Nunavunmi Apiqhuidjutainut Uuktuffaarutit

Nunavut Court of Appeal

Cour d'appel du Nunavut
Citation: R. v. Mathewsie, 2016 NUCA 05
Date: 2016-09-30
Docket: 08-15-008-CAS
Registry: Iqaluit
Between:

Crystal Mathewsie
Appellant

-and-

Her Majesty The Queen

Respondent

_______________________________________________________

The Court:
The Honourable Mr. Justice R.S. Veale

Memorandum of Judgment
Application regarding an appeal on
the judgment by the Honourable Mr. Justice P. Bychok,
Dated the 5th day of November, 2015
(Docket: 08-15-330)

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Table of Contents
MEMORANDUM OF JUDGMENT ...................................................................................... 3
I. INTRODUCTION....................................................................................................................... 3
II. FACTS ....................................................................................................................................... 4
III. THE SENTENCE SUBMISSIONS ....................................................................................... 5
A. The Crown submission ....................................................................................................... 5
B. The Defence submission.................................................................................................... 6
IV. ANALYSIS ............................................................................................................................... 8
A. The sentence ....................................................................................................................... 8
B. Issues .................................................................................................................................. 10
(i). Issue 1: did the sentencing judge err by engaging in impermissible speculation
and by taking judicial notice about facts that are not the product of common sense in
determining whether the joint submission would be contrary to the public interest and
would bring the administration of justice into disrepute? ................................................. 11
(ii). Issue 2: did the sentencing judge err in not giving counsel notice of his intention to
deviate from the joint submission? ...................................................................................... 14
(iii). Issue 3: did the sentencing judge err in failing to articulate why the joint
submission would bring the administration of justice into disrepute? ............................ 18
V. CONCLUSION ....................................................................................................................... 18

MEMORANDUM OF JUDGMENT
(NOTE: This document may have been edited for publication)

I. INTRODUCTION
[1]

Counsel for Ms. Mathewsie appeals the decision of the sentencing judge on
the grounds that he erred in rejecting a joint submission of Crown and
Defence Counsel for a conditional discharge with 7 months probation, and
instead imposing a suspended sentence with probation. The significance of
the decision is that a conditional discharge is not a conviction and does not
create a criminal record, while the suspended sentence results in a criminal
record.

[2]

Ms. Mathewsie pled guilty to a charge of assault with a weapon in the

context of domestic violence and the Crown proceeded by way of summary
conviction.

[3]

Defence Counsel submits that:

1. The sentencing judge erred by engaging in impermissible
speculation and by taking judicial notice about facts that are not the
product of common sense in determining whether the joint
submission would be contrary to the public interest and would bring
the administration of justice into disrepute;
2. The sentencing judge erred in not giving counsel notice of his
intention to deviate from the joint submission;
3. The sentencing judge erred in failing to articulate why the joint
submission would bring the administration of justice into disrepute.

[4]

Crown Counsel does not resile from the position taken by Crown counsel in
favour of a conditional discharge at the sentencing of the accused.
However, the Crown submits that the trial judge had the discretion to reject
the joint submission and properly applied the law in doing so. Crown
Counsel concedes that the trial judge misstated an aggravating fact and
speculated on the impact on the child of Ms. Mathewsie. Nevertheless, the
Crown submits that these errors had no impact on the sentencing and the
judges decision to reject the joint submission.

II. FACTS
[5]

At the sentencing hearing of Ms. Mathewsie on November 5, 2015, the

following facts were read into the record by the Crown and admitted by
Defence Counsel:
On June 28, 2015 at 20 : 50 hours, RCMP received a complaint from
Iqaluit Emergency Services that Crystal Mathewsie had called to advise of a
stabbing victim at her residence at house 315, apartment number 10. RCMP
arrived on the scene.
Crystal Mathewsie initially put up some blocks and obstacles to prevent
allowing them to come inside the house. They advised her because there was
potentially a victim of a stabbing inside, they needed to enter the residence.
She was somewhat antagonistic on that, but they eventually arrested her for
obstruction, and placed her into the police truck and then entered the house.
Inside the residence was also Crystal Mathewsies grandmother, Annie
Mathewsie. She was elderly, and began screaming at the police when they
entered, but was unable to get at them. She was unhelpful, and demanded that
they leave.
They observed some fresh blood on the floor, on the countertop, and a paper
towel in the kitchen. A young boy was located in a bedroom with a blanket
wrapped over his head. He spoke to the Constable, and said that he heard
fighting between his mom and dad. There was a locked door across from the
boys bedroom. The boy said it was his mom and dads room.
Police entered the room and observed Nelson Evaloakjuk lying on the floor.
He was bleeding from several places on his hands and wrist, and was holding
a bath towel over his wounds. They observed that the wounds were
[consistent] with defensive wounds, as there was a cut to his right palm and
laceration to his left wrist. When they asked him how he got the wounds, he
said he did it to himself. They were not convinced, and questioned him
further. He was taken to the hospital for treatment.

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Crystal Mathewsie was meanwhile arrested for assault with a weapon. She - they were unable to locate a knife in the apartment. When RCMP members
attempted to get a statement from Mr. Evaloakjuk, he refused. He did not want
to give consent to releasing his medical records. He did not want members to
take photos, and he said he understood that it would be difficult to lay a
charge in Court, and that he would still not cooperate.
He did utter the following during his conversation with RCMP. He said he
didnt think Crystal would get this mad. He remembers seeing her with a
knife, and he froze because he couldnt believe it. He put out his hands to stop
her, and he got stabbed in the hands. He again indicated that he was never
going to give a statement to the RCMP, and was never going to give medical
releases to assist with the investigation. [Trial Transcript]

III. THE SENTENCE SUBMISSIONS

A. The Crown submission
[6]

The Crown, at the sentencing, submitted that in all the circumstances a

conditional discharge was appropriate. The Crown recognized that Ms.
Mathewsie had considerable family stresses in her life. She wished to
upgrade her schooling and pursue employment. She has no criminal record
and she had been doing counselling. The Crown did not explicitly indicate
on the record that it was a joint sentence submission.

[7]

The trial judge asked Crown Counsel the following question:

What is the National Public Prosecution Service of Canada Protocol with
respect to the availability of discharges in cases of domestic violence? [Trial
Transcript]

[8]

The Crown indicated her understanding that they were available and that
she had discussed the disposition with her manager.

[9]

On further questioning by the trial judge, the Crown read out s. 730(1) of the
Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code], and
addressed the test for a discharge, i.e. that one is available when the court
considers it to be in the best interests of the accused and not contrary to the
public interest.

[10] With respect to this two-prong test, the Crown submitted that it was in the
best interests of the accused as Ms. Mathewsie cares for her elderly mother
who has very serious medical issues requiring constant care, and is, as well,
the caregiver to her 7-year-old son along with Mr. Evaloakjuk, the childs
father figure.
[11] In terms of the public interest, the Crown submitted and I quote: to
burden Ms. Mathewsie with a criminal conviction when she actually would
have the opportunity as a young woman to upgrade schooling, pursue
employment, and provide positive role for her family, for her son, its not in
the public interest to burden her with a criminal record.
[12] At this point, the judge intervened:
And in terms of the public interest, you know that it doesnt matter what
community were in, and what docket were looking at, but our courts are
almost overwhelmed with cases of domestic violence. Were dealing with a
very serious charge here. Were dealing with assault with a weapon that lead
to at least a number of stabs, and it was so upsetting that a seven year old child
was in the bedroom hiding beneath a blanket.
Im having a hard time wrapping my head around the concept that to grant a
discharge of any variety to Crystal [is in] the public interest. [Trial
Transcript]

[13] He went on to observe that the accused could stay with her family whether
she received a conditional discharge or a suspended sentence.
B. The Defence submission
[14] Defence Counsel, in what the sentencing judge referred to as superior
advocacy and excellent representation, submitted that Ms. Mathewsie,
age 26, had given up her right to trial in the face of significant hurdles for the
Crown in proving its case.
[15] She submitted that the judge should put much weight as the Court can
on her very early guilty plea, which was on Ms. Mathewsies second court
appearance. Ms. Mathewsie had also completed almost 70 hours of
community service. Defence Counsel stated that what Ms. Mathewsie did
was incredibly out of character. She had had a very difficult childhood
dealing with the alcoholism of her parents and domestic violence, but was
fortunately taken in by her grandmother, whom she refers to as her mother.

[16] Defence Counsel submitted that Ms. Mathewsie has provided almost all the
care for her elderly grandmother as well for as her 7-year-old son, setting
aside her desire for her own further education and employment.
[17] Ms. Mathewsie very rarely drinks to excess, but she did so with her
common-law that evening, after hearing distressing news about her
grandmothers health being in decline, and began fighting with him. It was
Ms. Mathewsie who called EMS [Iqaluit Emergency Services] to advise that
she had injured Mr. Evaloakjuk.
[18] Defence Counsel submitted that in the future, Ms. Mathewsie wants to be
employed as a cook down south and a criminal record would be a significant
hindrance to that goal. Defence Counsel submitted that in the vast majority
of cases of this nature a conditional discharge would not be appropriate. In
this case, however, Defence Counsel cited the mitigating factors that Ms.
Mathewsie had no criminal record, gave an early guilty plea, did 70 hours of
community service, gave up significant triable issues, and turned herself in.
Ms. Mathewsie had also taken counselling; although this ended when the
counsellor moved away.
[19] With respect to the joint position and near the end of her submission,
Defence Counsel said the following:
And Your Honour is well aware, weve discussed it earlier today, that a Court
should give significant consideration to the discussions between counsel. And
I can advise that my friends office has been very receptive of the information
that I have been provided about Ms. Mathewsie, and that there were a number
of thoughtful discussions that went into the information and the proposal that
you see before you today. And I thank my friends office for the opportunity
to engage with them in that way.

The fact that you have a joint submission before you that is the thoughtful
presentation of counsel who have worked together on this matter. It is not
contrary to the public interest. It would not bring the administration of justice
into disrepute to give this first time young woman a chance not to gather a
criminal record.

[20] This is the first explicit reference to the fact that the court had a joint
sentence submission before it. The submission included several letters of
good character referring to her volunteer work in the community.
[21] Ms. Mathewsie personally apologized in court for what she did.

IV. ANALYSIS
A. The sentence
[22] The sentencing judge rendered his sentence on November 6, 2015, as the
case had been adjourned at 5 oclock the previous day. It included the
following reference to the fact that it was a joint submission:
And the law is that unless a number of factors occur, for example, if its
unreasonable, or if its not in the public interest, the Courts put a lot of value
on these joint suggestions by the lawyers, because very often lawyers have the
best understanding of whats going on in any particular case, and the Court
only knows really a small fraction of it. We only know whats eventually told
to us in Court, which is usually a bit of a Readers Digest version.

[23] The judge described the range of sentences available, from absolute
discharge to conditional discharge to a suspended sentence to two types of
jail (presumably referencing a conditional sentence versus time
incarcerated in a correctional facility).
[24] The judge agreed with the submission for 7 months probation and ordered
only one special condition of taking treatment or counselling in addition to
the mandatory conditions. He made the very positive statement that he did
not expect to see Ms. Mathewsie in criminal court again. He also mentioned
that she elected to take a knife.
[25] The judge continued as follows:
Now, with respect to a discharge, theres a fundamental legal principal [as
written] that I have to be very concerned about this morning, and that is if two
people do essentially the same thing in the same circumstances and they have
the same backgrounds, they should be treated pretty much the same. If one
person is treated differently, that might be considered to be unfair. And thats
a pretty basic principal. And theres even a section in the Criminal Code that
talks about that.
Now, in this case we have a case of domestic violence, and you used a knife,
which puts it in a very serious category. Our Court deals with hundreds of
cases of domestic violence every year, and in those cases quite a few people
are convicted and found guilty for the first time of whats called common
assault.

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And common assault, Crystal, is when you push someone, or you push
someone a few times, or you punch someone, or you punch them a lot, or you
kick them, or you kick them a lot, you pull their hair, or you pull them on the
ground by their hair. And in those kinds of cases, this Court almost all the
time gives a suspended sentence and probation.
Its very rare in a common assault case for the Court to give a discharge of
any type. Part of the reason for that is the fact that we have hundreds and
hundreds of these cases every year.
And while theres not really much a Judge can ever do sitting up here to stop
the violence, the Court has the job at least to remind people who live in
Nunavut that family violence is absolutely unacceptable. We know, Crystal,
that every year one or two women, usually women, will die at the hands of
their partners.
So when common assaults result in suspended sentences and probation, you
can imagine that when a knife is involved, assault with a weapon, it becomes
even more serious. And routinely, even for a first time offender, someone who
takes a knife to their partner is going to be subject to a jail term in the
community. Its that serious. And the Court has to send the message to the
community consistently and fairly that when other people are subject to
conditional sentences from taking a knife to their common-law partner, unless
theres something really extraordinary involved here, that person will have to
serve a jail term in the community of a short period of time, just because its
so serious.
Now, in this case, in your case, youre a first time offender. Youve taken
extraordinary steps to rehabilitate yourself. And, as I said before, youre to be
congratulated in that.
But basically what your lawyer and the Prosecutor want the Court to do is to
go down two steps, to go to skip over the suspended sentence, when normally
you would get a conditional sentence, to skip over the suspended sentence and
go to a conditional discharge, and thats not something this Court can do.
I dont know exactly how many times you went after Nelson with the knife,
but I think I can safely say that you did it, you swung out at him with a knife
at least twice, because he had wounds to both his hands. This is a very serious
case of domestic violence. So no Court in those circumstances is going to
grant a conditional discharge. [Trial Transcript]

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B. Issues
[26] The issues presented by the appellants counsel are the following:
1.

Did the sentencing judge err by engaging in impermissible

speculation and by taking judicial notice about facts that are
not the product of common sense in determining whether the
joint submission would be contrary to the public interest and
would bring the administration of justice into disrepute?

2.

Did the sentencing judge err in not giving counsel notice of his
intention to deviate from the joint submission?

3.

Did the sentencing judge err in failing to articulate why the

joint submission would bring the administration of justice into
disrepute?

[27] Crown and Defence agree that a sentencing judge is not bound to accept a
joint sentence submission, but there is some disagreement about how the
judge should proceed when he or she intends to depart from or reject a joint
submission.
[28] Generally, deference should be accorded to the sentencing judge unless
there is an error in principle or the sentence is demonstrably unfit.

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(i). Issue 1: did the sentencing judge err by engaging in impermissible

speculation and by taking judicial notice about facts that are not the
product of common sense in determining whether the joint submission
would be contrary to the public interest and would bring the administration
of justice into disrepute?
[29] In R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 [Lacasse], the Crown
was appealing a Quebec Court of Appeal judgment that reduced a sentence
of 6 years to 4 years after the accused pled guilty to two counts of
impaired driving causing death. The appeal was allowed and the sentence
imposed by the sentencing judge restored. The majority stated that, except
where a sentencing judge makes an error of law or principle that has an
impact on the sentence, an appellate court may not vary the sentence
unless it is demonstrably unfit. At para. 44, Wagner J. stated:
In my view, an error in principle, the failure to consider a relevant factor or
the erroneous consideration of an aggravating or mitigating factor will justify
appellate intervention only where it appears from the trial judge's decision that
such an error had an impact on the sentence.

[30] Further, at para. 83, Wagner J stated that the erroneous consideration of
an aggravating or mitigating factor warrants appellate intervention only if it
can be seen from the trial judge's decision that the error had an actual
impact on the sentence. .
[31] The Crown acknowledges that the trial judge should not have drawn the
conclusion that Ms. Mathewsie swung the knife at least twice at the victim
based solely on the evidence that the victim had a cut to his right palm and
a laceration to his left wrist. The Crown also acknowledges that the
evidence did not permit the trial judge to conclude that Ms. Mathewsies son
would remember the incident for the rest of his life and that it had destroyed
his sense of safety in the home. However, the Crown submits that they were
minor errors that had no impact on the sentence and were not determinative
in the judges decision to reject the joint submission.
[32] Rather, the Crown submits that the judge based his decision on the fact that
when a weapon is used in a domestic assault case, it will usually result in a
jail sentence even for a first time offender. The judge concluded that he
could not accept the joint submission in its entirety as it was contrary to the
principle of parity.

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[33] I agree with the Crown that the judges reference to the trauma that would
be suffered by the 7-year-old son is a minor error in the context of this case
and not one that had a decisive impact on the sentence. It is not
inappropriate for a sentencing judge to point out that domestic violence will
likely be traumatic for a child.
[34] However, the sentencing judges conclusion that there were at least two
knife swings cannot be discounted as an error without an impact. During the
submission of the Crown, in reference to whether or not a discharge was
contrary to the public interest, the trial judge referred to the charge as
serious, saying: Were dealing with assault with a weapon that led to at
least a number of stabs.
[35] As pointed out by appeal counsel for Ms. Mathewsie, there are five
references to the use of the knife in the judges reasons for sentence. He
referred to Ms. Mathewsie electing to take a knife in a domestic dispute,
and observed that she used a knife which puts it into a serious category,
saying you can imagine that when a knife is involved, assault with a
weapon, someone who takes a knife to their partner is going to be subject
to a jail term, and finally that other people are subject to conditional
sentences from taking a knife to their common-law partner. The sentencing
judge ended with the finding that Ms. Mathewsie swung out at him with a
knife at least twice, because he had wounds to both his hands.
[36] I do not agree with the Crowns characterization of these comments as
being solely about the use of a knife with no emphasis on the number of
swings and stabs taken. The judges speculation about the number of
swings of the knife was not a permissible inference from the facts read in,
and I cannot conclude that it did not have an impact on the sentence given.
[37] I want to be very clear that the trial judge was correct about the prevalence
of domestic violence in Nunavut and, in my view, he has the experience as
a lawyer and judge in that jurisdiction to make those comments (see also
Lacasse, at para. 95).

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[38] Although it was not raised as an error in principle under this ground by the
appellant, I also wish to observe that the trial judge placed too great an
emphasis on the principle of parity and gave too little weight to the principles
set out in the Gladue and Ipeelee 1 cases that must be addressed in the
sentencing of Aboriginal offenders. The trial judge, in fact, made no
reference to the Gladue principles. The lack of an explicit reference to
Gladue is perhaps not unusual in Nunavut where the majority of people are
Aboriginal, and the principles are generally acknowledged and taken into
account. However, here, while the judge certainly made reference to Gladue
factors, his focus was squarely on parity.
[39] In Gladue, the Supreme Court of Canada stated that s. 718.2(e) of the
Criminal Code directs sentencing judges to undertake the process of
sentencing Aboriginal offenders differently.
[40] In speaking to the role of sentencing judges, the Court in Gladue said the
following:
[65] What can and must be addressed, though, is the limited role that
sentencing judges will play in remedying injustice against aboriginal peoples
in Canada. Sentencing judges are among those decision-makers who have the
power to influence the treatment of aboriginal offenders in the justice system.
They determine most directly whether an aboriginal offender will go to jail, or
whether other sentencing options may be employed which will play perhaps a
stronger role in restoring a sense of balance to the offender, victim, and
community, and in preventing future crime.

[70] A significant problem experienced by aboriginal people who come

into contact with the criminal justice system is that the traditional sentencing
ideals of deterrence, separation, and denunciation are often far removed from
the understanding of sentencing held by these offenders and their community.

R v Gladue, [1999] SCJ No 19, [1999] 1 SCR 688 (QL) [Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR
433 [Ipeelee].

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[41] These observations were reiterated and expanded on in Ipeelee. At para 66,
the majority noted that sentencing judges can try to play a role in reducing
crime rates in Aboriginal communities by imposing sentences that effectively
deter criminality and rehabilitate offenders, and that they are obligated to
take an innovative and individualized approach. This means that parity
cannot take precedence as a sentencing principle. As written at para 79 of
Ipeelee, [c]ourts must ensure that a formalistic approach to parity in
sentencing does not undermine the remedial purpose of [Criminal Code] s.
718.2(e).
[42] To be fair to the sentencing judge, he correctly identified the terrible
situation with domestic violence in Nunavut. And, arguably, he wanted all
Aboriginal offenders to be treated equally. But in emphasizing parity to the
extent that he did, he lost sight of the principles and factors relevant to
Aboriginal offenders and failed to take into account the unique
circumstances of Ms. Mathewsie as an Aboriginal offender.
[43] The judge referred to this case as a very serious case of domestic violence
when the Crown proceeded by way of summary conviction. I do not, in any
way, wish to minimize the seriousness of domestic violence at any level. But
this recognition does not permit a judge to add:
So no Court in those circumstances is going to grant a conditional
discharge.

[44] I disagree. In the context of Criminal Code s. 718.2(e) and the sentencing
principles set out in Gladue and Ipeelee, every court is obligated to exercise
its discretion judicially in determining how those principles apply to this
offender, in her family, and in her community. The judge must address
sentencing on an individual case-by-case basis, even if it means granting a
discharge for an offence that on its face may warrant a more punitive
sanction.
(ii). Issue 2: did the sentencing judge err in not giving counsel notice of his
intention to deviate from the joint submission?
[45] The approach to the notice required to be given to counsel when a
sentencing judge is thinking of rejecting a joint submission differs depending
on the court and the particular circumstances of the sentencing hearing.
While I am not aware of a binding precedent in the Nunavut Court of Appeal,
the view of the Court of Appeal of Alberta should be given great weight.

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[46] In R v Gibson, 2015 ABCA 41, 319 CCC (3d) 115, the court stated the
following:
8 In exchange for Gibson's pleading guilty, Crown and defence counsel made
what was described as "a true joint submission" for a two-year custodial
sentence coupled with a lengthy driving prohibition. At the oral hearing at
which these submissions were made, the sentencing judge expressed his
concern that in the factual circumstances before him, a two-year sentence was
unfit. In keeping with the proper procedure, he invited further written
submissions from counsel: R v Shular, 2014 ABCA 241 at para 40, leave to
appeal to SCC refused, [2014] S.C.C.A. No. 422, 36086 (December 18, 2014).
Both Crown and defence counsel referred to additional cases suggesting that a
sentence in the range of two to four years imprisonment was fit for this
offence. Crown counsel also advised that there were potential problems with
proof of this case, though the illustrations referred to were of a general nature
and applicable to most such driving cases.

[47] In R v Magas, 2012 ABCA 61, [2012] AJ No 182 (QL), the majority stated
the law on joint submissions as follows:
16 A joint submission must be given serious consideration and should be
accepted unless it is considered unfit or unreasonable. If a sentencing judge is
disinclined to accept a joint submission, counsel should be afforded an
opportunity to make further submissions to address the judge's concerns. The
rejection of a joint submission is unlikely to warrant appellate intervention
where the sentencing judge demonstrated a thorough appreciation of the
relevant facts, their significance and the proper sentencing principles: R. v.
Tkachuk, 2001 ABCA 243, 293 AR 171 at para 32; R. v. GWC, 2000 ABCA
333, 277 AR 22 at paras 19 and 26.

[48] The dissent highlighted the obligation of the sentencing judge (from R v
Tkachuk, 2001 ABCA 243 at para. 32, 159 CCC (3d) 434):

iii) If the sentencing judge is disinclined to impose the sentence recommended,

the judge should so advise counsel and permit them to make further
submissions in support of their original position and against the suggestion
that the submission be departed from. This would provide counsel an
opportunity to answer any concerns the sentencing judge may have for
departing from the recommended sentence. (emphasis already added)

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[49] With respect to this ground of appeal, the Crown submits that the
sentencing judge clearly stated that he had difficulty with the public interest
aspect of a conditional discharge in the context of the seriousness and
prevalence of domestic violence in Nunavut and says that he demonstrated
a thorough appreciation of the relevant facts, their significance, and the
proper sentencing principles.
[50] Defence Counsel submits that in situations where a sentencing judge
concludes that he might not accede to a joint submission, fundamental
fairness dictates that he give counsel an opportunity to make further
submissions to address his concerns before imposing a sentence that
deviates from it. Defence Counsel submits that the judges expressed
concerns about the seriousness of domestic violence and why a conditional
discharge would not be in the public interest, did not sufficiently notify
counsel that he would depart from the joint submission or afford them the
opportunity to make further submissions in support of the position.
[51] Justice Kilpatrick, the Senior Judge in Nunavut and one of the first justices
at the creation of Nunavut on April 1, 1999, stated the following with respect
to joint submissions in R v Laisa, 2015 NUCJ 39, [2015] Nu J No 37 (QL), a
leading sexual assault case on the indictable offence of sexual interference:
17 In the circumstances of this case, Crown and Defence have agreed on a
joint submission of some 20 months jail time for these offences. Had the
Criminal Code s. 151 offence gone to trial, you would have been in a
penitentiary today, Robert. The guilty plea has to be given considerable
weight, as does your cooperation with the authorities. That is what makes the
difference. That is why you are not going to a penitentiary today, sir. You
have also taken the limited programming that is available through the Baffin
Correctional Centre. You have participated in the men's group and that is
good. You also deserve some credit for having done that.
18 The Court is required, once again by appellate courts, to give very careful
attention to joint submissions. The joint submission in this case follows a plea
agreement.
19 If everyone in Nunavut wanted to take their matters to trial, the
administration of justice would suffer. Appellate jurisprudence recognizes this
and recognizes it in the form of ensuring that trial judges do not lightly
interfere with joint submissions because it is in the public interest to
encourage people to accept responsibility and move on with their lives. The
circumstances in which a trial judge can interfere with a joint submission are
limited by appellate jurisprudence. I must be satisfied, in order to interfere,
that the proposed sentence would bring the administration of justice into
disrepute.

17

20 I am satisfied, in the circumstances of this case, given all of the mitigating

features of this offence, that [it] would be appropriate to accept the joint
submission that has been offered in this case. I say that, and emphasize in
doing so once again, that if this had gone to trial, the end result would have
been well into the penitentiary range for this type of offence committed in
these circumstances.

[52] I have set out this decision in some detail because it expresses a number of
important principles in dealing with serious offences and the treatment of
joint sentence submissions in Nunavut.
[53] There is no doubt that joint sentence submissions in Nunavut play a much
more prominent role than in the rest of the North and Canada generally.
Although this particular case took place in Iqaluit, it could have been in one
of the 25 communities, not connected by roads, from Sanikiluaq in Hudson
Bay to Grise Fiord, Canadas most northern residential community.
[54] The sentencing judge indicated on the record that he was having difficulty
accepting the proposed conditional discharge as not being contrary to the
public interest. This much was clear to both Crown and Defence Counsel.
However, he largely expressed his views before the fact that it was a joint
submission was made explicit, and he did not ask for clarification about the
considerations, apart from the public interest, that underpinned the joint
position. Neither counsel were notified that he was not going to accept the
joint submission prior to when he delivered the sentence the next day.
[55] In my view, it was incumbent on the sentencing judge to state explicitly that
he was not accepting the joint submission. Both Crown and Defence should
have been given the opportunity to address his concerns about parity, the
need for denunciation and deterrence given the severity and prevalence of
domestic violence, and the judges view that no court would grant a
conditional discharge in such circumstances. They also should have been
given an opportunity to explain any plea bargaining considerations made in
reaching the joint position.
[56] While Defence Counsel did address a fairly broad range of issues to
convince the judge of the merits of the joint sentence submission, Crown
Counsel did not have an opportunity to support or supplement these
submissions.

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[57] I conclude that although the judge gave notice that he was having difficulty
with the conditional discharge not being contrary to the public interest, this
fell short of notice that he was thinking of rejecting the joint sentence
submission. He failed to provide an opportunity for Crown and Defence
Counsel to address all his concerns, some of which they heard for the first
time when he delivered his judgment the next day.
(iii). Issue 3: did the sentencing judge err in failing to articulate why the
joint submission would bring the administration of justice into disrepute?
[58] Counsel did not address this issue in any depth because the first two issues
are central to this appeal, and my decision on those essentially disposes of
the appeal. In fairness, the reasons given in the sentencing judges decision
amount to a reasonably clear articulation of why he felt the joint sentence
submission would bring the administration of justice into disrepute, despite
the fact that he did not use those exact words.
V. CONCLUSION
[59] I conclude that the sentencing judge did not give appropriate notice of his
decision to reject or depart from the joint submission of counsel. This is
especially so given the importance of joint submissions in the efficient and
fair administration of justice in Nunavut. The sentencing judge also erred in
his understanding of the facts and failed to properly consider the application
of Gladue and Ipeelee, focusing instead on the principle of parity and the
prevalence of domestic violence in Nunavut.
[60] I, therefore, grant leave to appeal, allow the appeal, set aside the sentence
imposed by the sentencing judge, and impose a conditional discharge with 7
months probation.

Appeal heard on September 7, 2016

Memorandum filed at Iqaluit, Nunavut
This 30th day of September, 2016

______________________
R.S. Veale J.A.

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Appearances:
Lana Walker
for the Appellant
Abel Dion
for the Respondent