R v AA, 2021 NUCA 13

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v AA, 2021 NUCA 13 Date: 20210920 Docket: 10-21-1-CAS Registry: Iqaluit Between: Her Majesty the Queen Appellant - and - AA Respondent 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. _______________________________________________________ The Honourable Justice Frederica Schutz _______________________________________________________ Reasons for Decision

_______________________________________________________ Reasons for Decision _______________________________________________________ Overview of the appeal [ 1 ] The Crown appeals an 11.5 month global sentence for 11 offences including assault causing bodily harm, assault, resisting arrest, and a number of breaches. A three year probation order was also ordered. [ 2 ] The assaults were committed against the respondent accused’s domestic partner, whom the respondent had previously been convicted of assaulting in six prior offences.

The previous convictions all involved jail sentences ranging from 75 days up to 14 months, save for one 2019 conviction in Ontario which resulted in an 18 month suspended sentence. [ 3 ] On appeal, the Crown argues that the global sentence imposed was demonstrably unfit, particularly given the violence inflicted, and the ongoing pattern of abuse towards the respondent’s partner.

The Crown submits that the sentencing judge erred by overemphasizing rehabilitation, while failing to give primacy to the principles of denunciation and deterrence, and the aggravating factors that the complainant was the respondent’s intimate partner (s 718.2(a)(ii)) and her particular vulnerability as an Aboriginal female (s 718.04).

Lastly, the Crown argues that the reasons given for sentence were insufficient to provide meaningful appellate review. [ 4 ] The standard of review on a sentence appeal is stringent, and requires an error in principle which had a direct impact on the sentence, or that the sentence, considering both the circumstances of the offence and the offender, was demonstrably unfit. “Determining the weight to be given to aggravating or mitigating circumstances falls strictly within the sentencing judge’s discretion.

The decision to weigh such factors in a given way is not in itself an error that opens the door to appellate intervention unless the weight is unreasonable”: R v Lacasse , 2015 SCC 64 at paras 43-44 , 78, [2015] 3 SCR 1089 [ Lacasse ]. [ 5 ] Having read the entire transcript relating to this unique sentencing hearing, and having considered the full facts in this matter, I am unable to conclude that the Crown has met its burden in this case.

Background facts [ 6 ] This sentencing hearing took place in dynamic circumstances when the circuit court in a small Hamlet in Nunavut, and the region were about to shut down due to a Covid-19 outbreak in late November 2020. As a result, the respondent’s trials were required to be adjourned for an undetermined amount of time.

At that point in time, the respondent had been in custody for a total of 232 days on these matters, or 348 days when given credit on a 1:1.5 basis (s 719(3.1)). [ 7 ] All parties and the sentencing judge acknowledged that while she was present in the courtroom, the complainant was a reluctant witness who indicated that she wished to continue her relationship with the respondent, whom she relied on emotionally and financially.

Despite this, the respondent entered guilty pleas to the offences and admitted the following facts related thereto. [ 8 ] On February 22, 2019, the respondent and the complainant were drinking at a relative’s residence; the respondent was bound by a release condition prohibiting his consumption of alcohol.

Becoming concerned about the respondent’s level of intoxication, the complainant hid some alcohol from him; the respondent became angry when he found out and attacked the complainant, who fell to the floor, whereupon the respondent continued to punch and kick her before taking her wallet and leaving the residence.

The complainant sustained two black eyes and had blurry vision. [ 9 ] Five weeks later on April 1, 2019, the respondent was again intoxicated when he ran up to the complainant while she was walking with her aunt, pushed her, pulled her hair, punched and kicked her; the complainant fell to the ground and the assault continued with the respondent kicking the complainant in the head. The complainant felt like she was going to die, screamed for help and begged the respondent to stop; the respondent did stop and walked away, later running when he heard the RCMP were coming.

The complainant suffered a swollen face, lost some hair, and received medical treatment for headaches. [ 10 ] On December 12, 2019, while the respondent was bound by a probation condition to have no contact with the complainant without her prior written consent given to a probation officer, the two were spotted together by an RCMP officer. The respondent ran away when asked to identify himself (resist arrest offence), but was eventually arrested and placed into custody.

Three days later, while still being held at the RCMP detachment and on a new and second order to have no contact with the complainant, the complainant came

into the detachment, took the key from the duty guard and let the respondent out of his cell; they left together. When the police tracked the respondent down, he again tried to run away but was arrested. [ 11 ] On August 2, 2020, the respondent and the complainant were together again drinking alcohol while he respondent was bound by a no contact condition. When the complainant left and later returned, the respondent was angry about her speaking with a male friend.

The respondent punched the complainant and she fell to the ground, where he continued to punch and kick her for several minutes; the complainant believed she was going to die. The complainant was treated for a broken arm and rib, a possible second fractured rib and bruising to her face, back, abdomen, legs and foot. [ 12 ] The Crown sought a 27 month global sentence on all charges, including inter alia , 5 months incarceration on the February 2019 assault, 6 months consecutive on the April 2019 assault causing bodily harm, and 10 months consecutive on the August 2020 assault causing bodily harm.

The Crown emphasized the following aggravating factors: these offences were intimate partner violence, perpetrated against an Inuk woman, and the respondent’s record for similar offences. The need for denunciation and deterrence was highlighted, and as was the need to protect the complainant’s safety. Pictures of the complainant’s injuries and her medical reports were filed with the Court.

The Crown acknowledged the mitigating nature of the guilty pleas in this matter, particularly in light of sparing the complainant from having to testify, and the presence of Gladue factors. [ 13 ] Defence took the position that time served (effectively 348 days in custody) and a lengthy period of probation with 200 hours of community service, was a fit sentence in these matters, citing both the complainant’s reluctance to testify and the uncertainty of the pending lockdown which was putting pressure on the legal system in remote Hamlet communities.

Counsel provided the respondent was 31 years old, and was raised by his grandparents in a traditional setting, living off the land since he was a baby. His attendance at school was sporadic and he was bullied because of his English (which continues to be a struggle; he continued to Grade 10. [ 14 ] The respondent had his first intimate relationship when he was 16, which resulted in the birth of his only son (now 11 years old). Unfortunately, when the child was only one year old, the son’s mother committed suicide while living with the respondent. The child now lives with his maternal grandparents.

Drinking alcohol became a coping mechanism for the respondent, who continues to battle alcoholism. [ 15 ] The respondent and the complainant have been together since he was 20 years old, during which time the respondent has been in and out of custody; at one point, he missed his father’s funeral while incarcerated.

While acknowledging the serious nature of the assaults in this matter and the Crown’s valid concerns for the complainant’s safety, defence counsel noted the complainant’s continued desire to be in a relationship with the respondent, and the need to address that reality through appropriate probation conditions. Counsel also advised of the respondent’s recent efforts while in custody to take Elder’s counselling, and his continued desire to seek such counselling when released back into the community.

When asked by the sentencing judge if he had anything to say, the respondent apologized to the complainant. [ 16 ] Directly after both counsel’s submissions, the sentencing judge sentenced the respondent to a global sentence of time served, plus 3 years of probation. Her brief reasons were as follows: [The respondent] pleaded guilty to a series of charges before me today. I’ve already been through them all one at a time… So there is a substantial difference between the Crown and the defence on this in terms of the sentence that is being suggested.

Both agree that [the respondent] has been in custody for the equivalent of about 11 and a half months, he has served the equivalent of… 348 days, so about 11 and half months. The defence is suggesting that that’s sufficient time in custody at this time, and I should give him a large amount of credit for the guilty pleas and avoiding a trial on all of the matters which would have been, as the Crown agrees, a difficult trial , no matter the end result. It would have been a very difficult trial for [the complainant] because they both are telling me that the relationship is one they want to continue .

The Crown’s position is these are serious and escalating assaults on [the complainant] and that [the respondent] has assaulted her at least six times since 2010. This makes one, two, three more times, and therefore, a substantial period of custody is required. These are not young people. These are mature adults. They each have children: One’s 11 and one’s 12. The main purpose of further jail, it seems to me in this case, would be to try and protect [the complainant] by removing [the respondent] from the community for a longer period of time . He’s been in custody, as I said, 11 and a half months.

I do think it’s appropriate to give him substantial credit: This a guilty plea with the understanding that the Crown is looking for 27 months in custody, to save his partner from having to give evidence against him and having to relive what he did to her. These are pretty steady regular assaults that [the respondent] has been convicted of. He’s been given jail sentences every time as [counsel] points out: from his very first set of offences which is I think somewhat unusual. If jail was the kind of deterrent that it should be, it seems to me that the assaults would have stopped, and that clearly has not happened.

And that’s because I think it’s the individual accused who has to decide that they are going to stop. I have heard from [the respondent], and I’m advised by his lawyer, that as a result of his most recent period of incarceration awaiting this matter, he has taken seriously some counselling that was offered in the institution. [The respondent] wants to try and get a similar kind of counselling here in the community. I’m sure he’s been on the probation before, and I’m sure the probation also had him attend and attorn to counselling.

Because [the complainant] still wants a relationship with [the respondent], the best way to protect her in the long run, is to help [the respondent] rehabilitate. This seems a good time to try that. Given the position of your partner and your situation right now, I’m

prepared to give you a sentence effectively of time served to be followed by three years of probation, which both parties suggested. [Emphasis added] [ 17 ] In addition to the mandatory terms of probation, the respondent was ordered to comply with the following terms: 1. “If you or [the complainant] has consumed alcohol to any degree, you may not be in each others presence” 2. “You must attend counselling as may be directed by your probation officer” 3. “You must immediately leave the presence of [the complainant] when you are requested to do so by her, or a member of the RCMP, and you must have no further contact with this person for a period of twenty-four hours following such a request”; and 4. “Within [the] first 18 months of your probation you must complete your 200 hour community service.

For the first 25 hours of your community service you must work with the probation officer to try to start an Elder’s Counselling program in [your Hamlet], Nunavut.” Analysis [ 18 ] The disposition in this matter was arrived at after a full hearing in which all of the facts and principles of sentencing were discussed. While the ultimate sentence is clearly at the lower end of the range for these offences and this offender, particularly considering his previous offences against the complainant, multiple unique factors were at play in this hearing and the ultimate disposition.

These included the impending shut down of the Court for an indefinite amount of time, which would have resulted in the postponement of any further trial proceedings, the complainant’s reluctance to testify, and her desire to continue her relationship with the respondent, all of which supported an individualized sentence. [ 19 ] As the Supreme Court provided in Lacasse at para 58 : There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded.

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation . It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.

LeBel J. commented [in R v Nasogaluk , 2010 SCC 6 at para 44 , [2010] 1 SCR 206] as follows on this subject: A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [Emphasis added] [ 20 ] First, the reasons provided by the sentencing judge were sufficient when considered in the context of the entire record, the issues raised at the sentencing hearing and the submissions of counsel: see R v REM , 2008 SCC 51 at para 57 , [2008] 3 SCR 3, citing R v Sheppard , 2002 SCC 26 , [2002] 1 SCR 869 and R v Dinardo , 2008 SCC 24 , [2008] 1 SCR 788.

I do not agree with the Crown that the reasons were cursory when reviewed against this backdrop, nor when considering the impending and immediate shutdown of the Court - this sentence pronouncement taking place after 6:00 pm on the last sitting day of the remote circuit for an undetermined amount of time. [ 21 ] It was further acknowledged by the Crown in its submissions, that the sentencing judge “review[ed] the circumstances of the offences, including the increasing escalation of violence against the complainant, the Sentencing Judge accepted that there should be significant credit given for the guilty plea in light of the reluctance of [the complainant] and the position of the Crown on sentence.” These were findings the sentencing judge was entitled to make in the particular circumstances, and appellate deference is owed. [ 22 ] Further, it cannot be said that the sentencing judge failed to consider that the complainant was the respondent’s intimate partner, or that she had suffered multiple assaults by him in the past or in relation to the offences before her for sentencing.

All parties were also keenly aware that the complainant was Indigenous and a member, along with the respondent, of the small remote community in Nunavut. At issue here is whether sufficient emphasis was placed on these aggravating circumstances, or whether the sentencing judge overemphasized rehabilitation. [ 23 ] I am unable to conclude that an error in principle occurred in this regard, nor that the sentence is demonstrably unfit in all of the circumstances. The sentencing judge recognized these were serious repeat offences, committed by the respondent against his partner, and that a jail sentence was required.

It was not an error for her to consider whether the 348 days of pre-trial credit he had already served was sufficient to meet this need, along with the lengthy probation term advocated by both counsel. [ 24 ] It was also not an error for the sentencing judge to recognize that past jail sentences had seemingly done nothing to deter the respondent’s assaults, nor that some form of rehabilitation would be required of the accused if the complainant was committed to maintaining the relationship.

The sentencing judge determined rehabilitation could be founded upon the Elder’s counselling the respondent had already undertaken while in custody, and would be supported by the terms of a lengthy probation order, aimed at both counselling in the community and diffusing situations which, in the past, preceded the respondent’s assaultive behavior towards the complainant.

Again, these were findings available to the sentencing judge on the record. [ 25 ] Further, while not specifically adverted to by the sentencing judge, these considerations were consistent with Gladue principles , and recognized the difficult conditions of those offenders who serve time in northern communities, none more so than during a pandemic. The respondent’s background was one in which he abused alcohol to cope with issues of abandonment and suicide; while

not in any way a justification for his behaviour, alcohol was consistently at issue in these offences. [ 26 ] I acknowledge and give weight to defence counsel’s submissions during the hearing, to the effect that criminal domestic matters are difficult to sentence and become glaringly public for those who continue to reside together in the same remote area, particularly when offenders are without the community programs to meaningfully support interpersonal communication and healing for families.

Probation terms whose paramount aim is to assist with establishing and facilitating such supports and programing, may be difficult to realize in the short term, but must remain a legitimate penological goal in the longer term. [ 27 ] Lastly, the facts presented in the case law offered by the Crown with respect to parity and sentencing range are not precisely comparable to this matter, nor do they persuade me that the sentencing judge was required to sentence this respondent to a harsher disposition in light of all the relevant circumstances.

It is not in dispute that the respondent could have been sentenced to a harsher period of incarceration for these serious offences which must be emphatically condemned. Nevertheless, while low, the individualized global sentence imposed in the unique circumstances of this case was not demonstrably unfit. This disposition however, is not to be viewed as having any precedential value. Conclusion [ 28 ] The appeal is dismissed. Appeal heard on September 7, 2021 Reasons filed at Iqaluit, Nunavut this 20th day of September, 2021 Schutz J.A. Appearances: G. Wool for the Appellant A. Landry for the Respondent