Canadian Criminal Appeals - Week of June 22, 2020

Cases:

With circumstantial evidence the Crown only has to negative reasonable possibilities “but certainly does not need to negative every possible conjecture which might be consistent with the innocence of the accused”: see R v Lehner, 2020 ABCA 248 at 28 & R v Jackson, 2020 ONCA 407, two cases from this week applying the principle “rearticulated” in Villaroman. In Lehner, the appellants were - more or less - closely linked with two residential addresses, respectively, and were found to be in constructive possession of the illegal items located therein. In Jackson, the appellant was present in a ‘get away’ vehicle following an apparent break and enter and dog-napping at the complainant’s residence, and had also been involved in a prior lawful attempt to gain access to the dog, Carl. The appellants had not testified at trial and while they were under no obligation to do so, Lehner suggests that the absence of defence evidence can risk leaving the trier of fact with an insufficient factual foundation from which to draw alternative reasonable inferences consistent with innocence (Lehner, at 22-23;, citing R v Banayos, 2018 MBCA 86 at 24, leave to appeal to SCC refused).

Some might wonder how this squares with the tricky holding in Villaroman that “inferences consistent with innocence do not have to arise from proven facts” (see: 35-43). I think it squares: sometimes there will be no alternative reasonable inferences arising out of the Crown’s case, when “viewed logically and in light of human experience”. While “the line between plausible theory and speculation is not always easy to draw”, Lehner and Jackson concluded that the appellants’ innocent theories or explanations were “speculative”, and were properly rejected at trial (Lehner, at 26; Jackson, at 6 & 9). In all but in name both courts evoke the holding in R v George-Nurse, 2019 SCC 12 at 2 that, where there is a strong case to answer, courts of appeal can “consider the appellant’s silence in assessing and ultimately rejecting his unreasonable verdict argument” (explicitly in Lehner, at 22; implicitly in Jackson, at 6 & 9). NB: As a dog-lover and owner, the court’s statement in Jackson - “He has never recovered Carl” - struck me as poetically sad (2).

While not decided this week, these are from earlier this month: R v Itturiligaq, 2020 NUCA 6 & R v Ookowt, 2020 NUCA 5. In both cases, the NUCA (per Schutz JA, from the Court of Appeal for Alberta), reversed the trial judges’ determinations that the 4-year MMS for intentionally discharging a firearm at a place was contrary to s. 12 of the Charter. Mr. Itturiligaq, a 24-year old Inuk man and traditional hunter with no criminal record, entered an early guilty plea and admitted that because his girlfriend refused to leave with him from some gathering he later fired a single shot at a house, which entered and exited the roof above the front door. There were four people inside the house, including his girlfriend; no one was injured (12). Mr. Itturiligaq received a jail sentence of “slightly less than two years, followed by two years probation” (3). Mr. Ookowt, a 19-year old Inuit man and traditional hunter with no criminal record, entered a guilt plea and admitted that, while in an highly intoxicated state he was attacked by an individual and later retaliated by firing a single shot into a window of that individual’s residence, narrowly missing another occupant; no one was injured and Mr. Ookowt “was not aware if anyone was in the house” (12-15). Mr. Ookowt received a two year (less a day) jail sentence and one year of probation (27).

I have little difficultly accepting that Justice Bychok (in Itturiligaq) made errors in principle, including in relation to his emphasis on “Inuit social justice concepts” in the absence of an evidentiary foundation: “On these matters, no one asked for the advice of the Inuit community, or for direct evidence from those tasked with interpreting and applying Inuit Qaujimajatuqangit” (74-79). While I am less convinced that Justice Johnson “underemphasized Mr. Ookowt’s high moral blameworthiness for this offence, and overemphasized intoxication, bullying and Gladue factors”, let’s assume that he too erred (37). But I am far from convinced that the NUCA should have intervened and upheld the constitutionality of these MMS; if the Charter is not going to protect people from the routine imposition of excessive sentences, Parliament should.

Indeed, in neither case did the NUCA actually undertake the discomforting task of insisting that these offenders actually serve the 4-year MMS that it imposed (see Itturiligaq at 99; Ookowt at 95). Perhaps finding comfort in abstraction, the NUCA unhesitatingly endorsed a punitive sentencing response to these “homicide[s] waiting to happen”: “Significant penitentiary time is necessary to reflect society’s denunciation and condemnation of such conduct…” and “anything less than a penitentiary sentence in this matter sends the wrong message” (Itturiligaq at 7 & 88; Ookowt at 7 & 77, respectively). I question the fealty to significant periods of incarceration as the appropriate response to risky and dysfunctional behaviour that does not cause injury, however serious, in isolated Indigenous communities of Canada’s far north. Respectfully, I wonder as well whether more deference is owed to those judges who actually live and work in the north: R v Ayalik, 1960 CanLII 559 (NWTCA).

NB: The only non-Albertan judge on these matters was Justice Shaner of the Supreme Court of the Northwest Territories, in Yellowknife. Far from atypical, it is usually the case that most, if not all, members of a panel of the NUCA are from the ABCA. Indeed, the only appellate judges currently on the roster for the NUCA are from the ABCA. This is likely a consequence of Nunavut’s shared political history with the NWT, but it is not because of legislative constraint. Unlike section 16 of the Judicature Act in the NWT, which only permits appellate judges from the ABCA and the SKCA (although practically speaking, it has been years since a judge from the SKCA sat on the NWTCA), section 17 of the Judicature Act in Nunavut permits appellate judges from “any court of appeal of any province or territory”. Section 3 of the Court of Appeal Act in the Yukon permits appellate judges from only the BCCA, arguably a more lenient court on sentencing matters generally. All of the territorial courts of appeal can also draw from the justices of the northern superior courts.

In the NWT, for instance, one problematic outcome of this state of affairs is that sentencing decisions from the ABCA are considered more persuasive than sentencing decisions from other Canadian appellate courts or even from the more similar (demographically, socially, culturally) northern jurisdictions: R v Gully, 2017 NWTSC 42 at 30. Indeed, Alberta’s “starting point” methodology has been routinely adopted in the NWT without comment: from R v Naqitarvik (1986), 26 CCC (3d) 193 at p. 198 (NWTCA) to R v Bernarde, 2018 NWTSC 27 at 55-56. Contrast this to the critical approach taken in the Yukon and Nunavut: R v White, 2008 YKSC 34; R v J.Q., 2015 NUCJ 9 at 31-38.

It is at least arguable that the principle of parity should point NWT courts more towards sentencing precedent from Nunavut and the Yukon. In so doing, the court is more likely to find similar offenders and circumstances. After all, it would be troubling that a Gwich’in offender in Fort McPherson, NT is treated more harshly than a comparable Gwich’in offender nearby in the Yukon, or an Inuit offender from Ulukhaktok, NT more harshly than an comparable offender from same remote island but in Cambridge Bay, NU. Albeit in a very different context, the Supreme Court recently recognized that aboriginal rights should not be prejudiced in Canadian courts because the right holders straddle multiple Canadian jurisdictions: Newfoundland and Labrador (AG) v Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 at ¶49-52.

Justice Del Atwood well-expresses an uncontroversial view in Canadian sentencing law: “the court’s focus ought to be closer to home; not because of come-from-away parochialism […] but because cases decided in this province are more likely to be attuned to the criminogenic circumstances that prevail here, and offer a better guide to an appropriate range of sentence, given that the locale of an offence is an integral part of the circumstances of that offence”: R v Fraser, 2016 NSPC 49 at 31. See also: R v Ramage, 2010 ONCA 488 at 72 per Doherty JA. Let’s take heed. A modest proposal: there should be a Court of Appeal for the Northern Territories consisting of three full-time resident judges, one from each territory, and otherwise supported by ad hoc judges from the northern superior courts and the provincial appellate courts. After all, even PEI has three resident appellate judges!

Incidentally the same Justice Atwood was overturned this week in a Crown sentence appeal for, inter alia, wrongly describing the offender as a “petty retailer” when the amounts involved - including 8 kilograms of marihuana and 144 grams of cocaine - supported a characterization of a “substantial commercial enterprise”: R v Kleykens, 2020 NSCA 49 at 47 per Saunders JA. The decision to impose a 90-day intermittent jail sentence was “marred by serious errors in principle, which led to a sentence that is obviously unfit” (6). However, given the “lethality and uncertainty surrounding the COVID-19 pandemic” there is a “very real risk that re-incarceration would pose to the health of the respondent and others”; accordingly, the 2-year sentence that the NSCA would have imposed was stayed (102-103). NB: the NSCA - indeed Justice Saunders himself - has authored important drug sentencing cases in the last year: R v White, 2020 NSCA 33 extensively reviews Canada-wide appellate sentencing precedents for trafficking in heroin and cocaine in order to develop a sentencing precedent for trafficking in Fentanyl; R v Chase, 2019 NSCA 36 demonstrates admirable appellate deference - and dismisses “the Crown’s attempt to sound a floodgates alarm” - in upholding a relatively lenient custodial sentence - 90 days intermittent - for possessing a relatively small amount of cocaine (6 grams) for the purpose of trafficking.



Ryan Clements