R. v. Oyukuluk, 2014 NUCJ 33

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Oyukuluk, 2014 NUCJ 33 Date: 20141022 Docket: 01-13-50; 01-13-56 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Janey Oyukuluk ________________________________________________________________________ Before: The Honourable Madam Justice Mossip Counsel (Crown): A. Dion Counsel (Accused): M. Christie Location Heard: Arctic Bay, Nunavut Date Heard: October, 22, 2014 Matters: Criminal Code, ss. 270.1(1) (a); 430(4); 264.1(1)(

a) x 2; 145(1)(

a) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) Amended Decision: An amended decision was issued on November 25, 2014; the corrections have been made to the text and the explanation of the amendment is appended to this judgment.

I. INTRODUCTION [ 1 ] Ms. Oyukuluk is charged in a four-count information with various offences arising out of events that occurred in Arctic Bay on October 6, 2013 (Court File # 01-13-56). She pleaded guilty to count one in the Information, namely, assaulting Cst. Stephen Brown, a peace officer with the RCMP, engaged in the execution of his duty, contrary to section 270(1) (

a) of the Criminal Code . Ms. Oyukuluk also pleaded guilty to escaping lawful custody at the Royal Canadian Mounted Police (RCMP) detachment on a separate one-count Information (Court File # 01-13-50). [ 2 ] This trial, therefore, proceeded on the three remaining charges from Court File # 01-13-56, namely: 1. A mischief charge, that is, by wilfully damaging the window of Maggie Kilabuk, the value of which did not exceed $5,000.00; 2. Uttering a threat to RCMP Constables (Cst). Brown and Bulford to cause death or serious bodily harm to Maggie Kilabuk; and 3. Uttering a threat to Cst.

Brown to cause death or serious bodily harm to the child of Cst. Brown. [ 3 ] The witnesses at this trial were, for the Crown, Maggie Kilabuk and Cst. Sean Bulford. Janey Oyukuluk testified on her own behalf. II. THE FACTS [ 4 ] Although I will below make several findings of fact which are disputed between the Crown and Defence, the following facts are not really in dispute: • On October 6, 2013, Ms. Oyukuluk and her friend Veronica Ettuk drank at some point a 60-ounce bottle of liquor.

They had been out on the ice on a four-wheeler and then they came back into town; • They attended at the home of Maggie Kilabuk, who at some point when they were approaching locked her door. There was some kind of a confrontation between the women about Ms. Kilabuk being involved with Ms. Oyukuluk’s boyfriend. A rock or rocks were thrown at Ms. Kilabuk’s living room window, and there was damage to the outside of a window that had two layers of glass; • Ms. Oyukuluk and Ms. Ettuk left Ms. Kilabuk’s home and continued drinking.

At some point they arrived in the parking lot of the community center in Arctic Bay; • The RCMP had been called by Ms. Kilabuk because of the broken window. Cst. Brown and Cst. Bulford eventually caught up with Ms. Ettuk and Ms. Oyukuluk who they arrested for mischief and put in the truck to go back to the detachment. Ms.

Ettuk initially had run away, but the police caught up with her and both women were both put into the truck to go back to the detachment; • The ride in the truck and some of the interaction between the constables and the two women was captured on audio tape which was played at the trial; • It is not disputed that upon arrest, Ms. Ettuk was extremely intoxicated and out of control. She was swearing and screaming at the constables. Ms. Oyukuluk at the time of the arrest was calmer and more in control. She tried to calm Ms. Ettuk down and at one point said to Ms.

Ettuk that the constables were, “just doing their jobs.” • It is also not disputed that once Ms. Oyukuluk was put into the cells, she became very agitated as well, screaming and being verbally abusive. Her comments, which are the subject matter of the charges were to some extent captured on audio tape, also played at the trial.

[5] The essential facts which are disputed and which are left for me to decide are: 1. With respect to count one: who threw the rock that broke Ms. Kilabuk’s window; and 2. How in control or out of control by alcohol was Ms. Oyukuluk when she uttered what the Crown calls ‘threats’ for the basis of countstwo and three. Therefore, what was her mental and physical state at the time she uttered the words that were captured on the audio; III. POSITION OF THE PARTIES A. Defence [6] The position of the Defence in essence is that the utterances of Ms. Oyukuluk at the RCMP detachment cannot meet the legal testfor a conviction under Criminal Code

section 264.1(1)(

a) as there is neither the actus reus, in that no reasonable person would considerher drunken ramblings a threat, and there was no mens rea because she did not knowingly mean her utterances to be taken as threats.. [7] With respect to the mischief charge, the Defence position is that I should have a reasonable doubt that it was Ms. Oyukuluk whothrew the rock which broke Ms. Kilabuk’s window. B. Crown [8] The position of the Crown is that a reasonable person placed in the same circumstances, and viewing this from the shoes of theRCMP constables, would consider the utterances of Ms.

Oyukuluk a threat against both Ms. Kilabuk and the RCMP officer’s child. [9] Further, the Crown’s position is that Ms. Oyukuluk was, by her own admission, angry at Ms. Kilabuk and she intended her words tobe taken as a threat; she knew the words she uttered at the detachment could objectively be considered a threat against Ms. Kilabuk andCst. Brown’s child. [10] The position of the Crown with respect to the mischief charge is that I should be satisfied beyond a reasonable doubt on theevidence that it was Ms. Oyukuluk who threw the rock at Ms. Kilabuk’s window and broke it. IV. ANALYSIS [11] Ms.

Oyukuluk testified at this trial, and the principles in R v W(D), [1991] 1 SCR 742, (SCC), apply to hertestimony. It is helpful to set those principles out here: 1. If I believe Ms. Oyukuluk’s testimony I must acquit her of the charges; 2. Even if I do not believe Ms. Oyukuluk’s testimony, if it leaves me with a reasonable doubt of her guilt I must acquit; 3. Even if Ms.

Oyukuluk’s testimony does not leave me with a reasonable doubt of her guilt, I may only convict her if the rest of herevidence, testimony that I do accept, proves her guilt of the offences beyond a reasonable doubt. [12] As is true in all criminal cases, the burden of proof rests on the Crown to prove the guilt of Ms. Oyukuluk, of the offences, beyond areasonable doubt, and Ms. Oyukuluk never has to prove anything, in particular her innocence. A. Charge #1 [13] With respect to this charge, it is one that is resolved completely by my view of the facts: who threw the rock that broke Ms.

Kilabuk’s window. There are two different versions on this point. At trial, Ms. Kilabuk stated several times that she saw Ms. Oyukulukthrow the rock at her window. In her statement to the police, at one point she said she did not see who threw the rock because she wasrunning to the door. In re-examination she was taken to other parts of her police statement where she told the police that she saw Ms.Oyukuluk throw the rock. She did not adopt the statement put to her by Defence counsel, so her evidence at trial is that she saw Ms.Oyukuluk throw the rock.

Her testimony was a bit confusing, but that could also have been the nature of the cross-examination questions.She admitted that she was telling the truth when she said to the police that she did not see who threw the rock. I am confident that Ms.Kilabuk herself believes she saw Ms. Oyukuluk throw the rock. [14] Ms. Oyukuluk testified that Veronica Ettuk passed her a rock and she did throw it at the window, but it fell short. She testified thatMs. Ettuk then herself picked up a rock and basically showed Ms. Oyukuluk how to do it, and threw the rock at the window, hit thewindow, and broke it. Ms.

Oyukuluk said that although she had tried to hit the house, she did not want to get into trouble either and,therefore, that was one of the reasons why her rock did not hit the house. [15] I cannot on all of the evidence be satisfied beyond a reasonable doubt that it was Ms. Oyukuluk who threw the rock that broke thewindow. At the time of the incident, there was a lot of yelling, moving around, and excitement. I have no doubt Ms. Oyukuluk was in themiddle of it and may have thrown a rock at the house which Ms. Kilabuk probably saw. I am not sure, however, if it was her rock thatbroke the window.

Given the level of intoxication of Ms. Ettuk, she could well have been the instigator, and the one who threw the rockthat hit the window. I cannot be sure it was Ms. Oyukuluk who threw the rock that broke the window, and she is entitled to the benefit ofmy doubt as long as the doubt is based on evidence and is reasonable. There will therefore be a finding of not guilty with respect tocharge one. B. Charges 2 & 3 [16] These are clearly the more serious offences and were the more challenging to deal with. [17]

Section 264.1(1)(

a) of the Criminal Code provides that everyone commits an offence who in any manner, “knowingly utters,conveys or causes any person to receive a threat to cause death or serious bodily harm.” If they do that they are guilty of the offence inthat

section of the Criminal Code. [18] Two cases, namely R v Clemente, (SCC), [1994] 2 SCR 758, 91 CCC (3d) 1 (Clemente), and R v Batista, 2008ONCA 804, 238 CCC (3d) 97 (Batista), were referred to me by both counsel. These cases provided a helpful analysis of what the Crownmust prove beyond a reasonable doubt in order to prove the guilt of an accused under this section. [19] At paragraphs 18 of Batista, Lang J.A. wrote: [18] Thus, the Crown is required to prove two elements essential to the offence of uttering a threat.

These elements are described inWatt’s Manual of Criminal Jury Instructions (Toronto: Thomson Canada Limited, 2005), at p. 507, which I summarize. First, the Crownmust establish that the appellant made a threat to cause the councillor’s death; and second, that he made the threat knowing that it wouldbe taken seriously. [20] In paragraphs 19 and 20, Lang, J.A. went on: [19] To satisfy the first element, the Crown is required to prove that, when viewed objectively, an ordinary reasonable person wouldconsider the appellant’s poem amounted to a threat to cause Ms. Saito’s death.

In considering whether a threat was made, the ordinaryreasonable person would take into account all the circumstances, including the manner in which the words were communicated, theaudience to whom it was addressed and the relationship between the writer and the subject of the alleged threat. [20] The determination of whether the poem constitutes a threat in law requires a reasonable person to consider the context orcircumstances in which it was made.

Before arriving at a conclusion whether the impugned words or gestures constitute a threat, a courtmust consider all the circumstances both individually, and as a whole.

[ 21 ] But what is important, so you understand what I am going to say next, is set out in paragraph 19: [19] To satisfy the first element, the Crown is required to prove that, when viewed objectively, an ordinary reasonable person would consider the appellant’s poem amounted to a threat to cause Ms. Saito’s death... [ 22 ] So then I go on. [ 23 ] I, therefore, must consider whether the words spoken by Ms. Oyukuluk, while she was in the cells at the RCMP detachment, constituted a threat, which is a question of fact. It is, as set out above, a finding of fact, but it is a legal determination.

I must consider what an ordinary reasonable person considering an alleged threat objectively, informed of all of the circumstances relevant to his or her determination would include accepting that Ms.

Oyukuluk said the words that she was going to, quote, “fuck up” Maggie, and she knows that to mean, quote, “beat up”, and she said the words about guns and the RCMP officer’s child and what she might or might not do, as best we could understand it from the audiotape, I must consider whether a reasonable person, considering whether those words amounted to a threat at law is, what would an “objective, fully informed, right minded, dispassionate, practical and realistic” think. [ 24 ] In deciding this issue, it is not simply for me to consider the opinion of Cst.

Bulford who testified that he found these words threatening and that they upset him and Cst. Brown. As Lang, J.A. said in paragraph 26, halfway through the paragraph: None of the witnesses applied the legal test that asks whether a reasonable person, fully informed of the circumstances, considering the matter objectively, would consider the impugned words as a threat, nor were they asked to do so. In this case, neither the enforcement officer nor the police officer considered the poem in the light of all the circumstances. While Ms.

Saito may have been distressed by the poem, her view was subjective rather than objective. The perspective of the reasonable person is different from that of the three witnesses relied upon by the Crown. [ 25 ] That is applicable in the case before me. Cst. Brown and Cst.

Bulford’s view is a subjective one, not an objective one. [ 26 ] Lang, J.A. goes on further to write in paragraph 27 [of Batista]: [ 27 ] The reasonable person would consider the context of the relationship between the author and the subject of the poem as important to a determination of whether it constitutes a threat. [27] And further in paragraph 30: [30] The relationship between the appellant and the councillor provides context to whether the Crown satisfied the legal test that the poem constituted a threat. [ 28 ] And lastly, in paragraph 44, Justice Lang wrote: [44] In my view, in the light of the entire context, no reasonable person, fully informed, could interpret the appellant’s poem as a threat that could be taken seriously.

No matter how misguided, offensive, and badly written the poem, the words at issue cannot meet the legal definition of a threat. [ 29 ] Based on this

interpretation of the requirements to find a person guilty under this section, the Crown had not met its burden and the appellant was acquitted.

[30] On the facts before me, considering the context in which the impugned words were spoken by Ms. Oyukuluk, was that of a small,twenty-one-year-old Inuit woman, who had drunk a lot of alcohol. She initially was very calm and cooperative with the police, as Cst.Bulford told us. [31] Once she was put in the same cell as the very intoxicated Ms. Ettuk, she was frankly out of control and abusive. In terms of thecontext of the relationship between Ms. Oyukuluk and the RCMP officers, and the power imbalance in which she had none and theofficers had it all; both physically, emotionally, and mentally.

She was by the tape, Cst. Bulford’s evidence, and her own testimony, verydrunk. [32] She testified that she went in and out of blackouts. She was at times more rationale and at other times totally irrational andscreaming. She was screaming very nasty and violent words. [33] I believe a reasonable person, fully informed of all of the circumstances, including the condition of Ms.

Oyukuluk, herincarceration, the condition of her friend who had been screaming for many minutes at that point, and who had wound her up so so-to-speak, the fact that she had been moved into her own cell and was losing all control and saying outrageous things, objectively looking atthe entire context of her, and the relationship between her and the constables, would not interpret her outrageous words and conduct as athreat to be taken seriously. [34] She was an intoxicated, small Inuit woman, locked behind bars, screaming profanities and nasty words at two constables on theother side of her cell bars.

These words, as Lang, J.A. said, as “misguided, offensive and inappropriate” as they were, for the abovereasons, cannot meet the legal definition as set out above of a threat with respect to either Ms. Kilabuk or the child of Cst. Brown. [35] As to the mens rea of the offence, I am not satisfied beyond a reasonable doubt that Ms. Oyukuluk knew the words she was sayingwould be taken seriously as a threat by the constables. Ms. Oyukuluk testified that she does not recall making threats to the RCMPofficers; she does not wish bad things for the RCMP.

She also testified that she does not own any guns and that she would never hurt theRCMP officers’ children. [36] As set out in Clemente, the mens rea of this

section is that the words be spoken or written as a threat to cause death or serious bodilyharm; that is, they were meant to intimidate or to be taken seriously. [37] I find on the evidence before me, that Ms. Oyukuluk did not say these words with the requisite intention required to meet the mensrea of this offence. [38] There was an additional case I found which dealt with drunkenness and how it might affect the intention of an accused needed forthis section.

In the decision of R v Bone, (MB CA), [1993] MJ No. 222, 81 CCC (3d) 389 (Man CA), the courtwrote at the second last page of that decision: Although no express purpose is required for the offence of uttering a threat, the offence must be committed knowingly. The mere use ofwords which constitute a threat is not consequently enough. The accused must also intend the words to instill fear in someone: see R. v.McCraw, (SCC), [1991] 3 SCR 72 at p. 82. As was pointed out by Cory, J. In R. v.

McCraw (at p. 82), “The determination as to whether there was such a subjective intent will oftenhave to be based to a large extent upon a consideration of the words used by the accused.” Nonetheless, a trier of fact must find theaccused to have had the subjective intent, an intent which goes beyond the mere utterance of the words. [39] The Manitoba Court of Appeal went on to write: Although an inference can be drawn from the words used that the accused intended to instill fear in someone, - (which is what Clementewas all about) - they must be considered in the context of the circumstances in which they were uttered.

The specific intent to instill fearcan only be inferred if the circumstances permit. The drunkenness of the person making the utterance is a circumstance which must beconsidered.

The learned trial judge erred in treating both offences as ones of general intent - (the other one was a touching for a sexual purpose interestingly enough). The accused’s drunkenness was a factor which should have been taken into account. The failure of the trial judge to do so necessitated at least a new trial. [ 40 ] In that case, the trial judge, as set out, did not take into account the accused’s drunkenness as a factor in deciding whether the accused had the subjective mens rea required for a conviction under

section 264.1(1) (a). The Court of Appeal entered an acquittal on the charges based on the Crown’s concession at the Court of Appeal that the accused did not have the subjective mens rea required for this offence. [ 41 ] On all of the evidence, therefore, I am not satisfied beyond a reasonable doubt that either the actus reus or the mens rea of the offence has been met in charges 2 and 3 and I enter a finding of not guilty on those counts. Dated at the City of Iqaluit this 22th day of October, 2014 ___________________ Justice N.

Mossip Nunavut Court of Justice _______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Madam Justice Mossip _______________________________________________________ On the frontispiece, the location of the hearing has been changed from “Resolute Bay, Nunavut” to “Arctic Bay, Nunavut.” In paragraph [01]: • The pinpoint of “Ms Oyukuluk is charged ….” has been changed from “…in Arctic Bay on October 6, 2013.” to “…in Arctic Bay on October 6, 2013 (Court File # 01-13-56).” • The pinpoint of “…the Criminal Code .” has been changed to “…the Criminal Code.” • The pinpoint of “Ms.

Oyukuluk was pleaded guilty…” has been changed to “Ms. Oyukuluk also pleaded guilty to escaping lawful custody at the Royal Canadian Mounted Police (RCMP) detachment on a separate one-count Information (Court File # 01-13-50).”

In paragraph [02], the sentence has been changed from “[2] This trial, therefore, proceeded on three charges, namely:” to “[2] This trial, therefore, proceeded on the three remaining charges from Court File # 01-13-56, namely:” Please replace the amended pages in your hard copy of the judgment.