Nunavut appeal court nixes offender’s criminal record
Appeal judge upholds joint sentence recommendation, reduces suspended sentence to conditional discharge
A 26-year-old Iqaluit woman convicted of assault with a weapon in a domestic dispute won’t get a criminal record after all, following a Nunavut appeal court decision that overturns a sentence imposed this past November.
In the judgment, Justice Ronald Veale, a Yukon judge who serves on the Nunavut Court of Appeal, found that Justice Paul Bychok made errors when he rejected a joint sentence submission made by Crown and defence lawyers after Mathewsie pleaded guilty.
Police charged Mathewsie following a domestic fight between her and her partner, Nelson Evaloakjuk, on June 28, 2015 at building 315 in Iqaluit.
Mathewsie had called Iqaluit emergency services to report a stabbing victim at her residence.
But when RCMP members also arrived, she put up obstacles to prevent them from entering the apartment and police arrested her for obstruction.
After they walked inside, they found a young boy in a bedroom with a blanket over his head who told them about fighting between his mom and dad.
In his parent’s room, they found Evaloakjuk lying on the floor, bleeding from wounds on his hands and wrists.
Evaloakjuk refused to give a statement to police, refused to grant access to his medical records and refused to co-operate, although he did tell police at the time that he remembered seeing Mathewsie with a knife, Veale’s judgment said.
Meanwhile, police charged Mathewsie with assault with a weapon.
Although, Evaloakjuk’s lack of co-operation might have made it difficult for the Crown to prove the case against her in a trial, Mathewsie pleaded guilty at her second court appearance.
When the case landed in court in November for sentencing, Crown and defence lawyers presented Bychok with a joint submission: a conditional discharge and seven months of probation.
A conditional discharge means that if a convicted offender abides by certain conditions, he or she will not get a criminal record.
But Bychok rejected the joint submission and instead imposed a suspended sentence with seven months promotion.
“This is a very serious case of domestic violence. So no court in those circumstances is going to grant a conditional discharge,” Bychok is quoted as saying in a transcript.
He also noted that she had no prior criminal record and he praised her for steps she’s taken to rehabilitate herself.
The suspended sentence, however, means that Mathewsie will get a criminal record, which could affect her ability to get job in southern Canada.
Her defence lawyer had told the court that she wants to train to become a cook and then get a cooking job in the South.
In his appeal judgment, Veale found that Bychok improperly speculated that Evaloakjuk had been wounded with a number of stabs and that this was “not a permissible inference from the facts read in.”
He also said Bychok did not give enough weight to Mathewsie’s background as an Aboriginal person, as required by the Supreme Court of Canada’s Gladue and Ipeelee decisions.
And Veale found Bychok did not give the two lawyers adequate notice that he was intending to reject the joint submission.
The appeal judge then set aside Bychok’s sentence and imposed the conditional discharge with probation sentence that the lawyers had first proposed.