R v Kritaqliluk, 2021 NUCA 4

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d’appel du Nunavut Citation: R v Kritaqliluk, 2021 NUCA 4 Date: 20210308 Docket: 14-19-011-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Johnnykook Kritaqliluk Appellant _______________________________________________________ The Court: The Honourable Madam Justice Louise Charbonneau The Honourable Madam Justice Frederica Schutz The Honourable Mr. Justice Kevin Feehan _______________________________________________________ Memorandum of Judgment

Appeal from the Sentence by The Honourable Mr. Justice P. Bychok Dated the 10th day of October, 2019 (Docket: 14-18-128) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I.

Overview [1] On October 10, 2019, Johnnykook Kritaqliluk pleaded guilty that on September 28, 2018 in the Hamlet of Arviat, Nunavut,he committed aggravated assault of Andre Okotak contary to s 268(2), and on March 20, 2019 breached his undertaking to abstain fromalcohol or other intoxicating substances contrary to s 145(5.1), Criminal Code, RSC 1985, c C-46. [2] Mr Kritaqliluk was sentenced to 700 days’ imprisonment for the aggravated assault and 29 days for the breach ofundertaking, to be served consecutively, to be followed by 18 months’ probation. [3] For the reasons below we allow the appeal and impose a fresh sentence of 18 months for the aggravated assault and one daytime served for the breach of undertaking, commencing as at the date of the original sentencing, October 10, 2019.

Probation will be for18 months on the terms set by the sentencing judge, except the term that Mr Kritaqliluk refrain from the use, consumption, or possessionof alcohol shall be replaced by a term that he not be intoxicated in a public place. II. Facts [4] On September 28, 2018, Mr Kritaqliluk, highly intoxicated, approached Andre Okotak from behind, punched him in theback and said “Throw rocks at me again”.

A struggle ensued and Mr Kritaqliluk struck Mr Okotak in the head with a rock. [5] Mr Okotak was seriously injured, suffering bleeding on the brain, two fractures to his skull, small fractures to his nose,significant bruising, swelling, and a laceration on his forehead. Mr Okotak went by Medevac to Winnipeg for treatment. His injuriesresulted in seizures over a prolonged period and the need for repeated medical travel to Winnipeg. [6] On March 20, 2019, Mr Kritaqliluk was arrested for entering someone’s apartment while intoxicated and in possession of aknife.

He was charged with a breach of his undertaking to abstain from alcohol. III. Late Filing and Fresh Evidence [7] Four days before the hearing of this appeal, appellate counsel for Mr Kritaqliluk asked for an affidavit of sentencing counselto be admitted as fresh evidence. The Rules of the Court of Appeals for the Northwest Territories as to A. Criminal Appeals B.

Bail onAppeals, SOR/78-68, s 2(3), by application of the Rules of the Nunavut Court of Appeal Respecting Civil Appeals, made pursuant to theJudicature Act, SNWT (Nu) 1998, c 34, s 60, provide that such an application “must be filed and served prior to the filing of, and prior tothe deadline for filing, the applicant’s factum”, s 33(1).

As that had not occurred, counsel brought an application at the opening of theappeal to permit late filing under s 2(4) and (5) of the criminal Rules, which application was allowed. [8] The practice of this Court is to consider fresh evidence applications along with and as part of the appeal.

As to the proposedfresh evidence, Crown counsel consented to the admission of those portions of paragraphs 6 to 8 of the affidavit of sentencing counselwhich contained new evidence, and did not object to the admission of the remainder of the affidavit, said to simply repeat evidencealready before the Court. [9] We determine that those portions of paragraphs 6 to 8 which do contain new evidence meet the well-known criteria inPalmer v The Queen, (SCC), [1980] 1 SCR 759, 775, 106 DLR (3d) 212; and R v Lévesque, 2000 SCC 47, paras 1, 14-22, [2000] 2 SCR 487 as to fresh evidence on sentence appeals.

This fresh evidence is admitted. The remainder of the affidavit containsevidence already before the Court. It is admitted as context for the fresh evidence.

IV. Sentencing Positions of Crown and Defence [10] In negotiating the guilty pleas, the Crown and defence agreed upon a range of sentencing for the aggravated assault and ajoint submission for the breach of undertaking. [11] The range of sentencing proposed by the Crown was between 12 and 18 months. The defence agreed with that range, butsubmitted that the sentence should be at the low end: 12 months. The Crown and defence agreed on the submission for breach ofundertaking: one day, time served. Crown counsel proposed two years’ probation, and defence counsel made no comment on thatsubmission. V.

Concessions by the Crown [12] The Crown concedes that the sentencing judge committed errors in principle: he did not provide notice that he intended toexceed the recommended range of sentence agreed by the parties, and he did not follow a joint submission on the breach of undertakingthat would not have brought the administration of justice into disrepute or have been otherwise contrary to the public interest. [13] Adequate notice was required for both counsel to respond to the Court’s concerns in a meaningful way and that notice did notoccur. [14] The Crown concedes these errors in principle had an impact on the sentence and should result in appellate intervention.

ThisCourt is invited to sentence afresh on the submissions of the parties before the sentencing judge. VI. Analysis (

a) The law on “jumping” Crown submissions [15] Crown counsel and defence agree that the appropriate statement of law is set out in R v Parr, 2020 NUCA 2, paras 54-55, 60. [16] The sentencing judge had “a duty to signal to counsel that [he] was having some difficulties with what was being proposed”and his failure to do so resulted in inherent unfairness: Parr, para 46; R v Vegso, 2012 NWTSC 77, para 19, 40 MVR (6th) 295; R vBurback, 2012 ABCA 30, paras 12-15, 68 Alta LR (5th) 72; R v Williah, 2012 NWTSC 53, paras 29-36; R v Kuliktana, 2020 NUCA 7,paras 86, 104-105, 107, 390 CCC (3d) 550; R v Kippomee, 2019 NUCA 3, para 30. [17] In R v Ehaloak, 2017 NUCA 4, paras 33, 36-37, this Court said the process to be followed in such a near joint submission wasessentially the same as the process outlined in R v Anthony-Cook, 2016 SCC 43, para 58, [2016] 2 SCR 204. [18] It has been suggested that this Court and other appellate courts have interpreted the public interest test in an overly stringentway, perhaps more stringent than what Anthony-Cook mandates: R v Aklok, 2020 NUCJ 37, paras 84-85. [19] With respect, the stringent test stems from Anthony-Cook itself, paras 32-34: Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence wouldbring the administration of justice into disrepute or is otherwise contrary to the public interest.

But, what does this threshold mean? Twodecisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard. In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to thepublic interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations ofreasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of thecriminal justice system”. And, as stated by the same court in R. v.

B.O.2, 2010 NLCA 19, at para. 56 , when assessing a jointsubmission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in theinstitution of the courts”. In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. Theyemphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

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

This is an undeniably high threshold - and for good reason .... [20] It is undeniable that the public interest test limits a sentencing judge’s discretion when a joint submission is presented.However, that test, and its meaning, were prescribed by the Supreme Court of Canada and are binding on trial level courts and appellatecourts. [21] This is not to say that trial judges have no discretion to request justification for a joint submission that they determine is unjustor unprincipled, or that they have lost all discretion in sentencing when presented with a joint submission: cf Aklok, paras 88, 94. [22] The requirement for procedural fairness does not completely eliminate the sentencing judge’s discretion: if, having invitedfurther submissions in support of the joint position and having considered those submissions, the sentencing judge remains of the viewthat the proposed sentence or range is contrary to the public interest or would bring the administration of justice into disrepute, that judgeretains the discretion to depart from it, provided that he or she fully explains why.

Kippomee, Kuliktana, and Parr do not say otherwise.

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b) The Lacasse test [23] In R v Lacasse, 2015 SCC 64, para 11, [2015] 3 SCR 1089, the Supreme Court said: … except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate courtmay not vary the sentence unless it is demonstrably unfit.

This disjunctive test was reaffirmed in R v Friesen, 2020 SCC 9, paras 26, 27, 391 CCC (3d) 309: As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit ...or (2) the sentencing judge made an error in principle that had an impact on the sentence .... Errors in principle include an error of law, afailure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor.

The weighing or balancing offactors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judgeexercises his or her discretion unreasonably” .... Not every error in principle is material: an appellate court can only intervene if it isapparent from the trial judge’s reasons that the error had an impact on the sentence .... If an error in principle had no impact on thesentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit.

If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on the sentence, an appellatecourt must perform its own sentencing analysis to determine a fit sentence .... It will apply the principles of sentencing afresh to the facts,without deference to the existing sentence, even if that sentence falls within the applicable range. Thus, where an appellate court hasfound that an error in principle had an impact on the sentence, that is a sufficient basis for it to intervene and determine a fit sentence.

Itis not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or falls outside the range ofsentences imposed in the past. (

c) Sentencing Afresh [24] We therefore sentence afresh, subject to the constraints of a joint submission or near joint submission, as mandated inAnthony-Cook, para 34. [25] Mr Kritaqliluk seeks “a new sentence in line with the resolution agreement at trial”: that the sentence on the aggravatedassault be between 12 and 18 months, and on the breach of undertaking one day, time served. [26] The following mitigating factors were raised: 1. the guilty pleas were entered prior to preliminary inquiry or trial; 2.

Mr Kritaqliluk had only a minor youth record and no prior record for violent behaviour; 3. he readily accepted responsibility; 4. he had a very troubled childhood with little structure or family support, and frequent exposure to violence; 5. he was 19 years old at the time of sentencing; and 6.

Gladue/Ipeelee factors (R v Gladue, (SCC), [1999] 1 SCR 688, 133 CCC (3d) 385; R v Ipeelee, 2012 SCC 13,[2012] 1 SCR 433) were very much in evidence, based on the submissions of counsel and the pre-sentence report provided to the court. [27] Aggravating factors were also addressed: 1. the assault was a serious one, causing lasting bodily injuries; and 2. the offence was apparently unprovoked, and so more concerning to the public and the victim. [28] Counsel for the Crown and defence relied largely on the same sentencing cases, particularly R v Akulukjuk, 2015 NUCJ 18, avery serious assault by an accused with prior convictions for violence, 12 months; R v Kablutsiak, 2013 NUCJ 3, an aggravated assaultcausing serious head injury to the accused’s wife by an accused with a significant criminal record, nine months; R v Akpalialuk, 2021NUCA 2, an aggravated assault causing a serious though not life-threatening head injury, where the attack was unprovoked and theaccused had an aggravating criminal record, 12 months; R v Uniuqsaraq, 2015 NUCJ 16, aggravated assault causing life-threateningbleeding on the brain, 15 months; and R v Hughes, 2011 NUCA 3, serious aggravated assault requiring a complainant to undergoreconstructive surgery, 12 months. [29] In addition to the pre-sentence report, this Court has considered the new evidence from Mr Kritaqliluk addressing his time incustody and on bail since his original sentencing, speaking to his experience and progress in serving his original sentence. [30] On the aggravated assault charge, given the seriousness of the offence, we find the top end of the range jointly submitted byCrown and defence at the sentencing hearing is lenient, even taking into account the mitigating factors.

However, as noted already, weare constrained by the joint submission. We cannot say that the top end of the jointly submitted range would bring the administration ofjustice into disrepute or is contrary to the public interest. Given this, we cannot exceed it. We do not intend, however, for the sentence inthis case to act as a cap or establish a range for sentences of this sort. VII. Conclusion

[ 31 ] The appeal is allowed and the original sentence is substituted by the sentence set out above. Mr Kritaqliluk shall, within two days of this decision, surrender himself into custody to serve the remainder of his sentence. We note that he failed to surrender himself into custody prior to the appeal, as required by a condition of his bail order, for which counsel acknowledged blame. It is our expectation that counsel will ensure Mr Kritaqliluk complies with this direction. Appeal heard on February 23, 2021 Memorandum filed at Iqaluit, Nunavut this 8th day of March, 2021 Charbonneau J.A. Schutz J.A. Feehan J.A. Appearances: E. Baasch for the Respondent B. Cowan for the Appellant