A mother won't have a criminal record for repeatedly punching her daughter after the Nunavut Court of Justice overturned a decision by a community justice of the peace in Rankin Inlet.
Justice Susan Charlesworth allowed Verna Kowtak's appeal because Charlesworth said the original decision did not consider Gladue factors.
Gladue is the name of a Supreme Court case that set the precedent of requiring courts to take the personal circumstances of Indigenous offenders into account, when deciding on an appropriate sentence.
Charlesworth delivered the appeal decision in the Nunavut Court of Justice in Iqaluit on Jan. 14.
Kowtak pleaded guilty to the assault charge against her 15-year-old daughter and was originally sentenced on Sept. 11, 2017.
The justice of the peace gave her a suspended sentence — which means she had a criminal record, but did not serve time. She was also sentenced to nine months probation and was to pay a $100 victim surcharge.
During the incident, which took place in February 2017, Kowtak was at home, drunk and arguing with her husband. Her daughter told Kowtak to stop being rude to her dad, after which Kowtak punched her multiple times with a closed fist.
Justice of the peace erred
While Charlesworth agreed with the Crown the sentence was normal for the case, she decided the justice of the peace made mistakes by not considering Kowtak's personal history, by making assumptions and relying too heavily on the Crown's suggested sentence.
Kowtak's personal history includes the fact she herself had been a victim of domestic abuse.
She has seven children ranging in age from nine to 19. She also takes care of her one grandson, all of whom live with her and her husband in a two-bedroom house.
These factors of overcrowding and victimization should have been considered along with the standard principles of sentencing which include denouncing and deterring assault, Charlesworth said.
"The fact that he decided he would not consider them because this was a case of family violence was an error in law," Charlesworth said in her decision.
A history of employment and good behaviour is given substantial credit by the court - Justice Susan Charlesworth
She acknowledged that community justices of the peace have difficult jobs, passing judgments on the fellow community members, without the same legal training as the Nunavut Court of Justice judges.
They also have "first-hand view of the effect such a crime has on family life and the rearing of children," said Charlesworth, but she went on to say the justice of the peace made an incorrect jump when he said someone capable of this violence could have done something similar before.
He had said "just because there is no criminal record does not necessarily mean it has never happened before."
Charlesworth said courts must not rely on conjecture when deciding sentences, and Kowtak's lack of a criminal record should have been seen positively by the court.
Charlesworth considered the Gladue factors, the best interest of the accused and public interest and decided to discharge Kowtak, meaning she will no longer have a criminal record.
Kowtak was a first-time offender and employed by the government of Nunavut in elder care.
"I believe it is in the best interests of the community of Rankin Inlet to see that a history of employment and good behaviour is given substantial credit by the court," Charlesworth said.