R. v. Kayaitok, 2014 NUCJ 11

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Kayaitok, 2014 NUCJ 11 Date of Judgment (YMD): 2014-25-03 File Number: 24-08-08 Registry: Iqaluit Prosecutor: Her Majesty the Queen -and- Accused: Bruce Kayaitok ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Prosecutor): Paul Bychok, Amy Porteous Counsel (Accused): Malcolm Kempt Location Heard: Kugaaruk, Nunavut Date Heard: March 25, 2014 Matters: Criminal Code, ss. 235 , 718.2 (e), 745 (c), 745.4 REASONS FOR JUDGEMENT (NOTE: This document may have been edited for publication)

I. THE BASIC FACTS [1] Bruce Kayaitok and Belinda Tootiak had been romantically involved for approximately 14 years until Mr. Kayaitok killed her onJune 13th, 2008. They lived in Kugaaruk, Nunavut, with two of their four children; Bruce Junior and Dawson. On August 23rd, 2013, Iconvicted Mr. Kayaitok of second degree murder, and those reasons are found at 2013 NUCJ 16. Bruce and Dawson were five and threeyears old at the time of the murder and were in the house when the murder occurred. Mr. Kayaitok has been in custody since the day ofthe murder. [2] Mr. Kayaitok was sober when he stabbed Ms. Tootiak.

In the reasons for the conviction, I found that he was "fully aware of what hewas doing" when he stabbed her twice with a broken mop handle and then continued to beat her with it as she fled to the living room withher femoral artery severed. She bled to death within minutes. [3] Mr. Kayaitok attempted to sop up the blood before taking Belinda to the Health Centre. He also hid the murder weapon and lied topolice and medical staff claiming that Miss Tootiak had sustained her injuries by falling on a broom. II.

MANDATORY MINIMUM SENTENCE [4] As the Crown has indicated in their submissions, there is a mandatory minimum sentence that I impose today. For second degreemurder, the court is required to pass a sentence of life imprisonment under

Section 235 of the Criminal Code, and that is the minimumsentence. For the rest of his natural life, Mr. Kayaitok will be subject to the processes of the Correctional Service of Canada and theNational Parole Board, whether he is in gaol or out on parole. [5]

Section 745(

c) of the Code provides that Mr. Kayaitok must serve a minimum of ten years in gaol before he becomes eligible forparole. The court is given discretion to increase his parole ineligibility by Section 745(4) of the Code to a maximum of 25 years. III. APPLICATION OF SENTENCING PRINCIPLES TO PAROLE INELIGIBILITY A.

General Principles [6] Now on the application of the sentencing principles to parole ineligibility, I am going to review some general principles. [7] With respect to the applicable principles and factors when a court considers extending the parole ineligibility of the accused beyondten years, under Section 745(4) of the Code, the Crown relies on the Supreme Court of Canada case of R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193 [Shropshire]. [8] In that case, Iacobucci J. concluded that parole ineligibility was part of the punishment process and an important element ofsentencing policy thereby making general and specific deterrence applicable. He also concluded that the other principles of prevention,retribution, and rehabilitation will also applicable.

[ 9 ] He held that Parliament in enacting a sliding scale of parole ineligibility in

Section 745.4 , intended to recognize that there will be a broad range of seriousness in second degree murder cases reflecting varying degrees of moral culpability. A sentencing judge was to weigh these considerations in determining whether a ten-year minimum period of ineligibility was fit in all the circumstances.

The general rule can be ousted if the judge determines that a longer period is appropriate due to the character of the offender, the nature of the offence, and the circumstances surrounding its commission or any recommendation made by a convicting jury. [ 10 ] Unusual circumstances need not exist before a sentencing judge can impose an increased period of parole ineligibility. All that is required is a determination by the judge that the offender should wait longer than ten years before his suitability for release is considered.

The courts need not exercise their power to extend the parole ineligibility period sparingly. B. Length of Parole Ineligibility [ 11 ] I am going to review a number of cases that have reviewed the general principles on the length of the parole ineligibility. The Crown relies on R. v. Jeffrey 2007 NUCJ 1 ; R. v. Delorme 2005 NWTSC 79 ; R. v. A.A.M. 2009 YKSC 71 ; R. v. Cerra 2004 BCCA 594 , R. v.

Martel 2011 ABCA 225 , to argue that the offender's character and circumstances of this offence render a minimum of 15 to 20 years without parole ineligibility appropriate. [ 12 ] The Defence relies on the factors and principles I discussed in Jeffrey and those discussed by Kilpatrick J. in R. v. Kringuk 2012 NUCJ 20 and R. v. Kayaitok [2007] NUCJ 12 and argues that a period of 12 years of parole ineligibility would be appropriate. [ 13 ] Since I convicted Mr.

Kayaitok, there is no jury recommendation to consider. [ 14 ] In considering whether to increase the minimum ten-year period of parole ineligibility, the court is directed by the Code to consider the character of the offender, the nature of the offence, and the circumstances surrounding its commission. [ 15 ] In applying the principles discussed in Shropshire , I must engage in some analysis of the relative degree of moral culpability of the accused and place him somewhere on the continuum between ten and 25 years. [ 16 ] While cases from other jurisdictions, and particularly those cases from the other two territories are helpful, I repeat what I said in Jeffrey that sentencing is a highly individualized process.

The sentencing judge has a unique knowledge of the facts and parties of each case and exercises his or her discretion in the application of the law. [ 17 ] At the time of the Jeffrey sentencing, the cases from the three territories exhibited a range between ten and 14 years. The case of R. V. Sayers and Elanik 2003 NWTSC 69 , [2003] N.W.T.J. No. 89 , which is a Northwest Territories case, is very close to the case at bar in terms of the level of brutality and violence. In setting the parole ineligibility at 14 years, Schuler J. noted the murder was brutal and shocking and unusual for the Northwest Territories.

The deceased suffered massive blunt force injuries to his head with multiple lacerations, bruises, and skull fractures. The cause of death was determined to be massive blunt cranial trauma consistent with multiple blows to the head. In Jeffrey , I imposed a period of 14 years for a shocking and brutal murder of young girl. [ 18 ] In Delorme , an aboriginal offender with a lengthy and violent criminal record, had ingested both cocaine and alcohol. He and others strangled a drug associate and made extensive efforts to burn his body and conceal their involvement in the crime.

Vertes J. held Delorme 's involvement in drug-related crime and his post-offence conduct was particularly aggravating in setting a 14-year period of ineligibility. [ 19 ] In A.A.M. , another aboriginal offender beat and killed another woman under the influence of cocaine. The victim received a blunt force injury to her head of sufficient force and damage to cause disorientation and unconsciousness. Two of the scalp lacerations were lengthy and penetrated to the surface of her skull. She ultimately died of drowning with the head injury and severe intoxication being contributing factors.

Veale J. imposed 14 years parole ineligibility.

[ 20 ] In Cerra , the offence was a brutal beating death of a young woman over a petty drug dispute. The beating was severe and prolonged. The victim would have died from head injuries inflicted by Mr. Cerra had he not caused her death by drowning. He had an opportunity to withdraw from the attack when persons driving by interrupted him; but after they moved on, he resumed the beating and dumped the victim in a pond where she died. [ 21 ] Veale J. noted in A.A.M. that in Cerra , the British Columbia Court of Appeal put parole ineligibility into two broad categories.

The first one was from 12 to 15 years and the second was 15 to 20 years. To fall into the higher category, there had to be egregious circumstances of a higher order of moral culpability. [ 22 ] The longest period of parole ineligibility imposed in the three northern territories was 15 years in the Yukon case of R. v. Bouchet and Lange 2006 YKSC 53 , which is a 2006 case. In that case, the aboriginal intoxicated accused inflicted a total of 15 blows upon the victim; two to his back, one to his neck, five to his scalp, and seven to his head.

These resulted in swelling and bruising to his face as well as fracturing to his nose, right cheek, right jaw, and also the bones around his right eye. There were also large lacerations as the facial tissue was crushed against the bony prominences of by what were likely kicks to the head. The accused then dumped the body in a ditch. [ 23 ] I am satisfied that the facts of this case put it into the higher end of the first category similar to Jefrey, Delorme, A.A.M., and Bouchet and Lange. The question I must answer in this sentencing is whether Mr. Kayaitok falls into the higher category.

To make that determination, I have to examine his character and look at the circumstances of this case. C. Character of Offender [ 24 ] Mr. Kayaitok is a 37-year-old Inuit male; and at the time of the offence, he had lived his whole life in Nunavut. [ 25 ] He was in an off-and-on common-law relationship with the victim for 14 years. The couple has four children; Alex 18, Melanie 17, Junior 11, and Dawson 9. [ 26 ] Mr. Kayaitok was employed at the local gas station at the time of the offence and had a history of working within the community.

He is a man of very limited education having dropped out of school in Grade 5. He has limited reading skills and is unable to write. [ 27 ] Mr. Kayaitok had a supportive family while growing up. They have continued to have almost have daily contact with him while he's been in custody, and they will continue to support him during the remainder of his sentence. [ 28 ] Despite the stable home and support of his parents, Mr. Kayaitok was the unfortunate victim of sexual abuse by a relative when he was a child. As a result of this trauma, he began a lifetime of alcohol and substance abuse.

He started binge drinking and using drugs at the age of 12. [ 29 ] Although alcohol and drugs were not a factor in the murder of Belinda Tootiak, they did play a factor in previous incidents of violence between the two parties, and abuse of both remains a problem for Mr. Kayaitok. [ 30 ] Mr. Kayaitok has been in custody since the commission of the offence in 2008.

His remand time was divided between Baffin Correctional Centre; Ottawa Carlton Detention Centre; Central East Correctional Centre in Lindsay, Ontario; Central North Correctional Centre in Penetanguishene; and the North Slave Correctional Centre in Yellowknife. This period of pretrial detention is required to be taken into consideration by Corrections when calculating when Mr. Kayaitok's parole eligibility begins. [ 31 ] In April 1994, when Mr. Kayaitok was 19, he assaulted 14-year-old Belinda Tootiak and was convicted in August of the same year. [ 32 ] Mr. Kayaitok was convicted of assaulting Ms.

Tootiak twice more between 1997 and 2003. In September of 2005, he was convicted of assaulting her and causing her bodily harm. On November the 8th, 2006, he was convicted of another assault for punching her in the face and arms leaving significant bruising in both locations. And on that date, Justice of the Peace Rodnunsky, sentenced him, and this is why the Crown has filed as Exhibit 2 a transcript of the sentencing. And I just want to find the appropriate line.

[33] At any rate, I will accept what I have -- what was contained in the Crown brief that the Justice of the Peace specifically warnedMr. Kayaitok if he continued his behaviour, and then this is the quote that was in the Crown brief, "he could end up with a murdercharge and a 25-year sentence," and advised him, "You don't want to get into a situation like that.

Violence isn't the way." [34] Despite police intervention and receiving short custodial sentences on four occasions, despite his position of trust with his partner,despite the birth of their children, despite being repeatedly sentenced to counselling, and despite the very specific warning from Justice ofthe Peace Rodnunsky, the offender, Mr. Kayaitok, continued to beat Belinda Tootiak right up until the very morning that he killed her. [35] In September 2007 and in May of 2008, Belinda presented with significant injuries that she attributed to him.

Witnesses describedher in the months prior to her death as being afraid of him, distraught, and fearful of her life due to his threats and beatings. The offenderabused, controlled, and terrorized her for a significant portion of her short life. [36] In addition to his spousal assault convictions, Mr. Kayaitok has adult convictions for breaking and entering, committing theft, andfailing to comply with probation orders. [37] While Mr.

Kayaitok is not to be sentenced for his previous offences, those offences and his long-term domination of a frightenedwoman must be taken into account in any assessment of his character. [38] As held by this court in Jeffrey, since Mr. Kayaitok is an aboriginal person, the principles from R. v. Gladue (SCC), 1999], 1 S.C.R. 688, form part of the sentencing analysis and are relevant to the court's assessment of his character.

In sentencingaboriginal offenders, a court must try to give the greatest weight to the principles of restorative justice and less weight to principles ofdeterrence and denunciation and separation. However, in R. v. Wells, the Supreme Court of Canada also cautioned that the principles inGladue are less applicable for more violent offences.

The court stated at Paragraph 42: Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions ofsentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals ofdenunciation and deterrence are fundamentally relevant to the offender's community.

As held in Gladue, at para. 79, to the extent thatgeneralizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriate sentencewill not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation anddeterrence are accorded increasing significance. [39] In balancing the competing sentencing principles, I am satisfied that I must emphasize deterrence over restorative justice inconsidering this factor. While being a victim of sexual abuse as a child helps to explain why Mr.

Kayaitok developed anger issues whichfueled his addiction to alcohol and drugs, he must accept responsibility for not taking steps to deal with them. He had many warningsabout his toxic relationship with the deceased but took no steps to deal with it. This court has commented many times on the absence ofthe treatment facilities in the territory. However, the absence of facilities does not mean that there is no help available if the person ismotivated. Many Inuit every year receive treatment in southern facilities such as the Mamisarvik Healing Centre in Ottawa. D.

The Nature and the Circumstances of the Offence i. Crown Submissions [40] Mr. Kayaitok was convicted of a spousal homicide that occurred in front of two young children. [41] Abuse of a common-law partner is an aggravating circumstance as set out in

Section 718.2(ii) of the Criminal Code and themurdering one's common-law's partner is the most serious form of such abuse.

[ 42 ] The Crown relies on the comments of Kilpatrick J. in R. v. Van Eindhoven [2007] NUCJ No. 2 [VanEindhoven], that were quoted at Paragraph 25 in Kringuk concerning the profound nature of the breach of trust where a person kills his spouse. [ 43 ] Belinda Tootiak had every right to trust the offender and to feel secure in her own home as did Bruce Junior and Dawson. The offender, Mr. Kayaitok, violated that trust in perhaps the most brutal way possible. His act left his children without a mother and essentially without a father. [ 44 ] Mr.

Kayaitok acted alone and thus bears all responsibility on a high level of moral culpability for Ms. Tootiak's murder. His motive appears to have been a jealous desire to further control her life. [ 45 ] Ms. Tootiak was not merely "stabbed" in the conventional sense of the word. Mr. Kayaitok subjected her to a vicious and prolonged beating in the course of which he sank a broken metal mop handle into her right lower abdomen two separate times. The common wound path was six-and-three-quarter inches long, crossing the midline of her body near her pelvis and ending in her upper left thigh. [ 46 ] Mr.

Kayaitok admits to causing her other injuries which, in addition to the two stab wounds, included a gash above one eye and visible injuries to her eyes, her eyelids, scalp, chin, neck, wrist, hands, arms, legs, and buttocks. It is not clear whether he inflicted these injuries before or after stabbing her or between incidents of stabbing, but the blood splatter evidence showed that he had continued beating her after inflicting at least one of the stab wounds. This murder can be fairly characterized as being merciless and sadistic.

It deserves harsh censure by this court. [ 47 ] The Crown relies on my statement in Paragraph 46 of Jeffrey that "where a person is killed in aggravating circumstances, there must be a firm and measured consequence for the accused that can only be achieved through a longer period of parole ineligibility". [ 48 ] The Crown relies on the statement at Paragraph 40 of R. v. Wells that recognizes that Gladue principles are less applicable where the offence is more serious. [ 49 ] The nature of Mr. Kayaitok's offence is such that it merits a strong, deterrent, and denunciatory sentence.

While even the general rule of 10 years without parole is sufficient to provide a certain measure of deterrence, the parole ineligibility analysis demands a consideration of whether further deterrence is required. As noted at Paragraphs 21 to 25 of Shropshire, the analysis must be concerned with deterrence, whether general or specific. [ 50 ] As noted by Maire Sinha at page 22 in Measuring Violence Against Women (Ottawa: Statistics Canada, February 2013) domestic assault is perpetrated at epidemic levels in Nunavut.

In 2011, 7,772 domestic assaults against women were reported per 100,000 residents of the territory. The comparable rate nationally was 542 per 100,000. That is, at over 14 times over the national rate, Nunavut's rate is the highest in the country. [ 51 ] As noted at page 28 in Homicide in Canada 2011 (Ottawa: Statistics Canada, December 2012 Table 1b) by Samuel Perrault, Nunavut also leads the country in homicide rates and has for all but one year of its existence. It is 2011 rate of 21 homicides per 100,000 inhabitants far surpassed that of any other province or territory. The national average was 1.73.

Even the second place jurisdiction, the Northwest Territories, had a rate more than three times lower than Nunavut's. [ 52 ] Mr. Perrault notes at page 23 that Nunavut also leads the country in terms of domestic homicides per capita. Between 2001 and 2011, 32 percent, almost one third, of all homicides in Nunavut, were committed by the victim's spouse. [ 53 ] As Kilpatrick J. stated at Paragraphs 41 to 43 of Kringuk, the rate of such crimes in Nunavut calls for a deterrent sentence more than

the minimum. This is particularly true of the horrendous circumstances of the domestic murder in this case. [ 54 ] Relying again on the words of Kilpatrick J., the Crown emphasized the need for a deterrent sentence because the murder took place in front of young children who will likely be permanently scarred by the event. [ 55 ] The Crown concluded by emphasizing the need for denunciation and deterrence so that potential perpetrators will see that spousal murder is never worth considering. ii. Defence Submissions [ 56 ] The finalization of the prosecution of Mr.

Kayaitok was delayed many times because of the changes in the lawyer representing him that were caused by unforeseen circumstances beyond his control. As a result, he has been on remand for more than five years and has not been able to take advantage of counselling inmate programs and other services due to his status as a remand prisoner. [ 57 ] Although Mr. Kayaitok does not benefit from the mitigation provided by a guilty plea, he has been reasonable throughout the proceedings and his willingness to move his prosecution along.

He waived preliminary inquiry and following a voir dire to determine the admissibility of certain evidence. He also made multiple concessions and admissions in order to expedite the trial process. He admitted the written statements of other witnesses, hearsay evidence about the violence of the relationship with his deceased wife. [ 58 ] In taking this approach, Mr. Kayaitok has spared the state time and expense associated with a lengthy trial as well as sparing the many friends and relatives of the deceased from having to testify and relive their painful experiences.

This court should consider these admissions and concessions has substantially mitigating factors. [ 59 ] The Defence acknowledges that a period of parole ineligibility greater than ten years should be imposed because of the aggravating factors emphasized by the Crown.

However, when balancing these aggravating factors against the mitigating factors, this court should consider the principles of restraint outlined by Kilpatrick J. in VanEindhoven . 12 years of parole ineligibility would be sufficient to meet the goals of denunciation and deterrence sought by the Crown. [ 60 ] Finally, the defence requests that this court consider the impact of parole ineligibility on Mr. Kayaitok's access to programming in a federal penitentiary. As indicated in Kringuk , the court should make every effort to maximize Inuit offenders' access to treatment programs through parole. iii.

Analysis [ 61 ] As the materials relied on by the Crown demonstrate, Nunavut has an enormous problem with spousal assault and homicide and leads the country in both categories. The reasons for these grim statistics are complex. However, I am satisfied that, as I stated in the VanEindhoven sentencing, behind the violence there is an untreated trauma. That is true in this case because Mr. Kayaitok is a victim of sexual assault. If he had received treatment, this tragic death might have been avoided.

Hopefully he will take advantage of the programming available in the federal penitentiary that will now be available to him as a serving prisoner. [ 62 ] The imposition of a longer period of parole ineligibility is one way that this court can express its disapproval of the epidemic of spousal violence in this territory. Hopefully, it will deter others in the future.

As I stated in the recent VanEindhoven sentencing, after his second trial: The aggravating factors described by the Crown and the jurisprudence provided to the Court might support the imposition of a period of parole ineligibility in excess of 15 years in the future. [ 63 ] This case has those aggravating factors as outlined in the Crown's written submissions. In this case, I found at Paragraph 125 of my judgment:

In addition to the accused's admission that he stabbed Belinda twice in the abdomen, the photographs, statements of Byrne and Ferguson, and the inferences I have made from the blood splatter evidence satisfy me that the beating the accused inflicted on Belinda was vicious and prolonged. He stabbed her twice near the bathroom and then continued to beat her with the mop handle as she fled to the living room dying from her injuries. [ 64 ] The further aggravating factors in this case are that two young children witnessed the murder and the history of domestic violence. [ 65 ] Finally, in this case Mr.

Kayaitok was not under the influence of alcohol or drugs that are frequently present in many cases and provide some explanation for the lack of judgment that he exhibited. [ 66 ] I am satisfied that this case has the "egregious circumstances of a higher order of moral culpability" such as to put it in the second category described in Cerra . [ 67 ] At the same time, I take into account the defence submissions on the cooperation of Mr. Kayaitok in eliminating the need to call witnesses impacted by the crime and making important issues to simplify the trial. [ 68 ] I take into account what I heard from Mr.

Kayaitok in court. I believe he is genuinely remorseful for what he did. And as he said, if it hadn't been for the alcohol in his life, this likely wouldn't have happened. And that is a very, very true statement. Alcohol is the source of an unbelievable amount of pain and damage to Inuit in Nunavut. Every year, this court deals with them by the hundreds, and this is one example of the worst result. And it's really unfortunate, Mr. Kayaitok, that you never got the treatment that you should have got; but by the same token, you have to take responsibility for what you did. E.

Victim Impact [ 69 ] I understand that the family has no desire to say anything today, and I understand that because of the passage of time. You have been trying to come to grips with this terrible tragedy; and by having to speak again, it can only bring up very unpleasant feelings. But all I can say to you is that there is nothing that the court can do today that will bring back the victim, and I know that you will always have a big hole in your heart for the person who is no longer with us. And I convey the condolences of the court to the family for what happened.

This is a very tragic, tragic event, and the family are going to suffer from this for a long time to come. There are four children who will not have a mother and will not have a father because Mr. Kayaitok will be spending a significant period of time in a federal penitentiary. F. Conclusion on Parole Ineligibility [ 70 ] Having regard to all of these considerations, I am satisfied that there must be some step up in the period of parole ineligibility for this offence committed by this offender under these circumstances. IV. SENTENCING [ 71 ] Would you stand up, please, Mr.

Kayaitok? [ 72 ] I hereby sentence you today to imprisonment for life. I fix the period of your parole ineligibility to start 15 years from the point you

were first taken into custody, that being June the 13th of 2008. I take it the Crown is also looking for a DNA order and weapons prohibition? [ 73 ] MR. GARSON: Yes, thank you, Your Honour. [ 74 ] THE COURT: There will be also be a DNA order and a firearms prohibition order for 20 years pursuant to

Section 109 of the Criminal Code . Any firearms or explosive substances now in your possession or accompanying firearms must be surrendered to the RCMP. Any such items surrendered will be forfeited to the Attorney General of Canada for disposition as he may direct. There will be an order for destruction of exhibits following the expiry of any relevant appeal period. [ 75 ] Mr. Kayaitok, your rehabilitation is your responsibility, and you will have numerous resources to help you in the penitentiary if you want to take advantage of it.

If you work hard to deal with your problems, particularly dealing with the sexual abuse that occurred in your life and then your use of substances to cover up the pain of that problem, you have a good chance to rehabilitate. But you really have to put some strong work into it; and if you do, then when you become eligible for parole, the authorities will likely look favourably upon releasing you. And if you do, you will still be a relatively young man when you get out of gaol, and you can still learn from what has happened and make something productive of your life. [ 76 ] So that will conclude the sentencing.

Decision delivered orally on the 25th of March, 2014. ____________________ Justice E. Johnson Nunavut Court of Justice