R. v. Ituluk, 2018 NUCJ 21

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ituluk, 2018 NUCJ 21 Date: 20180724 Docket: 08-18-270 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Tom Ituluk ________________________________________________________________________ Before: The Honourable Mr. Justice Earl Johnson Counsel (Crown): Moray Welch Counsel (Accused): Gillian Bourke Location Heard: Iqaluit, Nunavut Date Heard: July 17 & 19, 2018 Matters: Sentencing Decision for breach of Criminal Code , RSC 1985, c C-46,

section 810.2. REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [1] The accused entered a guilty plea before me on July 19, 2018, for breaching his Recognizance under

section 810.2 of the CriminalCode, RSC 1985, c C-46, (Criminal Code) on April 9, 2018, by consuming alcohol. At the plea, with the agreement of Defence Counsel,the Crown also read as background the facts of another similar breach that occurred in January 2018 contrary to

section 811. II. BACKGROUND [2] The circumstances of the January breach are that Mr. Ituluk was intoxicated in a public place when he was approached by thepolice. He refused to give his name to the police and was arrested for obstruction of justice. The police found the name of the accusedfrom other sources and discovered that he was on the Peace Bond with the no alcohol condition. On April 9, Mr. Ituluk was again foundintoxicated outside a residence occupied by a female. He was then arrested for causing a disturbance.

He was charged with breachingthe Peace Bond by drinking alcohol. [3] The background for the imposition of the Peace Bond are stated in the affidavit of Royal Canadian Mounted Police (RCMP) Sgt.Matco Sirotic sworn on May 26, 2018. [4] On May 27, 2017, the informant RCMP Sgt. Matco Jonathan swore an information to obtain a Peace Bond under

section 810.2. Insupport of the application, he filed an affidavit that deposed that on April 10, 2017, he had received information from CorrectionalServices Canada (CSC) indicating that Mr. Ituluk would be released from incarceration in a penitentiary on June 9, 2017. He wasinformed that Mr. Ituluk was a first time federal offender serving a three years, seven months and 15 day sentence for sexual assault, failto comply with conditions, and an assault on a peace officer. CSC indicated that Mr.

Ituluk had demonstrated little insight into hisviolence and sexual offences. [5] A criminal records check revealed that Mr. Ituluk had convictions that included five sexual assaults, mischief under $5000, fail tocomply with an undertaking, and assault on a peace officer. A Canadian Police Informant Centre (CPIC) check revealed that Mr. Itulukwas identified as a violent individual and prohibited from possessing firearms. [6] The circumstances behind the last sexual assault conviction were that Mr. Ituluk was drinking and smoking pot with his aunt.

Heforced his aunt down to the floor and had full sexual intercourse without her consent. [7] The Warrant Expiry Release Package (WERP) indicated that on September 2, 2013, Wayne Podmoroff, a consulting psychologist,prepared a court ordered Risk Assessment Psychological Report on Mr. Ituluk. It documents that Mr. Ituluk presented significant signs ofsubstance dependency and estimated his risk to reoffend with sexual violence as moderate on the static 99-2002 test and high on theSecondary Assessment Sexual Offender instruments. The report indicated that Mr.

Ituluk’s history of sexual violence had escalated infrequency and severity over time and that he engaged in extreme minimization or denial of past sexual violence. The report concludesthat the level of risk for Mr. Ituluk to reoffend with sexual violence without treatment is ultimately high. This Court acknowledges thatthe Supreme Court of Canada recently found these diagnostic tools problematic when applied to Indigenous offenders (Ewert v Canada,2018 SCC 30 [8] Two previous victims of his sexual assaults filed impact statements that indicated that Mr.

Ituluk’s actions had left them scaredand lacking motivation. [9] On January 22, 2014, Mr. Ituluk’s parole officer prepared a Criminal Profile Report that indicated that he blacked out and had nomemory of the sexual offences. When recounting the events he laughed and appeared to be amused by the situation. The report indicatesthat he had shown no remorse for his victims and did not have a clear improvement plan for the future.

[10] On January 7, 2016, Mr. Ituluk’s parole officer prepared a Correctional Plan Update. It indicated that Mr. Ituluk still required ahigh level of intervention based on dynamic factors. His need for improvement was deemed high in the categories of “personalemotional”, substance abuse, and attitude. [11] On January 15, the Parole Board prepared a decision sheet for Mr. Ituluk that indicates that if he was released he was likely tocommit a sexual offence involving a child or an offence causing death or serious bodily to another person, before the expiration of hissentence. Therefore, the Board ordered that Mr.

Ituluk be detained until the warrant expiry date. [12] On May 11, 2016, and September 9, 2016, Mr. Ituluk’s participation in programs was suspended because of unauthorizedabsences. [13] Mr. Ituluk is 32 years old and grew up in Qikiqtarjuaq and Kimmirut. Although the complainant in Mr. Ituluk’s last offenceobjected to his return to Iqaluit, Mr. Ituluk was released in Iqaluit and was immediately served with the application for the Peace Bond. [14] Based on above information, Justice Tulloch ordered that Mr.

Ituluk enter into a 12-month Peace Bond, commencing on June 19,2017, that included a term that he must abstain absolutely from the consumption or possession of alcohol. [15] Mr. Ituluk obtained employment at the Frobisher Inn and at the Quick Stop convenience store, and found accommodation at themen’s shelter in Iqaluit. III. POSITION OF THE PARTIES [16] Relying on R v Ballantyne, 2009 SKCA 27, [2009] CarswellSask 103 [Ballantyne], and R v Gabriel, 2013 MBCA 45, 291 Man R(2d) 291 [Gabriel], the Crown asked that the court impose a deterrent sentence of 12 months in jail plus probation. The Crownemphasized Mr.

Ituluk’s lack of motivation to address his problems with alcohol, which increased the risk that he would reoffend andcommit similar crimes of sexual assault. As stated in R v Labbe (2006), (ON CA), 217 OAC 5, 214 CCC (3d) 362,courts must take into account the criminal history of a person who is on a Peace Bond. Ballantyne is a good example of the application ofthat principle. In Ballantyne, the accused breached a no alcohol condition in a Peace Bond twice within a one month period. The trialjudge imposed a sentence of 45 days and six months probation on the first charge and 90 days on the second.

The Court of Appealallowed the appeal because the sentencing judge failed to appreciate the seriousness of a

section 810.2 Recognizance and the need toprotect the public by preventing future criminal activity. The Court noted the no alcohol condition was significant given the accused’scriminal record and his alcoholism as a motivator of criminal activity. As a result, the Court slightly reduced the sentences imposed bythe trial judge making them concurrent to other charges. In Gabriel, the breach was for missing an appointment, therefore, not as seriousas in Ballantyne and this case. [17] The Crown distinguished the case of R v Kematch, 2016 ABPC 58 [Kematch], relied on by Defence Counsel.

That case dealt with abreach of curfew that was unrelated the offences that had resulted in the imposition of the Peace Bond. In this case, the accused’sdrinking is directly linked to the historical offences. [18] Defence Counsel suggested a sentence of 6 months less the pre-sentencing custody credit of 157.5 days. The accused was 32 yearsold and had a grade 11 education. After his release he resided at the men’s shelter and sometimes stayed with friends. He foundemployment at the Frobisher Inn and at the Quick Stop convenience store.

While in custody, he participated in a four week substanceabuse program and did very well for 3 weeks but struggled for the last week. He was given his certificate of completion and it wasentered as an exhibit. He hopes to work again at the Frobisher Inn when released and will stay at the men’s shelter until he finds alternatehousing. [19] Defence Counsel emphasized the fact that Mr. Ituluk had complied with the Peace Bond for almost seven months before the firstbreach.

He did not commit any substantive offences while he was intoxicated and his completion of the substance abuse coursedemonstrates that he is taking steps to deal with his alcohol problem contrary to what CSC states in the information used to obtain thebond. [20] Defence Counsel noted the words at paragraph 26 of Kematch in summarizing the Ontario Court of Appeal in R v Labbe, 2006

36608 (ON CA), 217 OAC 5, that persons who enter into

section 810.2 Recognizances should not automatically be treated as theworst offenders for sentencing purposes. If that occurred, then it would effectively emasculate principles of proportionality andrehabilitation that trial judges must take into account in arriving at a fit and just sentence. [21] Defence Counsel noted the

summary of cases discussed at paragraphs 24 to 41 of Kematch, emphasizing that in R v Bambrick,2011 NLCA 79, 315 Nfld & PEIR 202, the accused pleaded guilty to three counts of breaching a Recognizance by breaching a noalcohol condition. He breached by purchasing beer at a store that was very close to a residence that he was required to stay away from.He was apprehended as he was walking toward the residence with a mickey his pocket. The court of appeal replaced two year sentencewith one for five weeks time served. [22] In R v Green, 2013 ONCJ 423, the accused twice breached a

section 810.2 order. The accused had drug and alcohol problems thatwere the underlying cause of most of his offending behaviour. He was exposed to alcohol and violence as a child and lost his sister in ahouse fire. Both parents were residential school survivors. He lacked insight into his problems and was a high risk for potential sexualviolence. There was a possibility that he had Fetal Alcohol Effects.

The Court imposed a sentence of four months in jail. [23] The range of sentences discussed in Kematch varies from a low 60 days to a high of 40 months. [24] The relevant sentencing principles are set out at paragraph 8 of Kematch by Slawinsky J., quoting from R v Zimmerman, 2011ABCA 276 where the Court stated at paragraph 13: “13. . . .

In sentencing for a breach of a s. 810.2 recognizance, the sentencing judge should consider general and specific deterrence;the need to protect the public from high-risk offenders; proportionality; the gravity and seriousness of the breach; and, the criminalhistory of the offender: R. v. Labbe (2006), (ON CA), 214 C.C.C. (3d) 362 at paras 6-7 (Ont. C.A.). A breachshould "be examined in light of the potential for the reasonably foreseeable consequences" of the conduct giving rise to the breach. Thatis, the gravity of the breach should be examined in the context of the offender's history: R. v.

Helary, 2007 NLCA 47 268 Nfld.& P.E.I.R. 267 (N.L. C.A.) at para 16. The purpose of a s.810.2 recognizance is to protect the public by preventing future criminalactivity: R. v. Ballantyne, 2009 SKCA 27 324 Sask. R. 71 (Sask. C.A.) at para 5. Although a person who enters into a s. 810.2recognizance should not automatically be treated as the worst offender, it is not an error for a sentencing judge to impose the maximumsentence if all of the appropriate sentencing principles have been properly applied: Labbe at para 9; R v Jordan, 2003 BCCA 64179 BCAC 297 at para 25.

Of course, not every breach of a s. 810.2 recognizance mandates the maximum penalty: R vJacobson, [2006] OJ No 1558 (CA)(QL) at para 1.” IV. APPLICATION [25] As noted in the CSC history, there is a high risk that the accused will reoffend with sexual violence because his history of sexualviolence had escalated in frequency and severity over time and because he engaged in extreme minimization or denial of past sexualviolence. His historic criminal conduct occurred while he was so intoxicated by alcohol that he had blackouts.

He did not completeprogramming while in the penitentiary and showed a lack of remorse for his victims. [26] The breaches of drinking alcohol clearly elevated the risk the accused would commit other sexual crimes as he had in the past.There is a nexus between the breach and risk to the public. As a result, I am satisfied that a term in jail is required to protect the public.However, this case is not one of the worst calling for the maximum sentence. The accused did not commit any other crimes whileintoxicated and managed to stay out of trouble for seven months.

He also demonstrated some insight into his alcohol problems by takingthe substance abuse programming at the Baffin Correctional Centre. He has also been actively employed and has held down two jobs. V. DISPOSITION [27] I am satisfied that a jail sentence of 240 days will satisfy the deterrence required while also recognizing the apparent change ofattitude of Mr. Ituluk to his alcohol issues. Mr. Ituluk will also receive 157.5 days of pre-sentencing custody credit, making his custodialsentence 83 days. He will also be on probation for a period of 1 year on the same conditions as in the Peace Bond.

Dated at the City of Iqaluit this 24th day of July, 2018 ___________________ Justice E. Johnson Nunavut Court of Justice