R v Kogvik, 2021 NUCA 19

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Kogvik, 2021 NUCA 19 Date: 20211025 Docket: 25-21-003-CAP Registry: Iqaluit Between: Her Majesty the Queen Appellant - and - Raymond Kogvik Respondent _______________________________________________________ The Court: The Honourable Justice Karan Shaner The Honourable Justice Frederica Schutz The Honourable Justice Kevin Feehan _______________________________________________________ Memorandum of Judgment

Appeal from the decision by The Honourable Justice S. Charlesworth Dated the 15th day of January, 2021 (Docket: 25-19-49) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Introduction [ 1 ] Early in the morning of June 29, 2019, while hiking alone near a small hamlet in Nunavut, the complainant was attacked by the respondent and beaten with her own hiking pole, causing her serious physical injuries and ongoing psychological trauma. [ 2 ] The respondent pleaded guilty to aggravated assault.

The Crown appeals the three-year suspended sentence imposed for the offence on January 15, 2021, submitting that the sentence is demonstrably unfit. The Crown also argues that the sentencing judge erred in principle by underemphasizing denunciation and deterrence for this serious offence, and overemphasizing rehabilitation and restraint. [ 3 ] The respondent maintains the sentence is fit in the context of his family and background circumstances and his rehabilitation, and the reasons appropriately weighed the various principles of sentencing. [ 4 ] For the reasons that follow, the appeal is allowed. II.

Background Circumstances of the offence [ 5 ] On June 29, 2019, the respondent was drinking alcohol with his spouse and aunt, when he became upset and left for a walk; while he could not remember what upset him, the respondent was substantially intoxicated at the time. On his walk, he came upon the complainant, a mental health consultant in the Hamlet, who was hiking outside of town. The respondent had seen the complainant on several occasions as a client and approached, asking to join her.

The complainant insisted that she did not want the respondent’s company but he followed her anyway. [ 6 ] Without provocation, the respondent then attacked the complainant, lunging at her throat with his hands before taking one of her metal hiking poles and striking her numerous times on the head and left arm, breaking the pole into three pieces. While the complainant yelled at him to stop, he kept repeating that he was “in trouble now”; when the complainant asked why, he stated that he was in trouble with his girlfriend.

The complainant offered to help with the trouble he was having, and take him to the health centre. As the two headed back towards the town together, the complainant was able to outrun the respondent and escape. [ 7 ] As a result of the attack, the complainant suffered a broken arm, multiple other fractures, and visible head injuries. The complainant was terrified, believed she was going to die, and continues to experience ongoing symptoms of post-traumatic stress disorder. Circumstances of the offender [ 8 ] The Pre-Sentence Report (PSR) outlined the personal circumstances of the 26-year-old respondent.

He was born in Yellowknife, Northwest Territories, but grew up in Nunavut. The respondent was raised in the traditional ways of his culture by both parents, and describes having a good childhood; there were no child protection issues involving either him or his two siblings, and there were no violence or substance abuse issues in his family.

The family was impacted by poverty and lack of sufficient food, and the respondent lost family members during his childhood including an aunt to cancer and two cousins to suicide. [ 9 ] The respondent attended school, completing grade 11, got on well with students and staff, and experienced no challenges preventing him from learning. He can read and write in English but does not speak Inuktitut or Inuinnaqtun. [ 10 ] The respondent is currently in a common-law relationship with his spouse of eight years; they live in a three-bedroom unit

with their three pre-school age children and his spouse’s parents; they are on the waiting list for public housing. The respondent takes primary responsibility for the physical care of the children, as his spouse has hereditary sensory neuropathy which has led to significant mobility issues.

The respondent’s mother-in-law also provided a letter of support explaining that she and her husband have serious medical issues and rely on the respondent for assistance. [ 11 ] The respondent’s grandmother-in-law, a lay Anglican minister and vice-principal of a local school, attended the sentencing hearing and submitted through defence counsel that she has observed the respondent to be a very involved father, both at home and when they are out in the community.

She also promised to support the respondent’s rehabilitation in any way she can. [ 12 ] The respondent advises that he spends most of his free time with his children; he also attends community events and goes caribou hunting and fishing. In the past, he has provided food for the community. His criminal record includes previous convictions for assault, all of which were alcohol-related: in 2015, he was sentenced to 30 days and 12 months’ probation; in 2017 he was given a 60-day conditional sentence order and six months’ probation; and in 2019 he was given a suspended sentence and one year’s probation.

When the respondent is intoxicated, he has been described as angry by his former Community Corrections Officer; his spouse also confirms he can become violent. [ 13 ] Between the offence and the sentencing hearing, the respondent abstained from alcohol and, according to a letter provided by his mental health nurse, had ongoing counselling and mental health appointments.

At the time of sentencing, he had good physical and mental health and had complied with his strict bail conditions for 18 months, including being prohibited from drinking, a curfew, and restrictions on attending the health centre where the complainant worked. At the time of the PSR, he had been working for the Hamlet for 10 months as a water and sewage truck helper, his longest period of uninterrupted employment. He aspires to become a carpenter or a heavy equipment truck operator. [ 14 ] The respondent entered a guilty plea, expressed remorse about his actions and wrote a letter of apology to the complainant.

Proceedings Below [ 15 ] At sentencing, the Crown sought a jail sentence of 18 months followed by one year of probation. In support, it argued that the principles of denunciation and deterrence should play the primary role in sentencing, and custody was required. The Crown emphasized that the offence involved a significant degree of violence, and the respondent’s criminal record and the serious effects of the crime on the complainant were aggravating factors.

It acknowledged that the respondent’s guilty plea was mitigating, and the respondent’s Gladue factors should be considered, as well as his steps towards rehabilitation. [ 16 ] The defence sought a three-year suspended sentence, while acknowledging that the appropriate sentencing range in this case was anywhere from a suspended sentence to the 18 months incarceration proposed by the Crown.

The defence submitted that in the circumstances, the principle of rehabilitation should be given paramountcy and a suspended sentence could achieve all the objectives of sentencing except for separation from society, which was not required. In support, the defence emphasized the respondent’s early guilty plea, his remorse, his employment with the Hamlet, and his significant and ongoing rehabilitation including his abstinence from alcohol for 18 months and seeking mental health help despite the limited resources available in the community.

It was argued that a suspended sentence would avoid disrupting this rehabilitation. [ 17 ] The defence also emphasized that the respondent is the sole financial provider for his family of seven and the primary physical caretaker for his three children. It was submitted that restraint should be exercised to preserve the family unit as being the best way to serve both the individual offender and society in the long term.

The defence also discussed individual and systemic Gladue factors which have directly impacted the respondent, including poverty and issues with substance abuse in the community, the lack of social services to assist with such problems, and a lack of employment opportunities. [ 18 ] In oral reasons, the sentencing judge ultimately preferred the defence’s position, sentencing the respondent to a three-year suspended sentence.

In doing so, she agreed with the Crown that denunciation and deterrence were the primary sentencing principles in this matter, but disagreed that giving effect to these principles required a custodial sentence. She acknowledged that the respondent’s prior criminal record included assaults, but found there were significant mitigating factors in this case.

She concluded that public safety would be best served by allowing the respondent to stay in the community while continuing his rehabilitation, protecting his family, and raising his children, so that they can become a benefit to the community in the future. [ 19 ] Finally, she distinguished this case from R v Amaaq . 2020 NUCA 11 , in which this Court overturned a suspended sentence for aggravated assault, finding that case involved a mother’s second assault on her young child. III.

Grounds of Appeal [ 20 ] The Crown contends the sentencing judge erred by: 1. underemphasizing the sentencing objectives of denunciation and deterrence; 2. overemphasizing the sentencing principles of rehabilitation and restraint; 3. failing to provide sufficient reasons for the sentence;

4. crafting an illegal sentence when she imposed 250 hours of community service work over the three-year term of probation, contrary tos 732.1(3)(

f) of the Criminal Code; and, 5. ultimately imposing a demonstrably unfit sentence. IV. Standard of Review [21] The Supreme Court of Canada recently affirmed the appellate review standard in R v Friesen, 2020 SCC 9 at para 26, 444DLR (4th) 1, citing R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 [Lacasse]: As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit(para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44).

Errors in principle includean error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing orbalancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, thetrial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont.C.A.), at para. 35, cited in Lacasse, at para. 49).

Not every error in principle is material: an appellate court can only intervene if it isapparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44).

If an error in principle had noimpact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence isdemonstrably unfit. [22] R v Safarzadeh-Markhali, 2016 SCC 14 at paras 70-71, [2016] 1 SCR 180 [Safarzadeh-Markhali], underlines thatproportionality (s 718.1), “that a sentence be proportionate to the gravity of the offence and the offender’s degree of responsibility”, isthe fundamental principle of sentencing. “It is grounded in elemental notions of justice and fairness, and is indispensable to the public’sconfidence in the justice system.” [23] Lacasse at paras 3-6, reminds courts that “[t]he credibility of the criminal justice system in the eyes of the public depends onthe fitness of sentences imposed on offenders.

A sentence that is unfit, whether because it is too harsh or too lenient, could cause thepublic to question the credibility of the system in light of its objectives”. It further provides that while “[o]ne of the main objectives ofCanadian criminal law is the rehabilitation of offenders”, “in all cases in which general or specific deterrence and denunciation must beemphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to themaintenance of a just, peaceful and law-abiding society.” V.

Analysis [24] The respondent’s conduct was life-endangering; the harm done to the victim and to society and its values, indisputablyserious. The core issue in this appeal is whether the three-year suspended sentence imposed is proportionate to the gravity of the offenceand degree of responsibility of the respondent, in light of ss 718, 718.1, and 718.2 of the Criminal Code.

More specifically, is thissentence fit considering both the circumstances of the offence and the offender? [25] We conclude the sentencing judge’s reasons are sufficient to provide meaningful appellate review; accordingly, the standaloneground of appeal of insufficient reasons is untenable. Further, the fourth ground, which legally mandates an amendment to the number ofcommunity service hours, is not contentious.

However, the circumstances of this offence called out for a sentence consistent withdenunciation and deterrence, both general and specific; the need for the respondent’s separation from society was also at issue. [26] The circumstances of this offence are extremely grave. Gravity comprises two components: “(1) the harm or likely harm tothe victim; and (2) the harm or likely harm to society and its values. What influences that analysis apart from the degree of injuriousnessinherent in the crime itself?

The answer lies in s 718.2: R v Arcand, 2010 ABCA 363 at para 57”: R v Hamlyn, 2016 ABCA 127 at para9 [Hamlyn]. [27] Here the respondent attacked the vulnerable complainant, who had done nothing but be unlucky enough to be in the wrongplace at the wrong time. The complainant was out hiking alone, when the respondent encountered and followed her even though she toldhim she did not want his company; he eventually lunged at her throat, and began beating her with her own hiking pole, hitting hermultiple times on her head and arm, with such intensity the pole broke into three pieces.

She yelled at him to stop numerous times beforehe finally relented, but not before she suffered a broken arm, multiple other fractures and visible head wounds. As the sentencing judgedescribed the offence: . . . At one point early on, she told him she had to go back to town to meet up with the RCMP, which I can only assume was a way oftrying to alert him that she was concerned . . . Eventually [the respondent] ran up to her. She turned around towards him. He lunged ather and put two hands on her throat. She tried to fend him off.

She had some trekking poles. . . but he got hold of one of them and hestarted – the word used was “smashing” – her again and again with the pole. . . . The respondent acknowledged he struck the complainant “more times than he could count”. [28] The complainant was terrified throughout this ordeal, and continues to suffer from post-traumatic stress disorder; this isunsurprising, given the stark horror of this offence.

The suspended sentence imposed in this case, and the failure to separate therespondent from the small community in which this serious offence occurred, and in which the complainant lives, does not properlyaccount for the gravity of this offence. [29] Moreover, the respondent’s moral blameworthiness was extremely high. He had previously been convicted of assault on more

than one occasion, incidents which also involved alcohol consumption. This offence represented an escalation in seriousness. Whenrebuffed by the complainant, instead of turning away and leaving her alone, the respondent viciously attacked her. By pleading guilty,the respondent admitted that his attack on the complainant wounded, maimed, disfigured or endangered her life: s 268 of the CriminalCode. [30] At the sentencing hearing, the respondent’s antecedents were thoroughly canvassed, including well-recognized systemic andbackground Gladue factors.

Notably, and despite poverty and food insecurity he experienced as a child, the respondent experienced afairly stable, traditional childhood and upbringing; there were no child protection issues in the home, and no violence or substance abuseissues in his family. While the respondent seemed to have undertaken some mental health counselling before the offence, it appears theprimary cause of this offence was that the respondent, impaired by alcohol, became angry, left the family home and ultimately struck outat the complainant.

His words to her during the assault included that he knew he was in trouble, indicating he knew what he was doingwas wrong. [31] In all of these circumstances, the suspended sentence imposed is demonstrably unfit. Determining a proportionate sentencerequired that deterrence and denunciation be given primary consideration, but they were not.

While acknowledging the Crown rightlysubmitted that denunciation and deterrence were the key sentencing objectives, and that “custody in the community” was not available,the sentencing judge found the respondent’s criminal record “was not terribly lengthy”, and noted that since the attack, the respondenthad abstained from alcohol in his small community, without the “perhaps more sophisticated help that he would have been able toreceive [pre-COVID]”.

Considering his personal circumstances, she emphasized rehabilitation and restraint and imposed a probationarysentence. [32] As the case law has consistently found, however, a suspended sentence for aggravated assault is a demonstrably unfitsentence, absent “exceptional extenuating circumstances”: R v Quash, 2019 YKCA 8 at para 45, which reviewed the case law finding astarting point for such cases “is 16 months’ imprisonment, absent exceptional extenuating circumstances”.

Similarly, in Hamlyn at para21, the Court of Appeal of Alberta made clear that “[o]nly in the rarest and most exceptional case will a suspended sentence be ademonstrably fit sentence for aggravated assault”. Like Hamlyn, “this case is neither rare nor exceptional”, nor are there exceptionalextenuating circumstances.

No case law was provided where a suspended sentence had been imposed in circumstances analogous to thecase at bar, and the sentence imposed is otherwise a “substantial and marked departure from sentences customarily imposed for similaroffenders committing similar crimes”: R v M(CA), (SCC), [1996] 1 SCR 500 at para 92, 105 CCC (3d) 327. [33] The probationary sentence imposed in this case may have been the result of the sentencing judge placing undue weight on thecollateral consequences which would flow from incarceration; specifically, that the respondent’s children and partner would lose thefamily’s primary caregiver and income earner, and that his spouse’s parents would also be left without his assistance.

This is evidentfrom her statement of the “importance to communities that children have a safe and secure upbringing. They are the future of thecommunity and judges should think about the restraint principle to the extent possible to not punish the children. And in this particularcase . . . I do think that it’s important to consider that”. [34] It is an unfortunate reality that collateral consequences flow from most criminal convictions, their seriousness increasing instep with the seriousness of the offence and consequent sentence. Those sentenced for serious crimes may lose their employment andhousing.

Professional licences and designations may be revoked. Their standing in the community may be diminished and theirreputation destroyed. Their future opportunities may be limited by a criminal record. As here, those for whom an offender is responsiblemay be forced to adapt to the loss of a caregiver or provider.

These are not irrelevant considerations; however, collateral consequences,no matter how sympathetic, must not eclipse the overarching duty of a sentencing judge to impose a proportionate sentence inconsideration of all of the circumstances. [35] Further, in our view, imposing a proportionate sentence will contribute to a stronger community and a safer, more securefuture for its children.

An appropriately deterrent and denunciatory sentence for a serious violent offence emphasizes “the elementalnotions of justice and fairness”, to which the victim and Inuit community of this small Hamlet are entitled: Safarzadeh-Markhali atparas 70-71. On the other hand, the unduly lenient suspended sentence imposed here, may well cause the victim and this community tolose faith in the criminal justice system.

And, while the respondent’s efforts towards rehabilitation are laudable and to be encouraged, heis not being sentenced for his addictions or for any offence for which alcohol or his deteriorating mental health diminished his moralculpability. As in Hamlyn at para 23, he “is being sentenced for what he did to the victim of his extremely violent attack”, citing R vCPS, 2010 ABCA 313 at para 4, 490 AR 222.

A rehabilitative and community-based sentence is not sufficient punishment to meet thisgoal. [36] While the sentencing judge determined “the issue for me is whether the safety of the community would be best served . . . ifMr Kogvik is able to serve his sentence in the community”, this asked the wrong question. The sentencing judge was aware that aconditional sentence order was not available for this offence of aggravated assault; it is statutorily impermissible.

However, theprobationary sentence imposed was essentially structured as a conditional sentence order, which lacked a punitive component sufficientto give proper or adequate proportional effect to denunciation and deterrence: see generally R v Foster, 2017 ABCA 66 at para 47. [37] The proper question before the sentencing judge was proportionality in all the circumstances, and in considering the defence’sposition on disposition, whether a suspended sentence could meet the need for denunciation and deterrence in this case. In our view, itcould not.

As found in R v Proulx, 2000 SCC 5 at para 23, [2000] 1 SCR 61, probation “is primarily a rehabilitative sentencing tool”. Aprimarily rehabilitative sentence does not adequately address society’s condemnation of gratuitous, unprovoked, and life-endangeringassaultive conduct, where the objectives of denunciation and deterrence must assume primacy: Hamlyn at para 20.

Proportionality is notmerely about whether the community’s safety is best served by imposing on the respondent a probationary sentence; rather,proportionality is also about whether such a sentence is demonstrably fit considering the gravity of the offence and the degree ofresponsibility of the respondent. [38] It was also an error in principle for the sentencing judge to decide that because the respondent had “done so much workalready”, a suspended sentence was appropriate.

Effectively, such an approach entirely ignores proportionality in this case, as well asdenunciation and deterrence, and the need to separate the respondent from society. Even considering the suspended sentence provision of

s 731 of the Criminal Code , “having regard to the age and character of the offender, the nature of the offence and circumstances surrounding its commission”, a suspended sentence is not a fit sentence in all of the circumstances. While post-offence pro-social behaviour has a mitigating effect, an overemphasis of restraint and rehabilitation to the virtual extinction of denunciation and deterrence, is an error.

Put another way, the sentencing judge’s exercise of judicial discretion was unreasonable. [ 39 ] Finally, the sentencing judge rhetorically questioned the utility of incarceration, both in the context of interrupting the respondent’s rehabilitation and in terms of the community being able to see the work the respondent was doing towards rehabilitation.

It is “an error of principle for a trial court to discount the deterrent effect of any particular kind of punishment provided for in the Criminal Code , such as imprisonment, because he or she believes that imprisonment has not proven effective”: R v Tran , 2010 ABCA 317 at para 12 , 263 CCC (3d) 512, citing R v Song , 2009 ONCA 896 at paras 8-13 , 100 OR (3d) 23 . As Hamlyn held, at para 28 , discounting the deterrent effect of imprisonment because of subjective doubts about its efficacy is “a material legal error.” VI.

Conclusion [ 40 ] The suspended sentence imposed in this matter is demonstrably unfit, and the appeal is allowed. This Court must sentence afresh. [ 41 ] While the egregious nature of this offence and the profound impact on the complainant and community readily call for a lengthy custodial sentence to reflect the gravity of the offence committed and the respondent’s degree of responsibility, we must balance these circumstances with factors favourable to the respondent. [ 42 ] The respondent complied with stringent bail conditions for 18 months prior to the date of sentencing.

We note his guilty plea, remorse, post-offence abstention from alcohol use, which was a factor in this offence, and mental health counselling, as well as the support of his family.

We further acknowledge the respondent’s individual, systemic and background Gladue factors which have impacted his life and have had a bearing on bringing him before the courts, including poverty, substance abuse, and lack of educational, housing and employment opportunities. [ 43 ] The respondent has found employment in the paid economy which, in conjunction with his traditional country skills, provide not only security to his family but contribute to the community.

The respondent’s post-offence behaviour is commendable and we encourage his continued efforts towards rehabilitation. [ 44 ] A custodial sentence, however, is a necessary component of a proportionate, fit sentence in all the circumstances. Accordingly, and taking into account the time the respondent has already served on a strict probation order including house arrest since January 15, 2021 (9 months), we impose a sentence of seven months’ incarceration, to be followed by 12 months’ probation.

The community service component of that probation order is amended to 140 hours, and the respondent is to be granted credit for any hours completed to date. [ 45 ] All ancillary orders imposed by the sentencing judge remain in place. The respondent must surrender himself into custody no later than seven days from the date of release of these reasons. Appeal heard on September 21, 2021 Memorandum filed at Iqaluit, Nunavut this 25th day of October, 2021 Authorized to sign for: Shaner J.A. Authorized to sign for: Schutz J.A. Feehan J.A. Appearances:

B. Flight for the Appellant E. Taché-Green for the Respondent