R. v. A.I., 2023 NUCJ 16

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. A.I., 2023 NUCJ 16 Date: 20230530 Docket: 13-23-11 Registry: Iqaluit Crown: His Majesty the King -and- Accused: A.I. __________________________________________________________________ Before: Chief Justice Sharkey Counsel (Crown): Counsel (Accused): E. Baasch M. Eaton-Kent Location Heard: Date Heard: Iqaluit, Nunavut May 5, 2023 Matters: Bail Review,

section 520 Criminal Code of Canada , RSC 1985, c C-46 REASONS FOR DECISION (Orally Delivered) On appeal from the decision of Her Worship Justice of the Peace A. Soper on 20 March 2023 denying the accused release on bail (NOTE: This document may have been edited for publication) DISCLAIMER PAGE Neither party applied for non-publication pursuant to

section 517 of the Criminal Code and accordingly no non-publication order was made. Further, the parties have been anonymized. This decision 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. I. ISSUES IN THE CASE [ 1 ] There are two (2) issues raised by this case. [ 2 ] First, is the question of whether the Justice of the Peace (JP) who conducted the bail hearing made an error in law by not hearing testimony from a proposed surety.

[ 3 ] Second, is the question of whether, in a reverse onus situation, there is a residual or inherent power in a JP to deny release on bail when the parties – Crown and Defence – agree that the accused should be released on bail. II. PROCEDURAL HISTORY [ 4 ] The accused, A.I., is a 29 year-old Inuk male. He has a lengthy criminal record. [ 5 ] On 20 March 2023 he came before a Justice of the Peace charged with a number of offences in relation to his intimate female partner, Q.K.

He was denied bail by the JP and remanded into custody pending the completion of his charges in court. [ 6 ] A.I. then applied to have the Nunavut Court of Justice (NCJ) review the JP’s decision and release him on bail pursuant to

Section 520 of the Criminal Code of Canada , RSC 1985, c C-46 ( Criminal Code ). [ 7 ] I heard this bail review on 5 May 2023. I confirmed the decision of the JP and denied bail to A.I. This was a reverse onus case.

I was not persuaded that A.I. had met the burden of showing – on a balance of probabilities – that he was a good risk for release on the secondary ground. [ 8 ] I was confident that the proposed surety – A.I.’s mother, Sarah, albeit that she had a criminal record herself – was a willing surety. [ 9 ] However, given A.I.’s extensive record for violence and breach of court orders, I was sceptical as to her ability to influence or ensure A.I.’s adherence to any terms of a Release Order while free on bail. [ 10 ] I had serious concerns about the safety of A.I.’s female intimate partner, Q.K., if he were released.

Accordingly – and like the JP had done previously – I remanded A.I. into custody pending disposition of his charges. [ 11 ] I indicated to counsel that I would provide more fulsome reasons for my decision given the issues raised by A.I.’s pleadings regarding the hearing before the JP. [ 12 ] These are those reasons. III.

A.I. ’S CURRENT CHARGES [ 13 ] A.I. was previously convicted of assaulting Q.K. as recently as 02 September 2022: he was given a jail term of 75 days and placed on probation for one (1) year with a condition that he have no contact with Q.K. unless she gave written consent to his probation officer. No such consent was ever provided. [ 14 ] On 20 March 2023 A.I. came before the JP charged with more offences involving Q.K.

He was also charged with an offence relating to another female complainant, L.K. [ 15 ] The first of these charges was the result of an incident on 03 November 2022: A.I. was charged with one (1) count of assault against L.K. (section 266 of the Criminal Code ), and one count of breaching his September 2022 probation order for contacting Q.K. (s. 733.1 of the Code ). [ 16 ] The alleged facts giving rise to these 03 November charges are that A.I. was driving and spotted Q.K. and L.K. walking along the street; he stopped and grabbed Q.K.; L.K. came to Q.K.’s aid and pulled her away from A.I. who then threw L.K. to the ground and punched her in the face a number of times.

A.I. then drove away. [ 17 ] The police arrested A.I. shortly afterwards for this 03 November incident. They could have brought him before a JP for a bail hearing. However, they decided to release him on a ‘police bail’ – on an Undertaking given to an officer with a condition that he not contact L.K. pending the outcome of the charges. [ 18 ] AI’s next or second group of charges stem from an incident on 10 December 2022: A.I. was charged with one (1) count of assault

against Q.K. (s. 266); one (1) count of choking Q.K. (s. 267 (c)); one (1) count of confining Q.K. against her will (s. 279 (2)); one (1) count of threatening Q.K. (s. 264.1); and two (2) counts of breaching his 02 September 2022 probation order (s. 733.1) – by contacting Q.K. when prohibited and for failing to be of good behavior while on probation. [ 19 ] The alleged facts giving rise to these 10 December charges are that A.I. came to Q.K.’s residence (where she was living with her mother) and took her out of town.

He accused her of involvement with other men; he hit her in the face until she fell down and then kicked her; he then choked her to the point where she almost lost consciousness; he then returned her to town. [ 20 ] Q.K.’s mother reported the incident to police three days later and police observed significant bruising to Q.K.’s face. [ 21 ] The police arrested A.I. for these 10 December charges. Again, the police could have brought him before a JP for a bail hearing.

Instead, however, they again decided to release him on a ‘police bail’ – an Undertaking given to an officer with conditions that he have no contact with Q.K. pending the outcome of his charges in court. [ 22 ] A.I.’s third or final group of charges are a result of an incident which occurred on 17 March 2023: A.I. was charged with one (1) count of assault against Q.K. (s. 266); one (1) count of breaching bail (s.145) for contacting Q.K. against the terms of his police bail (Undertaking); and two (2) counts of breaching his 02 September 2022 probation order (s. 733.1) for communicating or contacting Q.K. [ 23 ] The alleged facts giving rise to these 17 March charges are that Q.K.’s mother called police as a result of her daughter (Q.K.) being assaulted by A.I.; the police attended at the mother’s residence and noticed bruising to Q.K.’s face; Q.K. said she was at a friend’s house earlier when A.I. simply came into the residence uninvited and began punching her in the face until she begged him to stop; he then left. [ 24 ] On 17 March the police again arrested A.I.

This time, however, instead of releasing him on an Undertaking (police bail) they brought him before a JP for a bail hearing which took place on 20 March. [ 25 ] At the time A.I. is alleged to have committed these offences he was living at all such times, with his mother, Sarah, at her house. IV. A.I.’S CRIMINAL HISTORY [ 26 ] A.I. is now 29 years old.

Since 2014, when he was around 20 years of age, he has amassed 49 criminal convictions: these include a dozen convictions for simple or common assault (many against the same woman, although not his current partner Q.K.); convictions for assault with a weapon and assault causing bodily harm; a conviction for sexual interference with a minor; convictions for resisting and assaulting police, and over a dozen convictions for breaching probation and bail orders. [ 27 ] A.I. has received a variety of sentences for these offences - mostly short jail terms of a few months to six months for the various assaults, 540 days for the sexual interference offence (which occurred in 2020), and various shorter jail terms for breaching probation and bail. [ 28 ] Also, as noted above, and as recently as September 2022, A.I. received 75 days jail for assaulting Q.K.

V. THE PROCEEDINGS BEFORE THE JUSTICE OF THE PEACE ON 20 MARCH 2023 [ 29 ] The show cause (bail) hearing before the JP was brief. Counsel for the Crown and Defence who appeared at that hearing were not the same lawyers who appeared before me at the bail review hearing. [ 30 ] Ordinarily, it is the onus of the Crown to “show cause” why the detention of an accused prior to trial is justified. In most instances, an accused charged with a crime is presumed to be eligible for bail while they await trial and is released by a police officer or JP shortly after arrest.

[ 31 ] However, when an accused is charged with an offence listed under Section 515(6) of the Criminal Code , which includes an offence of violence against an intimate partner where he has been previously convicted of a violent offence against any intimidate partner, Parliament has switched, or reversed, the onus from the Crown to the accused who must “show cause” as to why his detention is not justified. [ 32 ] The parties agreed with the JP that A.I. was in a reverse onus situation: first, because he was currently charged with breach of his previous bail, and second because he had previously (and recently in September of 2022) been convicted of assaulting his intimate partner Q.K. [ 33 ] The hearing began by Crown Counsel telling the JP right off the bat that this was a consent release situation with one proposed surety – the accused’s mother – and a number of conditions. [ 34 ] In response the JP advised the lawyers that given the sequence of charges she had some concerns with the proposed release. [ 35 ] The factual allegations were read by the Crown and A.I.’s record was put before the Court, as was the fact that A.I. was living with the proposed surety (his mother, Sarah) throughout these various incidents which gave rise to his charges. [ 36 ] Both Crown and Defence Counsel were clear that they felt A.I.’s release with a surety was a significant or major step up the bail ladder since he had previously been released on police Undertakings with no such sureties. [ 37 ] At no time, however, did either counsel articulate or tell the JP what conditions were proposed as part of the agreed release – albeit presumably the major condition agreed to would have been that A.I. have no contact with Q.K.. [ 38 ] Further, Defence Counsel made no submissions to the JP regarding his client’s personal circumstances or his commitment to obey any conditions imposed. [ 39 ] Further still – and obviously because of the ‘deal’ between counsel respecting A.I.’s release – Defence Counsel did not call the proposed surety as a witness. [ 40 ] Indeed, Defence Counsel did not even let the JP know that Sarah was available to testify via telephone – if in fact she was, we simply do not know. [ 41 ] Both Counsel simply relied on the legal proposition that release with a surety, per se , was – even though A.I. had an extensive record – a step from the lowest form of release (a police Undertaking) to the highest form of release on the ladder. [ 42 ] In rendering her decision the JP was clear in her understanding of the bail ladder which must be adhered to in determining whether an accused may be released or detained. [ 43 ] She was also clear in her understanding that release with a surety by a Court was a significant step up from the previous Undertakings entered into before a police officer. [ 44 ] The JP noted that the police released A.I. on his first group of charges, in November, on an Undertaking.

She was, however, “a little shocked” that they released him again on his second group of charges, in December, on yet another Undertaking. [ 45 ] In this regard, the JP stated as follows: I do understand that this (proposal of counsel) is jumping the bail ladder. In my humble opinion he (A.I.) should have been in this situation (before a JP) when the allegations came forth in December and to be honest I don’t believe he (A.I.) has met the onus. I cannot release this accused into the community, even on the highest form of bail, to a surety release. I have huge secondary ground concerns.

From what I see A.I. is not good on bail. He is not good at staying away from Q.K. even when he is on condition to do so. {Bail Transcript, p. 13, ll, 12-21} [ 46 ] The JP then went on to articulate further specific aspects relevant to the secondary ground: that A.I. was on probation at the time of his current charges; that even ignoring earlier convictions up to 2017, he has several convictions for violence and breaches of bail after 2020.

[ 47 ] The JP ended her judgment by mentioning that A.I. had breached conditions in the past while residing with his mother - and that while the mother Sarah may be a suitable surety, the likelihood was that A.I. would once again breach by contacting Q.K. if released on a condition not to do so. [ 48 ] Accordingly, the JP remanded A.I. into custody pending disposition of his charges. [ 49 ] After the remand was made Defence Counsel attempted to ‘bargain’ with the JP by suggesting that more strict conditions might be imposed.

In response, and quite properly, the JP advised that Counsel could take the matter up in the NCJ via bail review. VI. THE BAIL REVIEW PROCEEDINGS BEFORE ME ON 05 MAY 2023 [ 50 ] Section 520(1) of the Criminal Code allows for an accused person who has been detained by a JP to apply to the NCJ for a review (and reversal) of the decision by the JP. [ 51 ]

Section 520 does not, however, confer an open-ended discretion on the reviewing judge to conduct a de novo hearing and vary the initial decision made by the JP to detain the accused.

Rather, it confers a so-called hybrid remedy. [ 52 ] The reviewing judge may reverse the decision of the JP in one of three circumstances: first, if the JP made an error in law which could have resulted in the release of the accused; second, if there has been a material change in the circumstances of the accused; and third if the decision of the JP was blatantly inappropriate. [ 53 ] The NCJ takes a wide or liberal view of what constitutes a ‘change in circumstances.’ Most often this will involve the accused proposing new or additional sureties which were not available to him at the hearing before the JP. [ 54 ] In his written pleadings A.I. said that the JP made an error in law by failing to hear testimony from the proposed surety, the accused’s mother, Sarah, after rejecting the joint position of the Crown and Defence for release with her as a surety. [ 55 ] In oral argument Counsel for A.I. said once this joint position of Counsel was rejected that no bail hearing actually took place, at all, because Sarah, could have testified. [ 56 ] In response the Crown said the situation before the JP was more simple – no evidence was called because the Crown was consenting to release.

Or, put another way, the JP never heard from the surety, or from the Defence about their ‘full plan’ for release, because of the joint position of the parties. [ 57 ] Counsel for A.I. also said that there had been a material change in A.I.’s circumstances since the bail hearing before the JP - namely that A.I.’s mother, Sarah, was now available to testify before me at the bail review stage. [ 58 ] I considered it a ‘stretch’ to suggest that this fact amounted to a change in A.I.’s circumstances since his bail hearing, but decided nonetheless to hear from the proposed surety, Sarah, via telephone. [ 59 ] Sarah was a forthright witness: she acknowledged her 2009 convictions for narcotic possession and assault but said she was a changed person now; she said she would permit A.I. to live with her and her husband and would call the RCMP if A.I. breached any conditions regarding contacting Q.K., or drinking, or curfew. [ 60 ] In addition Sarah said she would ‘probably’ call the RCMP if A.I. was not listening to her; she agreed that A.I. was in fact living with her when his current offences allegedly took place; she also said she had problems with the complainant Q.K. coming around to the house while A.I. was on bail to stay away from her, ‘even though I told her (Q.K.) not to come to the house.’ [ 61 ] Counsel’s position before me was that release with Sarah as a surety and with conditions respecting alcohol and a curfew was a significant step up the bail ladder from the previous police Undertaking and should therefore justify A.I.’s release. [ 62 ] Crown Counsel noted the fact of possible on-going breaches of bail while A.I. lived at Sarah’s house and questioned the ability of Sarah to control or prevent contact between Q.K. and her son, A.I.

VII. ANALYSIS & CONCLUSIONS [ 63 ] The first issue is whether the JP made an error in law by not hearing testimony from the proposed surety, A.I.’s mother, Sarah. [ 64 ] In my view the answer here is no, the JP made no such error. [ 65 ] Nunavut JP’s are well schooled – because the freedom of the accused is at stake - to fully listen to the case for the accused at a bail hearing.

They are required to consider all submissions from counsel respecting any release package, and to consider testimony from sureties when they are called as witnesses. [ 66 ] At no time in this case did Defence Counsel before the JP (again, not Counsel before me at the bail review) apply to call A.I.’s mother Sarah, as a witness.

At no time during the bail hearing did Counsel even tell the JP that Sarah was available or standing by on the phone to testify – if indeed she was, again we simply do not know. [ 67 ] I am confident that had the JP been told that Sarah was available or standing by to testify that she (the JP) would have heard from Sarah. [ 68 ] It is not incumbent upon the JP to run or conduct the Defence case. The JP did not ‘fail’ to hear from Sarah.

Rather, Defence Counsel failed to call Sarah as a witness. [ 69 ] Both Crown and Defence Counsel simply assumed that the JP would ‘rubber stamp’ their joint proposal or deal to release the accused.

This takes me to consider the second issue in the case. [ 70 ] This second issue is whether, in a reverse onus situation, there is residual or inherent power in a JP to detain the accused where the parties – Crown and Defence – agree that the accused should be released on bail. [ 71 ] In my view the answer here is yes, there is such power to deny release on bail. [ 72 ] In a sentencing context where the Crown and Defence agree upon a joint position as to the appropriate sentence, judges are required to impose the sentence recommended unless doing so would cause the administration of justice to be brought into disrepute. [ 73 ] The standard required to reject the joint position on sentence is a high one, and in practice seldomly applied. [ 74 ] While there are statutory aspects to the sentencing of an offender, the sentencing process – unlike bail – is not a strict statutory scheme which must be adhered to. [ 75 ] Release on bail is governed by

Part XVI of the Code , and mainly by

section 515. [ 76 ] Nunavut’s JPs are also well schooled in the principle of restraint and the ladder principle – namely, that release is the default position and that lesser restrictions must be examined before stricter conditions may be imposed. [ 77 ] Section 515 (1) and (2) deals with non-reverse onus situations.

It provides that where an accused is brought before a JP, the JP shall release the accused unless the prosecutor shows cause why detention of the accused is justified within one of the three grounds set out in section 515 (10). [ 78 ] This, in my view, means that in such non-reverse onus situations the JP has no choice but to release the accused if the prosecutor declines to show cause why detention is justified - even where the JP may have reservations about releasing the accused. [ 79 ] Section 515 (6) deals with reverse onus situations. As mentioned above, this

section states that where an accused is brought before a JP in a reverse onus situation, the JP shall detain the accused in custody unless the accused shows cause why their detention is not justified.

[ 80 ] This, in my view, means that even where the parties – Crown and Defence – agree that the accused may be released, the JP must still be satisfied that the accused has shown cause why detention is not justified before releasing the accused. [ 81 ] In other words, and in my view, the agreement between Crown and Defence that the accused has shown cause does not bind the JP to release the accused; nor does such an agreement relieve the JP of their duty to be convinced that the accused has shown cause. [ 82 ] While the position of the prosecutor is an important consideration it is not determinant of the issue as to whether the accused has shown cause. [ 83 ] This case illustrates this point. [ 84 ] It should have been obvious to Crown Counsel that the accused was living with his mother Sarah when his current offences involving Q.K. are alleged to have been committed.

How then, rhetorically, could simply making Sarah a surety address Q.K.’s safety? [ 85 ] Similarly, it should have been obvious given the accused’s record for breaches of bail that his attitude towards release documents was that they are merely pieces of paper. [ 86 ] It should therefore have been obvious that something more than Sarah as a surety – even with additional conditions for the accused to obey – would be necessary before any JP would have confidence in concluding the accused’s detention was not justified. [ 87 ] The JP expressed “shock” that the accused had been released by the police in December on a simple Undertaking after they (the police) had previously released him only a month earlier on the November Undertaking. [ 88 ] Thus, while acknowledging that release with a surety was a step up the ladder from the previous Undertaking, the JP felt that it did not sufficiently address the safety of the complainant given the accused’s previous breaches of bail and his record of violence. [ 89 ] Accordingly, the JP was of the view that the accused had not shown cause why his detention was not justified on the secondary ground. [ 90 ] I share the JP’s concern that the accused was released by the police in December on an Undertaking after an identical release only a month earlier. [ 91 ] Similarly, I am of the view that the position taken by the Crown before the JP showed an indifference to the plight of a vulnerable Inuit female victim of crime. [ 92 ] I am aware that the accused A.I. is an Aboriginal person and that

section 493.2 of the Code requires I must pay particular attention to this fact even at the bail stage. [ 93 ] I do so, of course, within the context of public safety- and in particular the safety of Q.K. [ 94 ] In this case, given the accused’s record for violence, including intimate partner violence, and previous breaches of bail, I would support release only within a very controlled cultural environment such as an outpost camp setting where A.I. would have no access to Q.K.; or, alternatively, on conditions that he reside with influential and respected community members who would, willingly, undertake to supervise him strictly and prohibit access to Q.K. [ 95 ] The decision of the JP made at the show cause hearing is affirmed and the accused’s detention is justified on the secondary ground. [ 96 ] A.I. is therefore remanded into custody pending disposition of his charges.

Dated at the City of Iqaluit this 30th day of May 2023

___________________ Chief Justice N. Sharkey Nunavut Court of Justice