R. v. Kingatook, 2020 NUCJ 11

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kingatook, 2020 NUCJ 11 Date: 20200309 Docket: 25-18-28 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Abel Kingatook ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): G. Magee, L. Lane Counsel (Accused): S. Cowan, W. McDiarmid Location Heard: Iqaluit, Nunavut Date Heard: February 14, 2020 Matters: Sentencing for offence under Criminal Code of Canada, RSC 1985, c C-46, s. 229 REASONS FOR SENTENCE (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Abel Kingatook has been found guilty by a jury of second-degree murder in the death of Erin Qayutinnuaq. He is before the court to be sentenced. II. FACTS [ 2 ] Abel and Erin had been together approximately 16 years. They were the parents of two young children. Erin also had an older daughter from a prior relationship who was adopted to Erin’s mother. [ 3 ] On June 6, 2018, Erin returned home from a trip to Yellowknife. She had escorted her daughter there for medical reasons.

Erin brought with her from Yellowknife five bottles of hard liquor; two micky bottles, two 60 oz bottles, and one 26 oz bottle. Erin and her young daughter went directly from the airport to the home of Erin’s mother. Abel was also there to greet them. Erin and her mother started drinking. It is not clear if Abel was drinking at that time. [ 4 ] At about 6:00 pm Erin, Abel, and their young daughter returned to their own home. When they left to go home, Erin’s mother did not notice any injuries on Erin.

When Abel and Erin left, they took most of the liquor with them. [ 5 ] A short time later Abel arrived at the home of his mother. His mother could tell he had been drinking. She described him as “high but not too high”. Abel said he had something to tell her. Abel told his mother that Erin “was gone”, that he had strangled her. He said he did it because Erin was being mean and rude about his mother and him. He said that he tried to revive Erin for more than 2 hours but was unable to.

He said that he gave Erin hickies on her neck in an attempt to cover up his fingerprints. [ 6 ] Abel’s mother told him to go and get his young daughter, who was still at home. Abel followed his mother’s direction and brought his daughter to her house. [ 7 ] The following two days were filled with emotion, upset, turmoil, and sleeplessness. Abel’s mother, father, and older sister were all in the home and distraught with the knowledge of what had happened. His mother told him numerous times that he had to go to the police but Abel said he was too scared.

Meanwhile, Erin’s body lay unattended to in the living room of her home. [ 8 ] Eventually Abel’s mother left the home and went to her sister’s house. From there she called the local Mental Health nurse and expressed concern about Erin’s well-being. As a result of the call the Mental Health nurse contacted the RCMP. The RCMP went to do a wellness check on Erin and found her in the living room of the home, deceased. [ 9 ] Erin’s body was found laying on a mattress in the living room. An empty bottle of Smirnoff vodka lay next to her and a bottle cap was in her hand.

These had been placed there by Abel, after she died. Abel told his mother that he had placed Erin’s finger and hand prints on the bottle. [ 10 ] The cause of death was lack of oxygen to the brain caused by strangulation. [ 11 ] All parts of Erin’s body were bruised or scratched. All of these injuries were recent in relation to the time of her death. I find that

the majority of these injuries occurred in a struggle with Abel prior to her death. [ 12 ] The injuries to her neck were consistent with manual strangulation. Her cheek had curvilinear or arced abrasions consistent with pressure from finger nails. Her neck was bruised on the surface and deep in the muscles. The bruising was consistent with having been caused by fingers. There was a fracture to a structure in the neck. [ 13 ] In instances where someone’s blood flow to the brain is cut off completely, unconsciousness would occur within 8-15 seconds.

With continued pressure, death would occur 30-45 seconds after unconsciousness. Erin’s blood flow was not completely cut off. Her injuries suggest that she struggled and fought back. It took longer for her to die. III. VICTIM IMPACT STATEMENTS [ 14 ] I have received two victim impact statements, completed by Erin’s sisters. They speak to the loss for Erin’s children, who her family now cares for. Erin’s oldest daughter quit school after her mother’s death. The boy does not want to see his father. The children have forever lost their mother.

It is hard to imagine they will ever have any kind of relationship with Abel. Erin’s family, who are coping and struggling with their own loss, are doing their best to support and help the children. There is no doubt that this family, now more than ever, needs the support, comfort, and love of a large extended family. [ 15 ] There is no sentence that I can impose that will bring Erin back or make up for the loss to the family and the community. IV. THE OFFENDER [ 16 ] Abel is a twin and was adopted at birth by the older sister of his biological mother. He grew up with three siblings, two brothers and a sister.

He lost a brother to suicide. There was alcohol abuse and domestic violence in the home while Abel was growing up. Erin and Abel were together from a young age. Abel was about 15 when they started a relationship. Their firstborn child died at just four months of age. The baby suffocated when sleeping on a couch with his mother. Together they have a son and they adopted a daughter. Erin had an older daughter from a previous relationship. Abel worked at the Co-op pumping gas and for a local construction company.

He provided financial support to his family as best he could. [ 17 ] Since being in custody he has taken advantage of the programming available to him, having completed a number of programs ranging from personal development programs to food safely. V. MANDATORY MINIMUM SENTENCE [ 18 ] The sentence for second degree murder is life in prison. This sentence is mandatory. There is no discretion. [ 19 ] Sometimes people who are convicted of murder are released on parole.

If they are on parole they are on continual supervision for the rest of their lives and their parole can be revoked at any time, putting them back in jail. [ 20 ] Parole is not automatic. To be on parole an offender must apply to the National Parole Board. The Parole Board holds hearings and receives information about the offender.

The Board makes a determination as to whether an offender has made sufficient progress in his rehabilitation and determines if the offender still poses a risk to society. [ 21 ] A person convicted of second degree murder can apply for parole after serving 10 years of his sentence, unless the court orders that he serve a longer period of time before being able to apply for parole. The court can order that the offender serve anywhere from 10 to 25 years of his sentence before being able to apply for parole.

[22] It is important to remember that being able to apply to the Parole Board for parole and actually being granted parole are differentthings. Many offenders apply for parole and are denied. [23] The decision that the court must make today is when Abel will be able to apply for parole. The court is not deciding if he will begranted parole at any time. That will be the decision of the Parole Board. VI.

PARTIES’ POSITIONS [24] The Crown is seeking a period of parole ineligibility of 15 years. [25] The Defence submits that the range for parole ineligibility in the circumstances of this case is 12-15 years and asks the court toimpose a period at the lower end of the range. VII. SENTENCING RANGE [26]

Section 745.4 of the Criminal Code provides that in exercising its discretion regarding the number of years of parole ineligibilitythe court shall consider the character of the offender, nature of the offence and the circumstances surrounding the commission of theoffence, as well as any jury recommendation regarding parole ineligibility. [27] The discretion given to a sentencing judge to fix the range of parole ineligibility between 10-25 years is intended to give thesentencing judge the tools to craft a fit sentence; one that gives effect to the principles of sentencing (R v Shropshire, (SCC), [1995] 4 SCR 227). [28]

Section 718 of the Criminal Code sets out the objectives that sentencing an offender seeks to achieve. Those objectives are to: • denounce unlawful conduct and the harm done to victims; • deter the offender and others; • separate offenders from the community, where necessary; • assist in rehabilitating offenders; • provide reparations for harm done to victims; and • promote a sense of responsibility in offenders. [29] In any given case, the significance of some of these objectives will be greater than others. In murder, the objectives of denunciationand deterrence are of paramount importance. [30]

Section 718.2 of the Criminal Code also sets out some factors which are to be considered aggravating factors for the purposes ofsentencing.

Those factors which are applicable to this case are victimization of the offender’s spouse and the existence of a trustrelationship between the offender and the victim. [31] There are a number of Nunavut cases that speak to the issue of parole ineligibility. [32] R v Kootoo Korgak, 2003 NUCA 4: The case of Korgak involved a spousal homicide where the manner of death was strangulationand the offender immediately went to the RCMP detachment to advise them what had happened and to turn himself in. He was convictedof second-degree murder after a trial.

The sentencing judge received a joint submission of 10 years parole ineligibility but rejected thejoint submission and imposed a parole ineligibility of 12 years. On appeal, the joint submission of 10 years parole ineligibility was

imposed. The court stated that the sentencing judge gave inadequate consideration to the character of the offender and his voluntaryconfession and surrender to police. [33] R v VanEindhoven, 2007 NUCJ 2: The offender was convicted of second-degree murder following a judge alone trial. The casewas one of spousal homicide. There was evidence of prior violence towards the victim. The court found that the homicide occurred inthe context of a vicious beating. Parole ineligibility was set at 12 years.

A successful conviction appeal resulted in a second trial. [34] R v VanEindhoven, 2013 NUCJ 30: The offender was again convicted of second-degree murder following a jury trial. Paroleineligibility was set at 13 years, the distinguishing factor being the jury recommendation on parole ineligibility, which was unanimously25 years. [35] R v Jeffrey, 2007 NUCJ 12: The accused pleaded guilty to second-degree murder following the court’s ruling on the admissibilityof certain evidence. The homicide was a particularly brutal murder of a young girl. The offender was not arrested until several monthsafter the death.

In the intervening period between the homicide and his arrest he attempted to shift blame to the mother of the deceased,causing the police to investigate her for a time. The offender had a criminal record. His parole ineligibility was set at 14 years. [36] R v Kringuk, 2012 NUCJ 20: In Kringuk the offender pleaded guilty to second degree murder of her spouse. The death was by agunshot wound in the context of a dispute.

As a matter of principle, the court stated absent special circumstances, in instances of spousalhomicide denunciation and deterrence require periods of parole ineligibility higher than the minimum of 10 years be imposed. The courtacceded to a joint submission on sentence of 10 years without eligibility for parole, citing the unique circumstances of the offenderbecause of her own victimization. [37] R v Kayaitok, 2014 NUCJ 11: In Kayaitok the offender was convicted after trial of second-degree murder of his spouse. He hadprior convictions for assault against the same victim.

The Crown emphasized the goals of denunciation and deterrence, and the Defencesubmitted 12 years of parole ineligibility would be sufficient to meet those goals. The killing was described as vicious. A period ofparole ineligibility of 15 years was imposed. [38] R v Nakashook, unreported (NUCJ): In the unreported decision of Nakashook the offender pleaded guilty to second-degree murderin the beating, stabbing, and strangulation death of his spouse. The guilty plea came part way through his trial. The offender had priorconvictions for assault against the same victim.

A joint position of 13 years parole ineligibility was accepted by the court. [39] R v Akittirq, 2018 NUCJ 4: The offender pleaded guilty to second-degree murder after killing his 17-year-old cousin. The victimsuffered blunt force trauma and had multiple injuries but it was a gunshot that killed her. The offender had a criminal record that includedconvictions for violence against women. The Crown sought a period of parole ineligibility of 17 years while the Defence submitted thata period of parole ineligibility of 13 years would be fit.

A period of 14 years parole ineligibility was imposed. [40] The cases show a range of parole ineligibility for spousal homicide ranging from the minimum of 10 years to 15 years. Theprinciple that can be taken from the cases is that spousal homicides generally attract a period of parole ineligibility higher than theminimum. This is because of the egregious breach of trust in the commission of the offence. It is also a response to the social context inwhich such an offence occurs, that social context being one of high rates of domestic violence and high rates of spousal homicide. [41] In addition,

section 718.2(

e) of the Criminal Code mandatorily requires sentencing judges to consider all available sanctions otherthan imprisonment and to pay particular attention to the circumstances of Indigenous offenders (R v Gladue, (SCC),[1999] 1 SCR 688 at para 96). There are no available sanctions other than imprisonment for Abel.

In addition, the more violent andserious the offence the more likely it is as a practical reality that the terms of imprisonment for Indigenous and non-Indigenousindividuals will be close to each other or the same, even taking into account their different concepts of sentencing (Gladue at para 79).This does not mean that I should ignore Abel’s unique situation as an Indigenous offender. However, I am obliged to exercise mydiscretion as to the appropriate sentence, having regard to all relevant considerations.

Given the severity of Abel’s offence, theparamount consideration here is the protection of society (R v Ipeelee, 2012 SCC 13 at paras 129-130). V. ANALYSIS

[ 42 ] As previously mentioned, in determining a fit period of parole ineligibility I am required to consider a number of factors. A. Character of the offender [ 43 ] Abel has a prior criminal record. That criminal record includes six prior convictions for violence against Erin, although it must be noted that one of the convictions relates to two separate and distinct assaults on two different days. It is significant that of these seven assaults against Erin that came before the court, the last four involved choking.

In May of 2017, just a year before he strangled Erin to death, Abel was convicted of choking her for about five minutes in the presence of their young son. I have reviewed the transcripts from the last four sentencing proceedings and I think it is fair to say that the level of violence escalated with each offence. A

summary of the details of the prior assaults against Erin are attached as Appendix “A”. [ 44 ] This history of domestic violence, escalating over time, demonstrates a lack of insight into unresolved issues and either an unwillingness or inability to address them. I can do no better than to repeat what the court said in R v VanEindhoven (2007) at para 3: Violence damages the core social values that are the underpinnings of any domestic union. Violence destroys the trust that is integral to a nurturing relationship. Violence demonstrates profound disrespect for the other partner’s physical and emotional integrity.

It is a denial of everything that a relationship is intended to provide. It is a betrayal of love itself. The emotional harm caused by such a breach of trust runs deep. The consequences to all its victims are as serious as they are long-lasting. [ 45 ] It is further aggravating that at the time of Erin’s death, Abel was on court conditions to have no contact with her and to not drink. The reason he was on these conditions was because in early April he was charged with assaulting Erin and was awaiting his first court appearance. The conditions on his release were there to protect Erin. B.

Nature of the offence and circumstance of its commission: [ 46 ] Defence counsel has submitted that it has not been established that the bruising and other injuries on Erin’s body were the result of being assaulted by Abel near the time of her death. I reject this submission. The evidence at trial was that Erin had no visible injuries when she left her mother’s home that evening. Within hours she was dead. The medical evidence was that the injuries were recent to the time of her death.

In my view the only logical inference is that the bruising and abrasions on Erin’s body were the result of being assaulted and ultimately killed by Abel. The death occurred in the context of an ongoing assault. It is further aggravating that their young daughter was in the house when her mother was killed. [ 47 ] There was evidence that Abel made clumsy attempts to cover up Erin’s death by giving her “hickies” to cover his fingerprints. His placement of the empty liquor bottle and his putting her fingerprints on the bottle suggest some kind of ill-conceived attempt to connect her death to her drinking.

While concerning, I accept that panic and fear can provoke dishonourable responses and I do not consider them aggravating circumstances for the purposes of sentencing. C. Jury recommendation [ 48 ] The jury who found Abel guilty was given the opportunity to provide recommendations on parole ineligibility.

While this is a factor that the court must take in to consideration, I must be cautious in the use I make of it as the jury has not heard the submissions of counsel on sentence nor are they necessarily knowledgeable in the sentencing principles that must be applied. [ 49 ] Three members of the jury made no recommendation on parole ineligibility. One jury member recommended parole ineligibility for 20 years. Eight members of the jury recommended parole ineligibility for 25 years. [ 50 ] These recommendations are a clear denunciation by community members of the offence and the circumstances surrounding its

commission. [ 51 ] Abel will serve his jail sentence in a southern institution. The court in VanEindhoven urged restraint in use of the court’s discretion to delay parole ineligibility, in recognition of the importance of accessing treatment and rehabilitative programs not available in Nunavut. Parole for most southern offenders means some type of release into the community from which they came.

For offenders from small northern communities parole does not mean a reintegration back in to their communities and culture, but instead placement in a southern community far from culture and family. [ 52 ] Abel has expressed remorse for what he has done. For the rest of his life he will live with the fact that he is responsible to the death of another human being; that he is the reason his children grew up without parents. This will never leave him. VI.

CONCLUSION [ 53 ] It is clear from the case law and from the positions the counsel took during the sentencing proceedings that a period of parole ineligibility higher than the 10-year minimum is required to reflect society’s denunciation and to address the specific aggravating factors of this case. [ 54 ] The sentence imposed is life in prison with no parole eligibility until 13 years of the sentence have been served. [ 55 ] There will be a DNA order. [ 56 ] There will be a s. 109 firearms prohibition for a period of 20 years. Dated at the City of Iqaluit this 9th day of March, 2020 ___________________ Justice S.

Cooper Nunavut Court of Justice APPENDIX A December 11, 2011 – Abel assaulted Erin. He pled guilty to the charge and on February 15, 2012, the passing of his sentence was suspended and he was placed on probation for nine months. (No transcript available) May 13, 2012 – Abel assaulted Erin. On September 19, 2012, he pled guilty, the passing of sentence was suspended, and he was placed on probation for a period of six months. (No transcript available) October 31, 2012 – Less than two months after being placed on probation for the above offence, Abel and Erin were in an argument

over drugs and alcohol. She didn’t want him to deal drugs from their home. Abel shoved her and hit her on her arms and legs and punched her twice on the face. Erin had some bruising on her left shoulder and right forearm. When the police attended and knocked on the door, they could hear Abel telling Erin not to answer. After his arrest, he was released on an undertaking. (Transcript – Sentencing Materials of the Crown, at tab 2.) December 18-20, 2012 – On December 18, Abel and Erin were drinking together. They began fighting. Abel held her down, straddled her, and choked her with his hands.

He punched and kicked her repeatedly. The next day, she counted 43 bruises on her body. She did not go to police right away. Two days later they were drinking again, and again they began to fight. She tried to leave the house and he grabbed her and put her on the floor, straddled her, and choked her with his hands. She couldn’t breathe. She gasped for air. She tried to kick him to get him off. Abel stopped and he made her go to bed. Police were called by Erin’s mother Helen. Police noted that Erin had bruising on her cheeks and dried blood around her mouth.

Police photographed the bruises, which were all over her body. (Transcript – Sentencing Materials of the Crown, at tab 2.) For the offences on the above two dates Abel was sentenced on January 17, 2013 to 90 days’ jail plus 18 months’ probation. The December 18 and 20 choking assaults were rolled up into one conviction. July 10, 2016 , Abel and Erin were drinking alcohol together. Abel accused Erin of infidelity and took her to the ground. He grabbed her by the throat, causing bruising to her neck.

He punched her on her face several times, causing injuries to her mouth, nose, and forehead, and swelling on her face. On October 26, Abel pled guilty and was sentenced to 100 days in jail and one year of probation. (Transcript – Sentencing Materials of the Crown, at tab 3.) December 5, 2016 – Abel and Erin were at home together. Abel had been drinking. He pushed her off the bed. When she got back on the bed, he began to choke her. She was unable to talk and struggled to breathe. Their eight year old son was present, crying. After about five minutes, he stopped and let her go.

She told him she was going for a cigarette and she fled and called police. On May 3, 2017, Abel pled guilty and was sentenced to five months’ jail. (Transcript – Sentencing Materials of the Crown, at tab 4.)