Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Kullualik, 2020 NUCJ 06

Date: 20200220
Docket: 08-17-454, 08-18-425
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Simon Kullualik

________________________________________________________________________

Before: Madam Justice Charlesworth

Counsel (Crown/Appellant): A. Dion

Counsel (Accused/Respondent): C. Christie

Location Heard: Iqaluit, Nunavut

Date Heard: December 6, 2019
Matters: Appeal from sentence pursuant to section 730(1) of the
Criminal Code of Canada, RSC 1985, c C-46

REASONS FOR JUDGMENT

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

 2

I. INTRODUCTION

[1] Mr. Kullualik pleaded guilty to a series of summary conviction

offences in Iqaluit Justice of the Peace Court on August 16, 2018. The
Crown is appealing the sentence imposed, which was a conditional
discharge with two years’ probation concurrent on each offence. The
Crown instead seeks a conditional sentence with 12 months’
probation, also concurrent.

II. FACTS

[2] The facts of the offences to which Mr. Kullualik agreed are set out in
the Appellant’s Factum and I will summarize them briefly.

A. October 2017 assault

[3] On October 19, 2017, Mr. Kullualik assaulted his girlfriend, the victim,
in his bedroom. Mr. Kullualik’s sister heard scuffling noises and
opened his door to find him on top of the victim, holding her down. He
was intoxicated and was aggressive with the RCMP when they
arrived at the home. The victim was visibly shaken and said Mr.
Kullualik had become upset with her, held her down with his forearm
and punched her. She was very scared and said this had not
happened to her before.

[4] Mr. Kullualik was arrested and removed from the residence, held in a
cell until sober and then released on a Promise to Appear, with an
Undertaking to attend Court on December 7, 2017.

B. Failure to appear in court

[5] Mr. Kullualik did not appear in court as required on December 7, 2017
and was charged with the offence of failing to appear.

C. June 2018 assault and breach

[6] On June 20, 2018, the RCMP responded to a call for assistance at
the Frobisher Inn in Iqaluit. They attended Room 322 and received a
statement from the victim in which she stated that Mr. Kullualik had
been intoxicated the previous day and was being rough with her. She
wanted to get away from him for the night and went to the Frobisher
Inn.
 3

[7] In the morning Mr. Kullualik called her room and seemed sober, so
she let him come to her room. Mr. Kullualik, “started flipping out and
accusing her of cheating on him.” He was pushing her around,
grabbed her by the hair as she tried to leave, and then punched her in
the back of the head several times. A room-cleaner intervened to stop
the assault.

[8] The victim was nine months’ pregnant at the time of this assault and
gave birth on July 1, 2018. She was an extremely vulnerable victim,
and this was acknowledged as an aggravating factor in the Defence
submissions.1

III. SUBMISSIONS

[9] The test for a conditional discharge is that it must be in the best
interests of the accused and it must not be contrary to the public
interest (s. 730(1) of the Criminal Code). At the sentencing hearing,
the submissions of both parties emphasized that the main issue for
the Justice of the Peace to determine was whether a discharge would
be “not contrary to the public interest”. Regarding the first part of the
test, the Crown conceded that such a sentence would be in Mr.
Kullualik’s interest.

[10] The Appellant Crown’s position is that the learned Justice of the
Peace made an error in principle in not assessing the public interest
component of a conditional discharge and this error had an impact on
the sentence. The Appellant also submits that the sentence of a
conditional discharge in this situation was demonstrably unfit.

[11] At the sentencing hearing on August 16, 2018, the Crown advised
that Mr. Kullualik did not have a criminal record. She also noted that
the victim did not want to provide a victim impact statement but did tell
the Crown’s office that “she does wish the relationship to continue”.2
Because there were two domestic assaults, the Crown emphasized
general deterrence in her recommendation for a short conditional
sentence of imprisonment followed by 12 months of probation.

[12] The Appellant requests that this court overturn the conditional
discharge and impose the conditional sentence and probation
requested by the Crown at the time of sentence.

1 Page 12 of the Sentencing Transcript.

2 Page 11 of the Sentencing Transcript.
 4

[13] At the sentencing hearing on August 16, 2018, the Defence requested
that the Justice of the Peace consider a conditional discharge with a
two-year period of probation and acknowledged that it would be an
“uphill battle” to justify such a sentence. The Defence filed exhibits,
including a letter from Mr. Kullualik’s sister, who acted as his surety
on his release on June 21, 2018. She advised that Mr. Kullualik and
the victim were residing in her home and doing well with their baby
boy.3 Further, Mr. Kullualik had been accepted into a Management
Studies Program at Nunavut Arctic College in Rankin Inlet and the
family intended to move there so he could start his studies in
September. Housing and counselling for alcohol addiction, anger
management, trauma and healthy relationships would be available to
Mr. Kullualik through Arctic College. Mr. Kullualik and the victim were
intending to seek relationship counselling together, as well.4

[14] The Respondent argues that the Justice of the Peace did consider the
public interest component of the test before deciding on the
appropriate sentence, although it agrees that the specific words,
“public interest,” were not used in her decision. The Respondent also
submits that the sentence imposed is within the range of possible
sentences for these offences and is not unfit.

IV. THE LAW OF APPELLATE REVIEW ON SENTENCING

[15] In R v M (CA), [1996] 1 SCR 500, 194 NR 321 Lamer CJ discussed

the parameters of appellate intervention in sentencing decisions at
para 90:

[90] Put simply, absent an error in principle, failure to consider a

relevant factor, or an overemphasis of the appropriate factors, a court
of appeal should only intervene to vary a sentence imposed at trial if
the sentence is demonstrably unfit. Parliament explicitly vested
sentencing judges with a discretion to determine the appropriate
degree and kind of punishment under the Criminal Code. [Emphasis in
original]

3 Tab 1 of Defence Book Materials on Sentence.

4 Page 14 of the Sentencing Transcript
 5

[16] Almost two decades later, in the case of R v Lacasse, 2015 SCC 64,
Wagner J (as he then was) added to the first part of this statement at
para 44:
[44] 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.

[17] The court in Lacasse went on to add at para 49, “an appellate court
may not intervene simply because it would have weighed the relevant
factors differently.”

[18] As noted above, the Appellant’s position is that the Justice of the
Peace failed to consider a relevant factor (the public interest) and her
failure to do so had an impact on the sentence. Alternatively, the
Appellant argues that a conditional discharge was demonstrably unfit.
In either case, the Appellant asks this Court to set aside the
conditional discharge and impose a two-month conditional sentence,
with one year of probation.

V. SUFFICIENCY OF REASONS AND ERROR IN PRINCIPLE

[19] If the reasons of the Justice of the Peace reflect an error in principle
which impacted the sentence, appellate intervention is justified.
Specifically, it would be an error in principle for the Justice of the
Peace not to consider the public interest. The decision maker is
statutorily obligated to consider the public interest in deciding whether
to impose a conditional discharge.

[20] Our Court of Appeal recently dealt with the issue of sufficiency of
reasons at trial in the case of Moses Meeko v Her Majesty the Queen,
2019 NUCA 6. In Meeko, the Court of Appeal quashed a conviction,
returning the matter to trial, on the basis of insufficient reasons. The
pertinent paragraphs are 17 and 18:
 6

[17] Reasons for judgement must provide for meaningful appellate

review by enabling the appeal court to determine whether there is any
reviewable error in the trial judge’s decision. …

[18] The deficiencies in the trial reasons, even when supplemented by

the trial record as a whole, preclude meaningful appellate review. If a
reviewing court cannot determine whether the decision is vitiated by
error; or why a judge came to a certain determination, the conviction
cannot stand: Sheppard at paras 28, 50.

[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.

[23] Did that error in principle impact the sentence that was imposed? In
the recent decision of R v Ganesan, 2017 NUCA 7, our Court of
Appeal stated at paragraphs 21 and 24:

[21] More recently, R v Shortt, 2002 NWTSC 47 at para 26, cited

dicta from MacFarlane that notes that offences involving violence are
generally not amenable to the granting of a discharge, and went on to
say that “[i]n particular, cases of domestic violence, since they engage
considerations of general deterrence, and because of the prevalence of
such crimes in all communities and the vulnerability of its victims, are
ordinarily unsuitable for the use of the discharge option”. As Shortt
states, this is “simply a recognition that a greater emphasis on the need
for general deterrence will usually mean the discharge is contrary to
the public interest.”

…
 7

[24] This Court of Appeal has repeatedly said in the clearest terms,
that violence against intimate partners is anathema to Canadian values,
and that denunciation and deterrence are paramount sentencing
objectives in cases such as this. [Emphasis added]

[24] This strong statement by the Court of Appeal suggests that a

conditional discharge is an exceptional sentence for any domestic
assault. In this case, it might have been appropriate to have granted a
discharge for the first offence of assault, if Mr. Kullualik had not failed
to appear. To come back to court nine months later with a second
offence of assault against the same partner requires the Court to
impose a sentence that focusses on deterrence and denunciation, in
the public interest.

[25] It appears the Justice of the Peace’s decision weighed the personal
characteristics of this accused too heavily. Failure to fully consider the
public interest led to a sentence that did not address the issues of the
prevalence of domestic assault and the vulnerability of victims. This
was an error, and the sentence is set aside.

VI. SENTENCE

[26] As noted above, Mr. Kullualik had no prior criminal record and full
support from his family, including the victim. He was 26 years old at
the time of sentence, with a good work record and was about to
embark on a course of study that would make him even more
employable. Mr. Kullualik intended to seek counselling for help with
personal and relationship issues, and that has been a term of his
probation since August 2018. Mr. Kullualik has now been on probation
for 18 months, and I was not advised of any issues with respect to his
compliance.
 8

[27] Because the accused is Indigenous, Gladue factors are an important

consideration in sentencing. There are many in this case: Mr. Kullualik
was brought up by an uncle, because his parents were alcoholics; he
suffered the loss of two siblings by suicide; and he himself has been
an alcoholic for at least ten years. In light of this, Mr. Kullualik’s good
employment record, with jobs requiring various levels of certification,
is impressive and even more, he had concrete plans to attend higher
education. As the Justice of the Peace noted in her decision, “I wish
this Court … could hear a little more of those [cases of people making
good efforts to get past their issues]”.5

[28] Paragraph 718.2(e) of the Criminal Code requires that the court
consider the importance of restraint, particularly as the accused is
Inuk. In this case, restraint militates against a custodial disposition.

[29] For a first offender in these circumstances, a jail sentence is not

necessary. While the conditional discharge cannot stand, a
suspended sentence with two years of probation on the terms
imposed by the Justice of the Peace, on each charge, concurrent is
appropriate. It balances denunciation and deterrence with
rehabilitation and does it with the restraint required by s. 718.2(e).

Dated at the City of Iqaluit this 20th day of February, 2020

___________________
Justice S. Charlesworth
Nunavut Court of Justice

5 Page 31.