Supreme Court

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
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