R. v. Kullualik, 2020 NUCJ 6

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kullualik, 2020 NUCJ 06 Date: 20200220 Docket: 08-17-454, 08-18-425 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Simon Kullualik ________________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown/Appellant): A. Dion Counsel (Accused/Respondent): C. Christie Location Heard: Iqaluit, Nunavut Date Heard: December 6, 2019 Matters: Appeal from sentence pursuant to section 730(1) of the Criminal Code of Canada, RSC 1985, c C-46 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Mr. Kullualik pleaded guilty to a series of

summary conviction offences in Iqaluit Justice of the Peace Court on August 16, 2018. The Crown is appealing the sentence imposed, which was a conditional discharge with two years’ probation concurrent on each offence. The Crown instead seeks a conditional sentence with 12 months’ probation, also concurrent. II. FACTS [ 2 ] The facts of the offences to which Mr. Kullualik agreed are set out in the Appellant’s Factum and I will summarize them briefly. A. October 2017 assault [ 3 ] On October 19, 2017, Mr. Kullualik assaulted his girlfriend, the victim, in his bedroom. Mr.

Kullualik’s sister heard scuffling noises and opened his door to find him on top of the victim, holding her down. He was intoxicated and was aggressive with the RCMP when they arrived at the home. The victim was visibly shaken and said Mr. Kullualik had become upset with her, held her down with his forearm and punched her. She was very scared and said this had not happened to her before. [ 4 ] Mr. Kullualik was arrested and removed from the residence, held in a cell until sober and then released on a Promise to Appear, with an Undertaking to attend Court on December 7, 2017. B.

Failure to appear in court [ 5 ] Mr. Kullualik did not appear in court as required on December 7, 2017 and was charged with the offence of failing to appear. C. June 2018 assault and breach [ 6 ] On June 20, 2018, the RCMP responded to a call for assistance at the Frobisher Inn in Iqaluit. They attended Room 322 and received a statement from the victim in which she stated that Mr. Kullualik had been intoxicated the previous day and was being rough with her. She wanted to get away from him for the night and went to the Frobisher Inn. [ 7 ] In the morning Mr.

Kullualik called her room and seemed sober, so she let him come to her room. Mr. Kullualik, “started flipping out and accusing her of cheating on him.” He was pushing her around, grabbed her by the hair as she tried to leave, and then punched her in the back of the head several times. A room-cleaner intervened to stop the assault. [ 8 ] The victim was nine months’ pregnant at the time of this assault and gave birth on July 1, 2018. She was an extremely vulnerable victim, and this was acknowledged as an aggravating factor in the Defence submissions. [1] III.

SUBMISSIONS [ 9 ] The test for a conditional discharge is that it must be in the best interests of the accused and it must not be contrary to the public interest ( s. 730(1) of the Criminal Code ). At the sentencing hearing, the submissions of both parties emphasized that the main issue for the Justice of the Peace to determine was whether a discharge would be “not contrary to the public interest”. Regarding the first part of

the test, the Crown conceded that such a sentence would be in Mr. Kullualik’s interest. [10] The Appellant Crown’s position is that the learned Justice of the Peace made an error in principle in not assessing the publicinterest component of a conditional discharge and this error had an impact on the sentence. The Appellant also submits that the sentenceof a conditional discharge in this situation was demonstrably unfit. [11] At the sentencing hearing on August 16, 2018, the Crown advised that Mr. Kullualik did not have a criminal record.

She also notedthat the victim did not want to provide a victim impact statement but did tell the Crown’s office that “she does wish the relationship tocontinue”.[2] Because there were two domestic assaults, the Crown emphasized general deterrence in her recommendation for a shortconditional sentence of imprisonment followed by 12 months of probation. [12] The Appellant requests that this court overturn the conditional discharge and impose the conditional sentence and probationrequested by the Crown at the time of sentence. [13] At the sentencing hearing on August 16, 2018, the Defence requested that the Justice of the Peace consider a conditional dischargewith a two-year period of probation and acknowledged that it would be an “uphill battle” to justify such a sentence.

The Defence filedexhibits, including a letter from Mr. Kullualik’s sister, who acted as his surety on his release on June 21, 2018. She advised that Mr.Kullualik and the victim were residing in her home and doing well with their baby boy.[3] Further, Mr. Kullualik had been accepted intoa Management Studies Program at Nunavut Arctic College in Rankin Inlet and the family intended to move there so he could start hisstudies in September. Housing and counselling for alcohol addiction, anger management, trauma and healthy relationships would beavailable to Mr. Kullualik through Arctic College. Mr.

Kullualik and the victim were intending to seek relationship counselling together,as well.[4] [14] The Respondent argues that the Justice of the Peace did consider the public interest component of the test before deciding on theappropriate sentence, although it agrees that the specific words, “public interest,” were not used in her decision. The Respondent alsosubmits that the sentence imposed is within the range of possible sentences for these offences and is not unfit. IV.

THE LAW OF APPELLATE REVIEW ON SENTENCING [15] In R v M (CA), (SCC), [1996] 1 SCR 500, 194 NR 321 Lamer CJ discussed the parameters of appellateintervention in sentencing decisions at para 90: [90] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a courtof appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. [Emphasis inoriginal] [16] Almost two decades later, in the case of R v Lacasse, 2015 SCC 64, Wagner J (as he then was) added to the first part of thisstatement at para 44: [44] In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating ormitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impacton the sentence. [17] The court in Lacasse went on to add at para 49, “an appellate court may not intervene simply because it would have weighed therelevant factors differently.” [18] As noted above, the Appellant’s position is that the Justice of the Peace failed to consider a relevant factor (the public interest) andher failure to do so had an impact on the sentence.

Alternatively, the Appellant argues that a conditional discharge was demonstrablyunfit. In either case, the Appellant asks this Court to set aside the conditional discharge and impose a two-month conditional sentence,with one year of probation.

V. SUFFICIENCY OF REASONS AND ERROR IN PRINCIPLE [ 19 ] If the reasons of the Justice of the Peace reflect an error in principle which impacted the sentence, appellate intervention is justified. Specifically, it would be an error in principle for the Justice of the Peace not to consider the public interest. The decision maker is statutorily obligated to consider the public interest in deciding whether to impose a conditional discharge. [ 20 ] Our Court of Appeal recently dealt with the issue of sufficiency of reasons at trial in the case of Moses Meeko v Her Majesty the Queen , 2019 NUCA 6 .

In Meeko , the Court of Appeal quashed a conviction, returning the matter to trial, on the basis of insufficient reasons. The pertinent paragraphs are 17 and 18: [17] Reasons for judgement must provide for meaningful appellate review by enabling the appeal court to determine whether there is any reviewable error in the trial judge’s decision. … [18] The deficiencies in the trial reasons, even when supplemented by the trial record as a whole, preclude meaningful appellate review.

If a reviewing court cannot determine whether the decision is vitiated by error; or why a judge came to a certain determination, the conviction cannot stand: Sheppard at paras 28, 50. [ 21 ] It is clear from the record of the whole sentencing hearing that the issue of whether a discharge would be contrary to the public interest or not was fully argued and squarely before the Justice of the Peace. Unfortunately, she did not explicitly explain in her decision why a conditional discharge in this particular case would not be contrary to the public interest.

In a situation where an accused person is being sentenced for two separate domestic assaults nine months apart, as well as failing to appear in court and breach of Undertaking, such an explanation is required. [ 22 ] Since I cannot tell from her decision whether the Justice of the Peace fully turned her mind to the issue of whether in these circumstances a discharge would not be contrary to the public interest, I cannot find that she did consider the mandatory second part of the test for a discharge. [ 23 ] Did that error in principle impact the sentence that was imposed?

In the recent decision of R v Ganesan , 2017 NUCA 7 , our Court of Appeal stated at paragraphs 21 and 24: [21] More recently, R v Shortt , 2002 NWTSC 47 at para 26 , cited dicta from MacFarlane that notes that offences involving violence are generally not amenable to the granting of a discharge, and went on to say that “ [i]n particular, cases of domestic violence, since they engage considerations of general deterrence, and because of the prevalence of such crimes in all communities and the vulnerability of its victims, are ordinarily unsuitable for the use of the discharge option ”.

As Shortt states, this is “simply a recognition that a greater emphasis on the need for general deterrence will usually mean the discharge is contrary to the public interest.” … [24] This Court of Appeal has repeatedly said in the clearest terms, that violence against intimate partners is anathema to Canadian values, and that denunciation and deterrence are paramount sentencing objectives in cases such as this. [Emphasis added] [ 24 ] This strong statement by the Court of Appeal suggests that a conditional discharge is an exceptional sentence for any domestic assault.

In this case, it might have been appropriate to have granted a discharge for the first offence of assault, if Mr. Kullualik had not failed to appear. To come back to court nine months later with a second offence of assault against the same partner requires the Court to impose a sentence that focusses on deterrence and denunciation, in the public interest.

[ 25 ] It appears the Justice of the Peace’s decision weighed the personal characteristics of this accused too heavily. Failure to fully consider the public interest led to a sentence that did not address the issues of the prevalence of domestic assault and the vulnerability of victims. This was an error, and the sentence is set aside. VI. SENTENCE [ 26 ] As noted above, Mr. Kullualik had no prior criminal record and full support from his family, including the victim.

He was 26 years old at the time of sentence, with a good work record and was about to embark on a course of study that would make him even more employable. Mr. Kullualik intended to seek counselling for help with personal and relationship issues, and that has been a term of his probation since August 2018. Mr. Kullualik has now been on probation for 18 months, and I was not advised of any issues with respect to his compliance. [ 27 ] Because the accused is Indigenous, Gladue factors are an important consideration in sentencing. There are many in this case: Mr.

Kullualik was brought up by an uncle, because his parents were alcoholics; he suffered the loss of two siblings by suicide; and he himself has been an alcoholic for at least ten years. In light of this, Mr. Kullualik’s good employment record, with jobs requiring various levels of certification, is impressive and even more, he had concrete plans to attend higher education. As the Justice of the Peace noted in her decision, “I wish this Court … could hear a little more of those [cases of people making good efforts to get past their issues]”. [5] [ 28 ] Paragraph 718.2 (

e) of the Criminal Code requires that the court consider the importance of restraint, particularly as the accused is Inuk. In this case, restraint militates against a custodial disposition. [ 29 ] For a first offender in these circumstances, a jail sentence is not necessary. While the conditional discharge cannot stand, a suspended sentence with two years of probation on the terms imposed by the Justice of the Peace, on each charge, concurrent is appropriate. It balances denunciation and deterrence with rehabilitation and does it with the restraint required by s. 718.2 (e).

Dated at the City of Iqaluit this 20th day of February, 2020 ___________________ Justice S. Charlesworth Nunavut Court of Justice