Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Akpaleapik, 2020 NUCJ 18

Date: 20200429
Docket: 08-18-686
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Kelly Akpaleapik

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): G. Lyndon

Counsel (Accused): M. Manocchio

Location Heard: Iqaluit, Nunavut

Date Heard: February 19, 2020
Matters: Application to withdraw guilty plea

REASONS FOR JUDGMENT

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

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I. INTRODUCTION

[1] The accused, Kelly Akpaleapik, has applied to the Court to withdraw
his guilty pleas to assault and sexual assault which he entered on 5
June 2019. A brief explanation of what led to his guilty pleas will put
his application into context.

II. BACKGROUND

[2] Mr. Akpaleapik was charged with 11 Criminal Code1 offences on an

Information sworn on 2 October 2018. Mr. Akpaleapik was arraigned
on the charges the next day. The Crown elected to proceed by
Indictment and withdrew four of the charges. Mr. Akpaleapik elected
to be tried by a judge sitting alone and without a preliminary inquiry.
Mr. Akpaleapik entered not guilty pleas to the remaining seven
charges and his trial was scheduled for 9 January 2019. Mr.
Akpaleapik was represented that day by Legal Aid duty counsel.

[3] Mr. Akpaleapik appeared in court with a different lawyer (Lawyer 2) on

9 January 2019, but the trial did not go ahead. There is no
endorsement on the Information explaining the reason(s) for the
adjournment. Mr. Akpaleapik then appeared in court again on 4
February with Lawyer 2. His trial was rescheduled that day to 5 June
2019.

[4] On 5 June, Mr. Akpaleapik appeared in court accompanied by Lawyer

2. The trial did not proceed. Instead, Mr. Akpaleapik changed his
pleas from not guilty to guilty respecting the assault and sexual
assault, and his lawyer requested a pre-sentence report. The
sentencing hearing was then set for 19 August 2019.

[5] The Indictment’s endorsements show that the sentencing hearing did
not go ahead on 19 August 2019 although the pre-sentence report
had been filed. For reasons unexplained, the sentencing was then
adjourned to 10 October 2019, then to 6 November 2019, then to 17
December 2019, and finally to 10 January 2020. Mr. Akpaleapik
continued to be represented by Lawyer 2 throughout.

1
Criminal Code, R.S.C. 1985, Chap. C-46.
 3

[6] Mr. Akpaleapik appeared in court on 10 January 2020. This time,

however, he was represented by a different lawyer (Lawyer 3).
Lawyer 3 told me that Mr. Akpaleapik wanted to withdraw his guilty
pleas, plead not guilty and request another trial.

[7] I note that a total of 214 days and six separate court appearances
happened between 5 June 2019—when Mr. Akpaleapik pleaded guilty
to assault and sexual assault—and his 10 January 2020 request to
have the Court strike his pleas.

[8] Mr. Akpaleapik’s new lawyer—Lawyer 4—filed a “Notice of

Application to Withdraw Guilty Plea” with the Court on 10 February
2010. I heard the application on 19 February, and I reserved my
decision. These are my reasons for judgment.

III. THE LAW

[9] The law which I must apply on this application is well settled.

A. Criminal Code section 606(1.1)

[10] A judge may accept a guilty plea from an accused only if he is

satisfied that the following four criteria have been met: that the
accused

1. is making his guilty plea voluntarily;

2. is admitting the basis of the Crown’s case;
3. understands the nature and consequences of his guilty plea;
and
4. understands that the judge is not bound to accept the
sentencing recommendations made by counsel.2

B. Criminal Code section 606(1.1) inquiry

[11] Where, as here, the accused who pleads guilty is represented by a

lawyer, he presumed to have satisfied these four conditions.3 While
Mr. Akpaleapik is presumed to have entered a valid guilty plea, that
assumption can be challenged. That is what this application is all
about.
2
Ibid, section 606(1.1).
3
See, for example, R v Robert Francis Fox, 2018 ONSC 1615 (CanLII), para 29, a decision of
Justice Graeme Mew. It is now considered to be best practice for the judge to canvass section
606(1.1) with counsel.
 4

C. The legal test to be met by the accused

[12] To be successful, Mr. Akpaleapik must satisfy me that his pleas were
not voluntary, that they were equivocal or ambiguous and that they
were not informed. Mr. Akpaleapik must show that there is a
“reasonable possibility” that he would not have pleaded guilty if the
circumstances had been different. I must apply a subjective test but
one which allows me to assess the objective credibility of Mr.
Akpaleapik’s subjective claim.4

D. The application

[13] The application to withdraw a guilty plea must be accompanied by an

affirmed or sworn affidavit from the accused.5 Any relevant witness
must also provide a properly affirmed or sworn affidavit and must be
available to be cross examined by the prosecution.

IV. THE ISSUES

[14] There are three issues for me to decide:

1. Did Mr. Akpaleapik enter his guilty pleas voluntarily?

2. Were Mr. Akpaleapik’s guilty pleas equivocal? and
3. Did Mr. Akpaleapik enter informed guilty pleas?

In my view, Mr. Akpaleapik has not established that there is a

reasonable possibility that he would not have pleaded guilty under
different circumstances. I must dismiss his application.

V. THE EVIDENCE AND POSITIONS OF THE PARTIES

A. Mr. Akpaleapik

[15] Mr. Akpaleapik filed a very brief 11 line document purporting to be an

affidavit supporting his application. Given its brevity, I cite it here in
full:

4
R v Wong, 2018 SCC 25; [20018] 1 S.C.R. 696, para 6.
5
Ibid.
 5

1. On June 5th, 2019, I plead guilty to counts #1 and # 3 in court file

08-18-686.
2. I was not under pressure to plead from the Court, the Crown
prosecutor or my counsel.
3. I was under considerable pressure from the complainant.
4. She harassed me and my common law spouse, Emily Arnaquq.
5. I plead guilty in the misplaced hope that the harassment would stop
once the charges were dealt with. The harassment continued.
6. I am not guilty of the charges and I believe I have a good defence
to those charges.
7. Attached to my affidavit, and marked as exhibit “A”, is an account
set out by Ms. Arnaquq with copies of some of the
communications from the complainant.
8. I was present for some of her account and I truly believe the
portion that I was not present for.
9. I wish to withdraw my guilty pleas and proceed to trial.

[16] Mr. Akpaleapik testified in support of his application. In direct

testimony, he told me that the complainant had “constantly harassed”
him, his common law and her daughter. He believed the harassment
would stop if he pled guilty, but it never did. He identified two incidents
in Ms. Arnaquq’s narrative where he was present. At some point, the
complainant contacted hem and told him he should plead guilty.

[17] Mr. Akpaleapik said he complained many times to the police, but they
did not take him seriously because the complainant worked for them.
He said he did not know that the complainant was subject to a court
order forbidding her from having contact with him and his common
law.

[18] Mr. Akpaleapik told me that Lawyer 2, who represented him from 9
January to 17 December 2019 never listened to “my side of the story”.
He went on to say that “every time” he tried to explain to her, she had
“deaf ears” to what he was saying. He eventually decided he wanted
another lawyer.

[19] In cross examination, Mr. Akpaleapik admitted that he had understood

that he might go to jail if he pleaded guilty. About 5 June, the day he
pleaded guilty, Mr. Akpaleapik said “It was a big day for me”. He wore
a blue dress shirt, and he remembered seeing the complainant in the
court room.
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[20] Defence counsel says that Mr. Akpaleapik was “overwhelmed” by

events when he entered his guilty pleas. “He didn’t know what to do”. I
infer from Defence counsel’s submissions that Mr. Akpaleapik’s guilty
pleas were involuntary because he felt he had no other choice. I
should strike the guilty pleas and permit him to go to trial.

B. The Crown

[21] The Crown prosecutor reviewed the applicable legal principles and
said that the issue would be resolved by the application of “first
principles”. He expressed a concern lest a refusal to strike the guilty
pleas lead to a miscarriage of justice. In his view, Mr. Akpaleapik had
met his legal burden and should succeed with his application, but “just
barely”.

VI. ANALYSIS

[22] I found Mr. Akpaleapik’s evidence to be entirely self-serving. The

burden was on him to show a reasonable possibility that he would not
have pleaded guilty in different circumstances. In my view, his
application was lacking in several critical ways. I will deal with each
one in turn.

[23] First, the 11 line document/affidavit filed by the Defence as part of his
application was signed by Mr. Akpaleapik on 6 February 2020. The
witness, his lawyer, is described as a Commissioner of Oaths. But,
the document is not in proper affidavit form. It does not recite that Mr.
Akpaleapik either was sworn or solemnly affirmed that the contents of
the document are true. As things transpired, this important procedural
flaw was not fatal as Mr. Akpaleapik testified and was cross examined
by the prosecutor.

[24] Second, Mr. Akpaleapik claimed that he was “constantly” harassed by

the complainant following the breakup of their 15-year relationship. By
way of proof, an unsworn 20 page narrative prepared by Mr.
Akpaleapik’s present common-law partner was appended to his
document/affidavit. In his document/affidavit, Mr. Akpaleapik said he
was present for “some” of the incidents mentioned in the narrative. In
direct examination, Mr. Akpaleapik identified only two occasions when
he said he witnessed harassment by the complainant. The remainder
of the appended narrative is simply the untested hearsay of an
interested party.
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[25] Section 61(1)(b) of the Nunavut Evidence Act6 provides that where a
witness may testify to events, her hearsay document is admissible if
she is a witness to the proceedings. There is no question that Ms.
Arnaquq could have testified to the contents of her 20 page
document. Her hearsay narrative would have been admissible as
evidence in this hearing had she been called as a witness subject to
cross examination. However, she was not called to testify.

[26] A wish to stop this alleged harassment was the only reason given by
Mr. Akpaleapik for why he pleaded guilty. In his mind, then, this was
the central issue. In my view, the Defence ought to have called
evidence on this issue.

[27] During Defence counsel’s submissions, I learned that Ms. Arnaquq

was in the courtroom. She ought to have been called as a witness
and made subject to cross examination by the prosecutor. I can only
place weight on the two incidents in her document which Mr.
Akpaleapik adopted in his courtroom evidence.

[28] Third, Mr. Akpaleapik claimed that he reported this harassment many
times to the police; however, the police did nothing because the
complainant was a civilian RCMP employee.

[29] This is a serious allegation. It is easy to make allegations when there

is no one present to refute them. As Mr. Akpaleapik had to show a
reasonable possibility he would not have pled guilty, I would have
expected the Defence to subpoena police records outlining these
many alleged reports to the police. On one occasion, Mr. Akpaleapik
claimed that the complainant tried to cause a head on collision while
he was in a vehicle and she in another. Mr. Akpaleapik claimed that
he had given a statement to the police about that incident. If this in
fact did happen, there would have been police records to confirm the
incident.

6
R.S.N.W.T. 1988, c.E-8
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[30] Next, Mr. Akpaleapik stated in court for the first time that the lawyer
who represented him for close to an entire year never listened to him
– she had, he said “deaf ears”. This, again, is a very serious
allegation; this time, one made against an officer of this Court. I would
have expected the Defence to have Mr. Akpaleapik waive solicitor-
client privilege so Lawyer 2 could file an affidavit outlining her
recollection of their solicitor-client relationship, the nature of the legal
advice she gave him, and his instructions to her.

[31] Furthermore, Mr. Akpaleapik signed his supporting document/affidavit

as recently as February 6th. He signed the document close to a
month after Lawyer 3 first told the Court that Mr. Akpaleapik wished to
withdraw his plea. Yet, Mr. Akpaleapik’s claim that Lawyer 2 never
listened to him is not mentioned in the document/affidavit. If there was
any traction to this complaint, I would have expected to see it front
and centre in the document/affidavit. This is, in my view, another
example of Mr. Akpaleapik’s self-serving, unsubstantiated allegations.

[32] An application to withdraw a guilty plea is not a mere formality. As the

prosecutor correctly said, it engages serious issues of fundamental
procedural fairness and justice. The applicant needs to put his best
foot forward if he is to show a reasonable possibility he would not
have pled guilty based on the three part legal test.

[33] I shall now address each part of the test in turn.

A. Did Mr. Akpaleapik enter his guilty pleas voluntarily?

[34] Mr. Akpaleapik entered two guilty pleas on 5 June 2019. The
presiding judge on 5 June did not discuss the implications of section
606(1.1) either with Mr. Akpaleapik directly or with his lawyer. Lawyer
2 asked the court clerk to read the two charges directly to Mr.
Akpaleapik and this was done. Mr. Akpaleapik then pleaded guilty
immediately to each charge once each one was read to him.

[35] The charges which were read to Mr. Akpaleapik were worded as
follows:

On or between the 1st day of October 2012 and the 31st day of
December 2012, at or near the City of Iqaluit in the Territory of
Nunavut, did commit an assault on [redacted] contrary to Section 266
of the Criminal Code.
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and

On or between the 1st day of October 2012 and the 31st day of January
2013, at or near the City of Iqaluit in the Territory of Nunavut, did
commit a sexual assault on [redacted] contrary to Section 271 of the
Criminal Code.

[36] Even accounting for the stress an accused would experience being in
court, the charges are not complicated or difficult to understand.

[37] Defence counsel asserted that Mr. Akpaleapik was “overwhelmed”

and that “he did not know what to do” when he pleaded guilty. The
evidence, however, does not support counsel’s assertions. There is
no evidence that Mr. Akpaleapik’s will was overborne – apart from Mr.
Akpaleapik’s evidence that he felt “hopeless” because the police were
ignoring his complaints against the complainant. I put little weight on
Mr. Akpaleapik’s evidence on this point.

[38] Mr. Akpaleapik stated in his document/affidavit that he was not

pressured into pleading guilty. He told me that he understood that he
might go to jail because he was pleading guilty. He was alive to the
importance of what he was about to do so he made a point to wear a
blue dress shirt to court on 5 June. He was aware of his surroundings,
and he recalled seeing the complainant present in the body of the
courtroom.

[39] Mr. Akpaleapik had had the benefit of legal advice available to him
from Lawyer 2 over a five month period before he pleaded guilty. He
continued to have the benefit of that advice through the autumn of
2019 as his sentencing hearing was continually adjourned. I reject his
claim that Lawyer 2 essentially ignored him and his instructions over
the course of their 11 month solicitor-client relationship.

[40] That said, I have no reason to reject Mr. Akpaleapik’s claim that one
of the reasons he pleaded guilty on 5 June 2019 was “in the
misguided hope the [complainant’s] harassment would stop once the
charges were dealt with”. However, this “misguided hope” only
reinforces the inference that Mr. Akpaleapik knew exactly what he
was doing, and that he made his pleas voluntarily. The alleged fact—
which I as I noted earlier has not been proven—that Mr. Akpaleapik
believed that the complainant continued her harassment despite the
guilty pleas is irrelevant to what was in his mind on 5 June 2019 when
he pleaded guilty.
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[41] In my view, the answer to question one is yes. Mr. Akpaleapik made
his guilty pleas voluntarily.

B. Were Mr. Akpaleapik’s guilty pleas equivocal?

[42] On 5 June 2019, Lawyer 2 asked the Court to take Mr. Akpaleapik’s
pleas directly from him.7 Mr. Akpaleapik immediately pleaded guilty to
each charge after it was read to him. His lawyer did not express any
equivocations or concerns on his behalf. Neither did Mr. Akpaleapik.
Nor did Mr. Akpaleapik ever assert any concerns he may have had
about his pleas either in his document/affidavit or in his sworn
evidence before me.

[43] In my view, the answer to question two is no, Mr. Akpaleapik did not
enter equivocal guilty pleas.

C. Did Mr. Akpaleapik enter informed guilty pleas?

[44] We do not have the advantage of an affidavit from Lawyer 2

addressing this issue. As I stated earlier, I would have expected to
receive such an affidavit in this type of application. In the absence of
any credible and reliable evidence to the contrary, I must infer that
Lawyer 2 provided professional legal advice to Mr. Akpaleapik during
their 11 month solicitor-client relationship.

[45] Mr. Akpaleapik has not persuaded me that he was not able to enter
an informed guilty plea to each of the two charges. Indeed, Mr.
Akpaleapik never asserted that fact either in his document/affidavit or
in his sworn evidence.

[46] The answer to question three is, therefore, yes. Mr. Akpaleapik
entered two informed guilty pleas.

7
Routinely, most lawyers enter their clients’ pleas on their behalf.
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VII. DECISION

[47] Mr. Akpaleapik has not satisfied me that there is a reasonable

possibility that he would not have pleaded guilty in different
circumstances. Mr. Akpaleapik’s case will proceed to sentencing.

Dated at the City of Iqaluit this 29th day of April, 2020

___________________
Justice P. Bychok
Nunavut Court of Justice