R v Akpalialuk, 2021 NUCA 02

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Akpalialuk, 2021 NUCA 02 Date: 20210107 Docket: 10-20-002-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Jessica Akpalialuk Appellant _______________________________________________________ The Court: The Honourable Mr. Justice Thomas W.

Wakeling The Honourable Madam Justice Ritu Khullar The Honourable Madam Justice Elizabeth Hughes _______________________________________________________ Memorandum of Judgment of the Honourable Madam Justice Khullar Memorandum of Judgment of the Honourable Mr. Justice Wakeling and the Honourable Madam Justice Hughes Concurring in the Result

Appeal from the Sentence by The Honourable Madam Justice Doyle Filed on the 24th day of January, 2020 ( Docket: 08-18-121; 10-19-46; 10-19-34; 10-19-34) _______________________________________________________ Memorandum of Judgment of the Honourable Madam Justice Khullar _______________________________________________________ [ 1 ] The appellant was convicted of aggravated assault and breach of a court order made on November 5, 2018 not to consume intoxicating substances. She also pled guilty to two other breaches of undertakings not to consume intoxicating substances.

She was sentenced to 12 months’ imprisonment for the aggravated assault. For breaches of the undertakings, she received custodial sentences of one day and 15 days, consecutive and, for the breach of the court order, 15 days concurrent. She appeals both the conviction for the aggravated assault and the sentence. [ 2 ] Both appeals are dismissed for the reasons that follow. I. Circumstances of the Offence [ 3 ] Some time on March 5, 2019 the victim, Billy Qappik, was at Danny Etuangat’s residence, where the two drank and became quite intoxicated.

A few hours later, the appellant and her co-accused, Joshua Evic, arrived. They drank for some time. The appellant and Mr Qappik had an exchange of words, and then the appellant and Mr Evic assaulted Mr Qappik, punching his head and arm. Mr Qappik fell to the ground and tried to protect his head with his arm, but was kicked by the appellant and Mr Evic who were both wearing sneakers. Mr Qappik was injured and bloody. He sustained lacerations to the skin on his skull and testified that he had been knocked out during the assault.

Later, he was taken by a bylaw officer to a health centre, although it is unclear who contacted the officer. [ 4 ] The appellant and Mr Evic went to a neighbour’s house, saying they had just come from Mr Etuangat’s house. The appellant washed her hands of what might have been blood but may have been something else. The neighbor saw Mr Qappik outside a few hours later looking bloody and told him to go to the health centre, which he did. There he was also met by Cst.

Sousa. [ 5 ] The health centre records were entered into evidence and stated: “Patient had been drinking and attacked by a man and woman … very upset upon arrival. Entire head covered in blood … Assessment is head trauma. Staples to head wounds to slow down bleeding … No freezing used” (Appeal Book, E8-E9). Mr Qappik spent approximately three hours at the health centre and was then discharged.

He suffers no long-term effects from the injury. [ 6 ] Mr Qappik and Mr Etuangat were both intoxicated at the time of the assault, so there were some difficulties with their evidence, especially about the timing of the assault on March 5, 2019. Mr Etuangat thought it occurred 12:00 am to 1:00 am. Mr Qappik thought it was 11:00 pm to 12:00 am. The neighbor testified the appellant and Mr Evic came over about 11:00 am. The health records established that Mr Qappik attended there at 4:15 pm. II. Conviction Appeal A.

Conviction Reasons [ 7 ] The substance of the trial judge’s reasons for convicting the appellant and Mr Evic of aggravated assault is as follows: However, with respect to the assault inflicted by the co-accused, the memory and the details of the initial punching by Jessica [the appellant] followed by punching by Joshua [Mr Evic] with one punch ultimately knocking him to the ground and further kicking by both of them is consistent both by Billy [Mr Qappik] and corroborated by Danny [Mr Etuangat]. They are consistent in the sequence of events that remain unchallenged, that is that Joshua and Jessica came over.

Jessica argued with Danny. Jessica threw the first punch. Joshua participated in punching. Billy did not fight back. Billy ended up on the ground. Billy ended up passing out. They had both kicked him and he suffered serious injury. So, therefore, even though the Court notes a number of inconsistencies with respect to Danny and Billy’s evidence regarding whether

Joshua and Jessica arrived together or separately, and when they started drinking, and whether Billy was lying down or standing up when Jessica started punching him, and how Billy got to the Health Centre, and what time of day, despite these inconsistencies, as I note there are many inconsistencies [ sic ] with respect to the actual assault, which is what the Court must determine today, that there was punching and kicking by both accused, and Billy was on the ground rendered unconscious.

I find that their inconsistencies do result in the Court finding that their evidence of the timing is unreliable, but due to their admitted intoxication, their recollection of the details of the timing is not to be relied on. They both described and have indicated punching and kicking. No weapon was used. Billy didn’t fight back. And both of them had been drunk, but Billy fell down and remained unconscious. Hospital records confirmed Billy attended there, and there are certain evidence indicating that he was intoxicated and that he suffered injuries and the officer was there as well.

Therefore, I find that the Crown has proven beyond a reasonable doubt that actus reus and mens reus [ sic ] of the offence of aggravated assault by Jessica and Joshua against Billy Qappik. (Appeal Book, pp. 136-137) B.

Grounds of Appeal [ 8 ] The appellant appeals her conviction for aggravated assault on the following grounds: (1) the trial judge provided inadequate reasons; (2) the trial judge misapprehended the evidence of the Crown’s two eyewitnesses; (3) the verdict was unreasonable; and (4) there were breaches of procedural fairness both in limiting defence counsels’ ability to cross-examine and permitting the Crown a right to reply to the defence closing submissions, contrary to s 651(3) of the Criminal Code , RSC 1985, c C-46 . C.

Grounds of Appeal Concerning Fact Findings [ 9 ] The first three grounds, inadequate reasons, misapprehension of the evidence, and unreasonable verdict, all go to the fact findings made by the trial judge. [ 10 ] There was no doubt that Mr Qappik was assaulted. The only issue was whether the Crown had proven beyond a reasonable doubt that the appellant, alone or as a party, had committed the aggravated assault.

The trial judge addressed several inconsistencies in the evidence. [ 11 ] With respect to the timing of the offence, she noted that both key witnesses were intoxicated; Mr Etuangat’s home did not have windows so there would be no sign of daylight; it was not a work day with a sense of a schedule. She found that they had a “perception of the fluidity of time as opposed to expectations of marked time with exactitude”: Appeal Book 135/40-42. She concluded that she could not rely on their evidence regarding timing.

She also did not find the evidence of the neighbor helpful with respect to timing. [ 12 ] With respect to the actual assault, the trial judge was alive to a number of inconsistencies in the evidence of Mr Qappik and Mr Etuangat: whether the appellant and Mr Evic arrived at the same time; when the drinking started; whether Mr Qappik was lying down or standing at the beginning of the assault; who was punching and kicking and who threw the first punch; how Mr Qappik got to the health centre; the time of day.

Despite these inconsistencies, the trial judge was convinced beyond a reasonable doubt that the appellant and Mr Evic punched and kicked Mr Qappik, who ended up on the ground, unconscious. No weapon was used. Mr Qappik did not fight back. The elements of the offence were established. As the trial judge stated: They are consistent in the sequence of the events that remain unchallenged, that is that Joshua [Mr Evic] and Jessica [the appellant] came over. Jessica argued with Danny [Mr Qappik]. Jessica threw the first punch. Joshua participated in the punching. Billy did not fight back. Billy ended up on the ground.

Billy ended up passing out. They both kicked him and he suffered serious injury. (Appeal Book, 136/15-23). [ 13 ] The appellant argues that the trial judge’s reasons are inadequate in the sense that they frustrate appellate review and fail to explain why he was convicted. The primary complaint is that the trial judge did not explain why inconsistencies between the evidence of Mr Qappik and Mr Etuangat – especially supposed inconsistencies about whether the appellant and Mr Evic were both involved in punching and kicking Mr Qappik – did not lead to a reasonable doubt about the appellant’s involvement.

However, the essential line of reasoning to conviction is clear enough: despite inconsistencies about matters of timing, the evidence of Mr Qappik and Mr. Etuangat on “core” topics such as that both accused punched and kicked Mr Qappik, who ended up on the ground unconscious, with a bleeding head was consistent. That was sufficient to convince the trial judge beyond a reasonable doubt that both committed aggravated assault.

The adequacy of the reasons is demonstrated by the fact that the appellant has articulated two grounds of appeal – misapprehension of evidence and unreasonable verdict – which purport to show, in different respects, how the reasoning for the conviction is erroneous. Thus, the reasons perform the functional role of enabling the conviction decision to be scrutinized for error. [ 14 ] The appellant also argues that the trial judge misapprehended the evidence of Mr. Qappik and Mr. Etuangat on certain topics, finding their evidence to be consistent when it was not.

The standard of review for a misapprehension of evidence giving rise to a miscarriage of justice is high. The misapprehension must be clear, must go to the substance rather than detail and must have played an essential role in the reasoning to the conviction: R v Lohrer , 2004 SCC 80 at para 2 ; R v Sinclair , 2011 SCC 40 at para 43 ( per LeBel J); R v Razavi Zadeh , 2020 BCCA 93 at para 38 . [ 15 ] In this appeal, some of the alleged misapprehensions are not misapprehensions at all.

For example, the appellant submits that the trial judge was wrong to say that Mr Qappik and Mr Etuangat gave evidence that both the appellant and Mr Evic punched and kicked Mr. Qappik. In fact, both did give that evidence. Mr Etuangat testified that both punched Mr Qappik although his evidence was equivocal about whether both kicked him: Appeal Book, 53-54. At any rate, there was no clear misapprehension of the evidence. Another alleged misapprehension is that both witnesses testified that Mr Qappik sustained an injury to his head from the assault. Again,

there is no misapprehension. Mr Qappik testified that after he woke up from being knocked out, he noticed open cuts to his head: Appeal Book, 17/15-30. The natural

interpretation of his evidence is that Mr Qappik attributed the cuts to the assault. Mr. Etuangat testified that after five minutes of being beaten, Mr Qappik was bleeding from the heard. [ 16 ] Other alleged misapprehensions are on matters of detail, not substance. The appellant argues that the judge mistakenly considered the evidence of Mr Etuangat and Mr Qappik to be consistent on the following points: 1. Whether that Mr Evic and the appellant arrived at Mr Etuangat’s house together. 2.

Whether Mr Qappik was knocked to the ground by a punch (as opposed to already being on the ground when the punching started). 3. Whether Mr Qappik fell unconscious due to his alcohol consumption (as opposed to being knocked out). 4. Whether no weapon was used. [ 17 ] According to the appellant, these misapprehensions were essential to the outcome because the trial judge relied on the consistency on these points to find the offence of aggravated assault was made out. In our view, this mischaracterizes the trial judges reasoning.

Not every stated consistency in the witnesses’ evidence was crucial to the finding of guilt. The trial judge treated the consistency of the evidence of Mr Qappik and Mr Etuangat on the key details of the assaults as essential to her verdict (Appeal Book, 136/42-137/4): that both the appellant and Mr Evic participated in the assault; that Mr Qappik was struck while he was on the ground and did not fight back; that Mr Qappick was unconscious for part of the assault and that he sustained cuts to the head.

The appellant has not shown any clear misapprehensions of the evidence on these points. [ 18 ] Finally, the appellant argues that the conviction for aggravated assault (as opposed to assault simpliciter ) was unreasonable because there was insufficient evidence that the wounds to Mr Qappik’s head were inflicted during the assault. Her argument is based on characterizing the evidence of the cause of the wounds as circumstantial. This is incorrect.

Both Mr Etuangat and Mr Qappik testified that Mr Qappik’s head was bleeding after the assault and that is direct evidence that the assault caused the wounds to Mr Qappik’s head. That evidence, in combination with the medical records, is enough to sustain a conviction. Even if, for the sake of argument, I grant that the evidence concerning the cause of Mr Qappik’s head injuries is circumstantial, the argument leads nowhere.

The appellant argues that there was an eight-hour time gap between the assault and Mr Qappik attending at the health centre for treatment and that, in the interim, Mr Qappik might have fallen over and injured himself or someone else might have assaulted him, causing the wounds to his head. [ 19 ] Neither inference is reasonable, so neither is capable of raising a reasonable doubt. A reasonable inference is one founded on evidence or common sense.

The inferences that Mr Qappik sustained his injuries by a later fall or another altercation are not supported by any evidence; indeed, they conflict with the evidence of Mr Qappik and Mr Etuangat. An appeal to common sense does not help either because it is not common sense to infer that a man bleeding from the head after being assaulted, who is later found to have head lacerations, actually sustained the injuries from a completely different incident. The alternative explanations are pure conjecture. This ground of appeal is dismissed. D.

Procedural Fairness Grounds of Appeal [ 20 ] The appellant raises two issues regarding procedural fairness: (1) that her cross-examination was unfairly restricted and (2) the improper granting of a right of reply to the Crown contrary to s 651(3) of the Criminal Code . [ 21 ] On the cross-examination issue, the appellant questioned Mr Qappik about where the alcohol he was drinking had been obtained and whether he had been beaten up by others in the community. The Crown objected based on relevance and the appellant offered various justifications for the question: (

a) to establish that Mr Qappik was a bootlegger in a dry community as background context, or as a motive for the assault, (

b) to undermine Mr Qappik’s credibility by having him treated as a Vetrovec witness, or (

c) as evidence of provocation. In the end, the trial judge permitted the appellant to ask a question related to bootlegging. When Mr Qappik answered “no” to the question whether he had ever “sold alcohol to make money in Pangnirtung”, the cross-examination ended. [ 22 ] The appellant’s counsel had an opportunity to try to justify this line of questioning to the trial judge. The trial judge discerned that the question was really related to the credibility of Mr Qappik.

She held that the appellant could ask the question, and properly ruled that the appellant was stuck with the answer she received on this issue, which was collateral to whether the assault had occurred and who committed it: R v John , 2017 ONCA 622 at paras 52 , 55. As in John , the line of questioning lay “at the boundaries of relevance” and was of tenuous probative value to the issue of credibility.

The restrictions imposed by the trial judge were not unfair and deference is owed to her exercise of discretion. [ 23 ] The second argument on procedural fairness relates to the “right” of reply afforded to the Crown. At the conclusion of the evidence, the trial judge queried whether the parties were ready to make closing submissions, noting there was about half an hour of trial time left that day. The Crown answered “It’s enough time for me. I don’t know about my friends.” The trial judge responded that the defence could always make closing submissions the next day, having the evening to prepare.

On that basis, the Crown commenced its submissions. At the conclusion of the Crown’s submissions, defence counsel asked to make closing submissions the next day. The trial judge, in agreeing, said the following: “How – that’s fine, as long as – Crown, I think we already told you that they may have to put over their submissions, which you’ll have a right of reply ” (emphasis added). [ 24 ] The next day both defence counsel made their closing arguments and the Crown replied, without seeking the permission of the court and without being specifically called upon by the trial judge.

At no time did the appellant object to the Crown making reply submissions or to the substance of the actual reply. On appeal, the appellant did not argue that the substance of the reply led to any prejudice. [ 25 ] Rather, the appellant argues that permitting the Crown to reply when the defence has called no evidence is a breach of s 651(3) of the Criminal Code :

Where no witnesses are examined for an accused, he or his counsel is entitled to address the jury last, but otherwise counsel for theprosecution is entitled to address the jury last. [26]

Section 651 is found in

Part XX of the Criminal Code which deals with jury trials. By virtue of s 572 of the Criminal Code,Part XX applies to proceedings under

Part XIX, namely trials without a jury, “in so far as they are not inconsistent… and with suchmodifications as the circumstances require”. This point was conceded by the Crown on appeal, but the Crown argued that the concernsabout order of proceeding in a jury trial are not present in a judge alone trial. Therefore, it was open to the trial judge to amend the orderof proceeding as she thought appropriate and there was no unfairness in doing so. [27] Clearly by virtue of s 572, s 651 applies to judge alone trials.

But applying it “with such modifications as the circumstancesrequire” does not mean that a trial judge should completely ignore it, which is the effect of the trial judge telling the Crown it had a“right” of reply. [28] The order of speaking by counsel at jury trials has a long history which was reviewed extensively in R v Tzimopoulos, , 29 CCC (3d) 364 (Ont CA). Historically, in the United Kingdom the Attorney General and Solicitor General had a right ofreply even when the accused called no evidence.

By virtue of the Criminal Law Procedure Act of 1869, 32 & 33 Vict. ch. 29, sec. 45,sub-sec. 2(D.), this practice was codified in Canada. This statutory right of reply for the Attorney General and Solicitor General,exercised by the Crown, was abolished in Canada in 1969: Criminal Code, SC 1968-69, c 38, s 52. Similar reforms were implemented inother Commonwealth jurisdictions (Australia, UK and New Zealand) around the same time. However, such reforms went further andprovided that the defence has the last word regardless of whether it calls evidence.

In 1982, the Law Reform Commission of Canadarecommended amendments to the Criminal Code to permit the defence to proceed last regardless of whether it has called evidence, butthat proposal has not been implemented. [29] Under the current s 651(3) of the Criminal Code, the defence is entitled to address the jury or the trial judge last if it has notcalled any witnesses but otherwise the Crown is entitled to give the final address.

The constitutionality of that order of proceeding wasupheld in R v Rose, (SCC), [1998] 3 SCR 262, 166 DLR (4th) 385, in a 5-4 decision where the defence arguedunsuccessfully that being forced to go first, and not having a right of reply interfered with its constitutional rights to make full and answerand defence and a fair trial.

Both the majority and dissent in Rose commented favourably on the Law Reform Commissionrecommendation though that was not the issue before them. [30] It seems clear from a review of the history of s 651(3) and its plain language that, in the context of a jury trial, the Crown hasno “right” of reply. Whether, in that context, the trial judge has inherent jurisdiction to afford the Crown a limited reply to someapparent unfairness in defence submissions that could not be addressed with a charge by the trial judge, remains an open question.

Thequestion here, however, is: what about a judge alone trial? [31] In applying

Part XX to judge alone trials, it is important to recall that the mischief that s 651(3) is designed to address in ajury trial, just is not present in the same way in a judge alone trial. The authorities are divided about whether the order of proceeding isan advantage in a jury trial[1]. That consideration does not apply in a judge alone trial. A trial judge sitting alone is less influenced bywho spoke last than by the substance of what each party said.

Trial judges can and do separate the wheat from the chaff every day. [32] It is for the trial judge to determine what modifications might be required to the order of final submissions in a judge alonetrial to ensure trial fairness. While there were assertions in argument about the practice of the trial courts in Nunavut, there was noevidence on this point. However, I would not be surprised if, in the context of judge alone trials, trial judges want to ensure that theyhave full argument and that all points that need to be addressed are addressed.

If this requires permitting either Crown or defence a reply,or even sur-reply, there is nothing prima facie unfair about this process in a judge alone trial. [33] I agree with the observation in R v TBK, 2018 BCSC 1536 at para 16 that under the current Criminal Code neither party in acriminal trial has a right of reply, but that each can request such a reply. It will be up to the trial judge to determine whether thatopportunity should be given.

The court in TBK offered a list of considerations that may be relevant in some cases in deciding whether areply is appropriate: • Where the last closing submission has made errors with respect to the evidence or the law. • Where the last closing submission referred to evidence or law or argument which was new or unanticipated.

In such a situation,whether something could have, or should have, been anticipated may be a relevant factor for consideration as well. • Where something argued in the last closing submission requires clarification that may assist the judge with respect to someparticular issue. • Above all, the duty to ensure a fair trail. The notion of fairness applies to both the Crown and the Defence. [34] While this list is helpful, it is certainly not exhaustive.

As the last point notes, trial fairness is always a prime consideration.Having decided to grant a party the opportunity to reply, to the extent that it is not helpful or goes too far, the trial judge can address thesituation. [35] With respect to the case on appeal, it was clearly incorrect for the trial judge to state that the Crown had a right of reply. It isnot a modification to s 651 to grant the Crown a “right” that was statutorily abolished in 1969. Most problematic in this case, the decisionto grant the Crown its “right” of reply was made prior to the defence submissions.

In these circumstances, it was an error to afford theCrown an opportunity to reply. In any event, there was nothing in the defence closing argument that jeopardized the fairness of the trialfrom the Crown’s perspective: there were no errors on the evidence or law and the defence counsel did not raise new or unanticipatedarguments. [36] The appellant argues that the error by the trial judge resulted in “procedural unfairness”, by which she means an unfair trial.Of the three bases on which an appeal court can allow a conviction appeal, the appellant’s ground of appeal falls under s 686(1)(a)(iii) of

the Criminal Code , namely, “any ground on which there was a miscarriage of justice”. The error is not naturally characterized as “a wrong decision on a question of law”. Even though the trial judge erred in allowing the Crown to address her last, there is no indication that this led to an unfair trial or impaired the defence right to make full answer and defence. The appellant has not pointed to anything in the Crown’s reply submissions that distorted the defence position or was unanticipated. This is not a case where the appellant was denied an opportunity to make submissions as in R v Prior , 2010 NLCA 61 .

Further, an accused is not denied a fair trial or the right to make full answer and defence merely because he or she was not afforded the opportunity to address the trier of fact last. That point was established in Rose , at paras 116 and 120 , in relation to jury trials where the defence called evidence and the Crown was entitled to go last. However, the point generalizes to judge alone trials where the defence is entitled to go last.

To establish an unfair trial or breach of the right to make full answer and defence, the defence must show more than it did not get to make the final address to the trial judge, in a judge alone trial. [ 37 ] Ultimately, the appellant has not shown that the trial judge’s error about the order of address led to a miscarriage of justice under s 686(1)(a)(iii) in this case and I dismiss this ground of appeal. III. Sentence Appeal [ 38 ] An appellate court should only intervene to vary a sentence if it is demonstrably unfit or the sentencing judge has made an error of principle that had an effect on the sentence.

If an error in principle did not impact the sentence, then there is no basis for appellate intervention.

Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor: R v Friesen , 2020 SCC 9 at para 26 . [ 39 ] The appellant appeals the 12-month sentence imposed for aggravated assault on the basis that the sentencing judge erred in (1) her treatment of aggravating factors; (2) applying the principle of parity; and (3) failing to give effect to Gladue factors. [ 40 ] The sentencing judge identified the aggravating factors in this case as the severity of the head injury to the victim, the unprovoked attack on the victim and the “serious” criminal record for similar offences: assault on a peace officer in August 2017 (for which she received a conditional discharge and three months’ probation); assault and failure to comply with an undertaking in October 2017 (for which she received 12 months’ probation); and a third assault and failing to comply with an undertaking in November 2017 (for which she received one day of custody and 12 months’ probation). [ 41 ] The mitigating circumstances were the appellant’s remorse, her willingness to engage in a rehabilitative process, comply with court directions, upgrade her education and change her ways.

The sentencing judge considered the role of alcohol in the assault, that the appellant was intoxicated at the time, and the fact of her alcohol abuse problem. [ 42 ] With respect to the aggravating factors, the evidence of provocation was slight. It is true that Mr Etuangat testified that Mr Qappik “said something” about the appellant’s son before the assault. However, that evidence was vague and the trial judge was not bound to accept that evidence at all, let alone as evidence of a provocation that diminished the appellant’s culpability.

I disagree with the sentencing judge’s characterization of the appellant’s criminal record as “serious”, however, she accurately described the contents of the criminal record and recognized that the appellant had not served any jail time before.

If the mischaracterization of the record as “serious” amounts to an error in law, it did not affect the sentence as the sentencing judge grappled with the substance of the record, not the label she ascribed to it. [ 43 ] With respect to parity, the sentencing judge considered the case law to which she was referred including R v Akulukjuk , 2015 NUCJ 18 , which describes a range of sentences imposed by the Nunavut courts for aggravated assault from a nine-month conditional sentence (when that was still available) to a six-year custodial sentence, depending on the circumstances.

The appellant argues that the parity principle required the aggravated assault in this case to be positioned at the lowest end of that range because there were few aggravating factors. I disagree. Contrary to the appellant’s submission, the attack in this case was not the least serious instance of an aggravated assault. The victim sustained a serious injury (albeit not a life threatening one), the assault was unprovoked and the appellant had a recent, related record.

In the circumstances, a one-year custodial sentence for the aggravated assault was not outside the range. [ 44 ] The sentencing judge also referred to Gladue factors, taking judicial notice of the systemic issues that afflict Indigenous offenders in the Nunavut. She also referred to the pre-sentence report which discussed the appellant’s personal circumstances, including the fact that she had four children to support, her role in the community, and the support of her mother.

The sentencing judge recognized her circumstances “being surrounded by alcohol and although living in a dry community and the poverty and homelessness and suicide in her family.” She also recognized that the appellant “must be given a chance to rehabilitate herself” and imposed a probationary term. [ 45 ] The appellant argues that, in light of these Gladue factors, a one-year custodial sentence is disproportionate to her culpability and that proportionality required a non-custodial sentence.

However, this overlooks the fact that cardinal proportionality is indeterminate in the sense that it does not require one unique sentence on a given set of facts: R v Holloway , 2014 ABCA 87 at para 17 . There is usually a range of sentences that can be said to be proportionate to the culpability of the particular offender and the gravity of the particular offence. So, it is here.

The one-year custodial sentence, considered in light of the Gladue factors, was not disproportionate to the appellant’s culpability and the harm caused, although one can find cases in Nunavut in which the sentencing judge imposed a lower custodial sentence on broadly similar, although less grave, facts. The trial judge’s evaluation of the Gladue factors discloses no reviewable error. [ 46 ] Overall, the appellant has not shown an error of principle in the trial judge’s reasons that affected the sentence imposed.

As to the fitness of the sentence, while I may have imposed a sentence lower than 12 months in custody, I cannot say that the sentence imposed is demonstrably unfit. [ 47 ] As such, leave to appeal the sentence is granted, but the sentence appeal is dismissed.

IV. Disposition [ 48 ] Both the conviction and sentence appeals are dismissed. Appeal heard on September 15, 2020 Memorandum filed at Iqaluit, Nunavut this 7th day of January, 2021 Khullar J.A. _______________________________________________________ Memorandum of Judgment of the Honourable Mr. Justice Wakeling and the Honourable Madam Justice Hughes Concurring in the Result _______________________________________________________ [ 49 ] We agree with our colleague that this appeal must be dismissed and with her supporting reasons, with one exception.

She favors a more limited right of reply in judge-alone trials than we do. We are satisfied that reply should be allowed when it would ordinarily be appropriate in argument. [ 50 ] The appellant asserts that the trial judge in this judge-alone case erred in hearing reply argument from the Crown. [ 51 ] She claims that she should have had the last word because she called no evidence. [ 52 ] Section 651(3) of the Criminal Code [2] declares that “[w]here no witnesses are examined for an accused, he … is entitled to address the jury last”. But this provision applies to jury trials, not trials by judge alone. [ 53 ]

Section 572 is the most important provision. It appears in

Part XIX of the Criminal Code and serves as the bridge over which some of the specific rules applicable to jury trials pass and also govern judge-alone trials. [ 54 ]

Section 572 of the Criminal Code provides, in part, that “the provisions of Parts XX [ section 651(3) is in

Part XX] and XXIII, in so far as they are not inconsistent with this Part [XIX] apply, with such modifications as the circumstances require, to proceedings under this Part”. [3] [ 55 ] The key question is this: Are modifications to the jury-trial protocol incorporated in section 651(3) required when the trial takes place before a judge alone? [ 56 ] Yes. [ 57 ] But before we explain why, we need to know what the jury-trial standard is.

It would be irresponsible to conclude that an unknown jury-trial protocol could serve double duty and work effectively in a very different environment – a judge-alone trial. [ 58 ] The Queen v. Rose [4] is a good starting point. At issue was the constitutionality of subsections 651(3) and (4) of the Criminal Code . The challenger asserted that the accused had a constitutional right to address the jury last.

The Supreme Court rejected this constitutional challenge. [5] [ 59 ] Five of the judges – Justices L’Heureux-Dubé, Gonthier, Cory, Iacobucci, and Bastarache – considered whether a trial judge in a jury trial could allow the defence to reply when the Crown under section 651(3) had the right “to address the jury last”. [ 60 ] Four of them said that a trial judge could in extraordinary circumstances: [6] Thus, if a trial judge concludes that the unfairness caused by an improper jury address cannot be remedied in the instructions to the jury, the inherent jurisdiction can be exercised to allow the prejudiced party an opportunity to reply. … It follows that, where the Crown is entitled to address the jury last pursuant to s. 651, the trial judge may grant defence counsel an opportunity to reply in those limited circumstances where the accused’s ability to make full answer and defence and his or her right to a

fair trial have been prejudiced. … It is only in the clearest cases of unfairness that the trial judge should grant an opportunity to reply as an exercise of inherent jurisdiction. [ 61 ] Justice L’Heureux-Dubé rejected this notion: [7] In my opinion, granting a right of reply would contravene the unambiguous terms of … [ subsections 651(3) and 651(4) ] of the Code .

In a trial where s. 651(3) applies, the trial judge cannot give a right of reply without denying the prosecutor the entitlement or droit to address the jury last. … This language makes it clear that Parliament has not left open the possibility that the judge may grant a right of reply under the inherent jurisdiction. [ 62 ] The other four judges declined to venture an opinion on this issue. [8] [ 63 ] Justice Binnie, writing for the minority on the constitutional point, while he expressly acknowledged the limited right of reply four of his colleagues supported, [9] never stated that there was a limited right of reply. [10] And while he never expressly rejected the notion, he certainly did not endorse its utility: [11] What then of the proposed solution that in the “exceptional case” the accused could apply to make a reply limited to the alleged misrepresentations or corrective instruction at the discretion of the trial judge?

In my view, the proposal falls short of a solution, because firstly it artificially restricts what the accused is entitled to “answer”, secondly it subjects even that limited opportunity to the trial judge’s discretion, and thirdly it leaves out of account the practical dynamics of a trial. [ 64 ] If Justice Binnie believed that the trial judge had a discretion to allow reply in exceptional circumstances, he would have said so. [ 65 ] The views of four judges in a nine-member panel do not constitute a binding statement of the law. [ 66 ] This means that the question has not been resolved by the Supreme Court of Canada. [ 67 ] Some courts have held that a trial judge has a discretion to allow an accused to reply to a Crown’s closing address in extraordinary circumstances. [12] [ 68 ] This Court has not addressed the issue. [ 69 ] And we do not have to decide it here. [ 70 ] We are content to simply note there are two options.

Each has its own drawbacks. [ 71 ] If a statute directs that consequence A applies if fact X exists, on the occurrence of fact X the court cannot exercise its inherent jurisdiction and order consequence B, assuming that consequences A and B are incompatible. [ 72 ] A court’s inherent jurisdiction is extinguished when legislation unequivocally states the governing standard. [13] [ 73 ] Does section 651(3) have this effect? [ 74 ] If so, it follows that a court cannot exercise its inherent jurisdiction and direct that in some circumstances the prosecution can address the jury last even though the defence called no witnesses. [ 75 ] Justice L’Heureux-Dubé adopted this position.

She opined that subsections 651(3) and (4) “[make] it clear that Parliament has not left open the possibility that the judge may grant a right of reply under the inherent jurisdiction”. [14] [ 76 ] This conclusion introduces a problem – albeit one that will seldom arise. [ 77 ] Without the safety valve that the four judges in Rose preferred, the trial judge must remedy any deficiency in a jury address in his or her jury charge or, if the harm is irremediable, order a mistrial. [15] A mistrial is not a preferred remedy, especially in a long trial. [ 78 ] While the four-judge solution – allow the defence to reply in extraordinary situations – has practical appeal, it may be inconsistent with fundamental principles limiting the use of a superior court’s inherent jurisdiction. [16] [ 79 ] We now return to consider the impact

section 572 has on the order of jury addresses. [ 80 ] At the outset, it is important to emphasize there are two judges in a jury trial. The jury is responsible for fact finding and the judge is responsible for the law. There is only one judge in a judge-alone trial. [ 81 ] Section 651(3) obviously regulates counsel’s addresses to jurors – the fact finders.

It makes no sense to adopt the same measures in a judge-alone trial unless the core features of jury and judge-alone trials are the same. [ 82 ] There are a number of important differences. [ 83 ] First, when defence counsel address the jury their focus is on the facts [17] and the emotional aspect of the case [18] – not the law. The trial judge – not counsel – instructs the jury on the law. [19] In a judge-alone trial, counsel’s final arguments must discuss both the facts and the law.

The law can be complex and require a flexible approach to ensure that the trial judge derives full benefit from the different perspectives the Crown and defence counsel offer. [20] Most trial judges, in our experience, are not unwilling to hear proper reply argument. [21] Most of the time this segment of the argument will be devoted to legal issues. [ 84 ] Second, there is no intellectual exchange between the jurors as the judges of the facts and counsel – the jurors are not entitled

to question counsel during their closing addresses – as there is between the trial judge and counsel in a judge-alone trial – judges frequently question counsel. [22] This distinguishing feature can make reply argument a valuable feature of the judge-counsel colloquy. [ 85 ] Third, a trial judge in a judge-alone trial, unlike a jury, must provide reasons for his or her decision. [23] He or she will want to have as much assistance from counsel as the judge believes necessary.

It makes no sense to fetter the hearing process with rules that may frustrate the judge’s desire to hear additional argument and counsel’s wish to say more. [ 86 ] Fourth, the party that argues last in a judge-alone trial probably [24] derives no tactical advantage from this fact. Some lawyers and judges believe that there is a tactical advantage in a jury trial to speak last. [25] But there is a qualitative difference between jurors and judges. Judges, unlike jurors, [26] are legally trained and have for centuries demonstrated that they have the capacity to reject irrelevant considerations.

When an argument is made is an irrelevant factor. There is no correlation between the merits of an argument and when it is made. A good argument is well-received by judges whether it is made by the counsel who speaks first, second or third. Of course, able counsel do not reserve their best arguments for reply. They make them early in their closing arguments. Reply is only available “to respond to any significant new point raised in the appellee’s presentation”. [27] [ 87 ]

Section 572 is not a bridge designed to carry all the procedural features of a jury trial to a judge-alone trial. It was intended to transport only those jury-trial protocols that work equally well in both environments.

The fundamental differences between a jury trial and a judge-alone trial justify according a reply in a judge-alone trial to whomever argues first, as would be the case in jury trials when counsel make legal arguments to the trial judge in the absence of the jury and in other civil trial litigation or in appeal courts. [ 88 ] We understand that in Alberta and Saskatchewan, the judge in a judge-alone trial may allow either the Crown or the defence to make reply argument, if satisfied this will contribute to the full development of the arguments in the case and it is proper argument for reply. [28] This is not an unusual occurrence. [ 89 ] This may also be the practice in some other provincial jurisdictions.

We note that the Honourable R. Salhany, Q.C. – a former Ontario Superior Court judge – says this in his Criminal Trial Handbook: [29] [T]he general practice in a non-jury trial is for a trial judge to call upon counsel to address the court in the same order that is followed in jury trials. … Nevertheless, a trial judge has the discretion to call upon counsel either for the defence or for the prosecution to address him or her in whatever order the judge considers proper and necessary.

Moreover, although there is no right of reply in a jury trial, a judge trying a case without a jury has the discretion to permit counsel to address him or her by way of reply. [ 90 ] We are satisfied that this protocol promotes a full exchange of helpful arguments and should be adopted in Nunavut in judge- alone trials. [30] [ 91 ] Other common law jurisdictions have adopted the “three speech” model – the prosecution speaks first and third and the defence goes second. [31] [ 92 ] In the United States the general view is that the accused derives a benefit from arguing second and that the prosecution has the right of reply.

Professors LaFave, Israel, King and Kerr, in their leading treatise Criminal Procedure, [32] explain why the prosecution argues first and last: The prevailing view with respect to the order of closing arguments is that followed in the federal system: the prosecution opens the argument, the defendant is then permitted to reply, and the prosecution then is allowed to reply in rebuttal.

This structure is grounded in the notion that the fair administration of justice is best served if the defendant knows the arguments actually made by the prosecution for conviction before being faced with the decision whether to reply and what to reply. [ 93 ] This model has much to offer. [ 94 ] We dismiss the appeal. Appeal heard on September 15, 2020 Memorandum filed at Iqaluit, Nunavut this 7th day of January, 2021 Wakeling J.A. Authorized to sign for Hughes J.A.

Appearances: G.L. Lyndon for the Respondent E. Taché-Green for the Appellant