R. v. F.O., 2021 NUCJ 45

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. F.O., 2021 NUCJ 45 Date: 20211110 Docket: 23-20-07 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: F.O. __________________________________________________________________ Before: Madam Justice Tulloch Counsel (Crown): G. Wool Counsel (Accused): S. Siebert Location Heard: Nunavut Date Heard: November 10, 2021 Matters: Youth sentencing pursuant to s.42 of the Youth Criminal Justice Act in relation to a manslaughter charge pursuant to s. 234 of the Criminal Code of Canada REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under sections 110 of the Youth Criminal Justice Act , “no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.” By court order made under sections 111 of the Youth Criminal Justice Act , “no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties.

Letters have been assigned at random. Contents I. INTRODUCTION . 4 II. CROWN’S POSITION ON SENTENCING .. 5 III. DEFENCE COUNSEL’S POSITION ON SENTENCING .. 5 IV. APPLICABLE PRINCIPLES OF SENTENCING .. 5 V. THE FACTS . 8 VI. THE PERSONAL CIRCUMSTANCES OF THE ACCUSED . 11 VII. ANALYSIS AND DECISION . 15 A. The Mitigating Factors in this Case Include: 15 B. The Aggravating Factors in this Case are: 16 VIII. THE SENTENCE . 17

I. INTRODUCTION [ 1 ] I start by stating the obvious. This case is tragic. A life was taken and nothing this court does today can change that reality except to recognize the pain and suffering of M.O.’s family and friends. [ 2 ] Four victim impact statements have been filed with the court, three of them were read out to those present in the courtroom on Monday. [ 3 ] Hearing the family describe their loved one and the tremendous loss suffered at the hands of F.O. was heartbreaking. There is no doubt that this brutal and senseless act has changed their lives forever.

It has interfered with their feelings of safety and their grief is a life sentence. It is never ending and palpable even after waiting over four years to talk about the hole M.O.’s death has left in their lives. [ 4 ] F.O. had just turned 17 years old at the time of this offence. She was therefore charged under the Youth Criminal Justice Act as a young person. [ 5 ] Originally charged with second-degree murder, the Crown laid a new information and F.O. pled guilty to manslaughter admitting that she caused the death of M.O. by beating her without provocation.

It was a brutal and senseless act that took place over four years ago between April 7 and April 8 in 2017. [ 6 ] The accused was not arrested until January 15, 2019 when she confessed that she had beaten the victim. F.O. told the police that she punched M.O. (in her words) “millions of times” and caused her death. [ 7 ] F.O. was held in custody in Iqaluit at the young offender’s facility for just over two months before being released on conditions to return to this community to live with her parents on March 22, 2019.

It is agreed that she served 67 total days in custody before being released on bail. [ 8 ] At the sentencing hearing, which occurred on Monday, November 8, 2021 the following documents were filed as Exhibits: a. An agreed statement of facts; b. Two pre-sentence reports: One dated October 1, 2020 and a second report dated January 19, 2021. c. A Forensic Psychiatric Report authored by Dr. Ahmed dated Oct. 12, 2020, and d.

Four Victim Impact Statements. [ 9 ] In addition to these documents, the Court received written and oral sentencing submissions from counsel and heard directly from the accused who apologized to the victim’s friends and family. [ 10 ] Crown and defence also provided me with a book of authorities with cases decided throughout the country for this type of offence involving young persons within the meaning of the Youth Criminal Justice Act . [ 11 ] The court reserved its decision on sentence until today, Nov. 10, 2021. II.

CROWN’S POSITION ON SENTENCING [ 12 ] The Crown is seeking a further period of secure custody of 12 to 15 months to be followed by six months of supervision and then

by 12 months of probation. III. DEFENCE COUNSEL’S POSITION ON SENTENCING [ 13 ] Defence counsel submits that an appropriate sentence in this case is a 12 to 18 month custody and supervision order with one day open custody (served by F.O.’s attendance in court) and the balance under a conditional supervision order. IV.

APPLICABLE PRINCIPLES OF SENTENCING [ 14 ] Because at the time of this offence F.O. was a young offender I must sentence her pursuant to the purpose and principles contained in the Youth Criminal Justice Act (hereinafter referred to as the Act). [ 15 ] Under that Act, I am required by law to treat youthful offenders differently than adults. [ 16 ] The Act indicates that a young person’s degree of responsibility and blameworthiness is less than that of an adult. [ 17 ] This is because it is recognized that young offenders are less mature, more susceptible to negative influences and often have a natural tendency to engage in impulsive and ill-considered behaviour. [ 18 ] That being said, young people also have a greater potential for rehabilitation because their characters are not yet fully formed and their deficiencies are often more amenable to positive change. [ 19 ] On the other hand, even though there is an emphasis on rehabilitation under the Act, youth are also to be held accountable, albeit to a lesser degree, for their choices and actions which can cause very great harm. [ 20 ] In recognition of these factors, Parliament has set a maximum penalty of three years combined custody and conditional community supervision from the date of committal for the offence of manslaughter pursuant to s. 42(2) of the Act. [ 21 ] This means that my total sentence today cannot, by law, exceed three years.

There is however no restriction on what part of the time can be spent in a custodial setting and what

part can be spent on conditions in the community. Indeed, nothing is said about the respective duration of the custody and supervision portions of the order. [ 22 ] The court also has discretion as to how much to credit a young person for time spent in custody before they are sentenced. It can vary from no credit to 1.5 days of credit for each day served in custody. Time spent in custody does not form part of the formal sentence which only starts once it is imposed. [ 23 ] Section 3(1) of the Act sets out the general declaration of principal that applies to the whole of the Act and to all young offenders.

On Monday, the first day of the sentencing hearing, the crown prosecutor quoted the entire

section in his oral submissions. Although I do not see a need to repeat it this morning, I know that I am required to carefully consider the offence and the offender by keeping these overarching and general principles at the forefront of my mind. [ 24 ] Section 38(1) sets out the purpose of sentencing young persons who come under

section 42 of the Act. [ 25 ] The overall goal outlined in Section 38(1) is as follows: “… To hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term

protection of the public.” [ 26 ] Section 38(2) goes on to say: “A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

Section 3 and the following principles:” (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable, in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and, (iii) promote a sense of responsibility in the young person, and the community; and (

f) subject to paragraph (c), the sentence may have the following objectives; (

g) to denounce unlawful conduct, and (

h) To deter the young person from committing offences.” [ 27 ] Section 38 (3) talks about the factors to be considered. I will refer to those factors later, in my analysis of what an appropriate sentence should be in this case for this offender. V. THE FACTS [ 28 ] An agreed statement of facts has been read into the record and it has been entered as exhibit number one in this matter. [ 29 ] A

summary of the important facts are as follows: [ 30 ] F.O. was 17 years and one month old when she met up with her friend J.A. to find a place to drink the alcohol that he had received that day. [ 31 ] M.O. allowed the two teenagers into her home for that purpose. M.O. was 46 at the time. All three drank the alcohol and at some point J.A. and the accused left and walked around town. [ 32 ] F.O. realized that she was missing her cell phone so she went back to M.O.’s house alone to look for it. She knocked on the locked door and when M.O. opened the door, the accused pushed her way inside.

[ 33 ] At this point F.O. suspected that M.O. had stolen her phone. F.O. was highly intoxicated. [ 34 ] After M.O. let the accused into her home she sat down in her recliner. [ 35 ] F.O. became furious and she punched M.O. in the face and head repeatedly. On January 15, 2019 when the accused made a confession to the RCMP she said that she hit M.O. (in her words) “millions of times” and that M.O. was quote: “just sitting there letting me punch her”. At no time did M.O. provoke the accused. [ 36 ] F.O. used her fists. M.O. quit moving, blood was coming out of her face and F.O. thought she was dead.

At one point she asked M.O. for her truck keys. M.O. mumbled something but F.O. could not understand her. [ 37 ] F.O. became very frightened and did not seek any help at any time for M.O. [ 38 ] The next thing F.O. did was to go through M.O.’s house stealing a number of small items including M.O.s cell phone, clothing, hair dye, a small medal, and jewelry. [ 39 ] She also found and took M.O.’s truck keys.

When she left the house about five minutes after the beating, M.O. was still in the chair bleeding and not moving. [ 40 ] F.O. left some of the stolen items in a bag outside M.O.’s house. [ 41 ] She took the truck and some residents noticed her erratic driving and called by-law to report it.

The officers located the truck stuck along the side of the road and one of them confronted F.O. who simply ignored him and walked away. [ 42 ] F.O. left the stolen clothes belonging to M.O.’s daughter in the truck and went back to M.O.’s house to pick up the bag with the other stolen items. [ 43 ] F.O. does not remember what happened after that. [ 44 ] It was later learned that F.O.’s phone had been found on the side of the road. [ 45 ] On the morning of April 10, 2017, police were called and asked to check on M.O.

They went to her house and found her dead on her living room floor, her face nose down against the carpet. There was blood splatter on the walls, furniture, and carpet, in the area of M.O.’s body and on other surfaces. The contents of M.O.’s purse were dumped out near her body. [ 46 ] The police very quickly learned that F.O. had been drunk and driving M.O.’s truck so they interviewed her. She said that she had been drinking with J.A. at M.O.’s house. She said she couldn’t remember how she got home but she recalled that everything was fine when she left. [ 47 ] F.O. was interviewed a second time by the police.

She admitted that she took M.O.’s truck but she said it was with M.O.’s permission, to go and buy more alcohol. [ 48 ] When F.O. made both statements to the police she was not cautioned and was not provided an opportunity to speak to counsel. [ 49 ] At the end of the second interview police seized the clothing F.O. was wearing the night M.O. was killed. They also took DNA from a cup used by F.O. Tests indicated that spots found on her clothing were blood. [ 50 ] The police searched F.O.’s house and in her bedroom they found M.O.’s cell phone.

They also found a Governor General’s medal in a case that appeared to have blood on it which belonged to M.O.’s daughter. [ 51 ] The police obtained production orders and it was determined that on April 8 th at approximately 34 minutes after midnight, F.O. used M.O.’s cell phone to call Royal Bank of Canada’s telephone banking. She made three attempts to enter M.O.’s bank card number without success. F.O. has no recollection of making those calls.

[ 52 ] An autopsy was conducted on April 13, 2017 but the RCMP did not receive the pathologist’s report until July 24, 2018. The pathologist noted that: (

a) There was blunt head trauma including bruising involving eyes, left forehead and left cheek. (

b) There were a minimum of five separate impact sites on the head; (

c) The left side of the face was swollen from the bruising; (

d) There were bruises over both eyes; (

e) There was a bruise on the right temple; (

f) There was a deep bruising in the front, sides and back of the scalp; (

g) The nasal bone was fractured; (

h) The inside of the upper lip was torn and there were smaller tears on the inside of the lower lip; (

i) There were no skull fractures; (

j) There were no injuries to the brain; (

k) There were faint skin scrapes on the forehead and nose, and (

l) When M.O. died, her blood alcohol level was 380 milligrams of alcohol per 100 millilitres of blood, this is almost five times the legal limit. Components of cannabis were also detected. [ 53 ] The pathologist’s opinion was that M.O. died by “blunt force trauma to the head and positional asphyxia, with acute alcohol intoxication a contributing factor”. Specifically she formed the opinion that: “Although there were no skull fractures or obvious blunt injuries in the brain, there were enough blunt head injuries to have rendered M.O. unconscious.

She ended up in a prone position where her nose and mouth were flattened and M.O. could not breathe. This situation was worsened by her nasal fracture, which caused even more flattening of the nasal passages. Acute alcohol intoxication also contributed to her inability to move her face so she could breathe.” [ 54 ] On January 15, 2019 F.O. was arrested. This was approximately 15 months after the offence had taken place. She was cautioned and spoke to duty counsel. She was an adult as of March, 2018. F.O. confessed to the beating death of M.O. [ 55 ] Throughout the interviews F.O. was visibly emotional and upset.

F.O. said that when she was first interviewed by the RCMP in April of 2017, she was scared that the RCMP might hurt her and she was scared that her daughter was going to be used against her. VI. THE PERSONAL CIRCUMSTANCES OF THE ACCUSED [ 56 ] As I said earlier, I must not lose sight of the fact that F.O. had just turned 17 at the time of the offence. She did not and does not have a criminal record.

There is no evidence before me that F.O. was ever in trouble with the law prior to the tragedy. [ 57 ] I have very carefully reviewed two presentence reports and the forensic psychiatric report. [ 58 ] F.O. was 20 years old when the reports were authored.

[ 59 ] F.O. is a single mom. At the time of the first presentence report her daughter, hereinafter referred to as C.O., was five years old. C.O.’s father has never recognized or supported her. F.O. reports that her daughter was the result of a very short relationship. She was only 15 years old when she gave birth to C.O. [ 60 ] F.O. lives in the community in which she was born with her daughter and her adoptive mother and father.

Although they are to be hereafter referred to as her parents, they are actually F.O.’s grandparents who adopted her at birth. [ 61 ] This is F.O.’s home community and she has always lived here. Her parents would often take her camping and out on the land as a child. They had a cabin and F.O. was taught to pluck a goose and how to keep the land clean. [ 62 ] F.O. would attend youth camps when they were available which were organized by the hamlet. Young people were taken out on the land and they would camp for several weeks. There were elders present at the camp who would assist the youth.

She said that she enjoyed these experiences very much. [ 63 ] The last time F.O. attended camp was in 2014 (three years prior to the incident). [ 64 ] She feels like she belongs in her community because she was born and raised here. [ 65 ] She does not attend community functions as she would rather spend time at home with her daughter. [ 66 ] Some time after the offence and before her arrest, F.O. was employed with the Northern Store as a cashier. [ 67 ] It is noted in the presentence reports that when asked about the incident, F.O. told the probation officer that she feels very remorseful.

She said that her five-year-old daughter helps her keep things together since the incident happened. [ 68 ] F.O.’s biological mother provides support and help with her daughter. F.O.’s biological father has no involvement in her life or in her daughter’s life. [ 69 ] F.O. experienced bullying in school. F.O. has not drank alcohol since she was arrested.

Prior to her arrest, which happened 15 months after the event, she was still consuming alcohol. [ 70 ] F.O. indicates that she does not do any kind of drugs. [ 71 ] The accused was taken away by social services when she was young because of ongoing violence and drinking between her adoptive parents. She was returned at the age of 10. [ 72 ] The parents have two older children who F.O. has never met and who also were removed by social services. [ 73 ] F.O. describes her childhood as fun and careless.

She was never abused in any way although she admits that she witnessed some violence and drinking in the family home. She went on to say that she often saw her mother get beaten up by her father.

F.O. told the probation officer that she would witness her mother getting beaten up every five or six days. [ 74 ] F.O. told the author of the presentence report that her parents stopped drinking ten years ago and yet the mother who was interviewed for the report indicated that they only stopped drinking about two years ago when they found out about the offence. [ 75 ] In October of 2020 and in January of 2021 it is reported that F.O. had completed grade nine, was attending high school and working on grade ten.

I have no information about whether she is still going to school. [ 76 ] In January of 2021, a second presentence report was completed. Added to the October report were the results of an interview with F.O.’s mother. I.O. talked about her background and confirmed that her husband, F.O.’s father, had been violent with her.

She indicated that he has been to jail in Yellowknife in the past for assaulting her. [ 77 ] F.O.’s mother went on to say in the report that, in her words: “It’s never happy with her husband G.O.” The mother admitted that she still gets stressed out with her husband, she still gets scared of him and she still goes to the women’s shelter.

[ 78 ] F.O. reports that since March of 2019, her and her parents started seeing the mental health worker in the community regularly. [ 79 ] The reports indicate that F.O. is willing to engage in the rehabilitation process and willing to comply with any conditions imposed in court. [ 80 ] The reports set out the community services available in F.O.’s community.. There is one Community Corrections Officer, two Community Social Services Workers, two Income Assistance Workers, one Career Development Officer and one Mental Health Nurse. There are also two mental health outreach workers.

There is also a small Nunavut Arctic College campus where adults go to complete their Adult Basic Education Program. At the time of the latest report the position of Addictions Worker was vacant. [ 81 ] I went on to review the Forensic Psychiatric Report which began by setting out the circumstances of the offence. Dr.

Ahmed spent six hours with F.O. using the community’s Telemedicine remote connection. [ 82 ] The report confirmed that F.O. has never been in trouble with the law before and that she did not have any institutional charges when she was incarcerated briefly at the Young Offender’s facility in Iqaluit. [ 83 ] F.O. told the doctor that she began using alcohol and cannabis at the age of 14. Although she claimed it never became a problem, she drank significantly every two weeks when she got paid.

Her use of cannabis steadily rose from one gram every two days to daily use. [ 84 ] Until November 19, 2019 the accused had never had any psychiatric history. At that time she presented to the health centre with depression and mood swings. Although following the assessment, medication was recommended, she did not take the medication. The attendance was due to her anxiety with respect to her current situation and the likely outcome of her case in court. [ 85 ] F.O.’s insight and judgment revealed grave concern about her future and the future of her child were she to be incarcerated. [ 86 ] At the time of Dr.

Ahmed’s report she had not received any counselling and had not seen elders in her community. According to F.O.’s mother, the entire family would benefit from counselling because of the impact of the charge on the family. [ 87 ] The doctor set out a number of historical risk factors which he found relevant. It was Dr. Ahmed’s opinion that her risk of reoffending was low to moderate. [ 88 ] He also advised that F.O. presented with several positive protection factors to manage her risk in the community. She is of average intelligence with an ability to empathize and to self-control. [ 89 ] Dr.

Ahmed set out a number of motivational factors which include her work, her attitude towards authority, her motivation for treatment and her supportive social network. [ 90 ] The overall recommendation is that F.O. would benefit from community-based treatment, rather than incarceration. It was the doctor’s opinion that F.O. may benefit from participating in individual counselling sessions focusing on community reintegration in coming to terms with the guilt of the offence and to increase her interpersonal skills.

This intervention should focus on relapse prevention which in the doctor’s opinion, could be achieved by a local community mental health service. VII. ANALYSIS AND DECISION [ 91 ] As in every sentencing decision, it is important to set out the mitigating factors (the good things) and the aggravating factors with respect to both the offence and the offender. A. The Mitigating Factors in this Case Include: [ 92 ] The accused’s guilty plea and admission of responsibility.

[ 93 ] The fact that this case involves a youthful offender.

F.O. is still very young, only 21 years old today and only 17 years old at the time of the offence. [ 94 ] F.O. does not have a criminal record of any kind. [ 95 ] She is remorseful as evidenced by her guilty plea, her confession, her comments contained in the pre-sentence report and her apology in court to M.O.’s family and friends. [ 96 ] The Crown advises that it is an important factor that F.O.’s guilty conscience eventually overbore her desire to avoid responsibility for killing M.O. [ 97 ] F.O. has been on release conditions since March of 2019 and has abided by all of the conditions since then. [ 98 ] F.O.’s chance of rehabilitation is high and her risk of violent offending is low to moderate.

B. The Aggravating Factors in this Case are: [ 99 ] The facts which have been admitted are extremely serious. M.O.’s life was taken. Although no weapons other than F.O.’s fists were used, it is clear that many blows were delivered to a defenceless and vulnerable victim in what can only be described as a senseless rage. [ 100 ] The post offence behaviour is also, in the court’s view, aggravating. Not only did F.O., by her own admission, beat M.O. but she then went on to steal items from her home.

She stole M.O.’s vehicle, ditched it on the road and did not communicate with the by law officer who came to investigate. [ 101 ] It is clear from the facts that M.O. was not able to defend herself. Due to her consumption of alcohol which occurred, at least partly, in the presence of the accused, she was very drunk. This fact should have been recognized by the accused when M.O. did not in any way fight back.

It was also evident when the accused asked M.O. for her truck keys and she could not understand what M.O. was saying. [ 102 ] It is aggravating that the accused did not in any way attempt to help the victim. [ 103 ] This is a death that may have been prevented if help had been given. The accused presented as callous and uncaring to the extreme. [ 104 ] It is also aggravating that F.O. tried to get money from M.O.’s bank account. She tried to defraud the victim. Thankfully her attempts were unsuccessful. VIII. THE SENTENCE [ 105 ] M.O. was very loved by her family and friends. They miss her terribly.

She was a good person who did not deserve to die in the manner she did. The sentence of this court can not bring her back. Her family and friends are serving a life sentence without her.

We can in no way put a value on M.O.’s life. [ 106 ] Although it is hard to understand for those suffering greatly from M.O.’s absence, the court must follow the law which I set out earlier in my decision and nothing I can do today can even come close to compensating M.O.’s loved ones for their tremendous loss. [ 107 ] The best I can do is give everyone, including the accused and her family, closure so that healing can commence. [ 108 ] In determining an appropriate sentence I have carefully considered the sections of the Act that apply to this case.

[ 109 ] It is clear that the purpose of this court is now to hold F.O. accountable for the offence through just sanctions that have meaningful consequences.

The sentence must be one that will promote F.O.’s rehabilitation and reintegration into society in order to contribute to the long-term protection of the public. [ 110 ] That sentence should be proportionate to the seriousness of the offence and F.O.’s degree of responsibility. [ 111 ] The circumstances of the offence are extremely serious and F.O.’s degree of responsibility is very high. [ 112 ] Accordingly, I am obligated under the Act to consider the following objectives: to denounce unlawful conduct and to deter the young person from committing offences. [ 113 ] I must, however, still consider all sanctions other than custody that are reasonable in the circumstances with particular attention to the fact that F.O. is a young indigenous offender. [ 114 ] I must also determine that the sentence I impose is the one most likely to rehabilitate the young person and reintegrate her into society, and I must be mindful that the sentence should promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and to the community. [ 115 ] Section 38(3) of the Act sets out a number of factors to be considered.

I will deal with each one separately. [ 116 ] Section 38(3)(

a) talks about the degree of participation by the young person in the commission of the offence. [ 117 ] This is a case where F.O. acted alone. Her degree of participation, together with the victim’s over consumption of alcohol, caused M.O.’s violent death. [ 118 ] Next I look at

section 38(

b) which talks about the harm done to victims and whether it was intentional or reasonably foreseeable. [ 119 ] In this case the harm done was the most serious possible under the law. I find that the beating of M.O. was both intentional and reasonably foreseeable. [ 120 ] This young person’s behaviour can only be described as shocking. We are not dealing with one punch but instead many hits to the victim’s face and head were delivered without compassion. Even after there was blood and no movement by the victim, F.O. continued to assault her.

Serious bodily harm was easily foreseeable in these circumstances. [ 121 ] I pause to note that the offence of manslaughter is very different than the offence of murder.

Taking a life unlawfully without the specific intent to kill confirms that although F.O. knew she was causing bodily harm, the nature of M.O.’s death was difficult to predict and M.O.’s high level of intoxication was a contributing factor. [ 122 ] Next, I go on to consider any reparation made by the young person to the victim or the community. [ 123 ] I do not have any evidence before me that F.O. has done anything to provide reparation, other than staying out of trouble and following the terms of her release.

That being said, she has proven over time that she can follow court orders restricting her behaviour. [ 124 ] Since the incident F.O. says that she quit drinking alcohol and using drugs and she has been concentrating on making a good life for her daughter. [ 125 ] The next factor set out in the Act is: the previous findings of guilt of the young person. F.O. does not have a criminal record. She has not been in trouble with the law before or after the offence.

Since it has taken over four years for this matter to reach its conclusion, she is to be credited for a substantial time in the community without any issues. [ 126 ] Finally, I am to consider any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 127 ] Although the accused did not use a weapon, she did use her fists and the assault was both vicious and senseless. There was no provocation and no response to what can only be described as a sustained assault on the victim’s head and face.

The offence occurred in the victim’s home. F.O. had been drinking with the victim earlier.

[ 128 ] It has taken a very long time to conclude the sentencing in this matter. M.O.’s life was taken more than four years ago. [ 129 ] The police questioned F.O. on two occasions when she was alone and frightened. They did so without cautioning F.O. and without letting her talk to counsel. I do not consider the fact that F.O. lied to the police as an aggravating circumstance but neither is it mitigating in any way. [ 130 ] That being said, the accused was interviewed again on January 15, 2019 when she confessed and was detained in custody for a total of 67 days.

That confession was made almost two years after the incident. [ 131 ] F.O. was then released and returned to her parent’s home on March 22, 2020 on the following conditions: a. She must keep the peace and be of good behaviour, b. She must reside with her parents who are also her sureties. c. She must obey the household rules of her sureties, including attending counselling sessions arranged by her sureties. d.

She must remain within her parent’s residence at all times unless; i. she is in the presence of at least one of her parents, ii. to attend any medical appointments for herself or for her daughter, iii. to meet with her lawyer or to attend court. In such a case, she must leave the residence, go directly to the meeting or court and return directly to the residence after, iv. to attend her place of employment.

In such a case she must leave the residence and go directly her place of employment and return directly to the residence after, v. to take her daughter to and from school twice a day from Monday to Friday during the regular schooling year and, vi. in such cases as permitted by this court. [ 132 ] I have no evidence before me to say that F.O. has not complied. Instead, the evidence is that she has not breached any of the conditions I have just mentioned.

This is to her credit. [ 133 ] It speaks to her chances of further rehabilitation and reintegration. [ 134 ] I have also taken the opportunity to carefully consider all of the cases provided to me by both counsel in this matter. I found them useful in confirming the difficult balancing that must be done in cases such as the one before the court. [ 135 ] That being said, none of the cases are from Nunavut. I suspect that is because there are no cases similar to this one. [ 136 ] In any event, both counsel have agreed that sentencing is always an individualized process.

This long-standing principle is referenced in many cases decided throughout Nunavut. [ 137 ] The cases provided by both counsel can easily be distinguished from this case.

As to be expected, Defence provided cases whereby the sentence did not include further custody and the Crown provided cases that did. [ 138 ] It is very important for me to craft a sentence that takes into account the law that applies, together with the circumstances of the offence and the offender. [ 139 ] In doing so I have considered that the total period of custody thus far of 67 days spent at the youth facility in Iqaluit is not enough. [ 140 ] I have carefully considered all alternatives to custody for F.O. and have found that, given the disturbing and serious nature of the facts, balanced with all of the other factors to be considered, the only fit and appropriate sentence must include further custody. [ 141 ] I find that the facts in this case are exceptional and anything less than further custody would fail to reflect societal values.

[ 142 ] The circumstances of this offence demand a sentence that is proportional to the facts and one that takes into account F.O.’s level of responsibility. [ 143 ] Applying the principle of restraint and taking into account F.O.’s history of compliance with conditions in the community, I find that a fit and appropriate sentence in all of the circumstances of this offence and this youthful offender is one of 12 months custody and supervision. [ 144 ] The first six months will be served in secure custody and the following six months will be supervision in the community.

This is to be followed by 12 months of probation with the following conditions: a. To report to the probation officer within two days of the expiration of the custody and supervision order. b. To keep the peace and be of good behaviour c. To have no contact directly or indirectly with M.O.’s immediate family. d. To have regular meetings with the mental health worker in Kugluktuk as directed. e. To attend counselling as directed including one on one counselling with an elder, if available. f. To not possess or consume any alcohol or drugs which have not been prescribed by a doctor. g.

To reside with your parents at House number 313 or at a house approved by your probation officer. h. To make reasonable efforts to seek and maintain employment or attend school. ANCILLIARY ORDERS: [ 145 ] Manslaughter is a primary designated offence under s. 487.051 and under that

section the court shall make an order authorizing the taking of DNA. Accordingly, F.O. shall provide a sample of her DNA within 30 days of today for the purpose of including it on the database. [ 146 ] Further I am required by law to impose an order pursuant to

section 51 of the Act prohibiting F.O. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device or explosive substance for a period of two years. Dated at the City of Iqaluit this 10th day of November, 2021 ___________________ Justice B. Tulloch Nunavut Court of Justice