Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Aklok, 2020 NUCJ 37

Date: 20201002
Docket: 23-20-113; 23-20-115
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: James Logan Aklok

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): G. Wool

Counsel (Accused): S. Paddock

Location Heard: Iqaluit, Nunavut

Date Heard: September 25 and 28, 2020
Matters: Sentencing decision pursuant to Anthony-Cook and
Criminal Code of Canada, RSC 1985, c C-46, ss. 266 (x2)
and 145

REASONS FOR JUDGMENT

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

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Contents

I. INTRODUCTION ............................................................................................... 3
II. BACKGROUND TO THE TWO SETS OF CRIMINAL CHARGES .................... 4
III. THE FACTS ..................................................................................................... 5
A. August 2, 2020 ............................................................................................. 6
B. August 21, 2020 ........................................................................................... 6
IV. THE POSITIONS OF THE PARTIES .............................................................. 7
A. The Crown ................................................................................................... 7
B. The Defence ................................................................................................ 8
V. MR. AKLOK ...................................................................................................... 8
A. Mr. Aklok’s personal circumstances ............................................................. 9
B. Mr. Aklok’s criminal record ........................................................................... 9
VI. THE SHIFTING FRAMEWORK, PURPOSE, OBJECTIVES, AND
PRINCIPLES OF SENTENCING ........................................................................ 10
A. The shifting framework of sentencing ........................................................ 10
B. The purpose and objectives of sentencing ................................................. 11
C. The principles of sentencing ...................................................................... 11
VII. ANALYSIS .................................................................................................... 14
A. Joint submissions must conform to the purpose, objectives, and principles
of sentencing ................................................................................................... 14
B. Problems with the joint submission ............................................................ 14
(i) Intimate partner violence ......................................................................... 14
(ii) The perception of institutional indifference.............................................. 16
1 The prosecution .................................................................................... 16
2 Victim impact statements in Nunavut .................................................... 17
3 The Crown’s submissions ..................................................................... 18
4 The Defence.......................................................................................... 22
5 The irony of Anthony-Cook.................................................................... 23
6 The “so unhinged” test .......................................................................... 24
VIII. CONCLUSION............................................................................................. 26
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I. INTRODUCTION

[1] Earlier this year, gender-based intimate partner violence was

addressed in a report released by Pauktuutit Inuit Women of Canada:

Gendered violence against Inuit women is a problem of massive

proportions. Women in Nunavut are the victims of violent crime at a
rate more than 13 times higher than the rate for women in Canada as a
whole. The risk of a women being sexually assaulted in Nunavut is 12
times greater than the provincial/territorial average. In 2016, Nunavut
had the highest rate of female victims of police-reported family
violence in Canada …1

[2] Cases of alcohol-fueled intimate partner violence against Inuit women

and girls consistently dominate our Court dockets across the Territory.
Far too often, the same intimate partners in crisis—seemingly trapped
in a spiraling cycle of violence—are involved in cases before the
Court.2

[3] This case represents a perfect storm. It is about the crisis of intimate
partner violence in Nunavut, perceptions of institutional indifference,
and my disquiet over the role of front-line sentencing judges in the
wake of the Supreme Court of Canada decision in R v Anthony-
Cook.3

[4] On October 2, 2020, I sentenced Mr. Aklok according to the terms of

a joint submission4 which I found troubling. I imposed the joint
recommendation because I was constrained from rejecting it. I
advised the parties that I would articulate my concerns in a written
decision. This is the decision.

1 Addressing Gendered Violence against Inuit Women: A review of police policies and practices in
Inuit Nunangat, Pauktuutit Inuit Women of Canada and Dr. Elizabeth Comack, January 31, 2020
[“Pauktuutit Report”] at 4.
2 Most recently, R v Joe Nooshoota, court files 08-20-120, 08-20-276, October 1, 2020,

unreported.
3 2016 SCC 43 [“Anthony-Cook”].
4 A joint submission refers to “when Crown and defence counsel agree to recommend a particular

sentence to the judge, in exchange for the accused entering a guilty plea” (ibid at para 2).
 4

II. BACKGROUND TO THE TWO SETS OF CRIMINAL CHARGES

[5] In August 2020, the RCMP charged the offender, James Aklok, with
intimate partner violence against his then intimate partner. The first
incident happened in Iqaluit on August 2. Mr. Aklok was arrested
shortly afterwards and released on bail. Mr. Aklok’s bail required him,
among other things, to have no contact with his intimate partner. This
no-contact condition is routinely included in bail releases to try to
protect complainants.

[6] Nineteen days later, Mr. Aklok again assaulted his intimate partner.
This time, after Mr. Aklok’s arrest, a Justice of the Peace denied Mr.
Aklok bail and remanded him into pre-trial custody.

[7] The police charged Mr. Aklok with common assault against his
intimate partner for the August 2 incident.5 The police later charged
Mr. Aklok with breaching his no-contact bail condition6 and for
choking, strangling, or suffocating his intimate partner on August 21.7

[8] Mr. Aklok appeared before me in the Nunavut Court of Justice in

Iqaluit on September 22, 2020. Mr. Aklok sat alone in the courtroom;
his lawyer was on the telephone from Cambridge Bay. Defence
Counsel had not arranged for an Iqaluit Legal Aid colleague to attend
court with him.

[9] On September 22, Mr. Aklok pleaded guilty to the August 2 assault.
However, before he entered his pleas pertaining to the August 21
incident, the Crown amended the second Information. The Crown had
the Court delete the references to choking, strangling, or suffocating
and amend the charge from that more serious offence to the lesser
offence of common assault. Mr. Aklok then pleaded guilty to common
assault and the connected bail breach.

[10] This amendment by the Crown is significant. As we will see

momentarily, although Mr. Aklok admitted he choked his victim, the
Crown did not refer to that fact as an aggravating factor in sentencing.

5 Pursuant to Criminal Code of Canada, RSC 1985, c C-46 [“Criminal Code”], s. 266. Court file
23-20-113.
6 Pursuant to section 145(4)(a) of the Criminal Code, supra note 5. Court file 23-20-115.
7 Pursuant to section 267(c) of the Criminal Code, supra note 5.
 5

[11] Before starting Mr. Aklok’s sentencing hearing, I initiated the following
exchange:

THE COURT: What steps have been taken to provide her [the victim]
a chance to file a Victim Impact Statement?
Mr. WOOL: I’m just reviewing the file for that now, sir. Pardon me,
the files. I don’t see that this step has been taken on either file, sir. I
think part of the difficulty may have been, Ms. Paddock and I did
discuss this matter yesterday, and I learned yesterday that the
matters would be resolving, but it doesn’t appear that the step of
contacting Ms. [edited] for a Victim Impact Statement has been
taken. There is contact information within the file. I expect the
Court will want to put this to a later date to resolve the matter.8

[12] After discussion with counsel, I adjourned Mr. Aklok’s sentencing

hearing to September 25 to give the Crown an opportunity to contact
the victim. We resumed Mr. Aklok’s sentencing hearing on September
25. The Crown told me that Mr. Aklok’s victim had declined to provide
a Victim Impact Statement. We started the sentencing hearing but
reached another roadblock at the end of the Crown’s submissions
when I again adjourned the hearing, for reasons to follow, until
September 28.

III. THE FACTS

[13] I turn now to the facts of the case. On September 28 following a

common practice, the Crown read into the record only a brief set of
the facts summarised by the police, just enough information to ground
the charges. Given the violence exhibited here, this may have been
an appropriate case for the Crown to read the victim’s own words
from her statement into the record.

8 Transcript of Proceedings, September 22, 2020 at 4.

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A. August 2, 2020

[14] The Crown told me that the victim contacted the RCMP on August 2
to report that she had been assaulted by her boyfriend. The police
went to the residence. The victim told the police that she had told Mr.
Aklok that she was going out to give some money to her mother. Mr.
Aklok got mad. She went through the front door to put her shoes on.
Mr. Aklok began holding her to stop her from leaving. He punched
her. She was then in the living room where he head-butted her. He
put her on the floor where he started banging her head. She did not
know how many times he did that to her. He pulled her hair. He kicked
her twice on her back. He banged her head some more. He slapped
her. She told him she was leaving to take money to her mother. He
then got up and left the house.9

[15] After the Crown had finished, I asked him what time this incident had
happened, and he told me around 9:42 p.m. When I asked whether
alcohol was involved, he checked the file and said there was no
indication of alcohol noted in the file. At this point, Mr. Aklok
unexpectedly said that yes, he had been drinking that night.10

[16] Defence Counsel admitted the facts as alleged by the prosecution.

B. August 21, 2020

[17] The Crown then read the August 21 allegations into the record. The
police received “several” calls from the same victim around 1 a.m.
reporting that she had fled her home and was hiding near a black
truck beside the house. The victim told the police dispatcher that Mr.
Aklok was intoxicated and that he had choked her. She had to “sweet
talk him”11 to get him to stop. The police arrived and found the victim.
The police learned that Mr. Aklok had choked her around her neck
and “wouldn’t let her go”.12 The police observed a red mark near her
left eye and swelling around her mouth and lip. She was crying, visibly
shaken, and scared.13

9 Transcript of Proceedings, September 28, 2020 [“Sept 28 Transcript”] at 4.

10 Ibid at 5.
11 Ibid at 6.
12 Ibid.
13 Ibid.
 7

[18] The police looked for Mr. Aklok and found him passed out inside the
residence. He was intoxicated. The police arrested Mr. Aklok, who
began shouting and screaming obscenities. Mr. Aklok was “agitated,
aggressive and not making any sense in what he was saying”.14

[19] The Crown tendered into evidence three post-assault photographs of

the victim as well as copies of Mr. Aklok’s bail order and criminal
record. Mr. Aklok had been subject to a bail condition on August 21
not to have contact with his intimate partner. This bail condition was
one of the conditions Mr. Aklok was subject to in his judicial release
after the August 2 incident.

[20] Defence Counsel admitted these facts on behalf of Mr. Aklok.

IV. THE POSITIONS OF THE PARTIES

A. The Crown

[21] The Crown was brief. I repeat the Crown’s short sentencing
submission verbatim:

[Introduction] … Mr. Aklok comes before the Court with a record;

however, I note that his last entry on the record is 2012. It’s not clear
to me who the victims were of the assault in 2012. There’s nothing to
suggest that they took place in a domestic context. They’re simply the
fact of the assaults. There are a number of other matters going back to
2007, 2003 and 2000.
Mr. Aklok does not have a substantial record, however there are a
number of previous convictions for assault. I’m not sure what the
reason is for the gap in the record, but I’m sure that will be more fully
explained.
Mr. Aklok has fairly early guilty pleas in the matter. These matters
arise in August. We’re still in September. That is to his --- these
matters occurred in a domestic context. Crown takes that into account
in the position proposed to the Court as well and that position is that
on the first matter, matters arising August 2nd, the period of custody,
15 days; matters arising from August 21st on count 1, 30 days
consecutive; on count --- count 2, one day concurrent. The global
position that the Crown is proposing is one of 45 days. The Crown also
suggests a period of probation to follow for nine months …
[conditions mentioned]. Those are --- the submissions for the Crown.15

14 Ibid.
15 Ibid at 8.
 8

[22] The Crown could not tell me whether any of Mr. Aklok’s prior
convictions for violence involved an intimate partner, so I adjourned
the hearing’s completion again, this time to October 2, but first I heard
from Defence Counsel and Mr. Aklok.

B. The Defence

[23] Defence Counsel told me on September 28 that this was “a joint

position”. Mr. Aklok, she said, “feels significant remorse”.16 Mr. Aklok’s
mother was on the telephone. There is an eight-year gap in his
record. Defence Counsel acknowledged the presence of “significant
aggravating factors especially with respect to this being a domestic
incident”.17 The victim was “an intimate partner of his at the time, not a
long-term partner”.18 Defence acknowledged that denunciation and
deterrence must be the “primary consideration of the Court”. Defence
Counsel continued by saying that deterrence is also met by “the
stigma from the nature of those proceedings, especially in smaller
communities”.19 She referred me to section 718.2(d) and the
requirement that I impose the least restrictive sentence on this
Indigenous offender.

[24] Neither the Crown nor Defence Counsel referred the Court to any
case law to support their joint submission.

V. MR. AKLOK

[25] I will now say a few words about the offender. Neither party requested
a Pre-Sentence Report, so Defence Counsel was my principal source
of information.

16 Ibid at 11.
17 Ibid.
18 Ibid.
19 Ibid at 11-12.
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A. Mr. Aklok’s personal circumstances

[26] Mr. Aklok is a 39-year-old Inuk from Kugluktuk. He has lived in

Calgary, where he held various jobs through a temp agency. He
struggled to find housing and a full-time job there, but I was told the
experience taught him independence. He spent time in homeless
shelters. Despite this experience, he plans to return to Calgary where
he believes it will be easier for him to manage “his alcoholism” away
from Kugluktuk’s triggers.20

[27] Mr. Aklok experienced “significant violence all through his childhood”.
His memories include watching his father beat up and choke his
mother, leaving her bruised, swollen, and helpless on the floor. Mr.
Aklok was eight or nine years old at the time. Mr. Aklok also
experienced physical abuse from his father. He feels “significant
remorse” and knows the victim “did not deserve to be treated like
that”.21 He was often “bullied and ostracised at school.22

[28] Mr. Aklok addressed the Court. He said his father’s suicide was “a
really big thing in my life”.

… There was a lot of violence [at home]. There was a lot of

drinking. When I did go to school there was a lot of suicide … I just
never had self-esteem that I should have had. I was easily giving up …
I quit school … I didn’t want to be at home anymore. I tried so many
times to move away … Watching my mom being treated that way
growing up, it was shocking to me because I couldn’t do anything
about it. I couldn’t talk to anyone about it … It just sort of got pushed
aside in my life until I got older, and I wasn’t dealing with it … I’m
sorry to my mom, and I’m sorry to [the victim]. My dad had a lengthy
history with the court with going to jail and with drinking.23

B. Mr. Aklok’s criminal record

[29] Criminal records play a significant role in sentencing. Common sense

dictates that a first-time offender who commits a less serious offence
will be treated more leniently that a repeat offender who has
committed serious violence against his intimate partner.

20 Ibid at 13.
21 Ibid at 13-15.
22 Ibid at 15.
23 Ibid at 17-18.
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[30] Mr. Aklok is a repeat offender. He has a criminal record which

contains 13 entries between 2000 and 2012. His criminal record
contains entries for the following violent offences:
07/04/2003 Assault, s. 266 60-day conditional sentence
order (CSO), probation
02/02/2007 Sexual assault s. 271 18-month CSO
30/10/2007 Breached CSO CSO terminated
Assault s. 266 1 day in jail
26/06/2012 Assault s. 266 3 months jail, probation 3 years
26/06/2012 Assault s. 266 3 months jail, probation 3 years

[31] On October 2nd, the Crown reported that the two 2012 assault
convictions had, in fact, involved at least one intimate partner.

VI. THE SHIFTING FRAMEWORK, PURPOSE, OBJECTIVES, AND

PRINCIPLES OF SENTENCING

A. The shifting framework of sentencing

[32] Parliament has codified our national sentencing laws in Part XXIII of
the Criminal Code. In the process, Parliament—after study in
committee and Parliamentary debate—legislated that the ultimate
responsibility for sentencing an offender lies with the trial judge:

606 (1) A court may accept a plea of guilty only if it is satisfied that
…
(b) the accused understands
…
(iii) that the court is not bound by any agreement made
between the accused and the prosecutor…24

[33] Up until Anthony-Cook, judges struggled with how to reconcile their

ultimate responsibility for the sentences they imposed with the need
to respect and implement appropriate joint submissions. As I shall
discuss later, the Supreme Court of Canada decided the issue in
2016.

24 Criminal Code, supra note 5, s. 606(1.1)(iii).

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B. The purpose and objectives of sentencing

[34] Parliament set of the purpose and objectives of sentencing in the

following terms:

718 The fundamental purpose of sentencing is to protect society and to

contribute, along with crime prevention initiatives, to respect for
the law and the maintenance of a just, peaceful and safe society by
imposing just sanctions that have one or more of the following
objectives:
a) to denounce unlawful conduct and the harm done to victims or
to the community that is caused by unlawful conduct;
b) to deter the offender and other persons from committing
offences;
c) to separate offenders from society, where necessary;
d) to assist in rehabilitating offenders;
e) to provide reparations for harm done to victims or to the
community; and
f) to promote a sense of responsibility in offenders, and
acknowledgement of the harm done to victims of the
community.25

[35] In 2019, Parliament added a further sentencing objective in section

718.04, which is particularly relevant to this case:

718.04 When a court imposes a sentence for an offence that involved

the abuse of a person who is vulnerable because of personal
circumstances — including because the person is Aboriginal and
female — the court shall give primary consideration to the
objectives of denunciation and deterrence of the conduct that forms
the basis of the offence.26 (emphasis added)

C. The principles of sentencing

[36] I now turn to the principles of sentencing which Parliament has told
judges it is their responsibility to apply. I will refer to the principles in
the same order as they appear in the Criminal Code.

25 Ibid, s. 718.
26 Ibid, s. 718.04.
 12

[37] First and foremost, punishment must fit the offender and the crime.
This is called proportionality, which is enshrined as sentencing’s
“fundamental principle”:

718.1 A sentence must be proportionate to the gravity of the offence

and the degree of responsibility of the offender.27

[38] The sentence must also account for the presence of relevant
aggravating or mitigating circumstances.28 Aggravating factors work to
increase the sentence. Mitigating factors work to lessen the sentence.
In this case of intimate partner violence, Parliament has decreed the
following factors to be aggravating ones:

718.2 …
(a) …
(ii) evidence that the offender, in committing the offence,
abused the offender’s intimate partner or a member of
the victim or the offender’s family,
…
(iii.1) evidence that the offence had a significant impact on
the victim, considering their age and other personal
circumstances, including their health and financial
situation…29

[39] The sentence must apply the parity principle, which holds that similar
offenders ought to receive similar sentences for similar crimes
committed in similar circumstances;30 the principle of judicial restraint,
which directs that the sentence must not be unduly harsh or long;31
and the totality principle, which says the sentence must impose the
least restrictive sanction which is appropriate in all the
circumstances.32

27 Ibid, s. 718.1.
28 Ibid, s. 718.2(a).
29 Ibid, s. 718.2(a)(ii) and (iii.1)
30 Ibid, s. 718.2(b).
31 Ibid, s. 718.2(c).
32 Ibid, s. 718.2(d).
 13

[40] The sentence must also apply the following principle, which pertains
to Mr. Aklok and all Inuit offenders. Sentencing judges are obliged to
consider

718.2 …
…
(e) all available sanctions, other than imprisonment, that are
reasonable in the circumstances and consistent with the harm
done to victims or to the community should be considered for
all offenders, with particular attention to the circumstances
of Aboriginal offenders.33

[41] In this context, the sentence must account for the effects of historic
and systemic colonialism and inter-generational trauma experienced
by Inuit. These are the Gladue factors articulated by the Supreme
Court of Canada in R v Gladue and later reinforced in R v Ipeelee.34

[42] In Canada, a sentencing judge is required to conduct an

individualised sentencing hearing. Every offender, and every case, is
unique. Ranges of sentences35 are valuable to help the sentencing
judge satisfy the parity principle; but no two cases are identical, and
they must be reconsidered as the law and society’s understanding of
the issue modernise. In my view, sentencing is a front-line judge’s
most challenging and difficult responsibility.

33 Ibid, s. 718.2(e).
34 R v Gladue, [1999] 1 SCR 688, 133 CCC (3d) 385; R v Ipeelee, [2012] 1 SCR 433, 280 CCC
(3d) 265.
35 Sentencing ranges for criminal offences may be discerned in those cases which have been

reported. Nunavut is a recent jurisdiction, and the vast majority of its decisions are oral and not
readily available for future reference.
 14

VII. ANALYSIS

A. Joint submissions must conform to the purpose, objectives, and

principles of sentencing

[43] Parliament has not exempted joint submissions from the need to
conform to the purpose, objectives, and principles of sentencing. The
Supreme Court of Canada in Anthony-Cook placed a clear legal
responsibility on counsel, when presenting a joint submission to the
court, to justify their recommendation:

… when faced with a contentious joint submission, trial judges will

undoubtedly want to know about the circumstances leading to the joint
submission – and in particular, any benefits obtained by the Crown or
concessions made by the accused. The greater the benefits obtained by
the Crown, and the more concessions made by the accused, the more
likely it is that the trial judge should accept the joint submission, even
though it may appear to be unduly lenient.36

[44] In my view, the joint submission I imposed was unduly lenient, and
counsel failed to justify their leniency. For the reasons which follow, I
viewed the joint submission as bringing “the administration of justice
into disrepute” in Nunavut.37

B. Problems with the joint submission

(i) Intimate partner violence

[45] First, the joint submission in this case failed adequately to account for
or acknowledge the reality of intimate partner violence in Nunavut.

36 Anthony-Cook, supra note 3 at para 53.

37 Ibid at para 5.
 15

[46] Pauktuutit’s 2020 report bears repeating:

Gendered violence against Inuit women is a problem of massive

proportions. Women in Nunavut are the victims of violent crime at a
rate more than 13 times higher than the rate for women in Canada as a
whole. The risk of a women being sexually assaulted in Nunavut is 12
times greater than the provincial/territorial average. In 2016, Nunavut
had the highest rate of female victims of police-reported family
violence in Canada …38

These are cold clinical facts; the lived reality is a nightmare.

Sentencing ought to reflect that reality.

[47] There is persuasive legal authority that the frequency or prevalence of

crime in a community is not an aggravating factor. However,
sentencing judges are entitled to consider the prevalence of intimate
partner violence, along with other factors, when imposing a fit and just
sentence.39

[48] The violence endured by so many Inuit women forms a necessary

backdrop to determining an appropriate judicial sanction in this case.
As this Court said earlier this year in R v Iqalukjuaq:

Late last year, Parliament turned its attention to the unique position of
some Indigenous victims. Effective 19 September 2019 sentencing
judges are required – in the case of intimate partner violence – to
“consider the increased vulnerability of female persons who are
victims, giving particular attention to the circumstances of Aboriginal
female victims…” The intergenerational effects of colonialism have
not only contributed to the staggeringly high rates of Indigenous
offending … The impact of colonialism also gave rise to the very same
intergenerational effects which have left all Inuit women – and not just
intimate partners – in a particularly vulnerable position in society. In
my view, this reality ought to inform the deliberations of a Nunavut
sentencing judge when sentencing an offender who has victimised an
Inuk woman.40

This quote, of course, is a reference to s. 718.04 of the Criminal

Code.

38 Pauktuutit Report supra note 1 at 4.

39 See R v Lacasse, 2015 SCC 64 at para 90.
40 2020 NUCJ 15 at paras 33 and 35.
 16

[49] This approach has been recently affirmed by the Quebec Court of
Appeal in R v L.P.41 In L.P., the Quebec Court of Appeal increased
the sentence imposed by the trial judge in a case of intimate partner
violence from a provincial jail term to a federal penitentiary term.

[50] L.P., of course, is not binding appellate authority in Nunavut.

However, L.P. arose in the context of Nunavik’s Inuit community,
which has close ties to nearby Nunavut communities. The majority in
L.P. considered and weighed all the relevant and sometimes
competing considerations which must be balanced and weighed when
sentencing an Indigenous offender. In my view, the principles
articulated in L.P. are persuasive, and they ought to be applied
henceforth by sentencing judges in Nunavut.

[51] In Mr. Aklok’s case, neither the Crown nor Defence Counsel
demonstrated how the reality of intimate partner violence was
adequately addressed by their lenient joint submission.

(ii) The perception of institutional indifference

[52] I turn now to the perception of institutional indifference which arose in

this case. First, I will discuss the role victims may play in the
sentencing process. Then I will examine this case in the context of
Nunavut’s high rates of intimate partner violence.

1 The prosecution

[53] This prosecution failed to demonstrate an understanding of the social

harm inflicted on communities and victims by intimate partner
violence, the real harm experienced by Mr. Aklok’s victim, or the role
victims have in addressing it.

41 2020 QCCA 1239 at para 98 [“L.P.”].

 17

2 Victim impact statements in Nunavut

[54] In 2015, Parliament enacted Bill C-32, the Canadian Victims Bill of
Rights. The purpose of the legislation can be found in the law’s
preamble which states, in part:

Whereas crime has a harmful impact on victims and society;

Whereas victims of crime and their families deserve to be treated with
courtesy, compassion and respect including respect for their
dignity;
Whereas it is important that victims’ rights be considered throughout
the criminal justice system;
Whereas victims of crime have rights that are guaranteed by the
Canadian Charter of Rights and Freedoms.42

[55] Among other things, this legislation established the right of victims of
crime to participate in the sentencing process by filing, or reading
aloud in court, a victim impact statement.43 Section 722(1) of the
Criminal Code reads:

722 (1) … the court shall consider any statement of a victim prepared
in accordance with this section and filed with the court describing
the physical or emotional harm, property damage or economic loss
suffered by the victim as a result of the commission of the offence
and the impact of the offence on the victim.44

[56] Parliament also mandated an ongoing supervisory role for judges to

ensure that this right is respected. Section 722(2) continues:

722 (2) As soon as feasible after a finding of guilt and in any event
before imposing sentence, the court shall inquire of the prosecutor
if reasonable steps have been taken to provide the victim with an
opportunity to prepare a statement referred to in subsection 1.45
(emphasis added)

[57] However, more than five years after the Victims Bill of Rights came
into effect, the Crown continues regularly to ask this Court to
sentence offenders without victims having been informed of their right
to be heard.

42 SC 2015, c 13, s 2.
43 Criminal Code, supra note 5, s. 722(1).
44 Ibid.
45 Ibid.
 18

[58] As I noted above, I adjourned this case46 to allow the Crown to

contact the victim. This Court requires prosecutors to contact victims
regardless of whether the accused has entered an early guilty plea,
whether the victim has a telephone, or whether the police have
provided contact information for the victim.47 The police and the
prosecution have a statutory duty to establish a protocol ensuring that
victims of crime receive early notice of their rights.

3 The Crown’s submissions

[59] The Crown in Mr. Aklok’s case endorsed a joint submission with no
attempt to justify why the parties had decided that Mr. Aklok merited
an extremely lenient sentence or why the presiding judge ought
automatically to impose it.

[60] The final report of the National Inquiry into Murdered and Missing
Indigenous Women and Girls underscores the importance of this
requirement to justify joint submissions:

There is a lack of transparency regarding plea negotiations and the

exercise of prosecutorial discretion generally, which further
contributes to Indigenous peoples’ distrust of the justice system and a
sense that Indigenous victims of crime are devalued.48

[61] In Mr. Aklok’s case, the lenient sentencing submission required

justification. This justification ought to have included a full
appreciation of Mr. Aklok’s criminal past and a detailed explanation of
how the submission conformed to the purpose, objectives, and
principles of sentencing in the circumstances of this case.

46 Ibid, s. 722(3). The section provides “On application of the prosecutor or a victim or on its own
motion, the court may adjourn the proceedings to permit the victim to prepare a statement
referred to in subsection (1) or to present evidence in accordance with subsection (9), if the court
is satisfied that the adjournment would not interfere with the proper administration of justice”. It
would be a rare case where such an adjournment would not be granted.
47 These are the three most common reasons given by prosecutors in Nunavut for not having

contacted the victim.

48 Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and

Murdered Indigenous Women and Girls, 2019, at 719 [“The MMIWG Final Report”].
 19

[62] The Supreme Court of Canada has told the legal profession and the
judiciary in clear and unambiguous terms that “sentencing cannot be
done in the dark”.49 Lawyers have a legal duty “to amply justify” joint
submissions with reference to all the relevant circumstances.50
Judges should not have to seek out key material facts. Crown
prosecutors (and Defence Counsel) must be prepared to present
them and to justify joint submissions.

[63] In this case, I found several omissions from the Crown’s submissions
to be troubling. For example, the Crown did not mention that
Parliament has mandated the primacy of the objectives of
denunciation and deterrence, both general and specific, to
perpetrators of intimate partner violence such as Mr. Aklok; the Crown
did not refer to the fundamental principle of sentencing,
proportionality; the Crown did not mention Parliament’s direction in
section 718.04 that the victim’s vulnerability must be considered; the
Crown did not know whether any of Mr. Aklok’s prior convictions
involved an intimate partner; and the Crown did not demonstrate how
the joint submission addressed the prevalence of intimate partner
violence, as well as the harm done to the victim and community.

[64] The joint submission endorsed by the Crown also failed adequately to
address rehabilitation. Clearly, there was and continues to be a need
to seek this 39-year-old male Inuk’s rehabilitation. However, the joint
submission only called for me to impose a short nine months of
probation, little time for Mr. Aklok to wrestle with – under Court
supervision – his lifelong issues of dysfunction and alcoholism.

[65] Defence Counsel told me:

When he’s released from custody, he will be returning to Kugluktuk

although he understands this is a very difficult place for him to live.
He’ll be looking to move again; he thinks probably to Calgary as it’s a
bit healthier for him there … he doesn’t have the triggers from the
trauma of his background that are presently the case in Kugluktuk.51

49 Anthony-Cook, supra note 1 at para 54.

50 Ibid.
51 Sept 28 Transcript, supra note 9 at 13.
 20

[66] Mr. Aklok thinks he will probably move back to Calgary where he
struggled in the past to find full-time employment and shelter.
Whether Mr. Aklok stays in Kugluktuk or moves to Calgary, he will
require the long-term supervision and support of a lengthy probation
order.

[67] The joint submission also did not address many of the aggravating
factors present in this case. As I noted earlier, Parliament has
mandated that courts and lawyers consider aggravating and
mitigating factors. Aggravating factors work to increase sentences.
Mitigating factors work to lessen sentences.52 There are many
aggravating factors in this case, only two of which were referred to by
the Crown:

1. These matters involved intimate partner violence;53

2. Mr. Aklok had abused at least one intimate partner in the past;
3. Mr. Aklok’s violence toward his victim was serious;
4. Mr. Aklok’s victim was a vulnerable female Inuk;54
5. Mr. Aklok assaulted his intimate partner again only 19 days
after the first assault;
6. Mr. Aklok breached his bail condition not to have contact with
his victim when he assaulted her the second time;
7. Mr. Aklok was extremely intoxicated during the second
assault. He decided to drink knowing he could not handle it
responsibly;55 and
8. Mr. Aklok choked his victim during the second assault.

[68] The eighth aggravating factor above underscores the concerns I had
with the Crown’s position. The plea negotiations here resulted in the
Crown permitting Mr. Aklok to plead guilty to the lesser offence of
common assault when the admitted facts clearly supported the
original and more serious choking charge laid by the police. I would at
least have expected the Crown to allege the choking to be an
aggravating factor to the common assault. This failure by the Crown
to allege the admitted choking as an aggravating factor minimised the
extent of the violence, its impact on the victim, and Mr. Aklok’s
responsibility for his criminal actions.

52 Criminal Code, supra note 5, s. 718.2(a).

53 Ibid, s. 718.2(a)(ii).
54 Ibid, s. 718.04.
55 L.P., supra note 41 at para 112.
 21

[69] The joint submission did nothing to help dispel the perception that our
justice system devalues the lives of Inuit victims of crime. I am certain
this omission would alarm and dismay all informed and reasonable
Nunavummiut.56

[70] The Crown properly noted the early guilty plea and the gap in Mr.
Aklok’s criminal record in its submission. These are indeed two
mitigating factors to be weighed in the sentencing balance. However,
the joint submission placed too much weight on these two mitigating
factors. The integrity of the joint submission suffered due to the
Crown’s incomplete grasp of the facts and its reliance on a file which
did not contain all the material and necessary details.

[71] A joint submission that does not appropriately address aggravating

factors runs the real risk of reinforcing the perception, as described by
Pauktuutit and the MMIWG Final Report, that there is little justice to
be found for Inuit women in the criminal justice system. Again, I turn
to the MMIWG Final Report:

The language used in the Canadian justice system, especially the

language used in the Criminal Code and in criminal justice
proceedings, minimizes the nature and severity of violent offences and
serves to minimize the responsibility of the offender and the impact of
the crime.57

In my view, the overall joint submission in Mr. Aklok’s case minimized

the nature and severity of his violent offences and served to minimize
his responsibility as well as the impact of the crimes on his victim.58

[72] As I noted earlier, in L.P., the Quebec Court of Appeal increased the
sentence imposed by the trial judge from a provincial jail term to a
federal penitentiary term. In so doing, the court expressly gave
meaning to Parliament’s direction that sentencing judges “shall give
primary consideration to the objectives of denunciation and
deterrence” in these cases.59

56 To give one recent example, social media was set aflame in the aftermath of R v Amaaq, 2020
NUCA 11.
57 The MMIWG Final Report, supra note 48 at 717.
58 R v Jaypoody, 2018 NUCJ 36 provides another example of this minimisation of intimate partner

violence and its impact on victims.

59 Criminal Code, supra note 5, s. 718.04.
 22

[73] L.P. is a clear signal that the thinking of sentencing judges – and the
lawyers who make sentencing recommendations – must evolve to
conform to Parliament’s directions. In many cases of intimate partner
violence, this will mean higher sentence recommendations and higher
sentences in Nunavut than were imposed in the past.

[74] The Supreme Court of Canada discussed how courts may depart
from previous precedent in a principled manner in R v Friesen, an
April 2020 decision involving child sexual abuse:

Courts can and sometimes need to depart from prior precedents and
sentencing ranges in order to impose a proportionate sentence.
Sentencing ranges are not “straitjackets” but are instead “historical
portraits” (Lacasse, at para. 57). Accordingly, as this court recognized
in Lacasse, sentences can and should depart from prior sentencing
ranges when Parliament raises the maximum sentence for an offence
and society’s understanding of the severity of the harm arising from
that offence increases (paras. 62-64 and 74).60

[75] Parliament did not increase sentencing maximums for intimate partner
violence. However, in s. 718.04 Parliament did give expression to our
growing understanding of the severe impact violent crime has on
Indigenous victims. In doing so, Parliament gave a clear direction to
all justice system participants. Going forward, we have a duty to
reconsider the proportionality principle and how it should be applied in
a way that is “consistent with the harm done to victims or to the
community”.61 This, too, is one of the lessons from L.P.

4 The Defence

[76] I turn now to the Defence. Defence Counsel, in her brief submissions,
referred in passing to denunciation, deterrence, and the aggravating
effect of intimate partner violence on the sentence. Defence Counsel
submitted that a criminal record and the social stigma of a conviction
would act as deterrents. However, Defence Counsel also submitted
that “the victim was an intimate partner of [Mr. Aklok’s] at the time, not
a long term partner”.62 The length of a relationship in which intimate
partner violence occurred is not a relevant factor.

60 R v Friesen, 2020 SCC 9 at para 108.

61 Criminal Code, supra note 5, s. 718.2(e).
62 Sept 28 Transcript, supra note 9 at 11.
 23

5 The irony of Anthony-Cook

[77] This is clearly a case where Mr. Aklok ought to have been separated
from society for a jail term proportionate to the seriousness of his two
violent crimes against his intimate Indigenous partner and his high
degree of responsibility.63 That I was, as the judge responsible for the
sentence, unable lawfully to resist this joint submission is the subject
of the next section of my decision.

[78] The irony of Anthony-Cook is that it has been courts that have denied
front-line judges the judicial discretion granted them by Parliament.

[79] Thirty-five years ago, plea negotiations between Crown and Defence
Counsel were not universally well regarded.64 We now openly
acknowledge that plea negotiations play an important and necessary
role in our criminal justice system.

[80] Canada’s criminal law is national in scope. Unsurprisingly, in a

country as large and diverse as Canada, different appeal courts over
the years devised different approaches to joint submissions.65 The
legal landscape changed in 2016 with Anthony-Cook when the
Supreme Court settled the test judges are to apply when considering
joint submissions.

[81] In Anthony-Cook, the Supreme Court established a “stringent” public

interest test66 to guide front-line judges when they consider a
“contentious” joint submission. At the very beginning of the decision,
Moldaver J on behalf of the court restated and reinforced Parliament’s
direction that “joint submissions on sentence are not sacrosanct. Trial
judges may depart from them”.67

63 Criminal Code, supra note 5, s. 718(c).

64 I was discouraged as a rookie prosecutor from negotiating plea deals, and if I did do so I was
told I ought to do it discreetly.
65 Anthony-Cook, supra note 3 at paras 25-30, identified three different appellate approaches

across the country, as well as a fourth possible test which was raised before the court.
66 Ibid at para 13.
67 Ibid at para 3.
 24

[82] Two paragraphs later, the court expressed the new standardised rule
going forward:

The test … is whether the proposed sentence would bring the

administration of justice into disrepute, or would otherwise be contrary
to the public interest.68

[83] This indeed is a stringent test. In fact, the court went on later to raise
the bar further.

Rejection [of a joint submission by a judge] 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
all the relevant circumstances, including the importance of promoting
certainty in resolution discussions, to believe that the proper
functioning of the justice system had broken down. This is an
undeniably high standard – and for good reasons …”69

[84] Despite this “undeniably high standard”, the court returned in

Anthony-Cook to their initial point, that joint submissions are not
sacrosanct, by providing detailed guidelines for front-line judges who
depart from them. These detailed guidelines seemed to suggest that
the Supreme Court endorsed the view that front-line judges still
retained at least some of the judicial discretion and responsibility
bestowed upon them by Parliament. However, appeal courts,
including the Nunavut Court of Appeal, interpreted the public interest
test very stringently indeed.

6 The “so unhinged” test

[85] Appellate courts have not embraced the Supreme Court’s guidance
for trial judges in Anthony-Cook. In accordance with appellate
interpretation of Anthony-Cook, front-line judges—to reject a joint
submission—must now find find that the joint submission is so
unhinged that the reasonable and informed person would conclude
that the justice system has broken down.70 The “so unhinged” test is
all that remains of Anthony-Cook’s guidelines to trial judges.

68 Ibid at para 5.
69 Ibid at para 34.
70 See R v J.B., 2018 NLPC 1318A0036, a decision of Judge Wayne Gorman.
 25

[86] As noted above, Moldaver J wrote in Anthony-Cook that the “so

unhinged” test “is an undeniably high standard”. In my respectful view,
it is an impossible standard to apply. I repeat and endorse the
following comment by Gorman J of the Provincial Court of
Newfoundland and Labrador in R v J.B.:

It is hard to imagine any single sentencing submission ever having this

effect and what do the words a “break down in the proper functioning
of the criminal justice system” mean?71

[87] Mr. Aklok’s case highlights the essential problems with the “so
unhinged” test. First, the very term “so unhinged” implies a standard
of negligence by counsel so extreme that I have never seen despite
spending more than thirty years working in the criminal justice system.
Second, how can it be said that the justice system is not functioning
“properly” and has “broken down” when Crown and Defence are
represented by counsel in a routine court sitting presided over by an
impartial judge? Despite the participation of counsel and the judge,
the joint submission in this case failed to deliver justice.

[88] A judge’s inability to impose a just and principled sentence constitutes

a breakdown in the justice system.

[89] This case is an example of the real-world effect that the “so unhinged”
test can bring about. Reasonable and informed Nunavummiut would
conclude, as I have, that the justice system broke down in Mr. Aklok’s
case. That breakdown ought to have permitted me to decline to
implement the joint submission. However, I felt constrained from
rejecting the joint submission because two recent appellate decisions
in Nunavut have expressly endorsed the “so unhinged” test.72 It is
indeed unfortunate that the Court of Appeal has not provided
constructive guidance to front-line judges on how to square this circle.

71 Ibid at para 80.

72 See R v Kippomee, 2019 NUCA 03 at para 45 and R v Kuliktana, 2020 NUCA 7 at para 84.
 26

[90] In my view, a properly conducted joint submission must be based

upon rigorous consideration by counsel of all the circumstances and
sentencing guidelines relevant to the case. In cases where it ought to
be obvious that the joint submission must be justified amply, counsel
must be prepared to do so in their submissions to the court. In an
ideal world, judges would confidently rely on lawyers to conduct all
sentencing – not just joint submissions – in the clear light of day and
following thorough pre-negotiation preparation. We do not live in an
ideal world.

[91] An independent judiciary is the last line of defence for everyone in our
free and democratic society. As Parliament has entrusted judges with
the ultimate responsibility for the sentences they impose, judges must
be vigilant to ensure that justice is done. In Nunavut, at least, that
vigilance may require judges to engage with counsel to ensure that all
relevant circumstances and principles have been considered and
appropriately applied in joint submissions.

VIII. CONCLUSION

[92] Inuit women, and all Nunavummiut, deserve a justice system that
meaningfully addresses gendered violence. It is troubling that our
courts have not been given the tools, including fuller judicial
sentencing discretion, to do so.

[93] There is a need and a role for Parliament to reopen debate on this
vitally important aspect of our criminal justice system.

[94] Although I was troubled, I was bound to follow appellate direction, and
I imposed the joint submission.

Dated at the City of Iqaluit this 2nd day of October, 2020

___________________
Justice P. Bychok
Nunavut Court of Justice