R v Qittosuk, 2020 NUCA 8

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Qittosuk, 2020 NUCA 8 Date: 20200805 Docket: 13-19-009-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Charlie Qittosuk Appellant _______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ Appeal from the Sentence by The Honourable Madam. Justice B. Tulloch Dated the 1st day of October, 20 19 ( Docket: 13-19-5; 13-19-7 )

_______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ [1] The appellant challenges the sentence of imprisonment of one day followed by probation for 14 months which was imposedupon him on October 1, 2019, after his guilty pleas to counts of assault simpliciter and to breach of recognizance under the CriminalCode. The Crown proceeded by

summary conviction on both counts. As a result, my jurisdiction to adjudicate the sentence appeal arisesunder s 812(2) of the Criminal Code. [2] The appellant’s guilty pleas had been predicated on a joint submission for a suspended sentence and probation for 14months. Counsel for the Crown and for the appellant also provided a shared justification for the joint submission.

Crown Counsel did sobefore the sentence was pronounced and defence counsel did so both before and after the sentence was pronounced in the afternoon ofthe same day. [3] For the appeal, the differential to which the appellant takes exception arises only in the imposition of one day imprisonmentadded by the sentencing judge to the proposed joint submission. Ultimately, the sentencing judge rationalized the imposition of thefurther one-day imprisonment – served that day – on the basis that it would, for the appellant, “simply twig if he gets into trouble again,that a jail sentence is appropriate”: AB 14/17-18.

As a consequence, the appeal turns on the differential of one day now already served.As such, the sentence appeal is moot. [4] Although appellant’s counsel has filed an extensive, thoughtful and carefully composed factum in support of the appealsetting out counsel’s objection to the sentencing judge’s decision, I am not persuaded that this is an appropriate case for the Court toexercise its discretion to hear a moot criminal appeal.

The Court should exercise its discretion to hear moot appeals cautiously; hearingmoot appeals will be rare and exceptional: Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 at 353and 358-363, SCJ No 14 (QL) [5] This is not to say that one day imprisonment is of no moment. Depending on the context, the additional one day may makefor a considerable difference: compare R v Pham, 2013 SCC 15, [2013] 1 SCR 739.

In reasons which will be releasedcontemporaneously with these reasons, namely in the case of R v Kuliktana, NUCA Appeal No 21-19-7 CAS, I write at some lengthabout the cases respecting joint submissions and other related topics. It does not seem necessary to duplicate those reasons here. [6] The present appeal raises some considerations not directly raised in Kuliktana in which case I exercised my discretion tohear an otherwise moot criminal appeal.

For one thing, the sentencing judge provided reasons – albeit brief – for deviating from the jointsubmission, after giving counsel the opportunity to respond as required under R v Anthony-Cook, 2016 SCC 43, [2016] 2 SCR 204.Plainly, the sentencing judge was very concerned about the incidence of domestic violence in Nunavut, of which the facts of this casewere egregious. [7] It is not surprising to me why the sentencing judge would regard the limitations of the situation with consternation. Domesticviolence is a very serious social problem all over Canada.

It should not be trivialized by any authorities or any of the public. As a result,the fact that trial judges may be moved to sterner sanctions than counsel may agree upon is no dislocation in our common value system. [8] As such, and having regard to the circumstances of the case and the Borowski factors, I am not persuaded that anything isserved by commenting further on this moot appeal. Moreover, I do not think it appropriate to modify the sentence regardless. [9] In this respect, I note that rather than dispose of the case under s 731(1)(

a) of the Criminal Code (the ‘suspended sentence’),the sentencing judge proceeded under s 731(1)(

b) of the Code (probation in addition to another sanction). In either situation, the offenderis to receive certain warnings under s 732.1(5) of the Criminal Code. [10] The court has jurisdiction to react to a subsequent conviction for an offence under s 732.2(5) of the Criminal Code while theoffender is on probation. But for cases under s 731(1)(

a) of the Code, the Court has the additional jurisdiction under s 732.2(5)(

d) ofrevoking the suspended sentence and substituting a new sentence. For both cases under s 731(1)(

a) and s 731(1)(

b) of the Code, theCourt may change conditions or extend the probation for one year under s 732.2(5)(

e) of the Code. In other words, the appellant wouldbe in greater jeopardy if I were to allow the appeal than if I were to dismiss it. [11] Accordingly, I dismiss the appeal as moot. Written submissions received on November 15, 2019, April 22, June 30, July 13 and 14, 2020 Reasons filed at Iqaluit, Nunavut

this 5th day of August, 2020 Watson J.A. Submissions: A. Dion for the Respondent E. Tache-Green for the Appellant