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
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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.
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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.
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[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.
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[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 sentence of five months’
imprisonment for the break and enter and two months’ imprisonment
consecutive for failing to comply with his probation order, followed by a
term of probation of twelve months. The sentencing judge provided oral
reasons for sentence and later filed written reasons for sentence.

V. ISSUES

[21] The Appellant appeals from sentence. The Appellant claims that the
sentencing judge erred in rejecting the joint submission, erred in treating
sobriety as an aggravating factor, erred in requiring counsel to establish
Gladue factors, and erred in his application 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 and legal 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 his assessment 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 to impose
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 the overemphasis of
the appropriate factors, an appellate court should only intervene to vary a
sentence imposed at trial if it is demonstrably unfit. See R v M.(C.A.),
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[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 consideration of an aggravating
or mitigating factor, appellate intervention will only be justified where the
error had an impact on the sentence. If an error 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, 2016 SCC 43 that the
standard of review is the “public interest” test. In the public interest test, a
sentencing judge should follow the joint submission 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 lead reasonable and
informed persons, aware of the relevant circumstances, including the
importance of promoting certainty in resolution discussions, 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 in Anthony-Cook. A
sentencing judge must exhibit restraint when presented with a joint
submission and the discretion to depart from a joint submission is very
circumscribed. To depart from a joint submission, it must be so “markedly
out of line with the expectations of reasonable 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
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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.
 8

[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.
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[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.
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[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
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Appearances:

S. Cowan
for the Appellant

N. Devlin
for the Respondent