R. v. Kowtak, 2019 NUCJ 3

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kowtak, 2019 NUCJ 03 Date: 20190308 Docket: 18-17-74-I Registry: Iqaluit Crown (Respondent): Her Majesty the Queen -and- Accused (Appellant): Verna Kowtak ________________________________________________________________________ Before: The Honourable Madam Justice Susan Charlesworth Counsel (Crown): Roman Dzioba Counsel (Accused): Will McNair Location Heard: Iqaluit, Nunavut Date Heard: January 14, 2019 Matters: Sentence appeal. Appeal allowed. The Justice of the Peace erred in his consideration of Gladue .

REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. OVERVIEW [ 1 ] Verna Kowtak appeals the sentence rendered by a Rankin Inlet community Justice of the Peace on September 11, 2017. Ms. Kowtak pleaded guilty to an assault upon her 15-year-old daughter, Nadia, contrary to s. 266 of the Criminal Code , RSC 1985, c C-46 [ Criminal Code ] and received a suspended sentence, nine months’ probation, and a $100.00 victim fine surcharge. II. GROUNDS FOR APPEAL ALLEGED [ 2 ] The appellant has alleged three grounds for appeal: 1. The sentencing Justice of the Peace made an error in law by refusing to consider Gladue when sentencing an Inuk, 2.

The sentencing Justice of the Peace engaged in impermissible speculation about the appellant’s personal characteristics, and 3. The sentencing Justice of the Peace deferred to the Crown position as presumptively reasonable. III. FACTS [ 3 ] The facts of the offence, to which the appellant agreed, are that on or about February 15, 2017, the appellant was at home, intoxicated, and arguing with her spouse, when Nadia told the appellant to stop being rude to her dad, the appellant’s husband. The appellant then swung with a closed fist, punching Nadia multiple times.

The assault ended when Nadia left the room; there was no information about any physical injury caused to Nadia. IV. LAW [ 4 ] The Criminal Code sets out the power of a court on a sentence appeal: s. 687(1): Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and … (

a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (

b) dismiss the appeal. [ 5 ]

Section 822 provides that s. 687 applies to

summary conviction appeals. [ 6 ]

Section 718.2(

e) directs a court on sentencing Indigenous offenders: 718.2 A court that imposes a sentence shall also take into consideration the following principles: …

(

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [emphasis added] V. POSITIONS OF THE PARTIES A.

The Appellant Defendant [7] The appellant submits that, by failing to consider R v Gladue, (SCC), [1999] 1 SCR 688, [1999] SCJ No 19[Gladue], making impermissible statements about the accused, and by deferring to the Crown’s position as presumptively reasonable, theJustice of the Peace erred, offending the principle of proportionality, rendering the sentence unfit. [8] The failure to consider and apply Gladue is an error in law because “the justice abrogated his statutory duty,” rendering thesanction not just, and outside of the fundamental principle of proportionality. [9] The appellant also argues that by declaring “…just because there is no criminal record does not necessarily mean it has neverhappened before…” with regards to the appellant’s lack of criminal record, the sentencing Justice of the Peace “engaged inimpermissible conjecture and speculation to neutralize a positive feature of Ms. [Kowtak’s] background.” The appellant argues that is anerror in principle. [10] The appellant’s third ground of appeal is that the Crown’s position is not presumptively reasonable.

In R v Nur, 2015 SCC 15,[2015] 1 SCR 773, the Court held that the Crown’s position is adversarial to the accused’s. The appellant argues that the role of thesentencing judge ought not to be conflated with the role of the Crown. By conflating his role with that of the Crown, the sentencingJustice of the Peace tacitly delegated his judicial responsibility to craft a fair and proportionate sentence, to the Crown. B.

The Respondent Crown [11] The respondent submits that the sentencing Justice of the Peace made no error in law, or, should there be an error in law, that thesentence imposed is nonetheless fit. [12] The Crown argues that cases of domestic violence have deterrence and denunciation at the forefront of sentencing. The Crownargues that the Justice of the Peace used his life experience as a member of the community to inform his understanding of Gladuefactors. Additionally, the Crown pointed out that Defence Counsel did not detail the impact that Gladue factors had on the behaviour ofthe appellant.

Therefore, the Justice of the Peace did not make an error in law or principle in his application of Gladue. [13] The Crown submits that the sentence is fit because it conforms with s. 718.2(

e) and is comparable to the suspended sentence givenin R v Ganesan, 2017 NUCA 7 . [14] With regards to the second alleged ground of appeal, the Crown submits that there is no evidence on the transcript which indicatesthat the sentencing Justice of the Peace’s reasoning was impacted by his speculations regarding the appellant’s other possible offences. [15] Crown addresses the third alleged ground of appeal by submitting that the sentencing Justice of the Peace “critically analysed theposition of both the Crown and the Appellant and came to a fit sentence in the circumstances.” [16] In the alternative, the Crown argues that the sentence is fit in the circumstances and ought not to be tinkered with by an appealcourt.

The suspended sentence is within the reasonable range of sentences for the offence committed. Citing Ganesan, the Crown arguesthat a sentencing judge’s discretion not to impose a conditional discharge “should be given a high degree of deference.”

[ 17 ] The Crown also submits that the assault is domestic in its nature, meaning that deterrence ought to be paramount when sentencing. Additionally, the Crown argues that abuse of children is an aggravating factor pursuant to Criminal Code s. 718.2 (a)(ii.1). VI. ANALYSIS [ 18 ] The Crown correctly points out that the sentence imposed is within the usual sentences for this sort of case, and is not unfit in that sense. The Crown argues that therefore appellate intervention is not required, regardless of the reasoning the Justice of the Peace used to arrive at that sentence. I disagree.

In R v Lacasse , 2015 SCC 64 at para 11 , [2015] 3 SCR 1089 [ Lacasse ] , Wagner J., (as he then was), wrote: “ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit”. [ 19 ] In my view, the Justice of the Peace erred in law in his consideration of s. 718.2 (

e) of the Criminal Code , and erred in principle by using impermissible reasoning, and by affording undue deference to the Crown’s position. A. Failure to Consider and Apply Gladue [ 20 ] The Supreme Court of Canada has interpreted s. 718.2 (

e) in several cases, the first of which was Gladue . Thus, the “circumstances of Aboriginal offenders” are often referred to as Gladue factors, as they were in this case. [ 21 ] The Supreme Court of Canada reaffirmed and clarified Gladue in R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 . LeBel J., writing for the Court said : The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality.

Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention . (at para 87) [Emphasis added]. [ 22 ] The Nunavut Court of Appeal stated in R v Oakoak , 2011 NUCA 4 at para 19 , 510 AR 379 , that in order “ [t]o properly engage in this analysis, sentencing judges require information about the offender, his or her background, and the community.

The Supreme Court recognized that judges could take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing.” [ 23 ] In his reasons for sentence regarding the Gladue factors raised by the Defence – overcrowding and being a victim of prior abuse – the Justice of the Peace said: In bringing up the issue of Gladue , especially when it comes around the issues of family violence, abuse, I can’t help but feel that that’s kind of – that really troubles me. … [I]t seems to me that that is saying this particular demographic that has been identified by that phrase of abuse is fine within that demographic as long as they keep it there, and to me that’s highly disturbing.

I do not buy into that. … The fact that somebody has been abused does not give them the right to be an abuser under any circumstances. … So although there are many circumstances under which that principle is a valuable principle and maybe in terms of a lot of civil matters and certain criminal matters family violence hardly seems to be one of them in my view. [ 24 ] It is often blithely said that all Nunavut courts are “ Gladue courts,” but it is often true and must always be kept in mind when the accused is Indigenous.

To disregard overcrowding and domestic violence as Gladue factors ignores the reality of many Nunavummiut. Every community in which the court sits is a recent construct imposed on Inuit by the Government of Canada within the last century, and often much more recently. An essentially nomadic people were forced to adapt to a wage economy within static communities of non- related people. This alone has caused much stress and trauma.

Gladue is engaged without even considering the additional trauma caused by removals for Residential Schools and TB treatment, and the presence of alcohol, among other individual circumstances.

[25] Defence Counsel advised the Justice of the Peace about the extreme overcrowding experienced by the family of this accused:eleven people residing in a two-bedroom home. This is a circumstance that many people in Nunavut suffer from, and is part of therelocation just mentioned. It is an important circumstance of this Inuk offender.

The response to this information by the Justice of thePeace was to say that, “overcrowding in itself does not excuse abuse and violence within the house.” [26] As well, the Justice of the Peace was advised that this offender had in the past been a victim of domestic violence herself – in facther spouse had received a very lengthy sentence for abusing her.

The response of the Justice of the Peace to this information was to saythat, “[t]he fact that somebody has been abused does not give them the right to be an abuser under any circumstances.” [27] Finally, later in his decision the Justice of the Peace referred to “mercy” in the sentencing process.

The Justice of the Peace stated,“[w]hen it comes to mercy, … the one place for mercy to have happened would have been when the argument was happening in thefamily … a little bit of mercy there would have been really good, but, no, we don’t have any evidence in court that that happened.” [28] This offender did not raise the Gladue factors to excuse her behaviour – she did, of course, plead guilty to the offence. The factorsgive context to the offender’s situation and the Justice of the Peace is required by s. 718.2(

e) to consider them in deciding whetherrestraint (otherwise known as mercy) should be used in crafting an appropriate sentence. The fact that he decided he would not considerthem because this was a case of family violence was an error in law. [29] Errors in law justify appellate intervention. Unlike errors in principle, an error in law does not need to have impacted the sentencein order to justify appellate intervention. For the reasons set out below, a conditional discharge would be a fit sentence for the appellant. B.

Alleged Impermissible Speculation [30] The second ground of appeal alleged is the sentencing Justice of the Peace’s “impermissible speculation” about the accused’s lackof previous criminal record. [31] The Justice of the Peace responded to the statement that the offender had no criminal record by saying, “[a] person who is capableof doing that [unreasonable violence] … just because there is no criminal record does not necessarily mean it has never happened before;but there is nothing before the court to say that it has. That is all that means, is there is nothing before the court.

But we have this – wehave this situation.” [32] The process of inference drawing was described by Doherty JA. in R v Morrissey, (ON CA), 22 OR (3d) 514 atp 209, 97 CCC (3d) 193 (ONCA) as follows: A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably andlogically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonablyfrom established facts cannot be made and is condemned as conjecture and speculation.

As Chipman J.A. put it in R. v.White (1994), 1994 NSCA 77 , 89 C.C.C. (3d) 336 at p. 351, 28 C.R. (4th) 160, 3 M.V.R. (3d) 283 (N.S.C.A.): These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from thewhole of the evidence on the other.

There was no evidence properly before the Justice of the Peace which would permit the suggestion that the appellant had committed anassault before. [33] The respondent Crown argues that the final two sentences quoted above show that the Justice of the Peace put the idea he raisedabout whether the offender had been violent before out of his head. I am not convinced that that is the correct

interpretation of thoseremarks. They could also be read to mean the “situation” the Justice of the Peace is dealing with is one in which he believes that justbecause there is no record does not mean “it has never happened before.“

[ 34 ] This was an error in principle which significantly neutralized an important mitigating factor for the appellant. C. The Presumptive Reasonableness of the Crown’s Position [ 35 ] The final ground of appeal alleges that the sentencing Justice of the Peace incorrectly relied on the Crown’s position. In particular, the appellant objects to the following reasoning: [t]he crown has looked at this and they have thought that a suspended sentence is a reasonable disposition to this with some probation.

I am sure they haven’t done that in a vacuum because they have the RCMP that they rely on … I don’t know whether we find that the crown [sic] is in the habit of making unreasonable requests for sentences … I have to take that seriously. [ 36 ] Certainly, the Justice of the Peace should take the recommendation of the Crown seriously, but in this case he accepted it without considering the Defence recommendation, as though the Defence bar is in the habit of making unreasonable requests. Any official deciding on an appropriate sentence must hear and consider both positions before arriving at a decision on sentence.

Here, there was no consideration of whether a conditional discharge would be appropriate, and this impacted the sentence. VII. THE ROLE AND VALUE OF COMMUNITY JUSTICES OF THE PEACE [ 37 ] Community Justices of the Peace have very a difficult job to do for two reasons. First, they are expected to sit in judgment of their fellow community members, and second, they do not have the same legal training as Nunavut Court of Justice judges. I can appreciate that our Nunavut community Justices of the Peace have a unique and real perspective on both the frequency and severity of certain crimes in their community.

And in particular, when it comes to domestic assault these same Justices of the Peace have a first-hand view of the effect such a crime has on family life and the rearing of children. The Court values their experience in and knowledge of their communities, but they are required to set aside any individual-specific knowledge, suspicions, or innuendo when dealing with cases. That seems contradictory, but it is the nature of the judicial role: to make a fair and just decision based on the specific information before them, according to the principles set out in the Criminal Code . VIII.

FIT SENTENCE [ 38 ] The result of these statements by the Justice of the Peace, certainly cumulatively if not individually, is that the Justice of the Peace made a significant error in law as well as errors in principle that affected the sentence in this case. It becomes my job to determine the appropriate sentence. [ 39 ] The appellant pleaded guilty to an impulsive assault on her daughter in the context of an argument with her spouse. A.

The Circumstances of the Offender [ 40 ] The appellant is the mother of seven children ranging in age from 19 to nine, and has one grandson, all of whom were living with her and her spouse in a two-bedroom house in the community of Rankin Inlet. Although she only has a Grade VII education, she had recently been employed as an elder’s caretaker for three years through the Government of Nunavut. Before that, she worked as an announcer at the community radio station. B.

Applicable Sentencing Principles [ 41 ] The purposes of sentencing are set out in s. 718 – denouncement, deterrence, separation where necessary, rehabilitation, reparation, and promoting a sense of responsibility. In this case, s. 718.01 mandates that primary consideration must be given to denunciation and deterrence, although usually in cases of first time offenders those purposes take a back seat to rehabilitation. The fundamental principle set out in s. 718.1 is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

i. Aggravating Factors [42] The charge of assault is statutorily aggravated under ss. 718.2(a)(ii.1) and (iii) because it was committed on a person under the ageof 18, to whom the appellant was in a position of authority, as her mother. ii.

Mitigating Factors [43] There are also mitigating factors: • The appellant demonstrated significant remorse by pleading guilty at an early opportunity, and in her statement to the Justice of thePeace that she was “sorry of what I’ve done”; • The appellant was 35 years old with no prior criminal record; • The potential future employment of the appellant would be put at risk upon receipt of a criminal record; • The assault was of a relatively minor nature and caused no physical injury; • The Gladue factors of overcrowding and victimization discussed above. IX.

DISPOSITION [44] According to s. 730 of the Criminal Code, a discharge is available when an accused pleads guilty to or is found guilty of anoffence, including assault, if the court considers it to be in the best interests of the accused and not contrary to the public interest to makethat order. The significance of a discharge, either absolute or conditional, is that the accused is not convicted of the offence.

This means,while there is a record of receiving a discharge, held for one to three years, there is no criminal conviction recorded for the offence. [45] As in many cases, it is clear that a discharge would be in the appellant’s interests. The question is whether it would be in the bestinterests of the community to grant a discharge.

I believe it is in the best interests of the community of Rankin Inlet to see that a historyof employment and good behaviour is given substantial credit by the court when there has been a guilty plea to a single, one-time breachof the law. [46] In all of the circumstances, this Inuk first offender should be given the chance to show that this was an isolated incident fromwhich she has learned an important lesson, and also the opportunity to avoid a criminal record which could affect her future employmentto a significant degree. [47] I therefore allow this appeal and vary the suspended sentence to a conditional discharge on the terms of probation ordered at firstinstance.

This sets aside the conviction entered at first instance, so the appellant will not have a criminal record. [48] The Justice of the Peace also applied the mandatory victim fine surcharge. The victim fine surcharge is no longer payable. Theappellant’s appeal was heard after the Supreme Court of Canada released R v Boudreault, 2018 SCC 58 , which declared victimfine surcharges unconstitutional with immediate effect, therefore, she is eligible to and shall have the victim fine surcharge removed fromher sentence. Dated at the City of Iqaluit this 8th day of March, 2019

___________________ Justice S. Charlesworth Nunavut Court of Justice