R v Kuliktana, 2020 NUCA 7

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Kuliktana, 2020 NUCA 7 Date: 20200805 Docket: 21-19-007-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - David Kuliktana Appellant _______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ Appeal from the Sentence by The Honourable Mr. Justice P. Bychok Dated the 27th day of August, 20 19 ( Docket: 21-19-37 )

_______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ I. Introduction [ 1 ] On June 25, 2019, the appellant entered guilty pleas to one count of assault under

section 266 and one count of unlawful confinement under section 279(2) of the Criminal Code . The Crown elected to proceed by

summary conviction on both counts. Consequently, the matter proceeded on that basis before the sentencing judge in the Nunavut Court of Justice. The offences occurred on April 28, 2019, at the Hamlet of Cambridge Bay, Nunavut. [ 2 ] The pleas were entered after resolution discussions. Counsel for the appellant agreed with Crown counsel that a fit sentence for both counts would be 120 days in custody, less credit for the 58 days the appellant had spent in pre-sentence custody to that date, leaving a remaining period of 33 days to serve.

In addition, the appellant was to enter into a probation order of 12 months duration. Had the sentencing judge acceded to the joint submission, the appellant would have been released from custody and commenced the probation order on or before July 28, 2019. [ 3 ] The sentencing judge resisted the joint submission. When it was proposed, he put the matter over from June 25, 2019 and ultimately to August 27, 2019, calling upon counsel, and particularly to then Crown counsel, Ms. Arngna’Naaq, to provide more information and a more elaborate rationale for the joint submission.

The appellant remained in custody in the meantime. On August 27, 2019, the sentencing judge rejected the joint submission and imposed a sentence of imprisonment of 180 days on the count of assault which he described as “time served” and 60 days concurrent on the count of unlawful confinement also described “time served”: AT 50/6-11. [ 4 ] In addition, the sentencing judge directed that the appellant to enter into a probation order for a period of 12 months, with conditions including a non-contact order with the complainant (herein referred to as “TO”).

The conditions of probation included the performance of 50 hours of community service work to be completed by June 30, 2020. II. Legal Context [ 5 ] The appellant (now with Ms. Tache-Green as counsel) says in his Memorandum on appeal that his sentence has been completed: Appellant’s Memorandum (AM) at para 52. Nonetheless, the appellant submits that his appeal is not moot because the entry on his criminal record will be higher than it should have been. Counsel suggests that there is a risk that the fact of the higher sentence being so recorded could prejudice the appellant in future.

By itself, this is not a very compelling argument to hear an otherwise moot appeal in light of the premise necessary for the negative implication urged. [ 6 ] But the appellant has a better argument. Counsel for the appellant also submits that there is a need for a clear re-affirmation for the Courts of Nunavut that the decision of R v Anthony-Cook , 2016 SCC 43 , [2016] 2 SCR 204 is and remains in full force and effect in those Courts.

A decision of the Court of Appeal of Nunavut in R v Kippomee , 2019 NUCA 3 , [2019] Nu J No 13 (QL) is to that effect, but the appellant’s counsel submits that it needs to be reinforced. The appellant’s counsel also mentions R v Mathewsie , 2016 NUCA 5 , [2016] Nu J 28 (QL). To this might be added R v Parr , 2020 NUCA 2 , [2020] Nu J No. 16 (QL). These cases are discussed below. [ 7 ] The appellant’s right of appeal comes to me pursuant to s 812(2) of the Criminal Code . This

section provides that when an appeal in a

summary conviction matter is taken from the Nunavut Court of Justice, the appeal lies to a judge of the Court of Appeal of Nunavut. That is what occurred in Kippomee and Mathewsie as well. [ 8 ] Whether or not the appeal is now in its practical senses moot, I am persuaded that I should exercise my residual jurisdiction to adjudicate the appeal despite it being so.

For one thing, there was a remainder of the sentence disposition left when the appeal was launched, and it is no fault of the appellant that the appeal was not heard when it was not yet moot. [ 9 ] More to the point, however, I am satisfied that there is a basis for the communicative and informative role of adjudication to be deployed here.

Recently the Supreme Court of Canada has adjudicated several appeals arising under the Criminal Code to that end, namely, to explain or underline significant issues of law: see R v Myers , 2019 SCC 18 , [2019] 2 SCR 105; R v Poulin , 2019 SCC 47 , 379 CCC (3d) 513; R v Penunsi , 2019 SCC 39 , 378 CCC (3d) 37. [ 10 ] Specifically, I am persuaded by counsel for the appellant that there is a sufficient need here to justify hearing this moot

appeal. Against this, there is no serious concern about the waste of judicial resources nor disrespect to the proper role of the Courts. In this regard, I note the factors considered to meet the ‘exceptional circumstances’ test described in Poulin at paras 16 to 26 .

Amongst those, in my view, this matter concerns “the daily business of our trial courts” and there is a “constitutional dimension” to the process elements of the case. [ 11 ] Furthermore, the sentencing judge also appears to have questioned whether a de facto joint submission constitutes a joint submission in legal terms under the principles of Anthony-Cook in the absence of some form of a quid pro quo between the parties, particularly one where the Crown received some sort of benefit – although he suggested that the need for some sort of mutual benefit was “perhaps best left for discussion another day”: AT 49/25-27.

At least for this case, that day has come. [ 12 ] Further on whether to proceed with this moot appeal, I observe that Crown counsel (now Mr. Dion) has not only consented to the hearing of the appeal in writing, but has also consented to the allowing of the appeal. [ 13 ] There is nothing to be impugned about the Crown taking such a position here. In the circumstances of this appeal, I feel that I should digress somewhat to elaborate on this topic. [ 14 ] It remains the duty of this Court to act judicially on the cases coming before it regardless of any position of counsel which would not bind the Court.

But it is not improper for Crown counsel to continue to stand by a position solemnly taken by the Crown more than once in the trial court. Indeed, Crown counsel doing otherwise would be questionable. [ 15 ] Several years before Anthony-Cook , the Supreme Court had before it a case called R v Nixon , 2011 SCC 34 , [2011] 2 SCR 566 in which it was argued that the Crown counsel was acting improperly by backing out of a plea bargain.

The Court wrote, at paras 29- 30, that both entering into plea agreements and formally resiling from them were exercises of prosecutorial discretion. [ 16 ] The doctrine of abuse of process was found to not be engaged by what happened in Nixon . The Supreme Court went on to explain, at para 45, that a “plea agreement cannot be summarily enforced by the court as any other lawyers' undertaking”, adding at para 46: 46 … The duty of counsel to honour resolution agreements was regarded as “a particular example of the duties of integrity and responsibility” that lie “at the heart of counsel's professional obligations”.

Honouring resolution agreements was not only “ethically imperative”, but also a “practical necessity”, as these agreements “dispose of the great bulk of the contentious issues that come before the criminal courts in Ontario” (commentary to Recommendation 53, at pp. 312-13 of the Martin Committee Report ). [ 17 ] This did not mean that it was impossible in Nixon for the Crown to pull back from a plea bargain. In fact, that is what occurred in that case. But the decision in Nixon to rescind the Crown’s agreement to the plea bargain was apparently done at the level of an Assistant Deputy Minister.

The authority making the decision to withdraw from the plea agreement was therefore not merely “another Crown counsel” with a different opinion as mentioned in Nixon . The Crown decider there was effectively a surrogate of the Attorney General. The definition of “Attorney General” in s 2 of the Criminal Code is and was at the relevant time for Nixon as follows: (

a) with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy or, if those proceedings are referred to in subsection 2.3(1), the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them , [ … ] [Emphasis added] [ 18 ] The ‘lawful deputy’ can, arguably, have an assistant identified as such sufficiently to engage the delegation concept described as the Carltona Doctrine ( Carltona Ltd v Commissioners of Works , [1943] 2 All ER 560 ) for this purpose.

It is true that such sub- delegation is subject to the stricter view as expressed in R v Adams , [2020] UKSC 19 where the decision being reviewed arises under a specific provision of legislation and that provision does not express an authorizing delegation. In Nixon , the level of authority of the Crown representative and the degree to which that Crown representative can be seen as a surrogate of the Attorney General was, in my view, a relevant consideration. [ 19 ] In addition, there was no prejudice to Ms. Nixon in that case.

The effect of the Crown decision to back out of the plea bargain in Nixon was to return the accused to the status quo ante and did not put her into a disadvantaged position, nor take improper advantage of anything done by Ms. Nixon in her reliance on the agreement. [ 20 ] As for the Crown sticking with a plea agreement in any case, the social factors involved are not just utilitarian. They are also complex and values-laden.

Put one way: when the Crown chooses to enter into a plea arrangement with an offender (by counsel) that is a solemn business, and it is not just clearing court backlog in some bureaucratic sense.

Indeed, as mentioned below, whether or not a sentencing court should harbor doubt about the utilitarian benefits of plea agreements and joint submissions, there cannot be similar doubt about the linkage between the Crown taking a consistent, reliable and predictable position and the Rule of Law. [ 21 ] In another way, and in addition to the fact that Anthony-Cook identifies what it considers to be the practical social benefits of plea arrangements, there is in my view a larger consideration to also be kept in mind.

That consideration is that the Crown counsel who happens to be on the front line in a criminal case at the time must always remember that she or he is the representative of fundamental values of our free and democratic society and that she or he is exercising an authority which is amongst the most potentially punitive towards individuals in the arsenal of state powers in the affirmation of such values.

As noted above, this is not just file clearing. [ 22 ] Moreover, the Crown counsel must as well remember that the Rule of Law is the great promise and is the foundational support of the integrity of our form of free democracy. It is the genius of our system of government. Consistent with the Rule of Law, when a commitment is made by Crown counsel of such moment, not only the accused person but society as a whole should be confident that Crown counsel’s decision has been made seriously, and the decision was not merely a revocable or elastic personal or interim opinion.

Crown decisions should not look like caprice. [ 23 ] It follows that, at the very least, Crown counsel cannot be faulted for following through on a joint submission from one level

of Court to the next. The Crown’s exercise of discretion to continue with the joint submission can go to the point of the Crown concedinga moot appeal. [24] Finally, for clarity on the issue of mootness, I would emphasize that in hearing this moot appeal is not to suggest that thisCourt should routinely entertain moot appeals in order to comment about the reasoning of the judges involved. Appeals are supposed tobe about the judgment or order made, not about the reasons given for them: compare R v Elliott, 2014 ABCA 431 at para 4, 13 Alta LR(6th) 407; York (Regional Municipality) v.

Tomovski, 2018 ONCA 57 at para 18, [2018] OJ No 357 (QL); R v M(RE), 2008 SCC 51 atpara 9, [2008] 3 SCR 3. Nonetheless, in this instance, I am persuaded there is something to decide even if what is said cannot in realterms change the ground level realities of the past. III. Circumstances of the Appellant [25] The facts of the offences and the proceedings history are discussed in

Part IV below. It seems appropriate to set the stage forPart IV by summarizing the presentations of counsel for the appellant about the appellant. It is helpful to take in the facts andproceedings’ history with those circumstances in mind. [26] The appellant’s present counsel, says that the appellant is a 27-year-old Inuk man from the Hamlet of Kugluktuk, in theKitikmeot Region of Nunavut. Counsel says that the appellant had an unstable childhood due to his family’s inability to settle in onecommunity.

His family spent time in Yellowknife, Kugluktuk, Iqaluit, Hay River and Cambridge Bay, as well as various parts of BritishColumbia and Alberta. At the time of the offence, the appellant was living in the Hamlet of Cambridge Bay. [27] By way of background, the 2016 census indicates that Kuglugtuk was recorded as having had a population of 1491 people, ithaving grown from a population of 1201 identified from the census in 1996. It is located in a far north area of Canada on the shore of theArctic Ocean. Cambridge Bay is on Victoria Island and which is a significant distance from Kuglugtuk.

It was recorded as having apopulation of 1766 people in 2016. Both Hamlets are quite a significant distance from Iqaluit, the capital of Nunavut, which is on BaffinIsland. Iqaluit was recorded to have had a population of 7740 people in 2016. All these communities are north of the tree line. [28] One can assume from the sizes of these communities that dispositions made by the Courts related to events in thecommunities are likely to become well known in those communities.

Such a context provides Courts with both a challenge and anopportunity to represent justice in a highly visible manner and to reinforce the confidence of the local population in the Rule of Law. Akey element of this is that sentencing should be understandable as well as being seen to be reasonable and impartial. [29] The appellant’s counsel acknowledges that the appellant has a significant criminal record, including convictions in 2014 and2015 for analogous “domestic assault” offences. The CPIC Record is somewhat incomplete in this respect, so the appellant’s counsel’sconcession (here and below) is creditable.

His counsel attributes the appellant’s criminal record at least in part to the criminogenic factorsof alcohol and a lack of stable housing. [30] Regrettably, there was no Gladue report prepared to further illuminate what other factors may have contributed to hisdifficulty in maintaining a prosocial conduct pattern: see R v Gladue, (SCC), [1999] 1 SCR 688.

It has been saidrepeatedly that this type of information is not to provide a special exemption in sentencing but rather is directly related to locating aproportional sentence having regard to the gravity of the offence and the degree of responsibility of the offender under s 718.1 of theCriminal Code: compare R v Laboucane, 2016 ABCA 176 at paras 3, 69-72, 337 CCC (3d) 445, leave denied [2016] SCCA 374 (QL)(SCC No 37177); R v Okimaw, 2016 ABCA 246 at paras 27-35, 55-62, 69-72, 340 CCC (3d) 225; R v Swampy, 2017 ABCA 134 atparas 6, 23-29, 347 CCC (3d) 105. [31] Following Parliament’s direction in s 718.2(

e) of the Criminal Code, the Gladue process also serves larger goals as there aretwo main sides (person-specific and society-general) with sub-areas of purpose as to which such factors can be influential: see eg R vGladue, 2012 ABCA 118 at para 6, 522 A.R. 254: 6 We note that the information to be provided on an inquiry under Gladue generally allows for examining the case from twoperspectives. The first line of inquiry is person specific. It looks at how the aboriginal background and circumstances of the offendermay touch upon (

a) the gravity of the offence and the circumstances of its commission as well as the degree of responsibility of theoffender and (

b) the sentencing options which might be available and effective in his case. The second line of inquiry relates to thecommunity in general. It considers (

a) the opportunities and benefits of community participation in the administration of any sentenceand (

b) the need to invigorate both community interest and community confidence in the sentencing process and the prospects of theappellant. [32] It is an error to proceed on the basis that Gladue factors do or do not justify departure from a proportionate sentence: Swampy,supra. Rather, they direct the sentencing court’s attention to circumstances that help to identify a proportionate sentence. Gladue factorsare never “infinitesimal”: R v Joe, 2017 YKCA 13, 351 CCC (3d) 16. But other factors may outweigh them. [33] In this case, the lack of a Gladue report does not appear to involve fault on the part of anyone.

Counsel who agreed on theproposed sentence presumably contemplated the appellant’s circumstances as they knew them when composing the joint submission. Inrelation to this case, I find it impossible to believe that counsel at the trial level would have been unaware of such considerations on theindividual side or on the general side mentioned above. It does not strike me that counsel would be oblivious to either side of theconsiderations even if they might not expressly address their minds to either subject at any specific point in time, or might fail toarticulate doing so.

In this case, awaiting a detailed Gladue report could also have been considered impractical in light of the jointsubmission. [34] In many cases the role of Gladue factors is largely, but not exclusively, aimed at the principle of restraint as reflected in ss718.2(

d) and (

e) of the Criminal Code. Nonetheless, even where imprisonment is no longer a significant factor, the relevance of Gladueis not extinguished. But at that stage, the main purpose of Gladue factors may be in identifying circumstances which help to organize the

disposition or suggest community conditions or options: see eg R v Perley , 2019 NBCA 88 , 383 CCC (3d) 412. [ 35 ] In this instance, it is a matter of conjecture as to what influence more Gladue information might have had on counsel or the Court. But it was, in my view, possible to draw some inferences from what was provided about the appellant’s circumstances. One is that the appellant suffered life-distorting conditions which the line of cases since Gladue have come to acknowledge for their damaging impact on offenders.

It was not necessary to prove that the Gladue f actors directly and plainly affect the degree of culpability of the offender: Ipeelee , post . Often it is a matter of common-sense inference as to how the offender’s life has reached the point where the offender’s reactions to problems tends to breach social norms: compare eg Okimaw , supra . [ 36 ] Trial Crown counsel referred to a prior Crown counsel colleague on the case who actually proposed the refused joint submission in this case. She endorsed it.

Crown counsel’s decision as to what to make of Gladue considerations would have been within Crown discretion: see eg R v Anderson , 2014 SCC 41 at para 25 , [2014] 2 SCR 167. [ 37 ] All that said, in determining whether a proposed joint submission sentence for an offender is so unfit as to contravene the principles in Anthony-Cook , the sentencing court should, in my view, consider how Gladue factors might fit in to the situation. [ 38 ] As mentioned, and absent a real Gladue report, some things in my view can be inferred, perhaps along the lines of the judicial notice which the Supreme Court mentioned in R v Ipeelee , 2012 SCC 13 at para 60 , [2012] 1 SCR 433.

First is that the appellant was only 14 years old when his criminal record started, having been born in 1992. [ 39 ] His sets of convictions as a youth were on May 3, 2007 in Yellowknife, then on February 5, 2008 and January 27, 2009 in Kuglugtuk, then on April 9, 2009 in Iqaluit (but investigated by the RCMP in Cambridge Bay) and finally on August 5, 2010 in Hay River.

In other words, what the appellant’s counsel says is supported by the record: namely that the appellant has been subject to relocation frequently, and particularly during his important teen years. [ 40 ] During that time the appellant, by his own admission, had been an alcoholic since the age of 12. In a written submission made to the sentencing judge, the appellant’s trial counsel wrote this: 13 When Mr Kuliktana has been released from prison in the past, he has often been released into homelessness, with very little support or access to resources.

Inevitably, he tends to get himself into situations that result in him being sent back to jail. [ 41 ] It is also worth noting that the majority of the appellant’s convictions during his teen years were offences in the nature of ‘breaches’ of probation, dispositions, undertakings and recognizances. As noted by the Supreme Court in R v Zora , 2020 SCC 14 at para 57 , [2020] SCJ No 14 (QL): 57 … People with addictions, disabilities, or insecure housing may have criminal records with breach convictions in the double digits.

Convictions for failure to comply offences can therefore lead to a vicious cycle where increasingly numerous and onerous conditions of bail are imposed upon conviction, which will be harder to comply with, leading to the accused accumulating more breach charges, and ever more restrictive conditions of bail or, eventually, pre-trial detention … [ 42 ] The appellant’s record illustrates this. He had already acquired some 20 convictions for breaches by the time he was 18 years old.

His other convictions also look like those of a person who has turned occasionally to petty theft, and then gotten into scuffles with the police (and perhaps others) resulting in charges of mischief, resisting arrest and so forth. [ 43 ] Interestingly, his criminal record appears to have something of a gap although not a very long one. Although the CPIC sheets provided suggested a gap from 2010 until January 26, 2015 when it resumed with a collection (again many breach type offences) but, troublingly, they also included 3 assault convictions resulting in a 4-month prison term plus 12 months probation.

Crown counsel later explained that these assaults included an incident in 2015 with a former female friend. It was also said that a 2014 incident with a different female friend had resulted in a sentence of 8 months imprisonment. [ 44 ] After 2015, the appellant continued to acquire convictions including some of general unruliness such as run-ins with police officers, and a couple of driving offences including flight from police. It is not obvious, however, that there has been any major escalation in the gravity of his crimes – at least as far as the criminal record speaks.

Crown counsel did not suggest that the appellant was a menace to society in general. With one exception, the prison parts of his prior sentences for the sets of offences all seem to range in the area of 4 months. [ 45 ] To summarize his criminal record in this way is not intended to trivialize it. It is not good. By the age of 23 in 2015, the appellant was properly to be held responsible for his own behavior. It cannot be considered acceptable that he would let his temper get the best of him. He has shown that way too often.

Unfortunately, he seems to have settled into the pattern of conduct reflected by some 7 assault or threat-type offences distributed over a decade, and some 61 breach type convictions along with other entries which, like a couple of mischief convictions, probably also relate to him failing to regulate himself as an adult should be expected to do. Those facts were pertinent here. Different Courts might assign different sentencing consequences in light of such considerations.

But the sentencing ladder is not to be applied reflexively. [ 46 ] Another thing to read from the criminal record is that the appellant seems to routinely enter guilty pleas to the charges against him. When a large collection of offences are disposed of simultaneously in one Court by way of a global sentence, the dispositions of the counts are not likely to have been the outcome of a trial and are more likely a collection of guilty pleas.

The appellant’s criminal record consists of a series of appearances, each with a clump of convictions usually resulting in concurrent sentences or in one instance a string of consecutive sentences that add up to a calculable total. [ 47 ] In the written submission for the defence to the sentencing judge, the appellant’s counsel also added the following: 14 On May 1, 2019, Mr. Kuliktana arrived at the Baffin Correctional Centre after consenting to his remand. He has found his time at BCC very difficult, and describes a lack of access to programming. Although he has tried to make appointments with a psychologist,

there has been no progress. Furthermore, the phone at BCC was broken for a substantial period of time, and Mr. Kuliktana was not able to keep regular contact with his lawyer or anybody else outside the jail. As a result of all of this, he was spending up to 22 hours a day in his cell. 15 Upon his eventual release from jail, Mr. Kuliktana intends to return to Cambridge Bay, where he has some family support and a family home to stay at. There is potential for employment with the local housing association. 16 Mr. Kuliktana has a Grade 10 education.

His goal is to obtain his GED through the Nunavut Arctic College in Cambridge Bay, and eventually get his heavy equipment operator’s certification. 17 Mr. Kuliktana is also aware of the resources that are available in Cambridge Bay, including the Wellness Center and other long- term alcohol counselling programs. There is also a long-term men’s shelter available if his housing situation deteriorates. [ 48 ] I now turn to the proceedings before the sentencing judge and the description of the offences. IV.

The Proceedings Before the Sentencing Judge [ 49 ] The appellant appeared seven times in the Nunavut Court of Justice following his arrest in April 2019, either in person, or by telephone from the Baffin Correctional Centre where he was detained. His counsel says the appellant had indicated early on that he intended to enter guilty pleas. Crown counsel confirmed on June 25, 2019, to the sentencing judge that the initial adjournments were for the purpose of “putting sentencing together”: AT 14/14.

She added that the guilty pleas were therefore properly characterized as early guilty pleas. [ 50 ] What Crown counsel described on June 25, 2019 as being the agreed facts were not pellucidly clear but they were ultimately discernible. It emerged that the complainant, TO, went to the police in Cambridge Bay the day after the incidents to report that she had been assaulted, which led to the appellant’s arrest and detention for the next four months.

The appellant’s counsel summarizes the facts of the offences as follows: 5 On April 28, 2019, the Appellant invited his girlfriend, [TO] to his residence in Cambridge Bay. When she arrived, the Appellant confronted her about her ongoing relationship with her ex-boyfriend. The Appellant spat in [TO]’s face, yelled at her, and pushed her to the ground. Later, after consuming alcohol, the Appellant again became upset with [TO]. He punched her four times in the face, then followed her into the bathroom and spat on her.

The Appellant and [TO] left his residence and went to another residence. [TO] attempted to leave, but the Appellant grabbed her, pulled her back into the bedroom, and told her she was not going anywhere. After the Appellant fell asleep, [TO] left the residence. [ 51 ] It appears that they were outside when the appellant initially pushed [TO] down and the other events occurred when they were inside. Crown counsel also told the sentencing judge that [TO] suffered “bruising to the left side of her face near her mouth, some bruising to the left side of her face, as well as beside her nose”: AT 10/19-25.

The appellant’s counsel told the sentencing judge that he could remember pushing her down but did not recall the rest of it. Nonetheless, the appellant was prepared to enter guilty pleas on TO’s version of events. [ 52 ] Crown counsel then submitted for “four months of custody followed by a period of probation” including no alcohol consumption and no contact with [TO] without her revocable consent: AT 15/3-21.

The reason for this clause permitting contact between the appellant and [TO] was attributed to the willingness of [TO] to resume contact: see below. [ 53 ] The sentencing judge responded to the Crown submission of 4 months in prison plus 12 months probation by asking Crown counsel to give him more details about the appellant’s criminal record, referring in particular to the appellant’s conviction on February 8, 2017 for assault causing bodily harm for which he received a sentence of 1 day plus probation for 9 months in Kuglugtuk. [ 54 ] When Crown counsel returned after a recess, the answer provided to the sentencing judge was that the police had no record of pre-trial custody on the 2017 matter.

She did however refer to 2 earlier assault convictions on female friends as noted above. The sentencing judge then asked Crown counsel if that additional information changed her view as to sentence. She said she would reflect on that and speak to defence counsel. [ 55 ] The matters were then adjourned to June 27, 2019. On that date, Crown counsel told the sentencing judge that she was standing by the Crown position. She also explained that defence counsel had understood that the Crown’s position would be as she previously expressed it. Defence counsel also referred to this as a joint submission.

The sentencing judge was negative on that submission: Well, I think it was clear the last day that in my view the sentence that was proposed was simply not proportional to the seriousness of this case of domestic violence. As I noted, he has some seven prior convictions for assaultive behavior and when the crown was given an opportunity to look into the case it turned out that at least two of the priors involved another domestic scenario. The police did not charge Mr [sic] Kuluktana with breach of probation.

They probably thought it would have been a waste of time because on his record he has 61 breaches of court orders, and it is my view that the position taken by the crown is rather shocking. In the circumstances it does not reflect that the prosecution takes court orders seriously.

So I am going to give both lawyers an opportunity, where this is a joint submission, to provide the type of justification that the Supreme Court of Canada in Anthony Cook says is required in order to justify what is in my mind to be a sentence that is clearly outside of the range of sentence which ought to be recommended to the court. [AT 22/19-23/11].

[ 56 ] The sentencing judge specified August 13, 2019 as the next appearance date. As noted, the sentencing judge directed that counsel provide written submissions on the joint submission. The appellant was continued in custody. [ 57 ] The matter came up on an interlocutory basis before the sentencing judge on July 19, 2019. The appellant was present in person. Crown Counsel, then Mr. Alibhai, and a lawyer said to be representing the appellant, Ms. Crowe – neither being the original counsel – were present. The ‘defence’ counsel had not had a chance to speak to the actual counsel for the appellant, Mr.

McDiarmid, nor to a representative of the legal aid office, Ms. Boydell: AT 27/21-26. Mr. Alibhai advised the sentencing judge that Crown counsel, Ms. Arngna’naaq, wanted to be present but a flight delay made it impossible: AT 30/4-12. [ 58 ] The sentencing judge described Ms. Crowe then present as having a “listening brief” on that date and did not engage with her. The judge then proceeded to recite what he had learned of what he described as an effort to re-enter the guilty pleas again in front of a different judge on July 16, 2019.

He considered such a process to thereby “circumvent” his direction about submissions to support a joint submission that he regarded as “not within the range of acceptable sentences”: AT 28/4-30/3. He wanted a “full and candid accounting from the lawyers involved as to how this could happen”: AT 29/26-27. That was to be done by August 13, 2019. [ 59 ] Briefs were filed in answer to the directions of the sentencing judge. Those briefs included Crown counsel’s support of the joint submission. That brief was signed by Ms. Arngna’naaq who had appeared for the Crown on June 25, 2019.

In her brief, she also commented on the July 16, 2019 appearance before a different judge of the Nunavut Court of Justice. She said defence counsel (or perhaps Ms. Boydell) had brought the matter to that other judge on July 16, 2019. She also said that she as Crown counsel had taken a neutral position on July 16, 2019 as to whether the sentencing judge was seized with the case.

She added that the other judge had ruled on July 16, 2019 that the question whether the sentencing judge was seized with the matter had to be taken up with the sentencing judge. [ 60 ] As for the joint submission, Crown counsel wrote in her brief, inter alia : 10. To his credit, Mr Kuliktana entered a guilty plea and demonstrated his desire to resolve this file at his very first appearance in the Nunavut Court of Justice.

While the Crown’s office was unable to speak to the complainant directly despite multiple attempts, defence counsel communicated the complainant’s desire to continue a relationship with Mr Kuliktana after he concluded his sentence. This communication is by no means a conclusive indication from the complainant that she would not be a willing witness for the Crown should this file have gone to trial however from it flows the possibility that the primary Crown witness for this file may have been reluctant to testify against her partner had this been set for trial.

In entering a guilty plea Mr Kuliktana not only saved this young woman from having to attend court to testify to the event of the evening in question, he also ensured certainty for the Crown that a conviction would be registered and a sentence within the appropriate range would be imposed. The Crown submits that the very early guilty plea weighs heavily in his favour in determining an appropriate sentence.” [ 61 ] Defence counsel confirmed this background in his written brief to the sentencing judge saying: 18. The Crown has not provided a Victim Impact Statement from [TO]. 19.

On June 20, 2019, [TO] contacted Mr. Kuliktana’s counsel by telephone and expressed that she wished to continue her relationship with Mr. Kuliktana when this matter is concluded and he is released from custody. This information was passed along to Crown counsel, along with [TO]’s contact information. 20.

To the best of Mr Kuliktana’s knowledge, no convictions on his criminal record involve [TO] as a victim. [ 62 ] Counsel for the appellant added that the appellant had been in the Baffin Correctional Centre from May 1, 2020 until sentencing. [ 63 ] When the matter came before the sentencing judge on August 13, 2019, he indicated to Crown counsel that he was then providing her “with the opportunity to argue in favour of the joint submission above and beyond the filing of the written submissions and what you have already told the Court”: AT 36/14-17.

Crown counsel said she had provided her submissions in writing. [ 64 ] The sentencing judge then said: THE COURT: Okay. Well, I have a couple of questions for you. The first has to do with the requirement in The Queen v Anthony-Cook , the proactive duty on counsel to lay out in some detail to the Court the reasons behind the Crown’s acceptance of the joint recommendation. I have read your written submissions and I’m curious to know whether or not there are any quid pro quos involved. Was the Crown in a difficult position with respect to potentially proving its case its case if it went to trial?

Just what benefits concretely did the Crown receive as part of the negotiation process for this case? [ 65 ] Crown counsel did not suggest a specific quid pro quo existed that had generated the joint submission. She did observe that “in circumstances of domestic violence when the complainant is either reluctant or has indicated a desire to continue on with he relationship” that is something the Crown has “in the back of its mind”. However, Crown counsel said that the earlier Crown counsel had formed the opinion that the sentence proposed was fit, and defence counsel had agreed: AT 37/20-22.

Crown counsel also suggested that this was “not exactly an Anthony-Cook situation in that it is a joint submission”: AT 37/18-20. [ 66 ] The sentencing judge asked what Crown counsel meant by the ‘not exactly’ statement, to which Crown counsel responded: … the difficulties that are suggested in Anthony-Cook are absent in this case.

It is simply a sentence that is being recommended as something that was determined to be an appropriate recommendation by the Crown. [AT 38/15-19] [ 67 ] The sentencing judge took what Crown counsel said to mean that “the Crown gave its position to the defence, the defence liked it and decided to join after the fact after having assessed the Crown’s position”: AT 39/4-6. Crown counsel also said that, while she had not made the original Crown decision, she was “prepared to stand by it”: AT 39/18-19.

[ 68 ] The sentencing judge asked Crown counsel to confirm whether the earlier Crown counsel was unaware of the appellant having prior convictions for domestic violence. She replied that there was no note on the file “to suggest that the Crown took the position in view of the domestic violence”: AT 40/13-15.

In response, the sentencing judge opined that this went to the “quality of the joint submission” [AT 40/19-20]. [ 69 ] He went on to say that that: … that important question which I raised in June remains unanswered, and where we are dealing with a situation which, at least from the perspective of the prosecutor, does not really fall within the parameters of Anthony-Cook , it could have a material impact on whether or not my hands are tied with respect to the sentence about which I have already expressed concerns … [AT 41/3-10]. [ 70 ] The sentencing judge opined that Crown counsel had not really answered his question and he therefore put the matter over to August 27, 2019, for more information. [ 71 ] In closing comments to defence counsel, the sentencing judge said that “I, by no means, want to circumvent Mr. [sic] Kuluktana’s ability to present his full and considered position before the Court which, in my view, cannot be done by duty counsel”: AT 42/11-14. [ 72 ] It appears that by “duty counsel” the sentencing judge may have been referring to Ms.

Boydell. She was present in person. The appellant’s trial counsel, Mr. McDiarmid, was listening to the proceedings by telephone as was the appellant from the RCMP detachment in Kuglugtuk: AT 43/1-9, note also AT 33/12-20. When the matter was first called in Court (during an agenda of other matters), Mr. McDiarmid and the appellant could not be heard over the phone, but Mr. McDiarmid was able to communicate later in the proceedings. He said he would be available to appear for the appellant on August 27, 2019 by phone. [ 73 ] The matter did, as scheduled, come back before the sentencing judge on August 27, 2019.

Crown counsel, Ms. Arngna’naaq and defence counsel, Mr. McDiarmid, both appeared by telephone. Duty counsel, Ms. Boydell, was physically present. She told the sentencing judge that the appellant was on the telephone from the Baffin Correctional Centre [ 74 ] Crown counsel advised the sentencing judge that the earlier Crown counsel had not been aware of the prior domestic violence when he proposed a disposition, but that the counsel was aware of prior convictions for violence offences.

She also explained that: … I can indicate that this is a joint submission in that the Defence counsel has joined the Crown, and the implications that flow from that in the Crown’s submission remain the same.

The point that I’m trying to make is that the quid pro quo that is discussed in Anthony-Cook or contemplated in Anthony-Cook is only present in this case in so far as it is an early guilty plea, and that was the primary factor that the Crown considered in determining its position for this file. [AT 47/23-48/5]. [ 75 ] The sentencing judge then turned to defence counsel and asked if he had more to add to his written submission. Defence counsel responded: Mr McDiarmid: No, sir. I think the written argument highlights Ms. Kuliktana’s background.

It also indicates that the victim had contacted me expressing forgiveness in this matter. I don’t want to mislead the Court. She didn’t indicate that she was looking to have the matter dropped, but she did indicate that she wished to resume the relationship with Mr. Kuliktana when the matter is said and done with. [AT 48/13-21]. [ 76 ] The sentencing judge then decided as follows: As has been explained to me, this is a very typical situation, in so far as the Crown provided a position that it would take in the event of Mr.

Kuliktana being ultimately convicted, and the Defence lawyer liked what he received and agrees with the Prosecutor that the appropriate sentence in this case should be time served.

Whether or not it is a true Anthony-Cook matter is perhaps best left for discussion another day. [AT 49/18-27] [ 77 ] The sentencing judge went on to calculate that the appellant had spent 121 days in custody and that he would impose a sentence of imprisonment of 180 days on the count of assault which he described as “time served” and 60 days concurrent on the count of unlawful confinement also described “time served”: AT 50/8-11. [ 78 ] He also made an order of probation for 12 months with anger management and elder counselling as directed by the appellant’s probation officer.

The sentencing judge directed that the appellant was to refrain from contact with [TO] for 4 months and thereafter with her “revocable written consent”: AT 51/3. V. Discussion (

a) Rejection of Joint Submissions under Anthony-Cook [ 79 ] The appellant’s counsel submits that a key theme of Anthony-Cook at para 35 is that joint agreements as to sentence are a “proper and necessary part of the administration of criminal justice”.

Counsel are, she submits, “well placed to arrive at a joint position that reflects the interests of the public because they know the strengths and frailties of the case far better that any sentencing judge”: AM at para 22. [ 80 ] Counsel for the appellant goes on to submit that the test for a sentencing judge to proceed contrary to a joint submission is a “public interest” test which arises if the sentence proposed would bring the administration of justice into disrepute or is otherwise contrary to the public interest” citing Anthony-Cook at para 32 :

32 Under the public interest test, a trial 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. But, what does this thresholdmean?

Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard.” [81] The cases from Newfoundland and Labrador to which Moldaver J referred reflected the ongoing debate in Canadian cases asto the basis on which sentencing courts were entitled to reject joint submissions. [82] One version of the standard for deference was that the sentencing judge could depart from the joint submission if it was unfitor unreasonable, so long as the sentencing judge followed a fair process in getting there (proper notice and due consideration ofexplanations of counsel), and so long as the sentencing judge imposed a fit and proper sentence in the end: compare R v Magas, 2012ABCA 61 at para 16, 524 AR 98; R v Gibson, 2015 ABCA 41 at para 8, 319 CCC (3d) 115; Mathewsie at paras 45-57. [83] The other version involved a higher threshold for rejection and was reflected in the Newfoundland and Labrador cases.Moldaver J stated in Anthony-Cook at para 33: 33 In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contraryto the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with theexpectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the properfunctioning of the criminal justice system”.

And, as stated by the same court in R. v. B.O.2, 2010 NLCA 19, at para. 56 , whenassessing a joint submission, trial judges should “avoid rendering a decision that [page 219] causes an informed and reasonable public tolose confidence in the institution of the courts”. [84] Following this thread, the threshold for rejection of a joint submission adopted by the Supreme Court in Anthony-Cook is notmerely that the joint submission is unfit or unreasonable.

The test chosen from the jurisprudential options before the Supreme Court wasthe more stringent view that the joint submission should not be rejected unless it would lead reasonable persons, aware of the relevantcircumstances, to believe the proper functioning of the justice system had broken down. Anthony-Cook at para 34 states: 34 In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. Theyemphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submission sounhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, awareof all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the properfunctioning of the justice system had broken down.

This is an undeniably high threshold - and for good reason, as I shall explain. [85] In Anthony-Cook at paras 46-48, Moldaver J ended the debate about whether unfitness or unreasonableness of a jointsubmission was a sufficient justification for a sentencing judge to reject it. It is not. The sentencing judge is not entitled to just disagreeeven if the judge believes that the proposed sentence is unfit as compared to a range conceived by the judge. [86] Moreover, no power of the judge to disagree is created by the judge going through the motions of consulting with counselabout the joint submission either.

The obligation to raise concerns about sentencing submissions with counsel has emerged as a matter ofprocess fairness so as not to ambush counsel, even in cases where a joint submission is not involved: see eg Parr at paras 52-55. But,subject to paras 53-60 of Anthony-Cook discussed below, such a process fairness obligation is not a license for interrogating counsel inmatters that may drift into matters of solicitor-client privilege: compare R v Cunningham, 2010 SCC 10 at paras 26-34, [2010] 1 SCR331.

To be sure, in Cunningham at para 34, the possibility of trespass on privilege was not considered pressing when the line of inquiryonly concerns whether counsel’s fees for service have not been secured and that insecurity prompts an adjournment request at theopening of a trial long scheduled.

But an inquisition that risks trenching on privilege or otherwise being unfair is not contemplated by,and is contra-indicated in, para 55 of Anthony-Cook. [87] Sentencing judges are in a position of authority; counsel are at a disadvantage, although they are not fragile flowers.Sentencing judges should be careful about treading unnecessarily into circumstances leading up to plea resolutions including those fromthe Crown’s point of view.

The Crown may also have concerns of privilege arising from cognizable state interests: compare, for exampleR v Barros, 2011 SCC 51 at para 30, [2011] 3 SCR 368. [88] Although there is no hint of that situation here, it may well be, as noted in Anthony-Cook, that one factor as to a jointsubmission may be that the offender is co-operating with the Crown in some other important investigation. Depending upon how muchdistance there is from a fit sentence in the joint submission, such a consideration might be relevant.

But even if a deeper dive into therationale for the joint submission is driven by the circumstances, care must be taken to ensure collateral damage does not occur toprivilege or privacy values: see para 56 of Anthony-Cook. [89] Calling upon counsel to be more elaborate on the rationale for a joint submission may be appropriate on fair process groundswhere, under the circumstances, and unbeknownst to counsel, the sentencing judge is inclined to think the joint submission is“unhinged” under Anthony-Cook to the degree that the judge is seriously considering rejecting it.

The further the proposed jointsubmission is from relevant discernible starting points or ranges, then, perhaps arguably, a greater justification may exist for asking ifthere is something about the factors that counsel have had regard to that are relevant to sentence and that the judge should know. [90] But if the judge simply disagrees with the sentence on a view that it is not fit, the judge would not be entitled by that reasonalone to reject the joint submission anyway. In such a situation it would seem that further inquiry of counsel would not be particularlyrelevant.

A fortiori, inquiries by the sentencing judge that are calculated to dig up reasons to reject the joint submission are not licensedby Anthony-Cook. [91] In my view, the sentencing judge here was not justified in pushing counsel as he did to justify the joint submission byrequiring proof that the joint submission was the product of a quid pro quo that benefitted both the Crown and the defence. (

b) Necessity of a Quid Pro Quo?

[ 92 ] As to a quid pro quo being a required pre-condition for a joint submission, the “good reason” set out in Anthony-Cook for the high threshold for rejecting a joint submission should be read attentively. There are many elements to that reason, and not just utilitarian benefits. The acceptance of a joint submission does not turn on a proven quid pro quo . Revelation of a quid pro quo may help to justify a joint submission for an outcome that might otherwise look like a break-down of the justice system.

But that does not make a quid pro quo a condition precedent to the acceptance of a mill-run joint submission. [ 93 ] Crown counsel here, when repeatedly pressed, did not suggest there was a quid pro quo in the sense of helping the Crown avoid losing the prosecution altogether. The fact that Crown counsel did not provide indication of such a trade-off seemed to energize the sentencing judge’s view of his entitlement to overshoot the joint submission.

The lack of such a quid pro quo was not of itself a justification for rejecting the joint submission. [ 94 ] Moldaver J mentioned at para 35 of Anthony-Cook that properly conducted “plea resolutions” benefit “not only the accused, but also victims, witnesses, counsel, and the administration of justice generally”.

But it should be remembered that he was referring to “plea resolutions” and not just to joint submissions when referring to what is “properly conducted”. [ 95 ] When Moldaver J referred to plea resolutions being “properly conducted”, he was not suggesting that a sentencing judge would be routinely entitled to take steps to ascertain and verify whether counsel “properly” weighed sentencing considerations in coming up with the joint submission, let alone whether counsel bargained appropriately. [ 96 ] It might be that for a “plea resolution”, the proffered guilty plea to a lesser offence may appear to be plainly inconsistent on its face with the agreed facts said to support it.

In such a case, the sentencing judge might feel impelled to ask questions about the plea resolution to be sure the interests of justice are served. [ 97 ] But that is not the same thing as stipulating a propriety test which is generally applicable to joint submissions against which a sentencing judge can measure the manner in which the joint submission was achieved.

Anthony-Cook refers to judges potentially rejecting the outcome of the submission, but the route by which it was reached, even if relevant, is not set out as an independent basis for rejecting it. [ 98 ] Inquiries past the joint submission, where necessary, are aimed at rationalizations for the s ubmission , not the method . In this context, the judge is not there to grade the performance of counsel: compare R v Hobbs , 2020 ABCA 156 , at para 31 , [2020] AJ No 479 (QL) as to issues of counsel ineffectiveness in representation of an accused person.

Grading the performance of Crown counsel raises even further reasons of policy – notably as to court impartiality – beyond those raised in the defence ineffectiveness cases. The joint submission’s validity is to be considered on its merit, or in other words, “as is”: Anthony-Cook at para 51 . [ 99 ] The sentencing judge here implied (but later purported to set aside) the position that a “ quid pro quo ” was an essential requirement to uphold a joint submission.

Anthony-Cook does not, in my view, envision an auditing role by a sentencing judge as to the reasonableness of how counsel achieved a joint submission in that respect. Indeed, such a theory would set Anthony-Cook on its head. [ 100 ] In repeatedly pressing counsel for a justification beyond the common conclusion of counsel that the proposed joint submission was reasonable and fit, the sentencing judge was backsliding into a review of the reasonableness of the joint submission.

The sentencing judge may have read too much into para 53 of Anthony-Cook where Moldaver J wrote: 53 Third, when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission - and in particular, any benefits obtained by the Crown or concessions made by the accused. The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient.

For example, if the joint submission is the product of an agreement by the accused to assist the Crown or police, or an evidentiary weakness in the Crown's case, a very lenient sentence might not be contrary to the public interest.

On the other hand, if the joint submission resulted only from the accused's realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system. [ 101 ] Read together with the other reasons in Anthony-Cook , paras 53-60 refer to counsel providing an “account” or a “thorough justification” for the joint submission where it is “contentious”. In my respectful view, Moldaver J was talking about a joint submission that is facially troubling to the point of conflicting with the public interest.

This is needed to make the joint submission something that could allow the judge to “depart” from it: Anthony-Cook at paras 49-50 . As with his use of the word “contentious”, Moldaver J was talking about situations where, on the face of things, the joint submission would look to a reasonable observer as a case of a break down of the justice system. [ 102 ] Moldaver J was not, therefore, talking about every case where the proposed joint submission sentence seems unfit to the sentencing judge.

If that were the aim of Anthony-Cook at paras 53-60 , it would conflict with the clear policy decision made earlier at paras 35-48 of the decision. It would also not fit with Moldaver J’s choice of words in para 67 of his decision - the last paragraph - where he encapsulated the reason for not overriding the joint submission, namely that it was “not one that would bring the administration of justice into disrepute, nor was it otherwise contrary to the public interest.” [ 103 ] My reading of paras 53-60 of Anthony-Cook also conforms with the “good reasons” identified by Moldaver J at paras 35-44 in another way.

Moldaver J, at para 42, emphasizes the need to not “cast the efficacy of resolution agreements into too great a degree of uncertainty” and to focus on how “the proposed sentence would be viewed by reasonable and informed persons”.

These goals relate to a foundational element of the criminal law and of the criminal justice system writ large, namely the Rule of Law. [ 104 ] As with the relationship between the gravity of decisions by Crown counsel and the Rule of Law discussed earlier in these reasons in light of the need for Crown counsel to uphold predictability and reliability of the criminal justice process, the perspective of the enlightened public as to the operations of the criminal justice system is a key consideration. [ 105 ] Parliament has not suggested that sentencing may be a randomized or subjective process dependent upon what a particular judge happens to think on a given day.

Rather it is an objective and thoughtful process wherein the sentencing judge is articulating the needs

and values to be served by both the criminal law and by the criminal justice system. [106]

Section 718 of the Criminal Code leads off

Part XXIII containing the general sentencing provisions of the Criminal Code. Itstates: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respectfor the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [Emphasisadded] [107] Further to my earlier reference to the northern communities which would have a reason to know what sentencing courts do, Iwould also suggest that those communities should also be left to understand that the process of sentencing is not idiosyncratic, but iscontrolled by the law, its fundamental objectives and principles, and by the hierarchical system of the Courts. [108] While the average person might not have a full understanding of the concept of stare decisis, (see the discussion in R v StCloud, post) that person would likely have some belief that when policy decisions are made by Parliament or by the Supreme Court ofCanada that govern or delineate the scope of discretion of first instance judges in sentencing, those first instance judges will execute theirduties within that governance. [109] Furthermore, the Supreme Court of Canada has repeatedly pointed out that the understanding and acceptance by the enlightenedpublic to how the criminal justice system operates is crucial to the effectiveness as well as to the credibility and the integrity of thecriminal justice system. [110] R v Lacasse, 2015 SCC 64 at para 12, [2015] 3 SCR 1089 points to the need to maintain “public confidence in theadministration of justice”.

Similarly, in R v St Cloud, 2015 SCC 27 at para 33, [2015] 2 SCR 328, it is noted that “public confidence isessential to ... the justice system as a whole” and, at para 80, that the reasonable member of the public “is a thoughtful person, not onewho is prone to emotional reactions, whose knowledge of the circumstances of the case is inaccurate or who disagrees with our society’sfundamental values”.

Once again, in R v Friesen, 2020 SCC 9, at para 43, 444 DLR (4th) 1, the Court underlined the need to maintainthe “credibility of the criminal justice system in the eyes of victims, their families, caregivers and communities and the public at large”.Nothing in the disposition of the case at bar explains the sentencing outcome to the reasonable member of the public. [111] In conclusion, and with respect, the sentencing judge’s mention of what he felt did not reconcile the joint submission with hisunexplained conceptualization of a fit sentence for the appellant’s crimes came down to rejection of the joint submission on a basissubjectively held by him.

It was not a manifestation of the principled override of a joint submission contemplated by, or consistent with,the guidance and policies in Anthony-Cook. Imposing the proposed joint submission would not have brought the administration ofjustice into disrepute, nor was it otherwise contrary to the public interest. [112] If the sentencing judge had reservations about any of the reasoning contained within Anthony-Cook, it was not open to him tore-cast the decision.

Stare decisis does exist on issues of law and policy emanating from the Supreme Court: see eg Carter v Canada,2015 SCC 5 at paras 44-45, [2015] 1 SCR 331. [113] The foregoing analysis is sufficient to justify allowing the appeal, but there are other errors in the reasoning of the sentencingjudge which attract comment. (

c) Deficiency of Reasons [114] One such error is that the sentencing judge failed completely to provide any reasons for his actual decision as to sentence unders 726.2 of the Criminal Code.

As noted below, what reasons he gave for disputing the joint submission involve specific errors and fallshort of R v Burback, 2012 ABCA 30, 522 AR 352. [115] But, more broadly, and after all the appearances made by the appellant while in custody, often by remote means, the appellantwas entitled to an explanation as to why the sentencing judge felt a sentence of 180 days imprisonment was required by law and principlewhereas a sentence of 120 days imprisonment was not justified by law and principle. [116] Reasons in this regard were not optional: compare R v Crazyboy, 2012 ABCA 228 at paras 12-19, 288 CCC (3d) 459 notably atparas 17-18: 17 Intelligibility and reviewability relate to the specific case, whereas accountability speaks to the case as a feature of the largerjustice system and our common values.

Meeting those (notably accountability) adds complexity to sentencing which is, as has been said,one of the most difficult tasks performed by judges: see e.g. R. v. Pham, 2012 ABCA 203, [2012] A.J. No. 672 (QL) at para. 12 quotingfrom R. v. Hamilton, (2004) (ON CA), 189 O.A.C. 90; 241 D.L.R. (4th) 490 at para. 158.

18 Appeal courts have added that (

a) the expression of reasons evidences the existence of reasons, and (

b) the degree of deference owed by appeal courts to the trial courts relates directly to the nature of reasons that are given: see e .g. R. v. Dingwall , 2005 ABCA 14 , 361 A.R. 306, at paras. 10 to 12 ; R. v. Wharry , 2008 ABCA 293 , 437 A.R. 148 at para. 10 ; R. v. Goodstoney , 2008 ABCA 401 , 440 A.R. 357 at para. 10 ; R. v. Nguyen , 2008 BCCA 252 , 234 C.C.C. (3d) 67 at paras. 29 to 32 ; R. v. Smith and Southam , 2008 QCCA 1391 , [2008] Q.J. No. 6886 (QL) at paras 14 to 17 ; R. v. Abourached , 2007 NSCA 109 ; 259 N.S.R. (2d) 379, at paras. 51 and 55 to 60) (cited very often since); R. v.

D (DJ), 2010 ABCA 207 , 487 A.R. 84 at para. 9 . See also R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206 at para. 48 . Merely giving “honourable mention” to principles or objectives of sentencing without any clear relationship to the reasoning process or to the outcome is not a credited practice: R. v. Arcand , 2010 ABCA 363 , 499 A.R. 1, at paras. 35 to 37 .

The requirements of procedural fairness and even the Rule of Law insist on at least basic reasons that not only explain what happened but reveal how the law is governing the consequences. [ 117 ] Closer to home are the decisions in this vein in R v Etuangat , 2009 NUCA 1 at paras 22-23 , [2009] Nu J No 9 (QL) (as to sentence) and R v Meeko , 2019 NUCA 6 at para 16 , [2019] Nu J No 17 (QL) (as to conviction). Counsel for the appellant places weight on both of these cases. [ 118 ] To these cases might be added comments of the Supreme Court, albeit on the topic of credit for pre-sentence custody.

In R v Summers , 2014 SCC 26 at para 20 , [2014] 1 SCR 575, Karakatsanis J for the Court agreed with an earlier decision that “a judge should not deny credit without good reason . To do so offends one’s sense of fairness. Incarceration at any stage of the criminal process is a denial of an accused’s liberty .” [Emphasis added] [ 119 ] The sentencing judge’s reasons did not have to be as efficient as the Gettysburg Address, or as elaborate as its possible precursor, the Funeral Oration of Pericles, but there should have been some reasons provided.

As noted above, the appellant was not even present in person on August 13 and 27, 2019, but attended by telephone. While his appearance by those technological means is not suggested to have gone to jurisdiction, it can reasonably be said to be a circumstance which could reasonably contribute to a genuine sense of unfairness that a court process as to sentencing should never risk engendering. [ 120 ] One effect of the absence of reasons is the void as to the basis on which the sentencing judge concluded that the joint submission was contrary to the public interest.

Bearing in mind that the ultimate difference between the joint submission and the de facto sentence imposed by the sentencing judge was the difference between 120 days and 180 days, some rationale as to why one or the other was either in or out of the applicable range or pattern for Nunavut could reasonably be expected. Reasons are to provide intelligibility, reviewability and accountability.

The decision here achieves none of these objectives. [ 121 ] If there is a discernible range of sentences for domestic violence cases in Nunavut, it would not be constructed only upon the sentencing judge’s impression of his own experience. Ranges which are cobbled together even from a wider provenance are not necessarily of much help. As pointed out by Antonio JA for herself in Parr 75 While sentencing precedents can be useful as checks on parity, care must be taken in using them: R v Arcand , 2010 ABCA 363 at para 121 .

For instance, where sentences for multiple offences have been adjusted for totality, it can be difficult to discern what a stand- alone sentence would have been: examples among the submitted precedents include R v S(A); R v B(A), 2013 NUCJ 15 .

Where the sentencing court was constrained by the positions of the parties, the result is not truly adjudicated and is of reduced precedential value: examples among the submitted precedents include R v Caza , 2000 NUCA 9; R v Keenainak , 2011 NUCA 5 ; R v Pudlat , 2005 NUCA 3 ; R v N(J), 2005 NUCA 1 . 76 In short, there are dangers in “finding a case that seems alike and working from it”: R v Gibson , 2015 ABCA 41 at para 15 , citing Arcand .

Similarly, there are dangers in constructing a range “by isolating one or two oversimplified factors”: R v Nickel , 2012 ABCA 158 at para 30 . “[T]he value of a range is directly linked to the degree to which the required sentencing rigour has been applied to defining the range and to the reasoning in the cases making up the range”: Arcand at para 121 , also para 123. 77 Ranges reflect past sentences. Sentences depend on circumstances of the offence and the offender, and can be heavily influenced by factors other than the offence itself.

Even if two offences were identical, the sentences imposed should not be identical if, for example, significant mitigating factors were present in once case but absent in the other.

Parity is one of the aims of sentencing, but parity is reached only when all aggravating and mitigating circumstances are accounted for and sentences are adjusted as necessary: R v Felix , 2019 ABCA 458 at para 67 ; R v Gosselin , 2009 NWTSC 13 at para 40 . [ 122 ] Another element of this problem is that trial court judges are not endowed with a ‘declaratory’ role of inventing sentencing ranges of locally controlling effect on their own: compare R v Sam , 2013 ABCA 174 at paras 23-27 , 553 AR 118.

A fortiori should a judge not create an undisclosed range to that end. [ 123 ] Accordingly, the failure of the sentencing judge to explain what was wrong with the joint submission was a flaw with more than one dimension. It is not discernible what, if any, comparators or prior authority or guidance the sentencing judge was relying on, and it would not have been a demonstration of “public interest” error if the only discrepancy of the joint submission were that it did not fit the sentencing judge’s own practice. (

d) Miscellaneous Other Errors by the Sentencing Judge [ 124 ] As for more specific factual errors, counsel for the appellant firstly points to the inaccuracy of the sentencing judge’s view that the joint submission was designed by the Crown “in the event of [the appellant] being ultimately convicted”. Rather, the joint submission was developed with guilty pleas in mind.

It followed that one premise of the sentencing judge’s rejection of the joint submission was not well founded. [ 125 ] Secondly, counsel for the appellant points to the suggestion that this was not a “true” joint submission because it initiated with the Crown and the defence counsel agreed to it. As with the sentencing judge’s perception that there had to be a quid pro quo , the sentencing judge’s perception that counsel can agree to a joint submission but it is not a true or real joint submission because there is no

trade off has no basis. [ 126 ] Thirdly, counsel for the appellant submits that the sentencing judge overlooked the statements of counsel that the Crown had difficulty with contact with the complainant. While counsel for the defence quite properly told the sentencing judge that the complainant had not suggested that she was resiling from her complaint, the Crown did tell the sentencing judge that it is always an issue whether the Crown will be in a position to follow through with a trial if there is no guilty plea.

While an evidential problem for the Crown may not have been obvious, it was not fanciful nor was it advanced as an artifice to justify an unreasonable joint submission. [ 127 ] Fourthly, and relatedly, Moldaver J in Anthony-Cook pointed out that one of the benefits from the joint submission process is that it eliminates any need for the complainant or other witnesses to give evidence.

Even assuming that [TO] would have been located and been co-operative, it would have put some measure of stress onto her shoulders to be forced to assert under oath or solemn affirmation what the appellant did to her, when she wanted him to just finish his sentence so they could move on with life.

It should not be assumed that the experience of attending Court and giving public evidence which condemns someone for whom one has feelings is an easy process that the witness can perform clinically. [ 128 ] In addition to these factual errors, counsel for the appellant also impugns as unfair the process followed by the sentencing judge by adjourning the case, with the appellant in custody, and significantly past the end date that the joint submission would have reached.

Counsel for the appellant says that directing counsel to make written submissions to justify the joint submission was not a proper use of the power to adjourn under the circumstances. Counsel points to Kippomee where the same sentencing judge was faulted for an unnecessary adjournment for a similar purpose. If the sentencing judge was convinced that the proposed joint submission was “unhinged” as in Anthony-Cook , he should have told the parties that conclusion and offered the chance to withdraw the guilty pleas. [ 129 ] There is merit in this position.

The record does not suggest that the adjournment was forced by the sentencing judge with the idea in mind of later granting the appellant a chance to withdraw his guilty pleas if counsel failed to persuade him as to the joint submission as noted in Anthony-Cook .

Indeed, at the end of the process, the sentencing judge simply imposed what he evidently concluded was a fit sentence, by then already having been served by the appellant. [ 130 ] If one combines the dearth of reasons for rejecting the joint submission with the sentencing judge’s insistence on justification for the joint submission and his adjournments to force the issue – bearing in mind the context of technological issues as above mentioned – one is compelled to find the process followed was wrong in a variety of ways, and was deflected by errors of fact.

With that, it is not necessary to reach a conclusion as to the sentencing judge’s state of mind in following the process that he did. Consequently, I do not go that further step and consider the fact that the sentencing judge seems to have taken umbrage over the effort to have the guilty pleas withdrawn (perhaps under Anthony-Cook on the interim occasion in July). Indeed, there are concerns with counsel engaging in such an end around. But the issue rather dropped and I will leave it there. What I mentioned at the start of this paragraph is ample to conclude that the process was unfair. VI.

Conclusion [ 131 ] The appeal is allowed and the sentence imposed on the appellant is altered to a sentence of imprisonment for 120 days followed by probation for 12 months as proposed by the joint submission. Written submissions received on September 24, 2019, March 13, 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