r v. KAITAK SALA, 2020 QCCQ 3903

R. c. Sala 2020 QCCQ 3903 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL Criminal Division No: 505-01-164557-197 DATE: August 31, 2020 ______________________________________________________________________ BY THE HONOURABLE JUSTICE MARC-ANTOINE CARETTE, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

KAITAK SALA Accused ______________________________________________________________________ JUDGMENT ON SENTENCING ______________________________________________________________________ OVERVIEW [ 1 ] The offender was found guilty of an aggravated assault that occurred on October 6, 2019. [ 2 ] She is a 23 years old Inuk woman from Salluit, Nunavik. [ 3 ] The village of Salluit is located in the far north of Quebec, over 600 kilometers from Kuujjuaq. [1] The Inuits in the region are among the last to have been affected by acculturation. The history of Mrs.

Kaitak’s community is well documented in the Gladue report. It gives a better understanding of past traumatizing measures of assimilation. [ 4 ] The offender has been in custody since October 6, 2019. While in custody, she attended programs such as Qullik, which has been developed by the Makivik Inuit Justice Team to offer culturally specific program as building healthy relationships. She participated in the first 7 of 11 sessions. [2] She was motivated at first, but would later miss the 3 ending sessions.

She admits being demotivated to continue any activities after being refused to go to Portage on treatment for her alcohol abuse. [3] CIRCUMSTANCES SURROUNDING THE ACCUSATION [ 5 ] In August 2019, Mrs. Kaitak came to Montreal to escort her younger brother who had medical appointments. At first being happy to spend some time alone with him, she later found out her brother’s father was coming to Montreal to be with them. In view of her relationship with her stepfather as described in the Gladue report, Mrs. Kaitak had obvious reasons to leave.

She ended up in the Verdun area and drank a lot of alcohol to the point of passing out on the streets. She ended up in the hospital and later realized her identification documents were missing. She tried to make arrangements to fly back home, but the airline company refused to let her fly without the proper documents. [ 6 ] On October 6, while stuck in Montreal, she learned of her grandfather’s passing. The victim and her were together in the Dorval area at that time.

All she then wanted to do is to ‘’forget and drink’’. [4] [ 7 ] They then went to the victim friend’s house, witness Shawn French, and spent the day and evening drinking alcohol. [ 8 ] While heavily intoxicated in the evening, they started fighting over beers. At one point, the offender bit the victim on the face. The victim ended up with a large piece of skin missing from her scalp. [5] [ 9 ] This Court concluded the use of force was disproportionate to the attack, if an attack actually occurred. Question: In view of the sentencing principles, what is the appropriate sentence in this case?

PARTIES POSITION: [ 10 ] After a review of all sentencing principles and guidelines, prosecution submits that a 2 years term of imprisonment is the appropriate sentence. It takes into account aggravated factors such as her lengthy priors, the serious nature of the offense and the fact that the offense was committed while being under a probation order.

[ 11 ] The defense agrees that a jail term is appropriate in the circumstances, but after calculating preventive detention and the impact of Covid-19 measures on the detention, a suspended sentence is the appropriate measure. The suspended sentence would include a lengthy probation and a condition to actively participate in a closed therapy at Vilavie Treatment Center. Vilavie Treatment Center offers a therapy for vulnerable persons in a residential program for treatment of dependences. Defense argues it’s a sentence carved appropriately for Mrs.

Kaitak in light of her potential for rehabilitation. [ 12 ] Both parties agree on the amount of preventive custody. Since the offender has settled some pending cases in another district in March 2020, and therefore used preventive custody in those files, parties agree a credit of approximately 10 months to this date is available (8,3 months on July 14). ANALYSIS [ 13 ] As noted by the Supreme Court in R. v.

Lacasse [6] , the determination of an appropriate sentence is «one of the most delicate stages of the criminal justice process». [ 14 ] Many principles, objectives and consideration need to be weighed in determining the fit sentence. [ 15 ] As for the general principles of sentencing, the objectives are to denounce unlawful conduct, to deter and separate offenders from society where necessary, to rehabilitate offenders, to provide reparations for harm done, to promote a sense of responsibility in offenders, and acknowledgement of the harm done. [ 16 ] The sentence also has to be proportionate to the gravity of the offense and the degree of responsibility of the offender. [ 17 ] While weighing those objectives, parity in sentencing is also important, where « a sentence should be similar to sentences imposed on similar offenders for similar offenses committed in similar circumstances ». [7] This being said, the principle of individualization requires this Court to carve a sentence that is appropriate to the offender.

It does not require an equal sentence, but a sentence that is rationally explicable. [ 18 ] As for the importance of the objective of rehabilitation, the Supreme Court in Lacasse noted the following : [4] One of the main objectives of Canadian criminal law is the rehabilitation of offenders.

Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate. [8] [ 19 ] Rehabilitation, providing reparations for harm done and promoting a sense of responsibility is directly in line with the principles set out in s. 718.2 (

e) C.cr .

section 718.2 (

e) requires that all available sanctions, other than imprisonment, reasonable in the circumstances be considered, with a particular attention to Aboriginal offenders. [9] [ 20 ] In Denis-Damée [10] , our Court of appeal reiterated that the principles set out by the Supreme Court apply also to serious offences. Also, in every cases, the casual link between the backgrounds and systemic factors and the offense is not required. [11] [ 21 ] In R. v.

Iserhoff , justice Ladouceur summarizes very clearly the principles set out in Gladue and Ipeelee in the following paragraphs : [83] In Gladue , the Supreme Court stated that “the aboriginal offenders are, as a result of these unique systemic and background factors , more adversely affected by incarceration and less likely to be ‘rehabilitated’ thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination toward them is so often rampant in penal institutions ”. [38] (Emphasis added) [84] In this situation, therefore, s. 718.2 (

e) Cr. C . requires that the Court should consider all available sanctions, other than imprisonment, that are reasonable in the circumstances.

Gladue adds, among other things, that “[s]entencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.” [39] [85] In Ipeelee , the Court notes that trial judges benefit from broad discretion and that they “must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender.” [40] It adds that “sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders” and that this is achieved “by directing judges to craft sentences in a manner that is meaningful to Aboriginal people.” [41] [86] In addition, as stated in Ipeelee , the Court must avoid rendering a sentence that could be seen as providing a race-based discount . [42] Furthermore, in Diabo , [43] the Court of Appeal, referring to R . v .

Chanalquay , [44] a judgment of the Court of Appeal for Saskatchewan, states that the sentencing judge should not proceed in two stages by first rendering the sentence he or she considers to be appropriate, and then reducing it to take into consideration the Gladue criteria. Doing so “would suggest that a judge is right to sentence the offence and not the offender, which is diametrically opposed to s. 718 et seq. Cr. C. ” [12] AGGRAVATING FACTORS, MITIGATING FACTORS, AND OTHER FACTORS [ 22 ] As far as aggravating factors, the offense of aggravated assault is very serious.

The strength used in the attack resulted in a serious injury that has serious physical consequences on the victim. The picture deposited as S-1 shows an important scar on the victim’s face. [ 23 ] Mrs. Kaitak’s first appearance in the criminal court occurred when she was 19 years old. Since then, she has over 30 priors for offenses such as assaults, resisting arrests, breach of undertaking and probation, threats, harassing communication, assaults on police officers and assault with weapon. Her last convictions dates from March 2020, where she was sentenced to an 8 months jail term for these files.

This was her first lengthy jail sentence.

[ 24 ] The Gladue report also mentions she has collaborated with the justice committee of Salluit in the past. She had to accompany elders on a yearly week out on the land very far from the community and helped the elders the whole week. [13] [ 25 ] Mrs.

Kaitak admits that most times she ended up in front of the courts, she had committed a crime while being intoxicated with alcohol. [ 26 ] This court also notes as an aggravating factor that the offense was committed while the offender was under a probation. [ 27 ] Although the offender has a lengthy criminal record, this Court notes it’s the first time a Gladue report was ordered. [ 28 ] This report allows to fully understand the historical and the systemic factors and also points out other factors helping to understand the importance of the need for rehabilitation and restorative justice in this case. [ 29 ] As for mitigating factors, the Court notes her young age, her potential for rehabilitation, her willingness to receive treatment and to participate in alternative justice programs. [14] [ 30 ] As an Aboriginal offender, she had a very difficult childhood and suffers from alcoholism.

She feels remorse for her actions (see letter S-4) and has participated in programs while in detention. [ 31 ] As it appears on page 16 of the Report, she has made efforts to work and be an active member of her community. [ 32 ] As for other factors, the Court notes the effect of the Covid-19 pandemic on her conditions of detention.

As of March 2020, all programs Inuit and non-Inuit, school and gym activities where suspended indefinitely. [ 33 ] Finally, the content of the Gladue report plays a crucial role in the court’s determination of a just sentence in this case. [ 34 ] The teaching of the Supreme Court of Canada in Gladue clearly applies in this case.

The totality of the background factors and systemic factors present in this case both explain her actions and mitigate their moral blameworthiness. [ 35 ] As for historical factors, the Gladue writer notes ‘’she is most likely to be affected by multi-generational trauma in addition to being affected by all her personal life trauma‘’. [15] It’s also noted that ‘’Aboriginal youth are at two to six times greater risk for every alcohol-related problem than their non-aboriginal counter parts’’. [16] [ 36 ] The Gladue writer emphasizes that the report contains sensitive information that could trigger intense emotions for the offender if publicly disclosed.

Therefore, it is sufficient to say that the offender as suffered many physical, sexual and psychological abuses throughout her life. [ 37 ] After weighing all the factors and principles of sentencing, it is clear that serving the equivalent of 10 months of incarceration in the circumstances of this case serves the objectives of denunciation and deterrence.

These objectives are met. [ 38 ] In the Court’s opinion, the proposed suspended sentence is proportionate to the gravity of the offense and the degree of responsibility of the offender in view of the principles established in the cases of Gladue and Ipeelee . [ 39 ] Therefore, the Court, considering a preventive detention of 10 month to be noted in the record, suspends the passing of the sentence. [ 40 ] Directs that the offender be released on the conditions presented in the following probation order for a duration of 3 years: - Keep the peace and be of good behavior; - Appear before the Court when required to do so by the Court; - Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation; - Reside at [...], Terrebonne (Qc) [...]; - Abstain from communicating, directly or indirectly, with Mary Kakayuk; - Not be in the following place: at residence of Mary Kakayuk; - Not be in the physical presence of Mary Kakayuk; - Refrain from using any alcohol or other intoxicating substances; - Refrain from using drugs or other intoxicating substances except in accordance with a validly obtained medical prescription; - Actively participate in a closed therapy at Vilavie Center; - To be released into the custody of any consultant from the Makivik corporation or any representative from Vilavie Center; - Report to the justice comity of Salluit within 7 days of her release and thereafter, as required by the justice comity and in the manner directed by them; - Follow all other advices and recommendations of the justice comity regarding her substance abuse and violence problem;

[ 41 ] Prohibits the offender from possessing any firearm, including a prohibited firearm or restricted firearm, and any crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life; [ 42 ] Command the offender to appear within 60 days at Terrebonne for the purpose of the taking of bodily substances by means of the investigative procedures set out in subsection 487.06(1) of the Criminal Code . - __________________________________ MARC-ANTOINE CARETTE, J.C.Q. Julie Vincent Crown attorney Lauren Dahan Attorney for the defense Date of hearing: July 14, 2020