R. v. Idlout, 2022 NUCJ 7

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Idlout, 2022 NUCJ 7 Date: 20210625 Docket: 12-19-5-1; 12-19-17-1; 12-19-17-2 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Solomon Idlout __________________________________________________________________ Before: Justice of the Peace McNair Counsel (Crown): M. Tooke Counsel (Accused): M.

Manocchio Location Heard: Iqaluit, Nunavut Date Heard: June 17 & 18, 2021 Matters: Bail Hearing in regards to sections 515(6) , 515(10) , 348(1) (b), 264.1(1) , 145(3) , 117.01(3) , 86(1) , 88(1) , 244(1) , 180(1) of the Criminal Code of Canada REASONS FOR DECISION ON BAIL (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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. [ 1 ] Solomon Idlout is charged with nineteen offences arising from two alleged incidents in 2019. He is seeking bail.

The Crown submits that Solomon’s detention is necessary for the protection or safety of the public, and to maintain confidence in the administration of justice. I. ALLEGATIONS A. Breaking-and-entering a Dwelling and Committing Sexual Assault, May 14 th , 2019 [ 2 ] R.I. of Resolute Bay alleges that Solomon Idlout broke into her house and raped her in the early hours of May 14 th , 2019. She told police that she was sleeping on her couch when she woke up to someone pulling her by the hips. Solomon Idlout was behind her.

He told her she owed him sex because she had stolen a 60-ounce bottle of vodka from him and his wife, I.Q.. He told her that I.Q. had directed him to go to R.I.’s house and rape her. [ 3 ] R.I. told police that she was seeing someone and did not want to have sex with Solomon Idlout. She said that she was fearful of Solomon and his wife, and she feared for the children in her home, including her nineteen-year-old son, her thirteen-year-old daughter, and a female cousin who was sleeping over that night.

She agreed to have sex with Solomon if he wore a condom and they did it in the bedroom so the children would not be disturbed. He agreed, and they had full intercourse. [ 4 ] When finished, Solomon said something to the effect of, “I’m going to get you back,” in a couple months or so. R.I. believed this to mean that he would be back to extort sex from her.

[ 5 ] R.I. submitted to a sexual assault kit and a warrant was obtained for a sample of Solomon’s DNA. The results tend to confirm that sexual contact occurred between them. [ 6 ] Solomon was charged with breaking-and-entering R.I.’s dwelling and committing sexual assault therein, and with uttering a threat to cause bodily harm to R.I.. [ 7 ] He is presumed innocent. He disputes R.I.’s claims entirely. A preliminary inquiry has already been held and a trial is set on an upcoming criminal court circuit in Resolute Bay. B.

Shooting Incident, October 6 th , 2019 [ 8 ] On May 16 th , 2019, Solomon was released into the supervision of his father, L.H.. Solomon agreed to keep the peace and be of good behaviour, and several other conditions. [ 9 ] On October 6 th , 2019, while passing by House 123, Solomon got in an altercation with E.T. and A.W., who were smoking on the porch. It is alleged that Solomon went to his father’s house, and his father refused to let him in because he was so mad. It is alleged that he then walked past House 123 again, and the altercation with E.T. and A.W. turned physical.

It is alleged that Solomon then walked the 100 to 150 meters back to his own home, went inside, and emerged with a gun, which he fired in the direction of House 123. Various parties heard gunshots from the direction of Solomon’s house. A.W. says he saw two muzzle flashes and heard the impact on the ground nearby. [ 10 ] The RCMP converged on Solomon’s house. They tried to contact Solomon but apparently had the wrong phone number. After some hours, they reached Solomon on his cell phone, and he came out and surrendered. [ 11 ] The RCMP secured the household. Solomon’s spouse, I.Q., was inside.

She said everyone was okay and told the RCMP that she and Solomon had put their guns in their truck, “because we were going to get blamed for the shooting.” The RCMP obtained a search warrant for the home and the truck. They ultimately seized eight guns, a crossbow, and ammunition. [ 12 ] Solomon was held in custody until a Myers review on April 8 th , 2020, when he was released into the supervision of two sureties in Iqaluit. On February 1 st , 2021, the sureties withdrew, citing Solomon’s drinking in breach of his conditions.

Although breach charges were not pursued, Solomon has been in custody at Makigiarvik since then. II. THE LAW OF BAIL [ 13 ] It bears repeating: Solomon is presumed innocent of all the charges before me. Even where, as here, the onus to show cause is reversed, release is the norm and detention the exception. I may resort to detention only if no release conditions are capable of protecting the public or maintaining confidence in the administration of justice. [ 14 ] Detaining people before they have been convicted of a crime offends the presumption of innocence.

Inuit are especially vulnerable to being incarcerated before trial, and this perpetuates a pattern of trauma and recidivism that undermines public safety instead of protecting it. Consideration of the particular circumstances of Indigenous accused persons is codified at

section 493.2 of the Criminal Code . A. Reverse Onus [ 15 ] Solomon is charged with discharging a firearm at a person, contrary to

section 244 of the Criminal Code . He is charged with committing offences alleged to involve firearms while he was subject to a firearm prohibition order. He is charged with committing indictable offences while at large on a release order. For all these reasons, he bears the onus at this hearing to satisfy me that he should not be detained. The Crown submits that Solomon must be detained for the protection or safety of the public, and to maintain confidence in the administration of justice.

B. Section 515(10)(b)-The Protection and Safety of the Public [ 16 ] In assessing whether there is a substantial likelihood that if Solomon is released, he will commit offences that endanger the public, I have regard to his previous criminal record, and the breach allegations currently outstanding, always bearing in mind that he is presumed innocent of the latter. i. Record of previous violence [ 17 ] Solomon’s criminal record includes two previous convictions for breaking and entering, albeit comparatively minor convictions for which he received suspended sentences and probation.

His most recent conviction was for possession of a weapon for a purpose dangerous to the public peace, and assault, in December 2017. He served a conditional sentence of four months for those offences. There is nothing before me to suggest that he breached that CSO. Notably, he has no convictions for breaches of court orders. ii. Breach allegations currently outstanding [ 18 ] Today, he is accused of breaching a previous surety bail release in an egregious and terrifying way, with credible allegations that he shot at people.

His second bail release, with two sureties in April 2020, ended with the sureties withdrawing their support. [ 19 ] Solomon was on bail for nearly ten months before his sureties withdrew. I consider this a factor that militates in favour of his release. By the same token, I have before me an RCMP Occurrence

Summary that suggests that on February 1 st , 2021, Solomon was intoxicated and “causing issues,” in breach of his release order. He was arrested and has been in custody ever since, but no charges have been laid in relation to the incident. [ 20 ] I admitted the Occurrence

Summary as credible and reliable evidence, but I am reluctant to accord it the same weight as the other evidence before me. It is an untested hearsay allegation. Indeed, the Crown applied to adjourn this hearing once for the express purpose of having those charges before the court, and still they were not pursued.

Solomon’s alleged misbehaviour on or about February 1 st , 2021 may weigh in favour of his detention, but this is by no means dispositive of the issue. [ 21 ] Several red flags stand out for me in relation to Solomon Idlout; that is, several factors contribute to or exacerbate the risk that he poses. [ 22 ] The first is, in general, a deplorable lack of impulse control. In October 2019 he is accused of escalating a heated exchange of words to a shoving match, and then to actual gunfire. I cannot help but ask: How can any release plan guard against irrationality of that sort?

And once more I remind myself that these are as yet unproven allegations. [ 23 ] Second, and related to the first factor: access to guns would plainly make Solomon Idlout a danger to the public. No one with his prior convictions and outstanding charges should be permitted near a firearm. [ 24 ] Third, access to alcohol makes Solomon a danger to the public.

The allegations of R.I. and the withdrawal of his most recent sureties suggest that alcohol vitiates Solomon’s restraint and makes him ungovernable. [ 25 ] Fourth, and related to the third factor: it has been suggested that I.Q., Solomon’s long-time partner and the mother of his children, has counselled or encouraged or colluded in criminal conduct, first by purportedly condoning the sexual assault of R.I. as revenge for the theft of a sixty-ounce bottle of vodka, and second by moving guns out of their house and into their truck in an effort to deflect blame for the gunfire, and telling the RCMP that someone else was doing the shooting. [ 26 ] It is possible that Solomon really told R.I. that I.Q. sent him to rape her.

That is a far cry, in my view, from evidence that I.Q. actually said or thought or condoned any such thing. The prospect simply defies belief. The suggestion that I.Q. colluded with Solomon

to misdirect blame for the gunfire on someone else troubles me more, but the principal way that I.Q. exacerbates the danger posed by Solomon is by drinking with him, potentially providing him with access to alcohol and fostering the conditions for violence and harm to the public. The Crown observed, “It doesn’t take much to get Mr. Idlout and I.Q. to engage in ‘non-pro-social’ behaviour,” and I agree.

I.Q.’s presence in Solomon’s life may contribute to his alcohol abuse, which may in turn compromise his reason and inhibition in a way that endangers the public. [ 27 ] If Solomon’s release plan is to attenuate the very real danger that he poses to his community, it must address and neutralize the foregoing risk factors. iii. The proposed surety [ 28 ] Today Solomon proposes a third surety bail release. [ 29 ] Solomon submits that he can be released into the supervision of G.C., who is the father of his long-time partner I.Q.. G.C. lives at House 63, about 500 feet from E.T’s household.

I.Q. and her five children with Solomon also live with G.C. and have done roughly since Solomon’s remand in custody in 2019. [ 30 ] G.C.’s home is a dry one; he has not had alcohol in the household since I.Q. and the kids moved in, and in that time, he has never seen I.Q. drink there. [ 31 ] There are no firearms in the household. There is an old, inoperable .22.

The house rules are that the door is never locked (because G.C. does not want to have to fish for his keys, if I understood him correctly), and “daytime is daytime and nighttime is nighttime,” which I took to mean that he will brook no disturbance in the evening hours. [ 32 ] Solomon and his father-in-law are not close. In G.C.’s accounting, after fifteen or twenty years of acquaintance they know each other well enough to exchange pleasantries when they meet in town, but not much more.

I was surprised to hear this, considering Solomon’s long association with G.C.’s daughter, and considering that Solomon is the father of five of G.C.’s grandchildren. Solomon and G.C. spoke on the phone prior to Solomon’s bail hearing, which G.C. fairly, if cynically, surmised was at the request of Solomon’s lawyer. G.C. observed that Solomon sounded more mature than previous. G.C. speculated that after months in pre-trial custody, Solomon may now appreciate that he has to change his ways. [ 33 ] G.C. understood the role of a surety in supervising an accused person. He was plainspoken in his evidence.

He did not equivocate. He acknowledged the frailties of the proposed release plan. He is a hard worker, with a job at the Hamlet Office each weekday morning, and significant responsibilities at the post office three evenings per week (a short walk from his home). He cannot be at home supervising his son-in-law every hour of the day. [ 34 ] He was not prepared to swear that his daughter does not drink, only that she has lived with him for two years and he has not seen her drink in that time.

As a member of the hamlet alcohol committee, he is privy to the alcohol issues in his community. [ 35 ] G.C. is an exemplary candidate to be a surety, in my view. He is clear-eyed about his obligations and about his son-in-law’s behaviour. His scepticism and mistrust of Solomon was apparent even over the telephone. I was pleased to hear it. The court will not countenance a surety who will defer to the accused, or who will have the wool pulled over his eyes, or who will make allowances for indiscretions, major or minor.

Solomon needs a surety who takes his charges seriously, who takes his release conditions seriously, and who takes the safety of the public seriously, and my clear impression from G.C.’s evidence was that he is such a man. [ 36 ] Moreover, G.C. is a responsible member of his community. As an employee of the Hamlet, as a member of the alcohol committee, as the person responsible for the community’s mail, and as a grandfather to five children twelve years old and under, G.C. is someone who is invested in the safety and wellbeing of Resolute Bay.

I cannot fathom that he would jeopardize any of that for Solomon Idlout. [ 37 ] In my view, G.C. is well placed to protect the safety of his community by strictly enforcing house arrest, ensuring that Solomon does not have access to guns or alcohol. Even as busy as he is, I have every confidence that G.C. can exert the authority and moral suasion necessary to keep Solomon at home, sober, and unarmed.

[ 38 ] I am informed, and I accept, that Solomon completed an apprenticeship while in custody and that he wants to put his new skills to productive use. Pro-social employment makes Solomon less likely to get into trouble. Idleness while subject to strict house arrest does not make the community safer than if Solomon is busy working and providing for his young family. To the extent that such work can be obtained in Resolute Bay, without contact with any of the named complainants, it should in my view be encouraged. [ 39 ] I.Q.’s presence in the home, in these circumstances, does not give me cause for concern.

She is currently on maternity leave. I have no reason to doubt G.C.’s evidence that she does not drink in the home. So long as this is the case, my concerns that she will exacerbate Solomon’s impulse control and put the community at risk are mollified. [ 40 ] No release plan is certain to protect the public; we cannot hold accused persons to such a standard. It would offend the presumption of innocence, and the principle of restraint codified at

section 493.1 of the Criminal Code . G.C. can keep alcohol and guns away from Solomon Idlout. He can keep Solomon in-doors and away from the other members of the community at all times. These steps attenuate the risk Solomon poses and meet the court’s concerns on the secondary ground for detention. [ 41 ] It remains to determine if Solomon must be detained to maintain confidence in the administration of justice, having regard to all the circumstances. C.

Section 515(10)(c)-Maintaining Confidence in the Administration of Justice [ 42 ] In determining whether a member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice, I must consider the combined effect of a non-exhaustive list of factors, and I must weigh those against the presumption of innocence, the paramount consideration at this stage, and one that favours release. i. The strength of the Crown’s case [ 43 ] First, Solomon is accused of breaking into a dwelling and committing a sexual assault therein. The evidence is far from unimpeachable.

R.I.’s allegations rest on her credibility and reliability, and I am told that these will be the central issue at trial. [ 44 ] Then Solomon is accused of shooting at his neighbours, while on a strict bail, and with a pile of guns that he was prohibited from possessing. Some of this evidence is very strong – at least, it sounds strong, judging solely by the account related to me in court, which is a police

summary of events and as such is the strongest the case will ever sound. Nevertheless, there are eyewitness accounts of Mr. Idlout committing these offences, and there was an ostensibly lawful seizure of a pile of guns that makes multiple convictions for contravening

section 117.3 a strong possibility. I am told there are triable issues. I do not know what they are. [ 45 ] This factor militates in favour of Solomon’s detention. ii. The gravity of the offences [ 46 ] This factor is measured objectively. Solomon’s alleged offences are objectively grave. Breaking into a dwelling house is an indictable offence with a maximum sentence of life in prison. Discharging a firearm with intent carries a mandatory minimum sentence of four years and a maximum sentence of 14 years. Solomon is charged with two counts of that offence. [ 47 ] This factor favours detention. iii.

Circumstances surrounding the commission of the alleged offences [ 48 ] I am alive to the fact that I do not know all the circumstances surrounding these incidents. Plainly, there are features of the charge of breaking and entering that will be seriously aggravating if Solomon is convicted of that offence. The allegation is of a home invasion sexual assault on a vulnerable member of the community, in the presence of children. Solomon has not, however, been convicted of that offence and I am reluctant to embark on a sentencing analysis as justification for detaining him before conviction.

[ 49 ] Likewise, there are details of the October 2019 shooting incident that will be treated as aggravating if Solomon is found guilty of any or all charges stemming from the incident. Firearms were involved. Lives were put at risk. Solomon was on bail at the time, and subject to a firearm prohibition because of a previous conviction for possession of a weapon for a dangerous purpose. There are other circumstances surrounding the commission of these offences that are as yet opaque to the court.

Counsel referred to an earlier shooting incident in Resolute Bay that had strained nerves in the summer and fall of 2019. This is no justification at all for what Solomon is accused of doing. [ 50 ] This factor favours detention, as it must virtually always do. iv. Likelihood of a lengthy term of imprisonment [ 51 ] Whether the accused will be sent to prison for a long time is subjective, determined on a case-by-case basis. I cannot embark on a complex sentencing calculus.

Plainly, if Solomon is found guilty of sexually assaulting R.I. – a member of a group of Canadians statutorily recognized as uniquely vulnerable to violence – he is facing a penitentiary sentence. Likewise, if he is found guilty of shooting at A.W. and E.T., with the other aggravating features I have already canvassed, he will be facing a significant penitentiary sentence. Even allowing for the most favourable resolution of his charges, this factor also favours Solomon’s detention. v. Other non-enumerated circumstances [ 52 ] The list of circumstances to be considered under the tertiary ground is not exhaustive.

It is relevant on this ground that Solomon has been waiting for his trial for many months. Two trial dates have been cancelled since Solomon’s preliminary inquiry was held. His scheduled trial is still four months away. Not long ago, such a delay was unheard of in this territory.

While he has not fully served the four-year sentence that he will be obliged to serve if convicted of discharging a firearm with intent, he has served a significant amount of pre-sentence custody, and I accept counsel’s submissions that Solomon has made productive use of that time by completing programming at Makigiarvik, and he will, if released, emerge a more responsible man than the one who went in. [ 53 ] He has five children at home with I.Q., ranging in age from two months to twelve years. He has been absent for much of their lives. He wants to support them and indeed he has a duty to support them.

He has strong incentive to abide by conditions. [ 54 ] In my view, a reasonable, dispassionate member of the community, properly informed about our system of criminal law, informed of the paramount importance of the presumption of innocence, informed of the Charter guarantees to reasonable bail and trial within a reasonable time, and assured of the strict conditions and the responsible surety enforcing them, would not have his or her confidence in the administration of justice undermined by Solomon Idlout’s release. III.

CONCLUSION [ 55 ] The strict release plan proposed is capable of protecting the public from the danger posed by Solomon Idlout. It will not bring the administration of justice into disrepute. [ 56 ] Solomon Idlout will be required to abide by strict conditions, or he will be detained, and he is unlikely to get out on bail again. The conditions are:

(1) Stay inside House #63 at all times, except: (

a) If you are accompanied by your surety, G.C.;

(

b) if the Resolute Bay RCMP detachment receives confirmation of your employment and a copy of your work

schedule in advance, you may go directly to and from your workplace; or (

c) if you or a member of your immediate family has a medical emergency.

(2) Do not have guests inside House #63, except with the consent of your surety, G.C..

(3) Do not drink alcohol. Do not have alcohol in your possession. Do not have alcohol inside House #63.

(4) Do not have any firearms or crossbows in your possession.

(5) Have no contact with R.I., S.D., A.W., or E.T.. Do not go to their homes, their workplaces, or anywhere else you know any of them to be. Dated at the City of Iqaluit this 25th day of June, 2021 ___________________ Justice of the Peace W. McNair Nunavut Court of Justice