R. v. G.N., 2019 NUCA 5

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. G.N., 2019 NUCA 5 Date : 2019-10-07 Docket: 24-18-11-CAP Registry : Iqaluit Between: G.N. Appellant -and- Her Majesty The Queen Respondent Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the victim must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. The Court : The Honourable Madam Justice Karan M. Shaner The Honourable Madam Justice Frederica Schutz The Honourable Madam Justice Sheila Greckol Memorandum of Judgment Appeal from the Sentence by

The Honourable Mr. Justice Scanlan Dated the 20th day of September, 2018 (Docket: 24-18-02) MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) I. BACKGROUND [ 1 ] The appellant, Mr. N, was in a domestic relationship with the complainant. They both reside in a small Nunavut community with a population of under 1000 people. Together, Mr. N and the complainant had five children. [ 2 ] On September 20, 2018, Mr.

N was to proceed to preliminary inquiry on five charges stemming from his breaking into the complainant’s home and sexually assaulting her before being interrupted by their two children, ages 12 and 18 years. [ 3 ] Mr. N entered pleas of guilty to breaking and entering and committing a sexual assault upon the complainant, and breach of a term of his probation to have no contact with her. The Crown sought a sentence of 15 to 18 months concurrent, or, in the alternative, 15 months for the break and enter/sexual assault and three months for the breach of probation, with credit for time served.

Though the Crown did not propose probation, when asked by the sentencing judge, he confirmed a request for a term of probation upon release. [ 4 ] Counsel for Mr. N proposed a sentence between time served and the low end of the range sought by the Crown proposed. [ 5 ] Neither counsel nor the sentencing judge raised the spectre of banishment from the home community as a term of probation. [ 6 ] Mr. N has a criminal record for violence, including a five-year penitentiary sentence for aggravated sexual assault in 2013.

After returning to his home community in 2017, he assaulted the complainant on three different occasions including the offence now before the court. [ 7 ] In accordance with the submissions of counsel, the sentencing judge imposed a sentence of 15 months for the break and enter/sexual assault and three months consecutive for the breach of probation, of which he had served about 214 days, with 315 days remaining to be served. [ 8 ] Bearing in mind the complainant’s victim impact statement that she feels unsafe in her own home and will leave the community with her children if Mr.

N is free, the sentencing judge imposed a term of two years’ probation. One term of that probation provided that, upon release, Mr. N is banished from their remote home community. The sentencing judge reasoned that banishment, though a last resort, would serve the objective of rehabilitation, since it would remove him from the temptation to continue forcing himself upon the complainant. II. GROUNDS OF APPEAL [ 9 ] Mr.

N appeals on two grounds: (1) that the sentencing judge did not provide notice that he was considering banishment and did not allow his counsel the opportunity to make submissions; and (2) that the banishment order was demonstrably unfit in the circumstances of this case. [ 10 ] The Crown agrees that the sentencing judge erred by not providing notice to Mr. N that he was considering banishment or an

opportunity to make submissions on the issue. However, the Crown submits that this error can be cured on appeal as Mr. N can nowsupplement the record and make submissions regarding banishment. It also argues that the banishment order is not a demonstrably unfitsentence in the circumstances of this case. III.

STANDARD OF REVIEW [11] A court of appeal may only vary a sentence in two situations: (1) when the sentencing judge made an error in principle, failed toconsider a relevant factor or overemphasized the appropriate factors and that error had an effect on the sentence imposed; and (2) thesentence imposed was demonstrably unfit: R v Lacasse, 2015 SCC 64 at paras 11, 40-44; R v Werbiski, 2017 ABCA 204 at para 12. IV.

ANALYSIS [12] In R v Anthony-Cook, 2016 SCC 43 [Anthony-Cook], the Supreme Court of Canada provided guidance as to the correct approach tobe taken by a sentencing judge who is inclined to depart from a joint submission made a part of a plea agreement.

There, the Court, perMoldaver J, set out the public interest test: a judge should not depart from a joint submission on sentence unless the proposed sentencewould bring the administration of justice into disrepute or is otherwise contrary to the public interest. [13] The court in Anthony-Cook set out the procedure that should be followed where a sentencing court is inclined to depart from a jointsubmission, at paras 51-60.

Among the procedural points, the Court makes clear, at para 58, that if the judge is not satisfied with thesentence proposed by counsel, counsel must be given notice and the opportunity to make further submissions: Fourth, if the trial judge is not satisfied with the sentence proposed by counsel, “fundamental fairness dictates that anopportunity be afforded to counsel to make further submissions in an attempt to address the . . . judge’s concerns before the sentence isimposed” (G.W.C., at para. 26).

The judge should notify counsel that he or she has concerns, and invite further submissions on thoseconcerns, including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case. [14] Although the parties did not make a joint submission on sentence, the principles derived from Anthony-Cook, based on proceduralfairness, apply nonetheless.

Here, the sentencing judge imposed a sentence beyond the range proposed by both counsel, and included theserious and rarely used imposition of banishment without seeking or providing the opportunity for submissions from counsel. [15] It was an error for the sentencing judge to impose a term of probation – banishment from the community – that was not part of thesubmissions by counsel and not the subject of an invitation for counsel to make further submissions. The Crown submits that the errorcan be cured: Mr.

N can make submissions on appeal as to whether or not an order of banishment as part of the probation order is a fitsentence in all the circumstances. We disagree. [16] The idea that banishment as a form of sentence is to be used sparingly has a long history in Canadian jurisprudence. In 1968,Dickson JA, as he then was, writing for the Manitoba Court of Appeal in R v Fuller, (1968) (MB CA), 2 DLR (3d) 27at 30-31, 67 WWR 78 said: In Canada communities are interdependent and relations between them should be marked by mutual respect and understanding.

Apractice whereby one community seeks to rid itself of undesirables by foisting them off on other communities violates this basic conceptof consideration for the rights of others and should not be tolerated. [17] Banishment from an offender’s home community is justified only in exceptional cases: R v Rowe, at para 7,216 OAC 264 (Ont CA). Exceptional circumstances include the offender having consented to be banished: R v Leasak, 2007 ABCA 38at para 44.

They also include cases where banishment is necessary to protect a victim of a campaign of violence and the offender hassomewhere else to live and banishment serves some rehabilitative purpose; R v Stack, at para 14, 110 BCAC 193(BCCA). [18] The need for a full and fair hearing of whether banishment amounts to a fit and proper sentence is clear because banishment is anextreme measure. It may have significant consequences on the offender – who may be scratching for a place to live, with no job and fewconnections to family or friends – as well as significant consequences on the communities affected.

Where banishment as a term of

sentence is considered, the accused is entitled to make submissions or lead evidence if he chooses. [ 19 ] Given its exceptional nature, “banishment should not be included as a feature of a probation order unless a proper evidentiary foundation has been established for it”: R v Kehijekonaham , 2008 SKCA 105 at para 12 . Appellate courts are not the appropriate forums to hear evidence for the first time, particularly oral evidence. As a result, the sentencing judge’s error in this case is not the type of error in sentencing that is amenable to correction on appeal. [ 20 ] Though we are concerned about Mr.

N’s conduct and the impact of his return to the community upon the complainant and her family, the Crown might have been well advised to make its submissions as to banishment before the sentencing judge, rather than attempt to resile from its original position on appeal. To accede to the Crown’s submission to consider banishment submission on appeal, a forum that is ill-suited to hearing viva voce evidence, would only serve to deepen the procedural unfairness that has provoked this appeal in the first place. [ 21 ] Mr.

N argues that the banishment order was demonstrably unfit in the circumstances of this case, and was not supported by the evidence. Given our conclusion that Mr. N was not afforded procedural fairness in the sentencing process, and this cannot be cured upon appeal, the record does not permit consideration of whether the banishment order amounted to a demonstrably unfit sentence in these circumstances. [ 22 ] The appeal is allowed. The term of the probation order imposing banishment upon Mr. N for a period of two years will be deleted from the probation order.

Appeal heard on September 17, 2019 Memorandum filed at Iqaluit, Nunavut This 7th day of October, 2019 ________________________________________ Shaner J.A ________________________________________ Schutz J.A. ________________________________________ Greckol J.A.

Appearances: A. Dion for the Respondent B. Cowan/S. White for the Appellant