2021 QCCQ 13164, 2021 QCCQ 13164

Translated from the original French R. c. Tullaugak 2021 QCCQ 13164 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF PUVIRNITUQ “Criminal Division Centralisation des urgences” No.: 640-01-046341-211 DATE: December 10, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE JACQUES LADOUCEUR, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

ALACIE TULLAUGAK Accused ______________________________________________________________________ JUDGMENT ON JUDICIAL INTERIM RELEASE (English Version) [1] ______________________________________________________________________ 1. BACKGROUND [ 1 ] The accused is charged with the following offences: 1. On or about September 4, 2021, in Puvirnituq, district of Abitibi, did operate a conveyance, to wit motor vehicle while her ability to operate it was impaired by alcohol, committing thereby the indictable offence provided by

section 320.14(1) a) - 320.19(1) of the Criminal Code . 2. On or about September 4, 2021, in Puvirnituq, district of Abitibi, did have a blood alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood, within two hours after cessing to operate a conveyance, to wit motor vehicle, committing thereby the indictable offence provided by

section 320.14(1) b)- 320.19(1) of the Criminal Code . 3. On or about September 4, 2021, in Puvirnituq, district of Abitibi, did operate a conveyance, to wit motor vehicle in a manner that, having regard to all of the circumstances, was dangerous to the public, committing thereby the indictable offence provide by

section 320.13(1) - 320.19(5)

a) of the Criminal Code . 4. On or about September 4, 2021, in Puvirnituq, district of Abitibi, being at large on a release order in file number 640-01-045908-218 did fail, without lawful excuse, to comply with a condition of that release order other than the condition to attend court, to wit Refrain from using any alcohol or other intoxicating substances or having in your possession committing thereby the indictable offence provide by section 145(5)

a) of the Criminal Code . 5. On or about September 4, 2021, in Puvirnituq, district of Abitibi, being at large on a release order in file number 640-01-045908-218 did fail, without lawful excuse, to comply with a condition of that release order other than the condition to attend court, to wit Not operate motor vehicles of any kind, including ATV, snowmobile and anything with a motor committing thereby the indictable offence provide by section 145(5)

a) of the Criminal Code . [ 2 ] The facts arise out of an accident that occurred on September 4, 2021, in Puvirnituq, while the accused was driving an ATV (an all-terrain vehicle) at an estimated speed of 85 km/h in a 30 km/h zone, and failed to stop at an intersection. [ 3 ] The accused lost control and fell in the middle of the road and the ATV flipped over on her, causing her leg to break. [ 4 ] A blood sample showed a blood alcohol level of 268 milligrams.

[ 5 ] The accused was hospitalized in Montreal until late October and upon her return to Puvirnituq she was quarantined until early November due to the pandemic. [ 6 ] Charges were laid on November 23, 2021. The prosecution objected to her release relying on the criterion of the protection and safety of the public set out in s. 515(10) (

b) of the Criminal Code . [ 7 ] The accused is a 21-year-old Inuk. [ 8 ] Counsel for the accused proposes a plan for discharge and submits arguments to the Court in connection with s. 493.2 Cr. C. concerning the particular attention that must be given to the circumstances of Aboriginal accused and the arguments related to the impact of the pandemic on her client. [ 9 ] During the release hearing that was held while the accused was detained in Puvirnituq, counsel for the accused learned that she was approximately six months pregnant. 2. ISSUES 2.1. To what extent must s. 493.2 Cr. C. be taken into account in the analysis to be conducted in relation to s. 515(10)(

b) Cr. C. ? 2.2. How does COVID-19 affect, if at all, the determination of whether to release the accused? 2.3. Does the accused – who has the burden of proof – propose a plan for discharge that is sufficient to justify her release? 3 . ANALYSIS 3.1.

Section 493.2 Cr. C. in relation to s. 515(10)(

b) Cr. C . [ 10 ]

Section 493.2 of the Criminal Code , which is found under the heading “Principle and Considerations” of

Part XVI – Compelling Appearance of Accused Before a Justice and Interim Release – reads as follows: 493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of (

a) Aboriginal accused; and (

b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part. [Emphasis added.] [ 11 ] Few decisions in relation to this provision have been rendered in Quebec other than R. c. Dubé [2] and R. c. Quannaaluk [3] and R. c. Kadjulik . [4] [ 12 ] In this last decision, it is mentioned, among other things, that “[ t]he Gladue principles are more likely to influence the analysis of the primary and tertiary grounds set out in s. 515(10) C.C.

Conversely, they will have less weight in the assessment of the secondary ground .” [5] [Emphasis added.] [ 13 ] With regard and respect for the contrary opinion, the Court disagrees with this last statement. [ 14 ] In the Court’s view, s. 493.2 Cr. C . applies to its fullest effect, regardless of which subparagraph of s. 515(10) is at issue, and there is no nuance in these provisions on this point. [ 15 ] At the outset, the Court must take into account the principle of restraint set out in s. 493.1 Cr.

C., which states that “the judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with”. The principle of restraint is reiterated in s. 515(2.01) Cr.

C ., which states that the justice shall not make an order containing conditions “unless the prosecution shows cause why an order containing the conditions referred to in the preceding paragraphs for any less onerous form of release would be inadequate” (ladder principle). [ 16 ] It may therefore appear that prioritizing release applies to all accused persons in any case, given the principle of restraint. This is true. Except that s. 493.2 Cr.

C. requires the judge to be aware of and sensitive to the reality of Aboriginal people and must take it into account in a concrete way with a view to reducing their imprisonment. [ 17 ] Otherwise, s. 493.2 Cr. C. would only be wishful thinking with no practical implication for the circumstances of Aboriginal

offenders. Hence, the caution issued in 2008 by Turnbull, J. of the Ontario Superior Court of Justice, is of interest when he wrote concerning the practical application of the principles established by the Supreme Court in Gladue . [18] I do not consider it adequate for a court to simply say that R . v. Gladue has been taken into consideration. The parties are entitled to know what has been considered, how it has been applied and the reasons for such application.

Otherwise, the courts will just be considered to be giving “lip service” to the recognition of the unique circumstances of Aboriginal offenders which our Supreme Court has clearly indicated is not acceptable in Canada . [6] [Emphasis added.] [ 18 ] What about the “particular attention” that judges must give to the “circumstances” of Aboriginal offenders? [ 19 ] The judge should render justice within the framework of the law. [7] The framework of the law, depending on the issue to be determined, is sometimes broad and sometimes limited. [ 20 ] Thus, in a given fact situation, one judge, after analyzing the relevant factors in relation to s. 515(10)(

b) Cr. C. , could order the accused’s detention, without committing an error in law or rendering a demonstrably unfit decision, while another judge could have ordered release on certain conditions – and a third on different conditions – without the decision warranting review either. A reviewing judge could not intervene simply because he or she would have weighed the relevant factors differently. [8] [ 21 ] Thus, the exercise of judicial discretion regarding detention or release is regulated but is not a mathematical exercise. [ 22 ] Therefore, in the Court’s view, it is in this context that s. 493.2 Cr.

C . reminds judges that when they exercise their discretion, they must take into account the particular circumstances of Aboriginal people for the purpose of favouring release by imposing conditions – creative and innovative where appropriate and relevant to their culture [9] – which will make it possible to respect concerns for the protection and safety of the public, including that of victims and witnesses to the offence.

Parliament’s message calls for open-mindedness, humanism, and sensitivity in light of the overrepresentation of Aboriginals in detention facilities in a meaningful way. [ 23 ] It is possible to reconcile the objectives in relation to the principle of restraint, the particular attention to be given to the circumstances of Aboriginal people and the protection and safety of the public. [ 24 ] Failing to give full effect to the obligation set out in s. 493.2 Cr. C. when assessing the criteria set out in s. 515(10)(

b) Cr. C. would contribute to an increase in the rate of detention of Aboriginal people. Especially since s. 515(10)(

b) Cr. C. constitutes the ground of objection to release most often raised by the prosecution. [ 25 ] In addition, as is the case when a sentencing measure is issued with respect to an Aboriginal person, the Court recalls that the nature of the crime and its violent character, if applicable, do not exclude the application of the Gladue [10] and Ipeelee [11] principles and, incidentally, of s. 493.2 Cr.

C . [ 26 ] The Court notes that it is not a matter of saying in this case that when the accused is an Aboriginal person that he or she must be released automatically. [ 27 ] Moreover, if there was any doubt about the application of the Gladue and Ipeelee principles at the release hearing stage, the Court notes that the Honourable Guy Gagnon, J.A. recently stated the following in Carrier , although it involves an application for release at the appeal stage: [ translation ] I think his application for release must be dismissed even in light of landmark decisions rendered by the Supreme Court in Gladue and Ipeelee . [12] [Emphasis added.] [ 28 ] Now, what about the particular circumstances of the Aboriginal persons in the case before us? [ 29 ] The Inuit community, in this case, Puvirnituq, has suffered and continues to suffer upheavals due to systematic and historical factors including the effects of Aboriginal residential schools.

In addition, the forced settlement of this nomadic hunting people by the slaughter of the sled dogs by the RCMP in the 1950s and 60s. [ 30 ] These past events continue to have a negative impact on the Inuit people, thereby contributing to a high level of incarceration. [ 31 ] Therefore, based on the document produced by the Ministère de la Sécurité publique entitled “Profile of Aboriginal Peoples in Correctional Services 2015-2016” [13] the following information is noted: • The number of Inuit people incarcerated in 2015-2016 represents 45.6 % of the Aboriginal persons incarcerated (although they represent only 12% of the Aboriginal population in Quebec); • The proportion of people incarcerated per 1,000 inhabitants is very high among the Inuit people (61 persons for 1,000 inhabitants), that is, 15 times higher than non-Aboriginal people for whom the ratio is 4 persons for 1,000 inhabitants; [14] • 47% of Inuit inmates have an adult criminal record although it is 28.8% for non-Aboriginal persons; • The Average daily population in institutions (ADPI) has seen a considerable increase among Inuit persons, that is, 183% between 2006-2007 and 2015-2016; • The proportion of incarcerated Inuit women in 2015-2016 was 75.1 % of Aboriginal women inmates compared to 28.7% in 2006-

2007; • The number of incarcerations increased by 9.2 % during this period of time for all the prison population although this increase was 175 % among the Inuit. [ 32 ] Again in connection with the particular circumstances of Aboriginal persons and mainly Inuit women, the Court notes that they are detained in the Leclerc institution in Laval.

However, this institution is located at a distance of 1600 km by air from Puvirnituq (which is a distance similar to that between Laval and Atlanta for example). [ 33 ] In addition, Inuit inmates are confronted with a non-native environment where either English, with which they are often unfamiliar, or French, with which they are mostly unfamiliar, is spoken. [ 34 ] Furthermore, there is no road between Nunavik and the south of the province and the only way to get there is by plane. [ 35 ] With regard to the particular circumstances of the accused, the evidence reveals that she has survived sexual assault and has a history of suicide attempts. [ 36 ] Therefore, the particular global and personalized circumstances of the Inuit community and the accused must be borne in mind in the analysis that must be conducted, not only to avoid an increase in the rate of incarceration of Aboriginal people but also to reduce it.

This is true both for Aboriginal people living in their community and those living in urban areas. The latter now represents over 50% of the Aboriginal population in Quebec. [15] 3.2. Impact of COVID-19 [ 37 ] Counsel for the accused submits that the judgment on the detention rendered in R. c. Therrien [16] in connection with the risks of contagion caused by COVID-19 and the fact that an accused is exposed to increased risk for his or her health. It states that evidence must be adduced in respect of the accused’s physical condition. [17] [ 38 ] The Court agrees with this statement.

The evidence adduced contains a letter dated December 2, 2021, from the maternity department of the Inuulitsivik Health Centre and Social Services, signed by two certified midwives, who wrote that: • They are extremely concerned about the fact that the accused may be detained at this stage of her pregnancy, which is in its third trimester; • The detention and risks of the COVID-19 pandemic in relation to the accused’s special risk factors lead them to conclude that detention may be catastrophic for her; • At this stage of pregnancy, they see pregnant women one to two times a week. • At this stage, problems may arise in terms of the growth of the foetus and the amniotic liquid that can cause the death of the foetus if there is no intervention; • Recent examinations of the accused, during her last visit, establish that she needs follow-up care: • According to the notice issued by the CDC: Centers for Disease Control and Prevention (Centre pour le contrôle et la prévention des maladies) in November 2021, there was a four-fold increase in the risk of stillbirth for women who contracted COVID during pregnancy and pregnant women are more likely to develop severe symptoms with COVID-19 compared to women who are not pregnant. • If the accused has COVID-19 in the third trimester of her pregnancy and she is about to give birth when she is ill, she is likely to decompensate during delivery, which is an unacceptable risk; • The accused has complex needs in terms of visits with health system workers because she is at risk of several obstetrical complications; • The accused, who is already scarred by several traumatic events in her short life, requires follow-up care for her physical and mental condition to which she will not have access in detention; • The accused has a high risk of deep vein thrombosis due to the fracture of her tibia. [ 39 ] The Court notes that the midwives are professionals who are members of a professional order and are governed by the Midwives Act (chapter S-0.1 ).

The exercise of this profession lists several authorized acts including ensuring that the pregnancy, labour, and delivery proceed normally by monitoring and assessing it. [ 40 ] Also, a letter dated December 2, 2021, signed by probation officer Kareen Goupil (Aboriginal Liaison Advisor) from the Leclerc detention institution in Laval states the following: [ translation ] Further to our discussion, I confirm that Ministerial Order 2020-033 stipulates that if an inmate has a particular medical condition or has to receive treatments or other specific follow-up care, he or she will be sent back home.

It should be noted that the inmate must be under house arrest and weekly checks will be made. [ 41 ] It goes without saying that, in this case, the risk of catching COVID-19 has an impact on the accused and that the consequences in the event of contamination, both for her and her baby, could be much greater if she were incarcerated..

[ 42 ] From this perspective, it is an element that the Court must consider because it is likely to enhance the accused’s compliance with her conditions, since she is aware of the negative consequences if she does not comply with them and that she could be incarcerated. The humanitarian aspect must also be taken into account. 3.3. The suitability of the proposed plan [ 43 ] In Quebec, it is clear that Rondeau [18] is the leading case. [ 44 ] The late Michel Proulx, J.A. set out a non-exhaustive list of factors to bear in mind when assessing the likelihood of dangerousness in the context of an analysis under s. 515(10)(

b) Cr. C .

It is obviously not a rigid and mathematical analytical framework. [ 45 ] In fact, after listing the criteria in question, Proulx, J.A. did a flexible analysis without necessarily repeating each of the stated criteria specifically. [ 46 ] As he wrote: [ translation ] “[i]t is rather the combined effect of these factors that [is] decisive”. [ 47 ] Therefore, depending on the circumstances of each case these criteria (as well as other criteria specific to a particular case), may be of variable weight or no weight at all. [ 48 ] In this case, in addition to the facts listed above regarding the events that occurred, it is necessary to add the following. [ 49 ] First, the accused is awaiting trial in six files concerning offences presumably committed between September 2019 and August 2021, including three concerning the operation of a vehicle, that is, an impaired driving case, a case of driving while disqualified, and a case of dangerous driving. [ 50 ] Second, the accused was subject to a release order signed on August 27, 2021, in connection with the pending charge of dangerous driving and she could not drink alcohol or drive a motor vehicle. [ 51 ] Third, the accused was convicted of charges of dangerous driving, impaired driving and, fleeing a police officer in October 2019, crimes of which she was sentenced to 60 days’ imprisonment. [ 52 ] Fourth, the offences alleged against the accused are relatively serious although there is no victim other than the accused herself, and a conviction seems likely such that she will potentially face imprisonment.

Due to her previous conviction for a similar matter and the resulting term of imprisonment, she is likely to receive a custodial sentence. However, whether or not a notice of previous conviction is filed, the evolution of her situation from now until the end results of this file and the application of the Gladue criteria may affect the fate of the accused. [ 53 ] In her testimony, the accused admitted that she has had drinking problems for approximately three years and decided to stop drinking after the accident that led to the current charges.

The accused says that she has understood the seriousness of her situation stating that she has had a wake up call. She has not consumed any alcohol since. [ 54 ] With regard to her profile, the accused is single.

She has no children and works at a construction site as a cleaning lady. [ 55 ] As mentioned earlier, several of the tragic events that occurred in her life are related to Gladue and Ipeelee criteria. [ 56 ] In her discharge plan, she suggests the following: • Live with her parents and her two brothers in the family home in Puvirnituq; • Abstain from consuming alcohol; • Abstain from driving a motor vehicle including snowmobiles and AVTs; • Respect a curfew from 8:00 p.m. to 7:00 a.m. except for medical reasons; • Continue her follow-up with the social services in Puvirnituq; • Take steps to go to the therapy centre in Isuarsivik to meet with a worker while waiting to be admitted to the centre (the evidence in this regard reveals that the next cohort of women admitted to this centre should not take place in May 2022 for various reasons including the impact of the pandemic); • Participate in activities at Saqijuq, a social regulation organization, at least twice a week, a letter was produced to describe the project.

The general objectives are to curb drug and alcohol abuse and reduce the negative physical and psychological impact it causes, which results in crime, overjudicialization, and increased imprisonment of Inuit persons. This project is in keeping with several activities involving the Elders and cultural and traditional activities to recognize and promote knowledge and Inuit practices and values.

The letter filed confirms that the accused can participate in this program. [ 57 ] Thus, taking into account the analysis of the combined effect of various factors in Rondeau , the principle of restraint, giving particular attention to the circumstances of Aboriginal offenders and more specifically in this case of the Inuit people, and considering the impact of COVID-19 with regard to the accused, the Court concludes that the proposed plan and the conditions contained therein establish, on a balance of probabilities, that the accused’s detention is not necessary for the protection or safety of the public. [ 58 ] Accordingly, she will be released upon the signing of a release order.

FOR THESE REASONS, THE COURT: [ 59 ] ORDERS the accused’s release following the signing of a release order, containing the following conditions: • Keep the peace and be of good behaviour; • Appear before a court when required; • Live at the following address: […], Puvirnituq, Quebec, Canada, […]; • Be present at her residence between 8:00 p.m. and 7:00 a.m., the whole subject to the following exceptions: - to hold legitimate and remunerated employment; - to receive emergency medical care for herself; • Not to change addresses without the prior authorization of the Court; • Notify the Court of any change of address, employment, or occupation; • Report to the police station in Puvirnituq between 9:00 a.m. and 5:00 p.m. to sign the registry once (1) a week, on Fridays, as of December 10, 2021; • Abstain from consuming alcohol or other intoxicating substances or having such in her possession; • Abstain from using drugs or other intoxicating substances or having such in her possession, subject to a validly obtained medical prescription; • Abstain from going to bars or other licensed premises, including licensed restaurants, except to eat a meal there; • Abstain from driving a motor vehicle including snowmobiles and AVTs; • Continue her follow-up with social services and provide evidence of this; • Take steps to go to a therapy centre in Isuarsivik and meet with the worker Dally Mushesor or any other person while waiting to be admitted to the centre to undergo therapy.

Start the next session and provide evidence of your admission to the Court; • Participate in activities at Saqijuq at least twice (2) a week and provide evidence of your attendance to the Court. __________________________________ JACQUES LADOUCEUR, J.C.Q. Mtre Maude Lachance For the Crown Mtre Sarah Plamondon For the accused Hearing dates: December 1 and 3, 2021