Reasons for Sentencing
ONTARIO COURT OF JUSTICE
DATE: 2024 12 12 COURT FILE No.: 23-11407138
BETWEEN:
HIS MAJESTY THE KING
— AND —
ANESSA KATAPATUK
Justice Julie I. Bourgeois
Delivered orally: November 22, 2024 Written reasons: December 12, 2024
Counsel: Ms. S. Reynolds……………………………………………………...Counsel for the Crown Ms. M. O’Doherty………........................................................Counsel for the Defendant
BOURGEOIS J.:
[1] Ms. Anessa Katapatuk entered guilty pleas on February 8, 2024, on two counts contrary to s. 266 and one count contrary to s. 264.1 of the Criminal Code (CC). The offences stem from events that took place on September 21, 2023.
[2] The facts can be summarized as follows:
[3] On September 21, 2023, the victim, Ms. Megan Dussault, was attending her place of employment at 111 Lisgar Street here in Ottawa. The accused was on property and approached her, impeding Ms. Dussault’s entrance. Ms. Katapatuk stated, “You people, my people,” and grabbed Ms. Dussault by the face and pushed her against the stone wall, resulting in a cut at the back of the victim’s head and Ms. Dussault falling to the ground. Ms. Katapatuk stole her purse from the ground and left. The victim screamed for help. Mr. Beattie tried to place Ms. Katapatuk under arrest on the City Hall property. She was holding the victim’s purse to her chest, stating she was going to shoot him, and that she had a gun and a knife. She also spat on his neck and then fled on foot. She was later arrested by the Ottawa Police.
[4] These additional facts were provided at the sentencing hearing: Ms. Dussault was brought to the hospital by ambulance, treated for her injuries, including a concussion. It is unclear to me if she knew at the time, but Ms. Dussault was five weeks pregnant at the time of the assault. Her vintage purse was recovered but was scratched.
[5] Through her counsel, Ms. O’Doherty, Ms. Katapatuk indicated that she had a vague recollection of a confrontation with a woman, but she accepted those facts. She indicated she was homeless at that time and using the shelter services. She had been subjected to violence and abuse at the shelter, had been off her medication for her bipolar diagnosis. She had been using hard drugs and sleep deprived for the previous two to three days, and at the time of these offences, was in a frenzy. She believed she was at the shelter where she had been abused earlier.
[6] The matter was adjourned for the preparation of a Gladue report and I heard submissions on October 11, 2024. The Crown is seeking 12 months jail and three years probation. The Defence is seeking a conditional discharge and probation.
[7] When I consider the fundamental principle of sentencing expressed in section 718.1 of the Criminal Code: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender,” coupled with the other sentencing principles, particularly as expressed in section 718.2 (e) of the CC that, “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”, I conclude that a conditional discharge coupled with 12 months probation meets the fundamental purpose of sentencing, as stated under section 718, “to protect society and to contribute (...) to respect for the law and the maintenance of a just, peaceful and safe society”.
[8] The Crown based her submissions on, and provided case law related to, sentences for robberies, aggravating assault, and assault cause bodily harm cases:
[9] Tab 1 – R. v. Ali, [2022] BCJ No 345 – a finding of guilt after trial for robbing a young woman who was using an ATM and threatening to stab her with a screwdriver.
[10] Tab 2 – R. v. Grey, [2021] OJ No 626 – a young aboriginal man pleading guilty to robbing a bank, wearing a disguise, and brandishing an 8-inch knife and fleeing the scene with 5000$
[11] Tab 3 – R. v. Wabano, [2021] OJ No 3757 – a finding of guilt after trial, opening the door to the car the unsuspecting victim was sitting in, stabbing her in the arm and stealing her purse.
[12] Tab 4 – R. v. Reilly Grootjans, 2018 decision form J. Moore in Brockville – found guilty after trial for robbery while armed with a knife; disguise with intent and possession of proceeds of crime. These offences took place at a convenience store. Gladue factors were not relevant in the sentencing analysis.
[13] Tab 5 – R. v. Kakekagamick, [2006] OJ No 3346 – This was not a robbery case but rather an aggravated assault case where the accused punched and kicked the victim multiple times leaving the victim with two broken vertebrae in her neck: fractured ribs and a fractured collarbone. The Court of Appeal did consider S. 718.2 (e).
[14] Tab 6 – R. v. Huh, [2015] OJ No 2514 – In this case, the Court of Appeal reversed the sentence of a conditional discharge and two years probation imposed after the accused plead guilty to assault causing bodily harm. The Court of Appeal qualified the assault of “extraordinarily violent” leaving the victim with facial fractures and post-concussion syndrome, brain damage with impairment in the higher executive functions. The victim was forced to withdraw from university courses; has problems communicating fluently due to difficulties organizing his thoughts. The pre-sentence report is described generally as “not especially positive”.
[15] The Crown argues that the public would be offended should the Court grant a discharge to Ms. Katapatuk in the circumstances of this case. I disagree. To the contrary, I think the public would be offended should a court sentence an individual for a crime they have not been found guilty of. Even though Ms. Katapatuk was originally charged with one count of robbery against Ms. Dussault, the Crown accepted a guilty plea to a lesser and included offence of simple assault, a push, contrary to section 266 against Ms. Dussault, and she pled guilty to the simple assault, the spitting, and the uttering threats to Mr. Beattie.
[16] The maximum sentence when proceeding by indictment for offences of assault contrary to s. 266 and uttering threat contrary to s. 264.1 of the CC is imprisonment for a term not exceeding five years.
[17] The more serious offences of robbery; aggravated assault or assault causing bodily harm are respectively imprisonment for life; for 14 years or for 10 years. However, I am not sentencing Mrs. Katapatuk for these offences. Any range of sentences applicable for these offences cannot be appropriate for offences that are clearly considered as less serious offences by definition and as designated by the CC.
[18] I also think and hope the public would be offended should a court sentence with an overly heavy hand an individual with a reduced moral blameworthiness as this would run against the fundamental principle of sentencing, of restraint, of Canadian values of decency and fairness and in this case especially, against the Gladue and Ipeelee teachings from our Supreme Court of Canada (SCC).
[19] I agree with the submissions made by Ms. O’Doherty, counsel for Ms. Katapatuk, that this is one of those exceptional cases where a conditional discharge is the appropriate disposition, despite the physical and emotional injuries caused to the victims in this case, because Ms. Katapatuk deserves a second chance, not simply from the justice system here today but a second chance to happiness, stability and fulfillment.
[20] The most clearly aggravating factor in this case is the impact this offence has had on the victims, especially Ms. Dussault, as detailed in the victim impact statement filed as Exhibit 3A, and the anxiety-provoking situations as a result of the offence against her, listed and filed as Exhibit 3B. Of course, being pregnant for five weeks placed her in a state of vulnerability. She also suffered physical injuries: cuts to the back of her head, reinjuring her knee from a previous injury and recurring headaches suspected to be as a result of the concussion she suffered that day.
[21] What is reassuring, however, is that Ms. Dussault appears to have the proper personal tools and appropriate support to successfully come out of this strong and continue to be gainfully employed and being a good stable mom for her children. After reading the Gladue report prepared for Ms. Katapatuk, the stark contrast between these two women, relatively close in age, stands out.
[22] This brings me to the mitigating factors. The most clearly mitigating factor here is the guilty plea, saving the victims from having to testify and relive this impactful event. A guilty plea is also important as it is an acceptance of responsibility and a demonstration of remorse. In addition to her guilty plea, Ms. Katapatuk apologized to the victims. She provided a simple letter trying to explain the context of that day from her perspective and what she has done since that day to avoid its repetition and therefore trying to offer some peace of mind to the victims.
[23] Ms. Katapatuk’s personal circumstances must be considered to properly assess her moral blameworthiness for these offences. The Gladue report prepared by the Ontario Native Women’s Association is an important tool to understand her personal circumstances and place this central piece in its proper context. This is precisely what our Supreme Court of Canada explained is the mandated duty of the sentencing judge pursuant to section 718.2 (e) of the CC.
[24] Here is a summary of the information gathered by the author of the Gladue report:
[25] Ms. Katapatuk was born in North Bay, but her parents were from Moose Factory and Moosonee, and both attended residential schools in those areas. She lived with her family in Moose Factory, until she was eight or nine, and then moved to North Bay where she attended elementary school. She remembers missing school often because she and her older brothers had to clean up the house after the weekend’s events. She witnessed her parents drinking and fighting a lot. During these episodes, she was caring for her younger sisters and was afraid. The police often intervened.
[26] Her and her siblings, her two younger sisters and two older brothers, were taken in the foster care system in the City of North Bay. Her brothers were in different foster homes then her and her sisters. She described living on and off with her grandparents from eight to 22 years old until she left for college. She also stayed with a paternal aunt.
[27] When her parents separated, she lived with both her mother in Timmins and her father in Moosonee back and forth. Her father gained custody of her sisters and therefore she stayed with her father to watch her sisters following sexual abuse allegations. When her father was incarcerated, again her and her siblings were in the care of various family members.
[28] She and her siblings were raised in Christianity, and she was quite involved in the Church as a youth and young adult. She was a Sunday School Teacher for the younger children. She traveled with her brothers, singing. But when she was 19 years old, after her father was released from jail, she returned home in Moosonee to care for her younger sisters.
[29] At 20 years old she moved to Moose Factory to pursue a job at the Christian Academy as a teacher’s assistant.
[30] At 21 years old she moved to North Bay to attend college and registered in the Early Childhood Education program. She did not feel prepared or equipped for college. She fell in love wit the pastor’s son. The community did not support their relationship and she stopped going to Church. She felt isolated from her friends and Church community.
[31] She was struggling with her mental health and at 23 year old she was admitted into hospital and received a diagnosis of Bipolar type I. She thinks it was induced by her consumption of drugs and lack of sleep after she stopped attending Church.
[32] At 25 years old, she felt like herself again. Her mental health was good, stable, and she was on regular medication and saw her psychiatrist regularly. She had reconciled her relationship with her father and one of her sisters came to live with her in North Bay. However, her sister started using drugs and despite taking action to avoid it, she relapsed and in 2020, she was re-admitted to the hospital. She moved back in with her aunt when discharged from the hospital.
[33] From 2021-2022 she moved to Ottawa to reunite with her mother. It was a difficult relationship because of her mother’s addiction to drugs. She became homeless, was not taking her medication and felt lost and confused. In early 2022, she started to stay at the Shepherd’s of Good Hope. In September 2022, she met Mr. Poirier, and they started a relationship. On March 21, 2023, at age 52, Ms. Katapatuk’s mother passed away from her addiction. On September 16, 2023, five days prior to these offences, Mr. Poirier was involved in a head-on collision and was seriously injured.
[34] Her mental health has been stable since these offences in September 2023. She attends monthly medical appointments, and her anxiety and bipolar disorder are effectively managed by medications since October 2023. She recalled benefiting from counselling when she was young, in foster care, and would like more counselling now to talk to someone to help her with grieving the loss of her mom, her trauma and her mental health.
[35] This report was completed on June 25, 2024. Since then, Ms. Katapatuk completed three counselling sessions with Noojimo Health (see tab 2 of defence material on sentence). Her mental health diagnosis has been confirmed and she is adhering to her treatment plan (see tab 3). She completed a virtual four-week substance abuse treatment program with Wanaki Centre (see tab 4). She was able to successfully complete this program when she was provided with the technical support to do so by the Gladue aftercare worker.
[36] She is now 32 years old, a first-time offender who pled guilty, expressing remorse, and has done everything humanly possible to right a wrong she committed, under the circumstances we now know and can try to understand better. This is the exact context which brings her before the Court. These are the unique systemic or background factors which may have played a part in bringing Ms. Katapatuk, an aboriginal offender, before the Court. And the SCC in Gladue tells us that it is the sentencing judge’s duty to consider this in the framework of the sentencing analysis. This is part of what section 718.2 (e) of the CC dictates the sentencing judge to consider.
[37] She did not have the benefit of a safe, healthy and stable family home and upbringing because her parents, residential school survivors, were unable to provide this basic need for their children. She was the child supporting her younger sisters. She survived a difficult and traumatic childhood.
[38] These offences came on the heels of yet again a challenging point in her life after trying to reunite with her mother, finding herself homeless, not taking her medication but instead consuming drugs, then her mother’s passing from overdose and her only support in the City of Ottawa sustaining life-altering injuries from a collision. This downward spiral culminated on September 21, 2023.
[39] I adopt my colleague’s comments, Baxter, J., in R. v. H.T., 2022, O.J. No. 732, at paragraphs 79 to 82. The analysis equally applies in this case. Ms. Katapatuk suffered from the intergenerational trauma of residential schools; witnessing the violence and addictions; experiencing the child welfare system, leaving her unable to complete her education; and she was abandoned by her Christian church community at a time she would have needed them the most. The lack of opportunities caused her to live in poverty, led her to addiction and to poor mental health.
[40] Twenty-five years ago, the SCC in R. v. Gladue, 1999, 1 S.C.R. 688, explained the mandated duty of the sentencing judge in analyzing section 718.2 (e) with a remedial purpose. The overarching principle of restraint applies to all offenders under section 718.2 (e) but the restorative approach to sentencing, especially when sentencing an aboriginal woman, is at the heart of the consideration of the context which brings the offender before the Court (see Gladue, paras 34, 36, 37).
[41] As stated at paragraph 43: “Restorative sentencing goals do not usually correlate with the use of prison as a sanction.” And at paragraph 44: “Just as the context of Part XXIII supports the view that s. 718.2 (e) has a remedial purpose for all offenders, the scheme of Part XXIII also supports the view that s. 718.2 (e) has a particular remedial role for aboriginal peoples.”
[42] Finally, at paragraph 48, the SCC explained that: The proposed enactment was directed, in particular, at reducing the use of prison as a sanction, at expanding the use of restorative justice principles in sentencing, and at engaging in both of these objectives with a sensitivity to aboriginal community justice initiatives when sentencing aboriginal offenders.
[43] The coming into force of Part XXIII in 1996 provided courts with a wider range of available sanctions, through the introduction of conditional sentence orders, suggesting a desire to lessen the use of incarceration (see Gladue, para 40).
[44] As expressed by the SCC at paragraphs 46 and 47, jail is to punish the offender and separate the offender from society. Harsher sentences do not bring a more effective criminal justice. Jail should be reserved for those who need it. The very purpose of section 718.2 (e), in 1996, was to respond to the overincarceration and overrepresentation in Canada of the acute problem of disproportionate incarceration of aboriginal peoples. This was, at the time, described as a crisis when referring to the use of jail as a sanction, especially for aboriginal peoples. The SCC describes it in the section titled “(1) The Problem of Overincarceration in Canada,” paragraphs 52 to 57. This last paragraph is worth reproducing here, as a reminder, if nothing else: Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. Overincarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate. The 1996 sentencing reforms embodied in Part XXIII, and s. 718.2 (e), must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions.
[45] And in the section titled “(2) The Overrepresentation of Aboriginal Canadians in Penal Institutions”, paragraphs 58 to 65, again, this last paragraph is also worth reproducing here: It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.
[46] What changed today, 25 years later, about this crisis? Nothing in the Crown’s position speaks to restraint, to restorative and remedial purpose of s. 718.2 (e). When hearing the Crown’s position of 12 months jail for this offender and these offences, we almost get a sense of retribution or vengeance.
[47] As explained in Gladue, after I consider the context, the unique systemic or background factors which may have played a role in bringing the aboriginal offender before the Court, I must also consider the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of her particular aboriginal heritage.
[48] As explained in Gladue at paragraph 71, “[t]he appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender.” And at paragraph 74, “[i]t is often the case that neither aboriginal offenders nor their communities are well served by incarcerating offenders, particularly for less serious or non-violent offences.” The fundamental principle of sentencing at section 718.1 of the Criminal Code, proportionality of the sentence in light of the moral blameworthiness of the offender, is still the cardinal principle.
[49] At paragraph 80 of Gladue, the SCC provide a practical guide with examples of questions the sentencing judge can ask herself to determine an appropriate sentence for this particular person: As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances?
[50] And at paragraph 81, the Supreme Court stated that: Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large.... By means of s. 718.2 (e), sentencing judges have been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration which are appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing. In this way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender.” I encourage everyone, not only the justice participants, to read this decision from the SCC, at least para. 93 if not the entire decision, especially in the wake of the passing of the Honourable Murray Sinclair earlier this month. Once the public and the justice participants, including the jurists, have learned to properly apply the teachings of our SCC in Gladue – 25 yrs ago and in Ipeelee, 12 yrs ago, our modern, free, and democratic society can perhaps strive to implement some of the truth and reconciliation concepts Justice Murray Sinclair worked so hard to teach us.
[51] The SCC also reminded us, in R. v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, that the 1996 CC amendments codified the fundamental purpose of sentencing, provided principles to guide sentencing judges and stated the fundamental principle of sentencing. It stated at para. 37 that “[p]roportionality is the sine qua non of a just sanction” ensuring “[t]hat a sentence reflects the gravity of the offence” and “[t]hat a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender.” (See para. 35 to 37).
[52] And again, 13 years after it released its decision in Gladue, the SCC reviewed the history leading to the enactment in 1996 of Bill C-41 and section 718.2(e) and observed that, “Aboriginal persons were sadly overrepresented indeed,” in our Canadian criminal justice system and in custody, this situation being “generally worse in provincial institutions.” (See paragraph 57). And after discussing, at paragraphs 56 to 61, the purpose of section 718.2 (e) and what it was hoping to accomplish when enacted, the court concludes, at paragraph 62: “This cautious optimism has not been borne out. In fact, statistics indicate that the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened.” The SCC then provides additional guidance so sentencing judges can better implement section 718.2 (e) when sentencing an aboriginal offender.
[53] The SCC reminded us that section 718.2 (e) dictates a different method of analysis in determining a fit sentence for aboriginal offenders. It discussed, at paragraph 66, how the codified objectives of deterrence and rehabilitation can be met by sentences other than jail while endeavoring to reduce crime rates in sentencing. It also stated, at paragraph 67, that, “judges can ensure that systemic factors do not lead inadvertently to discrimination in sentencing.” In other words, it directed, “[s]entencing judges, as front-line workers in the criminal justice system [being] in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination.” The SCC then added, at paragraph 68: “ Section 718.2 (e) is therefore properly seen as a ‘direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process’,” referencing Gladue at paragraph 64.
[54] Because the fundamental purpose of sentencing is still and always is proportionality, meaning an offender is to be sentenced based on the gravity of the offence and the degree of responsibility of the offender, I doubt very much a non-aboriginal offender would be sentenced to jail under the circumstances of this case. But when considering the teachings of the SCC in Ipeelee at para. 73, it seems obvious that jail, never mind 12 months of it, is the appropriate sentence in this case. It bears reproducing part of para. 73 here: First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the unique systemic or background factors that are mitigating in nature in that they may have played a part in the aboriginal offender's conduct" (Wells, at para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.
[55] The court then went on to add: Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. As Cory and Iacobucci JJ. state in Gladue, at para. 69: In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means.
[56] There is no burden of proof or persuasion on Ms. Katapatuk to establish a causal link between the systematic or background factors, and the commission of these crimes (see Ipeelee paras 82 and 83). But only a disingenuous person would not see the obvious link between those factors and what led to these offences in this case.
[57] Ms. Katapatuk’s moral blameworthiness, in light of her personal and aboriginal background, make it simple to conclude that jail is in fact clearly an unfit sentence for her in this case. When considering the context the SCC explained a sentencing judge needs to assess in determining a fit sentence, we can ask if not for the impact of the trauma and the injustices on Ms. Katapatuk’s family because of their aboriginal background, would she even have found herself before the Court today?
[58] In Gladue, the SCC discussed the use of incarceration on its purported goals at paras 54 through 56. In this case, distilled to its essence, the offences are comprised of a push, spitting and uttering threats. The impact on the victims is an aggravating factor to balance in the analysis but is not the driving force of the analysis. Also, it is not all offending behaviour, even if violent, that ought to attract a custodial sentence or even a conviction. Section 718.2 (e) is a provision directing sentencing judges to consider certain unique circumstances pertaining to aboriginal offenders as part of the task of weighing the multitude of factors to arrive at a fit and proper sentence (see Gladue para 88).
[59] There is no analysis in which an early guilty plea to these offences from a first-time offender should land an offender in jail for even one day, in light of the sentencing principle of restraint, if nothing else. I will not discuss the principle of parity in these reasons, as I do not find it to be necessary in this case, but I will simply point to paragraph 79 of Ipeelee as a guiding point for future reference and to R. v. Parranto, 2021 SCC 46, 2021, SCC. 46, at paragraphs 10 and 50 as referenced by Ms. O’Doherty in her materials.
[60] The public nor the victims in this case require further protection from Ms. Katapatuk. She does not need to be separated from society. She needed to recover her mental health. She has done that. She needs support to maintain her sobriety and to properly grieve her losses and maintain a good mental health. She needs stable independent housing. She needs to pursue her education in a field that she enjoys. She needs to find a suitable employment where she can feel proud and fulfilled. She needs to be an engaged member of our community and reconnect with her aboriginal community.
[61] Crown did not provide one case where a person, aboriginal or non-aboriginal, was sentenced to jail on similar facts as those in this case. But every day I preside over a guilty plea court, I am presented with joint submissions for conditional discharge for more serious matters in nature as they include violence against an intimate partner, sometimes in the presence of children, both circumstances being codified aggravating factors.
[62] In those cases, the offender needs to successfully complete the Partner Assault Response program in advance of the sentencing to benefit from this joint submission. The offenders are almost exclusively males, often Caucasian, and the impact on the offender’s employment and therefore financial situation is often quoted in the joint submission. There is nothing inappropriate with this resolution on a guilty plea from a first-time offender who took steps to better himself and prevent further offending. I do not understand why Ms. Katapatuk should not or could not benefit from a similar outcome in this case.
[63] She is precisely the aboriginal offender the Supreme Court was referring to and I am precisely the front-line worker the Supreme Court is directing to play the remedial role.
[64] The context which brought her before the Court, the systemic and background factors, clearly played a role. Her unique background and the systemic factors bring me to conclude that jail in this case will not serve the objectives of deterrence or denunciation but rather punish her. Given her lesser moral culpability attributable to the state of her mental health, a more restorative approach, addressing the remedial purpose of sentencing, is of primary relevance and at the heart of crime prevention, and therefore fostering the principle of safety to the community, alongside individual and social healing. The victims and the community at large would clearly be better served through healing, not incarceration.
[65] The Alberta Court of Appeal aptly said in R. v. Rabbit, 2023, A.J. No. 555, at paragraph 47: To apply s 718.2(e), sentencing judges must try to understand what influenced an Indigenous offender to act in the way he did. It also includes assessing whether one’s instinctive reaction to that conduct would be the same, given the circumstances, if the offender were of a different race, culture, or background. This analysis involves empathy, imagination, and introspection, among other things. It imposes on the sentencing judge the difficult task of imagining a different life, and honestly asking how a person – not the world’s strongest or most resilient person – might be affected by such an experience.
[66] My colleague Chamberlain J. in R. v Pothier, 2022 ONCJ 86 at para. 22-24 and in R. v. Buswa, 2023 ONCJ 146, at paras. 21-25 reminded us of the history, tragedy and legacy of colonialism and its impact of the inequalities, injustices, and overrepresentation of Indigenous people in our criminal justice system.
[67] Also referring to our colleague Gibson J. in R. v. Morrisseau, 2017 ONCJ 307, they noted the challenges and lack of relevant and appropriate tools in our arsenal. I would also add the lack of new initiative and concrete actions to firstly remedy some of the challenges faced in the community, at their roots and secondly to even attempt restorative justice post offence leaves a sad portrait of the criminal justice system in Ontario.
[68] I want to quote my colleague, Chamberlain J., in Buswa at paragraph 28 and 29: [28] But absent access to those community resources and supports, we cannot rely on the jails to be the solution to this problem. That approach is how we got to the crises in the criminal justice system so clearly laid out in the Gladue and Ipeelee decisions. [29] If we default to jail, we fail.
[69] In this case, since connecting with the Gladue writer, Ms. Katapatuk was able to obtain the proper electronic support to connect and participate in counselling. Maybe if she had had access to both these supports when she first started college, she would have run a better chance at success personally and professionally, and most likely would not have found herself before the Court.
[70] Having ruled out jail as an appropriate sentence option, what is the fit sentence for this offender under the circumstances of these offences?
[71] Mrs. O’Doherty, on behalf of Mrs. Katapatuk argues that a conditional discharge is appropriate. I agree.
[72] Section 730(1) CC sets out that: “the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused (...) direct that the accused be discharged (...) on the conditions prescribed in a probation order”.
[73] Nothing in this case prevents a conditional discharge as a disposition.
[74] Following the Court of Appeal for Ontario in R. v. Sanchez-Pino, [1973] O.J. No. 1903, a conditional discharge is clearly in her best interest here, as I conclude that specific deterrence is not a relevant consideration and given that Ms. Katapatuk is “a person of good character” and the entry of a conviction against her may have significant repercussions (see paragraph 16). This decision was also discussed at length in R. v. Parker-Ford, 2020, ONSC 5951 (see tab 12 of defence book of authorities).
[75] I also conclude that a conditional discharge in this case is not contrary to the public interest. Counsel for Ms. Katapatuk provided examples of recent cases from my colleagues at the Ontario Court of Justice where a conditional discharge was granted (R. v. H.T., which I referenced earlier; R. v. Andrews, 2023 ONCJ 370; R. v. Fantinato, 2018 ONCJ 710; R. v. Adamson, 2017 ONCJ 174), some involving indigenous offenders, some relating to more serious offences. A conviction should only be registered where necessary in pursuing a sentencing objective and when the two-prong test set out at s. 730 has not been met.
[76] I have discussed at length the reduced moral culpability of Ms. Katapatuk at the time of these offences and the context of her indigenous background in the analysis of the fundamental sentencing principle of proportionality.
[77] As indicated by counsel on behalf of Ms. Katapatuk, her childhood was full of neglect and abuse, with little stability. In my view, it seems clear that this was a direct result of the legacy Chamberlain J. was describing in Pothier and Buswa earlier.
[78] Ms. Katapatuk appeared to have been the main caregiver and emotional support, as a child herself, to her younger sisters. Despite her traumatic childhood, she was able to survive and hold it together pretty much on her own until her life spiraled into a mental crisis and drug use. As pointed out by counsel, she had worked hard to be a productive member of society in the face of this adversity.
[79] When considering the context provided in Gladue and what the SCC had to say at para. 65: “[t]he unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people”, this is precisely the situation for Mrs. Katapatuk. Sentencing her to any jail in the circumstances of this case, would absolutely exacerbate this unbalance in her life as well. In this case, registering a conviction would also significantly increase the risk of achieving the same result. In turn, this would bring a significant negative impact on the fundamental purpose of sentencing, being to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society, as stated in s. 718 of CC.
[80] Having been charged and participating in the process through the criminal justice system serves the objective of deterrence in this case. However, the rehabilitative steps successfully undertaken since these offences, lead me to conclude that denunciation has been met but more importantly that you are well on your way to fulfilling the other objectives of sentencing under s. 718, d) rehabilitation; e) providing reparations for harm done to victims or to the community and; f) promoting a sense of responsibility and acknowledgement of the harm done to victims or to the community. In other words, all objectives of the sentence are met through your success and the fundamental purpose of sentencing is therefore achieved.
[81] Addressing the second prong of the test set out in s. 730: a court may direct an accused to be discharged if it considers it not contrary to the public interest, I conclude a conditional discharge is clearly not contrary to the public interest. In fact, despite not the legal test, as it would bring it to a higher standard, I do find that in this case, it is in the public interest to conditionally discharge Mrs. Katapatuk.
[82] Mrs. Katapatuk, you are placed on probation for 12 months. The following conditions will apply: a) Report to a Probation Officer b) Not to possess any weapon c) Not to communicate with Megan Dussault and Myles Beattie d) Not attend anywhere you know them to be at e) Attend and participate in any culturally relevant assessment, counselling, and treatment, as recommended by Mrs. Kristy Routhier, the Gladue writer, in her report dated June 25, 2024. f) Sign any release of information form to enable Probation Office to monitor your assessment, counselling, and treatment.
[83] There is no need for any ancillary orders in this case.
Released: December 12, 2024 Signed: Justice Julie I. Bourgeois