Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Kowtak, 2019 NUCJ 03

Date: 20190308
Docket: 18-17-74-I
Registry: Iqaluit

Crown (Respondent): Her Majesty the Queen

-and-

Accused (Appellant): Verna Kowtak

________________________________________________________________________

Before: The Honourable Madam Justice Susan Charlesworth

Counsel (Crown): Roman Dzioba

Counsel (Accused): Will McNair

Location Heard: Iqaluit, Nunavut

Date Heard: January 14, 2019
Matters: Sentence appeal. Appeal allowed. The Justice of the Peace
erred in his consideration of Gladue.

REASONS FOR JUDGMENT

(Delivered Orally)

(NOTE: This document may have been edited for publication)

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I. OVERVIEW

[1] Verna Kowtak appeals the sentence rendered by a Rankin Inlet

community Justice of the Peace on September 11, 2017. Ms. Kowtak
pleaded guilty to an assault upon her 15-year-old daughter, Nadia,
contrary to s. 266 of the Criminal Code, RSC 1985, c C-46 [Criminal
Code] and received a suspended sentence, nine months’ probation,
and a $100.00 victim fine surcharge.

II. GROUNDS FOR APPEAL ALLEGED

[2] The appellant has alleged three grounds for appeal:

1. The sentencing Justice of the Peace made an error in law by

refusing to consider Gladue when sentencing an Inuk,
2. The sentencing Justice of the Peace engaged in
impermissible speculation about the appellant’s personal
characteristics, and
3. The sentencing Justice of the Peace deferred to the Crown
position as presumptively reasonable.

III. FACTS

[3] The facts of the offence, to which the appellant agreed, are that on or
about February 15, 2017, the appellant was at home, intoxicated, and
arguing with her spouse, when Nadia told the appellant to stop being
rude to her dad, the appellant’s husband. The appellant then swung
with a closed fist, punching Nadia multiple times. The assault ended
when Nadia left the room; there was no information about any
physical injury caused to Nadia.

IV. LAW

[4] The Criminal Code sets out the power of a court on a sentence
appeal:

s. 687(1): Where an appeal is taken against sentence, the court of

appeal shall, unless the sentence is one fixed by law, consider the
fitness of the sentence appealed against, and …
(a) vary the sentence within the limits prescribed by law for the
offence of which the accused was convicted; or
(b) dismiss the appeal.
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[5] Section 822 provides that s. 687 applies to summary conviction

appeals.

[6] Section 718.2(e) directs a court on sentencing Indigenous offenders:

718.2 A court that imposes a sentence shall also take into

consideration the following principles: …
(e) all available sanctions, other than imprisonment, that are
reasonable in the circumstances and consistent with the harm
done to victims or to the community should be considered for all
offenders, with particular attention to the circumstances of
Aboriginal offenders. [emphasis added]

V. POSITIONS OF THE PARTIES

A. The Appellant Defendant

[7] The appellant submits that, by failing to consider R v Gladue, [1999] 1

SCR 688, [1999] SCJ No 19 [Gladue], making impermissible
statements about the accused, and by deferring to the Crown’s
position as presumptively reasonable, the Justice of the Peace erred,
offending the principle of proportionality, rendering the sentence unfit.

[8] The failure to consider and apply Gladue is an error in law because
“the justice abrogated his statutory duty,” rendering the sanction not
just, and outside of the fundamental principle of proportionality.

[9] The appellant also argues that by declaring “…just because there is
no criminal record does not necessarily mean it has never happened
before…” with regards to the appellant’s lack of criminal record, the
sentencing Justice of the Peace “engaged in impermissible conjecture
and speculation to neutralize a positive feature of Ms. [Kowtak’s]
background.” The appellant argues that is an error in principle.

[10] The appellant’s third ground of appeal is that the Crown’s position is
not presumptively reasonable. In R v Nur, 2015 SCC 15, [2015] 1
SCR 773, the Court held that the Crown’s position is adversarial to
the accused’s. The appellant argues that the role of the sentencing
judge ought not to be conflated with the role of the Crown. By
conflating his role with that of the Crown, the sentencing Justice of the
Peace tacitly delegated his judicial responsibility to craft a fair and
proportionate sentence, to the Crown.
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B. The Respondent Crown

[11] The respondent submits that the sentencing Justice of the Peace
made no error in law, or, should there be an error in law, that the
sentence imposed is nonetheless fit.

[12] The Crown argues that cases of domestic violence have deterrence
and denunciation at the forefront of sentencing. The Crown argues
that the Justice of the Peace used his life experience as a member of
the community to inform his understanding of Gladue factors.
Additionally, the Crown pointed out that Defence Counsel did not
detail the impact that Gladue factors had on the behaviour of the
appellant. Therefore, the Justice of the Peace did not make an error in
law or principle in his application of Gladue.

[13] The Crown submits that the sentence is fit because it conforms with s.
718.2(e) and is comparable to the suspended sentence given in R v
Ganesan, 2017 NUCA 7 (CanLII).

[14] With regards to the second alleged ground of appeal, the Crown
submits that there is no evidence on the transcript which indicates
that the sentencing Justice of the Peace’s reasoning was impacted by
his speculations regarding the appellant’s other possible offences.

[15] Crown addresses the third alleged ground of appeal by submitting

that the sentencing Justice of the Peace “critically analysed the
position of both the Crown and the Appellant and came to a fit
sentence in the circumstances.”

[16] In the alternative, the Crown argues that the sentence is fit in the
circumstances and ought not to be tinkered with by an appeal court.
The suspended sentence is within the reasonable range of sentences
for the offence committed. Citing Ganesan, the Crown argues that a
sentencing judge’s discretion not to impose a conditional discharge
“should be given a high degree of deference.”

[17] The Crown also submits that the assault is domestic in its nature,
meaning that deterrence ought to be paramount when sentencing.
Additionally, the Crown argues that abuse of children is an
aggravating factor pursuant to Criminal Code s. 718.2(a)(ii.1).
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VI. ANALYSIS

[18] The Crown correctly points out that the sentence imposed is within
the usual sentences for this sort of case, and is not unfit in that sense.
The Crown argues that therefore appellate intervention is not
required, regardless of the reasoning the Justice of the Peace used to
arrive at that sentence. I disagree. In R v Lacasse, 2015 SCC 64 at
para 11, [2015] 3 SCR 1089 [Lacasse], Wagner J., (as he then was),
wrote: “ultimately, except where a sentencing judge makes an error of
law or an error in principle that has an impact on the sentence, an
appellate court may not vary the sentence unless it is demonstrably
unfit”.

[19] In my view, the Justice of the Peace erred in law in his consideration
of s. 718.2(e) of the Criminal Code, and erred in principle by using
impermissible reasoning, and by affording undue deference to the
Crown’s position.

A. Failure to Consider and Apply Gladue

[20] The Supreme Court of Canada has interpreted s. 718.2(e) in several

cases, the first of which was Gladue. Thus, the “circumstances of
Aboriginal offenders” are often referred to as Gladue factors, as they
were in this case.

[21] The Supreme Court of Canada reaffirmed and clarified Gladue in R v

Ipeelee, 2012 SCC 13, [2012] 1 SCR 433. LeBel J., writing for the
Court said:

The sentencing judge has a statutory duty, imposed by s. 718.2(e) of

the Criminal Code, to consider the unique circumstances of
Aboriginal offenders. Failure to apply Gladue in any case involving
an Aboriginal offender runs afoul of this statutory obligation. As
these reasons have explained, such a failure would also result in a
sentence that was not fit and was not consistent with the fundamental
principle of proportionality. Therefore, application of the Gladue
principles is required in every case involving an Aboriginal offender,
including breach of an LTSO, and a failure to do so constitutes an
error justifying appellate intervention. (at para 87) [Emphasis added].

[22] The Nunavut Court of Appeal stated in R v Oakoak, 2011 NUCA 4 at

para 19, 510 AR 379, that in order “[t]o properly engage in this
analysis, sentencing judges require information about the offender,
his or her background, and the community. The Supreme Court
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recognized that judges could take judicial notice of the broad systemic
and background factors affecting aboriginal people, and of the priority
given in aboriginal cultures to a restorative approach to sentencing.”

[23] In his reasons for sentence regarding the Gladue factors raised by the
Defence – overcrowding and being a victim of prior abuse – the
Justice of the Peace said:

In bringing up the issue of Gladue, especially when it comes around

the issues of family violence, abuse, I can’t help but feel that that’s
kind of – that really troubles me. … [I]t seems to me that that is saying
this particular demographic that has been identified by that phrase of
abuse is fine within that demographic as long as they keep it there, and
to me that’s highly disturbing. I do not buy into that. … The fact that
somebody has been abused does not give them the right to be an
abuser under any circumstances. … So although there are many
circumstances under which that principle is a valuable principle and
maybe in terms of a lot of civil matters and certain criminal matters
family violence hardly seems to be one of them in my view.

[24] It is often blithely said that all Nunavut courts are “Gladue courts,” but
it is often true and must always be kept in mind when the accused is
Indigenous. To disregard overcrowding and domestic violence as
Gladue factors ignores the reality of many Nunavummiut. Every
community in which the court sits is a recent construct imposed on
Inuit by the Government of Canada within the last century, and often
much more recently. An essentially nomadic people were forced to
adapt to a wage economy within static communities of non-related
people. This alone has caused much stress and trauma. Gladue is
engaged without even considering the additional trauma caused by
removals for Residential Schools and TB treatment, and the presence
of alcohol, among other individual circumstances.

[25] Defence Counsel advised the Justice of the Peace about the extreme
overcrowding experienced by the family of this accused: eleven
people residing in a two-bedroom home. This is a circumstance that
many people in Nunavut suffer from, and is part of the relocation just
mentioned. It is an important circumstance of this Inuk offender. The
response to this information by the Justice of the Peace was to say
that, “overcrowding in itself does not excuse abuse and violence
within the house.”

[26] As well, the Justice of the Peace was advised that this offender had in
the past been a victim of domestic violence herself – in fact her
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spouse had received a very lengthy sentence for abusing her. The
response of the Justice of the Peace to this information was to say
that, “[t]he fact that somebody has been abused does not give them
the right to be an abuser under any circumstances.”

[27] Finally, later in his decision the Justice of the Peace referred to
“mercy” in the sentencing process. The Justice of the Peace stated,
“[w]hen it comes to mercy, … the one place for mercy to have
happened would have been when the argument was happening in the
family … a little bit of mercy there would have been really good, but,
no, we don’t have any evidence in court that that happened.”

[28] This offender did not raise the Gladue factors to excuse her behaviour
– she did, of course, plead guilty to the offence. The factors give
context to the offender’s situation and the Justice of the Peace is
required by s. 718.2(e) to consider them in deciding whether restraint
(otherwise known as mercy) should be used in crafting an appropriate
sentence. The fact that he decided he would not consider them
because this was a case of family violence was an error in law.

[29] Errors in law justify appellate intervention. Unlike errors in principle,

an error in law does not need to have impacted the sentence in order
to justify appellate intervention. For the reasons set out below, a
conditional discharge would be a fit sentence for the appellant.

B. Alleged Impermissible Speculation

[30] The second ground of appeal alleged is the sentencing Justice of the
Peace’s “impermissible speculation” about the accused’s lack of
previous criminal record.

[31] The Justice of the Peace responded to the statement that the offender
had no criminal record by saying, “[a] person who is capable of doing
that [unreasonable violence] … just because there is no criminal
record does not necessarily mean it has never happened before; but
there is nothing before the court to say that it has. That is all that
means, is there is nothing before the court. But we have this – we
have this situation.”

[32] The process of inference drawing was described by Doherty JA. in R

v Morrissey, 22 OR (3d) 514 at p 209, 97 CCC (3d) 193 (ONCA)
(CanLII) as follows:
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A trier of fact may draw factual inferences from the evidence. The
inferences must, however, be ones which can be reasonably and
logically drawn from a fact or group of facts established by the
evidence. An inference which does not flow logically and reasonably
from established facts cannot be made and is condemned as conjecture
and speculation. As Chipman J.A. put it in R. v. White (1994), 89
C.C.C. (3d) 336 at p. 351, 28 C.R. (4th) 160, 3 M.V.R. (3d)
283 (N.S.C.A.):
These cases establish that there is a distinction between
conjecture and speculation on the one hand and rational
conclusions from the whole of the evidence on the other.

There was no evidence properly before the Justice of the Peace

which would permit the suggestion that the appellant had committed
an assault before.

[33] The respondent Crown argues that the final two sentences quoted
above show that the Justice of the Peace put the idea he raised about
whether the offender had been violent before out of his head. I am not
convinced that that is the correct interpretation of those remarks. They
could also be read to mean the “situation” the Justice of the Peace is
dealing with is one in which he believes that just because there is no
record does not mean “it has never happened before.“

[34] This was an error in principle which significantly neutralized an

important mitigating factor for the appellant.

C. The Presumptive Reasonableness of the Crown’s Position

[35] The final ground of appeal alleges that the sentencing Justice of the
Peace incorrectly relied on the Crown’s position. In particular, the
appellant objects to the following reasoning:

[t]he crown has looked at this and they have thought that a suspended
sentence is a reasonable disposition to this with some probation. I am
sure they haven’t done that in a vacuum because they have the RCMP
that they rely on … I don’t know whether we find that the crown [sic]
is in the habit of making unreasonable requests for sentences … I have
to take that seriously.

[36] Certainly, the Justice of the Peace should take the recommendation
of the Crown seriously, but in this case he accepted it without
considering the Defence recommendation, as though the Defence bar
is in the habit of making unreasonable requests. Any official deciding
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on an appropriate sentence must hear and consider both positions

before arriving at a decision on sentence. Here, there was no
consideration of whether a conditional discharge would be
appropriate, and this impacted the sentence.

VII. THE ROLE AND VALUE OF COMMUNITY JUSTICES OF THE

PEACE

[37] Community Justices of the Peace have very a difficult job to do for
two reasons. First, they are expected to sit in judgment of their fellow
community members, and second, they do not have the same legal
training as Nunavut Court of Justice judges. I can appreciate that our
Nunavut community Justices of the Peace have a unique and real
perspective on both the frequency and severity of certain crimes in
their community. And in particular, when it comes to domestic assault
these same Justices of the Peace have a first-hand view of the effect
such a crime has on family life and the rearing of children. The Court
values their experience in and knowledge of their communities, but
they are required to set aside any individual-specific knowledge,
suspicions, or innuendo when dealing with cases. That seems
contradictory, but it is the nature of the judicial role: to make a fair and
just decision based on the specific information before them, according
to the principles set out in the Criminal Code.

VIII. FIT SENTENCE

[38] The result of these statements by the Justice of the Peace, certainly
cumulatively if not individually, is that the Justice of the Peace made a
significant error in law as well as errors in principle that affected the
sentence in this case. It becomes my job to determine the appropriate
sentence.

[39] The appellant pleaded guilty to an impulsive assault on her daughter

in the context of an argument with her spouse.

A. The Circumstances of the Offender

[40] The appellant is the mother of seven children ranging in age from 19
to nine, and has one grandson, all of whom were living with her and
her spouse in a two-bedroom house in the community of Rankin Inlet.
Although she only has a Grade VII education, she had recently been
employed as an elder’s caretaker for three years through the
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Government of Nunavut. Before that, she worked as an announcer at

the community radio station.

B. Applicable Sentencing Principles

[41] The purposes of sentencing are set out in s. 718 – denouncement,

deterrence, separation where necessary, rehabilitation, reparation,
and promoting a sense of responsibility. In this case, s. 718.01
mandates that primary consideration must be given to denunciation
and deterrence, although usually in cases of first time offenders those
purposes take a back seat to rehabilitation. The fundamental principle
set out in s. 718.1 is that the sentence must be proportionate to the
gravity of the offence and the degree of responsibility of the offender.

i. Aggravating Factors

[42] The charge of assault is statutorily aggravated under ss. 718.2(a)(ii.1)

and (iii) because it was committed on a person under the age of 18, to
whom the appellant was in a position of authority, as her mother.

ii. Mitigating Factors

[43] There are also mitigating factors:

 The appellant demonstrated significant remorse by pleading guilty at

an early opportunity, and in her statement to the Justice of the
Peace that she was “sorry of what I’ve done”;
 The appellant was 35 years old with no prior criminal record;
 The potential future employment of the appellant would be put at risk
upon receipt of a criminal record;
 The assault was of a relatively minor nature and caused no physical
injury;
 The Gladue factors of overcrowding and victimization discussed
above.

IX. DISPOSITION

[44] According to s. 730 of the Criminal Code, a discharge is available

when an accused pleads guilty to or is found guilty of an offence,
including assault, if the court considers it to be in the best interests of
the accused and not contrary to the public interest to make that order.
The significance of a discharge, either absolute or conditional, is that
the accused is not convicted of the offence. This means, while there
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is a record of receiving a discharge, held for one to three years, there

is no criminal conviction recorded for the offence.

[45] As in many cases, it is clear that a discharge would be in the

appellant’s interests. The question is whether it would be in the best
interests of the community to grant a discharge. I believe it is in the
best interests of the community of Rankin Inlet to see that a history of
employment and good behaviour is given substantial credit by the
court when there has been a guilty plea to a single, one-time breach
of the law.

[46] In all of the circumstances, this Inuk first offender should be given the
chance to show that this was an isolated incident from which she has
learned an important lesson, and also the opportunity to avoid a
criminal record which could affect her future employment to a
significant degree.

[47] I therefore allow this appeal and vary the suspended sentence to a
conditional discharge on the terms of probation ordered at first
instance. This sets aside the conviction entered at first instance, so
the appellant will not have a criminal record.

[48] The Justice of the Peace also applied the mandatory victim fine
surcharge. The victim fine surcharge is no longer payable. The
appellant’s appeal was heard after the Supreme Court of Canada
released R v Boudreault, 2018 SCC 58 (CanLII), which declared
victim fine surcharges unconstitutional with immediate effect,
therefore, she is eligible to and shall have the victim fine surcharge
removed from her sentence.

Dated at the City of Iqaluit this 8th day of March, 2019

___________________
Justice S. Charlesworth
Nunavut Court of Justice