R. v. Steven Illingayuk, 2010 NUCJ 27

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Steven Illingayuk, 2010 NUCJ 27 Date of Judgment: 20101207 Docket Number: 04-09-10 Registry: Iqaluit Plaintiff: Her Majesty the Queen -and- Defendant: Steven Illingayuk ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Plaintiff): Paul Bychok Counsel (Defendant): Gary Magee Location Heard: Iqaluit, Nunavut Date Heard: November 18, 2010 Matters: Criminal Code, s. 724(3) (

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

I. THE ISSUE [ 1 ] In the course of sentencing Mr. Illingayuk on a break and enter, a dispute arose as to the extent of this citizen’s involvement in a safe attack that took place on the premises during the break in. Mr. Illingayuk, through counsel, denies that Mr. Illingayuk “broke the safe”. The Crown seeks to prove otherwise. It is settled law that the Crown must prove any aggravating facts beyond a reasonable doubt where these are disputed by the Defendant. II. THE CONFESSION [ 2 ] To establish Mr. Illingayuk’s involvement in the safe attack, the Crown seeks to rely upon the confession of the defendant.

The Defence concedes that the written statement to the authorities was given voluntarily. The defendant, through counsel, challenges the accuracy of this statement. [ 3 ] The confession was not videotaped. There was no operable videotaping equipment available to the RCMP in Clyde River. The confession was not audio taped. The investigating officer had the means to do so, but chose to rely instead upon the written statement alone. [ 4 ] The written statement says this: “Q: Who broke into the Aarruja store? A: Tyler Jaypoody. Q: How did you end up in there? A: Followed him. Q: How did Tyler break in?

A: Tyler planned the break and enter. He came and talked to me. He was very angry, said that he wanted to break in. He went by himself to break in. Tyler went in first. They went in there about three hours. I do not know why or what they were doing in there. I checked the time. It was five o’clock. I went into the store by myself. I took one can of pop and one package of cigarettes from Tyler. I was in the store some two to three minutes. I pried the safe with a crowbar.

The other two fellows were in the store at this time.” [ 5 ] The investigating officer conceded in his testimony that at some points in this statement he paraphrased what was being said by the defendant. The officer was adamant that the words attributed to Mr. Illingayuk “I pried the safe with a crowbar” is an accurate reproduction of what Mr. Illingayuk actually said. There is no evidence before me to indicate otherwise. The officer was not shaken in his assertion that Mr. Illingayuk admitted his involvement in a safe attack.

Had there been any contradictory evidence to suggest that the officer did not or could not have heard this statement, the absence of any video or audio recording would likely have been fatal to the Crown’s ability to prove the statement beyond a reasonable doubt. This is not the case here however. [ 6 ] The later post-remand conversation between the investigating officer and Mr. Illingayuk was not about whether Mr. Illingayuk had attacked the safe at all, but whether he had pried off the dial, thus “breaking” the safe.

The nature of this discussion provides substantial confirmation that the officer did not mishear the words attributed to Mr. Illingayuk in his earlier written statement. [ 7 ] The practice of paraphrasing the words spoken by a defendant is not a good one. This leaves open the potential for errors arising from the investigator’s misinterpretation of the spoken word. Cultural differences, idiomatic expressions and accent may all intervene to complicate and confuse the police investigator’s

interpretation of what is being said and how it is being said. [ 8 ] The authorities control the environment of the citizen in custody. The authorities have an obligation to ensure accuracy by either audio or video recording what was being said, or writing out word for word what the defendant in fact says. If the authorities choose not to audio or videotape the taking of a statement, and the Court is forced to choose between two conflicting accounts of what was said by a defendant, it is unlikely that the Crown will be able to meet the high standard of proof required for the confession.

This will be so particularly in circumstances where the authorities have resorted to the dangerous practice of paraphrasing what the defendant is saying instead of recording verbatim what is said.

[ 9 ] The police investigator in this case read back what he had written before asking Mr. Illingayuk to sign the document. [ 10 ] Mr. Illingayuk was not asked whether he wanted to make any additions or alterations to the statement before affixing his signature. The accused was not asked whether he wanted an opportunity to read over the statement himself before signing it. These practices are in common use elsewhere. These are practices designed to ensure that what is written down is not the product of misinterpretation or misunderstanding, but rather an accurate written rendition of a defendant’s oral statement.

The authorities in Nunavut would do well to adopt these “best” practices for use in this jurisdiction. III. THE DEGREE OF PARTICIPATION IN THE “SAFE-BREAKING” [ 11 ] While the Court is satisfied beyond a reasonable doubt that Mr. Illingayuk had some involvement in trying to pry open the safe, the full extent of this involvement is not clear. There were at least two other individuals already inside the store when Mr. Illingayuk entered. These individuals broke in ahead of Mr. Illingayuk. The Crown evidence tendered through Mr.

Illingayuk’s confession suggests that these individuals were inside the store for a significant period of time. It was these individuals who apparently took the lion’s share of the goods stolen from the store during the night. [ 12 ] In subsequent discussions with the investigating officer, Mr. Illingayuk denied prying the dial off the safe which had the effect of rendering the safe useless. The photograph of the damaged safe taken by the police suggests that the dial was in fact torn from the safe. The Court has been given no reason to disbelieve Mr. Illingayuk who insists that he took no

part in prying off the dial. [ 13 ] The Court infers that one or both of the other intruders may have also been involved in an attack on the safe. It is not clear in the evidence when this would have occurred. There is no evidence to suggest that Mr. Illingayuk was present when one or both of the other intruders did this damage. The only evidence before me suggests that Mr. Illingayuk was inside the store for a very short time span of some two or three minutes. It was during this time that he attempted unsuccessfully to pry open the safe. IV.

PROOF OF COMMON INTENTION AND CRIMINAL LIABILITY [ 14 ] Where the Crown establishes beyond a reasonable doubt that two or more citizens have formed a common intention or design to carry out a criminal act, it is not necessary for a Court to make findings regarding the individual’s degree of participation in the joint enterprise. All parties are equally liable for their involvement in the completed crime. This is a principle of criminal law that was first enunciated in the case of R. v. Swindall and Osborne, (1846) 2 Cox’s Criminal Cases 141.

This is a common law principle that has been applied repeatedly at the appellate level throughout Canada. This remains the law today. [ 15 ] There is no evidence of any kind to suggest that the Mr. Illingayuk’s participation in the break enter or the safe attack was part of a common design, however. While Mr. Illingayuk was apparently told by Jaypoody of the planned break enter to the store, there is no evidence to suggest that he was involved with the others in this enterprise. The only evidence before the court suggests that Mr.

Illingayuk entered the store on his own some time after the others had already forced entry. There is no evidence before the court to suggest that Mr. Illingayuk’s efforts to open the safe were made in concert with the others. There is no evidence to suggest that Mr. Illingayuk’s efforts against the safe were intended by him to assist or encourage the others thus making him a party to the others act of safe-breaking. V. CONCLUSION [ 16 ] While this Court finds that Mr. Illingayuk did attack the safe inside the store with a crowbar, this did not involve damaging the safe beyond repair. Others were involved.

The Crown has not proven beyond a reasonable doubt that the accused’s involvement in the break enter of the Aarruja store or the safe attack was part of a joint enterprise. On the strength of the limited evidence before me, the Court must accept that Mr. Illingayuk’s involvement was limited to a cursory attempt to pry open the top of the safe with a crowbar. Any other damage sustained to the safe is not therefore attributable to Mr. Illingayuk.

Dated at the City of Iqaluit this 7th day of December 2010 Justice Robert Kilpatrick Nunavut Court of Justice