R v Osuitok, 2011 NUCJ 19

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v Osuitok, 2011 NUCJ 19 Date: 20110719 Docket: 08-10-594 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Sangani Osuitok ________________________________________________________________________ Before: The Honourable Madam Justice S. Cooper Counsel (Crown): L. Lane Counsel (Accused): G. Magee Location Heard: Iqaluit, Nunavut Date Heard: March 14, 2011 Matters: Criminal Code, ss. 145(3) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) I. BACKGROUND

[1] On August 21, 2010, Mr. Osuitok was charged with simple assault. He was released on an undertaking with the followingconditions: i. not to attend House 2219, Apt. B, in Iqaluit; ii. have no direct or indirect contact with LA; iii. abstain from the consumption of alcohol; and iv. keep the peace and be of good behaviour. [2] On August 29, 2010, the RCMP were called to House 2219, Apt. B, in Iqaluit. Mr. Osuitok was at the residence, intoxicated, and inthe presence of LA. LA had blood on her shirt, face and arms. Mr. Osuitok began to walk away and was directed by the RCMP to stopand show his hands.

He continued to walk away and, ultimately, force had to be used to prevent him from leaving. [3] Mr. Osuitok was charged with four counts of breach of probation: one for attending House 2219, Apt. B; one for having contactwith LA; one for drinking alcohol; and one for failing to keep the peace and be of good behaviour. [4] Counsel invited this Court to make findings of guilt on each of the charges on the basis of agreed facts. [5] The issue is whether three of the charges should be stayed on the basis that multiple convictions should not be entered for chargesarising from the same delict or act.

In other words, the issue is whether the entry of all of the convictions would violate the principle setout in R v Kienapple, (SCC), [1975] 1 SCR 729, 44 DLR (3d) 351 [Kienapple]. In relation to the charge of failing tokeep the peace and be of good behaviour, there is a further issue of whether the facts make out an offence. II. THE LAW [6] It is a long held principle of common law that there should not be multiple convictions for the same delict or act.

This principle wasdiscussed at length by the Supreme Court of Canada in Kienapple and, more recently, in R v Prince, (SCC), [1986] 2SCR 480, 33 DLR (4th) 724 [Prince]. [7] The test to be applied is twofold: i. Is there a factual nexus between the charges? ii.

Is there a legal nexus between the charges? [8] In determining whether there is sufficient factual nexus between the charges consideration must be given to the remoteness orproximity of the events in time and location, whether there were any relevant intervening events, and whether the actions were related bya common objective (Prince, ibid at para 20). [9] It is only if the Court finds that there is sufficient factual nexus that it need go on to determine if there is sufficient legal nexus. Thatthe offences share common elements is not, in and of itself, sufficient to establish a legal nexus.

The Court must determine if there areany distinguishing features between the offences.

III. ANALYSIS A. Charges for attending at the house and for having contact with LA [ 10 ] The Crown concedes that entering convictions for both the charge of breach of undertaking for attending at House 2219, Apt. B, and the charge of breach of undertaking for having contact with LA, would offend the Kienapple principle and is seeking a conviction on only one of these two charges. [ 11 ] Given the circumstances of this case, I agree with this assessment. It is agreed that the accused attended House 2219, Apt. B, for the sole purpose of speaking with the complainant.

She was there when he arrived and the two of them were in the presence of each other during his time at the residence. The breaches of the two conditions were for a common objective and the offences occurred simultaneously, over the same time period, at the same location, and involved the same activity. B. Charges for drinking alcohol [ 12 ] According to the agreed facts, Mr. Osuitok was intoxicated when he arrived at House 2219, Apt. B. He did not have anything to drink while he was there. When the RCMP arrived, they observed him to be intoxicated. [ 13 ] The only reasonable inference is that Mr.

Osuitok drank alcohol at some time prior to going to House 2219, Apt. B, and having contact with LA. The drinking took place at a different, undisclosed location. Had he not gone to House 2219, Apt. B, he still could have been charged with breach of undertaking. [ 14 ] Although the evidence which the Crown relies upon to establish this breach of undertaking (Mr. Osuitok's state of intoxication) is linked to the other breaches in that it was discovered at the same time, the conduct which constitutes the breach (drinking alcohol) is quite independent. [ 15 ] There is no suggestion that Mr.

Osuitok drank in order to summon the courage to contact LA, thereby, however tenuously, connecting the activities. [ 16 ] I find that there is no factual nexus between this breach of undertaking and the other breaches of undertaking. C. Charge for not keeping the peace and being of good behaviour [ 17 ] At the hearing on this matter, counsel submitted that the conduct which supports this charge is Mr. Osuitok's failure to comply with RCMP directions to stop and to show his hands.

I requested that counsel provide written submissions on whether the guilty plea should be accepted, given the divergent case law on whether a charge of failing to keep the peace and be of good behaviour could stand alone, without an underlying substantive charge for a separate offence. [ 18 ] Defence counsel provided written submissions in which they took the position that the failure to keep the peace and be of good behaviour arose not from Mr.

Osuitok's failure to comply with RCMP directions (as had been submitted at the oral hearing), but from his failure to comply with the terms of his probation order that he not drink alcohol and that he not have contact with the complainant or attend at her house. Crown counsel did not provide written submissions. [ 19 ] I will first address whether Mr.

Osuitok's failure to comply with RCMP directions constitutes a breach of the condition to keep the peace and be of good behaviour. [ 20 ] A review of the case law indicates that there have, at times, been two lines of thought regarding what constitutes a breach of the

condition to keep the peace and be of good behaviour. [21] As a general principle, it is accepted that the obligation to “keep the peace” is a separate obligation from the obligation to “be ofgood behaviour.” A breach of the peace is conduct which amounts to a disturbance or disruption of public peace and order. A breach ofthe obligation to “be of good behaviour” is broader and encompasses behaviour that may not constitute a breach of the peace.

The issuewhich has arisen in the case law is whether conduct which is lawful can nevertheless constitute a breach of the obligation to “be of goodbehaviour.” See R v RML, (SK KB), [1998] SJ No 634 (QB) [RML], 129 CCC (3d) 570; R v SS, (NL CA), 178 Nfld & PEIR 219 (CA), 138 CCC (3d) 430; R v DR (1999), (NL CA), 178 Nfld & PEIR 200(CA), 138 CCC (3d) 405 [DR]; R v LTW, [2004] NJ No 260 (Prov Ct) [LTW]. [22] In RML, a youth was charged with breaching a condition of his probation for not keeping the peace and being of good behaviour.Some young people had been seen attempting to break into cars.

When the police arrived, they saw two young males in the vicinity,running. They called out to the young males to stop, but the youths continued running. The accused was subsequently arrested andcharged. It was argued that by continuing to run after being told by the police to stop, the accused had breached the condition in hisprobation order to “be of good behaviour.” The Court discussed the two prevailing lines of authority: one being a broad

interpretation ofthe requirement to “be of good behaviour,” and one being a more narrow

interpretation. [23] Under the broad

interpretation, lawful conduct could amount to a breach of the obligation to “be of good behaviour” if it wasconduct which fell below a community standard of behaviour expected of all citizens. [24] The narrow

interpretation would limit breaches to that conduct which breaches a legal obligation. [25] The Court in that case did not find it necessary, on the facts before it, to decide between the two

interpretations, as it found that theconduct of the accused was not unlawful nor did it fall below an accepted community standard. [26] The Newfoundland Court of Appeal gave careful consideration to the issue in the matter of DR. The case involved a young personwho had run away from a group home that he had been placed in as a ward of the state. He was on probation and was charged withbreaching his probation by not keeping the peace and being of good behaviour. The conduct did not amount to a breach of the peace norwas it in contravention of a federal, provincial, or municipal law.

Accordingly, the Court was required to deal directly with the issue ofwhether a condition to “be of good behaviour” could be breached only by unlawful activity or whether a broader “community standard”test should be applied. [27] The Court reviewed the relevant case law and the historical development of such conditions in probation orders, recognisances, andpeace bonds.

The Court concluded that, historically, the condition was directed at preventing the commission of further criminal offencesand was designed, in the context of probation orders, to give an offender the opportunity to demonstrate that he or she should not becharacterized as a person unable or unwilling to comply with the law. Further, in keeping with general criminal law principles, an offencemust be sufficiently described and known in advance to allow citizens to conduct themselves in a manner so as to avoid committing anoffence. An offence which fails to do so may also be in contravention of

section seven of the Canadian Charter of Rights and Freedoms,Part 1 of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11. [28] The Court rejected the argument that since all citizens are required to abide by the law, a condition to “keep the peace” must haveadditional elements or be given a broader

interpretation if it is to have meaning or substance. It was noted that a citizen who is on acondition to “keep the peace” is subject to an additional criminal conviction and a potentially harsher punishment than a citizen who isnot subject to such a condition, even though they engage in the same activity. [29] This

interpretation was adopted and applied by the Court in LTW. [30] I adopt the approach set out by the Newfoundland Court of Appeal in DR. [31] The issue which must now be addressed is whether Mr. Osuitok's conduct in walking away from the RCMP amounted to anoffence. The facts which have been provided establish that Mr. Osuitok was not under arrest at the time he was walking away. It appearsthat when he did not comply with the officer's demand to stop he was very quickly physically restrained and arrested. It is not clear what,if any, legal obligation Mr. Osuitok had to comply with the officer's demand. I am not able to say, on the facts provided, that he could be

found guilty of obstruction or any other criminal offence. Further, there is authority for the proposition that proof of the commission ofan offence for which the accused has not been charged cannot be used to establish that an accused has breached the condition to keep thepeace and be of good behaviour by the commission of an offence (LTW, supra). [32] On the basis that the Crown relies upon Mr.

Osuitok's failure to comply with RCMP directions to substantiate his failure to keep thepeace and be of good behaviour, I decline to accept the guilty plea. [33] Alternatively, if the facts relied upon to establish the breach of the condition to keep the peace and be of good behaviour are theother breaches, as suggested by Defence counsel, then it is clear that the factual and legal underpinnings are identical. The facts reliedupon to prove the breaches are the same. The breach by failing to keep the peace and be of good behaviour does not require anyadditional legal elements.

Accordingly, I would decline to enter a conviction based on the principle set out in Kienapple. IV. POLICY CONSIDERATIONS ON THE ENTRY OF MULTIPLE CONVICTIONS [34] Counsel for Mr. Osuitok submits that there are good policy reasons for applying the Kienapple principle in circumstances such asthis, where the breach of multiple conditions of a single order results in multiple charges. It is argued that conditions are drafteddifferently throughout the Territory, such that the same conduct could result in the breaching of one condition or several conditions,depending upon the wording of the order.

For example, an order might have a single condition which combines a requirement to have nocontact with person X and to not attend at house Y, while another order might separate these requirements into two separate conditions. [35] However, it would seem that conduct which does not have a sufficient factual nexus could result in several charges of breaches ofthe same condition of an order, or several charges of breaches of different conditions, depending on the wording of the order.

TheKienapple principle may apply, regardless of whether the prohibited conduct is contained in one condition or more; it will all dependupon the particular circumstances. [36] It is further argued that if an accused is charged with both a substantive offence and a breach based on the same conduct, where thebreach is considered aggravating on the substantive offence, the penalty for the breach should be nominal (R v Chinn (1977), (AB KB), 11 AR 18 (Dist Ct), 38 CCC (2d) 45) and that the same should hold true for multiple breaches arising from thesame circumstances. Indeed, the same principle would apply.

If, in the case at Bar, the Court were to sentence Mr. Osuitok on the breachof undertaking for attending the residence and for contacting LA and, in the course of that sentencing, were to consider it an aggravatingfactor that he was intoxicated at the time and was thereby in further breach of his conditions, any subsequent sentence on the charge forbreaching his condition by drinking alcohol would have to be nominal. [37] The Court understands concerns regarding the laying of multiple charges and how there can be inconsistencies depending upon whois doing the pre-charge screening.

However, as stated by the Court in R v Poker, 2009 NLCA 33 at para 16, 287 Nfld & PEIR 22: [...] it is important to bear in mind that whether the Crown chooses to proceed with a charge is a matter within the Crown's discretionand is not a matter for judicial supervision. The judicial function relates to the disposition of charges, rather than to the decision toproceed with them. V. CONCLUSION [38] Count # 1: Breach of undertaking for attending house # 2219, Apt.

B, is stayed. [39] Count # 2: Breach of undertaking for contacting LA, a conviction is entered. [40] Count # 3: Breach of undertaking for drinking alcohol, a conviction is entered. [41] Count # 4: Breach of undertaking for failing to keep the peace and be of good behaviour, the guilty plea is not accepted.

Dated at the City of Iqaluit this 19th day of July, 2011 ___________________ Justice S. Cooper Nunavut Court of Justice