R v. Shaa, 2011 NUCJ 26

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. Shaa, 2011 NUCJ 26 Date: 20110913 Docket: 03-10-185 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Qavavau Shaa ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): M. Bryant and C. Punter Counsel (Accused): C. Lyons Location Heard: Iqaluit, Nunavut Date Heard: July 21, 2011 & September 8, 2011 Matters: Criminal Code, ss. 264.1 (1) (

a) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Qavavau Shaa is charged with a single count of uttering a threat to cause death or grievous bodily harm to Sergeant J. Maclaren of the RCMP. This is said to arise out of an incident in Cape Dorset on July 28, 2010. Mr. Shaa defends this charge by denying that he uttered any threat towards Sergeant Maclaren. II. THE CROWN EVIDENCE [ 2 ] On July 27, 2010, Qavavau Shaa was angry, desperate and drunk. He armed himself with a firearm and held the RCMP in Cape Dorset at bay for several hours.

Shots were fired. [ 3 ] Sergeant Maclaren, an 18 year veteran of the RCMP, had been involved in this incident. Mr. Shaa had trained his firearm on the Sergeant during this armed confrontation. [ 4 ] Subsequent to his arrest, Mr. Shaa was lodged in police cells. He received medical attention for a self-inflicted injury to his hand. Qavavau Shaa was brought before a Justice and remanded into custody in Iqaluit on multiple criminal charges related to the incident involving the firearm. [ 5 ] Transport of Mr. Shaa was arranged for the afternoon of July 28, 2010.

Sergeant Maclaren attended the Cape Dorset cell area to escort Mr. Shaa to the Cape Dorset airport. There was a verbal exchange between Qavavau Shaa and the Sergeant in the cell area while Mr. Shaa was being prepared for transport. Mr. Shaa complained about discomfort associated with the injury to his hand. [ 6 ] The Sergeant was exhausted. He had had only two hours sleep in the previous 24 hours due to ongoing police emergencies in Cape Dorset. The Sergeant was stern with Mr. Shaa. He told Mr. Shaa that he was selfish. He told Mr.

Shaa that he was very fortunate that he had not killed others in the course of his armed standoff with the RCMP. The Sergeant told Mr. Shaa that he should grow up. Qavavau Shaa was upset by this exchange. [ 7 ] At approximately 3:15 pm, Sergeant Maclaren together with a Constable Comte took Mr. Shaa out of cells. As Mr. Shaa was being led out of the cell area towards a waiting police transport, Sergeant Maclaren heard Qavavau Shaa say in a low voice “I’m going to shoot you” or “I would shoot you”. The Sergeant was shocked by this utterance. He asked Mr. Shaa to repeat the comment to be sure about what was said.

Mr. Shaa obliged the Sergeant and repeated the utterance, this time in a louder voice. Constable Comte was in the same hallway and close to Mr. Shaa when the alleged threat was uttered. [ 8 ] The Sergeant indicated to Mr. Shaa that he would be charged with uttering a threat. Mr. Shaa was turned over to other constables for processing. [ 9 ] Constable Comte was not called by the Crown to testify in this proceeding. III. THE DEFENCE EVIDENCE A. Defence evidence of July 21, 2011 [ 10 ] Mr. Shaa testified in his own defence on two different occasions. [ 11 ] On July 21, 2011, Mr.

Shaa testified through an interpreter that on July 28, 2010, he regained consciousness to find himself in a police cell. He was hung over and his hand hurt. Mr. Shaa had very little memory of the night before. He had no memory of being at the nursing station to receive treatment to his injured hand. He had no memory of his arrest.

[ 12 ] The police attended his cell to take him to the airport. Mr. Shaa tried to ask some questions of the Sergeant to better understand what had happened the day before. The Sergeant did not answer. While being escorted to the police vehicle from cells the Sergeant told Mr. Shaa that he would not be coming back to Cape Dorset. This upset Mr. Shaa. Mr. Shaa insisted that Cape Dorset was his hometown and that he would be back. Qavavau Shaa denied making any threats to shoot Sergeant Maclaren during this verbal exchange. [ 13 ] Mr. Shaa confirmed that another Constable by the name of Mark was present when Mr.

Shaa had this conversation with the Sergeant. [ 14 ] The evidence of the Defendant was completed on July 21. The trial did not finish however. The Defence had wanted to call another witness. The Court ran out of time. The trial was adjourned to resume on September 8, 2011. B. The Application to recall the Defendant as witness [ 15 ] On September 8, 2011, the Defence made an unusual application. It applied to reopen its examination of the Defendant Qavavau Shaa. [ 16 ] Two days before the trial date of July 21, the Defendant was given a new lawyer.

The lawyer originally assigned to do the trial was no longer available. Mr. Shaa’s new lawyer attended the Baffin Correctional Center to interview the Defendant in preparation for the pending trial. [ 17 ] Qavavau Shaa has little education. His primary language is Inuktitut. He has some ability to speak in English, though his comprehension under these circumstances is questionable. No interpreter was available to help the Defendant’s new lawyer interview Mr. Shaa in preparation for the trial.

Defense counsel was concerned about his client’s comprehension of English during this interview. [ 18 ] When re-interviewing Qavavau Shaa with an interpreter on September 7, before the resumption of the trial, Defense counsel discovered to his horror that there was critical information that he had not been aware of when Mr. Shaa testified on July 21. Mr. Shaa had not referred to this evidence during his testimony on July 21. This information had an important bearing on Mr. Shaa’s defence. [ 19 ] It was under these circumstances that the Defendant’s lawyer applied to recall Mr. Shaa as a witness.

The Crown had been briefed in advance of the basis of the Defence application. The Crown did not oppose. [ 20 ] The Court allowed the Defendant to be recalled. C. The Defence evidence of September 8th 2011 [ 21 ] On September 8, Qavavau Shaa again spoke through an interpreter, though occasionally lapsing into broken English. [ 22 ] When asked to speak about the verbal exchange with the Sergeant in the detachment hallway, Mr. Shaa delivered a long speech in Inuktitut broken at one point by a comment in English “I told him that I could shoo(sic) him for that”.

After speaking further through the interpreter, the Court learned that the word “shoo” was how the Defendant pronounced the English word “sue”. [ 23 ] The Defendant testified that he had been angered by the Sergeant’s comment to him that he could not return to Cape Dorset. He thought this comment to be unjustified. Mr. Shaa thought that the Sergeant should be reported to his superiors. The Defendant indicated in his testimony that this is what he understood the word “sue” to mean. The Defendant again repeated what he had said in his testimony of July 21, that he at no time had threatened to “shoot” the Sergeant.

The inference arising from the Defendant’s testimony was that the Sergeant had misunderstood his reference to wanting to “sue” (shoo) for a reference to wanting to shoot.

[ 24 ] In cross-examination, the Crown focused on why the Defendant had not volunteered this information during his testimony of July 21. The Defendant gave no coherent explanation for why this had not been done. D. The argument [ 25 ] In argument, the Crown suggested that the testimony of the Defendant of September 8, was fabricated and unbelievable. The Court was urged to reject the Defendant’s testimony. The Crown asked the Court to find the Sergeant’s evidence to be both credible and accurate and invited the Court to convict the Defendant.

The Defendant was in tears through part of the Crown’s submissions. [ 26 ] The Defence conceded that the Sergeant was a credible witness, but urged the Court to find a reasonable doubt on the basis that the Crown’s only witness was honestly mistaken about what he had heard the Defendant say. [ 27 ] After hearing submissions, the Court indicated to Crown that it was concerned about being asked to make any decision in circumstances where the possibility of an honest mistake was never put to the only Crown witness in the examination in chief or in cross examination.

A finding of guilt or innocence turned upon what was in fact said or intended to be said by the Defendant when he uttered the words attributed to him by the Sergeant. [ 28 ] The Court invited the Crown to recall the Sergeant so that he could be examined and cross-examined on this point. Defence counsel indicated that if the Crown wished to recall the Sergeant in response to the Court’s concern, the Defence was prepared to consent to this. The Defence was also prepared to have the Sergeant examined by telephone in order to avoid further delay.

The Court granted the Crown a brief adjournment to try to speak to the Sergeant who was then stationed in Newfoundland. The Crown did so. The Court was told that the officer could be available by phone if called upon to testify. The Crown asked for time to consider its position in relation to whether or not to recall Sergeant Maclaren. This was granted. [ 29 ] The Crown declined to recall the Sergeant to testify. E. The burden of proof and the issue of credibility [ 30 ] Qavavau Shaa is presumed by the law to be innocent of this criminal allegation. He does not have to establish his innocence.

The burden of proof remains on the Crown throughout this trial. This burden never shifts to the Defendant. The standard of proof required to establish guilt is a high one. It is only proof beyond a reasonable doubt that can displace the presumption of innocence. Suspicion alone is not enough. [ 31 ] Mr. Shaa has relinquished his right of silence. He has testified in his own defence at his trial on this allegation. If I believe the Defendant’s evidence, I must find him not guilty.

If I do not believe his testimony, but find that this evidence raises a reasonable doubt in my mind about any essential element required to be proved by the Crown, Mr. Shaa must be given the benefit of this doubt.

Under these circumstances, the presumption of innocence has not been displaced and the Defendant must be acquitted. [ 32 ] Even if I reject the Defendant’s evidence, even if I find that it does not raise a reasonable doubt, Qavavau Shaa can only be convicted if, on all the evidence, his guilt has been proven to the requisite criminal standard by the Crown. [ 33 ] A criminal trial is not a credibility contest between Crown and Defence witnesses. The Defendant is entitled to the benefit of any reasonable doubt on an issue of credibility arising from the testimony of witnesses heard in the course of this trial.

It is not simply a matter of choosing one witness’s version of events over another. Such an approach would suggest that the Defendant has some burden to persuade the trier of fact that his version of the truth is more accurate and reliable. If the Court does not know whom or what to believe, the law demands that the Defendant be found not guilty. Once again, it is the Crown who must establish guilt. The Defendant does not have to prove his innocence. IV. ANALYSIS

[ 34 ] The Crown argues that the reference to “sue” by this accused was a recent contrivance invented by the Defendant to escape liability. A deliberate play on pronunciation designed to explain away a reference to “shoot” would be the work of a genius. Anything is possible, but given this citizen’s lack of sophistication such a fabrication was not likely. [ 35 ] The Defendant has limited education. The Defendant’s ability to speak and understand English is compromised. He claimed to be unable to read a transcript of the evidence given by him on July 21. The Court has no reason to disbelieve this.

The Defendant’s lack of sophistication is confirmed by this citizen’s confusion over both the pronunciation and meaning of the English word “sue” allegedly used by him on July 28, 2010, and repeated in court during his testimony. [ 36 ] The Defense lawyer’s ability to properly prepare the Defendant to give evidence on July 21, had been handicapped by language and the Defendant’s limited comprehension. The Defence lawyer was unable to focus the Defendant`s examination in the courtroom on evidence that the lawyer did not know existed.

Given the difficulties experienced by the Defendant with respect to communication and comprehension with his own lawyer, it is unlikely that this citizen would have the foresight or the knowledge to know what was expected of him in the Courtroom. A courtroom is a confusing and intimidating environment for non-lawyers.

This is so even for well- educated citizens who possess good language skills in the language spoken by the judge and the lawyers. [ 37 ] When applying common sense to the answers expected from a witness in a courtroom, the Court must approach the experience of interrogation from the perspective of the person being examined. Many Nunavummiut speak English as a second language.

Confusion, uncertainty and upset are emotions experienced by many, if not most citizens, who are called upon to testify through an interpreter in a difficult courtroom environment. [ 38 ] Much of the Defendant`s testimony throughout the trial was scattered and confusing. This lack of coherence was common to both the Defendant`s examination in chief and cross-examination. The Crown argues that this lack of responsiveness was the product of a deliberate attempt by the Defendant to confuse and deceive by avoiding clear answers in specific areas of examination.

The Crown suggests that this 19 year old citizen’s inability to appropriately respond to simple questions put to him in cross-examination was feigned. This is certainly possible, but the confusion and upset visible upon the face of this young witness during sustained questioning in the courtroom would then have to be explained as the work of a gifted and consummate actor. [ 39 ] It is not necessary to find that the Defendant’s lack of responsiveness was the result of a deliberate attempt to deceive.

The Defendant’s confusion and lack of responsiveness to the Crown’s questions can also be explained as a symptom of the Defendant`s general immaturity and lack of sophistication. The fact that the Defendant was equally scattered, confusing, repetitive and non- responsive to questions put to him by his own lawyer suggests that this was more likely the case. [ 40 ] When speaking English, the Court noted that this Defendant appeared to have a strong accent.

The Court itself experienced difficulty distinguishing this citizen’s pronunciation of the word “shoo” or “sue” from his pronunciation of the word “shoot” particularly when these words were spoken quickly. [ 41 ] The Defence does not challenge the honesty or integrity of Sgt. Maclaren. [ 42 ] A witness can be honest and have great integrity but still be capable of making an honest mistake. Honesty cannot be equated with reliability or accuracy. As in the case of mistaken identification, this is the problem of a convinced and convincing witness.

Where the spectre of an innocent mistake is raised, the Court must take great care to examine the underlying basis for the witness’s evidence on the issue in dispute. [ 43 ] The statement attributed to the Defendant by Sergeant Maclaren contained no contextual details that would allow the Court to definitively decide what was said by the Defendant or intended to be said by him. There was no reference to a gun.

There was no evidence led by the Crown related to gestures, facial expressions, or other forms of body language accompanying the words that would help the Court interpret what was in fact said by Qavavau Shaa in the detachment hallway. [ 44 ] The Crown’s only witness was physically exhausted. His nerves would have understandably been on edge following the armed confrontation with the Defendant hours before. When one adds extreme fatigue to the notorious difficulties associated with cross cultural communication, there is a real possibility of error.

The Court notes that the Sergeant was not certain of the exact words used by the Defendant. It was either “I am going to shoot you” or “I would shoot you”.

[ 45 ] The Crown’s failure to call any evidence in reply to the Defendant’s evidence of September 8, is troubling. The Crown’s examination of its principal witness on July 21, and the Defense’s cross-examination, had not focused on the prospect of a mistake. It was not apparent to either lawyer that this was an issue when the Defendant first testified on July 21. The basis for the Crown witness’s assertion that the Defendant used the word “shoot” was never consequently explored to any depth by either lawyer.

The Crown’s only witness had been given no opportunity in court to address the Defence allegation that he might have misinterpreted or misheard what was said by the Defendant. [ 46 ] The Crown was readily able to recall its only witness, and was invited to do so, by both the Court and Defence counsel. This was not done. V. CONCLUSION [ 47 ] The Crown is skeptical of the explanation offered by the Defendant in his evidence of September 8. There is good reason to be suspicious of the Defendant’s explanation.

Suspicion alone is not enough to sustain a conviction however. [ 48 ] In the circumstances of this case, the Crown’s failure to recall Sergeant Maclaren has handicapped the Court’s ability to distill fact from fiction. Without hearing from Sergeant Maclaren on the issue raised by the Defendant on September 8, the Court is unable to safely reject the prospect of an honest mistake having been made about what was said by the Defendant. There has been no testing of the Crown witness’s assertion that he heard the word shoot and not “shoo” as claimed by the Defendant.

An examination of the Crown’s only witness on this point was necessary to move the Crown’s allegation from suspicion to proof beyond a reasonable doubt. [ 49 ] The ultimate burden of proof in this case remains upon the Crown throughout this proceeding. The law presumes the Defendant’s innocence. Innocence does not have to be proven by a Defendant in a criminal proceeding. [ 50 ] The Court concludes that in the circumstances of this case, it would be dangerous to convict. The Defendant’s evidence has raised a reasonable doubt about what was said by the Defendant to Sergeant Maclaren in the detachment hallway.

The Crown has not proven the allegation beyond a reasonable doubt. The Court is therefore required to find the Defendant not guilty. Dated at the City of Iqaluit this 13th day of September, 2011 ___________________ Justice R. Kilpatrick Nunavut Court of Justice