R. v. Kippomee, 2019 NUCA 03

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. Kippomee, 2019 NUCA 03 Date : 2019-02-12 Docket: 11-18-005-CAS Registry : Iqaluit Between: Lanny Kippomee Appellant -and- Her Majesty The Queen Respondent _______________________________________________________ The Court : The Honourable Madam Justice J.A. Smallwood Memorandum of Judgment Application regarding an appeal on the judgment by the Honourable Justice P. Bychok

MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] This appeal is from a sentence imposed on March 19, 2018 at Pond Inlet, Nunavut after a guilty plea to charges of breaking and entering with intent to commit an indictable offence and failure to comply with a probation order. [ 2 ] The sentence imposed was 150 days’ imprisonment for the break and enter and 60 days’ imprisonment for the failure to comply with a probation order, to be served consecutively.

A twelve month probation order was also imposed. [ 3 ] In imposing this sentence, the sentencing judge rejected a joint submission of one month imprisonment for each offence, to be served concurrently, followed by a twelve month probation order. II. BACKGROUND [ 4 ] The Appellant was charged on an Information with three counts: 1) failure to comply with a probation order; 2) break and enter with intent to commit an indictable offence; and 3) possession of property obtained by crime.

All three counts were alleged to have occurred on December 8, 2017 in the community of Pond Inlet. [ 5 ] The Appellant’s first appearance was January 8, 2018 where the matter was put over to January 11, 2018 for Crown election. On January 11, 2018, the Crown elected to proceed by

summary conviction. The Appellant entered guilty pleas to counts 1 and 2 and the Crown directed a stay of proceedings on count 3. [ 6 ] Counsel for the Appellant advised the court that the provisions of s. 606(1.1) of the Criminal Code had been canvassed with the Appellant. III. FACTS [ 7 ] The Crown and Defence agreed to the following facts: [ 8 ] On December 8, 2017, at approximately 7:45 a.m., Joseph Krimmerdjular arrived at building number 303, a building owned by the Co-op where he was employed. He noticed that drawers in his office were unlocked.

He checked around his office and saw nothing else of concern. [ 9 ] At around 8:40 a.m. that morning, he went to the back door, because he thought someone might have broken in, and he found the

Appellant standing in the storage closet. He asked the Appellant his name. At first, the Appellant would not give his name. But Mr. Krimmerdjular recognized him and asked “are you Larry Kippomee” to which the Appellant said “yes.” The Appellant asked him not to call the police and said he would never do it again. Mr. Krimmerdjular asked the Appellant how he got in and asked him to stay. The Appellant left.

The police later arrested the Appellant at 866 in Pond Inlet. [ 10 ] At the time, the Appellant was subject to a probation order which was imposed on January 12, 2017 when he was sentenced for four offences to a term of imprisonment of seven months followed by twelve months of probation which included a term to keep the peace and be of good behaviour . [ 11 ] The sentencing judge questioned whether alcohol was involved to which the Crown responded that there was no information to that effect.

The Court also inquired how the Appellant entered the building and the Crown advised that there was no damage to the exterior door and very slight damage to an interior door. IV. SENTENCING HEARING [ 12 ] The Crown filed the Appellant’s criminal record. The Crown advised the court that the Appellant was 36 years old and had a lengthy criminal record with a number of break and enters going back to 1998 in youth court. The Appellant’s first adult break and enter was in 2004.

The Appellant’s most recent convictions were from July, 2017 when he was convicted of three counts of failing to comply with an undertaking and an assault. [ 13 ] The Crown advised the court there was a joint position on sentence for one month of imprisonment followed by twelve months of probation with conditions including that the Appellant not attend at the Co-op owned building in Pond Inlet.

The Crown sought a one month sentence for the failing to comply with the probation order, to be served concurrently as the offence arose out of the same incident. [ 14 ] The sentencing judge noted that the Appellant had a lengthy criminal record with five prior convictions for break and enters, twelve convictions for breaching Court orders, and convictions for other serious crimes. [ 15 ] The sentencing judge questioned the suitability of the proposed sentence.

The sentencing judge then adjourned for lunch and advised the Crown to consider the matter further and to speak with the Appellant’s counsel. [ 16 ] When the matter was recalled, the Crown provided further details about the convictions on the Appellant’s criminal record and made submissions regarding the Appellant’s progress while on probation.

Counsel also proposed that the sentence be served consecutively instead of concurrently resulting in a total sentence of two months’ imprisonment. [ 17 ] Counsel for the Appellant advised that counsel had spoken and had proposed probation conditions that were appropriate for the Appellant to meet the principles of rehabilitation.

The Appellant’s counsel referred to the Appellant’s personal circumstances including his family background and his lack of steady employment. [ 18 ] Following the submissions of counsel, the sentencing judge recessed briefly before advising that he required additional time to think about the joint submission. The sentencing judge addressed the Appellant and stated: The Crown and Defence have presented a sentence to the Court, which I indicated this morning I had a lot of trouble with.

In my view, the circumstances of this offence as well as your criminal record and your personal circumstances lead me to the conclusion that if I were to agree to this joint submission, I would essentially be agreeing to impose a sentence, which in my estimation would be manifestly unfit, which is a legal word that says that it’s not appropriate.

[19] The matter was adjourned to March 21, 2018 for the sentencing decision. [20] On March 19, 2018, the sentencing judge sentenced the Appellant, rejecting the joint submission and imposing a sentenceof five months’ imprisonment for the break and enter and two months’ imprisonment consecutive for failing to comply with hisprobation order, followed by a term of probation of twelve months. The sentencing judge provided oral reasons for sentence and laterfiled written reasons for sentence. V. ISSUES [21] The Appellant appeals from sentence.

The Appellant claims that the sentencing judge erred in rejecting the jointsubmission, erred in treating sobriety as an aggravating factor, erred in requiring counsel to establish Gladue factors, and erred in hisapplication of the range of sentence. [22] The Respondent agrees with the Appellant’s arguments and agrees that the joint submission should not have been rejected.

In addition, the Respondent argues that the sentencing judge made two further errors: the material misapprehension of key facts andlegal misidentification of the applicable range of sentence. [23] For the reasons that follow, I conclude that the sentencing judge erred in rejecting the joint submission, erred in hisassessment of sobriety as an aggravating factor and misapprehended material facts. VI. ANALYSIS Standard of Review [24] The standard of review on a sentence appeal is one of considerable deference.

Sentencing judges have a broad discretion toimpose sentences that they consider appropriate in the circumstances of each case. [25] The Supreme Court of Canada has stated that absent an error in principle, the failure to consider a relevant factor or theoveremphasis of the appropriate factors, an appellate court should only intervene to vary a sentence imposed at trial if it is demonstrablyunfit.

See R v M.(C.A.), (SCC), [1996] 1 S.C.R. 500; R v Lacasse, 2015 SCC 64. [26] Where an appellate court finds an error in principle, the failure to consider a relevant factor or an error in the considerationof an aggravating or mitigating factor, appellate intervention will only be justified where the error had an impact on the sentence. If anerror had no effect on sentence, it cannot justify appellate intervention.

Lacasse at para. 44-45. [27] In cases involving the rejection of a joint submission, the Supreme Court of Canada established in R v Anthony-Cook, 2016SCC 43 that the standard of review is the “public interest” test.

In the public interest test, a sentencing judge should follow the jointsubmission unless to do so would bring the administration of justice into disrepute or would be otherwise contrary to the public interest. [28] The public interest test is a high standard and a joint submission should not be rejected lightly: Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would leadreasonable and informed persons, aware of the relevant circumstances, including the importance of promoting certainty in resolutiondiscussions, to believe that the proper functioning of the justice system has broken down.

Anthony-Cook at para. 34. [29] The public interest test is more stringent than the fitness test or the demonstrably unfit test, both of which were rejected inAnthony-Cook. A sentencing judge must exhibit restraint when presented with a joint submission and the discretion to depart from ajoint submission is very circumscribed. To depart from a joint submission, it must be 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 the

criminal justice system.” Anthony-Cook at para. 33 . [ 30 ] When considering a joint submission, Anthony-Cook outlined a procedure for sentencing judges to follow. If a sentencing judge is considering rejecting a joint submission, counsel must first be advised of the judge’s concerns and be given an opportunity to make further submissions to address the concerns before sentence is imposed. A sentencing judge should provide clear and cogent reasons for departing from the joint submission.

Anthony-Cook , supra at paras. 58-60 . [ 31 ] Therefore, the focus of an appeal from the rejection of a joint submission is on the reasonableness of the joint submission and not the fitness of the sentence imposed. R v Jacobson , 2019 NWTSC 9 at para. 23 . The Rejection of the Joint Submission [ 32 ] The joint submission proposed was initially for one month of imprisonment concurrent on each count followed by twelve months of probation with a number of conditions.

After the sentencing judge stated that he would not impose the joint submission, counsel amended the proposed joint submission to one month consecutive for each count but otherwise the proposed sentence remained the same. [ 33 ] According to the sentencing judge, the revised joint submission did not give sufficient weight to denunciation and deterrence and did not reflect the high degree of moral blameworthiness of the Appellant. [ 34 ] The sentencing judge viewed an appropriate range of sentence for the break and enter as being one of four to six months’ imprisonment.

However, the sentencing judge’s view of the appropriate range of sentence appears to have arisen from his misapprehension of the facts of the offence. [ 35 ] In his reasons, the sentencing judge repeatedly referred to the offence as involving a break and enter into the Co-op when it actually was a building owned by the Co-op and was not the Co-op store. The break and enter charge (count 2 on the Information) states that the building was an office building.

The facts, as read in by the Crown, referred to the place of the offence as “a building owned by the Co-op.” [ 36 ] In addition, the sentencing judge referred to facts which were not in evidence before him. He stated that the Appellant had been found with keys stolen from Mr. Krimmerdjular’s desk when he was arrested. Nowhere in the record is there evidence that the Appellant was arrested with Mr. Krimmerdjular’s keys found on him.

While the Appellant was initially charged with possession of keys obtained by crime, that count was stayed by the Crown and the allegations underlying that count were not read in by the Crown, as sometimes occurs. [ 37 ] The sentencing judge’s view of these facts played a significant

part in his view of the offence and its seriousness. In rejecting the Crown’s arguments in support of the joint submission, the sentencing judge stated: The Crown Prosecutor’s justification belies a fundamental misunderstanding of the offence in question. I reminded the parties that we are not dealing with a case of civil trespass. The accused pled guilty to, and acknowledged responsibility for, breaking and entering the Co-op with the intention of committing an indictable offence. On the facts – having been found in recent possession of Mr.

Krimmerdjular’s keys – the offender could have been charged and convicted of breaking and entering and committing the indictable offence of theft. [ 38 ] Later, the sentencing judge referred to the seriousness of breaking and entering into Co-op and Northern stores and the harm it does to the community. These types of offences required sentences that emphasized the sentencing principles of denunciation and deterrence. [ 39 ] The sentencing judge also listed the aggravating factors of the case and referred to the Appellant as being sober as a serious aggravating factor.

The Appellant was apparently sober when this offence occurred. Being intoxicated while committing an offence is a factor that is aggravating in many cases. The same cannot be said for being sober while committing an offence. It is not necessarily aggravating. [ 40 ] In this case, the sentencing judge viewed the Appellant’s sobriety as being suggestive of planning and premeditation in committing the break and enter and viewed it as a serious aggravating factor that served to increase the Appellant’s sentence.

However, there is no evidence about the Appellant’s entry into the building or whether it was planned or spontaneous. Sobriety in committing an offence, without more, does not establish planning and premeditation.

[ 41 ] The sentencing judge’s misapprehension of material facts and his error in the assessment of the aggravating factors had an effect on what he viewed as an appropriate sentence which justifies appellate intervention. [ 42 ] Turning to the reasonableness of the joint submission, the sentence proposed by counsel was for one month of imprisonment for the break and enter and one month of imprisonment for failing to comply with the probation order. [ 43 ] The offence involved the break and enter into a building where there was minimal, if any, damage and nothing was taken. The Crown had proceeded by

summary conviction which meant the maximum sentence was six months’ imprisonment. The Appellant had entered an early guilty plea, essentially at the first opportunity. [ 44 ] The Appellant had a lengthy criminal record with six prior break and enter convictions on it, four of which had resulted in a non-custodial sentence.

Five of the break and enter convictions had occurred prior to 2004 and there was a ten year gap between the 2004 conviction and the Appellant’s next conviction for break and enter. [ 45 ] In my view, the joint submission was a reasonable sentence at the low end of the range and could not be characterized as being so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons to believe that the proper functioning of the justice system had broken down. [ 46 ] In assessing the joint submission, the approach of the sentencing judge was not one of restraint as required in Anthony- Cook .

The sentencing judge’s initial reaction to the Crown’s submission of the joint submission was “I am not implementing this joint recommendation.” [ 47 ] Later, when sentencing the Appellant, the sentencing judge referred to the failure of counsel to show that the joint submission was “within the sentencing range for these types of offences.” The sentencing judge viewed the failure of counsel to justify the joint submission as similar to some lawyers who have “a cavalier attitude towards joint submissions.” [ 48 ] The sentencing judge then referred to two recent cases where joint submissions had been presented to him and he had sent the lawyers away to do their “due diligence.” In those cases, the lawyers had returned and subsequently presented the sentencing judge with revised joint submissions that he viewed as being lenient but within the available range of sentence.

As such, he was prepared to impose the joint submission. [ 49 ] This approach is contrary to that established in Anthony-Cook where sentencing judges are to demonstrate restraint in considering joint submissions and should depart only rarely from joint submissions.

Joint submissions, even those that may be demonstrably unfit, may be proposed but it is only where the joint submission meets the more stringent public interest threshold that a sentencing judge may reject the joint submission. [ 50 ] Routinely sending counsel away to revise joint submissions undermines the process referred to in Anthony-Cook and risks adding to the inefficiency and delay warned of by the Supreme Court of Canada.

Counsel must have confidence that joint submissions will be accepted and, as noted in Anthony-Cook at para. 44 , counsel are “entirely capable of arriving at resolutions that are fair and consistent with the public interest.” [ 51 ] As I have concluded that the sentencing judge erred in rejecting the joint submission, misapprehended materials facts, and erred in his assessment of the aggravating factors, it is not necessary to consider the other arguments raised by counsel. VII.

CONCLUSION [ 52 ] In conclusion, the sentencing judge erred in rejecting the joint submission, misapprehended material facts and erred in his assessment of sobriety, planning and premeditation as aggravating factors of the offence. [ 53 ] Therefore, the appeal is granted. As the original joint submission was reasonable in the circumstances and not contrary to the public interest, the sentence imposed will be one month imprisonment for the break and enter offence and one month imprisonment concurrent for the failure to comply with a probation order.

A probation order was imposed by the sentencing judge as requested in the joint submission. As such, the probation order will remain the same.

Appeal heard on February 12, 2019 Memorandum filed at Iqaluit, Nunavut This 30th day of July, 2019 ______________________ Justice J.A. Smallwood Appearances: S. Cowan for the Appellant N. Devlin for the Respondent