R. v. Jaypoody, 2018 NUCJ 36

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Jaypoody, 2018 NUCJ 36 Date: 20181129 Docket: 04-18-06 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Christopher Jaypoody ________________________________________________________________________ Before: The Honourable Mr.

Justice Paul Bychok Counsel (Crown): Moray Welch Counsel (Accused): Ilan Neuman Location Heard: Iqaluit, Nunavut Date Heard: October 26, 2018 Matters: Application for pre-trial bail pursuant to Criminal Code, RSC 1985, c C-46 section 522(2) – second degree murder – Gladue sentencing considerations on pre-trial bail – pre-trial bail denied. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: This judgment was previously subject to a

section 517 Criminal Code , RSC 1985, c C-46, restriction on publication. The matter has now been concluded and this decision can be published. Table of Contents I. OVERVIEW ... 4 II. THE PARTIES’ POSITIONS . 4 III. THE LAW OF PRE-TRIAL BAIL .. 5 IV. THE PROSECUTION’S ALLEGATIONS . 6 A. Tracy Tassugat 7 B. Rassie Noah . 8 C. Joamie Qillaq . 8 D. Nicodemus Illauq . 8 E. Louisa Paniloo . 8 F. Teema Qillaq . 9 G. Sandra Ntow-Duku . 9 H. Anastazia Jurkova . 9 I. Christopher Jaypoody . 10 J. Levi Illingayuk . 10 K. Dr. Christopher Milroy . 11 V. ISSUE .. 12 VI. ANALYSIS . 12 A.

The primary ground for detention – s. 515(10)(a) 12 B. The secondary ground for detention – s. 515(10)(b) 12 C. The tertiary ground for detention – s. 515(10)(c) 12 i. The apparent strength of the Prosecution’s case – s. 515(10)(c)(i) 13 ii. The gravity of the offence – s. 515(10)(c)(ii) 15 iii. The circumstances surrounding the commission of the offence – s. 515(10)(c)(iii) 15

iv. The fact the accused is liable, on conviction, for a potentially lengthy jail term – s. 515(10)(c)(iv) 15 v. The listed tertiary circumstances in s. 515(10)(

c) are not exhaustive . 16 D. Sureties . 18 E. Why Gladue sentencing principles do not apply to pre-trial bail 19 i. The problems with the a priori cases . 23 ii. The problem with the cultural context cases . 23 VII. CONCLUSION .. 24 I. OVERVIEW [ 1 ] The accused, Christopher Jaypoody, is charged with the second degree murder of his father, Levi Illingayuk. [1] The incident happened in Clyde River on February 1, 2018. Mr. Jaypoody was arrested on February 5th. He has since been in continuous pre-trial detention. He has elected to be tried by a judge and jury.

His preliminary inquiry is scheduled to be held in the community during the week of December 3rd. [ 2 ] Mr. Jaypoody has brought an application to obtain judicial interim release, or bail, pending his trial. [2] The right to reasonable bail pending trial is a cornerstone of our justice system. This case explores the limits of that right. [ 3 ] To succeed in his pre-trial bail application, Mr. Jaypoody must satisfy the Court on a balance of probabilities that his detention is not necessary in all the circumstances of this case. I heard the application on October 26, 2018. These are my reasons for decision. II.

THE PARTIES’ POSITIONS [ 4 ] Defence Counsel urged the Court to grant Mr. Jaypoody pre-trial bail with one or two sureties. In effect, Defence Counsel wants the Court to release Mr. Jaypoody on a Recognisance with seven conditions. The proposed sureties are Mr. Jaypoody’s 56-year-old mother, Dora Jaypoody, and his 70-year-old step-father, Jayco Ashevak. [3] The proposal is to have Mr. Jaypoody live with them in their home in Clyde River. He would not be subject to a curfew. [4] [ 5 ] The Crown is not opposed to Mr. Jaypoody’s release on pre-trial bail to return to Clyde River.

Crown Counsel recommended that each surety post $1,000. He recommended that I impose 12 conditions, including a curfew from 9 p.m. to 7 a.m. every day. [ 6 ] Prior to the hearing, Defence Counsel filed a written memorandum. In it, Defence Counsel set out the issues before the Court; however, he merely outlined certain key events and dates along with details of the proposed sureties. The memorandum did not argue the case in favour of releasing Mr. Jaypoody. [ 7 ] Crown Counsel did not file any written information before the hearing to assist the Court.

Instead, he presented the Court with the general “thrust” of the prosecution’s case in oral submissions. [5] Indeed, Crown Counsel candidly admitted he was not familiar with the file, and that he did not come to Court prepared to provide case-related details. [6] It was clear that the lawyers expected the Court simply to rubber-stamp their agreement to release Mr. Jaypoody. [ 8 ] As I noted earlier, the law requires Mr. Jaypoody to persuade the Court on a balance of probabilities that he ought to be released.

To discharge that burden, the Court requires detailed information about the anticipated strength of the prosecution’s case, as well as those relevant circumstances surrounding the offence. The fact that the lawyers agree does not meet that burden. Consequently, I adjourned the hearing until the afternoon to give Crown Counsel a chance to familiarize himself with the file.

III. THE LAW OF PRE-TRIAL BAIL [ 9 ] Canadians enjoy the right “not to be denied reasonable bail without just cause”. [7] This basic right gives substance to the presumption of innocence which, in turn, lies at the heart of the rule of law. [8] [ 10 ]

Part XVI of the Criminal Code codifies Canada’s pre-trial bail law. [ 11 ] Subsection 515(10) sets out the only conditions which may justify the pre-trial detention of an accused. These conditions – known as the primary, secondary and tertiary grounds – require pre-trial detention when one or all the grounds are present: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including i. the apparent strength of the prosecution’s case; ii. the gravity of the offence, iii. the circumstances surrounding the commission of the offence, including whether a firearm was used, and iv. the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment… [9] [ 12 ] Individuals alleged to have committed second degree murder have the right to apply for pre-trial bail.

For offences committed in Nunavut, only a judge of the Nunavut Court of Justice may grant pre-trial bail in these and other listed serious offences. [10]

Section 522 says that the judge must remand the accused into pre-trial custody: “unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of

section of subsection 515(10).” [11] [ 13 ] This is why pre-trial bail hearings in Canada are often called show cause hearings. IV. THE PROSECUTION’S ALLEGATIONS [ 14 ] I will briefly summarize the key evidence collected by the police during the investigation. [ 15 ] Mr. Jaypoody was living with his father, his common-law partner, Tracy Tassugat, as well as their two young children. Ms. Tassugat gave three statements to the police. A. Tracy Tassugat [ 16 ] In her first statement, Tracy Tassugat said she had taken her two children into a bedroom around 9 or 10 p.m. because Mr. Jaypoody and his father were arguing.

She said she did not see Mr. Jaypoody assault his father. At some point, she left the bedroom. Mr. Jaypoody told her that he had kicked his father in the ribs and that he (father) had run away. [12]

[ 17 ] Ms. Tassugat gave her second statement the next day. She stated the three adults had been drinking and that the father was making Mr. Jaypoody mad. The men argued. Mr. Jaypoody “started to kick Levi’s ribs” when the latter leaned over to get something from the coffee table. Mr. Jaypoody had bare feet. Mr. Illingayuk got up and retreated to his bedroom. Mr. Jaypoody followed him and stood at the bedroom door shouting. At some point, Mr. Illingayuk left the house. Mr. Jaypoody wanted to stop him, so she grabbed Mr. Jaypoody. [13] [ 18 ] Ms. Tassugat then gave a third and cautioned statement.

In it, as recorded in the precis, she stated that the three adults had drank six or seven mickeys of alcohol. Mr. Illingayuk took a pill which he was not supposed to take with alcohol. The men argued about the pill. She continued: They started to fight and Chris stood up. Chris started to kick Levi with his heel while Levi was trying to grab something from the coffee table. She observed Chris kick Levi once. Levi ran to his room, and he went onto the bed and tried to sleep.

Chris was yelling at Levi, and she started to grab at Chris to remove him from the room … Levi then ran out of the residence”. [14] [ 19 ] During the argument, Mr. Jaypoody asked his father “if he had to hurt him before he went to the doctor”. [15] B. Rassie Noah [ 20 ] Rassie Noah lives next door. She said she heard “big banging” next door. “Not long after”, Mr. Illingayuk knocked on her door. He did not have a shirt or shoes on. Mr. Illingayuk was in a lot of pain and he was holding his left chest. He said: “he was trying to be murdered”. He said Mr.

Jaypoody was trying to kill him, and he asked her to call the police. [16] C. Joamie Qillaq [ 21 ] Joamie Qillaq is Ms. Noah’s husband. According to the statement precis, he came out of the shower to see Mr. Illingayuk present. Mr. Illingayuk said Mr. Jaypoody “beat him up”. He also said this was not the first time Mr. Illingayuk had run away from Mr. Jaypoody. [17] D. Nicodemus Illauq [ 22 ] Nicodemus Illauq gave a statement to the police. Joamie Qillaq called him to take Mr. Illingayuk to the Health Centre. When he arrived at the residence, Mr. Illingayuk was in pain holding his left side. Mr.

Illingayuk said to Mr. Illauq that Chris had kicked him. Mr. Illauq then took Mr. Illingayuk to the Health Centre adding “it was not the first time he had to transport Levi to the health centre because of Chris beating him up”. [18] E. Louisa Paniloo [ 23 ] Louisa Paniloo is a member of the extended family and she gave a statement. After hearing of Mr. Illingayuk’s death, she went to the residence where she saw Mr. Jaypoody “cursing at the nurse” over the telephone. He was blaming the staff for the death saying they had not arranged a medevac soon enough. [19] F.

Teema Qillaq [ 24 ] Teema Qillaq works at the Health Centre and was called in to take x-rays. In his statement, he said Mr. Illingayuk was in pain and holding his left side by his ribs. Mr. Qillaq asked Mr. Illingayuk what happened and he replied that his son beat him up. Mr. Qillaq was called in at five the next morning to take another x-ray. He noted that Mr. Illingayuk was still in pain. He also noted what he believed were teeth marks on Mr. Illingayuk’s right jaw area. [20]

G. Sandra Ntow-Duku [ 25 ] Sandra Ntow-Duku was the first on-call nurse that evening. She asked a second nurse to assess Mr. Illingayuk. An x-ray revealed that he had suffered fractured ribs and a punctured left lung. He was then assessed by a physician who ordered a medevac. According to the precis of her statement, she continued: … she asked what happened and Levi said “My son punched me”. She asked where and he said “my lungs”. She asked if it was a punch with a closed fist and he said “Yes” … He was in severe pain”. [ 26 ] Initially, she observed slight swelling on Mr. Illingayuk’s left side.

Bruising on his chest developed as time passed. Mr. Illingayuk sat up around four in the morning complaining of the pain. The attending physician inserted a chest tube and he was medevac’d shortly afterward. [21] H. Anastazia Jurkova [ 27 ] Anastazia Jurkova was the second on-call nurse. She knew Mr. Illingayuk from past treatments for his respiratory problems. In the precis of her statement, she noted that on arrival Mr. Illingayuk had trouble breathing and was in “extreme pain”. He told her that he believed he had broken ribs. He told her his son had punched him. He said that “a few times”.

He “was lying on the floor trying to find a position that didn’t hurt”. She noted small abrasions on the right side of his back and right jaw. “The whole left side” of his chest “was broken”. She believed the injuries were too serious to have been caused by a fist. She said Mr. Illingayuk had a “love-hate” relationship with his son. She also noted that Mr. Jaypoody was “intoxicated and not capable of normal conversation” when he called her at the Health Centre the next day. [22] I. Christopher Jaypoody [ 28 ] Mr. Jaypoody gave a cautioned statement to the police on February 5, 2018. The precis states that Mr.

Jaypoody claimed not to recall what happened to his father. He claimed that he had been “blacked out drunk”. He said they were drinking vodka. He said they were in the living room and his father stood up. He then said he did not think Tracy saw what happened. He said there were no other adults present when his father was hurt. “Nobody else could have hurt his dad, it was not Tracy or the kids”. [23] [ 29 ] Defence Counsel told the Court that Mr. Jaypoody has successfully completed two courses while on remand: Alternatives to Violence as well as Substance Abuse. [ 30 ] Mr. Jaypoody has a recent criminal record.

Mr. Jaypoody was convicted of assault on June 15, 2016. He received a suspended sentence and probation. [24] Crown Counsel was unable to identify the victim of that assault. J. Levi Illingayuk [ 31 ] Mr. Jaypoody’s precis notes that the investigating officer played Levi Illingayuk’s statement to Mr. Jaypoody during his interview. Crown Counsel did not refer to Mr. Illingayuk’s statement, or what he told police before he died of his injuries. Crown Counsel stated “it’s my understanding he was kicked once”. [ 32 ] At around 8 a.m. on February 2nd, Mr.

Illingayuk was medevac’d to the Qikiqtani General Hospital in Iqaluit. At 6:42 the next morning, Mr. Illingayuk sat up in his hospital bed and stated that he was going to die. He died 18 minutes later.

K. Dr. Christopher Milroy [ 33 ] Dr. Christopher Milroy is a forensic pathologist at the Eastern Ontario Regional Forensic Pathology Unit. He performed an autopsy on Mr. Illingayuk in Ottawa on February 5, 2018. Dr. Milroy described Mr. Illingayuk as “well nourished and well developed”. [25] [ 34 ] I shall now list Dr. Milroy’s relevant findings respecting Mr.

Illingayuk’s injuries and the causes of his death: • The abdomen was injured; • The back was injured; • The upper arms contained injury – see below; [26] • On the left lateral chest and abdomen was blue, red and purple bruising 23 x 22 cm; • On the right side of the back was bruising and abrasion 5 x 1 cm; • On the upper left arm was blue bruising; • Subcutaneous bruising was present on the left chest underlying the external bruising; • There were fractures of the 3-10th left ribs laterally, the 11-12th posterior left ribs and the right 9-12th ribs posteriorly with bleeding; • Bruising was present on the right lateral diaphragm, 3 cm in diameter; [27] • Skeletal muscle A bruising present; [28] [ 35 ] Dr.

Milroy summarised his findings as follows: At autopsy there was extensive bruising of the chest wall with multiple fractures of the rib cage. The pattern of bruising and fractures is that of blows as kicks rather than punches. Death was due to the chest injuries with chronic obstructive airways disease as a contributing cause. [29] [Emphasis added] V. ISSUE [ 36 ] Has Mr. Jaypoody satisfied the Court on a balance of probabilities that his detention is not required in the circumstances of this case? VI. ANALYSIS [ 37 ] I shall examine each of the separate grounds for detention in turn. A.

The primary ground for detention – s. 515(10)(a)

[ 38 ] The Crown fairly conceded that Mr. Jaypoody is not seen to be a flight risk. Mr. Jaypoody has satisfied his burden on the primary ground. B. The secondary ground for detention – s. 515(10)(b) [ 39 ] I agree with counsel there is no evidence to suggest that there is a substantial likelihood that Mr. Jaypoody will re-offend, or interfere with the judicial process, if he is released. Mr. Jaypoody has satisfied his burden on the secondary ground. C. The tertiary ground for detention – s. 515(10)(c) [ 40 ] The key consideration in this application is the tertiary ground.

This ground is not limited to exceptional cases or unexplainable circumstances. Nor is it limited to allegations of murder.

As we have seen, the tertiary bail ground is intended to foster and maintain public confidence in the administration of justice. [ 41 ] What we mean by “confidence in the administration of justice” – and how judges are supposed to determine that issue – was considered recently by the Supreme Court of Canada in R v St-Cloud . [30] Wagner J (as he then was) on behalf of a unanimous court stated that judges must apply a ‘reasonable person test’: … a reasonable member of the public is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter … In short, the person in question in s. 515(10)(

c) is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values. But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons. [31] [ 42 ] In other words, how would a reasonable person with the above-noted characteristics view Mr.

Jaypoody’s release on bail – more than eight months after his arrest and before his preliminary inquiry is held? [ 43 ] The reasonable person in my analysis could live in any of our territory’s small and isolated hamlets. [ 44 ] The reasonable person concept has been a part of our jurisprudence since the nineteenth century. [32] Objectivity is at the heart of the concept.

We see from St-Cloud that the concept as applied to pre-trial bail is centred on reason and rooted in the rule of law. [ 45 ] The tertiary ground for detention is a discrete ground; it stands independently from the first two grounds and is not a residual catch-all provision. It is also broad in scope; its applicability is not subject to limiting restrictions. [33] My tertiary analysis must also consider the interplay between the four enumerated grounds. [34] [ 46 ] I now turn to each one of the four grounds listed in s. 515(10)(c). i.

The apparent strength of the Prosecution’s case – s. 515(10)(c)(i) [ 47 ] Crown Counsel stated that the prosecution’s murder case was “very marginal”. He was more confident respecting the possibility of a manslaughter verdict. That case, he said, was “very strong”. [35] My analysis shall consider each possible verdict. [ 48 ] Crown Counsel stated that his “understanding” is that Mr. Jaypoody only kicked his father once. [36] The prosecution’s assessment apparently is based on acceptance, at face value, that Tracy Tassugat witnessed only one kick. Indeed, Defence Counsel urged the Court that this is what happened.

[ 49 ] The jury may find Tracy Tassugat to be an unreliable witness. She is Mr. Jaypoody’s partner and the mother of his children. She is an interested party with reason to downplay what happened. In her first police statement, she denied she was in the room and denied seeing any assault at all.

It will be the responsibility of the jury to weigh these considerations respecting her credibility and reliability. [ 50 ] More importantly, the prosecution’s assessment respecting the strength of its murder case appears to fly in the face of more compelling and objective evidence. [ 51 ] Defence Counsel provided the Court with a copy of Dr. Christopher Milroy’s autopsy report. Dr. Milroy specifically concluded that Mr. Illingayuk received multiple blows.

How else to explain the abrasion and bruising on the right side of his back, the extensive bruising to his left lateral chest and abdomen, his upper left arm, diaphragm, skeletal muscle and the 14 broken ribs on both sides of his chest? In my view, one may conclude that the only reasonable inference is that Mr. Illingayuk was the object of a vicious and sustained beating. [ 52 ] The suggestion of alcohol consumption just before the incident is certainly a factor that needs to be explored further. Mr.

Jaypoody claims not to have any memory of the incident – but appears to recall certain details which may undermine his claim. He told the police that only the three adults were present and that Tracy could not have done it. [ 53 ] Based on the information before the Court, one may reasonably conclude that the prosecution has a strong case against Mr. Jaypoody. This ground works against Mr. Jaypoody’s release. ii. The gravity of the offence – s. 515(10)(c)(ii) [ 54 ] Canadians consider the deliberate taking of another person’s life to be a heinous crime.

The circumstances of this case are aggravated because the victim was killed in his own home – by a family member. I have already noted that the evidence suggests strongly that someone viciously assaulted Mr. Illingayuk. Thus, as to the gravity of the offence, this case is at the high end of the scale. This ground works against Mr. Jaypoody’s release. iii. The circumstances surrounding the commission of the offence – s. 515(10)(c)(iii) [ 55 ] Alcohol-fueled domestic and family violence is an ongoing and extremely serious reality throughout Nunavut. Domestic and family violence fill our circuit court dockets.

The effects of domestic and family violence ripple right through our communities. Domestic and family violence compels this Court to place the protection and safety of Nunavummiut at the forefront of its work. [ 56 ] In a bizarre twist, Ms. Tassugat suggested in her third statement that Mr. Jaypoody deliberately hit his father in the chest so that he would have to go see the doctor. [37] Mr. Jaypoody was aware of his father’s longstanding health problem. Mr. Jaypoody knew his father was vulnerable.

The jury may reject the defence suggestion that this was “a compassionate deed gone wrong”; if so, the jury may find Mr. Jaypoody’s foreknowledge and specific targeting of his father’s chest are extremely aggravating circumstances. [ 57 ] These factors place the case at the high end of the scale. This ground works against Mr. Jaypoody’s release. iv. The fact the accused is liable, on conviction, for a potentially lengthy jail term – s. 515(10)(c)(iv) [ 58 ] The punishment for second degree murder is life imprisonment.

At this stage, I must also consider the possibility that the accused might be convicted of manslaughter. Even then, the accused could be facing a sentence in excess of ten years in a federal penitentiary. [38] Thus, this ground, too, is at the high end of the scale. This ground works against Mr. Jaypoody’s release. v. The listed tertiary circumstances in s. 515(10)(

c) are not exhaustive

[ 59 ] The four listed circumstances in s. 515(10)(

c) were not intended by Parliament to be exhaustive. [39] Other considerations may be required in the analysis. This is one of those cases. [ 60 ] Defence Counsel said very little about the tertiary ground. I was surprised by this fact given that the defence bears the persuasive burden. He noted that Mr. Jaypoody does not have a history of “terrorizing the community”. He continued: On the one hand, this may be a second degree murder with a very serious (inaudible). On the other hand, some of the evidence looks at a compassionate deed gone wrong.

Tracy Tassugat talks about the fact that he wanted to get help for his father. There are other materials that are not before Your Honour that might be, on both sides. There are statements that are somewhat contradictory from Levi. That’s not the issue, because this is not a trial. This is really has he met the onus to be released pending trial? In my submission, yes.

And the carefully crafted conditions that were proposed, in my submission, would give the Court confidence that he would have very, very complete supervision by very responsible people. [40] [ 61 ] It will be up to the jury to decide whether there is the slightest air of reality – given the extensive injuries suffered by Mr. Illingayuk – to the “compassionate deed gone wrong” defence. Defence Counsel could have adduced those “other materials” not before the Court but somehow relevant. And it will be for the jury to consider the “somewhat contradictory” statements made by Mr.

Illingayuk – “he tried to kill me” versus “he beat me up”. And, I will comment in a moment on my concerns about the proposed sureties. [ 62 ] I do not find Defence Counsel’s submission on the tertiary grounds to be persuasive. [ 63 ] Mr. Jaypoody has been in continuous pre-trial detention since his arrest – almost nine months. Clyde River is a small community of about 1,053 people. [41] I agree with Defence Counsel that the community is aware in a general way about Mr. Jaypoody’s present situation. [ 64 ] The evidence shows Mr.

Illingayuk told several people immediately after the assault that his son had either tried to kill him or beat him up. It is community knowledge that Mr. Jaypoody has already spent almost nine months in pre-trial detention for an incident which led directly to his father’s death. If I were to release Mr. Jaypoody, and allow him to return to Clyde River, that news would travel extremely quickly. [42] [ 65 ] I do not, however, share Crown Counsel’s assessment of how the community would react to news of Mr. Jaypoody’s pre-trial release.

The Court put the following scenario to counsel: how would the reasonable person in Clyde River react to news that Mr. Jaypoody – after spending almost nine months in detention on a murder charge and before his preliminary inquiry is even held – was suddenly released to walk the streets?

Crown Counsel’s answer is instructive: On the tertiary grounds, it’s a murder, and -- if I am struggling, it’s because I don’t want to be flit [sic], and that, but I think, and I have alluded to it earlier this afternoon, that on the scale of what transpires in this territory on a regular basis, the community’s shock value of what transpired on this case would not lead to the administration of justice being deconsidered [sic] if Mr. Jaypoody was released.

And I can attest to the fact that I have discussed that with the RCMP and with my co-counsel, and we are all in agreement. [43] [ 66 ] This was a startling assertion. On what possible scale are the allegations in this case not horrendous? [ 67 ] All our communities are plagued with domestic and family violence, most of it alcohol induced. The staggering frequency of domestic and family violence – what Crown Counsel called “regular” – does not make domestic and family violence, indeed homicides, in our homes somehow unremarkable.

That fact does not mean Nunavummiut find domestic and family violence to be somehow normal. This Court has a duty to continue to assert our collective revulsion to domestic and family violence. The Court must squarely denounce any attempt to downplay the seriousness of domestic and family violence, or to normalise it because of its frequency. [ 68 ] I do not share the prosecution’s perspective on domestic and family-related homicides in Nunavut. In my respectful view, news of any pre-trial release for Mr.

Jaypoody would seriously undermine reasonable public confidence that the justice system takes domestic and family violence seriously.

D. Sureties [ 69 ] Defence Counsel presented two potential sureties to the Court: Mr. Jaypoody’s 56-year-old mother, Dora Jaypoody, and his 70- year-old step-father, Jayko Ashevak. Both persons testified by telephone from their home in Clyde River. I was impressed by their frankness and sincerity. In different circumstances, each one may have been an appropriate surety. [ 70 ] However, Ms. Jaypoody is employed full-time outside the home from Monday to Friday. Mr. Ashevak is a hale and hearty elder.

When he was asked whether he will be hunting in the immediate future, he replied instantly “as often as possible if the weather is good”. Like so many other Nunavummiut, Mr. Ashevak hunts for sustenance. [ 71 ] These two well-meaning people are not in a position to offer what Defence Counsel called “very, very complete supervision”. The reality is that each proposed surety would be unavailable to provide the necessary day-to-day supervision in this case if I were to release Mr. Jaypoody. [ 72 ] Mr. Jaypoody has not satisfied his burden on the tertiary ground. E.

Why Gladue sentencing principles do not apply to pre-trial bail [ 73 ] In his written memorandum, Defence Counsel submitted that Gladue sentencing principles ought to be considered in Mr. Jaypoody’s circumstances. However, he did not make any oral or written submissions showing how Gladue sentencing principles might apply to Mr. Jaypoody. In any event, that was not fatal because in my view, Gladue sentencing principles do not apply at the pre-trial bail stage. [ 74 ] In 1996, Parliament enacted Criminal Code s. 718.2(

e) which directed sentencing courts henceforth to pay “particular attention” to the circumstances of aboriginal offenders. In 1999, the Supreme Court of Canada in R v Gladue explained Parliament’s intention and the full import of the legislation. [44] Judges are to consider the systemic or background factors relevant to Aboriginal Canadians when crafting a just and fit sentence . [ 75 ] I have written extensively concerning Gladue sentencing principles in the context of sentencing Nunavummiut. [45] More than 86% of Nunavut’s population is Inuit.

Inuit social governance runs parallel to the application of pan-Canadian legal norms. Therefore, the norms of Inuit Qaujimajatuqangit must be considered at every stage of civil and criminal proceedings in the Nunavut Court of Justice. This includes at a pre-trial bail – or show cause – hearing. I will say more about that in a moment. [ 76 ] The law of pre-trial bail, as well as our sentencing principles, are each codified in the Criminal Code . These laws represent the considered legislated will of Parliament. From time-to-time, our courts have had to interpret aspects of these laws. Gladue is a striking example.

As we have seen, the Supreme Court of Canada did not create new law in that case; the court merely articulated how s. 718.2 (

e) ought to be understood and, more importantly, how Parliament’s intention ought to be implemented when sentencing Aboriginal offenders. [ 77 ] I am aware that there are a number of cases elsewhere in Canada which say that Gladue sentencing principles apply not only at sentencing but at the pre-trial bail stage as well.

Many, if not most, of these cases refer back to R v Robinson , a decision of the Ontario Court of Appeal, as their authority. [46] [ 78 ] R v Oakes , a recent decision of O’Ferrall J of the Alberta Court of Appeal is a case in point. [47] The Oakes case concerned an application for bail pending appeal following a conviction by a jury for a second degree murder. The decision is barely one page long. It appears that the offender, Mr. Oakes, was a member of a Saskatchewan First Nation. Justice O’Ferrall, sitting alone, accepted that Gladue sentencing factors applied on his application for bail.

O’Ferrall J’s reasons for doing so are instructive:

Chief Justice Winkler of the Court of Appeal of Ontario in R v Robinson, 2009 ONCA 205 , 95 OR (3d) 309, has held thatGladue principles apply to the question of bail. From that I am prepared to assume that Gladue also applies to release pending appeal. But as in Robinson, very little evidence was tendered to assist me in a Gladue analysis. I received nothing in nature of a pre-sentencereport giving me the appellant’s personal history, etc.[48] [79] O’Ferrall J based his ‘assumption’ that Gladue sentencing principles applied to pre-trial bail on Robinson.

It is necessary,therefore, to examine what Robinson actually decided and on what basis. [80] The Robinson case was decided by a single Ontario Court of Appeal judge sitting in Chambers. The first reference to Gladue inthis very short decision came near the end when Winkler CJO stated: “it is common ground” that Gladue sentencing principles apply topre-trial bail.[49] However, the learned judge made no mention of any statutory or other legal foundation of this so-called “commonground”. [81] Neither party in Robinson had provided the court with any Gladue factors.

Justice Winkler stated the accused could bring anotherbail application if Gladue sentencing factors amounted to a material change in circumstances. But then, he stated: However, I note that the Supreme Court in Gladue [sic], in the context of sentencing, stated, at para. 79, that “the more violent andserious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will beclose to each other or the same”.

I would think that the same practical reality would apply to applications for judicial interim release.[50] [82] Rather than opening a wide door for the pre-trial bail application of Gladue, he opened it only a smidgen for cases like murder. Nevertheless, subsequent courts have latched on to the premise and expanded its parameters beyond what Winkler CJO appears to haveintended. [83] Two judges North of 60 have taken that approach.

In R v Magill, Ruddy J of the Territorial Court of Yukon ruled that Gladueprovides “indispensable guidance for other decisions that an adjudicator is faced with”, including pre-trial bail.[51] Judge Ruddy, too,based her reasoning on the Robinson case. She goes further saying that systemic Gladue factors play an important role in bail: An accused with a poor employment record, substance abuse issues and an unstable family and community support network is morelikely to be detained, even though these are the results that flow from the Canadian history of colonialism, dislocation and residentialschools.

A judge has the obligation to evaluate the application of bail criteria to ensure that the result does not serve to perpetuatesystemic racial discrimination.[52] [84] This reasoning was adopted and applied in the Supreme Court of the Northwest Territories by Shaner J in R v Chocolate. [53] Justice Shaner also started her analysis by citing Robinson.

She then referred both to Oakes and Magill above as further authorities thatGladue sentencing factors apply to pre-trial bail. [85] Thus, we can see the impact a single reported case may have when judges struggle to do what they believe to be fair in the absenceof statutory authority or clear binding guidance from higher courts. [86] In my view, it can fairly be said that Robinson, Oakes and the other following cases are based neither on well-reasoned precedentnor on the articulation of any actual law. Robinson and the cases which have followed it are not, in my view, persuasive.

Nor are thesecases binding on judges of the Nunavut Court of Justice.[54] [87] In my view, a persuasive precedent may be found in the well-researched decision of Agnew J in R v Heathen. [55] In theProvincial Court of Saskatchewan Heathen case, Defence Counsel had argued that Gladue sentencing principles applied to pre-trial bail. Judge Agnew released Mr. Heathen, but later wrote this decision rejecting the proposition. [88] Judge Agnew identified two categories of pre-trial bail cases where judges have ‘run with the spirit’ of Gladue.

He called the firstcategory “a priori” cases – or those where the judge or judges assume that Gladue sentencing considerations apply to pre-trial bail. Hereferred to a second category of cases as those where the judge’s reasoning is based upon cultural context.

[ 89 ] Judge Agnew reviewed the statutory frameworks for pre-trial bail and sentencing, and noted the different considerations which apply. Judge Agnew correctly noted that the objectives of pre-trial bail and sentencing are “completely different”: Sentencing is the process of imposing just consequences on an offender for their behaviour, ultimately with the goal of developing and maintaining a “just peaceful and safe society”.

Bail is more prosaically focused on getting accused persons to trial so that their guilt or innocence can be established by law, and protecting the public in the interim”. [56] [ 90 ] In my view, the key distinction between pre-trial bail and sentencing lies in the protection and safety of the public: the statutory law of pre-trial bail is concerned primarily with risk assessment . If the accused is released: • Will he abscond? • Is there a substantial likelihood he will reoffend? • Is there a substantial likelihood he will interfere with the administration of justice in his case?

And, • Will his release result in loss of public confidence in the justice system? [ 91 ] These statutory considerations – based on risk assessment – are as relevant and necessary for the protection and safety of Inuit and Nunavut communities as they are elsewhere in Canada. The assessment analysis must be based solely upon risk. This is so because we are dealing with the pre-trial liberty of a person who is presumed by law to be innocent. i. The problems with the a priori cases [ 92 ] It was open to Parliament in 1996 when it enacted s. 718.2 (

e) to extend what became known as Gladue sentencing considerations to the law on pre-trial bail. Parliament chose not to do so in 1996. Nor has Parliament chosen to do so in the intervening 22 years. Nevertheless, some judges have chosen to ‘run with the spirit’ of Gladue and to inject new judge-made considerations into the statutory pre-trial bail framework – ignoring the different objectives of the two regimes. [ 93 ] In my view, there is no jurisdiction – or authority – for judges to override Parliament’s will in this area.

Stated differently, there is no legal foundation on which judge’s may assume and find that Gladue sentencing considerations apply to pre-trial bail law. ii. The problem with the cultural context cases [ 94 ] Pre-trial bail analysis must focus on risk assessment. Cultural factors are largely irrelevant to this analysis.

Yet, cultural factors and community standards may still assist the judge or local justice of the peace without the judicial officer having to engage in spurious judicial reasoning. [ 95 ] I said earlier that Inuit Qaujimajatuqangit is central to our conception of justice in the Nunavut Court of Justice. That is not to say, however, that judges always consider Inuit Qaujimajatuqangit in the context of Gladue . I will illustrate this seeming anomaly with an example in the pre-trial bail context. [ 96 ] An accused may be charged with a serious personal injury offence.

He may even be charged with second degree murder. He may have a troubling criminal record. The secondary ground may be a real concern.

Yet, as part of the risk assessment analysis, the presiding judge may still be able to order a release on pre-trial bail. [ 97 ] The judge may conclude that releasing the accused into the hands of an elder in a traditional outpost camp may significantly reduce the risk of recidivism to an appropriate risk level: away from the idleness created by too few jobs, away from the stresses of overcrowding, away from the abuse of legal or bootlegged alcohol, away from the pressures of negative peer groups, and back to a purposeful and traditional way of life.

[ 98 ] If the judge grants pre-trial bail under these circumstances, he does so in the context of community standards and Inuit Qaujimajatuqangit.

There is no need for tenuous legal reasoning to justify that outcome by applying Gladue sentencing considerations to the statutory law of pre-trial bail. [ 99 ] Having culturally appropriate responses responds to the argument that the present statutory pre-trial bail regime necessarily perpetuates the colonialism and racial discrimination of the past. [57] As a Gladue court, the Nunavut Court of Justice keeps the culture, history and traditions of Nunavummiut at the forefront of all its deliberations. [ 100 ] As I have stated, extending the spirit of Gladue to pre-trial bail is not supported by statutory law or properly grounded judicial precedent.

Still, Defence Counsel has asked this Court to extend Gladue sentencing considerations from the sentencing process to the statutory law of pre-trial bail. Stated another way, Defence Counsel has asked this Court to create a new set of judge-made pre-trial bail considerations in Nunavut. [ 101 ] I cannot do so. In my respectful view, this is a task for Parliament and not the judiciary. [ 102 ] Gladue sentencing considerations cannot assist Mr. Jaypoody obtain pre-trial bail. VII. CONCLUSION [ 103 ] In conclusion, Mr.

Jaypoody has not satisfied his burden of showing that his detention is not justified in all the circumstances of his case. For the reasons I have stated, his application fails to meet the threshold of the tertiary grounds listed in s. 515(10)(c). [ 104 ] I deny Mr. Jaypoody’s pre-trial bail request, and I remand him into pre-trial detention. [ 105 ] He will return to court on December 3, 2018, in Clyde River for his preliminary inquiry. I direct the preparation of the required removal order. Dated at the City of Iqaluit this 29th day of November, 2018 ___________________ Justice P. Bychok Nunavut Court of Justice