R v CD, 2022 NUCA 1

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v CD, 2022 NUCA 1 Date: 20220121 Docket: 02-21-006-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - C.D. Applicant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of The Honourable Justice Jo’Anne Strekaf _______________________________________________________

Application for Permission to Appeal Application for Judicial Interim Release _______________________________________________________ Reasons for Decision of The Honourable Justice Jo’Anne Strekaf _______________________________________________________ Introduction [ 1 ] The applicant seeks permission to appeal his 9-month sentence for two counts of sexual interference, consisting of 4 ½ months on each count to be served consecutively. He also applies for bail pending his appeal hearing. [ 2 ] The applicant plead guilty.

He served 92 days of his sentence before being released on bail pending appeal on June 4, 2021. His appeal was dismissed on November 25, 2021 by a single justice of the Nunavut Court of Appeal sitting as a

summary conviction appeal judge. The applicant surrendered himself to the RCMP in Qikiqtarjuaq on November 30, 2021 and was transferred to the Aaqqigiarvik Correctional Healing Facility, where he remained incarcerated at the time of these applications. [ 3 ] The applications were heard and dismissed by me on December 23, 2021, with reasons to follow. These are my reasons. Permission to Appeal [ 4 ]

Section 839 of the Criminal Code provides that an appeal can be taken with permission from a decision of a judge of the Nunavut Court of Appeal sitting as a

summary conviction appeal judge on any ground that involves a question of law alone. As set out in R v Bhalla , 2021 ABCA 126 at para 8 , the applicant must establish that: - the proposed grounds of appeal involve questions of law alone; - the matter raises a reasonably arguable case of substance; and - the matter is of sufficient importance to merit a second level of appeal. [ 5 ] In addition, the following observations, summarized in R v Lofstrom , 2020 ABCA 286 at para 6 , apply to such applications: First, leave may only be granted from the decision of the

summary conviction appeal judge. Second, this is not a second appeal from the trial decision. Third, the scope of reviewability is substantially constrained. Fourth, a second appeal in

summary conviction cases ought to be the exception, not the rule - thus, permission to appeal to this Court ought to be granted sparingly. Fifth, even assuming that a question of law alone has been raised, not all questions of law merit a second appeal where the proposed question of law does not have significance to the administration of justice beyond the four corners of the case and it has not been demonstrated that there is potential for a significant impact on the administration of justice: R v Chow , 2017 ABCA 339 , para 7 .

The standard is onerous enough to ensure that Parliament’s intention to allow two appeals in only exceptional circumstances is realized: R v Steinkey , 2017 ABCA 291 , para 64 , [2017] DTC 5109; R v R(R) , 2008 ONCA 497 , para 37 , 234 CCC (3d) 463; R v Denys , 2009 MBCA 39 , para 32 , [2009] 4 WWR 581. [ 6 ] The appellant raised several grounds of appeal before the

summary conviction appeal judge, only one of which is related to the grounds advanced on this application for permission to appeal. That ground was that the sentencing judge failed to consider Gladue factors in reaching his decision. The

summary conviction appeal judge held that was not a reasonable conclusion, stating (at paras 29 – 32): [29] The appellant argues that the trial judge failed to consider Gladue factors in formulating his sentence, but that is not a reasonable conclusion.

An extract from the transcript of the oral reasons for decision given in the community demonstrate an awareness of these factors: Many years ago now, the Supreme Court of Canada in a very - one of the most important cases in our history, in the Queen versus Gladue told Canadians that because of the very real issues, social, economic and personal that arose out of the circumstances of colonialism, courts have to be very sensitive to the very real negative impacts, in this case on Inuit society. And that was reaffirmed later by the Supreme Court of Canada in a case called Queen versus Ipeelee .

And that’s only right and fair. We judges of the Nunavut Court of Justice see ourselves as judges of a Gladue and Ipeelee court because the vast majority of the people

we deal with, the vast majority of Nunavumiut people that we deal with are Inuit. With the

section that I just quoted [section 718.04], Parliament has broadened its vision.

I said in a case a year-and-a-half ago that the very same circumstances which have affected people and have to a certain extent contributed to their coming to court, the very same circumstances have affected Inuit women and have made them vulnerable. (Transcript, p. 30, l. 7 to p. 31, l. 2) And I've already mentioned that in Canada jail is the last resort, and that we require to give particular attention to the circumstances of Aboriginal Inuit offenders, and that's taken directly from 718.2(e), and those are the Gladue factors that I talked about a bit earlier. (Transcript, p. 33, l. 4-9) The trial judge indicated that he had considered Gladue factors in sentencing, and he is entitled to be taken at his word: R. v O’Brien , 2011 SCC 29 at paras. 17-18 , [2011] 2 SCR 485. [30] The appellant’s argument appears to be that the trial judge did not make specific reference in his reasons to the factual details about the appellant’s experience as an aboriginal offender.

In this case, however, the facts were not in dispute and had just been recited to the trial judge. Both counsel acknowledged the existence of those factors, discussed them in argument, and confirmed the need to consider them in sentencing. The reasons of a trial judge “. . . must, when read in conjunction with the record, show why the judge reached a particular result”: R. v Parranto , 2021 SCC 46 at para. 39 ; R. v G.F ., 2021 SCC 20 at para. 70 , 71 CR (7th) 1; R. v R.E.M ., 2008 SCC 51 at para. 16 , [2008] 3 SCR 3.

The trial judge was not required to repeat the undisputed facts that had just been reviewed by counsel. In context, it cannot be said that this factor was overlooked or underemphasized. [31] The appellant argues that the trial judge was required to analyse his “personal specific Gladue factors” and demonstrate how they were reflected in the sentence. The law is clear, however, that an accused is not required to show “causation” or any direct link between Gladue factors and the offence. Gladue factors tend to be systemic, and showing such direct links is generally impossible.

For the same reason, a trial judge cannot be expected to explain the effect any particular Gladue factor had on the moral culpability of the accused. For example, in this case, no one could describe the link between the taking of the family’s sled dogs and the appellant’s moral culpability for the sexual interference with his granddaughter. [32] Sentencing is an individualized process, within the discretion of the trial judge. The weight to be given to various factors in the proportionality analysis, and to aggravating and mitigating circumstances, rests with the trial judge.

In this case, the appellant has not shown that the weight given by the trial judge to Gladue factors amounted to an error of principle or generated an unreasonable outcome. [ 7 ] The standard of review on a sentence appeal was recently restated by the Supreme Court in R v Friesen , 2020 SCC 9 at para 26 , 444 DLR (4th) 1, citing R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089: As this Court confirmed in Lacasse , an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44).

Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably.” Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on sentence ( Lacasse , at para. 44 ).

If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit. [ 8 ] The applicant has not contended that his sentence was demonstrably unfit. However, he submits that his appeal raises the following questions of law which are of significance to the general administration of justice: 1. Does the Nunavut Court of Justice's self-identification as a " Gladue Court" absolve it of the duty shared by all judges in Canada to engage in a robust application of Gladue factors?

R v Swampy , 2017 ABCA 134 R v Laboucane , 2016 ABCA 176 R v. Matchee , 2019 ABCA 251 2. Does the rule that Indigenous offenders need not demonstrate a causal relationship between Gladue factors and moral blameworthiness mean that judges sentencing Indigenous offenders need not explicitly consider the individual Gladue factors (systemic and personal) that may have contributed to the specific offender being before the Court? R. v. lpeelee , 2012 SCC 13 , at paras. 81-83 3.

Since the failure to consider an offender's Gladue factors is an error of law, is a sentencing judge who has been presented with different sentence proposals by Crown and defence required to give reasons explaining how the sentence imposed accords with the relevant G1adue factors? R. v. Martin , 2018 ONCA 1029 [ 9 ] The Crown agrees that the questions identified by the applicant involve important questions but submits that they are matters that have already been clearly established in the case law. The Crown notes that the proposed appeal is from the decision of the

summary conviction appeal judge and denies that the proposed questions represent errors made by him.

[ 10 ] With respect to the first question, there is no doubt that judges of the Nunavut Court of Justice, like all judges in Canada, are required to consider Gladue factors when sentencing an Inuit offender. The

summary conviction appeal judge did not suggest otherwise. [ 11 ] As to the second question and third questions, the

summary conviction appeal judge was satisfied that the sentencing judge had considered Gladue factors in sentencing. He noted the sentencing judge was not required to repeat the undisputed facts regarding the appellant’s experience as an Indigenous offender and this factor was not overlooked or underemphasized. The

summary conviction appeal judge recognized that “ Gladue factors tend to be systemic” and that showing “direct links is generally impossible”. His conclusion that an accused or trial judge “cannot be expected to explain the effect any particular Gladue factor had on the moral culpability of the accused” does not reflect an error of law made by him. [ 12 ] The applicant has not satisfied the test for permission to appeal his sentence. Release pending Appeal [ 13 ] A court of appeal may grant release pending appeal of sentence only where the appellant has been granted permission to appeal: s 679(1)(

b) of the Criminal Code . As I have denied permission to appeal, it was not necessary to consider the application for judicial interim release. Conclusion [ 14 ] The applications for permission to appeal and release were dismissed for the reasons outlined above. Application heard on December 23, 2021 Reasons filed at Iqaluit, Nunavut this 21st day of January, 2022 Strekaf J.A. Appearances: Philippe Plourde for the Respondent Victoria Perrie for the Applicant