R v Nakashuk, 2011 NUCJ 16

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v Nakashuk, 2011 NUCJ 16 Date: 20110715 Docket: 08-10-5 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Susie Nakashuk ________________________________________________________________________ Before: The Honourable Madam Justice S. Cooper Counsel (Crown): S. Boucher Counsel (Accused): A.

Mahar Location Heard: Iqaluit, Nunavut Date Heard: May 14, 2010 Matters: Criminal Code , s 522 REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) Restriction on publication: By order of Madam Justice Cooper, this judgment was not to be published until the completion of the trial. The matter has been concluded.

I. NATURE OF APPLICATION [ 1 ] This is an application pursuant to

section 522 of the Criminal Code, RSC 1985, c C-46 , on behalf of Susie Nakashuk for judicial interim release pending trial. II. BACKGROUND [ 2 ] It is alleged that in the afternoon February 19, 2010, Ms. Nakashuk and her aunt decided to buy a bottle of vodka. Ms. Nakashuk went looking for a bottle to purchase. She did not return to her aunt's residence. Instead, she went to the residence of the deceased and drank with him and others. [ 3 ] Later that evening the police responded to a report of a stabbing at the residence of the deceased.

When they arrived at the residence the deceased had a knife protruding from his chest. His pants were down. He was still alive. Ms. Nakashuk was no longer in the residence. The deceased was pronounced dead at the hospital a short time later. He was found to have two stab wounds, one to the lungs and one that punctured both the lung and heart. [ 4 ] While the police were attending to the deceased, Ms. Nakashuk was seen by and spoke with several people. She made utterances to the effect that she had stabbed someone to approximately seven people. The witnesses describe Ms. Nakashuk as intoxicated. [ 5 ] Ms.

Nakashuk was arrested that evening for mischief and lodged in cells overnight. She was released the following morning, February 20, without charges. [ 6 ] Forensic testing disclosed that the deceased’s blood was on the lower right sleeve of the top Ms. Nakashuk was wearing that evening. [ 7 ] On March 26, 2010, Ms. Nakashuk was arrested and charged with second degree murder. III. THE LAW [ 8 ] The Canadian Charter of Rights and Freedoms [Charter] provides: 11. Any person charged with an offence has the right [...] (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (

e) not to be denied reasonable bail without just cause [ 9 ]

Section 11(

e) has been interpreted as containing two distinct elements, the right to “reasonable bail,” in terms of conditions, and the right to not be denied bail without just cause. [ 10 ] The onus is on Ms. Nakashuk to satisfy the Court, on the balance of probabilities, that her continued detention is not justified ( Criminal Code , s 522(2)). [ 11 ] Section 515(10) of the Criminal Code sets out the following grounds for detaining an accused in custody prior to trial. They are, in

brief: (

a) where detention is necessary to ensure attendance in court (often referred to as the primary ground) (

b) where detention is necessary for the protection or safety of the public (often referred to as the secondary ground) (

c) where detention is necessary to maintain confidence in the administration of justice (often referred to as the tertiary ground) IV. ANALYSIS A. The primary ground ( Criminal Code , ss 515(10)(a)) [ 12 ] Ms. Nakashuk is 30 years of age. She was born and raised in Iqaluit and has extended family in the community. She has no criminal record, although she has been granted a discharge for an assault. At the time of her arrest she was not working and her work history is sporadic. I infer from this that she has limited financial resources. [ 13 ] I am satisfied that Ms.

Nakashuk is not a flight risk and that she will attend court as required. B. The secondary ground ( Criminal Code , ss 515(10)(b)) [ 14 ] The Defence must satisfy the Court that the detention of Ms. Nakashuk is not necessary for the protection or safety of the public. In determining this, the Court must consider if there is a substantial likelihood that Ms. Nakashuk will reoffend or interfere with the administration of justice if released. [ 15 ] Although Ms.

Nakashuk does not have a criminal record, it is the Crown's position that she has an extensive history of involvement with the RCMP under circumstances that suggest a high risk to reoffend. In support of this position, the Crown has provided a printout from the Police Reporting Occurrence System (PROS) from December 26, 2005, to present. [ 16 ] The PROS report has 37 entries over a period of just over four years. However, some of these entries appear to be a kind of regular checking or updating done by the RCMP, some are circumstances where Ms.

Nakashuk called in a complaint herself, and some do not appear to have any connection with Ms. Nakashuk. There are approximately 18 entries where Ms. Nakashuk was intoxicated. In 2009 – 2010, she was lodged in cells on five occasions because of public intoxication. The position of the Crown is that Ms. Nakashuk has a lifestyle of excessive drinking that increases the risk of reoffending. [ 17 ] The Defence does not dispute that Ms. Nakashuk has a drinking lifestyle. They point to the fact that, despite this, her conduct rarely escalates to criminality as she has been found guilty on only one prior occasion.

They say that conditions can be placed on her to address any concerns related to her drinking. [ 18 ] I am satisfied that, while Ms. Nakashuk may struggle with alcohol, she does not have a criminal history that suggests that she is likely to reoffend if released from custody. There is nothing to suggest that she would not comply with conditions imposed on her if she were released. Accordingly, any concerns arising from her use of alcohol could be addressed by placing appropriate conditions upon her release. [ 19 ] I am satisfied that Ms. Nakashuk's detention is not necessary on the secondary ground. C.

The tertiary ground ( Criminal Code , ss 515(10)(c))

[ 20 ] A person may be detained in custody pending trial if it is determined that “detention is necessary to maintain confidence in the administration of justice” (ibid.). The Court must consider: all of 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 [...] [ 21 ] The Court must consider all of the circumstances in determining whether detention is necessary to maintain public confidence in the administration of justice.

As the Supreme Court of Canada stated in R v Hall, 2002 SCC 64 at para 41 , [2002] 3 SCR 309 [emphasis in original]: The judge must be satisfied that detention is not only advisable but necessary. The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice.

Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified. [ 22 ] The Court further stated, that a judge can only deny bail if satisfied that, in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. The reasonable person making this assessment must be one properly informed about the philosophy of the bail provisions of the Criminal Code , Charter values and the actual circumstances of the case.

The circumstances in which this ground will be the sole basis for denying bail will arise infrequently (ibid.). i. Strength of the Crown's case [ 23 ] Any analysis at this stage must, of necessity, be superficial. It does appear that the Crown has fairly strong evidence to establish that Ms. Nakashuk was the person who stabbed the deceased. The strongest evidence of this is her utterances to various acquaintances and friends. The admissibility or reliability of the statements cannot be determined at this stage. The DNA evidence, while placing Ms.

Nakashuk at the scene, does not tie her inextricably to the offence, as she did not have exclusive opportunity. Indeed, when the RCMP arrived at the scene there was another highly intoxicated person there. [ 24 ] Ms. Nakashuk is charged with second degree murder. At trial the onus will be on the Crown to prove beyond a reasonable doubt all of the elements of second degree murder, including intent.

If issues of self-defence or provocation arise on the evidence, the onus will be on the Crown to disprove them. [ 25 ] On the materials before me, there appear two issues that the Crown may have to overcome to establish intent. One is the fact that the deceased was still alive when the police arrived. He was moving his head and gasping for air. This does not appear to be a case where the person who stabbed the deceased would likely have thought he was dead when they left the residence. The second issue is the intoxication of Ms. Nakashuk.

All of the materials presented, including the observations of the police officer who arrested her that night, indicate that she was intoxicated. It may be that her level of intoxication is such that she could not form the necessary intent for murder. That is an issue for the trial. If the Crown is unable to prove intent beyond a reasonable doubt then manslaughter is a more likely verdict. [ 26 ] The Defence has indicated that when Ms. Nakashuk was being interviewed by the RCMP, it was suggested to her that the deceased

was attempting to sexually assault her and perhaps she stabbed him to repel an attack. The Defence concedes that this may simply havebeen an interrogation tactic to persuade Ms. Nakashuk to give a statement. However, the Defence points to the fact that the deceased wasfound with his pants and underwear partially down and to the utterance made by Ms. Nakashuk to the effect that “he tried to do it to me”and “I tried to cut his [penis] off.” [27] It is understandable why the Defence would not, at this early stage, want to disclose its case.

While that is a strategic decision to bemade by the Defence, the Court can base its decisions only on the evidence before it. The stage of undress of the deceased, who wasapparently found in the living area of the apartment, is perplexing. If, at trial, there is an “air of reality” to the defence of self-defence,the onus would be on the Crown to disprove self-defence. A successful defence of self-defence could result in an acquittal. Alternatively,the same evidence might form the basis for a partial defence of provocation.

Again, these are issues for the trial. [28] While the Crown has relatively strong evidence to establish that Ms. Nakashuk was the person who stabbed the deceased, there arevery live issues on whether this is murder or manslaughter. It is less clear whether there might be a complete defence to the charge. ii. Gravity of the offence [29] Murder is the most serious offence in the Criminal Code. In that sense, this is a very grave offence. iii. Circumstances surrounding the commission of the offence [30] The offence did not involve extreme viciousness, torture, or a prolonged attack.

There is nothing to suggest that there are elementsof stalking or a pattern of violence by the accused towards the deceased. The accused was not in a position of trust to the deceased. Theoffence was not committed to further the commission of another offence. There is nothing in the post-offence conduct of the accused thatis particularly offensive or callous. iv. Potential length of imprisonment if convicted [31] If Ms. Nakashuk is convicted of second degree, murder the penalty is life imprisonment (Criminal Code, s 235(1)).

If she isconvicted of the lesser charge of manslaughter, the maximum penalty is life imprisonment and there is no minimum penalty (ibid., s236(b)). [32] In considering the tertiary ground for detention, the Court must be mindful of the constitutional presumption of innocence and theright to reasonable bail. I must consider not only the four factors set out in section 515(10)(

c) of the Criminal Code, but all of thecircumstances of the alleged offence and the accused. [33] As stated by Justice Vertes in R v Caisse, 2004 NWTSC 27 at paras 6-8, [2004] NWTJ No 30: But it is not simply a question of finding that the Crown has a strong case, that the offence charged is extremely grave, and that apotentially lengthy term of imprisonment is likely. More is required. The Criminal Code poses as the ultimate question whether, in a casesuch as this, in all of the circumstances, detention is necessary to maintain confidence in the administration of justice.

One cannot focus on the gravity of the offence and the strength of the Crown's case so as to overlook that there are no categories ofoffences for which bail is not a possibility. There are likely few crimes of violence, such as murder, where one could not say that thegravity of the offence justifies detention. There are also many cases where the strength of the Crown's case, at this early stage, appearsoverwhelming. If one reads the Supreme Court of Canada decision in R. v.

Hall, (2002) 2002 SCC 64 , 167 C.C.C. (3d) 449, it seems clear thatthe tertiary ground is meant to apply to extraordinary cases where all reasonable individuals, armed with the facts, would agree that theaccused must not be released notwithstanding that attendance at trial and public safety are not concerns.

[ 34 ] The reasonable person understands and values the presumption of innocence. The reasonable person understands that the right to reasonable bail is necessary if the presumption of innocence is to have meaning. [ 35 ] I am satisfied that there is nothing in the circumstances of this offence or this particular accused that necessitates her detention in custody in order to maintain confidence in the administration of justice. V. CONCLULSION [ 36 ] Accordingly, Ms. Nakashuk will be released on a recognizance to a surety approved by the Court. Dated at the City of Iqaluit this 15th day of July, 2011 ___________________ Justice S. Cooper Nunavut Court of Justice