Court Shorts: Judge praised; three juries; and some quick quotes
“There is nothing you can do to change the past. The only thing we have in life is the present, and the present can help us shape the future.”
— NWT Chief Justice Louise Charbonneau
Now here is something you don’t hear very often in court — a convict thanking the judge who sent him away.
It happened recently in Yellowknife Supreme Court, when Tony Howard Kakfwi appeared via video link from Drumheller Institution in Alberta, where he has been serving out his latest period of incarceration.
At the start of a hearing to clear up a lingering technicality in his case, Kakfwi asked NWT Chief Justice Louise Charbonneau if he could address her.
“I haven’t had the opportunity to thank you so much,” he said. “It’s not nice sending people to jail, but as it can mean you can get help, thank you for that. There are not a lot of resources at home.”
Charbonneau — one of the kindest and most thoughtful judges in the NWT — smiled and said she was pleased “things have worked out as they have,” as Kakfwi had just been deemed eligible for day parole in Edmonton, having shown good progress in treatment.
“Good luck on day parole and thank you again (for your comments today).”
Kakfwi, 50, had a lengthy criminal record when he fired a high-powered rifle off several times outside Fort Good Hope’s annual band meeting in November 2016. Drunk and suicidal, he was responsible for a 2.5-hour standoff with the small RCMP detachment, who feared for their lives and those of people in the community.
During sentencing in 2018, Charbonneau detailed Kakfwi’s troubled upbringing and offered words of support for his rehabilitation.
“The home environment that Mr. Kakfwi grew up in was difficult,” stated her written decision. “There was alcohol abuse and domestic violence in the family. There was poverty.
“There was physical and mental abuse.The children were disciplined in very rough ways. There were no physical displays of affection. In short, Mr. Kakfwi grew up in an environment where, as a child, his basic needs were not met.
“Children should be cared for and protected by their parents and by adults in general.
“One thing that is very clear is that it is crucial that he get treatment. There is no residential treatment in the Northwest Territories, but residential treatment is available through other means.
“If Mr. Kakfwi is serious about getting treatment, he is going to have to get it outside the territory, and I sincerely hope that can be arranged and that he will go.”
(I note that isn’t the first time a judge has noted the lack of a residential treatment centre in the NWT, a topic I have previously written about as well.)
Charbonneau sentenced him to five years in total after he pleaded guilty to reckless discharge of a firearm, uttering threats and using a firearm while committing an indictable offence. With his significant pre-trial remand credit and his good behaviour in prison, he was eligible for day parole.
“There is nothing you can do to change the past. The only thing we have in life is the present, and the present can help us shape the future. And I hope that you find the strength to do just that,” stated Charbonneau at sentencing, noting Kakfwi had a lot of support during his court appearances.
“And I hope you remember the people that came today who gave you those hugs, who said those words, and the people who wrote the letters.
“Because those will be a part of your future and your healing if you stick with your plan to change your ways.”
It took the Crown three tries to convict a Whati man for sexually assaulting a 13-year-old girl when he more than twice her age.
After sitting through the trial in Supreme Court, I started to understand why the two previous juries couldn’t reach a verdict.
At issue for the jury was whether Cory Ross Nitsiza knew the girl was younger than 16 – the legal age of consent in Canada — or, if not, whether he did enough to ascertain her real age.
He says she lied to him, saying she was 16. However, in the small community of 400 in which they lived, the pair had crossed paths several times — he actually helped babysit her at one point in the past — and had attended the same blended grades school.
However, the girl hung around with slightly older friends and she was out early in the morning after drinking and smoking cannabis. In fact, she was carrying a blow torch to heat the dope to smoke it — it must have been weed oil — when she had shown up at his back door with a friend in the early morning of Aug. 24, 2016.
There was also conflicting testimony as to whether she willingly went up to his room, what — if any — disagreement there was before and during the sex act and what mood she was in when she came downstairs.
Interestingly, the judge and defence counsel both asked the jury to keep in mind “the sophistication, education and circumstances,” of the accused.
After watching the witnesses testify — including the accused — it was clear to me life in a small community in the NWT must be so very different from the situation found in cities.
“Nasty, brutish and short” is a 17th-century phrase describing life in a state of war. In this case, to my mind, it applies to many people in remote, Indigenous communities who are in a state of war against more than a century of colonization and the lasting effects of the residential school system.
While some embrace their traditional roots, or have found a way to succeed, many are drifting and in dire straits. I see evidence of this every week as I sit in court. It’s sad, distressing and depressing.
Back to the case in point, another issue for the jury was that both the accused and the victim admitted, under cross-examination, they had lied about aspects of the case at various times.
I think it came down to the jury believing Nitsiza didn’t do enough to verify the girl’s age. This has happened in other sexual assault cases I’ve covered.
A Crown prosecutor once told me a man doesn’t have to demand photo ID, but some provable effort must be made to avoid committing a crime. Willful blindness must be replaced by common sense.
But what about the fact that a 13-year-old girl was out drinking and drugging all night with friends? She will need counselling and support to straighten up her life and find some hope and inspiration.
Where were her parents or guardians?
(A reminder from the top item, when Justice Charbonneau stated: “Children should be cared for and protected by their parents and by adults in general.”)
I’ve spoken with Indigenous leaders who hope the current generation of young children might be the first to have a fighting chance at beating the odds that have crushed the generations before them.
I must commend the Crown for presenting this case three times. A message needs to be sent to other men who might find themselves in a similar situation as Nitsiza. And for the good of society, it’s good to know the law will act as a backstop for ineffective parenting.
Nitsiza remains free on bail until his sentencing date before Justice Andrew Mahar on June 17.
“I’ve never spoken in court about someone over a weed high … it’s not taken hold as much as I would have thought.”
— Prominent defence lawyer Peter Harte speaking with other lawyers one day before court on legalized cannabis. Alcohol remains the most abused intoxicant with people finding themselves before a judge.
“She told the officer that she loved him.”
— Crown prosecutor Jeffrey Major-Hansford about a woman convicted for her first impaired driving charge after caught speeding on the Dettah Ice Road.
“I put them on a trolley and just walked out.”
— A man revealing his unsophisticated shoplifting technique for stealing TVs at Canadian Tire.
“A domestic relationship is not an MMA competition.”
— Territorial Court Judge Robert Gorin reading his decision in a case where a trained fighter was convicted of assaulting his common-law wife.
“When you were very young, growing up inside your mother’s reproductive parts, you were exposed to alcohol.”
— An aging associate judge in territorial court awkwardly explaining FASD from the bench in a sentencing.
“He said he was going to kill me … going to get everyone he knows after me … he was going to get his drug dealer to kill me.”
— A security guard testifying in the case of a drunken man found in lobby of the Quality Inn in downtown Yellowknife.
“I never came into a situation where someone had been handcuffed by a security guard.”
— An RCMP officer testifying about what he found when he was called to the Quality Inn that night.
“We’re not really using it.”
— An RCMP officer on a cool-looking prisoner transport vehicle acquired from the Alberta Sheriff’s office that sits behind a new chain link fence in the courthouse parking area. It was brought up here to be used during renovations to the holding cells in the building. However, it was quickly determined it couldn’t be left running all day to provide heat during colder months. Other temporary accommodations inside the complex were made for the prisoners until renovations are completed later this summer.