Recent Decisions from CanLII

• R v WA, 2026 NUCA 6 (CanLII)

  October 7, 2026

  Criminal and statutory offences — Murder and attempted murder — Specific intent — Mental disorder evidence — Whether trial judge applied wrong onus or standard on intent — Requirement that Crown prove mens rea beyond a reasonable doubt, Criminal Code, s. 229(a) — Consideration of appellant’s admissions and totality of evidence — Conviction appeal dismissedEvidence — Expert evidence — Non-testifying assessor — NCRMD defence — Whether trial judge improperly relied on non-testimonial psychiatric assessment — Assessment entered as exhibit on cross-examination of defence expert — Permissible use for evaluating impact on expert opinion, credibility and reliability — No reliance for truth of contents found — Appeal dismissedProcedure — Sentencing appeal — Parole ineligibility — Whether parole ineligibility affected by error in principle or demonstrably unfit — Criminal Code, ss. 235, 745(c), 745.4 — Argument based on sentencing decision later varied, and comparative case law — Deference on sentence absent error in principle — Sentence appeal dismissedProcedure — Appeals — Fresh evidence — Sentence appeal record — Whether new evidence of correctional progress admissible — Criminal Code, s. 687(1) — Palmer v The Queen criteria applied with flexible sentencing evidence rules — Evidence credible and relevant, interest of justice — Application to admit new evidence granted

• Qikiqtaaluk Wildlife Board v Government of Nunavut, 2026 NUCA 5 (CanLII)

  September 25, 2026

  Indigenous peoples — Modern treaties — Nunavut Land Claims Agreement — Treaty interpretation under the honour of the Crown — Whether Article 5 sets out only a decision-making process for wildlife management — Co-management regime and Inuit harvesting rights under Constitution Act, 1982, s. 35 — Article 5 read as framework with evolving instruments — Appeal dismissedNatural resources — Wildlife harvesting — Polar bear management — Total allowable harvest and basic needs level — Whether total allowable harvest was conflated with basic needs level — NWMB authority to establish total allowable harvest and strike basic needs level under NLCA — Presumption Inuit need entire total allowable harvest for polar bears — Appeal dismissedAdministrative law — Judicial review — Wildlife co-management decisions — Whether HACCS is consistent with the Nunavut Land Claims Agreement — Zeroing unused credits on a new total allowable harvest decision upheld as conservation-based — NWMB review triggered for credit requests exceeding 25% threshold not shown arbitrary — Appeal dismissedStatutory interpretation — Treaty provisions — Emergency kills — NLCA, s. 5.6.52 — Whether defence of life and property kills cannot be deducted from harvesting allocations — “Notwithstanding” clause protects necessity kill legality, not allocation accounting — Absence of treaty direction on accounting treated as significant — Appeal dismissed

• R v AK, 2026 NUCA 4 (CanLII)

  May 21, 2026

  Criminal and statutory offences — Appeals — Sexual assault allegations — Jury trial in remote location — Whether convictions are safe where the jury faced a deliberation deadline — Publication ban under Criminal Code, s. 486.4 — Judicial interim release addressed under ss. 523(2), 679(7.1) — Convictions set aside — New trial orderedProcedure — Jury deliberations — Sequestration and timing constraints — Whether imposing a deadline on jury deliberations constituted an error of law — R v G(RM), R v MacDonald, R v Abreha applied — Extraneous pressure on jury undermining trial fairness — Split verdict returned late evening after deadline remarks — Verdicts unsafe — Convictions overturnedProcedure — Appeals — Remedy — What remedy should follow where the jury was rushed to return a verdict — Appellate court declines broader guidance on remote jury management — Other grounds not addressed — Matter returned to trial court for scheduling — Judicial interim release continued pending new trial — Appeal allowed — New trial ordered

• R v Aupilardjuk, 2026 NUCA 3 (CanLII)

  April 21, 2026

  Evidence — Sentencing — Use of unproven facts — Criminal Code, s. 725(1)(c) — May a withdrawn assault charge be treated as aggravating without notice and proof beyond a reasonable doubt — Standard under s. 724(3)(e) and R v Gardiner applied — R v Di Paola clarifies reliance on withdrawn charges — Error in principle found — Appeal allowedCriminal and statutory offences — Sentencing — Proportionality and restraint — s. 718.2(d), (e) — Was a custodial term demonstrably unfit for breach of undertaking where the Appellant attended sober to care for infants — Conditional sentence considered then rejected on improper aggravating factor — Fit sentence identified as one day imprisonment deemed served plus probation — Sentence varied to time servedProcedure — Appeals — Appellate intervention in sentence — R v Lacasse — When may an appellate court interfere and substitute sentence — Error in principle impacting sentence established by reliance on alleged assault — Broad discretion respected absent such error — Court substitutes a sentence that could have been imposed under ss. 687(2) and 822(1) — Appeal allowed and sentence varied to time served

• R v Takpanie, 2026 NUCA 2 (CanLII)

  April 8, 2026

  Criminal and statutory offences — Sentencing — Proportionality — Whether the sentencing judge erred in applying proportionality to a serious domestic violence offence — Consideration of denunciation and deterrence in Nunavut communities — Aggravating and mitigating factors weighed — R v Lacasse, paras 39, 41-44, standard of review applied — Sentence not demonstrably unfit — Appeal dismissedIndigenous peoples — Sentencing — Gladue — Whether Gladue factors properly considered in assessing moral blameworthiness — Pre-sentence report and submissions acknowledged — Reference to Indigenous victim and intimate partner violence addressed — Gladue factors taken into account alongside aggravating factors — No error in principle established — Appeal dismissedProcedure — Sentencing — Procedural fairness — Did reliance on an undisclosed letter breach the right to be heard and amount to an error in principle? — Letter introduced without prior disclosure to counsel — Use confined to illustrating denunciation’s community impact — No effect on sentence established — Appellate intervention not warranted — Appeal dismissedCriminal and statutory offences — Sentencing — Criminal record — Did an erroneous entry in the criminal record affect the sentence imposed? — Mistaken reference to prior sentence noted — One entry among many aggravating convictions — No impact on overall fitness of sentence — Not an error in principle — Appeal dismissed

• NPR GP Inc v Higher Experience Inc, 2026 NUCA 1 (CanLII)

  April 8, 2026

  Lease and tenancy — Commercial lease — Remedies — Whether tenant must deliver vacant possession following appeal — Chambers judge’s declaration of three-year oral lease set aside — Landlord–tenant relationship ongoing despite settlement assertions — Order directing delivery of vacant possession by specified date — Appeal allowed, order set aside, vacant possession orderedProcedure — Mootness — Settlement privilege — Is the appeal moot given a post-judgment settlement agreement? — Settlement materials struck, privilege respected under Sable Offshore Energy Inc v Ameron International Corp — Borowski test applied, adversarial context and adjudicative role engaged — Appeal not moot, paragraph struck from supplemental factumContracts — Formation — Oral lease — Did the parties reach a binding oral lease in July 2023? — Essential terms and intention to be bound not established — Objective bystander test applied, formality of execution required by practice and lease wording — Reliance on emails unreasonable to infer agreement — Declaration of oral lease set asideProcedure — Pleadings — Fairness — Did the chambers judge err by finding bad faith not pleaded or argued? — New theory introduced in reasons without notice — Fundamental unfairness warranting appellate intervention, Malton v Attia cited — Finding of “bad faith conduct” cannot stand — Bad faith finding set asideProcedure — Costs — Solicitor-client costs — Whether solicitor-client costs were justified absent request and submissions — Award grounded solely in improper bad faith finding — No basis for elevated costs — Party-and-party costs appropriate — Solicitor-client costs set aside, party-and-party costs awarded

• R v Meeko, 2025 NUCA 12 (CanLII)

  December 5, 2025

  Criminal and statutory offences — Appeals — New trial — Multi‑count indictment — Whether conviction must be set aside for legal error — Errors of law in admission of evidence and jury instructions under Criminal Code, s. 686(1)(a)(ii) — Functional review of charge did not properly equip jury — Fair trial compromised — Conviction appeal allowed, new trial orderedEvidence — Similar fact and bad character — Uncharged discreditable conduct — Was the evidence properly admitted and limited? — Risk of reasoning and moral prejudice addressed in R v Handy, R v B(CR), R v TJF — Absence of propensity warning and confusing cross‑count guidance — Use only to assess asserted non‑sexual context — New trial orderedEvidence — Hearsay — Party admissions — Incomplete statement — Admissibility of “five people who I did” and meaning of “did” — Assessment under R v Ferris, R v Schneider, R v Merritt — Need to weigh probative value against prejudice and instruct on use and ambiguity — Failure to conduct voir dire or give limiting direction — New trial orderedProcedure — Jury instructions — Multi‑count indictments — Did the charge adequately address cross‑count reasoning, inconsistencies and defences? — Functional reading per R v Abdullahi and R v Goforth — Mini‑trial framing confusing, incomplete guidance on inconsistencies between witnesses, inadequate linkage of defences to counts — Charge insufficient — New trial ordered

• R v Qiyuk, 2025 NUCA 11 (CanLII)

  November 7, 2025

  Indigenous peoples — Inuit sustenance hunters — Constitution Act, 1982, s. 35 — Mandatory driving prohibition under s. 320.24(1) of the Criminal Code — Infringement of Indigenous rights to hunt for sustenance — Does the prohibition unconstitutionally interfere with Inuit cultural and subsistence practices? — Interpretation of s. 35 rights in the context of mandatory driving prohibitionsRights and freedoms — Cruel and unusual punishment — Canadian Charter of Rights and Freedoms, s. 12 — Mandatory driving prohibition under s. 320.24(1) of the Criminal Code — Whether the prohibition constitutes cruel and unusual punishment for Inuit sustenance hunters — Practical impossibility of continuing hunting activities as passengers — Test for s. 12 violationsRights and freedoms — Liberty — Canadian Charter of Rights and Freedoms, s. 7 — Mandatory driving prohibition under s. 320.24(1) of the Criminal Code — Whether the prohibition infringes liberty rights of Inuit sustenance hunters — Application of legal principles to liberty in the context of subsistence huntingRights and freedoms — Equality rights — Canadian Charter of Rights and Freedoms, s. 15 — Mandatory driving prohibition under s. 320.24(1) of the Criminal Code — Discrimination against Inuit sustenance hunters based on ethnic origin — Whether the prohibition disproportionately impacts Inuit hunters — Test for s. 15 infringementCriminal procedure — Appeals — Leave to appeal under s. 839(1.1) of the Criminal Code — Summary conviction appeal judge's decision — Whether the proposed grounds of appeal involve questions of law alone — Reasonably arguable case of substance — Importance of the matter to Inuit hunters and the administration of justice in NunavutCriminal procedure — Stay of mandatory driving prohibition — Criminal Code, s. 320.25 — First alcohol-related driving offence — Crown's lack of opposition to stay — Whether a stay pending appeal is appropriate — Balancing the administration of justice and the applicants' subsistence needs

• R v T.K., 2025 NUCA 10 (CanLII)

  October 31, 2025

  Statutory interpretation — Appellate jurisdiction — Criminal Code — Interpretation of section 573.1(1)(a) — Whether the term "warrant" includes investigative warrants such as DNA warrants — Contextual, textual, and purposive analysis of statutory language — Does section 573.1(1)(a) authorize appellate review of investigative warrants? — Governing principles of statutory interpretation applied to determine appellate jurisdictionEvidence — DNA warrants — Best interests of the administration of justice — Issuing judge declined to grant a DNA warrant based on irrelevant considerations — Whether the existence of alternative evidence precludes the issuance of a DNA warrant — Did the judge err in law by considering irrelevant factors? — Principles governing the issuance of DNA warrants under section 487.05 of the Criminal CodeCriminal procedure — Mootness — Appellate discretion — Broader implications for judicial practice in Nunavut — Whether the appeal should proceed despite the underlying matter being moot — Criteria for addressing moot appeals — Application of the framework from R v Poulin and related jurisprudence

• R v Komoartok, 2025 NUCA 9 (CanLII)

  October 28, 2025

  Criminal infractions — Assault causing bodily harm — Self-defence — Appellant convicted of assault with a weapon and breach of probation — Did the trial judge err in concluding the appellant was the aggressor and not acting in self-defence? — Trial judge found no air of reality to the appellant’s claim of blacking out from fear — Significant deference owed to trial judge’s findings of fact and credibility assessmentsEvidence — Discreditable conduct — Propensity reasoning — Appellant questioned about past involvement in fights — Did the trial judge improperly rely on evidence of past conduct to conclude the appellant was the aggressor? — Evidence of past fights used to assess credibility, not as proof of propensity — R v Handy framework applied to assess probative versus prejudicial valueCriminal procedure — Credibility assessment — Application of R v W(D) — Trial judge found inconsistencies in complainant’s evidence but accepted core allegations as reliable — Did the trial judge misapply the W(D) test? — Trial judge properly instructed on W(D) and provided detailed reasons for credibility findings — No palpable and overriding error demonstratedEvidence — Photographic and medical evidence — Misapprehension of evidence — Appellant argued trial judge misused photographic and medical records without expert evidence — Did the trial judge err in relying on this evidence? — Trial judge entitled to assess photographic evidence and medical records as corroborative of complainant’s injuries — No misapprehension of evidence shown

• R v Ukuqtunnuaq, 2025 NUCA 8 (CanLII)

  October 22, 2025

  Criminal procedure — Appeals — Fresh evidence — Sexual assault conviction — Appellant sought to admit affidavit from family member as fresh evidence on appeal — Whether the application to admit fresh evidence should be granted — Governing principles for admitting fresh evidence on appeal include due diligence, relevance, credibility, and probative value — Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)(d)Evidence — Fresh evidence on appeal — Due diligence — Appellant unaware of family member’s observations at trial — Family member did not disclose observations until after sentencing — Whether appellant met due diligence criterion for admitting fresh evidence — Due diligence not a prerequisite for admission in criminal cases but remains an important factor — Palmer v The Queen, [1980] 1 SCR 759Evidence — Interests of justice — Balancing finality and fairness — Fresh evidence contradicted complainant’s testimony and could have affected trial outcome — Whether admitting fresh evidence serves the interests of justice — Interests of justice require consideration of relevance, credibility, probative value, and due diligence — R v Hay, 2013 SCC 61; R v Lévesque, 2000 SCC 47Evidence — Remedy — New trial — Fresh evidence not decisive enough for immediate disposition — Appeal allowed and new trial ordered — Governing framework for ordering retrials when fresh evidence is admitted — R v Hay, 2013 SCC 61

• R v Ulayuruluk, 2025 NUCA 7 (CanLII)

  September 26, 2025

  Criminal infractions — Second-degree murder — Intoxication — Specific intent — Appellant convicted of second-degree murder after stabbing victim with significant force — Did the trial judge err in finding the appellant had the specific intent for murder despite intoxication? — Application of "common-sense inference" to determine intent — R v Walle framework applied to assess foreseeability of consequences and intentEvidence — Intoxication — Circumstantial evidence — Trial judge relied on circumstantial evidence, including severity of the stab wound, appellant's actions, and statements — Did the trial judge err in applying the "common-sense inference" without first finding the appellant knew the degree of force used? — Governing principles from R v Villaroman and R v Walle appliedEvidence — Cumulative assessment — Piecemeal analysis — Appellant argued trial judge failed to consider evidence cumulatively in determining intent — Did the trial judge err in assessing evidence piecemeal? — Trial judge's reasons demonstrated consideration of all evidence, including intoxication, remorse, and lack of motiveCriminal procedure — Appeals — Sufficiency of reasons — Appellant challenged trial judge's reliance on circumstantial evidence and reasoning process — Was the trial judge's reliance on circumstantial evidence sufficient to prove intent beyond a reasonable doubt? — Trial judge's findings upheld on appeal, with no error in reasoning or application of legal principles

• R v Qiyuk et al., 2025 NUCA 6 (CanLII)

  July 23, 2025

  Indigenous peoples — Traditional hunting rights — Section 35 of the Constitution Act, 1982 — Mandatory driving prohibition under section 320.24(1) of the Criminal Code — Does the prohibition infringe on Inuit rights to hunt for sustenance and cultural purposes? — Insufficient evidence to establish a meaningful diminution of rights — Framework for assessing section 35 claims in the context of modernized traditional practicesCriminal procedure — Charter of Rights — Section 7 — Liberty and security of the person — Mandatory driving prohibition under section 320.24(1) of the Criminal Code — Does the prohibition infringe liberty or security of Inuit sustenance hunters? — No evidence of significant interference with fundamental life choices — Principles of fundamental justice upheldCriminal procedure — Charter of Rights — Section 12 — Cruel and unusual punishment — Mandatory driving prohibition under section 320.24(1) of the Criminal Code — Does the prohibition constitute cruel and unusual punishment for Inuit sustenance hunters? — No grossly disproportionate impact demonstrated — Framework for assessing section 12 claimsCriminal procedure — Charter of Rights — Section 15 — Equality rights — Mandatory driving prohibition under section 320.24(1) of the Criminal Code — Does the prohibition create a discriminatory distinction against Inuit sustenance hunters? — No prima facie case of disproportionate effect or perpetuation of disadvantage — Test for section 15 discrimination claimsConstitution — Judicial authority — Declaratory jurisdiction — Sentencing judge’s power to issue declarations of constitutional inconsistency — Does a summary conviction court have jurisdiction to make broad declarations of law? — Superior court jurisdiction under section 573(2) of the Criminal Code — Limits on declaratory power in criminal proceedings

• R v Tuluqtuq, 2025 NUCA 5 (CanLII)

  July 10, 2025

  Criminal procedure — Sentencing — Imposition of illegal sentence — Appellant convicted of sexual assault under section 271 of the Criminal Code — Sentencing judge imposed a sentence exceeding the maximum allowed for summary conviction — Did the sentencing judge err by imposing an illegal sentence? — Maximum sentence for summary conviction under section 271(b) is 18 months unless the complainant is under 16 years oldCriminal procedure — Joint submissions — Public interest test — Sentencing judge rejected joint submission for a conditional sentence order — Did the sentencing judge err in rejecting the joint submission? — Public interest test from R v Anthony-Cook requires joint submissions to be accepted unless they would bring the administration of justice into disreputeCriminal procedure — Sentencing afresh — Appellate court required to sentence afresh after finding errors in sentencing judge’s decision — Joint submission for a 120-day conditional sentence order and 12-month probation order accepted — Should the appellate court impose the joint submission? — Framework for sentencing afresh under Anthony-Cook and R v KritaqlilukStatutory interpretation — Criminal Code — Maximum sentence for summary conviction under section 271(b) — Sentencing judge imposed a sentence exceeding the statutory maximum — Did the sentencing judge err in interpreting the sentencing provisions of the Criminal Code? — Section 271(b) limits imprisonment to 18 months for summary conviction unless the complainant is under 16 years old

• R v Ikkidluak, 2025 NUCA 4 (CanLII)

  July 10, 2025

  Criminal procedure — Sentencing — Joint sentencing recommendations — Rejection of joint recommendations after trial — Sentencing judge rejecting a four-year joint recommendation and imposing a nine-year sentence — Did the sentencing judge err in rejecting the joint recommendation without sufficient notice or reasons? — Framework for assessing joint sentencing recommendations post-trial — R v Anthony-Cook, 2016 SCC 43, appliedEvidence — Sentencing — Gravity of offences — Mischaracterization of facts — Improper reliance on more egregious precedents — Sentencing judge misdescribing the facts of the third assault and comparing the case to more severe sexual assault cases — Did the sentencing judge err in assessing the gravity of the offences? — Requirement to situate offences on a spectrum of seriousnessIndigenous peoples — Sentencing — Rehabilitation and collateral consequences — Offender’s prospects for rehabilitation and impact of incarceration on Indigenous offenders — Sentencing judge failing to consider the appellant’s loss of employment, family separation, and rehabilitation prospects — Did the sentencing judge err in failing to account for collateral consequences and rehabilitation? — Gladue principles and collateral consequences in sentencingCriminal procedure — Sentencing — Totality principle — Application of totality principle to consecutive sentences — Sentencing judge imposing a nine-year sentence without adequately considering proportionality or rehabilitation — Did the sentencing judge err in applying the totality principle? — Requirement to ensure combined sentence is not unduly harsh or crushing — R v Hutchings, 2012 NLCA 2, applied

• R v PU, 2025 NUCA 3 (CanLII)

  June 3, 2025

  Criminal procedure — Sentencing — Mandatory minimum sentences — Appellate intervention — Sentencing judge failed to impose the mandatory minimum sentence under section 151(a) of the Criminal Code — Was this an error in principle requiring appellate intervention? — Failure to impose a lawfully required sentence constitutes an error in principle requiring appellate intervention — Criminal Code, R.S.C. 1985, c. C-46, s. 151(a)Criminal procedure — Sentencing — Proportionality — Denunciation and deterrence — Sentence imposed was demonstrably unfit — Did the sentence fail to account for the gravity of the offence and the principles of proportionality, denunciation, and deterrence? — Sentences for sexual offences against children must reflect the seriousness of the offence and the harm caused — Criminal Code, ss. 718, 718.01, 718.1Evidence — Fresh evidence on appeal — Post-sentencing conduct — Respondent sought to introduce fresh evidence regarding compliance with probation and personal circumstances — Should the appellate court consider fresh evidence in determining a fit sentence? — Fresh evidence may be admitted if it is in the interests of justice and relevant to the issue on appeal — Palmer v The Queen, [1980] 1 SCR 759Indigenous peoples — Sentencing — Gladue principles — Indigenous offender subjected to sexual abuse as a child — How should Gladue considerations influence sentencing for an Indigenous offender convicted of sexual offences against children? — Sentencing must consider systemic and background factors affecting Indigenous offenders and the potential for alternative sanctions — Criminal Code, s. 718.2(e); R v Gladue, [1999] 1 SCR 688; R v Ipeelee, 2012 SCC 13Statutory interpretation — Criminal Code — Mandatory minimum sentences — Section 151(a) of the Criminal Code imposes a one-year mandatory minimum sentence for sexual interference — Was the mandatory minimum sentence properly applied? — Mandatory minimum sentences must be imposed unless their constitutionality is successfully challenged — Criminal Code, s. 151(a)

• R v Ittigaitok, 2025 NUCA 2 (CanLII)

  March 24, 2025

  Criminal procedure — Appeals — Extension of time to appeal — Dangerous offender designation — Long-term supervision orders — Appellant filed late appeal arguing designation unreasonable and sentence uninformed — Delay of 18 months for filing Notice of Appeal — Was the appellant entitled to an extension based on the interests of justice? — Factors from R v Ammar and R v Canto govern extensions of appeal deadlinesCriminal procedure — Dangerous offender designation — Trial judge’s findings — Predicate offence — Criteria in Criminal Code, s. 753 — Joint submission by the parties — Was the trial judge's acceptance of the designation reasonable, and did it comply with statutory requirements? — The presumption under s. 753(1.1) and its proper applicationCriminal procedure — Sentencing — Joint submissions — Long-term supervision orders (LTSO) — Sentence based on joint recommendation of three years and six-year LTSO — Did the trial judge err in accepting the joint submission for sentencing? — Stringent test for joint submissions under R v Anthony-CookEvidence — Dangerous offender assessments — Language of assessment — Appellant contended assessment should have been conducted in Inuktitut — Assessment completed in English with appellant’s consent — Was the dangerous offender assessment proper without linguistic accommodations? — The appellant must provide evidence of compromise in communication to argue procedural deficienciesIndigenous peoples — Sentencing — Gladue principles — Absence of a formal Gladue report — Indigenous appellant raised issue post-sentencing — Trial judge took judicial notice of systemic Indigenous disparities — Did the trial court adequately consider Gladue factors notwithstanding the absence of a formal report? — Judicial notice under R v Ipeelee regarding Colonialism’s impact on Indigenous offenders

• R v Nakashook, 2025 NUCA 1 (CanLII)

  March 10, 2025

  Criminal procedure — Sentencing — Rejection of joint submissions — Appeal court reviewing sentencing judge's approach — Sentencing judge rejected joint submission and imposed a longer sentence — Did the sentencing judge err in rejecting the joint submission without properly applying the public interest test? — Joint submissions cannot be rejected unless they would shock the public conscience or undermine the administration of justice — R v Anthony-Cook, 2016 SCC 43Criminal procedure — Sentencing — Systemic benefits of joint submissions — Deference to joint Crown-defence proposals — Sentencing judge dismissed the systemic benefits and quid pro quo offered in the submission — Did the sentencing judge fail to properly weigh the systemic benefits and concessions of the joint submission? — Stringent public interest test encourages resolutions and facilitates efficient justice — Anthony-Cook and systemic reliability emphasizedIndigenous peoples — Sentencing — Gladue factors — Rehabilitation and overrepresentation — Appellant experienced a traumatic upbringing, systemic marginalization, and pre-sentence custody hardship — Should the appellant's Gladue factors and pre-sentence custody have been given more weight? — Judicial discretion in sentencing must consider systemic disadvantages and the unique circumstances of Indigenous offenders — Criminal Code, ss. 718.2(e), 719(3.1)

• R v Aupilardjuk, 2024 NUCA 16 (CanLII)

  October 23, 2024

  Criminal procedure — Judicial interim release — Summary conviction appeals — Application for release pending appeal under s. 816 of the Criminal Code — Whether test for judicial interim release requires demonstrating undue hardship or arguable case — Criteria for granting release — Balancing public versus individual interests — Release conditions based on applicant’s compliance and family tiesStatutory interpretation — Section 816 of the Criminal Code — Scope of release pending appeal — Whether undue hardship is required under Criminal Code for interim release — Statutory and judicial guidance on evaluating undue hardship versus arguable case thresholdsCriminal infractions — Sentencing — Use of withdrawn charges — Defendant’s prior charges referenced by sentencing judge — Compatibility with principles in R v Angelillo and s. 725 of Criminal Code — Requirement for consent to consider withdrawn charges — Lawful discretion exercised by CrownEvidence — Appellate review of findings — Sentence appeals based on judicial errors — Evidence of applicant’s compliance as relevant to release decision — Lack of transcript causing uncertainty on prejudicial remarks by sentencing judge — Use of prior case law, including R v Lacasse, in sentence review

• R v Mucpa, 2024 NUCA 15 (CanLII)

  October 21, 2024

  Criminal procedure — Charter breaches — Statements to police — Right to counsel under s. 10(b) Charter — Appellant gave inculpatory statements after police failed to fulfill their Prosper obligations — Trial judge admitted statements pursuant to s. 24(2) Charter — Did the trial judge err in admitting statements after finding that the Charter breach was not serious and had minimal impact? — Ruling affirmed as breach did not render evidence inadmissible under GrantCriminal procedure — Voir dire — Use of criminal record — Admissibility of criminal record in voir dire to assess right to counsel and voluntariness of statements — Trial judge improperly admitted criminal record, inferring past police explanations of right to remain silent — Admission ruled harmless as trial judge relied on direct evidence of voluntariness and comprehension by the appellantConstitution — Charter — Exclusion of evidence under s. 24(2) — Statements obtained after s. 10(b) Charter breach — Test from Grant applied — Trial judge found breach moderately serious but minimally impacting appellant’s rights — Did admission of statements undermine justice’s reputation? — Proper balancing of Charter interests did not necessitate exclusionConstitution — Charter connection analysis — Later statements to police — Whether appellant’s statements to Cst. Pigeon were causally or contextually connected to prior s. 10(b) breach — Statements made 15 hours later, after consultation with counsel — Contextual disconnection from breach found — Proper reliance on additional caution by police and appellant’s informed decision to speakCriminal infractions — Mens rea — Specific intent for second degree murder — Appellant’s acts deliberate and purposeful — Ability to appreciate consequences despite mental illness and cognitive impairments — Did mental health and neurocognitive deficits preclude specific intent? — Trial judge properly found lucidity and deliberate intentionality at time of offenceCriminal procedure — Sentencing — Parole ineligibility — Trial judge imposed 20-year period treating mental illness as aggravating factor and characterizing offence as “near first-degree murder” — Errors in principle found — Fit sentence determined at 13 years of parole ineligibility, balancing seriousness of offence, Gladue factors, and mitigating elements