R. v. Kablutsiak, 2013 NUCJ 03

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Kablutsiak, 2013 NUCJ 03 Date: 20130219 Docket: 14-11-153 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Joe Kablutsiak ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): C. Lirette Counsel (Accused): K. Kellough Location Heard: Arviat, Nunavut Date Heard: January 30-31, 2013 Matters: Criminal Code, s. 268(2) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

Amended Decision: An amended decision was issued on February 22, 2013; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [ 1 ] Mr. Kablutsiak has pled guilty to a charge of aggravated assault on his wife [A.B.]. II. FACTS [ 2 ] In the early morning hours of December 25, 2011, Mr. Kablutsiak and his wife were in their shed, arguing. They had both been drinking. The victim was standing near the door to the shed when Mr.

Kablutsiak picked up a tire iron and threw it towards her, not with the intention of hitting her, but with the intention of scaring her into leaving. The tire iron hit the wall and bounced off, hitting the victim in the head. The victim went to the floor and her head was bleeding from a large cut to her forehead. The extent of the injury was readily apparent. Mr. Kablutsiak called the nursing station in a panic and crying, requesting immediate help for his wife. [ 3 ] When the victim arrived at the nursing station she was non-responsive but breathing.

She had a large cut on her forehead and both eyes were bruised and swollen shut. She was medevaced to Winnipeg. [ 4 ] The victim had a depressed open skull fracture as well as nasal and facial fractures. She underwent a number of surgeries, one of which involved putting a plate in her head. She was released from hospital approximately one week later and continued with follow-up appointments for some weeks. [ 5 ] Fortunately, she has made a full recovery. The only lasting injury is a scar on her scalp. III. POSITIONS OF THE PARTIES A.

Crown [ 6 ] The Crown submits that the appropriate sentence would be a period of incarceration of two years less a day, minus 1:1 credit for pre-trial custody. B. Defence [ 7 ] Defence counsel submits that Mr. Kablutsiak should be sentenced to time served with probation, or alternatively, a period of incarceration of up to 90 days, followed by a period of probation. IV. ANALYSIS A. The offender [ 8 ] Mr. Kablutsiak has a criminal record. In 2009, he was convicted of assault, assault with a weapon and possession of a weapon for a dangerous purpose.

He received a suspended sentence and a period of probation for nine months for those offences. The victim of those

offences was the same victim as in the matter currently before the Court. [ 9 ] Mr. Kablutsiak is 47 years of age and is from Community X. He comes from a large family of 11 children. He had a difficult upbringing. His father is a residential school survivor and an alcoholic. The children witnessed alcohol and violence in the home on a regular basis. Most of the violence was directed towards Mr. Kablutsiak's mother. However, there were occasions when the violence was directed at Mr. Kablutsiak and some of the other children. [ 10 ] Witnessing such violence led to a great deal of anger in Mr.

Kablutsiak towards his father. When he was a teenager he talked about getting revenge against his father but was talked out of it by his mother. [ 11 ] Despite the difficult relationship with his father, Mr. Kablutsiak did learn land skills from his father and today is an accomplished hunter and trapper. He is teaching land skills to his son and provides country food to his family and others in the community. [ 12 ] Mr. Kablutsiak and the victim have been together for 27 years. They have four children and three grandchildren. They have been supportive parents and have provided a good home for their children. Mr.

Kablutsiak has an impressive work record, having held long term employment with the Hamlet and with a private construction firm. He has his heavy equipment operator’s license as well as other very marketable skills. While Mr. Kablutsiak has only a Grade 8 education, the family recognizes the importance of an education. All of their older children have completed high school and gone on to post-secondary education and good jobs. Their nine year old son is in school. [ 13 ] The family has also maintained a traditional lifestyle and made hunting and camping a family activity. His wife participates in the hunt and Mr.

Kablutsiak intends to start an outfitting business with one of his daughters. [ 14 ] Mr. Kablutsiak was very close to his mother. When she passed away a few years ago he began drinking. The drinking escalated to the point where it was a weekly occurrence, sometimes to the point of blacking out. I am advised that the offences from 2009 involved alcohol, as did the offences before the Court. [ 15 ] When Mr. Kablutsiak was arrested in December of 2011, he was remanded into custody at the Baffin Correctional Centre.

He remained there until June 22, 2012, at which time he was released into the care of family members in another community. [ 16 ] While in custody, Mr. Kablutsiak worked as much as he could and sent the money home to his family. He successfully completed various programs, including the Alternatives to Violence program and the Grief and Loss program, to help him deal with the loss of his mother, and a parenting course. He also chaired the Alcoholics Anonymous (AA) meetings. [ 17 ] When he was released on bail Mr. Kablutsiak continued to attend AA meetings regularly.

I am advised that he is interested in starting AA meetings in Community X when he is back in the community and that he already has the materials that will allow him to do so. [ 18 ] I am advised that his involvement with AA provided him with great insight into the issues relating to his drinking and that his commitment to AA is sincere. I accept that this is the case. [ 19 ] While on bail, Mr. Kablutsiak started going to church again, something he had stopped doing when his mother died. He also attended the men’s group in Rankin Inlet and is interested in starting a men’s group in Community X when he returns.

He has started raising a dog team and will bring the dogs back to Community X with him. I expect that they will be used in the outfitting business. [ 20 ] Mr. Kablutsiak has been fully employed while being on release and has sent most of the money home to his family. Letters from various employers over the years indicate that he is a reliable, valued employee. It seems clear that he should not have any difficulty obtaining and maintaining employment.

B. Sentencing principles [ 21 ]

Section 718 of the Criminal Code sets out the sentencing principles that the Court must consider. [ 22 ] Deterrence and denunciation are paramount sentencing considerations in this matter. Others in the community who are inclined to violence, particularly towards their spouses, must be sent a clear message by the Court that such behaviour is not acceptable. [ 23 ] The spousal relationship must be one of trust and mutual respect and understanding. An assault on a spouse is a breach of that trust and respect and is an aggravating feature of an offence. C.

Specific deterrence [ 24 ] I will first address the principle of specific deterrence. The Court is directed to consider whether or not a harsh sentence is necessary to specifically deter Mr. Kablutsiak from committing similar offences in the future. [ 25 ] In this regard, I must consider that Mr. Kablutsiak and his wife have been together for 27 years and the materials filed support the proposition that this has been a loving, mutually respectful and supportive relationship. They have been equal partners in the running of the household and the raising of their children.

This is not a relationship where the husband is controlling or habitually abusive to his wife. The couple enjoyed 24 years together without incident. [ 26 ] I acknowledge the prior offences in 2009, against the same victim. It appears that those offences occurred when Mr. Kablutsiak was under the influence of alcohol, a pattern of behaviour he turned to following the death of his mother. This is not to excuse either the 2009 offences or the current offences because of intoxication. The Court does not do so and Mr. Kablutsiak does not offer up intoxication as an excuse.

It does suggest, however, that if the drinking is addressed then the risk of further offences is greatly reduced. [ 27 ] Mr. Kablutsiak has taken considerable steps to address his drinking and the issues that lead him to drink. In addition to his involvement with AA, which has been discussed, he has dealt with his longstanding anger towards his father. He has been able to meet with his father, express his anger and has forgiven his father. In my view, this is a significant step in addressing the reasons why Mr.

Kablutsiak drank. [ 28 ] I am also satisfied that the time in custody at Baffin Correctional Centre had a deterrent effect on Mr. Kablutsiak. It was his first time in custody. He has been away from his family and had no contact with his wife for over a year. There can be no doubt that this had a significant impact on him. [ 29 ] I am satisfied that specific deterrence is not a concern in this matter. D.

General deterrence, denunciation, aboriginal status [ 30 ] In addition to addressing the issues of general deterrence and denunciation, the Court is also directed by the Criminal Code and the case law to consider Mr. Kablutsiak's circumstances as an aboriginal offender in determining the appropriate sentence. The systemic factors that contribute to bringing Inuit into the criminal justice system are well known to the Court and have been set out in various decisions of this court.

Recent colonization, the residential school experience, high rates of substance abuse, substandard and overcrowded housing, to name but a few, all impact on criminality. [ 31 ] It is clear that Mr. Kablutsiak was impacted by many of these factors. Essentially, he suffered the intergenerational effect of the residential school experience by virtue of his father.

[ 32 ] The case law directs the Court to consider what an appropriate sanction might be from the context of the aboriginal community of the offender.

While there are clearly cases that call out for incarceration because of the serious nature of the offence or the circumstances of the offender, in instances where it is less clear, it is sometimes difficult for the community to understand why an offender is not required to remain in the community and fulfill his responsibilities to his family, rather than being sent away to jail to leave the family to cope without any support. [ 33 ] The denunciatory principle of sentencing can sometimes be satisfied by having an offender remain in the community under the terms of a carefully crafted order to satisfy the terms of his sentence in full view of the community. [ 34 ] Furthermore, while it is not the intention or purpose of the bail system, the unintended consequence of removing an accused from the community and remanding him into custody immediately following the commission of an offence is that a message is sent that the Criminal Justice system will respond quickly and strictly to offences.

This has both a deterrent and a denunciatory effect. [ 35 ] Finally, this is a matter where rehabilitation and reconciliation must be considered by the Court. There is a good prospect for rehabilitation, if it has not already been achieved. Mr. Kablutsiak is well motivated to address the causes of the underlying behaviour and he has the support of his family in helping him do so. [ 36 ] It is clear that there will be reconciliation between the offender and the victim.

A disposition that can facilitate this in a controlled manner that protects the victim is to the long term benefit of the community. [ 37 ] There is no doubt that in this matter the injuries to the victim were serious. However, the moral culpability of the offender is on the low end of the scale for this type of offence. It was never his intention to strike the victim; it was his intention to scare her to make her leave. This is not in dispute.

He attended to her needs immediately and called for medical help. [ 38 ] The Court must balance the sentencing principles of deterrence, denunciation, rehabilitation, and the other sentencing principles set out in the Criminal Code , all while having regard to the nature of the offence and the circumstances of the offender, to determine a fit sentence. [ 39 ] While parity of sentence for similar offences by similarly-situated offenders is to be strived for, at the end of the day sentencing is an individualized process. It is consistency in approach and application of the legal principles that is important. V.

SENTENCING [ 40 ] In my view, the appropriate sentence in this matter, without having considered any credit for pre-trial custody or credit for strict release conditions, is a sentence of nine months. [ 41 ] I must now consider what credit will be given for pre-trial custody and strict release conditions. A. Credit for pre-trial custody [ 42 ] Mr. Kablutsiak was in pre-trial custody for approximately six months. The Court may consider granting enhanced credit for the time spent in pre-trial custody.

The amount of credit to be granted, from 1:1 to a maximum of 1:1.5, is in the discretion of the Court. [ 43 ] There are several reasons why a court grants enhanced credit for pre-trial custody. One reason is that while on remand an offender is not able to earn early release. Given the circumstances of Mr. Kablutsiak, it is likely that he would have been a good candidate for early release had he been serving a sentence.

[ 44 ] Enhanced credit also recognizes that remand prisoners are often housed in harsher conditions than serving prisoners. While the Court appreciates that Mr. Kablutsiak was able to access various programs while on remand, his success at these programs also makes him a more suitable candidate for release back into the community. [ 45 ] The conditions at the Baffin Correctional Centre are well known to the Court and, indeed, to the people of Nunavut generally.

Issues of overcrowding and lack of sufficient exercise have been well publicized. [ 46 ] I am satisfied that enhanced credit of 1:1.5 is appropriate in this matter. [ 47 ] Given my finding on the credit to be granted for pre-trial custody, it is unnecessary for me to consider whether any credit should be granted for the time spent on release with conditions. [ 48 ] The sentence is as follows:

a) nine months custody, deemed to have been served by the time spent in pre-trial custody. [ 49 ] There will be a period of probation of two years, the terms of which will be as follows:

a) You shall keep the peace and be of good behaviour;

b) You shall appear before the Court when required to do so by the Court;

c) You shall notify the Court or your probation officer in advance of any change of name or address, and promptly notify the Court or your probation officer of any change of employment or occupation;

d) You shall report to a probation officer within two days of your release from prison and thereafter as directed;

e) You shall take such counselling as directed by the probation officer;

f) For the first three months of your probation order you are not to reside with A.B., although you may have contact with her;

g) You must abstain absolutely from the possession or consumption of alcohol;

h) You must not be in the presence of A.B. if she is under the influence of alcohol;

i) If you are asked by a member of the RCMP or by A.B. to leave her presence you must do so immediately and you must stay away for a period of 24 hours; and

j) You must perform 150 hours of community service work. It is recommended that the work be done for the benefit of the safe houses in the community. B. Ancillary orders [ 50 ] There will be a s.109 firearms prohibition with a s.113 exemption for sustenance purposes. In considering whether there should be an exemption for sustenance purposes under s. 113, I have considered the criminal record, the nature of the offence before me, and public safety. In particular, I note that the offence did not involve the use or threatened use of a firearm.

I have also considered the factors that speak to the good prospects for rehabilitation of the offender, as these speak to the issue of public safety. [ 51 ] There will be a s. 487.051 DNA order. Dated at the City of Iqaluit this 19th day of February, 2013

___________________ Justice S. Cooper Nunavut Court of Justice _______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Madam Justice Cooper _______________________________________________________ In the frontispiece, - the name of Crown counsel has been changed from “P. Christie” to “C. Lirette” -the date of the hearing has been changed from “January 31, 2013” to “January 30-31, 2013” Please replace the amended pages in your hard copy of the judgment.