Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Ituluk, 2018 NUCJ 21

Date: 20180724
Docket: 08-18-270
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Tom Ituluk

________________________________________________________________________

Before: The Honourable Mr. Justice Earl Johnson

Counsel (Crown): Moray Welch

Counsel (Accused): Gillian Bourke

Location Heard: Iqaluit, Nunavut

Date Heard: July 17 & 19, 2018
Matters: Sentencing Decision for breach of Criminal Code, RSC
1985, c C-46, section 810.2.

REASONS FOR JUDGMENT

(Delivered Orally)

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

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I. INTRODUCTION

[1] The accused entered a guilty plea before me on July 19, 2018, for
breaching his Recognizance under section 810.2 of the Criminal
Code, RSC 1985, c C-46, (Criminal Code) on April 9, 2018, by
consuming alcohol. At the plea, with the agreement of Defence
Counsel, the Crown also read as background the facts of another
similar breach that occurred in January 2018 contrary to section 811.

II. BACKGROUND

[2] The circumstances of the January breach are that Mr. Ituluk was
intoxicated in a public place when he was approached by the police.
He refused to give his name to the police and was arrested for
obstruction of justice. The police found the name of the accused from
other sources and discovered that he was on the Peace Bond with the
no alcohol condition. On April 9, Mr. Ituluk was again found
intoxicated outside a residence occupied by a female. He was then
arrested for causing a disturbance. He was charged with breaching
the Peace Bond by drinking alcohol.

[3] The background for the imposition of the Peace Bond are stated in
the affidavit of Royal Canadian Mounted Police (RCMP) Sgt. Matco
Sirotic sworn on May 26, 2018.

[4] On May 27, 2017, the informant RCMP Sgt. Matco Jonathan swore
an information to obtain a Peace Bond under section 810.2. In
support of the application, he filed an affidavit that deposed that on
April 10, 2017, he had received information from Correctional
Services Canada (CSC) indicating that Mr. Ituluk would be released
from incarceration in a penitentiary on June 9, 2017. He was informed
that Mr. Ituluk was a first time federal offender serving a three years,
seven months and 15 day sentence for sexual assault, fail to comply
with conditions, and an assault on a peace officer. CSC indicated that
Mr. Ituluk had demonstrated little insight into his violence and sexual
offences.

[5] A criminal records check revealed that Mr. Ituluk had convictions that
included five sexual assaults, mischief under $5000, fail to comply
with an undertaking, and assault on a peace officer. A Canadian
Police Informant Centre (CPIC) check revealed that Mr. Ituluk was
identified as a violent individual and prohibited from possessing
firearms.
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[6] The circumstances behind the last sexual assault conviction were that
Mr. Ituluk was drinking and smoking pot with his aunt. He forced his
aunt down to the floor and had full sexual intercourse without her
consent.

[7] The Warrant Expiry Release Package (WERP) indicated that on

September 2, 2013, Wayne Podmoroff, a consulting psychologist,
prepared a court ordered Risk Assessment Psychological Report on
Mr. Ituluk. It documents that Mr. Ituluk presented significant signs of
substance dependency and estimated his risk to reoffend with sexual
violence as moderate on the static 99-2002 test and high on the
Secondary Assessment Sexual Offender instruments. The report
indicated that Mr. Ituluk’s history of sexual violence had escalated in
frequency and severity over time and that he engaged in extreme
minimization or denial of past sexual violence. The report concludes
that the level of risk for Mr. Ituluk to reoffend with sexual violence
without treatment is ultimately high. This Court acknowledges that the
Supreme Court of Canada recently found these diagnostic tools
problematic when applied to Indigenous offenders (Ewert v Canada,
2018 SCC 30 (CanLII)).

[8] Two previous victims of his sexual assaults filed impact statements
that indicated that Mr. Ituluk’s actions had left them scared and
lacking motivation.

[9] On January 22, 2014, Mr. Ituluk’s parole officer prepared a Criminal
Profile Report that indicated that he blacked out and had no memory
of the sexual offences. When recounting the events he laughed and
appeared to be amused by the situation. The report indicates that he
had shown no remorse for his victims and did not have a clear
improvement plan for the future.

[10] On January 7, 2016, Mr. Ituluk’s parole officer prepared a Correctional

Plan Update. It indicated that Mr. Ituluk still required a high level of
intervention based on dynamic factors. His need for improvement was
deemed high in the categories of “personal emotional”, substance
abuse, and attitude.

[11] On January 15, the Parole Board prepared a decision sheet for Mr.
Ituluk that indicates that if he was released he was likely to commit a
sexual offence involving a child or an offence causing death or
serious bodily to another person, before the expiration of his
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sentence. Therefore, the Board ordered that Mr. Ituluk be detained

until the warrant expiry date.

[12] On May 11, 2016, and September 9, 2016, Mr. Ituluk’s participation in
programs was suspended because of unauthorized absences.

[13] Mr. Ituluk is 32 years old and grew up in Qikiqtarjuaq and Kimmirut.
Although the complainant in Mr. Ituluk’s last offence objected to his
return to Iqaluit, Mr. Ituluk was released in Iqaluit and was
immediately served with the application for the Peace Bond.

[14] Based on above information, Justice Tulloch ordered that Mr. Ituluk
enter into a 12-month Peace Bond, commencing on June 19, 2017,
that included a term that he must abstain absolutely from the
consumption or possession of alcohol.

[15] Mr. Ituluk obtained employment at the Frobisher Inn and at the Quick
Stop convenience store, and found accommodation at the men’s
shelter in Iqaluit.

III. POSITION OF THE PARTIES

[16] Relying on R v Ballantyne, 2009 SKCA 27, [2009] CarswellSask 103

[Ballantyne], and R v Gabriel, 2013 MBCA 45, 291 Man R (2d) 291
[Gabriel], the Crown asked that the court impose a deterrent sentence
of 12 months in jail plus probation. The Crown emphasized Mr.
Ituluk’s lack of motivation to address his problems with alcohol, which
increased the risk that he would reoffend and commit similar crimes of
sexual assault. As stated in R v Labbe (2006), 217 OAC 5, 214 CCC
(3d) 362, courts must take into account the criminal history of a
person who is on a Peace Bond. Ballantyne is a good example of the
application of that principle. In Ballantyne, the accused breached a no
alcohol condition in a Peace Bond twice within a one month period.
The trial judge imposed a sentence of 45 days and six months
probation on the first charge and 90 days on the second. The Court of
Appeal allowed the appeal because the sentencing judge failed to
appreciate the seriousness of a section 810.2 Recognizance and the
need to protect the public by preventing future criminal activity. The
Court noted the no alcohol condition was significant given the
accused’s criminal record and his alcoholism as a motivator of
criminal activity. As a result, the Court slightly reduced the sentences
imposed by the trial judge making them concurrent to other charges.
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In Gabriel, the breach was for missing an appointment, therefore, not

as serious as in Ballantyne and this case.

[17] The Crown distinguished the case of R v Kematch, 2016 ABPC 58

[Kematch], relied on by Defence Counsel. That case dealt with a
breach of curfew that was unrelated the offences that had resulted in
the imposition of the Peace Bond. In this case, the accused’s drinking
is directly linked to the historical offences.

[18] Defence Counsel suggested a sentence of 6 months less the pre-

sentencing custody credit of 157.5 days. The accused was 32 years
old and had a grade 11 education. After his release he resided at the
men’s shelter and sometimes stayed with friends. He found
employment at the Frobisher Inn and at the Quick Stop convenience
store. While in custody, he participated in a four week substance
abuse program and did very well for 3 weeks but struggled for the last
week. He was given his certificate of completion and it was entered as
an exhibit. He hopes to work again at the Frobisher Inn when
released and will stay at the men’s shelter until he finds alternate
housing.

[19] Defence Counsel emphasized the fact that Mr. Ituluk had complied
with the Peace Bond for almost seven months before the first breach.
He did not commit any substantive offences while he was intoxicated
and his completion of the substance abuse course demonstrates that
he is taking steps to deal with his alcohol problem contrary to what
CSC states in the information used to obtain the bond.

[20] Defence Counsel noted the words at paragraph 26 of Kematch in

summarizing the Ontario Court of Appeal in R v Labbe, 2006 CanLII
36608 (ON CA), 217 OAC 5, that persons who enter into section
810.2 Recognizances should not automatically be treated as the
worst offenders for sentencing purposes. If that occurred, then it
would effectively emasculate principles of proportionality and
rehabilitation that trial judges must take into account in arriving at a fit
and just sentence.

[21] Defence Counsel noted the summary of cases discussed at

paragraphs 24 to 41 of Kematch, emphasizing that in R v Bambrick,
2011 NLCA 79, 315 Nfld & PEIR 202, the accused pleaded guilty to
three counts of breaching a Recognizance by breaching a no alcohol
condition. He breached by purchasing beer at a store that was very
close to a residence that he was required to stay away from. He was
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apprehended as he was walking toward the residence with a mickey

his pocket. The court of appeal replaced two year sentence with one
for five weeks time served.

[22] In R v Green, 2013 ONCJ 423, the accused twice breached a section
810.2 order. The accused had drug and alcohol problems that were
the underlying cause of most of his offending behaviour. He was
exposed to alcohol and violence as a child and lost his sister in a
house fire. Both parents were residential school survivors. He lacked
insight into his problems and was a high risk for potential sexual
violence. There was a possibility that he had Fetal Alcohol Effects.
The Court imposed a sentence of four months in jail.

[23] The range of sentences discussed in Kematch varies from a low 60

days to a high of 40 months.

[24] The relevant sentencing principles are set out at paragraph 8 of

Kematch by Slawinsky J., quoting from R v Zimmerman, 2011 ABCA
276 (CanLII), where the Court stated at paragraph 13:

“13. . . . In sentencing for a breach of a s. 810.2

recognizance, the sentencing judge should consider general and
specific deterrence; the need to protect the public from high-
risk offenders; proportionality; the gravity and seriousness of
the breach; and, the criminal history of the offender: R. v.
Labbe (2006), 2006 CanLII 36608 (ON CA), 214 C.C.C. (3d)
362 at paras 6-7 (Ont. C.A.). A breach should "be examined in
light of the potential for the reasonably foreseeable
consequences" of the conduct giving rise to the breach. That
is, the gravity of the breach should be examined in the context
of the offender's history: R. v. Helary, 2007 NLCA 47
(CanLII), 268 Nfld. & P.E.I.R. 267 (N.L. C.A.) at para 16. The
purpose of a s.810.2 recognizance is to protect the public by
preventing future criminal activity: R. v. Ballantyne, 2009
SKCA 27 (CanLII), 324 Sask. R. 71 (Sask. C.A.) at para 5.
Although a person who enters into a s. 810.2 recognizance
should not automatically be treated as the worst offender, it is
not an error for a sentencing judge to impose the maximum
sentence if all of the appropriate sentencing principles have
been properly applied: Labbe at para 9; R v Jordan, 2003
BCCA 64 (CanLII), 179 BCAC 297 at para 25. Of course, not
every breach of a s. 810.2 recognizance mandates the
maximum penalty: R v Jacobson, [2006] OJ No 1558
(CA)(QL) at para 1.”
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IV. APPLICATION

[25] As noted in the CSC history, there is a high risk that the accused will
reoffend with sexual violence because his history of sexual violence
had escalated in frequency and severity over time and because he
engaged in extreme minimization or denial of past sexual violence.
His historic criminal conduct occurred while he was so intoxicated by
alcohol that he had blackouts. He did not complete programming
while in the penitentiary and showed a lack of remorse for his victims.

[26] The breaches of drinking alcohol clearly elevated the risk the accused
would commit other sexual crimes as he had in the past. There is a
nexus between the breach and risk to the public. As a result, I am
satisfied that a term in jail is required to protect the public. However,
this case is not one of the worst calling for the maximum sentence.
The accused did not commit any other crimes while intoxicated and
managed to stay out of trouble for seven months. He also
demonstrated some insight into his alcohol problems by taking the
substance abuse programming at the Baffin Correctional Centre. He
has also been actively employed and has held down two jobs.

V. DISPOSITION

[27] I am satisfied that a jail sentence of 240 days will satisfy the
deterrence required while also recognizing the apparent change of
attitude of Mr. Ituluk to his alcohol issues. Mr. Ituluk will also receive
157.5 days of pre-sentencing custody credit, making his custodial
sentence 83 days. He will also be on probation for a period of 1 year
on the same conditions as in the Peace Bond.

Dated at the City of Iqaluit this 24th day of July, 2018

___________________
Justice E. Johnson
Nunavut Court of Justice