Judge, rejecting joint submission, criticizes ‘unprepared’ Crown

A Territorial Court judge this week called a Crown prosecutor “woefully unprepared” and said the victim in a domestic violence case deserved an apology from the federal government.

Judge Donovan Molloy told Simon Hodge, filling in for original prosecutor Emma Skowron, he was “completely unprepared on a credible and serious matter involving a victim of repeated acts of domestic violence.”

Referring to federal Attorney General David Lametti, the judge asked: “Is David Lametti going to apologize to the victim?

“This is just ridiculous … to have a woman who was subjected to serious violence on three occasions … this is not an exercise, this is a very serious, serious set of charges and you’re fumbling around, frankly, and admittedly so.”

Replied Hodge: “Yes sir, your comments are duly noted.”

The case involved a joint recommendation from the Crown and defence – ultimately rejected by the judge – to sentence Benjamin John Robert Nitsiza to one year in total for 12 crimes carried out in 2020.

Those crimes included domestic violence, uttering threats to kill, criminal harassment, mischief, and attempting to disarm a police officer.

The case had been set to proceed on February 4 but prosecutor Skowron showed up to request an adjournment, in order to determine if the victim wanted to file an impact statement.

On that day, Skowron told Molloy the victim thought she had made a statement when she had spoken with someone over the phone.

“It was a miscommunication,” said Skowron, noting details surrounding restitution for damage also hadn’t been settled.

The case had already been adjourned from January 18 and Molloy said the Crown had plenty of time to ensure everything was in order. He denied the request for another full delay.

Threats and assaults

Nitsiza had agreed to plead guilty to the 12 counts in exchange for having 13 others dropped and receiving a joint submission for a one-year jail term followed by 18 months’ probation.

The court heard that on two occasions in March 2020, Nitsiza – who had been drinking each time – struck a woman multiple times at her Yellowknife residence.

He also placed a knife in his pocket and ordered her to get him cigarettes at the store, leaving her five-year-old child. He threatened to harm her, the child, and police if she reported him.

Police did receive a report of the woman at around 8pm “running around outside with no shoes on holding a child,” Skowron told the court.

On the night of July 17, 2020, the woman invited Nitsiza over and he demanded to see her cellphone. When she refused, he slapped her, punched her repeatedly, pulled her by the hair and smashed the phone. She fled and asked a friend outside to use a phone to call police.

While inside, Nitsiza smashed her TV and did other damage.

On the night of October 16, 2020, RCMP received a report of a stabbing at the Norseman Apartments and observed Nitsiza outside with a bleeding hand that required medical treatment. Nitsiza gave a wrong name. Police eventually discovered there was a warrant for his arrest. As he was leaving hospital, he tried to escape from officers. During the struggle, Nitsiza grabbed onto an officer’s firearm. He was subdued and arrested.

On November 22, the victim invited Nitsiza to her residence. He attempted to persuade her not to show up at court to testify against him. When she said she intended to testify for the March incident, he struck, bit and pinched her.

‘Admittedly underprepared’

On Wednesday, prosecutor Hodge could not say if the victim was of Indigenous descent after being asked by Molloy, as it would mean she is considered a vulnerable person for the purposes of sentencing under federal law.

The prosecutor brought no case law to support the joint sentencing submission and had not broken down the penalty each crime would receive, only a global sentence for all.

“The PPSC [Public Prosecution Service of Canada] had since February 4. The PPSC had 15 days and was advising last time they had already agreed to 12 months [joint sentence]. I would have expected all of this would have been done to come up with an informed submission then,” said Molloy.

“So I’m supposed to take your opinion that 12 months is a satisfactory disposition for all of these matters? Wouldn’t that case law have had to be considered by you and your colleagues? How do you come up with joint submissions over there?”

Molloy rejected Hodge’s request to adjourn the case for one day so he could better prepare.

“Please keep going, I want to see how woefully underprepared you are,” he said. “You’re a Crown attorney, you’re paid to prosecute, you’re paid to come here and be prepared … you tell me if I’m asking questions that are unusual or that are unreasonable.”

Hodge replied that he was “admittedly underprepared” and thought the submissions on the file had been better prepared when he assumed control.

“I didn’t put enough of my preparation time into reviewing and adjusting any deficiencies in the preparations. I wish I were in a better position to answer your questions, sir,” he said.

Molloy was told the original prosecutor, Skowron, had been needed to prepare a witness for an upcoming trial.

The judge rejected that excuse, asking rhetorically whether a witness meeting was more important than sentencing a man convicted of serious domestic assaults.

“Why are you making submissions you had no part with?” asked the judge. “I’m trying not to lose my temper.”

Molloy eventually told the Crown and defence lawyer Stephanie Whitecloud-Brass he was not “convinced this is a situation where I can accept the joint recommendation.”

A hearing was scheduled for February 24 to allow the defence to consider whether Nitsiza wants to withdraw his guilty pleas and proceed to trial.

If the pleas stand, the Crown and defence can also make further submissions to back up their joint submission at that time.

This isn’t the first time Molloy has expressed concern over how the PPSC operates in the NWT.

Earlier this month, he said the number of times the Crown and Legal Aid change lawyers on cases in remote communities is “potentially prejudicial to the administration of justice.”