R v GH, 2020 NUCA 16

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d’appel du Nunavut Citation: R v GH, 2020 NUCA 16 Date: 20201126 Docket: 08-20-016-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - G.H. Applicant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. Anonymized Judgment Disclaimer: This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random _______________________________________________________

Oral Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ Application for Judicial Interim Release _______________________________________________________ Oral Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ [ 1 ] The application that was presented to me today as mentioned was an application for judicial interim release pending an appeal on sentence [1] . [ 2 ] There was no trial in this instance. Guilty pleas were given.

The application jurisdiction that I have, of course, rests initially under s 812(2) of the Criminal Code and then moves into s 816(1) of the Criminal Code . [ 3 ] Section 816(1) of the Criminal Code refers to the making of, or the potential making of, a release order, referred to in s 515 of the Criminal Code . That leads in a point which I raised with Ms. Martin [2] during the course of her submissions. That is that we now use, under the Criminal Code since late 2019, a ‘Form 11’ type of release order.

And in those circumstances, it would be appropriate for me to mention to counsel that, when the disposition is made in this instance, that that sort of an order would be relevant or applicable to it. [ 4 ] The circumstances under which release would be granted in a situation like this are governed, at least in part, by s 822(1) of the Criminal Code which provides that ss 683 to 689 of the Criminal Code relative to indictable offences, apply to disposition such as this and, as the Code says, “with such modifications as the circumstances require”. [ 5 ] Ms.

Martin placed considerable weight on the language “such modifications as the circumstances require”. [ 6 ] This, incidentally, was a topic of a decision of the Supreme Court of Canada about the old legal maxim or legal concept that we all older folks learned in law school about mutatis mutandis : see Penunsi [3] . That particular clause has itself a great deal of flexibility built into it [4] . It touches on the first point which is in issue as between the parties; namely, what is the test which is to be applied in relation to the grant or not of judicial interim release in connection with a

summary conviction appeal. [ 7 ] Both counsel, quite ably, pointed to the fact that when one brings into play – to a situation like this – s 679(4) of the Criminal Code , the language there refers to that the appeal “has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody”. That, of course, is the language that applies to indictable offences. One can understand, quite without difficulty, that “sufficient merit” in connection with an indictable offence (and often with long sentences) would be a different type of concept than it would be perhaps in relation to

summary convictions offences. [ 8 ] It is, I think, relevant to note that Parliament in its wisdom has chosen to provide for quicker review of judicial interim release, for example, in connection with

summary conviction matters as compared to that in relation to indictable offences [5] . [ 9 ] So, the point that I have been asked to address firstly then concerns whether or not “sufficient merit”, as adapted in that modifications approach under s 822(1) of the Criminal Code , involves either a test of ‘bare arguability’ or ‘not frivolous’ or involves a level of measurement of the strength of the grounds of appeal that have been put forward. [ 10 ] Mr. Plourde [6] makes an able argument that, in fact, one has to respect the language chosen by Parliament [7] .

To the extent that “sufficient merit” is translated through – even through s 822(1) – there must be something more (at least he says) to the grounds of appeal than the simple fact that they’re not frivolous. And indeed – quite fairly Mr. Plourde points out – that, in fact, if the test were that it was ‘not frivolous’, the test of frivolousness I suppose you would say, he would not argue that it was frivolous.

Using his concession fairly made, this is not a frivolous appeal. [ 11 ] I might point out that, in connection with that point, one certainly can say that, related to the third ground of appeal which has been put forward – namely the question of whether the sentence is demonstrably unfit with the removal of the minimum sentence – there was a great deal of discretion that was available to Chief Justice Sharkey in relation to what to do in relation to this case. And having

read his careful reasons, I am certain that he applied anxious consideration to the determination of the result there. [ 12 ] Furthermore, he would have been, no doubt, influenced by the policy change which has occurred in Canada over the last number of years relative to offences of this sort and which were policy changes, of course, have been recently reflected by the Supreme Court of Canada in its decision in Friesen [8] . [ 13 ] There is a characteristic to this type of crime which involves a great deal of necessity to signal to the public not only that society has set its face against this type of offence, but that society will not necessarily be all that lenient in dealing with it.

So, in that sense, I think that there is a considerable substance on behalf of Chief Justice Sharkey’s approach to that topic. [ 14 ] That said, that does not mean that it is not an argument of “sufficient merit” to say that Chief Justice Sharkey misconceived some aspects of the case which is part of the argument made by the appellant through counsel.

Furthermore, that he did not have the benefit of or did not – or, shall we say, did not consider – the benefit of a Gladue Report. [ 15 ] The first two grounds of appeal, as pointed out by counsel, are that the Nunavut Court of Justice had not, in this instance, chosen to order a specially designed Gladue Report for this case.

The position that is taken in connection with that aspect of the matter by the Crown is that counsel did provide a Gladue Report of a sort [9] and that the Gladue Report was, therefore, before the court and that it, therefore, is not – it is a harmless error on the part of Chief Justice Sharkey to say he would not order one which was in a sense court directed [10] . [ 16 ] Counsel for the appellant suggests, however, that Chief Justice Sharkey misunderstood one aspect of the defence application. That aspect was that the appellant was not asking for a report that the public had to pay for [11] .

The appellant’s counsel says that was one of the concerns that Chief Justice Sharkey had [12] .

Counsel for the appellant is suggesting that, in fact, what the court wanted, or at least what the appellant wanted, was for the court to have the benefit of a genuinely Gladue -structured, Gladue -orientated report as opposed to what was currently in existence which was the Presentence Report which Crown – that counsel for the appellant, I should say – says is an essentially typical document orientated towards risk assessment in the main. [ 17 ] The position taken, therefore, by the appellant is that it is not a ‘kind of’ moot point that there was not a formal blessing of a Gladue Report by Chief Justice Sharkey, because (in the submission of counsel for the appellant) the nature of a report of that kind, if blessed by the court to begin with — in other words, if ordered to begin with — would then have been something which Chief Justice Sharkey would have considered more persuasive than he did [13] .

It does appear from the material provided that Chief Justice Sharkey did not attach much weight to that material because of its source and the type of information presumably garnered in there [14] . [ 18 ] In a sense, Crown counsel makes an arguable point, which the Crown will no doubt make in the argument of the appeal itself, that there was no harm done in relation to what happened here. [ 19 ] The appellant’s position, it strikes me, is not lacking “sufficient merit” to say that, had the approach taken by Chief Justice Sharkey been different and had he, therefore, authorized the existence of a Gladue Report, he may have treated what he did receive by way of a Gladue Report with more – it might have given it more weight.

This, in turn, then goes back to the question of whether or not the original sentence which was imposed by Chief Justice Sharkey was appropriate under the circumstances. [ 20 ] The observation I would make in connection with the background to the argument about Gladue Reports is that, as – and I hate to be vain enough to cite myself but that happens sometimes – I did write in a case called Souvie [15] , some time ago, that in my view, there are actually only six principles of sentencing and the rest of the concepts that we hear talked about, you know, like jump and all the rest of it, are actually just concepts. [ 21 ] The real principles of sentencing that exist in Canada are fundamental; and they are proportionality, legality, rationality, individuality, parity, and restraint.

That’s it. That’s all there are. The rest of them are all concepts, factors, objectives and all the other things we talk about [16] . We call them principles all the time – totality, for example. They are not. The only principles are those six, and that’s just my personal opinion. [ 22 ] But what is important to bear in mind is that Parliament of Canada has signalled under s 718.1 of the Code that proportionality is No. 1. It’s not however exclusive. One of the things that is important to remember here is that, in relation to sentencing, two of those principles apply here with some magnitude.

One is individuality and the other is restraint. Restraint is reflected in s 718.2 (

d) and (

e) of the Criminal Code . What we call the Gladue rationality that has existed in Canada now for some – some over 20 years – reflects restraint in both contexts (ss 718.2(

e) and (e)). The argument, therefore, made on behalf of the appellant is that the trial judge was left in a situation where he had to determine a proportional sentence without the full battery of information that would normally be required in this instance. [ 23 ] This brings to bear then the other principle I referred to a moment ago, and that’s individuality. I do think that there may be an arguable error in relation to the approach taken, not necessarily by Chief Justice Sharkey [17] , but some courts which is to ‘categorize’ Gladue arguments.

In other words, they treat them only as arguments which are sort of ‘class or group orientated’, when, in fact, a Gladue situation is just as individual as every other. [ 24 ] So, if you get a set of information concerning the specific Gladue experiences, shall we say – and I hate to use a name as if it was adjective but it’s gone that way – the specific individual circumstances of the person will also have bearing on this. That’s what a Gladue Report is supposed to accomplish. It’s not supposed to accomplish merely the

part in Ipeelee [18] about taking judicial notice and so forth or about general considerations that are entirely relevant relative to – you might say – whole community experiences and that sort of thing. There is also the individual element to it, and the individual element is one of the main things that are explored, it seems to me, in relation to an actual Gladue Report [19] . [ 25 ] As Ms.

Martin very eloquently pointed out, the objective of a Gladue Report is, in part, achieved by referring to it to a person [20] who will have an empathetic perspective and more – you might say – knowledge relevant to not just the community experience, but what they can acquire relative to the individual experience of the person.

[ 26 ] I had occasion to partake in a case called Okimaw [21] some years ago saying that, in addition to the particular experience of aboriginal people as a group which is reflected in the language in s 718.2(e), there are necessarily questions of the experience of individual aboriginal persons. And in his case, the situation was that his behaviour on the street was consistent with his personal background. And this therefore meant that – to my mind anyway – that Gladue considerations are not restricted to, you know, you might say a class or group type effect. They include them, but they do not limit them.

So, as a consequence, the question of whether or not a Gladue Report might have impacted on this case is not, I think, eliminated. [ 27 ] I accept the eloquent argument for the Crown — and he will no doubt make it in front of another judge some day — that, in fact, there was no harm done at all as I mentioned before.

But in this instance, I do think that it’s an arguable point, and past that, a significant point, it seems to me, whether or not the court should be at least willing to bless the preparation of a private Gladue Report, as it were, if you know, circumstances warrant. [ 28 ] It is true that the judges up in the North are very familiar with these considerations [22] . What I’m saying: I am in no sense attempting to, you know, lord it over them or suggest that they don’t appreciate these things. I am sure they fully do.

I’m only saying that it does seem to me arguable that in the context of this specific case, the inability to have approval, shall we say, from the start in relation to having a Gladue Report, may have hampered the ability of the appellant to make his full case. [ 29 ] In no sense am I suggesting that there was something done by Chief Justice Sharkey which was subject to criticism in that sense. I think he was applying full reasoning, which I think is quite defensible. His conclusion on the merits actually was, to my mind, quite defensible. But my role is not to decide whether to allow the appeal or not.

My role is to decide whether or not the case is sufficiently arguable to go forward. [ 30 ] There is another point that arises in this matter to which I should make some reference. And that is that — and Crown counsel very fairly once again brought this up — since the appeal and since the sentencing was imposed, a factor to determine in connection with the question of whether or not the public interest would be affected.

Moving into that second part of the argument, the third ground here would include the question of whether or not the appellant has, in fact, been subjected to some sort of self-help method or something of that sort while being in custody. [ 31 ] Crown counsel also points out – and I’ll talk about this in a moment – about whether or not the appellant’s ability to stay in the healing centre might be affected in some way at some future time if were he returned to custody after either a successful appeal or an unsuccessful appeal. [ 32 ] But the point I’m attempting to refer to now is that the Supreme Court of Canada has recognized in Suter [23] that there are collateral considerations which do have a bearing on whether or not a particular sentence disposition is or was appropriate.

And it does seem to me, therefore, that there will probably be a new evidence application brought at the appeal since there is no dispute about at least the sort of the general outline of what have happened here which may have bearing on what may happen to the sentence, too, in the future. [ 33 ] Moving the camera back and, you know, turning the camera back and putting a little more distance away from the individual case and more to the general, it is clear that from the point of view of determining whether or not the public interest is affected – or it would be affected adversely as a result of the grant of judicial interim release, I have already referred to the fact that the Parliament of Canada does distinguish between

summary conviction matters and indictable matters. [ 34 ] Likewise, as pointed out in the cases like St Cloud [24] , the reasonable person who would look at any grant of judicial interim release in this case would be a thoughtful person who is not prone to being quickly excited and would have some, you know, understanding of the norms which guide our legal system in a general way. You do not have to be a legal expert or anything of that sort.

But it would not be a person with an inaccurate appreciation of what was involved here, and it would not be a person who would stand athwart the evolution of our society’s fundamental values. [ 35 ] So, with that in mind, it does seem to me that the application does succeed on that ground as well. I did not say specifically earlier that, in my opinion, there was sufficient merit to make this appeal one justifying judicial interim release pending appeal.

And on the third element as to the public’s interest in connection with whether release would be good or not, it does seem to me that there’s sufficient public interest as a thoughtful reasonable person would recognize for the justification of grant of judicial interim release. [ 36 ] One of the reasons I say that is because, as Crown counsel pointed out, the language of the 679.4(

a) of the Criminal Code includes the term “unnecessary hardship”. It does seem to me that unnecessary hardship, though, should include a question of whether or not the appeal would be rendered nugatory, which it certainly would be here. [ 37 ] I do agree with counsel for the appellant that, in fact, it is realistic to assume that the appellant who has now served some weeks, perhaps a little over more than a month of the sentence that was imposed there, would find himself, you know, having nothing really to fight over, shall we say, when it came to an appeal.

So, you know, the irony in that is that, while the appeal, if release were denied would be nugatory, the Crown’s position with release granted would not be nugatory because, as pointed out by Crown counsel, the next appeal judge who actually hears the appeal is not required to accept the amount of pretrial custody or, sorry, pre-appeal hearing custody that has been served by GH in this instance and could very well return him to custody. [ 38 ] Another factor by the way, on that point, is that I referred to Form 11 of the Criminal Code during the course of the discussions.

It does appear to me that there is one consideration which the appellant will want to discuss with his counsel. And that is that if he is currently engaged in a useful program while he is in Rankin Inlet, it would be up to him when he wants to sign the order that is granted. [ 39 ] In other words, between counsel, you will obviously work on conditions and there will be – they should be corresponding more or less to the previous conditions on a pretrial basis, plus any further reasonable conditions that the Crown would consider relevant at this stage.

But the position of the appellant in these circumstances would be that he would not necessarily have to enter into that order immediately. He could have the order in hand and then finish any, like, classes or programs or whatever he might be doing or whatever

types of benefit – beneficial things that he is going through at the present time. [ 40 ] I put that idea out then so that he could give consideration to that possibility. I do not wish for the appellant to give me any decision on that or Ms. Martin to do so or anything else. I just point it out that I think that the new Code provisions do seem to enhance the possibility of a person having the benefit of an existing release order but not using it immediately. [ 41 ] Anyway, the ‘bottom line’ of all of that is that I am satisfied that judicial interim release should be granted in this instance.

The form of order will be pursuant in Form 11. The conditions of the order should be set out with clarity so that the appellant knows what restrictions do apply to him.

Those conditions should be at least as regulatory as proposed by the appellant, and I would be willing to give consideration to adding something further if counsel wish to e-mail me the draft order. [ 42 ] In one practical sense, I should mention that it is my opinion that the Clerk of the Court in Nunavut would have the authority, with my blessing by e-mail or phone call or whatever is necessary, to sign the order on behalf of the Court of Appeal of Nunavut.

The reason for that is that we have, of course, in addition to other developments that have occurred – in the continuous state of flux that the Criminal Code always seems to be – that under s 3.1(2) of the Criminal Code I think it is [25] , a Clerk of the Court can sign on behalf of the judges. The form of order would more or less comply with Form 11.

It would not have to be exactly the same as Form 11 as s 849 of the Code has said that forms can be varied as they require [26] . [ 43 ] [The release order terms were determined soon afterwards.] Application heard and disposed of on October 30, 2020 Reasons filed at Iqaluit, Nunavut this 26th day of November, 2020 Watson J.A. Appearances: P. Plourde for the Respondent M. Martin for the Applicant