R v Arreak, 2023 NUCA 5

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Arreak, 2023 NUCA 5 Date: 20230526 Docket: 04-22-016-CAP Registry: Iqaluit Between: His Majesty the King Respondent - and - Mark Arreak Applicant _______________________________________________________ The Court: The Honourable Justice Jack Watson The Honourable Justice Frans Slatter The Honourable Justice Elizabeth Hughes _______________________________________________________ Memorandum of Judgment Application to Reconsider a Previous Decision

______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] The appellant has applied under the Rules of the Court of Appeal for Nunavut Respecting Criminal Appeals for permission to have the Court reconsider one of its prior decisions. Rule 3(1) of the Rules Respecting Criminal Appeals adopts R. 58 of the Rules of the Nunavut Court of Appeal Respecting Civil Appeals : 58.

Unless permission has been granted under rule 34 by a panel of the Court, no party may argue that a prior precedential decision of the Court should be reconsidered. The process as followed by many appeal courts is described in detail in R. v Arcand , 2010 ABCA 363 at paras. 195-208 , 40 Alta. L.R. (5th) 199.

This rule does not prevent a party from arguing that a prior decision is distinguishable, or that it has been expressly or implicitly overruled by statutory amendment or a decision of the Supreme Court of Canada: see R. v Dean , 1992 ABCA 109 at paras. 12- 13 , 2 Alta LR (3d) 153, 127 AR 376. [ 2 ] The object of the reconsideration application is this passage in R. v Ipeelie , 2015 NUCA 3 : 23 Mr.

Ipeelie’s counsel also argued that the sentencing judge erred in principle by failing to treat his conditions of judicial interim release as a mitigating factor, requiring that extra credit be given against the period of incarceration he was otherwise sentenced to serve. The judge dismissed that suggestion, stating that Mr. Ipeelie’s release conditions were not “so restrictive” and that they were well justified by the fact that he had been bound by two probation orders and a bail order on a charge of impaired driving at the time the offence in question occurred.

Counsel suggested that in fact the release conditions were the most restrictive possible, short of actual detention, but that is obviously not so. Release conditions which did not allow Mr. Ipeelie to be absent from his home for any reason short of medical need or court appearance are examples of far more restrictive conditions of release. 24 Further, the sentencing judge’s comment that “there is little likelihood that any court would have considered releasing [Mr.

Ipeelie] unless the conditions had been exceptionally restrictive” is not an error, but a reflection of the fact that time spent on release, or bail, is not generally treated as a factor mitigating the length of a subsequent sentence of incarceration. Further, the fact that Mr.

Ipeelie was released pending conviction and sentencing gave him the opportunity to engage in improved behaviour, leading the judge to consider as evidence the likelihood of future rehabilitation which he took into account as a mitigating factor. (emphasis added) The applicant interprets the underlined sentence as creating a binding rule of law that restrictive bail conditions can never be considered in sentencing. [ 3 ] The purpose of this rule is to allow, as an exception to stare decisis , a process for reconsideration of legal precedents.

For stare decisis , prior decisions are only binding on points of law, not findings of fact or the application of the law to particular facts. The sentence in Ipeelie emphasized by the applicant does not purport to set down a rule of law. As pointed out in Arcand at para. 216 : “Most sentencing decisions are heavily fact driven. Specific sentencing outcomes are not themselves precedents because each case is a unique mixture of aggravating and mitigating factors”. [ 4 ] The reasons in Ipeelie cover a number of different interrelated topics. They discuss credit for pretrial custody.

They discuss mitigation of the base sentence because of conditions of release. They emphasize Mr. Ipeelie’s personal circumstances, the particular conditions imposed on him, and why they were justified. They note those conditions were “not so restrictive”. These are not findings on points of law. [ 5 ] The highlighted sentence in Ipeelie is in part just an analysis of the reasons of the sentencing judge. The suggestion that something “generally” is not considered as mitigating cannot reasonably be seen as setting down a rule of law that his factor can “never” be considered. [ 6 ] In

summary, the decision in Ipeelie does not contain any binding ruling on a point of law that needs to be reconsidered. The application is dismissed.

Written submissions filed January 23 and April 21, 2023. Memorandum filed at Iqaluit, Nunavut this 26th day of May, 2023 Watson J.A. Slatter J.A. Authorized to sign: Hughes J.A. Appearances: G. Wool for the Respondent M. Martin for the Appellant