R. v. Anaittuq, 2022 NUCJ 37

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Anaittuq, 2022 NUCJ 37 Date: 20220916 Docket: 22-19-62 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Nathanial Anaittuq __________________________________________________________________ Before: Mr. Justice Martin Counsel (Crown): Counsel (Accused): L. Lane E. Baasch I. Grant Location Heard: Date Heard: Gjoa Haven, Nunavut July 27, 2022 Matters: Sentencing decision in regards to a finding of guilt contrary to Criminal Code of Canada, RSC 1985, c C-46, ss. 263 (

b) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] After 10:00 p.m. on August 12, 2019, Nathaniel Anaittuq killed his common-law wife, Samantha Ihakkaq, in their home in Gjoa Haven, Nunavut. He was quite intoxicated. Some of their children witnessed part of the violence.

[ 2 ] In June 2022, about five weeks before his trial, he pled guilty to manslaughter based on an Agreed Statement of Facts. A pre-sentence report was prepared, and a sentencing hearing took place in Gjoa Haven. [ 3 ] This decision addresses the fit and appropriate sentence for Mr. Anaittuq for this crime. The Crown says he should be jailed for 15 years, less time-in-custody credit of four and a half years, for a go-forward sentence of 10½ years. On the other hand, the defence seeks a sentence of 10 to 11 years before time-in-custody credit. II. FACTS [ 4 ] A concise

summary of the Agreed Statement of Facts will suffice to set out the important facts immediately surrounding Ms. Ihakkaq’s death. [ 5 ] After 10:00 p.m. on August 12, 2019, Mr. Anaittuq and Ms. Ihakkaq were at their home, along with some of their four young children. Their 12-year old daughter explained that her parents started to fight when her mom tried to wake up her dad. He woke up “really mad” and started fighting. He locked the front door. He pulled Ms. Ihakkaq’s hair and kept hitting her in the face with his fist. He repeatedly pulled her down by the hair, as she resisted.

The children ran out of the house to their grandmother’s home. [ 6 ] There are no witnesses to what happened between the time the children left and about 1:00 a.m., when Mr. Anaittuq showed up at the grandmother’s home. He was intoxicated, loud and kept telling his children he loved them. Scared, the grandmother called police, who attended and arrested Mr. Anaittuq for mischief. [ 7 ] Police did a wellness check for Ms. Ihakkaq at her home, but the doors were locked.

Since nothing seemed amiss, they left without seeing her. [ 8 ] Sometime after the police left, the 11-year old son returned home and entered through a bedroom window. He found his mother lying on a mattress on the floor. She was bloody and not breathing. He ran and told his grandmother, who again called police. [ 9 ] Police forced entry into the Anaittuq/Ihakkaq home and found Ms. Ihakkaq dead on a mattress in the living room. [ 10 ] An autopsy revealed Ms. Ihakkaq suffered blunt force trauma, and bruising to her face, head, torso and limbs.

Evidence of the number, severity or cause of the blows was not provided to me. However, these injuries did not kill her. Ms. Ihakkaq died of blood loss from a nine centimeter, or three and a half inch, laceration in the wall of her rectum. The pathologist concluded the cause of this fatal injury was a hand, or object, forcefully inserted into Ms. Ihakkaq’s anus. She also had contusions to her labia. [ 11 ] Nothing in this

summary of her death describes the sheer terror and horror Ms. Ihakkaq would have experienced in her death at the hands of her husband. Nor of the impact upon the children of witnessing the violence. [ 12 ] As to what happened, or why, Mr. Anaittuq is of little help, other than saying he was very drunk. He says he cannot remember what happened, and he had assaulted her before when drinking, but never like this. III. MR. ANAITTUQ’s BACKGROUND [ 13 ] As mentioned, a pre-sentence report was prepared. As I understand it, typically, in Nunavut these reports do not specifically include a so-called Gladue component.

This process is consistent with this court’s recognized and pragmatic practice to “ rely on the expertise of Indigenous Court Workers, Inuit elders, resident counsel, and resident probation officers” ( R. v GH , 2020 NUJC 21, para 18), through reports or comments in court. Consistent with this approach, the accused waived a formal Gladue report, relying instead on his counsel to bring relevant considerations to the court’s attention. Counsel did so quite ably during oral submissions, and the report mentions that the accused did not attend residential school, nor did his parents. [ 14 ] Mr.

Anaittuq is a 37-year old Inuit man who has essentially lived in Gjoa Haven his entire life. His father is deceased, while his mother remains in the community. He has a number of brothers and sisters, some in the community, some not. He strongly bonded to his mother’s two brothers, who offered guidance and wisdom to him.

[ 15 ] He has a grade 10 education. Apparently, he has been reasonably successful finding employment in the community, often as a carpenter or electrician. As he told the probation officer, “I thought I was lucky to find work here and there, because Gjoa Haven is real hard place to find work.” [ 16 ] His mother and the two uncles confirmed that after Mr. Anaittuq’s father died, when he was about 15-years of age, he was in need of help. He took it hard. Like many young people in isolated northern communities, he turned to alcohol. He would get drunk and pass out. One uncle said there were times when he saw Mr.

Anaittuq crying in his room because he was hungry for food and missing his father. At the time, there were very few social services in the community and despite attempts by his uncle to get him help, none was found. [ 17 ] Eventually, when Mr. Anaittuq was in his early 20s, he and Ms. Ihakkaq moved in together and started a common law relationship. Together they had four children, two girls and two boys, who are now between the ages of eight and fourteen. It is clear that Mr. Anaittuq was drinking throughout the relationship.

It is unclear if he was addicted to alcohol or whether his drinking was more intermittent yet serious. Not unusually, this community is a dry community but nevertheless alcohol is reasonably readily available through bootleggers, as are soft drugs such as marijuana. [ 18 ] Mr. Anaittuq has never had physical or mental health issues, nor has anyone in his family. He has sought counseling in the past while on probation. He has never thought of or attempted suicide. He has had alcohol counseling while in custody. [ 19 ] Mr. Anaittuq has a criminal record including two simple assaults.

One was from 2009 against his wife, Ms. Ihakkaq, and importantly, he was also convicted in 2018 for assault cause bodily harm against her and was placed on probation. Two terms of his probation were that he was not to be at the family home while intoxicated and he was not to have direct contact with Ms. Ihakkaq. [ 20 ] Mr. Anaittuq seems to have supports in the community, although I note no one came to the sentencing hearing to show support, except that late in the hearing two of his daughters attended. His mother is raising the children. Perhaps remarkably, the only overt sign of support was from Ms.

Ihakkaq’s parents, both of whom attended court and expressed their love and forgiveness of Mr. Anaittuq. IV. SENTENCING CONSIDERATIONS [ 21 ] A sentence imposed by a judge on an accused for a serious crime should be tailor-made in the sense that, mindful of principles of sentencing, it responds appropriately to the circumstances of the offence and the particulars of the offender.

The Criminal Code articulates that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a safe, peaceful society through just sanctions that denounce unlawful conduct; deter persons from committing offences; separate offenders from society where necessary; assist in rehabilitation; provide reparation; and promote a sense of responsibility in offenders. [ 22 ] Further, the Criminal Code mandates that a judge consider a number of principles, including sections: • 718.1: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; • 718.2(a): a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; • 718.2(a)(ii): spousal or common-law partner abuse is a deemed aggravating factor; • 718.2(a)(iii): breach of trust is a deemed aggravating factor; • 718.2(b): the parity principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and, • 718.2(e): the restraint principle.

In other words, jail should be used sparingly, with particular attention to the circumstances of Aboriginal, Métis and Inuit offenders (particularly as affected by Gladue considerations). To this statutory list are a number of common law principles that have developed over many decades of jurisprudence. [ 23 ]

Section 718.04, which mandates that denunciation and deterrence be primary sentencing principles where offences are committed

against vulnerable people, including Aboriginal females, and s. 718.201, which calls for additional consideration of the increased vulnerability of female victims of intimate partner abuse, “giving particular attention to the circumstances of Aboriginal female victims”, were enacted after this offense occurred. As such, strictly speaking, the provisions do not apply to this sentencing, but as is clear from a number of precedents, including from the Nunavut, Manitoba and Quebec Courts of Appeal, the underlying principles are applicable, as they were embedded in sentencing principles of common law.

As such, the rationale underpinning the provisions apply to Mr. Anaittuq.

Those principles give voice to Parliament’s concerns for the plight of Indigenous women, as detailed in the Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls ( Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (Ottawa: Government of Canada, 2019)). [ 24 ] More locally, as to Nunavut, there is no doubt from a review of various publications, whether government, academic, or policy organizations, along with previous decisions of this court in homicide situations, that Canada’s colonization of the far north has had disastrous consequences for the Inuit people.

One of those consequences has been alcohol abuse in context of family situations that frequently leads to physical or sexual abuse, particularly of intimate female partners, and all too often results in violent, brutal killings. [ 25 ] In R. v. Ammaklak , 2008 NUCJ 27 , Kilpatrick J. stated at para. 22: [22] Spousal violence is a pressing concern in the territory of Nunavut. This type of violence accounts for a very significant percentage of all violent crimes committed in this jurisdiction. A significant percentage of all homicides in this territory are of domestic origin. The statistics reflect this.

This Court’s experience reflects this. The territory of Nunavut continues to lead this country in its per capita rate of offences related to domestic violence. Treatment options are few. In this jurisdiction there is a demonstrable need to emphasize general deterrence when addressing sentences in matters involving domestic homicides. … [ 26 ] In another case, R. v. Kinak , 2011 NUCJ 25 , Sharkey J. (as he then was) referred to the prevalence of this type of crime as “stunning”. [ 27 ] A 2018 Government of Canada report noted the disproportionate volume of domestic violence upon Indigenous, Métis and Inuit women.

Based on anecdotal experience, there is little reason to doubt that this issue, often referred to as a scourge, has slowed, although clearly governments and organizations are offering more help than ever. Interestingly, that help is no longer aimed solely at women but also recognizes the need to address root causes among boys and men.

In other words, to involve them at the front end, rather than simply, and sadly, at a sentencing hearing through denunciation and deterrent sentences. [ 28 ] Since the type of conduct and circumstances captured by the manslaughter provisions of the Criminal Code varies greatly, the range of sentence for spousal (also referred to as domestic or intimate partner) manslaughter also is broad. Other than when a firearm is used, the statutory parameters range from no minimum penalty to a maximum penalty of life in prison.

Generally, though, spousal killings attract a higher sentence, and greater condemnation, than other types of manslaughter.

This is based on the extreme breach of trust by an offender against his partner; a husband or boyfriend is supposed to protect his partner, not prey on her. [ 29 ] There is also precedent authority that the sentence range for spousal manslaughters should reflect the unique circumstances of this offence being committed in this jurisdiction, given its inherent challenges and prevalence of domestic violence. [ 30 ] Counsel provided me with many precedents, some from the Nunavut Court of Justice and some not.

For the quantum of sentence, I will refer only to some of the more salient ones, particularly those of intimate partner manslaughter. Bearing in mind that manslaughter sentences are very case specific, and precedents are most helpful as foundational guidance only, especially as every sentencing is an individualized process, I succinctly note the following cases (oldest to most recent): • in R. v. Ammaklak , 2008 NUCJ 27 , an Inuit man who pled guilty to beating his wife to death with a weapon, received a 13-year jail term.

Finding that past sentences did not properly address the prevalence of such crimes, the court observed that “there is a compelling need to step up the sentences imposed for this type of offence” in Nunavut (para. 45), while noting the high-end of the range at 15 years (para. 46); • in R. v. Jamieson , 2012 ONSC 1114 , the court recognized a general sentence range of 9 to 15 years imprisonment for domestic homicide in Ontario. Mr. Jamieson stabbed his wife once and left her without medical help for about 24 hours before she died. He was sentenced to 12 years; • in R. v.

Peter , 2014 NUCJ 28 , the Indigenous accused was charged with murder but found guilty of manslaughter. He beat his Indigenous wife to death with his fists and feet in

an act of “extreme violence”. He had a prior record of domestic assaults against his wife and breaching court orders. The court recognized the apparent high-end sentence range of 15 years and imposed that, while commenting that “the level is not high enough” (see paras. 63 - 66 and 164); • in R. v. VanEindhoven , 2016 NUCJ 19 , at para. 8 , the court noted that the range of sentence for a domestic homicide is

“approximately is 12 - 15 years”. [ 31 ] I acknowledge Defence counsel’s able submission in distinguishing various spousal manslaughter cases from one another, particularly respecting guilty pleas and factors which may be thought of as more or less aggravating. [ 32 ] All in, the precedents provided show that 12 to 15 years for an intimate partner manslaughter, of various manners, is historically the range of an appropriate sentence in Nunavut.

That said, higher sentences than 15 years are now recognized as appropriate to reflect society’s condemnation and concerns for the special and vulnerable circumstances of Indigenous, or as here, Inuit, women. For example, recently, in R. v. Wood , 2022 MBCA 46 , a sentence I imposed of 18 years jail was upheld by the Manitoba Court of Appeal. [ 33 ] I do not agree that these facts, circumstances and the peculiarities of this offender bring this situation into a 10 or 11 year range, as suggested by Defence counsel.

Such a sentence does not demonstrate appropriate value for the life lost at the hands of a spousal partner, nor account for the balancing of other relevant factors. At this point, the range for spousal manslaughter in Nunavut remains 12 to 15 years, barring exceptional circumstances which may cause it to be higher or lower. V. ANALYSIS [ 34 ] Turning to my analysis, the aggravating factors are significant, while the mitigating circumstances are minimal. [ 35 ] The aggravating factors include: • the unique brutality of the beating and manner of killing, as noted by the pathologist.

Defence counsel agree with the Crown that this attack included a sexual assault. In other words, it started as a purely violent attack that morphed in part to a violent sexual attack. Inserting his hand, or an object, into Ms. Ihakkaq’s anus, causing a long three and a half inch tear, was inhumane. It required a degree of thought and dexterity. While it is not clear how long the attack took, as the kids ran out relatively quickly and Mr. Anaittuq did not arrive at his mom’s for several hours, I find the assault was not brief; • Ms. Ihakkaq was vulnerable.

Evidence of her size and physical condition at death was not provided. Mr. Anaittuq however, is not a small man. As he sits in court, he looks strong and powerful. On the facts, I infer he was easily able to manhandle her; • Mr. Anaittuq should not have been at the family home because he was intoxicated. In doing so, he breached his probation order, which he was given for a prior assault on Ms. Ihakkaq that also caused her bodily harm. If he had simply followed the court orders, she would be alive; • he made no attempt to get her help once he harmed her.

Not only did he inflict a fatal injury, but he effectively let her bleed to death; and, • he has a criminal record for twice assaulting her before. This negates any leniency, demonstrating, as it does, a persistent tendency for violence against females. [ 36 ] Further, that the victim was his spouse is an additional aggravating factor ( s. 718.2 (a)(ii) of the Criminal Code ). Underpinning this factor are two important societal concerns. First, the violent breach of the highly valued trust of a domestic union.

Second, the cunning nature of domestic abuse where, despite the abuse and the ongoing risk of abuse, a victim often is compelled or lured by emotional, psychological, family, shelter or financial reasons to remain in a dangerous relationship. Additionally, Ms. Ihakkaq’s Inuit status, and living in a community as under-serviced and isolated as Gjoa Haven, heightened her vulnerability to spousal violence. At a minimum, these factors offset counsel’s reliance on R. v. Nowdlak , 2012 NUCJ 19 , as a precedent for 12 or less years here. [ 37 ] Finally, it is clear that this event was not only catastrophic for Ms.

Ihakkaq, but also for her four children. They will grow up deprived of her love, support and guidance. Her death, at her husband’s hands, affects the children greatly and likely as well extended family, friends and the community. Moreover, research has shown that witnessing domestic violence is a significant risk factor for normalization, or acceptance, of violence or future violence by the couple’s children as they grow and become adults. Unless there is help or intervention for these children, they are at real risk of repeating their father’s behaviour.

[ 38 ] As to mitigating factors, there are perhaps three. One, I accept that after the fact, and over the last few years he has been in jail, Mr. Anaittuq has a profound sense of remorse for everything he did that night. Two, his violence seems to only spike while drinking, but on the other hand, it has spiked too frequently, too seriously and for too long, as demonstrated by his criminal record. To be clear, I do not consider his intoxication in this situation as a mitigating circumstance.

Three, he pled guilty to the offence he was charged with, thus sparing a trial and, most importantly, sparing some of his children from testifying to what they saw. Defence counsel relies on this last factor. However, this point is counter-balanced in that had he not started the fight in front of the children, they would not have been witnesses. [ 39 ] I pause to note that Defence counsel relied very heavily on Mr. Anaittuq’s guilty plea as a distinguishing factor, both on the facts and in contrast to some other cases relied on by the Crown, in support of a lesser sentence.

Counsel asserted that where an accused pleads guilty to the original charge, such as here, the prospect of a lesser sentence is motivation for the plea and, on the flip side, ever increasing sentences have little utility in providing desired deterrence. While I do not disagree conceptually, it need be born in mind that notions of the harm caused by certain egregious behaviour continue to be researched and better understood (i.e. R. v. Friesen , 2020 SCC 9 ). This applies equally to the insidious nature of domestic violence. More globally, manslaughter sentence ranges are higher now than decades before.

Further, while a court motivating an accused to plead by rewarding with a lighter sentence is a valid notion, if carefully applied so as not to induce false pleas, on the other hand, justice must be done. Counsel are always free to provide a joint sentence, but where they do not, it is implied that the guilty plea has been taken into account by both Crown and Defence. Indeed here, in asking for a 15 year sentence, Crown counsel espoused exactly that. In the end, a sentence must be proportionate and just, given the unique factors of any given case.

This is the nature of the so-called “cold plea” before me. [ 40 ] Counsel also stressed Gladue considerations, and ably augmented the pre-sentence report in this respect. Frankly though, many of the hallmarks normally associated with an individual being affected by Gladue factors are not apparent here. Mr. Anaittuq does not appear to be the product of a broken home, there is no evidence of his exposure to normalized violence at a young age, he attended school, he has consistently worked and there is no history of residential schooling.

His life moved off a positive track because of drinking and his father’s death, which Mr. Anaittuq had difficulty dealing with. Moreover, despite that, he had family support. However, I do find, as with most Inuit in the far north, including poverty and other social conditions related to moving off the land into isolated hamlets affected Mr. Anaittuq - - in effect, a type of systemic harm affecting some people but not others. [ 41 ] In order to assess Mr. Anaittuq’s moral blameworthiness, which is critical, a host of factors needs to be taken into account.

Importantly, without repeating or belaboring it, there is the nature of the beating, the force required, the number and nature of the strikes he made and the extreme violence of penetrating Ms. Ihakkaq’s anus, such that a three and half inch cut to the wall of her rectum would follow, ranks this as a severe case. He admits through his counsel that he committed a sexual assault. Regardless, I would have found, based on the surrounding circumstances, the sexual aspect was not consensual. Aside from the sheer violence, it is hard to imagine an assault that would destroy a person’s dignity more than this.

The other injuries do not demonstrate that she would have been unconscious at the time. Compounding all of this, is the assault started for no reason: Mr. Anaittuq was woken by Ms. Ihakkaq, the couple began fighting while the children were present (who subsequently ran away in fear to the comfort of their grandmother), and Mr. Anaittuq took steps to prevent his wife from leaving the home, such as pulling her down by the hair and locking the front door. While he may have blacked-out from alcohol, all of these facts suggest a terrifying attack, far from an impulsive drunken act. It was merciless.

Moreover, he had abused her in prior years, and was breaching his current probation order when he committed this crime. Finally, I recognize his remorse and other effects of his guilty plea. All in, his moral blameworthiness, even when tempered for what I regard as systemic Gladue circumstances, is very high. This situation was egregious, extremely severe. [ 42 ] In terms of other sentencing considerations, denunciation and deterrence are paramount. Denunciation is critical in condemning spousal violence, particularly the chronic threat to Inuit women. Deterrence is critical as well. It is specific to Mr.

Anaittuq, because at some point he will be released from jail to resume his life, and he has thus far not been able to control his violence. The sentence should motivate him not to drink, because that is a core problem. It should motivate him to understand what triggered his hostility toward his wife, to avoid repetition with a new partner.

I hope as well that some measure of general deterrence will influence other potential offenders to avoid committing acts of domestic violence. [ 43 ] Many Inuit boys or men do not understand, or have been conditioned away from, traditional concepts of Inuit family and community harmony, or of collective respect for the community and individual respect for each member, particularly women.

They must understand that if they are removed from their community and jailed for long periods, because of violent crimes against others, particularly women and those who are girlfriends, common-law partners or wives, such a penalty is consistent with traditional Inuit notions of shunning and expelling those who commit serious offences and are a threat to the community. Drunkenness is no excuse. I hope the approach the court takes in dealing with these type of matters stimulates the community, and individuals, to learn why this violence happens and the terrible effects of alcohol.

Obviously, these notions go beyond Nunavut to all communities and Canadian society generally. [ 44 ] As to sentencing precedents, I acknowledge that 15 years imprisonment for a spousal manslaughter, with aggravating features, appears to be at the high end of sentences, which comparatively, similar offenders received even where the victim was an Inuit or Indigenous woman or girl. The Crown has not asked for the high-end to be increased; although frankly I would have been receptive to that.

A maximum sentence of 12 years for this type of crime, as ultimately suggested by Defence counsel, is insufficient to recognize the critical factors of this case and sentencing principles. If Ms. Ihakkaq had not died, it is conceivable that a 12 year sentence would have been appropriate for an aggravated sexual assault of this nature. [ 45 ] As a society, we do not have firm answers to reduce domestic violence and spousal homicide, particularly within Inuit

communities like Gjoa Haven. It remains a menace of bleak yet glaring proportions. Women must know they have support and the justice system will step up to protect them and ensure safety in the community. A judge’s important, but limited, role is to mete out justice in the circumstances of the particular case. As always in a case like this, we are the end of the line, with limited options. [ 46 ] As shown here, the option is solely to impose a fit sentence of between 12 and 15 years in jail. Sentence ranges and precedents are just that, ranges and precedents. They provide guidance but not necessarily an answer.

No two cases are alike. A judge must bring their judgment to bear based on their assessment and weighing of the appropriate factors. VI. CONCLUSION [ 47 ] After considering all the circumstances, the gravity of this crime and this offender, and balancing all the sentencing principles and factors I must, I find a just sentence is 15 years’ incarceration.

I deduct the equivalent of 4 years 5 months for the time he has spent in custody since his arrest, for a go-forward sentence of 10 years, 7 months. [ 48 ] There will be the usual ancillary orders of a 10 year ban from owning or possessing any weapon upon his release and he must provide a sample of his DNA to be stored on the DNA databank. He may apply for a firearm permit pursuant to s. 113, for sustenance purposes, upon his release. Dated at the City of Iqaluit this 16th day of September, 2022 ___________________ Justice C. Martin Nunavut Court of Justice