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ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ

Nunavunmi Apiqhuidjutainut Uuktuffaarutit


Nunavut Court of Appeal
Cour d'appel du Nunavut

Citation: R v Amaaq, 2020 NUCA 11

Date: 20201021
Docket: 07-19-012-CAP
Registry: Iqaluit

Between:

Her Majesty the Queen

Appellant

- and -

Katelynn Amaaq

Respondent

_______________________________________________________
The Court:
The Honourable Mr. Justice Thomas W. Wakeling
The Honourable Madam Justice Ritu Khullar
The Honourable Madam Justice Elizabeth Hughes
_______________________________________________________

Memorandum of Judgment

Appeal from the Sentence by


The Honourable Madam Justice Susan Charlesworth
Dated the 12th day of December, 2019
(Docket: 07-17-67)
_______________________________________________________

Memorandum of Judgment
_______________________________________________________

The Court:

[1] The Crown1 appeals sentences imposed by the Nunavut Court of Justice on December 12,
2019 for two offences the respondent committed against her five-year-old child over an
approximately ten-week period – a two-years-less-a-day conditional sentence order for failing to
provide the necessaries of life2 and a consecutive three-year suspended sentence for aggravated
assault.3 The five-year old’s body was covered in bruises and bite marks. 4 He suffered severe
internal injuries – a lacerated liver and spleen, a kidney contusion, a fractured rib and an obstructed
bowel.5 The youngster told the examining nurse he could not recall the last time he ate.6 The child’s
height and weight was in the fifteenth percentile for his age.7

[2] This is the second time the respondent has been convicted of assaulting this child. The
Nunavut Court of Justice convicted her of assault causing bodily harm when her son was only two-
months old. She threw her baby down a flight of stairs, the baby landed on his head, and broke his
clavicle. 8 Her 2012 sentence was a four-month conditional sentence and eighteen-months
probation.9

1
The Crown asked the sentencer to impose a jail term for the two offences of two years less a day followed by a three-
year probation period. Appeal Record F72:1-4. Justice Charlesworth imposed the sentence defence counsel
recommended. Id. F127:21-26.
2
Criminal Code, R.S.C. 1985, c. C-46, s. 215(1)(a) (“Every one is under a legal duty to … as a parent … to provide
necessaries of life for a child under the age of sixteen years”).
3
Id. s. 268(1) (“Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the
complainant”).
4
Appeal Record F2, F66:15-23 & F123:24-27.
5
Id. F3, F68:2-11 & F123:28-32.
6
Id. F66:31 & 32.
7
Id. F1.
8
Id. F69:30-38.
9
Id.
Page: 2

[3] The Crown requests that this Court set aside the sentence for aggravated assault 10 and
impose a jail term “in the range of 2 years less a day”.11

[4] We recognize the challenges the sentencer faced and the benefits associated with the
sentence she imposed.12 The respondent’s counsel put it aptly: 13 “Justice Charlesworth faced a
Gordian knot. There was a terrible crime committed against a helpless victim entangled with an
accused with a tragic set of personal circumstances that support rehabilitation”. The sentencing
judge tried to produce a sentence faithful to Gladue 14 factors. But we are convinced that a
noncustodial sentence for the aggravated assault conviction fails to take into account Parliament’s
direction in section 718.01 of the Criminal Code to “give primary consideration to the objectives
of denunciation and deterrence” if the offender abused a person under eighteen years of age.15 In
our opinion, the sentence for aggravated assault is demonstrably unfit.16

[5] We grant leave to appeal and, exercising the powers bestowed on an appeal court under
section 687(1) of the Criminal Code, vary the sentence for the aggravated assault conviction by
imposing a term of imprisonment of two years less a day followed by a three-year probation
period17 to be served consecutively to the two-year-conditional sentence for the failure to provide
the necessaries of life.

10
Factum of the Appellant, ¶ 51 (“A suspended sentence for the offence of aggravated assault against her 5-year-old
son, as committed in these circumstances and with her prior record for violence against the same child, is demonstrably
unfit”).
11
Id. ¶ 53.
12
Appeal Record F139:8-18 (“Ms. Amaaq, this is a very lengthy sentence. It will carry you through the rest of your
20s. It’s meant both to try to give you support and help in the community but also to signal that ... these were very,
very serious offences. And this is a sentence of -- the first part is a sentence of imprisonment. If you breach the
conditional sentence order for the first two years, it is possible for the rest of the time that the order would continue
has to be served in jail. So it can become an actual jail sentence”).
13
Respondent’s Factum, ¶ 6.
14
The Queen v. Gladue, [1999] 1 S.C.R. 688.
15
See also Criminal Code, s. 718.2(iii) (“A court that imposes a sentence shall also take into consideration ... evidence
that the offender ... abused a position of trust ... in relation to the victim”) C. Ruby, G. Chan, N. Hasan & A. Enenajor,
Sentencing 266 (9th ed. 2017) (“Parents who commit crimes against their children are ... in a position of trust”).
16
See The Queen v. K.S.H., 2015 ABCA 369, ¶ 20 (the majority set aside a six-month custodial sentence for a father
who threw his infant onto a bed causing him serious injuries and imposed a three-year prison term, in part, because
the sentencer failed to “give denunciation and deterrence the primacy demanded by s. 718.01 of the Criminal Code”).
17
The terms of probation are the same as those imposed by Justice Charlesworth. Sentence Material F50.
Page: 3

[6] In doing so, we are not stating that this sanction is one we would have imposed on a parent
who has repeatedly 18 assaulted her vulnerable child had the Crown asked for a much sterner
penitentiary sentence for the aggravated assault conviction.

[7] The Crown and the respondent asked us to stay any custodial sentence we might impose to
allow the offender to discharge her parental obligations to her four-year-old daughter.19 We were
told that the offender has shown no signs that she is a danger to this child or the community. Mr.
Wool, Crown counsel, informed us that the offender’s daughter would most likely be placed in
foster care if the offender was incarcerated. Foster care, he opined, would be a poor second choice
in these circumstances and would jeopardize the future welfare of yet another of the offender’s
children. Mr. Cowan, respondent’s counsel, argues that his client has already served the most
arduous part of her conditional sentence – six-months’ house arrest.

[8] With considerable reluctance, we conclude that the exceptional circumstances necessary to
justify this Court staying the offender’s obligation to serve jail time for the aggravated assault
conviction exist here.20 Had only respondent’s counsel made this request, we most likely would
not have granted it. We would have been extremely reluctant to dilute, in any way, the message
that those who imperil the physical and mental welfare of their offspring are guilty of a grievous

18
The Queen v. Murphy, 2014 ABCA 409, ¶ 43; 317 C.C.C. 3d 314, 330 per Wakeling, JA (“Does the offender have
prior convictions for the same offence or other offences? Prior convictions may support the view that a stiffer sentence
than would otherwise be indicated is needed to deter the offender from committing future criminal offences”).
19
We grant Ms. Amaaq’s application to admit fresh evidence. Part of her affidavit states that her daughter “is now
four years old. She is doing well. She is happy and healthy. She is currently enrolled in ‘Head Start’ – pre-kindergarten
classes that she goes to two times a week. I am her sole caregiver. If I were sent to prison, I do not know what would
happen to her. Her father might not be able to take her because he already has six young children at his home. If she
did go there, I am afraid she would be neglected and not taken care of properly. If she did not go there, I do not know
where she’d go. I hate to think of her being taken to a foster home or out of the community. ... It would be devastating
for both my daughter and me if I were sent to prison”). Affidavit of Katelynn Amaaq sworn September 1, 2020, ¶¶ 6
& 7.
20
See The Queen v. Itturiligaq, 2020 NUCA 6, ¶ 99 (“given the significant period of time that has elapsed since Mr.
Itturiligaq was sentenced in October of 2018, and given that his full sentence is likely nearing completion, we stay the
service of the sentence of imprisonment”); The Queen v. Ookowt, 2020 NUCA 5, ¶ 95 (“given the significant period
of time that has elapsed since Mr. Ookowt was sentenced in September of 2017, and given that he has now finished
his sentence, we stay the service of the sentence of imprisonment”); The Queen v. Hilbach, 2020 ABCA 332, ¶ 79
(“given the significant time that has elapsed since Mr Hilbach was sentenced and that he has served his full original
sentence, we do not find it in the interests of justice to reincarcerate him at this time”); The Queen v. Hills, 2020
ABCA 263, ¶ 97 (“In rare cases where appellate courts have imposed custodial sentences to comply with mandatory
provisions of the Criminal Code, including mandatory minimums, they have stayed the execution of the post-appeal
portion of the sentence”) & The Queen v. Lis, 2020 ONCA 551, ¶ 101 (“The Crown asks us not to reincarcerate the
respondent. I would stay the execution of the 19 month remanet of the sentence”).
Page: 4

breach of trust21 and merit a term of imprisonment.22 We were very much influenced by Mr. Wool’s
firsthand account of the limited resources available in the north to care for children without
parental support and the bleak future of those in foster care.23

[9] This is a very sad case from everyone’s perspective – the vulnerable young boy whose
mother cruelly and horribly abused him and withheld from him the love and support to which he
was entitled, the youngster’s grandmother who has adopted the young boy and assumed the duties
and responsibilities of parenthood late in life, the young-mother offender whose formative years
were characterized by the absence of proper parental role models, a victim of intergenerational
trauma, and who must live the rest of her life with the knowledge that she has betrayed the trust
the community imposes on parents to love, nurture and provide the necessities of life to their young
and grievously harmed a young boy whom she had a moral and legal obligation to protect, and the
community whose global welfare is diminished when one of its members acts in such a despicable
and inhumane manner.

[10] We wish to acknowledge the considerable assistance both counsel provided in this case. In
particular, we acknowledge Mr. Wool’s contributions to our deliberations. He gave us the benefits
of his knowledge of life in the far north and the troubles that jeopardize the welfare of his
community.

Appeal heard on September 15, 2020

21
The Queen v. Laberge, 1995 ABCA 196, ¶ 28; 165 A.R. 375, 383 (“Serious crimes of violence against defenceless
children warrant a strong and firm response from the courts. Children are amongst the most vulnerable in our society.
And in our society, parents occupy a position of trust vis-a-vis their children. The existence of that fiduciary
relationship lies at the heart of both the parent-child relationship and the family unit. Therefore, where a parent or
someone who stands in a trust relationship to a child abuses a child, that will be an aggravating factor in sentencing”)
& The Queen v. Lis, 2020 ONCA 551, ¶ 55 (“Parliament’s choice to prioritize denunciation and deterrence as the
sentencing objectives for offences involving the abuse of children reflects a reasoned response to the inherent
wrongfulness of these offences, the enhanced moral blameworthiness, and the serious harm that these offences cause
to the most vulnerable in our community. A sentence that expresses denunciation condemns the offender for
encroaching on our society’s basic code of values”).
22
E.g., The Queen v. B.J.G., 2013 ABCA 260; 556 A.R. 6 (the Court upheld a five-year prison sentence imposed on
an offender who used a butcher knife to inflict eight-inch and six-inch lacerations on his eleven-month-old infant and
pled guilty); The Queen v. Nickel, 2012 ABCA 158; [2012] W.W.R. 86 (the Court imposed a three-year prison term
on an offender who pled guilty to intentionally placing the feet of his nine-month-old daughter in extremely hot water
and causing her to suffer third degree burns); The Queen v. McNall, 1995 ABCA 201; 169 A.R. 162 (the Court upheld
a two-year prison sentence imposed after a trial on an offender who held a child in hot bath water long enough to
cause blisters the next day”) & The Queen v. Browning, [1989] O.J. No. 231 (Dist. Ct.) (the Court imposed a three-
year prison sentence on an offender who placed a child in his care in water he knew was too hot and pled guilty). See
also Sentencing Council, Child Cruelty Definitive Guideline (2018) (English and Wales).
23
This does not appear from the presentence report. It states that “[a] mental health nurse assists individuals having
mental health issues. Elders are available upon request and … [a] counsellor is available for counselling on a need
basis”. Appeal Record F44.
Page: 5

Reasons filed at Iqaluit, Nunavut


this day of October, 2020

Wakeling J.A.

Khullar J.A.

(Authorized to sign for) Hughes J.A.


Page: 6

Appearances:

Gary Wool
for the Appellant

Benson Cowan
for the Respondent

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