R v Kullualik, 2021 NUCA 3

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Kullualik, 2021 NUCA 3 Date: 20210302 Docket: 08-20-9-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Simon Kullualik Appellant _______________________________________________________ Reasons for Decision of The Honourable Madam Justice Schutz _______________________________________________________ Appeal from

Summary Conviction Appeal Court

_______________________________________________________ Reasons for Decision of The Honourable Madam Justice _______________________________________________________ I. Introduction [ 1 ] The appellant, Mr. Kullualik, pled guilty to two offences of assaulting his domestic partner, failing to attend court and breaching an undertaking for failing to abstain from alcohol. [ 2 ] Both assaults involved the appellant being intoxicated and punching the victim.

The first assault occurred in October 2017, following which the appellant gave an undertaking to, inter alia , have no contact with the victim and abstain from alcohol. He failed to show up for his first court appearance. The second assault in June 2018 occurred at a local hotel in Iqaluit where the victim was staying for medical reasons; she was nine months’ pregnant at the time. [ 3 ] The appellant was originally sentenced before a Justice of the Peace to a two-year conditional discharge in respect of all offences. The Crown successfully appealed the sentence to the Nunavut Court of Justice, and the

summary appeal judge substituted a two-year suspended sentence: R v Kullualik , 2020 NUCJ 6 . [ 4 ] The appellant was granted leave to appeal to this Court. Under s 812(2) of the Criminal Code , a single judge of the Nunavut Court of Appeal is the appeal court for an appeal of the sentence imposed by a

summary appeal court consisting of a judge of the Nunavut Court of Justice. [ 5 ] The appellant’s primary contention is that the

summary appeal judge erred in law by finding that the Justice of the Peace committed an error in principle that impacted sentence by failing to meaningfully assess whether the conditional discharge imposed was contrary to the public interest, as required by s 730 of the Criminal Code . He further states that since this Court’s standard of review on a question of law is correctness, no deference is owed to the

summary appeal judge’s decision. [ 6 ] While counsel for the appellant was thorough and very able, I am unable to accede to the contention that an error of law was committed by the

summary appeal judge justifying appellate intervention. II. Analysis [ 7 ] To begin, the powers of the

summary appeal judge on a sentence appeal are provided in s 822(6): 822(6) Where an appeal is taken under subsection (4) against sentence, the appeal court shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against and may, on such evidence, if any, as it thinks fit to require or receive, by order, (

a) dismiss the appeal, or (

b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted, and in making any order under paragraph (b), the appeal court may take into account any time spent in custody by the defendant as a result of the offence. [Emphasis added] [ 8 ] The

summary appeal judge found that the Justice of the Peace did not address or explain why the conditional discharge imposed in the circumstances of this case was “not contrary to the public interest” as set out in s 730. Whether a conditional discharge is contrary to the public interest in a given case, is clearly an issue bearing on the fitness of such a sentence. As the

summary appeal judge determined: [21] It is clear from the record of the whole sentencing hearing that the issue of whether a discharge would be contrary to the public interest or not was fully argued and squarely before the Justice of the Peace. Unfortunately, she did not explicitly explain in her decision why a conditional discharge in this particular case would not be contrary to the public interest.

In a situation where an accused person is being sentenced for two separate domestic assaults nine months apart, as well as failing to appear in court and breach of Undertaking, such an explanation is required. [22] Since I cannot tell from her decision whether the Justice of the Peace fully turned her mind to the issue of whether in these circumstances a discharge would not be contrary to the public interest, I cannot find that she did consider the mandatory second part of the test for a discharge. [Emphasis added] [ 9 ] In the result, the

summary appeal judge held that the Justice of the Peace erred in principle, leading to the imposition of a conditional discharge that did not address the prevalence of domestic assault or the vulnerability of its victims. As the lower appellate

court correctly noted, a conditional discharge is generally an exceptional sentence in any case of domestic assault. [ 10 ] The appellant argues the

summary appeal judge erred in law by granting the appeal on the basis that the Justice of the Peace’s reasons for sentence were insufficient, when such was not strictly argued by the Crown on appeal. He further argues that it was an error of law for the

summary appeal judge to presume the Justice of the Peace did not turn her mind to the public interest aspect of the test merely because she did not mention it in her reasons, when that issue was otherwise fully argued before her. [ 11 ] The appellant points out that sufficiency of reasons must be viewed through the lens of the entire context of the sentencing proceedings, including the only live issue here (public interest), the submissions of counsel, the entirety of the Justice of the Peace’s reasons for sentence and the busy court setting.

He further states that the Justice of the Peace was not required to explicitly advert to every thought process that gave rise to the ultimate disposition. While I agree with these general propositions, in my view it is equally important to consider the full context of the facts in this case, as well as the reasons of the

summary appeal judge. [ 12 ] The

summary appeal judge’s reasons reflect that sufficiency of reasons arose in the specific context of assessing whether the Justice of the Peace actually applied the correct statutory and common law principles of law to the particular facts of this case. More specifically, the

summary appeal judge found that the Justice of the Peace erred in principle by failing to assess the second part of the test for a conditional discharge: whether a discharge would be contrary to the public interest in all of the circumstances. In my view, the pivotal finding that the original sentencing decision failed to provide sufficient, or any, discussion of or reasoning on a mandatory part of the test for a conditional discharge, was well within the purview of the

summary appeal judge. [ 13 ] Further, having reviewed the reasons of the Justice of the Peace, there was no legal error in either the

summary appeal judge’s inquiry on this issue or her findings. Not only did the Justice of the Peace fail to mention the public interest at all, she also did not discuss any of the principles of sentencing, including proportionality, or how a conditional discharge would otherwise meet the need for denunciation and deterrence, both general and specific, in the context of these serious domestic assaults. The

summary appeal judge did not err in finding that these principles were effectively underemphasized by the Justice of the Peace, who instead focused almost exclusively on the circumstances of the offender. [ 14 ] While it beyond question that a conditional discharge would be “in the best interests of the accused” in this matter, as the Supreme Court of Canada stated in R v Ipeelee , 2012 SCC 13 at para 39 , [2012] 1 SCR 433, “[t]here are limits. . . to the deference that will be afforded to a trial judge. . .

In every case, an appellate court must be satisfied that the sentence under review is proportionate to both the gravity of the offence and the degree of responsibility of the offender ” (emphasis in original). The

summary appeal judge did not err in law in determining that the conditional discharge in this matter was disproportionate to both the gravity of the offences and the degree of responsibility of the appellant in this matter. [ 15 ] It goes without saying, that once an appellate court has found an error in principle which directly impacted the sentence imposed, as occurred in this case, deference to the sentencing judge is no longer required and the matter may be considered afresh: R v Lacasse , 2015 SCC 64 at para 44 , [2015] 3 SCR 1089 . This entails the ability to weigh the relevant principles of sentencing in relation to the particular facts which the

summary appeal judge accepted, in determining a fit sentence in all of the circumstances. Here, this included that there were two punching offences on a domestic partner, as well a failure to attend court and a conviction for breach of an undertaking (alcohol abstention), and that one of the assaults occurred when the victim was nine months pregnant and did not end until a bystander intervened. Quite simply, the

summary appeal judge did not err in finding that a suspended sentence should be substituted in these circumstances. [ 16 ] Finally, there is also no error resulting from the

summary appeal judge’s reference or reliance on the core dicta in R v Ganesan , 2017 NUCA 7 [ Ganesan ], that the need for deterrence and denunciation in sentences involving statutorily aggravating assaultive violence against an intimate partner will rarely be amenable to not just the leniency of a conditional discharge which comes without a conviction, but its concomitant lack of a criminal record. Ganesan is but one of numerous appellate pronouncements having relevance to the two domestic assault convictions in this case, many of which are otherwise cited therein. III.

Conclusion [ 17 ] The appeal is dismissed. [ 18 ] I commend both counsel for their thorough and very able submissions, which I found to be of great assistance. Appeal heard on February 11, 2021 Reasons filed at Iqaluit, Nunavut this 2nd day of March, 2021 Schutz J.A.

Appearances: E. Baasch for the Respondent R. Clements for the Appellant