R v Oyukuluk, 2014 NUCJ 25

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v Oyukuluk, 2014 NUCJ 25 Date: 20140828 Docket: 08-14-131 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Cheryl Oyukuluk ________________________________________________________________________ Before: The Honourable Mr. Justice Conlan Counsel (Crown): P. Bychok Counsel (Accused): M. Christie Location Heard: Iqaluit, Nunavut Date Heard: July 30, 2014 Matters: Criminal Code , s. 266, s. 733.1(1) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

[ 1 ] THE COURT: Thank you. Yes, thank you, counsel, for your helpful submissions. These are my oral reasons for judgment in the matter of the accused, Cheryl Oyukuluk. [ 2 ] Ms. Oyukuluk stands charged in a four-count Information. The first count alleges that the Accused on March 14th, 2014, in Iqaluit assaulted Mr. Ortu contrary to

Section 266 of the Criminal Code . Count 2 is an allegation that the accused on the same date at the same place, while bound by a Probation Order issued on December 6th, 2013, failed without reasonable excuse to comply with a condition of that order, specifically to keep the peace and be of good behaviour contrary to

Section 733.1(1) of the Criminal Code. Count 3 has been dismissed. Count 4 is an allegation that the accused on the same date at the same place, while bound by the same Probation Order referred to earlier, failed without reasonable excuse to comply with a condition of that order, specifically that she abstain absolutely from the possession or consumption of any intoxicating substances including alcohol when in the presence of Mr. Ortu contrary to

Section 733.1(1) of the Code. [ 3 ] This was a relatively short trial with just two witnesses called by the Crown. The witnesses for the Crown included the complainant, Mr. Ortu, and one of the investigating police officers from the RCMP detachment. [ 4 ] The burden of proof, of course, rests entirely with the Crown. The standard of proof is beyond a reasonable doubt. As we tell our juries, proof of likely or probable guilt is not enough. There is no burden of proof on the accused. [ 5 ] In terms of the evidence of Mr. Ortu, the complainant is a local taxi driver in Iqaluit.

At the time of the alleged offences, he was in a relationship with the accused. They had been dating for some two years. Mr. Ortu described himself as somewhat of a counselor for others in the past. [ 6 ] On the specific date in question, March 14, 2014, Mr. Ortu testified that the accused had been drinking alcohol and that she was drunk. He testified that he drank very little. His evidence is that at some point in the evening he went to bed, and the accused entered the bedroom. According to Mr. Ortu, the accused was upset about him potentially cheating on her. There was an argument of some sort between Mr.

Ortu and the accused. Mr. Ortu testified that at some point the accused punched him twice; once in the face area and once in the back of the neck. He testified in examination-in-chief that he did not touch the accused prior to her striking him. [ 7 ] Mr. Ortu explained that he had a little bit of blood on his nose. He also testified to having observed a small cut on the lip of the accused. [ 8 ] It was Mr. Ortu who contacted the police. The police arrived at his residence, and both persons were arrested. [ 9 ] In cross-examination, Mr.

Ortu acknowledged that he has called the police in the past in addition to the time in question. He testified to his knowledge of the accused having been placed on probation back in December of 2013, including a term imposed at that time of no alcohol. [ 10 ] There was at some point an Emergency Protection Order issued against Mr. Ortu as well, but it has little relevance to this case except for the fact that Mr. Ortu, of course, knew about the order and testified several times that it has since been vacated. [ 11 ] Mr. Ortu was put some suggestions by Mr.

Christie, quite competently, and denied those suggestions. In particular, Mr. Ortu denied he is a bootlegger and he denied that he has a habit of supplying alcohol to the accused. He, of course, admitted the obvious which is that he is much larger than the accused. He described himself as weighing 270 pounds and standing about five feet nine inches tall. Mr. Ortu denied that he has a pattern of being physically abusive to the accused, and specifically denied that he has hit her several times in the past.

[ 12 ] Most germane to this incident he denied in cross-examination that he hit the accused first on March 14, 2014. [ 13 ] The second witness for the Crown was one of the investigating officers, who responded to the location of Mr. Ortu's residence in the late evening on March 14, 2014. This is a fairly experienced officer with some 14 years of service with the RCMP, although I gather she was recently dispatched to this location prior to the incident. [ 14 ] She arrived at the location shortly after 11 o'clock p.m. with another officer, and the police observed some yelling and screaming inside.

Upon entry, they noticed quite a bit of blood inside the residence including some smearing on the walls. The officer described the accused lady as being very drunk or very intoxicated and that there was lots of blood on her face. After leaving the residence and in better light and with more time to make observations, the officer did confirm that the accused had a cut inside her mouth. [ 15 ] As I indicated earlier, the burden of proof rests entirely with the Crown and there is no expectation that the Defence call any case. And in particular, no expectation that the accused testify and that is because Ms.

Oyukuluk is presumed to be innocent of the charges that she is facing. That presumption never changes until I find that the Crown has proven each essential element of the offence in question beyond a reasonable doubt. [ 16 ] Mr. Christie, in helpful submissions, argues that Mr. Ortu's evidence was delivered in a somewhat self-serving and embellished manner; and with respect, I disagree. I did not sense any embellishment on the part of Mr. Ortu. In fact, I sensed the opposite. Mr.

Ortu struck me as a relatively plain-spoken, but clearly spoken person who has some affection for the accused. [ 17 ] I am not at all suggesting that Mr. Ortu has been in the past a perfect person. I do not know what type of relationship this was prior to March 14, 2014; but Mr. Ortu was certainly a reluctant witness. He said many times here today that he simply wants to move on with his life and that he sees that as moving on with the accused. [ 18 ] He did not strike me as a vengeful person here to exaggerate his evidence.

In fact, when he was first asked about how he was struck, he was somewhat reluctant to indicate that it was the accused who struck him. He then said very clearly, however, that it was Ms. Oyukuluk who struck him twice; once in the face area and once to the back of the neck. And so with respect, I do not agree that Mr. Ortu's evidence was embellished or self-serving. [ 19 ] Mr. Christie argues that this is a classic abusive relationship. And quite frankly, I do not know whether that is true or not, but the important

part is that, for the purposes of this case, I really need not decide that. There is no evidence that Mr. Ortu was abusive to the accused on the night in question; and in particular, no air of reality to any potential self-defence argument. There is simply no evidence that Mr. Ortu touched in any way the accused prior to being struck. [ 20 ] I have turned my mind to the fact that I should consider whether there were any material inconsistencies or contradictions in the evidence of Mr. Ortu, and I come to the conclusion that there were not any.

He was steadfast in his evidence that he was struck by the accused twice and that he did not touch the accused prior to those two strikes, and that evidence makes out the offence of assault. The definition of assault, of course, as we tell juries, is really any intentional touching without consent. And that has been made out on the evidence of Mr. Ortu beyond a reasonable doubt. [ 21 ] I have also turned my mind to whether there are any material inconsistencies or contradictions in the evidence as a whole because that may affect my assessment of whether the case has been proven beyond a reasonable doubt.

And to that end, I have, of course, taken into consideration the evidence of the officer; and quite frankly, I see no material inconsistencies or contradictions between the evidence of Mr. Ortu and the evidence supplied by one of the investigating officers.

[ 22 ] The only potential issue, and it is a relatively minor one, would be whether there is something inconsistent between Mr. Ortu's description of the injury to the accused as being a small cut on her lip and the evidence of the officer of it being a cut inside the mouth. I do not see that as a material inconsistency, quite frankly. They are really six of one, half dozen of the other; whether it is a cut on the lip or a cut inside the mouth. The fact is that both the officer and Mr.

Ortu acknowledged some sort of a cut, some sort of a relatively minor injury to the mouth area of the accused, and so to that degree the evidence remained consistent. There was nothing else that I see that was at all inconsistent between the evidence of Mr. Ortu and that of the officer. [ 23 ] And thus turning to the specific counts, with regard to Count 4, there is no question that the accused was bound by the Probation Order in question at the time of March 14, 2014.

The order and its terms have been admitted by the defence, and it is clear that the accused was bound by a condition not to consume alcohol in the presence of Mr. Ortu. Clearly she was in the presence of Mr. Ortu on March 14th, 2014, and clearly she consumed alcohol. I come to that conclusion based not only on the evidence of Mr. Ortu, but also on the evidence of the objective observations of the officer.

And thus the essential elements of Count 4 have been made out beyond a reasonable doubt, and I register a finding of guilt against the accused on Count 4. [ 24 ] With regard to Count 1, the allegation of assault I am satisfied beyond a reasonable doubt that Ms. Oyukuluk struck Mr. Ortu without consent and not in a manner that involved any self-defence; and thus, the essential elements of Count 1 have been made out beyond a reasonable doubt and I register a finding of guilt on Count 1. [ 25 ] The determination of Count 2 essentially follows the determination on Count 1. In striking Mr.

Ortu as she did on March 14th, 2014, Ms. Oyukuluk failed, without reasonable excuse, to comply with the Probation Order, specifically the term that she keep the peace and be of good behaviour. And thus the essential elements of Count 2 have been made out beyond a reasonable doubt, and I register a finding of guilt on the accused on Count 2. [ 26 ] So with regard to Court File 08-14-131, Count 3 is dismissed and findings of guilt are registered on Counts 1, 2 and 4. Dated at the City of Iqaluit this 30th day of July, 2014 _______________________ Justice Conlan Nunavut Court of Justice