R. v. VanEindhoven, 2013 NUCJ 30

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. VanEindhoven, 2013 NUCJ 30 Date: 20131209 Docket: 18-04-57 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Adrian VanEindhoven ________________________________________________________________________ Before: The Honourable Mr. Justice Johnson Counsel (Crown): N. Devlin, J.B. Deschamp Counsel (Accused): L. Stevens, T. Fairchild Location Heard: Iqaluit, Nunavut Date Heard: December 9, 2013 Matters: Criminal Code, s. 235 (

a) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document has been edited for publication) I. PRELUDE FROM TRANSCRIPT

[1] THE COURT: Now just before I pronounce sentence on Mr. VanEindhoven, I wanted to clarify, because the Crown didn’t mentionit, but I am assuming they are also requesting a DNA order and a 20-year prohibition of firearms. [2] THE CROWN: Yes, those would be mandatory orders we are requesting. [3] THE COURT: Thank-you. II. SENTENCING A. Mandatory Minimum Sentencing [4] A jury convicted Adrian VanEindhoven of killing his common law spouse, Leanne Irkootee. To have reached this verdict, the jurynecessarily concluded that Mr.

VanEindhoven stabbed the deceased with a single stab wound to her heart and thereby committed second-degree murder. I am going to ask you to stand, Mr. VanEindhoven, for this part of it and then you can sit down, because I know you haveproblems with your leg, until I finish the judgment and then I’ll ask you to stand again at the end when I make the final pronouncement. [5] In passing sentence upon you for that murder, this Court is required by law to pass a sentence of life imprisonment.

Parliament hasclearly stated in s. 235 of the Criminal Code (the Code) that a court must impose a term of imprisonment for life as a minimum sentence.For the rest of your natural life, Mr. VanEindhoven, you will be subject to the processes of the Correctional Services of Canada and theNational Parole Board, whether you are in jail or out on parole. [6]

Section 745(

c) of the Code provides that you must serve a minimum of 10 years in jail before you become eligible for parole. ThisCourt is given the discretion to increase this period of parole ineligibility by s. 745.4 of the Code. There is, at present, no discretion givenby law to decrease this period of parole ineligibility below the 10-year threshold. [7] Setting this period of ineligibility for parole does not mean that you will be paroled after the period expires. Parole ineligibility doesnot operate like statutory remission where a sentence is reduced.

It simply entitles the offender to be considered for parole after thisperiod of time has elapsed. The National Parole Board will decide when and under what circumstances you will be released. The Boardwill only release you if they are satisfied that you do not present a significant risk to the community. [8] As noted in R v Shropshire (1995), (SCC), 4 SCR 227, 102 CCC (3d) 193 [Shropshire], the determination under s745.4 3 is part of the ordinary process of crafting a fit sentence. So you may be seated now. III.

DETERMINATION OF PAROLE INELIGIBILITY [9] In considering whether to increase the minimum 10-year period of parole ineligibility, the Court is directed by

section 745.4 of theCriminal Code to consider four factors. That

section states: [745.4] Subject to

section 745.5 at the time of the sentencing under

section 745 of an offender who is convicted of second degree murder,the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard tothe character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, ifany, made pursuant to

section 745.2, by order, substitute for ten years a number of 20 years of imprisonment (being more than ten butnot more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. [10] The Crown asked this Court to increase this period of parole ineligibility to fifteen years given the circumstances of this case.Counsel for the accused argued that the twelve years imposed in the previous trial was appropriate.

IV. FACTS [ 11 ] I am going to review some facts that were admitted. [ 12 ] Now, Mr. VanEindhoven accepted the following additional 4 facts. [ 13 ] He testified at trial that he had assaulted Leanne on April 22, 2004, the night before she died, including punching her in the face and biting her. [ 14 ] In addition to the assault on April 24, 2004, Mr. VanEindhoven was physically and emotionally abusive toward Leanne on other occasions when he had been drinking. These assaults included grabbing, punching and biting.

Assaults usually took place when the accused was drinking. [ 15 ] From time to time during Leanne’s relationship with Mr. VanEindhoven, her family and friends noticed injuries on her. These injuries usually consisted of bruises on her arms and face. On a number of occasions Leanne also showed her best friend, Mandy, bite marks that she said were made by the accused. The last time these injuries were seen was approximately one month prior to Leanne’s death. [ 16 ] Leanne ended her relationship with the accused numerous times. However, she would always return.

Over the course of the relationship, Leanne told Mandy that the accused would call her over and over and on occasion had threatened to kill himself if she left him or would not come back. [ 17 ] In March 2002, Leanne and Mandy went to Mr. VanEindhoven’s house to retrieve some of Leanne’s belongings. During this visit Mr. VanEindhoven cornered Leanne in the kitchen. He was clutching a knife in one hand and punching her with the other hand. He repeatedly stabbed the knife into the kitchen counter while punching Leanne. Mandy tried to intercede to stop the assault on Leanne. Mr.

VanEindhoven left Leanne and approached Mandy, stopping about one foot from her still clutching the knife. He then turned and returned to Leanne. Mandy fled and called the police for help. [ 18 ] The police arrived, arrested Mr. VanEindhoven and placed him in the rear of the police truck. When Mr. VanEindhoven saw Mandy and the deceased in the front of the truck he said, “I will kill you.” [ 19 ] Mr. VanEindhoven was charged, but the charges were dismissed when Leanne recanted and asked Mandy not to come to court. Leanne told Mandy she felt sorry for Mr.

VanEindhoven and had resumed living with him. [ 20 ] On September 8, 2003, Mr. VanEindhoven punched Leanne in the face and hit her head on the floor causing her to have a bloody nose, black eye and bruising to the back of her head as shown in the photographs marked as Exhibit 2. [ 21 ] On October 7, Mr. VanEindhoven entered a guilty plea to assault and was referred to the Rankin Inlet Spousal Abuse Program. He was released on conditions that he have no contact with Leanne and to abstain from the consumption of alcohol. The order was in force at the time Leanne was killed and was marked as Exhibit 3. [ 22 ] Mr.

VanEindhoven has acknowledged that he has been violent towards other women in previous relationships and that the episodes of abuse always involved alcohol and physical assaults. V. SUBMISSIONS

A. Crown Arguments [23] Relying on Shropshire, the Crown argues that denunciation and future dangerousness are an integral part of the sentencing analysis. [24] In arguing for an increased period of parole ineligibility the Crown pointed to the following factors: (

a) The killing was the culmination of a savage beating; (

b) In committing this offence, the offender violated two offence-specific attributes deemed aggravating by Parliament as set out ins.718.2 of the Criminal Code, namely, a breach of trust and a crime of violence against a spouse; (

c) The need for a denunciatory sentence because of the epidemic of spousal violence in Nunavut; (

d) The offender has a history of threatening the victim with knives and making death threats; (

e) Lack of remorse; (

f) The offender was under a specific Court Order to stay away from the victim; (

g) The offender was cruel and controlling towards the victim; (h)The jury unanimously recommended the maximum parole ineligibility of 25 years. (i). Savage Beating [25] At trial the Court saw and heard about the horrifying scope of Leanne Irkootee’s injuries. No part of her body was unscathed andher face, ears, nose, mouth, head, neck, shoulders, back, arms, hands, legs and knees all bore signs of the accused’s assault. [26] The injuries in this case were particularly severe. Bites were deep enough that a forensic dentist could identify the accused as theperson who inflicted them. The pathologist, Dr.

Bannach, testified that the bruising present on the back of the victim’s head was the sortusually seen in car crashes and vehicle roll-overs. As noted in R v Cerra, 2004 BCCA 594, [2004] 15 BCJ No. 2453 (QL), a killingfollowing a prolonged beating raises the period of parole ineligibility. (ii). The Aggravating factors A.ii.1 Killing Spouse [27] Parliament has made it a statutory aggravating factor to assault or murder a spouse.

In the first trial of the accused and at para 25 ofR v Kringuk, 2012 NUCJ 20, 2012 NUCJ 20 , Kilpatrick J. expressed society’s abhorrence for the intentional killing of lovedones. [28] The Alberta Court of Appeal expressed similar comments in R v Martel, 2011 ABCA 225, [2011] AJ No 802 (QL), in allowing aCrown appeal and increasing the period of parole ineligibility from 12 to 15 years. In that case the prior spousal assault was dated,whereas, in the case at bar, the accused assaulted the deceased several times between March 2002 and the date of her death of April23rd, 2004.

A.ii.2 Spousal Violence in Nunavut [29] As noted at page 22 of the publication, Measuring violence against women: Statistical trends , domestic assault is perpetrated atepidemic levels in Nunavut. In 2011, 7772 assaults against women were reported per 100,000 residents in the territory. The comparablenational rate was 542 per 100,000, making the Nunavut rate fourteen times the national rate and the highest in the country.

[ 30 ] Nunavut also leads the country in homicide rates. In 2011, Nunavut had a rate of 21 homicides per 100,000, whereas the national average was 1.73 per 100,000. The Northwest Territories had the next highest rate, that was three times lower than Nunavut. [ 31 ] Nunavut also leads the country in domestic homicides per capita. Between 2001 and 2011, the victim’s spouse committed thirty- two percent of all homicides in Nunavut. These grim statistics require a deterrent sentence to deter this type of crime. A.ii.3 History of Threatening Violence with a Knife [ 32 ] As noted earlier, in March 2002, Mr.

VanEindhoven assaulted Leanne while holding a knife and threatening to kill her. A.ii.4 No Remorse for Breach of Trust [ 33 ] Mr. VanEindhoven’s continuing denial of responsibility for killing Leanne in the face of overwhelming evidence is also relevant to his dangerousness and the appropriate period of parole ineligibility. As held in R v Seyed-Fatemi, 2006 BCCA 310 , 228 BCAC 41 , this is not punishment for asserting one’s innocence, but a recognition that continuing to blame others for what is manifestly one’s own crime is relevant to assessing future dangerousness. [ 34 ] Mr.

VanEindhoven has shown no insight or acknowledgement of this pattern of behaviour. Despite having learned about the danger signs that his abuse was rising to extreme levels, he still chose to drink around Leanne, and, predictably, to assault and kill her. He is a danger to any woman who crosses him in the future and this is a key consideration in assessing the period of parole ineligibility in this case. A.ii.5 The Breach of Court Order Prohibiting Contact [ 35 ] The most aggravating fact in this case is that Mr. VanEindhoven killed Leanne while barred by a Court Order to have no contact with her.

If a court does not impose significant sanctions for this type of conduct, all women in small, isolated communities in Nunavut will lose any sense of safety. In R v Purdy, 2012 BCCA 272 , 291 CCC (3d) 309 , the British Columbia Court of Appeal upheld the 19 years of ineligibility for parole imposed by the trial judge to emphasize the seriousness of committing crimes against a spouse when under a no-contact order. A.ii.6 Cruel and Controlling Behaviour Towards the Victim [ 36 ] Twice in the course of his testimony, Mr. VanEindhoven revealed disturbing aspects of his character and mental makeup.

After assaulting Leanne he admitted twice that he ordered her to clean herself up. This treatment of the deceased was cruel and speaks to his character and his attitude towards intimate partners. [ 37 ] This behaviour suggests a callous disregard for another human being who was his soul mate and demonstrates a deeper pathology of self-absorption and cruelty that makes him more likely to harm women in the future.

A.ii.7 Jury Recommendation [ 38 ] As noted R v Van Osselaer, 2004 BCCA 3 , 181 CCC (3d) 322 , the reason a jury recommendation is sought is because it gives insight into the perception of the offence and communicates their view about the relative seriousness of the murder. [ 39 ] In this case the jury took the exceptional step of recommending that Mr. VanEindhoven receive the maximum period of 25 years of parole ineligibility. This recommendation suggests that the jury found Mr. VanEindhoven to be callous, lacking in insight, and dangerous to others.

As the eyes of the community, the jury saw little prospect for rehabilitation and wished to express the community’s

denunciation of spousal violence and breach of court orders. The jury also demonstrated that they rejected the argument that intoxicationhad any effect on the moral culpability of Mr. VanEindhoven. (iii). Mitigating Factors A.iii.1 Time Served [40] Mr. VanEindhoven has spent further time in remand since his appeal was allowed and this may be considered to be a mitigatingfactor. A.iii.2 Offender’s Aboriginal Status [41] At Mr.

VanEindhoven’s first sentencing, the trial judge relied heavily on R v Gladue, (SCC), [1999] 1 SCR 688,133 CCC (3d) 385 [Gladue], and the factors from Gladue to limit parole ineligibility to twelve years. [42] Three factors suggest this court should reach a different conclusion. First, he did not take advantage of the Rankin Inlet SpousalAbuse Program and instead breached a court order and killed Leanne. The only reason he was in a position to assault and abuse Leannein April 2004 was because he had the benefit of a diversion program to address the unique problems of aboriginals.

Otherwise, he mighthave been incarcerated for the previous brutal assault. It is respectfully submitted that the trial judge at the first trial erred inoveremphasizing the need to mitigate the sentence by virtue of Mr. VanEindhoven’s aboriginality. [43] Second, the trial judge in the first trial did not have the benefit of hearing Mr. VanEindhoven’s most recent evidence thatdemonstrated his callous cruelty towards her. [44] Third, many years have passed since the first sentencing when Nunavut was a young territory.

It has now matured into ajurisdiction with the highest rate of spousal murder in Canada, and at the end of the second trial, the community spoke with a resoundingvoice through the jury’s recommendation that Mr. VanEindhoven be ineligible for parole for 25 years.

The jury’s recommendationamounts to a most serious denunciation of the offence and emphasis on punishment for the offender and protection of the community. [45] In Gladue and in R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], the Supreme Court of Canada recognized that a courtshould take judicial notice of the systemic or background factors that are relevant for aboriginal offenders. However, the Supreme Courtalso recognized that these principles of restraint also have limits and that limit was reached in this case. (iv).

Sentencing Precedents [46] The Crown relied on the following cases to assist this Court in arriving at the proper term of parole ineligibility. (

a) R v Martel, 2011 ABCA 225, 510 AR 191 - in that case the Alberta Court of Appeal increased the period of ineligibility from 12years to 15 years of a man who stabbed his wife to death with a knife. (

b) R v Czibulka, 2011 ONCA 82, 267 CCC (3d) 276 - Ontario Court of Appeal upheld the trial judge’s imposition of 15 years and hisstatement that the range for beating a wife to death was 12 to 17 years. (c) [R v Wristen], (ON CA), [1999] OJ No 4589,127 OAC 314 - the Court refused leave to appeal; [2000] SCCA No419,143 OAC 398 - the Ontario Court of Appeal upheld 17 years of ineligibility imposed by the trial 4 judge. (

d) R v Hindessa, [2009] 95 WCB (2d) 436, (ON SC) - affirmed on other grounds; [2011] ONCA 477, [2011] OJ No2881 - the trial judge imposed an 18-year period of parole ineligibility. (

e) R v Cerra, 2004 BCCA 594 , [2004] BCJ No 2453, 192 CCC (3d) 78 - Trial judge imposed 20 years of parole ineligibilitybecause the killing was part of a savage attack.

[ 47 ] In conclusion, the Crown submits that, but for the extended time that Mr. VanEindhoven has spent in remand, and the Crown’s position at the first trial, the period of ineligibility should be set at a lower level. However, in light of these factors, it submits that 15 years is the appropriate period. B. Defence Arguments (i). Jury Recommendation [ 48 ] Defence counsel argues that the jury recommendation should be given very little weight because the jury either misunderstood what was required of them when

section 745.2 was read to them or they chose to ignore it. Instead of specifying a number of years of parole ineligibility, the jury foreperson reported that the jury recommended no parole. (ii). Personal Circumstances of the Offender [ 49 ] Mr. VanEindhoven is the fourth of eight children born to his Inuit mother and Dutch father. Although he had a generally positive upbringing, he was sheltered somewhat by his older siblings. His family moved around and he spent time in Churchill, Winnipeg and Rankin Inlet. His first language is English and he was a teenager when his parents split up.

His father and elder siblings then raised him until he left home. During this time he saw his mother two to three times a year. [ 50 ] Although Mr. VanEindhoven did not attend residential school, his mother did and it had a significant impact on her life and her parenting skills. She was diagnosed with tuberculosis when he was seven years old and spent one and a half years away from home in hospital. Sadly, his mother descended into alcoholism and it had a significant impact on Mr. VanEindhoven who also developed the disease.

His siblings are scattered among different communities in the north and south and he keeps in contact with some of them. He considers himself to be an Inuk and has learned from his mistakes. He hopes to work with young people to help them avoid the mistakes he made. [ 51 ] Mr. VanEindhoven is a person who showed a lot of promise when he was 18 years old. He set up and ran a drywall business that had hundreds of thousands of dollars of business and four employees. Unfortunately, about three years later he was the victim of a gunshot accident that changed his life.

He underwent numerous operations, 6 including skin grafts and was left with permanent nerve damage that has caused him to experience chronic pain ever since. He regularly takes medication to relieve the pain and developed an alcohol addiction in trying to relieve the pain he experienced. [ 52 ] Mr. VanEindhoven has spent 114 months in jail since his first sentencing in January 2007 with 52 of those months spent in remand. He had never been in jail before his first conviction and because of the rules of Correctional Services Canada he was required to spend two years at the maximum security Kingston Penitentiary.

That notoriously difficult institution was very hard on him. While in that jail he was diagnosed with post-traumatic stress disorder and did well enough in treatment to be transferred to the Fenbrook Institution where he had access to some Inuit programming. During his time at Fenbrook he completed a four-month substance abuse program and a course in ending violence in relationships. He has also completed Alternatives to Violence at the Baffin Correctional Centre. [ 53 ] Mr. VanEindhoven acknowledges that he is an alcoholic and he has regularly attended Alcoholics Anonymous (AA) meetings while incarcerated.

He has sincere hopes to help Inuit elders when he is ultimately released from jail. [ 54 ] Mr. VanEindhoven understands the anger and sorrow experienced by Leanne’s family and has experienced genuine grief and remorse over her death. (iii). Legal Issues [ 55 ] Defence counsel acknowledges that a judge has a large discretion in determining the appropriate period of ineligibility for parole. However, the ineligibility will not solve the problem of spousal violence in Nunavut. As stated by Kilpatrick J. in the first sentencing,

and adopted by this Court in R v Jeffrey, [2007] NUCJ No 12, 74 WCB (2d) 478 [Jeffrey], there is a dearth of resources in this territoryfor Inuit who are released on parole. There are also difficulties with assessing treatment resources in Nunavut and as a result it delayseligibility for parole and determines that it should be used with restraint. [56] Relying on R v Churchill, 1982 ABCA 93, [1982] AJ No 834 [Churchill], Defence counsel argued that Mr. VanEindhoven shouldnot be penalized because he was successful in his appeal.

The Crown did not appeal the sentence imposed by Kilpatrick J. and there isnothing to suggest that the sentence he imposed was unfit. The Crown alleges no errors in his sentencing reasoning.

The Alberta Court ofAppeal noted that to impose a substantially longer sentence after a trial on substantially the same evidence, “would lead to a burning andjustified sense of grievance in this accused”. [57] Similar comments were made by the Ontario Court of Appeal in R v B(L), (ON CA), [1997] OJ No 3042, 116CCC (3d) 481 [RBL], and the Manitoba Court of Appeal in R v W (RS), (MB CA), [1992] MJ No 324 (QL), 74 CCC(3d) 1 [WRS], specifically approved of the comment in Churchill. [58] Taking into account that Mr.

VanEindhoven has spent 4.5 years in remand, Defence counsel submitted that the previous period ofineligibility of 12 years was appropriate. C. Analysis (i). Jury Recommendation [59] When the foreperson of the jury announced that the jury recommended no parole, I clarified that he meant that the jury wasrecommending 25 years of parole ineligibility. I am satisfied that the jury recommendation is relevant and has some weight in expressingthe community’s revulsion to the kind of spousal violence that came out in the evidence in this trial. (ii).

Defence Authorities [60] In Churchill, the accused was convicted of a charge of rape in a second trial and appealed his sentence of six years imprisonment. Inhis first trial he was also convicted and received a sentence of three years in jail, taking into account nine months of pre-trial custody.While awaiting his appeal, the accused served an additional six months in jail. The accused’s appeal was successful and he was releasedon judicial interim release pending his new trial and did not re-offend.

A jury convicted him for a second time and the trial judgeimposed a sentence of six years imprisonment. [61] Although the trial proceeded on substantially the same evidence, the trial judge was not apprised of the fact that the previoussentence imposed was of three years duration. The trial judge also ignored the six months the accused spent in custody while waiting forhis appeal to be heard. In allowing the appeal, McClung J. stated: It would not be appropriate - and this is conceded by Mr. Watson for the Crown - to ratify Churchill’s present sentence.

It would onlylead to a burning and justified sense of grievance in this accused. Accordingly, taking the whole history of this prosecution into account,we grant leave to appeal and reduce Churchill’s sentence to one of two and one-half years in lieu of that imposed following his retrial. Aweapons prohibition of five years will also issue pursuant to the relevant statutory provision. [62] In WRS the accused successfully appealed against his convictions for sexual assault and was sentenced to double the term ofimprisonment imposed in the first trial. In allowing the appeal, Twaddle J.

A. reviewed the authorities including Churchill and stated: It therefore seems to me that, where a person has been convicted of an offence a second time after a retrial, the sentencing judge shouldfirst consider the fitness of the original sentence. If he considers it to have been fit, he might re-impose it, subject to an allowance for anyadditional time the accused may have spent in custody after his first sentence.

If, on the other hand, the judge does not accept the fitnessof the original sentence, either because it was inordinately low or because new facts have emerged, he may impose a longer sentence.But, where no new facts have emerged, he should avoid imposing a sentence which is so much longer than the first as to cause theaverage person standing at The Forks to think that the accused was penalized for his successful appeal.

[63] In RBL, the accused was convicted of sexual assault based on the evidence of prior discreditable conduct. The appeals fromconviction were dismissed and the accused was sentenced to four years imprisonment. At the retrial the accused was sentenced to sixyears imprisonment. He appealed arguing he was being punished for the prior conduct.

In denying the appeal, the court considered WRSand agreed with the principles discussed, but concluded that there were additional facts in the second trial that suggested thatrehabilitation was not a consideration and justified the higher sentence. [64] In WRS, Twaddle J. mentioned R v Stolar (an unreported case) where these principles were applied to parole ineligibility. In thatcase the accused had been sentenced following his conviction for second-degree murder to life imprisonment without eligibility forparole for 15 years. He successfully appealed his conviction and was tried a second time and convicted.

After the conviction he wassentenced to a period of ineligibility of 20 years. The accused appealed the second sentence and it was dismissed. In delivering thejudgment of the court, Philp J. noted that the evidence of aggravating circumstances, not led at the first trial, had been led at the second.Under these circumstances he could not say that the sentence was not a fit one. [65] Applying the WRS principles to this case, I reject the Defence argument that failure of the Crown to appeal means that the sentenceimposed by Kilpatrick J. in the first trial was a fit and proper sentence.

As Twaddle J. stated in WRS: As to the fitness of the original sentence, I do not think the mere absence of a Crown appeal makes it fit. Crown counsel are sometimespressured by too much work to permit them to review every sentence and, besides, this Court has not encouraged Crown sentenceappeals which do not involve questions of principle. [66] I am satisfied that I must carefully review the sentencing judgment of Kilpatrick J. and be satisfied that under all of thecircumstances it was a fit and proper sentence.

I must then look at any new evidence in the second trial to justify an increase in the paroleineligibility. [67] The evidence in the second trial was more compressed than the first trial because no propensity evidence was called. However, therest of the evidence was substantially the same as the first trial. [68] The evidence of controlling behaviour contained at p 11 of the Crown’s written submissions was not before Kilpatrick J, and nordid he have the specific information about the prior threat and brandishing of the knife towards the deceased.

However, he was fullyaware of the brutality of the murder and the need for a denunciatory sentence when he stated at para 51 of R v VanEindhoven, 2007NUCJ 2 , 2007 NUCJ 02, [2007] Nu J No 2 [VanEindhoven]: This Court is satisfied that the overall circumstances of the offence itself, and the events leading up to it, are all sufficiently aggravatingto enhance the need for denunciation in this case. I take into account the type of force used, the intensity of violence and its duration, aswell as the significant physical and emotional injuries that could be reasonably expected to result from this conduct.

In doing so, I alsotake into account the fact that the offender did seek help for the deceased immediately following the stabbing. [69] Kilpatrick J. was also well aware of the prevalence of domestic violence in Nunavut and the need to emphasize general deterrence.He stated at paragraph 60: I am satisfied that there is an emphatic need to denounce spousal homicides in this jurisdiction as part of the sentencing process in thiscase. Given the prevalence of domestic violence in this territory, there is also a fundamental need to get the message out to allNunavummiut in a sentence that emphasizes general deterrence.

Spousal violence is morally wrong. It is legally wrong. It will not betolerated by this Court. [70] I am satisfied that Kilpatrick J. properly addressed Gladue and Ippelee in setting 12 years of parole ineligibility. He was also fullyaware of Mr. VanEindhoven’s abuse of the spousal abuse program. [71] Finally, the passage of time has not changed the continuing problem of spousal violence in Nunavut. However, I believe it issimplistic to suggest that an increase of three years in parole ineligibility will have an impact on this problem.

To some extent theNunavut statistics are distorted because the larger populations in the south of the large provinces and Newfoundland dilute the statistics

of the predominately aboriginal populations of the northern parts. If only the northern parts were used, I suspect the statistics would be similar to Nunavut. [ 72 ] However, what is really behind the lack of progress is the continuing lack of resources available in Nunavut to address the mountain of untreated trauma that comes before this Court with sickening regularity. Despite numerous pleas by this Court and promises by the Government of Nunavut, there are still no Nunavut-based treatment centers. Until this problem is addressed, there will be little change in these grim statistics.

As Charlotte Borg, President of the Qulliit Nunavut Status of Women Council told News of the North as reported in the December 2nd edition: Borg added that long standing trauma in Nunavut, spurred by repeated waves of colonialism and residential schools, as reasons why violence is so prevalent in homes. ‘There are cascading waves of trauma.’ When faced with trauma, the human instinct is to either fight, flight or freeze. Flight leads to addiction, fight leads to violence and freeze leads to depression. (iii).

The Crown Authorities [ 73 ] The aggravating factors described by the Crown and the jurisprudence provided to the Court might support the imposition of parole ineligibility in excess of 15 years in the future. In R v Jeffry, [2007] Nu J No 12 , 74 WCB (2d) 478 , I included a table of cases on parole ineligibility for second-degree murder.

The longest period of parole ineligibility imposed was 15 years in the Northwest Territories case of R v Bouchet, 2006 YKSC 53 , 71 WCB (2d) 696 . [ 74 ] However, this is not the case and I am persuaded by the reasoning of WRS that I must defer to the very thorough analysis of Kilpatrick J. in the first trial. [ 75 ] The only significant difference from the first trial is the jury’s recommendation. (iv). Character of the Accused [ 76 ] I adopt Kilpatrick J’s analysis in the first trial [supra, para 69]. The only significant difference from the first trial is the jury’s recommendation.

I adopt Kilpatrick J.’s analysis on the accused’s character and also believe he has good potential for rehabilitation. Mr. VanEindhoven continues to suffer chronic pain from the gunshot wound he suffered in his twenties. It was a significant factor in his descent into alcohol and drug addiction. There was also some evidence before Kilpatrick J. that the accused showed some resistance towards addressing his issues and failed to complete many programs at Fenbrook. However, it appears that this attitude has changed, as evidenced by his successful completion of the four-month substance abuse course in 2011.

He has also been active in Alcoholics Anonymous. He will have to work hard to remain sober when he is released. Hopefully, he will receive help in addressing his pain management and anger issues. [ 77 ] I am satisfied that Mr. VanEindhoven is remorseful over what happened to Leanne Irkootee and that he grieved at her loss. He has insight in the suffering he caused her family. (v). Victim Impact [ 78 ] I have read the victim impact statements and they reflect much of the same feelings noted by Kilpatrick J. in the first trial [supra, para 69].

I can do no better than to repeat his words: Leanne Irkootee is now gone. She leaves behind a grieving family; a family who will likely be tormented by their memories of Leanne for the rest of their lives. Much emotion is generated by this. Feelings of sadness, emptiness, and despair will haunt this family for years to come. The empty chair at every family meeting will always remind Leanne’s loved ones of just who is missing and why. This pain is

real. The grief will cut like a knife. It will potentially last for a lifetime. To the family of the deceased, I can only say this. The sentence that I impose today is not a reflection upon the value of the life that has been lost or the value of human life generally. Leanne’s death was an unnecessary tragedy. As a family, as a community, as a people we are all diminished when a life is taken from us prematurely. This Court and this community can do nothing to restore the life that has fled. Nothing that this Court can say or do can possibly compensate Leanne’s family for what they have lost.

Their sadness is understandable. The Court is powerless to ease their grief. Only time can do that. VI. CONCLUSION [ 79 ] Taking into account the jury recommendation, I am satisfied that an additional year of parole ineligibility is the appropriate sentence. [ 80 ] I have sentenced you to a term of imprisonment for life. I fix the period of your parole ineligibility to start 13 years from the time when you were first taken into custody on April the 23rd, 2004. [ 81 ] There will be a DNA order and a firearms prohibition order for 20 years, pursuant to s. 109 of the Criminal Code .

Any firearms, ammunition or explosive substance now in your possession or any accompanying firearms acquisition certificate or license must be surrendered to the RCMP immediately. Any such items surrendered will be forfeited to the Attorney General of Canada for such disposition as he may direct. There will be an order for the destruction of exhibits following the expiry of any relevant appeal period. [ 82 ] I hope you are able to continue to work on your issues and that you will be able to rejoin the Nunavut community and contribute something to make up for what you have done.

Dated at the City of Iqaluit this 9th day of December, 2013 ___________________ Justice E. Johnson Nunavut Court of Justice