R. v. Lucassie, 2015 NUCJ 32

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Lucassie, 2015 NUCJ 32 Date: 20151103 Docket: 08-14-64; 08-14-161; 08-14-132; 08-14-163; 08-14- 304; 08-15-44; 08-15-424 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Iola Lucassie ________________________________________________________________________ Before: The Honourable Mr. Justice Johnson Counsel (Crown): J. Montgomery; M. Girard Counsel (Accused): J. Park Location Heard: Iqaluit, Nunavut Date Heard: September 8-11, 2015; September 14-16, 2015 Matters: Criminal Code,s.127(1) ; s. 264.1(1) (a); s. 266 ; s. 267 (b); s. 270(1) (a); s. 270.01 ; s. 270.01 (

b) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Amended Decision: An amended decision was issued on November 9, 2015; the corrections have been made to the text and the amendment is appended to this judgment. Supplementary Reasons for decision were released on November 18, 2015; the supplementary reasons can be found at the end of this decision I.

INTRODUCTION [ 1 ] The accused was charged with 13 offences that were alleged to have occurred at the Baffin Correctional Centre [BCC] on December 5, 2013 (08-13-64), two offences that were alleged to have occurred on March 5, 2014 (08-14-162), one offence that was alleged to have occurred on March 16, 2014 (08-14-163), two offences that were alleged to have occurred on March 30, 2014 (08-14-161), two offences that were alleged to have occurred on May 12, 2014 (08-14-304), two offences that were alleged to occurred on January 20, 2015 (08-15- 44) at an RCMP remand cell, and two offences that were alleged to have occurred on February 28, 2015 (08-15-424) on a plane transporting the accused to British Columbia. [ 2 ] The accused entered guilty pleas to a number of charges prior to the commencement of the trial on the not guilty pleas.

The Court also conducted a “Gardiner hearing” on the facts supporting the guilty pleas and reserved judgment on the not guilty pleas to a sentencing that is set for November 13, 2015. II. EVIDENCE AND ANALYSIS A. December 5, 2013, charges (i). Facts [ 3 ] The evidence summarized in paragraphs 6 to 36 of the Crown’s written closing argument is an accurate statement of the evidence of acting supervisor Thomas Bracken [Bracken], Dormitory Officers Wade Cooper [Cooper] and Samuel Mireault [Mireault], Control Officer Robert Pumpfrey [Pumpfrey], and Correctional Officer Mathew Jewis [Jewis].

These facts were not disputed by the accused. [ 4 ] Between 6:00 and 6:30 pm on December 5th, 2013, Mireault found the accused in dormitory one of BCC sweating and observed him using a metal object to remove a metal window. From his experience he believed that the accused wanted to remove the window to allow contraband into BCC. He relayed the information to Bracken. [ 5 ] At approximately 6:50 pm, Bracken, Cooper, and Pumpfrey began investigating a banging noise that they heard was coming from dormitory one. Bracken reviewed video surveillance from dormitory one to determine the source of the noise.

Bracken concluded that the accused was involved in attempting to bring contraband into BCC. Bracken notified the Warden and he was instructed to remove the accused from the dormitory so he could be questioned about the suspected contraband incident. [ 6 ] The accused was inside Dormitory Three with two other inmates and heard Pumpfrey on the public announcement system tell him to come to the secure hallway outside of Dormitory Three. The accused did not comply with the request. Cook went into Dormitory Three and asked the accused to come to the secure hallway, but he again refused.

Cook then advised Bracken that the accused refused to attend the secure hallway. Bracken and Cooper then went to Dormitory Three to speak with the accused. Jewis followed Cook, Bracken and, Cooper into Dormitory Three. [ 7 ] Inside Dormitory Three, Bracken told the accused that he needed to come to the secure hallway so he could be questioned about a suspected contraband incident. The accused became agitated and refused the request. He moved to the back of the dormitory, removed his socks and shirt, and took up a fighting pose. The accused threw a game board at the officers, but did not hit anyone.

Bracken told the other inmates to leave and they complied. Bracken, Cooper, and Cook responded with a defensive stance and advanced toward the accused. [ 8 ] The accused punched Bracken between his left ear and jaw causing his shoulder to come out of joint. Cooper tried to restrain the

accused as Bracken retreated and the accused punched him on the left side of his face pushing him to the side. Bracken moved to the back of the dormitory to attempt to reposition his shoulder. Jewis moved up to take his place and the accused punched him on the left side of his face. Jewis lost his balance and fell to the floor. [ 9 ] Cooper put his foot above Jewis in an attempt to protect him from the accused. The accused picked up a chair and Cooper, Bracken, and Cook retreated to avoid being struck while Jewis remained on the floor. [ 10 ] The Crown’s

interpretation of the evidence in paragraph 37 is disputed by the accused. Both parties reviewed the videotape of what occurred and came to different conclusions. Both agree that the tape clearly shows the accused swing the chair twice in the direction of Jewis and then throw it toward the other officers. All the officers then left the dormitory and closed the door while the accused went into a lengthy tirade where he kicked walls and lashed out until he ran out of energy. [ 11 ] The Crown argues that Jewis’s head injury was caused by the first swing of the chair.

The accused argues that the injury could have been caused by an officers’ boot coming into contact with his head in the melee. He submits that the videotape does not clearly show what happened or how Jewis suffered the head injury. The videotape shows the chair being swung several times and the accused testified that he was aiming at his chest. The videotape shows Jewis put his arm up to block the first swing and the second swing appeared to hit Cooper in the leg.

Then there was a third swing when the accused hit Jewis’s leg. [ 12 ] The accused argues that none of the witnesses who testified had a clear view of the chair hitting Jewis’s head and it is certainly not clear from viewing the videotape. Under all the circumstances it is possible that one of the officer’s boots accidently hit Jewis’s head and caused the injury.

The Court should have a reasonable doubt and acquit the accused of the charge of aggravated assault set out in count 1. [ 13 ] The accused also argues that the officers did not follow the BCC standing orders when the officers failed to tell him that he would be placed in administrative segregation if he did not obey the demand that he report to the secure hallway.

He asked why he was required to report and was not given an answer. [ 14 ] The accused entered a guilty plea to count 6 and admits that he made a threat to cause bodily harm to Bracken if he opened the door, but denies threatening to cause death to Bracken’s children or burn his house down. He also denies threatening death to Mireault or Cooper and denies threatening to burn Mireault’s house down. [ 15 ] Count 2 was amended from assault with a weapon to assault causing bodily harm and the Crown stayed count 12. The accused entered guilty pleas to counts 2, 3, 4, 5, 6, and 13. Count 12 was stayed. (ii).

Analysis [ 16 ] Standing Order 1110(4)(

a) provides that “the Warden shall as soon as is practical and no later than the end of the next business day, give an offender placed into administrative segregation written notice of the reason for the placement”. [ 17 ] The Warden of BCC had reasonable grounds to believe that the accused was involved in attempting to bring contraband into BCC and to request that the accused be taken to the secure area for questioning. When the request was made to the accused to attend the secure hallway he was obligated to comply and the Warden was not required to give written notice until the next business day.

As a result the lack of written notice has no relevance to the analysis of whether the accused is guilty or not guilty of the charge of aggravated assault. [ 18 ] The videotape clearly shows the accused swing a chair twice at Jewis laying on the floor, but does not show it hitting his head. Jewis and Cooper put their arms and legs up in a defensive posture to protect Jewis from being hit when he was in a vulnerable position on the floor. The question that I must determine is whether it is a reasonable inference that it was the chair that caused the head injury.

The third and fourth pictures in Exhibit 9 show the head injury that was described in the medical report that was marked as exhibit 10 as a laceration that required sutures. The accused argued that the laceration might have been caused by one of the officers’ boots accidently striking the head.

[ 19 ] I am satisfied that a boot could not have caused the laceration type of injury that Jewis received. A boot would perhaps cause a bump or a scrape, but would not have a sharp enough edge to cut the skin. I am satisfied beyond a reasonable doubt that the chair the accused swung at Jewis caused the laceration. [ 20 ]

Section 270.02 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code], states: 270.02 Everyone who, in committing an assault referred to in

section 270, wounds, maims, disfigures or endangers the life of the complainant is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years. [ 21 ]

Section 270 of the Criminal Code states: 270.

(1) Every one commits an offence who (

a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer; (

b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or (

c) assaults a person (

i) who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or (ii) with intent to rescue anything taken under lawful process, distress or seizure. [ 22 ] I am satisfied that Jewis was a peace officer who was lawfully engaged in his duty of detaining the accused so he could be taken to the secure hallway for questioning. The only issue is whether the laceration constitutes a wound.

The issue was recently analyzed at paragraphs 118-124 in R v Beharri, 2013 ONSC 7753 , [2013] OJ No 6476 (QL) , where Hill J. concluded that wounding occurs when the skin is broken. That clearly happened in this case and as a result I convict the accused of aggravated assault. [ 23 ] The accused was highly agitated and in a rage when the officers managed to close the door to the dorm. His memory was distorted by the rage that went on for a considerable time. I prefer the evidence of the officers about the nature of the threats and accept their evidence and reject the accused’s evidence.

I therefore convict him of making the threats described in counts 7, 8, 9, 10, and 11. B. March 5, 2014, charges [ 24 ] The accused entered guilty pleas to assaulting Hari Barka and making a death threat. C. March 16, 2014, charges [ 25 ] The accused was charged with assaulting Manuel Olondriz by spitting on him while he was engaged in his duties as a peace officer. [ 26 ] Olondriz testified that the accused was standing about 8-10 feet away from him and was cursing and yelling through the hatch in the door where food is served.

He was absolutely clear that the accused spit through the hatch and hit him on his uniform and pants. He was surprised that the accused could spit that far and commented on it. The accused testified that he was upset and yelling at Olondriz and that during the yelling saliva may have exited his mouth by accident and hit him. [ 27 ] I accept the evidence of Olondriz and reject the evidence of the accused. He was a credible witness and was clearly shaken by what happened because spitting is a grave insult in his Filipino culture.

He would not have mistaken accidental spraying of saliva through speech with someone spitting at him.

[ 28 ] I convict the accused of assaulting Olondriz. D. March 30, 2014, charges [ 29 ] The accused entered guilty pleas to assaulting Mireault and committing mischief by damaging a telephone. E. May 12, 2014, charges [ 30 ] The accused entered guilty pleas to assaulting Mireault and making death threat. F. January 20, 2015, charges [ 31 ] The accused entered a guilty plea to assaulting Peter Angutimarik in an RCMP remand holding cell and the Crown conditionally stayed the second count. G. February 28, 2015, charges [ 32 ] The accused entered guilty pleas to assaulting RCMP officer Sgt.

Grant Smith and BCC officer David Bertrand. Dated at the City of Iqaluit this 3th day of November, 2015 ___________________ Justice E. Johnson Nunavut Court of Justice Amendment of the Reasons for Judgment Reserved of The Honourable Mr. Justice Johnson

_______________________________________________________ In paragraph [03] the pinpoint of “…and Correctional Officer…” has been changed from “Matthew Jervis [Jervis]” to “Mathew Jewis [Jerwis].” Please replace the amended pages in your hard copy of the judgment. Supplementary Reasons for Judgment [1] On November 13, 2015, I sentenced the accused Iola Lucassie to a total sentence of two years plus one day after giving him credit for 957 days of pre-sentence custody with the detailed breakdown to be provided later. [2] The breakdown is as follows: December 5, 2013, charges - Court file # 08-13-64 (

a) Count 1 730 days (

b) Counts 2-11 180 days concurrent (

c) Count 13 180 days concurrent March 5, 2014, charges - Court file # 08-14-162 (

a) Count 1 90 days consecutive (

b) Count 2 60 days concurrent March 16, 2014, charges - Court file # 08-14-163 Count 1 90 days consecutive March 30, 2014, charges - Court file # 08-14-161 (

a) Count 1 60 days consecutive (

b) Count 2 30 days concurrent May 12, 2014, charges - Court file # 08-14-304 (

a) Count 1 90 days consecutive (

b) Count 2 60 days concurrent

January 20, 2015, charges - Court file # 08-15-44 Count 1 448 days consecutive February 28, 2015, charges - Court file # 08-15-424 (

a) Count 1 60 days concurrent (

b) Count 2 180 days consecutive [3] The total sentence is 1,688 days less 957 days credit for pre-trial custody leaving the sentence to be served at 731 days. ___________________ Justice E. Johnson Nunavut Court of Justice