R. v. Feltmate, 2012 NSSC 319

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Feltmate, 2012 NSSC 319 Date: 20120824 Docket: CRP-392464 Registry: Pictou Between: Her Majesty The Queen v. Katherine Feltmate Defendant LIBRARY HEADING Judge : The Honourable Justice J. E. Scanlan Heard: August 24, 2012 in Pictou, Nova Scotia Written Decision: September 5, 2012 Subject: Sentencing - Criminal Harassment and Assault Section 264(3) (

a) of the Criminal Code of Canada

Section 266 (

b) of the Criminal Code of Canada

Summary: Accused had no prior criminal record. While intoxicated she assaulted a complete stranger in a shopping mall. This was accompanied by racial comments. Also, she assaulted a person who came to the aid of the first victim. Result: Sentenced to 60 days in an institution on the criminal Harassment conviction. One day in jail served by the Court appearance on the assault conviction. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Feltmate , 2012 NSSC 319 Date: 20120824 Docket: CRP-392464 Registry: Pictou Between: Her Majesty the Queen v.

Katherine Feltmate Judge: The Honourable Justice J.E. (Ted) Scanlan Oral Decision: August 24, 2012, Pictou, Nova Scotia Written Decision: September 5, 2012 Charges: THAT she, on or about the 29 th day of May, 2011 at or near 713 Westville Road, New Glasgow, Pictou County, Nova Scotia did knowing that Alizah Khan is harassed or being reckless as to whether Alizah Khan is harassed, did without lawful authority, engage in threatening conduct directed at Alizah Khan, thereby causing Alizah Khan to reasonably, in all of the circumstances, fear for her safety contrary to Section 264(3) (

a) of the Criminal Code of Canada ; AND FURTHERMORE on or about the 29 th day of May, 2011 at or near 713 Westville Road, New Glasgow, Pictou County, Nova Scotia, did commit an assault on Brian Anthony Jarvis contrary to

Section 266 (

b) of the Criminal Code of Canada . Counsel: William Gorman, Solicitor for the Crown Hector MacIsaac, Solicitor for the Defendant By the Court : Charges: THAT she, on or about the 29 th day of May, 2011 at or near 713 Westville Road, New Glasgow, Pictou County, Nova Scotia did knowing that Alizah Khan is harassed or being reckless as to whether Alizah Khan is harassed, did without lawful authority, engage in threatening conduct directed at Alizah Khan, thereby causing Alizah Khan to reasonably, in all of the circumstances,

fear for her safety contrary to Section 264(3) (

a) of the Criminal Code of Canada ; AND FURTHERMORE on or about the 29 th day of May, 2011 at or near 713 Westville Road, New Glasgow, Pictou County, Nova Scotia, did commit an assault on Brian Anthony Jarvis contrary to

Section 266 (

b) of the Criminal Code of Canada . [ 1 ] I have been on this court almost two decades. This is one of the most difficult sentencings that I have ever presided over. I have sentenced people for murder, assault, robbery, drugs, you name it. This case stands out. [ 2 ] We have a victim who has been identified, Alizah Khan. We have seen the Victim Impact Statement. She says it has affected her attitude towards other people. She does not trust anyone except those who she has known for years — “ I don ’ t feel safe here ” . Where is here? I don ’ t know — Nova Scotia/Pictou County/North America?

I don ’ t know what it means. She says, “ I have lost all of my confidence. I have two kids. I am scared to take them out alone. ” Why? Because she wore a pashmina scarf. Why? Because of the colour of her skin. Why? Because Ms. Feltmate was intoxicated. She says she cannot stay at home alone, especially at night time when her husband, who is a doctor, is out helping everybody in this community that he can help, probably saving lives. [ 3 ] She says that she will recover. It is going to be a long time. Ms. Khan was not the only victim.

Everybody else that was in that shopping mall saw what happened, and this community, this province, this country is worse off for this incident having happened. [ 4 ] Over the last couple of weeks I watched as a number of very elderly gentlemen walked down the streets of Dieppe. Men who went there, prepared to sacrifice their lives as Canadians. A lot of their friends died, never came home. Men who were taken prisoners, one of whom I knew spent many years in a German Prisoner of War Camp. Why?

Because he was fighting for — and those men sacrificed, or were willing to sacrifice their lives for other people whose rights were not being respected. People who did nothing. People who were innocent victims. [ 5 ] Ms. Feltmate ’ s husband, being a military man, will know many, many Canadian soldiers who have been prepared to go over seas and who are going over seas still today. Men and women prepared to sacrifice their lives, some from Pictou County having died over there. A number from Nova Scotia have died over there, and they are still over there. Why?

They are fighting against regimes who do not respect human rights of other people, and who they are in terms of religion. We as Canadians disagree with them in things as basic as ownership and transfer of women, or women and girls and their rights to go to school. Very basic things that we take for granted in this country. [ 6 ] Canadians come in many different colours, ages, ethnic backgrounds and religions. We have more ethnic and religious backgrounds than we have of colours of people in this country. Colour, race, religion, heritage does not make any one citizen of this country more or less of a Canadian.

It is indeed the cultural and the religious diversity of this country that adds to its richness. It is part of what makes us Canadians, and makes most of us proud to say that we are Canadians. [ 7 ] We do not have to go very far back in history to see the risk of intolerance or discrimination. We still see the results of intolerance around the world. We listen to it every day when we turn on our radios, our T.V.s or read the newspapers.

As I said, many Canadians have fought and died to help others defend themselves from ethnic or religious persecution. [ 8 ] As those old men walked down the streets in Dieppe, what did the residents do? They lined up in throngs. About the only words that were uttered, row, after row, after row, were, “ Thank You. ” They may never be able to thank them enough. [ 9 ]

Section 27 of the Canadian Charter of Rights and Freedoms specifically enshrines our multicultural heritage as one of the basic constitutional tenants. The mere fact that it is in the Charter, and says that the Charter is to be interpreted in a manner consistent with the preservation and enforcement of multicultural heritage of Canadians, is indicative of the importance of that diverse heritage in this country. We are getting more and more diverse all the time. Most Canadians don ’ t know this statistic, but I am told by the year

2016 there will be more Chinese-speaking Canadians than there are French-speaking Canadians. This country is getting more and morediverse. [10] Multiculturalism is not just a word. It’s a philosophy which speaks to the obligation that each Canadian has to respect thedignity, privacy and integrity of all fellow citizens in this country. Respect, respect. That’s what it’s all about. Respect which allows allCanadians to choose a specific religion, to pray to a specific God, to where a Hijab, to wear a scarf on your head, to wear a long dress, towear a short dress.

That’s all alright, and people must respect your choice. Respect means whatever you choose in this country it isalright. [11] In this case the evidence is clear that Alizah Khan, was a lady from Illinois, of Pakistani not Iraqi heritage. She lives here withher two children and her doctor husband, working for us and with us. Ms. Khan was at first confronted, insulted and then assaulted forno reason other than wearing a scarf around her head, and like I said, because of the colour of her skin. A pashmina scarf covered herhead and this occurred in a public shopping mall. Ms. Feltmate approached Ms.

Khan, a complete stranger, first touching and askingabout whether it was uncomfortable or too warm to wear a head scarf. Ms. Feltmate asking Ms. Khan why she would wear that on sucha hot day? As noted by Crown, Ms. Feltmate briefly retreated. Ms. Khan was right to say, “well, I don’t comment on what you arewearing. Why are you commenting on what I am wearing?” There were various other people in the mall that were wearing clothes thatwere probably heavier than what Ms. Khan was wearing that day as well. Ms. Feltmate didn’t comment on someone wearing a sweater,or a coat, or a jacket. Why would Ms.

Feltmate go over to Ms. Khan? [12] This whole incident, did it have anything to do with race? Yes, Ms. Feltmate yelled, “Iraqi bitch, whore, Muslim bitch.” Even when Mr. Jarvis intervened, Ms. Feltmate said he was a racist Canadian. Why? Because he came to the rescue of Ms. Khan. Suggesting she should, “go back to her own fucking country”. Forcing her against the wall, raising her hands, pushing a shopping cartaround. This is Ms. Khan’s country as much as it is Ms. Feltmate’s. [13] If I go back in terms of my heritage or Mr.

MacIsaac’s heritage, I know certainly mine, French, Scotch, Irish, I am told NativeAmerican. They all went to war with one another at one time or another, but I am a Canadian, no better than Ms. Khan, no better thanMs. Feltmate. [14] Ms. Feltmate clearly singled out Ms. Khan based on who Ms. Feltmate thought she was, in terms of race. Bias, prejudice andalcohol were at the centre of the criminal harassment. Like I said, Ms. Feltmate assaulted Mr.

Jarvis and questioned his racism, hisintegrity, just because he went to help out. [15] The common law, in other cases that have gone before, and the Criminal Code, specifically

Section 718, set out various factorsthat I am to consider in the imposition of any sentence. Certainly the racial underpinnings of this offence are very serious, and I wouldsay extremely aggravating circumstances in this case. [16] Racially-motived crimes are indicative of a lack of respect. The respect of which I speak is the essence of Canadianism. Acountry where we foster diversity, we recognize diversity. We do not ask or require that every Canadian be the same, whether you arefrom Newfoundland, Nunavut, British Columbia, or any place in between.

We do not require of people in this country that they forgetwhere they came from when they arrive, no matter how far they have moved. In fact, we are a better country when we take the best ofwhat people have to offer and embrace it. We don’t ask them to leave their clothes behind; we do not demand of them that they leavetheir religion behind.

About the only thing we ask them to do is respect other people when we tell them racial intolerance in this countryis not acceptable. [17] We do ask of Canadians—no, in fact we demand of Canadians that they respect fellow citizens in this country no matter whattheir ethnic or religious background is. This is because a Canadian, is a Canadian, is a Canadian no matter what their vintage, religion orattire. Your children, your grandchildren are not more Canadian because they have been here one or two generations more than youhave. Mr.

MacIsaac’s children are not more Canadian than he is because they have been here one more generation than he has. That’snot the way we do it. That’s not the test. How many generations do you have to have in this country before you are a Canadian. [18] In the case R. v. Alexander Steven Ingram (ON CA), [1977] 35 C.C.C. (2d) 376, I quote in part Justice

Dubin. He says: Crimes of violence increase when respect for the rights of others decreases... ... An assault which is racially motivated renders the offence more heinous. Such assaults, unfortunately, invite imitation and repetition by others and incite retaliation. ... The sentence imposed must be one which expresses the public abhorrence for such conduct... [ 19 ] It is a slippery slope and a very short journey between the trading of insults, escalating to an eye for an eye and then a life for a life. We see around the world that is happening every day.

We do not choose that type of country for ourselves and I hope we never, ever find ourselves in that place in this country. [ 20 ] A country as diverse as Canada cannot countenance even baby steps down that slippery slope because we are so diverse. We come from so many different places. Like I said, what we can do is respect who and what other people are if they are different than ourselves and embrace the best that they have to offer. [ 21 ] I am convinced the nature of these offences demands a clear pronouncement which focuses on denunciation and deterrence.

In saying that, I take into account the guilty plea, Ms. Feltmate ’ s age and her clean record. I take into account her circumstances, as much I do the circumstances of the offence. I return to my earlier comment and refer to

Section 718 specifically. I repeat, the racial overtones in this case are extremely aggravating circumstances. I also take into account the suggestion that Ms. Feltmate was intoxicated at the time. That is more than a suggestion, the evidence is clear, Ms. Feltmate was intoxicated at the time. But that is no excuse. If we allowed people to go get drunk and do this type of thing, we would start down that slippery slope and it would be occurring on a more, and more, frequent basis. [ 22 ] I do not accept the assertion in the brief as submitted by Ms.

Feltmate ’ s counsel that if you told somebody to go back to their own country and called them a “ Dutch whore ” that the charges would not have been laid or that I would treat it much differently. It was not all that long ago, during my lifetime in fact, that we as Canadians were courting Dutch farmers to come to Canada. They too make Canada what it is. It is a better place because of them. I don ’ t doubt for a minute that they at the time were also potential targets for comments such as this.

As I said, a Canadian, is a Canadian, is a Canadian no matter what their colour, religion, heritage or vintage in this country. [ 23 ] The Crown has asked for a custodial sentence of seven to nine months incarceration followed by probation. In some situations for this offence I might follow that recommendation. It is that serious of an offence. The racial overtones are that serious and the consequences reach well beyond Ms. Khan. Each and every other individual whose ethnicity is not the same as Ms.

Feltmate ’ s and are not here today, they may have heard about this incident. [ 24 ] I take into account the circumstances of the offence and Ms. Feltmate ’ s circumstances. I am satisfied that a lesser sentence will both deter others and make it clear as to how much this court, our country, denounces this type of behaviour. [ 25 ] Those who look at the sentence that I am about to impose may say; look a 51-year-old woman with a clean record gets this sentence. A 51-year-old woman with three grandchildren that she is caring for. A 51-year-old woman who has expressed remorse.

If she gets this kind of sentence, what might I get if I don ’ t have those things going for me. The message I want to send is clear. If Ms.

Feltmate didn ’ t have those things going for her together with the guilty plea, the sentence I impose would be much greater. As I said, this is one of the most difficult sentencings I have done in almost two decades on the bench. [ 26 ] I note the Crown did originally proceed by way of indictment and this now comes before me as a

summary matter. I sentence you within the parameters of

summary offences, not indictable offences. Had it been indictable, the potential sentence would have been substantially higher. I can appreciate there is a lot of merit proceeding as a

summary offence in this case and I agree it is appropriate. [ 27 ] On the charge of criminal harassment, I am convinced it is the most serious of the two charges because of who it was aimed at, and why it was aimed at her. This incident occurred because of the colour of the victim ’ s skin and what she was wearing, and who Ms. Feltmate thought the victim was. I am satisfied that a short sharp period of incarceration will express sufficient denunciation and deterrence to others. This is required even if I am convinced Ms. Feltmate would not ever commit this offence again.

Others have to understand, as well, how serious it is. [ 28 ] I am satisfied that a period of 60 days in an institution, not in the community, is an appropriate sentence. As I said, that will send a clear message to those who hear about the sentence. [ 29 ] I am satisfied that is an appropriate sentence, as well, to add a period of probation of 12 months, following Ms. Feltmate ’ s release from custody. She is to keep the peace and be of good behaviour. Attend for such counselling as her Probation Officer sees fit, including substance abuse counselling.

I am not going to impose any other conditions other than the normal conditions of report to and be under the supervision of Adult Probation Services. I am not satisfied that a fine is necessary. It would simply be piling on in terms of Ms. Feltmate ’ s hardship. I have no doubt she gets the message. She does not need anything else to give her the message. [ 30 ] As for the assault charge in relation to Mr. Jarvis, all assaults are serious. The fact Ms. Feltmate suggested he was racist for even standing up for the person whom Ms. Feltmate had assaulted, is somewhat disturbing.

I am satisfied, considering the sentence I imposed on the criminal harassment charge, that an appropriate sentence on the assault is one day in jail served by Ms. Feltmate ’ s appearance here in court today. There is to be no additional period of custody or probation for that second offence. [ 31 ] I would note as well. This country would be a better country — a stronger country — if all Canadians stood up for the rights of those who are being oppressed, as Mr. Jarvis did in this case.

Like I said, they are simply standing up for fellow Canadians who are being abused by a person who should not be abusing them. [ 32 ] I will impose a three-year ban on firearms possession. [ 33 ] I am not going to impose a DNA order. J.