Nunavut appeal court quashes judge’s rejection of agreed sentence

Justice Paul Bychok erred last year when he rejected a sentencing agreement that Crown and defence lawyers had worked out for a Pond Inlet man convicted of breach of probation and break and enter with intent to commit an indictable offence, a Nunavut appeal court judge has ruled.

The appeal had been launched by defence lawyer Scott Cowan this past February, and, in a gesture of agreement, Crown lawyer Nick Devlin supported Cowan’s arguments and even pointed out two additional errors that Cowan had not mentioned.

Justice Shannon Smallwood of Yellowknife, who sits on the Supreme Court of the Northwest Territories, issued the appeal court judgment on July 30.

The case concerns Lanny Kippomee, now 36, who pleaded guilty to the two charges in Jan. 11, 2018.

On Dec. 8, 2017, a co-op worker, Joe Krimmerdjuar, arrived at an office building owned by the Pond Inlet co-op, noticed some drawers open in an office, and then found Kippomee standing in a storage closet.

Kippomee asked Krimmerdjuar not to call the police, but Krimmerdjuar asked him to stay inside the office building. Kippomee left and was later arrested by police, who laid charges against him.

At the time, Kippomee, who has a lengthy criminal record, was living under the terms of a 12-month probation order, imposed in January 2017, after he had been convicted of assault and three counts of breaching an undertaking.

That 2017 probation order required him to keep the peace and be of good behaviour.

After Kippomee pleaded guilty to breach of probation and break and enter, Crown and defence lawyers, at a sentencing hearing in March 2018, agreed on a sentence of one month in jail on each offence, to be served at the same time, and then followed by 12 months of probation.

But Bychok told Kippomee he had a lot of trouble with the joint submission.

“In my view, the circumstances of this offence as well as your criminal record and your personal circumstances lead me to the conclusion that if I were to agree to this joint submission, I would essentially be agreeing to impose a sentence, which in my estimation would be manifestly unfit, which is a legal word that says that it’s not appropriate,” Bychok said at the time.

So he asked the two lawyers to come back after the lunch break to provide more substantiation for their submission, accusing the two lawyers of failing to do due diligence.

The Crown lawyer then suggested the two jail sentences be served consecutively, which effectively creates a two-month jail sentence.

But Bychok rejected the joint submission and imposed his own sentence: five months in jail for the break and enter, and two months for the breach of probation.

But after hearing the appeal, Smallwood said she agreed that Bychok made errors of fact and errors in interpreting the law.

One fact error that Bychok made was a claim that Kippomee had stolen keys from the office. But the Crown did not read that in as a fact.

“Nowhere in the record is there evidence that the appellant was arrested with Mr. Krimmerdjuar’s keys found on him,” Smallwood said.

And she said Bychok also erred when he assumed that the break-in occurred at the co-op store, when, in fact, it occurred at an office building owned by the co-op, not the actual store.

Also, since Kippomee was sober at the time of the break-in, Bychok treated that as an aggravating factor. But that was an error in interpreting the law, Smallwood said.

“Being intoxicated while committing an offence is a factor that is aggravating in many cases. The same cannot be said for being sober while committing an offence. It is not necessarily aggravating,” Smallwood said.

As well, Smallwood said the joint submission was reasonable and would not have brought the system of justice into disrepute.

“As the original joint submission was reasonable in the circumstances and not contrary to the public interest, the sentence imposed will be one month imprisonment for the break and enter offence and one month imprisonment concurrent for the failure to comply with a probation order,” she said.

As for the 12-month probation order, that will remain the same, she said.

“In conclusion, the sentencing judge erred in rejecting the joint submission, misapprehended material facts and erred in his assessment of sobriety, planning and premeditation as aggravating factors of the offence,” Smallwood said.

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