Nunavut appeal court allows accused to withdraw guilty pleas

The Nunavut Court of Appeal has overturned a decision that initially denied an accused man’s application to withdraw his guilty pleas.

Kelly Akpaleapik pleaded guilty to charges of assault and sexual assault against his ex-partner in June 2019.

But before he was sentenced, Akpaleapik applied to withdraw those charges, noting that at the time, he was under considerable pressure from the complainant — his ex-spouse — who he says was harassing and threatening Akpaleapik and his new girlfriend.

The complainant was also charged with a series of crimes, including uttering threats, dangerous driving, harassment and breaching conditions to stay away from Akpaleapik and his new partner. Those were laid between November 2018 and June 2019, and the judgment doesn’t say whether any of them resulted in convictions.

“I plead guilty in the misplaced hope that the harassment would stop once the charges were dealt with,” Akpaleapik submitted in an affidavit, as part of his application. “The harassment continued.”

But the sentencing judge, Nunavut Justice Paul Bychok, dismissed that application in early 2020.

Bychok said Akpaleapik had failed to convince the court that his pleas were involuntary; he had not established that there was a reasonable possibility he would have pleaded guilty under different circumstances.

Akpaleapik was ultimately sentenced to two years less a day of incarceration, followed by 12 months of probation.

In an appeal heard in February, Akpaleapik’s new counsel then raised another ground for appeal, arguing that the sentencing judge had committed errors of facts in assessing whether the accused’s plea was voluntary.

In its May 7 decision, the Nunavut Court of Appeal concluded there was “ample evidence” on the record to establish that Akpaleapik’s pleas were not made of his own free will at the time they were submitted.

That evidence included a list of the complainant’s convictions, though much of it was left out of the court’s pre-sentencing report.

The appeal panel is made up of Justice Louise Charbonneau, Justice Frederica Schutz and Justice Kevin Feehan.

“Had the circumstances of the complainant’s harassment not been present, his pleas would have been different,” the judges wrote in the decision.

“The appellant was not required to provide his will was overborne by tendering evidence from his defence counsel or RCMP reports, nor was he required to call his girlfriend to give evidence.”

The appeal court determined that this particular case is not the appropriate one to clarify the test for striking a guilty plea.

Still, the court found the sentencing judge misapprehended material aspects of the evidence relating to the voluntariness of Akpaleapik’s pleas, leading to a miscarriage of justice.

The decision effectively strikes the guilty pleas and Akpaleapik’s matter has now been remitted for trial.