Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Kippomee, 2018 NUCJ 8

Date: 20180405
Docket: 11-17-167
Registry: Pond Inlet

Crown: Her Majesty the Queen

-and-

Accused: Lanny Kippomee

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): George Dolhai

Counsel (Accused): Sara Siebert

Location Heard: Pond Inlet, Nunavut

Date Heard: March 27, 2018
Matters: Sentencing; joint submissions; R v Anthony-Cook.

REASONS FOR JUDGMENT

(Delivered Orally)

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

 2

I. BACKGROUND

[1] The offender, Lanny Kippomee, was charged with break and enter
with intent to commit a criminal offence, breach of probation, and
possession of stolen property after an incident in Pond Inlet on
December 8, 2017. The Crown elected to proceed summarily. The
offender pled guilty to the break and enter and breach of probation
charges on January 11, 2018. The Crown invoked section 579(1) of
the Criminal Code and directed the Court to enter a stay of
proceedings on the third charge.1

[2] During the sentence hearing that morning, the parties presented the
Court with a joint submission. I expressed concern that the joint
submission did not properly address the facts of the case, nor the
relevant sentencing principles. In my view, the joint submission was
too lenient and outside the range of an appropriate sentence. I
adjourned the case to give the lawyers a chance to expand on and
justify their submission. That afternoon, the lawyers addressed the
Court again. The Crown prosecutor, George Dolhai, and the Defence
Counsel, Sara Siebert, maintained their joint submission. They did
not provide the Court with any case law justifying their proposed
departure from the appropriate sentencing range.

[3] I adjourned to reflect on the case until the next Pond Inlet circuit.
These are my reasons for decision.

II. THE FACTS

[4] Around 7:45 a.m. on December 8, 2017 Mr. Joe Krimmerdjular arrived
for work at the local Co-op store. He discovered shortly after that
someone had gone into his office and had unlocked his desk drawers.
Mr. Krimmerdjular then went to the back door of the store to see what
he might find as he suspected a break-in. He discovered the offender
hiding in a storage closet near the back door. Mr. Krimmerdjular
asked him for his name, but the offender would not reply. Mr.
Krimmerdjular recognized him and asked him if he was Larry
Kippomee. The offender replied “yes”. Mr. Kippomee asked Mr.
Krimmerdjular not to call the police and said that he would never do it

1
Criminal Code, RSC, 1985, c C-46, s 579(1) [Criminal Code].
 3

again. Mr. Krimmerdjular asked him to stay, but Mr. Kippomee left.
Mr. Krimmerdjular called the police.

[5] The offender was arrested shortly afterward at home. At the time of
arrest, the police found keys which the offender had stolen from Mr.
Krimmerdjular’s desk. The offender was also subject to a Probation
Order dated January 12, 2017, which required him to keep the public
peace.

[6] Mr. Kippomee was sober when he committed these crimes.

III. THE POSITION OF THE PARTIES

[7] The lawyers presented the Court with a joint submission. They
stated that the offender should receive one month in jail for the break
and enter and one month of jail concurrent for the breach of
probation. The total proposed sentence, then, would be one month
of jail followed by 12 months of probation.

IV. THE LAW CONCERNING JOINT SUBMISSIONS

[8] This case started as a case about an illegal break and entry. It has
become a case about joint submissions.

[9] The term joint submission refers to an agreed upon sentence

recommendation made by the parties to the court. The sheer volume
of criminal cases in our courts makes plea negotiations between
Crown and Defence an essential case resolution tool. These
negotiations often result in the entry of guilty pleas in exchange for a
certain Crown sentence recommendation. In these cases, the
defence “joins” with the Crown concerning the recommended
sentence. Over the years, the way courts dealt with negotiated guilty
pleas and joint submissions varied somewhat across the country.
That situation has changed.

[10] Today, the way judges receive and consider joint sentencing
recommendations — joint submissions — is subject to the strict
guidelines mandated by the Supreme Court of Canada in R v
 4

Anthony-Cook.2 This new approach recognizes that joint

submissions are a commonplace and necessary part of a well-
functioning justice system. This in turn requires a high degree of
certainty that the judge will accept the lawyers’ joint submission.

[11] For these sound reasons, judges are expected to impose a joint
recommendation unless “the proposed sentence would bring the
administration of justice into disrepute, or would otherwise be contrary
to the public interest”.3 However, joint submissions are “not
sacrosanct. Trial judges may depart from them.”4

[12] The Anthony-Cook case gives guidance to judges who may be

troubled by a joint submission. I must analyse the joint submission in
this case against six considerations when I consider the governing
“public interest test”:

1. I must consider the joint submission as it is. In other words, I

must look at the sentencing options the lawyers presented to
me. If the lawyers failed to recommend a specific order or
term, I “should assume it was considered and excluded from
the joint submission.”5

2. The test applies whether I find the proposed sentence to be

either too harsh or too lenient.

3. Sentencing cannot take place in a factual vacuum. Indeed,

lawyers have a pro-active duty to present the court with the
circumstances which led to and justified the joint submission.
I will speak more about that when I analyse this joint
submission starting at paragraph 406

4. The judge should give the lawyers a chance to make further

submissions to address his or her concerns.

2
R v Anthony-Cook, 2016 SCC 43, [2016] 2 SCR 204 [Anthony-Cook].
3
Ibid at para 5. The test I must apply is the “the public interest test”.
4
Ibid at para 3.
5
Ibid at para 51.
6
Anthony-Cook, ibid at para 54, citing R v DeSousa, 2012 ONCA 254 at para 15, 286 CCC (3d)
152, states: “Sentencing – including based on a joint submission – cannot be done in the dark.
The Crown and the defence must ‘provide the trial judge not only with the proposed sentence, but
with a full description of the facts relevant to the offender and the offence’, to give the judge ‘a
proper basis upon which to determine whether [the joint submission] should be accepted’”.
 5

5. If the judge remains unsatisfied with the joint submission, he

or she may consider permitting the offender to withdraw his
guilty plea.

6. The judge is required to provide “clear and cogent reasons” if

he or she decides not to accept the joint submission.

[13] Before I discuss my concerns with the joint submission, I will outline
the relevant objectives and the applicable principles of sentencing.

V. SENTENCING OBJECTIVES AND PRINCIPLES

[14] There are several important objectives a sentencing judge must try to
achieve when imposing a sentence. These objectives are found in
the Criminal Code.7 The sentence I impose must work to:

 protect the public;

 encourage respect for the law;
 be seen to be fair, to be just;
 condemn and denounce criminal conduct;
 deter Mr. Kippomee and others from committing
these crimes;
 rehabilitate Mr. Kippomee;
 encourage offenders to accept responsibility for
their actions, to acknowledge and admit the harm
they caused to their victims, and try to repair the
harm where possible; and
 separate offenders from society when necessary.8

[15] In trying to meet these objectives, the judge is not left up to his or her
own personal views. There are legal sentencing principles in place to
guide a judge, and to help the judge decide on a fit and proper
sentence.

[16] In this case, there are five objectives and principles which stand out.
They are denunciation, deterrence, rehabilitation, proportionality and

7
Criminal Code, supra note 1, Part XXIII.
8
Ibid, s 718.
 6

parity. I will talk about each one in turn.

[17] Denunciation means this Court must condemn illegal acts. This Court
must send a strong message that the offence of breaking and
entering into our local businesses will be punished. In my view, the
joint submission fails to meet this standard.

[18] Deterrence means to try to influence people to respect the law and to
keep the public peace. Deterrence has two parts: general and
specific. In everyday English, my intended audience today is made
up of all Nunavummiut (general), as well as this offender (specific).

[19] And the law is very clear: deterrence is an important objective when
sentencing an offender for breaking and entering.9 In my view, the
joint submission does not address this principle.

[20] The Criminal Code also directs judges to consider ‘proportionality’.

This principle is at the heart of the sentencing process. This legal
term means a sentence should reflect the seriousness of the crime
and the offender’s responsibility for it. The offender in this case
committed a serious crime, and he bears a very high degree of moral
blameworthiness. The crime was planned and premeditated. The
sentence I impose today must reflect this reality. In my view, the joint
submission does not properly address proportionality.

[21] I now turn to rehabilitation. Rehabilitation means helping the offender

to change his ways for the better and to become a better person. In
Nunavut, given the staggering abuse of alcohol that we regularly hear
about in court, rehabilitation mostly means helping an offender to
heal. Rehabilitation is always the result we seek in every case.
There can be no real deterrence unless the offender heals.

[22] The present case is not the typical Nunavut Gladue case. Alcohol is
not part of the picture. The offender’s crime was planned and
premeditated. In my view, the joint submission does not promote
rehabilitation. I will say more about Mr. Kippomee’s rehabilitation
starting at paragraph 54.

[23] There is also another sentencing principle which is particularly

relevant to this case. This is the principle of restraint.

9
R v Vaneltsi, 2013 NWTSC 6, 2013 CarswellNWT 128 [Vaneltsi].
 7

[24] The Criminal Code directs sentencing judges to act with ‘restraint’.
This means the court must impose the least harsh sentence which
can achieve the goals involved in sentencing. Jail must only be
imposed when there is no reasonable alternative. In Canada, jail is
imposed only as a last resort. If an offender is being sentenced for
more than one offence, the combined sentences are not to be unduly
long or harsh. Here, the Criminal Code directs judges to be especially
aware of the circumstances of aboriginal offenders.10 I’ll say more
about that in a moment.

[25] Sentencing judges must also consider case-law. Case-law is made

up of published reports that tell us what other judges have done in
similar circumstances. This is extremely important. It is only fair that
similar offenders should be treated similarly for similar crimes. This is
called the parity principle. This principle has played a significant role
in my analysis. Again, in my view, the joint submission does not
account properly for parity. I will say more about this principle at
paragraph 59. Neither lawyer presented any case-law which
supported their joint submission.

[26] Perhaps the most important case in Nunavut is the Queen v.

Gladue.11 Gladue is a very important case from the Supreme Court of
Canada. The Nunavut Court of Justice is, in fact, a Gladue court. To
make a long explanation short, our court must account for the unique
circumstances of Inuit, their culture, history and society.

[27] Nunavut suffers from a staggering infrastructure deficit.12 The

influence of colonialism, forced resettlement and Residential Schools
is inter-generational. Nunavut has the highest suicide rate in the
country. Nunavut has the highest crime rates in the country, including
property crimes. Nunavut has the highest tuberculosis rates on the
continent. These are just some examples of Nunavut’s realities which
must inform the thinking of a sentencing judge.

[28] Gladue informs every decision we make. It is the lens through which
we look at every case. Every sentence of the Nunavut Court of
Justice involving an Inuk is a Gladue sentence.

10
Criminal Code, supra note 1, s 718.2(e).
11
R v Gladue, [1999] 1 SCR 688, 133 CCC (3d) 385 [Gladue].
12
I recently outlined many of the challenges facing Nunavummiut in R v Anugaa, 2018 NUCJ 2 at
paras 33-36, 2018 CarswellNun 2 [Anugaa].
 8

VI. THE OFFENDER

[29] Mr. Kippomee is 36 years old. He is from Pond Inlet. He is Inuk. He

was adopted at a young age by his grandparents. He received a
traditional upbringing, and his early life was generally happy. He left
school in grade 10. He has six siblings, one of whom committed
suicide in 2003. By all accounts, Mr. Kippomee is a skilled hunter.
He has completed his GED as well as trades access training at the
Nunavut Arctic College. I was told he has had difficulty finding steady
employment in the wage economy — like so many of our younger
adults.

[30] Ms. Siebert said Mr. Kippomee has suffered from instability over the
years. However, Mr. Kippomee has lived with his father and a brother
for about nine years. He is said to have a good relationship with
them. I asked Ms. Siebert to clarify how Mr. Kippomee’s life has been
unstable. Her reply emphasized his difficulties in the wage economy.

VII. CRIMINAL RECORDS

[31] Criminal records play an important role in sentencing. Common

sense says a first-time offender who does a less serious crime will be
treated more leniently than someone who commits one serious crime
after another. Mr. Kippomee has a lengthy, related and serious
criminal record.

[32] Mr. Kippomee has 39 prior convictions. He has five prior convictions
for break and enters, and another conviction for being unlawfully in a
dwelling. His first two convictions for break and enter offences were
in Youth Court in November of 1995. He has two prior convictions for
theft and possession of stolen property and another for property
damage (mischief).

[33] Mr. Kippomee has 14 prior convictions for breaching court orders. He
has 12 prior convictions for violent crimes including a three-year
federal penitentiary term in May 2005 for sexual assault and unlawful
confinement.13 He also has two prior convictions for escaping lawful
custody.

13
He served seven months of pre-trial custody before he was sentenced for that crime.
 9

VIII. AGGRAVATING AND MITIGATING FACTORS

[34] The Criminal Code also requires a sentencing judge to consider

mitigating and aggravating factors.

A. Mitigating factors

[35] There is a mitigating factor which goes to Mr. Kippomee’s credit. It

works to lessen his sentence:

 Mr. Kippomee entered an early guilty plea. He

accepted responsibility. This Court always gives
meaningful credit for someone who does this.

B. Aggravating factors

[36] Balanced against this mitigating factor are several serious

aggravating ones which work to increase his sentence:

 Mr. Kippomee was sober when he committed

these crimes. His actions were planned and
premeditated.

 Mr. Kippomee was subject to, and breached, a

probation order when he broke into the Co-op.

 Mr. Kippomee has a related and serious criminal

record.

[37] In my view, the joint submission does not give adequate weight to the
serious aggravating factors in this case.
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IX. CANADIAN VICTIMS BILL OF RIGHTS

[38] Victims of crime have the right to be heard in court.14 They may read
out loud or file a Victim Impact Statement. These statements bring to
life the real effect crime has on peoples’ lives. One cannot judge a
crime without understanding how its victims were hurt. These
statements help ensure victims are not ignored during the sentencing
process.

[39] The prosecution did not tender a Victim Impact Statement in this
case.

X. ANALYSIS

A. The joint submission

[40] In my view, the joint submission offends each one of the sentencing
objectives and principles which I must apply in this case. Furthermore,
as I stated earlier, there is a pro-active legal duty on Counsel to justify
the joint submission. The lawyers failed in this case to do so.

[41] The Crown Prosecutor said very little to justify the joint submission.
Mr. Dolhai alleged the essential facts which were admitted by the
Defence. He told me Mr. Kippomee was 36 years old, and that the
offender has a “lengthy” criminal record “stretching all the way back to
his first [sic] in 1998, in youth court”.15 He noted the offender’s first
adult conviction for break and enter in 2004, as well as the last entry
on his criminal record in July 2017. He then outlined the joint
submission before concluding his remarks.

[42] Before turning to Defence Counsel, I asked the Crown Prosecutor to

justify his recommendation. I noted the offender’s extensive, recent
and related criminal record and I inquired how the joint submission
addressed proportionality and the step principle.

14
Canadian Victims Bill of Rights, SC 2015, c 13, s 2, s 15.
15
Transcript, 11 February 2018, at 7, lines 15-19.
 11

[43] The Crown Prosecutor’s reply is instructive. He said that, in his view,
the facts may have warranted a suspended sentence. He stated that
the sentence could have been “as low as a suspended sentence”
because the offender had not caused any damage, and he was
merely found in a closet.16

[44] 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.

[45] I also reminded Counsel that court orders are one of the basic
foundations of our criminal justice system. It is our only real tool to
promote rehabilitation. Repeated convictions for breaches ought to
merit consideration of consecutive jail sentences. As I noted earlier,
Mr. Kippomee has 14 prior convictions for breaching court orders.

[46] I then adjourned the hearing until the afternoon to give the lawyers a
chance to reconsider their recommendation and justifications.

[47] The sentencing hearing resumed that afternoon. The Crown

Prosecutor reviewed several of the offender’s previous convictions.
He noted that the offender’s last sentence for break and enter with
intent was a suspended sentence. Thus, a one-month jail sentence,
he stated, was an appropriate step up and showed restraint. He also
noted that the offender has only recently been assessed for the
purposes of counselling. A probationary counselling condition would
let him get the counselling he requires.

[48] The Crown Prosecutor then revised the recommendation concerning

the breach of probation from one month of concurrent jail to one
month of consecutive jail. The new joint submission, then, called for
two months in jail followed by probation.

[49] Defence Counsel very briefly adopted the Prosecutor’s submissions.

She then focused on rehabilitation. She suggested that Mr.

16
Ibid at 9, lines 13-19.
 12

Kippomee’s criminal record reflected what she called “the chaos and
instability that he’s had in his life”.17

[50] In my view, the final joint submission does not reflect a proper
application of our sentencing principles. The Crown Prosecutor was
correct when he noted the suspended sentence for break and enter
with intent in 2014. This entry, in part, informed his submission that a
one-month sentence in the present case was a step up. But, he
neglected the 18-month jail sentence the offender received in 2004 for
the very same offence. I am not privy to what the court was told at
Mr. Kippomee’s 2014 sentencing hearing. However, I am certain the
10-year gap in his record for the same type of offence, and our
commitment to using jail as a last resort, accounted for the lenient
2014 sentence.

[51] I also cannot agree that Mr. Kippomee’s lengthy criminal record can
be explained away by a life of personal chaos and instability. The
information Defence Counsel provided to the Court simply does not
support that assertion. Apart from unemployment, he has lived a
remarkably stable life.

[52] In my view, the joint submission does not give sufficient weight to
denunciation and deterrence. Break and enters into our Co-ops and
Northern stores are not victimless crimes. And they happen all too
often right across the territory. Each year, these crimes result in
significant losses to our two food store chains. In the case of the Co-
ops, these costs are passed along to the Co-op’s local members and
to their clientele. High food prices and widespread food insecurity are
exacerbated by these selfish crimes. The sentence I impose must
serve to deter not only this offender but anyone else who might think
about breaking into a place of business.

[53] The joint submission also does not reflect the high degree of Mr.
Kippomee’s moral blameworthiness. Mr. Kippomee is a repeat
offender who broke into and entered the local Co-op with the intention
of committing another crime. He was sober, and his actions were
premeditated. He has appeared in court many times over the years,
yet he has not changed his behaviour.

[54] I turn now to rehabilitation. This is a case where the principles of

specific deterrence and rehabilitation go hand-in-hand. As I noted

17
Ibid at 19, lines 2-3.
 13

earlier, in many (if not most) cases we deal with in Nunavut, alcohol
fuels the offence. Unless an offender masters his substance abuse
issues, experience tells us he will likely reoffend.

[55] But, how do we rehabilitate a repeat sober offender who decides to

continue to break the law? At some point, the repeat offender must
understand that society’s patience will run out. Repeat offenders
must understand that leniency and mercy will be hard to come by if
they do not respect society’s rules, choosing instead to deliberately
and repeatedly break them. Where is the incentive to reform if
offenders like Mr. Kippomee can expect the proverbial ‘slap-on-the-
wrist’ if they get caught?

[56] One month of jail for this offender in these circumstances for a break
and entry amounts to little more than a slap-on-the-wrist. This is so
even within the context of a Gladue analysis, where I must account for
the “broad systemic and background factors”18 at play, including those
I mentioned in paragraph 27. It is relevant here that I was told Mr.
Kippomee has lived at home with his father and brother for the past
nine years and that by all accounts it is a happy home. Nor is alcohol
abuse a factor in this case.

[57] The majority of Pond Inlet’s population is law abiding. They expect,
and are entitled to, the protection of the law. In appropriate cases like
this one, denunciation and deterrence must be emphasized in the
Gladue analysis.

[58] Imprisonment — the separation of the offender from society — is

consistent with traditional Inuit justice. When a person threatened the
traditional group’s safety and security, that person could be, and
sometimes was, banished. Many were welcomed back later into the
group. Forgiveness, reconciliation and restitution were, and still are,
key aspects of Inuit justice, as they are today in the Nunavut Court of
Justice. The sentence I impose today reflects the seriousness of the
crime, but it also leaves wide open the door for Mr. Kippomee’s still
hoped for rehabilitation.

[59] The lawyers in this case also failed to show how the joint submission
respected the parity principle. Neither lawyer referred the Court to
any relevant case-law to show that the proposed sentence was lawful
and within the sentencing range for these types of offences in these

18
Gladue, supra note 11 at para 93.
 14

types of circumstances. This was so even though I gave them time to

review the relevant law. Had they done so, they would have
discovered that the appropriate range of jail term for the break and
enter, for example, was in the four-to-six-month range.19

[60] Nor did either lawyer point to any relevant case-specific

circumstances or factors which would have justified a more lenient
sentence in this case, even after they were given an opportunity to
refine their submissions.20

[61] In my view, some lawyers who appear before this Court have
developed a cavalier attitude towards joint submissions. The
reasoning appears to be: “We can clear this file from the docket with a
joint submission. It’s a joint submission, the judge will agree”. In my
long experience, it is the rare case when Counsel come to court
prepared to justify their joint submission with reference to relevant
case-specific factors as well as jurisprudence (case-law).

[62] This attitude was evident in another case on this Pond Inlet circuit. In
R v Arreak, a case concerning two convictions for sexual assault
against two victims, the male offender sexually abused two young
female members of his family.21 His first victim was between seven
and nine years old at the time. On three occasions, the offender took
the little girl into a bedroom and he forced her to rub his penis with her
hands. The third time, he forced her to do this until he ejaculated.
The victim continues to experience significant emotional trauma eight
years later. On a separate occasion, he grabbed the breasts of his
18-year old victim. The offences all happened in the offender’s home.

[63] The lawyers presented a joint submission. The joint submission

called for 90 days in jail for the first charge and 15 days consecutive
for the second charge followed by probation. The sentence in my
view did not correctly apply the principles of sentencing, and I sent the
lawyers away to do their due diligence. When the lawyers returned
after lunch, they defended their original position. I adjourned
sentencing to later this month to give the lawyers another chance to
do their homework.
19
See, for example, R v Nieman, 2009 YKTC 66, 2009 CarswellYukon 84 [Nieman]. The
following is an example of a recent Nunavut case in the same range: R v Ipeelie (7 November
2017), Iqaluit/Arctic Bay 01-17-35 (NUCJ, unreported) [Ipeelie].
20
A sentencing judge may depart from the established range where appropriate in the unique
circumstances of the case. See R v Lacasse, 2015 SCC 64 at para 58, [2015] 3 SCR 1089
[Lacasse] and R v Nasogaluak, 2010 SCC 6 at para 44, [2010] 1 SCR 206 [Nasogaluak].
21
R v Arreak (19-20, 27 March 2018), Iqaluit/Pond Inlet 11-16-145 (NUCJ, unreported) [Arreak].
 15

[64] The lawyers subsequently filed a supplementary written memorandum

and case-law. The case-law revealed that an appropriate range of
sentence was between six to 12 months jail. The lawyers changed
their joint submission to 180 days in jail. Although it was at the low
end of the sentencing range, I accepted the joint submission.

[65] Just two weeks ago during the Coral Harbour circuit, lawyers
presented yet another problematic joint submission in a serious
firearms case: R v Nakoolak.22 An intoxicated adult male had
terrorized a household when he brandished two loaded firearms, a
Ruger .223 calibre rifle and a 12-gauge shotgun. The police were
called to the scene. Fortunately, the situation deescalated, and no
shots were fired.

[66] The offender pled guilty to two of the five charges and we proceeded
to sentence. The lawyers presented a joint submission of 45 days in
jail followed by probation. Among other things, the joint submission
did not account for two serious aggravating factors. At the time of the
incident, the offender was subject to two recent firearm prohibition
orders. He was also on probation at the time and was required to
keep the public peace.

[67] I sent the lawyers away to perform their due diligence. Upon their
return to Court, the lawyers outlined the results of their online legal
research. The lawyers then changed their joint submission from 45
days to six months in jail followed by probation.

[68] In my view, the new recommended sentence in Nakoolak was

arguably still lenient. However, the cases presented by the lawyers
showed that the six-month jail sentence was in the available range of
sentence. Therefore, I followed the direction of the Supreme Court in
Anthony-Cook by not substituting my own “opinion” as to the
appropriate sentence.23 I accepted the joint submission.

[69] As my Coral Harbour example reveals, lawyers can perform online

legal research on circuit. It does not appear the lawyers in Mr.
Kippomee’s case conducted the same kind of online legal research
when I gave them the chance to do so. Had they done so, I expect

22
R v Nakoolak (7 March 2018), Coral Harbour 17-17-40 (NUCJ, unreported) [Nakoolak].
23
Anthony-Cook, supra note 2 at para 63.
 16

they would have realized the problems with the joint submission, and
they would have changed their recommendation accordingly.

[70] The Nunavut Court of Justice issues its dockets well in advance of
each circuit. Counsel know well in advance the types of cases and
legal issues they will handle. When unexpected issues arise on
circuit, online research tools are available. The fact our circuit court
travels to remote communities is never an excuse for counsel to short
cut the process. That said, I acknowledge the hard work and
dedication of the lawyers who work extremely hard in challenging
conditions while on circuit. My focus here is on the local practice of
some lawyers concerning joint submissions.

[71] In passing sentence, I must be aware of the impact this sentence will
have on the reputation of the justice system. The Criminal Code
specifically says that sentences are intended to encourage respect for
the law. Our communities are small. Although the media do not
attend our circuit court sittings (and seldom in Iqaluit), the sentences
we impose do resonate within our small communities. I must ask
myself how a two-month sentence for Mr. Kippomee would be
received in Pond Inlet.

[72] The Supreme Court has provided guidance to judges on this point.
Before a judge may disregard a joint submission, he or she must be
satisfied the sentence would be viewed by reasonable and informed
persons as a breakdown in the proper functioning of the justice
system.24 In my respectful view, this is one of those cases. Mr.
Kippomee is well known in his community. A two-month sentence in
these circumstances would indeed be viewed by reasonably informed
members of this community as a breakdown in the justice system.

[73] The Supreme Court also said in Anthony-Cook that in certain cases, it
may be appropriate to permit the offender to withdraw his guilty plea.
This is not one of those cases. The prosecution has a very strong
case. Mr. Kippomee was caught in the act. The eyewitness, Mr.
Krimmerdjular, immediately recognized the offender and he knew who
he was.

[74] There is nothing before this Court to suggest the Crown negotiated
the plea and light sentence to mitigate an evidentiary problem with its
case. In such a case, a lenient sentence submission “might not be

24
Anthony-Cook, supra, note 2, at para 42.
 17

contrary to the public interest”.25 To permit Mr. Kippomee to withdraw

his plea would merely serve, in my view, to delay the inevitable
conviction and sentence.

[75] The maximum sentence for this break and enter with intent is six
months in jail because the Crown proceeded by summary
conviction.26 The proper sentencing range for this break and enter
with intent offence and this offender is not one month but four to six
months of jail.

[76] The maximum sentence for summary conviction breach of probation

is 18 months in jail.27 The proper sentencing range for the breach of
probation in the circumstances of this offender and this case is not
one month but two to four months of consecutive jail.

[77] This analysis, in my view, is not a case of judicial “tinkering”.28 It is

true that the difference between the joint submission and the
sentence I shall impose may only be five months. However, this
analysis leads to a summary conviction sentence which respects the
principles of sentencing and reflects the public interest in promoting
respect for the law.

XI. CONCLUSION

[78] Joint submissions are an important part of our justice system. They
bring a high degree of certainty and efficiency to our busy courts
when they are properly negotiated and responsibly presented to the
court. The negotiation of a joint submission must be the principled
application of the law to the specific circumstances of each case and
offender. The words “joint submission” are not some form of magical
incantation. And the law is clear — judges retain the final
responsibility to ensure that sentences are appropriate and lawful.
The three cases I have highlighted demonstrate the ongoing and
important role judges continue to have when presented with a joint
submission.

25
Ibid, at para 53.
26
Criminal Code, supra, note 1, ss 348(1)(e), 787(1).
27
The maximum penalty for indictable breach of probation is four years in jail. Criminal Code,
supra note 1, s 733.1(1).
28
Anthony-Cook, supra note 2 at para 63.
 18

[79] The lawyers in this case — as in the Arreak and Coral Harbour
examples — failed to do their due diligence. The joint submission in
this case “was not fair and consistent with the public interest”.29 It did
not reflect a principled approach to sentence. It required judicial
intervention. In each of these three cases, poorly crafted joint
submissions resulted in lost court time, duplicated efforts and
unnecessary delay.

XII. SENTENCE

[80] Mr. Kippomee. For the reasons I have explained, I reject the joint
submission presented by the lawyers. I sentence you to five months
in jail for the break and entry into the Co-op and two months
consecutive jail for the breach of probation. This is the equivalent of
210 days in jail. The sentence would have been higher but for your
guilty plea and the Crown’s summary election.

[81] This jail term will be followed by probation for 12 months. You will:

1. Keep the peace and be of good behaviour.

In other words, you will not break the law.

2. Report to the probation office within five business

days of your release from jail, and thereafter as
required.

3. Take any counselling recommended to you by your

probation officer.

[82] This probation order is not intended to be punishment. I have put it in

place in the hope that you will turn your life around and finally become
a law-abiding citizen.

XIII. ANCILLARY ORDER

[83] The Criminal Code requires me to impose victim fine surcharges of

$100 per charge, and I do so now. I give you one year from your

29
Ibid at para 44.
 19

release from jail to pay that $200.

[84] Good luck, sir. No one wants to see you get into trouble again with
the law. Taima.

Dated at the City of Iqaluit this 5th day of April 2018

___________________
Justice Paul Bychok
Nunavut Court of Justice