R. v. Tippeneskum, 2011 ONCJ 219

COURT FILE No.: 104883, 103798, 105003, 104393 DATE: 2011·04·27 Citation: R. v. Tippeneskum , 2011 ONCJ 219 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JUNE AMANDA TIPPENESKUM Before Justice D. DiGiuseppe Reasons for Sentence released on April 27, 2011 Gordon Fillmore ........................................................................................................ for the Crown David Young ................................................................ for the accused June Amanda Tippeneskum REASONS FOR SENTENCE DIGIUSEPPE, J.: A.

OVERVIEW [ 1 ] June Tippeneskum plead guilty to the following charges: 1. aggravated assault between June 1, 2009 and July 21, 2010; 2. breach of probation between June 15, 2010 and September 21, 2010, by failing to report; 3. theft of property from Zellers on August 17, 2010; 4. fail to attend court on September 16, 2010; 5. theft of property from Superstore and obstruct police by giving a false name, on November 29, 2010. [ 2 ] The matters were adjourned for the preparation of a Pre-sentence Report, and further adjourned to permit the victim of the aggravated assault, Bruce Koostachin, to read into the record his victim impact statement.

Mr. Koostachin did so on March 4, 2011. The statement was filed as an exhibit. The matters were further adjourned for submissions of counsel and finally to today’s date for the imposition of sentence. B. CIRCUMSTANCES OF THE OFFENCES [ 3 ] The facts surrounding the charges other than the aggravated assault are sufficiently set out, for the purposes of this

sentencing, in the overview and on the face of the various informations. The merchandise stolen from the retail establishments was recovered. [ 4 ] With respect to the charge of aggravated assault, Ms. Tippeneskum and Mr. Koostachin were involved in an intimate relationship during the time period set out in the information. Their relationship included sexual activity. Ms. Tippeneskum was HIV positive, was aware of her condition and did not disclose this to Mr. Koostachin. It was only after the relationship was over that Mr. Koostachin became aware of Ms. Tippeneskum’s medical condition. Mr.

Koostachin has since been tested and it has been confirmed that he too is now HIV positive. He was not infected with this virus prior to his relationship with Ms. Tippeneskum. C. CIRCUMSTANCES OF THE OFFENDER [ 5 ] Ms. Tippeneskum is a 23 year old aboriginal female. She is a member of the Attawapiskat First Nation. The Pre- sentence Report prepared and filed with the court paints an all too common picture of a young person raised in difficult circumstances, exposed to violence, abuse, and neglect. [ 6 ] Ms.

Tippeneskum became involved with child protection services at age 5, and over the next 5 years moved between her mother’s residence and various foster homes. During this time, both in her family home and in foster homes, Ms. Tippeneskum was repeatedly traumatized and neglected. By the time she reached adolescence, she had been expelled from school and had started abusing alcohol and drugs. This behaviour inevitably led her into the criminal justice system, first as a youth at age 13 and then into adulthood.

Her criminal record, which commences in Youth Court in 2001 and continues to the present, includes crimes of violence, property offences and offences against the administration of justice. Sentences have ranged from community based dispositions to incarceration. [ 7 ] Ms. Tippeneskum is the mother of two young daughters, born in 2006 and 2007. Both children are in the care of extended family in Aroland First Nation and Gull Bay First Nation. Ms. Tippeneskum has had limited contact with her children and plans are being made to plan for them on a more permanent basis.

The child protection concerns identified when the children were apprehended, and which continue to exist, include parental substance abuse, neglect and lack of care giving skills. [ 8 ] Alcohol and drug abuse are key factors that have contributed to Ms. Tippeneskum’s offending behaviour. She says she abuses substances to obliterate painful memories related to her upbringing. To date, Ms. Tippeneskum has not engaged in any treatment programs to deal with her addictions. She has expressed a willingness, however, to seek treatment.

More importantly, she wishes to address those underlying issues that contribute to and support those addictions. [ 9 ] Ms. Tippeneskum’s uncle, Johnny Whiskeychan, provided information for the preparation of the pre-sentence report and prepared a letter to support his niece. That letter, filed as an exhibit, identifies some of the problems associated with Ms. Tippeneskum’s upbringing, expresses a desire that the court be merciful in passing sentence and clearly confirms that Mr. Whiskeychan is supportive of his niece and is available to her as she undertakes her healing journey. [ 10 ] Ms.

Tippeneskum was in pre-trial custody from August 17-18, 2010 and continuously from November 29, 2010 to today’s date, a total of 150 days. That pre-sentence custody will be credited towards any sentence of imprisonment imposed. D. IMPACT ON THE VICTIM [ 11 ] The victim impact statement of Bruce Koostachin was filed. Mr. Koostachin read portions of his statement, which totalled 15 pages, in court. [ 12 ] Mr. Koostachin expressed feelings of anger, sadness, and fear as a result of Ms. Tippeneskum’s conduct. His life has changed dramatically. He suffers from depression. He has had suicidal thoughts.

His medical condition has resulted in rejection by family and friends. He feels shame at having been diagnosed with HIV, is concerned about the related stigma and anxious about the stereotypical labelling by others as an injection drug user, a sex worker or gay. Mr. Koostachin fears he will never be able to have a normal, intimate relationship with a woman. He is concerned he may not be able to father a child. [ 13 ] Perhaps the most compelling sentiment Mr. Koostachin expressed in his statement, and the sentiment that appears to have had the most profound impact on him, is the trust Ms.

Tippeneskum breached in maintaining their relationship without advising him of her medical condition. Mr. Koostachin believed he had found a soul mate in Ms. Koostachin and that he could spend his life with her. He described it this way: “I thought I was a good partner in my relationship. I thought I was on the right track. I felt proud to be helping June and her baby which I fully accepted her baby as my own. I was touched in my heart and happy to know June and baby would live with me. I’ve always put June and baby first and before me. I felt very safe and safe every day being with June.

I thought nothing like this could ever happen to

me, happen to us… I completely, utterly trusted June.” That trust has been breached in a most fundamental and profound way. E. POSITION OF THE CROWN & DEFENCE [ 14 ] The Crown seeks a 5 to 7 year penitentiary sentence to adequately reflect the sentencing objectives of denunciation and deterrence. The Crown also seeks a DNA order and a

section 109 Criminal Code firearms prohibition. [ 15 ] The defence submits that a reformatory jail sentence, taking into account pre-sentence custody, could adequately address the need for a deterrent sentence. A probation term could follow to provide the structure and support needed to address rehabilitation. The defence does not object to the ancillary orders sought by the Crown. F. REASONS 1. PURPOSE AND PRINCIPLES OF SENTENCING [ 16 ] The purpose and principles of sentencing are set out in

section 718 of the Criminal Code . That

section states as follows: “The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.”

Section 718.1 of the Criminal Code requires that sentences imposed be proportionate to the gravity of the offence and degree of responsibility of the offender.

Section 718.2 of the Criminal Code requires the court to consider any aggravating and mitigating circumstances, and in considering an appropriate disposition, to pay particular attention to the circumstances of aboriginal offenders. 2. SENTENCING OF ABORIGINAL OFFENDERS [ 17 ] The Supreme Court of Canada in R. v. Gladue considered in detail sentencing principles, including those principles involved in sentencing aboriginal offenders.

Section 718.2(

e) of the Code requires a court to consider the circumstances of aboriginal offenders, and was enacted in part because of the problem of their disproportionate incarceration. The court in Gladue concluded that, not only was

section 718.2(

e) a reaffirmation of existing sentencing principles, but it was also remedial in nature. [ 18 ] The duty of a sentencing judge to impose a fit sentence has not changed. Rather, sentencing of aboriginal offenders requires a consideration of their unique circumstances, including systemic and background factors that may have played a

part in bringing the offender before the courts. While it is important to consider the particular circumstances of Aboriginal offenders and the principle of restorative justice, the sentencing objectives of denunciation and deterrence must still be given due consideration, especially for serious offences. The balance sought to be struck with respect to these sentencing objectives is described in Gladue at paragraph 78 and 79:

“In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders mustalways be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such asdeterrence, denunciation and separation … Clearly there are some serious offences and some offenders for which and for whomseparation, denunciation, and deterrence are fundamentally relevant ...

Generally, the more violent and serious the offence the morelikely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same,even taking into account their different concepts of sentencing.” Ultimately, as in all cases, a fit sentence depends on the particular circumstances of the offence, the offender, the victim and thecommunity. [19] In this case, the Pre-sentence Report identifies the intergenerational impact that substance abuse had on Ms.Tippeneskum’s community and on her in particular.

She was exposed to violence and neglect at an early age, and the dysfunction in herfamily created an unfortunate template for her life. It is not surprising that her behaviour has reflected the environment of abuse andneglect she was exposed to as a child. 3. AGGRAVATING & MITIGATING FACTORS [20] In mitigation I note that Ms. Tippeneskum has pleaded guilty to these offences and has expressed remorse for herconduct. Her plea has spared the victim the further trauma of testifying at a trial. Ms.

Tippeneskum has some insight into the underlyingissues that have contributed to her offending behaviour, and expressed a willingness to address these issues. [21] I note the following aggravating factors: 1. Mr. Koostashin and Ms. Tippeneskum were involved in a domestic relationship. 2. Ms. Tippeneskum repeatedly deceived Mr. Koostachin over a lengthy period of time, increasing his exposure to the virus with eachintimate encounter. 3. Mr. Koostachin was infected by Ms. Tippeneskum. 4. Ms. Tippeneskum was bound by a probation order when she committed these offences. 4.

ANALYSIS [22] Counsel have provided a number of cases to assist the court in arriving at a fit sentence. While the sentences imposed inthese cases vary, and in some circumstances widely, the overarching theme is clear: deterrence and denunciation are the primarysentencing objectives to be achieved in cases of aggravated assault of this nature. This was expressed by Cory J. in R. v.

Cuerrier, (SCC), [1998] 2 SCR 371 at para. 142: “… the criminal law … provides a needed measure of protection in the form of deterrence and reflects society’s abhorrence of the self-centered recklessness and the callous insensitivity of the actions of … those who have acted in [such] manner. The risk of infection anddeath of partners of HIV-positive individuals is a cruel and ever present reality. Indeed, the potentially fatal consequences are far moreinvidious and graver than many other actions prohibited by the Criminal Code.

The risks of infections are so devastating that there is areal and urgent need to provide a measure of protection for those in the position of the complainants. If ever there was a place for thedeterrence provided by criminal sanctions it is present in these circumstances.” [Emphasis added.] [23] Justice Green in R. v. Williams, 2006 ONCJ 484 , [2006] O.J. No. 5037, a decision of this court, summarizedhow sentencing courts have approached cases of this nature. At paragraph 20: “The range of sentences in these cases involving HIV unprotected intercourse run from one to eleven years of incarceration.

As is to beexpected, this broad range reflects a variety of aggravating and mitigating factors, including the number of partners involved, thefrequency of exposure, the criminal antecedents and contrition, if any, of the defendant, and the impact on the complainants, particularlywhether or not there was HIV transmission. There is no settled view as to the appropriate tariff, other than a period of true imprisonmentis consistently imposed.”

[ 24 ] Sentencing is an individualized process. A court must take into account the relevant sentencing objectives and fashion a sentence to take into account the particular circumstances of the offence and the offender. Deterrence and denunciation remain the paramount sentencing objectives in cases of this nature. [ 25 ] On one hand, Ms.

Tippeneskum’s plea, her relative youth and the systemic factors that may have contributed to her offending behaviour require that due consideration be given to the sentencing objective of rehabilitation. [ 26 ] On the other hand, the aggravating factors I have identified cry out for a significant jail term. Mr. Koostachin’s life has been irrevocably altered. No sentence I impose will make him whole, or assuage the devastation visited upon him by Ms. Tippeneskum’s conduct. The sentence, however, must send a clear message to Ms.

Tippeneskum and others that this type of conduct will carry significant consequences. [ 27 ] Considering all of these factors, I am of the view that a fit sentence for the charge of aggravated assault is 3 ½ years imprisonment. I will credit Ms. Tippeneskum with 5 months for 5 months of presentence custody. [ 28 ] Applying the totality principle, I am satisfied that concurrent sentences of imprisonment are appropriate with respect to the remaining charges. G. DISPOSITION [ 29 ] Ms.

Tippeneskum will be sentenced as follows: 1. on the charge of aggravated assault, imprisonment for 37 months; 2. on the charges of breach of probation, theft under $5000 from August 17, 2010, fail to attend court, theft under $5000 from November 29, 2010 and obstructing a police officer in the execution of his duty, 6 months imprisonment on each of these charges, concurrent with each other and concurrent with the sentence of imprisonment for aggravated assault. [ 30 ] The following ancillary orders will issue: 1. Aggravated assault is a primary designated offence. Ms.

Tippeneskum will be required to provide such samples of bodily substance as are reasonably necessary for the purposes of forensic DNA analysis. 2. Pursuant to

section 109 of the Criminal Code , there will be a firearms prohibition for 10 years. Released: April 27, 2011 __________________________ Signed: “Justice D. DiGiuseppe”