given to an aboriginal man for attacking his aboriginal wife and killing her? She is no less aboriginal than he is.

She is no lessdeserving of consideration than he is; indeed, the contrary. [102] The same principles that are in R v Gladue, (SCC), [1999] SCJ No 19, 133 CCC (3d) 385 [Gladue], and R vIpeelee, 2012 SCC 13 , [2012] SCJ No 13, 280 CCC (3d) 265 [Ipeelee], apply for the benefit of aboriginal women. So to me, itis kind of a non sequitur to talk about consideration for aboriginal men. The consideration should be flowing to aboriginal women asmuch or more and their protection and the consequences of violating them as to consideration of aboriginal men.

So the principle, whilesometimes useful in appropriate circumstances, is backwards in this case. [103] Now in general terms, because we haven’t had much evidence that goes to Gladue and Ipeelee, I note that Justice Cooper in Ussak,has this to say about these factors. She says at paragraphs 64 and 65: It is my duty to consider [the Offender’s] circumstances as an aboriginal Offender in determining a fit sentence. As stated by this Courtin paragraph 20 of the unreported decision R. vs. Eegeesiak: The systemic factors that influence criminality in Nunavut are well known and well documented.

Residential schools and theirintergenerational impact; overcrowded, sub-standard housing; poverty; low levels of education and employment; high rates of alcoholand substance abuse; high rates of domestic violence and sexual abuse; high rates of suicide;… [104] And I pause to say there has been some in the families in this case. Going on:

…all contribute to a crime rate and incarceration significantly higher than the national average. Although the impacts of these systemic factors may not have directly impacted on [the Offender’s] family home during childhood, she is part of a wider community and population within which all members are impacted. [ Ussak , supra para 103] [ 105 ] Well that is the situation here because there is nothing in the pre-sentence report (PSR), and there is no specifically generated Gladue or Ipeelee report, that addresses this particular person. [ 106 ] The PSR shows no particular issues with respect to this offender.

He came from a loving and supporting family. He apparently was mistreated by a teacher and was subject to some bullying at school and he only got a grade six education, but then he went on and he had responsible jobs in industries and elsewhere when he wanted to do so. [ 107 ] His life appears, chronologically, to have fallen apart when his first wife died of cancer and he has never got it back. Well it is time -- it is time to get it back.

It is beyond the time to get it back. [ 108 ] I want to come back to the same point, at the risk of repetition, to make clear that aboriginal men attacking and killing aboriginal women are no more entitled, in my view, to consideration than non-aboriginal men are for attacking any woman. Put another way, aboriginal women are entitled to protection just as much as any other woman, perhaps more due to their cultural circumstances. [ 109 ] This is a current issue and I mentioned the “Am I Next?” campaign.

This applies to all women - but certainly to aboriginal women that are attached to or married to aboriginal men; most certainly to those that are attached to aboriginal men. IV. Evidence and Submissions on Sentencing [ 110 ] The evidence comes through the Victim Impact Statements and Exhibits S1 through S3, and I have referred generally to them.

Unfortunately, while they tell of the grief of the family of this victim and therefore describe the loss -- and touch on the impact of alcohol with respect to the victim as well, which comes back to her vulnerability to which I will comment on -- they are otherwise not overly helpful in trying to direct something more specific than to value the loss of their loved one. [ 111 ] The pre-sentence report, in Exhibit 6, is equally not that helpful. It gives us insight into the offender and his background, but it doesn’t cry out for leniency, it doesn’t cry out for attention.

It describes him in a way, and I have touched on it already, that would seem to indicate that, of aboriginal people in general, and some specifically, he has had many more opportunities than [most] do. [ 112 ] There are no personal circumstances that would mitigate culpability in this case. There are no glaring Gladue/ Ipeelee factors, other than his status as an aboriginal. [ 113 ] The other exhibits include the record, Exhibit S4, and a probation report, Exhibit S5, to which I will return.

The submissions of the Counsel are: Crown for fifteen years maximum, subject to reduction for time in custody; and Defence says eight years, but, if you go beyond that, a maximum of twelve, less time in custody. I will come back to that. V. Aggravating/Mitigating Factors [ 114 ] I now want to move to

Section V, which is Aggravating, mitigating and neutral -- and in some cases non-applicable -- factors. There are factors that are not applicable and I won’t go through those specifically. A. Statutory Factors

[ 115 ] There, first of all, are the statutory factors. There are two of those and they are listed separately in the Criminal Code under

section 718.2 (a)(ii) and (ii1). [ 116 ] The first is abuse of an offender’s spouse and the second is abuse of a position of trust or authority. [ 117 ] Parliament deemed it appropriate to direct them to be separate matters. In some cases there is abuse of a trust in a teacher/student type relationship, what makes it clearly independent of abuse of a spouse. Subsection (ii) relates to a spouse or child; but in cases of a spouse there is both, in fact, in (ii) an abuse because the person is a spouse and (iii) because the spouse is in a relationship of trust, and so they come together if you will.

They are separate factors, but I treat them together. [ 118 ] This is probably one of the most important factors that apply -- one of the most aggravating factors in the sentencing process. [ 119 ] Ruby has a

section on it in his text at page 838, and I am not going to refer to it all, but he opens that

section by saying, “Killing one’s spouse is deemed highly aggravating…” As the kids would say on the street, ‘duh’, of course. [ 120 ] Under

section 718.2(a)(iii) of the Criminal Code , it is a breach of socially recognized and valued trust. So it is both of those.

It is trust and it is the spouse, and that is recognized in this jurisdiction. [ 121 ] Anablak , at paragraph 18 , deals with this and puts it in proper perspective, thanks to Justice Kilpatrick, where he says, at the end of the paragraph: “It is difficult to conceive of a more aggravating circumstances than the commission of a homicide by an Offender who is already under sentence for a related crime of violence on the same victim.” [ 122 ] That takes me to the record, which I will come back to, but here we have not just this offence against this victim resulting in this charge.

There are all of the previous offences. We are not sentencing for the previous offences, but the point is that this offender didn’t learn from those previous offences. [ 123 ] In Ammaklak , Justice Kilpatrick talks about sentencing ranges in paragraphs 45 and 46, and says: The breach of trust associated with spousal homicide elevates this type of offence, as spousal manslaughter, into a class of its own. The spousal manslaughter is an aggravating form of manslaughter that warrants special consideration from a sentencing Court.

Given this jurisdiction’s very high per capita incidents of spousal assaults and the accelerating number of spousal homicides, there is a compelling need to step up the sentences imposed for this type of offence. If Nunavut’s sentencing range for spousal manslaughters is higher than other jurisdictions, this reflects the Court’s attempt to address Nunavut’s unique systemic problems through its sentencing posture. In this jurisdiction a sentence of 15 years continues to represent the high end of the sentencing range for spousal manslaughter.

Where a particular offence falls along this spectrum of gravity will depend on its offence-specific characteristics and its blend of aggravating and mitigating circumstances. This Court declines to define the bottom end of the sentence range for this offence, if indeed one exists.

This will be determined incrementally through sentencing jurisprudence. [Emphasis added.] [ 124 ] Well, we have seen that incrementally in some cases, such as the unique circumstances in the Ussak case, to which I have referred, and Counsel have quite rightly made their submissions on the basis of this high end finding of the Court of fifteen years. [ 125 ] I have also indicated in the sentencing [arguments in this case] though that I think it is time for that to be re-examined and pushed upwards because it is not being – it is not stopping the problem, it is not easing the problem.

Without being a statistician, I would doubt there is much change since 2008 in the [spousal homicide] rate. People aren’t paying attention. And so, more protection needs to be

given by the Courts in this jurisdiction, and in individual cases, need to look at that and not feel bound by that, nor should Counsel be. B. Other Factors [ 126 ] There are other factors, than the statutory factors, and there again are quite a number of them under various headings. The first heading is gravity of offence. (i). Gravity of Offence [ 127 ] Under that heading one deals with the issue of weapon, and as I have indicated before, there is a weapon in this case - it is the hands and the feet and the objects around this offender and the victim.

I will not go through that in great detail, but she was the weapon herself by his hands forcing her head against the heat register, against the wall and hitting or kicking her, as is clearly evident from the other injuries she had. [ 128 ] There is extreme violence, and I say “extreme violence” because this is not a case where someone gets angry and hauls off and sucker punches someone and knocks them unconscious or kills them.

This is a repeated beating over a significant period of time to create all of the injuries that were caused to the victim. [ 129 ] One of the impacts of gravity of offence is the impact on the victim and on the community.

Well the victim’s impact is death, but the victims are also her family in the community and the family is poorer off in all senses -- I don’t mean just in material senses -- but in all senses from losing a grandmother, a mother, and a sister. [ 130 ] There is an impact on the victim and through the victim’s contribution to this community -- albeit some of her past was troubled, but she was getting to the stage where she was trying to deal with that. The community is impacted. (ii). Moral Blameworthiness [ 131 ] The next heading under “Other Factors” is moral blameworthiness.

This is on the high end of the scale and I find it is much closer to “near murder”. In fact, it is only a fraction away from near murder and it is in nowhere “near accident”. [ 132 ] In this case there was intentional risk-taking which was a factor. The intentional risk-taking is that this offender knows, when he is sober, and he knows through the treatment and training and programming he took at the Baffin Correctional Centre [BCC], that he is a risk to others and specifically to his spouse when he has alcohol in copious amounts.

That is apparent from his record and he is not so stupid that he does not understand that. He intentionally took risks. [ 133 ] He took risks of having alcohol notwithstanding that it was banned for him, and I appreciate Defence Counsel’s comment that’s saying an alcoholic should not have alcohol is, to use my expression, like telling a pyromaniac he should not have matches. [ 134 ] But he should know the risk, when he is sober, that if he touches alcohol he may not be able to stop and he may be a threat to others, and he needs to know that.

He intentionally took the risk in this case and instead of a mere assault and causing bodily harm that he had been a perpetrator of in the past ended up in a death. [ 135 ] Now the effects of alcohol and drugs are aggravating with respect to the Deceased and neutral with respect to the offender. I have made the point -- and I will give a couple of authorities – that, when the effect of alcohol changes what otherwise would have clearly been a second degree murder conviction to a manslaughter conviction, one does not get any more credit for the fact that he was drunk at the time.

However, it is an aggravating factor vis-à-vis the victim because of her vulnerability; Kinak talks about this in quite explicit and appropriate language.

[ 136 ] Again, I do not have the page number -- it is about 60 pages in -- but Justice Sharkey says [in Kinak]: This is a case where the Victim … was vulnerable, and the Criminal Code says that a crime is more serious if the Victim is a spouse, and even more so where the relationship between the Offender and the Victim is what we call a trust relationship. [The Victim], like any woman, is entitled to feel safe and secure. She was entitled to feel safe and secure when she is with her husband, her man, in their home, in her home.

Also, [the Victim] took [the Offender] back in the home even though he’d been charged with assaulting her. She took a chance on him. She trusted him. She was drunk and defenceless in her own home with no one to call for help (Transcript at 59-60, lines 25-27 & 1-11).” [ 137 ] So there is more than one point made there, but the point is made, is that she is vulnerable. [ 138 ] And also, in Ammaklak , at paragraph 27 , Justice Kilpatrick says this: The deceased was heavily intoxicated. She was vulnerable by reason of this. There is no suggestion on the evidence that she was able to defend herself from this attack.

There is no evidence that the accused sustained any real injuries as a result of the deceased defending herself. Where harm is inflicted upon a vulnerable Victim in circumstances where they are unable to defend themselves, the moral culpability associated with the offence is higher.

The sentence should reflect this. [ 139 ] That is exactly the situation in this case. [ 140 ] The Ammaklak case at paragraph 34 -- and I will not quote it, as it is not an issue, -- is authority for the proposition that intoxication cannot be taken into account, again is a mitigating offence in the case of manslaughter where the conviction of manslaughter results from the lack of proof beyond a reasonable doubt of one of the elements. Paragraphs 35 and 36 give authorities and reinforce that. (iii).

Background and Circumstances of the Offender [ 141 ] His age at fifty-two is not a particular factor. [ 142 ] Next is the record. The record is a substantial factor. The record is contained in Exhibit S4 and counsel referred to it in argument. I do not intend to go through it in great detail, but there is a part of it that is quite dated and not very relevant. [ 143 ] From ’84 through ’86 there is two offences of assaults that resulted in fines. The offender, if my arithmetic is right, was in his early twenties at the time.

I do not know if they are bar-fights or what they are, but they are not particularly relevant, although they are assault, but they are quite dated. [ 144 ] Starting in 1991, we get into a pattern of spousal assaults and in 1991 alone, with a different victim than this victim.

He was convicted of spousal assault in April of 1991, in October of 1991, in March of 1993, then again in March of 1993, (second time that is), and in between there were three or four other assaults that are assaults causing bodily harm. [ 145 ] There is no suggestion of a weapon in any of those cases, other than his fists and his legs, similar to this case, but it is a pattern of spousal assault in the years 1991 through 1993 that is alarming. There is a gap of quite a number of years, from 1994 his last assault.

There are some failures to appear and failures to comply along the way. [ 146 ] His spousal assaultive behavior starts again in family assault, assault on his daughter in 2011 and then going on to the assaults which I have mentioned and which are in the Agreed Statement of Facts against this victim. [ 147 ] If my arithmetic is correct, and it may not be, he was guilty of eight simple assaults or assault causing bodily harm during that

period of time going back to 1984 and six spousal assaults, along with ten failures to comply (which shows that he has no regard for what the Court orders in trying to limit him and trying to contain him and trying to protect people). [ 148 ] His record is an extremely aggravating factor and the most aggravating of which is the previous assaults on this victim and the one that took place in October of 2012 -- October 28, 2012.

He gets four months in custody and he is out for twelve days, notwithstanding a restriction on alcohol imposed by Justice Foisy (Exhibit 5), and notwithstanding that he got an eighteen month suspended sentence with no contact with the victim in, as I am reading it, December of 2011. He is back in contact with her while he is on an eighteen month period of probation; so he has offended that condition. Although there was no new condition imposed by Justice Foisy, he is still under the old one – he is not to have contact with her under that probation.

I have no evidence to suggest that [this condition] lapsed or changed; it just wasn’t reinstituted by Justice Foisy and he was to have no alcohol. So those are very, very serious additional impacts and shows that the record is a tremendously aggravating factor. [ 149 ] So this offence, as I am understanding the timing, was committed also while on probation from not the previous assault on this woman, but the one before that. It is an assault on a family member and it is extremely aggravating. [ 150 ] His employment record is not particularly relevant. He has had employment.

To some extent that is a mitigating factor, but it not overly relevant. [ 151 ] It is clear from his record that he was not of prior good character and I have already dealt with the factor of his aboriginality. [ 152 ] I have also dealt with remorse and responsibility of the offender. There has been no guilty plea in this case.

Defence says: “Well, we couldn’t plead guilty to second degree murder because he was found guilty of manslaughter.” I have no information about the dealings between the Defence and Crown, other than what the Defence counsel tells me, but the point is that many of the sentences to which I am going to refer obliquely deal with the sentences where there was a full guilty plea for which there is quite a bit of consideration given. [ 153 ] There is pretrial custody and there are a number of cases that deal with that.

Basically, the parties are not apart on that, having regard to the Baffin Correctional facility where he has been housed for something like 585 days. Consistent with the authorities here and consistent with the relatively new provisions of the Criminal Code , it is appropriate that he be accorded a 1.5 (approximately) credit for time in custody. [ 154 ] That follows from the case of R v Simmons, 2014 SCC 26 , 308 CCC (3d) 471 .

It follows from the Anablak case, paragraphs 27, 28 and 30 , and the Kinak case. [ 155 ] It is relevant to note that he did take some treatment and it is shown in the pre-sentence report in the fourth paragraph of

Part 4 (page 3 of 5). It did not seem to do him any good. [ 156 ] “Alternatives to Violence and Substance Abuse” – he did not learn anything. In fact, he went out and offended [against] those immediately, but he needs more of that programming, it seems. (iv). Mitigation [ 157 ] By way of mitigation, there are really no factors, other than the fact that he has had some work experience, that he seems to have structure, and – according to Counsel, and I accept his representations - while in prison, he has taken a leadership role to some extent among offenders in prison.

I take that in a positive sense, not in a gang sense, and it demonstrates that, while sober, he can be a productive member of society. He needs more treatment, more counseling and more training. [ 158 ] The Court cannot make him be sober. The Court cannot make him understand that when he drinks, and when he drinks to excess, he is a time bomb. He has to take account of that. That is what comes under rehabilitation and only he can do that. So the mitigation factors are very slim.

VI. AUTHORITIES [159] I will not go through all of the authorities that were mentioned, but I can touch on some of them and look at the trend that is hereand it may be good to set them in one spot and if I were writing this I would do it point form. • Anablak, - 15 year sentence gross. Based on a joint submission of counsel following an untimely guilty plea and the presence ofremorse. That is perhaps the high water mark to this point in time. o 5 spousal supports prior; three of them in nine months prior to the death of the deceased. • Kinak - 14 years gross.

This was a jury trial, so this was after conviction, so, to that extent, it is somewhat similar to this case, thatthere is a finding of manslaughter. o One prior spousal supports • Ammaklak - 13 years, but that is after a guilty plea, and so if there is substantial credit, what would that have been if it had been afterconviction?

It would certainly seem to me to have been 15 years or more after conviction if that is after a guilty plea. o 3 prior spousal supports • VanEindhoven - that was a second degree murder case, but in addition to having a life sentence there was 13 years with paroleineligibility – a very, very severe sentence, even in a second degree murder case and there were two previous offences; • R v Jamieson, 2014 ONCA 593, [2014] OJ No 3794 (LN) - two previous offences, 12 years; • In R v Deer, 2014 ABCA 88, [2014] AJ No 218 (LN) - not spousal, 16 years for a form of contract killing of an executive; a veryhigh range. • R v Toon, 2006 ABQB 285, 70 WCB (2d) 935, by Justice Germain in 2006, 12 years; • I find that the case of R v Korgak, 2013 NUCA 9 , 2013 NUCA 09, [2013] Nu J No 27, R v Dhillon 2013 ABQB 365,[2013] AJ No 689 (case of Justice Jerke) and the Ussak case, are not applicable in this case and have no value frankly in this case.

Theyare particular to those particular offences. [160] So those are the cases. VII. OTHER CONSIDERATIONS [161] I want to make it very clear that the submission of Defence counsel -- who tried his best on behalf of this offender -- of eight yearsof imprisonment gross is rejected in the highest way possible. [162] He justifies it, or attempts to justify it, and I do not say this critically, on the basis of the Gladue factors, however, the Gladuefactors in question that I have already addressed do not support that, although he makes able submissions in trying to support it.

I do notaccept those submissions as being ones that should take away from the offence. [163] Defence counsel says that the accused is aboriginal. Well, so is the deceased. And then he admits a number of things thatminimize the Gladue factors – the offender’s family is intact except for one possible suicide; he was not specifically affected by any ofthe residential school issues in the family. Defence counsel says you can’t change the past.

Well you can’t change the past, but you cantry and change the future and that is what the role of this Court is to do for this offender and for other offenders, therefore, the eight yearsentence is rejected. [164] In the result, I am prepared to sentence, and I find this is indeed at the high level and beyond the high level, but having suggestedthat the level is not high enough, I am not going to use those comments to impose that on this offender on this occasion. VIII. CONCLUSION

[ 165 ] Mr. Peter, you may stand. You, sir, are sentenced to 15 years in prison, which I calculate as being 180 months, although my math is pretty basic. You are entitled to a discretional credit of time served of 585 days times 1.5, which equals 877.5 days, which divided by 30 is roughly 29.25 months.

I round this to 30 months because under the legislation in section 719(3.1) of the Criminal Code , by effectively the agreement of Counsel and the representations with respect to BCC, I find the circumstances justify it. [ 166 ] In the net result ,it is a sentence of 180 months, less 30 months, which is 150 months, which is 12 1/2 years ending in roughly March of 2027, subject to any earlier release under parole legislation for which the Court has no control. [ 167 ] Also, there will be a victim fine surcharge under

section 737 of $200.00, because it is mandatory for me to impose it – I have no discretion -- and I believe that there is a default provision in the statute of time in custody in lieu. That may be academic and to the extent that there is not a specific statutory time, I impose two additional days for that. [ 168 ] There is a firearm prohibition under

Section 109, which I am going to impose, for a lifetime, and there will be an order under

Section 114 of a delivery up of all firearms and ammunition and firearms certificates, that is, FACs in your possession or name, and you shall not be entitled to obtain one for life in the future, absent an application for a good reason. Anything delivered up will be destroyed in accordance with the law. [ 169 ] This is a primary offence under

Section 487.051 (

a) of the Criminal Code and, therefore, there will be a DNA warrant executed. [ 170 ] Subject to any comments of Counsel, or Mr. Clerk, on anything that I have forgotten, those are both my sentencing reasons and the sentence itself. Dated at the City of Iqaluit this 12th day of September, 2014 ___________________ Justice J. Rooke Nunavut Court of Justice _______________________________________________________ Amendment of the Reasons for Judgment Reserved of

The Honourable Mr.

Justice Rooke _______________________________________________________ In paragraph [10], the pinpoint of “…[VanEindhoven], where, in such a case…, the period of parole ineligibility has been corrected from “nineteen years” to “thirteen years.” In paragraph [159], the fourth sub-bullet labeled “VanEindhoven” the period of parole ineligibility has been corrected from “…19 years with parole ineligibility...” to “…13 years with parole ineligibility…” In paragraph 165, at the pinpoint halfway through the paragraph “You are entitled to a discretional credit of time served…” the amount of discretional credit originally stating “185 days times 1.5” has been changed to “585 days times 1.5”.

Please replace the amended pages in your hard copy of the judgment