R. v. KAKEGAMIC, 2016 MBPC 4

CITATION: R. v. KAKEGAMIC, 2016 MBPC 4 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Geoffrey Bayly ) for the Crown ) and ) ) ) KAKEGAMIC, John ) Marc Zurbuchen ) for the Accused ) ) ) ) Reasons for Decision delivered: ) January 19, 2016 DEVINE, P.J. Introduction [1] John Kakegamic is subject to a 10 year Long Term Supervision Order (“LTSO”). He plead guilty to breaching one of theconditions of the order by using marijuana. This is the third time he has breached a condition of his order; all three times it has been formarijuana use. [2] On the two previous occasions that Mr.

Kakegamic plead guilty to breaching conditions of his LTSO, he received sentences of12 months and 15 months. The Crown is seeking a sentence of two years, stressing that the primary sentencing goal for breaches ofLTSO’s and for this offender is public safety. The defence is seeking a sentence of 15 months, stressing proportionality and relying on the decision of R. v. Ipeelee, 2012 SCC 13. Ipeelee is generally known and relied on, along with R. v. Gladue, (SCC),[1999] 1 S.C.R. 688, for setting out the legal requirements for sentencing Aboriginal offenders pursuant to

section 718.2(

e) of theCriminal Code. It is also an important decision to consider in this case for its treatment of the principles involved in sentencing offendersfor breaches of conditions of their long term supervision orders. It is also relevant in considering the principle of parity, because of thesimilar circumstances and offences of the two offenders the Ipeelee decision concerned. Mr. Kakegamic has been in custody for thisbreach since August 4, 2015. As of the date of this sentence, he has been in custody for five and one-half months. Facts of the Offence and Mr.

Kakegamic’s Criminal History [3] The facts of the offence are simple. Mr. Kakegamic provided a sample for urinalysis testing on July 28, 2015, which cameback positive for marijuana. In so doing, he breached a condition of his LTSO. [4] He was placed on an LTSO following a conviction for invitation to sexual touching, forcible confinement and sexual assaultwith a weapon on November 28, 2002. He was sentenced to eight years in prison to be followed by a 10 year LTSO. He has had 13criminal convictions dating back to assault and robbery convictions in 1982 when he was 16 years old. He is now 50 years old.

Themost concerning and notable pattern of his offending behaviour is sexually assaulting children. He was convicted of aggravated sexualassault against a 17 month old female baby in 1984 for vaginal rape and was sentenced to a three year penitentiary sentence. He wasconvicted of sexual assault cause bodily harm against a seven-year old boy in 1989 for anal rape and received a 10 year sentence after

appeal. He was convicted of carrying a concealed weapon in 1997 and sentenced to 3 months consecutive to the 10 year sentence. In 2002 he was convicted of the predicate offence for the LTSO. The offence occurred in 1988. He lured a young boy to his apartment and then raped him anally, threatening to use a knife on him and threatening to hurt him or his family if he told anyone. Mr. Kakegamic was sentenced to an 8 year penitentiary term followed by the 10 year LTSO.

He served the entire sentence and was released into a halfway house in the community in Winnipeg on November 26, 2010. [ 5 ] Alcohol was involved in all these offences. He was severely intoxicated at the time of the first sexual assault. Mr. Kakegamic’s Risk to the Community and his Progress in Reintegrating into the Community [ 6 ] Psychiatric reports prepared for the sentencing in 2002 indicate that Mr. Kakegamic has been diagnosed as a psychopath, bisexual pedophile and sexual sadist with paranoid personality disorder.

The reports include self-reported information about historical offending against other children which had never been reported to the police. The 2001 and 2002 psychiatric reports indicate that although he had taken sex offender treatment in the penitentiary he had not made much progress. His prognosis for rehabilitation was poor; one of the two psychiatric reports recommended he be designated a dangerous offender. [ 7 ] A more recent psychological assessment from 2010 notes several elements of progress made by Mr.

Kakegamic however, including identifying the thinking that preceded his offending, being more open and forthcoming about his personal and offending history, being able to identify the triggers for his sexual offending and demonstrating control over his deviant sexual arousal. He admitted that he had a history of hating authority figures and a history of believing that women were only good for sex, but that he had moved beyond that thinking and viewed all people as equal. The report noted that over the 18 months preceding the report Mr.

Kakegamic demonstrated an increasing respect for all staff, men and women, and was more willing to fully take responsibility for his actions and was no longer angry at the child victim from the 1988 sexual assault. He chose to remain incarcerated until warrant expiry, so that he could work as much as possible with corrections to address his risk to reoffend sexually and violently. He participated in an education program in custody and was reported to be a quiet, diligent, hard-working student who got along well with his teacher and the other students.

He worked as a grounds keeper. [ 8 ] He commenced his supervision order in the community on November 26, 2010. The order will expire on January 16, 2022. [ 9 ] More recent assessments and reports completed by personnel from the Regional Pyschiatric Centre in Saskatoon and the Saskatchewan Penitentiary indicate that Mr. Kakegamic has taken the opportunity to address identified need areas and has shown motivation and commitment in addressing his Correctional Plan. [ 10 ] All reports conclude that Mr. Kakegamic’s risk for violent sexual recidivism remains very high.

His risk to reoffend is increased with alcohol or drug consumption. Marijuana and alcohol are disinhibitors which, when consumed, make it more likely he will act on his sexual urges. [ 11 ] The most recent assessment is written by his parole officer and recommended that the breach charge be laid. In addition to two previous breaches of the LTSO, there have been several warnings and one other suspension which did not result in a criminal charge of breaching the order. [ 12 ] Mr.

Kakegamic has participated in a number of institutional and community programs, including the Aboriginal Basic Healing Program in 2004, the National Substance Abuse Program - High Intensity in 2006, Wellspring Sex Offender Intervention in 2008, National Substance Abuse Pre-Release Program in 2010 and National Sex Offender Maintenance Program at various points of community supervision between 2010 and 2015. [ 13 ] His parole officer notes very little progress on this release as Mr. Kakegamic is not attempting any academic upgrading or employment.

Instead, he loiters around the downtown area being unproductive. [ 14 ] Mr. Kakegamic was taking psychological counselling and sex offender programming in the community. This will continue after he completes his sentence for this breach, when he returns to the community. [ 15 ] Mr. Kakegamic’s psychologist reports that he is more emotionally stable than in the past, which might be because he is taking his medication. His interpersonal skills have also improved.

His proclivity to associate with street people increases his risk to enter high risk situations, including using alcohol and drugs. [ 16 ] The defence points out that Mr. Kakegamic has not committed a sexual offence since 1989, nearly three decades ago. The defence also observed that it was alcohol, not marijuana, involved in the violent sexual offences. [ 17 ] The defence argued that Mr. Kakegamic has numerous barriers to finding employment and upgrading his education including low cognitive functioning. He admitted the offence, saying he was with friends and consumed marijuana.

Applicable Sentencing Principles for Breaches of LTSO’s [ 18 ] In Ipeelee , the Supreme Court of Canada for the first time dealt with the issue of the applicable sentencing principles for offenders breaching conditions of their LTSO’s. Justice LeBel, writing for the six person majority, outlined the history of the dangerous offender designation, starting with its first iteration to authorize the indeterminate detention of “habitual criminals” following the Archambault Commission’s recommendation in 1947. In 1977 indeterminate detention was reserved only for dangerous offenders. In

1997, the long term offender provisions were enacted to fill a gap in the sentencing scheme, to allow for extended supervision in the community for serious offenders who were not dangerous offenders.

Section 753.1(1) of the Criminal Code provides that a court may find an offender a long term offender following the filing of an assessment report, if the court is satisfied that:

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

b) there is a substantial risk that the offender will reoffend; and

c) there is a reasonable possibility of eventual control of the risk in the community. [ 19 ] Long term supervision orders are for a maximum of 10 years and are administered in accordance with the conditional release provisions of the Corrections and Conditional Release Act , S.C. 1992, c. 20 (“ CCRA ”).

The Act states that the purpose of conditional release is to “ contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.” (s. 100) [ 20 ] Judges sentencing offenders for breaches of conditional sentence orders must adhere to the sentencing scheme set out in the Criminal Code however.

Justice LeBel stated that the purpose of an LTSO is therefore, “to contribute to the maintenance of a just, peaceful and safe society by facilitating the rehabilitation and reintegration of long-term offenders.” ( Ipeelee , at para. 46 ) Reading the CCRA provisions, the sentencing provisions for LTSO’s in the Criminal Code , and the case law together, Justice LeBel stated that there are two specific objective of long-term supervision orders: . . . 1) protecting the public from the risk of re offence, and 2). rehabilitating the offender and reintegrating him or her into the community.

The latter objective may properly be described as the ultimate purpose of an LTSO, as indicated by s. 100 of the CCRA , though it is inextricably entwined with the former. ( Ipeelee , at para. 48 ) [ 21 ] And, important in Mr. Kakegamic’s case, Unfortunately, provincial and appellate courts have tended to emphasize the protection of the public at the expense of the rehabilitation of offenders. This, in turn, has affected their determinations of what is a fit sentence for breaching a condition of an LTSO. ( Ipeelee , at para. 48 ) [ 22 ] The Supreme Court of Canada overruled the leading appellate decision, R. v.

W.(H.P.) , 2003 ABCA 131 , which the Crown relied on in this case. It is clear from the following passage in Ipeelee that the principles from W.(H.P.) guiding sentencing courts up until Ipeelee are wrong and have been abandoned. W.(H.P.) is no longer good law . Thus, cases which rely on that decision are no longer useful precedents in determining a fit and appropriate sentence for a breach of an LTSO. The Supreme Court categorically stated that an approach that emphasizes the protection of the public at the expense of offenders’ rehabilitation is wrong. Justice LeBel stated as follows: R. v.

W. (H.P.) , 2003 ABCA 131 , 18 Alta. L.R. (4th) 20 (Alta. C.A.) , is the leading appellate court decision to consider the matter. In that case, the Alberta Court of Appeal canvassed the purpose of the long-term offender regime and how it bears on the sentencing process for breach of an LTSO.

Ritter J.A. summarized the view of the court, at para. 46, stating: Because the protection of society is the paramount goal when sentencing an offender who has breached a condition of his long-term supervision order, sentencing principles respecting specific and general deterrence together with separation of the offender from the community are called into play. Rehabilitation has a limited role to play as the status of long-term offender is such that rehabilitation has already been determined to be extremely difficult or impossible to achieve.

Subsequent provincial and appellate court cases have generally adhered to this approach. For example, in R. v. Nelson , [2007] O.J. No. 5704 (Ont. C.J.) , Masse J. of the Ontario Court of Justice held, at paras. 14 and 21, that “[t]he main consideration in sentencing these offenders is the protection of the public” and that “significant sentences must be imposed even for slight breaches of a long-term supervision order”. The foregoing characterization of the long-term offender regime is incorrect.

The purpose of an LTSO is two-fold: to protect the public and to rehabilitate offenders and reintegrate them into the community. In fact, s. 100 of the CCRA singles out rehabilitation and reintegration as the purpose of community supervision including LTSOs. As this Court indicated in L.M. , rehabilitation is the key feature of the long-term offender regime that distinguishes it from the dangerous offender regime. To suggest, therefore, that rehabilitation has been determined to be impossible to achieve in the long-term offender context is simply wrong.

Given this context, it would be contrary to reason to conclude that rehabilitation is not an appropriate sentencing objective and should therefore play “little or no role” (as stated in W. (H.P.) ), in the sentencing process. (Emphasis added.)( Ipeelee , at paras. 49-50 ) [ 23 ] The Crown’s legal argument in this case relied heavily on W.(H.P.) and the now incorrect view that protection of society is the paramount goal in sentencing LTSO’s. [ 24 ] The Supreme Court stressed in Ipeelee that rehabilitation is in fact the key difference between the dangerous offender and the long term supervision order scheme and rehabilitation always plays a role, albeit is not always the foremost consideration in sentencing.

The Supreme Court also reiterated that all sentencing principles apply as they do in any sentencing decision under the Criminal Code . [ 25 ] Although the Crown argued that punishments for breaches of LTSO’s are dealt with sternly by the courts, I am mindful of the Supreme Court of Canada’s direction again, from Ipeelee , In its recommendations, the Task Force specifically stated that a key factor to the success of a long-term offender regime is “a speedy and

flexible mechanism for enforcing the orders which does not result in lengthy re-incarceration in the absence of the commission of a new crime” (p. 19 (emphasis added)) ( Ipeelee , at para. 54 ) [ 26 ] It is clear from the foregoing that the primary difference between the dangerous offender scheme and the long term supervision order scheme is rehabilitation and that rehabilitation remains one of the two main objectives of LTSO’s, along with protection of the public. [ 27 ] It is also clear that all the sentencing objectives set out in s. 718 of the Criminal Code are relevant to breaches of LTSO’s.

Relevant Sentencing Principles and Objectives in this Case [ 28 ] In this case, the offence was ingesting marijuana. This is very similar to the conduct at issue in Ipeelee . Mr. Ipeelee also breached his LTSO by consuming an intoxicant. He drank. Like Mr. Kakegamic, abstinence was an important factor in reducing his risk to commit offences. In considering an appropriate sentence for him, Justice LeBel stated: It is therefore necessary to consider what sentence is warranted in the circumstances. Mr. Ipeelee breached the alcohol abstention condition of his LTSO.

His history indicates a strong correlation between alcohol use and violent offending. As a result, abstaining from alcohol is critical to managing his risk in the community. That being said, the conduct constituting the breach was becoming intoxicated, not becoming intoxicated and engaging in violence. The Court must focus on the actual incident giving rise to the breach. A fit sentence should seek to manage the risk of reoffence he continues to pose to the community in a manner that addresses his alcohol abuse, rather than punish him for what might have been.

To engage in the latter would certainly run afoul of the principles of fundamental justice. (Emphasis added.)(at para. 91) [ 29 ] Similar to Mr. Ipeelee, the offence here is ingesting marijuana, not ingesting marijuana and then committing a serious violent offence. I note, as did Justice LeBel, that relapse among addicts is to be expected. I also take into consideration that although the collective of corrections personnel and psychiatrists have noted that marijuana is dangerous for Mr. Kakegamic as it is a disinhibitor, it was alcohol that he ingested prior to committing the violent offences underlying the LTSO.

I would be far more concerned about a breach that involved drinking alcohol. [ 30 ] As for Mr. Kakegamic’s moral culpability in committing this offence, I note that he is well aware of the proscription against consuming marijuana and this is his third breach offence for doing so. At the same time, I note his low cognitive functioning, his FASD which attenuates any real appreciation for understanding the consequences of one’s actions, and his circumstances as an Aboriginal offender. [ 31 ] As Justice LeBel stated in Ipeelee ,

section 718.2(

e) of the Criminal Code requires that a Court consider how the Aboriginal person’s background impacts on the proportionality analysis: First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. . . . . Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development.

While this rarely - if ever - attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. . . .

Failing to take these circumstances into account would violate the fundamental principle of sentencing - that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender . (at para. 73) [ 32 ] Similarly, in Gladue the Supreme Court stated: The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known.

Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. (at para. 67) [ 33 ] It is not disputed that Mr. Kakegamic’s circumstances as an Aboriginal person have had an impact on his moral culpability in committing this breach by consuming marijuana. He was adopted at the age of three and raised on a reserve in Sandy Lake, Ontario. His father is a residential school survivor. Mr.

Kakegamic grew up in an atmosphere of alcohol abuse and domestic violence. He entered foster care at the age of 12. He was seriously sexually assaulted at that age. He started drinking at that age and he started using marijuana at the age of 15. He also entered the criminal justice system as a teenager.

He has a grade eight education and has never held a job in the community for more than a few weeks. [ 34 ] In addition, he suffers from FASD/FAE and he has borderline intellectual functioning. [ 35 ] The relevant sentencing objectives in this case are denunciation, specific deterrence, separation of the offender from the community, rehabilitation and promoting a sense of responsibility in the offender. [ 36 ] There are no aggravating factors involved in this case. Mr.

Kakegamic did not challenge the breach, although the evidence that he consumed marijuana was a urinalysis test, which is strong evidence. [ 37 ] He was previously sentenced to 12 months and 15 months for the same offence.

[ 38 ] The principle of parity, that similar offenders committing similar offences should receive similar sentences, brings us back to Ipeelee . Mr. Ipeelee was placed on an LTSO after committing two sexual assaults, two assaults causing bodily harm and an aggravated assault. He suffered from no mental illnesses and had average to above-average intellectual ability, but had been diagnosed with antisocial personality disorder and severe alcohol abuse disorder. Like Mr. Kakegamic, his crimes were marked by extreme violence; in Mr. Ipeelee’s case, the sentencing court described “a consistent pattern of Mr.

Ipeelee administering gratuitous violence against vulnerable, helpless people while he is in a state of intoxication” . (at para. 10) His LTSO had been suspended on four occasions for more serious matters than Mr. Kakegamic’s. The breach before the Supreme Court of Canada involved him riding a bicycle erratically while intoxicated in downtown Kingston, with two bottles of alcohol in his pocket. He was originally sentenced to three years for the breach because alcohol was involved in all his previous offences and he would become violent when abusing alcohol and he posed a significant risk to offend sexually.

However, taking into account the principles of sentencing for LTSO as well as the circumstances of Mr. Ipeelee as an Aboriginal person, the Supreme Court substituted a sentence of one year. [ 39 ] The other offender dealt with in the Ipeelee case, Frank Ladue, also suffered from his circumstances as an Aboriginal person. He had committed four sexual assaults as well as a robbery, assaults and property crimes. He was diagnosed as a sexual sadist, like Mr. Kakegamic. He also had two previous breaches of his LTSO, for which he received sentences of six months and one year.

He was originally sentenced to three years for the breach for using cocaine. In reducing the sentence to one year, the British Columbia Court of Appeal noted that Mr. Ladue was supposed to be released to an Aboriginal-appropriate group home, but instead was held on a DNA warrant by correctional authorities and while he remained in custody he lost the bed. Instead, he was released to a drug-infested area of Vancouver against his wishes and very soon after breached his order. The Supreme Court of Canada upheld the one year sentence.

No mention was made of his two previous breaches. [ 40 ] I take into account the principles of restraint in sections 718.2(

d) and (

e) in the Criminal Code to ensure that Mr. Kakegamic is held in custody no longer than is necessary to meet the objectives of denunciation, specific deterrence, rehabilitation and instilling a sense of responsibility in him.

Section 718.2 (

d) of the Criminal Code states that: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [ 41 ]

Section 718.2(

e) states that: (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders [ 42 ] In this case, a jail sentence is the only fit and appropriate sentence. But, in determining the length of the sentence I am sensitive not only to the underlying factors that might have brought Mr. Kakegamic before the Court in the past and on this breach, but also I wish to avoid punishing him inadvertently for his circumstances as an Aboriginal person. So, although it is raised as problematic that Mr.

Kakegamic is not upgrading his education, is not working and is instead hanging around with street people in downtown Winnipeg, I must take care not to inadvertently sentence him on this basis, but rather on the basis of the offence he committed. The Supreme Court directed that judges not inadvertently discriminate against Aboriginal offenders in sentencing on the basis of the systemic factors of racism and poverty.

Justice LeBel quoted from Professor Quigley at paragraph 67 of Ipeelee in that regard: Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences.

The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination. (T. Quigley, “Some Issues in Sentencing of Aboriginal Offenders”, in R. Gosse, J. Y. Henderson and R. Carter, eds., Continuing Poundmaker and Riel’s Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (1994), 269, at pp. 275-76) [ 43 ] As the purpose of s. 718.2 (

e) is to ameliorate the overrepresentation of Aboriginal people in prisons and to encourage sentencing judges to take a restorative approach to sentencing Aboriginal offenders, Justice LeBel stated in paragraph 73 of Ipeelee that the existence of circumstances faced by many Aboriginal offenders: . . . may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se . [ 44 ] As I indicated earlier, the only fit and appropriate sentence is a jail sentence. [ 45 ] Mr.

Kakegamic, although he has diminished capacity for understanding the consequences of his actions and although I certainly can appreciate why he might ingest marijuana, the reports support that he knows that he cannot ingest anything that might disinhibit him from committing violent sexual crimes against children. [ 46 ] I take into account that the substance he consumed was marijuana however, and not drinking or drinking and using a much more potent drug such as LSD, which is what he used before committing one of his offences.

I also take into account he has committed no violent or even nuisance offences while committing this breach or the two previous breaches. He has not committed a violent offence in 27 years. [ 47 ] He appears to be making progress towards rehabilitation and reintegration, although slowly and does not always consistently move forward. I note his father attended to the sentencing hearing in support of his son. So, despite everything else, Mr. Kakegamic has a father who is present and supportive of him, which might just be one of the most important factors in his ultimate reintegration into society. Mr.

Kakegamic is now 50. [ 48 ] In all of the circumstances, I believe a fit and appropriate sentence for this breach is 15 months. It will be reduced by the 5½ months Mr. Kakegamic has already been in custody. He will have 3 years to pay or work off the mandatory $200 victim surcharge.

Court costs are waived. Original Signed by DEVINE, P.J.