R. v. Mathewsie, 2016 NUCA 5

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. Mathewsie , 2016 NUCA 05 Date : 2016-09-30 Docket: 08-15-008-CAS Registry : Iqaluit Between: Crystal Mathewsie Appellant -and- Her Majesty The Queen Respondent _______________________________________________________ The Court : The Honourable Mr. Justice R.S. Veale Memorandum of Judgment Application regarding an appeal on the judgment by the Honourable Mr. Justice P. Bychok, Dated the 5th day of November, 2015 (Docket: 08-15-330)

Table of Contents MEMORANDUM OF JUDGMENT . 3 I. INTRODUCTION .. 3 II. FACTS .. 4 III. THE SENTENCE SUBMISSIONS .. 5 A. The Crown submission .. 5 B. The Defence submission .. 6 IV. ANALYSIS .. 8 A. The sentence . 8 B. Issues . 10 (i). Issue 1: did the sentencing judge err by engaging in impermissible speculation and by taking judicial notice about facts that are not the product of common sense in determining whether the joint submission would be contrary to the public interest and would bring the administration of justice into disrepute? . 11 (ii).

Issue 2: did the sentencing judge err in not giving counsel notice of his intention to deviate from the joint submission? . 14 (iii). Issue 3: did the sentencing judge err in failing to articulate why the joint submission would bring the administration of justice into disrepute? . 18 V. CONCLUSION .. 18 MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] Counsel for Ms.

Mathewsie appeals the decision of the sentencing judge on the grounds that he erred in rejecting a joint submission of Crown and Defence Counsel for a conditional discharge with 7 months’ probation, and instead imposing a suspended sentence with probation. The significance of the decision is that a conditional discharge is not a conviction and does not create a criminal record, while the suspended sentence results in a criminal record. [ 2 ] Ms. Mathewsie pled guilty to a charge of assault with a weapon in the context of domestic violence and the Crown proceeded by way of

summary conviction. [ 3 ] Defence Counsel submits that: 1. The sentencing judge erred by engaging in impermissible speculation and by taking judicial notice about facts that are not the product of common sense in determining whether the joint submission would be contrary to the public interest and would bring the administration of justice into disrepute;

2. The sentencing judge erred in not giving counsel notice of his intention to deviate from the joint submission; 3. The sentencing judge erred in failing to articulate why the joint submission would bring the administration of justice into disrepute. [ 4 ] Crown Counsel does not resile from the position taken by Crown counsel in favour of a conditional discharge at the sentencing of the accused. However, the Crown submits that the trial judge had the discretion to reject the joint submission and properly applied the law in doing so.

Crown Counsel concedes that the trial judge misstated an aggravating fact and speculated on the impact on the child of Ms. Mathewsie. Nevertheless, the Crown submits that these errors had no impact on the sentencing and the judge’s decision to reject the joint submission. II. FACTS [ 5 ] At the sentencing hearing of Ms.

Mathewsie on November 5, 2015, the following facts were read into the record by the Crown and admitted by Defence Counsel: … On June 28, 2015 at 20 : 50 hours, RCMP received a complaint from Iqaluit Emergency Services that Crystal Mathewsie had called to advise of a stabbing victim at her residence at house 315, apartment number 10. RCMP arrived on the scene. Crystal Mathewsie initially put up some blocks and obstacles to prevent allowing them to come inside the house. They advised her because there was potentially a victim of a stabbing inside, they needed to enter the residence.

She was somewhat antagonistic on that, but they eventually arrested her for obstruction, and placed her into the police truck and then entered the house. Inside the residence was also Crystal Mathewsie’s grandmother, Annie Mathewsie. She was elderly, and began screaming at the police when they entered, but was unable to get at them. She was unhelpful, and demanded that they leave. They observed some fresh blood on the floor, on the countertop, and a paper towel in the kitchen. A young boy was located in a bedroom with a blanket wrapped over his head.

He spoke to the Constable, and said that he heard fighting between his mom and dad. There was a locked door across from the boy’s bedroom. The boy said it was his mom and dad’s room. Police entered the room and observed Nelson Evaloakjuk lying on the floor. He was bleeding from several places on his hands and wrist, and was holding a bath towel over his wounds. They observed that the wounds were [consistent] with defensive wounds, as there was a cut to his right palm and laceration to his left wrist. When they asked him how he got the wounds, he said he did it to himself.

They were not convinced, and questioned him further. He was taken to the hospital for treatment. Crystal Mathewsie was meanwhile arrested for assault with a weapon. She - - they were unable to locate a knife in the apartment. When RCMP members attempted to get a statement from Mr. Evaloakjuk, he refused. He did not want to give consent to releasing his medical records. He did not want members to take photos, and he said he understood that it would be difficult to lay a charge in Court, and that he would still not cooperate. He did utter the following during his conversation with RCMP.

He said he didn’t think Crystal would get this mad. He remembers seeing her with a knife, and he froze because he couldn’t believe it. He put out his hands to stop her, and he got stabbed in the hands. He again indicated that he was never going to give a statement to the RCMP, and was never going to give medical releases to assist with the investigation. [Trial Transcript] … III. THE SENTENCE SUBMISSIONS A. The Crown submission

[ 6 ] The Crown, at the sentencing, submitted that in all the circumstances a conditional discharge was appropriate. The Crown recognized that Ms. Mathewsie had considerable family stresses in her life. She wished to upgrade her schooling and pursue employment. She has no criminal record and she had been doing counselling.

The Crown did not explicitly indicate on the record that it was a joint sentence submission. [ 7 ] The trial judge asked Crown Counsel the following question: What is the National Public Prosecution Service of Canada Protocol with respect to the availability of discharges in cases of domestic violence? [Trial Transcript] [ 8 ] The Crown indicated her understanding that they were available and that she had discussed the disposition with her manager. [ 9 ] On further questioning by the trial judge, the Crown read out s. 730(1) of the Criminal Code of Canada , RSC 1985, c C-46 [Criminal Code], and addressed the test for a discharge, i.e. that one is available when the court considers it to be in the best interests of the accused and not contrary to the public interest. [ 10 ] With respect to this two-prong test, the Crown submitted that it was in the best interests of the accused as Ms.

Mathewsie cares for her elderly mother who has very serious medical issues requiring constant care, and is, as well, the caregiver to her 7-year-old son along with Mr. Evaloakjuk, the child’s father figure. [ 11 ] In terms of the public interest, the Crown submitted and I quote: “…to burden Ms.

Mathewsie with a criminal conviction when she actually would have the opportunity as a young woman to upgrade schooling, pursue employment, and provide positive role for her family, for her son, it’s not in the public interest to burden her with a criminal record.” [ 12 ] At this point, the judge intervened: And in terms of the public interest, you know that it doesn’t matter what community we’re in, and what docket we’re looking at, but our courts are almost overwhelmed with cases of domestic violence. We’re dealing with a very serious charge here.

We’re dealing with assault with a weapon that lead to at least a number of stabs, and it was so upsetting that a seven year old child was in the bedroom hiding beneath a blanket. I’m having a hard time wrapping my head around the concept that to grant a discharge of any variety to Crystal [is in] the public interest. [Trial Transcript] [ 13 ] He went on to observe that the accused could stay with her family whether she received a conditional discharge or a suspended sentence. B.

The Defence submission [ 14 ] Defence Counsel, in what the sentencing judge referred to as “superior advocacy” and “excellent representation”, submitted that Ms. Mathewsie, age 26, had given up her right to trial in the face of significant hurdles for the Crown in proving its case. [ 15 ] She submitted that the judge should put “…much weight as the Court can on her very early guilty plea”, which was on Ms. Mathewsie’s second court appearance. Ms. Mathewsie had also completed almost 70 hours of community service. Defence Counsel stated that what Ms. Mathewsie did was “incredibly out of character”.

She had had a very difficult childhood dealing with the alcoholism of her parents and domestic violence, but was fortunately taken in by her grandmother, whom she refers to as her mother.

[ 16 ] Defence Counsel submitted that Ms. Mathewsie has provided almost all the care for her elderly grandmother as well for as her 7- year-old son, setting aside her desire for her own further education and employment. [ 17 ] Ms. Mathewsie very rarely drinks to excess, but she did so with her common-law that evening, after hearing distressing news about her grandmother’s health being in decline, and began fighting with him. It was Ms. Mathewsie who called EMS [Iqaluit Emergency Services] to advise that she had injured Mr. Evaloakjuk. [ 18 ] Defence Counsel submitted that in the future, Ms.

Mathewsie wants to be employed as a cook down south and a criminal record would be a significant hindrance to that goal. Defence Counsel submitted that in the vast majority of cases of this nature a conditional discharge would not be appropriate. In this case, however, Defence Counsel cited the mitigating factors that Ms. Mathewsie had no criminal record, gave an early guilty plea, did 70 hours of community service, gave up significant triable issues, and turned herself in. Ms.

Mathewsie had also taken counselling; although this ended when the counsellor moved away. [ 19 ] With respect to the joint position and near the end of her submission, Defence Counsel said the following: And Your Honour is well aware, we’ve discussed it earlier today, that a Court should give significant consideration to the discussions between counsel. And I can advise that my friend’s office has been very receptive of the information that I have been provided about Ms. Mathewsie, and that there were a number of thoughtful discussions that went into the information and the proposal that you see before you today.

And I thank my friend’s office for the opportunity to engage with them in that way. … The fact that you have a joint submission before you that is the thoughtful presentation of counsel who have worked together on this matter. It is not contrary to the public interest. It would not bring the administration of justice into disrepute to give this first time young woman a chance not to gather a criminal record. [ 20 ] This is the first explicit reference to the fact that the court had a joint sentence submission before it.

The submission included several letters of good character referring to her volunteer work in the community. [ 21 ] Ms. Mathewsie personally apologized in court for what she did. IV. ANALYSIS A. The sentence [ 22 ] The sentencing judge rendered his sentence on November 6, 2015, as the case had been adjourned at 5 o’clock the previous day.

It included the following reference to the fact that it was a joint submission: And the law is that unless a number of factors occur, for example, if it’s unreasonable, or if it’s not in the public interest, the Courts put a lot of value on these joint suggestions by the lawyers, because very often lawyers have the best understanding of what’s going on in any particular case, and the Court only knows really a small fraction of it.

We only know what’s eventually told to us in Court, which is usually a bit of a Readers Digest version. [ 23 ] The judge described the range of sentences available, from absolute discharge to conditional discharge to a suspended sentence to “two types of jail” (presumably referencing a conditional sentence versus time incarcerated in a correctional facility). [ 24 ] The judge agreed with the submission for 7 months’ probation and ordered only one special condition of taking treatment or counselling in addition to the mandatory conditions. He made the very positive statement that he did not expect to see Ms.

Mathewsie in criminal court again. He also mentioned that she “elected to take a knife”.

[ 25 ] The judge continued as follows: Now, with respect to a discharge, there’s a fundamental legal principal [as written] that I have to be very concerned about this morning, and that is if two people do essentially the same thing in the same circumstances and they have the same backgrounds, they should be treated pretty much the same. If one person is treated differently, that might be considered to be unfair. And that’s a pretty basic principal. And there’s even a

section in the Criminal Code that talks about that. Now, in this case we have a case of domestic violence, and you used a knife, which puts it in a very serious category. Our Court deals with hundreds of cases of domestic violence every year, and in those cases quite a few people are convicted and found guilty for the first time of what’s called common assault. And common assault, Crystal, is when you push someone, or you push someone a few times, or you punch someone, or you punch them a lot, or you kick them, or you kick them a lot, you pull their hair, or you pull them on the ground by their hair.

And in those kinds of cases, this Court almost all the time gives a suspended sentence and probation. It’s very rare in a common assault case for the Court to give a discharge of any type. Part of the reason for that is the fact that we have hundreds and hundreds of these cases every year. And while there’s not really much a Judge can ever do sitting up here to stop the violence, the Court has the job at least to remind people who live in Nunavut that family violence is absolutely unacceptable. We know, Crystal, that every year one or two women, usually women, will die at the hands of their partners.

So when common assaults result in suspended sentences and probation, you can imagine that when a knife is involved, assault with a weapon, it becomes even more serious. And routinely, even for a first time offender, someone who takes a knife to their partner is going to be subject to a jail term in the community. It’s that serious.

And the Court has to send the message to the community consistently and fairly that when other people are subject to conditional sentences from taking a knife to their common-law partner, unless there’s something really extraordinary involved here, that person will have to serve a jail term in the community of a short period of time, just because it’s so serious. Now, in this case, in your case, you’re a first time offender. You’ve taken extraordinary steps to rehabilitate yourself. And, as I said before, you’re to be congratulated in that.

But basically what your lawyer and the Prosecutor want the Court to do is to go down two steps, to go to skip over the suspended sentence, when normally you would get a conditional sentence, to skip over the suspended sentence and go to a conditional discharge, and that’s not something this Court can do. I don’t know exactly how many times you went after Nelson with the knife, but I think I can safely say that you did it, you swung out at him with a knife at least twice, because he had wounds to both his hands. This is a very serious case of domestic violence.

So no Court in those circumstances is going to grant a conditional discharge. [Trial Transcript] B. Issues [ 26 ] The issues presented by the appellant’s counsel are the following:

1. Did the sentencing judge err by engaging in impermissible speculation and by taking judicial notice about facts that are not the product of common sense in determining whether the joint submission would be contrary to the public interest and would bring the administration of justice into disrepute? 2. Did the sentencing judge err in not giving counsel notice of his intention to deviate from the joint submission? 3.

Did the sentencing judge err in failing to articulate why the joint submission would bring the administration of justice into disrepute? [ 27 ] Crown and Defence agree that a sentencing judge is not bound to accept a joint sentence submission, but there is some disagreement about how the judge should proceed when he or she intends to depart from or reject a joint submission. [ 28 ] Generally, deference should be accorded to the sentencing judge unless there is an error in principle or the sentence is demonstrably unfit. (i).

Issue 1: did the sentencing judge err by engaging in impermissible speculation and by taking judicial notice about facts that are not the product of common sense in determining whether the joint submission would be contrary to the public interest and would bring the administration of justice into disrepute? [ 29 ] In R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089 [Lacasse] , the Crown was appealing a Quebec Court of Appeal judgment that reduced a sentence of 6 ½ years to 4 years after the accused pled guilty to two counts of impaired driving causing death.

The appeal was allowed and the sentence imposed by the sentencing judge restored. The majority stated that, except where a sentencing judge makes an error of law or principle “that has an impact on the sentence”, an appellate court may not vary the sentence unless it is demonstrably unfit.

At para. 44, Wagner J. stated: In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge's decision that such an error had an impact on the sentence. [ 30 ] Further, at para. 83, Wagner J stated that “…the erroneous consideration of an aggravating or mitigating factor warrants appellate intervention only if it can be seen from the trial judge's decision that the error had an actual impact on the sentence. …”. [ 31 ] The Crown acknowledges that the trial judge should not have drawn the conclusion that Ms.

Mathewsie swung the knife at least twice at the victim based solely on the evidence that the victim had a cut to his right palm and a laceration to his left wrist. The Crown also acknowledges that the evidence did not permit the trial judge to conclude that Ms. Mathewsie’s son would remember the incident for the rest of his life and that it had destroyed his sense of safety in the home.

However, the Crown submits that they were minor errors that had no impact on the sentence and were not determinative in the judge’s decision to reject the joint submission. [ 32 ] Rather, the Crown submits that the judge based his decision on the fact that when a weapon is used in a domestic assault case, it will usually result in a jail sentence even for a first time offender.

The judge concluded that he could not accept the joint submission in its entirety as it was contrary to the principle of parity. [ 33 ] I agree with the Crown that the judge’s reference to the trauma that would be suffered by the 7-year-old son is a minor error in the context of this case and not one that had a decisive impact on the sentence. It is not inappropriate for a sentencing judge to point out that domestic violence will likely be traumatic for a child.

[ 34 ] However, the sentencing judge’s conclusion that there were at least two knife swings cannot be discounted as an error without an impact. During the submission of the Crown, in reference to whether or not a discharge was contrary to the public interest, the trial judge referred to the charge as serious, saying: “We’re dealing with assault with a weapon that led to at least a number of stabs.” [ 35 ] As pointed out by appeal counsel for Ms. Mathewsie, there are five references to the use of the knife in the judge’s reasons for sentence. He referred to Ms.

Mathewsie electing “to take a knife” in a domestic dispute, and observed that she “used a knife which puts it into a serious category”, saying “you can imagine that when a knife is involved, assault with a weapon”, “someone who takes a knife to their partner is going to be subject to a jail term”, and finally that other “people are subject to conditional sentences from taking a knife to their common-law partner”. The sentencing judge ended with the finding that Ms.

Mathewsie “swung out at him with a knife at least twice, because he had wounds to both his hands.” [ 36 ] I do not agree with the Crown’s characterization of these comments as being solely about the use of a knife with no emphasis on the number of swings and stabs taken.

The judge’s speculation about the number of swings of the knife was not a permissible inference from the facts read in, and I cannot conclude that it did not have an impact on the sentence given. [ 37 ] I want to be very clear that the trial judge was correct about the prevalence of domestic violence in Nunavut and, in my view, he has the experience as a lawyer and judge in that jurisdiction to make those comments ( see also Lacasse , at para. 95 ). [ 38 ] Although it was not raised as an error in principle under this ground by the appellant, I also wish to observe that the trial judge placed too great an emphasis on the principle of parity and gave too little weight to the principles set out in the Gladue and Ipeelee [1] cases that must be addressed in the sentencing of Aboriginal offenders.

The trial judge, in fact, made no reference to the Gladue principles. The lack of an explicit reference to Gladue is perhaps not unusual in Nunavut where the majority of people are Aboriginal, and the principles are generally acknowledged and taken into account. However, here, while the judge certainly made reference to Gladue factors, his focus was squarely on parity. [ 39 ] In Gladue , the Supreme Court of Canada stated that s. 718.2 (

e) of the Criminal Code directs sentencing judges to undertake the process of sentencing Aboriginal offenders differently. [ 40 ] In speaking to the role of sentencing judges, the Court in Gladue said the following: [65] … What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. … [70] … A significant problem experienced by aboriginal people who come into contact with the criminal justice system is that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by these offenders and their community. … [ 41 ] These observations were reiterated and expanded on in Ipeelee .

At para 66, the majority noted that sentencing judges can try to play a role in reducing crime rates in Aboriginal communities by imposing sentences that effectively deter criminality and rehabilitate offenders, and that they are obligated to take an innovative and individualized approach. This means that parity cannot take precedence as a sentencing principle. As written at para 79 of Ipeelee, “[c]ourts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of [ Criminal Code ] s. 718.2 (e)”.

[ 42 ] To be fair to the sentencing judge, he correctly identified the terrible situation with domestic violence in Nunavut. And, arguably, he wanted all Aboriginal offenders to be treated equally. But in emphasizing parity to the extent that he did, he lost sight of the principles and factors relevant to Aboriginal offenders and failed to take into account the unique circumstances of Ms. Mathewsie as an Aboriginal offender. [ 43 ] The judge referred to this case as “a very serious case of domestic violence” when the Crown proceeded by way of

summary conviction. I do not, in any way, wish to minimize the seriousness of domestic violence at any level. But this recognition does not permit a judge to add: … So no Court in those circumstances is going to grant a conditional discharge. [ 44 ] I disagree. In the context of Criminal Code s. 718.2(

e) and the sentencing principles set out in Gladue and Ipeelee, every court is obligated to exercise its discretion judicially in determining how those principles apply to this offender, in her family, and in her community. The judge must address sentencing on an individual case-by-case basis, even if it means granting a discharge for an offence that on its face may warrant a more punitive sanction. (ii).

Issue 2: did the sentencing judge err in not giving counsel notice of his intention to deviate from the joint submission? [ 45 ] The approach to the notice required to be given to counsel when a sentencing judge is thinking of rejecting a joint submission differs depending on the court and the particular circumstances of the sentencing hearing.

While I am not aware of a binding precedent in the Nunavut Court of Appeal, the view of the Court of Appeal of Alberta should be given great weight. [ 46 ] In R v Gibson , 2015 ABCA 41 , 319 CCC (3d) 115 , the court stated the following: 8 In exchange for Gibson's pleading guilty, Crown and defence counsel made what was described as "a true joint submission" for a two- year custodial sentence coupled with a lengthy driving prohibition. At the oral hearing at which these submissions were made, the sentencing judge expressed his concern that in the factual circumstances before him, a two-year sentence was unfit.

In keeping with the proper procedure, he invited further written submissions from counsel: R v Shular, 2014 ABCA 241 at para 40 , leave to appeal to SCC refused, [2014] S.C.C.A. No. 422, 36086 (December 18, 2014). Both Crown and defence counsel referred to additional cases suggesting that a sentence in the range of two to four years imprisonment was fit for this offence.

Crown counsel also advised that there were potential problems with proof of this case, though the illustrations referred to were of a general nature and applicable to most such driving cases. [ 47 ] In R v Magas , 2012 ABCA 61 , [2012] AJ No 182 (QL) , the majority stated the law on joint submissions as follows: 16 A joint submission must be given serious consideration and should be accepted unless it is considered unfit or unreasonable. If a sentencing judge is disinclined to accept a joint submission, counsel should be afforded an opportunity to make further submissions to address the judge's concerns.

The rejection of a joint submission is unlikely to warrant appellate intervention where the sentencing judge demonstrated a thorough appreciation of the relevant facts, their significance and the proper sentencing principles: R. v. Tkachuk, 2001 ABCA 243 , 293 AR 171 at para 32 ; R. v.

GWC, 2000 ABCA 333 , 277 AR 22 at paras 19 and 26 . [ 48 ] The dissent highlighted the obligation of the sentencing judge (from R v Tkachuk , 2001 ABCA 243 at para. 32 , 159 CCC (3d) 434 ): … iii) If the sentencing judge is disinclined to impose the sentence recommended, the judge should so advise counsel and permit them to make further submissions in support of their original position and against the suggestion that the submission be departed from. This would provide counsel an opportunity to answer any concerns the sentencing judge may have for departing from the recommended sentence. (emphasis already added)

… [ 49 ] With respect to this ground of appeal, the Crown submits that the sentencing judge clearly stated that he had difficulty with the public interest aspect of a conditional discharge in the context of the seriousness and prevalence of domestic violence in Nunavut and says that he demonstrated a thorough appreciation of the relevant facts, their significance, and the proper sentencing principles. [ 50 ] Defence Counsel submits that in situations where a sentencing judge concludes that he might not accede to a joint submission, fundamental fairness dictates that he give counsel an opportunity to make further submissions to address his concerns before imposing a sentence that deviates from it.

Defence Counsel submits that the judge’s expressed concerns about the seriousness of domestic violence and why a conditional discharge would not be in the public interest, did not sufficiently notify counsel that he would depart from the joint submission or afford them the opportunity to make further submissions in support of the position. [ 51 ] Justice Kilpatrick, the Senior Judge in Nunavut and one of the first justices at the creation of Nunavut on April 1, 1999, stated the following with respect to joint submissions in R v Laisa , 2015 NUCJ 39 , [2015] Nu J No 37 (QL) , a leading sexual assault case on the indictable offence of sexual interference: 17 In the circumstances of this case, Crown and Defence have agreed on a joint submission of some 20 months jail time for these offences.

Had the Criminal Code s. 151 offence gone to trial, you would have been in a penitentiary today, Robert. The guilty plea has to be given considerable weight, as does your cooperation with the authorities. That is what makes the difference. That is why you are not going to a penitentiary today, sir. You have also taken the limited programming that is available through the Baffin Correctional Centre. You have participated in the men's group and that is good.

You also deserve some credit for having done that. 18 The Court is required, once again by appellate courts, to give very careful attention to joint submissions. The joint submission in this case follows a plea agreement. 19 If everyone in Nunavut wanted to take their matters to trial, the administration of justice would suffer. Appellate jurisprudence recognizes this and recognizes it in the form of ensuring that trial judges do not lightly interfere with joint submissions because it is in the public interest to encourage people to accept responsibility and move on with their lives.

The circumstances in which a trial judge can interfere with a joint submission are limited by appellate jurisprudence. I must be satisfied, in order to interfere, that the proposed sentence would bring the administration of justice into disrepute. 20 I am satisfied, in the circumstances of this case, given all of the mitigating features of this offence, that [it] would be appropriate to accept the joint submission that has been offered in this case.

I say that, and emphasize in doing so once again, that if this had gone to trial, the end result would have been well into the penitentiary range for this type of offence committed in these circumstances. [ 52 ] I have set out this decision in some detail because it expresses a number of important principles in dealing with serious offences and the treatment of joint sentence submissions in Nunavut. [ 53 ] There is no doubt that joint sentence submissions in Nunavut play a much more prominent role than in the rest of the North and Canada generally.

Although this particular case took place in Iqaluit, it could have been in one of the 25 communities, not connected by roads, from Sanikiluaq in Hudson Bay to Grise Fiord, Canada’s most northern residential community. [ 54 ] The sentencing judge indicated on the record that he was having difficulty accepting the proposed conditional discharge as not being contrary to the public interest. This much was clear to both Crown and Defence Counsel.

However, he largely expressed his views before the fact that it was a joint submission was made explicit, and he did not ask for clarification about the considerations, apart from the public interest, that underpinned the joint position. Neither counsel were notified that he was not going to accept the joint submission prior to when he delivered the sentence the next day.

[ 55 ] In my view, it was incumbent on the sentencing judge to state explicitly that he was not accepting the joint submission. Both Crown and Defence should have been given the opportunity to address his concerns about parity, the need for denunciation and deterrence given the severity and prevalence of domestic violence, and the judge’s view that no court would grant a conditional discharge in such circumstances.

They also should have been given an opportunity to explain any plea bargaining considerations made in reaching the joint position. [ 56 ] While Defence Counsel did address a fairly broad range of issues to convince the judge of the merits of the joint sentence submission, Crown Counsel did not have an opportunity to support or supplement these submissions. [ 57 ] I conclude that although the judge gave notice that he was having difficulty with the conditional discharge not being contrary to the public interest, this fell short of notice that he was thinking of rejecting the joint sentence submission.

He failed to provide an opportunity for Crown and Defence Counsel to address all his concerns, some of which they heard for the first time when he delivered his judgment the next day. (iii). Issue 3: did the sentencing judge err in failing to articulate why the joint submission would bring the administration of justice into disrepute? [ 58 ] Counsel did not address this issue in any depth because the first two issues are central to this appeal, and my decision on those essentially disposes of the appeal.

In fairness, the reasons given in the sentencing judge’s decision amount to a reasonably clear articulation of why he felt the joint sentence submission would bring the administration of justice into disrepute, despite the fact that he did not use those exact words. V. CONCLUSION [ 59 ] I conclude that the sentencing judge did not give appropriate notice of his decision to reject or depart from the joint submission of counsel. This is especially so given the importance of joint submissions in the efficient and fair administration of justice in Nunavut.

The sentencing judge also erred in his understanding of the facts and failed to properly consider the application of Gladue and Ipeelee, focusing instead on the principle of parity and the prevalence of domestic violence in Nunavut. [ 60 ] I, therefore, grant leave to appeal, allow the appeal, set aside the sentence imposed by the sentencing judge, and impose a conditional discharge with 7 months’ probation. Appeal heard on September 7, 2016 Memorandum filed at Iqaluit, Nunavut This 30th day of September, 2016 ______________________ R.S. Veale J.A. Appearances:

Lana Walker for the Appellant Abel Dion for the Respondent