Court Information

Ontario Court of Justice

Date: March 31, 2017

Court File No.: Ottawa 17-1869

Parties

Between:

Her Majesty the Queen

— AND —

Louisa Killiktee

Before the Court

Justice: Heather Perkins-McVey

Reasons for Judgment released on: March 31, 2017

Counsel

For the Crown: Mr. S. Schriek

For the Defendant, Louisa Killiktee: Mr. O. Abergel

Judgment

PERKINS-McVEY J.:

The Offence and Plea

[1] The accused pled guilty to one count of common assault, contrary to Section 266 of the Criminal Code. The Crown elected to proceed by indictment. The maximum sentence for this offence is therefore five years.

[2] The accused was in custody at OCDC on May 27 when this offence occurred. The assault was on a fellow inmate, Decla Petra. Ms. Petra did not file a Victim Impact Statement.

Facts of the Assault

[3] The victim was reading a book on her lower bunk when she smelled a foul smell which she believed was a "fart". She asked if anyone had farted and no one replied. Ms. Petra then asked the accused if it was her and to excuse herself and to go to the washroom in the future. Ms. Killiktee was insulted, jumped down from the top bunk above the victim. The accused struck her several times in the face causing Ms. Petra to fall onto the floor. The accused got on top of her and continued to hit her until other inmates and guards separated them. The incident is very brief and was caught entirely on video. This video is filed as Exhibit No. 1.

Crown's Position and Materials

[4] At the sentencing hearing the Crown filed a book of materials which consists of transcripts from guilty pleas of the various matters on the accused criminal record. A copy of the Gladue Presentence Report prepared September 27, 2011.

[5] At this hearing the Crown seeks a sentence of two years less a day, less her fifteen months of pre-sentence custody. A further period of probation is also sought. The Crown urges the Court to consider the accused criminal record which consists of numerous assaults of a similar nature. There is also an entry for Manslaughter arising from an assault on another woman outside a homeless shelter where the victim was repeatedly assaulted and kicked in the head. That victim eventually succumbed to her injuries. Most of the time when the accused has engaged in assaultive behaviour she has been highly intoxicated. She was not intoxicated however at the time of the offence involving Ms. Petra.

Defence Position

[6] The defence is seeking a lengthy period of Probation given the fifteen months of pre-sentence custody. Defence counsel reminds me of the application of Gladue principles and asks that the sentence focus on rehabilitation and the exercise of restraint as set out by Section 718.2(e) of the Criminal Code.

Background of the Accused

Personal and Family History

[7] The accused is thirty-three years old and is of Inuit background. She originally came from Cape Dorset. Many of her family continue to reside in Cape Dorset or other Nunavut communities. The accused's mother was enrolled in a residential school at Frobisher Bay. The accused has a Grade 8 education and has a limited employment skill set.

[8] As stated at page 8 of the Pre-Sentence Report ("PSR"): "Both the accused's parents are alcoholics and there were numerous conflicts between the parents, especially when they had been drinking." The accused father died from liver cancer when she was ten. His death is said to have caused her profound grief that continues somewhat unresolved and reportedly intertwined with a complex abuse and disturbing abuse history.

History of Abuse and Trauma

[9] From the age of eight, the accused was physically and sexually abused by different relatives. The PSR at page 8 states that Rick Mayoh, a Trauma and Addictions counsellor at Mamisarvik Healing Centre, has worked with the accused and indicated that the accused's victimization has severely traumatized her. It is reported that she has been in a constant state of depression and PTSD for many years.

[10] In addition, the accused was sexually assaulted by an older relative a number of times as a young child. The PSR states and in addition to the sexual victimization experienced during the abuse, she felt hurt and anger from not only being lured and ambushed by other relatives who failed to protect her and allowed her to be lured to the house where the abuse occurred. The accused has such has had serious problems trusting others.

Adulthood and Family

[11] When the accused left her mother's care at the age of seventeen, she became involved in abusive relationships and became addicted to drugs. The accused has two children who reside with their father under child protection supervision. The accused wants her children to know their Inuit heritage and as such they have attended the Ottawa Inuit Children's Centre.

[12] The accused has suffered further trauma as her brother committed suicide and she lost triplet babies in June of 2009.

Rehabilitation Efforts and Programming

[13] While in custody in the past and again during this period of custody, the accused has been working with Counsellor, Michelle Motiuk. Ms. Motiuk is trying to assist the accused in reconciling her past history and feeling of betrayal regarding her mother. In a letter filed as Exhibit No. 5 at this hearing, Ms. Motiuk confirms that she has continued to work with Ms. Killiktee and that the accused has attended all of the programs available to her such as Native Spirituality, Violence Against Women and Alcoholics Anonymous. Further, Ms. Killiktee has been involved with Álvaro González, a counsellor at Ivirtivik of the Inuit Centre in Montreal. A letter which confirms this is filed as Exhibit No. 6.

[14] The PSR highlights, at page 13, that the accused has realized that she will act out and behave in ways she would never consider when sober. The accused has been able to remain sober for periods of up to a year, prior to the birth of her first child. It has been challenging for the accused not to relapse however as most of her friends are drinkers. On a positive note, the accused does seem to understand the effect alcohol has and how it causes her to behave. There is a good network of culturally relevant rehabilitative interventions available to the accused if she chooses to do so.

Substance Abuse History

[15] The accused has a long history of substance abuse dating back to her early adolescence. She has attended the Mamisarvik Healing Centre to seek help for these addiction issues. The accused is said to use both drugs and alcohol in an attempt to hide the pain and escape painful memories.

Assessment and Recommendations

[16] The writer of the PSR describes the accused as: genuine and truthful in her attempts to convey her thoughts, emotions and level of remorse. It is said that she does not present as being in any way, manipulative or deceitful but that despite her best efforts and intentions that there are significant challenges given the historical deficits and challenges she faces. It is recommended that she needs a stringent and supportive structure and Inuit-focused support groups to assist her on her release.

[17] Ms. Killiktee's Inuit heritage is very important to her and given her background circumstances, Gladue principles must be considered in determining the fit and appropriate sentence. Sadly, the accused did not benefit from a stable or supportive upbringing as she was raised in an alcoholic home where she witnessed domestic abuse between her parents and was sexually and physically abused in her formative years. The accused also has a chronic substance abuse problem which she has used as a crutch to cope from her abusive upbringing.

Legal Framework: Gladue and Ipeelee Principles

[18] In R. v. Kreko, 2016 ONCA 367, the Ontario Court of Appeal stated at paragraph 18:

Section 718.2 of the Criminal Code requires consideration of the principles of sentencing, including the following principle:

(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.

As observed in R. v. Gladue, [1999] 1 S.C.R. 688, at paragraph 93(3), s. 718.2(e) is remedial in nature: it is intended to ameliorate the serious problem of over-representation of Aboriginal people in prisons.

No Causal Link Required

The sentencing judge erred by effectively requiring a causal link between the appellant's Aboriginal heritage and the offences, as is illustrated by the following extracts from his reasons for sentence and report to the Court of Appeal:

"There was nothing tied to his Aboriginal genetic heritage, let alone considerations in Gladue and Ipeelee, that led the accused, Mr. Kreko, to the negative side of hip-hop, including its fascination with guns."

"These things [possession of a gun, driving a Jaguar] relate to gang culture and do not relate to his Aboriginal background."

"It appeared to me that his Aboriginal connection had been irrelevant to his offences, or how he got there."

"I ultimately held that his Aboriginal heritage could not be linked in any meaningful way to these current offences, although his hip-hop affiliations could."

The jurisprudence makes it clear that no causal link is required. In R. v. Ipeelee, 2012 SCC 13, the Supreme Court held that it was an error to require an Aboriginal offender to establish a causal link between his or her background factors and the commission of the offences in question before he or she is entitled to have those factors considered by the sentencing judge. The court suggested, at paragraph 82 that requiring a causal connection demonstrated 'an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples', and also imposed an evidentiary burden on the offender that was not intended by Gladue.

The Supreme Court continued, at para. 83:

[I]t would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at paragraph 86:

Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government's treatment of Aboriginal people are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated.

Furthermore, the operation of Section 718.2(e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence.

The court explained that what is required is that the factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing. Finally, the court in Ipeelee also made it clear that s. 718.2(e) applies to serious offences: see paragraphs 84-86.

In the present case, the appellant's dislocation and loss of identity can be traced to systemic disadvantage and impoverishment extending back to his great-grandparents. This was relevant to his moral blameworthiness for the offences. The intervener has referred to some studies suggesting that adoptions of Aboriginal children by non-Aboriginal parents have a significantly higher failure rate than other adoptions. The appellant's Aboriginal heritage was unquestionably part of the context underlying the offences. The sentencing judge erred by failing to consider the intergenerational systemic factors that were part of the appellant's background, and which bore on his moral blameworthiness, and by seeking instead to establish a causal link between his Aboriginal heritage and the offences.

The sentencing judge also misapprehended the evidence about the appellant's efforts to reconnect with his heritage:

I applaud any efforts by Mr. Kreko to put down any pro-social roots he can, and that includes the Aboriginal healing path in which he has dabbled to date. I note he did not participate in that path while at the Central East Correctional Centre. [Emphasis added.]

The evidence was that the appellant did participate in Aboriginal programming and counselling while at the Central East Correctional Centre when he was held in pre-trial custody there in 2008 and 2009.

Statutory Duty to Apply Gladue

According to the Supreme Court in Ipeelee, at para. 87, failure to consider the unique circumstances of Aboriginal offenders, when required is an error justifying appellate intervention:

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 … and a failure to do so constitutes an error justifying appellate intervention.

[19] The Court can take judicial notice of certain systemic factors as they affect Aboriginal offenders and I do:

a) over incarceration of Aboriginal offenders;

b) impact of colonialism, residential schools and attempts at forced assimilation ie. Sixties scoop, culling of dog sled dogs;

c) disparate socio-economics;

d) widespread racism in Canadian Society and discrimination in the criminal justice system (as stated in R v. Gladue at para. 61 and R v. Williams para. 58).

[20] The decisions of Gladue and Ipeelee ask trial courts to consider use of culturally appropriate sanctions and to examine the systemic and background factors when looking at the accused criminal record and the circumstances of the offence and the moral blameworthiness of the accused.

Sentencing Analysis

Aggravating Factors

[21] In this case there are a number of Aggravating Factors:

• The accused record for violent offences, including manslaughter;

• The unprovoked nature of the assault on Ms. Petra and that she continued the assault even when others tried to separate them. This assault was an extreme overreaction to a minor comment;

• The accused has a poor history of being able to follow through with treatment but this must be tempered given the systemic factors which enhance the challenges she faces.

Mitigating Factors

[22] There are also a number of Mitigating Factors:

• She entered a plea of guilt and took responsibility for her actions;

• There were savings to the court system from this plea of guilt;

• The accused has been a victim of physical and sexual abuse. These abuses have traumatized her and severely affected her life. She has engaged in Inuit based programs while out of custody and has taken advantage of all programs available to her including counselling with Ms. Motiuk while at OCDC.

• The accused has limited education and presents as someone who may suffer from FASD.

Balancing Sentencing Principles

[23] Many of the aggravating facts of this case must be viewed and put in context using Gladue lens. This does not mean the accused's assaultive behaviour can be excused and she does not need to be held accountable but a fit and appropriate sentence must attempt to balance the need to denounce and deter the assault while at the same time appreciating the systemic factors that have led to her criminality. In my view, a sentence that balances all of the competing sentencing principles including the Gladue principles is as follows:

The accused has been in custody for 15 months and that length of time in custody particularly at a remand centre where there is reduced access to programming is sufficient to address general and specific deterrence and to show society's denunciation of the conduct. As such I will be imposing a fine of $10 and thereafter place her on conditions of probation for 24 months. This portion of the sentence is to focus on her rehabilitation and attempt to support her through Inuit based programming as she returns to the community.

Released: March 31, 2017

Signed: Justice Heather Perkins-McVey