R v Algiak, 2022 NUCA 5

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Algiak, 2022 NUCA 5 Date: 20220830 Docket: 23-21-002-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Joe Martin Algiak Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant or witnesses must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of The Honourable Justice Jo’Anne Strekaf _______________________________________________________ Application for Permission to Appeal

_______________________________________________________ Reasons for Decision of The Honourable Justice Jo’Anne Strekaf _______________________________________________________ Introduction [ 1 ] The applicant was convicted of one count of sexual assault on February 2, 2021. After hearing oral submissions on sentence, the trial judge adjourned overnight and delivered oral reasons the next day sentencing the applicant to 18 months’ incarceration.

The sentencing judge issued written reasons on March 19, 2021, after the applicant had filed appeals of both his conviction and sentence: R v Algiak , 2021 NUCJ 17 . [ 2 ] The appeals from conviction and sentence were heard by a single justice of the Nunavut Court of Appeal sitting as a

summary conviction appeal judge on September 17, 2021, and dismissed on September 20, 2021: R v Algiak , 2021 NUCA 14 . The applicant now seeks permission to appeal the decision of the

summary conviction appeal judge on sentence to a panel of the Nunavut Court of Appeal. He does not seek to further appeal the conviction decision. [ 3 ] While the applicant has already been released from custody, he wishes to proceed with his application for permission to appeal. The Crown acknowledges that the appeal is not moot if it could result in a change of sentence. [ 4 ] The application for permission to appeal is dismissed for the reasons that follow.

Test to Obtain Permission to Appeal [ 5 ] Section 839(1.1) of the Criminal Code provides that an appeal can be taken, with leave of a judge of the Nunavut Court of Appeal and on any ground that involves a question of law alone, against a decision of a judge of the Nunavut Court of Appeal sitting as a

summary conviction appeal judge. 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. [ 6 ] 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. Proposed Grounds of Appeal [ 7 ] The applicant submits the

summary conviction appeal judge erred in law: 1. by relying on the sentencing judge’s written reasons for sentence, issued after sentence was imposed and after the notice of appeal had been filed, to find that the sentencing judge had properly taken account of Gladue factors; and 2. by finding that sentencing judges intending to exceed the recommendations of counsel are required to do nothing more than express concern, without telling counsel why their proposal is concerning. Analysis

[ 8 ] The Crown acknowledges that the first criterion of the test for leave is satisfied, as both proposed grounds involve questions of law. However, the Crown says that neither proposed ground raises a reasonably arguable case of substance, is of sufficient importance to merit a second level of appeal, or would warrant intervention by the Court of Appeal to vary the sentence in any event. Ground One – Reliance on the written reasons issued by the sentencing judge [ 9 ] The applicant was convicted on February 2, 2021, and counsel immediately delivered submissions on sentence.

The sentencing judge adjourned to provide oral reasons for sentence the following day, on February 3, 2021, the transcript of which is 21 pages in length. During the hearing, the sentencing judge advised counsel that he intended to publish the reasons for conviction and sentence he was delivering so as to “partially to fill the gap in the published case law by including detailed reasons for the sentence I am about to give”. The applicant filed a notice of appeal against sentence two weeks later, on February 17, 2021.

The sentencing judge issued written reasons on March 19, 2021. [ 10 ] In his oral reasons, the sentencing judge said the following with respect to Gladue factors: I must also apply the following principle which pertains to Mr. Algiak and all Inuit offenders. I’m obliged to consider

Section 718.1(

e) which says, and I quote: All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. In this context, I must account of the effects of historic and systemic colonialism and the intergenerational trauma experienced by Inuit. These are the Gladue factors articulated by the Supreme Court of Canada in The Queen v. Gladue and later reinforced in The Queen v. Ipeelee. [ 11 ] In his subsequent written reasons, the sentencing judge stated, at paras 43 to 47: (iv) Criminal Code

section 718.2 (

e) and R v Gladue [43] I also was required to apply the following principle which pertained to Mr. Algiak (and all Inuit offenders). I was obliged to consider: 718.2 … (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [44] In this context, I was required to account for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit. These are the now well-known Gladue factors articulated by the Supreme Court of Canada in R v Gladue and later reinforced by the Court in R v Ipeelee . [45] The vast majority of Nunavummiut who come before the Nunavut Court of Justice are Inuit, and we deal daily with

section 718.2 (e) / Gladue factors and the realities of the impact of colonialism on Inuit society. Indeed,

section 718.2(e) / Gladue constitutes the lens through which we view all cases involving Inuit. [46] The

section 718.2 / Gladue analysis required me to consider the impact of colonialism on Mr. Algiak along with his personal circumstances, of which I was told very little. Nevertheless, I readily infer that Mr. Algiak has been greatly affected by the ongoing intergenerational impacts of colonialism, many of which I reviewed in R v Anugaa . [47] The aggravating factors here demonstrated that Mr. Algiak bears a high moral blameworthiness for this brutal sexual assault. The challenge, therefore, was to give appropriate weight to 718.2(e) / Gladue factors in light of Mr. Algiak’s high moral blameworthiness. To balance properly the objectives and principles of sentencing and precedent with

section 718.2(e) / Gladue , I was required to impose a penitentiary sentence. A penitentiary sentence being unavailable to me, I imposed the maximum

summary penalty. [ 12 ] Before the

summary conviction appeal judge, the applicant submitted that, while the sentencing judge referred to the applicant’s personal circumstances, Gladue and

section 718.2(

e) of the Criminal Code in his oral reasons, he failed to draw any connection between those considerations and the proportionality of the sentence and did not address moral blameworthiness and fitness of sentence. [ 13 ] The

summary conviction appeal judge rejected that submission, and in doing so referred to both the oral and written reasons of the sentencing judge. He said that in the oral reasons, the sentencing judge “considered Gladue factors and s 718.2(

e) of the Criminal Code , and reviewed Mr Algiak’s personal circumstances…”, noted the violent nature of the attack on a vulnerable Inuk woman, the applicant’s previous convictions for sexual assault, the prevalence of domestic and sexual violence against women in the North, and that the sentence imposed must recognize “the nature, impact and severity of sexual violence, while holding [the applicant] demonstrably responsible for his crime”: para 32. [ 14 ] The

summary conviction appeal judge also referred to the “supplemental written reasons”, noting that the sentencing judge “again reviewed the parity principle, s 718.2(e), and the principles in Gladue”. The

summary conviction appeal judge went on to say, at paras 41 to 44: [41] … the sentencing judge properly considered Gladue factors. Such consideration did not require detailed causative reasoning as “sentencing reasons do not require ‘a detailed chain of causative reasoning’, but rather a recognition of the effect of Gladue/Ipeelee factors on moral culpability ‘based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge’”: R v Spotted Eagle , 2021 ABCA 26 , para 21 ; R v Whitehead , 2016 SKCA 165 , para 63 , 344 CCC (3d) 1.

[42] The presence of Gladue factors will not result in an automatic sentence reduction. They provide context in assessing the offender’s moral culpability but do not determine the ultimate question of the individualized sentencing assessment: R v McDonald , 2021 ABCA 262 , para 22 . [43] The sentencing judge considered Gladue factors and said the appellant had been “greatly affected by the ongoing intergenerational impacts of colonialism”.

He gave appropriate weight to those factors in light of Mr Algiak’s high moral blameworthiness and the fact that this was his third conviction for sexual assault. [44] There is no substance to Mr Algiak’s concerns over the sentencing judge’s consideration of proportionality, aggravating and mitigating factors, or Gladue factors. [ 15 ] While the

summary conviction appeal judge did not address whether and to what extent it was appropriate to rely on the subsequently issued written reasons, counsel for the applicant advises that issue was raised before him. She submits it was an error for the

summary conviction appeal judge to have relied on additional language in the written reasons in assessing the sentencing judge’s approach to the Gladue factors. [ 16 ] Where a judge delivers an oral decision and subsequently issues written reasons that go beyond editing to expand or modify the analysis in the previous decision, in the absence of special circumstances, potential concerns can arise.

The issue was explained in PricewaterhouseCoopers Inc v Perpetual Energy Inc , 2021 ABCA 16 at paras 61 – 66 : [61] A trial judge who pronounces a decision orally undoubtedly has the right to edit any subsequent written version of the decision.

That right to edit exists whether or not the right is “reserved” in the oral decision, but there are limits to it: Wilde v Archean Energy Ltd ., 2007 ABCA 385 at para. 24 , 82 Alta LR (4th) 203, 422 AR 41….. [63] Further, given that appeal periods are deliberately kept short to promote finality, if a judge proposes to issue written reasons, that must be done promptly, preferably well before the appeal period expires. The reversal of any line of analysis in the oral reasons, or the addition of whole new lines of analysis, are highly undesirable.

If the judge’s thinking has developed to the point that he or she is able to give oral reasons, it should not be necessary to embellish those reasons when they are reduced to writing. [64] There are cases where the matter is urgent, and the parties need a decision immediately.

In those cases, trial judges will sometimes pronounce the result, in cursory fashion, and issue written reasons at the earliest opportunity : Law Society of Alberta v Beaver , 2016 ABCA 290 at para. 11 , 44 Alta LR (6th) 16; Liu v Huang , 2020 ONCA 450 at para. 10 . ….. [65] When reasons are issued long after the result is pronounced, there can be a perception of result-driven analysis: R. v Teskey , 2007 SCC 25 at para. 18 , [2007] 2 SCR 267.

While the problem is more acute in criminal cases, and in cases that are heavily dependent on the trial evidence, it also applies to civil matters like the ones at issue in these appeals. As the court noted in Jacobs Catalytic Ltd. v International Brotherhood of Electrical Workers, Local 353 , 2009 ONCA 749 at para. 52 , 255 OAC 201: 52. While Teskey is a criminal case, the rationale applies here.

When an adjudicator purports to issue the final reasons for a decision and later issues supplementary reasons, without explaining why the supplementary reasons did not form part of the initial reasons, a reasonable person may apprehend that the adjudicator engaged in results-based reasoning in order to shore up the decision. If the adjudicator had relied on the content of the supplementary reasons in arriving at the decision, those reasons should have formed part of the first set of reasons.

Where the analysis in the written reasons differs from that given in the oral reasons, an appellate court is entitled to review the decision based on the original rationale: Nova Scotia (Minister of Community Services) v C.K.Z. , 2016 NSCA 61 at paras. 61-63 , 376 NSR (2d) 113.

See also: R v CD , 2021 NUCA 21 at paras 13 – 14 . [ 17 ] While the written reasons of the sentencing judge supplement what was said in the oral reasons in relation to the Gladue factors, the applicant has not demonstrated sufficient discrepancy between the oral reasons and the written reasons to justify granting leave to appeal on this issue in this case.

The law on this issue is well-established and the proposed ground of appeal does not have significance to the administration of justice beyond the four corners of the case, nor has it been demonstrated that there is potential for a significant impact on the administration of justice. The written reasons do not contain a different line of analysis from that set out in the oral decision, and the discussion and consideration of factors that were referenced by the

summary conviction appeal judge are largely mentioned or referred to in the oral reasons. There is no reason to conclude that the decision of the

summary conviction appeal judge would have been different had he limited the references in his judgment to the oral reasons alone. [ 18 ] The applicant has failed to meet the onerous standard to justify a second level of appeal on this issue. The application for permission to appeal on this ground is dismissed. Ground Two –Notice to counsel that a sentence greater than that sought by the Crown might be imposed [ 19 ] The 18-month sentence imposed by the sentencing judge exceeded the sentence sought by the Crown of 10 months’ incarceration and three years’ probation. [ 20 ] The applicant does not suggest that the

summary conviction appeal judge erred in describing the approach that should be followed in such circumstances, as set out at paras 26-27 of his reasons: [26] A sentencing judge may not impose a sentence greater than recommended by the Crown without giving appropriate notice to the parties. The law is clear that a judge has “a duty to signal to counsel that [he] was having some difficulties with what was being

proposed” and failure to do so results in inherent unfairness: R v Vegso, 2012 NWTSC 77, para 19, 40 MVR (6th) 295; R v Keough, 2012ABCA 14, para 20, 281 CCC (3d) 476; R v Williah, 2012 NWTSC 53, paras 29-36; R v Burback, 2012 ABCA 30, paras 12-15, 68 Alta(5th) 72; and see R v Mathewsie, 2016 NUCA 5, para 45; Kippomee, para 30. [27] In Parr, this Court allowed a sentence appeal where a sentencing judge failed to advise counsel that he did not accept theranges of sentences they proposed, saying “[t]his practice is to be highly discouraged”, para 52.

In R v Kritaqliluk, 2021 NUCA 4, para16, this Court reaffirmed that position. Rather, the applicant takes issue with the conclusion that the procedure followed by the sentencing judge “was appropriate and fair”. [21] The

summary conviction appeal judge reviewed the sentencing judge’s concerns about the adequacy of the sentence soughtby the Crown and the reasons for those concerns, as revealed by the transcript of his discussion with counsel. He noted that thesentencing judge pointed out there were “aggravating injuries, the complainant was vulnerable, and this was [the applicant’s] third sexualassault conviction”: para 19. The sentencing judge emphasized that the offence was “a very serious violation of [the complainant’s]personal and sexual integrity”, and that the Crown’s “recommendation falls well below the range for this type of penetrative sexualassault”. [22] The

summary conviction appeal judge also considered the procedure followed by the sentencing judge, noting that he called arecess to give Crown counsel an opportunity to speak to senior counsel and rethink the Crown’s position, before he heard from thedefence. The

summary conviction appeal judge went on to say, at paras 21 to 23 of his decision: [21] After adjournment, Crown counsel advised it would not be appropriate for her to change the Crown’s position. She referred toR v Flowers, (NL PC), submitting that it canvassed sentencing positions on digital penetration offences, involved anInuk offender and an Inuk complainant, and set out a sentencing range from five months to two years less a day. [22] Crown counsel emphasized that her position was “not a joint position”, a stance repeated on appeal by both counsel for MrAlgiak and the Crown.

She said she did not know what defence counsel would be recommending, but invited the Court: … if Your Honour feels that my position is inappropriate … to sentence this accused to a term that Your Honour sees fit. [23] The sentencing judge said he thought it necessary to impose a sentence harsher than recommended by counsel.

Even if thiswas not a joint submission, the sentencing judge said counsel would continue to have an opportunity to consider the Court’s inclinationto “jump” the Crown’s position. [23] Defence counsel then had the opportunity to review the circumstances of the applicant, including Gladue factors, and “urgedthe Court to accept the Crown’s position on sentence, which he said was reasonable, restrained, and measured”: para 24. He noted thatdefence counsel did not express concern about the sentencing judge’s notice, or the adequacy of it. [24] The

summary conviction appeal judge concluded there was no error in the notice given to counsel by the sentencing judge,stating at para 28: … It was clear the sentencing judge was concerned with the submission of the Crown and intended to exceed that recommendation.Neither counsel could have been in doubt as to his intention. Additionally, the sentencing judge granted an adjournment to Crowncounsel to obtain further advice, and reconsider her position. Knowing the intention of the sentencing judge, Crown counsel invited himto sentence Mr Algiak to a term he saw fit. [25] When the decision of the

summary conviction appeal judge is read in light of the exchanges between sentencing judge andcounsel during the sentencing submissions, it is apparent that the

summary conviction appeal judge was satisfied that counsel had noticethat the sentencing judge was concerned the Crown’s proposed sentence was too low and of the reasons for that concern.

Those reasonswere clearly expressed, and included the aggravating injuries, the complainant’s vulnerability, that this was the applicant’s thirdconviction for sexual assault, that too much emphasis was being placed on the gap since the applicant’s previous conviction in 2013, thatthe assault, which involved penetration of the complainant’s vagina, was a serious violation of her personal and sexual integrity, that theCrown’s recommendation fell below the range for this type of assault, and that the sentencing judge thought it was necessary to impose asentence harsher than that recommended by counsel. The

summary conviction appeal judge was satisfied that both counsel were awareof these concerns and the intentions of the sentencing judge, and were given an opportunity to address them. [26] The applicant has failed to demonstrate a reasonably arguable case that the

summary conviction appeal judge erred in law onthis proposed ground of appeal. Permission to appeal is therefore denied. Conclusion [27] The application for permission to appeal is dismissed. Application heard on April 28, 2022 Reasons filed at Iqaluit, Nunavut This 30th day of August, 2022

Strekaf J.A. Appearances: M. Welch for the Respondent E. Tache-Green for the Appellant