R. v. Pattungayuk, 2019 NUCJ 8

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Pattungayuk, 2019 NUCJ 08 Date: 20190508 Docket: 15-19-65 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Arthur Pattungayuk ________________________________________________________________________ Before: Chief Justice Neil Sharkey Counsel (Crown): P. Plourde Counsel (Accused): L. Walker & G. Bourke Location Heard: Iqaluit, Nunavut Date Heard: May 7th & 8th, 2019 Matters: Change in Criminal Code s. 810.2 procedure before the Nunavut Court of Justice. REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I.

OVERVIEW [ 1 ] This case makes temporary changes to the manner in which the Nunavut Court of Justice will deal with applications made at the insistence of Correctional Services Canada [CSC] to have inmates who have served their full sentences in federal prison placed on further restrictions after they are released. [ 2 ] In due course, the Court will consult with the agencies involved in these applications with a view to developing a long-term practice directive. [ 3 ] The Criminal Code , RSC 1985, c C-46 [ Criminal Code ], allows for such applications by virtue of s. 810.2 : an informant (usually a Royal Canadian Mounted Police [RCMP] officer) may appear before a judge of the Nunavut Court and present reasonable grounds for their belief or fear that the respondent (the federal inmate) will commit what the Criminal Code says is a ‘serious personal injury offence after release from prison.’ [ 4 ] The judge who receives the application will then set a court date and order the parties (the informant and the inmate) to appear for a hearing on the merits – that is, a hearing to decide if the informant’s fears are made out, or not. [ 5 ] If the informant’s fears are made out, then the judge has the power to require the inmate to enter into a Recognizance (which lawyers and judges will often refer to simply as a peace bond or bond) which will contain several restrictions on their everyday activities and general freedom. [ 6 ] The restrictions on the inmate’s freedom can stay in force for up to one (1) year (and, in some exceptional cases, for up to two (2) years).

If the inmate refuses to enter into the Recognizance (sign the bond) then the judge has the power to commit the inmate to prison for up to one (1) year. [ 7 ] These s. 810.2 peace bonds inevitably contain more restrictive conditions on a person’s freedoms than the more general peace bonds provided for in s. 810 of the Criminal Code . This is understandable because a s. 810.2 Recognizance can only be issued in cases where the informant has established a real fear that the inmate may commit a serious crime upon release. [ 8 ] In all of these 810.2 cases, the RCMP are ‘caught short’ from the get-go.

The Major Crime Unit only receive written materials from CSC a short time before the inmate’s scheduled release date.

They are then required to prepare a court brief for Crown Counsel, which would be provided to the inmate’s lawyer as part of the disclosure process. [ 9 ] In turn, both Crown Counsel and the inmate’s lawyer – if retained – are also constrained in that they must examine this material in the short time before the inmate is released from federal prison. [ 10 ] Sometimes these time lines – between when Crown and Defence Counsel receive their files and the inmate’s release date – are as short as a week, or even a few days. [ 11 ] Historically, and because of this short time line, a practice or procedure has arisen whereby a few days before their discharge from the federal penitentiary the inmate is taken to a video conference room for a first appearance before the Nunavut Court of Justice.

[ 12 ] The Nunavut Court Judge will then place the inmate on an interim or temporary s. 810.2 Recognizance or bond prior to an actual hearing on the merits, which for many legitimate reasons may not take place for weeks, or even a few months, down the road. [ 13 ] The result of this practice is that the inmate’s freedom is restricted on a temporary basis prior to a hearing to determine whether he should have his freedom restricted, at all. [ 14 ] Sometimes an inmate will consent or agree to this practice, albeit even where the inmate has retained counsel, his lawyer will have had little chance to receive full and proper instructions. [ 15 ] It is clear, however, that such a procedure simply facilitates many last minute 810.2 peace bond applications.

Further, and more importantly, it has essentially become a ‘rubber stamp’ procedure which is unfair to the inmate. [ 16 ] There is a lot to be said for the proposition that once a man has served his full sentence in a federal penitentiary he has paid his debt to society.

Accordingly, it follows that he should not have his freedoms restricted afterwards without a full hearing on the merits. [ 17 ] There is also a jurisdictional question as to whether the court even has the power to order an inmate to enter into such a temporary or interim bond under s. 810.2 of the Criminal Code . [ 18 ] I have concluded that the Court does not have jurisdiction to require an inmate to enter into any kind of temporary or interim Recognizance under s. 810.2 prior to a substantive hearing on the merits. [ 19 ] And I have also concluded that even if such jurisdiction does exist, the current practice or procedure, as I alluded earlier, simply facilitates last minute applications.

It is no way to run a railroad. [ 20 ] Moving forward, s. 810.2 Recognizance applications involving federal inmates who have served their full warrant expiry must be brought before the court in a timely fashion; one which will allow the parties (the Crown and Counsel for the inmate) to properly prepare for a hearing on the merits. [ 21 ] In this regard, and later in this judgment, I have provided some direction to the parties involved with these types of applications, below. [ 22 ] Inmates are of course free to consent to enter into a temporary or interim Recognizance pending a full hearing on the merits.

However, absent any full and informed consent, CSC are put on notice that the Nunavut Court of Justice will not entertain such applications. [ 23 ] Absent extraordinary circumstances, the Court will only be prepared to issue a summons requiring the inmate to appear to answer to the application for a first appearance in the Nunavut Court after the inmate is released. And this summons will continue beyond the first appearance to the eventual date fixed for a hearing on the merits. II. BACKGROUND [ 24 ] Mr. Arthur Pattungayuk is a serving federal prisoner. His warrant expiry date is 2 days from now, on 10 May 2019.

At this point, Mr. Pattungayuk will be a ‘free man’ having paid his debt to society by serving his full sentence, right up until the last day. [ 25 ] Mr. Pattungayuk is before me today (still in custody, and via video) as a result of an order made a few days ago, by another judge of this Court. His lawyer, along with Crown Counsel, are before me in person here in Iqaluit.

[26] On 02 May 2019, the Crown filed an application pursuant to s. 810.2 of the Criminal Code to have Mr. Pattungayuk placed on aRecognizance or peace bond, which would require that he obey certain restrictions on his freedom after he is released and has served hissentence. [27] If the Crown is successful in this application, then Mr. Pattungayuk would be placed on conditions restricting his freedom for up toone (1) year.

A full hearing on the merits of the application itself, however, can only be heard at the earliest (for a number of legitimatereasons) several weeks or months down the road. [28] And so today the Crown applies to have Mr. Pattungayuk placed on an interim or temporary Recognizance (with several restrictiveconditions) pending a hearing on the merits. Counsel for Mr. Pattungayuk opposes the application. [29] I am also advised that Mr. Pattungayuk plans to return to his home community of Baker Lake. Accordingly, the Crown andDefence suggest that any papers which I issue today should require Mr.

Pattungayuk’ attendance for a first appearance at Baker Lake atthe next sitting of the Nunavut Court of Justice on 16 July 2019. III. ISSUES [30] The narrow issue which I need to decide today is whether Mr.

Pattungayuk should be placed on some sort of temporary or interimRecognizance (which would restrict his freedoms) until the hearing of the Crown’s application. [31] In my view, however, a secondary issue which arises is the need for the Court to give some clear (and new) procedural direction toCSC, the Public Prosecution Service of Canada [PPSC], and Nunavut’s Legal Services Board, respecting s. 810.2 Recognizanceapplications in cases of federal inmates. IV. ANALYSIS [32] I agree with both Counsel that the 16 July 2019 Court date in Baker Lake is satisfactory as a continuation of Mr.

Pattungayuk’svideo appearance before me today. [33] On 16 July Mr. Pattungayuk will be in a position to advise the presiding judge in Baker Lake whether he is willing to enter theproposed Recognizance, or not.

If he does not agree to enter into the Recognizance, then Counsel should be prepared to address thetiming and venue of a hearing on the merits. [34] I have, however, come to the conclusion that this question of placing short term or interim restrictions on a person’s freedompursuant to s. 810.2 of the Criminal Code prior to a substantive hearing to determine if longer term restrictions should be imposed isproblematic from a jurisdictional standpoint. [35] In this regard, I am persuaded that the approach taken in R v Penunsi, 2018 NLCA 4 [Penunsi] , a fairly recent decision ofthe Newfoundland & Labrador Court of Appeal, is the correct approach to take. [36] Accordingly, I decline the Crown’s application for any interim Recognizance.

I am prepared only to issue a summons to compel hisappearance at Baker Lake on 16 July 2019. [37] I am aware as well that Penunsi has been appealed to the Supreme Court of Canada, and that the Court has only recently heard

argument. Nonetheless, I find Penunsi to be strong, persuasive authority. It is a comprehensive and compelling censure of the practice of arresting respondents in s. 810.2 applications, and then releasing them on restrictive process, prior to any determination on the merits. [ 38 ] I find that Penunsi gives much needed guidance to trial courts in this area. And, given that the case is now in the hands of the Supreme Court of Canada, we, as trial courts, can expect further helpful guidance in this area. [ 39 ] Strictly speaking Penunsi is distinguishable from Mr.

Pattungayuk’s case today: Penunsi deals with the arrest and subsequent release of the respondent on restrictive court process prior to any first appearance. Mr. Pattungayuk, on the other hand, is already before the Court and making his first appearance. [ 40 ] However, as I alluded during Crown Counsel’s submissions, this difference is nothing of substance. Mr. Pattungayuk had little choice in being brought before the Court via video.

He is therefore in custody and/or under arrest respecting the Crown’s application for a s. 810.2 Recognizance. [ 41 ] At the end of the day, the substantive issue in Penunsi and in Mr.

Pattungayuk’s case is the same and one which goes to the heart of the court’s power in terms of jurisdiction. [ 42 ] Specifically that issue is whether a respondent inmate in a s. 810.2 bond application can have their freedoms restricted by way of an interim Recognizance or bond prior to any hearing on the merits. [ 43 ] In my view, following the guidance provided by the Penunsi decision, they cannot. [ 44 ] Moving forward, a larger procedural issue is this: Informations pursuant to s. 810.2 should be sworn, and hearings actually completed far in advance of the inmate’s release date – preferably months in advance. [ 45 ] The material relied upon by the Crown is usually a compilation of internal CSC reports covering the inmate’s term of imprisonment; these reports contain the opinions of various clinicians, therapists, and correctional officials who may have conducted psychometric or other forensic testing involving the inmate, and who as a result of such testing and sources of information are familiar with the inmate. [ 46 ] A process of having hearings in advance of the inmate’s release date would also allow a more normal exchange of disclosure between the Crown and the inmate’s lawyer. [ 47 ] The inmate would then be in a position to properly instruct counsel, in particular with a view to cross-examine witnesses from the institution whose reports form the basis of the Crown’s application. [ 48 ] It is clear from CSC statistics that the number of aboriginal inmates (and in particular Inuit inmates) who serve the full term of their sentence without parole far exceeds the number of non-Indigenous inmates who are held until their warrant expiry date. [ 49 ] Lately, legal scholars and other social commentators have made the argument that this disparity is, at least in part, the result of cultural misunderstandings by forensic therapists and other officials respecting the inmate’s “co-operation” during program sessions. [ 50 ] Accordingly, the case in favour of an inmate’s need to cross-examine such witnesses becomes more acute. [ 51 ] Ideally, the hearings would take place in Iqaluit on a Special Criminal Chambers date, and any witnesses could be heard via video.

I would expect CSC, in consultation with Nunavut Corrections, to transport the inmate to Iqaluit immediately after the Information is sworn, and months in advance of the hearing so that the inmate would be in a position to properly instruct Nunavut legal counsel.

[ 52 ] Alternatively, s. 810.21 expressly allows the inmate to appear by video conferencing. Accordingly, and particularly if the parties consent, it may be possible to conduct the hearing with the inmate (and his lawyer) in attendance from his federal institution, via video. [ 53 ] I assume, since the inmates involved are all Nunavut residents, that they would qualify for legal aid.

At the same time, if the inmate for some reason cannot be transported to Nunavut for the hearing, I would expect CSC to cover any Nunavut Legal Aid costs. [ 54 ] It is also possible – since the Nunavut Act , SC 1993, c 28 , allows the Court to conduct these types of hearings anywhere in Canada – to have the hearing take place at the inmate’s current federal institution (or in a nearby secure court facility).

As a practical matter, however, the Court’s resources are such that I foresee such an alternative in only the rarest of cases, if ever. [ 55 ] I will convene a conference with the parties involved in these types of hearings within the next few months to discuss these possible venues. V.

CONCLUSION [ 56 ] No interim or temporary Recognizances or peace bonds will be issued in s. 810.2 peace bond applications involving federal inmates. [ 57 ] Such a bond may issue, however, if the inmate gives an informed consent, or in an otherwise exceptional case (provided that the imminent release of the inmate does not constitute such an exception). [ 58 ] If applications are not brought in a timely fashion well in advance of the proposed Court date, then the Court will issue only a summons requiring the inmate to appear. [ 59 ] Generally, s. 810.2 applications should be brought in a more timely fashion than the current practice, and in accordance with new guidelines set out earlier in this judgment. [ 60 ] In Mr.

Pattungayuk’s case I will issue a summons returnable 16 July at 9:30 a.m. at Baker Lake, NU. [ 61 ] I understand, however, after from hearing from Mr. Pattungayuk as the hearing concluded that he may in fact be relocating to Ottawa instead of Baker Lake. This is not the Court’s concern and I will leave it to Crown and Counsel for Mr. Pattungayuk to determine if the July appearance in Baker Lake should remain on the docket and to advise the Court accordingly. Dated at the City of Iqaluit this 14th day of May, 2019

___________________ Justice N. Sharkey Nunavut Court of Justice