R. v. Doucet, 2014 NUCJ 35

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Doucet, 2014 NUCJ 35 Date: 20141209 Docket: 08-13-183 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Andre Doucet ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): M. Girard Counsel (Accused): J. Murdoch-Flowers Location Heard: Iqaluit, Nunavut Date Heard: September 19, 2014 Matters: Supplemental Reasons for Decision on Bail Review REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” By court order made under

section 517 of the Criminal Code , “any information related to this matter shall not be published in any document or broadcast or transmitted in any way before such time as all litigation regarding the matter is concluded.” Publication ban has been lifted as of 11/25/2016 I. INTRODUCTION [ 1 ] At the conclusion of a preliminary hearing on charges against Mr. Doucet, I released him from custody and ordered he be placed on a Recognizance. Oral reasons were provided at the time with an indication that supplemental reasons would follow. These are the supplemental reasons. II. BACKGROUND [ 2 ] Mr.

Doucet came before the Court for a preliminary hearing on a five count Information alleging the following Criminal Code offences: #1: on or between February 2012 and March 2013, kidnapping contrary to s. 279(1)(a); #2: on or about March 5, 2013, sexual intercourse with a person under the age of 16, contrary to s. 151; #3: on or between February 2012 and March 2013, intimidation contrary to s. 423.(1); #4: on or between February 1 and February 28, 2013, assault, contrary to s. 266; #5: on or about March 5, 2013, sexual assault contrary to s. 271. [ 3 ] The charges were laid on March 8, 2013. Mr.

Doucet was arrested on the same date and released on a Recognizance, with a requirement that he returns to court on April 8, 2013. [ 4 ] Mr. Doucet did not attend court for his first appearance on April 8, 2013 and a warrant for his arrest was issued. The RCMP followed up on April 28, 2013, by attending at the house at which he was required to be residing. Mr. Doucet was not there. The police were informed that he had not been there for several days, although he had been seen around town and was understood to be living in a shack on the beach. It seems that nothing further was done to locate Mr.

Doucet and execute the arrest warrant. [ 5 ] On April 22, 2014, over a year after the arrest warrant had been issued, the accused was back before the Court. It does not appear that a bail hearing was held at that time. [ 6 ] Mr. Doucet elected to be tried by a judge sitting with a jury and to have a preliminary hearing. At some point prior to the preliminary hearing proceeding, Defence counsel (who was not counsel at the preliminary hearing or the review of bail) conceded

committal on all charges. The understanding is that the preliminary hearing would proceed for the purposes of discovery. [ 7 ] At the conclusion of the preliminary hearing there was a concern about the sufficiency of the evidence in relation to two of the counts. Crown counsel did not seek a committal on the kidnapping charge, recognizing that there was no further evidence that could have been called in relation to that matter. While there were also concerns about a further count in the Information, Defence counsel felt bound by the position taken by prior counsel and the committal was not contested.

As result, Mr. Doucet was committed to stand trial on four of the five counts on the Information and was discharged on one of the counts, that being the serious charge of kidnapping. [ 8 ] At the conclusion of the preliminary hearing Mr. Doucet pled guilty to a charge of failure to attend court, a charge of failure to report to the RCMP as required, and a charge of not presenting himself at the door of his residence when required. He received a global sentence of 42 days, deemed to have been served by his pre-sentence custody. [ 9 ] The Court then proceeded to deal with the issue of release. III.

STANDARD OF REVIEW [ 10 ] Mr. Doucet was in custody at the time of his preliminary hearing. Both counsel proceeded on the basis that this was a review of an earlier decision to detain the accused. Therefore, both counsel made submissions on the question of whether there had been a change in circumstances sufficient to justify the Court embarking upon a review of the accused's remand status. A review of the file suggests that counsel were acting under a misapprehension of the situation. [ 11 ] When Mr. Doucet was arrested in March of 2013, he was released by a Justice of the Peace on his own Recognizance. When Mr.

Doucet did not attend Court as required an arrest warrant was issued. He was arrested in April of 2014 and has been in custody since that time. It does not appear that he exercised his right to show cause; rather, he consented to remand. Accordingly, the question of whether he should be detained had not been considered and determined by any judicial body and there was no decision to review.

This was a hearing de novo as of right, with the onus being on the accused. [ 12 ] Accordingly, it is not necessary for me to consider if a change of circumstances is necessary for bail to be reviewed at the conclusion of a preliminary inquiry or if, in the circumstances of this matter, such a change occurred. A. Crown Position [ 13 ] The Crown argued that the accused should be detained for the protection and safety of the public.

In support of this proposition, they relied upon statements made by the complainant and her father that they were very afraid of the accused. [ 14 ] Despite the accused having not shown up for court in 2013, the Crown did not place much emphasis on the argument that detention was necessary to ensure the accused attend court. B. Defence Position [ 15 ] The Defence argued that the accused should be released on his own Recognizance, with conditions appropriate to ensure he remains in Iqaluit and has no contact with the complainant or any witnesses.

It was submitted that if the accused stays at the Men's Shelter, which has a curfew and monitors the attendance of clients, and reports to the RCMP regularly, his attendance in Court can be assured. Defence counsel also argued that no-contact conditions respecting the complainant and her father would address any concerns on the secondary grounds, and pointed to the fact that there has been no contact since the charges were laid over a year ago. IV. ANALYSIS

[16] The right to reasonable bail is a constitutionally protected right. The Canadian Charter of Rights and Freedoms, s 2(b),

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], provides: 11. Any person charged with an offence has the right … (

e) not to be denied reasonable bail without just cause. [17]

Section 11(

d) has two aspects to it; the right not to be denied bail without just cause and, if granted bail, the right for the terms andconditions of release to be reasonable (R v Pearson (SCC), [1992] 3 SCR 665, 77 CCC (3d) 124; R v Morales (SCC), [1992] 3 SCR 711, 77 CCC (3d) 91). [18] The Criminal Code sets out the grounds on which detention of an accused pending trial is justified. Those grounds are: s. 515(10) (

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 or witness to the offence, or anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased 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 or, in the case that involves, orwhose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [19] With respect to the question of whether it is necessary to detain Mr.

Doucet in order to ensure his attendance in court, it cannot beignored that he failed to attend court for his first appearance and also failed to report to the RCMP as required. The Crown argued thatthe failure of the accused to attend court resulted in a significant delay in the proceedings and very nearly resulted in having seriouscharges “fall through the cracks”. While I accept that the failure to attend for the first appearance resulted in some delay, the fact is thatan arrest warrant was outstanding for a year with few steps having been taken to execute it.

In this regard, I am mindful of the commentsin R v Unka, 2005 NWTSC 15 , [2005] NWTJ No 19 (QL), to the effect that the obligation is on the state to prosecute in atimely manner and, accordingly, there is a corresponding obligation to follow up on arrest warrants. [20] Mr. Doucet has strong ties with the community. He has little or no income. These factors suggest that he does not have the meansto leave the jurisdiction and thereby avoid court.

While the history of this matter demonstrates that even in the community an accusedcan successfully avoid court, I accept that the five months in custody since his arrest have been a wakeup call for the accused. Further, acondition that he resides at the Men's Shelter [the Shelter] will require that he abide by the curfew of the Shelter. The manager of theShelter will advise the RCMP if the accused breaks the curfew. This condition will provide for daily monitoring of his movements. I amsatisfied that these conditions will adequately address any concerns regarding Mr.

Doucet's attendance in Court. [21] With respect to the protection of the public, the Crown relied largely on the expressed fear of the complainant and her father of theaccused. The Crown provided the Court with a statement given by the father over a year ago. In the statement he indicated that he wasafraid of the accused. The basis for his fear was the father’s understanding that the accused used a knife to slash someone’s throat andwas sentenced to three years in a federal penitentiary. The basis for this fear is not borne out by the evidence. Mr.

Doucet has never beensentenced to imprisonment in a federal penitentiary. There is nothing in the materials presented to suggest that he ever used a knife in themanner suggested. [22] The Crown concedes that there is no rational basis for the fear expressed by the father. Despite this, the Crown argued that theexistence of fear is, in and of itself, sufficient for the accused to be detained. I do not accept this proposition. Throughout the courtprocess, the Court must act on reliable and trustworthy evidence, not speculation and allegations that are not only unfounded but are

proven to be wrong. [ 23 ] The Crown also expressed concerns that the accused will interfere with witnesses, including the complainant. Again, there is no basis for this proposition. In fact, the history of these proceedings suggests the opposite.

The accused was at large for over a year, in the same community as the complainant and her father, yet there is no suggestion there was any contact whatsoever and, in particular, no improper contact. [ 24 ] The accused does have a criminal record consisting of two offences of violence in 2010 and, of course, the breaches of Recognizance for which he was recently sentenced. The assault convictions do not involve the same complainant.

The criminal record is not of sufficient concern to justify detention on the secondary grounds. [ 25 ] Counsel did not argue that detention of the accused was necessary to maintain confidence in the administration of justice (the tertiary ground). V. CONCLUSION [ 26 ] It is for these reasons that I found the Defence had discharged its burden and I released the accused on a Recognizance, with conditions intended to ensure his attendance in court and his good behaviour. Dated at the City of Iqaluit this 09th day of December, 2014 ___________________ Justice S. Cooper Nunavut Court of Justice