R. v. Kootoo, 2020 NUCJ 24

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kootoo, 2020 NUCJ 24 Date: 20200618 Docket: 08-20-235 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jimmy Kootoo ________________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): B. Flight Counsel (Accused): M. Manocchio Location Heard: Iqaluit, Nunavut Date Heard: June 8, 2020 Matters: Application for a peace bond under s. 810.2(3) of the Criminal Code of Canada, RSC 1985, c C-46 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Based on information from the Ottawa Parole Office, Corporal Tammy Lobb swore that she has reasonable and probable grounds to believe and does believe that Jimmy Kootoo may commit a serious personal injury offence against a person unknown after his release from prison. I am therefore being asked to impose conditions on Mr. Kootoo for the next two years, pursuant to

Section 810.2(3) of the Criminal Code . [ 2 ] I heard the basis for Cpl. Lobb’s belief on June 8, 2020 and these are my reasons for declining the request. II. UNDERLYING SENTENCE [ 3 ] Mr. Kootoo was convicted of aggravated assault, assault, being unlawfully in a dwelling house, mischief and breach of probation on February 9, 2018. He was sentenced to 5.5 years imprisonment for the very serious aggravated assault, six months consecutive for the assault, and three months consecutive for the breach of probation, plus concurrent sentences for the two other charges, for a total sentence of 6.25 years in custody.

After accounting for pretrial custody, Mr. Kootoo had two years, three months and 21 days left to serve. [ 4 ] I start by acknowledging that the sentence imposed was one that the trial judge felt satisfied the purpose and principles of sentencing set out in s. 718 of the Criminal Code : “to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society” by imposing a just sanction which: • denounced the unlawful conduct and the harm done to the two victims and the community of Iqaluit; • was meant to deter Mr.

Kootoo and others from committing offences; • separated Mr. Kootoo from society, because that was necessary in the circumstances; and, • although reparation for harm done was not available in this case, was meant to help rehabilitate Mr. Kootoo, promote a sense of responsibility in him and acknowledge the harm done to the victims. [ 5 ] The sentence was proportional to the seriousness of the offence and the high degree of responsibility of the offender. [ 6 ] The sentence took into account the prior criminal record that Mr.

Kootoo had accumulated—the most significant entry being a sentence of 19 months in custody on a charge of assault causing bodily harm against his domestic partner in 2013. [ 7 ] Two years, three months and 21 days from February 9, 2018 is May 29, 2020 which is when Mr. Kootoo was released from the penitentiary after serving the whole sentence imposed. III. THE CROWN’S ONUS AND EVIDENCE [ 8 ] The Crown in this case has to establish on a balance of probabilities that there are reasonable grounds to believe that Mr. Kootoo will commit a serious personal injury offence.

In support of this, the Crown provided the Affidavit of Cpl. Lobb, which includes a

summary of the original offence (Appendix B), Mr. Kootoo’s criminal record (Appendix

C) and correctional records outlining some suspensions of parole (Appendices D, E, and F), and a pre-release risk evaluation prepared by Dr. Dana Anderson, Ph.D., C. Psych on March 27, 2019 (Appendix G).

[ 9 ] Mr. Kootoo was initially released to a halfway house in Ottawa at his statutory release date in late August 2019. After about four months, in early December 2019, his release was suspended because he violated a special condition of his release: to seek or maintain employment. The local parole office cancelled that suspension and Mr. Kootoo returned to (or stayed at) the halfway house. This is outlined in Appendix D. [ 10 ] According to Appendix E, Mr.

Kootoo’s parole was suspended again on December 21, 2019, and it was revoked around January 17, 2020 for breach of another condition: abstain from the use of drugs. He was caught smoking marijuana with another inmate of the halfway house. [ 11 ] At his new statutory release date of April 2, 2020, Mr. Kootoo was re-released to the Ottawa halfway house, but suspended again for using marijuana on or about April 24, 2020, according to Appendix F. I was advised by Mr. Kootoo’s lawyer, Ms.

Manocchio, that that breach was a result of him finding out that his mother, with whom he intended to reside upon release, was diagnosed with terminal cancer. In fact, Anita Kootoo unfortunately passed away on May 10. [ 12 ] Mr. Kootoo was released from custody at the expiry of his sentence, on May 29, 2020 and is currently in COVID-19 isolation in Ottawa, pending his return to the Territory. [ 13 ] In Appendix G, dated March 27, 2019, Dr. Anderson provided information about her psychological testing and conclusions reached. She performed a “Psychopathy Checklist – Revised” on Mr.

Kootoo and reported that the “percentile rankings indicate [he] exhibits a low level of traits and a moderate level of behaviours associated with psychopathy.” She also scored Mr. Kootoo “on the Violence Risk Appraisal Guide, an actuarial assessment of risk for violent recidivism,” which “places him in the category of offenders who, with similar scores, would be expected to have a 76% chance of violent recidivism within seven years of [release] to the community.” [ 14 ] Finally, Dr.

Anderson also reported on the “Level of Service Inventory – Revised” which is an actuarial risk/need measure that assesses historical (fixed) factors and changeable risk factors for general recidivism. On this test, Mr. Kootoo was placed in a category of medium-high risk/needs, with an approximate 57% chance of reincarceration following one year of release. Dr. Anderson also noted that Mr. Kootoo’s risk factors that may be changed were being addressed in the Aboriginal Multi-Target program which Mr. Kootoo had not yet completed at the time she wrote her report. The subsequent parole reports confirm that Mr.

Kootoo did successfully complete the Integrated Inuit Correctional Program. Unfortunately, he did not succeed with the maintenance program in the half-way house, because of his breaches. [ 15 ] In two of the parole reports, page 4 of Appendix D and page 7 of Appendix E the parole officer notes that Mr. Kootoo’s behaviour did not, on reasonable grounds, lead to a belief that Mr.

Kootoo would commit a violent offence prior to the expiration of his sentence, which is the timeframe of concern in the parole regime. [ 16 ] The final piece of evidence provided by the Crown is the “WED – Warrant Expiry Date – Release Package”, which is Appendix A attached to Cpl. Lobb’s Affidavit. This document was written on April 22, just before Mr. Kootoo breached his parole the final time, on April 24. It summarizes the psychological and parole information set out in more detail in Appendices D to G. IV. ANALYSIS [ 17 ] The Supreme Court of Canada recently looked at s. 810.2 peace bonds, in R. v.

Penunsi , 2019 SCC 39 . That case was about the process for bringing a person before the Court on such applications, but in the course of the unanimous decision of the full court, Justice Rowe stated, at paragraph 63: Initiating a s. 810.2 peace bond proceeding upon a person’s release from prison risks a further deprivation of liberty after the completion of a sentence already determined to be proportionate.

Without further evidence that the feared conduct will occur (for example, the existence of threats or other violent conduct while in custody) a fear based solely on the offence for which a defendant is serving a sentence will not be sufficient. A s. 810.2 peace bond ordered on that basis alone would be improper. It would serve as a de facto probation order, not as a prospective tool of preventative justice.

[ 18 ] What evidence before me suggests the feared conduct will occur other than the offence for which Mr. Kootoo has now served his sentence? • The parole breaches summarized above were all for issues that are not crimes; Mr. Kootoo only faced consequences for them because he was on parole. • There is no evidence whatsoever from the Corrections authorities that Mr.

Kootoo presented any threat or security concern during his sentence: for example, there were no Discipline Court matters and no “write-ups” that he had been involved in threats or fights. • The most relevant psychological report provided is the one that suggests Mr. Kootoo has a 76% chance of violent recidivism within seven years of his release. It is hard to understand what risk that translates to over the next two years. [ 19 ] In this case, I agree with Justice Rogers’ statement in R. v.

Nikal , 2016 BCSC 29 , an appeal of a s. 810.2 peace bond application, where he states at paragraph 41: It was, I think, sufficient for the learned application judge to have turned her mind to whether the evidence showed on the balance of probabilities that the informant … subjectively feared that Mr. Nikal would commit a serious personal injury offence and that her fear was reasonably grounded and was neither speculative nor remote. V. CONCLUSION [ 20 ] This was Mr. Kootoo’s first time in a penitentiary, and he has completed a significant time in jail: a total sentence of six years and three months. Clearly, Mr.

Kootoo did not distinguish himself during his penitentiary sentence as he was relatively uncooperative. However, he did not concern the authorities as being an imminent risk for violence, nor is there any evidence that he was violent in prison. Our system expects that such a sentence will have had an impact on Mr. Kootoo’s behaviour in the future. [ 21 ] On the evidence provided, while I understand Cpl. Lobb’s fears that Mr. Kootoo will commit a serious personal injury offence, I do not find that the fear is more than speculative or remote. There is not sufficient evidence before me to make the order requested.

Dated at the City of Iqaluit this 18th day of June, 2020 ___________________ Justice S. Charlesworth Nunavut Court of Justice