R v Amaaq, 2020 NUCA 11

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Amaaq, 2020 NUCA 11 Date: 20201021 Docket: 07-19-012-CAP Registry: Iqaluit Between: Her Majesty the Queen Appellant - and - Katelynn Amaaq Respondent _______________________________________________________ The Court: The Honourable Mr. Justice Thomas W. Wakeling The Honourable Madam Justice Ritu Khullar The Honourable Madam Justice Elizabeth Hughes _______________________________________________________ Memorandum of Judgment

Appeal from the Sentence by The Honourable Madam Justice Susan Charlesworth Dated the 12th day of December, 2019 ( Docket: 07-17-67) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] The Crown [1] appeals sentences imposed by the Nunavut Court of Justice on December 12, 2019 for two offences the respondent committed against her five-year-old child over an approximately ten-week period – a two-years-less-a-day conditional sentence order for failing to provide the necessaries of life [2] and a consecutive three-year suspended sentence for aggravated assault. [3] The five-year old’s body was covered in bruises and bite marks. [4] He suffered severe internal injuries – a lacerated liver and spleen, a kidney contusion, a fractured rib and an obstructed bowel. [5] The youngster told the examining nurse he could not recall the last time he ate. [6] The child’s height and weight was in the fifteenth percentile for his age. [7] [ 2 ] This is the second time the respondent has been convicted of assaulting this child.

The Nunavut Court of Justice convicted her of assault causing bodily harm when her son was only two-months old.

She threw her baby down a flight of stairs, the baby landed on his head, and broke his clavicle. [8] Her 2012 sentence was a four-month conditional sentence and eighteen-months probation. [9] [ 3 ] The Crown requests that this Court set aside the sentence for aggravated assault [10] and impose a jail term “in the range of 2 years less a day”. [11] [ 4 ] We recognize the challenges the sentencer faced and the benefits associated with the sentence she imposed. [12] The respondent’s counsel put it aptly: [13] “Justice Charlesworth faced a Gordian knot.

There was a terrible crime committed against a helpless victim entangled with an accused with a tragic set of personal circumstances that support rehabilitation”. The sentencing judge tried to produce a sentence faithful to Gladue [14] factors. But we are convinced that a noncustodial sentence for the aggravated assault conviction fails to take into account Parliament’s direction in

section 718.01 of the Criminal Code to “give primary consideration to the objectives of denunciation and deterrence” if the offender abused a person under eighteen years of age. [15] In our opinion, the sentence for aggravated assault is demonstrably unfit. [16] [ 5 ] We grant leave to appeal and, exercising the powers bestowed on an appeal court under section 687(1) of the Criminal Code , vary the sentence for the aggravated assault conviction by imposing a term of imprisonment of two years less a day followed by a three- year probation period [17] to be served consecutively to the two-year-conditional sentence for the failure to provide the necessaries of life. [ 6 ] In doing so, we are not stating that this sanction is one we would have imposed on a parent who has repeatedly [18] assaulted her vulnerable child had the Crown asked for a much sterner penitentiary sentence for the aggravated assault conviction. [ 7 ] The Crown and the respondent asked us to stay any custodial sentence we might impose to allow the offender to discharge her parental obligations to her four-year-old daughter. [19] We were told that the offender has shown no signs that she is a danger to this child or the community.

Mr. Wool, Crown counsel, informed us that the offender’s daughter would most likely be placed in foster care if the offender was incarcerated. Foster care, he opined, would be a poor second choice in these circumstances and would jeopardize the future welfare of yet another of the offender’s children. Mr.

Cowan, respondent’s counsel, argues that his client has already served the most arduous part of her conditional sentence – six-months’ house arrest. [ 8 ] With considerable reluctance, we conclude that the exceptional circumstances necessary to justify this Court staying the offender’s obligation to serve jail time for the aggravated assault conviction exist here. [20] Had only respondent’s counsel made this request, we most likely would not have granted it.

We would have been extremely reluctant to dilute, in any way, the message that those who imperil the physical and mental welfare of their offspring are guilty of a grievous breach of trust [21] and merit a term of imprisonment. [22] We were very much influenced by Mr.

Wool’s firsthand account of the limited resources available in the north to care for children without parental support and the bleak future of those in foster care. [23] [ 9 ] This is a very sad case from everyone’s perspective – the vulnerable young boy whose mother cruelly and horribly abused him and withheld from him the love and support to which he was entitled, the youngster’s grandmother who has adopted the young boy and assumed the duties and responsibilities of parenthood late in life, the young-mother offender whose formative years were characterized by the absence of proper parental role models, a victim of intergenerational trauma, and who must live the rest of her life with the knowledge that she has betrayed the trust the community imposes on parents to love, nurture and provide the necessities of life

to their young and grievously harmed a young boy whom she had a moral and legal obligation to protect, and the community whose global welfare is diminished when one of its members acts in such a despicable and inhumane manner. [ 10 ] We wish to acknowledge the considerable assistance both counsel provided in this case. In particular, we acknowledge Mr. Wool’s contributions to our deliberations. He gave us the benefits of his knowledge of life in the far north and the troubles that jeopardize the welfare of his community.

Appeal heard on September 15, 2020 Reasons filed at Iqaluit, Nunavut this day of October, 2020 Wakeling J.A. Khullar J.A. (Authorized to sign for) Hughes J.A. Appearances: Gary Wool for the Appellant Benson Cowan for the Respondent