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Abstract: Transcript of Reasons for Sentence
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R. v. Ruben, 2015 NWTSC 49 File No. S-1-CR-2014-000034 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - NANCY BERTHA RUBEN ____________________________________________________________ Transcript of Reasons for Sentence delivered by the Honourable Justice K. Shaner, sitting in Yellowknife, in the Northwest Territories, on the 23rd day of September, 2015. ____________________________________________________________ APPEARANCES: Mr. D. Praught Counsel for the Crown Mr. T. Bock Counsel for the accused (Charge under s. 268(2) of the Criminal Code) Official Court Reporters/Sténographes judiciaires officiel(le)s 1 WEDNESDAY, SEPTEMBER 23RD, 2015 2 3 REASONS FOR SENTENCE 4 SHANER J. (Orally): 5 On July 30th of this year, Nancy Bertha Ruben 6 was convicted of aggravated assault against Nora 7 Martin following a judge alone trial. Sentencing 8 was adjourned so that a pre-sentence report could be 9 prepared and provided to the Court, and to the Crown 10 and defence. 11 I heard submissions from each of the counsel on 12 Monday as well as a letter from Ms. Ruben, which was 13 read out by her counsel, and the proceedings were 14 adjourned to today for reasons and decision on 15 sentencing. 16 Aggravated assault is a very serious offence 17 which has a maximum penalty of 14 years. The Crown 18 in this case is seeking a sentence of 20 months to 19 two years, less time spent waiting for sentencing at 20 a rate of one and a half days' credit for each day 21 served which would amount to 88 days. This would be 22 followed by a period of two years of probation, the 23 terms of which would include a requirement to attend 24 counselling as directed. 25 Defence counsel submits that a custodial 26 sentence in the range of 15 to 20 months less credit 27 for pre-trial and pre-sentence custody is 1 appropriate. From submissions, I understood that 2 defence counsel was in agreement with what the Crown 3 proposed with respect to the length of the 4 probationary period. 5 The salient aspects of the circumstances of the 6 offence are as follows: 7 On the evening of October 15th, 2013, the 8 victim, Nora Martin, was standing at the corner of 9 50th Avenue in Yellowknife, by the Canadian Imperial 10 Bank of Commerce. She was with a friend. She had a 11 re-usable shopping bag over her shoulder which 12 contained, among other things, her wallet. She was 13 about to cross the street to go to the bus stop. 14 Ms. Ruben and her husband, Jason Balsillie, 15 approached them from the other side of the street. 16 The victim and Ms. Ruben were known to each 17 other, but they were not close and they had not been 18 interacting that day. Ms. Ruben initiated contact 19 with Ms. Martin, asking her if she had money or 20 liquor. Ms. Martin replied that she had neither. 21 Ms. Ruben then became angry and accused Ms. Martin 22 of lying. She grabbed the shopping bag on 23 Ms. Martin's shoulder. In doing so, she pulled 24 Ms. Martin down with enough force for Ms. Martin to 25 fall to her knees. Ms. Ruben then attempted to kick 26 Ms. Martin in the head. Ms. Martin put her left 27 hand up to protect her head and Ms. Ruben wound up 1 kicking her in her left arm, breaking it. The 2 attack was unexpected and unprovoked. 3 The crime has had a significant psychological 4 and physical effect on Ms. Martin, which persists to 5 this day. Ms. Martin prepared a Victim Impact 6 Statement a few months after the events in which she 7 indicated that, as a result of this injury, she was 8 having difficulty with everyday tasks like 9 showering, dressing herself and cooking. She has 10 been unable to work and she has had to seek income 11 assistance. She became fearful of walking around at 12 night. She experienced what she described as an 13 emotional roller coaster with feelings of 14 helplessness, fear and sadness. At the trial she 15 indicated that she was still unable to work and that 16 she continued to suffer from having a limited range 17 of motion in the arm which was injured. 18 The offender, Ms. Ruben, is homeless and she is 19 poor. She has had and she continues to have a life 20 characterized by many significant challenges. 21 Ms. Ruben is an Inuvialuit woman who was raised in 22 Paulatuk, a small community in the Arctic. She is 23 41 years old. Her family was very large; her 24 parents had 22 children. They lived a traditional 25 lifestyle and, as a result, Nancy Ruben learned many 26 traditional skills. Her mother was employed as a 27 teacher. 1 Family life was very rough however. Her father 2 and brothers abused alcohol and fought in the home. 3 Her lawyer relayed to me on Monday that Ms. Ruben's 4 mother would get scared and run away, leaving the 5 children to fend for themselves. Ms. Ruben was 6 picked on and bullied by other family members. 7 When she was eight, Ms. Ruben was abused by a 8 babysitter, and this abuse lasted for about a year. 9 At 15, she was the victim of a sexual assault and 10 she became pregnant with her first son as a result 11 of that. When she told her parents what happened 12 and that she was pregnant, they beat her. 13 She started to abuse alcohol at that time and 14 she quit school, thus attaining only a grade 8 level 15 of education. She began to look after other family 16 members' children. She eventually left Paulatuk 17 when she was 17 or 18 years old. 18 At 20, Ms. Ruben had another son. Both 19 children were eventually placed in foster care, 20 something which has affected her deeply and 21 following which she increased her use of alcohol. 22 She has attended treatment programs and counselling 23 at various times in the past, however she continues 24 to drink. 25 Ms. Ruben has worked as a cleaner and as a camp 26 cook, although she has not been employed steadily 27 for a number of years. Given her lack of housing, 1 lack of education and her alcohol addiction issues, 2 this is not in the least surprising. Further, she 3 has physical injuries which impede her ability to 4 work at the kinds of physically demanding jobs that 5 she once did. 6 Ms. Ruben has been married to Jason Balsillie 7 for six years. They are both homeless and so they 8 do not live together, however they spend their days 9 together. There has been quite a bit of violence in 10 their relationship and each has been convicted of 11 assault upon the other. That said, Ms. Ruben cares 12 very deeply for her husband and she worries about 13 him. 14 Ms. Ruben herself has a criminal record. There 15 are 23 convictions which go back to 1995. Most of 16 these are for failing to comply with various court 17 orders. There are seven convictions for crimes of 18 violence. The most recent ones are a 2007 19 conviction for assault with a weapon for which she 20 received 18 months in prison, and a 2013 conviction 21 for simple assault for which she received three 22 months in jail plus a year of probation. 23 With respect to the last conviction, her 24 defence counsel submitted a document entitled 25 "Report Back to Court" prepared by Ms. Ruben's 26 probation officer and filed with the Territorial 27 Court in December of 2013, and in it her probation 1 officer reported that Ms. Ruben was actively 2 participating in community-based programming and 3 showing an eagerness to address issues such as 4 alcoholism, anger and unhealthy relationships. 5 Unfortunately, it seems that she has not been 6 entirely successful in this. 7 There are a number of objectives in sentencing 8 that are set out in the Criminal Code and the case 9 law which apply in varying degrees of importance 10 depending on the nature of the offence and the 11 circumstances of the offender. These include 12 denunciation, specific and general deterrence, where 13 necessary the separation of offenders from society, 14 rehabilitation, reparation and the promotion of a 15 sense of responsibility in offenders. 16 In this case, primary consideration must be 17 given to the objectives of denunciation, deterrence 18 and protection of the public. Restraint and parity 19 of sentencing are also important here, as they are 20 in all sentencing matters. 21 Overall, the sentence must reflect the 22 seriousness of the offence and the degree of 23 responsibility or moral blameworthiness of the 24 offender. This in particular must be borne in mind 25 in considering how to achieve the objectives of 26 sentencing. 27 In determining moral blameworthiness and in 1 determining what sentence will achieve the relevant 2 objectives, it is incumbent on me, as the sentencing 3 judge, to consider Ms. Ruben's Aboriginal background 4 and the systemic factors in her background, which 5 may have led her to her involvement with the justice 6 system today. It is very clear that there is a 7 whole host of systemic factors which have left 8 Ms. Ruben predisposed to heavy involvement with the 9 justice system. The odds were and continue to be 10 stacked against her. 11 She was a victim of a very serious crime at a 12 young and formative age, which resulted in a 13 pregnancy. Her parents victimized her further by 14 beating her up when she told them what happened. 15 She dealt with this by abusing alcohol, and it is 16 not clear what, if any, medical or psychological 17 support would have been available to her at the 18 time. I cannot imagine that there was much in 19 Paulatuk at the time at her disposal, and this no 20 doubt led her to deal with her problems through 21 alcohol. 22 This seems to have sent her on a very tragic 23 path. She lost her children, and while she has had 24 periods of stability, she has spent more time 25 homeless and transient and it seems she has never 26 gained enough traction to get ahead of the curve in 27 any meaningful way. 1 Parity means that sentences for like offences 2 should be similar. That does not call for sentences 3 to be exactly the same. However, it does mean that 4 sentences should not, unless there is a very good 5 reason, represent a marked departure from the normal 6 range in sentencing. 7 In support of its position on the appropriate 8 length of incarceration and the objectives that are 9 engaged in this case, the Crown referred to and 10 submitted a number of cases, namely, R. v. Mitchell, 11 2009 NWTSC 52, R. v. Catholique, 2010 NWTSC 37, 12 R. v. Camsell, 2012 NWTSC 55, R. v. Wanderingspirit, 13 2013 NWTSC 44, and R. v. Apsimik, 2015 NWTSC 21. 14 All of these were cases of aggravated assaults. 15 In all but the Apsimik case, where the custodial 16 portion of the sentence was 22 months, the sentences 17 imposed were lower than what is proposed by the 18 Crown in this case. Crown counsel pointed out, 19 however, that there are a number of distinguishing 20 factors in this case which, it says, would justify a 21 sentence in the higher range than it proposes here. 22 As well, in all of the cases cited earlier, 23 except the Mitchell case, the offender pled guilty. 24 In the Mitchell case, the offender was 25 initially trying to stop a fight. He went further, 26 however, and he knocked the victim to the ground and 27 then proceeded to kick him in the face, breaking his 1 jaw. That resulted in a serious disabling injury. 2 Mr. Mitchell was sentenced to 12 months 3 incarceration followed by a period of probation. 4 The offender, Mr. Mitchell, who was Aboriginal, was 5 nearly 20 years younger than Ms. Ruben, and although 6 he had a criminal record, it was not as extensive as 7 Ms. Ruben's. The attack, though unjustified, 8 occurred in the context of a fight, unlike the case 9 here where the attack was entirely unprovoked. 10 Catholique was an aggravated assault where the 11 accused, also in the midst of a fight, threw the 12 victim down some stairs, breaking his jaw and 13 causing facial injuries. The accused then continued 14 to kick the victim, who sustained serious injuries. 15 Mr. Catholique was an 18-year-old Aboriginal 16 offender. Although the Court found no indication of 17 systemic factors related to his ethnicity or 18 background which would affect sentencing, his youth 19 and his limited criminal record elevated 20 rehabilitation as an important consideration and, as 21 such, the sentencing judge found that a lengthy jail 22 term would be unjustified. The offender was thus 23 sentenced to a period of incarceration of 15 months 24 followed by 18 months probation, and this was based 25 on a joint submission from counsel. 26 In the Camsell case, the 26-year-old accused 27 received a sentence of 18 months incarceration and 1 one year probation. The victim was attacked in his 2 own home after asking his assailants to leave. He 3 suffered a broken jaw and he required extensive 4 treatment. The sentencing judge cited as 5 aggravating factors that the victim was attacked at 6 home and restrained physically by one assailant 7 while the other beat him. His guilty plea and 8 expression of remorse were considered highly 9 mitigating. 10 Wanderingspirit involved Mr. Camsell's 11 co-accused. There the 36-year-old offender received 12 a sentence of 19 months incarceration followed by 13 probation. He had a significant criminal record 14 which included two counts of assault with a weapon. 15 In the Apsimik case, the offender, as I noted, 16 received a custodial sentence of 22 months which was 17 followed by three years of probation. The attack 18 there was sustained, with the victim being kicked 19 repeatedly in the head and upper body while he was 20 on the floor. The offender had an extensive 21 criminal record. His guilty plea was a mitigating 22 factor. 23 In my view, the cases suggest that a period of 24 incarceration ranging from 18 to 24 months should be 25 considered in this case. There are both aggravating 26 and mitigating circumstances here. It is highly 27 aggravating that the attack was unprovoked and 1 initiated entirely at the instance of Ms. Ruben. 2 The victim was completely unprepared for it and it 3 is hard to imagine the shock and horror of being 4 physically attacked and seriously injured in the 5 middle of the street in the early evening in 6 Yellowknife. 7 Ms. Ruben's criminal record is also aggravating 8 insofar as the convictions for crimes of violence 9 are concerned. She knows this is wrong. She has 10 been convicted of and received punishment for 11 similar crimes in the past, including one sentence 12 of 18 months. 13 Although Ms. Ruben does not have the benefit of 14 a guilty plea as a mitigating factor - and I will 15 emphasize that the absence of a guilty plea is not 16 an aggravating factor - she did have her lawyer, as 17 I mentioned, read into court a letter during 18 submissions on sentencing in which she acknowledged 19 that her actions were wrong and that they caused 20 harm to the victim. I took this as a sincere 21 expression of remorse and acceptance of 22 responsibility for what happened by Ms. Ruben, and 23 I do give it weight. 24 Ms. Ruben's life, as I have said, has been very 25 difficult and it continues to be so. Given her 26 background, it is no surprise whatsoever that she 27 has had such frequent contact with the criminal 1 justice system. This is particularly so insofar as 2 the convictions for failing to comply with court 3 orders are concerned. Being homeless and poor 4 creates instability which may make it difficult to 5 comply with court-imposed conditions; addiction only 6 adds to this. Further, her addiction, which she has 7 not effectively addressed, appears to add to her 8 propensity for violence. 9 All of this supports the conclusion that 10 Ms. Ruben's moral blameworthiness must be treated as 11 somewhat diminished. That does not mean, of course, 12 that she is blameless. Ms. Ruben is here because 13 she committed a random act of violence and she hurt 14 someone very, very seriously. She must shoulder the 15 responsibility. 16 Denunciation and deterrence are very important 17 and so is public safety. The victim Nora Martin and 18 anyone else like her has the right to walk on our 19 streets without fear of random attack. The sentence 20 must thus strike a balance between recognizing 21 Ms. Ruben has had significant challenges in her life 22 which contribute disproportionately to her 23 involvement with the justice system, while also 24 being meaningful enough to motivate her to deal with 25 her addictions and anger and to deter her from 26 committing further violent acts. It must also 27 strike a balance between the need for public safety 1 in the short term, which can be achieved through 2 incarceration, and public safety in the long term 3 which, in these circumstances, cannot be achieved 4 through incarceration alone. A combination of 5 incarceration with, hopefully, effective programming 6 and close community supervision following prison is 7 required. 8 For these reasons, I concluded that a period of 9 incarceration of 20 months followed by a period of 10 probation of two years is appropriate. 11 Ms. Ruben, can you please stand up. 12 Ms. Ruben, it is really difficult for me to say 13 this, but I have to impose this sentence. Upon 14 being convicted of aggravated assault and upon 15 consideration of the circumstances and the nature of 16 the offence as well as your personal circumstances, 17 I sentence you as follows. You are sentenced to a 18 period of incarceration of 20 months. You will be 19 credited with a period of 88 days, which is 20 approximately three months, which represent the time 21 that you spent on remand, calculated on a basis of 22 1.5 days for each day served, and so you will have 23 approximately 17 months left to serve. 24 That will be followed by a period of two years 25 of probation, and I will tell you the terms of that 26 probation order in a moment. Do you understand? 27 THE ACCUSED: (Indicates in the affirmative) 1 THE COURT: You can sit down, Ms. Ruben. 2 The terms of the probation order are going to be as 3 follows: 4 5 You will have to report to Probation Services 6 within two business days of your release and 7 after that as you are directed by your 8 probation officer. 9 You will keep the peace and be of good 10 behaviour. 11 You will appear in court as required. 12 You will notify Probation Services or the court 13 of any change in your address, employment, name 14 or occupation. 15 You will abstain from consuming alcohol or 16 other intoxicating substances. 17 You will abstain from consuming drugs except 18 those that have been medically prescribed for 19 you. 20 And, finally, I note that your counsel stated 21 on your behalf in submissions that you are 22 prepared to attend treatment, possibly 23 residential treatment. So it will be a term of 24 your probation that you attend treatment 25 programs as directed by your probation officer 26 and, of course, subject to being accepted into 27 those treatment programs. 1 I would only add to that that I do hope that 2 Probation Services is able to access the kinds of 3 treatment programs for Ms. Ruben that she is in need 4 of. 5 I am now going to turn to the ancillary orders. 6 The Crown has asked that I impose a firearms 7 prohibition order under s. 109, and I will do so. 8 Crown, you are seeking just a 10-year firearms 9 prohibition? 10 MR. PRAUGHT: Yes, Your Honour. 11 THE COURT: You will also be required to 12 submit to the collection of bodily fluids for DNA 13 analysis. 14 Finally, I am unable to waive the victims of 15 crime surcharge because of recent amendments to the 16 Criminal Code, and so you will be required to pay 17 $200.00 as a victim of crime surcharge. Mr. Bock, 18 do you have any submissions on time to pay? 19 MR. BOCK: Due to her circumstances, 20 $200.00 is obviously a lot of money. However, I 21 would submit that -- eight months, Your Honour. 22 THE COURT: All right. I will direct that 23 the Order provide that Ms. Ruben has eight months to 24 pay the victim of crime surcharge following her 25 release from prison. 26 Counsel, is there anything else? 27 MR. PRAUGHT: Your Honour, the specific 1 request of Ms. Martin, the Crown did request a no 2 contact condition on.... 3 THE COURT: I'm sorry, yes. The probation 4 order should include a provision that Ms. Ruben have 5 no contact with Ms. Nora Martin, the victim. And is 6 there anything else? 7 MR. PRAUGHT: No, Your Honour. 8 THE COURT: Mr. Bock? 9 MR. BOCK: No, thank you, Your Honour. 10 THE COURT: Ms. Ruben, when you go to 11 prison, you are going to have access to a number of 12 treatment programs. Please, please take advantage 13 of them and use this as an opportunity for 14 rehabilitation and an opportunity to kickstart your 15 work on beating your addictions because you are 16 still a young woman, you are only 41 years old, you 17 have got a lot of years ahead of you, and I know 18 that you can change. 19 ******** 20 21 22 Certified Pursuant to Rule 723 of the Rules of Court 23 24 ______________________________ 25 Lynn Carrière Court Reporter 26 27
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