R. v. Googoo, 2015 NSSC 110

SUPREME COURT OF Nova Scotia Citation: R. v. Googoo , 2015 NSSC 110 Date: 2015-03-25 Docket: PH No. 432182 Registry: Port Hawkesbury Between: Her Majesty the Queen v. Ekkian Misel (Stephen) Googoo Judge: The Honourable Justice Frank C. Edwards Heard: March 25, 2015, in Port Hawkesbury, Nova Scotia Oral Decision: Written Decision: March 25, 2015 April 13, 2015 Counsel: Lisa Johnston, for the Crown Kevin Patriquin, for the Defence By the Court: [ 1 ] Mr. Googoo was found guilty following a trial before me on one count of assault causing bodily harm.

There was a three count Indictment, the first count of which was the charge of aggravated assault relating to incident with Miranda Gould. I found him guilty of the included offence of assault causing bodily harm, but not guilty of the more serious aggravated assault. [ 2 ] Count # 2, was a case of simple assault under s. 266 and also related to Miranda Gould. I found that this was all the same transaction as referred to in Count # 1. I therefore found him not guilty on Count # 2. [ 3 ] Count # 3 had to do with the assault, the choking incident, with Tania Gould, his common-law spouse.

I found him guilty on that one contrary to s. 266 of the Criminal Code . [ 4 ] Assault causing bodily harm carries a maximum penalty of 10 years in prison. The assault under s. 266, where the Crown goes by Indictment, the maximum penalty is 5 years. [ 5 ] I say at the outset that I do not accept the Crown’s submission that the sentences that I impose on Count # 1 and Count # 3, should be consecutive.

Where both charges arose virtually at the same time and, as one continuing factual transaction, I will be making the sentences concurrent on Counts 1 and 3. [ 6 ] I have issued a written decision dated January 14 th , 2015, which outlines the factual basis of my decision. But briefly, all three, that is Tania, Miranda and the accused, Stephen or Ekkian Misel Googoo, they were all drinking and were all more or less intoxicated at the time of the incident in question. They had been out visiting and upon their return to Miranda’s trailer, Mr. Googoo and Tania got in an argument in the bedroom they were occupying.

The accused got physical and began choking Tania. Miranda appeared at the bedroom door, and when she did, the accused attacked her and to quote her “he came at me and punched me in the left eye and I went down in pain. After hitting me in the face and throwing other punches he jumped on me and broke my leg”. The broken leg, which is specifically a broken ankle, required surgery which included the insertion of two screws in the ankle and her mobility at the time of trial, and likely continuing to now, is obviously substantially impaired.

[ 7 ] Both Tania and Miranda have provided me with Victim Impact Statements, both of which I have carefully read and both of which were referenced by Counsel in their submissions to me today. [ 8 ] Tania does underline “to say the truth everyone was drunk”. Booze was a big factor in what took place that night. [ 9 ] Miranda’s, as the Crown indicated, is a more extensive statement. The more long lasting impact or consequence of the assault by Mr.

Googoo is being borne by Miranda. [ 10 ] In Tania’s Victim Impact Statement, she has referenced the fact that she has had to take time off work to assist her sister from time to time, but the main impact has been with Miranda. Miranda has suffered, what she says was the worst incident in her life. She has suffered both professionally and personally and, at home; it impairs her ability to give the attention to her eight year old son that he requires. [ 11 ] I have taken those impacts into very serious consideration and it underlines that, while this was not a premediated attack (it was spontaneous, no doubt in

part influenced by the consumption of booze and/or drugs on the night in question) it shows, Mr. Googoo, when you do not control yourself it can cause very devastating consequences for persons whom you injure. [ 12 ] I have also carefully reviewed the Gladue Report which runs to 26 pages. I noted in particular that part of it which relates specifically to Mr. Googoo’s circumstances. I note that he was born on August 12, 1984. His father was violent and abusive, abused alcohol, and his mother had some psychological issues. At age 7 he was taken in for two years by neighbours, Jay and Paula Marshall.

He was diagnosed ADHD and prescribed Ritalin. He was returned to his mother after the two years with the Marshalls and then placed with Natalie Denny with whom he stayed with until he was 13. She struggled with his behaviour. At age 14 he was in a third foster home and was subjected to some sexual abuse there. He began showing a growing dependence on alcohol and prescription drugs from that young age. As he indicated to me this morning, the problem with the booze and drugs is long standing for the last 16 years. [ 13 ] In 2002 Stephen was at the IWK Adolescent Treatment Centre for a psychiatric assessment.

They diagnosed bipolar symptoms. He left school at Grade 8, he managed to complete Level 2 of the Adult Learning Program at Springhill Institution. His first language is Mi’kmaq. His employment history consists of picking blueberries in Maine and some lumber work in the woods with his uncle. [ 14 ] In 2006 he was in a relationship with Michelle Francis and the good that has come from that is one child, Georgina Francis (DOB May 31, 2011). According to the Gladue Report, Mr. Googoo enjoys a close and loving relationship with his daughter.

Hopefully that relationship and the desire to be a good parent to the child, which is no less than she deserves, will motivate Mr. Googoo to take charge of his life. Stephen must deal with his addiction problems because, if he fails to do that, he has nothing to look forward to but a lifetime in jail. That is the sad truth. [ 15 ] The Gladue Report, pages 18 to 23, enumerates the specifics of Mr. Googoo’s past record.

He has 45 prior convictions as an adult including two assaults, two assaults causing bodily harm, one assault with a weapon, one overcoming resistance by choking, one assaulting a police officer, nine threats of bodily harm, sixteen various breaches as well as property offences. [ 16 ] As Mr. Patriquin points out, although there is an extensive number, his last conviction that took care of some thirteen of those counts was back in March of 2010 which netted him a sentence in the three year range.

There were a couple of relatively minor convictions like the aircraft conviction of mischief since then that resulted in a 30 day sentence, but the last major entry on his criminal record was in March 2010. [ 17 ] The Gladue Report, at page 24, lists the so- called Gladue Factors which are enumerated in succinct fashion.

(1) That Ekkian Misel Googoo is a young man of Mi’kmaq descent.

(2) That he has demonstrated a willingness to address the underlying factors that contributed to the incident. I am not convinced of that. Demonstrated may not be the right word. You may have voiced a willingness to address the underlying factors that contributed to the incident, as you voiced that today. But I repeat what I said; that I hope you are sincere and I hope you follow through on that. At this stage there is nothing before me which gives a great deal of optimism that you are going to do that.

We have to hope that you will be sincere and that you will follow through and take advantage of some of the programs and resources that are available to you. There are no shortage of resources. There are well-meaning and tried and true programs available to you. They are completely useless unless you decide that you are going to actively and sincerely participate in them.

If you do not, then you will just be wasting the time of the persons involved in those programs who are there to help you. [ 18 ] The third Gladue factor is that there is evidence of community support and culturally appropriate measures available to address Ekkian Misel’s issues and circumstances and that is what I was just talking about.

(4) That Ekkian Misel has personally experienced the adverse impact of many factors continuing to plague Aboriginal communities since colonization, including: • Substance abuse; personally, in the immediate family and among peers. • Family deterioration; separated and/or absent parents. • Violence and abuse. • Suicide and loss within family, community and peers. • Low income and unstable employment due to lack of education and substance abuse.

• Loss of identity, culture and ancestral knowledge. [ 19 ] There is no question that you have had a very tough start in life and that the hill that you have to climb is a steep one. None of us can change what has happened in the past. The resources are there to assist you in getting your life in order so what remains of your life is vastly better in quality then what you have experienced so far. But all any of us can do now is encourage you to take advantage of those resources and turn it around.

The bottom line: it is up to you. [ 20 ] The Gladue Report concludes with recommendations which I have read and which I endorse. To the extent that those resources are available in the institution, Stephen should take advantage of them. At some point the programs available in Eskasoni will become available to him and I encourage him to participate in them. [ 21 ] Those recommendations are as follows: • That Ekkian Misel receive a complete and thorough psychiatric assessment and remain under the supervision and treatment of a qualified psychiatric physician for a period of no less than a year.

Ekkian has a clear history of psychiatric and psychological issues, including previous diagnoses of ADHD and symptoms of Bipolar Disorder. His demeanor during interviews was extremely anxious and suspicious. He has not been reassessed or medicated in approximately twelve years. [ 22 ] That assessment and, possibly the re-evaluation of his medication needs is something that will no doubt benefit Mr. Googoo. [ 23 ] The second recommendation: • That Ekkian Misel participate in a qualified drug and alcohol treatment program.

That one of course deserves heavy emphasis because it was the misuse of drugs and alcohol that lead to the specific events that caused these convictions. • Ekkian acknowledges ongoing issues with drugs and alcohol, but it is very clear that he does not wish to participate in any community treatment programs on reserve or overseen by the Native Alcohol and Drug Abuse Counseling Association. Ekkian explained that local community rehabilitation and relapse programs are often populated with familiar, unhealthy people. Ekkian expressed the need to be isolated from old associates connected to his addictions.

I do not know what other programs are available to you but I suggest to you sir that you need professional help in dealing with your drug and alcohol abuse. Unless you get it, the chances of successfully overcoming that problem are remote. • That Ekkian Misel participate in The Journey of Two Wolves Men’s Mi’kmaq Intervention Program. This is a 12 week program (2 hours per week) facilitated by Tom Sylliboy of Eskasoni’s Mental Health and Doreen Googoo of the Mi’kmaq Family Healing Centre.

The program is delivered in both English and Mi’kmaq and focuses on identifying values and beliefs and recognizing a learned history of violence and abuse.

The program explores topics such as: - Time outs and cool downs, safety plan for self/family. - What is abuse, anger and violence. - Values and beliefs, history of learned violence and abuse. - Family trap (exercise to recognize different roles in the family – distracter, abuser, blamer, hero and lost child) and little eyes and ear (how family violence affects children), and in this case his child. - Power and control in relationships, power and control vs. equality – healthy and unhealthy relationship techniques. These are all areas Mr.

Googoo that you could benefit from gaining insight into and would enhance your chances of, as I say, turning it around. - Emotions and how to recognize emotional triggers. - Types of communication (verbal and non-verbal, body language, expressions, etc) and effective vs. non-effective communication. - Grief and loss. - Anger triggers and stress management. - Gender socialization. - Self-identification – personal issues, emotional triggers, stressors and self-management techniques. [ 24 ] The final recommendation is that you receive personal grief counseling from Eskasoni’s Mental Health Services.

He has suffered a considerable amount of grief and loss, particularly during his formative years. Grief Counselor Tom Sylliboy can work with Ekkian to deal specifically with his personal issues of grief and connect him to a number of programs designed to address his individual,

cultural and spiritual needs. [ 25 ] Those resources are there for you. It would be foolish of you not to take advantage and participate in them. [ 26 ] I have indicated already that you will be given credit for the time you have served on remand which is 223 days less the 20 days sentence that you served during that time for an unrelated matter. You will get credit for 203 days x 1.5 for 304.5 days. [ 27 ] The Crown is recommending a sentence in the 4 to 5 year range. The Defence Brief indicated that the sentence should be in the 2 to 2 ½ year range with a reduction for time served. [ 28 ] Mr.

Patriquin has urged me to consider a sentence of 2 years or less in order to make you subject to a period of probation. I have seriously considered doing that but I have concluded that the circumstances of this case, in light of your record, requires that I impose a sentence of greater than 2 years. Probation only works if there is a determination by the offender to participate in the programs made available. Those programs will still be there, the ones I mentioned in the Gladue Report, they are still there whether there is probation or not. I know I am repeating myself, but it comes back to you Mr. Googoo.

You must decide that you are going to take advantage of those programs to better your life. [ 29 ] I have considered the provisions of the Criminal Code, s. 718 says that, The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct (

b) to deter the offender and other persons from committing offences (

c) to separate offenders from society where necessary (

d) to assist in rehabilitating offenders (

e) to provide reparations for harm done to victims or to the community, and (

f) to promote a sense of responsibility in offenders and acknowledgement to the harm done to victims and to the community. [ 30 ] This is a violent crime and it must be denounced, the sentence must be one which will deter both Mr. Googoo and others from committing such offences and to separate offenders from society where that is necessary and I think it is here. I would hope that the sentence here would promote a sense of responsibility in Mr. Googoo and acknowledgment by him of the harm done to the victims and members of the community. [ 31 ]

Section 718.2 of the Criminal Code states A Court that imposes a sentence shall also take into consideration the following factors: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and without limiting the generality of the foregoing, evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner. [ 32 ] That is the chief aggravating factor here, that there is a spousal aspect. You were living with Tania Gould at the time; this happened in Tania’s sister Miranda’s home. [ 33 ] By way of mitigating circumstance, the most that can be said is that it was not a premeditated act.

It was a spontaneous loss of control by you, Mr. Googoo, but it had, as I have described, very severe consequences.

Section 718.2 also directs that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances and an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances and 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. I have taken all of that into consideration. [ 34 ] Both the Crown and the Defence have referred me to a number of cases.

The case of R. v. Ginnish, 2008 NSSC 266 was provided to me by Mr. Patriquin. As the Crown pointed out, Mr. Ginnish’s longest prior period of incarceration was just 45 days, where yours Mr. Googoo, you have served 3 years and 30 days. In R. v. MacDonald, 2010 NSSC 281 , provided by the Defence, there was no spousal aspect to that. [ 35 ] The Defence in turn then pointed out to me the differences between this case and the cases cited to me by the Crown. R. v. Knockwood, 2009 NSCA 98 involved a second conviction of spousal assault on the same person. The situation of Mr.

Knockwood was very different and certainly not permeated by the tragedy of Mr. Googoo’s situation. Mr. Knockwood got 12 months and 2 years’ probation. In R. v. MacIntyre, 2002 NSSC No. 174; again there were different circumstances and while cases are helpful, no two are alike. I have to look at the particular circumstances before me in the case at hand. There were completely different circumstances involved in MacIntyre as there was with R. v. Leger, 1997 NSCA 137 and R. v. Moller, 2008 NSSC 158 . With Leger there were no

mitigating factors, with Moller no domestic involvement. [ 36 ] In light of what I have said I have determined that a proper sentence in this case is 3 years in custody less the 304.5 days for time spent on remand. (That is 203 x 1.5) [ 37 ] There will also be a DNA Order as requested by Crown and there will be a lifetime prohibition pursuant to s. 109 (3) of the Criminal Code . [ 38 ] Three years on Count # 1, the assault causing bodily harm respecting Amanda and one year on the s. 266 charge relating to Tania. Those sentences will be served concurrently. Edwards, J.