R v Teemotee, 2011 NUCJ 17

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v Teemotee, 2011 NUCJ 17 Date: 20110715 Docket: 08-10-558 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Rhoda Leetia Teemotee ________________________________________________________________________ Before: The Honourable Madam Justice S. Cooper Counsel (Crown): L. Lane Counsel (Accused): L. Saleh Location Heard: Iqaluit, Nunavut Date Heard: October 12, 2010 Matters: Criminal Code, ss. 515(10) (

c) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) I. BACKGROUND

[ 1 ] Ms. Teemotee is charged with aggravated assault. She was detained in custody following a show cause hearing on the basis that her detention was necessary to maintain confidence in the administration of justice, commonly referred to as the tertiary ground ( Criminal Code, RSC 1985, c C-46 , ss 515(10)(c)). She is seeking review of her detention. [ 2 ] The Crown bore the onus at the show cause hearing. Crown counsel conceded that Ms. Teemotee’s detention was not necessary to ensure her attendance in court (the primary ground) or necessary for the protection or safety of the public (the secondary ground).

Crown relied solely on the submission that her detention was necessary to maintain confidence in the administration of justice (the tertiary ground). [ 3 ] The Defence argues that the Justice of the Peace (JP) made the following errors: a. She failed to provide reasons for detaining Ms. Teemotee; b. She erred in her application of the tertiary ground; c. She misapprehended the evidence. II. WERE THE REASONS SUFFICIENT? [ 4 ] In reviewing whether or not the reasons were sufficient, I am mindful that the Justice of the Peace system in Nunavut is maintained largely by volunteer JPs who have no formal legal training.

The JPs are familiar with the communities they serve and they provide many hours of valuable service to the administration of justice in Nunavut. They deal with high volumes of work, under significant time constraints. [ 5 ] As stated by this court in R v A(L), 2005 NUCJ 27 at para 15 , 68 WCB (2d) 71 [A(L)]: The content of the reasons in a bail hearing, conducted by Justices of the Peace in Nunavut who have little legal training, must be set at a lower level than provincial court judges who conduct some bail hearings in other jurisdictions.

It is not necessary to engage in legal analysis, but there must be some reason stated for the decision in ordinary everyday language. [ 6 ] The Supreme Court of Canada has stated that, in determining if sufficient reasons were given, an appellate court is to take a functional, purposeful approach.

Reasons serve three functions: a. they explain the decision to the parties b. they provide public accountability c. they permit effective appellate review [ 7 ] The significance and importance of providing reasons for taking away the liberty of a citizen at a bail hearing, before trial and conviction, while he or she has the benefit of the presumption of innocence, is reflected in the fact that reasons for detention following a show cause hearing are statutorily required pursuant to section 515(6.1) of the Criminal Code . [ 8 ] In many instances, reasons at a show cause hearing will be brief and easily discernible from a review of the record of the hearing.

However, application of the tertiary grounds is perhaps the most difficult issue that can arise at a show cause hearing, even for judges with legal training and years of experience. It requires the application of difficult, somewhat intangible legal concepts and public policy

considerations. As a result, it will usually require more extensive reasons than a show cause where the tertiary grounds do not have to be considered. [ 9 ] In ordering the detention of Ms. Teemotee, the Justice of Peace correctly stated the Crown onus and the four criteria to be considered on the tertiary ground, as set out in section 515(10) (

c) of the Criminal Code . She also mentioned that a letter had been filed which confirmed Ms. Teemotee's employment. The difficulty is that she did not relate or apply the criteria to the particular matter before her. While we see that the Justice of the Peace concluded that it was necessary to detain Ms. Teemotee to maintain confidence in the administration of justice, we do not know what it was about the particular offence alleged or the circumstances of Ms. Teemotee that led her to that conclusion. [ 10 ] Accordingly, I find that the reasons are insufficient.

This is an error in law which results in a new hearing on the merits. See R v Zuniga Acosta, 2005 BCSC 620 at para 18 , 65 W.C.B. (2d) 505 and A(L), supra, at para 16. [ 11 ] Given my finding on the sufficiency of the reasons, it is unnecessary for me to rule on the other grounds for review, although my reconsideration of the matter will include discussion on the tertiary ground for detention. III. APPLICATION OF THE TERTIARY GROUNDS [ 12 ] Section 515(10) (

c) of the Criminal Code provides that 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.” 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 [...] A. Strength of the Crown's case [ 13 ] It is alleged that Ms. Teemottee and her sister, who is the complainant, were drinking together at the Legion. They left the Legion and went back to the complainant's home where they continued to drink. The complainant described Ms. Teemotee as acting weird. Ms.

Teemotee was asked to leave but did not. She continued acting in a strange manner. When the complainant went outside for a cigarette Ms. Teemottee attacked her with a knife. The attack can only be described as vicious. The complainant received approximately nine stab wounds – seven on the back and two on the chest - along with other cuts, scratches and bites and a collapsed lung. There is some suggestion that following the attack Ms. Teemottee kept the complainant in the home against her will. It was Ms.

Teemottee who called the RCMP and reported the incident. [ 14 ] There were no other people in the home at the time of the incident. Ms. Teemottee made an inculpatory utterance to the RCMP when she called in the incident. It does not seem to be an issue that Ms. Teemottee perpetrated the attack. [ 15 ] The attack was vicious, the injuries serious. There is no suggestion that they do not meet the criteria for an aggravated assault. Although the complainant has been released from hospital, she is receiving 24 hour care from her family.

Even if the physical injuries heal completely, the psychological trauma will no doubt continue.

[ 16 ] The attack is described as unprovoked. There is nothing that has been presented to the Court at this stage to suggest a possible defence of self-defence. [ 17 ] The Crown appears to have a strong case. B. Gravity of the offence [ 18 ] The offence of aggravated assault is a serious type of assault.

However, like many offences in the Code, it covers a broad spectrum of behaviour, from a single puncture wound to injuries which result in the loss of a limb, permanent immobility, or a vegetative state. [ 19 ] The number of stab wounds and the fact that this violence was perpetrated within the family, in the home of the complainant, make this offence more serious. [ 20 ] It is not known at this point if the complainant will suffer permanent physical injuries.

At this point there is no medical evidence to suggest she will. [ 21 ] While the offence is serious, it is not the most grave of aggravated assaults, nor is it the most grave of offences set out in the Criminal Code . C. Circumstances of the offence [ 22 ] I have heard that both the complainant and the accused were highly intoxicated. While this certainly does not excuse the behaviour, it is consistent with a lack of planning or premeditation. The incident did not occur over an extended period of time. It did not involve torture.

It was not the culmination of prior intimidation or incidents of violence by the accused towards the complainant. It was not perpetrated in furtherance of some other offence. It was the accused who called the RCMP for assistance. D. Potential length of imprisonment [ 23 ] The maximum penalty for aggravated assault is 14 years ( Criminal Code , s 268(2)). There is no minimum penalty. The Crown has stated that, if convicted, they would expect a jail term of mid-territorial to penitentiary time.

This is at the lower end of the range of penalties for aggravated assault. [ 24 ] Sentencing is a highly individualized process, which takes into consideration not only the nature of the offence but also the circumstances of the offender. It is difficult at this stage to speculate about the potential jail term upon a conviction.

Further, the Court must be cautious not to use bail as punishment in advance of conviction. [ 25 ] In considering whether to detain an accused on the tertiary ground, the Court must consider all of the circumstances of the offence, including those specifically set out in the Code. [ 26 ] As stated by Justice Vertes in R v Caisse, 2004 NWTSC 27 at para 6 , [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 a potentially lengthy term of imprisonment is likely. More is required.

The Criminal Code poses as the ultimate question whether, in a case such as this, in all of the circumstances, detention is necessary to maintain confidence in the administration of justice.

[ 27 ] The Court must be mindful that there are no categories of offences for which bail is not available. In most cases the case for the Crown will, at the early stages, appear overwhelming.

Most offences of violence which lead to contested bail hearings will have the potential for lengthy periods of imprisonment. [ 28 ] The tertiary ground must be considered and applied through the eyes of a reasonable person, informed of the facts and knowledgeable in the principles underlying our bail provisions. [ 29 ] It is generally recognized that the tertiary ground will rarely be the sole justification for detention – that it is reserved for those extraordinary cases where detention is necessary despite the fact that the accused is not a flight risk and is not likely to commit further offences. [ 30 ] I am not satisfied that this is such an offence.

IV. CONCLUSION [ 31 ] Ms.

Teemottee will be released on a recognizance with the following conditions: a. $500 no cash deposit; b. keep the peace and be of good behaviour; c. abstain absolutely from the possession or consumption of intoxicating substances, including alcohol; d. not to be present anywhere alcohol is being consumed; e. reside at Sivimut House; f. be in your residence from 10:00 pm to 7:00 am; g. when you are required to be in your residence, you must present yourself to the door of the residence at the request of the RCMP; h. no contact directly or indirectly with TM; i. report to the RCMP on Mondays between the hours of 9:00 am and 5:00 pm; and j. not to possess firearms, ammunition, prohibited or restricted weapons.

Dated at the City of Iqaluit this 15th day of July, 2011

___________________ Justice S. Cooper Nunavut Court of Justice